[Federal Register Volume 89, Number 104 (Wednesday, May 29, 2024)]
[Rules and Regulations]
[Pages 46682-46740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10879]



[[Page 46681]]

Vol. 89

Wednesday,

No. 104

May 29, 2024

Part IV





Department of Energy





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





Federal Energy Regulatory Commission





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





18 CFR Parts 50 and 380





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

  Federal Register / Vol. 89, No. 104 / Wednesday, May 29, 2024 / Rules 
and Regulations  

[[Page 46682]]


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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 50 and 380

[Docket No. RM22-7-000; Order No. 1977]


Applications for Permits To Site Interstate Electric Transmission 
Facilities

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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

SUMMARY: The Federal Energy Regulatory Commission amends its 
regulations governing applications for permits to site electric 
transmission facilities under the Federal Power Act, as amended by the 
Infrastructure Investment and Jobs Act of 2021, and amends its National 
Environmental Policy Act procedures.

DATES: This rule is effective July 29, 2024.

FOR FURTHER INFORMATION CONTACT: 

Maggie Suter (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-6344, [email protected]
Tara DiJohn Bruce (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8671, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

 
                                                               Paragraph
                                                                 Nos.
 
I. Background...............................................           2
    A. Energy Policy Act of 2005 and FPA Section 216........           2
    B. Order No. 689........................................           9
    C. Piedmont & California Wilderness Judicial Decisions..          11
    D. IIJA Amendments to FPA Section 216...................          14
    E. Notice of Proposed Rulemaking........................          17
II. Discussion..............................................          26
    A. Commission Jurisdiction and State Siting Proceedings.          26
        1. IIJA Amendments and Commission Jurisdiction Under          27
         FPA Section 216(b)(1)..............................
        2. Commencement of Pre-Filing.......................          38
    B. Eminent Domain Authority and Applicant Efforts To              55
     Engage With Landowners and Other Stakeholders..........
        1. NOPR Proposal....................................          56
        2. Comments.........................................          60
        3. Commission Determination.........................          73
    C. Environmental Justice Public Engagement Plan.........          98
        1. NOPR Proposal....................................          98
        2. Comments.........................................         100
        3. Commission Determination.........................         109
    D. Revisions to 18 CFR Part 50..........................         119
        1. Section 50.1--Definitions........................         119
        2. Section 50.3--Filing and Formatting Requirements.         159
        3. Section 50.4--Stakeholder Participation..........         160
        4. Section 50.5--Pre-Filing Procedures..............         223
        5. Section 50.6--General Content of Applications....         246
        6. Section 50.7--Application Exhibits...............         257
        7. Section 50.11--General Permit Conditions.........         261
        8. Clarifying Revisions to 18 CFR Part 50...........         265
    E. Additional Considerations Raised by Commenters.......         266
        1. Grid-Enhancing Technologies......................         267
        2. Use of Existing Rights-of-Way....................         269
        3. Project Costs....................................         273
        4. Miscellaneous....................................         275
    F. Regulations Implementing NEPA........................         279
        1. Consultation With CEQ............................         281
        2. DOE Coordination.................................         285
        3. NEPA Document Procedures.........................         295
        4. Revisions to 18 CFR 380.16.......................         301
        5. Revisions to 18 CFR 380.13 and 380.14............         411
III. Information Collection Statement.......................         412
IV. Environmental Analysis..................................         426
V. Regulatory Flexibility Act...............................         427
VI. Document Availability...................................         431
VII. Effective Date and Congressional Notification..........         434
 

    1. On November 15, 2021, the Infrastructure Investment and Jobs Act 
(IIJA) became law.\1\ The IIJA, among other things, amended section 216 
of the Federal Power Act (FPA),\2\ which provides for Federal siting of 
electric transmission facilities under certain circumstances. The 
Federal Energy Regulatory Commission (Commission) is amending its 
regulations governing applications for permits to site electric 
transmission facilities to ensure consistency with the IIJA's 
amendments to FPA section 216, to modernize certain regulatory 
requirements, and to incorporate other updates and clarifications to 
provide for the efficient and timely review of permit applications.
---------------------------------------------------------------------------

    \1\ Public Law 117-58, sec. 40105, 135 Stat. 429 (2021).
    \2\ 16 U.S.C. 824p.

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

[[Page 46683]]

I. Background

A. Energy Policy Act of 2005 and FPA Section 216

    2. The authority to site electric transmission facilities has 
traditionally resided solely with the States; however, the enactment of 
the Energy Policy Act of 2005 (EPAct 2005) \3\ established a limited 
Federal role in electric transmission siting by adding section 216 to 
the FPA. Under section 216, Federal siting authority for electric 
transmission facilities (as defined in that section) is divided between 
the Department of Energy (DOE) and the Commission. Section 216(a) 
directs DOE, on a triennial basis, to conduct a study and issue a 
report on electric transmission congestion and authorizes DOE to 
designate certain transmission-constrained or congested geographic 
areas as national interest electric transmission corridors (National 
Corridors). Section 216(b) authorizes the Commission in certain 
instances to issue permits for the construction or modification of 
electric transmission facilities in areas that DOE has designated as 
National Corridors.
---------------------------------------------------------------------------

    \3\ Public Law 109-58, sec. 1221, 119 Stat. 594 (Aug. 8, 2005) 
(amended 2021).
---------------------------------------------------------------------------

    3. As originally enacted in EPAct 2005, section 216(b)(1) 
authorized the Commission to issue permits to construct or modify 
electric transmission facilities in a National Corridor if it found 
that: (A) a State in which such facilities are located lacks the 
authority to approve the siting of the facilities or consider the 
interstate benefits expected to be achieved by the proposed 
construction or modification of transmission facilities in the State; 
\4\ (B) the permit applicant is a transmitting utility but does not 
qualify to apply for a permit or siting approval in a State because the 
applicant does not serve end-use customers in the State; \5\ or (C) a 
State commission or entity with siting authority has withheld approval 
of the facilities for more than one year after an application is filed 
or one year after the designation of the relevant National Corridor, 
whichever is later, or the State conditions the construction or 
modification of the facilities in such a manner that the proposal will 
not significantly reduce transmission congestion in interstate commerce 
or is not economically feasible.\6\
---------------------------------------------------------------------------

    \4\ 16 U.S.C. 824p(b)(1)(A) (prior to the IIJA amendment in 
2021). Instances in this rule citing the statute prior to the IIJA 
amendment in 2021 are noted by a parenthetical for clarity.
    \5\ Id. 824p(b)(1)(B).
    \6\ Id. 824p(b)(1)(C) (prior to the IIJA amendment in 2021).
---------------------------------------------------------------------------

    4. In addition, sections 216(b)(2) through (6) required the 
Commission, before issuing a permit, to find that the proposed 
facilities: (1) will be used for the transmission of electricity in 
interstate commerce; (2) are consistent with the public interest; (3) 
will significantly reduce transmission congestion in interstate 
commerce and protect or benefit consumers; (4) are consistent with 
sound national energy policy and will enhance energy independence; and 
(5) will maximize, to the extent reasonable and economical, the 
transmission capabilities of existing towers or structures.\7\
---------------------------------------------------------------------------

    \7\ Id. 824p(b)(2)-(6).
---------------------------------------------------------------------------

    5. Section 216(e) authorized a permit holder, if unable to reach 
agreement with a property owner, to use eminent domain to acquire the 
necessary right-of-way for the construction or modification of 
transmission facilities for which the Commission has issued a permit 
under section 216(b).\8\ Federal and State-owned land was expressly 
excluded from the purview of section 216(e) and thus could not be 
acquired via eminent domain.\9\
---------------------------------------------------------------------------

    \8\ Id. 824p(e)(1) (prior to the IIJA amendment in 2021).
    \9\ Id.
---------------------------------------------------------------------------

    6. Section 216(h)(2) designated DOE as the lead agency for purposes 
of coordinating all Federal authorizations and related environmental 
reviews needed to construct proposed electric transmission facilities. 
To ensure timely and efficient reviews and permit decisions, under 
section 216(h)(4)(A), DOE was required to establish prompt and binding 
intermediate milestones and ultimate deadlines for all Federal reviews 
and authorizations required for a proposed electric transmission 
facility.\10\ Under section 216(h)(5)(A), DOE, as lead agency, was 
required to prepare a single environmental review document, in 
consultation with other affected agencies, that would be used as the 
basis for all decisions for proposed projects under Federal law.
---------------------------------------------------------------------------

    \10\ Under FPA section 216(h)(6)(A), if any agency has denied a 
Federal authorization required for a transmission facility or has 
failed to act by the deadline established by the Secretary of DOE, 
the applicant or any State in which the facility would be located 
may file an appeal with the President. 16 U.S.C. 824p(h)(6)(A).
---------------------------------------------------------------------------

    7. On May 16, 2006, the Secretary of DOE delegated to the 
Commission authority to implement parts of section 216(h), specifically 
paragraphs (2), (3), (4)(A)-(B), and (5).\11\ Specifically, the 
Secretary delegated DOE's lead agency responsibilities to the 
Commission for the purposes of coordinating all applicable Federal 
authorizations and related environmental reviews and preparing a single 
environmental review document for proposed facilities under the 
Commission's siting jurisdiction.\12\
---------------------------------------------------------------------------

    \11\ See DOE Delegation Order No. S1-DEL-FERC-2006 (previously 
DOE Delegation Order No. 00-004.00A).
    \12\ While Congress has provided the authority to establish 
prompt and binding milestones and deadlines for the review of, and 
Federal authorization decisions relating to, facilities proposed 
under section 216, 16 U.S.C. 824p(h)(4)(A), efficient processing of 
applications will depend upon agencies complying with the 
established milestones and deadlines.
---------------------------------------------------------------------------

    8. In August 2006, DOE issued a Congestion Study pursuant to 
section 216(a), which identified two critically congested areas in the 
Mid-Atlantic and Southern California.\13\ Based on the results of the 
Congestion Study, in October 2007, DOE formally designated two National 
Corridors, the Mid-Atlantic Corridor and the Southwest Area 
Corridor.\14\
---------------------------------------------------------------------------

    \13\ DOE, National Electric Transmission Congestion Study, 71 FR 
45047 (Aug. 8, 2006).
    \14\ DOE, National Electric Transmission Congestion Report, 72 
FR 56992 (Oct. 5, 2007).
---------------------------------------------------------------------------

B. Order No. 689

    9. Section 216(c)(2) of the FPA required the Commission to issue 
rules specifying the form of, and the information to be contained in, 
an application for proposed construction or modification of electric 
transmission facilities in National Corridors, and the manner of 
service of notice of the permit application on interested persons. 
Pursuant to this statutory requirement, on November 16, 2006, the 
Commission issued Order No. 689, which implemented new regulations for 
section 216 permit applications by adding part 50 to the Commission's 
regulations.\15\ In addition, Order No. 689 adopted modifications to 
the Commission's regulations implementing the National Environmental 
Policy Act of 1969 (NEPA) \16\ in part 380 of the Commission's 
regulations to ensure that the Commission is provided sufficient 
information to conduct an environmental analysis of a proposed electric 
transmission project.
---------------------------------------------------------------------------

    \15\ Regulations for Filing Applications for Permits to Site 
Interstate Elec. Transmission Facilities, Order No. 689, 71 FR 69440 
(Dec. 1, 2006) 117 FERC ] 61,202 (2006), reh'g denied, 119 FERC ] 
61,154 (2007).
    \16\ 42 U.S.C. 4321 et seq. See also 18 CFR pt. 380 (2023) 
(Commission's regulations implementing NEPA).
---------------------------------------------------------------------------

    10. In Order No. 689, the Commission addressed a question of 
statutory interpretation raised by commenters concerning the text of 
section 216(b)(1)(C), which, at the time, conferred jurisdiction to the 
Commission whenever a State had withheld approval of a State siting

[[Page 46684]]

application for more than one year.\17\ The Commission interpreted the 
phrase ``withheld approval'' to include any action that resulted in an 
applicant not receiving State approval within one year, including a 
State's express denial of an application to site transmission 
facilities.\18\
---------------------------------------------------------------------------

    \17\ Order No. 689, 117 FERC ] 61,202 at PP 24-31, reh'g denied, 
119 FERC ] 61,154 at PP 7-23.
    \18\ Order No. 689, 117 FERC ] 61,202 at P 26, reh'g denied, 119 
FERC ] 61,154 at P 11.
---------------------------------------------------------------------------

C. Piedmont & California Wilderness Judicial Decisions

    11. In 2009, the U.S. Court of Appeals for the Fourth Circuit 
(Fourth Circuit), in Piedmont Environmental Council v. FERC,\19\ held 
that the Commission's interpretation of ``withheld approval'' was 
contrary to the plain meaning of the statute, and that the Commission's 
siting authority does not apply when a State has affirmatively denied a 
permit application within the one-year deadline.\20\ In addition, the 
Fourth Circuit vacated the Commission's transmission-related amendments 
to its NEPA regulations, finding that the Commission had failed to 
consult with the Council on Environmental Quality (CEQ) before adopting 
the revisions.\21\
---------------------------------------------------------------------------

    \19\ 558 F.3d 304 (4th Cir. 2009), cert. denied, 558 U.S. 1147 
(2010) (Piedmont).
    \20\ Id. at 313.
    \21\ Id. at 319, 320.
---------------------------------------------------------------------------

    12. Two years later, the U.S. Court of Appeals for the Ninth 
Circuit (Ninth Circuit), in California Wilderness Coalition v. DOE, 
considered petitions for review challenging DOE's actions following the 
enactment of section 216.\22\ The Ninth Circuit vacated DOE's August 
2006 Congestion Study and October 2007 National Corridor designations, 
finding that the agency: (1) failed to properly consult with affected 
States in preparing the Congestion Study, as required by section 216; 
and (2) failed to consider the environmental effects of the National 
Corridor designations under NEPA.\23\
---------------------------------------------------------------------------

    \22\ 631 F.3d 1072 (9th Cir. 2011).
    \23\ Id. at 1096, 1106.
---------------------------------------------------------------------------

    13. Since the Fourth Circuit and Ninth Circuit decisions, DOE has 
not designated any National Corridors, and the Commission has not 
received any applications for permits to site electric transmission 
facilities.

D. IIJA Amendments to FPA Section 216

    14. On November 15, 2021, the IIJA amended section 216 of the FPA. 
With respect to DOE's authority, the IIJA amended section 216(a)(2) to 
expand the circumstances in which DOE may designate a National 
Corridor. In addition to geographic areas currently experiencing 
transmission capacity constraints or congestion that adversely affects 
consumers, amended section 216(a)(2) provides that DOE may designate 
National Corridors in geographic areas expected to experience such 
constraints or congestion. The IIJA also amended section 216(a)(4) to 
expand the factors that DOE may consider in determining whether to 
designate a National Corridor.\24\
---------------------------------------------------------------------------

    \24\ DOE may consider the following factors when determining 
whether to designate a National Corridor under section 216(a)(4): 
(1) the economic vitality and development of the corridor, or the 
end markets served by the corridor, may be constrained by lack of 
adequate or reasonably priced electricity; (2) economic growth in 
the corridor, or the end markets served by the corridor, may be 
jeopardized by reliance on limited sources of energy and a 
diversification of supply is warranted; (3) the energy independence 
or energy security of the United States would be served by the 
designation; (4) the designation would be in the interest of 
national energy policy; (5) the designation would enhance national 
defense and homeland security; (6) the designation would enhance the 
ability of facilities that generate or transmit firm or intermittent 
energy to connect to the electric grid; (7) the designation 
maximizes existing rights-of-way and avoids and minimizes, to the 
maximum extent practicable, and offsets to the extent appropriate 
and practicable, sensitive environmental areas and cultural heritage 
sites; and (8) the designation would result in a reduction in the 
cost to purchase electric energy for consumers.
---------------------------------------------------------------------------

    15. With respect to the Commission's siting authority, the IIJA 
amended section 216(b)(1)(C) by deleting the phrase ``withheld 
approval'' and by incorporating revisions to the statutory text. As 
amended, section 216(b)(1)(C) provides that the Commission's siting 
authority is triggered when a State commission or other entity with 
authority to approve the siting of the transmission facilities: (i) has 
not made a determination on a siting application by one year after the 
later of the date on which the application was filed or the date on 
which the relevant National Corridor was designated; (ii) has 
conditioned its approval such that the proposed project will not 
significantly reduce transmission capacity constraints or congestion in 
interstate commerce or is not economically feasible; or (iii) has 
denied an application.\25\ This statutory amendment resolves the 
jurisdictional issue at the heart of Piedmont by explicitly giving the 
Commission siting authority when a State has denied an application.\26\
---------------------------------------------------------------------------

    \25\ 16 U.S.C. 824p(b)(1)(C).
    \26\ Id. 824p(b)(1)(C)(iii).
---------------------------------------------------------------------------

    16. Additionally, the IIJA amended section 216(e), which grants a 
permit holder the right to acquire the necessary right-of-way by 
eminent domain.\27\ As amended, section 216(e)(1) requires the 
Commission to determine, as a precondition to a permit holder 
exercising such eminent domain authority, that the permit holder has 
made good faith efforts to engage with landowners and other 
stakeholders early in the applicable permitting process.\28\
---------------------------------------------------------------------------

    \27\ Id. 824p(e)(1).
    \28\ Id.
---------------------------------------------------------------------------

E. Notice of Proposed Rulemaking

    17. On December 15, 2022, the Commission issued a Notice of 
Proposed Rulemaking (NOPR), which proposed revisions to its regulations 
in parts 50 and 380 governing applications for permits to site electric 
transmission facilities.\29\ Among other revisions, the Commission 
proposed changes to address the IIJA's amendments to section 216 of the 
FPA.
---------------------------------------------------------------------------

    \29\ Applications for Permits to Site Interstate Elec. 
Transmission Facilities, 88 FR 2770 (Jan. 17, 2023), 181 FERC ] 
61,205 (2022) (NOPR), errata notice, 182 FERC ] 61,020 (2023). The 
Commission's errata notice for the NOPR, issued on January 17, 2023, 
reflected certain stylistic revisions requested by the Federal 
Register as well as minor, non-substantive editorial revisions.
---------------------------------------------------------------------------

    18. First, the Commission proposed revisions to make clear that the 
Commission has the authority to issue permits for the construction or 
modification of electric transmission facilities in a National Corridor 
if a State has denied a siting application.\30\
---------------------------------------------------------------------------

    \30\ Id. P 18.
---------------------------------------------------------------------------

    19. Second, the Commission announced a proposed policy change that 
would allow an applicant that is subject to a State siting authority to 
seek to commence the Commission's pre-filing process once the relevant 
State siting applications have been filed.\31\ The Commission explained 
that this change, if adopted, would eliminate the Commission's prior 
policy of waiting one year after the relevant State siting applications 
have been filed before allowing an applicant to seek to commence the 
Commission's pre-filing process. The Commission further proposed that, 
one year after the commencement of the Commission's pre-filing process, 
if a State has not made a determination on an application before it, 
the State will have 90 days to provide comments to the Commission on 
any aspect of the pre-filing process, including any information 
submitted by the applicant.\32\
---------------------------------------------------------------------------

    \31\ Id. PP 20-21.
    \32\ Id. P 23.
---------------------------------------------------------------------------

    20. Third, the Commission proposed to codify an Applicant Code of 
Conduct.\33\ The Commission explained that compliance with the 
Applicant Code of Conduct is one way an applicant may demonstrate that 
it has made good faith efforts to engage with landowners and other 
stakeholders early

[[Page 46685]]

in the applicable permitting process as required by section 216(e)(1) 
of the FPA as a predicate to the use of eminent domain.\34\ The 
Commission also proposed that an applicant may choose an alternative 
method of demonstrating that it meets the ``good faith efforts'' 
standard, so long as it explains how its alternative method is equal to 
or better than compliance with the Applicant Code of Conduct as a means 
of ensuring that the statutory standard is met.
---------------------------------------------------------------------------

    \33\ Id. PP 26-27.
    \34\ Id. P 28.
---------------------------------------------------------------------------

    21. Fourth, the Commission proposed to add a requirement that 
applicants develop and file an Environmental Justice Public Engagement 
Plan as part of their Project Participation Plan, which is already 
required early in the pre-filing process.\35\ The Commission explained 
that an Environmental Justice Public Engagement Plan must describe the 
applicant's completed outreach to environmental justice communities, 
summarize comments from potentially impacted communities, describe 
planned outreach, and describe how the applicant will reach out to 
environmental justice communities about potential mitigation.\36\
---------------------------------------------------------------------------

    \35\ Id. PP 30-31; 18 CFR 50.4(a) (requiring Project 
Participation Plan).
    \36\ Id. P 31.
---------------------------------------------------------------------------

    22. Finally, the Commission proposed updates to the environmental 
information that an application must include. In addition to a variety 
of proposed updates, clarifications, and corrections to existing 
resource reports, the Commission proposed to require an applicant to 
provide information regarding a proposed project's impacts on Tribal 
resources, environmental justice communities, and air quality and 
environmental noise in three new resource reports.\37\
---------------------------------------------------------------------------

    \37\ Id. PP 63-71.
---------------------------------------------------------------------------

    23. Comments on the NOPR were due by April 17, 2023. In response to 
a motion filed by the National Association of Regulatory Utility 
Commissioners (NARUC), the Commission extended the comment deadline to 
May 17, 2023.
    24. In response to the NOPR, 52 comments were filed.\38\ These 
comments have informed our determinations in this final rule.
---------------------------------------------------------------------------

    \38\ Appendix B lists the entities that submitted comments on 
the NOPR and the abbreviated names used throughout this final rule 
to describe those entities.
---------------------------------------------------------------------------

    25. Additionally, on February 28, 2024, the Joint Federal-State 
Task Force on Electric Transmission (Task Force) \39\ met to discuss 
transmission siting.\40\ The discussion included topics such as how 
State and Federal siting reviews should be sequenced and coordinated, 
what factors the Commission should consider in its siting proceedings 
under section 216(b), and how the Commission's siting process will 
interface with transmission planning and cost allocation requirements.
---------------------------------------------------------------------------

    \39\ Joint Fed.-State Task Force on Elec. Transmission, 175 FERC 
] 61,224 (2021) (establishing Task Force pursuant to FPA section 
209(b)).
    \40\ Joint Fed.-State Task Force on Elec. Transmission, Notice 
of Meeting and Agenda, Docket No. AD21-15-000 (Feb. 13, 2024). The 
transcript of this meeting can be found in Docket No. AD21-15-000. 
For context, the Commission established the Task Force in June 2021 
to formally explore transmission-related topics such as generator 
interconnection, grid enhancing technologies, physical security, and 
regulatory gaps or challenges in oversight. The Task Force was 
composed of all FERC Commissioners as well as representatives from 
10 State commissions nominated by NARUC, with two originating from 
each NARUC region. The Task Force convened for multiple formal 
meetings annually, which were open to the public.
---------------------------------------------------------------------------

II. Discussion

A. Commission Jurisdiction and State Siting Proceedings

    26. As discussed above, section 216(b)(1) of the FPA, as revised by 
the IIJA, provides the circumstances that trigger the Commission's 
jurisdiction. As discussed further below, in this final rule, the 
Commission revises Sec.  50.6 of its regulations to reflect the IIJA's 
amendments to section 216(b)(1). The Commission also declines to adopt 
the policy change proposed in the NOPR with respect to when the 
Commission's pre-filing process may commence.
1. IIJA Amendments and Commission Jurisdiction Under FPA Section 
216(b)(1)
a. NOPR Proposal
    27. Section 50.6 of the Commission's regulations describes the 
information that is required in each application filed pursuant to the 
part 50 regulations. Section 50.6(e) provides that each application 
must provide evidence demonstrating that one of the bases for the 
Commission's jurisdiction set forth in section 216(b)(1) applies to the 
proposed facilities. To ensure consistency with section 216(b)(1)(A), 
as amended by the IIJA, in the NOPR the Commission proposed to add to 
Sec.  50.6(e)(1) the phrase ``or interregional benefits'' to clarify 
that an application may provide evidence that a State does not have the 
authority to consider the interstate benefits or interregional benefits 
expected to be achieved by the proposed facilities.\41\
---------------------------------------------------------------------------

    \41\ NOPR, 181 FERC ] 61,205 at P 43. While the statute, as 
amended by the IIJA, does not define the term ``interregional,'' the 
Commission proposed to apply a meaning that is consistent with Order 
No. 1000, which defines an interregional transmission facility as 
one that is located in two or more transmission planning regions. 
Id. (citing Transmission Plan. & Cost Allocation by Transmission 
Owning & Operating Public Utilities, Order No. 1000, 76 FR 49842 
(Aug. 11, 2011), 136 FERC ] 61,051, at P 482 n.374 (2011)).
---------------------------------------------------------------------------

    28. As discussed above, the IIJA also amended FPA section 
216(b)(1)(C) to expressly state that the Commission may issue a permit 
for the construction or modification of electric transmission 
facilities in National Corridors if a State has denied an application 
to site such transmission facilities.\42\ To reflect this amendment, in 
the NOPR the Commission proposed corresponding revisions to Sec.  
50.6(e)(3) to provide that the applicant is required to submit evidence 
demonstrating that a State has: (i) not made a determination on an 
application; (ii) conditioned its approval in such a manner that the 
proposed facilities would not significantly reduce transmission 
capacity constraints or congestion in interstate commerce or is not 
economically feasible; or (iii) denied an application.\43\
---------------------------------------------------------------------------

    \42\ See supra P 15.
    \43\ NOPR, 181 FERC ] 61,205 at P 18.
---------------------------------------------------------------------------

b. Comments
    29. Several commenters ask the Commission to clarify its 
jurisdiction under section 216(b)(1) of the FPA. ACEG seeks 
confirmation that the Commission's regulations will apply in instances 
where a State does not have authority to approve the siting of 
facilities or consider a project's expected interstate or interregional 
benefits, or when an applicant does not qualify for a State permit or 
siting approval because the applicant does not serve end-use customers 
in that State.\44\ ACEG also urges the Commission to ``expand upon the 
meaning of a State `lacking authority' to approve the proposed 
facilities.'' \45\
---------------------------------------------------------------------------

    \44\ ACEG Comments at 4-5 (citing 16 U.S.C. 824p(b)(1)(A)-(B)).
    \45\ Id. at 7.
---------------------------------------------------------------------------

    30. Commenters ask the Commission to clarify whether specific 
circumstances would trigger the Commission's siting authority under FPA 
section 216(b)(1)(C), including when a local government entity with 
siting authority, such as a county zoning board, has failed to act on, 
conditionally approved, or denied a permit; \46\ when a State has not 
acted within a year but no

[[Page 46686]]

National Corridor has been designated; \47\ and when a multistate 
project is approved by one or more relevant States but denied by 
another.\48\ To clarify when the Commission's authority under section 
216(b)(1) would apply, ACEG recommends that the Commission add an 
applicability section to its regulations.\49\
---------------------------------------------------------------------------

    \46\ See ACEG Comments at 6; SEIA Comments at 7; Rail 
Electrification Council Comments at 13. Rail Electrification Council 
also asks whether a State transportation authority that owns or 
controls a railroad right-of-way that is integral to a proposed 
transmission project would qualify as a ``State commission or other 
entity'' under FPA section 216(b)(1)(C)). Rail Electrification 
Council Comments at 13.
    \47\ ACEG Comments at 7.
    \48\ Impacted Landowners Comments at 25.
    \49\ ACEG Comments at 7.
---------------------------------------------------------------------------

    31. Commenters also request clarification on the Commission's 
authority to act under section 216(b)(1)(C)(ii) if it determines that a 
State commission or other entity with siting authority has conditioned 
its approval in such a manner that the proposed facilities will not 
significantly reduce transmission capacity constraints or congestion in 
interstate commerce or is not economically feasible. Several commenters 
urge the Commission to opine on what it would consider a significant 
reduction in transmission capacity constraints or congestion and how 
any such threshold would be quantified.\50\ Maryland Commission 
observes that the statutory phrase ``not economically feasible'' is 
broad and undefined and that State conditions that simply impose an 
economic burden on an applicant should not be deemed sufficient to 
trigger the Commission's siting jurisdiction.\51\ Rather, Maryland 
Commission states that the Commission should only consider asserting 
its siting authority when confronted by State conditions that are not 
supported by the record, are contrary to law, or are substantially 
outweighed by the project's regional benefits and would jeopardize the 
existence of the project if included.\52\
---------------------------------------------------------------------------

    \50\ See Michigan Commission Comments at 11; New York Commission 
Comments at 6-1; OMS Comments at 5-6.
    \51\ Maryland Commission Comments at 25.
    \52\ Id.
---------------------------------------------------------------------------

    32. Some commenters urge the Commission either to defer to State 
siting decisions or to refrain from prematurely exercising its 
jurisdiction under section 216(b)(1)(C). New Jersey Board states that 
the Commission should refrain from exercising its section 216 authority 
and allow a State to reach its own determination, so long as the State 
has acted in good faith and there is no evidence that it is attempting 
to delay the process.\53\ New Jersey Board suggests that the 
Commission's final rule recognize good cause for an application to 
remain in the State's purview.\54\ New York Commission states that the 
Commission should defer to State siting determinations that deny an 
application because a project is incompatible with public health, 
safety, and the environment.\55\ Noting that the ability to approve or 
deny transmission siting applications is within States' general police 
powers, New York Commission argues that the NOPR is too broad, does not 
respect State siting authority, and is an overreach of the Commission's 
jurisdiction.\56\ For these reasons, New York Commission urges the 
Commission to identify a limited set of specific circumstances that 
would trigger the Commission's jurisdiction if State denial of a permit 
is unreasonable or inappropriate.\57\
---------------------------------------------------------------------------

    \53\ New Jersey Board Comments at 6.
    \54\ Id.
    \55\ New York Commission Comments at 7-9.
    \56\ Id. at 8-9.
    \57\ Id. at 9.
---------------------------------------------------------------------------

c. Commission Determination
    33. We adopt the NOPR proposal's revisions to Sec.  50.6(e), which 
clarifies the evidence an applicant must provide to demonstrate that 
one of the jurisdictional bases set forth in section 216(b)(1) applies 
to the proposed facilities, including the addition in Sec.  50.6(e)(1) 
of the phrase ``interregional benefits'' to clarify that an applicant 
may provide evidence that a State does not have authority to consider 
the interregional benefits expected to be achieved by the proposed 
project. We decline to impose additional requirements for the 
Commission to assert its jurisdiction beyond those required by the 
statute. We disagree with commenters that, by revising the Commission's 
regulations to reflect the IIJA's amendments to section 216(b)(1)(C), 
the Commission does not respect State siting authority, exceeds its 
statutory authority, or coopts or preempts State processes.
    34. As stated previously in Order No. 689, mere consideration of an 
application by the Commission does not equate to a jurisdictional 
determination or Commission approval of the proposed project.\58\ Once 
the Commission notices an application in accordance with Sec.  50.9, 
anyone who questions the Commission's jurisdiction over the proposed 
project, the timing of the exercise of that jurisdiction, or the merits 
of the proposal can raise those matters with the Commission by filing 
comments, an intervention, or a protest in the proceeding. The 
Commission will make a jurisdictional determination and address 
comments and protests in an order addressing the proposed project.
---------------------------------------------------------------------------

    \58\ Order No. 689, 117 FERC ] 61,202 at P 32.
---------------------------------------------------------------------------

    35. Section 50.6(e)(1) of the Commission's regulations tracks the 
statutory language that triggers the Commission's jurisdiction under 
FPA section 216(b)(1)(A). Thus, in response to ACEG's clarification 
request, we confirm that the Commission's regulations would apply in 
instances where a State does not have authority to approve the siting 
of facilities or consider a project's expected interstate or 
interregional benefits, and when an applicant does not qualify for a 
State permit or siting approval because the applicant does not serve 
end-use customers in that State. We decline ACEG's invitation to expand 
on the meaning of a State ``lacking authority'' to approve proposed 
facilities,\59\ as such findings will be State-specific and, perhaps, 
project-specific and will be considered by the Commission on a case-by-
case basis.
---------------------------------------------------------------------------

    \59\ ACEG Comments at 7. While ACEG does not cite a particular 
statutory provision, we presume that ACEG's comment is in reference 
to FPA section 216(b)(1)(A)(i), which provides that the Commission 
may issue a permit if it finds that a State in which the 
transmission facilities are to be located does not have authority to 
approve the siting of the facilities.
---------------------------------------------------------------------------

    36. We also do not find it necessary to further define the scope of 
circumstances that might trigger the Commission's siting authority 
under section 216(b)(1). We note that Sec.  50.6(e) of the Commission's 
the regulations require an applicant to demonstrate that the relevant 
statutory requirements have been met. The Commission will make such 
determinations case-by-case, based upon the record in a given 
proceeding. For this reason, we decline commenters' requests to clarify 
the applicability of FPA section 216(b)(1) to particular, factual 
circumstances that are, at this point, hypothetical.
    37. We likewise decline commenters' calls to expound on when a 
State approval would be conditioned in a manner that meets the 
statutory threshold under FPA section 216(b)(1)(C)(ii). The Commission 
addressed similar comments in Order No. 689.\60\ As the Commission 
stated then, these issues cannot be resolved adequately on a generic 
basis. Consistent with the Commission's prior approach, we decline to 
outline potential conditions a State might impose that would invoke the 
Commission's jurisdiction under FPA section 216(b)(1).
---------------------------------------------------------------------------

    \60\ Order No. 689, 117 FERC ] 61,202 at P 34.
---------------------------------------------------------------------------

2. Commencement of Pre-Filing
    38. The Commission has recognized that Congress, in enacting 
section 216 of the FPA, adopted a statutory scheme that allows 
simultaneous State and Commission siting processes.\61\ As the

[[Page 46687]]

Commission explained in Order No. 689, the statute provides for this 
potential overlap by allowing the Commission to issue a permit one year 
after the State siting process has begun and requiring an expeditious 
pre-application mechanism for all permit decisions under Federal 
law.\62\ Thus, the Commission has recognized that the pre-filing 
process can occur at the same time as State proceedings.\63\
---------------------------------------------------------------------------

    \61\ Id. P 19.
    \62\ Id.
    \63\ Id.
---------------------------------------------------------------------------

    39. Notwithstanding that the statute allows simultaneous State and 
Federal proceedings, the Commission in Order No. 689 announced a policy 
that, in cases where its jurisdiction rests on section 
216(b)(1)(C),\64\ the pre-filing process would not commence until one 
year after the relevant State applications have been filed.\65\ This 
approach, the Commission explained, would provide the States one full 
year to process an application without any overlapping Commission 
processes, after which time an applicant might seek to commence the 
Commission's pre-filing process.\66\ However, the Commission noted that 
it would reconsider this issue if it later determined that requiring 
applicants to wait one year before commencing the Commission's pre-
filing process was delaying projects or was otherwise not in the public 
interest.\67\
---------------------------------------------------------------------------

    \64\ In Order No. 689, the Commission explained that in all 
other instances, the pre-filing process may be commenced at any 
time. Id. P 21 n.14.
    \65\ Id. P 21.
    \66\ Id.
    \67\ Id.
---------------------------------------------------------------------------

a. NOPR Proposal
    40. In the NOPR, the Commission proposed to eliminate the one-year 
delay before the Commission's pre-filing process may commence, thus 
allowing simultaneous processing of State applications and Commission 
pre-filing proceedings (referred to herein as simultaneous 
processing).\68\ The Commission proposed to entertain requests to 
commence pre-filing, and potentially grant such requests, at any time 
after the relevant State applications have been filed. Additionally, 
the Commission proposed to provide an opportunity for State input 
before the Commission would announce the completion of the pre-filing 
process and allow an application to be filed.\69\ Specifically, one 
year after the commencement of the Commission's pre-filing process, if 
a State has not made a determination on an application, the Commission 
proposed to provide a 90-day window for the State to submit comments on 
any aspect of the pre-filing process, including any information 
submitted by the applicant. The NOPR also sought comment on the 
advantages or disadvantages of the Commission entertaining requests to 
commence the pre-filing process before a State application has been 
filed.
---------------------------------------------------------------------------

    \68\ NOPR, 181 FERC ] 61,205 at PP19-23.
    \69\ Id. P 23.
---------------------------------------------------------------------------

b. Comments
    41. Numerous commenters express support for the NOPR proposal.\70\ 
A number of commenters agree that simultaneous processing would enhance 
efficiency by streamlining processes and allowing decision-making 
entities to use pre-existing data to make determinations.\71\ For 
instance, Los Angeles DWP believes that simultaneous processing would 
enable early engagement and coordination between State and Federal 
regulators, thereby increasing certainty in permit application 
outcomes, reducing time and costs of environmental reviews, and better 
aligning projects with State and Federal policy goals.\72\ Sabin Center 
concurs that removing the one-year delay will improve efficiency and 
ensure more timely decision-making by the Commission by streamlining 
information collection.\73\
---------------------------------------------------------------------------

    \70\ Advanced Energy United Comments at 8-9; American Chemistry 
Council Comments at 5; ACP Comments at 2-7; ACORE Comments at 2-3; 
ACEG Comments at 5-6, 8-9; CATF Comments at 3-7; Clean Energy Buyers 
Comments at 6-7; ClearPath Comments at 2; CLF Comments at 2,4; ELCON 
Comments at 1,3; EDF Comments at 10-11; Los Angeles DWP Comments at 
2; Michigan Commission Comments at 4; New Jersey Board Comments at 
5; Niskanen Comments at 5-7; Public Interest Organizations Comments 
at 10-15; Sabin Center Comments at 2-3; SEIA Comments at 2-7; 
Chickahominy Indian Tribe, Nansemond Indian Nation, Rappahannock 
Indian Tribe, and Upper Mattaponi Indian Tribe Comments at 3.
    \71\ Los Angeles DWP Comments at 2; Michigan Commission Comments 
at 4; New Jersey Board Comments at 5.
    \72\ Los Angeles DWP Comments at 3.
    \73\ Sabin Center Comments at 3.
---------------------------------------------------------------------------

    42. Several commenters assert that the NOPR's simultaneous 
processing proposal affords sufficient deference to States' decision-
making involving land-use and permitting decisions.\74\ ACEG states 
that the Commission's proposed approach toward simultaneous processing 
strikes the correct balance between promoting efficiency and respecting 
States' primacy in the process.\75\
---------------------------------------------------------------------------

    \74\ See, e.g., SEIA Comments at 5-7; EDF Comments at 11.
    \75\ ACEG Comments at 5-6.
---------------------------------------------------------------------------

    43. Some commenters agree that simultaneous processing is 
consistent with the Commission's statutory authority under FPA section 
216 and Congress's intent.\76\ Advanced Energy United states that the 
IIJA's amendments to FPA section 216 were meant to expedite the 
permitting process and that simultaneous processing would meet that 
goal.\77\
---------------------------------------------------------------------------

    \76\ See, e.g., ClearPath Comments at 2; see also Clean Energy 
Buyers Comments at 5; Public Interest Organizations Comments at 11-
12 (interpreting Congress's silence as an implicit grant of 
authority).
    \77\ See, e.g., ACP Comments at 8; see also Advanced Energy 
United Comments at 7.
---------------------------------------------------------------------------

    44. Some commenters contend that the NOPR's simultaneous processing 
proposal would enhance stakeholder participation and communication in 
both State and Federal transmission siting proceedings.\78\ ACP states 
that conducting concurrent review allows the Commission to hear from 
stakeholders early in the Federal siting process--and potentially in 
tandem with States.\79\ Niskanen also supports simultaneous processing 
because it believes that the Commission's implementation of the 
statute's ``good faith'' standard for engaging with landowners and 
other stakeholders from the beginning of the process will standardize 
practices across the States and decrease the ability of applicants to 
exhibit bad faith when dealing with only the State commission.\80\
---------------------------------------------------------------------------

    \78\ Los Angeles DWP Comments at 2
    \79\ ACP Comments at 5.
    \80\ Niskanen Comments at 7.
---------------------------------------------------------------------------

    45. Several commenters that otherwise support the NOPR's 
simultaneous processing proposal explicitly oppose the Commission's 
pre-filing process commencing prior to the commencement of the State's 
permitting process or a State application being filed.\81\ Several 
commenters that support simultaneous processing also urge the 
Commission to take steps to limit stakeholder confusion, for instance, 
by requiring applicants to specify when they will file their 
applications with States.\82\ The Chickahominy Indian Tribe, Nansemond 
Indian Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian 
Tribe are supportive of simultaneous processing, but warn that the 
Commission must ensure meaningful stakeholder participation during the 
pre-filing process.\83\
---------------------------------------------------------------------------

    \81\ ACORE Comments at 3; Yurok Tribe Comments at 24; Clean 
Energy Buyers Comments at 7.
    \82\ See California Commission Comments at 6; EDF Comments at 
11.
    \83\ Chickahominy Indian Tribe, Nansemond Indian Nation, 
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments 
at 3.
---------------------------------------------------------------------------

    46. Many commenters oppose the NOPR proposal to allow the 
Commission's pre-filing process to commence at any time after the 
relevant State siting applications have been filed

[[Page 46688]]

but before a State decision is made.\84\ Several commenters urge the 
Commission to retain the existing policy adopted in Order No. 689, 
where the pre-filing process could not commence until one year after 
the relevant State applications have been filed.\85\ Some commenters 
argue that the Commission's pre-filing process should not begin until 
after the relevant State authority determines that a State application 
is complete \86\ or after the relevant State authority's finishes its 
adjudication.\87\ Georgia Commission is concerned that simultaneous 
processing would contradict current State statutes and regulations 
guiding transmission planning, which in Georgia occurs at least every 
three years.\88\
---------------------------------------------------------------------------

    \84\ Alabama Commission Comments at 1-3; Georgia Commission 
Comments at 1-2; Impacted Landowners Comments at 2-5; Joint Consumer 
Advocates Comments at 6-11; Kansas Commission Comments at 9-12; 
Kentucky Commission Comments at 2-4; Louisiana Commission Comments 
at 5-9; Maryland Commission Comments at 2, 16-21; NESCOE Comments at 
4, 6-7; New York Commission Comments at 9-10; North Carolina 
Commission and Staff Comments at 8, 10-11; North Dakota Commission 
Comments at 5-6; Pennsylvania Consumer Advocate Comments at 5-7; 
Pennsylvania Commission Comments at 2, 4-6; Texas Commission 
Comments at 5-6, 10-11; Southern Comments at 3-8; Farm Bureaus 
Comments at 3, 6; Chamber of Commerce Comments at 2, 5.
    \85\ See, e.g., North Dakota Commission Comments at 6; NESCOE 
Comments at 4-6; Texas Commission Comments at 6.
    \86\ North Dakota Commission Comments at 5; Joint Consumer 
Advocates Comments at 6; Maryland Commission Comments at 21 (arguing 
that the one-year should be tolled if material amendments are filed 
at the State level).
    \87\ New York Commission Comments at 9; Maryland Commission 
Comments at 2, 18-19; Pennsylvania Commission Comments at 7.
    \88\ Georgia Commission Comments at 2.
---------------------------------------------------------------------------

    47. Several commenters argue that simultaneous processing would not 
adequately respect the States' primacy and would impinge on State 
jurisdiction.\89\ Joint Consumer Advocates caution that the Commission, 
in implementing its section 216 authority, must ensure State processes 
are not coopted or preempted, and they assert that the Federal process 
should be a backstop, rather than an alternative, to the State 
process.\90\ Georgia and Texas Commissions express concerns that the 
NOPR's proposed simultaneous processing will encroach on their existing 
permitting schemes.\91\ Some commenters argue that simultaneous 
processing would undermine State proceedings \92\ and the public's 
confidence in State siting authorities.\93\ Pennsylvania Commission and 
North Carolina Commission argue that Congress meant to balance the 
Commission's process with State primacy and that the NOPR's 
simultaneous processing proposal is inconsistent with that goal.\94\
---------------------------------------------------------------------------

    \89\ See, e.g., Maryland Commission Comments at 2, 19; North 
Dakota Commission Comments at 2; Louisiana Commission Comments at 5.
    \90\ Joint Consumer Advocates Comments at 5.
    \91\ Georgia Commission Comments at 2,4; Texas Commission 
Comments at 6-9.
    \92\ Louisiana Commission Comments at 5.
    \93\ NESCOE Comments at 6-7.
    \94\ Pennsylvania Commission Comments at 2; North Carolina 
Commission and Staff Comments at 8.
---------------------------------------------------------------------------

    48. Several commenters argue that simultaneous processing invites 
potentially duplicative, wasteful procedures, especially in instances 
where the State ultimately approves the application.\95\ Kentucky PSC 
contends that the one-year delay actually helps the Commission, as some 
projects will be approved by States in that time, saving the Commission 
from wasting time and resources on commencing the NEPA process.\96\ 
Chamber of Commerce asserts that simultaneous processing, by virtue of 
its design, guarantees that one of the processes and the stakeholder 
efforts will amount to a void and wasted effort.\97\ Some commenters 
express concerns that applicants may seek to recover from ratepayers 
costs incurred for commencing the Commission's pre-filing process in 
instances when the State siting commission approves a proposed 
transmission project.\98\
---------------------------------------------------------------------------

    \95\ See New York Commission Comments at 9; Alabama Commission 
Comments at 2 n.3; North Dakota Commission Comments at 6; North 
Carolina Commission and Staff Comments at 8.
    \96\ Kentucky Commission Comments at 3-4.
    \97\ Chamber of Commerce Comments at 5; Impacted Landowners 
Comments at 3.
    \98\ Texas Commission Comments at 10-11; Impacted Landowners 
Comments at 3.
---------------------------------------------------------------------------

    49. Commenters opposed to simultaneous processing argue that the 
NOPR proposal would disproportionately burden State agencies charged 
with processing transmission siting applications. Some commenters 
assert that simultaneous proceedings would make it challenging for 
State oversight agencies to concurrently perform their quasi-judicial 
role and act as intervenors in Commission proceedings.\99\ Other 
commenters contend that overlapping hearings and comment deadlines 
\100\ would strain State resources or divide the attention of State 
experts.\101\
---------------------------------------------------------------------------

    \99\ See Kentucky Commission Comments at 2; Alabama Commission 
Comments at 1; Pennsylvania Commission Comments at 6.
    \100\ See NESCOE Comments at 5-6.
    \101\ See Kansas Commission Comments at 11-12; New York 
Commission Comments at 9; Kentucky Commission Comments at 2; Alabama 
Commission Comments at 1; Pennsylvania Commission Comments at 6.
---------------------------------------------------------------------------

    50. Multiple commenters assert that the NOPR's simultaneous 
processing proposal would have an adverse effect on stakeholder and 
applicant participation in State proceedings.\102\ In particular, some 
commenters express concerns that multiple hearings and comment 
deadlines resulting from parallel State and Federal proceedings would 
confuse stakeholders by requiring interested participants and affected 
landowners to learn and comply with two sets of procedural rules and 
substantive permitting requirements.\103\ Some commenters argued that 
the resulting confusion would reduce stakeholder participation.\104\
---------------------------------------------------------------------------

    \102\ NESCOE comments at 5-6; Kansas Commission Comments at 11-
12.
    \103\ See NESCOE Comments at 6; New York Commission Comments at 
9; Kansas Commission Comments at 11-12.
    \104\ See NESCOE Comments at 6.
---------------------------------------------------------------------------

    51. Several of the commenters that oppose the simultaneous 
processing proposal also oppose the proposed 90-day comment period for 
States as an inadequate replacement for the one-year delay.\105\ 
Kentucky and Louisiana Commissions argue that the 90-day comment period 
for States will put them in the position of choosing whether to remain 
silent in the Commission pre-filing process or to comment in favor of 
or against a proposed project, essentially ``prejudging'' the project 
at the Federal level while trying to maintain impartiality in the 
ongoing State proceeding.\106\ North Carolina Commission and Staff 
oppose simultaneous processing but support the 90-day comment period in 
the event that the Commission adopts the proposal, because it would 
afford the States more time to participate in the Commission's pre-
filing process.\107\ Although Pennsylvania Commission also opposes 
simultaneous Federal and State proceedings, it contends that the 90-day 
comment period is necessary even in the absence of simultaneous 
processing.\108\
---------------------------------------------------------------------------

    \105\ See, e.g., Alabama Commission Comments at 2 n.6; Maryland 
Commission Comments at 19; Kentucky Commission Comments at 2-3; 
Louisiana Commission Comments at 5; Southern Comments at 8.
    \106\ Kentucky Commission Comments at 2-3; Louisiana Commission 
Comments at 5.
    \107\ North Carolina Commission and Staff Comments at 11-12.
    \108\ Pennsylvania Commission Comments at 6-7.
---------------------------------------------------------------------------

    52. Sabin Center and ClearPath both suggest that the 90-day comment 
period start one year after the start of the State review, not one year 
after the Commission's pre-filing process has begun.\109\ ClearPath 
suggests that there be no 90-day comment period if a State

[[Page 46689]]

has already approved or denied an application, as the State will have 
already stated its position on the project.\110\ Some entities seek 
clarity as to whether the 90-day window explicitly applies to every 
circumstance triggering the Commission's jurisdiction under section 
216.\111\ ACP points out that the 90-day comment period would serve as 
a second opportunity for State input, as States will also have the 
opportunity to provide input during DOE's National Corridor designation 
process.\112\
---------------------------------------------------------------------------

    \109\ Sabin Center comments at 3; ClearPath Comments at 2.
    \110\ ClearPath Comments at 2.
    \111\ Joint Consumer Advocates Comments at 6.
    \112\ ACP Comments at 6.
---------------------------------------------------------------------------

c. Commission Determination
    53. After further consideration and review of the comments, we 
decline to adopt the NOPR proposal to allow simultaneous processing. We 
acknowledge comments that argue that simultaneous processing could 
result in efficiencies, but given the concerns raised by the States, we 
find that not allowing simultaneous processing strikes the appropriate 
balance at this time between an efficient process and respect for 
States' primacy in siting transmission infrastructure. We continue to 
believe that the statute allows parallel State and Commission 
processes.\113\ Nevertheless, we make this policy determination to 
continue the Commission's practice introduced in Order No. 689, based 
on our review of the record and, in particular, the feedback received 
from States in their filed comments and at the February 28, 2024 
meeting of the Joint Federal-State Task Force on Electric 
Transmission.\114\ Additionally, given this determination, we are not 
adopting the NOPR proposal to provide a 90-day period for the State to 
comment on the pre-filing process.
---------------------------------------------------------------------------

    \113\ Order No. 689, 117 FERC ] 61,202 at P 19.
    \114\ See supra note 40, Tr. 79-90.
---------------------------------------------------------------------------

    54. We confirm that, in cases where the Commission's jurisdiction 
rests on FPA section 216(b)(1)(C)(i),\115\ the applicant should not 
begin the pre-filing process until one year after the relevant State 
applications have been filed. This will give the States one full year 
to process an application without any overlapping Commission processes. 
Once that year is complete, an applicant may begin the Commission's 
pre-filing procedures pursuant to Sec.  50.5. We believe that 
continuing this approach most adequately addresses State concerns. 
However, as the Commission previously stated in Order No. 689, if we 
determine in the future that the lack of a Commission pre-filing 
process prior to the end of the one year is delaying projects or 
otherwise not in the public interest, we may reexamine this issue.
---------------------------------------------------------------------------

    \115\ 16 U.S.C. 824p(b)(1)(C)(i).
---------------------------------------------------------------------------

B. Eminent Domain Authority and Applicant Efforts To Engage With 
Landowners and Other Stakeholders

    55. Section 50.4 requires the applicant to develop and file a 
Project Participation Plan early in the pre-filing process and to 
distribute, by mail and newspaper publication, project participation 
notifications early in both the pre-filing and application review 
processes. These notifications will provide a range of information 
about the proposed project and permitting process, including a general 
description of the property an applicant would need from an affected 
landowner and a brief summary of the rights an affected landowner has 
at the Commission and in proceedings under the eminent domain rules of 
the relevant State.
1. NOPR Proposal
    56. As described above, the IIJA amended FPA section 216(e)(1) to 
require the Commission to determine, as a precondition to a permit 
holder receiving eminent domain authority, that the permit holder has 
made good faith efforts to engage with landowners and other 
stakeholders early in the permitting process.\116\ Therefore, in the 
NOPR, the Commission proposed to supplement the existing landowner and 
stakeholder participation provisions in part 50 of its 
regulations.\117\
---------------------------------------------------------------------------

    \116\ 16 U.S.C. 824p(e)(1).
    \117\ NOPR, 181 FERC ] 61,205 at PP 24-29.
---------------------------------------------------------------------------

    57. To address the IIJA's amendment to section 216(e)(1), in the 
NOPR the Commission proposed to supplement the regulatory requirements 
in Sec.  50.4 by adding a new Sec.  50.12.\118\ Under proposed Sec.  
50.12, an applicant may demonstrate that it has met the statutory good 
faith efforts standard by complying with an Applicant Code of Conduct 
in its communications with affected landowners. The Applicant Code of 
Conduct includes recordkeeping (e.g., maintaining an affected landowner 
discussion log) and information-sharing requirements for engagement 
with affected landowners, as well as more general prohibitions against 
misconduct in such engagement.
---------------------------------------------------------------------------

    \118\ Id. PP 26-29.
---------------------------------------------------------------------------

    58. As the Commission proposed in the NOPR, under Sec.  
50.12(b)(1), an applicant that chooses to show good faith by complying 
with the Applicant Code of Conduct must file, as part of the pre-filing 
request required under Sec.  50.5(c), an affirmative statement 
indicating its intent to comply with the Applicant Code of 
Conduct.\119\ Under Sec.  50.12(b)(2), such an applicant must, as part 
of the monthly status reports required under Sec.  50.5(e), demonstrate 
compliance by: (i) affirming that the applicant and its representatives 
have complied with the Applicant Code of Conduct; or (ii) explaining 
any instances of non-compliance during the relevant month and any 
remedial actions taken or planned. Under proposed Sec.  50.12(b)(3), an 
applicant must also identify any known instances of non-compliance that 
were not disclosed in prior monthly status reports and explain any 
remedial actions taken to remedy such instances of non-compliance.
---------------------------------------------------------------------------

    \119\ Id. P 27.
---------------------------------------------------------------------------

    59. In the NOPR, the Commission emphasized that compliance with the 
Applicant Code of Conduct is one way, but not the only way, that an 
applicant may demonstrate that it has met the good faith efforts 
standard in section 216(e)(1).\120\ Nevertheless, the Commission stated 
that the Applicant Code of Conduct reflects principles that are broadly 
relevant to determining whether an applicant has made good faith 
efforts to engage with landowners and other stakeholders early in the 
applicable permitting process. Thus, the Commission proposed to require 
under Sec.  50.12 that an applicant that chooses not to rely on 
compliance with the Applicant Code of Conduct must specify its 
alternative method of demonstrating that it meets the statute's good 
faith efforts standard and explain for each deviation from the 
Applicant Code of Conduct why the chosen alternative is an equal or 
better means to ensure that the good faith efforts standard is met.
---------------------------------------------------------------------------

    \120\ Id. P 28.
---------------------------------------------------------------------------

2. Comments
    60. Public Interest Organizations and the Yurok Tribe generally 
support the Applicant Code of Conduct.\121\ In addition, numerous 
commenters urge the Commission to make compliance with the Applicant 
Code of Conduct mandatory for applicants to maximize transparency and 
meaningfully assist landowners and stakeholders.\122\ Public Interest 
Organizations specifically recommend that the Commission elevate the 
Applicant Code of Conduct as the sole means of demonstrating compliance 
with the good faith efforts standard in section 216(e)(1), asserting 
that allowing alternative methods could

[[Page 46690]]

result in ambiguity for the applicant and other stakeholders.\123\
---------------------------------------------------------------------------

    \121\ Public Interest Organizations Comments at 16-17; Yurok 
Tribe Comments at 30.
    \122\ EDF Comments at 13: Farm Bureaus Comments at 11; Public 
Interest Organizations Comments at 18; NESCOE Comments at 13; 
Pennsylvania Consumer Advocate Comments at 7.
    \123\ Public Interest Organizations Comments at 42-44.
---------------------------------------------------------------------------

    61. Impacted Landowners and EDF urge the Commission to create clear 
standards to guide its good faith efforts determination, including for 
alternative methods of demonstrating that an applicant meets the good 
faith efforts standard.\124\
---------------------------------------------------------------------------

    \124\ Impacted Landowners Reply Comments at 6; EDF Comments at 
13.
---------------------------------------------------------------------------

    62. In opposition, American Chemistry Council and ClearPath state 
that the Commission's proposed good faith efforts requirements are 
overly prescriptive, intrusive, outside the scope of the Commission's 
statutory mandates, and will turn efforts to engage affected landowners 
into a box-checking exercise instead of meaningful engagement.\125\ 
American Chemistry Council and ClearPath dispute the Commission's 
assertion that compliance with the Applicant Code of Conduct is 
voluntary given that applicants pursuing alternative methods of meeting 
the good faith efforts requirement must explain how their methods are 
equal to or better than compliance with the Applicant Code of 
Conduct.\126\ ClearPath also contends that the Applicant Code of 
Conduct contains redundancies, including the requirement in proposed 
Sec.  50.12 that applicants provide landowners, upon first contact, 
with documentation about the project, which, it says, is duplicative of 
the notification requirements in Sec.  50.4(c).\127\ Furthermore, 
ClearPath contends that the NOPR proposal would create inconsistent 
requirements for transmission siting applications under the FPA and 
natural gas pipeline applications under the Natural Gas Act.\128\
---------------------------------------------------------------------------

    \125\ American Chemistry Council Comments at 6; ClearPath 
Comments at 3.
    \126\ American Chemistry Council Comments at 6; ClearPath 
Comments at 3. For example, ClearPath notes that the regulations 
require monthly status reports and questions whether any less 
frequent reporting would be deemed ``equal or better'' than monthly 
reporting.
    \127\ ClearPath Comments at 3.
    \128\ Id.
---------------------------------------------------------------------------

    63. Impacted Landowners state that merely having an Applicant Code 
of Conduct will not result in actual good faith efforts by an applicant 
to engage with landowners and generally that codes of conduct do not 
work. They assert that there has historically been no policing or 
punishment of violations associated with codes of conduct.\129\ 
Further, Impacted Landowners assert that although the proposed 
Applicant Code of Conduct admonishes applicants to avoid coercive 
tactics while they engage in negotiations with landowners, there is no 
way to bring up the possible exercise of eminent domain without it 
being interpreted by the landowner as coercive.\130\
---------------------------------------------------------------------------

    \129\ Impacted Landowners Comments at 7-10.
    \130\ Id. at 8.
---------------------------------------------------------------------------

    64. California Commission states that the proposed regulations 
under Sec.  50.12(b)(2) should be revised to require a demonstration 
and documentation of compliance with the Applicant Code of Conduct 
rather than only an ``affirmation'' to ensure applicant 
compliance.\131\
---------------------------------------------------------------------------

    \131\ California Commission Comments at 7.
---------------------------------------------------------------------------

    65. Several commenters seek clarification regarding the timing and 
duration of the Commission's good faith efforts determination required 
by FPA section 216(e)(1). For instance, Impacted Landowners ask the 
Commission to clarify the point at which the ``applicable permitting 
process'' begins, during which applicants must make good faith efforts 
to engage with landowners and other stakeholders. They also ask when 
the Commission would determine if good faith efforts have been made and 
whether applicants will be expected or required to continue to make 
good faith efforts to engage with landowners and other stakeholders 
once a permit is issued, asserting that after permit issuance, 
applicants will likely increase land acquisition efforts and 
negotiations can become more contentious.\132\ Several commenters 
suggest that applicants must make good faith efforts to engage with 
landowners and other stakeholders throughout the permitting process, 
including prior to the start of the Commission's pre-filing 
process.\133\ EEI notes that in instances of late project routing 
changes it may be difficult to comply with the statutory good faith 
efforts requirement.\134\
---------------------------------------------------------------------------

    \132\ Impacted Landowners Reply Comments at 5-6.
    \133\ Public Interest Organizations Comments at 17 and 21; 
Niskanen Comments at 7.
    \134\ EEI Comments at 7.
---------------------------------------------------------------------------

    66. Similarly, several commenters raise timing concerns with using 
an alternative method, allowed in proposed Sec.  50.12(c), to 
demonstrate that the good faith efforts standard has been met. Public 
Interest Organizations assert that the proposed regulations are 
ambiguous with respect to how or when the Commission would determine 
that an applicant's alternative method is equal to or better than the 
Commission's Applicant Code of Conduct.\135\ EEI asks the Commission to 
avoid any disruption or delay when making that determination.\136\
---------------------------------------------------------------------------

    \135\ Public Interest Organizations Comments at 42-44.
    \136\ EEI Comments at 7.
---------------------------------------------------------------------------

    67. Several commenters offer suggestions with respect to the scope 
of an applicant's good faith efforts under FPA section 216(e)(1). 
Public Interest Organizations and SEIA claim that proposed Sec.  50.12, 
which applies to communications with affected landowners, fails to take 
into account section 216(e)(1)'s statutory directive to make good faith 
efforts to engage ``landowners and other stakeholders.'' \137\ Public 
Interest Organizations and SEIA recommend that the regulations in Sec.  
50.12 be amended to include conduct with ``other stakeholders,'' \138\ 
noting that this change would extend the duty of good faith to 
environmental justice communities.\139\ The Yurok Tribe, Chickahominy 
Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and 
Upper Mattaponi Indian Tribe state that Tribes should be included as a 
separate stakeholder in the regulations with whom applicants must 
demonstrate good faith efforts to engage, including in the Applicant 
Code of Conduct.\140\
---------------------------------------------------------------------------

    \137\ Public Interest Organizations Comments at 3 and 17.
    \138\ Id. at 18-21.
    \139\ Id. at 78-79; SEIA Comments at 10.
    \140\ Yurok Tribe Comments at 30; Chickahominy Indian Tribe, 
Nansemond Indian Nation, Rappahannock Indian Tribe, and Upper 
Mattaponi Indian Tribe Comments at 2.
---------------------------------------------------------------------------

    68. Impacted Landowners argue that the proposed Applicant Code of 
Conduct only applies to applicants and would not extend to contracted 
land agents who negotiate with landowners.\141\ Niskanen suggests that 
the Commission add explicit language to the Applicant Code of Conduct 
to capture applicability to land agents acting on behalf of 
applicants.\142\
---------------------------------------------------------------------------

    \141\ Impacted Landowners Comments at 9-10.
    \142\ Niskanen Comments at 18-20.
---------------------------------------------------------------------------

    69. Pennsylvania Consumer Advocate, asserting that improper land 
agent tactics are the most common cause of complaints during 
transmission line siting cases, urges Commission staff to oversee 
interactions between applicants and affected landowners.\143\ Several 
commenters suggest that the Commission establish compliance procedures 
and communication channels for landowners and stakeholders to provide 
feedback to the Commission concerning applicants' efforts to engage in 
good faith and violations of the Applicant Code of

[[Page 46691]]

Conduct.\144\ Public Interest Organizations and Niskanen recommend that 
the Commission assign its Office of Public Participation to receive 
from landowners and stakeholders reports of abuse or fraudulent 
behavior exhibited by the applicant or any representative of the 
applicant.\145\ Additionally, numerous commenters state that the 
Commission should add language to the Landowner Bill of Rights 
instructing affected landowners to promptly report to the Commission 
any instances of abuse or fraudulent behavior exhibited by the 
applicant or any representative of the applicant.\146\ Impacted 
Landowners recommend that the Commission independently investigate 
complaints of violations of the Applicant Code of Conduct, and that 
Commission-verified violations should be punished to prevent 
recurrence.\147\
---------------------------------------------------------------------------

    \143\ Pennsylvania Consumer Advocate Comments at 8.
    \144\ Impacted Landowners Comments at 11; Impacted Landowners 
Reply Comments at 5-6; Public Interest Organizations Comments at 17; 
Pennsylvania Consumer Advocate Comments at 7-8.
    \145\ Public Interest Organizations Comments at 40; Niskanen 
Comments at 15-17.
    \146\ Public Interest Organizations Comments at 40; Niskanen 
Comments at 15-17.
    \147\ Impacted Landowners Comments at 11.
---------------------------------------------------------------------------

    70. Similarly, several commenters recommend that the Commission 
require applicants to include the discussion logs required under 
proposed Sec.  50.12(a)(1) as part of the monthly status reports 
applicants must submit under Sec.  50.5(e)(11),\148\ or, alternatively, 
provide copies of discussion logs to landowners, stakeholders, and 
Tribes for the purpose of verifying their accuracy.\149\ The Yurok 
Tribe and Public Interest Organizations ask that the Applicant Code of 
Conduct include a requirement for applicants to note within their 
discussion logs who within a Tribe was contacted, a description of the 
contacted Tribal representative's role, and whether another Tribal 
representative was suggested to be contacted.\150\ The Yurok Tribe 
states that the applicant must be held accountable to follow up on 
alternative contact recommendations. The Yurok Tribe also suggests that 
the discussion logs include the date of any questions posted by a 
Tribe, the contents and date of any applicant responses to questions, 
any follow-up after the initial answer, and the method of contact for 
each interaction (e.g., phone, email, in-person).\151\
---------------------------------------------------------------------------

    \148\ Due to a clarifying edit, in this final rule the 
Commission has split and redesignated what appeared in the NOPR as 
Sec.  50.5(e)(7) and (8) into Sec.  50.5(e)(7), (8), and (9). With 
this change, the NOPR's redesignated Sec.  50.5(e)(9) and (10) are 
further redesignated to Sec.  50.5(e)(10) and (11). Consequently, 
this final rule references these regulations according to the final 
redesignated numbering.
    \149\ Public Interest Organizations Comments at 22-23; NESCOE 
Comments at 14, Niskanen Comments at 20, Yurok Tribe Comments at 32 
and 34.
    \150\ Yurok Tribe Comments at 31-32; Public Interest 
Organizations Comments at 70-71.
    \151\ Yurok Tribe Comments at 32.
---------------------------------------------------------------------------

    71. Specific to the Applicant Code of Conduct, Public Interest 
Organizations note that proposed Sec.  50.12(a)(2) requires the 
applicant to provide certain information to each stakeholder at first 
contact. However, Public Interest Organizations state that the 
regulations do not include a deadline for the applicant to provide 
these documents. Public Interest Organizations recommend that the 
Commission set a reasonable deadline for providing this information, 
such as sending the document within three business days of first 
contact.\152\
---------------------------------------------------------------------------

    \152\ Public Interest Organizations Comments at 23.
---------------------------------------------------------------------------

    72. Several commenters provide additional recommendations for the 
Applicant Code of Conduct, including requiring that company 
representatives: provide landowners with a copy of the Applicant Code 
of Conduct at first notification; \153\ present photo identification; 
\154\ consent to being recorded or photographed,\155\ and explain their 
position and decision-making authority along with providing contact 
information for decision makers.\156\ Impacted Landowners ask that the 
Applicant Code of Conduct require applicants to notify landowners of 
their right to have counsel of their choice review the easement 
agreement before signing and that use of eminent domain to acquire a 
right-of-way requires payment of just compensation determined by the 
appropriate court.\157\ Other commenters suggest that the Commission 
require via the Applicant Code of Conduct that applicants must obtain 
consent from Tribes to enter any form of Tribal land or any area known 
to have cultural resources and that all individuals who conduct 
outreach to Tribes have undergone training, including affected Tribes' 
own programming.\158\ ACEG recommends that the Applicant Code of 
Conduct require applicants to adequately protect landowners' personally 
identifiable information.\159\ Finally, EDF suggests that the Applicant 
Code of Conduct include provisions for applicants to determine the 
preferred language of all affected landowners and communicate with 
affected landowners in their preferred language.\160\
---------------------------------------------------------------------------

    \153\ Impacted Landowners Comments at 11.
    \154\ Id.
    \155\ Id.
    \156\ Yurok Tribe Comments at 31; Public Interest Organizations 
Comments at 70-71.
    \157\ Impacted Landowners Comments at 11.
    \158\ Yurok Tribe Comments at 33; Public Interest Organizations 
Comments at 70.
    \159\ ACEG Comments at 18.
    \160\ EDF Comments at 13.
---------------------------------------------------------------------------

3. Commission Determination
    73. To incorporate the IIJA's amendment to section 216(e)(1) 
requiring a determination by the Commission as to whether the permit 
holder has made good faith efforts to engage with landowners and other 
stakeholders, we adopt the NOPR proposal, with modifications. We find 
that establishing standards via the Applicant Code of Conduct provides 
clarity on expectations for applicants and will support the Commission 
in making the required good faith efforts determination. As discussed 
further below, in response to commenter feedback, we modify the NOPR 
proposal to: clarify the timing and duration of certain Applicant Code 
of Conduct provisions, ensure applicant representatives present photo 
identification and provide the applicant's contact information during 
discussions with affected landowners, require that applicants explain 
to affected landowners that they may request copies of discussion log 
entries that pertain to their property, and require applicants to 
provide affected landowners copies of their discussion log entries upon 
request.
    74. We both decline commenters' requests to make the Applicant Code 
of Conduct mandatory and disagree with commenters who argue that, by 
setting minimum requirements, we have de facto made the Applicant Code 
of Conduct mandatory. Given that the IIJA requires, as a prerequisite 
to the permit holder using eminent domain, that the Commission 
determine whether a permit holder has made good faith efforts to engage 
with landowners and other stakeholders early in the applicable 
permitting process, we believe it is important for the Commission to 
identify a means for potential applicants to obtain that determination. 
At the same time, while the Applicant Code of Conduct reflects the 
principles, we find to be broadly relevant to determining that an 
applicant has made good faith efforts to engage with landowners, we 
will not declare that the specific steps outlined in the Applicant Code 
of Conduct are the only way those principles can be achieved and 
demonstrated. Therefore, we will allow applicants to propose for the 
Commission's consideration alternative methods to demonstrate that the 
statute's good faith efforts standard

[[Page 46692]]

will be met. We disagree that this framework would lead to ambiguity as 
commenters suggest. The scope and complexity of projects that the 
Commission may receive could significantly vary and we find it 
appropriate at this point not to forestall alternative options to 
demonstrate compliance with the good faith efforts standard. We find 
that the Applicant Code of Conduct and option to comply with an 
alternative method provides applicants sufficiently clear standards to 
allow a demonstration of good faith efforts while providing for 
appropriate flexibility, which may be necessary based on project-
specific circumstances.
    75. Establishing an Applicant Code of Conduct does not exceed the 
Commission's authority under FPA section 216. As described above, 
Congress has directed the Commission to determine, as a prerequisite to 
the use of eminent domain under FPA section 216(e)(1), that a permit 
holder has made good faith efforts to engage with landowners and other 
stakeholders. It is consistent with that directive to set forth in the 
Commission's regulations a set of actions which we find, if followed, 
will result in the appropriate engagement expected of applicants in 
their interactions with landowners and provides guidance as to the 
standards the Commission will apply in determining whether an applicant 
has met the statutory requirement.
    76. Regarding ClearPath's concerns that the Applicant Code of 
Conduct contains redundancies, we note that the notification 
requirements under Sec.  50.12 are structured to specifically address 
an applicant's demonstration of its good faith efforts to engage 
affected landowners. The Commission's existing notification 
requirements in Sec.  50.4 facilitate participation from all landowners 
and other stakeholders during the Commission's proceeding. Although 
affected landowners may receive multiple notifications from applicants 
as a result of these requirements, the Commission does not view this as 
overly burdensome for applicants.
    77. We also are not persuaded by ClearPath's argument that the 
Commission can only adopt reforms to stakeholder participation 
requirements if those revisions are applied equally to other Commission 
infrastructure processes (i.e., to natural gas and hydropower 
proceedings).\161\ Section 216(e)(1) of the FPA requires the Commission 
to determine, as a prerequisite to eminent domain authority, that a 
permit holder has made good faith efforts to engage with landowners and 
other stakeholders early in the applicable permitting process. There is 
no such requirement under the NGA or Part I of the FPA.
---------------------------------------------------------------------------

    \161\ The Commission is not obligated to implement changes in a 
single, sweeping step, and is not barred from implementing process 
improvements to only one program at a time. See, e.g., 
Transportation Div. of the Int'l Ass'n of Sheet Metal, Air, Rail & 
Transportation Workers v. Fed. R.R. Admin., 10 F.4th 869, 875 (D.C. 
Cir. 2021) (agencies have great discretion to take one step at a 
time and do not need to act in ``one fell regulatory swoop'') 
(internal citation and quotation omitted).
---------------------------------------------------------------------------

    78. In response to questions about the timing of the Commission's 
good faith efforts determination, we clarify that, regardless of 
whether the applicant follows the Applicant Code of Conduct or an 
alternative method, we expect to issue such determinations concurrently 
with an order on the merits of a permit application under section 
216(b), based on the record in the proceeding.
    79. Regarding Impacted Landowners' question as to when the 
``applicable permitting process'' and good faith efforts requirements 
begin and whether applicants must continue to make good faith efforts 
to engage after permit issuance, we clarify that a good faith efforts 
demonstration begins with the commencement of the Commission's pre-
filing process and continues through the issuance of the Commission's 
order on the merits of the application. We adopt a revision in the 
Applicant Code of Conduct to relocate, from Sec.  50.12(a)(1) to the 
introductory text in paragraph (a) of this section, the phrase ``for 
the duration of the pre-filing and application review processes'' to 
make clear that this duration applies to all Applicant Code of Conduct 
requirements. We also expect applicants to act in good faith in their 
dealings with landowners and other stakeholders during any post-
authorization engagement related to the exercise of eminent domain, 
construction of the project, and any post-construction mitigation or 
other ongoing activities involving landowners and other stakeholders.
    80. We also disagree with assertions that merely adopting an 
Applicant Code of Conduct would not result in actual good faith efforts 
or could produce contradictory results. Some of these assertions appear 
premised on the notion that any engagement in which an applicant 
retains the potential to use eminent domain is not in good faith. 
However, we believe that an applicant demonstrates good faith efforts 
by the course of its engagement and efforts to involve landowners and 
other stakeholders in the process, rather than by whether eminent 
domain is ultimately necessary or parties are satisfied with the 
outcome of that engagement. We also disagree with claims that the 
Applicant Code of Conduct will reduce engagement to a ``box checking 
exercise.'' \162\ We believe compliance with the information-sharing 
and recordkeeping provisions in the Applicant Code of Conduct will 
encourage meaningful engagement with landowners and help ensure that 
engagement meets the good faith efforts standard.
---------------------------------------------------------------------------

    \162\ See, e.g., American Chemistry Council Comments at 6; 
ClearPath Comments at 3.
---------------------------------------------------------------------------

    81. We decline to revise proposed Sec.  50.12(b)(2) to require 
further demonstration beyond affirmation of compliance with the 
Applicant Code of Conduct. The Applicant Code of Conduct requires 
thorough documentation of an applicant's discussions with affected 
landowners, and each month an applicant must either affirm that it has 
complied with the Applicant Code of Conduct or provide a detailed 
explanation of any instances of non-compliance and any remedial actions 
taken or planned. As noted above, an applicant must demonstrate good 
faith efforts for the duration of the Commission's pre-filing and 
application review processes. In this final rule, we add Sec.  
50.12(b)(4) to clarify that an applicant must continue to file monthly 
status reports describing its efforts to comply with the Applicant Code 
of Conduct during the application review process.
    82. Regarding alternatives to the Applicant Code of Conduct, we 
clarify that an applicant that uses an alternative method to 
demonstrate good faith efforts to engage with landowners will bear the 
burden to explain how its alternative method is equal to or better than 
compliance with the Applicant Code of Conduct. The Commission would not 
typically reach a determination that this standard is met until it 
evaluates the permit application and determines whether to issue a 
permit. Thus, an applicant who seeks to demonstrate that an alternative 
method is equal to or better than compliance with the Applicant Code of 
Conduct will face uncertainty regarding the acceptability of its method 
until the Commission determines it meets the regulatory standard. We 
have set forth an Applicant Code of Conduct that reflects principles we 
find to be broadly relevant to determining whether an applicant has 
made good faith efforts to engage with landowners and establishes a set 
of practices we believe are sufficient to achieve those principles. 
Applicants should propose deviations

[[Page 46693]]

only where they are confident that their approach is equal to or better 
than the Applicant Code of Conduct as a means of demonstrating that 
they have made good faith efforts to engage with landowners as required 
by the statute.
    83. In response to EEI's comment regarding the potential for late-
stage route changes, we note that applicants are required to file 
monthly reports during the pre-filing process detailing the efforts to 
comply with the Applicant Code of Conduct. To the extent that project 
route changes are developed during the pre-filing process, we expect 
that engagement with landowners and other affected stakeholders who 
would be newly impacted by the contemplated route change will be 
documented in monthly reports. In the instance of route changes that 
occur after an application is filed, Sec.  50.4(c)(3) requires 
notifications to newly affected landowners when they are identified. We 
expect applicants to continue to make good faith efforts to engage 
affected landowners, including those impacted by post-application and 
post-authorization route changes, throughout the application review 
process and through construction and restoration and mitigation 
efforts.
    84. In response to comments regarding the scope of proposed Sec.  
50.12, we agree with commenters that FPA section 216(e)(1) requires an 
applicant to demonstrate good faith efforts to engage with ``landowners 
and other stakeholders.'' We decline to alter the scope of the 
Applicant Code of Conduct, which specifically provides an applicant a 
means to demonstrate compliance with the good faith efforts standard in 
communications with affected landowners. The Applicant Code of Conduct 
specifies recordkeeping and information-sharing requirements that are 
tailored to encourage productive and more sustained engagement with 
affected landowners regarding the use or acquisition of their property, 
which may not necessarily apply to engagement with other stakeholders. 
With regard to good faith efforts to engage with other stakeholders, 
applicants bear the burden to demonstrate good faith efforts at 
engagement and should strive to incorporate best practices used in 
engagement with affected landowners in engagement with other 
stakeholders, as applicable. We also clarify that the Commission will 
assess case-by-case an applicant's good faith efforts to engage with 
other stakeholders, based on the record in a proceeding. We will 
consider, among other things, an applicant's efforts to engage 
stakeholders as described in the Project Participation Plan (including 
engagement with environmental justice communities and Tribes), monthly 
status reports describing stakeholder communications during pre-filing, 
and compliance with Commission regulations for project notifications.
    85. In response to the requests of several Tribes, we clarify that 
Tribes meeting the definition of Indian Tribe in Sec.  50.1 qualify as 
stakeholders for which applicants would be required to make good faith 
efforts to engage. We conclude that the good faith efforts requirements 
as discussed herein will ensure appropriate engagement with Tribes. 
Accordingly, the Commission would consider evidence of engagement with 
Tribes in its assessment of whether the good faith efforts standard has 
been met.
    86. As to applicability of the Applicant Code of Conduct to land 
agents, we note that proposed Sec.  50.12(a)(12), adopted in this final 
rule, explicitly applies the Applicant Code of Conduct to any 
representative acting on the applicant's behalf, which includes land 
agents.
    87. We decline to adopt additional mechanisms to monitor compliance 
with the good faith efforts standard. We do not believe that it is an 
appropriate or practical use of Commission or stakeholder resources to 
adjudicate good faith efforts issues during the course of a proceeding. 
We encourage affected landowners and other stakeholders to participate 
in the pre-filing process and the permit proceeding once an application 
is filed. Landowners and other stakeholders may file comments in the 
project-specific proceeding and may contact the Commission's landowner 
helpline to identify perceived violations of the Applicant Code of 
Conduct for consideration and to request investigation by the 
Commission. Any comments submitted in the record may inform the 
Commission's deliberation regarding the good faith efforts standard and 
issuance of the permit. We also note that the Office of Public 
Participation may be able to provide technical assistance to landowners 
and other stakeholders regarding how to participate in a proceeding, 
but will not serve as an advocate for stakeholders.
    88. We also decline to make any additional changes to the 
applicant's duty under Sec.  50.12(a)(1) to develop and maintain a log 
of discussions because we conclude that the proposed requirements are 
sufficiently detailed to record engagement with affected landowners, 
and the Applicant Code of Conduct, as discussed above, is specifically 
aimed at promoting good faith engagement. We similarly decline to 
require applicants to file the discussion logs with the applicant's 
monthly status reports required by Sec.  50.5(e)(11), as such a 
categorical requirement is not necessary to promote good faith 
engagement and could result in the public disclosure of information 
that landowners may not want shared with the general public. With 
respect to commenters' request that affected landowners be provided 
with any relevant discussion logs, this final rule modifies Sec.  
50.12(a)(2) to require applicants to explain to affected landowners 
that they may request copies of discussion log entries that pertain to 
their property and how affected landowners make such requests, and 
modifies Sec.  50.12(a)(5) to require applicants to provide affected 
landowners copies of discussion log entries, upon request.
    89. Turning to commenter feedback on specific provisions in the 
Applicant Code of Conduct, we agree with Public Interest Organizations 
that requiring an applicant to provide to each affected landowner 
specified documents ``immediately'' after first contact may be vague 
and confusing. Therefore, we modify the NOPR proposal in Sec.  
50.12(a)(2) by deleting ``immediately'' and adding in its place 
``within three business days'' to clarify how soon after the first 
contact the required document must be provided to the landowner.
    90. We decline to require applicants to provide landowners with 
copies of the Applicant Code of Conduct, as recommended in comments. As 
stated in the NOPR, the Applicant Code of Conduct reflects principles 
that are broadly relevant to determining whether an applicant has made 
good faith efforts to engage with landowners. We do not believe that 
requiring applicants to provide the Commission's regulatory text to 
affected landowners is necessary or will assist in our good faith 
efforts determination. In any event, we note that the Commission's 
Electric Transmission Facilities Permit Process pamphlet--a copy of 
which applicants must include as part of their Pre-filing Notifications 
sent by mail--will be updated to reflect the provisions in this final 
rule, and will include the text of the Applicant Code of Conduct.
    91. Regarding requests that applicant representatives present photo 
identification when engaging with affected landowners, we agree and 
adopt this requirement in Sec.  50.12(a)(3). We find that a photo 
identification requirement provides an important protection to an 
affected landowner in confirming the identity and business association 
of the applicant representative with whom the

[[Page 46694]]

landowner is speaking, and such requirement presents a minimal burden 
on the applicant.
    92. Given the protections to affected landowners contained herein, 
including in the Landowner Bill of Rights and the required sharing of 
information by the applicant, as well as the photo identification 
requirement, we decline to also add a requirement that applicant 
representatives consent to being recorded and photographed.
    93. Regarding the request for company representatives to provide 
contact information for decision makers, we assume commenters are 
referring to a decision maker within the applicant's company. We agree 
that it is important to provide affected landowners a way to contact 
the applicant to obtain more information about a project or report any 
issues with land agents. Therefore, we modify the NOPR proposal in 
Sec.  50.12(a)(3) to require an applicant's representative to also 
provide contact information for the applicant.
    94. Regarding Tribal concerns for obtaining consent to enter Tribal 
lands, we clarify that the Applicant Code of Conduct would apply to 
land owned in fee by a Tribe or member of a Tribe, so Sec.  50.12(a)(9) 
would require approval from the Tribe or member of a Tribe under those 
circumstances.
    95. We also decline to adopt a requirement that applicants have 
specific engagement training that may be provided by Tribes. While such 
engagement training may constitute a good business practice, we do not 
find a generic requirement necessary to promote good faith efforts to 
engage with affected landowners or other stakeholders. We reiterate 
that the burden is on the applicant to demonstrate that the good faith 
efforts standard has been met, and we therefore expect that the 
applicant will take reasonable steps to engage with Tribes.
    96. We also disagree that an addition to the Applicant Code of 
Conduct to protect landowners' personally identifiable information is 
necessary. We expect applicants to protect sensitive information from 
public release, however, some personal information (e.g., a landowner's 
name or mailing address) may be sourced from public databases or 
applicants may need to share such information with its own contractors 
or submit it to agencies as part of permitting application submittals. 
Of course, when filing information that may contain personal 
information with the Commission, applicants should use any appropriate 
filing classification for proper treatment by the Commission.\163\
---------------------------------------------------------------------------

    \163\ For example, applicants may request privileged treatment 
for landowner mailing lists submitted to the Commission by following 
the procedures specified in Sec.  388.112 of the Commission's 
regulations.
---------------------------------------------------------------------------

    97. As to the suggestion that applicants should communicate with 
landowners in their preferred language, we understand the importance of 
communicating basic information about the project, particularly to 
landowners who may be subject to eminent domain, in languages other 
than English where a significant portion of the community has limited 
English proficiency. As discussed below, in response to comments, we 
modify proposed Sec.  50.4 to require applicants to identify census 
block groups that include limited English proficiency households, 
identify the languages spoken in those census block groups, and, under 
certain circumstances, provide project notifications in languages other 
than English. Applicants must also describe in the Environmental 
Justice Public Engagement Plan how they will identify, engage, and 
accommodate people with limited English proficiency.

C. Environmental Justice Public Engagement Plan

1. NOPR Proposal
    98. In the NOPR, the Commission stated that the existing provisions 
of Sec.  50.4(a) require applicants to develop and file a Project 
Participation Plan early in the pre-filing process.\164\ The Commission 
explained that this requirement is intended to facilitate stakeholder 
communications and the dissemination of public information about the 
proposed project, including meaningful engagement early in the pre-
filing process with potentially affected environmental justice 
communities. The Commission further explained that engagement with 
environmental justice communities is consistent with a series of 
executive orders, the Promising Practices for EJ Methodologies in NEPA 
Reviews (Promising Practices) report, and the Commission's Equity 
Action Plan.\165\ Accordingly, the Commission proposed to require, 
under Sec.  50.4(a)(4) as part of the Project Participation Plan, that 
applicants develop an Environmental Justice Public Engagement Plan 
describing the applicant's outreach activities that are targeted to 
identified environmental justice communities.\166\
---------------------------------------------------------------------------

    \164\ NOPR, 181 FERC ] 61,205 at P 30.
    \165\ Id. (citing E.O. 12898, Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations, 59 FR 7629 (Feb. 11, 1994); E.O. 14008, Tackling the 
Climate Crises at Home and Abroad, 86 FR 7619 (Jan. 27, 2021); E.O. 
13985, Advancing Racial Equity and Support for Underserved 
Communities Through the Federal Government, 86 FR 7009 (Jan. 20, 
2021); Federal Interagency Working Group on Environmental Justice & 
NEPA Committee, Promising Practices for EJ Methodologies in NEPA 
Reviews (Mar. 2016), https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf.; 
Commission, Equity Action Plan (2022), https://www.ferc.gov/equity.)
    \166\ To identify potentially-affected environmental justice 
communities in individual proceedings, Commission staff uses current 
U.S. Census American Community Survey data for the race, ethnicity, 
and poverty data at the State, county, and block group level. As 
recommended in Promising Practices, the Commission currently uses 
the fifty percent and the meaningfully greater analysis methods to 
identify minority populations. Specifically, a minority population 
is present where either: (1) the aggregate minority population of 
the block groups in the affected area exceeds 50%; or (2) the 
aggregate minority population in the block group affected is 10% 
higher than the aggregate minority population percentage in the 
county. Federal Interagency Working Group on Environmental Justice & 
NEPA Committee, Promising Practices for EJ Methodologies in NEPA 
Reviews (Mar. 2016), https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf. Using 
Promising Practices' low-income threshold criteria method, low-
income populations are currently identified as block groups where 
the percent of a low-income population in the identified block group 
is equal to or greater than that of the county. E.g., Transcon. Gas 
Pipe Line Co. LLC, 186 FERC 61,209, at PP 34-36 (2024).
---------------------------------------------------------------------------

    99. The NOPR explained that the proposed Environmental Justice 
Public Engagement Plan would require applicants to summarize comments 
received from potentially impacted environmental justice communities 
during any previous outreach activities, if applicable, and describe 
planned outreach activities during the permitting process, including 
efforts to identify, engage, and accommodate non-English speaking 
groups or linguistically isolated communities.\167\ The proposed plan 
must also describe the manner in which the applicant will reach out to 
environmental justice communities about potential mitigation.\168\
---------------------------------------------------------------------------

    \167\ NOPR, 181 FERC ] 61,205 at P 31.
    \168\ We note that the proposed Environmental justice resource 
report, discussed further below, would require the applicant to 
describe any proposed mitigation measures intended to avoid or 
minimize impacts on environmental justice communities, including any 
community input received on the proposed mitigation measures and how 
that input informed such measures. See infra Part II.F.4.e.
---------------------------------------------------------------------------

2. Comments
    100. Some commenters question the Commission's authority to require 
the Environmental Justice Public Engagement Plan, given the reliance on 
executive orders and guidance. Representatives McMorris Rodgers and 
Duncan state that the NOPR appears to broadly interpret the 
Commission's

[[Page 46695]]

statutory authority and thus request that the Commission specify what 
statutory authorities it is relying upon.\169\ Conversely, NESCOE 
argues that the proposed Environmental Justice Public Engagement Plan 
aligns with the Commission's statutory authority under FPA section 
216(b).\170\ ClearPath is also concerned that reliance on best 
practices derived from CEQ, the Environmental Protection Agency (EPA), 
Census Bureau, and other authoritative sources, introduces uncertainty 
and delay should applicants have to re-do compliance requirements every 
time new data or guidance becomes available.\171\
---------------------------------------------------------------------------

    \169\ Representatives McMorris Rodgers and Duncan Comments at 2.
    \170\ NESCOE Comments at 15-26.
    \171\ ClearPath Comments at 4.
---------------------------------------------------------------------------

    101. American Chemistry Council and ClearPath argue that, although 
they support community engagement, the proposed Environmental Justice 
Public Engagement Plan does not advance this goal because the proposal 
imposes extensive new requirements, as well as specific notice and 
follow-up actions that are likely to undermine community engagement, 
redirect effort from engagement to duplicative and excessive paperwork, 
and foster increased procedural litigation and challenges--leading to 
delays.\172\ American Chemistry Council states that the Commission 
should limit any new planning mandates to outlining strategic goals, 
planned communication tools and strategies, and desired outcomes.\173\ 
Representatives McMorris Rodgers and Duncan argue that the 
Environmental Justice Public Engagement Plan includes vague 
requirements and asks whether the Commission will issue more specific 
guidelines.\174\ ClearPath argues that the Commission failed to explain 
how the current stakeholder participation revisions are deficient for 
environmental justice communities, but not for the general public; 
therefore, it recommends that the Commission continue to utilize its 
existing public participation procedures and not add a separate, 
duplicative Environmental Justice Public Engagement Plan.\175\
---------------------------------------------------------------------------

    \172\ American Chemistry Council Comments at 7; ClearPath 
Comments at 4-5.
    \173\ American Chemistry Council Comments at 7.
    \174\ Representatives McMorris Rodgers and Duncan Comments at 2.
    \175\ ClearPath Comments at 4.
---------------------------------------------------------------------------

    102. On the other hand, several commenters support the requirement 
for an Environmental Justice Public Engagement Plan. Public Interest 
Organizations believe that the Commission must take concrete, tangible 
action to require robust community engagement and partnership.\176\ 
Environmental Law & Policy Center states that this early stakeholder 
engagement will improve the transmission siting process.\177\ Clean 
Energy Buyers also comment in support but recognize that the success of 
a plan will depend on the applicant's ability to actually engage with 
the target communities.\178\
---------------------------------------------------------------------------

    \176\ Public Interest Organizations Comments at 44, 86-89.
    \177\ Environmental Law & Policy Center Comments at 2.
    \178\ Clean Energy Buyers Comments at 8-9.
---------------------------------------------------------------------------

    103. Several commenters request clarification and revision to the 
proposed requirement for an Environmental Justice Public Engagement 
Plan. EDF states that because the NOPR was drafted before the issuance 
of Executive Order 14096, the Commission should review its proposal in 
light of renewed and strengthened environmental justice requirements to 
ensure compliance with updated rules and guidance.\179\ It also 
encourages the Commission to mandate engagement on mitigation, 
including the discussion of alternatives and community benefit 
programs. Environmental Law & Policy Center urges the Commission to 
adopt specific recommendations to ensure that engagement is more than a 
box-checking exercise for developers.\180\ NESCOE states that, under 
the NOPR proposal, applicants would not be required to comply with any 
actual standards for engaging with environmental justice communities, 
including documentation, accountability, and enforcement of 
consequences for inadequate engagement.\181\ EDF requests that the 
Commission periodically review the results of applicants' Environmental 
Justice Public Engagement Plans and determine whether they are yielding 
sufficient engagement with environmental justice communities.\182\
---------------------------------------------------------------------------

    \179\ EDF Comments at 9 (referencing E.O. 14096, Revitalizing 
Our Nation's Commitment to Environmental Justice for All, 88 FR 
25251 (Apr. 21, 2023)).
    \180\ Environmental Law & Policy Center Comments at 2.
    \181\ NESCOE comments at 25; EDF Comments at 9.
    \182\ EDF Comments at 9.
---------------------------------------------------------------------------

    104. Several commenters recommend specific methodology and 
terminology clarifications.\183\ Public Interest Organizations ask the 
Commission to require applicants to use updated information from CEQ 
and EPA when identifying environmental justice communities as part of 
their Environmental Justice Public Engagement Plan or providing 
specificity on the additional sources the Commission expects applicants 
to use, to ensure consistency and transparency in the methodology 
selection process.\184\ Public Interest Organizations state that the 
Commission must: prioritize identification methodologies that promote 
accurate identification of environmental justice communities; provide 
guardrail language to guide the methodology selection process while 
creating flexibility; acknowledge the scope and limitations of 
potential databases and tools, where applicable; and commit to promptly 
update its methods for identifying environmental justice 
communities.\185\ In addition, they state that the Commission should 
refine the term ``outreach activities'' in order to require developers 
to seek guidance on and then incorporate community-based best practices 
and methods for both disseminating and requesting information and input 
from the community.\186\ Public Interest Organizations argue that 
outreach activities should include a reciprocal educational component 
where developers as well as the community members share and 
meaningfully engage with each other.\187\
---------------------------------------------------------------------------

    \183\ EDF Comments at 8; Environmental Law & Policy Center 
Comments at 4.
    \184\ Public Interest Organizations Comments at 86.
    \185\ Id. at 84-85.
    \186\ Id. at 88.
    \187\ Id.
---------------------------------------------------------------------------

    105. EDF and Policy Integrity recommend that the Commission and 
developers utilize specific tools such as the EPA's EJScreen Tool, 
CEQ's Climate and Economic Justice Screening Tool (CEJST), and State-
developed mapping tools to identify environmental justice 
communities.\188\ Public Interest Organizations agree on the need for 
more nuanced and fulsome identification of environmental justice 
communities, but state that utilization of the EJScreen and CEJST can 
only be useful first steps in this methodology given that both tools 
have inherent limitations.\189\
---------------------------------------------------------------------------

    \188\ EDF Comments at 9; Policy Integrity Comments at 24-37; 
Environmental Law & Policy Center Comments at 4.
    \189\ Public Interest Organizations Comments at 84-85.
---------------------------------------------------------------------------

    106. Policy Integrity states that the Commission should require 
incorporation of screening tools that use a combination of 
environmental and socioeconomic proxies, such as proximity to 
pollution, because relying upon demographic-only proxies like income 
and race might not capture localized harms and omit communities that 
would otherwise satisfy the proposed definition of environmental

[[Page 46696]]

justice community.\190\ It asks the Commission to recognize any 
historically marginalized community that bears any type of 
disproportionate environmental burden or faces disparities in access to 
environmental benefits as an environmental justice community.\191\ In 
addition, Policy Integrity states that the Commission should establish 
a mechanism for communities to self-identify as environmental justice 
communities, and then adjudicate whether a community should be 
considered an environmental justice community in light of submitted 
evidence.\192\
---------------------------------------------------------------------------

    \190\ Policy Integrity Comments at 24.
    \191\ Id. at 2.
    \192\ Id. at 37-39.
---------------------------------------------------------------------------

    107. Commenters make additional recommendations in support of 
transparency and accountability in the process of engaging with 
environmental justice communities, including requiring notices in 
languages other than English, maintaining a project website, and using 
additional notification methods.\193\ NESCOE recommends several 
engagement best practices such as holding in-person meetings ``in 
locations that are accessible by public transportation . . . [and] at 
times that would allow working individuals to attend,'' providing 
childcare during such meetings, designating a community liaison, and 
disseminating non-technical information that meaningfully explains how 
one might be impacted by the project.\194\ Some commenters recommend 
that the Commission's Office of Public Participation have a role in the 
identification of barriers to participation as well as helping foster 
engagement between the Commission, applicants, and environmental 
justice communities.\195\
---------------------------------------------------------------------------

    \193\ ClearPath Comments at 5; Public Interest Organizations 
Comments at 87; NESCOE Comments at 26.
    \194\ NESCOE Comments at 26.
    \195\ Id. at 25-26; Public Interest Organizations Comments at 
89-91.
---------------------------------------------------------------------------

    108. NESCOE and Clean Energy Buyers suggest that the Commission 
should ensure that its public engagement and environmental justice 
review practices are generally consistent and coordinated with 
applicable State policies and agencies.\196\ Joint Consumer Advocates 
argue that the Commission's proposed approach only requires applicants 
to describe outreach activities and summarize comments, which largely 
places the burden on disadvantaged populations to describe anticipated 
impacts to human health or the environment, rather than engaging State 
agencies like consumer advocate offices.\197\
---------------------------------------------------------------------------

    \196\ NESCOE Comments at 26; Clean Energy Buyers Comments at 9.
    \197\ Joint Consumer Advocate Comments at 18.
---------------------------------------------------------------------------

3. Commission Determination
    109. We adopt the NOPR proposal to require an Environmental Justice 
Public Engagement Plan under Sec.  50.4(a)(4) as a component of the 
Project Participation Plan, with the following modification. The NOPR 
proposed that the plan describe an applicant's efforts to identify, 
engage, and accommodate ``non-English speaking groups and 
linguistically isolated communities;'' however, this final rule updates 
that terminology to ``people with limited English proficiency.''
    110. As an initial matter, we disagree that requiring applicants to 
include an Environmental Justice Public Engagement Plan as part of its 
Project Participation Plan exceeds the Commission's statutory 
authority. NEPA requires the Commission to evaluate the environmental 
impacts of any major Federal action, such as the issuance of a permit 
to site electric transmission facilities under section 216 of the 
FPA.\198\ The Commission's obligation to take a ``hard look'' at such 
impacts under NEPA requires consideration of impacts on environmental 
justice communities, much as it requires the Commission to consider 
impacts on other affected communities.\199\ This requirement 
facilitates the development of the record, including the Environmental 
justice resource report, that the Commission needs to assess impacts on 
environmental justice communities by providing a roadmap for 
applicants' engagement with environmental justice communities and an 
opportunity for comment on that engagement. In addition, requiring 
applicants to describe engagement with identified environmental justice 
communities will assist the Commission in meeting its statutory 
obligations under FPA section 216. Because environmental justice 
communities may experience environmental impacts more acutely than 
other communities or targeted methods of engagement may be more 
effective,\200\ we appropriately require that an applicant develop a 
targeted outreach plan for environmental justice communities.\201\
---------------------------------------------------------------------------

    \198\ 42 U.S.C. 4332(2)(C); see Sierra Club v. FERC, 38 F.4th 
220, 226 (D.C. Cir. 2022).
    \199\ See Sierra Club v. FERC, 867 F.3d 1357, 1368 (D.C. Cir. 
2017).
    \200\ For example, targeted methods of engagement may include 
additional notification to community leaders, religious 
institutions, and other community resources, and the publishing of 
project information via community newspapers and radio stations.
    \201\ See E.O. 14096, Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, 25252 (Apr. 21, 2023).
---------------------------------------------------------------------------

    111. Requiring an applicant to describe its outreach targeted to 
environmental justice communities as part of its Project Participation 
Plan is also consistent with the Executive Orders that direct Federal 
agencies to identify and address disproportionate and adverse human 
health or environmental effects of their actions on minority and low-
income populations (i.e. environmental justice communities).\202\ In 
response to EDF's request that we review Executive Order 14096, we note 
that the new Executive Order did not rescind Executive Order 12898. The 
Commission's current practices as an independent regulatory agency are 
largely consistent with the principles and goals of Executive Order 
14096.\203\ This requirement is also consistent with the Commission's 
2022 Equity Action Plan, which promotes equitable processes and 
outcomes for underserved communities, including environmental justice 
communities, at the Commission.\204\
---------------------------------------------------------------------------

    \202\ See E.O. 12898, Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 
7629 (Feb. 11, 1994); E.O. 14008, Tackling the Climate Crises at 
Home and Abroad, 86 FR 7619 (Jan. 27, 2021); E.O. 13985, Advancing 
Racial Equity and Support for Underserved Communities Through the 
Federal Government, 86 FR 7009 (Jan. 20, 2021); E.O. 14096, 
Revitalizing Our Nation's Commitment to Environmental Justice for 
All, 88 FR 25251 (Apr. 21, 2023).
    \203\ E.O. 14096, Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251 (Apr. 21, 2023).
    \204\ FERC, Equity Action Plan (2022), https://www.ferc.gov/equity.
---------------------------------------------------------------------------

    112. Regarding comments stating that the proposed Environmental 
Justice Public Engagement Plan does not advance the goal of community 
engagement and imposes extensive new or duplicative requirements, we 
disagree. The Commission currently requires a Project Participation 
Plan in Sec.  50.4(a), which requires applicants to identify specific 
tools and actions to facilitate stakeholder communications and public 
information, including those tools and actions used to engage 
stakeholders.\205\ To advance stakeholder participation under Sec.  
50.4, we are requiring applicants to plan and target their outreach to 
ensure appropriate and effective meaningful engagement with

[[Page 46697]]

potentially affected environmental justice communities.
---------------------------------------------------------------------------

    \205\ Consistent with the revised definition of ``stakeholder'' 
in Sec.  50.1 in this final rule, all stakeholders mean any 
``Federal, State, interstate, or local agency; any Indian Tribe; any 
affected landowner; any environmental justice community member; or 
any other interested person or organization.''
---------------------------------------------------------------------------

    113. The requirement to address targeted outreach to identified 
environmental justice communities merely codifies the expectation that 
engagement with stakeholders in differing circumstances will require 
differing approaches in order to be effective. Therefore, we do not 
believe this requirement imposes additional administrative burden or 
delay for applicants. This separate provision aims to ensure that 
applicants do not use a ``one size fits all'' approach to outreach, and 
it fosters the inclusion of outreach techniques that are tailored to 
communication with environmental justice communities.
    114. With regard to potential burdens placed on environmental 
justice communities in having to communicate potential adverse impacts 
caused or exacerbated by the project, we acknowledge this concern and 
require applicants to identify the measures taken to accommodate 
environmental justice communities who may face barriers to traditional 
outreach or engagement methods. Additionally, the Commission's Office 
of Public Participation will continue to engage with the public and act 
as a liaison to members of the public affected by and interested in 
Commission proceedings.
    115. In response to comments recommending that the Commission 
require the utilization of specific screening tools to identify 
environmental justice communities such as CEQ's CEJST, we decline to do 
so. The Commission currently uses the smallest geographic data area 
available, census block groups, to identify environmental justice 
communities in accordance with the identification methodology put forth 
in Promising Practices and described above.\206\ In contrast, CEJST 
uses census tracts, a larger geographic data area, to identify 
``disadvantaged communities'' based on a variety of thresholds. We 
decline to require the use of alternative screening tools that do not 
provide a localized review of smaller environmental justice communities 
in block groups. Further, to the extent that commenters argue that the 
Commission should utilize the tools to expand the definition of 
environmental justice communities, we decline for the reasons expressed 
addressing definitions below.\207\
---------------------------------------------------------------------------

    \206\ Supra note 166. E.g., ANR Pipeline Co., 185 FERC ] 61,191, 
at P 96 (2023); see also PennEast Pipeline Co. LLC, 170 FERC ] 
61,198, at 62,305 (2020) (upholding staff's reliance on EPA's 
EJScreen Tool to identify census block groups meeting the definition 
of an environmental justice community despite the availability of 
alternative screening tools).
    \207\ Infra P 135.
---------------------------------------------------------------------------

    116. We acknowledge the desire expressed by commenters for specific 
guidance for the Environmental Justice Public Engagement Plan and best 
practices for engagement with environmental justice communities.\208\ 
But we find that the provisions of Sec.  50.4 are sufficient to 
establish applicants' obligation to prepare a Project Participation 
Plan that includes how they will address outreach to environmental 
justice communities.
---------------------------------------------------------------------------

    \208\ Outside of this final rule, the Commission has received 
comments on best practices for engagement with environmental justice 
communities during the Environmental Justice Roundtable and filed in 
Docket No. AD23-5-000.
---------------------------------------------------------------------------

    117. Likewise, we decline to incorporate policies of States or 
other agencies. Such specific practices may not be universally or 
practically applicable across the variety of applications and contexts 
relevant to this rule. Imposing an overly prescriptive set of 
requirements mandating specific methodologies could negatively impact 
flexibility needed to address engagement in the context of a broad 
spectrum of applications. Instead, we believe such practices may more 
appropriately be considered as part of future action by the Commission 
in specific proceedings and/or as guidance, intended to assist 
applicants to more effectively implement their regulatory obligations.
    118. We also decline to adopt requirements mandating specific 
levels of engagement as part of this rule. Again, adopting such 
requirements is impracticable given the variety of applications and 
related factual contexts we expect to encounter.

D. Revisions to 18 CFR Part 50

1. Section 50.1--Definitions
    119. Section 50.1 sets forth the definitions for part 50 of the 
Commission's regulations. The Commission proposed in the NOPR to add 
definitions for ``Indian Tribe'' and ``environmental justice 
community.'' The Commission also proposed to revise the definitions of 
``national interest electric transmission corridor,'' ``permitting 
entity,'' and ``stakeholder.'' Although the Commission did not propose 
to revise the definition of ``affected landowners,'' the NOPR sought 
comment on whether the Commission should revise the definition to 
include landowners within a certain geographic distance from the 
proposed project facilities.
    120. This final rule adopts a definition for ``Indian Tribe,'' as 
proposed in the NOPR, consistent with the Commission's regulations 
governing other types of energy infrastructure projects.\209\ We also 
adopt the definition of ``permitting entity'' as proposed in the NOPR. 
In addition, we modify several proposed definitions as further 
discussed below.
---------------------------------------------------------------------------

    \209\ See, e.g., 18 CFR 4.30(b)(10) (2023) (defining ``Indian 
Tribe'' in reference to an application for a license or exemption 
for a hydropower project) and 18 CFR 157.1 (defining ``Indian 
Tribe'' in reference to an application for a certificate of public 
convenience and necessity for a natural gas pipeline project).
---------------------------------------------------------------------------

a. Definition of Environmental Justice Community
i. NOPR Proposal
    121. The Commission in the NOPR proposed to add a definition for 
the term ``environmental justice community'' to assist applicant 
compliance with the requirement in proposed Sec.  50.4(a)(4) that an 
applicant develop and file an Environmental Justice Public Engagement 
Plan.\210\ Specifically, the Commission proposed to define the term 
``environmental justice community'' as ``any disadvantaged community 
that has been historically marginalized and overburdened by pollution, 
including, but not limited to, minority populations, low-income 
populations, or indigenous peoples.''
---------------------------------------------------------------------------

    \210\ See discussion supra Part II.C.
---------------------------------------------------------------------------

ii. Comments
    122. Farm Bureaus state that at the Federal level there is no clear 
definition of environmental justice communities.\211\ American 
Chemistry Council and NESCOE agree and encourage the Commission to work 
with EPA, DOE, and other Federal agencies to develop one consistent 
definition for environmental justice communities, as the lack of a 
consistent terminology and definition across government programs 
creates confusion and uncertainty for all stakeholders.\212\ ClearPath 
questions the legal durability of the Commission's definition, 
particularly if other agencies adopt different definitions.\213\ 
ClearPath and Chamber of Commerce assert that adding the definition of 
``environmental justice community'' may exceed the Commission's 
statutory authority and expertise, increasing opportunities for legal 
challenges.\214\
---------------------------------------------------------------------------

    \211\ Farm Bureaus Comments at 13.
    \212\ American Chemistry Council Comments at 7; NESCOE Comments 
at 27.
    \213\ ClearPath Comments at 4.
    \214\ ClearPath Comments at 4; Chamber of Commerce Comments at 
4.

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

[[Page 46698]]

    123. ClearPath and Representatives McMorris Rodgers and Duncan 
assert that the Commission's definition of ``environmental justice 
community'' is standardless, such that the term ``overburdened by 
pollution'' has neither a quantitative methodology for applicants to 
follow nor a threshold for a designation to be made in a legally 
durable manner.\215\ ClearPath states that the Commission makes the 
definition open-ended when it states it ``includes, but may not be 
limited to minority populations, low-income populations, or indigenous 
people.'' \216\ Chamber of Commerce states that transmission line 
infrastructure is not a source of ``pollution'' as contemplated under 
the Commission's proposed definition of ``environmental justice 
community.'' \217\
---------------------------------------------------------------------------

    \215\ ClearPath Comments at 4; Representatives McMorris Rodgers 
and Duncan Comments at 2.
    \216\ ClearPath Comments at 4.
    \217\ Chamber of Commerce Comments at 3-4.
---------------------------------------------------------------------------

    124. CATF suggests that the proposed definition of ``environmental 
justice community'' be modified, specifically to remove the word 
``disadvantaged,'' citing a CEQ memorandum which states that some 
communities and advocates prefer ``overburdened and underserved'' 
instead of ``disadvantaged.'' \218\
---------------------------------------------------------------------------

    \218\ CATF Comments at 9.
---------------------------------------------------------------------------

    125. EDF and Policy Integrity state that the Commission's 
definition for ``environmental justice community'' is too narrow, 
risking the omission of communities that bear disproportionate 
environmental burdens beyond pollution (e.g., flooding) and health 
impacts resulting from industry and infrastructure, or that lack equal 
access to environmental benefits (e.g., green space).\219\
---------------------------------------------------------------------------

    \219\ EDF Comments at 8; Policy Integrity Comments at 2.
---------------------------------------------------------------------------

    126. EDF also states that the Commission's proposed definition 
could be read as limiting the consideration of communities that can 
specifically demonstrate that they have been historically marginalized 
or overburdened by pollution, since it contains an additional 
requirement that the community be a ``disadvantaged community,'' 
without a definition of that term.
    127. Impacted Landowners state that rural landowners along the 
center line of a proposed overhead transmission project on a new right-
of-way should be considered environmental justice communities because 
such landowners are disadvantaged and marginalized.\220\ Further, 
Impacted Landowners suggest that identification of environmental 
justice communities should include religious affiliation, occupation, 
age, or those who have been historically impacted due to numerous 
energy infrastructure projects located on their property.\221\
---------------------------------------------------------------------------

    \220\ Impacted Landowners Comments at 20.
    \221\ Impacted Landowners Comments at 24.
---------------------------------------------------------------------------

    128. Los Angeles DWP proposes defining environmental justice 
community as ``a group of people or a community that is 
disproportionately affected by environmental pollution, hazards, or 
other environmental risks, and that may face social, economic, or 
political barriers to accessing a healthy and sustainable 
environment.'' \222\
---------------------------------------------------------------------------

    \222\ Los Angeles DWP Comments at 3.
---------------------------------------------------------------------------

    129. Public Interest Organizations recommend revising the 
Commission's proposed definition of environmental justice community to 
include ``any community that is historically marginalized and/or 
overburdened by pollution, including but not limited to communities 
with significant representation of communities of Color, low-income 
communities, or Indian Tribes and Indigenous peoples.'' \223\ Public 
Interest Organizations also state that using the term ``communities 
with significant representations of communities of Color,'' rather than 
``minority populations'' reflects the Commission's practice of using 
the Fifty Percent Analysis and Meaningfully Greater Analysis, as 
recommended in Promising Practices.
---------------------------------------------------------------------------

    \223\ Public Interest Organizations Comments at 81.
---------------------------------------------------------------------------

    130. Public Interest Organizations also request that the Commission 
include a definition of ``overburdened'' in Sec.  50.1.\224\ They point 
to the EPA 2020 EJ Glossary for the Commission to model in defining 
``overburdened communities.'' \225\
---------------------------------------------------------------------------

    \224\ Public Interest Organizations Comments at 83.
    \225\ The EPA 2020 EJ Glossary defines ``overburdened 
communities'' as ``minority, low-income, tribal, or Indigenous 
populations or geographic locations in the United States that 
potentially experience disproportionate environmental harms and 
risks. This disproportionality can be as a result of greater 
vulnerability to environmental hazards, lack of opportunity for 
public participation, or other factors. Increased vulnerability may 
be attributable to an accumulation of negative or lack of positive 
environmental, health, economic, or social conditions within these 
populations or places. The term describes where multiple factors, 
including both environmental and socio-economic stressors, may act 
cumulatively to affect health and the environment and contribute to 
persistent environmental health disparities.'' EPA, EJ 2020 Glossary 
(Feb. 2024), https://www.epa.gov/system/files/documents/2024-02/ej-2020-glossary.pdf.
---------------------------------------------------------------------------

    131. SEIA recommends revising the Commission's proposed definition 
of ``environmental justice community'' to ``a geographic location with 
significant representation of persons of color, low-income persons, 
indigenous persons, or members of Tribal nations, where such persons 
experience, or are at risk of experiencing, higher or more adverse 
human health or environmental outcomes.'' \226\ SEIA states that this 
definition would be quantifiable based on census data, and can allow 
all stakeholders to work from a common understanding of what would make 
an environmental justice community.
---------------------------------------------------------------------------

    \226\ SEIA Comments at 12.
---------------------------------------------------------------------------

iii. Commission Determination
    132. The Commission adopts the definition of ``environmental 
justice community'' as proposed in the NOPR with one modification, 
removing ``disadvantaged'' in the definition, as further discussed 
herein.
    133. As an initial matter, we disagree that defining 
``environmental justice community'' exceeds the Commission's legal 
authority for the same reasons expressed above.\227\ Further, we 
decline to defer establishing a definition of ``environmental justice 
community'' until such time as a universal definition can be agreed 
upon by multiple agencies because the Commission cannot wait to carry 
out its statutory responsibilities under NEPA and section 216 of the 
FPA.
---------------------------------------------------------------------------

    \227\ Supra PP 110-111.
---------------------------------------------------------------------------

    134. We are informed by Executive Order 14008's focus on 
communities that have been historically and disproportionately 
marginalized and overburdened by pollution.\228\ The term 
``environmental justice community'' includes, but may not be limited 
to, minority populations, low-income populations, or indigenous 
peoples.\229\ This definition is substantially the same definition the 
Commission has used in its environmental reviews and orders pertaining 
to energy infrastructure development applications over the last several 
years.\230\ The definition has allowed the Commission, applicants, and 
stakeholders to have a general sense of the types of communities that 
may fall under the term, while the identification methodology noted 
above \231\ and in each of the Commission's NEPA documents and 
Commission orders provides a common understanding of the steps 
necessary to identify environmental justice

[[Page 46699]]

communities. To the extent that the Commission, applicants, or 
participants identify additional populations with environmental justice 
concerns, the Commission will address impacts on these communities in 
the context of specific proceedings.
---------------------------------------------------------------------------

    \228\ E.O. 14008, Tackling the Climate Crises at Home and 
Abroad, 86 FR 7619 (Jan. 27, 2021); see also E.O. 14096, 
Revitalizing Our Nation's Commitment to Environmental Justice for 
All, 88 FR 25251 (Apr. 21, 2023).
    \229\ See E.O. 12898, Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 
7629 (Feb. 11, 1994); see also EPA, EJ 2020 Glossary (Feb. 2024), 
https://www.epa.gov/system/files/documents/2024-02/ej-2020-glossary.pdf.
    \230\ See, e.g., Columbia Gas Transmission, LLC, 186 FERC ] 
61,048, at P 20 n.36 (2024); Andrew Peklo III, 186 FERC P 61,208, at 
P 23 n.41 (2024).
    \231\ Supra note 166.
---------------------------------------------------------------------------

    135. We define ``environmental justice community'' with the intent 
of neither too rigidly limiting nor strictly defining a set list of 
demographic populations or communities. We are intentionally allowing 
flexibility in the definition of ``environmental justice community,'' 
as this acknowledges that there are many environmental or human health 
qualifiers that may need to be analyzed separately by Commission staff 
to determine anticipated impacts on potential environmental justice 
communities. This flexibility is intended to strike a balance between 
applying an identification methodology that can be used in all 
proceedings and allowing the identification of other populations, 
during scoping or in comments filed in the record of individual 
proceedings, that may fall outside of the categories of minority 
populations, low-income populations, or indigenous peoples. We do not 
agree that this flexibility renders the definition practically 
unworkable, as applicants seeking to develop energy infrastructure in 
other contexts have been able to use the definition and identification 
methodology to successfully develop and submit the information that the 
Commission needs to process applications.\232\ Likewise, we do not 
agree that the definition of ``environmental justice community'' is so 
expansive that it cannot be readily understood and applied.
---------------------------------------------------------------------------

    \232\ E.g., ANR Pipeline Co., 185 FERC ] 61,191 at P 96.
---------------------------------------------------------------------------

    136. Commenters' assertion that transmission line infrastructure is 
not a source of ``pollution'' as contemplated under the definition of 
``environmental justice community'' is inapposite. Defining an 
environmental justice community as one that has been overburdened by 
pollution acknowledges the historical burdens of disproportionate rates 
of pollution faced by environmental justice communities.\233\ We 
believe that there are many ways in which transmission line 
infrastructure may result in reasonably foreseeable adverse impacts on 
environmental justice communities during construction, operation, and 
maintenance of the project facilities.
---------------------------------------------------------------------------

    \233\ See E.O. 14008, Tackling the Climate Crises at Home and 
Abroad, 86 FR 7619 (Jan. 27, 2021).
---------------------------------------------------------------------------

    137. We acknowledge commenters' concerns regarding use of the word 
``disadvantaged'' in the definition of ``environmental justice 
community.'' Given that the definition of environmental justice 
communities adopted in this final rule includes language indicating its 
applicability to communities that have been historically marginalized 
and overburdened by pollution, we agree that it is not necessary to 
include the word ``disadvantaged'' in the definition and have removed 
it in this final rule. We also decline to adopt a separate definition 
for the term ``overburdened'' or to add ``underserved'' to the 
definition. As explained above, the proposed definition has allowed the 
Commission, applicants, and stakeholders to have a general sense of the 
types of communities that may fall under the phrase without the need 
for further definition or including additional terms, while the 
Commission's identification methodology provides a common understanding 
of the steps necessary to identify environmental justice communities.
    138. We decline to adopt the phrase ``communities with significant 
representations of communities of Color'' because we conclude that the 
definition we are adopting is sufficiently broad to identify 
communities that have been historically marginalized and overburdened 
by pollution without that addition. We will continue our practice of 
defining ``environmental justice communities'' as including, but not 
being limited to, minority populations, low-income populations, or 
indigenous peoples.
b. Definition of National Interest Electric Transmission Corridor
i. NOPR Proposal
    139. The Commission proposed in the NOPR to revise the definition 
of ``national interest electric transmission corridor'' to include any 
geographic area that is expected to experience energy transmission 
capacity constraints or congestion, for consistency with the IIJA's 
amendments to section 216(a).
ii. Comments
    140. While EDF states that the proposed definition of ``national 
interest electric transmission corridor'' is appropriate, Farm Bureaus 
and Kentucky Commission state that the definition is too broad, as a 
National Corridor could include any geographic area that has any amount 
of congestion.\234\ Kentucky Commission requests that the Commission 
modify the definition to include a threshold for congestion, while Farm 
Bureaus request that the Commission reopen public comment on this 
proposal after DOE has identified National Corridors.\235\ EDF notes 
that the Commission and DOE should coordinate to ensure consistent 
definitions.
---------------------------------------------------------------------------

    \234\ EDF Comments at 5; Farm Bureaus Comments at 2; Kentucky 
Commission Comments at 3.
    \235\ Kentucky Commission Comments at 3; Farm Bureaus Comments 
at 2.
---------------------------------------------------------------------------

iii. Commission Determination
    141. We adopt the definition of ``national interest electric 
transmission corridor'' proposed in the NOPR in this final rule. As 
stated in the NOPR, the Commission proposed changes to the definition 
of ``national interest electric transmission corridor'' strictly to 
incorporate the revisions to the term in the IIJA's amendment to 
section 216(a) of the FPA, and we continue to find it appropriate to 
define this term based on the statute. Section 216(a) of the FPA 
designates the Secretary of DOE as the sole authority to determine 
whether a geographic area is experiencing, or expected to experience, 
sufficient capacity constraints or congestion to warrant the 
designation of a ``national interest electric transmission corridor,'' 
and the Commission will defer to DOE's interpretation of the statute 
for those purposes. Additionally, as the proposed definition is derived 
directly from the statute, it is unnecessary to wait to finalize this 
regulation until DOE has identified a National Corridor.\236\
---------------------------------------------------------------------------

    \236\ In DOE's recent Guidance on section 216(a), DOE's 
definition of a National Corridor closely matches the Commission's 
proposed definition. DOE defined a National Corridor as ``. . . a 
geographic area where, based on the Needs Study or other relevant 
information, DOE has identified . . . present or expected 
transmission capacity constraints or congestion that adversely 
affects consumers, and which has been designated by the Secretary as 
a [National Corridor].'' DOE Grid Deployment Office, Guidance on 
Implementing Section 216(a) of the Federal Power Act, at 16 (Dec. 
19, 2023).
---------------------------------------------------------------------------

c. Definition of Stakeholder
i. NOPR Proposal
    142. The Commission in the NOPR proposed to revise the definition 
of ``stakeholder'' for clarity and to ensure that environmental justice 
community members and other interested persons or organizations are 
covered by the definition. As proposed, Sec.  50.1 defines 
``stakeholder'' as any Federal, State, interstate, or local agency; any 
Tribal government; any affected landowner; any environmental justice 
community member; or any other interested person or organization.
ii. Comments
    143. Impacted Landowners state that grouping severely impacted 
landowners

[[Page 46700]]

with individuals who have generalized environmental concerns, or 
project advocates who will profit from the project, and considering 
them all equal ``stakeholders'' is unfair and unjust. Impacted 
Landowners suggest that a stakeholder should be defined as a person or 
entity with an interest in a project but who will experience no 
impacts.\237\ Niskanen states that the definition of stakeholder is too 
broad and suggests the definition be modified to include any Federal, 
State, interstate, Tribal, or local agency or Tribal government 
involved with approving or whose interests may be affected by the 
proposed transmission facilities, and any environmental justice 
community that could be potentially impacted in some way by a proposed 
project.\238\
---------------------------------------------------------------------------

    \237\ Impacted Landowners Comments at 22.
    \238\ Niskanen Comments at 9-11.
---------------------------------------------------------------------------

    144. Public Interest Organizations recommend that the Commission 
amend the definition of stakeholder to replace ``Tribal government'' 
with ``Indian Tribe,'' and that the Commission should add ``Indigenous 
peoples'' to the definition of stakeholders.\239\ Public Interest 
Organizations explain that the distinction between Indian Tribes and 
any Tribal community member will preserve the government-to-government 
relationship between the Federal government and Indian Tribes. Niskanen 
also notes that the proposed definition for stakeholder as it relates 
to ``any Tribal government'' is inconsistent with the definition given 
in Sec.  50.1 of ``Indian Tribe.''
---------------------------------------------------------------------------

    \239\ Public Interest Organizations Comments at 53-54.
---------------------------------------------------------------------------

iii. Commission Determination
    145. We adopt the definition of ``stakeholder'' proposed in the 
NOPR, with one modification. We agree with Public Interest 
Organizations and Niskanen that the definition of ``stakeholder'' 
should include the term ``Indian Tribe'' instead of ``Tribal 
government,'' for consistent use of defined terms in the Commission's 
regulations. Therefore, this final rule adopts usage of ``Indian 
Tribe'' in the definition of ``stakeholder.'' Similarly, the use of 
``Tribal government'' in applicant notification requirements in Sec.  
50.4(c)(1) is replaced with ``Indian Tribe.''
    146. We also decline to limit the definition of stakeholders to 
entities that may be interested but would experience no impacts from a 
project, or to only agencies or governments that would be affected by a 
project. The extent of project-related effects is evaluated and refined 
throughout the review process and may not be well understood early in 
the review process when engagement with stakeholders should begin. 
Further, impacts from a project can vary from direct environmental 
effects to indirect effects on users of public spaces to non-
environmental effects for individuals who will experience less 
congestion, increased reliability of their electric grid, or rate 
changes. Further, Niskanen's suggested definition would remove from 
consideration landowners or other individuals who do not meet the 
definition of affected landowner and are not members of an 
environmental justice community, but who may be affected by a project. 
As such, we find it appropriate to allow any interested party to be 
considered a stakeholder.
    147. With respect to Public Interest Organizations' request to add 
``Indigenous peoples'' to the definition of ``stakeholder,'' we note 
that Indigenous peoples are considered stakeholders under the 
definition proposed and adopted in this final rule.
d. Definition of Affected Landowner
i. NOPR Proposal
    148. In the NOPR, the Commission did not propose any revisions to 
the existing definition of ``affected landowners'' in Sec.  50.1, which 
defines ``affected landowners'' as owners of property interests, as 
noted in the most recent county/city tax records as receiving the tax 
notice, whose property: (1) is directly affected (i.e., crossed or 
used) by the proposed activity including all facility sites, rights-of-
way, access roads, staging areas, and temporary workspace; or (2) abuts 
either side of an existing right-of-way or facility site owned in fee 
by any utility company, or abuts the edge of a proposed facility site 
or right-of-way which runs along a property line in the area in which 
the facilities would be constructed, or contains a residence within 50 
feet of a proposed construction work area. Nevertheless, the NOPR 
sought comment on whether the Commission should revise the definition 
to include landowners located within a certain geographic distance from 
the proposed project facilities to address effects on visual (or other) 
resources, and, if so, what geographic distance should be used and why.
ii. Comments
    149. ClearPath opposes any revisions to the existing definition of 
``affected landowners,'' arguing that the Commission has not provided 
evidence that the definition is deficient or that Congress directed the 
Commission to revise the definition.\240\ ClearPath also states that 
the NOPR fails to address whether expanding the definition of 
``affected landowners'' would qualify the additional affected 
landowners for compensation under eminent domain, which may make 
projects economically unviable.\241\
---------------------------------------------------------------------------

    \240\ ClearPath Comments at 5.
    \241\ Id.
---------------------------------------------------------------------------

    150. Several commenters note that property tax bills do not list 
more than one person even if there are multiple owners of property, and 
do not list tenants with possessory interests. These commenters request 
that the Commission revise the definition of ``affected landowners'' to 
include any person with a legal right or interest in the property 
(e.g., a landowner, a contract purchaser of record, a person possessing 
the property under a lease, a record lienholder, a record encumbrancer 
of the property, and conservation easement holders).\242\ EDF and 
Public Interest Organizations ask that the Commission clarify the 
definition of ``affected landowners'' as it relates to Tribal lands, 
particularly whether individual Tribal members residing on trust land 
satisfy the definition, and request that Tribes be included in the 
definition due to trust responsibilities.\243\
---------------------------------------------------------------------------

    \242\ EDF Comments at 5; Farm Bureaus Comments at 2-3; Land 
Trust Alliance Comments at 2-3.
    \243\ EDF Comments at 5; Public Interest Organizations Comments 
at 26-27.
---------------------------------------------------------------------------

    151. EDF, Niskanen, Public Interest Organizations, and SEIA state 
that the Commission should use DOE's definition of ``affected 
landowners'' from its then-current regulations implementing section 
216(h) of the FPA (i.e., landowners 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, as well as those with a 
residence within 3,000 feet of a proposed construction work area for a 
qualifying project),\244\ because it is broader than the Commission's 
definition and will provide for regulatory consistency between the 
Commission and DOE.\245\ Public Interest Organizations argue that

[[Page 46701]]

limiting affected landowners to those within 50 feet of proposed 
facilities fails to provide surrounding residents and communities the 
opportunity to meaningfully participate in the permitting process, and 
may cause landowners beyond this distance to feel marginalized, which 
may add unnecessarily high regulatory and litigation risks.\246\
---------------------------------------------------------------------------

    \244\ 10 CFR 900.3 (2023). On May 1, 2024, DOE issued a final 
rule revising its regulations implementing section 216(h) of the FPA 
that, among other things, revises this definition and removes the 
distance criteria. See DOE, Coordination of Federal Authorizations 
for Electric Transmission Facilities, 89 FR 35312 (May 1, 2024). 
Regarding the revised definition to be codified at 10 CFR 900.2, DOE 
provides that a ``potentially affected landowner'' is one whose real 
property interest is potentially affected directly or indirectly by 
a proposed project. 89 FR 35340. DOE's final rule is effective on 
May 31, 2024.
    \245\ EDF Comments at 6; Niskanen Comments at 6-9; Public 
Interest Organizations Comments at 25-26.
    \246\ Public Interest Organizations Comments at 25-26.
---------------------------------------------------------------------------

    152. Impacted Landowners request that the Commission use the term 
``impacted landowners'' instead of ``affected landowners,'' noting that 
it is the degree of impact, not an arbitrary distance, that creates an 
impacted landowner.\247\ Niskanen indicates that the current definition 
does not adequately consider visual impacts or light pollution and 
subsequent devaluation of property.\248\ EDF and Land Trust Alliance 
suggest that the Commission use the results of a visual impact 
assessment to identify affected landowners, and define ``affected 
landowners'' as any landowner whose viewshed or ecosystem services may 
be affected.\249\ Conversely, ClearPath argues that broadly expanding 
the affected landowner definition to anyone whose viewshed is affected 
could include properties up to 17 miles away and that the resource 
report addressing visual impacts in an application requires evaluating 
visual effects without the need to increase the affected landowner 
definition.\250\
---------------------------------------------------------------------------

    \247\ Impacted Landowners Comments at 21.
    \248\ Niskanen Comments at 6-9.
    \249\ EDF Comments at 6; Land Trust Alliance Comments at 3.
    \250\ ClearPath Comments at 5.
---------------------------------------------------------------------------

iii. Commission Determination
    153. We continue to find the definition of affected landowner in 
our existing regulations appropriate and adopt no changes.
    154. In response to ClearPath's concern that changing the 
definition might mean additional landowners would be entitled to 
compensation, we note that section 216(f) of the FPA provides that any 
right-of-way acquired for construction or modification of transmission 
facilities through the use of eminent domain is considered a taking of 
private project for which just compensation is due. Whether a landowner 
is entitled to just compensation under section 216(f) is in no way 
connected to how the Commission's regulations define an affected 
landowner.
    155. As part of the Commission's review process, we seek to ensure 
that landowners are given an opportunity to submit comments and 
participate in the Commission proceeding. Therefore, the definition of 
``affected landowners'' is meant to encompass owners of property that: 
are proposed to be crossed by the project, are most likely to be 
affected by minor route adjustments or variations that may occur to 
avoid or minimize impacts to sensitive resources based on environmental 
survey results, or may be impacted by construction activities conducted 
in close proximity. The definition of ``stakeholder'' is then intended 
to capture other landowners and parties who may have an interest in a 
project or may be otherwise affected by a project and can inform the 
Commission's review of an application.
    156. We acknowledge the numerous requests for a broader and more 
inclusive definition of an affected landowner (e.g., to include 
lessees, multiple property owners, conservation easement holders) but 
decline to adopt such a definition. The definition of ``affected 
landowners'' sets forth the scope of other regulatory obligations, 
including specific notification requirements, and applicants must have 
a practicable means of determining which entities fall within the scope 
of the definition. We find that there are not sufficient means for an 
applicant to readily identify a broader set of entities, as proposed by 
commenters, particularly for lengthy proposed transmission lines. The 
existing definition of ``affected landowners'' is practicable and 
likely to identify most entities with interests in the property. While 
a Tribe or member of a Tribe would not be an affected landowner if they 
occupy lands held in trust by the United States, a Tribe or member of a 
Tribe may qualify as an affected landowner if they occupy land that is 
not held in trust by the United States and otherwise meet the 
definition.\251\
---------------------------------------------------------------------------

    \251\ We note that with regard to the Commission's trust 
responsibilities, Tribes are afforded additional outreach and 
consultations consistent with the Commission's consultation 
practices under its Tribal Consultation Policy, as well as the 
Commission's trust responsibilities and government-to-government 
relationships with Tribes. Pol'y Statement on Consultation with 
Indian Tribes in Comm'n Procs., Order No. 635, 68 FR 46452 (Sept. 5, 
2033), 104 FERC ] 61,108 (2003), revised, Order No. 863, 84 FR 56940 
(Oct. 24, 2019) 169 FERC ] 61,036 (2019). The policy statement is 
codified at 18 CFR 2.1c (2023). These activities do not depend on 
whether Tribal members are ``affected landowners.''
---------------------------------------------------------------------------

    157. While there are numerous requests for larger geographic bounds 
to be used in the definition, we decline to modify the definition in 
this manner. Commenters suggest such a modification is necessary to 
ensure a broader group of stakeholders who may be impacted by a 
proposed project are aware of and have an opportunity to share their 
views on the proposal. We note, however, that the applicant must also 
notify all landowners with a residence within a quarter mile of the 
edge of the construction right-of-way under the notification 
requirements in Sec.  50.4(c)(1). Moreover, stakeholders do not need to 
be an affected landowner or live in a residence within a quarter mile 
of the proposed site to participate in the Commission's proceedings. 
Under the definition of ``stakeholder'' in Sec.  50.1, any interested 
entity or person may file comments as a stakeholder and participate in 
the Commission's pre-filing and application processes. We believe that 
the existing definition of ``affected landowners'' and existing quarter 
mile notification requirement provides individuals with appropriate 
notification of a proposed project to allow an opportunity to 
participate in Commission proceedings.
    158. Although some commenters argue that the definition of affected 
landowners should include landowners who may be impacted by visual or 
other project effects, the geographic extent of impacts will vary by 
region and project, and it is therefore difficult to identify a bright-
line definition that could be used by an applicant to identify 
landowners who may experience visual impacts shortly after the 
commencement of the pre-filing process (when initial notifications to 
affected landowners must occur). Proposed transmission projects will be 
subject to NEPA, and the environmental effects of a project (including 
visual impacts) will be analyzed and addressed through the NEPA 
process. The NEPA and FPA processes include opportunities for 
landowners and other stakeholders to participate in the review process 
and comment on anticipated effects of a project, including visual 
impacts.
2. Section 50.3--Filing and Formatting Requirements
    159. Section 50.3 establishes the filing and formatting 
requirements for submissions in the Commission's pre-filing and 
application processes. In the NOPR, the Commission proposed to revise 
Sec.  50.3(b) to eliminate the requirement that applications, 
amendments, and all exhibits and other submissions must be submitted in 
an original and seven conformed copies. Instead, to reduce waste, the 
Commission proposed that applicants only be required to make these 
submissions in electronic format. We received no comments regarding 
this proposed change. This final rule adopts Sec.  50.3 as proposed.

[[Page 46702]]

3. Section 50.4--Stakeholder Participation
a. Project Participation Plan
i. NOPR Proposal
    160. The Commission explained in the NOPR that Sec.  50.4(a) 
requires each applicant to develop and file a Project Participation 
Plan for use during the pre-filing and application processes to ensure 
that stakeholders have access to timely and accurate information about 
the proposed project and permitting process. The Project Participation 
Plan must, among other things, identify specific tools and actions to 
facilitate stakeholder communications and public information, including 
a regularly updated website. In the NOPR, the Commission proposed to 
revise Sec.  50.4(a)(1) to incorporate minor clarifying language and 
specify that an applicant's website must include an interactive mapping 
component to provide users with the ability to locate the proposed 
facilities in relation to specific properties and other features. 
Additionally, as discussed above, the Commission proposed to require an 
applicant to develop and file an Environmental Justice Public 
Engagement Plan as part of its Project Participation Plan under Sec.  
50.4(a) early in the pre-filing process.\252\
---------------------------------------------------------------------------

    \252\ See discussion supra Part II.C.
---------------------------------------------------------------------------

ii. Comments
    161. Arizona Game and Fish recommends that Sec.  50.4's Project 
Participation Plan include a requirement for applicants to consult or 
coordinate with specific entities, such as State wildlife or natural 
resource agencies.\253\ Maryland Commission urges that county and 
municipal governments affected by a proposed transmission line be given 
the opportunity to participate fully in the Commission's proceeding and 
provide recommendations.\254\
---------------------------------------------------------------------------

    \253\ Arizona Game and Fish Comments at 2-3.
    \254\ Maryland Commission Comments at 8.
---------------------------------------------------------------------------

    162. The Yurok Tribe requests that the Commission require 
applicants to develop a Tribal Participation Engagement Plan in the 
pre-filing process, similar to the Environmental Justice Public 
Engagement Plan.\255\
---------------------------------------------------------------------------

    \255\ Yurok Tribe Comments at 27-28.
---------------------------------------------------------------------------

iii. Commission Determination
    163. We adopt the NOPR proposal to revise the Project Participation 
Plan requirements to incorporate minor clarifications, specify that an 
applicant's website must include an interactive mapping component, and 
include an Environmental Justice Public Engagement Plan and a Tribal 
Engagement Plan.
    164. Regarding requests to include coordination and consultation 
requirements for State, county and local agencies or governments in the 
Project Participation Plan, we do not believe such changes are needed. 
As further discussed below, the Sec.  50.4(c) project notification 
requirements adopted in this final rule extend to, among others, 
permitting entities and other local, State, and Federal governments and 
agencies involved in the project, which include the entities that 
Arizona Game and Fish and Maryland Commission suggest. The project 
notification requirements inform recipients how to participate in the 
Commission's proceeding, including opportunities to provide 
recommendations to the Commission and how to contact the applicant. 
Local agencies and governments are typically included on project 
stakeholder mailing lists, as they are stakeholders as defined by Sec.  
50.1, who receive Commission notices regarding opportunities to submit 
comments, attend meetings and site visits, and participate in the pre-
filing and application phases; and we encourage their participation. 
The Commission will consider comments submitted by any State, county, 
or local agencies during the processing of an application.
    165. We adopt the Yurok Tribe's suggestion to require applicants to 
address outreach targeted to Indian Tribes, similar to the requirement 
to include an Environmental Justice Public Engagement Plan in an 
applicant's Project Participation Plan. Requiring applicants to develop 
a plan to identify and engage Tribal communities will facilitate the 
development of the record, including the Tribal resources resource 
report as discussed below, which the Commission needs to assess impacts 
on Indian Tribes. Therefore, new Sec.  50.4(a)(5) requires an applicant 
to include a Tribal Engagement Plan as a component of the Project 
Participation Plan that addresses all outreach that is targeted to 
identified Tribes, including a summary of comments from potentially 
affected Tribes in previous outreach, a description of planned Tribal 
outreach activities, and a description of how the applicant will engage 
Tribes about potential mitigation measures.\256\
---------------------------------------------------------------------------

    \256\ We note that this new provision of the Project 
Participation Plan does not affect and is separate from the 
Commission's consultation practices under its Tribal Consultation 
Policy, as well as existing trust responsibilities and government-
to-government relationships with Tribes. Order No. 635, 104 FERC ] 
61,108, revised, Order No. 863, 169 FERC ] 61,036. The policy 
statement is codified at 18 CFR 2.1c (2023).
---------------------------------------------------------------------------

b. Project Notification Requirements
i. NOPR Proposal
    166. Section 50.4(c) sets forth the project notification 
requirements for applicants. Section 50.4(c)(1) requires applicants to 
distribute, by mail and newspaper publication, project notifications 
within specified time periods, first, following commencement of the 
pre-filing process and, second, after an application has been filed. 
Section 50.4(c)(1) directs the applicant to notify, among others, all 
affected landowners and landowners with a residence within a quarter 
mile from the edge of the construction right-of-way for the proposed 
project. In the NOPR, the Commission proposed to revise Sec.  
50.4(c)(1) for clarity and to ensure that applicants provide 
notification of the proposed project to all interested individuals and 
organizations. The NOPR also sought comment on whether a quarter-mile 
limit is sufficient and, if not, what geographic distance should be 
used and why.
    167. Section 50.4(c)(2)(i) describes the required contents of the 
Pre-filing Notification. For clarity, in the NOPR, the Commission 
proposed organizational changes in the regulations to distinguish the 
requirements that pertain to any Pre-filing Notification that is sent 
by mail or published in a newspaper (proposed Sec.  50.4(c)(2)(i)) from 
the requirements that pertain to any Pre-filing Notification that is 
sent by mail specifically to an affected landowner (proposed Sec.  
50.4(c)(2)(ii)).
    168. The Commission in the NOPR proposed to add a requirement that 
any Pre-filing Notification mailed to an affected landowner also 
include a copy of a Commission document titled ``Landowner Bill of 
Rights in Federal Energy Regulatory Commission Electric Transmission 
Proceedings'' (Landowner Bill of Rights). The Commission also proposed 
in the NOPR to require that any Pre-filing Notification sent by mail or 
published in the newspaper include information clarifying that the 
Commission's pre-filing and application processes are separate from any 
simultaneous State siting proceeding and explaining how to participate 
in any such State siting proceeding.
    169. In the NOPR, the Commission explained that it expects 
applicants to make a good faith effort to ensure that individuals and 
organizations entitled to receive project notifications can comprehend 
the contents of such notifications. Accordingly, the NOPR

[[Page 46703]]

directed applicants to consider the need for project notifications in 
languages other than English as part of the Environmental Justice 
Public Engagement Plan, as described above. The NOPR also sought 
comment on what methods of notification beyond mail and newspaper 
publication might be utilized in order to effectively reach the largest 
possible number of stakeholders.
ii. Comments
    170. Public Interest Organizations and Niskanen suggest that the 
Commission require the two applicant project notifications in Sec.  
50.4(c) to include information on how to become an intervenor in a 
Commission proceeding and the consequences of failing to intervene, 
namely, lacking standing to petition for rehearing and pursue judicial 
review of an order issued by the Commission.\257\ Public Interest 
Organizations also request that Sec.  50.4(c)(2)(iii) of the 
Commission's regulations be modified to require inclusion of the 
Landowner Bill of Rights in the Application Notification required under 
Sec.  50.4(c)(1)(i)(B),\258\ and further urge the Commission to 
consider changes to Sec.  50.4(c)(2)(i) to require that the pre-filing 
notice clearly state how affected landowners and other stakeholders can 
participate in the pre-filing process in order to make the communities 
feel heard, support the applicant in meeting landowner needs, and 
reduce legal risks.\259\
---------------------------------------------------------------------------

    \257\ Public Interest Organizations Comments at 18; Niskanen 
Comments at 17-18.
    \258\ Public Interest Organizations Comments at 32 and 38.
    \259\ Id. at 13-14.
---------------------------------------------------------------------------

    171. The existing regulations in Sec.  50.4(c)(1)(ii) require 
applicants to publish a notification of the pre-filing request and 
application filings in newspapers of general circulation. Some 
commenters suggest that the Commission modify this requirement to 
include other methods of notice, such as social media, popular internet 
sites, local digital newspapers, online-only publications that serve a 
local interest, neighborhood listservs and community web pages, utility 
web pages, and including a QR code on notices that directs the reader 
to an appropriate web page.\260\ CLF and EDF encourage requiring the 
notices be posted in a range of locations in the community (e.g., 
churches, mosques, temples, community centers, public parks, post 
offices, and schools) where transmission projects are proposed.\261\
---------------------------------------------------------------------------

    \260\ CLF Comments at 7; ELCON Comments at 4; Michigan PSC 
Comments at 10; SEIA Comments at 11; Los Angeles DWP Comments at 5.
    \261\ CLF comments at 7; EDF Comments at 12.
---------------------------------------------------------------------------

    172. Public Interest Organizations recommend that the Commission's 
newspaper notification requirements in Sec.  50.4(c)(2)(i)(B) be 
modified to include the website address for the Commission's pamphlet 
Electric Transmission Facilities Permit Process.\262\ Niskanen states 
that the Commission should create accessible online and paper versions 
of the pamphlet, written in layperson's terms and should include: the 
scope of the Commission's transmission siting authority; what findings 
the Commission must make to approve a project; an explanation as to how 
to obtain ongoing, accurate project information from the Commission; 
clear contact information for the Office of Public Participation; 
basic, step-by-step descriptions of the Commission's pre-filing and 
application processes; and a description of how to participate in these 
processes, including clear, bolded instructions on when, why, and how 
to become an intervenor in the relevant proceeding.\263\
---------------------------------------------------------------------------

    \262\ Public Interest Organizations Comments at 33.
    \263\ Niskanen Comments at 14.
---------------------------------------------------------------------------

    173. Impacted Landowners and SEIA request that Sec.  50.4(c)(2) 
require the notices be written in plain language.\264\ Several 
commenters suggest that notices be provided in multiple languages.\265\ 
Impacted Landowners and ACEG request that the notices contain a summary 
of rights a landowner has in reference to the Federal eminent domain 
laws that would be applicable, instead of just the State laws proposed 
for reference in the NOPR.\266\
---------------------------------------------------------------------------

    \264\ Impacted Landowners Comments at 23; SEIA Comments at 11.
    \265\ SEIA Comments at 11; NESCOE Comments at 28-29; Impacted 
Landowners Comments at 23; Public Interest Organizations Comments at 
30.
    \266\ Impacted Landowners Comments at 23; ACEG Comments at 17-
18.
---------------------------------------------------------------------------

    174. Public Interest Organizations and the Yurok Tribe state that 
the Commission should develop standardized language that all applicants 
must include in each notice under Sec.  50.4(c) that clearly explains 
the Commission's processes, all necessary deadlines, and the purpose 
and consequences of intervening or seeking rehearing.\267\ Public 
Interest Organizations and the Yurok Tribe also suggest that these 
standard notices explain the roles of the Commission's Office of Public 
Participation, Tribal Liaison, and the Environmental Justice 
Liaison,\268\ and how to contact each of them.\269\ Finally, Public 
Interest Organizations ask that the Commission revise its standard 
notice to clarify the different ways interested persons may participate 
in the pre-filing process, in which restrictions on off-the-record (ex 
parte) communications do not apply.
---------------------------------------------------------------------------

    \267\ Public Interest Organizations Comments at 17-18; Yurok 
Tribe Comments at 25.
    \268\ Public Interest Organizations recommend that the 
Commission establish Environmental Justice Liaisons as non-
decisional staff within the Office of Public Participation. Public 
Interest Organizations Comments at 89-90. While the Commission has a 
Senior Counsel for Environmental Justice and Equity and an 
Environmental Justice and Equity Group within the Office of General 
Counsel, it does not currently have an Environmental Justice 
Liaison.
    \269\ Public Interest Organizations Comments at 30; Yurok Tribe 
Comments at 26.
---------------------------------------------------------------------------

    175. Public Interest Organizations and the Yurok Tribe suggest that 
the Commission change its requirement under Sec.  50.4(c)(1)(i)(A) for 
mailing notification of the pre-filing process. Specifically, they ask 
that the Pre-filing Notifications be mailed within 3 business days 
after the Director of the Commission's Office of Energy Projects 
notifies the applicant of the commencement of the pre-filing process, 
instead of within 14 days as currently required.\270\ The Yurok Tribe 
states that there is no justification for the existing 14-day period 
and that Tribes and stakeholders should be given as much time as 
possible to prepare and participate through an earlier notification.
---------------------------------------------------------------------------

    \270\ Public Interest Organizations Comments at 28-29; Yurok 
Tribe Comments at 26.
---------------------------------------------------------------------------

    176. CLF and NESCOE assert that not all residents own the property 
in which they reside and request that project notifications under Sec.  
50.4(c)(1) be sent to residents (e.g., renters/lessees) in addition to 
the landowners.\271\
---------------------------------------------------------------------------

    \271\ CLF Comments at 6-7; NESCOE Comments at 28.
---------------------------------------------------------------------------

    177. The Chickahominy Indian Tribe, Nansemond Indian Nation, 
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe state that 
Tribes should be included in the Stakeholder Participation section of 
the proposed regulations regardless of whether the Tribes are already 
involved in a project and should be addressed separately from, or as a 
required element of, the Environmental Justice Public Engagement 
Plan.\272\ Specifically, the Tribes, as well as the Yurok Tribe, state 
that proposed Sec.  50.4(c)(1) appears to limit the requirement to 
notify Tribes to those who are already involved in a project, and they 
suggest that the Commission should amend its regulations to require 
that project

[[Page 46704]]

notifications are sent to all Tribes with ancestral or current-day 
lands that may experience impacts from the project.\273\
---------------------------------------------------------------------------

    \272\ Chickahominy Indian Tribe, Nansemond Indian Nation, 
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments 
at 2.
    \273\ Chickahominy Indian Tribe, Nansemond Indian Nation, 
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments 
at 3; Yurok Tribe Comments at 26.
---------------------------------------------------------------------------

    178. Conversely, ClearPath suggests that Sec.  50.4(c)(1) should 
remove the word, ``all,'' which immediately precedes the entities that 
an applicant is required to notify, asserting that requiring applicants 
to notify ``all'' listed entities would put the applicant at risk for 
unnecessary litigation and may incur unnecessary delay.\274\ Similarly, 
Niskanen suggests removing the word ``any'' from the Sec.  50.4(c)(1) 
requirement that applicants notify ``any known individuals or 
organizations that have expressed an interest in the State siting 
proceeding; and any other individuals or organizations that have 
expressed to the applicant, or its representatives, an interest in the 
proposed project (emphasis added).'' \275\ Niskanen argues that 
requiring applicants to notify ``any'' individual or organization that 
has merely expressed an interest in a proposed project may invite 
protracted legal challenges to any given project.\276\ Niskanen also 
asserts that the Commission should be responsible for ensuring that all 
stakeholders are properly accounted for and sent notice through the 
applicant, and should create an accountability mechanism for applicants 
to follow up on undeliverable notifications.\277\
---------------------------------------------------------------------------

    \274\ ClearPath Comments at 6.
    \275\ Niskanen Comments at 12.
    \276\ Id.
    \277\ Id. at 13.
---------------------------------------------------------------------------

    179. ACP and ACEG question how the Commission will consider 
notification requirements in the instances of route changes, 
particularly ones that occur relatively late in the Commission's 
proceeding.\278\ ACP states that applicants would have complied with 
the Applicant Code of Conduct and conducted early outreach, and, 
therefore, should not be required to restart the notice and comment 
periods in instances of reroutes. ACEG suggests notifying landowners 
along alternative routes earlier in the process or allowing for an 
expedited notice and comment process if newly impacted parties are 
identified.
---------------------------------------------------------------------------

    \278\ ACP Comments at 14; ACEG Comments at 15.
---------------------------------------------------------------------------

iii. Commission Determination
    180. To support the Commission's good faith efforts determinations 
under the IIJA's amendment to section 216(e)(1) and make needed 
clarifications to the Commission's existing project notification 
requirements under Sec.  50.4(c), we adopt the NOPR proposal, with 
modifications. Specifically, we revise Sec.  50.4(c) to address 
confusion over the use of the terms ``notice'' and ``notification.'' We 
also revise Sec.  50.4(c)(1)(ii) to expand newspaper publication 
requirements to reach a broader audience and revise Sec.  
50.4(c)(2)(i)(B) to require applicants to include the website address 
for the Commission's pamphlet Electric Transmission Facilities Permit 
Process in newspaper publications to improve accessibility of 
information regarding the Commission's processes. We revise Sec.  
50.4(c)(1)(i)(C) to include a new requirement for applicants to mail 
project notifications in other languages under certain circumstances. 
Finally, to reflect that we are not adopting the NOPR's proposal to 
allow simultaneous processing, we adjust the required contents of the 
participation notification concerning information about State siting 
proceeding(s) in Sec.  50.4(c)(2)(i)(H).
    181. As an initial matter, we recognize that Sec.  50.4(c)'s 
interchangeable and intermittent use of ``notice'' and ``notification'' 
may have created confusion for commenters, some of whom conflated Sec.  
50.4(c)'s notification requirements for applicants with the 
Commission's notice requirements as described in Sec.  50.9. 
Accordingly, we make minor consistency edits throughout Sec.  50.4(c) 
to consistently use the term ``notification'' to apply exclusively to 
applicants' obligation to provide certain information, and the term 
``notice'' to apply exclusively to Commission-issued notices. 
Additionally, we clarify which provisions in Sec.  50.4(c) apply to 
Pre-filing Notifications versus Application Notifications.
    182. We decline commenters' requests to revise Sec.  50.4(c) to 
require additional information in Applicant Notifications concerning 
intervening in Commission proceedings. We find that the proposed 
revisions to Sec.  50.4(c), as modified in this final rule, will 
adequately inform those affected landowners and other stakeholders 
interested in becoming parties to a Commission proceeding of the 
Commission's processes and timing for filing motions to intervene. 
Although there is no intervention period during the pre-filing process, 
as no application is before the Commission, the regulations in Sec.  
50.4(c)(2)(i)(G) already require an applicant's Pre-filing 
Notifications to include information explaining the Commission's pre-
filing and application processes and when and how to intervene in 
application proceedings. Following the commencement of the pre-filing 
process, applicants will be required under Sec.  50.4(c)(2)(ii)(B)--as 
adopted herein--to include a copy of the Landowner Bill of Rights, 
which notifies recipients of their right to intervene in any open 
Commission proceeding, within the Pre-filing Notification mailed to 
affected landowners.
    183. We decline Public Interest Organizations' request to require 
that the Landowner Bill of Rights be provided in the Application 
Notification required by Sec.  50.4(c)(1)(i)(B) to be distributed 
within 3 business days after the Commission publishes notice of the 
application under Sec.  50.9. As discussed above, under proposed Sec.  
50.4(c)(2)(ii)(B), as adopted herein, the Landowner Bill of Rights must 
be included in an applicant's mailed Pre-filing Notification. Proposed 
Sec.  50.4(c)(3) also requires applicants to provide the Landowner Bill 
of Rights in instances where affected landowners are identified after 
the initial notifications are mailed. Therefore, we find that all 
affected landowners will be provided a copy of the Landowner Bill of 
Rights and, as such, it is not necessary to provide it again with the 
Application Notification.
    184. We agree with commenters' recommendations that the Commission 
include additional requirements in Sec.  50.4(c) for the publication of 
notifications in media beyond newspapers of general circulation. There 
are accessibility limitations inherent in relying solely on any single 
media platform, whether print publications or electronic, for 
notification of Commission proceedings, and no single media platform is 
reasonably assured of reaching a general audience across varying 
geographical locations. Therefore, we revise Sec.  50.4(c)(1)(ii) to 
expand the publication requirements for applicant notifications beyond 
newspaper print publications. Specifically, we require that in addition 
to newspaper print publications, applicant notifications be published 
in other online or hard copy periodicals of general circulation serving 
the affected area, as appropriate. These notifications must also be 
submitted to any available county and municipal government online 
bulletin boards and other similar community resources.
    185. We also agree with Public Interest Organizations that the 
applicant's Pre-filing Notifications should include the website address 
for the Commission's Electric Transmission Facilities Permit Process 
pamphlet. Thus, we revise Sec.  50.4(c)(2)(i)(B) to adopt this 
requirement. However, we decline at this time to adopt Niskanen's 
recommendations to include certain information in the pamphlet. The

[[Page 46705]]

pamphlet will be updated to reflect the requirements of this final rule 
and will be posted to the Commission's public website when available.
    186. We agree with Impacted Landowners and SEIA that applicant 
notifications should be written to be readily understood by the public. 
We also agree with commenters that notifications should be provided in 
multiple languages. Therefore, we add a new provision in Sec.  
50.4(c)(1)(i)(C) to require applicants to mail project notifications in 
languages other than English under certain circumstances. Our approach 
is intended to ensure that applicants provide meaningful notification 
to people with limited English proficiency who are affected landowners 
or landowners within a quarter mile of the right-of-way.
    187. Under this new notification requirement in Sec.  
50.4(c)(1)(i)(C), applicants may be required to include written 
translations of the applicant's notifications to affected landowners 
and landowners with residences located within a quarter mile from the 
edge of the construction right-of-way for a proposed project. To 
determine whether written translations are required, applicants must 
identify the landowners' census block groups, ascertain whether any of 
the census block groups include people with limited English 
proficiency, and, for each census block group, identify the languages 
spoken by people with limited English proficiency. For each language 
identified in the census block group that accounts for five percent of 
households or 1,000 persons,\279\ whichever is less, applicants must 
include written translation of the applicant's notifications with the 
applicant's mailed notifications to all landowners entitled to 
notification within that census block group. The U.S. Census American 
Community Survey's 5-year estimates include the information needed to 
identify the number of limited English proficiency households, similar 
to the information collected for identifying environmental justice 
communities.
---------------------------------------------------------------------------

    \279\ The number of people with limited English proficiency 
within the census block group level may be estimated using the 
census tract's average household size.
---------------------------------------------------------------------------

    188. We retain the existing requirement that any Pre-filing 
Notification mailed to an affected landowner include a brief summary of 
the specific rights the landowner has in proceedings under the eminent 
domain laws of the relevant State. We decline commenters' suggestion 
that this notification should instead include a summary of Federal 
eminent domain law. Section 216(e)(1) of the FPA allows permit holders 
to bring an eminent domain proceeding in the appropriate court in the 
Federal district or the State in which the property is located.\280\ 
Section 216(e)(3) provides that the practice and procedure in any 
eminent domain proceeding in Federal district court must conform as 
nearly as practicable to the practice and procedure in a similar 
proceeding in the applicable State court.\281\ Thus, if an eminent 
domain proceeding is initiated in Federal district court, the court 
will determine the appropriate procedures for individual proceedings. 
For this reason, and because the rules governing eminent domain 
proceedings may vary by State, we find it most helpful for the Pre-
filing Notification required to be sent by the applicant to contain a 
brief summary of the landowner's rights under the eminent domain laws 
of the relevant State.
---------------------------------------------------------------------------

    \280\ 16 U.S.C. 824p(e)(1).
    \281\ Id. 824p(e)(3).
---------------------------------------------------------------------------

    189. We decline commenters' requests to adopt standardized language 
in applicant notifications under Sec.  50.4(c). Commission-issued 
notices in the pre-filing and application review processes will convey 
standardized information about the Commission's processes and identify 
applicable deadlines for comments and intervention. In addition, much 
of the information that Public Interest Organizations request be 
included in the standard notifications will be addressed via guidance 
or informational brochures, like in the Electric Transmission 
Facilities Permit Process pamphlet that applicants must provide with 
their notification of commencing the pre-filing process.
    190. We also note that Commission notices typically explain the 
role of and provide contact information for the Office of Public 
Participation, which can be a helpful resource for stakeholders who 
need assistance understanding how to participate in Commission matters, 
including stakeholders with environmental justice concerns. In 
addition, Commission staff issue separate letters to engage Indian 
Tribes, which typically contain the contact information for the 
Commission's Tribal Liaison, project manager, and assigned project 
archaeologist who will be most familiar with the project and able to 
address Tribal questions. These Commission notices and letters 
sufficiently provide landowners, Tribes, and stakeholders with 
opportunities and support for engagement.
    191. We decline Public Interest Organizations' and the Yurok 
Tribe's suggestions to modify Sec.  50.4(c)'s timing requirements with 
respect to mailing project notifications. The Commission carefully 
considered the timing and coordination for each notification in the 
Order No. 689 rulemaking proceeding and proposed no changes to the 
deadline for applicants to mail required notifications in the NOPR. We 
continue to find no changes are necessary. The Director's notice under 
Sec.  50.5(d) commences the pre-filing process for a project and 
triggers numerous additional applicant requirements (e.g., finalizing a 
Project Participation Plan, refining the mailing list for the Pre-
filing Notification, finalizing a contract with the selected third-
party contractor, and notifying permitting entities). Given the 
numerous obligations triggered by the commencement of the pre-filing 
process, we find it appropriate to allow applicants 14 calendar days 
from the Director's notice date to send the Pre-filing Notification. We 
believe that this will result in more accurate notifications.
    192. We decline CLF's and NESCOE's requests to modify Sec.  
50.4(c)(1) to require that project notifications must be mailed to 
``residents.'' As explained above in our discussion of the definition 
of ``affected landowner,'' we find that there are insufficient means to 
readily identify residents (e.g., renters/lessees), particularly across 
potentially hundreds of miles of transmission line. Accordingly, we 
will continue to require notifications based on the landowner 
identified in tax records. However, under Sec.  50.4(c)(1) as adopted 
herein, residents who are not identified in tax records may express 
interest in a project to be added to the applicant's mailing list as 
stakeholders so that they can receive project notifications.
    193. We agree with the Chickahominy Indian Tribe, Nansemond Indian 
Nation, Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe, as 
well as the Yurok Tribe, that applicants should include Tribes whose 
ancestral or current-day lands may be affected by a project in their 
required notifications, regardless of whether the Tribes are already 
involved in a project. Within the notification requirements of Sec.  
50.4(c)(1), we adopt a minor revision to the placement of ``Indian 
Tribe'' within the list of entities to be notified to remove 
applicability of the qualifier ``involved in the project'' to Indian 
Tribes. With this modification, applicants must notify Indian Tribes 
regardless of any prior involvement in the project.
    194. We disagree with ClearPath's and Niskanen's recommendations to 
modify

[[Page 46706]]

Sec.  50.4(c)(1) to remove reference to the terms ``all'' and ``any,'' 
respectively. Although Sec.  50.4(c)(1) requires the applicant to make 
a good faith effort to notify all listed entities,\282\ it is generally 
understood that project mailing lists will evolve throughout the pre-
filing process as additional entities learn about a project and express 
interest. During the pre-filing process, we expect applicants to make 
all reasonable efforts to ensure that interested stakeholders have been 
made aware of the proposed project. In addition, Sec.  50.4(c)(4), as 
proposed in the NOPR and adopted herein, requires applicants to make 
reasonable attempts to find the correct address and re-send the 
notification if it is returned as undeliverable.
---------------------------------------------------------------------------

    \282\ 18 CFR 50.4(c)(1).
---------------------------------------------------------------------------

    195. Regarding questions from ACP and ACEG about how the Commission 
will consider notification requirements in the instances of late route 
changes, we note that Sec.  50.4(c)(3), as proposed in the NOPR and 
adopted herein, provides that if, for any reason, a person or entity 
entitled to receive these project notifications has not yet been 
identified when the notifications are sent or published, the applicant 
must provide the required information at the time the person or entity 
is identified. This provision applies where new landowners are 
identified as ``affected landowners'' subject to route changes. The 
Commission addresses reopening of comment periods due to reroutes on a 
project-specific basis, generally to account for numerous factors 
(e.g., if new landowners are involved in the reroute, whether those 
landowners have been involved in the project to date, whether 
landowners requested the reroute on their property, where in the 
process a project is, and upcoming opportunities for landowner input). 
The Commission will issue revised notices with applicable comment 
periods when appropriate for a given reroute on a project.
c. Landowner Bill of Rights
i. NOPR Proposal
    196. As part of the Project Notification requirements, in the NOPR, 
the Commission proposed to add a requirement that any Pre-filing 
Notification mailed to an affected landowner also include a copy of a 
Commission document titled ``Landowner Bill of Rights in Federal Energy 
Regulatory Commission Electric Transmission Proceedings'' (Landowner 
Bill of Rights). The NOPR sought comment on a draft version of the 
Landowner Bill of Rights provided in the Appendix to the NOPR. The 
Commission explained that requiring the applicant to provide this 
document at the outset of the permitting process would help ensure that 
affected landowners are informed of their rights in dealings with the 
applicant, in Commission proceedings, and in eminent domain 
proceedings.
ii. Comments
    197. Pennsylvania Commission states that, regardless of whether 
simultaneous or consecutive review processes at the State and 
Commission occur, landowners are likely to be overwhelmed and confused 
about where and when to participate, particularly after receiving 
multiple notices for each process and, in some cases, State versions of 
a Landowner Bill of Rights in addition to the Commission's.\283\ Thus, 
instead of mandating mailing specifically the Commission's Landowner 
Bill of Rights, Pennsylvania Commission suggests establishing the 
Landowner Bill of Rights as a recommended framework and allowing 
applicants to adapt and modify the Landowner Bill of Rights, with 
encouraged coordination with the State, to have a single Landowner Bill 
of Rights for a project.\284\
---------------------------------------------------------------------------

    \283\ Pennsylvania Commission Comments at 8-10.
    \284\ Id. at 9-10.
---------------------------------------------------------------------------

    198. Public Interest Organizations and Niskanen suggest that the 
Commission amend the Landowner Bill of Rights to require applicants to 
negotiate with landowners in good faith early in the permitting process 
as a prerequisite for receiving eminent domain authority.\285\ Public 
Interest Organizations also ask that the Commission add language to the 
Landowner Bill of Rights stating that the applicant may also not 
misrepresent the status of discussions or negotiations between itself 
and landowners or any other party and must communicate respectfully, 
avoiding harassing, coercive, manipulative, or intimidating 
communications or high-pressure tactics.\286\
---------------------------------------------------------------------------

    \285\ Public Interest Organizations Comments at 40; Niskanen 
Comments at 15.
    \286\ Public Interest Organizations Comments at 40.
---------------------------------------------------------------------------

    199. Farm Bureaus note that the Landowner Bill of Rights does not 
require applicants to provide any information, but instead informs 
landowners of the ``right to access'' certain information concerning 
the applicant and project. Farm Bureaus state that the Landowner Bill 
of Rights should require the applicant to furnish this information 
rather than burden landowners with seeking it themselves.\287\
---------------------------------------------------------------------------

    \287\ Farm Bureaus Comments at 10.
---------------------------------------------------------------------------

    200. In addition, several commenters recommend changes to the 
Landowner Bill of Rights to better inform landowners about specific 
rights. Specifically, Public Interest Organizations and NESCOE suggest 
adding language explaining why compensation may be required, what 
eminent domain is, and how the Federal eminent domain process 
works.\288\ Impacted Landowners request the Commission add plain 
language to the Landowner Bill of Rights explaining that landowners are 
not required to negotiate easement agreements written by transmission 
line owners without advice from counsel.\289\ Public Interest 
Organizations and Farm Bureaus ask that the Landowner Bill of Rights 
clarify the difference between participation in the Commission's pre-
filing versus application phase and how landowners can participate in 
each process.\290\
---------------------------------------------------------------------------

    \288\ Public Interest Organizations Comments at 39; NESCOE 
Comments at 29-30.
    \289\ Impacted Landowners Comments at 22-23.
    \290\ Public Interest Organizations Comments at 40; Farm Bureaus 
Comments at 10.
---------------------------------------------------------------------------

    201. Public Interest Organizations and Niskanen ask that the 
Commission grant intervenor status to all landowners that comment in a 
proceeding or, in the alternative, explain in the Landowner Bill of 
Rights that affected landowners lose their right to challenge any 
Commission order or authorization of the project if they do not 
intervene in the Commission docket and become a party to the 
proceeding.\291\
---------------------------------------------------------------------------

    \291\ Public Interest Organizations Comments at 33 and 41; 
Niskanen Comments at 15-16.
---------------------------------------------------------------------------

iii. Commission Determination
    202. In this final rule, we adopt the NOPR proposal to require 
applicants to provide a copy of the Commission's Landowner Bill of 
Rights to affected landowners with their Pre-filing Notification. A 
final version of the Landowner Bill of Rights is attached to this final 
rule, with no changes from the draft version included in the NOPR 
except for the addition of a toll-free telephone number for the 
Commission's Office of Public Participation, and we will include an 
electronic copy on the Commission's public website for reference.
    203. We decline commenter suggestions to afford applicants 
flexibility to modify the Landowner Bill of Rights. The purpose of the 
Landowner Bill of Rights is to ensure that affected landowners are 
informed in a consistent manner of their rights in dealings with the 
applicant and in

[[Page 46707]]

Commission proceedings. Allowing applicants to develop their own 
document, as the Pennsylvania Commission suggests, could produce the 
uncertainty and confusion that the Landowner Bill of Rights seeks to 
avoid.
    204. We decline to amend the Landowner Bill of Rights to include 
requirements for applicants in their negotiations and interactions with 
landowners because we find such revisions unnecessary. The Landowner 
Bill of Rights is intended to inform landowners, in plain language, 
about landowner rights and about actions landowners can take in a 
Commission proceeding, but it does not establish requirements for 
applicants to follow. Refraining from certain misconduct in 
communications with landowners, avoiding misrepresenting the status of 
discussions or negotiations, and avoiding harassing, coercive, 
manipulative, or intimidating communications are factors the Commission 
may consider as part of its good faith efforts determinations.
    205. We disagree with Farm Bureaus' assumption that the Landowner 
Bill of Rights requires landowners to seek information. The Pre-filing 
and Application Notification requirements in Sec.  50.4(c) require the 
applicant to provide information to landowners, including about the 
location and schedule of the project and their rights. We believe that 
these requirements afford landowners ready access to central 
information about a project.
    206. We decline to modify the Landowner Bill of Rights to 
incorporate a summary of the eminent domain process. The eminent domain 
process may vary State to State and including generic language in the 
Landowner Bill of Rights that would be applicable across all States 
would be less useful than the summary of the eminent domain laws of the 
relevant State that applicants must include in the Pre-filing 
Notification that is sent by mail to affected landowners under Sec.  
50.4(c)(2)(ii)(C). Further, the Landowner Bill of Rights explains that 
landowners have the right to receive compensation if their land is 
necessary for construction of a proposed project and that the amount of 
compensation would be determined through a negotiated easement 
agreement or through an eminent domain proceeding in the appropriate 
Federal or State court.
    207. With respect to commenters' request that the Commission 
include language about landowners' rights in negotiating easements and 
hiring legal counsel, we note that the Landowner Bill of Rights already 
informs landowners of their rights to negotiate easement agreements, 
hire legal counsel, and hire their own appraiser or other professional 
to assist in any easement negotiations. Therefore, we find no need to 
modify the Landowner Bill of Rights on these topics.
    208. We also decline to include provisions distinguishing the pre-
filing and application review processes in the Landowner Bill of 
Rights. With the exception of filing a motion to intervene, which is 
clearly identified as an activity that may only occur after an 
application is filed, none of the other rights listed in the Landowner 
Bill of Rights are contingent on the project's phase.
    209. Finally, we decline to grant intervenor status to all 
landowners that comment in a proceeding. A landowner may not wish to 
intervene or become a party to the proceeding. Additionally, we find 
that our project notification requirements at Sec.  50.4(c)(2)(i), 
which require applicants to provide access to the Commission's Electric 
Transmission Facilities Permit Process pamphlet and information 
explaining when and how to intervene in a proceeding, will afford 
sufficient information about the steps to participate in a Commission 
proceeding and become an intervenor.
d. Office of Public Participation Involvement
i. NOPR Proposal
    210. In the NOPR, the Commission did not propose any changes to the 
role, function, or duties of the Commission's Office of Public 
Participation.
ii. Comments
    211. Environmental Law and Policy Center and CLF ask that the 
Commission direct its Office of Public Participation, Tribal Liaison, 
and Environmental Justice Liaison \292\ to develop best practices for 
facilitating stakeholder engagement that, at a minimum, would ensure 
notification to environmental justice communities affected by proposed 
projects; provide meaningful opportunities to participate, including 
opportunities for the public to provide written and oral comments to 
the Commission; provide resources and technical assistance, including 
plain language summaries and translated materials as needed; and 
provide environmental justice engagement recommendations on a project-
by-project basis that are tailored based on affected communities and 
anticipated environmental justice impacts.\293\ CLF also suggests that 
applicants be required to consult with the Office of Public 
Participation when developing both the Environmental Justice Public 
Engagement Plans and the Environmental justice resource report to help 
ensure that applicants adequately consider any impacts on environmental 
justice communities and conduct comprehensive outreach to environmental 
justice communities.\294\
---------------------------------------------------------------------------

    \292\ As explained above, Environmental Justice Liaison is a 
position that does not currently exist at the Commission. See supra 
note 268.
    \293\ Environmental Law and Policy Center Comments at 5; CLF 
Comments at 11.
    \294\ CLF Comments at 7-8.
---------------------------------------------------------------------------

    212. Public Interest Organizations recommend that the Office of 
Public Participation engage with any stakeholder that submits comments 
in a State proceeding to explain the Commission's pre-filing process 
and siting process.\295\ Additionally, Public Interest Organizations 
and the Yurok Tribe request that the Commission require applicants to 
file with the Commission any comments received in State-level 
proceedings.\296\ The Yurok Tribe also suggests that the Commission 
require applicants to provide the State commissions with copies of any 
comments submitted in the Commission's proceeding.
---------------------------------------------------------------------------

    \295\ Public Interest Organizations Comments at 15.
    \296\ Id. at 14; Yurok Tribe Comments at 27.
---------------------------------------------------------------------------

iii. Commission Determination
    213. We do not find it is necessary to have a requirement for 
applicants to engage with the Office of Public Participation when 
developing the Environmental Justice Public Engagement Plan or the 
Environmental justice resource report. The Office of Public 
Participation is able to engage with applicants regarding best 
practices for stakeholder communications and outreach activities, in 
general, including meaningful early engagement with potentially 
affected environmental justice communities. However, the Office of 
Public Participation can neither review nor comment on applicant drafts 
or documents in contested proceedings.
    214. With respect to the Office of Public Participation creating 
best practices on environmental justice engagement, we find that the 
Pre-filing and Application Notification requirements in Sec.  50.4(c) 
and Project Participation Plan requirements in Sec.  50.4(a), which 
would include the Environmental Justice Public Engagement Plan filing 
requirement we are adopting in this final rule, afford adequate 
notification of key information about the project, information about 
opportunities to participate in the pre-

[[Page 46708]]

filing process and any Commission proceeding, and address how 
applicants plan to accommodate people with limited English proficiency. 
These notifications and plans are tailored to the specific project and 
unique circumstances of any environmental justice communities that may 
be affected by a project and are the more appropriate means for 
Commission staff to provide feedback or support to an applicant in 
developing outreach efforts.
    215. We decline to adopt commenters' recommendations requiring the 
Office of Public Participation's involvement in State-level 
proceedings. The Office of Public Participation's role is to support 
stakeholders that have expressed interest in engaging in the 
Commission's processes, not other agency or State processes. 
Additionally, requiring the Office of Public Participation to engage 
with all stakeholders that provide comments in a State proceeding would 
be infeasible. Project notifications required in Sec.  50.4(c) and the 
Project Participation Plan required in Sec.  50.4(a) ensure that 
stakeholders have sufficient notification of the proposed project and 
opportunities to provide their views on the project during the pre-
filing and application review processes.
    216. We also decline to require that an applicant file with the 
Commission the comments submitted in a State-level proceeding or file 
with the relevant State commissions comments placed in the Commission's 
record. We do not presume that commenters intend to have their comment 
filed with the Federal and State entities without their permission.
e. Tribal Consultation Policy
i. NOPR Proposal
    217. In the NOPR, the Commission did not propose any changes to the 
Commission's Tribal consultation policy.\297\
---------------------------------------------------------------------------

    \297\ Order No. 635, 104 FERC ] 61,108, revised, Order No. 863, 
169 FERC ] 61,036. The policy statement is codified at 18 CFR 2.1c 
(2023).
---------------------------------------------------------------------------

ii. Comments
    218. The Yurok Tribe and Public Interest Organizations state that 
the Commission must adopt a stronger Tribal consultation policy.\298\ 
The Yurok Tribe also believes that the Commission should provide 
dedicated resources within the Office of Public Participation to 
support consultation with and enable participation by Tribes. The Yurok 
Tribe and Public Interest Organizations suggest that the Commission 
provide funding to support Tribal participation and intervenor 
compensation.\299\ The Yurok Tribe notes that the Inflation Reduction 
Act allocated $100 million to the Commission to assist in environmental 
reviews, including stakeholder engagement, and that these funds should 
go to support Tribal participation.
---------------------------------------------------------------------------

    \298\ Yurok Tribe Comments at 6-7 and 14-15; Public Interest 
Organizations Comments at 55-58.
    \299\ Yurok Tribe Comments at 19-20 and 37; Public Interest 
Organizations Comments at 58-60.
---------------------------------------------------------------------------

    219. To more fully meet the Commission's trust obligations, 
commenters urge the Commission to create a Tribal Advisory Committee to 
advise on all Commission interactions with Tribes and to recommend 
changes to Commission policies and establish a better relationship with 
Tribes.\300\ Similarly, these commenters ask that the Commission 
clarify and revise the role of the Commission's Tribal Liaison to be 
non-decisional, help facilitate the process to receive Tribal funds, 
support Tribal consultation and participation, and be located within 
the Commission's Office of Public Participation.\301\
---------------------------------------------------------------------------

    \300\ Yurok Tribe Comments at 20-21; Public Interest 
Organizations Comments at 63-64.
    \301\ Yurok Tribe Comments at 20-23; Public Interest 
Organizations Comments at 60-63.
---------------------------------------------------------------------------

    220. The Yurok Tribe suggests several changes to Commission Tribal 
consultation practices and recommends the adoption of a new Tribal 
Consultation Policy with opportunity for Tribes to review and comment 
on a draft of the policy.\302\ The Yurok Tribe states that Tribes 
should have an opportunity to comment on whether an action requires 
consultation and be allowed to initiate consultation if the Commission 
fails to begin consultation. The Yurok Tribe also recommends that 
Tribes be afforded an opportunity to have a pre-meeting with Commission 
staff prior to a consultation meeting to allow for clarifying 
questions. After a consultation meeting, the Yurok Tribe suggests that 
the Commission follow up with Tribes to confirm next steps, schedule 
additional meetings, and advise the Tribe of the results of 
consultation.
---------------------------------------------------------------------------

    \302\ Yurok Tribe Comments at 15-17.
---------------------------------------------------------------------------

iii. Commission Determination
    221. While we appreciate Public Interest Organizations' and the 
Yurok Tribe's comments on the distribution of dedicated resources to 
enable Tribal participation, the creation of a Tribal Advisory 
Committee, the role of the Commission's Tribal Liaison, and proposed 
revisions to the Commission's Tribal Consultation Policy are all 
related to broader Commission consultation practices across all project 
types, rather than requirements that would apply to an applicant under 
FPA section 216, and are therefore beyond the scope of this final rule.
    222. We also note that applicants are required to send a Pre-filing 
Notification to all Indian Tribes whose interest may be affected by the 
proposed project with initial project information and how to 
participate in the Commission's process. Commission staff also reaches 
out to potentially affected Tribes, initiates government-to-government 
consultation, and opens public comment periods as part of the review 
process. Tribes may use any of the available opportunities to comment 
on whether an action requires consultation and may request to initiate 
consultation at any time. As such, we find no changes to the 
Commission's regulations are necessary.
4. Section 50.5--Pre-Filing Procedures
a. Congestion-Related Information
i. NOPR Proposal
    223. Section 50.5 describes the required pre-filing procedures for 
applicants seeking a permit under FPA section 216. Section 50.5(c) 
describes the information that an applicant must provide in the pre-
filing request. In the NOPR, the Commission proposed to require that 
any pre-filing request include a detailed description of how the 
proposed project will reduce capacity constraints and congestion on the 
transmission system (proposed Sec.  50.5(c)(8)) and, as described 
above, a statement indicating whether an applicant intends to comply 
with the Applicant Code of Conduct (proposed Sec.  50.5(c)(9)).
    224. Section 50.5(e) describes the information that an applicant 
must provide once the Director of the Office of Energy Projects has 
issued a notice commencing the pre-filing process, and the respective 
deadlines for filing such information. In the NOPR, the Commission 
proposed clarifications to Sec.  50.5(e)(3) and (4) to ensure 
consistency with the project notification requirements in Sec.  
50.4(c). The Commission also proposed to require an applicant to file 
congestion-related information earlier in the Commission's permitting 
process to provide sufficient time for Commission staff to evaluate the 
adequacy of information needed to conduct the required analyses under 
FPA section 216(b)(4).\303\ Specifically, within 30 days of the notice 
commencing the pre-filing process, the

[[Page 46709]]

Commission proposed to require an applicant to file a draft version of 
Exhibit H, System analysis data, required by Sec.  50.7 (proposed Sec.  
50.5(e)(9)). In addition to a draft version of Exhibit H, the 
Commission also proposed to require an applicant to file additional 
supporting information showing how the proposed project will reduce 
capacity constraints and congestion on the transmission system, such as 
system impact study reports, relevant regional transmission plans, and, 
if applicable, expert witness testimony and other relevant information 
submitted with the State application(s) (proposed Sec.  50.5(e)(7) and 
(8)).
---------------------------------------------------------------------------

    \303\ FPA section 216(b)(4) requires the Commission to find that 
the proposed construction or modification of transmission facilities 
will significantly reduce transmission congestion in interstate 
commerce and protects or benefits consumers. 16 U.S.C. 824p(b)(4).
---------------------------------------------------------------------------

ii. Comments
    225. ACEG suggests that the requirement to submit a full system 
impact report early in the pre-filing process is unnecessary and 
unreasonable.\304\ It argues that the system impact study can take more 
than a year to complete and that the level of detail required may not 
be available at the early pre-filing stage.\305\ Accordingly, ACEG 
recommends that the Commission revise this requirement so that an 
applicant need only provide a status report on the system impact study 
during pre-filing, as opposed to the study itself.\306\ ACEG believes 
this would likely achieve the Commission's goal of ensuring appropriate 
consideration of the proposed project's impact on the safety and 
reliability of the transmission system while also avoiding unnecessary 
delays.\307\ Additionally, ACEG states that the proposed requirements 
that an applicant file, early in the pre-filing process, a full system 
impact study report (Sec.  50.5(e)(8)) and a draft version of Exhibit H 
(Sec.  50.5(e)(9)) are duplicative. ACEG recommends deleting paragraph 
(e)(9) and specifying in paragraph (e)(8) that a status report, rather 
than a full report of the system impact study, is sufficient.\308\
---------------------------------------------------------------------------

    \304\ ACEG Comments at 10.
    \305\ Id. at 10.
    \306\ Id. at 11.
    \307\ Id.
    \308\ Id. at 11-12.
---------------------------------------------------------------------------

    226. Likewise, Impacted Landowners state that it is unclear who is 
responsible for preparing the detailed description of how the proposed 
project will reduce capacity constraints and congestion on the 
transmission system that, as proposed in the NOPR, would be submitted 
as part of an application (proposed Exhibit H in Sec.  
50.7(h)(3)).\309\ Impacted Landowners recommend that this information 
be verified by independent, impartial entities with expertise in 
transmission planning, such as Regional Transmission Organizations/
Independent System Operators (RTO/ISO).\310\ They urge the Commission 
to ``make a clear determination of who has authority to determine these 
factors [for transmission capacity and congestion determinations] and 
apply them evenly across the board.'' \311\
---------------------------------------------------------------------------

    \309\ Impacted Landowners Comments at 11-13.
    \310\ Id. at 11-12.
    \311\ Id. at 13.
---------------------------------------------------------------------------

iii. Commission Determination
    227. We adopt the NOPR proposal for Sec.  50.5 in this final rule, 
with the following modifications in response to commenter feedback. 
With regard specifically to the congestion supporting information 
requirements detailed in proposed Sec.  50.5(e)(8) and (e)(9), we are 
modifying the timeline associated with the submission of this 
information so that applicants will have a greater degree of 
flexibility as they navigate the pre-filing process.
    228. We disagree with ACEG that the requirement that an applicant 
submit a full system impact study report during pre-filing is 
unnecessary and unreasonable. Upon entry into the Commission's pre-
filing process, we expect that most applicants will have already 
completed a system impact study for the proposed project to identify 
the constraints, mitigation, and transmission upgrades that will 
significantly reduce transmission congestion. However, the Commission 
does not intend for completion of the study report to be a barrier to 
applicants that otherwise would be ready to enter into and benefit from 
the pre-filing process. Therefore, applicants who have already 
completed a full system impact study are required to submit the full 
system impact study report at initiation of pre-filing; however, 
applicants who have not completed the study report can submit a status 
report of the system impact study instead of the full report. 
Commission staff will review this status report and communicate with 
the applicant to establish a submission deadline for the full system 
impact study report during the pre-filing process.
    229. Additionally, the draft version of Exhibit H is not 
duplicative of the system impact study report, but rather complementary 
and essential to contextualizing and verifying the report's findings. 
The system impact study report contains the narrative approach to the 
modeling and conclusions, while draft Exhibit H requires the actual 
power flow cases utilized as inputs into the report. Draft Exhibit H 
also includes system analysis data, such as model input files and the 
assumptions, criteria, and guidelines upon which the models are based 
and which take into consideration transmission facility loading 
(planned and forecasted forced outages). Commission staff can use draft 
Exhibit H data to replicate and validate the models and assumptions in 
the applicant-provided system impact study report. However, as draft 
Exhibit H is not useful to the Commission until the full system impact 
study report is submitted, an applicant must submit draft Exhibit H 
within 30 days of submission of the full system impact study report and 
not within 30 days of the notice commencing the pre-filing process. The 
pre-filing process will not be concluded until the full system impact 
study report and draft Exhibit H is submitted and staff has had 
sufficient time to review and validate the report and data.
    230. In response to requests for clarification regarding which 
entity may prepare information under Sec.  50.7(h)(3), we clarify that 
applicants are responsible for submitting to the Commission the 
requisite pre-filing materials, including the detailed description of 
how the proposed project will address transmission capacity constraints 
and congestion. We decline to limit the information that may be 
submitted to support a finding under FPA section 216(b)(4) based upon 
who prepared the information, as a wide range of information from 
different sources may be relevant depending on the factual 
circumstances. Commission staff will review all submitted information 
and request additional information, as necessary, to ensure that any 
filed application is complete and contains sufficient information for 
the Commission to determine whether the proposed project will 
significantly reduce transmission congestion in interstate commerce and 
protects or benefits consumers, as required by FPA section 216(b)(4).
b. Regional Transmission Planning Information
i. NOPR Proposal
    231. Proposed Sec.  50.5(c)(8) would require an applicant to 
include in its pre-filing request a detailed description of how the 
proposed project will reduce capacity constraints and congestion on the 
transmission system. In addition, within 30 days of the notice 
commencing the pre-filing process, proposed Sec.  50.5(e)(7)(i) would 
require an applicant to submit the most recent

[[Page 46710]]

regional transmission plan for each transmission planning region that 
would be crossed by the proposed project. Finally, under proposed 
Exhibit H in Sec.  50.7, any application must include an analysis of 
how the project will: improve system reliability over the long and 
short-term; impact long-term regional transmission expansion plans; 
impact congestion on the applicant's entire system and neighboring 
systems; and incorporate any advanced technology design features, if 
applicable.\312\
---------------------------------------------------------------------------

    \312\ NOPR, 181 FERC ] 61,205 at PP 41, 45.
---------------------------------------------------------------------------

ii. Comments
    232. Joint Consumer Advocates request that the Commission require 
an applicant to explain in its pre-filing consultation whether an RTO 
or ISO has identified the project as necessary to address a need 
identified through a regional transmission planning process, arguing 
that this will ensure projects submitted through the FPA section 216 
process are limited to those necessary to address congestion 
issues.\313\ Joint Consumer Advocates also ask the Commission to revise 
Sec.  50.5(c) to require that an applicant's pre-filing request address 
the proposed project's cost effectiveness (i.e., the project's benefits 
and costs to the consumer).\314\
---------------------------------------------------------------------------

    \313\ Joint Consumer Advocates Comments at 13.
    \314\ Id. at 13.
---------------------------------------------------------------------------

    233. Relatedly, EEI states that the Commission should require 
applicants to demonstrate during pre-filing that the project meets a 
clear need and is not duplicative of other proposed or existing 
transmission projects.\315\ EEI further recommends that the Commission 
consult with the relevant transmission planning entities to ensure that 
the proposed project supports system reliability.\316\
---------------------------------------------------------------------------

    \315\ EEI Comments at 8.
    \316\ Id. at 8.
---------------------------------------------------------------------------

iii. Commission Determination
    234. We adopt the NOPR proposal concerning regional transmission 
planning information in Sec.  50.5(e)(7) and Sec.  50.5(c), with minor 
terminology clarifications, given that the relative benefits and costs 
of a project can take a variety of forms. Further, we clarify that the 
requested analysis in Exhibit H in Sec.  50.7 of how the proposed 
project will impact congestion on the system where it will be located 
as well as neighboring systems will apply to neighboring systems only 
when relevant to the individual proposed project.
    235. We decline commenters' requests to require an applicant to 
explain in the pre-filing consultation whether an RTO or ISO has 
identified the project as necessary to address a need identified in a 
regional transmission planning process. While we expect that, in many 
cases, an applicant may indicate in its pre-filing submissions whether 
the proposed transmission project has or has not been identified as 
necessary to meet a need identified by a regional transmission planning 
process, we do not find it necessary to revise the regulations to 
specify that an applicant must provide this information during the 
initial consultation. Additionally, Sec.  50.5(e)(7)(i) requires an 
applicant to submit regional transmission plans, and this information 
will likely provide insight into whether a project was deemed necessary 
to meet a regional need. We further note that a proposed transmission 
project may not always be identified by an RTO or ISO through its 
regional transmission planning process, or included in a regional 
transmission plan, such as a merchant transmission project. In such 
circumstances, the applicant must nevertheless demonstrate early in the 
pre-filing process how the proposed project will reduce capacity 
constraints and congestion on the transmission system, as required 
under Sec.  50.5(c)(8) and (e)(7).
    236. We similarly decline a request to require under Sec.  50.5(c) 
submission of specific information regarding the proposed project's 
cost-effectiveness. Under Sec.  50.6(f), an applicant is required to 
include a demonstration that the proposed facility meets each of the 
statutory standards under section FPA section 216(b)(2)-(6) for the 
Commission to issue a permit, including the requirement under section 
216(b)(4) that a proposed project ``protects or benefits consumers.'' 
While evidence related to the project's cost-effectiveness would be 
relevant to the Commission's consideration of the statutory standards 
under FPA section 216(b), information about the relative benefits and 
costs of a project could take a variety of forms. Accordingly, we 
decline to modify Sec.  50.5 to require submission of particularized 
information, and assessment of the adequacy of information to 
demonstrate the statutory standards under section FPA 216(b) will occur 
on a case-by-case basis.
    237. We do not find it necessary to codify a process for consulting 
with relevant transmission planning entities to ensure that a proposed 
project supports system reliability. As previously stated, we agree 
that determinations of an independent entity, such as an RTO or ISO, 
should be afforded due weight in the Commission's assessment of whether 
a particular project is needed to protect or benefit consumers.\317\ 
Therefore, we will consider any such independent determinations as a 
factor, along with all other relevant factors, in determining whether 
the statutory criteria have been met.
---------------------------------------------------------------------------

    \317\ Order No. 689, 117 FERC ] 61,202 at P 44.
---------------------------------------------------------------------------

c. Existing Rights-of-Way Information
i. NOPR Proposal
    238. The Commission did not propose any requirements related to 
rights-of-way data or analysis under Sec.  50.5.
ii. Comments
    239. Rail Electrification Council and Impacted Landowners request 
that, as part of the pre-filing submittals required by Sec.  50.5, 
applicants be required to provide information related to the 
consideration, availability, and use of railroad rights-of-way or any 
other relevant existing rights-of-way to site all or a portion of a 
project.\318\
---------------------------------------------------------------------------

    \318\ Rail Electrification Council Comments at 9-12; Impacted 
Landowners Reply Comments at 8.
---------------------------------------------------------------------------

iii. Commission Determination
    240. We decline to modify Sec.  50.5 to require submission of 
additional information about the consideration and availability of 
existing rights-of-way. An applicant is already required to identify 
certain information about the use of existing-rights-of-way as part of 
the resource reports that applicants must submit in draft form during 
the pre-filing process. Specifically, in the Land use, recreation, and 
aesthetics resource report discussed further below, applicants must 
identify where construction or permanent rights-of-way will be adjacent 
or overlap existing rights-of-way (proposed Sec.  380.16(l)(1)). 
Additionally, in the Alternatives resource report discussed further 
below, applicants must submit information on the consideration of 
alternatives to the proposed project, including their relationship to 
existing rights-of-way.
d. State Permitting Information
i. NOPR Proposal
    241. The Commission's existing regulations in Sec.  50.5(e)(3)(iii) 
require applicants to notify permitting entities \319\ and request 
information on material not required by the Commission's resource 
reports under Sec.  380.16 that permitting entities may require to 
reach a decision on the proposed project. The NOPR proposed

[[Page 46711]]

to redesignate paragraph (e)(3)(iii) as (e)(3)(ii) but made no changes 
to the substance of this existing requirement.
---------------------------------------------------------------------------

    \319\ As proposed in the NOPR and adopted herein, the term 
permitting entity means any Federal or State agency, Indian Tribe, 
or multistate entity that is responsible for issuing separate 
authorizations under Federal law that are required to construct 
electric transmission facilities in a National Corridor.
---------------------------------------------------------------------------

ii. Comments
    242. Joint Consumer Advocates request that applicants be required, 
as part of the initial consultation meeting under Sec.  50.5(b), to 
identify any differences between the filing requirements for the 
Commission and applicable States, and then provide any additional 
information required in the State process during the pre-filing 
process.\320\
---------------------------------------------------------------------------

    \320\ Joint Consumer Advocates Comments at 10-11.
---------------------------------------------------------------------------

    243. Joint Consumer Advocates also request that the monthly status 
reports required under Sec.  50.5(e)(11) include details on the 
associated State(s) permitting proceeding(s) and that stakeholders be 
allowed to review the monthly status reports and, if necessary, file 
comments with the Commission.\321\ Joint Consumer Advocates believe 
this would allow the Commission to determine if an applicant is fully 
engaged in the State permitting proceeding.
---------------------------------------------------------------------------

    \321\ Id. at 10.
---------------------------------------------------------------------------

iii. Commission Determination
    244. We decline to modify Sec.  50.5 to require submission of 
information required under State law. The initial consultation meeting 
and pre-filing request are initial steps to enter the pre-filing 
process and are intended to introduce a project to Commission staff and 
ensure applicants have sufficient information or project development to 
begin engaging with Commission staff. We do not find it necessary to 
modify Sec.  50.5 to require submission of information that is 
unnecessary for that purpose, and which may or may not be relevant to 
Commission determinations under FPA section 216(b). Any entity, 
including a State, may file copies of information considered in a 
related State proceeding for consideration in the Commission's 
proceeding.
    245. Similarly, we decline to modify the monthly status report 
requirements in Sec.  50.5(e)(11) because we find the requested changes 
unnecessary. The monthly status reports already require applicants to 
detail the applicant's project activities, agency and Tribal meetings, 
and updates on the status of other required permits or authorizations. 
The regulations also require that the monthly status reports be filed 
with the Commission, and therefore will be available for stakeholders 
to review.
5. Section 50.6--General Content of Applications
a. NOPR Proposal
    246. Section 50.6 describes the information that must be provided 
as part of an application for a permit under FPA section 216. In the 
NOPR, the Commission proposed to revise Sec.  50.6(c) to update certain 
terminology for clarity (e.g., deleting origin and termination points 
and replacing those terms with point of receipt and point of delivery, 
respectively). The Commission also proposed to revise Sec.  50.6(d) to 
specify that verification that the proposed route lies within a DOE-
designated National Corridor must include the date of designation.
    247. Under existing Sec.  50.6(e), each application must also 
demonstrate that one of the jurisdictional bases set forth in FPA 
section 216(b)(1) applies to the proposed facilities. As discussed 
above, the NOPR proposed revisions to Sec. Sec.  50.6(e)(1) and (3) to 
ensure that the Commission's regulatory text tracks the IIJA's 
amendments to FPA sections 216(b)(1)(A) and (C), respectively.\322\
---------------------------------------------------------------------------

    \322\ Supra P 15.
---------------------------------------------------------------------------

    248. In addition, existing Sec.  50.6(f) provides that each 
application must demonstrate that the proposed facilities meet the 
statutory criteria in FPA sections 216(b)(2) through (6), including, as 
relevant here, that the proposed construction or modification is 
consistent with the public interest. The NOPR did not propose any 
changes to Sec.  50.6(f).
b. Comments
    249. Several commenters ask the Commission to clarify how it would 
determine whether the proposed facilities are consistent with the 
public interest, as required by FPA section 216(b)(3).\323\ North 
Carolina Commission and Staff urge the Commission to explicitly require 
applicants to demonstrate, either in pre-filing or in the application, 
that the proposed project serves the public interest.\324\ For example, 
North Carolina Commission and Staff provide a list of public interest 
criteria that, in its view, applicants should be required to 
demonstrate, including that the project's expected benefits to 
ratepayers are roughly commensurate with its costs; that consumers are 
protected from risks of project abandonment; that the project is 
consistent with system needs as demonstrated in Commission-mandated 
planning processes and, if applicable, State integrated resource plans; 
that the project is preferable to reasonably available alternatives 
that would reduce congestion (e.g., additional generation, non-wires 
alternatives, and other less-intrusive or less-costly transmission 
projects); and that the project will enhance reliability.\325\
---------------------------------------------------------------------------

    \323\ E.g., North Carolina Commission and Staff Comments at 12-
15; Sabin Center Comments at 2, 5; Yurok Tribe Comments at 9-13.
    \324\ North Carolina Commission and Staff Comments at 13.
    \325\ Id. at 14.
---------------------------------------------------------------------------

    250. The Yurok Tribe states that the public interest standard under 
FPA section 216(b)(3) requires the Commission to consider, minimize, 
and mitigate impacts on Tribal resources.\326\ The Yurok Tribe urges 
the Commission to adopt a presumption that projects denied by States on 
the basis of adverse Tribal impacts are not in the public 
interest.\327\
---------------------------------------------------------------------------

    \326\ Yurok Tribe Comments at 9-12.
    \327\ Id. at 12-13.
---------------------------------------------------------------------------

    251. Texas Commission states that there is no requirement that a 
Federal application include a State's final order denying an 
application and argues that it would be inefficient and burdensome for 
the States to have to recapitulate the entirety of its reasoning for 
denying an application in its comments in the Federal proceeding. 
Therefore, Texas Commission requests that the Commission expressly 
require that an application filed under FPA section 216(b)(1)(C)(iii) 
include a copy of the State's final and non-appealable order denying 
approval of the application.\328\ Further, Texas Commission requests 
that the Commission adopt a policy that, upon request of a State 
commission or the applicant, the record in the Commission's proceeding 
include the record in the State proceeding.\329\
---------------------------------------------------------------------------

    \328\ Texas Commission Comments at 13.
    \329\ Texas Commission Comments at 14.
---------------------------------------------------------------------------

c. Commission Determination
    252. This final rule adopts the revisions to Sec.  50.6 as proposed 
in the NOPR. We decline to further revise this section based on 
commenters' suggestions, as discussed below.
    253. Consistent with the Commission's position in Order No. 689, we 
decline to adopt an exclusive list of factors or a bright-line test to 
determine whether a project meets the statutory criteria for issuing a 
permit in FPA sections 216(b)(2) through (6), including the requirement 
to demonstrate that a proposed project is consistent with the public 
interest.\330\ As the Commission explained in Order No. 689, in 
reviewing a proposed project, the Commission will consider all relevant 
factors presented on a case-by-case basis and balance the public

[[Page 46712]]

benefits against the potential adverse consequences. The Commission 
will also conduct an independent environmental analysis of the project 
as required by NEPA, including reasonable alternatives to the proposed 
project. The Commission will review the proposed project and determine 
if it reduces transmission congestion and if it will protect or benefit 
consumers. The Commission will also consider the impact that the 
proposed facility will have on the existing transmission grid and the 
reliability of the system.
---------------------------------------------------------------------------

    \330\ Order No. 689, 117 FERC ] 61,202 at P 41.
---------------------------------------------------------------------------

    254. The Commission will also consider the adverse effects the 
proposed facilities will have on Tribes, landowners, and local 
communities. After evaluating the entire record of the proceeding and 
due consideration of the issues raised, the Commission will determine 
if the proposed project meets the criteria in FPA section 216(b). The 
Commission's review of a proposed project will be a flexible balancing 
during which it will weigh the factors presented in the project 
proceeding. The Commission will also impose appropriate conditions 
necessary to mitigate adverse effects on the relevant interests from 
the construction and operation of a proposed project and will approve 
the project only where the public benefits to be achieved from the 
project outweigh the adverse effects.
    255. Regarding Texas Commission's request that an application filed 
under FPA section 216(b)(1)(C)(iii) include a copy of the State's final 
and non-appealable denial order, the Commission, in revised Sec.  
50.6(e)(3)(iii), requires an applicant to provide evidence that a State 
commission, or other entity that has the authority to approve the 
siting of facilities, has denied an application. In circumstances where 
a State denial triggers the Commission's jurisdiction, we expect that 
most applicants would file a copy of the State's denial order as this 
would likely be the best evidence that the State had denied the 
applicant's siting application. If an applicant does not submit to the 
Commission a copy of the State's denial order, the State may choose to 
file a copy as part of its comments on the application or Commission 
staff may direct the applicant to file it. Therefore, we do not believe 
that the requested change to the Commission's regulations is necessary.
    256. We also decline to adopt a policy that the State record be 
incorporated into the record of the Commission's siting proceeding upon 
a State commission's or applicant's request. To the extent that the 
Commission may find certain elements of the State siting proceeding 
useful in its decision-making process, it will request this 
information, as needed, on a case-by-case basis. We do not believe that 
incorporating the State record in its entirety into the Commission's 
record as a general rule is necessary as it would require the 
submission and review of information that may not be relevant.
6. Section 50.7--Application Exhibits
a. NOPR Proposal
    257. Section 50.7 identifies the exhibits that applicants must file 
with an application and describes the technical data that must be 
provided in each exhibit. Section 50.7(g) requires each applicant to 
submit Exhibit G--Engineering data, which must include a detailed 
project description. In the NOPR, the Commission proposed revisions to 
ensure that the project description includes points of receipt and 
delivery (Sec.  50.7(g)(1)(i)), line design features that minimize 
audible corona noise during rain or fog (Sec.  50.7(g)(1)(vi)), and 
overhead and underground structures (Sec.  50.7(g)(2)(ii)).
    258. The Commission also proposed revisions to Sec.  50.7(h), which 
describes the requirements for Exhibit H--System analysis data. 
Specifically, in the NOPR, the Commission proposed to: (1) require the 
analysis to include project impacts on transmission capacity 
constraints (Sec.  50.7(h)(1)); (2) clarify that the analysis must 
include steady-state, short-circuit, and dynamic power flow cases, as 
applicable, and consider planned and forecasted forced outage rate for 
generation and transmission and generation dispatch scenarios (Sec.  
50.7(h)(2)); and (3) require the analysis to identify how the proposed 
project will affect congestion on neighboring transmission systems 
(Sec.  50.7(h)(3)).
b. Comments
    259. ACEG recommends that the Commission modify Sec.  50.7(g)(8) to 
clarify that the relevant information ``may be provided through the 
state filing process,'' i.e., through the filing of an application with 
the State.\331\
---------------------------------------------------------------------------

    \331\ ACEG Comments at 13.
---------------------------------------------------------------------------

c. Commission Determination
    260. This final rule adopts the revisions to Sec.  50.7 as proposed 
in the NOPR. This information will enable Commission staff to evaluate 
whether the proposed facilities would significantly reduce transmission 
congestion and protect or benefit consumers, as required by section 
216(b)(4). We note that applicants may also file additional information 
to contextualize the required analyses. We decline to revise Sec.  
50.7(g), as ACEG suggests, to clarify that the information required 
under Sec.  50.7(g)(8) may be provided through the State filing 
process. Section 50.7(g)(8) directs an applicant to include any other 
engineering data or information identified as a minimum requirement for 
the siting of a transmission line in the State in which the facility 
will be located as part of its Exhibit G filing. We interpret ACEG's 
recommendation to mean that the Commission rely on information provided 
by an applicant through a separate State filing process rather than 
requiring the applicant to identify and file with the Commission any 
other information identified by the State as a minimum siting 
requirement. While in many cases an application filed with the State 
would likely include the necessary information to satisfy Sec.  
50.7(g)(8), this may not always be the case. Moreover, we find it is 
necessary that any additional engineering information that the State 
identifies as a minimum siting requirement be identified in Exhibit G 
and filed as part of the Commission record.
7. Section 50.11--General Permit Conditions
a. NOPR Proposal
    261. Section 50.11 lists the general conditions that would apply to 
any permit issued under part 50 of the Commission's regulations. In the 
NOPR, the Commission proposed to clarify Sec.  50.11(a) and (b) and 
proposed to add language to Sec.  50.11(d) that would, under certain 
circumstances and for a limited time, preclude the issuance of 
authorizations to proceed with construction of transmission facilities 
authorized under FPA section 216 while requests for rehearing of orders 
issuing permits remain pending before the Commission.\332\ The 
Commission explained that the proposed addition, which mirrors a 
regulation that the Commission previously adopted in the natural gas 
pipeline context,\333\ would ensure that construction of approved 
transmission facilities does not begin during the 30-day rehearing 
period and, if a qualifying rehearing request is filed, until that 
request is no longer pending before the Commission, the record of the 
proceeding is filed with the court of appeals, or 90 days has elapsed 
since the rehearing request was deemed

[[Page 46713]]

denied by operation of law.\334\ The Commission stated that this 
revision is intended to balance the Commission's commitment to 
expeditiously respond to parties' concerns in comprehensive orders on 
rehearing and the serious concerns posed by the possibility of 
construction proceeding prior to the completion of Commission 
review.\335\
---------------------------------------------------------------------------

    \332\ NOPR, 181 FERC ] 61,205 at PP 46-47.
    \333\ See Limiting Authorizations to Proceed with Construction 
Activities Pending Rehearing, Order No. 871, 85 FR 40113 (July 6, 
2020), 171 FERC ] 61,201 (2020), order on reh'g, Order No. 871-B, 86 
FR 26150 (May 5, 2021), 175 FERC ] 61,098, order on reh'g, Order No. 
871-C, 176 FERC ] 61,062 (2021).
    \334\ NOPR, 181 FERC ] 61,205 at P 47.
    \335\ Id.
---------------------------------------------------------------------------

b. Comments
    262. Chamber of Commerce, American Chemistry Council, and ClearPath 
disagree with the proposed revisions to Sec.  50.11. American Chemistry 
Council states that the provision would delay action on needed 
investment.\336\ Similarly, ClearPath argues that projects with a 
likelihood of approval following a rehearing process should be timely 
developed and project developers should bear the risk of commencing 
construction while a rehearing request is pending.\337\ Chamber of 
Commerce asserts that delaying the effectiveness of a final Commission 
order pending rehearing is inconsistent with the FPA's provision 
stating that the filing of an application for rehearing does not 
operate as a stay of the Commission's order.\338\
---------------------------------------------------------------------------

    \336\ American Chemistry Council Comments at 4.
    \337\ ClearPath Comments at 6.
    \338\ Chamber of Commerce Comments at 6 (citing 16 U.S.C. 
825l(c)).
---------------------------------------------------------------------------

    263. On the other hand, CATF, EDF, and Public Interest 
Organizations support the proposed addition to Sec.  50.11(d).\339\ 
CATF believes that holding construction pending rehearing to resolve 
challenges to project construction and need builds trust in the 
permitting process.\340\ While Public Interest Organizations agree with 
the requirement in Sec.  50.11(d), they recommend that the Commission 
clarify that, before issuing a permit, the Commission will ensure that 
the applicant has obtained all necessary Federal and State permits and 
not authorize any activities that would take private property or alter 
the environment.\341\
---------------------------------------------------------------------------

    \339\ CATF Comments at 12; EDF Comments at 15; Public Interest 
Organizations Comments at 139.
    \340\ CATF Comments at 12.
    \341\ Public Interest Organizations Comments at 139.
---------------------------------------------------------------------------

c. Commission Determination
    264. We adopt the revisions to Sec.  50.11 as proposed in the NOPR. 
We are not persuaded by arguments that precluding issuance of 
authorizations to proceed with construction of transmission facilities 
during certain limited periods of time would result in undue delay of 
needed infrastructure development. We are committed to encouraging the 
development of needed transmission infrastructure and to minimizing the 
risk of delays. Nonetheless, we also consider the interest in 
expeditiously responding to parties' concerns on rehearing and the 
serious concerns posed by the possibility of construction commencing 
prior to the completion of agency review, including the potential for 
irreparable harm to property interests or the environment.\342\ The 
purpose of the revision is to preclude construction during the period 
the Commission may act on rehearing under the defined circumstances and 
for a limited period of time, such that construction does not commence 
before the Commission has completed its decision-making process. The 
rehearing process serves as a mechanism for the Commission to carefully 
consider the arguments presented, in order to resolve disputes or bring 
its expertise to bear on complex, technical matters before they are 
potentially presented to the courts.\343\ Further, it is correct that 
section 313(c) of the FPA states that the filing of a rehearing request 
does not stay a Commission order. We believe by exercising our 
discretion to add language to Sec.  50.11(d), we are addressing the 
significant fairness and due process concerns that could arise if the 
Commission authorized a developer to commence construction before the 
Commission has finalized its proceeding and an aggrieved party can seek 
court review of a Commission decision.\344\ Any incremental delay or 
uncertainty created by this provision is acceptable given the benefits 
that it provides. Moreover, we note that the Commission has previously 
implemented this policy in the context of natural gas pipeline 
authorizations, with no deleterious effects of which we are aware.
---------------------------------------------------------------------------

    \342\ See Order No. 871, 171 FERC ] 61,201 at P 11.
    \343\ Id. P 9.
    \344\ See Order No. 871-B, 175 FERC ] 61,098 at P 49.
---------------------------------------------------------------------------

8. Clarifying Revisions to 18 CFR Part 50
    265. In addition to the revisions discussed above, the Commission 
proposed minor, non-substantive edits throughout part 50 of the 
regulations. This final rule adopts the proposed revisions and makes 
additional minor edits, which are intended to clarify or streamline 
existing requirements, to correct grammatical errors and cross-
references, and to maintain consistency. In addition, this final rule 
revises Sec.  50.5(c)(6) to require that an applicant include as part 
of its pre-filing request proposals for all prospective third-party 
contractors instead of at least three proposals. This change is 
consistent with the Commission's current practice for the review of 
third-party contractors to assist Commission staff with preparing 
environmental documents for natural gas and hydropower 
proceedings.\345\
---------------------------------------------------------------------------

    \345\ See FERC, Handbook for Using Third-Party Contractors to 
Prepare Environmental Documents (July 2022), https://www.ferc.gov/media/handbook-using-third-party-contractors-prepare-environmental-documents.
---------------------------------------------------------------------------

E. Additional Considerations Raised by Commenters
    266. The Commission received a number of comments on topics that 
were not directly implicated by the NOPR's proposed changes to part 50 
of the Commission's regulations. Those comments and our determinations 
are discussed in this section. We find no need to modify the final rule 
in response to these comments, as further discussed below.
1. Grid-Enhancing Technologies
a. Comments
    267. California Commission states that the Commission's siting 
process should consider non-wire alternatives that are cost effective, 
noting that these types of analyses are required in California prior to 
the issuance of Certificates of Public Convenience and Necessity.\346\ 
Environmental Law & Policy Center agrees, contending that requiring the 
consideration of grid-enhancing technologies and other advanced 
technologies in the transmission planning and siting processes would 
remedy a deficiency in the NOPR of an arbitrary line drawn between 
wires and non-wires solutions.\347\ Further, Environmental Law & Policy 
Center suggests that consideration of grid-enhancing technologies and 
advanced transmission technologies would help address stakeholder 
concerns commonly associated with large infrastructure development 
(i.e., siting conflicts, visual impacts, habitat loss, and 
environmental justice concerns) because it can reduce the footprint of 
a transmission project.\348\
---------------------------------------------------------------------------

    \346\ California Commission Comments at 4.
    \347\ Environmental Law & Policy Center Reply Comments at 6-7 
(citing California Commission Comments at 4).
    \348\ Environmental Law & Policy Center Reply Comments at 6-7.
---------------------------------------------------------------------------

b. Commission Determination
    268. We find that no modification of the regulations is required to 
allow for consideration of grid-enhancing or other advanced 
technologies. As proposed in the NOPR and adopted herein,

[[Page 46714]]

Sec.  50.7(h)(3)(iv) requires an applicant to include, as part of the 
Exhibit H system analysis data, an analysis of how the proposed project 
will incorporate any advanced technology design features, if 
applicable. Accordingly, the Commission will consider any proposed 
advanced technology design features submitted by an applicant as part 
of its Exhibit H system analysis data, on a case-by-case basis. The 
Commission will also consider on a project-specific basis information 
submitted regarding non-wires alternatives. As discussed further below, 
an applicant is required to address a variety of alternatives in the 
environmental resource reports, including, where appropriate, 
alternatives other than new transmission lines.\349\
---------------------------------------------------------------------------

    \349\ See Resource Report 12--Alternatives discussion infra Part 
II.F.4.h.
---------------------------------------------------------------------------

2. Use of Existing Rights-of-Way
a. Comments
    269. Some commenters assert that the Commission should use its 
authority under FPA section 216(b) to promote the use of existing 
rights-of-way to site new transmission projects, including using 
highway and railroad corridors, as well as burying transmission 
projects in existing rights-of-way.\350\ Rail Electrification Council 
states that section 216 allows the Commission to consider whether 
utilizing existing rights-of-way for proposed transmission lines would 
promote efficient use of resources, advance regional plans, and avert 
or minimize undue harm to communities and the environment.\351\ 
Further, Rail Electrification Council asserts that the Commission 
should promote the use of best practices in siting transmission 
facilities, one of which is the use of existing rights-of-way where 
financially and operationally feasible and where beneficial to 
developers, property owners, and local economies.\352\
---------------------------------------------------------------------------

    \350\ See Impacted Landowners Comments at 2; Rail 
Electrification Council Comments at 7-9; Impacted Landowners Reply 
Comments at 3-4.
    \351\ Rail Electrification Council Comments at 8 (referencing 
https://nextgenhighways.org/; ACEG, Recommended Siting Practices for 
Electric Transmission Developers, Sec. 4 ``Co-Location in Existing 
Rights-of-Way'' (Feb. 2023), https://cleanenergygrid.org/portfolio/recommended-siting-practices-electric-transmission-developers/).
    \352\ Id. at 7-9.
---------------------------------------------------------------------------

    270. Rail Electrification Council also asks the Commission to opine 
on whether specific railroad rights-of-way could be designated as 
National Corridors and whether such designation would facilitate 
transmission development by reducing project impacts and by authorizing 
the use of eminent domain, including in instances where State law might 
prevent access to privately held rights-of-way.\353\
---------------------------------------------------------------------------

    \353\ Id. at 13.
---------------------------------------------------------------------------

b. Commission Determination
    271. Under FPA section 216(a), one of the factors that DOE may 
consider in determining whether to designate a National Corridor is 
whether the designation maximizes existing rights-of-way.\354\ Section 
216(b), however, does not include a comparable provision that the 
Commission consider whether proposed transmission facilities maximize 
use of existing rights-of-way for transmission siting. Although we 
agree that co-location in existing rights-of-way may benefit 
landowners, reduce costs and environmental impacts, and shorten 
construction time,\355\ co-location in existing rights-of-way may not 
always be feasible. The Commission will consider whether and to what 
degree a project may be able to use existing rights-of-way on a case-
by-case basis. Because an applicant is already required to submit 
information to the Commission regarding a project's use of existing 
rights-of-way, no further changes are needed to the regulations.
---------------------------------------------------------------------------

    \354\ 16 U.S.C. 824p(a)(4)(G).
    \355\ See ACEG, Recommended Siting Practices for Electric 
Transmission Developers 8 (Feb. 2023), https://cleanenergygrid.org/portfolio/recommended-siting-practices-electric-transmission-developers/.
---------------------------------------------------------------------------

    272. Regarding the suitability and benefits of designating specific 
railroad rights-of-way as National Corridors, DOE, not the Commission, 
is responsible for designating National Corridors under section 216(a) 
of the FPA. Thus, this is a matter for DOE to consider, and is beyond 
the scope of this final rule.
3. Project Costs
a. Comments
    273. Several commenters contend that the NOPR does not address how 
the costs of projects subject to the Commission's siting authority will 
be evaluated, allocated, or recovered.\356\
---------------------------------------------------------------------------

    \356\ California Commission Comments at 4; Louisiana Commission 
Comments at 8-9; North Carolina Commission and Staff Comments at 14; 
Senator Barrasso Comments at 5.
---------------------------------------------------------------------------

b. Commission Determination
    274. We find that no modification of the regulations is necessary 
in response to commenters' concerns that the NOPR did not address cost 
considerations. Such issues are outside of the scope of this final 
rule. Nothing in this final rule is intended to modify existing 
Commission processes governing the evaluation, allocation, and cost 
recovery of a transmission project.
4. Miscellaneous
a. Comments
    275. Farm Bureaus argue that the proposed rule is unclear as to 
whether a non-incumbent transmission developer could apply for a 
Federal permit at the same time that an incumbent transmission 
developer is obtaining a State permit, which they state would create a 
major conflict between State and Federal law.\357\
---------------------------------------------------------------------------

    \357\ Farm Bureaus Comments at 5.
---------------------------------------------------------------------------

    276. Farm Bureaus also note that ISOs and RTOs are responsible for 
identifying current priority transmission corridors and state that it 
is unclear how National Corridors relate to projects and ``multi-value 
priority areas'' that have already been identified by ISOs and 
RTOs.\358\
---------------------------------------------------------------------------

    \358\ Id. at 7.
---------------------------------------------------------------------------

b. Commission Determination
    277. We find that no modification of the regulations is necessary 
in response to Farm Bureaus' comments. This rulemaking proceeding is 
not the appropriate forum to address individual hypothetical scenarios. 
As we have stated elsewhere in this final rule, we will take into 
account information specific to each application, including information 
regarding the jurisdictional basis to support the submission of an 
application with the Commission.\359\
---------------------------------------------------------------------------

    \359\ See supra P 34.
---------------------------------------------------------------------------

    278. In response to the request that the final rule explain how 
National Corridors relate to RTO/ISO-identified projects and priority 
areas, we reiterate that the designation of National Corridors is 
within DOE's exclusive authority under FPA section 216(a). For that 
reason, we find that Farm Bureaus' requested clarification is outside 
the scope of this final rule.

F. Regulations Implementing NEPA

    279. In Order No. 689, the Commission also amended its regulations 
implementing NEPA to incorporate environmental review procedures for 
electric transmission facilities. These amendments included revisions 
or additions to: Sec.  380.3(c) (adding electric transmission projects 
to the list of project types for which applicants must provide 
environmental information), Sec.  380.5(b)(14) (adding electric 
transmission facilities to the list of project types for which the 
Commission will prepare an environmental assessment (EA)), Sec.  
380.6(a)(5) (adding major electric transmission facilities using right-
of-way in which there is no existing facility to the list of project 
types for which the Commission will prepare an

[[Page 46715]]

environmental impact statement (EIS)), Sec.  380.8 (designating the 
Office of Energy Projects as responsible for the preparation of 
environmental documents for electric transmission facilities), Sec.  
380.10(a)(2)(iii) (clarifying that pre-filing proceedings for electric 
transmission facilities are not open to motions to intervene), and 
Sec.  380.15 (stating that electric transmission project sponsors must 
comply with the National Electric Safety Code and transmission rights-
of-way are subject to the same construction and maintenance 
requirements as natural gas pipelines). The Commission also added Sec.  
380.16, which describes the specific environmental information that 
applications for permits to site transmission facilities under section 
216 must include. The applicant must submit this information in an 
environmental report, consisting of resource-specific reports, 
described further below.
    280. As explained above, the Fourth Circuit's 2009 Piedmont 
decision vacated Order No. 689's amendments to the Commission's NEPA 
regulations because the court found that the Commission had failed to 
consult with CEQ prior to issuing the revised regulations.\360\ Despite 
the Fourth Circuit's vacatur, the amendments to the Commission's NEPA 
regulations set forth in Order No. 689 are still reflected in 18 CFR 
part 380 although they are not currently effective.\361\
---------------------------------------------------------------------------

    \360\ See supra P 11.
    \361\ Notwithstanding that these regulations are not currently 
effective, for ease of reference, the term ``existing'' is used in 
Part II.F. to denote Order No. 689's amendments to the Commission's 
NEPA regulations in 18 CFR part 380.
---------------------------------------------------------------------------

1. Consultation with CEQ
a. NOPR Proposal
    281. In the NOPR, the Commission sought comment on the whole of the 
Commission's NEPA regulations pertaining to electric transmission 
facilities, as well as the specific proposed changes to those 
regulations described further below. The Commission also committed to 
consulting with CEQ on the proposed changes to its NEPA regulations 
described below as well as those originally implemented by Order No. 
689.
b. Comments
    282. Commenters including Public Interest Organizations, EEI, and 
ClearPath note that the Commission must consult with CEQ when updating 
its NEPA regulations and that the Commission must take CEQ's input 
seriously and incorporate CEQ's proposed alterations.\362\ Public 
Interest Organizations also explain that CEQ is in the process of 
updating its NEPA regulations and that the Commission's NEPA 
implementing regulations may need to be updated based on CEQ's 
forthcoming updates.\363\
---------------------------------------------------------------------------

    \362\ Public Interest Organizations Comments at 101-102; EEI 
Comments at 9; ClearPath Comments at 6-7.
    \363\ Public Interest Organizations Comments at 101-102.
---------------------------------------------------------------------------

c. Commission Determination
    283. On March 2, 2023, a letter was sent to CEQ requesting 
consultation related to the proposed NEPA regulations.\364\ Following 
discussion of the proposed regulations among CEQ and Commission staff, 
CEQ provided its comments on the proposal on August 24, 2023.
---------------------------------------------------------------------------

    \364\ Commission General Counsel March 2, 2023 Letter to CEQ 
Requesting Consultation (filed Mar. 21, 2023).
---------------------------------------------------------------------------

    284. On June 3, 2023, Congress enacted the Fiscal Responsibility 
Act.\365\ A section titled ``Builder Act'' amended NEPA in several 
ways.\366\ We have reviewed the Builder Act amendments and have 
determined that no changes are needed to the Commission's regulations 
to implement NEPA. We are also reviewing CEQ's Phase 2 rulemaking to 
determine whether any of the Commission's NEPA implementing regulations 
need to be revised.\367\ If so, the Commission will follow the 
appropriate rulemaking procedures in a separate proceeding.
---------------------------------------------------------------------------

    \365\ Fiscal Responsibility Act of 2023, Pub.L. 118-5, 137 Stat 
10.
    \366\ Id. Sec.  321 (providing the ``Builder Act'').
    \367\ On May 1, 2024, CEQ published its Phase 2 final rule 
revising its regulations implementing NEPA, including to implement 
the Builder Act amendments. CEQ, National Environmental Policy Act 
Implementing Regulations Revisions Phase 2, 89 FR 35442 (May 1, 
2024). CEQ's Phase 2 final rule is effective on July 1, 2024, and 
agencies will have 12 months from the effective date to develop or 
revise proposed procedures to implement CEQ's revised regulations.
---------------------------------------------------------------------------

2. DOE Coordination
a. NOPR Proposal
    285. The Commission did not propose any specific process regarding 
coordination with DOE in the NOPR.
b. Comments
    286. Multiple commenters urge the Commission to clarify how it will 
coordinate with DOE to avoid unnecessarily lengthy and duplicative 
Federal environmental review processes for National Corridor 
designation and transmission permitting.\368\ Specifically, commenters 
state that the Commission should tier its NEPA analysis for its permit 
decision off DOE's NEPA analysis for the National Corridor designation, 
and only focus on elements that DOE did not address or that have 
changed since DOE's review.\369\
---------------------------------------------------------------------------

    \368\ ACP Comments at 7-13 and 15; ACORE Comments at 4-5; EDF 
Comments at 11; Public Interest Organizations Comments at 105.
    \369\ ACP Comments at 7-9, 11-13 (explaining that a tiering 
approach would better align with Congress's intent under FPA section 
216(h)(5)); CATF Comments at 18-22 (recommending that tiering and 
adopting existing NEPA analyses is a best practice for 
infrastructure permitting as per the March 2023 Guidance from the 
Federal Permitting Improvement Steering Council, Office of 
Management and Budget, and the CEQ, encouraging agencies to ``rely 
on, adopt, or incorporate by reference components of any high 
quality NEPA. . . analyses.''); Public Interest Organizations 
Comments at 103-105; ACEG Comments at 18-19. See generally, Off. of 
Mgmt. and Budget, M-23-14, Memorandum for the Heads of Executive 
Departments and Agencies, Implementation Guidance for the Biden-
Harris Permitting Action Plan, at 5 (Mar. 6, 2023).
---------------------------------------------------------------------------

    287. EEI recommends that the Commission conduct programmatic NEPA 
reviews that encompass all potential transmission development projects 
at a regional scale, instead of each one individually.\370\ EEI 
suggests that individual project NEPA reviews could be tiered from the 
programmatic NEPA document.
---------------------------------------------------------------------------

    \370\ EEI Comments at 10-12.
---------------------------------------------------------------------------

    288. Several commenters ask that the Commission serve as a 
cooperating agency during DOE's environmental review process for 
designating National Corridors but also independently assess that 
analysis before relying on its use.\371\ EEI states that the Commission 
should adopt categorical exclusions that match DOE's existing 
categorical exclusions for electric transmission facilities.\372\
---------------------------------------------------------------------------

    \371\ Public Interest Organizations Comments at 105; CATF 
Comments at 20-21.
    \372\ EEI Comments at 9.
---------------------------------------------------------------------------

    289. ACORE states that, although the Commission is not a signatory 
to the May 2023 interagency Memorandum of Understanding (MOU) with 
other Federal agencies to expedite electric transmission infrastructure 
under section 216(h) of the FPA, the Commission should work with DOE to 
clarify whether the provisions of that MOU can be used for non-
qualifying projects where the Commission is the lead agency.\373\
---------------------------------------------------------------------------

    \373\ ACORE Comments at 3-4.
---------------------------------------------------------------------------

    290. ACEG and SEIA ask that the Commission clarify how the 
Commission's siting process timing would align with a project 
voluntarily complying with DOE's regulations in 10 CFR part 900 for 
early coordination, information sharing, and environmental reviews, 
particularly where DOE serves as the lead agency.\374\
---------------------------------------------------------------------------

    \374\ ACEG Comments at 10; SEIA Comments at 7-8.

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

[[Page 46716]]

c. Commission Determination
    291. The Commission will coordinate with DOE to the maximum extent 
practicable to minimize redundancy and promote efficiency in the 
Federal environmental review processes under section 216 of the FPA. 
However, the framework for the Commission's coordination with DOE in 
exercising DOE's separate authority to designate National Corridors 
under section 216(a) of the FPA is beyond the scope of this final rule. 
Accordingly, the Commission will consider each request it receives from 
DOE to be a cooperating agency individually based on the specific 
circumstances. Further, the Commission will coordinate with other 
agencies throughout the Commission's review process to comply with the 
requirements of section 216(h) of the FPA, as delegated to the 
Commission by the Secretary of DOE, and to promote timely and efficient 
Federal reviews and permit decisions.
    292. The Commission will consider tiering on a case-by-case basis, 
as appropriate. Tiering allows a Federal agency to avoid duplicating 
previous environmental analysis by referring to another NEPA document 
containing the necessary analysis.\375\ The appropriateness of tiering 
is dependent on numerous factors, including the scope and timing of the 
original NEPA document, the underlying assumptions used in the original 
analysis, and changes to the affected environment since the original 
analysis.\376\ We recognize that the new NEPA provisions established in 
the Builder Act support the development of a single NEPA document for 
use, to the extent practicable, by multiple agencies \377\ and continue 
to allow the use of programmatic NEPA documents.\378\
---------------------------------------------------------------------------

    \375\ Rio Grande LNG, LLC, 182 FERC ] 61,027 (2023) (citing 40 
CFR 1501.11).
    \376\ See 42 U.S.C. 4336b (describing circumstances where an 
agency can rely on a higher-tier programmatic environmental 
document); 40 CFR 1501.11(c) (describing circumstances when tiering 
is appropriate).
    \377\ 42 U.S.C. 4336a(b).
    \378\ 42 U.S.C. 4336b.
---------------------------------------------------------------------------

    293. Regarding ACEG's and SEIA's questions about how the 
Commission's siting process would align with projects complying with 
DOE's regulations implementing section 216(h) of the FPA in 10 CFR part 
900, the Commission notes that recently revised Sec.  900.1(f) 
specifies that part 900 applies only to qualifying projects which, as 
defined in Sec.  900.2, excludes projects seeking a construction or 
modification permit from the Commission under section 216(b) of the 
FPA.\379\ However, in the event that an applicant originally complying 
with 10 CFR part 900 decides to seek a permit from the Commission under 
section 216(b) of the FPA, nothing in this final rule precludes the 
reuse of materials submitted to DOE. The Commission will coordinate, to 
the maximum extent practicable, with the applicant and DOE in order to 
facilitate an efficient transition.
---------------------------------------------------------------------------

    \379\ As noted above, DOE recently issued a final rule revising 
its regulations implementing section 216(h) of the FPA. DOE, 
Coordination of Federal Authorizations for Electric Transmission 
Facilities, 89 FR 35312 (May 1, 2024).
---------------------------------------------------------------------------

    294. As to EEI's request for the Commission to adopt categorical 
exclusions that match DOE's existing categorical exclusions, the 
Commission will establish any categorical exclusions related to our 
siting authority that appear appropriate after the Commission has 
gained experience reviewing applications, which is consistent with CEQ 
guidance.\380\
---------------------------------------------------------------------------

    \380\ CEQ, Establishing, Applying, and Revising Categorical 
Exclusions under the National Environmental Policy Act, at 4 (2010), 
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/NEPA_CE_Guidance_Nov232010.pdf.
---------------------------------------------------------------------------

3. NEPA Document Procedures
i. NOPR Proposal
    295. In the NOPR, the Commission did not propose any changes to the 
types of facilities or actions that require each type of NEPA document 
or how the Commission prepares, distributes, and receives comments on 
its NEPA documents as described in Sec. Sec.  380.4 through 380.9 of 
the Commission's regulations.
ii. Comments
    296. Public Interest Organizations assert that existing Sec.  380.9 
makes NEPA documents available to the public pursuant to the Freedom of 
Information Act and via the Commission's physical reading room ``at a 
fee.'' They request that the Commission specify in its regulations that 
it will also make NEPA documents publicly available online at no 
charge.\381\
---------------------------------------------------------------------------

    \381\ Public Interest Organizations Comments at 135-136.
---------------------------------------------------------------------------

    297. Public Interest Organizations express concern that under the 
existing Sec. Sec.  380.5 and 380.6, only those transmission projects 
sited in existing rights-of-way are potentially subject to an EA 
instead of the lengthier EIS, which creates an incentive to site in 
existing rights-of-way and may diminish the rigor of the assessment of 
a project's impacts.\382\
---------------------------------------------------------------------------

    \382\ Public Interest Organizations Comments at 126-131.
---------------------------------------------------------------------------

    298. Public Interest Organizations and the Yurok Tribe request that 
the Commission's regulations be revised to clearly state that the 
public will have an opportunity to comment on any draft NEPA document 
that the Commission issues.\383\ The Yurok Tribe states that although 
agencies frequently provide 30-day comment periods on NEPA documents, 
the Commission should provide Tribes with at least 60 days to provide 
input, noting this longer comment period is appropriate in light of 
Tribes' sovereign status and limited resources.\384\
---------------------------------------------------------------------------

    \383\ Public Interest Organizations Comments at 126-131; Yurok 
Tribe Comments at 38-39.
    \384\ Yurok Tribe Comments at 38-39.
---------------------------------------------------------------------------

iii. Commission Determination
    299. We decline to modify our regulations regarding the 
availability of Commission NEPA documents. Existing Sec.  380.9 states 
that the Commission will make NEPA documents available to the public, 
and the Commission does so, at no charge, through the Commission's 
eLibrary system.\385\ The reference to obtaining materials ``at a fee'' 
in the regulations refers to obtaining copies of records already 
available through the Commission's website or for obtaining records 
subject to Freedom of Information Act or Critical Energy Infrastructure 
Information requests.
---------------------------------------------------------------------------

    \385\ 18 CFR 380.9 (2023).
---------------------------------------------------------------------------

    300. With respect to commenters' concerns regarding the development 
of an EA or EIS for a particular project affecting the rigor of the 
Commission's reviews and the appropriate length of time for comment 
periods, the Commission will make such determinations on a case-by-case 
basis because the appropriate approach is likely to vary based on the 
factual circumstances. Existing Sec. Sec.  380.5 and 380.6 also include 
provisions to allow flexibility for Commission staff to prepare an EA 
or EIS based on project-specific circumstances. We note that Commission 
proceedings, whether involving either an EA or an EIS, typically 
include numerous opportunities for public comment (and, in the case of 
Tribes, government-to-government consultation).
4. Revisions to 18 CFR 380.16
a. Addition of New Resource Reports and General Revisions to Existing 
Reports
i. NOPR Proposal
    301. In the NOPR, the Commission proposed to add to Sec.  380.16 
three new resource reports (Tribal resources, Environmental justice and 
Air quality and environmental noise). For this

[[Page 46717]]

reason, the Commission proposed to redesignate all resource reports 
after Resource Report 5--Socioeconomics as follows: Resource Report 6--
Tribal resources (Sec.  380.16(h)); Resource Report 7--Environmental 
justice (Sec.  380.16(i)); Resource Report 8--Geological resources 
(Sec.  380.16(j)); Resource Report 9--Soils (Sec.  380.16(k)); Resource 
Report 10--Land use, recreation, and aesthetics (Sec.  380.16(l)); 
Resource Report 11--Air quality and environmental noise (Sec.  
380.16(m)); Resource Report 12--Alternatives (Sec.  380.16(n)); 
Resource Report 13--Reliability and safety (Sec.  380.16(o)); and 
Resource Report 14--Design and engineering (Sec.  380.16(p)). The 
Commission also proposed minor, non-substantive edits throughout Sec.  
380.16 intended to clarify or streamline existing requirements, to 
correct grammatical errors and cross-references, and to maintain 
consistency.
    302. The Commission proposed to revise the General project 
description resource report to more clearly identify the types of 
facilities that must be depicted on the topographic maps and aerial 
images or photo-based alignment sheets. The Commission also proposed to 
add requirements to describe any proposed horizontal directional 
drilling and pile driving that may be necessary, indicate the days of 
the week and times of the day during which construction activities 
would occur, and describe any proposed nighttime construction 
activities.
    303. The Commission proposed to add a requirement that the Water 
use and quality resource report describe the impact of proposed land 
clearing and vegetation management practices on water resources. The 
Commission also proposed to add a requirement that the Soils resource 
report describe any proposed mitigation measures intended to reduce the 
potential for adverse impacts to soils or agricultural productivity. In 
addition, the Commission proposed only minor, clarifying edits to the 
Socioeconomics, Geologic resources, and Design and engineering resource 
reports.
    304. The discussion that follows this section focuses on the 
individual resource reports for which we received substantive 
comments.\386\ For each of those resource reports, we describe the NOPR 
proposal, comments received, and the Commission's determination.
---------------------------------------------------------------------------

    \386\ See discussion infra Parts II.F.4.b. through II.F.4.j.
---------------------------------------------------------------------------

ii. Comments
    305. No comments were received on the proposed revisions to the 
General project description, Water use and quality, Socioeconomic, 
Geologic resources, Soils, and Design and engineering resource reports.
    306. Several commenters argue that the three new resource reports 
expand the Commission's authority beyond the scope of section 216 of 
the FPA, opening the door to future legal challenges.\387\ Chamber of 
Commerce further states that the Tribal resources and Environmental 
justice resource reports appear to impede rather than facilitate 
efficient siting and construction of necessary transmission facilities. 
American Chemistry Council questions whether the three new resource 
reports or any expansions to existing resource reports are needed as 
the information is already required by State partners and there is 
little justification for increased resources and burden.
---------------------------------------------------------------------------

    \387\ American Chemistry Council Comments at 7-8; Chamber of 
Commerce Comments at 3; ClearPath Comments at 6-7; ELCON Comments at 
5-6; North Dakota Commission Comments at 7-8.
---------------------------------------------------------------------------

iii. Commission Determination
    307. We adopt the NOPR's proposed revisions to the General project 
description, Water use and quality, Socioeconomic, Geologic resources, 
Soils, and Design and engineering resource reports in this final rule. 
We continue to find that the NOPR's revisions to these reports will 
clarify information needed to support the Commission's NEPA analyses. 
In addition, this final rule adopts the proposed minor, non-substantive 
edits throughout Sec.  380.16 and makes additional minor edits to 
clarify or streamline existing requirements, to correct grammatical 
errors and cross-references, and to maintain consistency.
    308. We also adopt the NOPR's three new resource reports (Tribal 
resources, Environmental justice and Air quality and environmental 
noise). We disagree with commenters that the designation of three new 
resource reports alters the scope of the Commission's legal authority, 
or in some way impedes the Commission's consideration of applications 
under FPA section 216. The required information in these resource 
reports is necessary for the Commission to fully evaluate the effects 
of a proposed project and meet its statutory obligations under the FPA 
and NEPA. Additionally, the Commission routinely requests this type of 
information from applicants for natural gas and hydroelectric projects 
through existing regulatory requirements or data requests.
    309. Regarding American Chemistry Council's concerns that 
information in the new resource reports is already required by State 
partners, we note that not all States require the same information for 
their respective reviews of electric infrastructure. Regardless of the 
relevant State filing requirements, this information should be filed on 
the record for the Commission to use it in its proceeding. In the 
instances where information is already developed for a State review 
process, applicants can provide that same information to the Commission 
to support the Commission's NEPA review.
b. Resource Report 3--Fish, Wildlife, and Vegetation
i. NOPR Proposal
    310. The Fish, wildlife, and vegetation resource report requires 
the applicant to describe aquatic life, wildlife, and vegetation in the 
vicinity of the proposed project; the expected impacts on these 
resources; and proposed mitigation measures.\388\ In the NOPR, the 
Commission proposed to modify existing Sec.  380.16(e)(3) and (4) to 
include additional requirements in the Fish, wildlife, and vegetation 
resource report. Specifically, the Commission proposed to require that 
applicants describe the potential impact on interior forest (in Sec.  
380.16(e)(3)), as well as the impact of proposed land clearing and 
vegetation management practices on fish, wildlife, and vegetation (in 
Sec.  380.16(e)(4)).
---------------------------------------------------------------------------

    \388\ 18 CFR 380.16(e).
---------------------------------------------------------------------------

ii. Comments
    311. Arizona Game and Fish requests that the Commission include 
additional requirements in the Fish, wildlife, and vegetation resource 
report beyond the NOPR proposal. Specifically, Arizona Game and Fish 
recommends that applicants identify, analyze, and develop mitigation 
measures to address potential impacts on wildlife connectivity and 
movement corridors, habitat loss and fragmentation, and the 
introduction and spread of noxious weeds and non-native species.\389\
---------------------------------------------------------------------------

    \389\ Arizona Game and Fish Comments at 1-2.
---------------------------------------------------------------------------

    312. Arizona Game and Fish also calls for revisions to existing 
Sec.  380.16(e)(4) to require the resource report to include 
information from State Wildlife Action Plans and a description of 
potential impacts on species listed under State Species of Greatest 
Conservation Need.\390\
---------------------------------------------------------------------------

    \390\ Id. at 2.
---------------------------------------------------------------------------

    313. Interior supports the NOPR proposal.\391\ In addition, 
Interior recommends that the Fish, wildlife, and vegetation resource 
report require applicants to identify all known and

[[Page 46718]]

potential bald and golden eagle nesting and roosting sites, migratory 
bird flyways, and any sites important to migratory bird breeding, 
feeding, and sheltering.\392\ Interior further requests that the 
resource report require commitments from applicants to implement 
avoidance and minimization measures to reduce the likelihood of 
incidental take of eagles and migratory birds. Finally, Arizona Game 
and Fish recommends incorporating standards established by the Avian 
Power Line Interaction Committee into the resource report to address 
the vulnerability of birds of prey to powerline strikes and 
electrocution.\393\
---------------------------------------------------------------------------

    \391\ Interior Comments at 1.
    \392\ Id.
    \393\ Arizona Game and Fish Comments at 2.
---------------------------------------------------------------------------

iii. Commission Determination
    314. To support the Commission's NEPA analyses, we adopt the NOPR's 
proposal, with additional modifications, to revise the Fish, wildlife, 
and vegetation resource report in existing Sec.  380.16(e) to require 
the applicant to describe potential impacts on interior forest as well 
as the impact of proposed land clearing and vegetation management 
practices on fish, wildlife, and vegetation. In response to comments, 
we modify existing Sec.  380.16(e)(2) to include wildlife corridors and 
we modify existing Sec.  380.16(e)(3) to include noxious weeds and non-
native species.\394\ To support the Commission in assessments under the 
Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act, 
we add a new provision in Sec.  380.16(e)(7) \395\ to address migratory 
birds and bald and golden eagles.\396\
---------------------------------------------------------------------------

    \394\ Commission staff routinely asks applicants in natural gas 
and hydropower proceedings to provide information about noxious 
weeds and invasive species. See, e.g., Commission staff, 
Environmental Information Request, Docket No. CP23-536, at 4 (issued 
Nov. 3, 2023) (Question No. 9); Commission staff, Deficiency of 
License Application and Additional Information Request, Project No. 
14851-003, at B-14 (issued Apr. 28, 2023) (Question No. 42(b)); see 
also FERC, Guidance Manual for Environmental Report Preparation--
Volume 1, at 4-65 and 4-66 (Feb. 2017), https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf.
    \395\ Because of the addition of this new requirement, the 
requirements in the Fish, wildlife, and vegetation resource report 
after existing Sec.  380.16(e)(6) are redesignated from paragraphs 
(e)(7) and (e)(8) to paragraphs (e)(8) and (e)(9), respectively.
    \396\ Commission staff routinely asks applicants in natural gas 
and hydropower proceedings to provide information about migratory 
bird species and bald and golden eagles. See, e.g., Commission 
staff, Environmental Information Request, Docket No. CP23-536, at 5 
(issued Nov. 3, 2023) (Question Nos. 14-16); Commission staff, 
Deficiency of License Application and Additional Information 
Request, Project No. 14851-003, at B-14 through B-19 (issued Apr. 
28, 2023) (Question Nos. 42(d)-(f), 43, 44(j), 45, and 47-50); see 
also FERC, Guidance Manual for Environmental Report Preparation--
Volume 1, at 4-62 and 4-63 (Feb. 2017), https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf.
---------------------------------------------------------------------------

    315. We agree with Arizona Game and Fish that requiring the 
applicant to identify and analyze potential impacts on wildlife 
corridors would help ensure that this specific habitat is adequately 
identified in support of the Commission's NEPA analyses. Therefore, we 
modify existing Sec.  380.16(e)(2) to include a requirement to describe 
wildlife corridors. We also agree with Arizona Game and Fish that 
requiring the applicant to identify and analyze noxious weeds and non-
native species would establish a baseline of known areas where noxious 
weeds and non-native species occur. Therefore, we modify existing Sec.  
380.16(e)(3) to require the resource report to describe any areas of 
noxious weeds and non-native species. This change will support the 
Commission's NEPA analysis by identifying areas that may require 
different restoration methods or additional vegetation management 
during construction, operation, and maintenance.
    316. We decline to modify the requirements in the Fish, wildlife, 
and vegetation resource report to require the applicant to identify 
conservation or mitigation measures. We find that the existing 
regulations already require the applicant to address the disclosure of 
potential project impacts, specifically, Sec.  380.16(e)(4) directs 
that the Fish, wildlife, and vegetation resource report describe the 
possibility of a major alteration to ecosystems or biodiversity.\397\ 
Further, a description of site-specific mitigation measures is required 
in redesignated Sec.  380.16(e)(8) of this final rule. These existing 
regulations adequately address the potential impacts and mitigation 
measures.
---------------------------------------------------------------------------

    \397\ 18 CFR 380.16(e)(4).
---------------------------------------------------------------------------

    317. Similarly, we decline Arizona Game and Fish's request to 
modify existing Sec.  380.16(e)(4) to require that the Fish, wildlife, 
and vegetation resource report include State Species of Greatest 
Conservation Need and incorporate information from State Wildlife 
Action Plans. We find that the species of concern to States are already 
addressed. Section 380.16(e)(4) requires the applicant to describe 
potential impacts on all plant and animal wildlife, including species 
of special concern and State-listed endangered or threatened species. 
Therefore, we do not believe that the suggested revisions are 
necessary.
    318. We decline Arizona Game and Fish's request to prescribe the 
standards established by the Avian Power Line Interaction Committee 
into the Commission's regulations. The Commission supports practices to 
protect birds; however, in the event the referenced standards are 
subsequently revised based on new scientific data, the Commission's 
regulations could become outdated or inaccurate. Commission staff will 
consider applicable Avian Power Line Interaction Committee standards on 
a project-specific basis.
    319. We agree with Interior's comments that the Fish, wildlife, and 
vegetation resource report should require the identification of all 
known and potential bald and golden eagle nesting and roosting sites, 
migratory bird flyways, and any sites important to migratory bird 
breeding, feeding, and sheltering. We find that this information may 
assist the Commission in its assessments under the Migratory Bird 
Treaty Act and the Bald and Golden Eagle Protection Act. Accordingly, 
this final rule adds a new requirement in Sec.  380.16(e)(7) to 
identify migratory birds and bald and golden eagles in the project 
area. This final rule also adopts corresponding changes in existing 
Sec.  380.16(e)(4), redesignated (e)(8), and redesignated (e)(9) to 
include impacts, mitigation, and correspondence on migratory birds and 
bald and golden eagles.
c. Resource Report 4--Cultural Resources
i. NOPR Proposal
    320. The Cultural resources resource report requires the applicant 
to provide information necessary for the Commission to consider the 
effect of a proposed project on cultural resources in furtherance of 
the Commission's obligations under section 106 of the National Historic 
Preservation Act of 1966 (NHPA).\398\ In the NOPR, the Commission 
proposed only minor clarifying edits to this resource report.
---------------------------------------------------------------------------

    \398\ 18 CFR. 380.16(f).
---------------------------------------------------------------------------

ii. Comments
    321. Commenters suggest that Tribes be allowed to choose the 
assessors that will study land with the Tribes' cultural resources, and 
that assessors must follow all Tribal rules and guidelines for land 
surveys and assessments.\399\
---------------------------------------------------------------------------

    \399\ Yurok Tribe Comments at 33; Public Interest Organizations 
Comments at 70 and 72.
---------------------------------------------------------------------------

iii. Commission Determination
    322. We adopt the minor changes to the Cultural resources resource 
report as proposed in the NOPR. We decline to

[[Page 46719]]

modify the regulations to require that Tribes choose the assessors used 
by an applicant to study cultural resources. To complete cultural 
resources surveys, we encourage applicants to consider Tribal input, 
including recommendations on survey methodology or accessor selection. 
With respect to the request to specify the rules and guidelines for 
cultural resources surveys and assessments, applicants and consultants 
should follow the Secretary of the Interior's Standards and Guidelines 
for Archeology and Historic Preservation,\400\ and they would have to 
follow the appropriate State laws on private lands and the requirements 
of Federal land-managing agencies on Federal lands. If a proposed 
project would affect Tribal land, the applicant must adhere to any 
Tribal requirements for conducting cultural resources studies on Tribal 
lands.\401\
---------------------------------------------------------------------------

    \400\ Department of the Interior, National Park Service, 
Archeology and Historic Preservation; Secretary of the Interior's 
Standards and Guidelines, 48 FR 44716 (Sept. 29, 1983).
    \401\ 18 CFR 380.14(a)(2).
---------------------------------------------------------------------------

d. Resource Report 6--Tribal Resources
i. NOPR Proposal
    323. In the NOPR, the Commission stated that it recognizes the 
unique relationship between the United States and Indian Tribes, 
acknowledges its trust responsibility to Indian Tribes, and endeavors 
to work with Tribes on a government-to-government basis, seeking to 
address the effects of proposed projects on Tribal rights and resources 
through consultation.\402\ To help the Commission evaluate the effects 
of proposed transmission facilities on Tribal rights and resources, the 
Commission's existing regulations require an applicant to submit 
information describing the project's effects on Tribes, Tribal lands, 
and Tribal resources as part of the Land use, recreation, and 
aesthetics resource report.\403\ Specifically, the applicant must 
identify Tribes that may attach religious and cultural significance to 
historic properties within the right-of-way or in the project vicinity; 
\404\ provide available information on traditional cultural and 
religious properties; \405\ and ensure that specific site or location 
information is not disclosed, because disclosure will create a risk of 
harm, theft, or destruction or violate Federal law.\406\
---------------------------------------------------------------------------

    \402\ 18 CFR 2.1c (2023).
    \403\ See 18 CFR 380.16(j)(5).
    \404\ Id. Sec.  380.16(j)(5)(i).
    \405\ Id.
    \406\ Id. Sec.  380.16(j)(5)(ii).
---------------------------------------------------------------------------

    324. In the NOPR, the Commission proposed to relocate the existing 
Tribal resource-related information requirements to a new, standalone 
resource report, Resource Report 6--Tribal resources, in Sec.  
380.16(h). In addition to consolidating the existing requirements in a 
new resource report,\407\ the Commission also proposed to require an 
applicant to identify potentially-affected Tribes; describe the impacts 
of project construction, operation, and maintenance on Tribes and 
Tribal interests, including impacts related to enumerated resource 
areas; and describe project impacts that may affect Tribal interests 
that are not necessarily associated with particular resource areas 
(e.g., treaties, Tribal practices, or agreements). The NOPR explained 
that the Commission believes this information is necessary to allow it 
to fully evaluate the effects of a proposed project in furtherance of 
the Commission's trust responsibility and the Commission's statutory 
obligations under the FPA and NEPA.
---------------------------------------------------------------------------

    \407\ See id. Sec.  380.16(h)(4)-(5).
---------------------------------------------------------------------------

ii. Comments
    325. CLF asks that the final rule explain how the Tribal resources 
resource report and Cultural resources resource report relate and 
interact and clarify that the Tribal Resources resource report is not 
duplicative of the Cultural Resources resource report, but instead 
addresses Tribal interests and resources that may not be considered 
under the NHPA.\408\
---------------------------------------------------------------------------

    \408\ CLF Comments at 15.
---------------------------------------------------------------------------

    326. The Chickahominy Indian Tribe, Nansemond Indian Nation, 
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe support the 
new Tribal Resources resource report but request the Commission require 
better supported and more detailed information than is required for a 
cultural resources background literature discussion.\409\ For example, 
the Tribes ask that the report be prepared using consultants with a 
proven track record of considering research by members of the Tribes, 
with the Commission evaluating the resource report considering the 
expertise and sufficiency of the consultant.\410\ The Chickahominy 
Indian Tribe, Nansemond Indian Nation, Rappahannock Indian Tribe, and 
Upper Mattaponi Indian Tribe also suggest that applicants be required 
to engage with Tribes in identifying sacred areas and other culturally 
significant regions and to develop Tribal history. Public Interest 
Organizations state that the Commission must accept Indigenous 
Knowledge as relevant and reliable data in all resource reports, but 
especially in the Tribal Resources resource report.\411\
---------------------------------------------------------------------------

    \409\ Chickahominy Indian Tribe, Nansemond Indian Nation, 
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments 
at 1.
    \410\ Id. at 2.
    \411\ Public Interest Organizations Comments at 66-69.
---------------------------------------------------------------------------

    327. Public Interest Organizations state that the Commission's 
regulations should require applicants to protect from public 
disclosure, to the maximum extent practicable, Tribal information, 
including sacred sites, locations, and Indigenous Knowledge.\412\
---------------------------------------------------------------------------

    \412\ Public Interest Organizations Comments at 73-74.
---------------------------------------------------------------------------

    328. CLF and the Yurok Tribe also recommend that the Tribal 
resources resource report describe any proposed mitigation measures 
intended to avoid or minimize impacts on Tribes, or explain why such 
mitigation measures were not pursued.\413\
---------------------------------------------------------------------------

    \413\ CLF Comments at 15; Yurok Tribe Comments at 34-35.
---------------------------------------------------------------------------

iii. Commission Determination
    329. We adopt the NOPR's proposal to add Resource Report 6--Tribal 
resources with one modification to require a description of any 
proposed mitigation measures. These requirements will ensure that an 
application contains information that helps the Commission assess a 
project's impacts on Tribal rights and resources.
    330. In response to CLF's request that we clarify the relationship 
between the Tribal resources and Cultural resources resource reports, 
we explain that the latter is intended to elicit information regarding 
efforts to identify and determine effects on historic properties in 
furtherance of the Commission's obligations under section 106 of the 
NHPA. The Tribal Resources resource report is intended to elicit 
information that will enable the Commission to fully evaluate the 
effects of a proposed project on Tribal resources in furtherance of the 
Commission's trust responsibility and the Commission's statutory 
obligations under the FPA and NEPA. It is possible that some, but not 
all, of the information filed in the two reports may be duplicative, 
but the Tribal Resources resource report will note Tribal interests in 
resources that may not be historic properties, including but not 
limited to treaty rights.
    331. As to Tribes' comments on the qualifications of consultants 
that prepare the Tribal resources resource report, applicants should 
use qualified consultants that meet the expected standards, for example 
the National Park Service's Archeology and Historic Preservation, 
Secretary of the Interior's

[[Page 46720]]

Standards and Guidelines, and any other applicable standards. We 
encourage applicants to engage with Tribes to identify sacred areas and 
other culturally significant regions and to develop Tribal history. Any 
information filed on the record by Tribes on a project, including 
Indigenous Knowledge, would be reviewed and considered by the 
Commission.
    332. Regarding public disclosure concerns, pursuant to proposed 
Sec.  380.16(h)(5), applicants must ensure that the Tribal resources 
resource report does not include sensitive Tribal information--such as 
specific site or property locations--the disclosure of which could 
create a risk of harm, theft, or destruction of archaeological or 
Tribal cultural resources or to the site at which the resources are 
located, or which would violate any Federal law, including the NHPA and 
the Archaeological Resources Protection Act.\414\
---------------------------------------------------------------------------

    \414\ See also 18 CFR 380.16(f)(4) (directing applicants to 
request privileged treatment for all material filed with the 
Commission containing cultural resource location, character, and 
ownership information in accordance with the Commission's procedures 
in Sec.  388.112).
---------------------------------------------------------------------------

    333. Finally, in response to commenters' feedback, we modify the 
proposed resource report to require a description of any proposed 
mitigation measures to avoid or minimize impacts on Tribal resources, 
including any input received from Indian Tribes regarding the proposed 
measures and how the input informed the proposed measures. This 
addition is consistent with a comparable requirement in the 
Environmental justice resource report adopted herein.\415\
---------------------------------------------------------------------------

    \415\ See proposed Sec.  380.16(i)(4).
---------------------------------------------------------------------------

e. Resource Report 7--Environmental Justice
i. NOPR Proposal
    334. In the NOPR, the Commission proposed to add new Resource 
Report 7--Environmental justice, in Sec.  380.16(i). Specifically, the 
resource report would require the applicant to identify environmental 
justice communities within the project's area of potential impacts; 
\416\ describe the impacts of project construction, operation, and 
maintenance on environmental justice communities, including whether any 
impacts would be disproportionate and adverse; discuss cumulative 
impacts on environmental justice communities, including whether any 
cumulative impacts would be disproportionate and adverse; and describe 
any proposed mitigation measures intended to avoid or minimize impacts 
on environmental justice communities, including any community input 
received on the proposed measures and how the input informed the 
proposed measures.
---------------------------------------------------------------------------

    \416\ As discussed, to identify environmental justice 
communities, Commission staff currently reviews U.S. Census Bureau 
population data for the applicable location, relevant guidance, and 
agency best practices. See supra note 166.
---------------------------------------------------------------------------

    335. The Commission also proposed a corresponding addition to Sec.  
380.2, which sets forth the definitions for the Commission's NEPA 
regulations, to define the term ``environmental justice community.''
ii. Comments
    336. Several commenters support the addition of the Environmental 
justice resource report to ensure that the Commission complies with its 
NEPA obligations.\417\ Other commenters object to the inclusion of the 
new resource report.\418\
---------------------------------------------------------------------------

    \417\ See, e.g., ACEG Comments at 16; CATF Comments at 15-16.
    \418\ See, e.g., ClearPath Comments at 7; ELCON Comments at 7-8; 
North Dakota Commission Comments at 7-8.
---------------------------------------------------------------------------

    337. ClearPath and North Dakota Commission oppose the proposed 
addition of the Environmental justice resource report because the 
Commission proposes to rely on executive orders (including executive 
orders that do not specify the Commission as a participant), guidance, 
and poorly defined criteria rather than laws, statutes, and 
regulations, thus threatening to introduce challenges and legal 
vulnerabilities.\419\
---------------------------------------------------------------------------

    \419\ ClearPath Comments at 7; North Dakota Commission Comments 
at 7-8.
---------------------------------------------------------------------------

    338. ClearPath states that the Commission has failed to set clear 
and predictable procedures for applicants to follow should updates to 
data and guidance be made during the pre-filing and application 
processes, created duplicative requirements and paperwork for 
applicants, and ClearPath claims that the Commission has instituted a 
hierarchy of treatment and consideration of project impacts across 
population segments that could have equal protection concerns under the 
Constitution.\420\ Similarly, ELCON objects to including a new resource 
report specific to one stakeholder type, environmental justice 
communities, with identification and mitigation-measure requirements 
when other similarly situated stakeholders do not receive such 
treatment.\421\
---------------------------------------------------------------------------

    \420\ ClearPath Comments at 7.
    \421\ ELCON Comments at 8.
---------------------------------------------------------------------------

    339. CLF states that the Commission must commit to a policy of 
ensuring that environmental justice communities are not more adversely 
impacted by the Commission's siting authority (including when 
accounting for the impacts of other, existing energy projects) than 
non-environmental justice communities, and to the extent that impacts 
are unavoidable, impacted communities should receive benefits that 
mitigate or compensate for those impacts.\422\
---------------------------------------------------------------------------

    \422\ CLF Comments at 11-12.
---------------------------------------------------------------------------

    340. Public Interest Organizations state that proposed Sec.  
380.16(i)(3) must require an integrated cumulative impacts analysis of 
environmental and non-environmental stressors, independently reviewed 
by Commission staff.\423\ They also ask that the Commission ensure that 
flexibility in data sets and factors is not harmful to impacted 
communities and prevent the cherry-picking of analytical tools and 
methods to fit a desired outcome.\424\ Likewise, Policy Integrity 
requests that the Commission provide applicants with additional 
guidance on how to analyze cumulative impacts on environmental justice 
communities.\425\ It states that this guidance should define key terms 
and describe authoritative resources for how to perform such an 
analysis.
---------------------------------------------------------------------------

    \423\ Public Interest Organizations Comments at 91-92.
    \424\ Id. at 93.
    \425\ Policy Integrity Comments at 2, 39-45.
---------------------------------------------------------------------------

iii. Commission Determination
    341. We adopt the NOPR's proposal to add Resource Report 7--
Environmental Justice. As an initial matter, as discussed above, the 
Commission's authority to require submission of information to assess 
the potential for impacts to communities due to development of an 
energy infrastructure project is well-established under law, and 
necessary for the Commission to achieve its statutory obligations under 
the FPA and NEPA.\426\ Accordingly, commenters incorrectly presume that 
consideration of such impacts, when gathered in the form of a separate 
resource report, is a novel practice or treads new legal ground. These 
concerns are unfounded.
---------------------------------------------------------------------------

    \426\ Supra P 110.
---------------------------------------------------------------------------

    342. We also disagree with commenters' concerns that we have 
inappropriately based the addition of the Environmental justice 
resource report solely on Executive Orders and guidance. While we use 
Executive Orders and guidance to help establish the information 
Commission staff needs to perform its analysis, the Commission has a 
responsibility under NEPA to evaluate project-related impacts on the 
quality of the human environment,

[[Page 46721]]

which include impacts on environmental justice communities.
    343. We disagree with comments asserting that we have failed to set 
clear procedures given the potential for updates to data and guidance. 
As with all resource reports, applicants are expected to use the best 
available data and follow guidance in place at the time they submit 
their application. By requiring an environmental justice-specific 
resource report, we are setting a clear expectation regarding the 
information Commission staff will need to adequately assess project-
related impacts on environmental justice communities. Commenters 
provide no examples or explanation of how the new resource report 
creates duplicative requirements and paperwork.
    344. We do not believe that the requirements institute a hierarchy 
of treatment and consideration of project impacts across population 
segments. Analyses of impacts are conducted in a manner consistent with 
the requirements of NEPA. NEPA requires a ``hard look'' at all the 
environmental consequences of a proposed action and consideration of 
whether there are steps that could be taken to mitigate any adverse 
environmental consequences, without mandating specific substantive 
outcomes.\427\ These requirements ensure the Commission has information 
necessary to assess the potential impacts of the project but do not 
dictate an approach for weighing such potential impacts or determining 
whether mitigation may be appropriate.
---------------------------------------------------------------------------

    \427\ Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 
350-351 (1989).
---------------------------------------------------------------------------

    345. We decline to adopt precise methodologies to assess cumulative 
impacts, but instead will allow flexibility in the scope and level of 
analysis needed. Cumulative impacts on environmental justice 
communities will vary based on project- and site-specific conditions. 
Commission staff will use the pre-filing process to review all 
information filed on the record and provide feedback to applicants to 
assist applicants in identifying cumulative projects and resources to 
be addressed in this analysis. We expect applicants to follow the 
latest rules, guidance, and data from the Commission, CEQ, the Census 
Bureau, and other authoritative sources when performing this analysis.
    346. Finally, we agree with Public Interest Organizations that the 
Commission should perform its own independent assessment of cumulative 
impacts on environmental justice communities. Commission-issued NEPA 
documents reflect Commission staff's independent analysis of all 
environmental effects of a project.
f. Resource Report 10--Land Use, Recreation, and Aesthetics
i. NOPR Proposal
    347. The existing Land use, recreation, and aesthetics resource 
report requires the applicant to provide information concerning the 
uses of land in the project area and proposed mitigation measures to 
protect and enhance existing land use.\428\ In the NOPR, the Commission 
proposed to add a requirement to this resource report to identify the 
area of direct effect of the proposed facilities on interior forest. We 
also proposed to: (1) clarify the scope of facilities (e.g., buildings, 
electronic installations, airstrips, airports, and heliports) in the 
project vicinity that must be identified; (2) clarify the corresponding 
requirements to depict such facilities on the maps and photographs in 
General project description resource report; and (3) require copies of 
any consultation with the Federal Aviation Administration.
---------------------------------------------------------------------------

    \428\ 18 CFR 380.16(j).
---------------------------------------------------------------------------

    348. The existing Land use, recreation, and aesthetics resource 
report requires applicants to describe the visual characteristics of 
the lands and waters affected by the project, including how the 
transmission line facilities will impact the visual character of the 
project right-of-way and surrounding vicinity and related mitigation 
measures. The Commission's existing regulations encourage, but do not 
require, applicants to supplement this description with visual aids.
    349. In the NOPR, the Commission explained that more specific 
information is needed to evaluate the effects of the proposed project 
facilities on visual resources. Additionally, to assess visual impacts 
of infrastructure projects, including high-voltage transmission lines, 
staff has, in some cases, used the Bureau of Land Management's Visual 
Resource Management methodology,\429\ and other agencies have used the 
Federal Highway Administration's Visual Impact Assessment for Highway 
Projects.\430\ Therefore, the NOPR sought comment on whether either of 
these tools, or any other tool, is appropriate for our analysis. In the 
NOPR, the Commission also proposed to revise the Land use, recreation, 
and aesthetics resource report to require that the applicant identify 
the area of potential visual effects from the proposed project; 
describe any visually sensitive areas, visual classifications, and key 
viewpoints in the project vicinity; and provide visual aids to support 
the evaluation of visual impacts from the proposed project.
---------------------------------------------------------------------------

    \429\ See, e.g., Final Environmental Impact Statement for the 
Swan Lake North Pumped Storage Project (P-13318-003).
    \430\ See, e.g., Final Environmental Impact Statement for the 
Susquehanna to Roseland 500kv Transmission Line Right-of-Way and 
Special Use Permit at 588, https://parkplanning.nps.gov/document.cfm?documentID=49285&parkID=220&projectID=25147.
---------------------------------------------------------------------------

ii. Comments
    350. Arizona Game and Fish recommends including coordination with 
State natural resource agencies and other local stakeholders to 
identify potential impacts on recreation and opportunities to maintain 
public access.\431\
---------------------------------------------------------------------------

    \431\ Arizona Game and Fish Comments at 3.
---------------------------------------------------------------------------

    351. Interior requests that Sec.  380.16(l)(4), as revised and 
redesignated in the NOPR, be further modified to require the applicant 
to identify, by milepost and length of crossing, any National Park 
System units and program lands within 0.25 mile of a proposed 
facility.\432\
---------------------------------------------------------------------------

    \432\ Interior Comments at 2.
---------------------------------------------------------------------------

    352. Impacted Landowners state that the Land use, recreation, and 
aesthetics resource report must identify agricultural land by acreage 
and use, and describe permanent and temporary impacts on agritourism, 
crops, yields, irrigation, drainage, soil quality, livestock, aerial 
application of seed, fertilizer, and pesticides.\433\ Impacted 
Landowners also ask that this resource report include estimates of 
financial impacts on the impacted agricultural businesses from the 
construction and operation of the project over its expected life and 
identify farmlands designated as prime, unique, or farmlands of 
statewide or local importance, including an explanation of how the 
construction of a transmission project on working farmland complies 
with the Farmland Protection Policy Act.\434\
---------------------------------------------------------------------------

    \433\ Impacted Landowners Comments at 17.
    \434\ 7 U.S.C. 4201-4209.
---------------------------------------------------------------------------

    353. Impacted Landowners request that the Land use, recreation, and 
aesthetics resource report require applicants to investigate 
transmission line interference with farm equipment electronics and GPS 
systems that are essential to modern precision agriculture.\435\ They 
further state that different positions of the transmission line in 
relation to the field may also produce different effects.
---------------------------------------------------------------------------

    \435\ Impacted Landowners Comments at 17.
---------------------------------------------------------------------------

    354. Interior recommends including National Park System units and 
program

[[Page 46722]]

lands in the described areas of potential visual effects by adding the 
following to redesignated Sec.  380.16(l)(6): the National Park System 
(54 U.S.C. 100101), National Historic Landmarks, National Natural 
Landmarks, Land and Water Conservation Fund State Assistance Program 
sites, and the Federal Lands to Parks program lands.\436\
---------------------------------------------------------------------------

    \436\ Interior Comments at 2.
---------------------------------------------------------------------------

    355. In response to the Commission seeking comment in the NOPR on 
whether any specific tools are appropriate for our visual analysis, 
commenters provide various recommendations.
    356. First, ACEG recommends that the Commission and other Federal 
agencies involved in assessing impacts from transmission facilities 
consistently apply the same methodologies for reviewing visual impacts 
(e.g., Bureau of Land Management or Federal Highway Administration 
visual impact assessment tools).\437\ ACEG states that consistently 
applying the same methodology will allow the Commission to further 
develop expertise with that particular methodology.
---------------------------------------------------------------------------

    \437\ ACEG Comments at 19.
---------------------------------------------------------------------------

    357. Interior recommends that applicants use the National Park 
Service Visual Impact Assessment Methodology and Guidelines when 
describing visually sensitive areas within the viewsheds of National 
Park System units.\438\
---------------------------------------------------------------------------

    \438\ Interior Comments at 2.
---------------------------------------------------------------------------

    358. The Chickahominy Indian Tribe, Nansemond Indian Nation, 
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe support the 
proposed requirement in the Land use, recreation, and aesthetics 
resource report that visual aids be prepared to evaluate visual 
impacts. The Tribes state that the regulations should expressly provide 
that Tribes be consulted in identifying visually sensitive areas and 
key viewpoints. The Tribes suggest using a combination of the Bureau of 
Land Management's Visual Resource Management methodology to guide on-
the-ground work and the National Park Service's Visual Impact 
Assessment Evaluation Guide for Renewable Energy Projects to set the 
methodological framework to conduct the visual impacts analysis.\439\
---------------------------------------------------------------------------

    \439\ Chickahominy Indian Tribe, Nansemond Indian Nation, 
Rappahannock Indian Tribe, and Upper Mattaponi Indian Tribe Comments 
at 4.
---------------------------------------------------------------------------

iii. Commission Determination
    359. We adopt the NOPR's proposal to revise the Land use, 
recreation, and aesthetics resource report to include interior forest, 
clarify the scope of structures and facilities to be identified and 
depicted on maps, require copies of any consultation with the Federal 
Aviation Administration, and identify the area of potential visual 
effects and visual characteristics of the affected lands and waters, 
including use of visual aids. Based on commenter feedback regarding 
appropriate tools for performing visual analyses, we also adopt one 
modification to redesignated Sec.  380.16(l)(10) to require the 
applicant to identify, and justify the selection of, the tools or 
methodologies it uses to develop the required information on visual 
effects. We find that adopting this modification and the changes 
proposed in the NOPR will assist the Commission's analysis of effects 
on land use and aesthetics under NEPA.
    360. In response to Arizona Game and Fish's request to require 
coordination with State natural resource agency and other local 
stakeholders, under Sec.  50.4(c), applicants are required to provide 
project notifications to stakeholders upon entering the pre-filing 
process and submitting an application to the Commission, which includes 
State natural resource agencies and other local stakeholders, as 
applicable. In addition, the Commission would include such stakeholders 
on project mailing lists to receive Commission notices throughout the 
project's review. Thus, State agencies and local stakeholders will be 
invited to participate in the process.
    361. Regarding Interior's request for National Park System units 
and program lands to be identified in the Land use, recreation, and 
aesthetics resource report, the existing regulations in redesignated 
Sec.  380.16(l)(4) already require applicants to identify national 
parks that would be directly affected or are within 0.25 mile of any 
proposed facility.
    362. In response to Impacted Landowners' requested additions 
regarding agricultural lands and qualities, the Land use, recreation, 
and aesthetics resource report already requires the applicant to 
identify agricultural land by acreage and use (redesignated Sec.  
380.16(l)(2)) and describe permanent and temporary impacts on 
agricultural land use (redesignated Sec.  380.16(l)(8)). In addition, 
the Soils resource report requires the applicant to identify prime and 
unique farmlands (redesignated Sec.  380.16(k)(3)) and address soil 
quality/characteristics, including drainage, potential impacts on 
soils, and mitigation measures (redesignated Sec. Sec.  380.16(k)(1) 
through 380.16(k)(4)). The financial impacts from crop loss are highly 
specific, based on the type of crop, duration of impact, and local 
market conditions. Thus, these impacts are more appropriately addressed 
through easement negotiations or through an eminent domain proceeding.
    363. As to compliance with the Farmland Protection Policy Act, this 
law applies to Federal programs that may permanently convert farmland 
to nonagricultural use, where Federal programs are activities that 
``involve undertaking, financing, or assisting construction or 
improvement projects or acquiring, managing, or disposing of Federal 
lands and facilities.'' \440\ Further, the regulations implementing the 
Farmland Protection Policy Act specifically exclude Federal permitting 
and licensing programs for activities on private or non-Federal 
lands.\441\ Accordingly, the Farmland Protection Policy Act does not 
apply to the Commission's review of electric transmission projects.
---------------------------------------------------------------------------

    \440\ 7 U.S.C. 4201(c)(4).
    \441\ 7 CFR 658.2(c) (2023).
---------------------------------------------------------------------------

    364. Regarding transmission line interference with farm equipment 
electronics and GPS systems, Sec.  50.7(g)(1)(v) already requires 
applicants to describe line design features for minimizing radio 
interference caused by operation of proposed facilities. In addition, 
redesignated Sec. Sec.  380.16(o)(6) through (o)(8) under the 
Reliability and safety resource report, as proposed in the NOPR and 
adopted herein, include requirements to: describe the electromagnetic 
fields to be generated by proposed transmission lines, including 
strength and extent; discuss the potential for electrical noise from 
electric and magnetic fields as they may affect communication systems; 
and discuss the potential for induced or conducted currents along the 
transmission right-of-way from electric and magnetic fields. Therefore, 
the requested update to the Land use, recreation, and aesthetics 
resource report is unnecessary.
    365. In response to Interior's requested additions to redesignated 
Sec.  380.16(l)(6) to describe areas of potential visual effects, we 
note that the referenced regulation is not applicable to visual 
effects, but simply requires the applicant to identify National Wild 
and Scenic Rivers Systems, National Trails Systems, and Wilderness Act 
areas that would be crossed by, or within 0.25 mile of, a project. 
However, the Land use, recreation, and aesthetics resource report 
requires applicants to identify the area of potential visual effects, 
including visually sensitive areas and key viewpoints, under the NOPR's 
revised and redesignated Sec.  380.16(l)(10).

[[Page 46723]]

Further, the National Park System would be included on the Commission's 
stakeholder mailing list, if lands are in close proximity to a proposed 
project, and the Commission would work with the applicant during pre-
filing to identify any visually sensitive areas that need to be 
evaluated, including any National Park System lands.
    366. Considering the comments received on whether any specific 
tools are appropriate for our visual analysis, and additional research, 
we recognize that a number of Federal agencies have developed their own 
visual impact assessment tools or methodologies for purposes of 
assessing proposed infrastructure projects.\442\
---------------------------------------------------------------------------

    \442\ See Bureau of Land Management's Visual Resource Management 
methodology, Federal Highway Administration's Visual Impact 
Assessment for Highway Projects, National Park Service's Visual 
Impact Assessment Methodology and Guidelines, and U.S. Army Corps of 
Engineers' Visual Resources Assessment Procedure.
---------------------------------------------------------------------------

    367. Based on the comments received, there is no consensus on the 
appropriate methodology or tool that the Commission or applicants 
should use to assess the visual effects of proposed transmission 
projects. Further, proposed projects under the Commission's 
jurisdiction could be within the viewshed of any number of Federal 
lands, where relevant land management agencies may employ different 
methodologies. We also recognize that new or revised methodologies and 
tools may become available in the future. Therefore, we decline to 
mandate the use of a specific tool or methodology in the Commission's 
regulations. Instead, this final rule revises Sec.  380.16(l)(10) to 
require the applicant to identify, and justify the selection of, the 
tools or methodologies it uses to develop the required information on 
visual effects. We recognize that there may be efficiency gains if 
applicants use the applicable Federal agency guidance, methodology, or 
tool for assessing visual impacts on corresponding Federal agency land 
(e.g., applicants use the National Park Service Visual Impact 
Assessment Methodology and Guidelines when analyzing visual impacts on 
the viewsheds of National Park System units) and we support allowing 
for such flexibility in the Commission's regulations.
    368. Regarding Tribes' requests that Tribes be consulted in 
identifying visually sensitive areas and key viewpoints, we encourage 
applicants to seek to engage Tribes when identifying visually sensitive 
areas and key viewpoints. Tribes may provide comments on visually 
sensitive areas and key viewpoints during the applicant's efforts to 
engage Tribes early in the permitting process, during government-to-
government consultation with the Commission, or during any of the 
comment periods that occur during the Commission's pre-filing and 
application processes.
g. Resource Report 11--Air Quality and Environmental Noise
i. NOPR Proposal
    369. The Commission explained in the NOPR that the existing 
Reliability and safety resource report requires applicants to indicate 
the noise level generated by the proposed transmission line and compare 
the noise level to any known noise ordinances for the zoning districts 
through which the line will pass. The NOPR further explained that the 
Commission's regulations do not currently require applicants to submit 
information on proposed project emissions and the corresponding effects 
on air quality and the environment.
    370. The Commission stated in the NOPR that, to fully evaluate the 
effects of a proposed project in furtherance of the Commission's 
obligations under NEPA,\443\ additional information on emissions, air 
quality, and environmental noise is necessary. Therefore, the 
Commission proposed to add a new resource report, Resource Report 11--
Air quality and environmental noise, in Sec.  380.16(m). As proposed, 
the report would require the applicant to estimate emissions from the 
proposed project and the corresponding impacts on air quality and the 
environment, estimate the impact of the proposed project on the noise 
environment, and describe proposed measures to mitigate the impacts. 
Consistent with the Commission's requirements for natural gas 
compressor stations,\444\ the NOPR also proposed to establish a noise 
limit for proposed substations and appurtenant facilities as 
experienced at pre-existing noise-sensitive areas, such as schools, 
hospitals, or residences.
---------------------------------------------------------------------------

    \443\ NEPA requires the Commission to take a ``hard look'' at 
the environmental impacts of a proposed action. See 42 U.S.C. 
4332(2)(C); Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 
462 U.S. 87, 97 (1983).
    \444\ 18 CFR 380.12(k)(4)(v)(A) (2023).
---------------------------------------------------------------------------

    371. Under proposed Sec.  380.16(m)(1), the Air quality and 
environmental noise resource report must describe the existing air 
quality in the project area, indicate if any project facilities are 
located within a designated nonattainment or maintenance area under the 
Clean Air Act,\445\ and provide the distance from the project 
facilities to any Class I area in the project vicinity. Under proposed 
Sec.  380.16(m)(3), the resource report must estimate emissions from 
the proposed project and the corresponding impacts on air quality and 
the environment. Specifically, the applicant must provide the 
reasonably foreseeable emissions from construction, operation, and 
maintenance of the project facilities; provide a comparison of 
emissions with applicable General Conformity thresholds (40 CFR part 
93) for each designated nonattainment or maintenance area; identify the 
corresponding impacts on communities and the environment in the project 
area; and describe any proposed mitigation measures to control 
emissions.
---------------------------------------------------------------------------

    \445\ 42 U.S.C. 7401 et seq.
---------------------------------------------------------------------------

    372. Under proposed Sec.  380.16(m)(2), the resource report must, 
for proposed substations and appurtenant facilities, quantitatively 
describe existing noise levels at nearby noise-sensitive areas. Under 
proposed Sec.  380.16(m)(4), the resource report must provide a 
quantitative estimate of project operation (including proposed 
transmission lines, substations, and other appurtenant facilities) on 
noise levels. The operational noise estimates must demonstrate that the 
proposed project will comply with applicable State and local noise 
regulations and that noise attributable to any proposed substation or 
appurtenant facility does not exceed a day-night sound level of 55 
decibels on the A-weighted scale at any pre-existing noise-sensitive 
area.\446\ Additionally, the resource report must describe the impact 
of proposed construction activities on the noise environment and any 
proposed mitigation measures to reduce noise impacts.
---------------------------------------------------------------------------

    \446\ The EPA has indicated that a day-night noise level of 55 
decibels on the A-weighted scale protects the public from indoor and 
outdoor activity interference. The Commission has adopted this 
criterion and uses it to evaluate the potential noise impact from 
operation of natural gas compressor facilities. Elba Express Co., 
L.L.C., 141 FERC ] 61,027, at P 21 n.12 (2012). We think it is 
appropriate to use this same criterion to evaluate the potential 
noise impact from operation of substations and appurtenant 
facilities.
---------------------------------------------------------------------------

ii. Comments
    373. Multiple commenters express support for the inclusion of the 
new Air quality and environmental noise resource report, stating that 
the Commission is well within its statutory authority to adopt NEPA 
regulations that include information needed to perform air quality 
analyses.\447\

[[Page 46724]]

Conversely, Chamber of Commerce states that the Commission should 
remove the Air quality and environmental noise resource report because 
it is unclear what emissions result from the direct operation of a 
transmission line, and the focus on any such emissions lacks 
congressional direction.\448\
---------------------------------------------------------------------------

    \447\ Arizona Game and Fish Comments at 2; Public Interest 
Organizations Comments at 108-114; CATF Comments at 14; Los Angeles 
DWP Comments at 4-5.
    \448\ Chamber of Commerce Comments at 3.
---------------------------------------------------------------------------

    374. ClearPath opposes the proposal to estimate emissions from the 
project, including reasonably foreseeable emissions, because the 
requirements are too vague to be met or understood by applicants \449\ 
and ELCON recommends that the Commission remove the mitigation 
requirements.\450\ ACORE and ACEG recommend that the Commission apply 
the ``rule of reason and the concept of proportionality'' to emissions 
requirements so as not to require an in-depth disclosure of emissions 
for small projects.\451\
---------------------------------------------------------------------------

    \449\ ClearPath Comments at 7-8.
    \450\ ELCON Comments at 9-10.
    \451\ ACORE Comments at 5 (citing CEQ's Interim Guidance on 
Consideration of Greenhouse Gas Emissions and Climate Change, 88 FR 
1196 (Jan. 9, 2023) (CEQ's Interim GHG Guidance)); ACEG Comments at 
19-20 (same).
---------------------------------------------------------------------------

    375. Policy Integrity requests that the Commission clarify that the 
analysis of alternatives under NEPA include upstream emissions from 
changes to power-system operations as these changes are reasonably 
foreseeable and essential to the Commission's public interest 
determination under the FPA.\452\ Similarly, Sabin Center and Policy 
Integrity recommend requiring that applicants provide an estimate of 
both direct and indirect emissions, including upstream emissions 
associated with upstream electric generation facilities.\453\ 
Conversely, Representatives McMorris Rodgers and Duncan question what 
specific statutory authority the Commission is relying upon to require 
the estimation of upstream emissions.\454\
---------------------------------------------------------------------------

    \452\ Policy Integrity Comments at 2 and 4-17.
    \453\ Sabin Center Comments at 2 and 6-8; Policy Integrity 
Comments at 12-17.
    \454\ Representatives McMorris Rodgers and Duncan Comments at 2.
---------------------------------------------------------------------------

    376. Several commenters request that the Commission consider a 
transmission project's effect on greenhouse gas (GHG) emissions or 
climate change as part of its NEPA reviews.\455\ ACEG also recommends 
that along with the ``rule of reason'' for emissions disclosure, the 
Commission should consider the air quality benefits from a project due 
to connection of renewable energy projects onto the grid.\456\ Several 
commenters state that the Commission or the applicant should include 
information on how a transmission project would impact the climate due 
to upstream GHG emissions from the generation of electricity--and the 
Commission's FPA determination should consider this analysis.\457\ The 
commenters indicate that data and models exist to estimate these 
changes and constitute a reasonably foreseeable impact. Conversely, 
Senator Barrasso states that the Commission should not apply CEQ's 
Interim GHG Guidance to electric transmission facility reviews, 
questioning its applicability to the Commission as an independent 
agency.\458\
---------------------------------------------------------------------------

    \455\ Sabin Center Comments at 2 and 5-8; Public Interest 
Organizations Comments at 108-114; CATF Comments at 16 (recommending 
that the Commission follow the CEQ's Interim GHG Guidance).
    \456\ ACEG Comments at 19-20.
    \457\ Sabin Center Comments at 2 and 5; Public Interest 
Organizations Comments at 108-114; Policy Integrity Comments at 2 
and 4-17.
    \458\ Senator Barrasso Comments at 2 and 6.
---------------------------------------------------------------------------

    377. Policy Integrity states that the Commission should explicitly 
require that cumulative impacts analyses include increased exposure to 
criteria pollutants even when the overall modeled impacts remain below 
the Clear Air Act's National Ambient Air Quality Standards 
(NAAQS).\459\ It notes that the NAAQS are not set at a level of zero 
risk, and that sub-NAAQS impacts can be especially significant in 
environmental justice communities with certain sensitive receptors. 
Additionally, Policy Integrity requests that the Commission consider 
the health impacts that environmental justice communities face under 
higher levels of criteria pollutants, including from power-system 
impacts, even when the NAAQS are not exceeded.\460\
---------------------------------------------------------------------------

    \459\ Policy Integrity Comments at 43-44.
    \460\ Policy Integrity Comments at 44.
---------------------------------------------------------------------------

    378. Interior and Arizona Game and Fish recommend considering the 
effect of noise from the proposed project on wildlife and habitat.\461\ 
In regard to the effects of noise in sensitive wildlife habitats on 
threatened and endangered species, Interior recommends that the 
Commission require applicants to address wildlife-specific noise 
thresholds, like those specific to sage grouse and other avian species 
that may be relevant in significant wildlife areas.
---------------------------------------------------------------------------

    \461\ Interior Comments at 1; Arizona Game and Fish Comments at 
2.
---------------------------------------------------------------------------

iii. Commission Determination
    379. We adopt the NOPR's proposal to add Resource Report 11--Air 
quality and environmental noise with one modification to clarify noise 
compliance standards. We agree with commenters that the Commission's 
authority to require submission of information to assess the potential 
for air quality and environmental noise impacts from the development of 
an energy infrastructure project is well-established under law, and 
necessary for the Commission to achieve its statutory obligations under 
the FPA, NEPA, and the Clean Air Act.
    380. In response to the Chamber of Commerce's comments, we clarify 
that the Commission is required under NEPA to consider impacts from the 
proposed project that are reasonably foreseeable.\462\ While the scope 
of project impacts that are reasonably foreseeable is a fact-specific 
determination, we note that such impacts may include emissions due to 
construction, operation, and maintenance of proposed transmission 
facilities.
---------------------------------------------------------------------------

    \462\ 42 U.S.C. 4332(2)(C).
---------------------------------------------------------------------------

    381. In addition to NEPA, the Commission has further 
responsibilities under the Clean Air Act.\463\ Specifically, under 
EPA's General Conformity regulations,\464\ the Commission must address 
whether an action will result in construction or operation emissions 
that exceed de minimis thresholds in areas designated as having poor or 
recovering air quality.
---------------------------------------------------------------------------

    \463\ 42 U.S.C. 7506(c).
    \464\ 40 CFR 93.150-93.165 (2023).
---------------------------------------------------------------------------

    382. We are adopting the proposed requirement for applicants to 
provide an estimate of reasonably foreseeable emissions from 
construction, operation, and maintenance of the project facilities to 
ensure that the Commission meets its NEPA obligation to take a ``hard 
look'' at environmental impacts and so that the Commission can satisfy 
its Clean Air Act obligations. In response to ELCON's comments, we 
clarify that the Air quality and environmental noise resource report 
does not require an applicant to mitigate impacts, but rather requires 
the applicant to submit information about any proposed mitigation of 
impacts. We also clarify, in response to ACORE's and ACEG's comments, 
that the necessary analysis of emissions impacts will vary based on the 
factual circumstances, including whether such impacts are reasonably 
foreseeable.\465\
---------------------------------------------------------------------------

    \465\ We will not opine on the applicability of CEQ's Interim 
GHG Guidance in this final rule, which relates to the Commission's 
own evaluation of GHG emissions and not the information that 
applicants must file in the resource report.
---------------------------------------------------------------------------

    383. We disagree that upstream emissions, including GHGs, from a 
proposed project should always be provided by the applicant. As noted 
above, the proposed Air quality and environmental noise resource report 
requires applicants to estimate the

[[Page 46725]]

reasonably foreseeable emissions from the proposed project, and the 
scope of project effects that are reasonably foreseeable is a fact-
specific determination made on a case-by-case basis. We find that the 
NOPR's proposed regulations are sufficient to afford the flexibility 
needed for applicants to include the appropriate scope of emissions to 
support the Commission's NEPA analysis, which will use relevant and 
applicable guidance at the time of each analysis. If upstream emissions 
are determined, based on the factual circumstances, to be reasonably 
foreseeable and caused by the proposed project, the Commission may 
request any needed information and assess those emissions under NEPA.
    384. We decline Policy Integrity's request to specify the content 
of cumulative impacts analyses because Policy Integrity's comments 
appear to focus on the Commission's cumulative impact analyses under 
NEPA and not the information that applicants must file in the resource 
report. The proposed Air quality and environmental noise resource 
report requires sufficient information for Commission staff to review 
the magnitude and nature of emissions on a project-by-project basis to 
determine whether those emissions will have an impact on, among other 
things, local and regional air quality and environmental justice 
communities. If case-specific circumstances require more information to 
address cumulative air quality impacts, Commission staff may request 
supplemental information from the applicant.
    385. We decline to adopt specific requirements in the Air quality 
and environmental noise resource report to address wildlife-specific 
noise impacts. We note that Commission staff consults with relevant 
resource agencies to identify potential impacts, including noise 
impacts, on sensitive habitats and federally listed threatened or 
endangered species during the NEPA review process and the consultation 
process under section 7 of the Endangered Species Act \466\ for a 
proposed project. Accordingly, impacts on wildlife and wildlife-
specific noise thresholds are best considered on a case-by-case basis 
while working with applicable agencies.
---------------------------------------------------------------------------

    \466\ 16 U.S.C. 1536(a)(2).
---------------------------------------------------------------------------

    386. Finally, this final rule modifies proposed Sec.  
380.16(m)(4)(i)(D) to clarify the applicant's responsibilities 
regarding operational noise estimates and applicable State and local 
noise regulations, consistent with the Commission's noise analyses in 
natural gas proceedings.\467\ Specifically, we clarify that the 
applicant must demonstrate that noise attributable to any proposed 
substation or appurtenant facility does not exceed a day-night sound 
level of 55 decibels on the A-weighted scale at any pre-existing noise 
sensitive area and compare the proposed project's operational noise 
estimates with applicable State and local noise regulations.
---------------------------------------------------------------------------

    \467\ Commission staff routinely asks applicants in natural gas 
proceedings to provide information about State and local noise 
regulations. See, e.g., Commission staff, Environmental Data 
Request, Docket No. CP16-486, at 7 (issued Oct. 7, 2016) (Question 
No. 6); Commission staff, Environmental Data Request, Docket No. 
CP18-548, at 15 (issued Dec. 18, 2018) (Question No. 60); see also 
FERC, Guidance Manual for Environmental Report Preparation--Volume. 
1, at 4-130 (Feb. 2017), https://www.ferc.gov/sites/default/files/2020-04/guidance-manual-volume-1.pdf.
---------------------------------------------------------------------------

h. Resource Report 12--Alternatives
i. NOPR Proposal
    387. This resource report requires the applicant to describe 
alternatives to the project, including the ``no action'' alternative, 
and to compare the environmental impacts of such alternatives. In the 
NOPR, the Commission proposed only minor, clarifying edits to this 
resource report.
ii. Comments
    388. California Commission states that the Commission should 
consider non-wire alternatives.\468\ Similarly, North Carolina 
Commission and Staff urge the Commission to require applicants to 
demonstrate that the project is preferable to reasonably available 
alternatives to reduce congestion, including additional generation, 
non-wire alternatives, and other less-intrusive or less-costly 
transmission projects.\469\
---------------------------------------------------------------------------

    \468\ California Commission Comments at 4.
    \469\ North Carolina Commission and Staff Comments at 14.
---------------------------------------------------------------------------

    389. Public Interest Organizations advocate for a robust 
consideration of alternatives, and request that the Commission amend 
its regulations to require the consideration of accomplishing the 
proposed objectives of a transmission project through the use of other 
systems or energy conservation, and require an analysis of alternative 
routes, similar to the Commission's requirement for natural gas 
pipeline projects.\470\ Commenters further state that although the 
Commission may only approve transmission projects within National 
Corridors, considering alternative routes outside of National Corridors 
is still necessary, and that the Commission should ensure that 
alternatives proposed by the public during the NEPA process and those 
developed within the State siting process are considered.\471\ Noting 
that many States require the consideration of multiple routes, OMS 
seeks clarity on whether the Commission will evaluate multiple routes 
and how the Commission defines alternatives.\472\
---------------------------------------------------------------------------

    \470\ Public Interest Organizations Comments at 123-125.
    \471\ California Commission Comments at 7; Public Interest 
Organizations Comments at 123-125.
    \472\ OMS Comments at 5.
---------------------------------------------------------------------------

    390. The Yurok Tribe states that the Commission must require 
consideration of alternatives that do not negatively affect Tribes, 
including alternative routes or significant mitigation measures.\473\ 
The Yurok Tribe further requests the Commission require among the 
alternatives at least one alternative that includes mitigation measures 
for which Tribes have communicated explicit support.\474\ The Yurok 
Tribe states that a robust study of alternatives is critical not only 
to NEPA compliance, but also to implement the FPA's mandate that 
approved projects be ``sound national energy policy'' and ``consistent 
with the public interest.'' \475\ The Yurok Tribe states that 
consideration of alternatives put forth by Tribes is a fundamental part 
of the NEPA process, the Tribal consultation process, and the Federal 
trust duty. Finally, the Yurok Tribe states that it would be 
antithetical to the rulemaking for the Commission to not incorporate a 
requirement to consider any alternatives put forth by Tribes and not 
provide in-depth explanation if that alternative is not pursued.\476\
---------------------------------------------------------------------------

    \473\ Yurok Tribe Comments at 40-42.
    \474\ Id.
    \475\ Id. at 41.
    \476\ Id. at 41-42.
---------------------------------------------------------------------------

    391. Impacted Landowners and Rail Electrification Council state 
that the Commission should require at least one alternative exploring 
the use of existing road or rail rights-of-way, including the 
consideration of buried transmission lines to reduce environmental and 
economic impacts, and reliability and safety hazards.\477\ Rail 
Electrification Council argues that the consideration of proposed 
transmission lines within or alongside existing rights-of-way serves as 
a means of mitigating or avoiding altogether potentially adverse 
environmental, socio-economic, reliability, or other impacts of a 
project; promotes an efficient use of resources; advances regional 
plans; and averts or

[[Page 46726]]

minimizes undue harm to communities.\478\
---------------------------------------------------------------------------

    \477\ Impacted Landowners Comments at 18; Rail Electrification 
Council Comments at 7-9.
    \478\ Rail Electrification Council Comments at 8 (referencing 
https://nextgenhighways.org/; see also ACEG, Report: Recommended 
Siting Practices for Electric Transmission Developers, Sec. 4 ``Co-
Location in Existing Rights-of-Way'' (Feb. 2023), https://cleanenergygrid.org/portfolio/recommended-siting-practices-electric-transmission-developers/).
---------------------------------------------------------------------------

    392. Conversely, Public Interest Organizations state that the 
Commission's regulations should clarify how the requirement to consider 
using existing rights-of-way can be rendered more equitable through the 
consideration of alternatives that mitigate impacts to communities and 
habitats that already bear burdens from existing infrastructure.\479\ 
Public Interest Organizations notes that, when facilities are located 
in existing rights-of-way, the NEPA analysis must include alternatives 
that reduce cumulative impacts in these rights-of-way.
---------------------------------------------------------------------------

    \479\ Public Interest Organizations Comments at 130-131.
---------------------------------------------------------------------------

iii. Commission Determination
    393. We adopt the NOPR's proposal to make minor, clarifying edits 
to the Alternatives resource report. As discussed below, we find it 
unnecessary to add new requirements to this report as suggested by 
commenters.
    394. In response to comments regarding non-wire, system, and energy 
conservation alternatives; multiple route alternatives; alternatives 
that use existing rights-of-way; alternatives outside of National 
Corridors; and alternatives put forth by Tribes and other stakeholders, 
NEPA requires the Commission to consider and discuss only reasonable 
alternatives.\480\ Based on the Commission's experience in hydropower 
and natural gas pipeline proceedings, the range of reasonable 
alternatives can best be determined based upon the facts of a specific 
siting proposal. Under NEPA, an alternative that the Commission 
considers must be able to meet the action's purpose and need and must 
be technically and economically feasible (i.e., not merely 
speculative), both which vary based on the circumstances.\481\ We 
therefore decline requests to determine, on a generic basis, reasonable 
alternatives that must be analyzed in every case.
---------------------------------------------------------------------------

    \480\ See American Rivers v. FERC, 201 F.3d 1186, 1200 (9th Cir. 
2000).
    \481\ See 42 U.S.C. 4332(C)(iii) (as amended by the Builder 
Act).
---------------------------------------------------------------------------

    395. In response to comments requesting that the Commission's 
regulations include information and findings regarding alternatives as 
developed within the State siting process, we again note that the 
Commission will consider all reasonable alternatives raised in a 
Commission proceeding.
i. Resource Report 13--Reliability and Safety
i. NOPR Proposal
    396. This resource report requires the applicant to address 
reliability and safety considerations, including the potential hazard 
to the public from the proposed facilities resulting from accidents or 
natural catastrophes; how these events would affect reliability; and 
the procedures and design features employed to reduce potential 
hazards.\482\
---------------------------------------------------------------------------

    \482\ 18 CFR 380.16(l).
---------------------------------------------------------------------------

    397. In the NOPR, the Commission proposed to add a requirement that 
the Reliability and safety resource report include a discussion of any 
proposed measures intended to ensure that the facilities proposed by 
the applicant would be resilient with respect to future climate change 
impacts. The Commission also proposed to clarify the existing 
requirement that the Reliability and safety resource report discuss 
contingency plans for maintaining service or reducing downtime by 
adding that such contingency plans should ensure that the proposed 
facilities would not adversely affect the bulk electric system in 
accordance with applicable North American Electric Reliability 
Corporation reliability standards. Finally, given the proposed addition 
of a new Air quality and environmental noise resource report, the NOPR 
also proposed to eliminate a redundant requirement from the Reliability 
and safety resource report that the applicant must indicate the noise 
level generated by the transmission line.
ii. Comments
    398. Sabin Center recommends that the Commission require applicants 
to submit information on expected future climate change impacts and the 
proposed project's risk from and resilience to future climate change 
impacts.\483\
---------------------------------------------------------------------------

    \483\ Sabin Center Comments at 2, 9-10; National Wildlife 
Federation Action Fund Comments at 1; National Wildlife Federation 
Outdoors Comments at 1.
---------------------------------------------------------------------------

    399. Impacted Landowners express concern about the impact on 
workers and farmers from exposure to the electromagnetic fields from 
proposed transmission lines, which would be greater than the sporadic 
exposure to the public, and request that this additional hazard be 
considered.\484\
---------------------------------------------------------------------------

    \484\ Impacted Landowners Comments at 18.
---------------------------------------------------------------------------

    400. Impacted Landowners state that this resource report should be 
expanded to address the applicant's efforts to prevent intentional 
physical acts to destroy electric infrastructure.\485\ Additionally, 
Impacted Landowners recommend that this resource report explore the 
potential for the increased reliability and safety of transmission 
lines when buried on existing linear rights-of-way or installed under 
bodies of water.\486\
---------------------------------------------------------------------------

    \485\ Id. at 18-19.
    \486\ Id.
---------------------------------------------------------------------------

iii. Commission Determination
    401. We adopt the NOPR's proposed changes to the Reliability and 
safety resource report. No commenter raised concerns with the proposed 
changes, and we find that requiring this additional information will 
support the evaluation of the reliability and safety of proposed 
projects. As discussed below, we find it unnecessary to add new 
requirements to this report in response to comments.
    402. In response to comments regarding future climate change 
impacts, no additional changes to the regulations are needed because 
Sec.  380.16(o)(3), as proposed and adopted herein, requires applicants 
to disclose any proposed measures to ensure that the project facilities 
would be resilient against future impacts--such as subsidence, slope 
slumping, wildfires, flooding, and storms--that could be exacerbated by 
climate change. As part of the NEPA analysis, Commission staff would 
evaluate the site-specific risks of the existing and future environment 
on the proposed facilities.
    403. As to Impacted Landowners' comments urging consideration of 
impacts from situational exposure to electromagnetic fields, we decline 
to adopt specific requirements in the resource reports. The EPA \487\ 
and the National Institute of Environmental Health Sciences \488\ have 
concluded that studies have not consistently shown that exposure to 
electromagnetic fields, even for workers over a typical workday, 
constitutes a carcinogenic risk. Therefore, we find it more appropriate 
to address related concerns as they are raised on a project-specific 
basis.
---------------------------------------------------------------------------

    \487\ EPA, Electric and Magnetic Fields from Power Lines, 
https://www.epa.gov/radtown/electric-and-magnetic-fields-power-lines.
    \488\ National Institute of Environmental Health Sciences, EMF 
Electric and Magnetic Fields Associated with the Use of Electric 
Power (June 2002), https://www.niehs.nih.gov/health/topics/agents/emf.
---------------------------------------------------------------------------

    404. Similarly, regarding intentional physical attacks on 
infrastructure, we

[[Page 46727]]

decline to adopt additional requirements in the resource report. Based 
on our experience in natural gas and hydroelectric proceedings, the 
risk and potential impact of intentional physical attacks are more 
appropriately analyzed on a project-specific basis. As part of the NEPA 
analysis for a particular project, Commission staff would identify the 
impact of the proposed facilities on public safety risk. Additionally, 
staff would analyze reasonable project-specific alternatives, such as 
undergrounding transmission lines. During this analysis, each 
alternative's impact on public safety would be considered.
j. Cumulative Impacts
i. NOPR Proposal
    405. In addition to the substance of the individual resource 
reports described above, existing Sec.  380.16 includes general 
requirements that apply to each resource report. In the NOPR, the 
Commission proposed a revision to Sec.  380.16(b)(3) to clarify the 
scope of cumulative effects that must be identified in each resource 
report for consistency with the definition of cumulative effects in 
CEQ's NEPA regulations.\489\
---------------------------------------------------------------------------

    \489\ See 40 CFR 1508.1(g)(3) (2023).
---------------------------------------------------------------------------

ii. Comments
    406. Several commenters request that the Commission apply a robust 
cumulative impacts analysis when reviewing transmission proposals and 
minimize and mitigate impacts on wildlife, with clear evaluation 
methodologies informed by the most updated data and best available 
science, including Indigenous Knowledge and information from local 
communities.\490\ Arizona Game and Fish encourages the Commission to 
further clarify that the cumulative effects identified under 
380.16(b)(3) consider all known or potential projects that could occur 
within the vicinity of the transmission line and potential impacts on 
natural resources, including wildlife habitat and fragmentation.\491\
---------------------------------------------------------------------------

    \490\ National Wildlife Federation Comments at 2; National 
Wildlife Federation Action Fund Comments at 1; National Wildlife 
Federation Outdoors Comments at 1.
    \491\ Arizona Game and Fish Comments at 2.
---------------------------------------------------------------------------

    407. The Yurok Tribe states that the Commission must recognize a 
broad range of cumulative impacts.\492\ The Tribe indicates that 
fragmented lands are a form of cumulative environmental injustice often 
experienced by Tribes; therefore, the cumulative effects analyses must 
also consider the cumulative disruption that projects can cause to 
cultural resources, cultural landscapes, and sacred sites.\493\ The 
Tribe further claims that the Commission must evaluate a transmission 
project's impacts in the context of all prior harms that Tribes' lands, 
cultural resources, and cultural landscapes have sustained, and that to 
properly study cumulative effects, the Commission must build in time 
for Tribal feedback in the development and review of NEPA 
documents.\494\ Public Interest Organizations also indicate that 
placing new infrastructure in existing rights-of-way can exacerbate 
existing impacts on habitats and communities, which may already bear 
disproportionate burdens.\495\
---------------------------------------------------------------------------

    \492\ Yurok Tribe Comments at 39-40.
    \493\ Id. at 39.
    \494\ Id. at 39-40.
    \495\ Public Interest Organizations Comments at 126-131.
---------------------------------------------------------------------------

iii. Commission Determination
    408. We adopt the revision to Sec.  380.16(b)(3) as proposed in the 
NOPR. As proposed and adopted herein, Sec.  380.16(b)(3) requires each 
resource report to identify the effects of construction, operation, and 
maintenance, as well as cumulative effects resulting from the 
incremental effects of the project when added to the effects of other 
past, present, and reasonably foreseeable actions. We find this 
language appropriately defines the scope of cumulative impact analyses, 
as is defined in CEQ's NEPA regulations.
    409. We acknowledge the Commission's responsibility to conduct a 
cumulative impact analysis independent from the applicant's input, 
consistent with the Commission's responsibilities under NEPA and CEQ's 
regulations. The scope of each cumulative impact analysis, including 
other projects to consider, past Tribal harms, and the specific 
resources that may be impacted, will vary on a case-by-case basis.
    410. In response to comments, we note that concerns regarding 
fragmented lands and siting new infrastructure in existing rights-of-
way as potential forms of cumulative environmental injustice and 
disproportionate burdens will be addressed in project-specific 
proceedings. Commission staff would evaluate these concerns, as 
appropriate, in its cumulative impacts analysis pursuant to NEPA.
5. Revisions to 18 CFR 380.13 and 380.14
    411. We adopt the NOPR's proposed amendments to Sec. Sec.  380.13 
(Compliance with the Endangered Species Act) and 380.14 (Compliance 
with the NHPA) to add cross-references to the appropriate paragraphs of 
Sec.  380.16. As the Commission explained in the NOPR, the prior 
omission of these cross-references appears to be an oversight. We also 
adopt the NOPR's proposed revision to Sec.  380.14 to correct the legal 
citation for section 106 of the NHPA,\496\ following the act's 
recodification in title 54 of the U.S. Code.
---------------------------------------------------------------------------

    \496\ 54 U.S.C. 306108.
---------------------------------------------------------------------------

III. Information Collection Statement

    412. The Paperwork Reduction Act \497\ requires each Federal agency 
to seek and obtain the Office of Management and Budget's (OMB) approval 
before undertaking a collection of information directed to ten or more 
persons or contained in a rule of general applicability. OMB 
regulations require approval of certain information collection 
requirements contained in final rules published in the Federal 
Register.\498\ Upon approval of a collection of information, OMB will 
assign an OMB control number and an expiration date. Respondents 
subject to the filing requirements of a rule will not be penalized for 
failing to respond to the collection of information unless the 
collection of information displays a valid OMB control number.
---------------------------------------------------------------------------

    \497\ 44 U.S.C. 3501-3521.
    \498\ See 5 CFR 1320.12 (2023).
---------------------------------------------------------------------------

    413. Public Reporting Burden: The Commission is revising its 
regulations governing applications for permits to site transmission 
facilities under section 216 of the FPA. This final rule modifies 
certain reporting and recordkeeping requirements included in FERC-729 
(OMB Control No. 1902-0238).\499\
---------------------------------------------------------------------------

    \499\ FERC-729 includes the reporting and recordkeeping 
requirements for ``Electric Transmission Facilities.''
---------------------------------------------------------------------------

    414. The revisions to the Commission's regulations associated with 
the FERC-729 information collection are intended to ensure consistency 
with section 216 of the FPA, as amended by the IIJA. The revisions are 
also intended to modernize certain regulatory requirements and to 
incorporate other updates and clarifications to provide for the 
efficient and timely review of permit applications. Several of the 
revisions have information collection implications. For example, the 
final rule requires an applicant to:
     maintain an affected landowner contact log, provide 
certain information to affected landowners, file an affirmative 
statement with the Commission indicating the applicant's intent to 
comply with the Applicant Code of Conduct, and submit monthly

[[Page 46728]]

compliance updates during the pre-filing and application review 
processes; \500\
---------------------------------------------------------------------------

    \500\ These requirements would only apply to applicants who 
elect to comply with the Applicant Code of Conduct set forth in 
proposed Sec.  50.12.
---------------------------------------------------------------------------

     provide additional congestion and system analysis 
information during the pre-filing process and as part of the 
application;
     develop and file, as part of the Project Participation 
Plan, an Environmental Justice Public Engagement Plan describing 
completed and planned targeted outreach to environmental justice 
communities;
     Develop and file, as part of the Project Participation 
Plan, a Tribal Engagement Plan describing completed and planned 
targeted outreach to identified Indian Tribes;
     include in mailed notifications to landowners written 
translations under certain circumstances, publish project notifications 
in online or hard copy periodicals and submit the same to available 
county and municipal government online bulletin boards, and provide the 
Commission with proof of publication;
     develop and file a new resource report describing the 
proposed project's impacts on Tribal resources;
     develop and file a new resource report describing the 
proposed project's impacts on environmental justice communities;
     develop and file a new resource report describing the 
proposed project's impact on air quality and environmental noise;
     provide additional information describing the proposed 
project's visual impacts; and
     provide additional information as part of the following 
existing resource reports: General project description; Water use and 
quality; Fish, wildlife, and vegetation; Soils; Land use, recreation, 
and aesthetics; and Reliability and safety.
    These revisions represent an increase in information collection 
requirements and burden for FERC-729.
    415. The Commission recognizes that some of the information 
collection activities proposed in the NOPR and updated in this final 
rule are novel. Therefore, the Commission sought comments on the burden 
hours and costs associated with the requirements contained in the NOPR.
---------------------------------------------------------------------------

    \501\ We consider the filing of an application, including the 
mandatory pre-filing information, to be a ``response.''
    \502\ The estimates for cost per response are derived using the 
following formula: Average Burden Hours per Response * $100 per Hour 
= Average Cost per Response. The hourly cost figure is the FY2024 
FERC average annual salary plus benefits ($207,786/year or $100/
hour). Commission staff estimates that industry costs for salary 
plus benefits are similar to Commission costs. We note that the NOPR 
provided cost estimates in 2022 dollars.
    \503\ Notwithstanding that compliance with the Applicant Code of 
Conduct is voluntary, we are providing the estimated burden hours 
associated with such compliance.
    \504\ After implementation of this final rule, we estimate one 
application for a permit to site electric transmission facilities 
will be filed per year.
    \505\ This category covers the updates to the project 
notification requirements in Sec.  50.4(c) that require an applicant 
to provide written translation under certain circumstances, publish 
project notifications in other appropriate print and digital media 
outlets in addition to newspaper publication, submit proof of 
publication, and include additional material in the project 
notifications mailed to affected landowners (e.g., the Landowner 
Bill of Rights).
    \506\ This category covers the updates to the congestion and 
system analysis data that an applicant must provide during the pre-
filing process and as part of the application in Exhibit H, System 
analysis data.
    \507\ This category covers additional updates to part 50 of the 
Commission's regulations that involve minor increases in burden 
(e.g., adding an interactive mapping feature to an applicant's 
project website), a reduction in burden (eliminating the requirement 
that an applicant provide seven paper copies of an application, 
exhibits, and other submittals), and no change in burden (revising 
the requirement to provide proposals for prospective third-party 
contractors). We note that eight burden hours that the NOPR reported 
in this category have been relocated to ``Project Notification 
Requirements,'' a new category added to reflect several project 
notification requirements adopted in this final rule.
    \508\ This category covers a variety of updates to Sec.  380.16 
of the Commission's regulations that require an applicant to develop 
and submit additional information as part of the following existing 
resource reports: General project description; Water use and 
quality; Fish, wildlife, and vegetation; Soils; Land use, 
recreation, and aesthetics; and Reliability and safety.
---------------------------------------------------------------------------

    416. The estimated burden and cost for the requirements contained 
in this final rule follow.

                                          Annual Changes Resulting From the Final Rule in Docket No. RM22-7-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Number of
                                        Number of    responses \501\   Total number of     Avg. burden hrs. & cost per      Total annual burden hours &
                                       respondents    per respondent      responses               response \502\                 total annual cost
                                                (1)              (2)    (1) x (2) = (3)  (4)............................  (3) x (4) = 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Current FERC 729 Collection
--------------------------------------------------------------------------------------------------------------------------------------------------------
FERC-729...........................               1                1                  1  9,600 hrs.; $960,000...........  9,600 hrs.; $960,000.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Revisions in RM22-7-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant Code of Conduct \503\....         \504\ 1                1                  1  160 hrs; $16,000...............  160 hrs.; $16,000.
Environmental Justice Public                      1                1                  1  24 hrs.; $2,400................  24 hrs.; $2,400.
 Engagement Plan.
Tribal Engagement Plan.............               1                1                  1  24 hrs.; $2,400................  24 hrs.; $2,400.
Project Notification Requirements                 1                1                  1  144 hrs.; $14,400..............  144 hrs.; $14,400.
 \505\.
Congestion and System Analysis Data               1                1                  1  165 hrs.; $16,500..............  165 hrs.; $16,500.
 \506\.
Other Updates to 18 CFR pt. 50                    1                1                  1  20 hrs.; $2,000................  20 hrs.; $2,000.
 \507\.
Resource Report: Tribal Resources..               1                1                  1  43 hrs.; $4,300................  43 hrs.; $4,300.
Resource Report: Environmental                    1                1                  1  80 hrs.; $8,000................  80 hrs.; $8,000.
 Justice.
Resource Report: Air Quality &                    1                1                  1  296 hrs.; $29,600..............  296 hrs.; $29,600.
 Environmental Noise.
Information on Visual Impacts......               1                1                  1  104 hrs.; $10,400..............  104 hrs.; $10,400.
Other Updates to 18 CFR pt. 380                   1                1                  1  182 hrs.; $18,200..............  182 hrs.; $18,200.
 \508\.
                                    --------------------------------------------------------------------------------------------------------------------
    REQUESTED TOTAL................  ..............  ...............                 11  ...............................  1,242 hrs.; $124,200.
    PREVIOUSLY APPROVED PLUS         ..............  ...............                 12  ...............................  10,842 hrs.; $1,084,200.
     REQUESTED TOTAL.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    417. Titles: FERC-729--Electric Transmission Facilities.
    418. Action: Revisions to information collection FERC-729.
    419. OMB Control Nos.: 1902-0238 (FERC-729).
    420. Respondents: Entities proposing to construct electric 
transmission facilities pursuant to the Commission's authority under 
section 216 of the FPA.
    421. Frequency of Information: Ongoing.

[[Page 46729]]

    422. Necessity of Information: The new information collection 
requirements are necessary for the Commission to carry out its 
responsibilities under the FPA, as amended by the IIJA, and NEPA. The 
required information would enable the Commission to review the features 
of the proposed project and determine whether the proposed project 
meets the statutory criteria enumerated in section 216(b) of the FPA. 
In addition, the revisions to the Commission's mandatory pre-filing 
process that would require certain information to be filed earlier in 
the process would help ensure that an application can be acted on no 
later than one year after the date of filing in compliance with section 
216(h)(4)(B). The revised regulations would affect only the number of 
entities that would pursue a permit to site electric transmission 
facilities.
    423. Internal Review: The Commission has reviewed the revisions and 
has determined that they are necessary. These requirements conform to 
the Commission's need for efficient information collection, 
communication, and management within the energy industry. The 
Commission has assured itself, by means of internal review, that there 
is specific, objective support for the burden estimates associated with 
the information collection requirements.
    424. Interested persons may obtain information on the reporting 
requirements by contacting the Federal Energy Regulatory Commission, 
888 First Street NE, Washington, DC 20426 [Attention: Jean Sonneman, 
Office of the Executive Director], by email to [email protected] 
or by phone (202) 502-8663.
    425. Comments concerning the collections of information and the 
associated burden estimates may also be sent to: Office of Information 
and Regulatory Affairs, Office of Management and Budget, 725 17th 
Street NW, Washington, DC 20503 [Attention: Desk Officer for the 
Federal Energy Regulatory Commission]. Due to security concerns, 
comments should be sent electronically to the following email address: 
[email protected]. Comments submitted to OMB should refer to 
FERC-729 (OMB Control No. 1902-0238).

IV. Environmental Analysis

    426. The Commission is required to prepare an EA or an EIS for any 
action that may have a significant effect on the human 
environment.\509\ The Commission has categorically excluded certain 
actions from this requirement as not having a significant effect on the 
human environment, including the promulgation of rules that are 
clarifying, corrective, or procedural, or that do not substantially 
change the effect of legislation or the regulations being amended.\510\ 
Because the final rule falls within this categorical exclusion, 
preparation of an EA or an EIS is not required.
---------------------------------------------------------------------------

    \509\ Regs. Implementing the Nat'l Env'l Pol'y Act of 1969, 
Order No. 486, 52 FR 47897 (Dec. 10, 1987), FERC Stats. & Regs. ] 
30,783 (1987) (cross-referenced at 41 FERC ] 61,284).
    \510\ 18 CFR 380.4(a)(2)(ii) (2023).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act

    427. The Regulatory Flexibility Act of 1980 (RFA) \511\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The RFA mandates consideration of regulatory alternatives that 
accomplish the stated objectives of applicable statutes and minimize 
any significant economic impact on small entities.\512\ In lieu of 
preparing a regulatory flexibility analysis, an agency may certify that 
a final rule will not have a significant economic impact on a 
substantial number of small entities.\513\
---------------------------------------------------------------------------

    \511\ 5 U.S.C. 601-612.
    \512\ Id. 603(c).
    \513\ Id. 605(b).
---------------------------------------------------------------------------

    428. The Small Business Administration's (SBA) Office of Size 
Standards develops the numerical definition of a small business.\514\ 
The SBA size standard for electric utilities is based on the number of 
employees, including affiliates.\515\ Under SBA's size standards, a 
transmission owner covered under the category of Electric Bulk Power 
Transmission and Control (NAICS code 221121) \516\ is small if, 
including its affiliates, it employs 500 or fewer people.\517\
---------------------------------------------------------------------------

    \514\ 13 CFR 121.101 (2023).
    \515\ Id. 121.201.
    \516\ The North American Industry Classification System (NAICS) 
is an industry classification system that Federal statistical 
agencies use to categorize businesses for the purpose of collecting, 
analyzing, and publishing statistical data related to the U.S. 
economy. United States Census Bureau, North American Industry 
Classification System, https://www.census.gov/eos/www/naics/.
    \517\ 13 CFR 121.201 (Sector 22--Utilities).
---------------------------------------------------------------------------

    429. In Order No. 689, the Commission expected that entities 
seeking approval for transmission siting projects under FPA section 216 
would be major transmission utilities capable of financing complex and 
costly transmission projects.\518\ At that time, the Commission 
anticipated that the high cost of constructing transmission facilities 
would preclude entry into this field by small entities as defined by 
the RFA.\519\ Though the SBA size standard for electric utilities has 
changed from megawatt hours to number of employees since Order No. 689 
was issued, we continue to find it unlikely that small entities in any 
number, let alone a substantial number, will pursue the permitting of 
transmission projects before the Commission. Since Order No. 689, only 
Southern California Edison, which would not qualify as a small entity 
under the SBA's current size standards, has participated in the 
Commission's pre-filing process for applications to site transmission 
facilities under section 216. To date, the Commission has not received 
any applications for permits to site transmission facilities under 
section 216.
---------------------------------------------------------------------------

    \518\ Order No. 689, 117 FERC ] 61,202 at P 73.
    \519\ Id.
---------------------------------------------------------------------------

    430. Accordingly, pursuant to section 605(b) of the RFA, the 
Commission certifies that this final rule would not have a significant 
economic impact on a substantial number of small entities.

VI. Document Availability

    431. In addition to publishing the full text of this document in 
the Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov).
    432. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    433. User assistance is available for eLibrary and the FERC's 
website during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

VII. Effective Date and Congressional Notification

    434. These regulations are effective July 29, 2024. The Commission 
has determined, with the concurrence of the Administrator of the Office 
of Information and Regulatory Affairs of OMB, that this rule is not a 
major rule as defined in section 251 of the Small Business Regulatory 
Enforcement

[[Page 46730]]

Fairness Act of 1996.\520\ This rule is being submitted to the Senate, 
House, Government Accountability Office, and Small Business 
Administration.
---------------------------------------------------------------------------

    \520\ 5 U.S.C. 804(2).

---------------------------------------------------------------------------
    By the Commission.

    Issued May 13, 2024.
Debbie-Anne A. Reese,
Acting Secretary.

List of Subjects

18 CFR Part 50

    Administrative practice and procedure, Electric power, Reporting 
and recordkeeping requirements.

18 CFR Part 380

    Environmental impact statements, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, the Commission amends parts 50 
and 380, chapter I, title 18, Code of Federal Regulations, as follows.

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

0
1. The authority citation for part 50 is revised to read as follows:

    Authority: 16 U.S.C. 824p; DOE Delegation Order No. S1-DEL-FERC-
2006.


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


Sec.  50.1  Definitions.

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


Sec.  50.2  [Amended]

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

0
4. Amend Sec.  50.3 by revising paragraph (b) to read as follows:


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

* * * * *
    (b) Applications, amendments, and all exhibits and other 
submissions required to be furnished by an applicant to the Commission 
under this part must be submitted in electronic format.
* * * * *

0
5. Amend Sec.  50.4 as follows:
0
a. Revise paragraphs (a)(1) through (3);
0
b. Add paragraphs (a)(4) and (5); and
0
c. Revise paragraphs (b)(1)(ii) and (c)(1) through (4).
    The revisions and addition read as follows:


Sec.  50.4  Stakeholder participation.

* * * * *
    (a) * * *
    (1) Identifies specific tools and actions to facilitate stakeholder 
communications and public information, including an up-to-date project 
website with an interactive mapping component, and a readily 
accessible, single point of contact for the applicant;
    (2) Lists all central locations in each county throughout the 
project area where the applicant will provide copies of all its filings 
related to the proposed project;
    (3) Includes a description and schedule explaining how the 
applicant intends to respond to requests for information from the 
public, permitting entities, and other legal entities with local 
authorization requirements; and
    (4) Includes an Environmental Justice Public Engagement Plan that 
addresses all targeted outreach to identified environmental justice 
communities. This plan must summarize comments received from 
potentially impacted environmental justice communities during any 
previous outreach activities and describe planned targeted outreach 
activities with such communities during the pre-filing process and 
after the filing of an application, including efforts to identify, 
engage, and accommodate people with limited English proficiency. This 
plan must also describe how the applicant will conduct outreach to 
environmental justice communities about any potential mitigation 
measures.
    (5) Includes a Tribal Engagement Plan that addresses all targeted 
outreach to identified Indian Tribes. This plan must summarize comments 
received from potentially affected Indian Tribes during any previous 
outreach activities and describe planned targeted outreach activities 
with such communities during the pre-filing process and after the 
filing of an application. This plan must also describe how the 
applicant will engage Indian Tribes about any potential mitigation 
measures.
    (b) * * *
    (1) * * *
    (ii) Complete copies of all filed materials are available on the 
project website.
* * * * *
    (c) * * *
    (1) The applicant must make a good faith effort to notify all: 
affected landowners; landowners with a residence within a quarter mile 
of the edge of the construction right-of-way of the proposed project; 
municipalities in the project area; permitting entities; other local, 
State, and Federal governments and agencies involved in the project; 
Indian Tribes; electric utilities and transmission owners and operators 
that are, or may be, connected to the proposed transmission facilities; 
any known individuals or organizations that have expressed an interest 
in the State siting proceeding; and any other individuals or 
organizations that have expressed to the applicant, or its

[[Page 46731]]

representatives, an interest in the proposed project. Notification must 
be made:
    (i) By certified or first class mail, sent:
    (A) Within 14 days after the Director notifies the applicant of the 
commencement of the pre-filing process under Sec.  50.5(d) (Pre-filing 
Notification);
    (B) Within 3 business days after the Commission notices the 
application under Sec.  50.9 (Application Notification); and
    (C) With written translations in the applicable language(s) to all 
affected landowners and landowners with a residence within a quarter 
mile of the edge of the construction right-of-way of the proposed 
project in a census block group in which the number of limited English 
proficiency households that speak the same language constitutes at 
least five percent of the census block group or 1,000 people, whichever 
is less.
    (ii) By twice publishing a Pre-filing Notification and Application 
Notification, in a daily or weekly newspaper of general circulation in 
each county in which the project is located and, as appropriate, Tribal 
newspapers and other online or hard copy periodicals of general 
circulation serving the affected area. These notifications must also be 
submitted to any available county and municipal government online 
bulletin boards and other similar community resources. All such 
publications and submittals should occur no later than 14 days after 
the date that a docket number is assigned for the pre-filing process or 
to the application. The applicant must promptly provide the Commission 
with proof of any publication.
    (2) Project notifications must include specified content.
    (i) Any Pre-filing Notification sent by mail or published in a 
newspaper, periodical, or county/municipal online bulletin board or 
community resource must, at a minimum, include:
    (A) The docket number assigned to the proceeding;
    (B) The most recent edition of the Commission's pamphlet Electric 
Transmission Facilities Permit Process. The newspaper notification need 
only refer to the pamphlet and indicate the website address where it is 
available on the Commission's website;
    (C) A description of the applicant and a description of the 
proposed project, its location (including a general location map), its 
purpose, and the proposed project schedule;
    (D) Contact information for the applicant, including a local or 
toll-free telephone number, the name of a specific contact person who 
is knowledgeable about the project, and information on how to access 
the project website;
    (E) Information on how to get a copy of the pre-filing information 
from the applicant and the location(s) where copies of the pre-filing 
information may be found as specified in paragraph (b) of this section;
    (F) A copy of the Director's notification of commencement of the 
pre-filing process, the Commission's internet address, and contact 
information for the Commission's Office of Public Participation;
    (G) Information explaining the pre-filing and application processes 
and when and how to intervene in the application proceedings; and
    (H) Information explaining that the Commission's pre-filing and 
application processes are separate from any ongoing State siting 
proceeding(s) and describing the status of any such State siting 
proceeding(s).
    (ii) In addition to the requirements of paragraph (c)(2)(i) of this 
section, any Pre-filing Notification sent by mail to an affected 
landowner must also include:
    (A) A general description of the property the applicant will need 
from an affected landowner if the project is approved;
    (B) The most recent edition of the document entitled ``Landowner 
Bill of Rights in Federal Energy Regulatory Commission Electric 
Transmission Proceedings,'' on its own page(s) in at least 12-point 
font, legible, and contained within the first 10 pages of the 
notification; and
    (C) A brief summary of what specific rights the affected landowner 
has in proceedings under the eminent domain rules of the relevant 
State.
    (iii) The Application Notification must include the Commission's 
notice issued under Sec.  50.9 and restate, or clearly identify the 
location of, the comment and intervention instructions provided in the 
Commission's notice.
    (3) If, for any reason, a person or entity entitled to these 
notifications has not yet been identified when the notifications under 
this paragraph (c) are sent or published, the applicant must supply the 
information required under paragraphs (c)(2)(i) through (iii) of this 
section, as applicable, when the person or entity is identified.
    (4) If the notification is returned as undeliverable, the applicant 
must make a reasonable attempt to find the correct address and re-send 
the notification.
* * * * *

0
6. Amend Sec.  50.5 as follows:
0
a. Revise paragraph (c) introductory text, the first sentence of 
paragraph (c)(3) introductory text, paragraph (c)(3)(i), the first 
sentence of paragraph (c)(5), and revise paragraph (c)(6);
0
b. Add paragraphs (c)(8) and (9);
0
c. Revise paragraphs (d)(1)(i) and (e)(3)(i);
0
d. Remove paragraph (e)(3)(ii);
0
e. Redesignate paragraph (e)(3)(iii) as (e)(3)(ii);
0
f. Revise the first sentence of paragraph (e)(4);
0
g. Redesignate paragraphs (e)(7) and (8) as paragraphs (e)(10) and 
(11), respectively;
0
h. Add new paragraphs (e)(7) and (8) and add paragraph (9); and
0
i. Revise the first sentence of newly redesignated paragraph (e)(11).
    The revisions and additions read as follows:


Sec.  50.5  Pre-filing procedures.

* * * * *
    (c) * * * An applicant's pre-filing request cannot be filed prior 
to the initial consultation and must include the following information:
* * * * *
    (3) A list of the permitting entities responsible for conducting 
separate Federal permitting and environmental reviews and 
authorizations for the project, including contact names and telephone 
numbers, and a list of Tribal, State, and local entities with 
authorization requirements. * * *
    (i) How the applicant intends to account for each of the relevant 
entity's permitting and environmental review schedules, including its 
progress in the Department of Energy's pre-application process; and
* * * * *
    (5) A description of completed work, including engagement with 
Federal, State, and local agencies, Indian Tribes, and stakeholders; 
project engineering; route planning; environmental and engineering 
contractor engagement; environmental surveys/studies; open houses; and 
any work completed or actions taken in conjunction with a State 
proceeding. * * *
    (6) Proposals for all prospective third-party contractors from 
which Commission staff may make a selection to assist in the 
preparation of the requisite NEPA document, if the Director determined 
a third-party contractor would be necessary in the Initial Consultation 
meeting.
* * * * *
    (8) A detailed description of how the proposed project will reduce 
capacity constraints and congestion on the transmission system.
    (9) A statement indicating whether the applicant intends to comply 
with

[[Page 46732]]

the Applicant Code of Conduct described in Sec.  50.12, and, if not, 
how the applicant intends to ensure good faith dealings with affected 
landowners.
    (d) * * *
    (1) * * *
    (i) The notification will designate the third-party contractor, if 
applicable, and
* * * * *
    (e) * * *
    (3) * * *
    (i) Provide project notification in compliance with the 
requirements of Sec.  50.4(c); and
* * * * *
    (4) Within 30 days, submit a mailing list of all notifications made 
under paragraph (e)(3) of this section, including the names of the 
Federal, State, Tribal, and local jurisdictions' representatives. * * *
* * * * *
    (7) Within 30 days, file supporting information showing how the 
proposed project will reduce capacity constraints and congestion on the 
transmission system, including:
    (i) For each transmission planning region that would be crossed by 
the proposed project, the most recent regional transmission plan; and
    (ii) Expert witness testimony and other relevant information 
submitted with the State siting application(s), where applicable.
    (8) Within 30 days, file the full reports of the System Impact 
Study for the proposed project if the reports are already completed. If 
the reports are not already completed at this time, the applicant must 
alternatively submit a status report that includes when during the pre-
filing process the full reports will be submitted.
    (9) Within 30 days of submission of the full System Impact Study 
reports, file a draft Exhibit H--System analysis data required in Sec.  
50.7. The pre-filing process will not be concluded until all submittals 
required in paragraphs (e)(8) and (9) of this section are submitted.
* * * * *
    (11) On a monthly basis, file status reports detailing the 
applicant's project activities, including surveys, stakeholder 
communications, agency and Tribal meetings, and updates on the status 
of other required permits or authorizations. * * *
* * * * *

0
7. Amend Sec.  50.6 as follows:
0
a. Revise paragraph (b), the second sentence of paragraph (c), and 
paragraphs (d), (e)(1), and (e)(3)(i) and (ii);
0
b. Add paragraph (e)(3)(iii); and
0
c. Revise paragraph (i).
    The revisions and addition read as follows:


Sec.  50.6  Applications: general content.

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

0
8. Amend Sec.  50.7 as follows:
0
a. Revise the introductory text and paragraphs (g)(1)(i) and (vi), 
(g)(2)(ii) and (vi), (g)(3)(iii), (g)(4)(iii), (g)(5) introductory 
text, (g)(6) introductory text, (g)(6)(ii), (g)(8), (h)(1), the first 
sentence of paragraph (h)(2) introductory text, and paragraph 
(h)(2)(ii);
0
b. Remove paragraphs (h)(3) and (4);
0
c. Redesignate paragraphs (h)(5) and (6) as paragraphs (h)(3) and (4); 
and
0
d. Revise newly redesignated paragraphs (h)(3) and (4) and paragraphs 
(i)(2) and (j).
    The revisions read as follows:


Sec.  50.7  Applications: exhibits.

    Each exhibit must contain a title page showing the applicant's 
name, the title of the exhibit, and the proper letter designation of 
the exhibit. If an exhibit is 10 or more pages in length, it must 
include a table of contents citing (by page, section number, or 
subdivision) the component elements or matters contained in the 
exhibit.
* * * * *
    (g) * * *
    (1) * * *
    (i) Name, point of receipt, and point of delivery of the project;
* * * * *
    (vi) Line design features that minimize audible corona noise during 
fog/rain caused by operation of the proposed facilities.
    (2) * * *
    (ii) Type of structures, including overhead and underground 
structures;
* * * * *
    (vi) A list of the names of all new (and existing, if applicable) 
substations or switching stations that will be associated with the 
proposed transmission line.
    (3) * * *
    (iii) Width of the right-of-way; and
* * * * *
    (4) * * *
    (iii) Conductor size, conductor type, and number of conductors per 
phase.
    (5) If the proposed project includes an overhead transmission line, 
the following additional information also must be provided:
* * * * *
    (6) If an underground or underwater transmission line is proposed, 
the following additional information also must be provided:
* * * * *
    (ii) Type of cable and a description of any required supporting 
equipment, such as pressurizing plants;
* * * * *
    (8) Any other data or information identified as a minimum 
requirement for the siting of a transmission line in the State in which 
the facility will be located.

[[Page 46733]]

    (h) * * *
    (1) An analysis of the existing and expected capacity constraints 
and congestion on the electric transmission system.
    (2) Steady-state, short-circuit, and dynamic power flow cases, as 
applicable, used to analyze the existing transmission system, proposed 
project, and future transmission system under anticipated load growth, 
operating conditions, variations in power import and export levels, 
generation additions and retirements, and additional transmission 
facilities required for system reliability. * * *
* * * * *
    (ii) State the assumptions, criteria, and guidelines upon which the 
models are based and take into consideration transmission facility 
loading, planned and forecasted forced outage rate for generation and 
transmission, generation dispatch scenarios, system protection, and 
system stability.
    (3) A concise analysis of how the proposed project will:
    (i) Improve system reliability over the long and short term;
    (ii) Impact long-term regional transmission expansion plans;
    (iii) Impact congestion on the system where the proposed project 
will be located and, as relevant, the neighboring systems; and
    (iv) Incorporate any advanced technology design features, if 
applicable.
    (4) Single-line diagrams, including existing system facilities 
identified by name and circuit number, that show system transmission 
elements, in relation to the project and other principal interconnected 
system elements, as well as power flow and loss data that represent 
system operating conditions.
    (i) * * *
    (2) The estimated capital cost and estimated annual operations and 
maintenance expense of each proposed mitigation measure.
* * * * *
    (j) Exhibit J--Construction, operation, and management. A concise 
statement providing arrangements for supervision, management, 
engineering, accounting, legal, or other similar services to be 
rendered in connection with the construction, operation, and 
maintenance of the project, if not to be performed by employees of the 
applicant, including reference to any existing or contemplated 
agreements, together with a statement showing any affiliation between 
the applicant and any parties to the agreements or arrangements.


Sec.  50.8  [Amended]

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

0
10. Amend Sec.  50.9 by revising paragraph (b) to read as follows:


Sec.  50.9  Notice of application.

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

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


Sec.  50.11  General conditions applicable to permits.

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

0
12. Add Sec.  50.12 to read as follows:


Sec.  50.12  Applicant code of conduct for landowner engagement.

    Under section 216(e)(1) of the Federal Power Act, any applicant 
that may, upon receipt of a permit, seek to acquire the necessary 
right-of-way by the exercise of the right of eminent domain must 
demonstrate to the Commission that it has made good faith efforts to 
engage with landowners and other stakeholders early in the applicable 
permitting process. An applicant's commitment to and compliance with 
the Applicant Code of Conduct during the permitting process is one way 
to demonstrate to the Commission that such good faith efforts have been 
made with respect to affected landowners.
    (a) Applicant code of conduct. To promote good faith engagement 
with affected landowners, applicants committing to comply with the 
Applicant Code of Conduct must for the duration of the pre-filing and 
application review processes:
    (1) Develop and maintain a log of discussions with affected 
landowners, organized by name and property address, that includes:
    (i) The name of the affected landowner;
    (ii) The substance of the items discussed;
    (iii) The nature of the contact (such as in-person, virtual 
meeting, telephone, electronic mail);
    (iv) The date of the contact; and
    (v) The status of discussions with the affected landowner following 
the contact, including any permissions granted, negotiations, or future 
meetings scheduled.
    (2) In addition to the Pre-filing Notification required by Sec.  
50.4(c)(1)(i) and (ii), provide to each affected landowner, prior to, 
during, or within 3 business days of the first contact, a document 
that, at a minimum, includes: a description of the project, a 
description of the Commission and its role, a map of the project route, 
an explanation that affected landowners may request from applicants 
copies of discussion log entries that pertain to their property and how 
to make such requests, and the Landowner Bill of Rights in the form 
described in Sec.  50.4(c)(2)(ii)(B). If the first contact with the 
affected landowner is in-person, the applicant must offer to provide 
the affected landowner at least one paper copy of the document. If the

[[Page 46734]]

first contact with the affected landowner is by telephone, text, or 
electronic mail, the applicant may provide the affected landowner with 
a copy of the document by electronic means or by first class mail, at 
the affected landowner's preference. The applicant must review the 
provisions of the document with the affected landowner upon request.
    (3) Ensure that any representative acting on the applicant's behalf 
states their full name, title, and employer, as well as the name of the 
applicant that they represent, and presents a photo identification 
badge at the beginning of any discussion with an affected landowner, 
and provides the representative's and applicant's contact information, 
including mailing address, telephone number, and electronic mail 
address, prior to the end of the discussion.
    (4) Ensure that all communications with affected landowners are 
factually correct. The applicant must correct any statements made by it 
or any representative acting on its behalf that it becomes aware were:
    (i) Inaccurate when made; or
    (ii) Have been rendered inaccurate based on subsequent events, 
within three business days of discovery of any such inaccuracy.
    (5) Ensure that communications with affected landowners do not 
misrepresent the status of the discussions or negotiations between the 
parties. Provide an affected landowner upon request a copy of any 
discussion log entries that pertain to that affected landowner's 
property.
    (6) Provide affected landowners with updated contact information 
whenever an applicant's contact information changes.
    (7) Communicate respectfully with affected landowners and avoid 
harassing, coercive, manipulative, or intimidating communications or 
high-pressure tactics.
    (8) Except as otherwise provided by State, Tribal, or local law, 
abide by an affected landowner's request to end the communication or 
for the applicant or its representative to leave the affected 
landowner's property.
    (9) Except as otherwise provided by State, Tribal, or local law, 
obtain an affected landowner's permission prior to entering the 
property, including for survey or environmental assessment, and leave 
the property without argument or delay if the affected landowner 
revokes permission.
    (10) Refrain from discussing an affected landowner's communications 
or negotiations status with any other affected landowner.
    (11) Provide the affected landowner with a copy of any appraisal 
that has been prepared by, or on behalf of, the applicant for that 
affected landowner's property, if any, before discussing the value of 
the property in question.
    (12) Ensure that any representative acting on the applicant's 
behalf complies with all provisions of the Applicant Code of Conduct 
described in this paragraph (a).
    (b) Compliance with Applicant Code of Conduct. Applicants 
committing to comply with the Applicant Code of Conduct must:
    (1) File, as part of the pre-filing request required by Sec.  
50.5(c), an affirmative statement that the applicant intends to comply 
with the Applicant Code of Conduct.
    (2) Include, as part of the monthly status reports required by 
Sec.  50.5(e)(11):
    (i) An affirmation that the applicant and its representatives have, 
to the best of their knowledge, complied with the Applicant Code of 
Conduct during the month in question; or
    (ii) A detailed explanation of any instances of non-compliance with 
the Applicant Code of Conduct during the month in question and any 
remedial actions taken or planned.
    (3) Identify, in a filing with the Commission or as part of the 
monthly status reports required by Sec.  50.5(e)(11), any known 
instances of non-compliance that were not disclosed in prior monthly 
status reports and explain any remedial actions taken in the current 
month to address instances of non-compliance occurring in prior months.
    (4) File monthly status reports providing the information required 
in paragraphs (b)(2) and (3) of this section, for the duration of the 
application review process.
    (c) Compliance with an alternative method. Applicants not 
committing to comply with the Applicant Code of Conduct must:
    (1) File, as part of the pre-filing request required by Sec.  
50.5(c):
    (i) An affirmative statement that the applicant intends to rely on 
an alternative method of demonstrating that it meets the good faith 
efforts standard;
    (ii) A detailed explanation of the alternative method of 
demonstrating that it meets the good faith efforts standard, including 
any commitments to recordkeeping, information-sharing, or other 
conduct;
    (iii) An explanation of how the alternative method is equal to or 
better than compliance with the Applicant Code of Conduct as a means to 
ensure the good faith efforts standard is met;
    (iv) An explanation, for each component of the Applicant Code of 
Conduct with which it does not comply, why it did not follow that 
component; and
    (v) An explanation, for each component of the Applicant Code of 
Conduct with which it does not comply, why the alternative method is an 
equal or better means to ensure the good faith standard is met 
notwithstanding that deviation from the Applicant Code of Conduct.

PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL 
POLICY ACT

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

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


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


Sec.  380.2  Definitions and terminology.

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


Sec.  380.13  [Amended]

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


Sec.  380.14  [Amended]

0
16. Amend Sec.  380.14 in paragraph (a) introductory text as follows:
0
a. Remove the reference ``(16 U.S.C. 470(f))'' in the first sentence 
and add in its place the reference ``(54 U.S.C. 306108)''; and
0
b. Add ``or Sec.  380.16(f), as applicable'' after the reference 
``380.12(f)'' in the second sentence.

0
17. Amend Sec.  380.16 as follows:
0
a. Revise the second sentence of paragraph (a)(1), revise paragraph 
(b)(3), revise the first sentence of paragraph (c) introductory text 
and the first sentence of paragraph (c)(1), and revise paragraphs 
(c)(2)(i) through (iii) and (c)(3) and (4);
0
b. Revise paragraph (d)(6) and the second sentence of paragraph (d)(7);
0
c. Revise paragraphs (e)(2) and (3), the first two sentences of 
paragraph (e)(4), the first and third sentences of

[[Page 46735]]

paragraph (e)(5), and revise paragraph (e)(6);
0
d. Redesignate paragraphs (e)(7) and (8) as paragraphs (e)(8) and (9);
0
e. Add new paragraph (e)(7);
0
f. Revise newly redesignated paragraphs (e)(8) and (9);
0
g. Revise paragraphs (f)(1)(i), (iii), (iv), and (v), (f)(2) 
introductory text, and the first sentence of paragraph (f)(4);
0
h. Revise the first sentence of paragraph (g) introductory text and 
paragraphs (g)(2), (3) and (6);
0
i. Redesignate paragraphs (k) through (m) as paragraphs (n) through 
(p);
0
j. Redesignate paragraphs (h) through (j) as paragraphs (j) through 
(l);
0
k. Add new paragraphs (h) and (i);
0
l. Revise the heading for newly redesignated paragraph (j), remove 
``Resource Report 6 must:'' and add in its place ``Resource Report 8 
must:'' in newly redesignated paragraph (j) introductory text, and 
revise newly redesignated paragraph (j)(3);
0
m. Revise the heading for newly redesignated paragraph (k) and revise 
paragraphs (k) introductory text and (k)(2) and (3);
0
n. Add paragraph (k)(4);
0
o. Revise newly redesignated paragraph (l);
0
p. Add new paragraph (m);
0
q. In newly redesignated paragraph (n):
0
i. Revise the heading;
0
ii. Revise the first sentence of the introductory text and remove 
``Resource Report 9 must:'' and add in its place ``Resource Report 12 
must:'' in the introductory text;
0
iii. Revise the second sentences in paragraphs (n)(2)(i) and (ii);
0
r. Revise the heading for newly redesignated paragraph (o) and its 
introductory text, newly redesignated paragraphs (o)(1) through (4), 
the first sentence of newly redesignated paragraph (o)(5), and revise 
newly redesignated paragraph (o)(7); and
0
s. Revise the heading for newly redesignated paragraph (p), the second 
sentence of newly redesignated paragraph (p) introductory text, the 
third sentence of newly redesignated paragraph (p)(2), and revise newly 
redesignated paragraphs (p)(3)(i) and (iii) and (p)(4).
    The revisions and additions read as follows:


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

    (a) * * *
    (1) * * * The environmental report must include the 14 resource 
reports and related material described in this section.
* * * * *
    (b) * * *
    (3) Identify the effects of construction, operation (including 
malfunctions), and maintenance, as well as cumulative effects resulting 
from the incremental effects of the project when added to the effects 
of other past, present, and reasonably foreseeable actions;
* * * * *
    (c) * * * This report must describe facilities associated with the 
project; special construction, operation, and maintenance procedures; 
construction timetables; future plans for related construction; 
compliance with regulations and codes; and permits that must be 
obtained. * * *
    (1) Describe and provide location maps of all project facilities 
(such as transmission line towers, substations, and any appurtenant 
facilities) to be constructed, modified, replaced, or removed, and 
related construction and operational support activities and areas, such 
as maintenance bases, staging areas, communications towers, power 
lines, and new access roads (roads to be built or modified). * * *
    (2) * * *
    (i) Current, original United States Geological Survey (USGS) 7.5-
minute series topographic maps, or maps of equivalent detail, covering 
at least a 0.5-mile-wide corridor centered on the electric transmission 
facility centerline, with integer mileposts identified, showing the 
location of rights-of-way, new access roads, other linear construction 
areas, substations, and construction materials storage areas. Nonlinear 
construction areas must be shown on maps at a scale of 1:3,600, or 
larger, keyed graphically and by milepost to the right-of-way maps. The 
topographic maps must depict the facilities identified under paragraph 
(l)(5) of this section, including any facilities located outside of the 
0.5-mile-wide corridor.
    (ii) Original aerial images or photographs or photo-based alignment 
sheets based on these sources, not more than one year old (unless older 
ones accurately depict current land use and development) and with a 
scale of 1:6,000, or larger, showing the proposed transmission line 
route and location of transmission line towers, substations and 
appurtenant facilities, covering at least a 0.5-mile-wide corridor, and 
including mileposts. The aerial images or photographs or photo-based 
alignment sheets must show all existing transmission facilities located 
in the area of the proposed facilities and the facilities identified 
under paragraph (l)(5) of this section, including any facilities 
located outside of the 0.5-mile-wide corridor. Older images/
photographs/alignment sheets must be modified to show any facilities 
not depicted in the original. Alternative formats (e.g., blue-line 
prints of acceptable resolution) need prior approval by the 
environmental staff of the Commission's Office of Energy Projects.
    (iii) In addition to the requirements under Sec.  50.3(b) of this 
chapter, the applicant must contact the environmental staff of the 
Office of Energy Projects regarding the need for any additional copies 
of topographic maps and aerial images/photographs.
    (3) Describe and identify, by milepost, proposed general 
construction and restoration methods, and any special methods to be 
used in areas of rugged topography, residential areas, active 
croplands, and sites where explosives are likely to be used. Describe 
any proposed horizontal directional drilling and pile driving that may 
be necessary.
    (4) Identify the number of construction spreads, average workforce 
requirements for each construction spread and estimated duration of 
construction from initial clearing to final restoration. Indicate the 
days of the week and times of the day that proposed construction 
activities would occur and describe any proposed nighttime construction 
activities.
* * * * *
    (d) * * *
    (6) Discuss proposed mitigation measures to reduce the potential 
for adverse impacts to surface water, wetlands, or groundwater quality. 
Discuss the potential for blasting or contamination/spills to affect 
water wells, springs, and wetlands, and measures to be taken to detect 
and remedy such effects. Describe the impact of proposed land clearing 
and vegetation management practices, including herbicide treatment, in 
the project area on water resources.
    (7) * * * Identify locations of Environmental Protection Agency or 
State-designated, sole-source aquifers and wellhead protection areas 
crossed by the proposed transmission line facilities.
    (e) * * *
    (2) Describe terrestrial habitats, including wetlands, typical 
wildlife habitats and corridors, and rare, unique, or otherwise 
significant habitats that might be affected by the proposed action. 
Describe typical species that have commercial, recreational, or 
aesthetic value.
    (3) Describe and provide the acreage of vegetation cover types that 
would be affected, including unique ecosystems

[[Page 46736]]

or communities, such as remnant prairie, interior forest, or old-growth 
forest, or significant individual plants, such as old-growth specimen 
trees. Describe any areas of noxious weeds and non-native species in 
the project area.
    (4) Describe the impact of construction, operation, and maintenance 
on aquatic and terrestrial species and their habitats, including the 
possibility of a major alteration to ecosystems or biodiversity, and 
any potential impact on State-listed endangered or threatened species. 
Describe the impact of proposed land clearing and vegetation management 
practices, including herbicide treatment, in the project area on fish; 
wildlife, including migratory birds and bald and golden eagles; and 
vegetation. * * *
    (5) Identify all federally listed or proposed threatened or 
endangered species and critical habitat that potentially occur in the 
vicinity of the project. * * * The application must include the results 
of any required surveys unless seasonal considerations make this 
impractical. * * *
    (6) Identify all federally listed essential fish habitat (EFH) that 
potentially occurs in the vicinity of the project. Provide information 
on all EFH, as identified by the pertinent Federal fishery management 
plans, that may be adversely affected by the project and the results of 
abbreviated consultations with the National Marine Fisheries Service, 
and any resulting EFH assessments.
    (7) Identify migratory bird species and bald and golden eagles that 
potentially occur in the vicinity of the project, including bald and 
golden eagle nesting and roosting sites, migratory bird flyways, and 
any habitat/sites important to migratory bird breeding, feeding, and 
sheltering.
    (8) Describe proposed, site-specific mitigation measures to 
minimize impacts on fisheries; wildlife, including migratory birds and 
bald and golden eagles; and vegetation.
    (9) Include copies of correspondence not provided under paragraph 
(e)(5) of this section, containing recommendations from appropriate 
Federal and State fish and wildlife agencies to avoid or limit impacts 
on wildlife, including migratory birds and bald and golden eagles; 
fisheries; and vegetation, and the applicant's response to the 
recommendations.
    (f) * * *
    (1) * * *
    (i) Documentation of the applicant's initial cultural resource 
consultations, including engagement with Indian Tribes and other 
interested persons (if appropriate);
* * * * *
    (iii) An Evaluation Report, as appropriate;
    (iv) A Treatment Plan, as appropriate; and
    (v) Written comments from State Historic Preservation Officer(s) 
(SHPO), Tribal Historic Preservation Officers (THPO), as appropriate, 
and applicable land-management agencies on the reports in paragraphs 
(f)(1)(i) through (iv) of this section.
    (2) The application or pre-filing documents, as applicable, must 
include the documentation of initial cultural resource consultation(s), 
the Overview and Survey Reports, if required, and written comments from 
SHPOs, THPOs, and land-management agencies, if available. The initial 
cultural resource consultations should establish the need for surveys. 
If surveys are deemed necessary by the consultation with the SHPO/THPO, 
the survey reports must be filed with the application or pre-filing 
documents.
* * * * *
    (4) The applicant must request privileged treatment for all 
material filed with the Commission containing location, character, and 
ownership information about cultural resources in accordance with Sec.  
388.112 of this chapter. * * *
* * * * *
    (g) * * * This report must identify and quantify the impacts of 
project construction, operation, and maintenance on factors affecting 
municipalities and counties in the vicinity of the project. * * *
* * * * *
    (2) Evaluate the impact of any substantial migration of people on 
governmental facilities and services and plans to reduce the impact on 
the local infrastructure.
    (3) Describe on-site manpower requirements and payroll during 
construction, operation, and maintenance, including the number of 
construction personnel who currently reside within the impact area, 
will commute daily to the site from outside the impact area, or will 
relocate temporarily within the impact area.
* * * * *
    (6) Conduct a fiscal impact analysis evaluating incremental local 
government expenditures in relation to incremental local government 
revenues that will result from the project. Incremental expenditures 
include, but are not limited to, school operation, road maintenance and 
repair, public safety, and public utilities.
    (h) Resource Report 6--Tribal resources. This report must describe 
Indian Tribes, Tribal lands, and Tribal interests that may be affected 
by the proposed project. Resource Report 6 must:
    (1) Identify Indian Tribes that may be affected by the 
construction, operation, and maintenance of the proposed transmission 
facilities.
    (2) Describe the impacts of construction, operation, and 
maintenance of the project on Indian Tribes and Tribal interests, 
including those related to: water use and quality; wildlife and 
vegetation; cultural and historic resources; socioeconomics; geological 
resources; soils; land use, recreation, and aesthetics; air quality and 
environmental noise; traffic; and health.
    (3) Identify project impacts that may affect Tribal interests not 
necessarily associated with resources specified in paragraph (h)(2) of 
this section, e.g., treaties, Tribal practices, or agreements between 
the Indian Tribe and entities other than the applicant.
    (4) Identify Indian Tribes that may attach religious and cultural 
significance to historic properties within the proposed project right-
of-way or in the project vicinity, as well as available information on 
Tribal traditional cultural and religious properties, whether on or off 
of any Indian reservation.
    (5) Ensure that information made available under this section does 
not include specific site or property locations, the disclosure of 
which will create a risk of harm, theft, or destruction of 
archaeological or Tribal cultural resources or to the site at which the 
resources are located, or which would violate any Federal law, 
including the Archaeological Resources Protection Act of 1979, 16 
U.S.C. 470hh, and the National Historic Preservation Act of 1966, 54 
U.S.C. 307103.
    (6) Describe any proposed mitigation measures to avoid or minimize 
impacts on Tribal resources, including any input received from Indian 
Tribes on the proposed measures and how the input informed the proposed 
measures.
    (i) Resource Report 7--Environmental justice. This report must 
address the effects of the proposed project on environmental justice 
communities, as defined in Sec.  380.2 of this chapter. Resource Report 
7 must:
    (1) Identify environmental justice communities within the area of 
potential project impacts using current guidance and data, including 
localized data, from the Environmental Protection Agency, the Council, 
the Census Bureau, and other authoritative sources.

[[Page 46737]]

Provide maps depicting identified environmental justice communities in 
relation to the proposed project facilities using localized data.
    (2) Describe the impacts of construction, operation, and 
maintenance of the project on environmental justice communities, 
including those related to: water use and quality; wildlife and 
vegetation; cultural and historic resources; socioeconomics; geological 
resources; soils; land use, recreation, and aesthetics; air quality and 
environmental noise; traffic; and health. Identify any disproportionate 
and adverse impacts on environmental justice communities.
    (3) Discuss any cumulative impacts on environmental justice 
communities, regarding resources affected by the project, including 
whether any cumulative impacts would be disproportionate and adverse. 
Describe the proposed project's impacts in relation to the aggregation 
of past, present, and reasonably foreseeable actions taken by Federal 
or non-Federal entities, and the environmental justice communities' 
capacity to tolerate additional impacts.
    (4) Describe any proposed mitigation measures to avoid or minimize 
impacts on environmental justice communities, including any community 
input received on the proposed measures and how the input informed the 
proposed measures.
    (j) Resource Report 8--Geological resources.
* * * * *
    (3) Describe how the project will be located or designed to avoid 
or minimize adverse effects to geological resources or risk to itself. 
Describe any geotechnical investigations and monitoring that would be 
conducted before, during, and after construction. Discuss the potential 
for blasting to affect structures and the proposed measures to be taken 
to remedy such effects.
* * * * *
    (k) Resource Report 9--Soils. This report must describe the soils 
that will be affected by the proposed project, the effect on those 
soils, and measures proposed to minimize or avoid impacts. Resource 
Report 9 must:
* * * * *
    (2) Identify, by milepost, potential impacts from: soil erosion due 
to water, wind, or loss of vegetation; soil compaction and damage to 
soil structure resulting from movement of construction vehicles; wet 
soils and soils with poor drainage that are especially prone to 
structural damage; damage to drainage tile systems due to movement of 
construction vehicles and excavating activities; and interference with 
the operation of agricultural equipment due to the possibility of large 
stones or blasted rock occurring on or near the surface as a result of 
construction.
    (3) Identify, by milepost, cropland and residential areas where 
project construction may result in the loss of soil fertility, 
including any land classified as prime or unique farmland by the U.S. 
Department of Agriculture, Natural Resources Conservation Service.
    (4) Describe any proposed mitigation measures to reduce the 
potential for adverse impacts to soils or agricultural productivity.
    (l) Resource Report 10--Land use, recreation, and aesthetics. This 
report must describe the existing uses of land in the project vicinity 
and changes to those land uses that will occur if the project is 
approved. The report must discuss proposed mitigation measures, 
including the protection and enhancement of existing land use. Resource 
Report 10 must:
    (1) Describe the width and acreage requirements of all construction 
and permanent rights-of-way for project construction, operation and 
maintenance.
    (i) List, by milepost, locations where the proposed construction or 
permanent rights-of-way would be adjacent to existing rights-of-way of 
any kind.
    (ii) Identify, preferably by diagrams, existing rights-of-way that 
will be used for a portion of the construction or permanent rights-of-
way, the overlap and how much additional width will be required.
    (iii) Identify the total amount of land to be purchased or leased 
for each project facility; the amount of land that would be disturbed 
for construction, operation, and maintenance of the facility; and the 
proposed use of the remaining land not required for project operation 
and maintenance, if any.
    (iv) Identify the size of typical staging areas and expanded work 
areas, such as those at railroad, road, and waterbody crossings, and 
the size and location of all construction materials storage yards and 
access roads.
    (2) Identify, by milepost, the existing use of lands crossed by, or 
adjacent to, the proposed project facilities or rights-of-way.
    (3) Describe planned development on land crossed by, or within 0.25 
mile of, the proposed facilities, the time frame (if available) for 
such development, and proposed coordination to minimize impacts on land 
use. Planned development means development that is included in a master 
plan or is on file with the local planning board or the county.
    (4) Identify, by milepost and length of crossing, the area of 
direct effect of each proposed facility and operational site on sugar 
maple stands; orchards and nurseries; landfills; operating mines; 
hazardous waste sites; State wild and scenic rivers; State or local 
designated trails; nature preserves; game management areas; remnant 
prairie; old-growth forest; interior forest; national or State forests 
or parks; golf courses; designated natural, recreational or scenic 
areas; registered natural landmarks; Native American religious sites 
and traditional cultural properties (to the extent they are known to 
the public at large) and reservations; lands identified under the 
Special Area Management Plan of the Office of Coastal Zone Management, 
National Oceanic and Atmospheric Administration; and lands owned or 
controlled by Federal or State agencies or private preservation groups. 
Also identify if any of those areas are located within 0.25 mile of any 
proposed facility.
    (5) Identify and describe buildings, electronic installations, 
airstrips, airports, and heliports in the project vicinity. The 
facilities identified under this paragraph must be depicted on the maps 
and photographs in Resource Report 1, as required by paragraph (c)(2) 
of this section.
    (i) Buildings. List all single-family and multi-family dwellings 
and related structures, mobile homes, apartment buildings, commercial 
structures, industrial structures, business structures, churches, 
hospitals, nursing homes, schools, or other structures normally 
inhabited by humans or intended to be inhabited by humans on a daily or 
regular basis within a 0.5-mile-wide corridor centered on the proposed 
transmission line alignment. Provide a general description of each 
habitable structure and its distance from the centerline of the 
proposed project. In cities, towns, or rural subdivisions, houses can 
be identified in groups. Provide the number of habitable structures in 
each group and list the distance from the centerline to the closest 
habitable structure in the group. Provide a list of all habitable 
structures within 200 feet of a proposed construction work area for all 
proposed project facilities, including transmission line towers, 
substations, access roads, and appurtenant facilities; a general 
description of each habitable structure; and the distance of each 
habitable structure from the proposed construction work area.

[[Page 46738]]

    (ii) Electronic installations. List all commercial AM radio 
transmitters located within 10,000 feet of the centerline of the 
proposed project and all FM radio transmitters, microwave relay 
stations, or other similar electronic installations located within 
2,000 feet of the centerline of the proposed project. Provide a general 
description of each installation and its distance from the centerline 
of the proposed project.
    (iii) Airstrips, airports, and heliports. List all known private 
airstrips within 10,000 feet of the centerline of the project. List all 
airports registered with the Federal Aviation Administration (FAA), 
with at least one runway more than 3,200 feet in length, that are 
located within 20,000 feet of the centerline of the proposed project. 
Indicate whether any transmission structures will exceed a 100:1 
horizontal slope (one foot in height for each 100 feet in distance) 
from the closest point of the closest runway. List all airports 
registered with the FAA having no runway more than 3,200 feet in length 
that are located within 10,000 feet of the centerline of the proposed 
project. Indicate whether any transmission structures will exceed a 
50:1 horizontal slope from the closest point of the closest runway. 
List all heliports located within 5,000 feet of the centerline of the 
proposed project. Indicate whether any transmission structures will 
exceed a 25:1 horizontal slope from the closest point of the closest 
landing and takeoff area of the heliport. Provide a general description 
of each private airstrip, registered airport, and registered heliport, 
and state the distance of each from the centerline of the proposed 
transmission line. Include copies of any consultation with the FAA.
    (6) Describe any areas crossed by, or within 0.25 mile of, the 
proposed transmission project facilities that are included in, or are 
designated for study for inclusion in: the National Wild and Scenic 
Rivers System (16 U.S.C. 1271), the National Trails System (16 U.S.C. 
1241), or a wilderness area designated under the Wilderness Act (16 
U.S.C. 1132).
    (7) For facilities within a designated coastal zone management 
area, provide a consistency determination or evidence that the 
applicant has requested a consistency determination from the State's 
coastal zone management program.
    (8) Describe the impact the project will have on present uses of 
the affected areas as identified above, including commercial uses, 
mineral resources, recreational areas, public health and safety, and 
the aesthetic value of the land and its features. Describe any 
temporary or permanent restrictions on land use resulting from the 
project.
    (9) Describe proposed mitigation measures intended for all special 
use areas identified under this section.
    (10) Identify the area of potential visual effects from the 
proposed project. Describe the visual characteristics of the lands and 
waters affected by the project, including any visually sensitive areas, 
visual classifications, and key viewpoints in the project vicinity. 
Describe how the transmission line project facilities will impact the 
visual character and scenic quality of the landscape and proposed 
mitigation measures to lessen these impacts. Provide visual aids to 
support the textual descriptions required by this paragraph. Identify, 
and justify the selection of, the tools or methodologies used to 
develop the information required in this paragraph.
    (11) Demonstrate that applications for rights-of-way authorizations 
or other proposed land uses have been, or soon will be, filed with 
Federal land-management agencies with jurisdiction over land that would 
be affected by the project.
    (m) Resource Report 11--Air quality and environmental noise. This 
report must estimate emissions from the proposed project and the 
corresponding impacts on air quality and the environment, estimate the 
impact of the proposed project on the noise environment, and describe 
proposed measures to mitigate the impacts. Resource Report 11 must:
    (1) Describe the existing air quality in the project area, indicate 
if any project facilities are located within a designated nonattainment 
or maintenance area under the Clean Air Act (42 U.S.C. 7401 et seq.), 
and provide the distance from the project facilities to any Class I 
area in the project vicinity.
    (2) For proposed substations and appurtenant facilities, 
quantitatively describe existing noise levels at nearby noise-sensitive 
areas, such as schools, hospitals, or residences.
    (i) Report existing noise levels as the Leq (day), Leq (night), and 
Ldn (day-night) and include the basis for the data or estimates.
    (ii) Include a plot plan that identifies the locations and duration 
of noise measurements, time of day, weather conditions, wind speed and 
direction, engine load, and other noise sources present during each 
measurement.
    (iii) Identify any State or local noise regulations that may be 
applicable to the project facilities.
    (3) Estimate emissions from the proposed project and the 
corresponding impacts on air quality and the environment.
    (i) Estimate the reasonably foreseeable emissions from 
construction, operation, and maintenance of the project facilities 
(such as emissions from tailpipes, equipment, fugitive dust, open 
burning, and substations) expressed in tons per year. Include 
supporting calculations, emissions factors, fuel consumption rates, and 
annual hours of operation.
    (ii) For each designated nonattainment or maintenance area, provide 
a comparison of the emissions from construction, operation, and 
maintenance of the project facilities with the applicable General 
Conformity thresholds (40 CFR part 93).
    (iii) Identify the corresponding impacts on communities and the 
environment in the project area from the estimated emissions.
    (iv) Describe any proposed mitigation measures to control emissions 
identified under this section.
    (4) Estimate the impact of the proposed project on the noise 
environment.
    (i) Provide a quantitative estimate of the impact of transmission 
line operation on noise levels at the edge of the proposed right-of-
way, including corona, insulator, and Aeolian noise. For proposed 
substations and appurtenant facilities, provide a quantitative estimate 
of the impact of operations on noise levels at nearby noise-sensitive 
areas, including discrete tones.
    (A) Include step-by-step supporting calculations or identify the 
computer program used to model the noise levels, input and raw output 
data and all assumptions made when running the model, far-field sound 
level data for maximum facility operation, and source of the data.
    (B) Include sound pressure levels for project facilities, dynamic 
insertion loss for structures, and sound attenuation from the project 
facilities to the edge of the right-of-way or to nearby noise-sensitive 
areas (as applicable).
    (C) Far-field sound level data measured from similar project 
facilities in service elsewhere, when available, may be substituted for 
manufacturer's far-field sound level data.
    (D) The operational noise estimates must demonstrate that noise 
attributable to any proposed substation or appurtenant facility does 
not exceed a day-night sound level (Ldn) of 55 decibels on the A-
weighted scale (dBA) at any pre-existing noise-sensitive area. Compare 
the proposed project's operational noise estimates with applicable 
State and local noise regulations.

[[Page 46739]]

    (ii) Describe the impact of proposed construction activities, 
including any nighttime construction, on the noise environment. 
Estimate the impact of any horizontal directional drilling, pile 
driving, or blasting on noise levels at nearby noise-sensitive areas 
and include supporting assumptions and calculations.
    (iii) Describe any proposed mitigation measures to reduce noise 
impacts identified under this section.
    (n) Resource Report 12--Alternatives. This report must describe 
alternatives to the project and compare the environmental impacts (as 
identified in Resource Reports 1 through 11 of this section) of such 
alternatives to those of the proposal. * * *
* * * * *
    (2) * * *
    (i) * * * Where applicable, identify the location of such 
alternatives on maps of sufficient scale to depict their relationship 
to the proposed action and existing rights-of-way; and
    (ii) * * * Provide comparative tables showing the differences in 
environmental characteristics for the alternatives and proposed action. 
* * *
    (o) Resource Report 13--Reliability and safety. This report must 
address the potential hazards to the public from failure of facility 
components resulting from, among other things, accidents or natural 
catastrophes; how these events would affect reliability; and proposed 
procedures and design features to reduce potential hazards. Resource 
Report 13 must:
    (1) Discuss hazards, environmental impacts, and service 
interruptions that could reasonably ensue from failure of the proposed 
facilities.
    (2) Describe proposed measures to protect the public from failure 
of the proposed facilities (including coordination with local 
agencies).
    (3) Discuss proposed design and operational measures to avoid or 
reduce risk, including any measures to ensure that the proposed project 
facilities would be resilient against future climate change impacts in 
the project area.
    (4) Discuss proposed contingency plans for maintaining service or 
reducing downtime to ensure that the proposed facilities would not 
adversely affect the bulk electric system in accordance with applicable 
North American Electric Reliability Corporation reliability standards.
    (5) Describe proposed measures to exclude the public from hazardous 
areas. * * *
* * * * *
    (7) Discuss the potential for electrical noise from electric and 
magnetic fields, including shadowing and reradiation, as they may 
affect health or communication systems along the transmission right-of-
way.
* * * * *
    (p) Resource Report 14--Design and engineering. * * * If the 
version of this report submitted with the application is preliminary in 
nature, the applicant must state that in the application. * * *
* * * * *
    (2) * * * If a permit is granted on the basis of preliminary 
designs, the applicant must submit final design drawings for written 
approval by the Director of the Office of Energy Projects prior to 
commencement of any construction of the project.
    (3) * * *
    (i) An assessment of the suitability of the locations of proposed 
transmission line towers, substations, and appurtenant structures based 
on geological and subsurface investigations, including investigations 
of soils and rock borings and tests evaluating all foundations and 
construction materials;
* * * * *
    (iii) An identification of all borrow areas and quarry sites and an 
estimate of required quantities of suitable construction material; and
* * * * *
    (4) The applicant must submit the supporting design report 
described in paragraph (p)(3) of this section at the time preliminary 
and final design drawings are filed. If the report contains preliminary 
drawings, it must be designated as a ``Preliminary Supporting Design 
Report.''

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

Appendix A--Landowner Bill of Rights in Federal Energy Regulatory 
Commission Electric Transmission Proceedings

    1. You have the right to receive compensation if your property 
is necessary for the construction or modification of an authorized 
project. The amount of such compensation would be determined through 
a negotiated easement agreement between you and the entity applying 
to the Federal Energy Regulatory Commission (Commission) for 
authorization to construct a transmission line (applicant) or 
through an eminent domain proceeding in the appropriate Federal or 
State court. The applicant cannot seek to take a property by eminent 
domain unless and until the Commission approves the application, 
unless otherwise provided by State or local law.
    2. You have the right to request the full name, title, contact 
information including email address and phone number, and employer 
of every representative of the applicant that contacts you about 
your property.
    3. You have the right to access information about the proposed 
project through a variety of methods, including by accessing the 
project website that the applicant must maintain and keep current, 
by visiting a central location in your county designated by the 
applicant for review of project documents, or by accessing the 
Commission's eLibrary online document information system at 
www.ferc.gov.
    4. You have the right to participate, including by filing 
comments and, after an application is filed, by intervening in any 
open Commission proceedings regarding the proposed transmission 
project in your area. Deadlines for making these filings may apply. 
For more information about how to participate and any relevant 
deadlines, contact the Commission's Office of Public Participation 
by phone (202-502-6595 or toll free at 1-866-208-3372) or by email 
([email protected]).
    5. When contacted by the applicant or a representative of the 
applicant either in person, by phone, or in writing, you have the 
right to communicate or not to communicate. You also have the right 
to hire counsel to represent you in your dealings with the applicant 
and to direct the applicant and its representatives to communicate 
with you only through your counsel.
    6. The applicant may seek to negotiate a written easement 
agreement with you that would govern the applicant's and your rights 
to access and use the property that is at issue and describe other 
rights and responsibilities. You have the right to negotiate or to 
decline to negotiate an easement agreement with the applicant; 
however, if the Commission approves the proposed project and 
negotiations fail or you chose not to engage in negotiations, there 
is a possibility that your property could be taken through an 
eminent domain proceeding, in which case the appropriate Federal or 
State court would determine fair compensation.
    7. You have the right to hire your own appraiser or other 
professional to appraise the value of your property or to assist you 
in any easement negotiations with the applicant or in an eminent 
domain proceeding before a court.
    8. Except as otherwise provided by State or local law, you have 
the right to grant or deny access to your property by the applicant 
or its representatives for preliminary survey work or environmental 
assessments, and to limit any such grant in time and scope.
    9. In addition to the above rights, you may have additional 
rights under Federal, State, or local laws.

[[Page 46740]]

Appendix B: Abbreviated Names of Commenters

 
 
 
Advanced Energy United..................  Advanced Energy United.
Alabama Public Service Commission.......  Alabama Commission.
American Chemistry Council..............  American Chemistry Council.
American Clean Power Association........  ACP.
American Council on Renewable Energy....  ACORE.
American Farm Bureau Federation,          Farm Bureaus.
 Illinois Farm Bureau, Iowa Farm Bureau,
 Kansas Farm Bureau, Missouri Farm
 Bureau Federation, and other State Farm
 Bureaus.
Americans for a Clean Energy Grid.......  ACEG.
Arizona Game and Fish Department........  Arizona Game and Fish.
California Public Utilities Commission..  California Commission.
Chickahominy Indian Tribe, Nansemond      Chickahominy Indian Tribe,
 Indian Nation, Rappahannock Indian        Nansemond Indian Nation,
 Tribe, and Upper Mattaponi Indian Tribe.  Rappahannock Indian Tribe,
                                           and Upper Mattaponi Indian
                                           Tribe.
Clean Air Task Force....................  CATF.
Clean Energy Buyers Association.........  Clean Energy Buyers.
ClearPath, Inc..........................  ClearPath.
Conservation Law Foundation.............  CLF.
Earthjustice, National Wildlife           Public Interest Organizations.
 Federation, Natural Resources Defense
 Council, NW Energy Coalition, Sierra
 Club, Sustainable FERC Project, Union
 of Concerned Scientists, and WE ACT for
 Environmental Justice.
Edison Electric Institute and WIRES.....  EEI.
Electricity Consumers Resource Council..  ELCON.
Environmental Defense Fund..............  EDF.
Environmental Law and Policy Center,      Environmental Law & Policy
 National Audubon Society, and Vote        Center.
 Solar.
Georgia Public Service Commission.......  Georgia Commission.
Impacted Landowners.....................  Impacted Landowners.
Institute for Policy Integrity at New     Policy Integrity.
 York University School of Law.
Kansas Corporation Commission...........  Kansas Commission.
Kentucky Public Service Commission......  Kentucky Commission.
Land Trust Alliance.....................  Land Trust Alliance.
Los Angeles Department of Water & Power.  Los Angeles DWP.
Louisiana Public Service Commission.....  Louisiana Commission.
Maryland Public Service Commission......  Maryland Commission.
Michigan Public Service Commission......  Michigan Commission.
National Wildlife Federation Action Fund  National Wildlife Federation
 (submitting 10,753 comments by fund       Members.
 supporters) and National Wildlife
 Federation Outdoors (submitting 332
 comments by hunter and angler members).
National Wildlife Federation,             National Wildlife Federation.
 Environmental League of Massachusetts,
 Montana Wildlife Federation, and Nevada
 Wildlife Federation.
New England States Committee on           NESCOE.
 Electricity.
New Jersey Board of Public Utilities....  New Jersey Board.
New Jersey Division of Rate Counsel,      Joint Consumer Advocates.
 Maryland Office of the People's
 Counsel, and Delaware Division of the
 Public Advocate.
New York State Public Service Commission  New York Commission.
Niskanen Center.........................  Niskanen.
North Carolina Utilities Commission and   North Carolina Commission and
 North Carolina Utilities Commission       Staff.
 Public Staff.
North Dakota Public Service Commission..  North Dakota Commission.
Organization of MISO States, Inc........  OMS.
Pennsylvania Office of Consumer Advocate  Pennsylvania Consumer
                                           Advocate.
Pennsylvania Public Utility Commission..  Pennsylvania Commission.
Public Utility Commission of Texas......  Texas Commission.
Rail Electrification Council............  Rail Electrification Council.
Sabin Center for Climate Change Law,      Sabin Center.
 Columbia Law School.
Solar Energy Industries Association.....  SEIA.
Southern Company Services, Inc..........  Southern.
U.S. Chamber of Commerce, Global Energy   Chamber of Commerce.
 Institute.
U.S. Department of the Interior.........  Interior.
U.S. Representatives Cathy McMorris       Representatives McMorris
 Rodgers and Jeff Duncan.                  Rodgers and Duncan.
U.S. Senator Charles Schumer............  Senator Schumer.
U.S. Senator John Barrasso..............  Senator Barrasso.
Yurok Tribe.............................  Yurok Tribe.
 

[FR Doc. 2024-10879 Filed 5-28-24; 8:45 am]
BILLING CODE 6717-01-P