Commencement of Assessment of Annual Charges, 63667-63671 [2015-26726]
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63667
Rules and Regulations
Federal Register
Vol. 80, No. 203
Wednesday, October 21, 2015
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
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new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 11
[Docket No. RM15–18–000, Order No. 815]
Commencement of Assessment of
Annual Charges
Federal Energy Regulatory
Commission.
AGENCY:
ACTION:
Final rule.
FOR FURTHER INFORMATION CONTACT:
The Federal Energy
Regulatory Commission (Commission) is
revising its regulations to modify when
the Commission will commence
assessing annual charges to hydropower
licensees and exemptees, other than
state or municipal entities, with respect
to licenses and exemptions authorizing
unconstructed projects and new
capacity. Specifically, the Commission
will commence assessing annual
charges on the date by which the
licensee or exemptee is required to
commence construction of an
unconstructed project or new capacity,
rather than on the date that project
construction actually begins. The final
rule provides administrative efficiency
and promotes certainty among licensees,
exemptees, and Commission staff as to
when annual charges will commence.
SUMMARY:
DATES:
Tara DiJohn (Legal Information), Office
of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street NE., Washington, DC
20426, (202) 502–8671, tara.dijohn@
ferc.gov.
Norman Richardson (Technical
Information), Office of the Executive
Director, Federal Energy Regulatory
Commission, 888 First Street NE.,
Washington, DC 20426, (202) 502–
6219, norman.richardson@ferc.gov.
Order No. 815
Final Rule
Effective: December 21, 2015.
TABLE OF CONTENTS
Paragraph
No.
I. Background .................................................................................................................................................................................
II. Notice of Proposed Rulemaking (NOPR) ..................................................................................................................................
III. Discussion ................................................................................................................................................................................
IV. Regulatory Requirements ........................................................................................................................................................
A. Information Collection Statement .......................................................................................................................................
B. Environmental Analysis ......................................................................................................................................................
C. Regulatory Flexibility Act ...................................................................................................................................................
D. Document Availability ........................................................................................................................................................
E. Effective Date and Congressional Notification ..................................................................................................................
Order No. 815
Final Rule
(Issued October 15, 2015)
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I. Background
1. On May 14, 2015, the Federal Energy
Regulatory Commission (Commission)
issued a Notice of Proposed Rulemaking
(NOPR) proposing to revise its
regulations governing the
commencement of assessment of annual
charges for non-municipal hydropower
licensees and exemptees.1 As explained
in the NOPR, section 10(e)(1) of the
Federal Power Act (FPA),2 and section
1 Commencement of Assessment of Annual
Charges, 151 FERC ¶ 61,115 (2015). The NOPR was
published in the Federal Register on May 22, 2015.
80 FR 29,562.
2 16 U.S.C. 803(e)(1) (2012).
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3401 of the Omnibus Budget
Reconciliation Act of 1986,3 require the
Commission to, among other things,
collect annual charges from licensees in
order to reimburse the United States for
the costs of administering Part I of the
FPA. The Commission assesses these
annual charges against licensees and
exemptees of projects with more than
1.5 megawatts (MW) of installed
capacity under section 11.1 of its
regulations.4
2. Currently, for exemptions and
original licenses for unconstructed
projects, the Commission begins
assessing administrative annual charges
on the date project construction starts.5
For new capacity authorized by a
3 42
U.S.C. 7178 (2012).
CFR 11.1 (2015).
5 Id. (c)(5).
4 18
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1
5
11
21
21
22
23
28
31
relicense 6 or an amendment of a license
or exemption, the Commission begins
assessing annual charges on the date
that the construction to enable such
capacity starts.7 This final rule affects
only projects with respect to which
annual charges are assessed when
project construction starts. It does not
address state or municipal projects,
projects with an installed capacity of 1.5
MW or less, or constructed projects
without newly authorized capacity.8
6 We use the term ‘‘relicense’’ to refer to any new
or subsequent license.
7 18 CFR 11.1(c)(5) (2015). We refer to the
addition of capacity and a reduction of capacity (on
occasion, capacity is reduced as a result of
construction, in which case annual charges are
lowered) as ‘‘new capacity.’’
8 Licensees and exemptees that are state or
municipal entities are assessed annual charges
Continued
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3. Original licenses for unconstructed
projects require a licensee to start
construction no later than two years
from the effective date of the license, as
required by section 13 of the FPA.9
Generally, exemptions and operating
projects where additional capacity is
authorized similarly require that project
construction 10 or construction of
additional capacity 11 commence within
two years of the order authorizing such
construction.
4. In many instances, construction of
authorized facilities does not begin by
the set deadline. For original licenses,
section 13 of the FPA provides that the
Commission may grant an extension of
the deadline for good cause shown, but
only once and for no more than two
additional years. These limitations of
FPA section 13 do not apply to
relicenses, exemptions, and
amendments. From 2010 through 2014,
the Commission granted extensions of
the start-of-construction deadline (1) for
original licenses and relicenses 17
times, or an average of 3.4 times per
year; (2) for exemptions 2 times, or on
average 0.4 times per year; and (3) for
license amendments authorizing new
capacity 6 times, or an average of 1.2
extensions per year.12
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II. Notice of Proposed Rulemaking
(NOPR)
5. In the NOPR, the Commission
proposed to revise section 11.1(c)(5) of
its regulations regarding when it will
commence assessing annual charges
with respect to hydropower licenses,
exemptions, and amendments
authorizing unconstructed projects and
new capacity. Specifically, the
Commission proposed to commence
assessing annual charges two years from
the effective date of an order issuing a
license, exemption, or an amendment
authorizing additional capacity, rather
when project operation commences. 18 CFR
11.1(d)(6) (2015). As noted above, the Commission
does not assess annual charges with respect to
projects with installed capacity of less than or equal
to 1.5 MW. 18 CFR 11.1(b) (2015). Constructed,
operating projects where no new capacity is being
authorized are assessed annual charges beginning
on the effective date of the license or exemption.
See 18 CFR 11.1(c)(5) (2015).
9 See 16 U.S.C. 806 (2012).
10 See 18 CFR 4.94(c) and 4.106(c) (2015)
(including in exemptions standard Article 3 to
allow the Commission to revoke an exemption if
actual construction of the proposed generating
facilities has not begun within two years).
11 See e.g., Northern States Power Co., 138 FERC
¶ 62,022, at ordering para. (E) (2012) (directing
licensee to start construction of additional
authorized capacity within two years).
12 No extensions of the start-of-construction
deadline were issued for exemption amendments
during this period, however, exemptees rarely file
amendment applications requesting authorization
to increase exemption capacity.
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than on the date project construction
starts.
6. In support of the proposed rule, the
Commission anticipated that the change
would provide administrative efficiency
and foster certainty among licensees,
exemptees, and Commission staff as to
when annual charges will commence.
The NOPR explained that licensees and
exemptees will no longer need to notify
the Commission when project
construction starts for the purpose of
assessing annual charges and, in turn,
the Commission will not have to contact
the licensee or exemptee for that
purpose.
7. While licensees and exemptees who
begin construction expeditiously will
benefit, the NOPR also acknowledged
that the proposed change would
adversely affect those licensees and
exemptees that do not start construction
within two years. The NOPR proposed
that annual charges would be assessed
two years from the effective date of an
order issuing a license, exemption, or an
amendment authorizing additional
capacity, regardless of when actual
construction commences. As noted
above, on average, 5 (3.4 licenses + 0.4
exemptions + 1.2 license amendments)
affected projects each year receive
extensions of the start-of-construction
deadline.13
8. The NOPR also acknowledged that
licensees and exemptees of projects
whose license or exemption is
terminated for failure to timely
commence construction also may be
adversely affected. If a licensee fails to
start construction within two years of its
license’s effective date or as extended by
the Commission, the Commission must
terminate the license pursuant to
section 13 of the FPA.14 Similarly, as
noted above, standard exemption
Article 3 states that the Commission
may revoke an exemption if the
exemptee fails to start construction
within the time prescribed by the
Commission. From 2010 through 2014,
the Commission terminated one license,
or an average of 0.2 licenses per year,
and no exemptions. Therefore, in the
NOPR, we estimated that annually 0.2
licenses would be assessed annual
charges beginning two years after a
license’s effective date until the license
is terminated for failure to construct.
9. In sum, the proposed rule estimated
that, on average, 5.2 (5 extensions + 0.2
terminations) licensees and/or
exemptees per year would begin paying
13 In
rare circumstances, the Commission may
stay the effective date of a license, in which case
the assessment of annual charges would also be
stayed.
14 16 U.S.C. 806 (2012).
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annual charges earlier than would be
the case under the current regulations.
10. In response to the NOPR, the
Commission received comments from
two entities. On July 20, 2015, FFP New
Hydro, LLC filed comments on behalf of
its subsidiary project companies and
together with its manager Rye
Development, LLC (collectively, FFP
New Hydro). On July 21, 2015, the
National Hydropower Association
(NHA) filed comments. The NOPR’s
proposal, the comments received, and
the Commission’s determination are
discussed below.
III. Discussion
11. FFP New Hydro contends that the
change contemplated by the NOPR
would increase the cost of hydropower
development and discourage investment
in critical infrastructure, stating that
developers often take two years
following issuance of a license,
exemption, or amendment to secure
financing and often apply for extensions
of time to commence construction.15 In
this vein, FFP New Hydro claims that
the proposed change would discourage
new hydropower development and is
therefore contrary to the inherent goals
of the Hydropower Regulatory
Efficiency Act of 2013.16 FFP New
Hydro further asserts that developers, if
faced with the prospect of being
assessed annual charges before
construction, will be forced to surrender
their licenses more frequently.17 For
these reasons, FFP New Hydro
advocates that the Commission continue
to commence assessment of annual
charges when project construction
begins.18
12. NHA asserts that the proposed
change would not further the
administrative efficiency goals set forth
in the NOPR, but would instead
increase the administrative burden on
Commission staff, licensees, and
exemptees.19 As an example of a new
administrative burden that might result,
NHA posits that the Commission would
need to implement a procedure for
issuing refunds for any payment of
annual charges by a licensee or
exemptee who ultimately fails to
commence construction.20 NHA further
claims that the assessment of annual
charges before project construction
would negatively impact the
hydropower industry and quell future
investment in hydropower
15 FFP
New Hydro at 2.
L. 113–23, 27 Stat. 493. Id. at 4–5.
17 FFP New Hydro at 5.
18 Id. at 6.
19 NHA at 2–4.
20 Id. at 4.
16 Pub.
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development, especially pumped
storage projects.21 Finally, NHA argues
that the change would run counter to
recent initiatives intended to stimulate
and streamline hydropower
development.22
13. NHA recommends that the
Commission continue to commence
assessment of annual charges on the
date project construction begins.
Alternatively, NHA proposes that the
Commission assess annual charges
when project operation commences.
14. Both FFP New Hydro and NHA
contend that the phase of project
development that exists between
issuance of a license, exemption, or
amendment and the start of construction
is a critical period. While the
Commission recognizes the time
constraints and financial obstacles faced
by licensees and exemptees, the
licensing and pre-construction phases
also translate to a time-consuming and
labor-intensive period for Commission
staff.23 During this time, the
Commission’s costs related to a
particular project begin to accrue, but
are passed along in the form of annual
charges to the pool of non-municipal
licensees and exemptees for operating
projects that are already subject to
assessment of annual charges.
15. In effect, the Commission’s costs
during the labor-intensive periods that
surround issuance of a license,
exemption, or amendment authorizing
new capacity are shouldered by the
existing pool of licensees and
exemptees.24 The change envisioned by
the NOPR, as modified in this final rule,
strives to strike a reasonable balance
21 Id.
at 4–7.
at 7–8 (referencing the Water Resources
Reform and Development Act of 2014, Pub. L. 113–
121, 128 Stat. 1193, the Hydropower Regulatory
Efficiency Act of 2013, Pub. L. 113–23, 27 Stat. 493,
and The President’s Climate Action Plan, Executive
Office of the President (June 25, 2013), available at:
https://www.whitehouse.gov/sites/default/files/
image/president27sclimateactionplan.pdf.)
23 The Commission’s considerable involvement
during the licensing and pre-construction phases of
development is underscored by FFP New Hydro’s
statement that ‘‘they have filed hundreds of
thousands of pages of documentation with the
Commission, are in regular and constant
communication with the Commission staff, and will
continue to be so throughout the licensing, postlicensing, and construction stages.’’ FFP New Hydro
at 5.
24 FFP New Hydro states that the assessment of
annual charges historically has commenced at the
start of construction. To the contrary, prior to 1995,
annual charges were assessed from the date of
issuance of the license, exemption, or amendment
authorizing new capacity. 18 CFR 11.1 (1994). See
Charges and Fees for Hydroelectric Projects, Order
No. 576, 60 FR 15,040 (March 22, 1995), FERC
Stats. & Regs. ¶ 31,016 (cross-referenced at 70 FERC
¶ 61,293) (1995) (amending section 11.1 of the
regulations to defer annual charges until
construction started).
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22 Id.
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that creates certainty for licensees and
exemptees as to when assessment of
annual charges will commence,
promotes administrative efficiency for
Commission staff by establishing a more
clear point at which to begin assessing
annual charges, and lessens the burden
on the existing pool of licensees and
exemptees currently bearing the burden
of paying annual charges for the
administration of all pre-construction
projects. Moreover, this change will
generate cost-saving benefits over the
current regulations for licensees and
exemptees who act expeditiously by
commencing construction prior to the
date triggering assessment of annual
charges.
16. In its comments, NHA speculated
that the proposed change would
actually add new administrative
burdens by requiring the Commission to
create and implement a procedure to
issue refunds for any payment of annual
charges by a licensee or exemptee who
ultimately fails to commence
construction. This speculation is
misguided. Because the assessment of
annual charges will be contingent on the
expiration of a set period of time rather
than on whether the start of
construction ultimately occurs, there is
no need for the Commission to develop
a program to handle refunds.
17. While no refunds will be offered, if
a licensee or exemptee successfully
demonstrates an inability to pay at the
time assessment of annual charges
commences, the availability of payment
plans 25 may provide a measure of relief
to certain licensees or exemptees
assessed annual charges before
construction, but who anticipate being
able to settle their account once project
financing is secured or generation
begins.26
18. Both FFP New Hydro and NHA
raised concerns that the effect of this
25 A payment plan request would be directed to,
and ultimately coordinated by, the Commission’s
Office of the Executive Director, Revenue and
Receivables Branch. The Commission’s Chief
Financial Officer would determine whether or not
to grant a payment plan request.
26 We note that the inability of a licensee or
exemptee to pay annual charges may call into
question that licensee or exemptee’s ability to bring
a hydropower project to fruition. For example,
while the amount varies based on the type of
project and its annual generation, the
administrative annual charges amount for a 5-MW
conventional project (with an annual energy output
of zero), or a 5-MW exemption, might be expected
to be in the area of $8,000, an amount any
financially-viable licensee should be able to pay.
Although pumped storage projects and large,
conventional projects are often responsible for
paying much more substantial annual charge
amounts, it is also the case that, if these projects
are to be successfully developed, these licensees
will need to have access to greater amounts of
capital than do licensees of small projects.
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final rule might discourage hydropower
development. NHA indicated that
pumped storage projects would be
particularly affected by the changes
contemplated in the NOPR. In light of
these concerns, the Commission has
decided to set the commencement of
assessment of annual charges to track
the start-of-construction deadline for
any license or exemption authorizing an
unconstructed project that receives an
extension of the start-of-construction
deadline.27 In other words, any license
or exemption for an unconstructed
project that receives an extension of the
start-of-construction deadline will be
assessed annual charges beginning at
the expiration of the start-ofconstruction deadline, as extended by
the Commission (i.e., no longer than
four years after the issuance date of the
license or exemption authorizing an
unconstructed project). A four-year
period is consistent with the deadlines
established by section 13 and,
accordingly, will give developers a
reasonable charge-free period in which
to secure financing.
19. Similarly, for any license,
exemption, or amendment authorizing
additional capacity that receives an
extension of the start-of-construction
deadline, the Commission will begin
assessing annual charges upon the
expiration of the deadline to start
construction as extended by the
Commission. In light of the reasons
discussed above, and those identified in
the NOPR, the Commission has
modified the NOPR’s proposal to revise
section 11.1(c)(5) of its regulations and
will begin assessing annual charges on
the date by which a licensee or
exemptee is required to commence
construction of an unconstructed project
or new capacity, rather than on the date
project construction actually begins. We
believe that these modifications to the
Final Rule substantially address the
concerns raised in response to the
NOPR, while also continuing to
encourage hydropower development.
20. NHA has requested that the
Commission not apply the revised
regulations to all current licensees,
exemptees, and applicants.28 We grant
the request in part. For any license,
exemption, or amendment issued by the
Commission prior to the effective date
of this final rule, we agree that the
assessment of annual charges should
remain the start of construction. The
revised regulations, however, will apply
27 Even with an extension of the start-ofconstruction deadline, in no case would assessment
of annual charges commence later than four years
after the issuance of a license or exemption
authorizing an unconstructed project.
28 NHA at 9.
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to any license, exemption, or
amendment that is issued after the
revised regulation’s effective date. Thus,
any application for a license,
exemption, or amendment that is
pending before the Commission when
this final rule becomes effective will not
be shielded from its effects. Based on
the phase and complexity of the
application process, an application
could be before the Commission for
several years before a determination is
issued. Thus, using two separate
standards, contingent on the date an
application was filed, could potentially
persist for several years, could lead to
confusion, and would place an undue
administrative burden on staff.
Therefore, the revision to section
11.1(c)(5) of the Commission’s
regulations will apply to any applicable
license, exemption, or amendment
issued on or after the effective date of
this final rule.
IV. Regulatory Requirements
A. Information Collection Statement
Act 29
21. The Paperwork Reduction
requires each federal agency to seek and
obtain Office of Management and
Budget (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.30 The final rule discussed
above does not impose or alter existing
reporting or recordkeeping requirements
on applicable entities as defined by the
Paperwork Reduction Act.31 Therefore,
the Commission will submit this final
rule to OMB for informational purposes
only.
B. Environmental Analysis
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22. The Commission is required to
prepare an Environmental Assessment
or an Environmental Impact Statement
for any action that may have a
significant adverse effect on the human
environment.32 Commission actions
concerning annual charges are
categorically exempt from this
requirement.33
29 44
U.S.C. 3501–3521 (2012).
5 CFR 1320.12 (2015).
31 44 U.S.C. 3502(2)–(3) (2012).
32 Regulations Implementing the National
Environmental Policy Act of 1969, Order No. 486,
52 FR 47,897 (Dec. 17, 1987), FERC Stats. & Regs.,
Regulations Preambles 1986–1990 ¶ 30,783 (1987).
33 See 18 CFR 380.4(a)(11) (2015).
C. Regulatory Flexibility Act
23. The Regulatory Flexibility Act of
1980 (RFA) 34 generally requires a
description and analysis of proposed
and 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 a proposed rule while
minimizing any significant economic
impact on a substantial number of small
entities.35 In the NOPR, we certified that
the proposed regulation would not have
a significant economic impact on a
substantial number of small entities.
24. As explained in the NOPR, the
Small Business Administration’s (SBA)
Office of Size Standards develops the
numerical definition of a small
business.36 The SBA revised its size
standard for electric utilities (effective
January 22, 2014) from a standard based
on megawatt-hours to a standard based
on the number of employees, including
affiliates.37 Under SBA’s current size
standards, a hydroelectric generator is
small if, including its affiliates, it
employs 500 or fewer people.38 The
Commission, however, currently does
not require information regarding the
number of individuals employed by
hydroelectric generators to administer
Part I of the FPA, and therefore, is
unable to estimate the number of small
entities using the new SBA definitions.
Regardless, the Commission anticipates
that this final rule will affect few small
hydroelectric generators.
25. As noted earlier, this rulemaking
will only affect non-state or municipal
licensed projects with an installed
capacity exceeding 1.5 MW that are
unconstructed or have newly authorized
capacity. From 2010 through 2014, the
Commission issued on average 3.6
original licenses and 0.4 exemptions per
year authorizing unconstructed projects
to affected licensees and exemptees, and
1.6 relicenses and 5 license
amendments per year authorizing new
capacity. In the NOPR, we estimated
that, in sum, on average a total of 10.6
licensees and exemptees may be
affected by the proposed rule annually.
26. Of the 10.6 total entities, only those
that do not start construction prior to
the set deadline to commence
construction (as may be extended) will
be negatively affected by the
acceleration of annual charges.
Previously, the NOPR estimated that 5.2
30 See
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34 5
U.S.C. 601–612 (2012).
U.S.C. 603(c) (2012).
36 13 CFR 121.101 (2015).
37 SBA Final Rule on ‘‘Small Business Size
Standards: Utilities,’’ 78 FR 77,343 (Dec. 23, 2013).
38 13 CFR 121.201, Sector 22, Utilities (2015).
35 5
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licensees and/or exemptees per year
may be negatively affected by the
changes contemplated in the NOPR for
failing to start construction within two
years. However, based on the
modifications reflected in the final
rule,39 we estimate that zero licensees
and/or exemptees will be negatively
affected by failing to start construction
by the set deadline, as may be extended
by the Commission.40 Moreover, small
entities that would otherwise start
construction before the date by which
they are required to commence
construction of an unconstructed project
or new capacity will benefit from the
final rule as it delays the
commencement of assessment of annual
charges until the established deadline to
start construction.
27. Accordingly, pursuant to section
605(b) of the RFA, the Commission
certifies that this final rule will not have
a significant economic impact on a
substantial number of small entities.
D. Document Availability
28. 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 print the contents of this
document via the Internet through the
Commission’s Home Page (https://
www.ferc.gov) and in the Commission’s
Public Reference Room during normal
business hours (8:30 a.m. to 5:00 p.m.
Eastern time) at 888 First Street, NE.,
Room 2A, Washington, DC 20426.
29. 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 downloading. To
access this document in eLibrary, type
the docket number excluding the last
three digits of this document in the
docket number field.
30. User assistance is available for
eLibrary and the Commission’s Web site
during normal business hours from the
Commission’s Online Support at (202)
502–6652 (toll free at 1–866–208–3676)
or email at ferconlinesupport@ferc.gov,
or the Public Reference Room at (202)
502–8371, TTY (202) 502–8659. Email
the Public Reference Room at
public.referenceroom@ferc.gov.
39 See
supra paragraphs 18–19.
a licensee or exemptee that has
received an extension of the start-of-construction
deadline might be responsible for paying annual
charges that began to accrue four years after the
issuance date of the license or exemption, but prior
to termination of the license, or revocation of the
exemption, for failure to commence construction.
However, this would be rare.
40 Conceivably,
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E. Effective Date and Congressional
Notification
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
31. This regulation is effective
December 21, 2015. The Commission
has determined, with 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
Fairness Act of 1996.41 This rule is
being submitted to the Senate, House,
and Government Accountability Office.
Food and Drug Administration
List of Subjects in 18 CFR Part 11
ACTION:
Electric power, Reporting and
recordkeeping requirements.
SUMMARY:
By the Commission.
Issued: October 15, 2015.
Kimberly D. Bose,
Secretary.
In consideration of the foregoing, the
Commission amends part 11, chapter I,
title 18, Code of Federal Regulations, as
follows:
PART 11—ANNUAL CHARGES UNDER
PART I OF THE FEDERAL POWER ACT
1. The authority citation for part 11
continues to read as follows:
■
Authority: 16 U.S.C. 792–828c; 42 U.S.C.
7101–7352.
2. Revise § 11.1(c)(5) to read as
follows:
■
§ 11.1
Costs of administration.
tkelley on DSK3SPTVN1PROD with RULES
*
*
*
*
*
(c) * * *
(5) For unconstructed projects, the
assessments begin on the date by which
the licensee or exemptee is required to
commence project construction, or as
that deadline may be extended, but in
no case longer than four years after the
issuance date of the license or
exemption. For constructed projects, the
assessments begin on the effective date
of the license or exemption, except for
any new capacity authorized therein.
The assessments for new authorized
capacity at licensed or exempted
projects begin on the date by which the
licensee or exemptee is required to
commence construction of the new
capacity. In the event that assessments
begin during a fiscal year, the charges
will be prorated.
*
*
*
*
*
[FR Doc. 2015–26726 Filed 10–20–15; 8:45 am]
BILLING CODE 6717–01–P
41 5
U.S.C. 804(2) (2012).
VerDate Sep<11>2014
16:24 Oct 20, 2015
Jkt 238001
21 CFR Part 870
[Docket No. FDA–2015–N–3387]
Medical Devices; Cardiovascular
Devices; Classification of the Coronary
Vascular Physiologic Simulation
Software Device
AGENCY:
Food and Drug Administration,
HHS.
Final order.
The Food and Drug
Administration (FDA) is classifying the
coronary vascular physiologic
simulation software device into class II
(special controls). The special controls
that will apply to the device are
identified in this order and will be part
of the codified language for the coronary
vascular physiologic simulation
software device’s classification. The
Agency is classifying the device into
class II (special controls) in order to
provide a reasonable assurance of safety
and effectiveness of the device.
DATES: This order is effective October
21, 2015. The classification was
applicable on November 26, 2014.
FOR FURTHER INFORMATION CONTACT:
Shawn Forrest, Center for Devices and
Radiological Health, Food and Drug
Administration, 10903 New Hampshire
Ave., Bldg. 66, Rm. 1326, Silver Spring,
MD 20993–0002, 301–796–5554.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with section 513(f)(1) of
the Federal Food, Drug, and Cosmetic
Act (the FD&C Act) (21 U.S.C.
360c(f)(1)), devices that were not in
commercial distribution before May 28,
1976 (the date of enactment of the
Medical Device Amendments of 1976),
generally referred to as postamendments
devices, are classified automatically by
statute into class III without any FDA
rulemaking process. These devices
remain in class III and require
premarket approval, unless and until
the device is classified or reclassified
into class I or II, or FDA issues an order
finding the device to be substantially
equivalent, in accordance with section
513(i) of the FD&C Act, to a predicate
device that does not require premarket
approval. The Agency determines
whether new devices are substantially
equivalent to predicate devices by
means of premarket notification
procedures in section 510(k) of the
FD&C Act (21 U.S.C. 360(k)) and part
807 (21 CFR part 807) of the regulations.
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
63671
Section 513(f)(2) of the FD&C Act, as
amended by section 607 of the Food and
Drug Administration Safety and
Innovation Act (Pub. L. 112–144),
provides two procedures by which a
person may request FDA to classify a
device under the criteria set forth in
section 513(a)(1). Under the first
procedure, the person submits a
premarket notification under section
510(k) of the FD&C Act for a device that
has not previously been classified and,
within 30 days of receiving an order
classifying the device into class III
under section 513(f)(1) of the FD&C Act,
the person requests a classification
under section 513(f)(2). Under the
second procedure, rather than first
submitting a premarket notification
under section 510(k) of the FD&C Act
and then a request for classification
under the first procedure, the person
determines that there is no legally
marketed device upon which to base a
determination of substantial
equivalence and requests a classification
under section 513(f)(2) of the FD&C Act.
If the person submits a request to
classify the device under this second
procedure, FDA may decline to
undertake the classification request if
FDA identifies a legally marketed device
that could provide a reasonable basis for
review of substantial equivalence with
the device or if FDA determines that the
device submitted is not of ‘‘lowmoderate risk’’ or that general controls
would be inadequate to control the risks
and special controls to mitigate the risks
cannot be developed.
In response to a request to classify a
device under either procedure provided
by section 513(f)(2) of the FD&C Act,
FDA will classify the device by written
order within 120 days. This
classification will be the initial
classification of the device.
On November 6, 2013, HeartFlow, Inc.
submitted a request for classification of
the FFRCT v.1.4 under section 513(f)(2)
of the FD&C Act. The manufacturer
recommended that the device be
classified into class II (Ref. 1).
In accordance with section 513(f)(2) of
the FD&C Act, FDA reviewed the
request in order to classify the device
under the criteria for classification set
forth in section 513(a)(1). FDA classifies
devices into class II if general controls
by themselves are insufficient to
provide reasonable assurance of safety
and effectiveness, but there is sufficient
information to establish special controls
to provide reasonable assurance of the
safety and effectiveness of the device for
its intended use. After review of the
information submitted in the request,
FDA determined that the device can be
classified into class II with the
E:\FR\FM\21OCR1.SGM
21OCR1
]]>Agencies
[Federal Register Volume 80, Number 203 (Wednesday, October 21, 2015)]
[Rules and Regulations]
[Pages 63667-63671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26726]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 80, No. 203 / Wednesday, October 21, 2015 /
Rules and Regulations
[[Page 63667]]
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 11
[Docket No. RM15-18-000, Order No. 815]
Commencement of Assessment of Annual Charges
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission (Commission) is
revising its regulations to modify when the Commission will commence
assessing annual charges to hydropower licensees and exemptees, other
than state or municipal entities, with respect to licenses and
exemptions authorizing unconstructed projects and new capacity.
Specifically, the Commission will commence assessing annual charges on
the date by which the licensee or exemptee is required to commence
construction of an unconstructed project or new capacity, rather than
on the date that project construction actually begins. The final rule
provides administrative efficiency and promotes certainty among
licensees, exemptees, and Commission staff as to when annual charges
will commence.
DATES: Effective: December 21, 2015.
FOR FURTHER INFORMATION CONTACT:
Tara DiJohn (Legal Information), Office of the General Counsel, Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426, (202) 502-8671, tara.dijohn@ferc.gov.
Norman Richardson (Technical Information), Office of the Executive
Director, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426, (202) 502-6219, norman.richardson@ferc.gov.
Order No. 815
Final Rule
Table of Contents
------------------------------------------------------------------------
Paragraph No.
------------------------------------------------------------------------
I. Background........................................ 1
II. Notice of Proposed Rulemaking (NOPR)............. 5
III. Discussion...................................... 11
IV. Regulatory Requirements.......................... 21
A. Information Collection Statement.............. 21
B. Environmental Analysis........................ 22
C. Regulatory Flexibility Act.................... 23
D. Document Availability......................... 28
E. Effective Date and Congressional Notification. 31
------------------------------------------------------------------------
Order No. 815
Final Rule
(Issued October 15, 2015)
I. Background
1. On May 14, 2015, the Federal Energy Regulatory Commission
(Commission) issued a Notice of Proposed Rulemaking (NOPR) proposing to
revise its regulations governing the commencement of assessment of
annual charges for non-municipal hydropower licensees and exemptees.\1\
As explained in the NOPR, section 10(e)(1) of the Federal Power Act
(FPA),\2\ and section 3401 of the Omnibus Budget Reconciliation Act of
1986,\3\ require the Commission to, among other things, collect annual
charges from licensees in order to reimburse the United States for the
costs of administering Part I of the FPA. The Commission assesses these
annual charges against licensees and exemptees of projects with more
than 1.5 megawatts (MW) of installed capacity under section 11.1 of its
regulations.\4\
---------------------------------------------------------------------------
\1\ Commencement of Assessment of Annual Charges, 151 FERC ]
61,115 (2015). The NOPR was published in the Federal Register on May
22, 2015. 80 FR 29,562.
\2\ 16 U.S.C. 803(e)(1) (2012).
\3\ 42 U.S.C. 7178 (2012).
\4\ 18 CFR 11.1 (2015).
---------------------------------------------------------------------------
2. Currently, for exemptions and original licenses for unconstructed
projects, the Commission begins assessing administrative annual charges
on the date project construction starts.\5\ For new capacity authorized
by a relicense \6\ or an amendment of a license or exemption, the
Commission begins assessing annual charges on the date that the
construction to enable such capacity starts.\7\ This final rule affects
only projects with respect to which annual charges are assessed when
project construction starts. It does not address state or municipal
projects, projects with an installed capacity of 1.5 MW or less, or
constructed projects without newly authorized capacity.\8\
---------------------------------------------------------------------------
\5\ Id. (c)(5).
\6\ We use the term ``relicense'' to refer to any new or
subsequent license.
\7\ 18 CFR 11.1(c)(5) (2015). We refer to the addition of
capacity and a reduction of capacity (on occasion, capacity is
reduced as a result of construction, in which case annual charges
are lowered) as ``new capacity.''
\8\ Licensees and exemptees that are state or municipal entities
are assessed annual charges when project operation commences. 18 CFR
11.1(d)(6) (2015). As noted above, the Commission does not assess
annual charges with respect to projects with installed capacity of
less than or equal to 1.5 MW. 18 CFR 11.1(b) (2015). Constructed,
operating projects where no new capacity is being authorized are
assessed annual charges beginning on the effective date of the
license or exemption. See 18 CFR 11.1(c)(5) (2015).
---------------------------------------------------------------------------
[[Page 63668]]
3. Original licenses for unconstructed projects require a licensee to
start construction no later than two years from the effective date of
the license, as required by section 13 of the FPA.\9\ Generally,
exemptions and operating projects where additional capacity is
authorized similarly require that project construction \10\ or
construction of additional capacity \11\ commence within two years of
the order authorizing such construction.
---------------------------------------------------------------------------
\9\ See 16 U.S.C. 806 (2012).
\10\ See 18 CFR 4.94(c) and 4.106(c) (2015) (including in
exemptions standard Article 3 to allow the Commission to revoke an
exemption if actual construction of the proposed generating
facilities has not begun within two years).
\11\ See e.g., Northern States Power Co., 138 FERC ] 62,022, at
ordering para. (E) (2012) (directing licensee to start construction
of additional authorized capacity within two years).
---------------------------------------------------------------------------
4. In many instances, construction of authorized facilities does not
begin by the set deadline. For original licenses, section 13 of the FPA
provides that the Commission may grant an extension of the deadline for
good cause shown, but only once and for no more than two additional
years. These limitations of FPA section 13 do not apply to relicenses,
exemptions, and amendments. From 2010 through 2014, the Commission
granted extensions of the start-of-construction deadline (1) for
original licenses and relicenses 17 times, or an average of 3.4 times
per year; (2) for exemptions 2 times, or on average 0.4 times per year;
and (3) for license amendments authorizing new capacity 6 times, or an
average of 1.2 extensions per year.\12\
---------------------------------------------------------------------------
\12\ No extensions of the start-of-construction deadline were
issued for exemption amendments during this period, however,
exemptees rarely file amendment applications requesting
authorization to increase exemption capacity.
---------------------------------------------------------------------------
II. Notice of Proposed Rulemaking (NOPR)
5. In the NOPR, the Commission proposed to revise section 11.1(c)(5) of
its regulations regarding when it will commence assessing annual
charges with respect to hydropower licenses, exemptions, and amendments
authorizing unconstructed projects and new capacity. Specifically, the
Commission proposed to commence assessing annual charges two years from
the effective date of an order issuing a license, exemption, or an
amendment authorizing additional capacity, rather than on the date
project construction starts.
6. In support of the proposed rule, the Commission anticipated that the
change would provide administrative efficiency and foster certainty
among licensees, exemptees, and Commission staff as to when annual
charges will commence. The NOPR explained that licensees and exemptees
will no longer need to notify the Commission when project construction
starts for the purpose of assessing annual charges and, in turn, the
Commission will not have to contact the licensee or exemptee for that
purpose.
7. While licensees and exemptees who begin construction expeditiously
will benefit, the NOPR also acknowledged that the proposed change would
adversely affect those licensees and exemptees that do not start
construction within two years. The NOPR proposed that annual charges
would be assessed two years from the effective date of an order issuing
a license, exemption, or an amendment authorizing additional capacity,
regardless of when actual construction commences. As noted above, on
average, 5 (3.4 licenses + 0.4 exemptions + 1.2 license amendments)
affected projects each year receive extensions of the start-of-
construction deadline.\13\
---------------------------------------------------------------------------
\13\ In rare circumstances, the Commission may stay the
effective date of a license, in which case the assessment of annual
charges would also be stayed.
---------------------------------------------------------------------------
8. The NOPR also acknowledged that licensees and exemptees of projects
whose license or exemption is terminated for failure to timely commence
construction also may be adversely affected. If a licensee fails to
start construction within two years of its license's effective date or
as extended by the Commission, the Commission must terminate the
license pursuant to section 13 of the FPA.\14\ Similarly, as noted
above, standard exemption Article 3 states that the Commission may
revoke an exemption if the exemptee fails to start construction within
the time prescribed by the Commission. From 2010 through 2014, the
Commission terminated one license, or an average of 0.2 licenses per
year, and no exemptions. Therefore, in the NOPR, we estimated that
annually 0.2 licenses would be assessed annual charges beginning two
years after a license's effective date until the license is terminated
for failure to construct.
---------------------------------------------------------------------------
\14\ 16 U.S.C. 806 (2012).
---------------------------------------------------------------------------
9. In sum, the proposed rule estimated that, on average, 5.2 (5
extensions + 0.2 terminations) licensees and/or exemptees per year
would begin paying annual charges earlier than would be the case under
the current regulations.
10. In response to the NOPR, the Commission received comments from two
entities. On July 20, 2015, FFP New Hydro, LLC filed comments on behalf
of its subsidiary project companies and together with its manager Rye
Development, LLC (collectively, FFP New Hydro). On July 21, 2015, the
National Hydropower Association (NHA) filed comments. The NOPR's
proposal, the comments received, and the Commission's determination are
discussed below.
III. Discussion
11. FFP New Hydro contends that the change contemplated by the NOPR
would increase the cost of hydropower development and discourage
investment in critical infrastructure, stating that developers often
take two years following issuance of a license, exemption, or amendment
to secure financing and often apply for extensions of time to commence
construction.\15\ In this vein, FFP New Hydro claims that the proposed
change would discourage new hydropower development and is therefore
contrary to the inherent goals of the Hydropower Regulatory Efficiency
Act of 2013.\16\ FFP New Hydro further asserts that developers, if
faced with the prospect of being assessed annual charges before
construction, will be forced to surrender their licenses more
frequently.\17\ For these reasons, FFP New Hydro advocates that the
Commission continue to commence assessment of annual charges when
project construction begins.\18\
---------------------------------------------------------------------------
\15\ FFP New Hydro at 2.
\16\ Pub. L. 113-23, 27 Stat. 493. Id. at 4-5.
\17\ FFP New Hydro at 5.
\18\ Id. at 6.
---------------------------------------------------------------------------
12. NHA asserts that the proposed change would not further the
administrative efficiency goals set forth in the NOPR, but would
instead increase the administrative burden on Commission staff,
licensees, and exemptees.\19\ As an example of a new administrative
burden that might result, NHA posits that the Commission would need to
implement a procedure for issuing refunds for any payment of annual
charges by a licensee or exemptee who ultimately fails to commence
construction.\20\ NHA further claims that the assessment of annual
charges before project construction would negatively impact the
hydropower industry and quell future investment in hydropower
[[Page 63669]]
development, especially pumped storage projects.\21\ Finally, NHA
argues that the change would run counter to recent initiatives intended
to stimulate and streamline hydropower development.\22\
---------------------------------------------------------------------------
\19\ NHA at 2-4.
\20\ Id. at 4.
\21\ Id. at 4-7.
\22\ Id. at 7-8 (referencing the Water Resources Reform and
Development Act of 2014, Pub. L. 113-121, 128 Stat. 1193, the
Hydropower Regulatory Efficiency Act of 2013, Pub. L. 113-23, 27
Stat. 493, and The President's Climate Action Plan, Executive Office
of the President (June 25, 2013), available at: https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf.)
---------------------------------------------------------------------------
13. NHA recommends that the Commission continue to commence assessment
of annual charges on the date project construction begins.
Alternatively, NHA proposes that the Commission assess annual charges
when project operation commences.
14. Both FFP New Hydro and NHA contend that the phase of project
development that exists between issuance of a license, exemption, or
amendment and the start of construction is a critical period. While the
Commission recognizes the time constraints and financial obstacles
faced by licensees and exemptees, the licensing and pre-construction
phases also translate to a time-consuming and labor-intensive period
for Commission staff.\23\ During this time, the Commission's costs
related to a particular project begin to accrue, but are passed along
in the form of annual charges to the pool of non-municipal licensees
and exemptees for operating projects that are already subject to
assessment of annual charges.
---------------------------------------------------------------------------
\23\ The Commission's considerable involvement during the
licensing and pre-construction phases of development is underscored
by FFP New Hydro's statement that ``they have filed hundreds of
thousands of pages of documentation with the Commission, are in
regular and constant communication with the Commission staff, and
will continue to be so throughout the licensing, post-licensing, and
construction stages.'' FFP New Hydro at 5.
---------------------------------------------------------------------------
15. In effect, the Commission's costs during the labor-intensive
periods that surround issuance of a license, exemption, or amendment
authorizing new capacity are shouldered by the existing pool of
licensees and exemptees.\24\ The change envisioned by the NOPR, as
modified in this final rule, strives to strike a reasonable balance
that creates certainty for licensees and exemptees as to when
assessment of annual charges will commence, promotes administrative
efficiency for Commission staff by establishing a more clear point at
which to begin assessing annual charges, and lessens the burden on the
existing pool of licensees and exemptees currently bearing the burden
of paying annual charges for the administration of all pre-construction
projects. Moreover, this change will generate cost-saving benefits over
the current regulations for licensees and exemptees who act
expeditiously by commencing construction prior to the date triggering
assessment of annual charges.
---------------------------------------------------------------------------
\24\ FFP New Hydro states that the assessment of annual charges
historically has commenced at the start of construction. To the
contrary, prior to 1995, annual charges were assessed from the date
of issuance of the license, exemption, or amendment authorizing new
capacity. 18 CFR 11.1 (1994). See Charges and Fees for Hydroelectric
Projects, Order No. 576, 60 FR 15,040 (March 22, 1995), FERC Stats.
& Regs. ] 31,016 (cross-referenced at 70 FERC ] 61,293) (1995)
(amending section 11.1 of the regulations to defer annual charges
until construction started).
---------------------------------------------------------------------------
16. In its comments, NHA speculated that the proposed change would
actually add new administrative burdens by requiring the Commission to
create and implement a procedure to issue refunds for any payment of
annual charges by a licensee or exemptee who ultimately fails to
commence construction. This speculation is misguided. Because the
assessment of annual charges will be contingent on the expiration of a
set period of time rather than on whether the start of construction
ultimately occurs, there is no need for the Commission to develop a
program to handle refunds.
17. While no refunds will be offered, if a licensee or exemptee
successfully demonstrates an inability to pay at the time assessment of
annual charges commences, the availability of payment plans \25\ may
provide a measure of relief to certain licensees or exemptees assessed
annual charges before construction, but who anticipate being able to
settle their account once project financing is secured or generation
begins.\26\
---------------------------------------------------------------------------
\25\ A payment plan request would be directed to, and ultimately
coordinated by, the Commission's Office of the Executive Director,
Revenue and Receivables Branch. The Commission's Chief Financial
Officer would determine whether or not to grant a payment plan
request.
\26\ We note that the inability of a licensee or exemptee to pay
annual charges may call into question that licensee or exemptee's
ability to bring a hydropower project to fruition. For example,
while the amount varies based on the type of project and its annual
generation, the administrative annual charges amount for a 5-MW
conventional project (with an annual energy output of zero), or a 5-
MW exemption, might be expected to be in the area of $8,000, an
amount any financially-viable licensee should be able to pay.
Although pumped storage projects and large, conventional projects
are often responsible for paying much more substantial annual charge
amounts, it is also the case that, if these projects are to be
successfully developed, these licensees will need to have access to
greater amounts of capital than do licensees of small projects.
---------------------------------------------------------------------------
18. Both FFP New Hydro and NHA raised concerns that the effect of this
final rule might discourage hydropower development. NHA indicated that
pumped storage projects would be particularly affected by the changes
contemplated in the NOPR. In light of these concerns, the Commission
has decided to set the commencement of assessment of annual charges to
track the start-of-construction deadline for any license or exemption
authorizing an unconstructed project that receives an extension of the
start-of-construction deadline.\27\ In other words, any license or
exemption for an unconstructed project that receives an extension of
the start-of-construction deadline will be assessed annual charges
beginning at the expiration of the start-of-construction deadline, as
extended by the Commission (i.e., no longer than four years after the
issuance date of the license or exemption authorizing an unconstructed
project). A four-year period is consistent with the deadlines
established by section 13 and, accordingly, will give developers a
reasonable charge-free period in which to secure financing.
---------------------------------------------------------------------------
\27\ Even with an extension of the start-of-construction
deadline, in no case would assessment of annual charges commence
later than four years after the issuance of a license or exemption
authorizing an unconstructed project.
---------------------------------------------------------------------------
19. Similarly, for any license, exemption, or amendment authorizing
additional capacity that receives an extension of the start-of-
construction deadline, the Commission will begin assessing annual
charges upon the expiration of the deadline to start construction as
extended by the Commission. In light of the reasons discussed above,
and those identified in the NOPR, the Commission has modified the
NOPR's proposal to revise section 11.1(c)(5) of its regulations and
will begin assessing annual charges on the date by which a licensee or
exemptee is required to commence construction of an unconstructed
project or new capacity, rather than on the date project construction
actually begins. We believe that these modifications to the Final Rule
substantially address the concerns raised in response to the NOPR,
while also continuing to encourage hydropower development.
20. NHA has requested that the Commission not apply the revised
regulations to all current licensees, exemptees, and applicants.\28\ We
grant the request in part. For any license, exemption, or amendment
issued by the Commission prior to the effective date of this final
rule, we agree that the assessment of annual charges should remain the
start of construction. The revised regulations, however, will apply
[[Page 63670]]
to any license, exemption, or amendment that is issued after the
revised regulation's effective date. Thus, any application for a
license, exemption, or amendment that is pending before the Commission
when this final rule becomes effective will not be shielded from its
effects. Based on the phase and complexity of the application process,
an application could be before the Commission for several years before
a determination is issued. Thus, using two separate standards,
contingent on the date an application was filed, could potentially
persist for several years, could lead to confusion, and would place an
undue administrative burden on staff. Therefore, the revision to
section 11.1(c)(5) of the Commission's regulations will apply to any
applicable license, exemption, or amendment issued on or after the
effective date of this final rule.
---------------------------------------------------------------------------
\28\ NHA at 9.
---------------------------------------------------------------------------
IV. Regulatory Requirements
A. Information Collection Statement
21. The Paperwork Reduction Act \29\ requires each federal agency to
seek and obtain Office of Management and Budget (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.\30\ The
final rule discussed above does not impose or alter existing reporting
or recordkeeping requirements on applicable entities as defined by the
Paperwork Reduction Act.\31\ Therefore, the Commission will submit this
final rule to OMB for informational purposes only.
---------------------------------------------------------------------------
\29\ 44 U.S.C. 3501-3521 (2012).
\30\ See 5 CFR 1320.12 (2015).
\31\ 44 U.S.C. 3502(2)-(3) (2012).
---------------------------------------------------------------------------
B. Environmental Analysis
22. The Commission is required to prepare an Environmental Assessment
or an Environmental Impact Statement for any action that may have a
significant adverse effect on the human environment.\32\ Commission
actions concerning annual charges are categorically exempt from this
requirement.\33\
---------------------------------------------------------------------------
\32\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47,897 (Dec. 17, 1987), FERC
Stats. & Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
\33\ See 18 CFR 380.4(a)(11) (2015).
---------------------------------------------------------------------------
C. Regulatory Flexibility Act
23. The Regulatory Flexibility Act of 1980 (RFA) \34\ generally
requires a description and analysis of proposed and 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 a proposed rule while
minimizing any significant economic impact on a substantial number of
small entities.\35\ In the NOPR, we certified that the proposed
regulation would not have a significant economic impact on a
substantial number of small entities.
---------------------------------------------------------------------------
\34\ 5 U.S.C. 601-612 (2012).
\35\ 5 U.S.C. 603(c) (2012).
---------------------------------------------------------------------------
24. As explained in the NOPR, the Small Business Administration's (SBA)
Office of Size Standards develops the numerical definition of a small
business.\36\ The SBA revised its size standard for electric utilities
(effective January 22, 2014) from a standard based on megawatt-hours to
a standard based on the number of employees, including affiliates.\37\
Under SBA's current size standards, a hydroelectric generator is small
if, including its affiliates, it employs 500 or fewer people.\38\ The
Commission, however, currently does not require information regarding
the number of individuals employed by hydroelectric generators to
administer Part I of the FPA, and therefore, is unable to estimate the
number of small entities using the new SBA definitions. Regardless, the
Commission anticipates that this final rule will affect few small
hydroelectric generators.
---------------------------------------------------------------------------
\36\ 13 CFR 121.101 (2015).
\37\ SBA Final Rule on ``Small Business Size Standards:
Utilities,'' 78 FR 77,343 (Dec. 23, 2013).
\38\ 13 CFR 121.201, Sector 22, Utilities (2015).
---------------------------------------------------------------------------
25. As noted earlier, this rulemaking will only affect non-state or
municipal licensed projects with an installed capacity exceeding 1.5 MW
that are unconstructed or have newly authorized capacity. From 2010
through 2014, the Commission issued on average 3.6 original licenses
and 0.4 exemptions per year authorizing unconstructed projects to
affected licensees and exemptees, and 1.6 relicenses and 5 license
amendments per year authorizing new capacity. In the NOPR, we estimated
that, in sum, on average a total of 10.6 licensees and exemptees may be
affected by the proposed rule annually.
26. Of the 10.6 total entities, only those that do not start
construction prior to the set deadline to commence construction (as may
be extended) will be negatively affected by the acceleration of annual
charges. Previously, the NOPR estimated that 5.2 licensees and/or
exemptees per year may be negatively affected by the changes
contemplated in the NOPR for failing to start construction within two
years. However, based on the modifications reflected in the final
rule,\39\ we estimate that zero licensees and/or exemptees will be
negatively affected by failing to start construction by the set
deadline, as may be extended by the Commission.\40\ Moreover, small
entities that would otherwise start construction before the date by
which they are required to commence construction of an unconstructed
project or new capacity will benefit from the final rule as it delays
the commencement of assessment of annual charges until the established
deadline to start construction.
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\39\ See supra paragraphs 18-19.
\40\ Conceivably, a licensee or exemptee that has received an
extension of the start-of-construction deadline might be responsible
for paying annual charges that began to accrue four years after the
issuance date of the license or exemption, but prior to termination
of the license, or revocation of the exemption, for failure to
commence construction. However, this would be rare.
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27. Accordingly, pursuant to section 605(b) of the RFA, the Commission
certifies that this final rule will not have a significant economic
impact on a substantial number of small entities.
D. Document Availability
28. 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 print the contents of this document via the
Internet through the Commission's Home Page (https://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE., Room
2A, Washington, DC 20426.
29. 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
downloading. To access this document in eLibrary, type the docket
number excluding the last three digits of this document in the docket
number field.
30. User assistance is available for eLibrary and the Commission's Web
site during normal business hours from the Commission's Online Support
at (202) 502-6652 (toll free at 1-866-208-3676) or email at
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
public.referenceroom@ferc.gov.
[[Page 63671]]
E. Effective Date and Congressional Notification
31. This regulation is effective December 21, 2015. The Commission has
determined, with 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 Fairness Act of 1996.\41\ This rule is being
submitted to the Senate, House, and Government Accountability Office.
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\41\ 5 U.S.C. 804(2) (2012).
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List of Subjects in 18 CFR Part 11
Electric power, Reporting and recordkeeping requirements.
By the Commission.
Issued: October 15, 2015.
Kimberly D. Bose,
Secretary.
In consideration of the foregoing, the Commission amends part 11,
chapter I, title 18, Code of Federal Regulations, as follows:
PART 11--ANNUAL CHARGES UNDER PART I OF THE FEDERAL POWER ACT
0
1. The authority citation for part 11 continues to read as follows:
Authority: 16 U.S.C. 792-828c; 42 U.S.C. 7101-7352.
0
2. Revise Sec. 11.1(c)(5) to read as follows:
Sec. 11.1 Costs of administration.
* * * * *
(c) * * *
(5) For unconstructed projects, the assessments begin on the date
by which the licensee or exemptee is required to commence project
construction, or as that deadline may be extended, but in no case
longer than four years after the issuance date of the license or
exemption. For constructed projects, the assessments begin on the
effective date of the license or exemption, except for any new capacity
authorized therein. The assessments for new authorized capacity at
licensed or exempted projects begin on the date by which the licensee
or exemptee is required to commence construction of the new capacity.
In the event that assessments begin during a fiscal year, the charges
will be prorated.
* * * * *
[FR Doc. 2015-26726 Filed 10-20-15; 8:45 am]
BILLING CODE 6717-01-P
