Removing Profile Drawing Requirement for Qualifying Conduit Notices of Intent and Revising Filing Requirements for Major Hydroelectric Projects 10 MW or Less, 42710-42715 [2021-15511]

Download as PDF khammond on DSKJM1Z7X2PROD with RULES 42710 Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations Elkin, NC, KZEF, NDB–A, Orig, CANCELLED Kindred, ND, K74, RNAV (GPS) RWY 11, Amdt 1E Kindred, ND, K74, RNAV (GPS) RWY 29, Amdt 1E Watford City, ND, Watford City Muni, Takeoff Minimums and Obstacle DP, Amdt 2 Burwell, NE, KBUB, RNAV (GPS) RWY 33, Orig-B Lincoln, NE, KLNK, ILS Y OR LOC Y RWY 18, Amdt 7C Lincoln, NE, KLNK, ILS Y OR LOC Y RWY 36, Amdt 11K Lincoln, NE, KLNK, VOR Y RWY 18, Amdt 13B Dayton, OH, KDAY, ILS OR LOC RWY 24R, Amdt 10B Hamilton, OH, KHAO, ILS OR LOC RWY 29, Amdt 2A Waverly, OH, KEOP, RNAV (GPS) RWY 7, Amdt 1B Waverly, OH, KEOP, RNAV (GPS) RWY 25, Amdt 1B Corvallis, OR, KCVO, RNAV (GPS) RWY 17, Amdt 1B Corvallis, OR, KCVO, RNAV (GPS) RWY 35, Amdt 3A La Grande, OR, KLGD, NDB–B, Amdt 2 La Grande, OR, La Grande/Union County, Takeoff Minimums and Obstacle DP, Amdt 4 Conway, SC, KHYW, NDB RWY 4, Orig-D Huron, SD, Huron Rgnl, Takeoff Minimums and Obstacle DP, Amdt 5A Clarksville, TN, KCKV, RNAV (GPS) RWY 17, Amdt 1B Dyersburg, TN, Dyersburg Rgnl, Takeoff Minimums and Obstacle DP, Amdt 1A Dyersburg, TN, KDYR, VOR–A, Amdt 18B, CANCELLED Memphis, TN, KMEM, RNAV (GPS) Z RWY 18C, Amdt 2C Memphis, TN, KMEM, RNAV (GPS) Z RWY 18L, Amdt 2E Memphis, TN, KMEM, RNAV (GPS) Z RWY 18R, Amdt 2G Comanche, TX, KMKN, RNAV (GPS) RWY 35, Orig-B Houston, TX, KHOU, RNAV (GPS) RWY 17, Amdt 1B, CANCELLED Houston, TX, KHOU, RNAV (GPS) RWY 35, Amdt 1C, CANCELLED Houston, TX, William P Hobby, Takeoff Minimums and Obstacle DP, Amdt 7A Midland, TX, KMAF, RADAR 1, Amdt 7A, CANCELLED Van Horn, TX, KVHN, RNAV (GPS) RWY 21, Orig-B Martinsville, VA, KMTV, RNAV (GPS) RWY 13, Amdt 2A Highgate, VT, KFSO, RNAV (GPS) RWY 19, Amdt 2 Land O’ Lakes, WI, Kings Land O’ Lakes, Takeoff Minimums and Obstacle DP, Amdt 5 Wheeling, WV, KHLG, ILS OR LOC RWY 3, Amdt 23A DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 4 and 5 [Docket No. RM20–21–000; Order No. 877] Removing Profile Drawing Requirement for Qualifying Conduit Notices of Intent and Revising Filing Requirements for Major Hydroelectric Projects 10 MW or Less Federal Energy Regulatory Commission, Department of Energy. ACTION: Final rule. AGENCY: [FR Doc. 2021–16584 Filed 8–4–21; 8:45 am] In this final rule, the Federal Energy Regulatory Commission (Commission) is amending its regulations governing the filing requirements for qualifying conduits and certain major hydroelectric power projects. Specifically, the Commission is removing the requirement that a notice of intent to construct a qualifying conduit include a profile drawing showing the source of the hydroelectric potential in instances where a dam would be constructed in association with the facility and extending the licensing requirements that currently apply to major projects up to 5 megawatts (MW) to major projects 10 MW or less, consistent with the amended definition of a small hydroelectric power project in the Hydropower Regulatory Efficiency Act of 2013. DATES: This rule is effective October 4, 2021. FOR FURTHER INFORMATION CONTACT: Heather Campbell (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502–6182, heather.e.campbell@ferc.gov. Kelly Houff (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502–6393, kelly.houff@ferc.gov. John Matkowski (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502–8576, john.matkowski@ferc.gov. Rachael Warden (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502–8717, rachael.warden@ ferc.gov. BILLING CODE 4910–13–P SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 16:02 Aug 04, 2021 Jkt 253001 SUMMARY: PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 I. Background 1. By this final rule, the Federal Energy Regulatory Commission (Commission or FERC) is amending parts 4 and 5 of its regulations governing the filing requirements for qualifying conduits and certain major hydroelectric power projects. The Commission, under Part I of the Federal Power Act (FPA), licenses hydropower projects that are developed by nonFederal entities including individuals, private entities, states, municipalities, electric cooperatives, and others. 2. The Hydropower Regulatory Efficiency Act of 2013 (2013 HREA) 1 was signed into law on August 9, 2013. As explained below, changes implemented in response to the 2013 HREA form the basis for these revisions to the Commission’s regulations. II. Notice of Proposed Rulemaking 3. On February 18, 2021, the Commission issued a notice of proposed rulemaking (NOPR) proposing to: (1) Remove the requirement that a notice of intent to construct a qualifying conduit include a profile drawing showing the source of the hydroelectric potential in instances where a dam would be constructed in association with the facility; and (2) extend the licensing requirements that currently apply to major projects up to 5 megawatts (MW) to major projects 10 MW or less, consistent with the amended definition of a small hydroelectric power project in the 2013 HREA.2 The Commission did not receive any comments in response to the NOPR. The proposal set forth in the NOPR and the Commission’s determination are discussed below. III. Discussion A. Qualifying Conduits 4. The NOPR explained that the 2013 HREA amended section 30 of the FPA to create a subset of small conduit facilities that are categorically excluded from the licensing and exemption requirements of the FPA. In 2014, the Commission issued Order No. 800, which became effective February 23, 2015, defining a ‘‘qualifying conduit hydropower facility’’ at § 4.30(b)(26) of its regulations.3 Subsequently, section 30 of the FPA was amended by the 1 Public Law 113–23, 127 Stat. 493 (2013). Profile Drawing Requirement for Qualifying Conduit Notices of Intent and Revising Filing Requirements for Major Hydroelectric Projects 10 MW or Less, 86 FR 13506 (Mar. 9, 2021), 174 FERC ¶ 61,105 (2021). 3 See Revisions and Technical Corrections to Conform the Commission’s Regulations to the Hydropower Regulatory Efficiency Act of 2013, Order No. 800, 79 FR 59105 (Oct. 1, 2014), 148 FERC ¶ 61,197 (2014). 2 Removing E:\FR\FM\05AUR1.SGM 05AUR1 Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations America’s Water Infrastructure Act of 2018.4 5. In accordance with section 30(a)(2)(A),5 any person, State, or municipality proposing to construct a ‘‘qualifying conduit hydropower facility’’ must file a notice of intent demonstrating the facility meets the following ‘‘qualifying criteria’’: 6 • Be located on and use only the hydroelectric potential of a nonfederally owned conduit; • have a proposed installed capacity that does not exceed 40 MW; 7 and • be proposed for construction and, as of the date of enactment of the 2013 HREA, not be licensed under, or exempted from, the licensing requirements of Part I of the FPA. 6. Under the 2013 HREA, as amended,8 the Commission is required to determine whether proposed projects meet the criteria to be considered qualifying conduit hydropower facilities. Qualifying conduit hydropower facilities are not required to be licensed or exempted by the Commission; however, the entity proposing to construct a facility that meets the criteria must file a Notice of Intent to Construct a Qualifying Conduit Hydropower Facility (NOI) with the Commission that demonstrates the facility meets the qualifying criteria discussed above. 7. The NOI must contain: An introductory statement; a statement that the proposed project will use the hydroelectric potential of a nonfederally owned conduit; a statement that the proposed facility has not been licensed or exempted on or before August 9, 2013; a description of the facility proposal; project drawings; the preliminary permit project number of the proposed facility, if applicable; and verification in a sworn notarized statement or an unsworn statement.9 Specifically with respect to the project drawings, the NOI must include a plan (or overhead view); a location map showing the facilities and their relationship to the nearest town; and if a dam would be constructed in association with the facility, a profile drawing showing that the conduit, and 4 Public Law 115–270, 132 Stat. 3765 (2018). U.S.C. 823a(a)(2)(A). 6 Id. 823a(a)(3)(C). The qualifying conduit hydropower facility must also meet the requirements for a small conduit facility as defined in section 30(a)(3)(A) of the FPA. Id. 823a(a)(3)(A). 7 The 2013 HREA required that qualifying conduit hydropower facilities not exceed 5 MW. This limit was revised to 40 MW at section 3002(2) in the America’s Water Infrastructure Act of 2018 (codified at 16 U.S.C. 823a(a)(3)(C)(ii)). 8 Public Law 115–270, 132 Stat. 3765. 9 18 CFR 4.401. khammond on DSKJM1Z7X2PROD with RULES 5 16 VerDate Sep<11>2014 16:02 Aug 04, 2021 Jkt 253001 not the dam, creates the hydroelectric potential.10 8. On June 18, 2015, in Soldier Canyon Filter Plant,11 the Commission stated: In determining whether a proposed qualifying conduit hydropower facility meets the requirement of FPA section 30(a) that it use ‘‘only the hydroelectric potential of a non-federally owned conduit’’ and (if it meets the other section 30(a) requirements) is thus excluded from the licensing requirements of the FPA, we see no reason to apply a different, more stringent standard than was established in 1980 for small conduit facility exemptions. We view small conduit facilities and qualifying conduits as simply generating hydroelectricity by using the water within a conduit operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity. Whether, or in what proportion, the conduit’s ability to generate hydropower is due to the conduit’s gradient or the head from an upstream dam is not relevant.12 This holding indicates that the profile drawings are no longer relevant and should not be required as part of the NOI submittal. Consequently, the Commission proposed to amend its regulations to remove this requirement. B. Major Projects Greater Than 5 MW and up to and Including 10 MW 9. Section 405 of the Public Utility Regulatory Policies Act of 1978 (PURPA) 13 provided that certain hydropower projects that produce 5,000 kilowatts, or 5 MW, or less of power were exempted from the licensing requirements of Part 1 of the FPA. 10. In 1981, the Commission adopted the 5–MW demarcation for certain major hydroelectric projects required to be licensed under Part 1 of the FPA to parallel PURPA’s 5–MW demarcation regarding exemptions.14 Part 4 of the Commission’s regulations includes three relevant licensing subparts: (1) Subpart E—Application for License for Major 10 Id. § 4.401(f). 11 151 FERC ¶ 61,228 (2015). 12 Id. P 13. 13 16 U.S.C. 2705. 14 Regulations Governing Applications for License for Major Unconstructed Projects and Major Modified Projects; Applications for License for Transmission Line Only and Applications for Amendment to License, Order No. 184, 46 FR 55926 (Nov. 13, 1981), FERC Stats. & Regs. ¶ 30,308 (1981) (cross-referenced at 17 FERC ¶ 61,122); Regulations Governing Applications for License for Minor Water Power Projects and Major Water Power Projects 5 Megawatts or Less, Order No. 185, 46 FR 55944 (Nov. 13, 1981), FERC Stats. & Regs. ¶ 30,309 (1981) (cross-referenced at 17 FERC ¶ 61,121). PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 42711 Unconstructed Project and Major Modified Project (see 18 CFR 4.40); (2) Subpart F—Application for License for Major Project—Existing Dam (see 18 CFR 4.50); and (3) Subpart G— Application for License for Minor Water Power Projects and Major Water Power Projects 5 MW or Less (see 18 CFR 4.60; 4.61).15 Subparts E and F apply to projects greater than 5 MW, and include additional filing requirements beyond subpart G, which applies to projects less than or equal to 5 MW. 11. Likewise, part 4 of Commission’s regulations include two subparts that rely on the same 5–MW limit to determine minimum filing requirements for an application for license solely for transmission lines that transmit power from a licensed water power projects as well amendments to licensed water power projects: (1) Subpart H— Application for License for Transmission Line Only (see 18 CFR 4.71); and (2) Subpart L—Application for Amendment of License (see 18 CFR 4.201), respectively. 12. Part 5 of the Commission’s regulations rely on the 5–MW limit to determine minimum filing requirements for applications for license for water power projects filed and processed using the integrated licensing process (see 18 CFR 5.18). 13. The 2013 HREA amended section 405 to increase the limit for exemptions to 10,000 kilowatts, or 10 MW, with the goal of facilitating the speed at which such hydropower projects could be built. Order 800 amended the Commission’s regulations to reflect the 10–MW limit.16 14. As a result of these changes, the Commission’s limit for license application provisions no longer parallels the limit for exemptions. We stated in the NOPR that we continue to believe that a parallel demarcation is appropriate to ‘‘expedite hydropower development by easing the burden of preparing an application for license and by assisting the Commission in more rapid processing of applications.’’ 17 15 The Commission has maintained a distinction between major and minor projects based on section 10(i) of the FPA. However, the license application procedures set forth in § 4.61 of the Commission’s regulations apply to both minor projects and major projects less than 5 MW (with the exception of Exhibit E for unconstructed projects). These revisions do not affect minor projects. 16 See Revisions and Technical Corrections to Conform the Commission’s Regulations to the Hydropower Regulatory Efficiency Act of 2013, Order No. 800, 148 FERC ¶ 61,197 (2014). 17 Applications for License for Minor Water Power Projects and Major Water Power Projects 5 Megawatts or Less, 46 FR 9637 (Jan. 29, 1981), FERC Stats. & Regs. ¶ 32,106 (1981) (cross-referenced at 14 FERC ¶ 61,042). E:\FR\FM\05AUR1.SGM 05AUR1 42712 Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations Moreover, the 5–MW limit in the Commission’s regulations could be burdensome to projects greater than 5 MW and up to and including 10 MW, in terms of the cost and time associated with the additional filing requirements of subparts E and F. 15. Therefore, the Commission proposed to amend parts 4 and 5 of its regulations to extend the licensing and amendment filing requirements that currently apply to major projects up to 5 MW to major projects 10 MW or less, consistent with the amended definition of a small hydroelectric power project in the 2013 HREA.18 C. Commission Determination 16. For the reasons discussed above, the Commission adopts the NOPR’s proposal to: (1) Remove the requirement that an NOI include a profile drawing showing the source of the hydroelectric potential in instances where a dam would be constructed in association with the facility; and (2) extend the licensing requirements that currently apply to major projects up to 5 MW to major projects 10 MW or less. IV. Regulatory Requirements A. Information Collection Statement 17. The Paperwork Reduction Act 19 requires each Federal agency to seek and obtain the Office of Management and Budget’s (OMB) approval before undertaking a collection of information directed to 10 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.20 Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number. 18. Public Reporting Burden: By revising regulations governing the filing requirements for qualifying conduits and for major hydroelectric power projects greater than 5 MW and up to and including 10 MW, this final rule will modify certain reporting and recordkeeping requirements included in FERC–500 (OMB Control No 1902– 0058) 21 and FERC–505 (OMB Control No. 1902–0115).22 19. These revisions to the Commission’s regulations will align the filing requirements for qualifying conduits with Commission precedent and align the filing requirements for major projects greater than 5 MW and up to and including 10 MW to be consistent with the amended definition of a small hydroelectric power project in the 2013 HREA. Both revisions represent a slight decrease in the reporting requirements and burden information for FERC–500 and FERC– 505. 20. The estimated burden and cost for the requirements affected by this final rule follow. khammond on DSKJM1Z7X2PROD with RULES CHANGES DUE TO THE FINAL RULE IN DOCKET NO. RM20–21–000 Numbers of respondents Numbers of responses 23 per respondent Total number of responses Avg. burden hrs. & cost per response 24 Total annual burden hours & total annual cost (1) (2) (1) × (2) = (3) (4) (3) × (4) = 5 FERC–500 ........................................................... 3 1 3 FERC–505 ........................................................... 8 1 8 Total ............................................................. ........................ ........................ 11 320 hours/$26,560 reduction. 10 hours/$830 reduction. 960 hours/$79,680 reduction. 80 hours/$6,640 reduction. ................................ 1,040 hours/ $86,320 reduction. 21. Titles: FERC–500 (Application for License/Relicense for Water Projects with More than 5 Megawatt (MW) Capacity) and FERC–505 (Small Hydropower Projects and Conduit Facilities including License/Relicense, Exemption, and Qualifying Conduit Facility Determination). 22. Action: Revisions to information collections FERC–500 and FERC–505. 23. OMB Control Nos.: 1902–0058 (FERC–500) and 1902–0115 (FERC– 505). 24. Respondents: Municipalities, businesses, private citizens, and forprofit and not-for-profit institutions. 25. Frequency of Information: Ongoing. 26. Necessity of Information: The revised regulations remove the Commission’s requirement for notices of intent to construct a qualifying conduit to include a profile drawing, consistent with Commission precedent, and align the Commission’s filing requirements for major projects greater than 5 MW and up to and including 10 MW to be consistent with the amended definition of a small hydroelectric power project in the 2013 HREA. The revised regulations affect only the number of entities that would file applications with the Commission for these two project types and reduce information collection requirements. 27. Internal Review: The Commission has reviewed the revisions and has determined that they are necessary. These requirements conform to the Commission’s need for efficient information collection, communication, and management within the energy industry. The Commission has assured 18 Section 4.32(a)(5)(ii), which contains a crossreference to § 4.61, will also be revised. 19 44 U.S.C. 3501–3521. 20 See 5 CFR 1320.12. 21 FERC–500 includes the reporting and recordkeeping requirements for ‘‘Application for License/Relicense for Water Projects with More than 5 Megawatt (MW) Capacity.’’ 22 FERC–505 includes the reporting and recordkeeping requirements for ‘‘Small Hydropower Projects and Conduit Facilities including License/ Relicense, Exemption, and Qualifying Conduit Facility Determination.’’ 23 We consider the filing of an application or notice of intent to be a ‘‘response.’’ 24 Commission staff estimates that the industry’s skill set and cost (for wages and benefits) for FERC– 500 and FERC–505 are approximately the same as the Commission’s average cost. The FERC 2020 average salary plus benefits for one FERC full-time equivalent (FTE) is $172,329/year (or $83.00/hour). VerDate Sep<11>2014 16:02 Aug 04, 2021 Jkt 253001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\05AUR1.SGM 05AUR1 Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information collection requirements. 28. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission at one of the following methods: • USPS at: Federal Energy Regulatory Commission, Ellen Brown, Office of the Executive Director, 888 First Street NE, Washington, DC 20426. • Hard copy communication other than USPS: Federal Energy Regulatory Commission, Ellen Brown, Office of the Executive Director, 12225 Wilkins Avenue, Rockville, Maryland 20852. • email to: DataClearance@ferc.gov. • phone: (202) 502–8663, or by fax: (202) 273–0873. 29. Please send comments concerning the collection of information and the associated burden estimates to: Office of Information and Regulatory Affairs, Office of Management and Budget [Attention: Federal Energy Regulatory Commission Desk Officer]. Due to security concerns, comments should be sent directly to www.reginfo.gov/public/ do/PRAMain. Comments submitted to OMB should be sent within 30 days of publication of this notification in the Federal Register and should refer to FERC–500 (OMB Control No 1902– 0058) and FERC–505 (OMB Control No. 1902–0115). khammond on DSKJM1Z7X2PROD with RULES B. Environmental Analysis 30. The Commission is required to prepare an Environmental Assessment or an Environmental Impact statement for any action that may have a significant effect on the human environment.25 Excluded from this requirement are rules that are clarifying, corrective, or procedural, or that do not substantially change the effect of legislation or the regulations being amended.26 This final rule revises the filing requirements for qualifying conduit projects and the filing requirements for license applications for major hydroelectric projects with an installed capacity of 10 MW or less. Because this final rule is procedural and does not substantially change the effect of the regulations being amended, preparation of an Environmental Assessment or Environmental Impact Statement is not required. 25 Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987) (cross-referenced at 41 FERC ¶ 61,284). 26 18 CFR 380.4(a)(2)(ii). VerDate Sep<11>2014 16:02 Aug 04, 2021 Jkt 253001 C. Regulatory Flexibility Act 31. The Regulatory Flexibility Act of 1980 (RFA) 27 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The RFA mandates consideration of regulatory alternatives that accomplish the stated objectives of a rulemaking and minimize any significant economic impact on a substantial number of small entities.28 In lieu of preparing a regulatory flexibility analysis, an agency may certify that a final rule will not have a significant economic impact on a substantial number of small entities.29 32. The Small Business Administration’s (SBA) Office of Size Standards develops the numerical definition of a small business.30 The SBA size standard for electric utilities is based on the number of employees, including affiliates.31 Under SBA’s current size standards, a hydroelectric power generator (NAICS code 221111) 32 is small if, including its affiliates, it employs 500 or fewer people.33 The Commission, however, currently does not require information regarding the number of individuals employed by hydroelectric generators to administer Part 1 of the Federal Power Act and therefore is unable to estimate the number of small entities under the SBA definition. Regardless, the Commission anticipates that this final rule will affect few entities. 33. As noted earlier, the final rule will only affect entities filing notices of intent to construct a qualifying conduit in instances where a dam would be constructed in association with the facility and entities filing licensing or amendment applications for major hydroelectric projects with an installed capacity of greater than 5 MW and up to and including 10 MW. From 2013 to 2020, the Commission received approximately 140 total notices to construct qualifying conduits and 18 applicable licensing applications. The revisions will eliminate the filing requirement for profile drawings and reduce the filing requirements for major 27 5 U.S.C. 601–612. 603(c). 29 Id. 605(b). 30 13 CFR 121.101. 31 Id. § 121.201. 32 The North American Industry Classification System (NAICS) is an industry classification system that Federal statistical agencies use to categorize businesses for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. economy. United States Census Bureau, North American Industry Classification System, https:// www.census.gov/eos/www/naics/. 33 13 CFR 121.201 (Sector 22—Utilities). 28 Id. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 42713 hydroelectric projects with an installed capacity greater than 5 MW and up to and including 10 MW, thus reducing the burden on small hydro developers going forward. 34. Accordingly, pursuant to section 605(b) of the RFA, the Commission certifies that this final rule would not have a significant economic impact on a substantial number of small entities. D. Document Availability 35. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission’s Home Page (http:// www.ferc.gov). At this time, the Commission has suspended access to the Commission’s Public Reference Room due to the March 13, 2020 proclamation declaring a National Emergency concerning the Novel Coronavirus Disease (COVID–19). 36. From the Commission’s Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 37. User assistance is available for eLibrary and the Commission’s website 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. E. Effective Date and Congressional Notification 38. These regulations are effective October 4, 2021. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a ‘‘major rule’’ as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule is being submitted to the Senate, House, Government Accountability Office, and Small Business Administration. List of Subjects in 18 CFR Parts 4 and 5 Administrative practice and procedure, Electric power, Reporting and recordkeeping requirements. By direction of the Commission. E:\FR\FM\05AUR1.SGM 05AUR1 42714 Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations Issued: July 15, 2021. Debbie-Anne A. Reese, Deputy Secretary. In consideration of the foregoing, the Commission amends parts 4 and 5, chapter I, title 18, Code of Federal Regulations, as follows: Subpart G—Application for License for Minor Water Power Projects and Major Water Power Projects 10 Megawatts or Less PART 4—LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT COSTS ■ 1. The authority citation for part 4 continues to read as follows: § 4.60 ■ Authority: 16 U.S.C. 791a–825r; 42 U.S.C. 7101–7352. 2. In § 4.32, revise paragraph (a)(5)(ii) to read as follows: ■ § 4.32 Acceptance for filing or rejection; information to be made available to the public; requests for additional studies. (a) * * * (5) * * * (ii) License for a minor water power project and a major water power project 10 MW or less: § 4.61; * * * * * ■ 3. In § 4.40, revise paragraph (a) to read as follows: § 4.40 Applicability. (a) Applicability. The provisions of this subpart apply to any application for an initial license for a major unconstructed project that would have a total installed capacity of more than 10 megawatts, and any application for an initial or new license for a major modified project with a total installed capacity more than 10 megawatts. An applicant for license for any major unconstructed or major modified water power project that would have a total installed generating capacity of 10 megawatts or less must submit application under subpart G of this part (§§ 4.60 and 4.61). * * * * * ■ 4. In § 4.50, revise paragraphs (a)(1) and (3) to read as follows: § 4.50 khammond on DSKJM1Z7X2PROD with RULES application under subpart G of this part (§§ 4.60 and 4.61). * * * * * ■ 5. Revise the heading to subpart G to read as follows: Applicability. (a) * * * (1) Except as provided in paragraph (a)(2) of this section, the provisions of this subpart apply to any application for either an initial license or new license for a major project—existing dam that is proposed to have a total installed capacity of more than 10 megawatts. * * * * * (3) An applicant for license for any major project—existing dam that would have a total installed capacity of 10 megawatts or less must submit VerDate Sep<11>2014 16:02 Aug 04, 2021 Jkt 253001 6. In § 4.60, revise paragraphs (a)(2) and (3) and (b) to read as follows: Applicability and notice to agencies. (a) * * * (2) Any major project—existing dam, as defined in § 4.30(b)(16), that has a total installed capacity of 10 MW or less; or (3) Any major unconstructed project or major modified project, as defined in § 4.30(b)(15) and (14) respectively, that has a total installed capacity of 10 MW or less. (b) Notice to agencies. The Commission will supply interested Federal, state, and local agencies with notice of any application for license for a water power project 10 MW or less and request comment on the application. Copies of the application will be available for inspection at the Commission’s Public Reference Room. The applicant shall also furnish copies of the filed application to any Federal, state, or local agency that so requests. * * * * * ■ 7. In § 4.61, revise paragraphs (a)(3), (b) introductory text, (d)(1) introductory text, and (d)(2) introductory text to read as follows: § 4.61 Contents of application. (a) * * * (3) Each application for a license for a water power project 10 megawatts or less must include the information requested in the initial statement and lettered exhibits described by paragraphs (b) through (f) of this section, and must be provided in the form specified. The Commission reserves the right to require additional information, or another filing procedure, if data provided indicate such action to be appropriate. (b) * * * Before the Federal Energy Regulatory Commission Application for License for a [Minor Water Power Project, or Major Water Power Project, 10 Megawatts or Less, as Appropriate] * * * * * (d) * * * (1) For major unconstructed and major modified projects 10 MW or less. PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 Any application must contain an Exhibit E conforming with the data and consultation requirements of § 4.41(f), if the application is for license for a water power project which has or is proposed to have a total installed generating capacity greater than 1.5 MW but not greater than 10 MW, and which: * * * * * (2) For minor projects and major projects at existing dams 10 MW or less. An application for license for either a minor water power project with a total proposed installed generating capacity of 1.5 MW or less or a major project— existing dam with a proposed total installed capacity of 10 MW or less must contain an Exhibit E under this paragraph (d)(2). See § 4.38 for consultation requirements. The Environmental Report must contain the following information: * * * * * ■ 8. In § 4.71, revise paragraphs (b)(1) and (2) to read as follows: § 4.71 Contents of application. * * * * * (b) * * * (1) For any transmission line that, at the time the application is filed, is not constructed and is proposed to be connected to a licensed water power project with an installed generating capacity of more than 10 MW—Exhibits A, B, C, D, E, F, and G under § 4.41; (2) For any transmission line that, at the time the application is filed, is not constructed and is proposed to be connected to a licensed water power project with an installed generating capacity of 10 MW or less—Exhibits E, F, and G under § 4.61; and * * * * * ■ 9. In § 4.201, revise paragraphs (b)(1) and (3) through (5) to read as follows: § 4.201 Contents of application. * * * * * (b) * * * (1) For amendment of a license for a water power project that, at the time the application is filed, is not constructed and is proposed to have a total installed generating capacity of more than 10 MW—Exhibits A, B, C, D, E, F, and G under § 4.41; * * * * * (3) For amendment of a license for a water power project that, at the time the application is filed, is not constructed and is proposed to have a total installed generating capacity of 10 MW or less, but more than 1.5 MW—Exhibits F and G under § 4.61, and Exhibit E under § 4.41; (4) For amendment of a license for a water power project that, at the time the E:\FR\FM\05AUR1.SGM 05AUR1 Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations application for amendment is filed, has been constructed, and is proposed to have a total installed generating capacity of 10 MW or less—Exhibit E, F, and G under § 4.61; and (5) For amendment of a license for a water power project that, at the time the application is filed, has been constructed and is proposed to have a total installed generating capacity of more than 10 MW—Exhibits A, B, C, D, E, F, and G under § 4.51. * * * * * § 4.401 ■ [Amended] 10. In § 4.401, remove paragraph (f)(3). PART 5—INTEGRATED LICENSE APPLICATION PROCESS 11. The authority citation for part 5 continues to read as follows: Authority: 16 U.S.C. 792–828c, 2601–2645; 42 U.S.C. 7101–7352. 12. In § 5.18, revise paragraph (a)(5)(i) to read as follows: ■ Application content. (a) * * * (5) * * * (i) License for a minor water power project and a major water power project 10 MW or less: § 4.61 of this chapter (General instructions, initial statement, and Exhibits A, F, and G); * * * * * [FR Doc. 2021–15511 Filed 8–4–21; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9889] RIN 1545–BO4 Investing in Qualified Opportunity Funds; Correction Internal Revenue Service (IRS), Treasury. ACTION: Final regulations; correction. AGENCY: This document contains corrections to Treasury Decision 9889, which was published in the Federal Register on Monday, January 13, 2020. Treasury Decision 9889 contained final regulations under the Internal Revenue Code (Code) that govern the extent to which taxpayers may elect the Federal income tax benefits with respect to certain equity interests in a qualified opportunity fund (QOF). khammond on DSKJM1Z7X2PROD with RULES SUMMARY: VerDate Sep<11>2014 16:02 Aug 04, 2021 Jkt 253001 Background The final regulations (TD 9889) that are the subject of this correction are under section 1400Z–2 of the Code. Need for Correction As published on January 13, 2020 (85 FR 1866) the final regulations (TD 9889) contain errors that need to be corrected. ■ § 5.18 These corrections are effective on August 5, 2021 and applicable on or after January 13, 2020. FOR FURTHER INFORMATION CONTACT: Concerning section 1400Z–2 and these regulations generally, Harith J. Razaa, (202) 317–7006, or Kyle C. Griffin, (202) 317–4718, of the Office of Associate Chief Counsel (Income Tax and Accounting). These numbers are not toll-free numbers. SUPPLEMENTARY INFORMATION: DATES: Correction of Publication Accordingly, the final regulations (TD 9889) that are the subject of FR Doc. 2019–27846, appearing on page 1866 in the Federal Register of January 13, 2020, are corrected as follows: 1. On page 1897, second and third columns, removing the fourth through the sixth sentences of the last paragraph. 2. On page 1923, first column, the first full paragraph is corrected to read: ‘‘As set forth in the final regulations, the 62month working capital safe harbor provides that, during the maximum 62month covered period, (1) NQFP in excess of the five-percent NQFP limitation will not cause a trade or business to fail to qualify as a qualified opportunity zone business, and (2) gross income earned from the trade or business will be counted towards satisfying the 50-percent gross income requirement (each of clauses (1) and (2) function in a manner similar to the 31month working capital safe harbor). In addition, the regulations provide additional flexibility for entities utilizing the working capital safe harbor. First, for start-up entities, the 62-month working capital safe harbor provides that, during the maximum 62-month covered period, if property of an entity that would otherwise be NQFP is treated as being a reasonable amount of working capital under the safe harbor, the entity satisfies the requirements of section 1400Z–2(d)(3)(A)(i) only during the working capital safe harbor period(s) with regard to such property. However, the final regulations make clear that such property is not and will never be qualified opportunity zone business property for any purpose. Second, for any eligible entity utilizing the working capital safe harbor, if tangible property is expected to be qualified opportunity PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 42715 zone business property pursuant to the written plan, such tangible property is treated as qualified opportunity zone business during the working capital safe harbor test for purposes of section 1400Z–2(d)(3). Under the 62-month working capital safe harbor, intangible property purchased or licensed with working capital covered by the safe harbor, and pursuant to the plan submitted with respect to that safe harbor, will count towards the satisfaction of the 40-percent intangible property use test.’’ 3. On page 1926, third column, the second sentence of the first full paragraph, the language ‘‘In general, the final regulations permit a qualified opportunity zone business to treat tangible property for which working capital covered by the 31-month working capital safe harbor is expended as (i) used in the trade or business of the qualified opportunity zone business, and (ii) qualified opportunity zone business property throughout the period during which such working capital is covered by the safe harbor.’’ is corrected to read ‘‘In general, the 62-month working capital safe harbor under the final regulations provides that, during the maximum 62-month covered period, if property of a start-up entity that would otherwise be NQFP is treated as being a reasonable amount of working capital under the safe harbor, the startup entity satisfies the requirements of section 1400Z–2(d)(3)(A)(i) only during the working capital safe harbor period(s) with regard to such property. However, the final regulations make clear that such property is not qualified opportunity zone business property for any other purpose. See part V.N.3.c of this Summary of Comments and Explanation of Revisions describing the 62-month working capital safe harbor set forth in § 1.1400Z2(d)–1(d)(3)(vi).’’. 4. On page 1926, third column, the first through the sixth line from the bottom of the first full paragraph, the language ‘‘capital covered by the 31month working capital safe harbor are not, following the conclusion of the final safe harbor period, treated as tangible property for purposes of applying the 70-percent tangible property standard.’’ is corrected to read ‘‘capital covered by the 62-month working capital safe harbor are not, following the conclusion of the final safe harbor period, treated as qualified opportunity zone business property for purposes of applying the 70-percent tangible property standard. Because working capital is not tangible property, working capital covered by the 62month safe harbor cannot be treated as qualified opportunity zone business E:\FR\FM\05AUR1.SGM 05AUR1

Agencies

[Federal Register Volume 86, Number 148 (Thursday, August 5, 2021)]
[Rules and Regulations]
[Pages 42710-42715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15511]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 4 and 5

[Docket No. RM20-21-000; Order No. 877]


Removing Profile Drawing Requirement for Qualifying Conduit 
Notices of Intent and Revising Filing Requirements for Major 
Hydroelectric Projects 10 MW or Less

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Final rule.

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

SUMMARY: In this final rule, the Federal Energy Regulatory Commission 
(Commission) is amending its regulations governing the filing 
requirements for qualifying conduits and certain major hydroelectric 
power projects. Specifically, the Commission is removing the 
requirement that a notice of intent to construct a qualifying conduit 
include a profile drawing showing the source of the hydroelectric 
potential in instances where a dam would be constructed in association 
with the facility and extending the licensing requirements that 
currently apply to major projects up to 5 megawatts (MW) to major 
projects 10 MW or less, consistent with the amended definition of a 
small hydroelectric power project in the Hydropower Regulatory 
Efficiency Act of 2013.

DATES: This rule is effective October 4, 2021.

FOR FURTHER INFORMATION CONTACT: Heather Campbell (Technical 
Information), Office of Energy Projects, Federal Energy Regulatory 
Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6182, 
[email protected].
    Kelly Houff (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-6393, [email protected].
    John Matkowski (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8576, [email protected].
    Rachael Warden (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8717, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    1. By this final rule, the Federal Energy Regulatory Commission 
(Commission or FERC) is amending parts 4 and 5 of its regulations 
governing the filing requirements for qualifying conduits and certain 
major hydroelectric power projects. The Commission, under Part I of the 
Federal Power Act (FPA), licenses hydropower projects that are 
developed by non-Federal entities including individuals, private 
entities, states, municipalities, electric cooperatives, and others.
    2. The Hydropower Regulatory Efficiency Act of 2013 (2013 HREA) \1\ 
was signed into law on August 9, 2013. As explained below, changes 
implemented in response to the 2013 HREA form the basis for these 
revisions to the Commission's regulations.
---------------------------------------------------------------------------

    \1\ Public Law 113-23, 127 Stat. 493 (2013).
---------------------------------------------------------------------------

II. Notice of Proposed Rulemaking

    3. On February 18, 2021, the Commission issued a notice of proposed 
rulemaking (NOPR) proposing to: (1) Remove the requirement that a 
notice of intent to construct a qualifying conduit include a profile 
drawing showing the source of the hydroelectric potential in instances 
where a dam would be constructed in association with the facility; and 
(2) extend the licensing requirements that currently apply to major 
projects up to 5 megawatts (MW) to major projects 10 MW or less, 
consistent with the amended definition of a small hydroelectric power 
project in the 2013 HREA.\2\ The Commission did not receive any 
comments in response to the NOPR. The proposal set forth in the NOPR 
and the Commission's determination are discussed below.
---------------------------------------------------------------------------

    \2\ Removing Profile Drawing Requirement for Qualifying Conduit 
Notices of Intent and Revising Filing Requirements for Major 
Hydroelectric Projects 10 MW or Less, 86 FR 13506 (Mar. 9, 2021), 
174 FERC ] 61,105 (2021).
---------------------------------------------------------------------------

III. Discussion

A. Qualifying Conduits

    4. The NOPR explained that the 2013 HREA amended section 30 of the 
FPA to create a subset of small conduit facilities that are 
categorically excluded from the licensing and exemption requirements of 
the FPA. In 2014, the Commission issued Order No. 800, which became 
effective February 23, 2015, defining a ``qualifying conduit hydropower 
facility'' at Sec.  4.30(b)(26) of its regulations.\3\ Subsequently, 
section 30 of the FPA was amended by the

[[Page 42711]]

America's Water Infrastructure Act of 2018.\4\
---------------------------------------------------------------------------

    \3\ See Revisions and Technical Corrections to Conform the 
Commission's Regulations to the Hydropower Regulatory Efficiency Act 
of 2013, Order No. 800, 79 FR 59105 (Oct. 1, 2014), 148 FERC ] 
61,197 (2014).
    \4\ Public Law 115-270, 132 Stat. 3765 (2018).
---------------------------------------------------------------------------

    5. In accordance with section 30(a)(2)(A),\5\ any person, State, or 
municipality proposing to construct a ``qualifying conduit hydropower 
facility'' must file a notice of intent demonstrating the facility 
meets the following ``qualifying criteria'': \6\
---------------------------------------------------------------------------

    \5\ 16 U.S.C. 823a(a)(2)(A).
    \6\ Id. 823a(a)(3)(C). The qualifying conduit hydropower 
facility must also meet the requirements for a small conduit 
facility as defined in section 30(a)(3)(A) of the FPA. Id. 
823a(a)(3)(A).
---------------------------------------------------------------------------

     Be located on and use only the hydroelectric potential of 
a non-federally owned conduit;
     have a proposed installed capacity that does not exceed 40 
MW; \7\ and
---------------------------------------------------------------------------

    \7\ The 2013 HREA required that qualifying conduit hydropower 
facilities not exceed 5 MW. This limit was revised to 40 MW at 
section 3002(2) in the America's Water Infrastructure Act of 2018 
(codified at 16 U.S.C. 823a(a)(3)(C)(ii)).
---------------------------------------------------------------------------

     be proposed for construction and, as of the date of 
enactment of the 2013 HREA, not be licensed under, or exempted from, 
the licensing requirements of Part I of the FPA.
    6. Under the 2013 HREA, as amended,\8\ the Commission is required 
to determine whether proposed projects meet the criteria to be 
considered qualifying conduit hydropower facilities. Qualifying conduit 
hydropower facilities are not required to be licensed or exempted by 
the Commission; however, the entity proposing to construct a facility 
that meets the criteria must file a Notice of Intent to Construct a 
Qualifying Conduit Hydropower Facility (NOI) with the Commission that 
demonstrates the facility meets the qualifying criteria discussed 
above.
---------------------------------------------------------------------------

    \8\ Public Law 115-270, 132 Stat. 3765.
---------------------------------------------------------------------------

    7. The NOI must contain: An introductory statement; a statement 
that the proposed project will use the hydroelectric potential of a 
non-federally owned conduit; a statement that the proposed facility has 
not been licensed or exempted on or before August 9, 2013; a 
description of the facility proposal; project drawings; the preliminary 
permit project number of the proposed facility, if applicable; and 
verification in a sworn notarized statement or an unsworn statement.\9\ 
Specifically with respect to the project drawings, the NOI must include 
a plan (or overhead view); a location map showing the facilities and 
their relationship to the nearest town; and if a dam would be 
constructed in association with the facility, a profile drawing showing 
that the conduit, and not the dam, creates the hydroelectric 
potential.\10\
---------------------------------------------------------------------------

    \9\ 18 CFR 4.401.
    \10\ Id. Sec.  4.401(f).
---------------------------------------------------------------------------

    8. On June 18, 2015, in Soldier Canyon Filter Plant,\11\ the 
Commission stated:
---------------------------------------------------------------------------

    \11\ 151 FERC ] 61,228 (2015).
---------------------------------------------------------------------------

    In determining whether a proposed qualifying conduit hydropower 
facility meets the requirement of FPA section 30(a) that it use ``only 
the hydroelectric potential of a non-federally owned conduit'' and (if 
it meets the other section 30(a) requirements) is thus excluded from 
the licensing requirements of the FPA, we see no reason to apply a 
different, more stringent standard than was established in 1980 for 
small conduit facility exemptions. We view small conduit facilities and 
qualifying conduits as simply generating hydroelectricity by using the 
water within a conduit operated for the distribution of water for 
agricultural, municipal, or industrial consumption and not primarily 
for the generation of electricity. Whether, or in what proportion, the 
conduit's ability to generate hydropower is due to the conduit's 
gradient or the head from an upstream dam is not relevant.\12\
---------------------------------------------------------------------------

    \12\ Id. P 13.

This holding indicates that the profile drawings are no longer relevant 
and should not be required as part of the NOI submittal. Consequently, 
the Commission proposed to amend its regulations to remove this 
requirement.

B. Major Projects Greater Than 5 MW and up to and Including 10 MW

    9. Section 405 of the Public Utility Regulatory Policies Act of 
1978 (PURPA) \13\ provided that certain hydropower projects that 
produce 5,000 kilowatts, or 5 MW, or less of power were exempted from 
the licensing requirements of Part 1 of the FPA.
---------------------------------------------------------------------------

    \13\ 16 U.S.C. 2705.
---------------------------------------------------------------------------

    10. In 1981, the Commission adopted the 5-MW demarcation for 
certain major hydroelectric projects required to be licensed under Part 
1 of the FPA to parallel PURPA's 5-MW demarcation regarding 
exemptions.\14\ Part 4 of the Commission's regulations includes three 
relevant licensing subparts: (1) Subpart E--Application for License for 
Major Unconstructed Project and Major Modified Project (see 18 CFR 
4.40); (2) Subpart F--Application for License for Major Project--
Existing Dam (see 18 CFR 4.50); and (3) Subpart G--Application for 
License for Minor Water Power Projects and Major Water Power Projects 5 
MW or Less (see 18 CFR 4.60; 4.61).\15\ Subparts E and F apply to 
projects greater than 5 MW, and include additional filing requirements 
beyond subpart G, which applies to projects less than or equal to 5 MW.
---------------------------------------------------------------------------

    \14\ Regulations Governing Applications for License for Major 
Unconstructed Projects and Major Modified Projects; Applications for 
License for Transmission Line Only and Applications for Amendment to 
License, Order No. 184, 46 FR 55926 (Nov. 13, 1981), FERC Stats. & 
Regs. ] 30,308 (1981) (cross-referenced at 17 FERC ] 61,122); 
Regulations Governing Applications for License for Minor Water Power 
Projects and Major Water Power Projects 5 Megawatts or Less, Order 
No. 185, 46 FR 55944 (Nov. 13, 1981), FERC Stats. & Regs. ] 30,309 
(1981) (cross-referenced at 17 FERC ] 61,121).
    \15\ The Commission has maintained a distinction between major 
and minor projects based on section 10(i) of the FPA. However, the 
license application procedures set forth in Sec.  4.61 of the 
Commission's regulations apply to both minor projects and major 
projects less than 5 MW (with the exception of Exhibit E for 
unconstructed projects). These revisions do not affect minor 
projects.
---------------------------------------------------------------------------

    11. Likewise, part 4 of Commission's regulations include two 
subparts that rely on the same 5-MW limit to determine minimum filing 
requirements for an application for license solely for transmission 
lines that transmit power from a licensed water power projects as well 
amendments to licensed water power projects: (1) Subpart H--Application 
for License for Transmission Line Only (see 18 CFR 4.71); and (2) 
Subpart L--Application for Amendment of License (see 18 CFR 4.201), 
respectively.
    12. Part 5 of the Commission's regulations rely on the 5-MW limit 
to determine minimum filing requirements for applications for license 
for water power projects filed and processed using the integrated 
licensing process (see 18 CFR 5.18).
    13. The 2013 HREA amended section 405 to increase the limit for 
exemptions to 10,000 kilowatts, or 10 MW, with the goal of facilitating 
the speed at which such hydropower projects could be built. Order 800 
amended the Commission's regulations to reflect the 10-MW limit.\16\
---------------------------------------------------------------------------

    \16\ See Revisions and Technical Corrections to Conform the 
Commission's Regulations to the Hydropower Regulatory Efficiency Act 
of 2013, Order No. 800, 148 FERC ] 61,197 (2014).
---------------------------------------------------------------------------

    14. As a result of these changes, the Commission's limit for 
license application provisions no longer parallels the limit for 
exemptions. We stated in the NOPR that we continue to believe that a 
parallel demarcation is appropriate to ``expedite hydropower 
development by easing the burden of preparing an application for 
license and by assisting the Commission in more rapid processing of 
applications.'' \17\

[[Page 42712]]

Moreover, the 5-MW limit in the Commission's regulations could be 
burdensome to projects greater than 5 MW and up to and including 10 MW, 
in terms of the cost and time associated with the additional filing 
requirements of subparts E and F.
---------------------------------------------------------------------------

    \17\ Applications for License for Minor Water Power Projects and 
Major Water Power Projects 5 Megawatts or Less, 46 FR 9637 (Jan. 29, 
1981), FERC Stats. & Regs. ] 32,106 (1981) (cross-referenced at 14 
FERC ] 61,042).
---------------------------------------------------------------------------

    15. Therefore, the Commission proposed to amend parts 4 and 5 of 
its regulations to extend the licensing and amendment filing 
requirements that currently apply to major projects up to 5 MW to major 
projects 10 MW or less, consistent with the amended definition of a 
small hydroelectric power project in the 2013 HREA.\18\
---------------------------------------------------------------------------

    \18\ Section 4.32(a)(5)(ii), which contains a cross-reference to 
Sec.  4.61, will also be revised.
---------------------------------------------------------------------------

C. Commission Determination

    16. For the reasons discussed above, the Commission adopts the 
NOPR's proposal to: (1) Remove the requirement that an NOI include a 
profile drawing showing the source of the hydroelectric potential in 
instances where a dam would be constructed in association with the 
facility; and (2) extend the licensing requirements that currently 
apply to major projects up to 5 MW to major projects 10 MW or less.

IV. Regulatory Requirements

A. Information Collection Statement

    17. The Paperwork Reduction Act \19\ requires each Federal agency 
to seek and obtain the Office of Management and Budget's (OMB) approval 
before undertaking a collection of information directed to 10 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.\20\ Upon approval of a collection of information, OMB will 
assign an OMB control number and an expiration date. Respondents 
subject to the filing requirements of a rule will not be penalized for 
failing to respond to the collection of information unless the 
collection of information displays a valid OMB control number.
---------------------------------------------------------------------------

    \19\ 44 U.S.C. 3501-3521.
    \20\ See 5 CFR 1320.12.
---------------------------------------------------------------------------

    18. Public Reporting Burden: By revising regulations governing the 
filing requirements for qualifying conduits and for major hydroelectric 
power projects greater than 5 MW and up to and including 10 MW, this 
final rule will modify certain reporting and recordkeeping requirements 
included in FERC-500 (OMB Control No 1902-0058) \21\ and FERC-505 (OMB 
Control No. 1902-0115).\22\
---------------------------------------------------------------------------

    \21\ FERC-500 includes the reporting and recordkeeping 
requirements for ``Application for License/Relicense for Water 
Projects with More than 5 Megawatt (MW) Capacity.''
    \22\ FERC-505 includes the reporting and recordkeeping 
requirements for ``Small Hydropower Projects and Conduit Facilities 
including License/Relicense, Exemption, and Qualifying Conduit 
Facility Determination.''
---------------------------------------------------------------------------

    19. These revisions to the Commission's regulations will align the 
filing requirements for qualifying conduits with Commission precedent 
and align the filing requirements for major projects greater than 5 MW 
and up to and including 10 MW to be consistent with the amended 
definition of a small hydroelectric power project in the 2013 HREA. 
Both revisions represent a slight decrease in the reporting 
requirements and burden information for FERC-500 and FERC-505.
    20. The estimated burden and cost for the requirements affected by 
this final rule follow.

                                                 Changes Due to the Final Rule in Docket No. RM20-21-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Numbers of
                                        Numbers of    responses \23\   Total number      Avg. burden hrs. & cost per       Total annual burden hours &
                                        respondents   per respondent   of responses             response \24\                   total annual cost
                                                 (1)             (2)     (1) x (2) =  (4).............................  (3) x (4) = 5
                                                                                 (3)
--------------------------------------------------------------------------------------------------------------------------------------------------------
FERC-500............................               3               1               3  320 hours/$26,560 reduction.....  960 hours/$79,680 reduction.
FERC-505............................               8               1               8  10 hours/$830 reduction.........  80 hours/$6,640 reduction.
                                     -------------------------------------------------------------------------------------------------------------------
    Total...........................  ..............  ..............              11  ................................  1,040 hours/$86,320 reduction.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    21. Titles: FERC-500 (Application for License/Relicense for Water 
Projects with More than 5 Megawatt (MW) Capacity) and FERC-505 (Small 
Hydropower Projects and Conduit Facilities including License/Relicense, 
Exemption, and Qualifying Conduit Facility Determination).
---------------------------------------------------------------------------

    \23\ We consider the filing of an application or notice of 
intent to be a ``response.''
    \24\ Commission staff estimates that the industry's skill set 
and cost (for wages and benefits) for FERC-500 and FERC-505 are 
approximately the same as the Commission's average cost. The FERC 
2020 average salary plus benefits for one FERC full-time equivalent 
(FTE) is $172,329/year (or $83.00/hour).
---------------------------------------------------------------------------

    22. Action: Revisions to information collections FERC-500 and FERC-
505.
    23. OMB Control Nos.: 1902-0058 (FERC-500) and 1902-0115 (FERC-
505).
    24. Respondents: Municipalities, businesses, private citizens, and 
for-profit and not-for-profit institutions.
    25. Frequency of Information: Ongoing.
    26. Necessity of Information: The revised regulations remove the 
Commission's requirement for notices of intent to construct a 
qualifying conduit to include a profile drawing, consistent with 
Commission precedent, and align the Commission's filing requirements 
for major projects greater than 5 MW and up to and including 10 MW to 
be consistent with the amended definition of a small hydroelectric 
power project in the 2013 HREA. The revised regulations affect only the 
number of entities that would file applications with the Commission for 
these two project types and reduce information collection requirements.
    27. Internal Review: The Commission has reviewed the revisions and 
has determined that they are necessary. These requirements conform to 
the Commission's need for efficient information collection, 
communication, and management within the energy industry. The 
Commission has assured

[[Page 42713]]

itself, by means of internal review, that there is specific, objective 
support for the burden estimates associated with the information 
collection requirements.
    28. Interested persons may obtain information on the reporting 
requirements by contacting the Federal Energy Regulatory Commission at 
one of the following methods:
     USPS at: Federal Energy Regulatory Commission, Ellen 
Brown, Office of the Executive Director, 888 First Street NE, 
Washington, DC 20426.
     Hard copy communication other than USPS: Federal Energy 
Regulatory Commission, Ellen Brown, Office of the Executive Director, 
12225 Wilkins Avenue, Rockville, Maryland 20852.
     email to: [email protected].
     phone: (202) 502-8663, or by fax: (202) 273-0873.
    29. Please send comments concerning the collection of information 
and the associated burden estimates to: Office of Information and 
Regulatory Affairs, Office of Management and Budget [Attention: Federal 
Energy Regulatory Commission Desk Officer]. Due to security concerns, 
comments should be sent directly to www.reginfo.gov/public/do/PRAMain. 
Comments submitted to OMB should be sent within 30 days of publication 
of this notification in the Federal Register and should refer to FERC-
500 (OMB Control No 1902-0058) and FERC-505 (OMB Control No. 1902-
0115).

B. Environmental Analysis

    30. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact statement for any action that may 
have a significant effect on the human environment.\25\ Excluded from 
this requirement are rules that are clarifying, corrective, or 
procedural, or that do not substantially change the effect of 
legislation or the regulations being amended.\26\ This final rule 
revises the filing requirements for qualifying conduit projects and the 
filing requirements for license applications for major hydroelectric 
projects with an installed capacity of 10 MW or less. Because this 
final rule is procedural and does not substantially change the effect 
of the regulations being amended, preparation of an Environmental 
Assessment or Environmental Impact Statement is not required.
---------------------------------------------------------------------------

    \25\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. 
& Regs. ] 30,783 (1987) (cross-referenced at 41 FERC ] 61,284).
    \26\ 18 CFR 380.4(a)(2)(ii).
---------------------------------------------------------------------------

C. Regulatory Flexibility Act

    31. The Regulatory Flexibility Act of 1980 (RFA) \27\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The RFA mandates consideration of regulatory alternatives that 
accomplish the stated objectives of a rulemaking and minimize any 
significant economic impact on a substantial number of small 
entities.\28\ In lieu of preparing a regulatory flexibility analysis, 
an agency may certify that a final rule will not have a significant 
economic impact on a substantial number of small entities.\29\
---------------------------------------------------------------------------

    \27\ 5 U.S.C. 601-612.
    \28\ Id. 603(c).
    \29\ Id. 605(b).
---------------------------------------------------------------------------

    32. The Small Business Administration's (SBA) Office of Size 
Standards develops the numerical definition of a small business.\30\ 
The SBA size standard for electric utilities is based on the number of 
employees, including affiliates.\31\ Under SBA's current size 
standards, a hydroelectric power generator (NAICS code 221111) \32\ is 
small if, including its affiliates, it employs 500 or fewer people.\33\ 
The Commission, however, currently does not require information 
regarding the number of individuals employed by hydroelectric 
generators to administer Part 1 of the Federal Power Act and therefore 
is unable to estimate the number of small entities under the SBA 
definition. Regardless, the Commission anticipates that this final rule 
will affect few entities.
---------------------------------------------------------------------------

    \30\ 13 CFR 121.101.
    \31\ Id. Sec.  121.201.
    \32\ The North American Industry Classification System (NAICS) 
is an industry classification system that Federal statistical 
agencies use to categorize businesses for the purpose of collecting, 
analyzing, and publishing statistical data related to the U.S. 
economy. United States Census Bureau, North American Industry 
Classification System, https://www.census.gov/eos/www/naics/.
    \33\ 13 CFR 121.201 (Sector 22--Utilities).
---------------------------------------------------------------------------

    33. As noted earlier, the final rule will only affect entities 
filing notices of intent to construct a qualifying conduit in instances 
where a dam would be constructed in association with the facility and 
entities filing licensing or amendment applications for major 
hydroelectric projects with an installed capacity of greater than 5 MW 
and up to and including 10 MW. From 2013 to 2020, the Commission 
received approximately 140 total notices to construct qualifying 
conduits and 18 applicable licensing applications. The revisions will 
eliminate the filing requirement for profile drawings and reduce the 
filing requirements for major hydroelectric projects with an installed 
capacity greater than 5 MW and up to and including 10 MW, thus reducing 
the burden on small hydro developers going forward.
    34. Accordingly, pursuant to section 605(b) of the RFA, the 
Commission certifies that this final rule would not have a significant 
economic impact on a substantial number of small entities.

D. Document Availability

    35. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov). At 
this time, the Commission has suspended access to the Commission's 
Public Reference Room due to the March 13, 2020 proclamation declaring 
a National Emergency concerning the Novel Coronavirus Disease (COVID-
19).
    36. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    37. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

E. Effective Date and Congressional Notification

    38. These regulations are effective October 4, 2021. The Commission 
has determined, with the concurrence of the Administrator of the Office 
of Information and Regulatory Affairs of OMB, that this rule is not a 
``major rule'' as defined in section 351 of the Small Business 
Regulatory Enforcement Fairness Act of 1996. This rule is being 
submitted to the Senate, House, Government Accountability Office, and 
Small Business Administration.

List of Subjects in 18 CFR Parts 4 and 5

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

    By direction of the Commission.


[[Page 42714]]


    Issued: July 15, 2021.
Debbie-Anne A. Reese,
Deputy Secretary.

    In consideration of the foregoing, the Commission amends parts 4 
and 5, chapter I, title 18, Code of Federal Regulations, as follows:

PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT 
COSTS

0
1. The authority citation for part 4 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352.


0
2. In Sec.  4.32, revise paragraph (a)(5)(ii) to read as follows:


Sec.  4.32  Acceptance for filing or rejection; information to be made 
available to the public; requests for additional studies.

    (a) * * *
    (5) * * *
    (ii) License for a minor water power project and a major water 
power project 10 MW or less: Sec.  4.61;
* * * * *

0
3. In Sec.  4.40, revise paragraph (a) to read as follows:


Sec.  4.40  Applicability.

    (a) Applicability. The provisions of this subpart apply to any 
application for an initial license for a major unconstructed project 
that would have a total installed capacity of more than 10 megawatts, 
and any application for an initial or new license for a major modified 
project with a total installed capacity more than 10 megawatts. An 
applicant for license for any major unconstructed or major modified 
water power project that would have a total installed generating 
capacity of 10 megawatts or less must submit application under subpart 
G of this part (Sec. Sec.  4.60 and 4.61).
* * * * *

0
4. In Sec.  4.50, revise paragraphs (a)(1) and (3) to read as follows:


Sec.  4.50  Applicability.

    (a) * * *
    (1) Except as provided in paragraph (a)(2) of this section, the 
provisions of this subpart apply to any application for either an 
initial license or new license for a major project--existing dam that 
is proposed to have a total installed capacity of more than 10 
megawatts.
* * * * *
    (3) An applicant for license for any major project--existing dam 
that would have a total installed capacity of 10 megawatts or less must 
submit application under subpart G of this part (Sec. Sec.  4.60 and 
4.61).
* * * * *

0
5. Revise the heading to subpart G to read as follows:

Subpart G--Application for License for Minor Water Power Projects 
and Major Water Power Projects 10 Megawatts or Less

0
6. In Sec.  4.60, revise paragraphs (a)(2) and (3) and (b) to read as 
follows:


Sec.  4.60  Applicability and notice to agencies.

    (a) * * *
    (2) Any major project--existing dam, as defined in Sec.  
4.30(b)(16), that has a total installed capacity of 10 MW or less; or
    (3) Any major unconstructed project or major modified project, as 
defined in Sec.  4.30(b)(15) and (14) respectively, that has a total 
installed capacity of 10 MW or less.
    (b) Notice to agencies. The Commission will supply interested 
Federal, state, and local agencies with notice of any application for 
license for a water power project 10 MW or less and request comment on 
the application. Copies of the application will be available for 
inspection at the Commission's Public Reference Room. The applicant 
shall also furnish copies of the filed application to any Federal, 
state, or local agency that so requests.
* * * * *

0
7. In Sec.  4.61, revise paragraphs (a)(3), (b) introductory text, 
(d)(1) introductory text, and (d)(2) introductory text to read as 
follows:


Sec.  4.61  Contents of application.

    (a) * * *
    (3) Each application for a license for a water power project 10 
megawatts or less must include the information requested in the initial 
statement and lettered exhibits described by paragraphs (b) through (f) 
of this section, and must be provided in the form specified. The 
Commission reserves the right to require additional information, or 
another filing procedure, if data provided indicate such action to be 
appropriate.
    (b) * * *

Before the Federal Energy Regulatory Commission

Application for License for a [Minor Water Power Project, or Major 
Water Power Project, 10 Megawatts or Less, as Appropriate]

* * * * *
    (d) * * *
    (1) For major unconstructed and major modified projects 10 MW or 
less. Any application must contain an Exhibit E conforming with the 
data and consultation requirements of Sec.  4.41(f), if the application 
is for license for a water power project which has or is proposed to 
have a total installed generating capacity greater than 1.5 MW but not 
greater than 10 MW, and which:
* * * * *
    (2) For minor projects and major projects at existing dams 10 MW or 
less. An application for license for either a minor water power project 
with a total proposed installed generating capacity of 1.5 MW or less 
or a major project--existing dam with a proposed total installed 
capacity of 10 MW or less must contain an Exhibit E under this 
paragraph (d)(2). See Sec.  4.38 for consultation requirements. The 
Environmental Report must contain the following information:
* * * * *

0
8. In Sec.  4.71, revise paragraphs (b)(1) and (2) to read as follows:


Sec.  4.71   Contents of application.

* * * * *
    (b) * * *
    (1) For any transmission line that, at the time the application is 
filed, is not constructed and is proposed to be connected to a licensed 
water power project with an installed generating capacity of more than 
10 MW--Exhibits A, B, C, D, E, F, and G under Sec.  4.41;
    (2) For any transmission line that, at the time the application is 
filed, is not constructed and is proposed to be connected to a licensed 
water power project with an installed generating capacity of 10 MW or 
less--Exhibits E, F, and G under Sec.  4.61; and
* * * * *

0
9. In Sec.  4.201, revise paragraphs (b)(1) and (3) through (5) to read 
as follows:


Sec.  4.201   Contents of application.

* * * * *
    (b) * * *
    (1) For amendment of a license for a water power project that, at 
the time the application is filed, is not constructed and is proposed 
to have a total installed generating capacity of more than 10 MW--
Exhibits A, B, C, D, E, F, and G under Sec.  4.41;
* * * * *
    (3) For amendment of a license for a water power project that, at 
the time the application is filed, is not constructed and is proposed 
to have a total installed generating capacity of 10 MW or less, but 
more than 1.5 MW--Exhibits F and G under Sec.  4.61, and Exhibit E 
under Sec.  4.41;
    (4) For amendment of a license for a water power project that, at 
the time the

[[Page 42715]]

application for amendment is filed, has been constructed, and is 
proposed to have a total installed generating capacity of 10 MW or 
less--Exhibit E, F, and G under Sec.  4.61; and
    (5) For amendment of a license for a water power project that, at 
the time the application is filed, has been constructed and is proposed 
to have a total installed generating capacity of more than 10 MW--
Exhibits A, B, C, D, E, F, and G under Sec.  4.51.
* * * * *


Sec.  4.401  [Amended]

0
10. In Sec.  4.401, remove paragraph (f)(3).

PART 5--INTEGRATED LICENSE APPLICATION PROCESS

0
11. The authority citation for part 5 continues to read as follows:

    Authority: 16 U.S.C. 792-828c, 2601-2645; 42 U.S.C. 7101-7352.


0
12. In Sec.  5.18, revise paragraph (a)(5)(i) to read as follows:


Sec.  5.18  Application content.

    (a) * * *
    (5) * * *
    (i) License for a minor water power project and a major water power 
project 10 MW or less: Sec.  4.61 of this chapter (General 
instructions, initial statement, and Exhibits A, F, and G);
* * * * *
[FR Doc. 2021-15511 Filed 8-4-21; 8:45 am]
BILLING CODE 6717-01-P