FERC-729 supporting statement

FERC-729 (OMB Control No. 1902-0238)

RIN: 1902-AG08

Final Rule: RM22-7-000

Supporting Statement for

FERC-729, Electric Transmission Facilities: Modifications in Final Rule (Docket No. RM22-7-000)

The Federal Energy Regulatory Commission (Commission or FERC) requests that the Office of Management and Budget (OMB) review and renew FERC-729 (Electric Transmission Facilities, OMB Control No. 1902-0238), including the modifications as provided in the Final Rule issued on May 13, 2024, in Docket No. RM22-7-000.

FERC-729 is an existing information collection under 18 CFR Parts 50 and 380.

1. CIRCUMSTANCES THAT MAKE THE COLLECTION OF INFORMATION NECESSARY

FERC-729 consists of information collection activities for entities seeking to construct electric transmission facilities pursuant to the Commission’s authority under section 216 of the Federal Power Act (FPA).¹ Specifically, section 216(b) of the FPA authorizes the Commission, under certain circumstances, to issue permits for the construction of electric transmission facilities within national interest electric transmission corridors designated by the Secretary of Energy.²

Pursuant to this statutory authority, on November 16, 2006, the Commission issued Order No. 689,³ which implemented new regulations for FPA section 216 permit applications by adding part 50 to the Commission’s regulations.⁴ In addition, Order No. 689 adopted certain modifications to the Commission’s part 380 regulations implementing section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA)⁵ to ensure that the Commission is provided sufficient information to conduct an environmental analysis of a proposed electric transmission project.⁶ In 2009, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit), among other things, vacated the Commission’s transmission-related amendments to its part 380 regulations implementing NEPA.⁷ Notwithstanding the Fourth Circuit’s vacatur, the NEPA procedures set forth in Order No. 689 are still reflected in part 380 of the Commission’s regulations.

In the Infrastructure Investment and Jobs Act of 2021 (IIJA), Congress amended section 216 of the FPA to modify the circumstances under which the Secretary of Energy may designate national interest electric transmission corridors and to clarify the circumstances giving rise to the Commission’s jurisdiction.⁸ With respect to the Commission’s siting authority, the IIJA clarified that the Commission may issue a permit if a State has denied a siting application. The IIJA also amended section 216(e) to require the Commission to determine, as a precondition to a permit holder exercising eminent domain authority, that the permit holder has made “good faith efforts to engage with landowners and other stakeholders early in the applicable permitting process.”

To align the Commission’s regulations with the IIJA and to update certain regulatory requirements, the Commission issued a Notice of Proposed Rulemaking (NOPR) on December 15, 2022, proposing revisions to its regulations in parts 50 and 380.⁹ The Final Rule amends the Commission’s parts 50 and 380 regulations to ensure consistency with the IIJA, to modernize certain regulatory requirements, and to incorporate other updates and clarifications to provide for the efficient and timely review of permit applications. The Final Rule, among other things, requires applicants to:

• maintain an affected landowner contact log, provide certain information to affected landowners, file an affirmative statement with the Commission indicating the applicant’s intent to comply with the Applicant Code of Conduct, and include compliance updates as part of monthly status reports during the pre-filing and application review processes;¹⁰

• provide additional congestion and system analysis information during the pre-filing process and as part of the application;

• develop and file, as part of the Project Participation Plan, an Environmental Justice Public Engagement Plan describing completed and planned targeted outreach to environmental justice communities;

• develop and file, as part of the Project Participation Plan, a Tribal Engagement Plan describing completed and planned targeted outreach to identified Indian Tribes;

• include written translations in mailed notifications to landowners under certain circumstances, publish project notifications in online or hard copy periodicals and submit the same to available county and municipal government online bulletin boards, and provide the Commission with proof of publication;

• develop and file a new resource report describing the proposed project’s impacts on Tribal resources;

• develop and file a new resource report describing the proposed project’s impacts on environmental justice communities;

• develop and file a new resource report describing the proposed project’s impact on air quality and environmental noise;

• provide additional information describing the proposed project’s visual impacts; and

• provide additional information as part of the following existing resource reports: General project description; Water use and quality; Fish, wildlife, and vegetation; Soils; Land use, recreation, and aesthetics; and Reliability and safety.

2. HOW, BY WHOM AND FOR WHAT PURPOSE IS THE INFORMATION TO BE USED AND THE CONSEQUENCES OF NOT COLLECTING THE INFORMATION

The purpose of the Commission’s regulations is to provide for efficient and timely review of requests for permits for the siting of proposed electric transmission facilities under section 216 of the FPA, as amended by the IIJA. As described above, the Final Rule amends the Commission’s existing regulatory requirements in 18 CFR Parts 50 and 380.

This information collection cannot be discontinued or collected less frequently because of statutory requirements. Without this information, the Commission would be unable to fulfill its statutory obligations under the FPA and NEPA in evaluating proposals to site electric transmission facilities.

2. DESCRIBE ANY CONSIDERATION OF THE USE OF IMPROVED INFORMATION TECHNOLOGY TO REDUCE BURDEN AND THE TECHNICAL OR LEGAL OBSTACLES TO REDUCING BURDEN

There is an ongoing effort to determine the potential for improved information technology to reduce burden, and the Commission encourages the use of electronic filing. As posted at: https://www.ferc.gov/sites/default/files/2020-05/filing.pdf, the FERC-729 information may be electronically filed through the Commission’s eFiling system.

4. DESCRIBE EFFORTS TO IDENTIFY DUPLICATION AND SHOW SPECIFICALLY WHY ANY SIMILAR INFORMATION ALREADY AVAILABLE CANNOT BE USED OR MODIFIED FOR USE FOR THE PURPOSE(S) DESCRIBED IN INSTRUCTION NO. 2

To identify duplication, Commission staff periodically review filing requirements before the expiration of the information collection and as the Commission may deem necessary in carrying out its statutory responsibilities. There is no other source of this information.

5. METHODS USED TO MINIMIZE BURDEN IN COLLECTION OF INFORMATION INVOLVING SMALL ENTITIES

The Commission expects entities seeking to construct electric transmission facilities pursuant to the Commission’s authority under section 216 of the FPA to be major developers capable of financing complex and expensive projects. To date, only one entity has participated in the Commission’s mandatory pre-filing process in 18 CFR Part 50, and that was a major electric utility company. Therefore, the Commission does not anticipate that these information collection requirements would impose a burden on small entities. Additionally, as noted above, any applicants may reduce the burdens by filing information electronically through the Commission’s eFiling system.

6. CONSEQUENCE TO FEDERAL PROGRAM IF COLLECTION WERE CONDUCTED LESS FREQUENTLY

This information collection is triggered by an applicant filing a request to commence the Commission’s pre-filing process. Compliance with the pre-filing procedures is a prerequisite to filing an application for a permit to construct electric transmission facilities under section 216 of the FPA. Without the information submitted by an applicant during the pre-filing and application review processes, the Commission would be unable to fulfill its statutory obligations under the FPA and NEPA.

7. EXPLAIN ANY SPECIAL CIRCUMSTANCES RELATING TO THE INFORMATION

FERC-729 meets OMB’s section 1320.5 requirements with the exception of 1320.5(d)(2)(iii), which provides that agencies not require respondents to submit more than an original and two copies of any document.¹¹ Specifically, section 50.3(b)¹² of the Commission’s regulations requires an original and seven conformed copies of the information to be submitted for the Commission to conduct its review. The Final Rule revises section 50.3(b) to only require applicants to make submissions in electronic format, which is consistent with section 1320.5(d)(2)(iii).

8. DESCRIBE EFFORTS TO CONSULT OUTSIDE THE AGENCY: SUMMARIZE PUBLIC COMMENTS AND THE AGENCY’S RESPONSE TO THESE COMMENTS

On December 15, 2022, the Commission issued its NOPR proposing to revise its regulations in parts 50 and 380.¹³ The NOPR was published in the Federal Register on January 17, 2023, with a 90-day comment period.¹⁴ Because some of the information collection activities proposed in the NOPR are novel, the Commission solicited comments on the burden hour and cost estimates in the NOPR. The Commission did not receive comments on the burden hour and cost estimates specifically but did receive comments on other aspects of the NOPR, which the Commission addresses in the Final Rule issued in Docket No. RM22-7-000. As described in the NOPR and Final Rule, the Commission also consulted with the Council on Environmental Quality on its NEPA implementing regulations in 18 CFR Part 380.

Many of the public comments on the information collection activities in the Final Rule focused on the proposed engagement plan for outreach to environmental justice communities. In the Final Rule, the Commission adopted the NOPR proposal to require an Environmental Justice Public Engagement Plan under 18 CFR 50.4(a)(4) as a component of the Project Participation Plan, with a modification clarifying that applicants must describe efforts to identify, engage, and accommodate “individuals with limited English proficiency.” Some commenters urged the Commission to add a requirement for an engagement plan describing an applicant’s outreach to Indian Tribes. The Commission adopted in the Final Rule new 18 CFR 50.4(a)(5), which requires an applicant to include a Tribal Engagement Plan as a component of the Project Participation Plan. The Final Rule explained that requiring applicants to prepare engagement plans facilitates the development of the record that the Commission needs to assess impacts on environmental justice communities and Indian Tribes by detailing the steps applicants will take to identify and engage with these communities.

Other public comments on the information collection activities generally focused on the Applicant Code of Conduct, project notification requirements, the three new environmental resource reports (covering potential impacts on environmental justice communities, Tribal resources, and air quality and environmental noise), visual impact assessment, and various updates to the existing environmental resource reports. The Final Rule made a number of clarifying changes in response to comments.

Though unrelated to information collection activities, many public comments addressed the Commission’s proposal to allow simultaneous processing of State and FERC siting applications. In the Final Rule, the Commission declined to adopt the proposal, and instead stated that it would continue the existing policy of a one-year delay between the filing of the relevant State siting applications and the commencement of the Commission’s pre-filing process. The Final Rule explained that this determination was based on a review of the record and, in particular, the feedback received from States in their filed comments and at the February 28, 2024, meeting of the Joint Federal-State Task Force on Electric Transmission.

9. EXPLAIN ANY PAYMENT OR GIFTS TO RESPONDENTS

There are no payments or gifts to FERC-729 respondents.

10. DESCRIBE ANY ASSURANCE OF CONFIDENTIALITY PROVIDED TO RESPONDENTS

The Commission does not consider the information collected in FERC-729 filings to be confidential. Filers may request privileged or Critical Energy Infrastructure Information treatment of a filing that may contain information the applicant deems harmful if released to the general public.¹⁵

11. PROVIDE ADDITIONAL JUSTIFICATION FOR ANY QUESTIONS OF A SENSITIVE NATURE, SUCH AS SEXUAL BEHAVIOR AND ATTITDUES, RELIGIOUS BELIEFS, AND OTHER MATTERS THAT ARE COMMONLY CONSIDERED PRIVATE

There are no questions of a sensitive nature in this information collection.

12. ESTIMATED BURDEN OF COLLECTION OF INFORMATION

The Commission estimates the annual public reporting burden for the requirements contained in the Final Rule as:

	No. of Respondents (1)	No. of Responses16 per Respondent (2)	Total No. of Responses (1)X(2)=(3)	Avg. Burden Hrs. & Cost Per Response17 (4)	Total Annual Burden Hours & Total Annual Cost (3)X(4)=5
Previously Approved FERC 729 Collection
FERC-729	1	1	1	9,600 hrs. $960,000	9,600 hrs. $960,000
Revisions in RM22-7-000
Applicant Code of Conduct18	119	1	1	160 hrs.; $16,000	160 hrs.; $16,000
Environmental Justice Public Engagement Plan	1	1	1	24 hrs.; $2,400	24 hrs.; $2,400
Tribal Engagement Plan	1	1	1	24 hrs.; $2,400	24 hrs.; $2,400
Project Notification Requirements20	1	1	1	144 hrs.; $14,400	144 hrs.; $14,400
Congestion and System Analysis Data21	1	1	1	165 hrs.; $16,500	165 hrs.; $16,500
Other Updates to 18 CFR pt. 5022	1	1	1	20 hrs.; $2,000	20 hrs.; $2,000
Resource Report: Tribal Resources	1	1	1	43 hrs.; $4,300	43 hrs.; $4,300
Resource Report: Environmental Justice	1	1	1	80 hrs.; $8,000	80 hrs.; $8,000
Resource Report: Air Quality & Environmental Noise	1	1	1	296 hrs.; $29,600	296 hrs.; $29,600
Information on Visual Impacts	1	1	1	104 hrs.; $10,400	104 hrs.; $10,400
Other Updates to 18 CFR pt. 38023	1	1	1	182 hrs.; $18,200	182 hrs.; $18,200
REQUESTED TOTAL			11		1,242 hrs.; $124,200
PREVIOUSLY APPROVED PLUS REQUESTED TOTAL			12		10,842 hrs.; $1,084,200

13. ESTIMATE OF TOTAL ANNUAL COST OF BURDEN TO

RESPONDENTS

All of the costs are associated with burden hours (labor) and addressed in questions #12 and #15.

14. ESTIMATED ANNUALIZED COST TO FEDERAL

GOVERNMENT

The Commission estimates the annualized cost to the federal government for this information collection as:

	Number of Employees (FTEs)	Estimated Annual Federal Cost
PRA24 Administration Cost25	-	$8,396
Analysis and Processing of Filings26	927	$1,870,074
FERC Total		$1,878,470

The Commission bases its estimate of the “Analysis and Processing of Filings” cost to the federal government on salaries and benefits for professional and clerical support. This estimated cost represents staff analysis, decision making, and review of any actual filings made in response to the information collection.

15. REASONS FOR CHANGES IN BURDEN INCLUDING THE NEED FOR ANY INCREASE

The increase in estimated burden is due to the adopted changes in the Final Rule, as described above. The total increase in burden represents 11 responses and 1,242 hours.

The following table shows the total burden for the collection of information. The format, labels, and definitions of the table follow the ROCIS submission system’s “Information Collection Request Summary of Burden” for the metadata.

FERC-729	Total Request	Previously Approved	Change Due to Adjustment in Estimate	Change Due to Agency Discretion
Annual Number of Responses	12	1	0	11
Annual Time Burden (Hours)	10,842	9,600	0	1,242
Annual Cost Burden ($)	0	0	0	0

16. TIME SCHEDULE FOR PUBLICATION OF DATA

The Commission does not publish any data associated with this information collection.

17. DISPLAY OF EXPIRATION DATE

The expiration date is posted at: https://www.ferc.gov/information-collections.

18. EXCEPTIONS TO THE CERTIFICATION STATEMENT

There are no exceptions.

1 16 U.S.C. 824p.

2 Under 16 U.S.C. 824p(a), the Secretary of Energy may designate any geographic area as a national interest electric transmission corridor upon determining that the area is experiencing electric energy transmission capacity restraints or congestion that adversely affects consumers. Under 16 U.S.C. 824p(b), the Commission may issue permits for the construction or modification of electric transmission facilities in a national interest electric transmission corridor. The Commission’s authority is limited by 16 U.S.C. 824p(i), which pertains to regional transmission siting agencies established by three or more contiguous States.

3 Regulations for Filing Applications for Permits to Site Interstate Elec. Transmission Facilities, Order No. 689, 117 FERC ¶ 61,202 (2006), reh’g denied, 119 FERC ¶ 61,154 (2007).

4 18 CFR pt. 50.

5 42 U.S.C. 4332(2)(C).

6 18 CFR pt. 380.

7 Piedmont Envtl. Council v. FERC, 558 F.3d 304 (4th Cir. 2009). The court found that the Commission had failed to consult with the Council on Environmental Quality before adopting the revisions. Id. at 319, 320.

8 See Pub. L. No. 117–58, div. D, title I, §40105, Nov. 15, 2021, 135 Stat. 933.

9 Applications for Permits to Site Interstate Electric Transmission Facilities, 181 FERC ¶ 61,205 (2022), errata notice, 182 FERC ¶ 61,020 (2023). The Commission’s errata notice, issued on January 17, 2023, reflected certain stylistic revisions requested by the Federal Register as well as minor, non-substantive editorial revisions.

10 These requirements only apply to applicants who elect to comply with the Applicant Code of Conduct set forth in 18 CFR 50.12.

11 5 CFR 1320.5(d)(2)(iii) (.

12 18 CFR 50.3(b).

13 Applications for Permits to Site Interstate Electric Transmission Facilities, 181 FERC ¶ 61,205 (2022), errata notice, 182 FERC ¶ 61,020 (2023). The Commission’s errata notice, issued on January 17, 2023, reflected certain stylistic revisions requested by the Federal Register as well as minor, non-substantive editorial revisions.

14 Comments on the NOPR were due by April 17, 2023. In response to a motion filed by the National Association of Regulatory Utility Commissioners, the Commission extended the NOPR comment deadline to May 17, 2023.

15 18 CFR 388.112; Id. 388.113.

16 We consider the filing of an application, including the mandatory pre-filing information, to be a “response.”

17 The estimates for cost per response are derived using the following formula: Average Burden Hours per Response * $100 per Hour = Average Cost per Response.
The hourly cost figure is the FY2024 FERC average annual salary plus benefits ($207,786/year or $100/hour). Commission staff estimates that industry costs for salary plus benefits are similar to Commission costs. We note that the NOPR provided cost estimates in 2022 dollars.

18 Notwithstanding that compliance with the Applicant Code of Conduct is voluntary, we are providing the estimated burden hours associated with such compliance.

19 After implementation of this Final Rule, we estimate one application for a permit to site electric transmission facilities will be filed per year.

20 This category covers the updates to the project notification requirements in 18 CFR 50.4(c) that require an applicant to provide written translation under certain circumstances, publish project notifications in other appropriate print and digital media outlets in addition to newspaper publication, submit proof of publication, and include additional material in the project notifications mailed to affected landowners (e.g., the Landowner Bill of Rights).

21 This category covers the updates to the congestion and system analysis data that an applicant must provide during the pre-filing process and as part of the application in Exhibit H, System analysis data.

22 This category covers additional updates to Part 50 of the Commission’s regulations that involve minor increases in burden (e.g., adding an interactive mapping feature to an applicant’s project website), a reduction in burden (eliminating the requirement that an applicant provide seven paper copies of an application, exhibits, and other submittals), and no change in burden (revising the requirement to provide proposals for prospective third-party contractors). We note that eight burden hours that the NOPR reported in this category have been relocated to “Project Notification Requirements,” a new category added to reflect several project notification requirements adopted in this Final Rule.

23 This category covers a variety of updates to § 380.16 of the Commission’s regulations that require an applicant to develop and submit additional information as part of the following existing resource reports: General project description; Water use and quality; Fish, wildlife, and vegetation; Soils; Land use, recreation, and aesthetics; and Reliability and safety.

24 The Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521 (PRA).

25 The PRA Administration Cost includes preparing supporting statements, notices, and other activities associated with PRA compliance.

26 The cost figure is the FY2024 FERC average annual salary plus benefits ($207,786/year or $100/hour).

27 Because of the expected size and complexity of proposed projects, additional staff will be necessary to review and process pre-filing requests and application filings.

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