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]
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Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations
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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:
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SUMMARY:
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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
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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.
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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).
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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).
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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.
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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).
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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).
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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).
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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.
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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 (https://
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
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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
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]]>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.
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\19\ 44 U.S.C. 3501-3521.
\20\ See 5 CFR 1320.12.
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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\
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\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.''
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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).
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\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).
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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.
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\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).
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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\
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\27\ 5 U.S.C. 601-612.
\28\ Id. 603(c).
\29\ Id. 605(b).
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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.
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\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).
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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 (https://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
