77432 Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Proposed Rules 

and the newly-added paragraph (c) of 

§ 20.1406. The first issuance of guidance 

on a newly-changed or newly-added 

rule provision does not constitute 

backfitting or raise issue finality 

concerns, inasmuch as the guidance 

must be consistent with the regulatory 

requirements in the newly-changed or 

newly-added rule provisions and the 

backfitting and issue finality 

considerations applicable to the newlychanged or newly-added rule provisions 

must logically apply to this guidance. 

Therefore, issuance of guidance 

addressing the newly-changed and 

newly-added provisions of the amended 

rule does not constitute issuance of 

‘‘changed’’ or ‘‘new’’ guidance within 

the meaning of the definition of 

‘‘backfitting’’ in 10 CFR 50.109(a)(1). 

Similarly, the issuance of the guidance 

addressing the newly-changed or newlyadded provisions of the amended rule, 

by itself, does not constitute an action 

inconsistent with any of the issue 

finality provisions in 10 CFR part 52. 

Accordingly, no further consideration of 

backfitting or issue finality is needed as 

part of the issuance of this guidance 

addressing compliance with the newlychanged provisions of § 20.1501 and 

newly-added paragraph (c) of § 20.1406. 

This regulatory guide may be applied 

to applications for operating licenses 

and combined licenses docketed by the 

NRC as of the date of issuance of the 

final regulatory guide, as well as future 

applications for operating licenses and 

combined licenses submitted after the 

issuance of this regulatory guide. Such 

action does not constitute backfitting as 

defined in 10 CFR 50.109(a)(1) and is 

not otherwise inconsistent with the 

applicable issue finality provisions in 

10 CFR part 52, inasmuch as such 

applicants or potential applicants are 

not within the scope of entities 

protected by the Backfit Rule or the 

relevant issue finality provisions in part 

52. 

Dated at Rockville, Maryland, this 2nd day 

of December 2011. 

For the Nuclear Regulatory Commission. 

Thomas H. Boyce, 

Chief, Regulatory Guide Development Branch, 

Division of Engineering, Office of Nuclear 

Regulatory Research. 

[FR Doc. 2011–31905 Filed 12–12–11; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 900 

RIN 1901–AB18 

Coordination of Federal Authorizations 

for Electric Transmission Facilities 

AGENCY: Office of Electricity Delivery 

and Energy Reliability, Department of 

Energy. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Energy 

(DOE) proposes to amend its regulations 

for the timely coordination of Federal 

authorizations for proposed interstate 

electric transmission facilities pursuant 

to section 216(h) of the Federal Power 

Act (FPA). The proposed rule would 

require permitting entities to inform 

DOE of requests for authorizations 

required under Federal law for 

Qualifying Projects as defined in the 

rule, as well as establish a process 

whereby applicants for Federal 

authorizations for interstate electric 

transmission facilities that are not 

Qualifying Projects can request DOE 

assistance in the Federal authorization 

process. Also, the proposed rule 

provides for the selection of a Federal 

Lead Agency responsible for compiling 

a single environmental review 

document, and a consolidated 

administrative record, for Qualifying 

Projects. In addition, the proposed rule 

provides for the establishment of 

intermediate and final deadlines for the 

review of Federal authorization 

decisions, as well as establishing a date 

certain after which all permit decisions 

and related environmental reviews 

under all applicable Federal laws shall 

be completed within one year, or as 

soon thereafter as practicable in 

compliance with Federal law. 

DATES: Public comment on this 

proposed rule will be accepted until 

January 27, 2012. 

ADDRESSES: Interested persons are 

encouraged to submit comments, 

identified by ‘‘Proposed 216(h) 

Regulations,’’ by any of the following 

methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Email: Brian.Mills@hq.doe.gov. 

Include ‘‘Proposed 216(h) Regulations’’ 

in the subject line of the message. 

Mail: Brian Mills, Office of Electricity 

Delivery and Energy Reliability (OE–20), 

U.S. Department of Energy, 1000 

Independence Avenue SW., 

Washington, DC 20585. 

FOR FURTHER INFORMATION CONTACT: 

Brian Mills, Office of Electricity 

Delivery and Energy Reliability (OE–20), 

U.S. Department of Energy, 1000 

Independence Avenue SW., 

Washington, DC 20585, Phone (202) 

586–8267, email 

Brian.Mills@hq.doe.gov, or Lot Cooke, 

Attorney-Advisor, U.S. Department of 

Energy, Office of the General Counsel, 

GC–76, 1000 Independence Avenue 

SW., Washington, DC 20585, Phone 

(202) 586–0503, email 

Lot.Cooke@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Statutory Authority and Rulemaking 

History 

B. Interpretation of Key Terms 

II. Discussion of Proposed Rule 

A. Purpose 

B. Applicability 

C. Definitions 

D. Pre-Application Procedures 

E. Notification of Requests for Federal 

Authorizations for Qualifying Projects 

and Requests for DOE Assistance in the 

Federal Authorization Process 

F. Selection of Lead Agency, and 

Coordination of Permitting and Related 

Environmental Reviews 

G. Lead Agency Responsibilities 

H. Cooperating Agencies Responsibilities 

I. DOE Responsibilities 

J. Prompt and Binding Intermediate 

Milestones and Ultimate Deadlines 

K. Deadlines for Final Decisions on Federal 

Authorization Requests 

III. Regulatory Review 

IV. Approval of the Office of the Secretary 

I. Background 

A. Statutory Authority and Rulemaking 

History 

Section 1221(a) of the Energy Policy 

Act of 2005 (Pub. L. 109–58) (EPAct05) 

added a new section 216 to the FPA (16 

U.S.C. 791–828c) which deals with the 

siting of interstate electric transmission 

facilities. Section 216(h) of the FPA (16 

U.S.C. 824p(h)), which is titled 

‘‘Coordination of Federal Authorizations 

for Transmission Facilities,’’ provides 

for DOE to coordinate all applicable 

Federal authorizations for the siting of 

interstate electric transmission facilities 

and related environmental reviews. 

Section 216(h) of the FPA provides for 

the coordination of Federal transmission 

siting determinations for entities 

seeking permits, special use 

authorizations, certifications, opinions, 

or other approvals required under 

Federal law to site electric transmission 

facilities. This coordination avoids 

duplicative review processes by various 

Federal agencies. In addition, section 

216(h) also provides that Indian tribes, 

multi-State entities, and State agencies 

that have their own separate permitting 

and environmental reviews can 


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1The MOU is available at http:// 

www.oe.energy.gov/668.htm. The 2009 MOU 

superseded an August 8, 2006 MOU pertaining to 

FPA section 216(h) coordination and signed by the 

same Federal agencies. 

2Comments on the interim final rule were filed 

by the Allegheny Energy Companies (Allegheny), 

the Public Utility Commission of the State of 

California, the American Transmission Company 

LLC, the utility companies of the American Electric 

Power System Southern California Edison 

Company, and the Western Business Roundtable. 

Edison Electric Institute filed consolidated 

comments on the interim final rule and the NOPR, 

and Allegheny filed separate comments on the 

NOPR. 

participate in the coordinated Federal 

review process if they so choose. 

On October 23, 2009, nine Federal 

agencies with permitting or other 

Federal authorization responsibility for 

the siting of electric transmission 

facilities entered into a ‘‘Memorandum 

of Understanding Regarding 

Coordination in Federal Agency Review 

of Electric Transmission Facilities on 

Federal Land’’ (2009 MOU).1 The 

signatories to the 2009 MOU were DOE, 

the Departments of Defense, Agriculture 

(USDA), the Interior (DOI), and 

Commerce, the Federal Energy 

Regulatory Commission (FERC), the 

Environmental Protection Agency, the 

Council on Environmental Quality, and 

the Advisory Council on Historic 

Preservation. The purpose of the 2009 

MOU is to establish a framework for 

early cooperation and participation 

among the signatories that will: (1) 

Expedite the siting and construction of 

qualified electric transmission 

infrastructure in the United States; (2) 

improve coordination among Federal 

authorization applicants, Federal 

agencies, and states and tribes involved 

in the siting and permitting process; and 

(3) improve uniformity, consistency, 

and transparency by setting forth the 

roles and responsibilities of Federal 

agencies in the siting and construction 

of qualifying projects. 

On September 19, 2008, DOE 

published an interim final rule 

establishing procedures under which 

entities may request that DOE 

coordinate Federal authorizations for 

the siting of interstate electric 

transmission facilities and related 

environmental reviews pursuant to FPA 

section 216(h) (73 FR 54456). The 

interim final rule became effective on 

October 20, 2008, and the regulations 

can be found at 10 CFR 900.1–900.6. 

Also on September 19, 2008, DOE 

published a notice of proposed 

rulemaking (NOPR) which proposed 

amendments to the interim final rule (73 

FR 54461). This proposed rule would 

amend the interim final rule and 

replaces the 2008 NOPR. These 

proposed regulations, subject to 

revisions based on comments received 

in response to this NOPR, and in 

conjunction with the 2009 MOU, would 

govern DOE’s coordination of electric 

transmission facilities permitting 

requests under section 216(h) of the 

FPA. 

Comments were filed in response to 

the 2008 interim final rule and 2008 

NOPR.2 In Section II of today’s NOPR, 

DOE addresses the comments submitted 

in response to both the interim final rule 

and the 2008 NOPR. All references to 

comments in this NOPR are to 

comments filed in response to the 2008 

interim final rule and 2008 NOPR. 

B. Interpretation of Key Terms 

Under FPA section 216(h)(2), DOE is 

required to ‘‘act as the lead agency for 

purposes of coordinating all applicable 

Federal authorizations and related 

environmental reviews’’ (emphasis 

added). DOE interprets the term ‘‘lead 

agency’’ as used in FPA section 

216(h)(2) as requiring DOE to coordinate 

the necessary environmental reviews 

conducted by other Federal agencies 

and to ensure that one Federal agency 

is responsible for preparing a uniform 

environmental review document. 

Therefore, DOE would coordinate the 

selection of a Lead Agency. The 

selection would be based on land 

management interests or the 

recommendations of other participating 

agencies. The Lead Agency would 

prepare the environmental review under 

the National Environmental Policy Act 

(NEPA). Consistent with the 2009 MOU 

and in accordance with NEPA 

regulations issued by the Council on 

Environmental Quality at 40 CFR part 

1500 et seq., this proposal would ensure 

that the agency with the most relevant 

subject matter expertise conducts the 

required environmental reviews. In 

those circumstances where DOE has a 

permitting role (e.g., international 

transmission lines, transmission lines 

built by the Power Marketing 

Administrations (PMAs)), DOE may be 

the Lead Agency for preparing the 

NEPA compliance document and other 

environmental, cultural, and historic 

preservation reviews. For all other types 

of transmission projects in which DOE 

has no permitting role, however, DOE 

will work with the permitting entities 

responsible for issuing Federal 

authorizations in coordinating the 

selection of the appropriate permitting 

entity to be the Lead Agency for 

preparing NEPA compliance documents 

in accordance with the 2009 MOU, 40 

CFR part 1500 et seq., and these 

proposed regulations. 

DOE believes that its coordination 

responsibilities set forth in section 

216(h) are intended to give an applicant 

seeking one or more Federal 

authorizations for the construction or 

modification of electric transmission 

facilities access to a process under 

which all Federal reviews are made in 

an efficient and coordinated manner. 

The NOPR also provides a discretionary 

process for applicants seeking only one 

authorization to ask for DOE assistance. 

In the 2008 interim final rule, DOE 

determined that its coordination of 

Federal authorizations would be most 

beneficial as a request driven process. In 

a request driven process, DOE would 

provide coordination only in 

circumstances where an applicant for 

Federal authorizations determined that 

it would be beneficial for DOE to 

perform that role. 

The parties to the 2009 MOU 

determined, however, that there should 

be a mechanism for Federal 

coordination, and the selection of a 

Lead Agency for all Qualifying Projects, 

without the need for an applicant to 

request coordination. This would place 

the responsibility to undertake the 

coordination process on the Federal 

authorizing agencies and ensure that 

coordination takes place as intended by 

the statute. The 2009 MOU defines 

Qualifying Projects as ‘‘high voltage 

transmission line projects (generally 230 

kV or above), and their attendant 

facilities, or otherwise regionally or 

nationally significant transmission lines 

and their attendant facilities, in which 

all or part of a proposed transmission 

line crosses jurisdictions administered 

by more than one Participating 

Agency.’’ This proposed rule would 

codify the 2009 MOU coordination 

process for Qualifying Projects, and, in 

addition, provide for the discretionary 

coordination of Federal authorizations 

for projects other than Qualifying 

Projects. 

DOE, in coordination with other 

participating agencies, has established a 

transmission tracking system Web site: 

http://www.doe-etrans.us. The Web site 

includes Qualifying Projects, as well as 

projects that are not Qualifying Projects, 

under the MOU or these proposed 

regulations. For example, the Web site 

lists the application of Garkane Energy 

to the Forest Service for authorization to 

construct a 138 kV line. All other 

projects currently listed on the Web site 

are Qualifying Projects. 

II. Discussion of Proposed Rule 

A. Purpose 

Section 900.1 states the purpose of the 

regulations, which is to provide a 


srobinson on DSK4SPTVN1PROD with PROPOSALS
77434 Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Proposed Rules 

3 Department of Energy Delegation Order No. 00– 

004–00A, section 1.22, issued May 16. 2006. 

4 DOE does not consider applications to the PMAs 

for transmission interconnections to be Federal 

authorization request within the meaning of 216(h). 

In those circumstances the PMAs are not 

functioning as Federal agencies considering 

requests for permits, special use authorizations, 

certifications, opinions, or other approvals, but are 

acting in their capacity as transmitting utilities. 

Moreover, section 216(h) specifically provides that 

nothing in it affects any requirements of U.S. 

environmental laws, and this exemption does not 

waive any requirements to obtain necessary Federal 

authorizations for electric transmission facilities. 

5Establishing Regulations for Filing Applications 

for Permits to Site Interstate Electric Transmission 

Facilities, Order No. 689, 71 FR 69,440 (December 

1, 2006), FERC Stats. & Regs. ¶ 31,234. 

process for the timely coordination of 

Federal authorizations for proposed 

transmission facilities pursuant to FPA 

section 216(h). 

B. Applicability 

Section 900.2 of the proposed rule 

explains when the provisions of Part 

900 would apply to the coordination of 

Federal authorizations. The provisions 

of Part 900 would apply to Qualifying 

Projects, and would also apply to Other 

Projects at the discretion of the Director 

of Permitting and Siting within DOE’s 

Office of Electricity Delivery and Energy 

Reliability. Both types of projects must 

be for transmission facilities that are 

used for the transmission of electric 

energy in interstate commerce, but 

Qualifying Projects are generally 230 kV 

or above and cross jurisdictions 

administered by more than one 

Participating Agency. 

Further, there would be no 

coordination of Federal authorizations 

for electric transmission facilities 

located within the Electric Reliability 

Council of Texas (ERCOT) 

interconnection because section 216(k) 

of the FPA states that section 216 of the 

FPA shall not apply within the ERCOT 

area (16 U.S.C. 824p(k)). Section 900.2 

also provides that section 216(h) does 

not apply when an application has been 

submitted to FERC for issuance of a 

permit for construction or modification 

of a transmission facility, or a pre-filing 

procedure has been initiated, under 

section 216(b) of the FPA (16 U.S.C. 

824p(b)) (transmission lines within a 

DOE-designated National Interest 

Electric Transmission Corridor). In 

those circumstances, DOE has delegated 

its section 216(h) coordination authority 

to FERC3 and, in Order No. 689, FERC 

adopted regulations setting forth the 

procedures it will follow in such 

circumstances. Furthermore, the MOU 

does not apply to transmission lines that 

cross the U.S. international border, 

Federal submerged lands, national 

marine sanctuaries, or facilities 

constructed by PMAs.4

Comments 

Edison Electric Institute (EEI) 

requested that ‘‘DOE delete this 

limitation (to transmission in interstate 

commerce), or at a minimum * * * 

indicate that this will not be a 

substantial hurdle to DOE exercising 

lead-agency authority.’’ The Public 

Utilities Commission of the State of 

California (CPUC) and the Western 

Business Roundtable (Roundtable) also 

expressed concerns with this limitation. 

DOE Response 

This limitation on the applicability of 

the regulations is consistent with the 

intent of section 216 of the FPA, which 

is titled ‘‘Siting of Interstate Electric 

Transmission Facilities,’’ and is 

consistent with the definition of 

transmission facilities used by FERC in 

Order No. 689 (regulations regarding 

application for permits to site electric 

transmission facilities issued under 

section 216 of the FPA).5 This 

limitation, however, does not restrict 

the Federal authorization coordination 

process only to electric transmission 

facilities that cross state lines. The 

facility need only be for the 

transmission and sale at wholesale of 

electricity in interstate commerce. This 

distinction is consistent with the 

general division of Federal and State 

authority found in the FPA, with 

Federal authority over interstate 

transmission and wholesale sales and 

State authority over distribution. 

Comments 

EEI expressed concern with DOE’s 

determination that the rule is not 

applicable if a pre-filing procedure 

pursuant to FERC Order No. 689 has 

been initiated. EEI pointed out that 

DOE’s delegation of its FPA 216(h) 

coordination authority to FERC applies 

only after an application for siting an 

electric transmission facility has been 

filed with FERC, not when the FERC 

pre-filing process starts. Also, EEI stated 

that in a situation where the Federal 

authorization coordinating process has 

begun prior to an application for siting 

before FERC, DOE needs to ensure a 

smooth transition of lead agency 

authority to FERC. In comments on the 

interim final rule, the CPUC commented 

that it did not oppose this determination 

because FERC has set forth the 

procedure that it will follow in such 

circumstances. 

DOE Response 

Under FERC Order No. 689, a major 

portion of the environmental review 

will be started and undertaken during 

FERC’s pre-filing process. In addition, 

FERC intends that permitting entities be 

included in this process. Therefore, it 

would be duplicative for DOE to 

simultaneously engage in an FPA 216(h) 

coordination process for the same 

electric transmission facilities. 

C. Definitions 

Section 900.3 would provide 

definitions applicable to these 

regulations. 

D. Pre-Application Procedures 

Section 900.4(a) would implement 

section 216(h)(4)(C) of the FPA. Section 

900.4(b) would codify procedures 

provided for in the 2009 MOU. It would 

require permitting entities contacted by 

prospective applicants for Federal 

authorization to site electric 

transmission facilities to notify 

participating agencies of Qualifying 

Projects and facilitate a pre-application 

meeting for prospective applicants and 

relevant Federal and state agencies and 

Tribes to communicate key issues of 

concern, explain applicable processes, 

outline data requirements and applicant 

submissions necessary to complete the 

required Federal agency reviews in a 

timely manner, and to establish 

schedules. The section 900.4(a) preapplication mechanism is required by 

statute and involves a submission of a 

request by a prospective applicant, 

while section 900.4(b) codifies a 

responsibility undertaken by the 

Participating Agencies in the 2009 

MOU. 

Comments 

Regarding the pre-application 

mechanism provided for in section 

900.4 of the 2008 interim final rule, 

Allegheny Energy Companies 

(Allegheny) commented that: 

First, the request for information must 

originate from an applicant or prospective 

applicant and be directed to a ‘‘permitting 

entity; with notice to DOE of the request. 

Second, requests are required to ‘‘specify in 

sufficient detail the information sought from 

the permitting entity and shall contain 

sufficient information for the permitting 

entity to provide the requested information.’’ 

Third, the permitting agency has 60 days 

from receipt of the information request to 

provide, ‘‘to the extent permissible under 

existing law,’’ information concerning the 

request to the applicant or prospective 

applicant, and DOE. Notably, DOE’s preapplication mechanism does not include any 

explicit mention of the two specific 

categories of information noted in FPA, 

section 216(h)—key issues of concern and the 


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Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Proposed Rules 77435 

likelihood of approval for a potential facility. 

Rather, the proposed pre-application section 

merely makes a passing reference to requests 

for information pursuant to section 

216(h)(4)(C). (Footnotes omitted.) 

Allegheny contended that ‘‘as drafted, 

proposed section 900.4 frustrates the 

clear purpose of FPA, section 

216(h)(4),’’ and provided suggested 

substitute language for that provision of 

the regulations. Allegheny also 

suggested adding language to the effect 

that ‘‘agencies must ensure that they do 

not make any pre-decisional 

commitments regarding their future 

consideration of a permit application or 

authorization request.’’ 

DOE Response 

DOE does not believe that section 

900.4, as drafted in the 2008 interim 

final rule, would frustrate the purpose 

of FPA section 216(h)(4). FPA section 

216(h)(4) directs DOE to provide ‘‘an 

expeditious pre-application mechanism 

for prospective applicants to confer with 

the agencies involved * * *.’’ Section 

900.4(a) of this NOPR would provide 

such a mechanism. To address 

Allegheny’s comment, however, the 

proposed rule includes the statutory 

specifications that a permitting or 

potential permitting entity should 

provide information concerning the 

likelihood of approval for a potential 

facility and key issues of concern to the 

agency and public, while stating that the 

provision of such information does not 

constitute a commitment by the 

permitting entity to approve or 

disapprove the Federal authorization 

request. 

DOE retained the language requiring 

persons requesting information from a 

Federal agency pursuant to FPA section 

216(h)(4)(C) to supply sufficient details 

to allow the agency to provide the 

information requested. A permitting 

entity cannot provide answers to the 

questions posed in FPA section 

216(h)(4) without knowing the nature 

and the scope of the facilities to which 

the information request pertains. DOE 

will work with persons seeking 

information under section 900.4(a) and 

permitting entities to ensure the preapplication mechanism functions 

properly. 

In addition, DOE retained the ‘‘to the 

extent permissible under existing law’’ 

language. We also included language in 

section 900.4(a)(4) specifying that 

information given to an applicant shall 

not constitute a commitment by the 

permitting entity to approve or 

disapprove any Federal authorization 

request. 

E. Notification of Requests for Federal 

Authorizations and Requests for DOE 

Assistance in the Federal Authorization 

Process 

Section 900.5 of the proposed rule 

would require a permitting entity 

contacted regarding, or in receipt of, an 

application for a Federal authorization 

for a Qualifying Project to inform the 

DOE’s Director of Permitting and Siting 

in the Office of Electricity Delivery and 

Energy Reliability (Director) within ten 

working days of being contacted or of 

receipt of an application. In addition, 

persons seeking Federal authorizations 

for projects that are not Qualifying 

Projects can file written requests to DOE 

for assistance in the Federal 

authorization process. 

Comments 

Based on the 2008 NOPR, Allegheny 

recommended that the rule be changed 

to require permitting entities to notify 

DOE within one week of receiving the 

application for a Federal authorization if 

the project is: (1) Equal or greater than 

230 kV; (2) reasonably likely to require 

an EIS; or (3) reasonably likely to 

require more than one Federal 

authorization. Allegheny’s 

recommendation was based on language 

in the superseded 2006 MOU. EEI urged 

‘‘DOE to require notification from a 

federal authorizer any time an 

application for a permit is filed, not just 

for those projects that will require an 

EIS.’’ 

DOE Response 

In response to Allegheny’s comment, 

the proposal that DOE be notified 

within 10 days of all proposals for 

qualifying projects is consistent with the 

2009 MOU, and DOE does not believe 

that the additional few days would 

make a significant difference in the 

review process for an application. In 

response to EEI’s comments, DOE notes 

that Federal authorizing agencies 

informed DOE that there are thousands 

of Federal authorization requests each 

year. For example, the Army Corps of 

Engineers authorizes over 60,000 

projects under section 404 of the Clean 

Water Act and Section 10 of the Rivers 

and Harbors Act annually. Thus, 

requiring by rule that Federal 

authorizing agencies inform DOE of 

every request for a Federal authorization 

would be overly burdensome. Moreover, 

persons proposing to construct an 

electric transmission facility that is not 

a Qualifying Project can utilize the 

procedure in section 900.5(b) of the 

NOPR to request DOE assistance in the 

Federal authorization process. 

F. Selection of Lead Agency and 

Coordination of Permitting and Related 

Environmental Reviews 

Section 900.6(a) provides, consistent 

with the process agreed to in the 2009 

MOU, that DOE will coordinate the 

selection of a Lead Agency responsible 

for compiling a single environmental 

review document and consolidated 

administrative record for Qualifying 

Projects. For Qualifying Projects that 

cross DOI administered lands (including 

trust or restricted Indian lands) or 

USDA administered lands, the DOI and 

USDA would consult and jointly 

determine: (1) Whether a sufficient land 

management interest exists to support 

their assumption of the Lead Agency 

role and (2) if so, which of the two 

agencies should assume that role. The 

DOI and USDA would notify DOE of 

their determination in writing or 

electronically. Unless DOE in writing or 

electronically notifies DOI and USDA of 

its objection to such determination 

within two business days, such 

determination is deemed accepted. 

When the Lead Agency is not 

established as described above, the 

relevant participating agencies will 

consult and jointly determine a lead 

agency within 20 days after determining 

that a proposal is a Qualifying Project. 

The agencies will notify DOE of their 

determination in writing or 

electronically. Unless DOE in writing or 

electronically notifies those 

participating agencies of its objection 

within two business days, such 

determination is deemed accepted. 

In addition, section 900.6(b) provides 

that for projects that are not Qualifying 

Projects (defined in section 900.3 as 

Other Projects), an applicant can request 

the Director to assist it in the Federal 

authorization process, and the Director 

may do so at the Director’s discretion. 

If DOE decides to provide authorization 

assistance, DOE will work with the 

Federal authorizer(s) to determine a 

Lead Agency. 

Finally, section 900.6(c) states that 

non-Federal entities that have their own 

separate non-Federal permitting and 

environmental reviews may elect to 

participate in the coordination process 

under this section, including becoming 

cooperating agencies. 

Comments 

In the preamble to the 2008 interim 

final rule, DOE stated that in its view 

section 216(h) is intended to give an 

applicant seeking more than one Federal 

authorization for the construction or 

modification of electric transmission 

facilities access to a process under 

which all Federal reviews are made in 


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77436 Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Proposed Rules 

an efficient and coordinated manner. 

This view is consistent with the 

definition of a Qualifying Project 

contained in this NOPR. EEI and 

Roundtable urged DOE to reconsider 

this language. Roundtable stated: 

‘‘Applicants should not be precluded 

from having DOE serve as lead agency 

merely because only one federal 

permitting entity is involved.’’ 

DOE Response 

FPA section 216(h)(2) states that DOE 

‘‘shall act as the lead agency for 

purposes of coordinating all applicable 

Federal authorizations and related 

environmental reviews of the facility.’’ 

DOE believes that its coordination role 

is best served for projects where more 

than one permitting entity is involved. 

Hence, it defined Qualifying Project as 

a project where the transmission line 

crosses jurisdictions administered by 

more than one participating agency. 

However, the definition of Other 

Projects in this NOPR provides an 

opportunity for an applicant to request 

DOE coordination for a project that only 

involves a single permitting entity. 

Comments 

Several commenters questioned 

DOE’s determination that the term ‘‘lead 

agency,’’ as used in FPA section 216(h) 

makes the Department responsible for 

being the lead coordinating agency for 

environmental reviews, not the lead 

agency for preparing the environmental 

review under NEPA. EEI contented that 

‘‘the Department’s statement in the 

preamble to the interim rule that the 

term ‘lead agency’ in section 216(h) 

means it is ‘lead coordinating agency for 

environmental reviews, not the lead 

agency for preparing the environmental 

review under the National 

Environmental Policy Act,’ is an 

incorrect interpretation of what the 

statute requires,’’ and that ‘‘the 

designation of the Department as the 

‘lead agency’ clearly indicates that the 

Department’s role under section 216(h) 

encompasses preparation of an 

environmental review document for the 

purposes of NEPA compliance.’’ SCE 

stated that ‘‘DOE was expressly charged 

by Congress with acting as the lead 

agency under the National 

Environmental Protection (sic) Act 

(‘‘NEPA’’) for conducting all of the 

necessary reviews required for Federal 

authorizations associated with the 

construction of transmission project on 

Federal lands.’’ AEP commented: 

DOE interprets the requirement to prepare 

a consolidated environmental review 

document as merely requiring it to assemble 

the work of individual agencies and maintain 

the information available to be used—a 

clearing house function. AEP urges the DOE 

to establish a single environmental review 

document for electric transmission siting. 

Establishment of such a document for electric 

transmission siting will simplify the 

application process and eliminate the need to 

submit duplicate information to multiple 

state and Federal agencies. 

In addition, AEP stated: 

In order for the single environmental 

review document to be effective at 

accelerating the approval process and 

eliminating duplication, it would also be 

helpful for DOE to create a comprehensive 

schedule for participating agencies. To 

accomplish this, the DOE should clearly 

define the roles that various entities will play 

within the approval process. This approval 

process could identify opportunities to 

expedite the process, such as opportunities to 

conduct joint public comment periods and 

public hearings when multiple agencies must 

consider the same or similar issues. 

On the other hand, CPUC supported the 

rule’s provision that DOE and the 

permitting entities responsible for 

issuing Federal authorizations will 

jointly decide the appropriate lead 

agency for NEPA purposes, but asked 

clarification of when DOE itself would 

be the lead agency. 

DOE Response 

Section 216(h)(2) requires DOE to act 

as the lead agency for the purposes of 

coordinating all applicable Federal 

authorizations and related 

environmental reviews of a facility. The 

phrase ‘‘for the purposes of 

coordination’’ of environmental reviews 

limits DOE’s responsibility to 

coordination and does not require DOE 

to compile the environmental review 

document. It would be inefficient for 

DOE, rather than the agency with the 

most significant land management 

interests related to a Qualifying Project 

and with the most relevant subject 

matter expertise, to compile the 

document, particularly in those cases 

where DOE has no permitting role. 

Consistent with the 2009 MOU, the 

proposed rule modifies the 2008 interim 

final rule to clarify the process by which 

DOE will coordinate the selection of the 

lead agency for compiling a single 

environmental review document and a 

consolidated administrative record for 

qualifying projects. 

With respect to CPUC’s request for 

clarification, DOE anticipates it will be 

the Lead Agency when an application 

for a Federal authorization has been 

submitted to DOE. DOE is responsible 

for authorizing exports of electricity 

under FPA section 202(e) (16 U.S.C. 

824a(e)), and issuing Presidential 

permits for the construction, operation, 

maintenance and connection of electric 

transmission facilities at the 

international border pursuant to 

Executive Order (EO) 10485, as 

amended by EO 12038. Generally, when 

DOE is considering such Presidential 

permit applications it is the NEPA lead 

agency and anticipates that it will 

continue to be the Lead Agency under 

those circumstances. Similarly, when 

applications are filed with one of the 

PMAs, the PMA is expected to be the 

NEPA lead agency. 

When DOE is not a permitting entity, 

however, the 2009 MOU provides a 

mechanism for DOE to coordinate the 

selection of a Lead Agency for 

qualifying projects. The selection will 

reflect the agency with the most 

significant land management interests 

related to a Qualifying Project, or the 

agency recommended by other 

participating agencies impacted by the 

project. This agency would be the Lead 

Agency for preparing NEPA compliance 

documents and other analyses required 

to comply with all environmental and 

cultural statutes and regulations under 

Federal law. This approach is consistent 

with FPA section 216(h)(2), as 

explained above. Consistent with 

section 216(h)(5)(A), however, DOE 

clarifies that its role as coordinator for 

the Federal authorization process will 

be much broader and more involved 

than simply acting as a clearing house 

and repository for environmental 

compliance information. DOE will 

establish a central source of information 

about section 216(h) activities and 

provide for public access to the 

information available from participating 

and cooperating agencies, as well as a 

schedule for each qualifying project. 

The Web site will be accessible through 

http://www.oe.energy.gov/ 

Fed_transmission.htm. DOE also 

intends to be actively engaged in the 

coordination of Federal authorizations, 

including the establishment of 

timeframes for the submission of 

information, the scheduling of 

environmental scoping meetings, and 

appropriate milestones and deadlines. 

G. Lead Agency Responsibilities 

Section 900.7 delineates the 

responsibilities of the lead agency under 

the rule. These tasks include: 

Establishing and implementing 

preapplication consultation procedures, 

consulting with cooperating agencies, 

establishing a schedule, preparing a 

unified environmental review 

document, maintaining a consolidated 

administrative record, and other 

responsibilities enumerated in the rule. 

In addition, section 900.7(i) provides 

that, to the extent practicable and 

consistent with Federal law, the Lead 

Agency may establish a procedure to 


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6Establishing Regulations for Filing Applications 

for Permits to Site Interstate Electric Transmission 

Facilities, Order No. 689, 71 FR 69,440 (December 

1, 2006), FERC Stats. & Regs. ¶ 31,234, at para. 47. 

consolidate costs recoverable from the 

applicant to reimburse Federal agencies 

for costs incurred, issue bills for 

collection, and disburse funds to the 

appropriate Federal agencies. 

H. Cooperating Agencies 

Responsibilities 

Section 900.8 delineates the 

responsibilities of cooperating agencies. 

DOE notes that section 900.8(g) provides 

that Cooperating Agencies may enter 

into an interagency agreement with the 

Lead Agency to allow for the recovery 

of appropriate costs, and that the 

Cooperating Agencies would be 

responsible for providing the Lead 

Agency an accounting of billable costs 

as a result of the application and 

permitting process. These last two 

sections were not included in the MOU 

but will facilitate the Federal 

authorization decisionmaking process. 

I. DOE Responsibilities 

Section 900.9 provides DOE 

responsibilities under this part, 

including coordinating the selection of 

a Lead Agency, providing assistance to 

the Lead Agency and developing the 

public Web site. 

J. Prompt and Binding Intermediate and 

Ultimate Deadlines 

Consistent with FPA section 

216(h)(4)(A), section 900.10 provides for 

the lead agency, in consultation with 

DOE, the project applicant, other 

affected parties, and cooperating 

agencies to establish an efficient project 

schedule, including intermediate and 

ultimate deadlines for the review of 

Federal authorization applications and 

decisions relating to proposed electric 

transmission facilities. 

K. Deadlines for Final Decisions on 

Federal Authorization Requests 

Consistent with FPA section 

216(h)(4)(B), section 900.11 requires 

that all Federal permit decisions be 

completed in accordance with the 

following time-lines (unless another 

provision of Federal law does not 

permit a final decision within those 

timelines): (1) When a categorical 

exclusion or an environmental 

assessment (EA) and Finding of No 

Significant Impact (FONSI) is 

determined to be the appropriate level 

of review under NEPA, within one year 

of the categorical exclusion 

determination or publication of a 

FONSI; or (2) when an environmental 

impact statement (EIS) is required, one 

year and 30 days after the close of the 

public comment period for a Draft EIS. 

The 2009 MOU sets the deadline in 

those instances within one year of the 

acceptance of a completed application. 

While the 2009 MOU provision may 

seem to establish a shorter deadline 

then this NOPR, the deadline is 

imprecise because the MOU contains no 

definition of a ‘‘completed application.’’ 

The language starting the one year 

deadline on the date of the NEPA 

determination is used in this proposed 

rule to establish a deadline that is easily 

determinable. DOE remains committed 

to working with the applicant and the 

lead and cooperating agencies to 

expedite the decision process, including 

final deadlines. 

Comments 

EEI and Roundtable objected to the 

one-year deadline for the completion of 

all Federal authorizations contained in 

the 2008 NOPR, which was 

substantially the same as proposed in 

this rule. EEI stated that ‘‘none of these 

proposed triggers for the one-year 

period to begin find any support in the 

text of the statute, and none is lawful.’’ 

Roundtable stated: 

Under EPAct05, there is a one-year 

window for states to complete their decisions 

prior to an applicant approaching FERC for 

a construction permit and a one-year window 

for Federal agencies to complete their 

decisions once an application has been 

submitted with necessary data. These 

provisions parallel one another, supporting 

the view that Congress intended a concurrent 

approach to federal and state decisionmaking. 

DOE Response 

Section 216(h)(4)(B) of the FPA 

provides that the Secretary of Energy 

shall ensure that once an application 

has been submitted with such data as 

the Secretary of Energy considers 

necessary, all permit decisions and 

related environmental reviews under 

Federal laws will be completed within 

one year or as soon thereafter as 

possible in compliance with Federal 

law. Roundtable compared this one year 

deadline to the one-year window for 

states to complete their decisions prior 

to an applicant applying to FERC for a 

construction permit under FPA section 

216(b). DOE disagrees with 

Roundtable’s comparison because FPA 

section 216(h)(4)(B) requires submission 

of an application ‘‘with such data as the 

Secretary considers necessary.’’ A 

permitting entity needs to have a 

completed, or substantially completed, 

environmental review before it can 

make a Federal authorization 

determination. Therefore, DOE has 

determined generally that permitting 

entities will have such data as the 

Secretary considers necessary one year 

after: (1) A determination by the 

permitting entity has been made that the 

Federal authorization is subject to a 

categorical exclusion, or an EA has been 

published which resulted in a FONSI; or 

(2) 30 days after the close of the 

comment period on the permitting 

entity’s draft EIS. In addition, this 

determination is consistent with FERC 

Order No. 689, which contemplates a 

pre-filing period of a year, during which 

FERC will start its scoping and 

environmental review, before an 

application is filed and the FPA section 

216(h)(4)(B) one year deadline begins to 

run.6 Moreover, these proposed section 

900.11 deadlines trigger the FPA section 

216(h)(6) Presidential appeal process, so 

it is important that the deadlines are 

clear and determinable by both 

applicants and permitting entities. 

Comments 

EEI asked that DOE ‘‘clarify that the 

one-year deadline applies not only to 

the record of decision but also to the 

issuance of the construction permit that 

allows dirt to be turned.’’ 

DOE Response 

In response to the clarification 

requested by EEI, section 900.11 states 

that the one-year deadline applies to all 

Federal authorizations or permits 

needed. 

Comment 

EEI and Roundtable raised concerns 

about the ability of a permitting entity 

to extend the one-year deadline if a 

requirement in another provision of 

Federal law does not permit a final 

decision on the Federal authorization 

request within one year under section 

900.9 of the 2008 NOPR. EEI stated that 

‘‘this would allow a permitting agency 

to override the statutory one-year 

deadline with a cryptic one-sentence 

reference to NEPA or some other statute, 

without offering any explanation as to 

why an extension of the deadline is 

legally necessary.’’ Allegheny expressed 

similar concerns over parallel language 

in section 900.8 of the 2008 NOPR. 

DOE Response 

Pursuant to the proposed rule, a 

permitting entity requesting extension 

of the one year deadline must inform 

the lead agency, cooperating agencies, 

the applicant, DOE and any other 

interested parties of the provision of 

Federal law that prevents the final 

decision on the Federal authorization 

request from being issued within one 

year of the deadline, an explanation of 

how the provision is applicable to the 


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permitting entity’s Federal authorization 

determination and why the provision 

prevents the decision from being made 

within that time frame, and the date 

when the final decision on the 

authorization request can be issued in 

compliance with Federal law. 

III. Regulatory Review 

A. Review Under Executive Order 12866 

Today’s regulatory action has been 

determined to be a ‘‘significant 

regulatory action’’ under Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ 58 FR 51735 (October 4, 1993). 

Accordingly, this action was subject to 

review under that Executive Order by 

the Office of Information and Regulatory 

Affairs of the Office of Management and 

Budget (OMB). 

B. Review Under the National 

Environmental Policy Act 

DOE has concluded that promulgation 

of these regulations fall into the class of 

actions that does not individually or 

cumulatively have a significant impact 

on the human environment as set forth 

in DOE’s regulations implementing the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.). 

Specifically, the rule is covered under 

the categorical exclusion in paragraph 

A6 of Appendix A to subpart D, 10 CFR 

part 1021, which applies to rulemakings 

that are strictly procedural. 

Accordingly, neither an EA nor an EIS 

is required. Documentation of the use of 

this categorical exclusion has been 

completed and is available for review on 

DOE’s Web site http:// 

www.oe.energy.gov/1260.htm. 

C. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires that an 

agency prepare an initial regulatory 

flexibility analysis for any regulation for 

which a notice of proposed rulemaking 

is required, unless the agency certifies 

that the rule, if promulgated, will not 

have a significant economic impact on 

a substantial number of small entities (5 

U.S.C. 605(b)). This rule establishes 

procedures for DOE coordination of 

Federal authorizations for the siting of 

interstate electric transmission facilities. 

As a result, the rule directly impacts 

only Federal agencies and not any small 

entities. In those cases where an 

applicant requests DOE assistance for a 

project that is not a qualifying project, 

DOE expects that the provisions of this 

proposed rule, if adopted, would not 

affect the substantive interests of such 

applicants, including any applicants 

that are small entities. DOE expects that 

actions taken under these proposed 

provisions to coordinate and speed the 

issuance of decisions on requests for 

Federal authorizations would lessen the 

burden of applying for a Federal 

authorization on applicants, and that 

any applicant requesting DOE assistance 

has made the calculation that such a 

request was in the best interests of the 

applicant. On the basis of the foregoing, 

DOE certifies that this proposed rule 

would not have a significant economic 

impact on a substantial number of small 

entities. Accordingly, DOE has not 

prepared a regulatory flexibility analysis 

for this rulemaking. DOE’s certification 

and supporting statement of factual 

basis will be provided to the Chief 

Counsel for Advocacy of the Small 

Business Administration pursuant to 5 

U.S.C. 605(b). 

D. Review Under the Paperwork 

Reduction Act 

This proposed rule contains a 

collection-of-information requirement 

subject to review and approval by OMB 

under the Paperwork Reduction Act 

(PRA). This requirement has been 

submitted to OMB for approval. Public 

reporting burden for requesting 

information during the pre-application 

process is estimated to average 30 

minutes per response. Public reporting 

burden for requesting DOE assistance in 

the Federal authorization process is 

estimated to average one hour per 

response. Both of these burden 

estimates include the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Public comment is sought regarding: 

Whether this proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information shall have practical utility; 

the accuracy of the burden estimate; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways to minimize the 

burden of the collection of information, 

including through the use of automated 

collection techniques or other forms of 

information technology. Send comments 

on these or any other aspects of the 

collection of information to Brian Mills 

at the ADDRESSES above, and email to 

OIRA_Submission@omb.eop.gov. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

E. Review Under the Unfunded 

Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to prepare 

a written assessment of the effects of 

any Federal mandate in a proposed or 

final agency regulation that may result 

in the expenditure by States, Tribal or 

local governments, in the aggregate, or 

by the private sector, of $100 million in 

any one year. The Act also requires a 

Federal agency to develop an effective 

process to permit timely input by 

elected officials of State, tribal or local 

governments on a proposed significant 

intergovernmental mandate, and 

requires an agency plan for giving notice 

and opportunity to provide timely input 

to potentially affected small 

governments before establishing any 

requirements that might significantly or 

uniquely affect small governments. DOE 

has determined that the proposed rule 

published today does not contain any 

Federal mandates affecting States, tribal, 

or local governments, or the private 

sector, so these requirements do not 

apply. 

F. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform’’ (61 FR 4779, February 7, 1996) 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: eliminate drafting errors 

and needless ambiguity, write 

regulations to minimize litigation, 

provide a clear legal standard for 

affected conduct rather than a general 

standard, and promote simplification 

and burden reduction. Section 3(b) 

requires Federal agencies to make every 

reasonable effort to ensure that a 

regulation, among other things: clearly 

specifies the preemptive effect, if any, 

adequately defines key terms, and 

addresses other important issues 

affecting the clarity and general 

draftsmanship under guidelines issued 

by the Attorney General. Section 3(c) of 

Executive Order 12988 requires 

executive agencies to review regulations 

in light of applicable standards in 

section 3(a) and section 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and determined that, to the 

extent permitted by law, this proposed 

rule meets the relevant standards of 

Executive Order 12988. 


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Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Proposed Rules 77439 

G. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 10, 1999) imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have Federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and carefully assess the necessity 

for such actions. DOE has examined this 

proposed rule and has determined that 

it would not preempt State law and 

would not have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibility among the 

various levels of government. No further 

action is required by the executive 

order. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a ‘‘Family 

Policymaking Assessment’’ for any rule 

that may affect family well-being. This 

rule has no impact on the autonomy or 

integrity of the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

I. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy, Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001) requires preparation and 

submission to OMB of a Statement of 

Energy Effects for significant regulatory 

actions under Executive Order 12866 

that are likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy. DOE has 

determined that the proposed rule 

published today does not have a 

significant adverse effect on the supply, 

distribution, or use of energy. The 

proposed rule has also not been 

designated as a significant energy action 

by the Administrator of the Office of 

Information and Regulatory Affairs. 

Therefore, the requirement to prepare a 

Statement of Energy Effects does not 

apply. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516 note) provides for 

agencies to review most dissemination 

of information to the public under 

guidelines established by each agency 

pursuant to general guidelines issued by 

OMB. OMB’s guidelines were published 

at 67 FR 8452 (Feb. 22, 2002), and 

DOE’s guidelines were published at 67 

FR 62446 (Oct. 7, 2002). DOE has 

reviewed today’s proposed rule under 

the OMB and DOE guidelines and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

IV. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this proposed rule. 

List of Subjects in 10 CFR Part 900 

Electric power, Electric utilities, 

Energy, Reporting and recordkeeping 

requirements. 

Issued in Washington, DC on December 2, 

2011. 

Patricia A. Hoffman, 

Assistant Secretary, Office of Electricity 

Delivery and Energy Reliability. 

For the reasons set forth in the 

preamble, the Department of Energy is 

proposing to amend chapter II of title 10 

of the Code of Federal Regulations by 

revising part 900 to read as set forth 

below: 

PART 900—COORDINATION OF 

FEDERAL AUTHORIZATIONS FOR 

ELECTRIC TRANSMISSION FACILITIES 

Sec. 

900.1 Purpose. 

900.2 Applicability. 

900.3 Definitions. 

900.4 Pre-application procedures. 

900.5 Notification of requests for Federal 

authorizations for Qualifying Project and 

requests for DOE assistance in the 

Federal authorization process. 

900.6 Selection of lead agency and 

coordination of permitting and related 

environmental reviews. 

900.7 Lead agency responsibilities. 

900.8 Cooperating agencies’ 

responsibilities. 

900.9 DOE responsibilities. 

900.10 Prompt and binding intermediate 

milestones and ultimate deadlines under 

the Federal Power Act. 

900.11 Deadlines for all permit decisions 

and related environmental reviews 

pursuant to the Federal Power Act. 

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

§ 900.1 Purpose. 

This part provides a process for the 

timely coordination of Federal 

authorization requests for proposed 

transmission facilities pursuant to 

section 216(h) of the FPA (16 U.S.C. 

824p(h)). These regulations provide a 

framework for cooperation and for the 

compilation of uniform environmental 

review document in order to coordinate 

all permitting and environmental 

reviews required under Federal law to 

site qualified electric transmission 

facilities. They also provide an 

opportunity for non-Federal entities to 

coordinate their own separate nonFederal permitting and environmental 

reviews with that of the Federal 

permitting entities. 

§ 900.2 Applicability. 

(a) The regulations under this part 

apply to Qualifying Projects for which 

Federal authorizations are required to 

site transmission line projects that are 

generally 230,000 volts (230 kV) and 

above and their attendant facilities, or 

regionally or nationally significant 

transmission line and their attendant 

facilities. Such transmission line 

projects must require more than one 

Federal authorization, and all or part of 

a proposed transmission line must cross 

jurisdictions administered by more than 

one participating agency. Such 

transmission line projects must also be 

used for the transmission of electric 

energy in interstate commerce for sale at 

wholesale. The provisions of Part 900 

would also apply to Other Projects at 

the discretion of the Director. Other 

Projects must also be transmission 

facilities that are used for the 

transmission of electric energy in 

interstate commerce for the sale of 

electric energy at wholesale, but do not 

need to meet the 230 kV or above 

qualification, be regionally of nationally 

significant, or cross jurisdictions 

administered by more than one 

Participating Agency. 

(b) This part does not apply to Federal 

authorizations for electric transmission 

facilities located within the Electric 

Reliability Council of Texas 

interconnection. 

(c) This part does not apply to 

transmission lines that cross the U.S. 

international border, Federal submerged 

lands, national marine sanctuaries, or 

the facilities constructed by Federal 

Power Marketing Administrations. 

However, section 216(h) does not affect 

any requirements of U.S. environmental 

laws, and this exemption does not 

waive any requirements to obtain 

necessary Federal authorizations for 

electric transmission facilities. 

(d) This part does not apply to Federal 

authorizations in regard to transmission 

facilities where an application has been 

submitted to the Federal Energy 

Regulatory Commission (FERC) for 

issuance of a permit for construction or 

modification of transmission facilities 

under 18 CFR 50.6 or where pre-filing 

procedures have been initiated with 

FERC under 18 CFR 50.5. 


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(e) DOE, in exercising its 

responsibilities under this part, will 

consult regularly with FERC, electric 

reliability organizations, and 

transmission organizations approved by 

FERC. 

§ 900.3 Definitions. 

As used in this part: 

Applicant means a person or entity 

who is seeking Federal authorization to 

construct electric transmission facilities. 

Consolidated administrative record 

means the information assembled and 

maintained by the lead agency and 

utilized by the cooperating agencies/ 

permitting entities as the basis for their 

Federal authorization decisions along 

with the final decision made by each 

permitting entity. 

Cooperating agencies are those 

agencies that have jurisdiction by law 

regarding a proposed project, or that 

otherwise have special expertise with 

respect to environmental and other 

issues pertinent to Federal agency 

reviews. States, tribes and local 

governments with relevant expertise or 

authority, or that are potentially affected 

by or interested in a project, can also be 

cooperating agencies. 

Director means the Director of 

Permitting and Siting within DOE’s 

Office of Electricity Delivery and Energy 

Reliability. 

DOE means the United States 

Department of Energy. 

Federal authorization means any 

authorization required under Federal 

law to site a transmission facility, 

including permits, special use 

authorizations, certifications, opinions, 

or other approvals. This term includes 

authorizations issued by Federal and 

non-Federal entities that are responsible 

for issuing authorizations under Federal 

law for a transmission facility. 

FPA means the Federal Power Act (16 

U.S.C. 791–828c). 

Indian tribe has the same meaning as 

provided in 25 U.S.C. 450b(e). 

Lead Agency means the Federal 

agency, selected as provided for in these 

rules, to coordinate Federal 

authorizations and related Federal 

agency reviews pursuant to this part. 

NEPA means the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.) 

Non-Federal entities mean local 

government agencies with relevant 

expertise or authority that are 

potentially affected by or are 

responsible for conducting any separate 

permitting and environmental reviews 

of the proposed facilities. 

Other projects mean transmission 

facilities that are not qualifying projects. 

Other projects must be used for the 

transmission of electric energy in 

interstate commerce for the sale of 

electric energy at wholesale, but do not 

need to meet the 230 kV or above 

qualification, be regionally or nationally 

significant, or cross jurisdictions 

administered by more than one 

Participating Agency. 

Participating agency means a 

signatory of the MOU executed on 

October 23, 2009. The participating 

agencies are DOE, the Departments of 

Defense, Agriculture (USDA), the 

Interior (DOI), and Commerce, FERC, 

the Environmental Protection Agency, 

the Council on Environmental Quality, 

and the Advisory Council on Historic 

Preservation. 

Permitting entity means any Federal 

or non-Federal entity that is responsible 

for making a determination on issuing 

an authorization required to site an 

electric transmission line. 

Qualifying Projects are high voltage 

transmission line projects (generally 230 

kV or above) and their attendant 

facilities, or otherwise regionally or 

nationally significant transmission lines 

and their attendant facilities, in which 

all or part of a proposed transmission 

line crosses jurisdictions administered 

by more than one participating agency 

and is used for the transmission of 

electric energy in interstate commerce 

for sale at wholesale. This definition is 

consistent with FERC Order No. 689 

(regulations regarding application for 

permits to site electric transmission 

facilities issued under section 216 of the 

FPA) and may include intrastate 

facilities. 

Single environmental review 

document means the material that the 

cooperating agencies develop—with the 

lead agency being primarily 

responsible—to fulfill Federal 

obligations for preparing NEPA 

compliance documents and all other 

analyses required to comply with all 

environmental, tribal consultation, 

cultural and historic preservation 

statutes and regulations under Federal 

law. This information shall be available 

to the applicant, all cooperating 

agencies, DOE, and all Indian tribes, 

multistate entities, and State agencies 

that have their own separate nonFederal permitting and environmental 

reviews. 

§ 900.4 Pre-application procedures. 

(a) Pre-application mechanism: 

(1) An applicant, or prospective 

applicant, for a Federal authorization 

may request information from a 

permitting or potential permitting entity 

concerning the likelihood of approval 

for a potential facility and key issues of 

concern to the agency and public. The 

applicant or prospective applicant 

requesting information from a 

permitting or potential permitting entity 

shall notify the Director of the request 

to the entity. 

(2) Any request for information filed 

under this section shall specify the 

information sought from the permitting 

entity in sufficient detail for the 

permitting entity to provide the 

requested information. 

(3) Within 60 days of receipt of such 

a request for information, a permitting 

entity shall provide, to the extent 

permissible under existing law, 

information addressing the request to 

the applicant, or prospective applicant, 

and the Director. 

(4) The provision of such information 

does not constitute a commitment by 

the permitting entity to approve or 

disapprove any Federal authorization 

request. 

(b) Additional pre-application 

procedures: 

Permitting entities contacted by 

prospective applicants for Federal 

authorization to site electric 

transmission facilities will notify 

participating agencies of Qualifying 

Projects and facilitate a pre-application 

meeting for prospective applicants and 

relevant Federal and state agencies and 

Tribes to communicate key issues of 

concern, explain applicable processes, 

outline data requirements and applicant 

submissions necessary to complete the 

required Federal agency reviews in a 

timely manner, and to establish 

schedules. 

§ 900.5 Notification of requests for Federal 

authorizations for Qualifying Project and 

requests for DOE assistance in the Federal 

authorization process. 

(a) Qualifying Projects. When one or 

more permitting entities determine that 

a project may be a Qualifying Project, 

those entities will, within 10 days, 

notify DOE of that determination. The 

notification is to be made to the 

Director, Permitting and Siting, ATTN: 

Transmission Coordination, U.S. 

Department of Energy, OE–20, Office of 

Electricity Delivery and Energy 

Reliability, 1000 Independence Avenue 

SW., Washington, DC 20585 or 

electronically to 

transmissioncoordination@hq.doe.gov. 

(b) Other Projects. Persons seeking 

DOE assistance in the Federal 

authorization process for Other Projects 

shall file a request for coordination with 

the Director. The request shall contain: 

(1) The legal name of the requester; its 

principal place of business; whether the 

requester is an individual, partnership, 

corporation, or other entity; the State 

laws under which the requester is 


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Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Proposed Rules 77441 

organized or authorized; and the name, 

title, and mailing address of the person 

or persons to whom communications 

concerning the request for coordination 

are to be addressed; 

(2) A concise general description of 

the proposed transmission facility 

sufficient to explain its scope and 

purpose; 

(3) A list of all permitting entities 

from which Federal authorizations 

pertaining to the proposed transmission 

facility are needed, including the docket 

numbers of pending applications with 

permitting entities; 

(4) A list of non-Federal entities (i.e., 

state government agencies) that have 

their own separate non-Federal 

permitting and environmental reviews 

pertaining to the proposed transmission 

facility, including the docket numbers 

of relevant applications. 

(c) Written request. The written 

request for coordination may be filed by 

mail or hand delivery with the Director 

at 1000 Independence Avenue SW., 

Washington, DC 20585, or electronically 

in MS Word or PDF formats at 

Brian.Mills@hq.doe.gov. Electronic 

filing is DOE’s preferred method. If 

filing by hand or mail, DOE requests 

that an electronic copy be filed as well. 

§ 900.6 Selection of lead agency and 

coordination of permitting and related 

environmental reviews. 

(a) Qualifying Projects. (1) As 

provided in paragraphs (a)(2) and (3) of 

this section, DOE will coordinate the 

selection of a Lead Agency responsible 

for compiling a unified environmental 

review document and consolidated 

administrative record for qualifying 

projects. The selection will recognize 

the agency with the most significant 

land management interests related to the 

qualifying project or the agency 

recommended by other cooperating 

agencies to be the lead agency. 

Determination of the lead agency for 

preparing NEPA documents shall be in 

compliance with regulations issued by 

the Council on Environmental Quality 

at 40 CFR part 1500 et seq. 

(2) For Qualifying Projects that cross 

DOI-administered lands (including trust 

or restricted Indian lands) or USDAadministered lands, DOI and USDA will 

consult and jointly determine within 20 

days after determining that a proposal is 

a Qualifying Project: 

(i) Whether a sufficient land 

management interest exists to support 

their assumption of the lead agency role; 

and 

(ii) If so, which of the two agencies 

should assume that role. DOI and USDA 

will notify DOE of their determination 

in writing or electronically within 10 

days of making the determination. 

Unless DOE in writing or electronically 

notifies DOI and USDA of its objection 

to such determination within two 

business days of the DOI/USDA 

notification, such determination is 

deemed accepted and final. 

(3) When the Lead Agency is not 

established pursuant to paragraph (a)(2) 

of this section, the cooperating agencies 

will consult and jointly determine a 

Lead Agency within 20 days after 

determining that a proposal is a 

Qualifying Project. No determination of 

an agency as a Lead Agency under this 

rule shall be made absent that agency’s 

consent. The agencies will notify DOE 

of their determination in writing or 

electronically within 10 days of making 

the determination. Unless DOE in 

writing or electronically notifies those 

cooperating agencies of its objection 

within two business days of the 

cooperating agencies notification, such 

determination is deemed accepted and 

final. 

(b) Other Projects. For Other Projects, 

pursuant to § 900.5(b), an applicant can 

file a request for coordination with the 

Director for assistance in the Federal 

authorization process, and the Director 

may provide assistance at the Director’s 

discretion. If DOE decides to provide 

authorization assistance, DOE will work 

with the permitting entity to determine 

a Lead Agency. 

(c) Non-Federal entities that have 

their own separate non-Federal 

permitting and environmental reviews 

may elect to participate in the 

coordination process under this section, 

including becoming cooperating 

agencies. 

§ 900.7 Lead agency responsibilities. 

(a) The Lead Agency will consult fully 

with the cooperating agencies 

throughout the Federal authorization 

review process to improve coordination, 

identify and obtain relevant data in a 

timely manner, set schedules, and 

identify and expeditiously resolve 

issues or concerns. 

(b) The Lead Agency will consult with 

DOE, the qualifying project applicant, 

other affected parties, and cooperating 

agencies to establish an efficient project 

schedule, including intermediate 

milestones and ultimate deadlines for 

the review of Federal authorization 

applications and decisions relating to 

proposed electric transmission facilities. 

(c) The Lead Agency will prepare a 

unified environmental review document 

for the Qualifying Project, incorporating, 

to the maximum extent practicable, a 

single environmental record on which 

all entities with authority to issue 

authorizations for a given project can 

base their decisions. 

(d) The Lead Agency will maintain a 

consolidated administrative record of 

the information assembled and utilized 

by the cooperating agencies as the basis 

for their decisions. 

(e) The Lead Agency will, to the 

extent practicable and consistent with 

Federal law, ensure that all project data 

are submitted and maintained in 

electronic geospatial formats or other 

generally-accessible electronic forms 

(e.g., geographic information system 

data including metadata descriptions 

meeting Federal Geographic Data 

Committee standards); compile and 

make available the information 

assembled and utilized by the 

cooperating agencies; and, as 

appropriate, provide public access to 

the data by maintaining on the agency 

Web site information and links to the 

information available from all 

cooperating agencies. 

(f) The Lead Agency will establish any 

procedures necessary for it to coordinate 

the requirements of this part with other 

Federal and non-Federal entities. 

(g) The Lead Agency will produce 

regular input to and updates of a DOEmaintained electronic project tracking 

system. The information provided by 

the lead agency will, as appropriate, be 

made available to the public as provided 

in § 900.9(e). 

(h) The Lead Agency will inform 

cooperating agencies regarding new 

information and necessary changes 

related to the project. 

(i) To the extent practicable and 

consistent with Federal law, the Lead 

Agency may establish a procedure to 

consolidate costs recoverable from the 

applicant to reimburse Federal agencies 

for costs incurred, issue bills for 

collection, and disburse funds to the 

appropriate Federal agencies. 

§ 900.8 Cooperating agencies’ 

responsibilities. 

(a) Cooperating agencies will submit 

reviews in accordance with the timeline 

established by the Lead Agency after 

consultation with cooperating agencies. 

(b) Cooperating agencies will provide 

personnel and/or expertise to the Lead 

Agency as agreed to by the cooperating 

agencies. 

(c) Cooperating agencies will be 

responsible for the provision of any 

information necessary to complete 

application reviews and decisions in 

accordance with deadlines established 

by the Lead Agency after consultation 

with cooperating agencies. 

(d) Each cooperating agency will 

assign a lead point of contact for 

coordination and consultation with the 


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77442 Federal Register / Vol. 76, No. 239 / Tuesday, December 13, 2011 / Proposed Rules 

Lead Agency during the pendency of 

Federal authorization requests. 

(e) Each cooperating agency will share 

information and data with each other 

and, to the maximum extent practicable, 

submit information in a common 

standard for electronic recordkeeping 

and analysis. 

(f) Cooperating agencies will ensure 

that any issues or problems relating to 

a Federal authorization request or 

process are brought to the immediate 

attention of the lead agency and DOE, 

and will participate fully in seeking and 

implementing resolutions to the issues 

or problems. 

(g) Cooperating Agencies may enter 

into an interagency agreement with the 

Lead Agency to allow for the recovery 

of appropriate costs. The Cooperating 

Agencies would be responsible for 

providing the Lead Agency an 

accounting of billable costs as a result 

of the application and permitting 

process. 

§ 900.9 DOE responsibilities. 

(a) DOE will lead the overall 

coordination of activities related to 

implementation of section 216(h) of the 

FPA and pursuant to this part. 

(b) DOE will coordinate the selection 

of the Lead Agency as specified in this 

part. 

(c) DOE will provide expertise to 

assist the Lead Agency as required and 

ensure adherence to applicable 

schedules. 

(d) DOE will provide assistance to the 

Lead Agency in establishing the 

schedule and will approve any 

deviation in the established project 

schedule. 

(e) DOE will develop a public Web 

site to serve as a central source of 

information about section 216(h) of the 

FPA in general and links to the 

information available from participating 

and cooperating agencies, as well as 

schedule information about the specific 

transmission projects. The Web site can 

be accessed via www.oe.energy.gov/ 

fed_transmission.htm. 

§ 900.10 Prompt and binding intermediate 

milestones and ultimate deadlines under 

the Federal Power Act. 

Pursuant to section 216(h)(4)(A) of the 

Federal Power Act: 

(a) Permitting entities will work 

diligently to comply with the agreedupon timeline, to the extent consistent 

with applicable law. To ensure 

adherence to applicable schedules, DOE 

will provide assistance to the lead 

agency in establishing the schedule and 

will approve any deviation in the 

established project schedule. 

(b) No later than 30 days prior to any 

intermediate or ultimate deadline 

established under this part, any 

permitting entity subject to a deadline 

shall inform the lead agency, DOE, and 

the applicant if the deadline will not, or 

is not likely to, be met. 

(c) The Lead Agency, in consultation 

with DOE and the permitting entity, 

may, for good cause shown, extend an 

interim or ultimate deadline. 

§ 900.11 Deadlines for all permit decisions 

and related environmental reviews pursuant 

to the Federal Power Act. 

Pursuant to section 216(h)(4)(B) of the 

Federal Power Act: 

(a) All permit decisions and related 

environmental reviews under all 

applicable Federal laws shall be 

completed in accordance with the 

following timelines, except as provided 

in § 900.11(b): 

(1) When a categorical exclusion 

under NEPA is invoked, or an 

environmental assessment (EA) finding 

of no significant impact (FONSI) is 

determined to be the appropriate level 

of review under NEPA, within one year 

of the categorical exclusion 

determination or the publication of a 

FONSI ; or 

(2) When an environmental impact 

statement (EIS) is required pursuant to 

NEPA, one year and 30 days after the 

close of the public comment period for 

a Draft EIS. 

(b) If a requirement in another 

provision of Federal law does not 

permit a final decision on the Federal 

authorization request under the 

schedule established in paragraph (a) of 

this section, the permitting entity shall 

inform the lead agency, DOE, 

cooperating agencies, the applicant, and 

other interested parties, cite the 

provision of Federal law that prevents 

the final decision on the Federal 

authorization request from being issued 

under the schedule established in 

paragraph (a) of this section, and 

provide a date when the final decision 

on the authorization request can be 

issued in compliance with Federal law. 

[FR Doc. 2011–31759 Filed 12–12–11; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 380 

RIN 3064–AD89 

Mutual Insurance Holding Company 

Treated as Insurance Company 

AGENCY: Federal Deposit Insurance 

Corporation (FDIC). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The FDIC is proposing a rule 

(‘‘Proposed Rule’’), with request for 

comments, that provides for the 

treatment of a mutual insurance holding 

company as an insurance company for 

the purpose of Section 203(e) of the 

Dodd-Frank Wall Street Reform and 

Consumer Protection Act (the ‘‘DoddFrank Act’’), 12 U.S.C. 5383(e). The 

Proposed Rule clarifies that the 

liquidation and rehabilitation of a 

covered financial company that is a 

mutual insurance holding company will 

be conducted in the same manner as an 

insurance company. The Proposed Rule 

is intended to harmonize the treatment 

of mutual insurance holding companies 

under Section 203(e) of the Dodd-Frank 

Act with the treatment of such 

companies under state insolvency 

regimes. 

DATES: Written comments on the Rule 

must be received by the FDIC no later 

than February 13, 2012. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Agency Web Site: http:// 

www.fdic.gov/regulations/laws/federal. 

Follow instructions for Submitting 

comments on the Agency Web Site. 

• Email: Comments@FDIC.gov. 

Include ‘‘RIN 3064–AD89’’ in the 

subject line of the message. 

• Mail: Robert E. Feldman, Executive 

Secretary, Attention: Comments, Federal 

Deposit Insurance Corporation, 550 17th 

Street NW., Washington, DC 20429. 

• Hand Delivery/Courier: Guard 

station at the rear of the 550 17th Street 

Building (located on F Street) on 

business days between 7 a.m. and 5 p.m. 

(EST). 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Public Inspection: All comments 

received will be posted without change 

to http://www.fdic.gov/regulations/laws/ 

federal including any personal 

information provided. Comments may 

be inspected and photocopied in the 

FDIC Public Information Center, 3501 

North Fairfax Drive, Room E–I002, 

Arlington, VA 22226, between 9 a.m. 

and 5 p.m. (EST) on business days. 

Paper copies of public comments may 

be ordered from the Public Information 

Center by telephone at (877) 275–3342 

or (703) 562–2200. 

FOR FURTHER INFORMATON CONTACT: R. 

Penfield Starke, Acting Assistant 

General Counsel, Legal Division, (703) 

562–2422; Mark A. Thompson, Counsel 

(703) 562–2529. 

SUPPLEMENTARY INFORMATION: 


srobinson on DSK4SPTVN1PROD with PROPOSALS