84 FR 7988 - Preliminary Permits, Qualifying Conduit Hydropower Facilities, and Commencement for Payment of Annual Charges

The Federal Energy Regulatory Commission (Commission) issues this final rule to amend its regulations to conform to the enacted America's Water Infrastructure Act of 2018 (Water Infrastructure Act). This final rule revises regulations on preliminary permits, qualifying conduit hydropower facilities, and commencement for payment of annual charges. All revisions in this final rule are ministerial in nature.

[Federal Register Volume 84, Number 44 (Wednesday, March 6, 2019)]
[Rules and Regulations]
[Pages 7988-7991]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2019-03742]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 4 and 11

[Docket No. RM19-13-000; Order No. 857]


Preliminary Permits, Qualifying Conduit Hydropower Facilities, 
and Commencement for Payment of Annual Charges

AGENCY:  Federal Energy Regulatory Commission, Department of Energy.

ACTION:  Final rule.

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SUMMARY:  The Federal Energy Regulatory Commission (Commission) issues 
this final rule to amend its regulations to conform to the enacted 
America's Water Infrastructure Act of 2018 (Water Infrastructure Act). 
This final rule revises regulations on preliminary permits, qualifying 
conduit hydropower facilities, and commencement for payment of annual 
charges. All revisions in this final rule are ministerial in nature.

DATES:  This rule will become effective April 5, 2019.

FOR FURTHER INFORMATION CONTACT:

Haley McLoud (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8807, [email protected].
Christopher Chaney (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-6778, [email protected].
Nicholas Jayjack (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-6073, [email protected].

SUPPLEMENTARY INFORMATION:

[[Page 7989]]

Background and Discussion

    1. By this final rule, the Commission is amending parts 4 and 11 of 
its regulations to conform to the America's Water Infrastructure Act of 
2018 (Water Infrastructure Act or Act),\1\ enacted on October 23, 2018. 
Among other things, the Water Infrastructure Act amends sections of the 
Federal Power Act (FPA) pertaining to preliminary permits, qualifying 
conduit hydropower facilities, and commencement for payment of annual 
charges.
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    \1\ Public Law 115-270, 132 Stat. 3765 (2018).
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A. Amendment Pertaining to Preliminary Permits

    2. Under section 5 of the FPA,\2\ the Commission issues preliminary 
permits, which preserve the right of the permit holder to have the 
first priority in applying for a license or exemption for the project 
site. During the preliminary permit term, permittees conduct 
investigations and secure necessary data to determine the feasibility 
of a proposed project and to prepare a development (i.e., license or 
exemption) application.
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    \2\ 16 U.S.C. 798 (2012), amended by, America's Water 
Infrastructure Act of 2018, Public Law 115-270, 3001, 132 Stat. 
3765, 3862 (2018).
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    3. Prior to passage of the Water Infrastructure Act, the maximum 
permit term was three years. Additionally, the Commission could extend 
the term of a preliminary permit once, for not more than two additional 
years.
    4. The Water Infrastructure Act amends section 5 of the FPA to give 
the Commission the authority to issue preliminary permits with maximum 
terms of four years. The Act also gives the Commission the authority to 
extend a preliminary permit term once for not more than an additional 
four years, if the Commission finds that the permittee has carried out 
activities under the permit in good faith and with reasonable 
diligence. And the Act authorizes the Commission to issue an additional 
permit following the end of an extension period, if the Commission 
determines that there are extraordinary circumstances warranting such 
an action. The Commission is revising its regulations at 18 CFR 4.82 to 
reflect the statutory changes regarding preliminary permits.

B. Amendments Pertaining to Qualifying Conduit Hydropower Facilities

    5. Qualifying conduit hydropower facilities are a subset of 
hydropower projects that are not required to be licensed under Part I 
of the FPA. Prior to enactment of the Act, section 30 of the FPA \3\ 
provided that a qualifying conduit hydropower facility could not have 
an installed capacity greater than five megawatts (MW).
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    \3\ 16 U.S.C. 823a (2012), amended by, Hydropower Regulatory 
Efficiency Act of 2013, Pub. L. 113-23, 4, 127 Stat. 493, 494 
(2013).
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    6. The Water Infrastructure Act amends section 30 to increase the 
maximum installed capacity for qualifying conduit exemptions to 40 MW.
    7. Section 30 previously established a 45-day period for entities 
to contest whether a project as to which qualifying conduit hydropower 
facility status is sought meets the requisite statutory definition. The 
Water Infrastructure Act shortens this period to 30 days.
    8. The Commission is revising its regulations at 18 CFR 4.30 to 
reflect these statutory changes.

C. Amendment Pertaining to Obligation for Payment of Annual Charges

    9. Licensees and exemptees pay annual charges to the Commission to 
reimburse the United States for the costs of administration of the 
Commission's hydropower regulatory program.\4\ For unconstructed 
projects, the payment of annual charges starts on the date by which the 
licensee or exemptee is required to commence project construction, 
which is within two years of license issuance, or by any extension of 
that date. Prior to the Water Infrastructure Act, the Commission 
limited the start date for payment of annual charges to no later than 
four years after the issuance of the license or exemption,\5\ because 
section 13 of the FPA limited the Commission to issuing one extension 
of the commencement of construction deadline, for no more than two 
additional years.
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    \4\ 18 CFR 11.1(a) (2018).
    \5\ See 18 CFR 11.1(c)(5) (2018).
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    10. The Act revised section 13 to authorize the Commission to issue 
extensions of the commencement of construction deadline for up to eight 
years. Accordingly, the Commission is revising its regulations at 18 
CFR 11.1 to eliminate the maximum four-year period before the 
commencement of annual changes and will instead commence those charges 
at the end of two years after license issuance or the expiration of any 
extended deadline.

D. Revised Regulations

    11. By this final rule, the Commission is conforming its 
regulations to the Water Infrastructure Act. The Commission revises 
language on preliminary permits, qualifying conduit hydropower 
facilities, and obligations of annual charges in parts 4 and 11 of its 
regulations.
Information Collection Statement
    12. The Paperwork Reduction Act \6\ requires each federal agency to 
seek and obtain Office of Management and Budget (OMB) approval before 
undertaking a collection (including reporting, record keeping, and 
public disclosure requirements) of information directed to ten or more 
persons or contained in a rule of general applicability. OMB 
regulations require approval of certain information collection 
requirements imposed by agency rules.\7\ 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 an agency 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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    \6\ 44 U.S.C. 3501-3520 (2012).
    \7\ See 5 CFR 1320.10 (2018).
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    13. The entities affected by this rule would be those with: (1) 
Future preliminary permit applications, (2) pending requests for a 
preliminary permit, (3) existing preliminary permits as to which 
extensions or successive permits are sought, (4) proposals to construct 
qualifying conduit hydroelectric facilities, and (5) unconstructed 
licensed or exempted facilities that have not yet begun paying annual 
charges. The Commission will submit the information collection 
requirements in this final rule to OMB for its review. The information 
collection requirements are included in FERC-505, ``Small Hydropower 
Projects and Conduit Facilities including License/Relicense, Exemption, 
and Qualifying Conduit Facility Determination.''
    14. Overall the final rule reduces the current burden for affected 
entities. Those entities with qualifying conduit applications will 
incur less burden than before the Water Infrastructure Act; there will 
be no effect (neither an increase nor a decrease) on burden imposed for 
entities with preliminary permit applications or seeking extension of a 
preliminary permit term.

[[Page 7990]]



                                           Annual Changes Proposed by the Final Rule in Docket No. RM19-13-000
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                                                      Annual number                                          Total annual burden
                                        Number of     of responses    Total number   Average burden & cost   hours & total annual   Cost per respondent
                                       respondents   per respondent   of responses      per response \8\             cost                   ($)
                                                (1)             (2)     (1) * (2) =  (4)..................  (3) * (4) = (5)......  (5) / (1)
                                                                                (3)
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FERC-505 (reduction)...............           \9\ 1               1               1  30 hrs.; $2,370        30 hrs.; $2,370        $2,370 (reduction)
                                                                                      (reduction).           (reduction).
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\8\ The estimates for cost per response are derived using the following formula: Average Burden Hours per Response * $79.00/hour = Average cost/
  response. The figure is the 2018 FERC average hourly cost (for wages and benefits) of $79.00 (and an average annual salary of $164,820/year).
  Commission staff is using the FERC average salary and benefits cost, because we consider any reporting requirements completed in response to the FERC-
  505 to be compensated at rates similar to the work of FERC employees.
\9\ Based on applications we have received since 2013 for conduit hydropower facilities with an installed capacity between five and 40 MW that would now
  meet the qualifying conduit hydropower facilities criteria, we anticipate one respondent per year.

    15. Title: FERC-505, ``Small Hydropower Projects and Conduits 
including License/Relicense, Exemption, and Qualifying Conduit Facility 
Determination.''
    16. Action: Revisions to the FERC-505 information collection.
    17. OMB Control Nos.: 1902-0115 (FERC-505).
    18. Respondents: Municipalities, businesses, private citizens, and 
for-profit and not-for-profit institutions.
    19. Necessity of Information: The revised regulations implement the 
Water Infrastructure Act's amendments to preliminary permits, 
qualifying conduit hydroelectric facilities, and obligations of annual 
charges. The revised regulations for the most part affect only the 
frequency that entities would file permit extensions with the 
Commission in addition to the number of entities that would file 
applications with the Commission. Thus, the Water Infrastructure Act 
does not require new information from applicants, licensees, or 
exemptees. The Commission will continue to use its existing regulations 
and procedures to accept requests for preliminary permits, permit 
extensions or successive permits, notices of intent to construct 
qualifying conduit hydropower facilities, and determining the start 
date for charging of annual payments.
    20. 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 itself, by means of internal review, that there 
is specific, objective support for the burden estimates associated with 
the information collection requirements.
    21. Comments: The revised information collection requirements will 
not be effective or enforceable until OMB approves the information 
collection changes described in this order.
    22. The Commission solicits comments on the Commission's need for 
this information; whether the information will have practical utility; 
the accuracy of provided burden estimates; ways to enhance the quality, 
utility, and clarity of the information to be collected; and any 
suggested methods for minimizing the respondent's burden, including the 
use of automated information techniques. Comments are due within 30 
days of the date this order is published in the Federal Register. After 
receipt and analysis of public comments, the Commission will submit the 
reporting requirements to OMB for approval.
    23. Interested persons may obtain information on the reporting 
requirements by contacting the Federal Energy Regulatory Commission, 
888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, 
Office of the Executive Director], by phone (202) 502-8663, or by email 
to [email protected].
    24. Comments concerning the information collections in this final 
rule and the associated burden estimates should be sent to: Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street NW, Washington, DC 20503 [Attention: Desk Officer for 
the Federal Energy Regulatory Commission]. Due to security concerns, 
comments should be sent electronically to the following email address: 
[email protected]. Additionally, the Commission encourages 
comments to be filed electronically via the eFiling link on the 
Commission's website at http://www.ferc.gov. Commenters that are not 
able to file comments electronically should send an original of their 
comments to: Federal Energy Regulatory Commission, Secretary of the 
Commission, 888 First Street NE, Washington, DC 20426.
Environmental Analysis
    25. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\10\ 
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.\11\ This final 
rule amends the Commission's regulations to conform to recent 
legislation and does not substantially change the effect of the 
underlying legislation or regulations being revised.
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    \10\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 41 FERC ] 61,284 (1987).
    \11\ 18 CFR 380.4(a)(2)(ii) (2018).
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Regulatory Flexibility Act
    26. The Regulatory Flexibility Act of 1980 (RFA) \12\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities.
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    \12\ 5 U.S.C. 601-612 (2012).
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    27. However, final rules promulgated without the publication of a 
general notice of proposed rulemaking under section 553 of the 
Administrative Procedure Act (APA) \13\ are exempt from the RFA's 
requirements.\14\ Section 553(b)(3)(A) of the APA states that final 
rules that are interpretive rules may be published without general 
notice of proposed rulemaking. Interpretive rules are defined as rules 
that ``generally interpret the intent expressed by Congress'' where an 
agency ``does not insert its own judgments in implementing a rule, and 
simply regurgitates statutory language.'' \15\ They

[[Page 7991]]

are an ``agency's reading of a statute'' that do not ``intend to create 
new rights or duties, but only remind affected parties of existing 
duties.'' \16\
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    \13\ 5 U.S.C. 553 (2012).
    \14\ 5 U.S.C. 604(a) (2012).
    \15\ Small Business Administration, Office of Advocacy, A Guide 
for Government Agencies: How to Comply with the Regulatory 
Flexibility Act (May 2012), http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf.
    \16\ Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C. Cir. 
1993).
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    28. This final rule is an interpretive rule because it modifies the 
Commission's regulations to conform to the Water Infrastructure Act. It 
does not create new rights or duties. Rather, it reminds affected 
parties of existing duties required by the Water Infrastructure Act, 
with which the Commission and non-agency entities have complied since 
the Act's enactment.
Document Availability
    29. 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 FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5:00 
p.m. Eastern time) at 888 First Street NE, Room 2A, Washington, DC 
20426.
    30. From FERC'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.
    31. User assistance is available for eLibrary and the FERC's 
website during normal business hours from FERC 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].
Effective Date and Congressional Notification
    32. These regulations are effective April 5, 2019. 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.

List of Subjects

18 CFR Part 4

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

18 CFR Part 11

    Dams, Electric power, Indians-lands, Public lands, Reporting and 
recordkeeping requirements.

    By the Commission.
    Issued: February 22, 2019.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
    In consideration of the foregoing, the Commission is amending parts 
4 and 11, 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 is revised to read:

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


Sec.  4.30   [Amended]

0
2. In Sec.  4.30(b)(26)(ii), remove the number ``5'' and add in its 
place the number ``40''.


Sec.  4.81  [Amended]

0
3. In Sec.  4.81(a)(5), remove the number ``36'' and add in its place 
the number ``48''.

0
4. In Sec.  4.82, remove ``five'' and add in its place ``eight'' in 
paragraphs (a) and (c) and add paragraph (d) to read as follows:


Sec.  4.82  Amendments.

* * * * *
    (d) At the end of the extension period granted under paragraph (a) 
of this section, the Commission may issue an additional permit to the 
permittee if the Commission determines that there are extraordinary 
circumstances that warrant the issuance of the additional permit.


Sec.  4.400  [Amended]

0
5. In Sec.  4.400, remove ``by the Hydropower Regulatory Efficiency Act 
of 2013''.


Sec.  4.401  [Amended]

0
6. In Sec.  4.401:
0
a. In paragraph (a)(3), remove ``the date of enactment of the 
Hydropower Regulatory Efficiency Act,''.
0
b. In paragraph (b), remove ``by section 4 of the Hydropower Regulatory 
Efficiency Act of 2013''.

PART 11--ANNUAL CHARGES UNDER PART I OF THE FEDERAL POWER ACT

0
7. The authority citation for part 11 is revised to read:

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


Sec.  11.1  [Amended]

0
8. In Sec.  11.1(c)(5), remove ``, but in no case longer than four 
years after the issuance date of the license or exemption''.

[FR Doc. 2019-03742 Filed 3-5-19; 8:45 am]
 BILLING CODE 6717-01-P