# Coordination of Federal Authorizations for Electric Transmission Facilities > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-08157 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 1, 2024 - **Citation:** 89 FR 35312 ## Text DEPARTMENT OF ENERGY 10 CFR Part 900 [DOE-HQ-2023-0050] RIN 1901-AB62 Coordination of Federal Authorizations for Electric Transmission Facilities AGENCY: Grid Deployment Office, U.S. Department of Energy. ACTION: Final rule. SUMMARY: The Department of Energy (DOE) is amending its regulations for the timely coordination of Federal authorizations for proposed interstate electric transmission facilities pursuant to the Federal Power Act (FPA). Specifically, DOE is establishing an integrated and comprehensive Coordinated Interagency Transmission Authorizations and Permits Program (CITAP Program); making participation in the Integrated Interagency Pre-Application (IIP) Process a pre-condition for assistance under the CITAP Program; re-establishing the IIP Process as an iterative and collaborative process between the proponent of a proposed electric transmission project and Federal and State agencies to develop information needed for Federal authorizations; requiring the project proponent to engage in robust engagement with the public, communities of interest, and Indian Tribes during the IIP Process; aligning and harmonizing the IIP Process and implementation of the FPA with the Fixing America's Surface Transportation Act; and ensuring that DOE may carry out its statutory obligation to prepare a single environmental review document sufficient for the purposes of all Federal authorizations necessary to site a proposed project. DATES: This rule is effective May 31, 2024. FOR FURTHER INFORMATION CONTACT: Liza Reed, U.S. Department of Energy, Grid Deployment Office, 4H-065, 1000 Independence Avenue SW, Washington, DC 20585. Telephone: (202) 586-2006. Email: CITAP@hq.doe.gov. SUPPLEMENTARY INFORMATION: I. Executive Summary II. Background and Authority III. Summary of the Final Rule IV. Tribal Sovereignty V. Terminology and Clarification Changes VI. Discussion of Comments A. General B. Purpose and Scope C. Qualifying Projects D. Purpose and Scope of IIP Process E. Public Participation in the IIP Process F. Timing of IIP Process and NOI Issuance G. IIP Process Initiation Request H. Standard and Project-Specific Schedules I. Selection of NEPA Lead and Joint Lead Agencies and Environmental Review J. Section 106 of the NHPA K. Definitions L. Resource Reports M. Administrative Docket N. Interaction With FPA 216(a) and FPA 216(b) O. Miscellaneous P. Out of Scope Comments VII. Section-by-Section Analysis VIII. Regulatory Review A. Review Under Executive Orders 12866, 13563, and 14094 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 12988 F. Review Under Executive Order 13132 G. Review Under Executive Order 13175 H. Review Under the Unfunded Mandates Reform Act of 1995 I. Review Under Executive Order 12630 J. Review Under Executive Order 13211 K. Review Under the Treasury and General Government Appropriations Act, 1999 L. Review Under the Treasury and General Government Appropriations Act, 2001 IX. Congressional Notification X. Rehearing XI. Approval by the Office of the Secretary of Energy I. Executive Summary In this final rule, the Department of Energy (DOE) is amending its regulations under section 216(h) of the Federal Power Act (16 U.S.C. 824p(h)) (FPA) to establish a Coordinated Interagency Transmission Authorizations and Permits Program (CITAP Program) under which DOE will coordinate and expedite Federal authorizations and environmental reviews required to site proposed electric transmission facilities, which may include reviews pursuant to the National Environmental Policy Act of 1969 (Pub. L. 91-190, as amended, 42 U.S.C. 4321 et seq. ) (NEPA), the National Historic Preservation Act (Pub. L. 89-665, as amended, 54 U.S.C. 30010 et seq. ) (NHPA), the Endangered Species Act of 1973 (Pub. L. 93-205, as amended, 16 U.S.C. 1531 et seq. ) (ESA), and evaluations necessary for authorizations under the Federal Land Policy and Management Act (Pub. L. 94-579, as amended, 43 U.S.C. 1701 et seq. ). DOE coordination under this final rule will increase the efficiency and effectiveness of the Federal authorization and review process for proposed electric transmission facilities by establishing pre-application procedures designed to collect the information needed to perform efficient and timely Federal authorization and environmental reviews, reducing duplication of effort through preparation of a single environmental review document as the basis for all Federal decisions, and setting binding schedules for the completion of all Federal authorizations and environmental reviews. In doing so, this final rule aims to reduce the time it takes to site and permit the electric transmission infrastructure needed to ensure the delivery of reliable, resilient and low-cost electricity to American homes and businesses. Actions to enable more rapid deployment of electric transmission are more important than ever. As DOE documented in its 2023 National Transmission Needs Study, additional transmission capacity is needed in nearly every region of the country to improve the reliability and resilience of electric service, alleviate high costs caused by transmission congestion and constraints that prevents low-cost energy from reaching customers, and access new low-cost low carbon energy supplies to serve increasing electricity demands. 1 Over the past decade additional transmission capacity has been added at half the rate of the previous three decades, at a time when electricity demand is increasing and new diverse sources of electricity generation are needed to serve that demand and meet Federal, State, and consumer goals to reduce greenhouse gas emissions from the electricity sector. 2 Accelerating the current pace of transmission infrastructure investment and deployment is needed to meet these objectives and will generate multiple benefits to the public, including improved reliability and resilience, lower electricity costs, additional economic activity, and reduced greenhouse gas emissions. By enabling rapid development of transmission capacity, the CITAP Program will help increase access to a diversity of generation sources, reduce transmission congestion and power-sector emissions, and deliver reliable, affordable power that future consumers will need when and where they need it. 1 United States Department of Energy, National Transmission Needs Study (Feb. 2023), available at: https://www.energy.gov/sites/default/files/2023-02/022423-DRAFTNeedsStudyforPublicComment.pdf. 2 Jenkins, J.D. et al. (2022) Electricity transmission is key to unlock the full potential of the Inflation Reduction Act, Zenodo. Available at: https://zenodo.org/record/7106176#:~:text=Previously%2C%20REPEAT%20Project%20estimated%20that%20IRA%20could%20cut,from%20electric%20vehicles%2C%20heat%20pumps%2C%20and%20other%20electrification. On August 23, 2023, in accordance with section 216(h) of the FPA and a May 2023 Memorandum of Understanding (MOU) among nine Federal agencies committing to expedite the siting, permitting, and construction of electricity transmission infrastructure through more effective implementation of section 216(h) of the FPA, DOE issued a notice of proposed rulemaking (NOPR), to establish the CITAP Program. (88 FR 57011). 3 Under the CITAP Program, the entity or individual heading the project (“project proponent”) will work with DOE and other Federal agencies to gather materials necessary to inform the completion of authorizations and environmental reviews. These materials include thirteen reports the project proponent will prepare that describe the proposed project and its potential impacts on resources including land, water, plant and animal life (“resource reports”); a summary of the proposed project that will include details on which Federal authorizations or permits may be necessary and the anticipated timeline to completion of acquiring the described authorizations and permits; and proposed project participation and public engagement plans, which will outline opportunities for the public to participate in project authorization decisions and ensure sufficient engagement with both communities of interest and relevant stakeholders. This process of collaborative information gathering is referred to as the “Integrated Interagency Pre-Application Process” or “IIP Process.” 3 The nine 2023 MOU signatory agencies are USDA, DOC, DOD, DOE, DOI, EPA, Federal Permitting Steering Improvement Steering Council (Permitting Council), CEQ, and the Office of Management and Budget (OMB). The 2023 MOU is publicly available at https://www.whitehouse.gov/wp-content/uploads/2023/05/Final-Transmission-MOU-with-signatures-5-04-2023.pdf. Under the CITAP Program, DOE will set intermediate milestones and ultimate deadlines for the review of relevant authorizations and environmental reviews that provide for their completion within two years and establish DOE as the lead agency for the preparation of a single environmental review document, in compliance with NEPA, that supports the decisions of all relevant Federal entities. 4 This final rule confirms the CITAP Program and the restructured and improved IIP Process as described in the NOPR and adopts revisions to the NOPR proposals in response to comments regarding issues such as the Federal evaluation timelines, approaches to environmental reviews, and levels of details required for the Program. 4 Section 900.2 of the final rule defines “Federal entity” as any Federal agency or department. That section also defines “relevant Federal entity” as a Federal entity with jurisdictional interests that may have an effect on a proposed electric transmission project, that is responsible for issuing a Federal authorization for the proposed project, that has relevant expertise with respect to environmental and other issues pertinent to or potentially affected by the proposed project, or that provides funding for the proposed project. The term includes participating agencies. The term includes a Federal entity with either permitting or non-permitting authority; for example, those entities with which consultation or review must be completed before a project may commence, such as DOD for an examination of military test, training or operational impacts. The IIP Process is a project-proponent-driven process. Accordingly, the time to complete the IIP Process and begin the time bound, two-year Federal authorization and environmental review period depends on the preparation and responsiveness of the project proponent. This final rule establishes a series of checkpoints in the IIP Process (the three anchor meetings described below) and requirements for the pre-application materials that project proponents must develop to proceed through the Process (principally, resource reports and public participation and engagement plans, which are to be developed with guidance from Federal entities). The timeline for completing the pre-application process and proceeding through these checkpoints will depend, in large part, on the readiness and responsiveness of project proponents. As discussed further below, DOE has revised the NOPR proposals in this final rule to reduce the time reserved for DOE to review and respond to the requested information within the IIP Process to just over six months. Coupled with the two-year timeline that DOE and signatories to the 2023 Memorandum of Understanding Regarding Facilitating Federal Authorizations for Electric Transmission Facilities (2023 MOU) agreed to for review of applications and related environmental review, DOE expects that the CITAP Program will substantially reduce the time necessary for permitting of transmission facilities. In response to the NOPR, DOE received 50 comments during the public comment period, as well as stakeholder input during the public webinar and additional briefing provided by the Grid Deployment Office in DOE that will be administering the CITAP Program. In this final rule, DOE is making several changes to the regulatory text proposed in the NOPR in response to public comments. DOE received 27 comments in support of the CITAP Program, and several specifically supporting the IIP Process, the Federal decision-making timeline, and the requirement for the thirteen resource reports. Commenters specifically lauded the resource reports for their early and meaningful public engagement components, their effectiveness in coordinating decision-making across different Federal agencies, and their essential role in allowing the subsequent authorization and environmental review processes to be completed within two years. Commenters also affirmed the need for DOE to serve as the Lead Agency for NEPA review, section 106 of the NHPA, and section 7 of the ESA for projects in the CITAP Program to ensure that its objective of making transmission permitting processing more effective and efficient is realized. The received comments were also instrumental in identifying opportunities to streamline the IIP Process further to ensure that these objectives are met. The IIP Process proposed in the NOPR would have provided, at a maximum, 240 days for DOE evaluation and determinations of completeness and readiness to move to the next steps in the process. In response to comments requesting more efficiency, in this final rule that timeline has been reduced by 55 days by streamlining notification and convening timelines to now total 185 days at a maximum. Additional reductions to documentation timelines, which do not impact decision making, total 45 days, reducing all IIP Process activity by 100 days. As noted previously, however, the total timeline to complete the IIP Process will vary in each individual case based on the project proponent's preparation and responsiveness and the project's readiness to proceed to Federal authorization and environmental reviews. Project proponents will move most quickly through the IIP Process and Federal authorization and environment review processes by ensuring their projects are ready to proceed and by ensuring they are responsive to DOE and Federal agency requests for information. Section VI of this document discusses several other major issues raised by commenters and provides DOE's responses. II. Background and Authority The electric transmission system is the backbone of the United States' electricity system, connecting electricity generators to distributors and customers across the nation. Electric transmission facilities often traverse long distances and cross multiple jurisdictions, including Federal, State, Tribal, and private lands. To receive Federal financial support or build electric transmission facilities on or through Federal lands and waters, project developers often must secure authorizations from one or multiple Federal agencies, which can take considerable time and result in costly delays. Recognizing the need for increased efficiency in the authorization process for transmission facilities, the Energy Policy Act of 2005 (Pub. L. 109-58) (EPAct) established a national policy to enhance coordination and communication among Federal agencies with authority to site electric transmission facilities. Section 1221(a) of EPAct added a new section 216 to Part II of the FPA, which sets forth provisions relevant to the siting of interstate electric transmission facilities. Section 216(h) of the FPA, “Coordination of Federal Authorizations for Transmission Facilities,” requires DOE to coordinate all Federal authorizations and related environmental reviews needed for siting interstate electric transmission projects, including NEPA reviews, permits, special use authorizations, certifications, opinions, or other approvals required under Federal law. Among other things, it authorizes DOE to act as the lead agency for Federal coordination and reviews and requires the Secretary of Energy, to the maximum extent practicable under Federal law, to coordinate the Federal authorization and review process with any Indian Tribes, multi-state entities, and State agencies that have their own separate permitting and environmental reviews. 16 U.S.C. 824p(h)(2)-(3). Relatedly, section 216(h) requires the Secretary to provide an “expeditious” pre-application mechanism for prospective project proponents; directs the Secretary to establish prompt and binding intermediate milestones and ultimate deadlines for the review of, and Federal authorization decisions relating to, the proposed facility; and provides a mechanism through which a project proponent or any State where the facility would be located may appeal to the President for review, if an agency fails to act within those deadlines or denies an application. 16 U.S.C. 824p(h)(4), (h)(6). The statute also directs the Secretary to prepare, in consultation with the affected agencies, a single environmental review document to be used as the basis for all decisions on the proposed project under Federal law, and to determine, for each Federal land use authorization that must be issued, whether the duration of such authorization is commensurate with the facility's anticipated use. 16 U.S.C. 824p(h)(5)(A); (h)(8)(A). As discussed in the proposed rule, in May 2023 DOE entered into an implementing MOU with eight other agencies to unlock these benefits. The 2023 MOU expanded upon prior efforts to ensure pre-construction coordination and provides updated direction to Federal agencies in expediting the siting, permitting, and construction of electric transmission facilities. DOE subsequently published a NOPR in August 2023 to update and expand on its existing pre-application mechanism provided in regulations at 10 CFR part 900. Through this rule, DOE amends its section 216(h) implementing regulations to more effectively implement this authority and better coordinate review of Federal authorizations for proposed interstate electric transmission facilities. For the reasons explained in the following sections, in this final rule, DOE adopts its proposal in the NOPR, with modifications discussed below. III. Summary of the Final Rule This final rule is needed for DOE to update its regulations implementing section 216(h) to establish the CITAP Program, improve the IIP Process, and provide for the coordinated review of applications for Federal authorizations necessary to site transmission facilities. DOE's previous implementing regulations structured the IIP Process around two anchor meetings: the Initial and Close-Out meetings. To inform Federal agency coordination, project proponents were required to submit a project summary, an affected environmental resources and impacts summary, a summary of early identification of project issues, and data including maps and geospatial information. Additionally, the regulations included a process for identifying the NEPA lead agency and for establishing a preliminary NEPA review schedule. These regulations did not establish DOE as the lead agency for NEPA review, nor address important environmental and resource reviews under NHPA or ESA. Notably, these regulations did not establish a process through which DOE would set binding milestones for environmental reviews and Federal permitting and authorization decisions. In this final rule, DOE first establishes a comprehensive and integrated CITAP Program. The CITAP Program is the vehicle through which DOE will implement its authority as defined in Section 216(h) of the FPA, beginning with the IIP Process through the DOE-led environmental review and including DOE's coordination of the schedule for the Federal decisions on permits and authorizations. Under the CITAP Program, DOE: (i) provides for an effective IIP Process to facilitate timely submission of materials necessary to inform Federal authorizations and related environmental reviews required under Federal law; (ii) sets intermediate milestones and ultimate deadlines for the review of such authorizations and environmental reviews; and (iii) serves as the lead agency for the preparation of a single environmental review document in compliance with NEPA, designed to serve the needs of all relevant Federal entities and effectively inform their corresponding Federal authorization decisions. These elements of the CITAP Program are described in more detail throughout this rule. Second, pursuant to the FPA, DOE makes the IIP Process a mandatory precondition for participation in the CITAP Program. A project proponent's participation in the IIP Process is necessary for the success of the other elements of the CITAP Program and for the Secretary's satisfaction of the statutory obligations imposed by section 216(h) and affords a unique opportunity for project proponents to provide essential information and to coordinate with Federal entities prior to submission of applications for Federal authorizations. DOE has determined that it will not be able to fulfill its role as lead agency under section 216(h)—including the establishment of binding deadlines—for projects that do not complete the IIP Process. DOE does not require the participation of any Federal or non-Federal entity in the IIP Process; rather Federal entities have agreed to participate through the 2023 MOU and non-Federal entities may participate at their discretion. As discussed further below, DOE concludes that the benefits of participating in the IIP Process, and the resulting access to the CITAP Program, justify the costs to project proponents. The CITAP Program will substantially accelerate the process by which transmission projects are permitted and developed, and the benefits of the expected reduction in permitting timelines are likely to significantly exceed the cost of participating in the IIP Process. Third, this final rule improves the IIP Process to ensure that it provides project proponents and Federal entities an opportunity to identify as early as possible potential environmental and community impacts associated with a proposed project. The IIP Process is intended to ensure that necessary information is provided to the relevant Federal entities in a timely and coordinated fashion; it is also intended to avoid the duplication of cost and effort that project proponents and Federal entities face in navigating the series of authorizations necessary to site a transmission line and to allow both the project proponent and the Federal entities to avoid time- and resource-consuming pitfalls that would otherwise appear during the application process. Accordingly, DOE requires that project proponents submit resource reports and public participation and engagement plans, developed with guidance from Federal entities, and participate in a series of iterative meetings to ensure that Federal entities have ample opportunities to provide this guidance. The resource reports are intended to develop data and materials that will facilitate Federal entities' review of the project proponent's applications under the applicable Federal statutes. The early engagement facilitated by the submission of public participation and engagement plans will inform a project proponent's development of a proposed project. This early engagement begins before an application is submitted to the Federal Government and provides opportunities for Tribes and communities to express their views early in the process and to share their concerns directly with project proponents. However, the IIP Process does not relieve the relevant Federal entities of their legal obligation to comply with applicable requirements to consult with Tribes and engage with communities. This rule provides that the total time for DOE reviews and responses in the IIP Process is 185 days. 5 Based on that timeline for DOE decision-making, DOE expects that a prepared and responsive project proponent could complete the IIP Process within a year. 5 This excludes meeting information summaries, which DOE does not categorize as review and response time that could impact a project timeline, because preparation of required information for subsequent IIP Process steps can happen in parallel. Fourth, pursuant to Congress's express directive in section 216(h)(4), DOE introduces the standard schedule and project-specific schedules, through which DOE will establish binding intermediate milestones and ultimate deadlines for Federal authorizations and related environmental reviews. The standard schedule identifies the steps generally needed to complete decisions on all Federal environmental reviews and authorizations for a proposed electric transmission project, including recommended timing for each step so as to allow final decisions on all Federal authorizations within two years of the publication of a notice of intent (NOI) to prepare an environmental review document. This document serves as a template for the development of project-specific schedules. During the IIP Process, DOE and relevant Federal entities will prepare a project-specific schedule, informed by the standard schedule, that establishes prompt and binding intermediate milestones and ultimate deadlines for the review of, and Federal authorization decisions relating to, a proposed electric transmission project, accounting for relevant factors particular to the specific proposed project, including the need for early and meaningful consultation with potentially affected Indian Tribes and engagement with stakeholders. Fifth, DOE simplifies the development of an administrative record by incorporating the IIP Process administrative file into a single docket that contains all the information assembled and utilized by the relevant Federal entities as the basis for Federal authorizations and related reviews. DOE will maintain that docket, which will be available to the public upon request except as restricted due to confidentiality or protected information processes. Access to, and restrictions of access to, the docket will be addressed at the time of project-specific implementation. Sixth, DOE amends its regulations to provide that DOE will serve as the lead NEPA agency and that, in collaboration with any NEPA joint lead agency 6 determined pursuant to procedures established by these regulations and the 2023 MOU and in coordination with the relevant Federal entities, DOE will prepare a single environmental review document to serve as the NEPA document for all required Federal authorizations. DOE will also serve as lead for consultation under section 106 of the NHPA and section 7 of the ESA for projects in the CITAP Program, unless the relevant Federal entities designate otherwise. As additional projects utilize the CITAP Program, DOE anticipates that it will be able to improve upon its NEPA processes, ultimately leading to greater efficiencies for both project proponents and Federal agencies. Relatedly, the rule provides that DOE and the relevant Federal entities shall issue, except where inappropriate or inefficient, a joint decision document. 6 As discussed in section V.D of this document, DOE is replacing the term “NEPA co-lead agency” from the proposed regulatory text with “NEPA joint lead agency” in this final rule. The change is non-substantive. For clarity and readability, DOE uses the term “NEPA joint lead agency” throughout the preamble in place of “NEPA co-lead agency” even when discussing a comment or document that originally referred to a “NEPA co-lead agency.” Finally, DOE provides that the primary scope of the CITAP Program is on-shore high-voltage or regionally or nationally significant transmission projects that are expected to require preparation of an environmental impact statement (EIS) and establishes procedures through which projects outside of that primary scope can seek a determination of qualifying-project status from the Grid Deployment Office on a case-by-case basis. IV. Tribal Sovereignty DOE affirms the sovereignty of Federally recognized Indian Tribes and confirms that this final rule makes no changes to Federal agencies' government-to-government responsibilities. Tribal sovereignty refers to Federally recognized Indian Tribes' original, inherent authority to govern themselves, their lands, and their resources. Because of their unique status as sovereigns, Federally recognized Tribes have a direct, government-to-government relationship with the Federal government. The United States has a general, ongoing trust relationship with Indian Tribes as well as with the Native Hawaiian Community. Neither section 216(h) nor this final rule in any way alters that relationship. Tribal and Native Hawaiian consultation is a process for communication between the Federal government and Indian Tribes and the Native Hawaiian Community that is grounded in the government-to-government or the government-to-sovereign relationship, respectively. Tribal and Native Hawaiian consultation may be required as part of compliance with section 106 of the NHPA, or may arise from other Federal authorities such as Executive Order 13007 or the Presidential Memorandum on Uniform Standards for Tribal Consultation (2022). Agencies often consult with Indian Tribes and the Native Hawaiian Community in conjunction with fulfilling their obligations under NEPA. Consistent with these requirements and authorities, during implementation of the CITAP Program, DOE commits to undertake Tribal and Native Hawaiian consultation as appropriate. Also as appropriate, DOE commits to designate Indian Tribes with special expertise regarding a qualifying project, including knowledge about sacred sites that the project could affect, that are eligible, to become cooperating agencies under NEPA, and to consult with Indian Tribes and Native Hawaiian Organizations as required by the NHPA in the Section 106 process. Finally, DOE clarifies that the IIP Process, resource reports, and other submissions are not intended to, nor will they, satisfy DOE's or other Federal agencies' legal obligations and responsibilities under the relevant statutes, such as NEPA, NHPA, and ESA. The Federal agencies remain legally responsible for their compliance with the applicable statutes. V. Terminology and Clarification Changes In this final rule, DOE has made a number of changes to ensure consistent use of terminology across part 900. A. “Project Area” v. “Study Corridor” v. “Route” The proposed rule used several terms related to areas. In this final rule, DOE has ensured that the usage of these terms is consistent. DOE clarifies here their meaning and use. For the area containing the study corridors selected by the project proponent for in-depth consideration and the immediate surroundings of the end points of the proposed electric transmission facility, DOE uses the term “project area.” For a location within a project area where multiple transmission line designs may be contemplated, DOE used the term “study corridor”; within the project area, there may be multiple study corridors. Within a given study corridor, DOE refers to “potential routes” or “route segments”; within the study corridor, there may be multiple potential routes or route segments. Notably, DOE revises the definition of project area from what was proposed by replacing “containing all study corridors” with “containing the study corridors selected by the project proponent for in-depth consideration” to clarify the scope of this term. Additionally, to clarify the role of study corridors, DOE added to the study corridors definition that “study corridor does not necessarily coincide with `permit area,' `area of potential effect,' `action area,' or other defined terms that are specific to types of regulatory review.” The proposed rule used multiple terms to refer to a route of an electric transmission line that is considered during the IIP Process, including “proposed route” and “potential route.” This final rule replaces these synonymous terms with “potential route.” B. “Potential Project” v. “Qualifying Project” v. “Transmission Facility” The proposed rule used several terms to refer to an electric transmission facility that is proposed to be sited and constructed, including “transmission facility” and “electric transmission facility.” This final rule replaces these terms with “proposed electric transmission facility,” which is shortened to “proposed facility” when the identity of the facility is clear from the context. Similarly, the proposed rule included a variety of phrases to refer to an electric transmission project, including “qualifying project,” “electric transmission project,” “proposed qualifying project,” “proposed undertaking” and “project.” This final rule replaces these terms with “proposed electric transmission project,” which is shortened to “proposed project” when the identity of the project is clear from the context. While the revision replaces the defined term “qualifying project” in a number of instances, the revision has no substantive effect, because any proposed electric transmission project that is accepted into the IIP Process must involve a proposed electric transmission facility that is a qualifying project. C. “Plants” v. “Vegetation” The proposed rule used several terms to describe plant life, such as “plant life,” “plants” and “vegetation.” DOE has revised this final rule to consistently use the term “plants,” except where the rule uses an established term of art such as “vegetation management” or for consistency with Resource Report naming across agencies. D. “NEPA Co-Lead Agency” vs “NEPA Joint Lead Agency” The proposed rule used the term “NEPA co-lead agency” to refer to a Federal entity that may be designated under § 900.11 to share the responsibilities of DOE as lead agency in preparing an environmental review document. DOE has revised the final rule to replace that term with “NEPA joint lead agency” to better conform with the terminology used in NEPA, as amended by Section 321 of the Fiscal Responsibility Act of 2023 (Pub. L. 118-5). The change is non-substantive and only reflects a difference in terminology. VI. Discussion of Comments A. General In response to the NOPR, DOE received 50 sets of comments from the following persons and groups: Advanced Energy United (AEU), Alan Leiserson, American Clean Power Association (ACP), American Council on Renewable Energy (ACORE), American Electric Power Service Corporation (AEP), Americans for a Clean Energy Grid (ACEG), Arizona Game and Fish Department (AZGFD), Arizona State Historic Preservation Office (Arizona SHPO), California Energy Commission and California Public Utilities Commission (CEC/CPUC), Center for Biological Diversity (CBD), Clean Air Task Force (CATF), Clean Energy Buyers Association (CEBA), ClearPath, Colorado Governor's Office, Conrad Ko, Conservation and Renewable Energy Coalition (CARE—comprised of the National Wildlife Federation, The National Audubon Society, Environmental Law and Policy Center, and The Nature Conservancy), Delaware Division of Historical and Cultural Affairs (Delaware SHPO), EarthGrid PBC, Edison Electric Institute (EEI), Environmental Defense Fund (EDF), Gallatin Power Partners, LLC (Gallatin Power), Grid United LLC (Grid United), Idaho Governor's Office of Energy and Mineral Resources, Idaho Power, James Birdwell, Kentucky SHPO, Kris Pastoriza, Land Trust Alliance (LTA), Large Public Power Council, Los Angeles Department of Water and Power (LADWP), mkron mkron, National Association of Manufacturers, National Association of Tribal Historic Preservation Officers (NATHPO), New Mexico Department of Cultural Affairs Historic Preservation Division (NM SHPO), New York Transmission Owners (NYTO), New York University School of Law Institute for Policy Integrity (Policy Integrity), Niskanen Center, Oceti Sakowin Power Authority (OSPA), Pew Charitable Trusts, PJM Interconnection, LLC (PJM), Public Interest Organizations (PIOs, comprised of Earthjustice, Natural Resources Defense Council, NW Energy Coalition, Southern Environmental Law Center, Sustainable FERC Project, and WeACT for Environmental Justice) (PIO), Santa Rosa Rancheria Tachi Yokut Tribe, Scott Cooley, Solar Energy Industries Association (SEIA), State of Colorado Governor's Office, State of Idaho Energy Office, Stoel Rives, LLP, StopPATH WV, Todd Simmons, VEIR, Inc, and an anonymous commenter. Of the 50 comments, 27 expressed general support for the proposed rule and many supported specific aspects, including the IIP Process, the Federal decision-making timelines, and the requirement for the thirteen resource reports. 7 Commenters specifically lauded the resource reports for their early and meaningful public engagement components, their effectiveness in coordinating decision-making across different Federal agencies, and their essential role in streamlining environmental permitting processes to two years. 7 Advanced Energy United; American Clean Power Association; American Council on Renewable Energy; American Electric Power Service Corporation; American Electric Power Service Corporation; Americans for a Clean Energy Grid; Arizona Game and Fish Department; California Energy Commission joint with California Public Utilities Commission; Clean Air Task Force; Clean Energy Buyers Association; Colorado Energy Office; Conrad Ko; Delaware State Historic Preservation Office; Edison Electric Institute; Environmental Defense Funds; Gallatin Power Partners, LLC; Grid United, LLC; New York Transmission Owners; Niskanen Center; PJM Interconnection, L.L.C.; Public Interest Organizations; Scott Cooley; Solar Energy Industries Association; State of Idaho; Stoel Rives; The Pew Charitable Trusts; and Todd Simmons. Six commenters, NATHPO, Santa Rosa Rancheria Tachi Yokut Tribe, StopPath WV, James Birdwell, ClearPath, and mkron mkron were not supportive of the rulemaking. The comments and DOE's responses are discussed in detail in the subsequent subsections. B. Purpose and Scope of Rule DOE's Proposal In the NOPR, DOE proposed to establish the CITAP Program; made the IIP Process a mandatory precondition to participate in the CITAP Program; described the procedures and timing of the IIP Process; provided a process to set deadlines and milestones for projects; designated DOE as the lead NEPA agency for the purposes of preparing a single environmental impact statement; provided for earlier coordination of and consultation between relevant Federal entities, relevant non-Federal entities, and others pursuant to section 106 of the NHPA; designated DOE as a co-lead agency for the section 106 process; and clarified applicability to qualifying projects. Finally, DOE proposed to include a provision stating that participation in the IIP Process does not alter any requirements to obtain necessary Federal authorizations for electric transmission facilities nor does it alter any responsibilities of the relevant Federal entities for environmental review or consultation under applicable law. Summary of Public Comments DOE received several comments regarding DOE's authority to establish the CITAP Program, the ability of the proposed CITAP Program to meet the goals established by Congress in EPAct 2005, and the scope of the proposed CITAP Program. Regarding DOE's authority to establish the CITAP Program, EDF, PIOs, and CATF observed that the CITAP Program is consistent with the statutory language of section 216(h) of the FPA and with the 2023 MOU. Pew Charitable Trusts expressed their support for several key elements of the proposed rule, including the creation of a new framework for coordinated Federal authorizations. PIOs commented that DOE's proposed rule appropriately effectuates the congressional intent underlying section 216(h) of the FPA, and that DOE has sufficiently explained its proposed changes in the rule text by demonstrating awareness of changing its policies and providing sound reasons for doing so. PIOs also noted that although agencies do not need to demonstrate that the reasons for the new policies are better than the reasons for the old policies, they believed DOE has done so in the proposed rule. On the other hand, NATHPO and the Santa Rosa Rancheria Tachi Yokut Tribe requested that DOE withdraw the proposed rule. NATHPO and the Santa Rosa Rancheria Tachi Yokut Tribe found the proposed rule “opaque” and stated that they were unable to determine if the rule represented a threat to Tribal Nations' cultural resources and sacred places. Additionally, NATHPO and the Santa Rosa Rancheria Tachi Yokut Tribe objected to the rule on the grounds that it contained “numerous fundamental flaws,” but only provided two examples, one concerning the Communities of Interest report and one concerning the Tribal Interests report. Specifically, regarding Communities of Interest, the commenters expressed concern not with the proposed rule text, but with a comment from DOE staff which the commenters believed indicated this resource report would fulfill NHPA “Section 106 responsibilities for determining the impact of projects on Tribal Nations' cultural resources and sacred places.” Regarding Resource Report 13, the commenters expressed concerns with a comment from DOE staff which the commenters believe indicated, contrary to the proposed rule text, that this resource report would not include “the effect of projects on Tribal Nations' cultural resources.” These concerns are discussed in further detail and addressed in sections VI.J and VI.L.xiii of this document. Finally, NATHPO and the Santa Rosa Rancheria Tachi Yokut Tribe argued that DOE did not effectively engage with Tribal Historic Preservation Officers (THPOs) while drafting the proposed rule. Regarding the ability of the proposed CITAP Program to meet the stated goals of coordinating Federal authorizations and completing environmental review within a 2-year schedule, PIOs stated they believe the proposed rule will improve efficiency in Federal permitting for transmission projects that are urgently needed to address the climate crisis, improve reliability, and reduce congestion, and that the rule will accelerate the development of infrastructure that will provide the foundation for a clean and equitable energy grid. Pew Charitable Trusts stated that it believes that the proposed rule offers an appropriately streamlined approach to coordinating and facilitating transmission project authorizations. Pew Charitable Trusts further noted that previous studies of various types of infrastructure projects and environmental reviews suggest that an open, transparent, and comprehensive review process can work to the benefit of the public and developers. Pew Charitable Trusts supported that the schedule can be altered by DOE depending on the complexity of the review and other factors. ACEG recommended adding “prompt and binding” to describe the milestones and deadlines DOE will set in the schedule for Federal decision-making. The State of Idaho agreed that Federal efforts to reduce the time required for transmission project developers to receive decisions on Federal authorizations are needed and agreed that such actions should be encouraged. However, it also cautioned that those efforts should be implemented in a way that avoids diminishing the benefits of such reform by the addition of new permitting processes or requirements. In contrast, StopPATH WV asked why the NOPR was written in a way that presumes project approval, expressed concern that it was not clear how this rulemaking would speed up timelines, and asserted that if agencies could not change the project or deny it, then this would be a bureaucratic waste of time. Kris Pastoriza requested clarification on how the CITAP Program would change the jurisdiction of the Federal Energy Regulatory Commission (FERC). Regarding DOE's role as a lead agency for environmental review and preparation of a single EIS, DOE received several comments in support of the role and the consistency of this designation with existing regulations and legislation. EDF commented that the rule is consistent with Section 107 of the Fiscal Responsibility Act of 2023, which amended NEPA to require the designation of a lead agency to coordinate and schedule environmental review, as well as the related amendments to NEPA implementing regulations proposed by the Council for Environmental Quality. AEP, SEIA, Pew Charitable Trusts, EEI, and CEBA each commented in support of DOE serving as the lead agency for developing a single environmental review document. SEIA noted that currently a lack of coordination among agencies causes unpredictability and inefficiency in the environmental review process and effective coordination will provide a more predictable and efficient process, a reduction in unnecessary delays and costs, and heightened allowance for more robust environmental reviews. ACEG recommended replacing the phrase “environmental impact statement” with “NEPA document” because that phrasing more closely matches the statutory language in section 216(h)(5)(A) and because it accounts for the breadth of reviews organized under the CITAP Program. EEI recommended that DOE must also rely on the expertise of Federal agencies to ensure certainty and minimize risk of post record decision litigation. Regarding the authority of the Director of the Grid Deployment Office to waive requirements, PIOs recommended establishing specific, transparent criteria by which the Director of the Grid Deployment Office can waive the review requirements for a proposed project that are deemed unnecessary, duplicative, or impracticable and further argued for the establishment of an appeal process for said waivers. PIOs further provided that if DOE declines to implement criteria and an appeals process that this final rule should eliminate the waiver provision. DOE Response In this final rule, DOE retains the proposal in the NOPR to establish the CITAP Program, which requires the IIP Process for CITAP Program participation, sets binding schedules for Federal decision making, and through which DOE will serve as lead agency for environmental review and document preparation. In response to comments, DOE makes minor changes to this final rule for clarification but retains the full intent and scope of the proposed rule. With respect to NATHPO's comment regarding outreach, DOE believes that it engaged with appropriate entities regarding the rulemaking. DOE met with the Advisory Council for Historic Preservation in developing the language of the proposed rule and specifically with respect to addressing potential impacts on cultural resources and consistency of the CITAP Program with the requirements of the NHPA. Further, DOE developed the NOPR with substantive engagement from other Federal entities through the interagency review process. DOE then provided a 45-day public comment period during which DOE noticed and provided a public webinar open to anyone to attend, and organized briefings with interested groups to introduce the proposed rule and listen to comments, to which NATHPO, THPOs, and State Historical Preservation Officers (SHPOs) were invited. In this final rule, DOE has made changes to provide additional clarity in the rule text and resolve ambiguity when possible. In particular, DOE clarifies certain issues relating to Tribal sovereignty, cultural resources, and the section 106 process in response to specific concerns raised by NATHPO, Santa Rosa Rancheria Tachi Yokut Tribe, and other commenters. In response to the State of Idaho's concerns and Kris Pastoriza's question regarding DOE implementing its coordinating authority, this final rule neither establishes new permitting requirements nor alters FERC's siting authority over transmission lines. Rather, DOE will be coordinating agencies' exercise of their existing authorities. This final rule maintains the NOPR provision that the IIP Process does not alter any requirements to obtain necessary Federal or non-Federal authorizations for electric transmission facilities. Similarly, DOE disagrees with the assertion that the proposed rule presumes project approval. The CITAP Program as described in the proposed rule and confirmed in this final rule coordinates and sets a schedule for Federal decision-making for qualified projects; it does not presume or require the outcome of such Federal decisions. Regarding DOE's schedule setting role in the CITAP Program, DOE agrees with ACEG's recommendation to align the language of this final rule with the authorizing statute and includes “prompt and binding” in the description of milestones in this final rule. Regarding DOE serving as lead agency for environmental review and development of a single EIS designed to serve the needs of all relevant Federal agencies and inform all Federal authorization decisions on the proposed qualifying project, DOE acknowledges that it will rely on other Federal agencies' expertise and believes the CITAP Program and IIP Process confirmed in this final rule will ensure this occurs. DOE agrees with ACEG's recommendation to align the language with the authorizing statute and changes “EIS” to “environmental review document” throughout this final rule. DOE makes no changes to the proposal to allow the Director of the Grid Deployment Office to waive requirements of the CITAP Program, nor does DOE adopt specific criteria for such waivers. The purpose of the CITAP Program and IIP Process is to allow DOE to perform a coordinating function for electric transmission facilities seeking Federal authorizations. Giving the Director the discretion to waive requirements of the CITAP Program helps ensure that this coordination function promotes efficiency and reduces duplication, as Congress intended in FPA section 216(h). In addition, it is important to note that a waiver granted by the Director under the CITAP Program would not waive Federal requirements for authorizations or permits. For these reasons, DOE is not persuaded that a lack of specific criteria for waivers in this final rule will substantively harm any entity or party. C. Qualifying Projects DOE's Proposal Section 216(h) of the FPA authorizes DOE to perform its coordinating function for all transmission facilities seeking Federal authorizations. In the NOPR, DOE proposed to prioritize the subset of these facilities that benefit the most from DOE's coordinating role and provide the most benefits to the American public from expeditious environmental review. In the NOPR, DOE proposed to define the subset of proposed electric transmission facilities for which to perform its coordinating function—called “qualifying projects”—by defining two types of qualification: qualification by attribute and qualification by request. For qualification by attribute (set out in paragraph (1) of the proposed definition of “qualifying project”), DOE proposed in the NOPR to categorize a proposed electric transmission facility as a “qualifying project” based on the presence of certain enumerated attributes: it must be high-voltage (defined as 230 kV or above) or “regionally or nationally significant”; it will be used for the transmission of electric energy in interstate or international commerce for sale at wholesale; it will need one or more Federal authorizations expected to require preparation of an environmental impact statement (EIS) pursuant to NEPA; it will not require authorization under section 8(p) of the Outer Continental Shelf Lands Act; the developer will not require a construction or modification permit from FERC pursuant to section 216(b) of the FPA; and the proposed transmission facility will not be wholly located within the Electric Reliability Council of Texas interconnection. DOE proposed that, if a proposed electric transmission facility did not qualify for the CITAP Program by attribute it could still qualify by request, as provided by paragraph (2) of the proposed definition of qualifying project and under the process set out in proposed § 900.3 of the NOPR. Under that process, DOE proposed that the project proponent file a request for coordination under the CITAP Program with the Director of the Grid Deployment Office. Then, the Director of the Grid Deployment Office, in consultation with the relevant Federal entities, determine, within 30 calendar days of receipt of the request, whether the proposed electric transmission facility is a “qualifying project.” In the NOPR, DOE proposed that proposed electric transmission facilities requiring a permit from FERC could be qualifying projects if the request came from the FERC Chair. DOE also proposed that projects proposed for authorization under section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq. ) independent of any generation project may be qualifying projects at the discretion of MOU signatory agencies. DOE proposed to exclude from both types of qualification, and from the CITAP Program altogether, any project proposed to be authorized under section 8(p) of the Outer Continental Shelf Lands Act in conjunction with a generation project and any project for which the proposed transmission facility is wholly located within the Electric Reliability Council of Texas interconnection. Summary of Public Comments DOE received several comments on the proposed definition of “qualifying project.” Starting with the qualification by attribute in paragraph (1) of the definition, DOE received several comments on the specific proposed attributes. Both AEP and Niskanen Center supported the proposed high-voltage threshold of 230 kV or above. On the other hand, CEC/CPUC opposed limiting eligibility based on a voltage threshold and instead suggest expanding eligibility to proposed electric transmission facilities at any voltage level. With regard to DOE's proposal for qualification by attribute to require that a proposed electric transmission facility that does not satisfy the voltage threshold must be “regionally or nationally significant,” both Niskanen Center and ClearPath asserted that this alternative criterion is ambiguous. ClearPath recommended removing the alternative criterion altogether and only allowing for high-voltage transmission lines ( i.e., those that satisfy the 230 kV or above threshold) to be “qualifying projects.” Niskanen Center recommended instead that DOE adopt factors that it will consider when determining whether a proposed transmission facility is “regionally or nationally significant.” Specifically, Niskanen Center suggested these factors: “(i) a reduction in the congestion costs for generating and delivering energy; (ii) a mitigation of weather and variable generation uncertainty; (iii) an enhanced diversity of supply; (iv) any reduced or avoided carbon emissions from the increased use of clean energy; and (v) an increased market liquidity and competition.” Moving to the other attributes, CEC/CPUC asked DOE to clarify how it will determine whether all or part of a proposed electric transmission facility will be “used for the transmission of electric energy in interstate or international commerce for sale at wholesale.” Further, CEC/CPUC recommended that DOE expand the attribute list to include a proposed electric transmission facility that will be used in intrastate commerce because, according to CEC/CPUC, intrastate transmission lines can traverse lands managed by several Federal agencies, such that DOE coordination under the CITAP Program would provide benefits to these projects as well. In the alternative, CEC/CPUC asked that DOE clarify how a proposed intrastate transmission facility, such as an onshore, intrastate transmission facility built to support offshore wind development, that traverses Federal lands, could be a “qualifying project.” On the proposed attribute that the proposed electric transmission facility would need one or more Federal authorizations that require preparation of an EIS pursuant to NEPA, AEP supported the proposal whereas Niskanen Center and PIOs recommended expanding the proposal to include proposed electric transmission facilities for which preparation of either an environmental assessment (EA) or an EIS is anticipated. PIOs also encouraged DOE to define which proposed electric transmission facilities are “expected” to require preparation of an EIS and which are expected to require preparation of an EA. In support of the recommendation to expand eligibility to include proposed electric transmission facilities for which preparation of an EA is expected (in addition to those for which preparation of an EIS is expected), PIOs argued that FERC regulations only require preparation of an EA for proposed electric transmission facilities sited within an existing right-of-way. If DOE adopts the proposal without PIOs' recommended expansion, PIOs explained that such proposed electric transmission facilities may be excluded from the CITAP Program, resulting in the CITAP Program not providing its full purported benefits. Similar to Niskanen Center and PIOs, CEC/CPUC recommended that DOE expand the definition of “qualifying project” such that any proposed electric transmission facility for which multiple Federal agency approvals will be required are eligible, regardless of what type of document is required under NEPA. On qualification by request— i.e., when a project proponent seeks qualifying-project status through a request to the Director of the Grid Deployment Office—several commenters expressed concern about DOE's level of discretion in the proposal. EEI requested examples of the types of proposed electric transmission facilities that may be deemed “qualifying projects” by request. PIOs argued that the proposal appears to be wholly discretionary, making it difficult for project proponents, relevant regulators, and members of the public to understand what proposed electric transmission facilities may be eligible to participate in the CITAP Program. PIOs suggested that DOE establish criteria for how DOE will evaluate requests, which would assist project proponents in making well-grounded requests for participation in the CITAP Program. According to PIOs, these criteria should be: if the proposed electric transmission facility will benefit from DOE's coordination in terms of expeditious authorizations; if DOE's coordination will provide benefits that exceed the costs; and, if Federal and non-Federal regulators have sufficient resources to dedicate to the project's participation in the CITAP Program. PIOs also suggested that DOE require project proponents to explain what portions of their proposed electric transmission facility do not meet the “qualifying project” definition ( i.e., the attributes) and how the CITAP Program will facilitate Federal authorizations for the project or be otherwise beneficial. Further, PIOs recommended that DOE adopt a requirement that the Director of the Grid Deployment Office explain in writing the determination of whether a project is deemed a “qualifying project” by request. PIOs also recommended that if DOE rejects a request to participate in the CITAP Program, project proponents should be allowed to appeal the decision to the Secretary of Energy. Similarly, ACP commented that the proposed rule lacked clarity regarding what can qualify as an “other project” and recommended that DOE provide further detail on the aspects which it will consider when making this determination. As proposed, qualification by request included a limitation in § 900.3(d): for a proposed electric transmission facility seeking a permit from FERC pursuant to section 216(b) of the Federal Power Act, DOE may only consider a request for coordination if the requestor is FERC acting through its chair. ACORE recommended that DOE provide more detailed guidance for this category of proposed electric transmission facilities and for DOE to authorize relevant project proponents to submit a petition requesting such a request from the FERC Chair. Likewise, CEBA urged DOE to clarify the relationship between the section 216(b) and section 216(h) processes and to explain how the FERC Chair can request that a proposed electric transmission facility be eligible to participate in the CITAP Program under section 216(h). Both qualification by attribute and qualification by request included limitations related to offshore transmission facilities. For qualification by attribute, one listed attribute provided that the proposed electric transmission facility would not require authorization under section 8(p) of the Outer Continental Shelf Lands Act. Likewise, for qualification by request, DOE proposed to exclude electric transmission facilities proposed to be authorized under section 8(p) of the Outer Continental Shelf Lands Act in conjunction with a generation project. However, projects proposed to be authorized under section 8(p) of the Outer Continental Shelf Lands Act could be allowed at the discretion of the MOU signatory agencies (as defined in the proposed rule) if the proposed offshore transmission facility is independent of any generation project. A number of commenters expressed concerns regarding DOE's treatment of proposed offshore transmission facilities. Broadly, ACP, ACORE, and PIOs contended that DOE must explain why the limitations on offshore transmission facilities are included and how the CITAP Program will apply to offshore transmission facilities in practice. ACP and ACORE suggested that DOE establish a process to allow potential State-proposed transmission facilities to participate in the CITAP Program before a project developer is selected and include a process to enable the Bureau of Ocean Energy Management or a State to engage or request that a project participate in the CITAP Program. More specific to DOE's proposal, NYTOs opposed the offshore transmission facility-related attribute, asserting that its inclusion prevents proposed offshore transmission facilities from benefiting from the CITAP Program for project sections located closer to shore as well as for project sections that fall under the scope of the Outer Continental Shelf Lands Act. PIOs suggested removing the limitations in qualification by request and instead allowing for proposed offshore transmission facilities to take advantage of the CITAP Program without the approval of the MOU signatories. At a minimum, PIOs suggested removing the limitation that proposed offshore transmission facilities tied to generation projects cannot participate in the CITAP Program. Moreover, both PIOs and ACORE requested that DOE revise its proposal from requiring agreement from all MOU signatories and instead only requiring agreement from relevant MOU signatories participating in the environmental review or authorization. Finally, other commenters proposed revisions to DOE's proposed definition of “qualifying project” based on advanced transmission technologies and undergrounding. VEIR recommended that DOE include superconductors in its definition of “qualifying projects” because, according to VEIR, a superconductor can transfer more power at lower voltages than qualifying high-voltage transmission lines. EarthGrid asserted that underground transmission projects should be considered as a distinct category. And CBD suggested that DOE require that a proposed electric transmission facility be strictly necessary and that non-transmission alternatives could not adequately address the issue addressed by the proposed electric transmission facility before allowing the project to participate in the CITAP Program. DOE Response In this final rule, DOE retains the proposal in the NOPR to provide two types of qualification (qualification by attribute and qualification by request) for proposed electric transmission facilities to be “qualifying projects.” In response to commenters, DOE is making the following revisions to the details of those two types of qualification. First, consistent with commenters' suggestions, DOE has adopted factors that DOE may consider when determining that a proposed electric transmission facility is a qualifying project. For qualification by attribute, this final rule includes factors that DOE may consider when assessing if a proposed electric transmission facility is regionally or nationally significant. Similarly, for qualification by request, this final rule includes factors that DOE may consider when assessing if a proposed electric transmission facility is a qualifying project. Second, this final rule removes the requirement that projects seeking a permit from FERC under FPA section 216(b) may only be accepted into the CITAP Program if requested by FERC acting through its chair and states that the coordination between FERC and DOE on projects seeking permits under FPA section 216(b) will be consistent with the relevant delegation order governing DOE's coordination authority under FPA section 216(h), which may change from time to time. Third, this final rule also states that if DOE does not determine that a project is qualifying project, DOE will provide the reasons for its finding in writing. DOE believes that the definition of “qualifying project” adopted in this final rule appropriately balances the value of focusing DOE's resources on those proposed electric transmission facilities for which Federal coordination will be most impactful with the aims of the broad grant of authority to DOE under FPA section 216(h). By initially limiting the definition of “qualifying project” to those proposed electric transmission facilities that qualify by attribute, i.e., those that are high-voltage or regionally or nationally significant and that possess the other listed attributes, DOE is targeting for Federal coordination those complex proposed electric transmission facilities that will reap the greatest benefits from the CITAP Program. DOE believes that these proposed electric transmission facilities are also likely to provide substantial benefits to consumers in the form of congestion relief, emissions reductions, and increased reliability and resilience, among other benefits, to ensure reliable, affordable power can be delivered to consumers when and where they need it. Qualification by request provides DOE with additional flexibility to consider whether projects that do not meet the targeted attributes may be appropriate for participation in the CITAP Program as well, consistent with DOE's authority under section 216(h) to coordinate for all transmission facilities seeking Federal authorizations. As for specific aspects of the NOPR proposal, starting with qualification by attribute and the voltage threshold therein ( i.e., proposed electric transmission facilities must be 230 kV or above), DOE declines to adopt the suggestion by CEC/CPUC to expand eligibility to proposed transmission facilities at any voltage level. Such an expansion, although permissible by the statute, would not be the most effective use of DOE's authority because it would likely result in DOE providing coordination for proposed transmission facilities that would benefit less from the program. For example, DOE could be obligated to provide coordination for less complex proposed electric transmission facilities for which there is a low risk of protracted Federal authorization and review timelines and thereby have fewer resources to dedicate to those transmission facilities with more complex permitting requirements and/or more Federal authorizations and thus more risk of protracted review timelines in the absence of DOE coordination. Nonetheless, DOE acknowledges that voltage alone does not determine complexity nor whether the proposed transmission facility may benefit from participation in the CITAP Program. That is why this final rule provides multiple avenues for lower-voltage proposed transmission facilities to be “qualifying projects,” whether because they are “regionally or nationally significant” or because they are determined to be qualifying projects by request to the Director of the Grid Deployment Office, on a case-by-case basis. In addition, satisfying the high-voltage threshold alone does not make a proposed transmission facility a “qualifying project;” it still must demonstrate the attributes listed in this final rule. As for the alternative criterion under qualification by attribute—whether the proposed transmission facility is “regionally or nationally significant”—DOE declines to remove this criterion but agrees that the proposal was ambiguous and therefore adopts clarifying revisions in this final rule. DOE believes that this alternative to the voltage threshold is important to ensure that lower-voltage transmission facilities that may benefit from participation in the CITAP Program have an avenue to be “qualifying projects,” as explained in the prior paragraph. Nevertheless, DOE appreciates commenters' requests for greater transparency and thus adopts factors to guide DOE's determination whether a proposed transmission facility is “regionally or nationally significant.” In particular, DOE adopts regulations in this final rule that provide that, in determining whether a proposed transmission facility is “regionally or nationally significant,” DOE will consider whether a proposed transmission facility will reduce congestion costs, mitigate uncertainty, and enhance supply diversity. These factors are consistent with the overarching goals of focusing the CITAP Program on proposed transmission facilities for which DOE's coordination will be most impactful. The adopted regulations provide that DOE may consider other factors as well. This discretion is important to ensure that DOE has flexibility to best use its resources to provide Federal coordination where consistent with the goals of the CITAP Program and available resources. As explained in DOE's 2023 Needs Study, transmission infrastructure improvements can benefit consumers by improving grid reliability, resource adequacy, and resilience of the power system, as well as reducing congestion and losses and enabling access to clean, diverse energy supply. While transmission that addresses unnecessarily high costs to consumers may be regionally or nationally significant, so too may be transmission that reduces the vulnerability of the electric system to disruptive events, which risk high costs and service interruptions. The benefits of transmission also extend beyond the power system—to increased employment, tax revenues, and other economic development benefits. These benefits are all relevant to DOE's determination of whether a transmission line is “regionally or nationally significant.” Although Niskanen Center suggested two additional factors for DOE to list as part of its determination as to whether a proposed electric transmission facility is “regionally or nationally significant” beyond those adopted herein (specifically focused on reduced or avoided carbon emissions and increased market liquidity and competition from the proposed electric transmission facility), DOE declines to adopt additional factors. For one, project proponents are unlikely to have substantial information at the stage of development recommended for initiation of the IIP Process for DOE to evaluate vis-à-vis these recommended factors. If such information is available, though, DOE may nevertheless consider it because, as explained above, DOE is maintaining discretion to consider other factors as part of its assessment of whether a proposed transmission facility is “regionally or national significant.” As for the proposed attribute concerning whether all or part of a proposed transmission facility will be “used for the transmission of electric energy in interstate or international commerce for sale at wholesale,” DOE declines to provide further clarification in this final rule because this determination will be made based on the facts and circumstances of the proposed electric transmission facility seeking DOE coordination at the time of application. DOE expects that this determination will be informed by relevant precedent interpreting similar language in other provisions of the FPA, though DOE is not bound by that precedent in interpreting its own regulatory language. DOE declines to expand the listed attributes of a qualifying proposed electric transmission facility to also include intrastate transmission facilities. As previously explained, DOE's intent in defining a subset of electric transmission facilities for which DOE will conduct Federal coordination is to focus on where the CITAP Program is likely to be most impactful. While intrastate transmission facilities can have significant benefits, they are generally less likely to be the types of facilities that DOE expects will reap the greatest benefits from DOE's coordination or that would provide the greatest benefits to consumers as a result of more efficient permitting of critical transmission infrastructure. Nonetheless, DOE does not prohibit proponents of intrastate transmission facilities ( e.g., high-voltage intrastate transmission facilities that may require multiple Federal authorizations) from seeking qualification by request. Regarding the proposed attribute that a proposed electric transmission facility would need one or more Federal authorizations that require preparation of an EIS pursuant to NEPA, DOE declines to make the changes suggested by Niskanen Center, PIOs, and CEC/CPUC. As explained above, DOE is aiming to identify as “qualifying projects” those proposed electric transmission facilities for which DOE coordination under the CITAP Program is likely to be most impactful and to yield the greatest benefits for consumers. DOE believes that focusing on proposed electric transmission facilities for which preparation of an EIS is expected is an appropriate factor for narrowing the list of potential electric transmission facilities for DOE coordination because an EIS is typically needed for more complex projects. Preparation of an EIS is also a longer, more involved process and one that poses a greater risk of delays absent interagency coordination. Note that, although qualification by attribute is limited to those for which an EIS is likely required, qualification by request does not have this limitation, such that a project proponent is permitted to request DOE coordination even if an EIS is not expected and seek a determination from the Director of the Grid Deployment Office on eligibility for the CITAP Program. As for the request that DOE define which proposed transmission facilities are expected to require an EIS, DOE declines to do so in this final rule. DOE and its fellow agencies will apply NEPA and its implementing regulations and will follow applicable regulations pursuant to NEPA, as will other relevant Federal agencies, to determine whether an EIS needs to be prepared, and those same regulations will inform any expectations as to whether an EIS is likely to be required. Regarding qualification by request, DOE agrees with commenters that criteria regarding the types of proposed electric transmission facilities that may be deemed “qualifying projects” under this process would be beneficial to project proponents, and ultimately to DOE in identifying the subset of projects that best suit the CITAP Program's goals. Consequently, DOE adopts criteria in this final rule that the Director of the Grid Deployment Office may consider when evaluating a request to determine whether a proposed electric transmission facility is a “qualifying project.” DOE will consider whether a proposed electric transmission facility will benefit from coordination under the CITAP program, reduce congestion costs, mitigate uncertainty, and enhance supply diversity. These factors are consistent with the overarching goals of focusing the CITAP Program on proposed electric transmission facilities for which DOE's coordination will be most impactful, to the ultimate benefit of consumers via reduced congestion and enhanced reliability and resilience, among other benefits. DOE believes the remaining discretion for DOE to determine which proposed electric transmission facilities are “qualifying projects” is consistent with the statutory framework that permits DOE to coordinate the Federal authorizations necessary for any transmission facility and the aim of the section 216(h) itself, notably the timely permitting of transmission projects. DOE agrees that it should explain its determinations of whether qualification by request is granted in writing and consequently establishes a requirement for such an explanation in this final rule. DOE makes no revisions in response to the suggestion that an appeals process be incorporated into the rule text for non-qualifying projects. DOE notes that any project not accepted under qualification by attribute may seek qualification by request of the Director of the Grid Deployment Office, and that this final rule does not disallow projects from resubmitting materials. Turning to the proposed limitation to qualification by request for a proposed electric transmission facility seeking a permit from FERC pursuant to section 216(b) of the FPA, which stated that DOE may only consider a request for coordination if the requestor is FERC acting through its chair, DOE revises its proposal in this final rule to clarify that the request for Federal coordination for proposed transmission facilities seeking a permit from FERC under section 216(b) must be consistent with Delegation Order No. 1-DEL-FERC-2006 or any similar, subsequent delegation to FERC, which depend on the mutual and continuing agreement of both agencies. With respect to CEBA and ACORE's requests for more detail on the procedures for the FERC Chair to request that a proposed electric transmission facility be eligible to participate in the CITAP Program, such procedures will depend on the state of any delegations of DOE's authority under FPA section 216(h); therefore, DOE finds that clarifying these procedures is best done through guidance outside the rulemaking process. Similarly, with respect to ACORE's request to be able to submit a petition for the FERC Chair to request DOE to consider a request for assistance under the proposed section, the removal of that section in this final rule obviates the need for such a process to be established by DOE and the establishment of any processes at FERC are outside the scope of this rulemaking. With respect to the treatment of offshore transmission facilities, commenters expressed concerns with the limitations related to offshore transmission facilities and sought further explanation, at a minimum. DOE adopts the proposal to exclude transmission facilities proposed to be authorized under section 8(p) of the Outer Continental Shelf Lands Act in conjunction with a generation project. DOE and the 2023 MOU signatories determined that offshore transmission facilities connected to generation projects should not be eligible for participation in the CITAP Program because the authorizations of, and permits for, these transmission facilities are typically included in the authorizations and permits for the connected generation projects. Coordinating Federal authorizations for generation projects, and reducing timelines for joint transmission-generation projects with interdependent permitting requirements, are beyond the scope of the 2023 MOU and the CITAP Program. This limitation allows DOE to focus its resources on addressing known challenges for transmission facility permitting. With respect offshore transmission facilities whose Federal authorizations and project development are independent of generation development, DOE is finalizing an approach consistent with the 2023 MOU. For qualification by attribute, DOE declines to remove the requirement that the proposed electric transmission facility will not require authorization under section 8(p) of the Outer Continental Shelf Lands Act. Excluding offshore transmission from the qualification by attribute will facilitate a more efficient allocation of resources. Shared offshore transmission is a nascent industry with unique and unsettled permitting issues. Considering proposed offshore transmission facilities as potentially eligible for the CITAP Program in consultation with the MOU signatories, which is provided under qualification by request, will allow DOE to adopt a more tailored and responsive approach to this new industry. In order for offshore transmission facilities to be eligible for the CITAP Program via qualification by request, DOE proposed, and adopts here, the requirement that the MOU signatories must agree to DOE coordination for offshore transmission facilities for the reasons explained in the prior paragraph. DOE declines to only require agreement from those MOU signatories that are authorizing Federal agencies. DOE is unpersuaded that a single, non-authorizing agency would unilaterally hold up a proposed offshore transmission facility's eligibility for the CITAP Program, such that those agencies should not be allowed to participate in the eligibility decision making. Instead, DOE believes that continuing the coordination demonstrated by the MOU is consistent with the spirit of the CITAP Program and important for keeping all relevant agencies involved in ongoing development of offshore transmission permitting. DOE also declines to establish a process to allow potential State-awarded transmission facilities to participate and to enable the Bureau of Ocean Energy Management or a State to request that a project participate, as ACP and ACORE suggested. At this time, DOE is focusing the CITAP Program on addressing well-documented and understood Federal authorization issues via improved coordination for a subset of proposed electric transmission facilities for which DOE coordination is likely to be most impactful. DOE is not persuaded that creating a process for entities other than the project proponent to request participation for a proposed project in the CITAP Program is necessary to provide the benefits of the program to a project. DOE may consider revising its approach to offshore transmission facilities in future rulemakings pursuant to FPA section 216(h). Concerning commenters' proposed revisions to the definition of “qualifying project” based on advanced transmission technologies or undergrounding, DOE declines to adopt such revisions. As explained throughout this section, DOE's approach is targeted towards proposed transmission facilities that are likely facing the types of permitting challenges for which FPA section 216(h) and the CITAP Program were created. Commenters provide no evidence to suggest that superconductor permitting or undergrounding are unique as to warrant special recognition within the definition of “qualifying project.” This is not to say that a proponent of a transmission facility that contains these features cannot also be a “qualifying project” under DOE's adopted definition. Finally, DOE declines to adopt CBD's suggestion that DOE impose a necessity test for proposed electric transmission facilities compared to non-transmission alternatives as a gateway to participation in the CITAP Program. Congress directed DOE to coordinate the authorizations necessary for the siting of transmission lines. DOE understands that to mean that Congress believes transmission lines are necessary and that Congress did not intend to supplant existing transmission planning processes. Through the CITAP Program, DOE will coordinate authorizations for transmission lines, which remain subject to the statutes relevant to their authorization, including NEPA. Through these statutes and their associated environmental review processes that DOE will coordinate, reasonable alternatives will be considered by the appropriate Federal agency as appropriate, which may or may not include non-transmission alternatives. D. Purpose and Scope of the IIP Process DOE's Proposal Under the proposed rule, the IIP Process is intended for qualifying project proponents who have sufficiently advanced their project such that they have identified potential study corridors and/or potential routes and the proposed locations of any intermediate substations. DOE proposed to establish the IIP Process as a mandatory prerequisite for coordination under the CITAP Program and require the submission of thirteen project proponent resource reports that will serve as inputs, as appropriate, into the relevant Federal analyses and facilitate early identification of project issues. Within these resource reports, DOE proposed to require reasonably foreseeable information in three of them: in the General Project Summary, DOE proposed to require reasonably foreseeable plans for future expansion of facilities and specific generation resources that are known or reasonably foreseen to be developed or interconnected; in the air quality and noise effects report, DOE proposed to require estimates on reasonably foreseeable emissions construction, operation, and maintenance, and reasonably foreseeable changes in greenhouse gas emissions and indirect emissions; and in the Reliability, Resilience, and Safety report, DOE proposed to require a description of the reasonably foreseeable impacts from a failure of the proposed facility. DOE also proposed to also establish the IIP Process as an iterative process anchored by three meetings, which function as milestones in the process: the initial meeting, review meeting, and close-out meeting. DOE proposed in the NOPR to require the project proponent to submit an initiation request containing certain information to DOE to initiate the IIP Process, including a summary of the qualifying project not to exceed 10 single-spaced pages and a project participation plan not to exceed 10 single-spaced pages. DOE also proposed to require the proponent to submit meeting review requests containing certain information to DOE prior to each of the three meetings. DOE proposed that the project proponent submit incomplete information so long as an acceptable reason for the absence of the information and an acceptable timeline for filing it is provided, and it provided the Director with discretion to waive any requirement imposed on a project proponent if the Director determines that that the requirement is unnecessary, duplicative, or impracticable under the relevant circumstances. The proposed rule explained that the IIP Process would ensure early interaction between the project proponent, relevant Federal entities, and relevant non-Federal entities, and that DOE would, to the maximum extent practicable and consistent with Federal law, coordinate the IIP Process with any relevant non-Federal entities. DOE also proposed in the NOPR that the IIP Process did not preclude additional communications between the project proponent and relevant Federal entities outside the IIP Process meetings. Additionally, the NOPR proposed to provide a process by which a person may submit confidential information during the IIP Process or to request designation of information containing Critical Electric Infrastructure Information (CEII); these provisions established the mechanisms through which the IIP Process complied with 10 CFR 1004.11 and 1004.13. In the NOPR, DOE specifically sought comment on the page limitations and on the resource report requirements to avoid, to the maximum extent practicable, duplication in these requirements. Summary of Public Comments DOE received several comments that addressed the purpose and scope of the IIP Process including comments on the IIP Process as a prerequisite for DOE coordination; the level of detail required during the IIP Process and in resource reports, including page limits and reasonably foreseeable impacts; the role of the three anchor meetings; participation of Federal and non-Federal entities; and protection of confidential information and/or CEII. Comments to specific resource report requirements are addressed in section VI.L of this document on an individual report basis. DOE received many comments in support of the proposed IIP Process. Grid United, PIOs, State of Colorado Governor's Office, EEI, ACP, ACORE, PJM, and CEBA expressed support for the revitalized IIP Process proposed in the NOPR. PIOs stated that the IIP Process will help Federal agencies coordinate information exchange that is necessary to fulfill their individual statutory mandates, avoid duplication of cost and effort for project proponents, and reduce the potential for unexpected delays later in the permitting process. PIOs also agreed with DOE that, by increasing the pace of transmission development through the IIP Process, the proposed rule will confer significant public benefits. The State of Colorado Governor's Office recognized that the IIP Process would provide developers a uniform mechanism for projects to identify siting constraints and opportunities, engage with Indian Tribes, local communities, and other stakeholders, and to gather information that would serve as inputs, as appropriate, into Federal authorization decisions. EEI and ACP recognized the potential benefits to be gained from the IIP Process and encouraged DOE to move swiftly to both finalize the proposed approach and commit to working closely with project proponents to ensure that the IIP Process produces the promised results. EEI stated its belief that by collaborating with electric companies, DOE can significantly increase the efficiency of the process and reduce the time needed for NEPA reviews while ensuring environmental integrity and project deployment. ACP and ACORE both supported the mandatory nature of the IIP Process as a prerequisite to participation in the CITAP Program, provided that it serves its intended objective of enhancing coordination, reducing permitting timelines, and minimizing duplication. ACP and ACORE noted that the IIP Process's early environmental review could conserve resources for public and private participations. PJM noted that the requirement should help avoid the current multi-agency piecemeal approach. DOE also received comments generally in support of the establishment of the resource reports. AEU and the CARE Coalition expressed support for the thirteen resource reports proposed by DOE. AEU commented that the resource reports provided a comprehensive and wide-ranging analysis of the project. CARE Coalition commented that the resource reports were sufficiently comprehensive and detailed to enable Federal agencies, State and Tribal authorities, stakeholders, and the public to adequately review the project. AZGFD explained that the heightened consideration for resources through submitting 13 resource reports early in the process enables coordination and prevents implementation delays. It also stated that in some cases, adequate assessment of resources could take multiple years and multiple revisions before Federal environmental review is complete. However, while commenters were broadly supportive, some commenters suggested changes to the level of detail required during the IIP Process and resource reports, indicating these would add flexibility and avoid what they perceived as unnecessary or burdensome tasks. Pew Charitable Trusts, in response to potential opposition to the level of information required in the pre-application phase, cited previous studies that conclude that a transparent and thorough siting process can benefit both the public and developers. AEP emphasized that an IIP Process should only be mandatory if it (1) informs the NEPA process and (2) minimizes duplication by project proponents and Federal entities. AEP noted that the IIP Process should also conserve the resources of project developers by actively encouraging permitting authorities to rely on the IIP Process's early environmental review. AEP also urged DOE to coordinate with transmission developers to enhance efficiency and protect environmental objectives. ACP cautioned against a burdensome pre-application phase and encouraged DOE to demand a level of information that is appropriate for NEPA scoping and consistent with the project's development. ACEG agreed with these assertions, adding that the level of information required in the IIP Process should be appropriate to support the relevant Federal entities' reviews and consultations, including under NEPA, ESA, and NHPA. ACEG emphasized the importance of reasonable and flexible demands. Similarly, CEBA cautioned against an IIP Process that was too complicated or time consuming. ACORE noted that the timeline for the submission of information in the IIP Process should align with when developers have the needed information and recommended that DOE provide some flexibility in those instances when the full scope of the information required in the IIP reports is not yet available. The NYTOs also suggested DOE should ensure that its data requests and sufficiency determinations align with the reliable data and information standards now set forth in sections 102(E) and 106(b)(3) of NEPA. These NEPA standards emphasize the use of reliable data and explicitly provide in NEPA section 106(b)(3)(B) that in making a determination regarding the level of review under NEPA, an agency “is not required to undertake new scientific or technical research unless the new scientific or technical research is essential to a reasoned choice among alternatives, and the overall costs and time frame of obtaining it are not unreasonable.” Similarly, Grid United recommended that DOE should consider section 106(b)(3) of NEPA in determining the level of information that is sufficient for each IIP Process meeting. AEP cautioned against a CITAP or IIP Process that duplicates or exceeds State regulatory application requirements. Several comments addressed the level of detail required in the resource reports and the burden this would represent to the project proponent. ACP expressed concerns with the level of time and effort required for the development and submission of DOE's proposed resource reports so early in the process, when their usefulness in NEPA's EIS review process is uncertain, and urged DOE to consider that there may be limited information available in the early stages of permitting. ACP requested that the mandatory “shall” language be changed to “should” or “to the extent practicable.” ACEG, SEIA, and CEBA noted that DOE needs to strike a balance between requiring enough information to be helpful in streamlining the review but not making requirements so strict that project proponents are discouraged. ACEG stated that information required in the resource reports must be limited to the information available at the time of submission, as this is a preliminary stage and developers should not be discouraged from applying if they do not yet have all the information. ACEG recommended that the detail of each resource report must be commensurate with the level of available information at the time of the submission. Relatedly, DOE received several comments regarding the requirements that project proponents account for reasonably foreseeable effects. PIOs commented in support of the proposed rule's requirement to assess climate impacts. PIOs explained that the proposed rule's requirements that resource reports account for generation resources that are reasonably foreseen to be developed or interconnected and for reasonably foreseeable changes in emissions will ensure a rigorous environmental analysis that properly accounts for the project's climate impacts and are well-founded in NEPA's plain text and implementing regulations, CEQ guidance, and judicial precedent. Policy Integrity provided similar rationale and additionally indicated that providing such data would be “relatively easy” for proponents. Policy Integrity elaborated that FERC has historically required such estimates from transmission developers, that developers have previously submitted these data and analysis to both DOE and FERC, and that power system emissions estimates are accessible through readily available modeling software. Along similar lines, AEU commented that the resource reports are comprehensive and require a wide-ranging analysis of the project, and that the requirement to describe reasonably foreseeable generation resources is especially beneficial because it illustrates the project's value and benefits to the larger regional and interregional grid. On the other hand, CATF suggested that instead of requiring project proponents to describe reasonably foreseeable generation resources, DOE should request this specific information only for generator interconnections designed to connect specific generation resources to the bulk power system. CATF explained that it may be difficult for certain qualifying projects to determine the scope of what generation resources are reasonably foreseeable. Accordingly, CATF recommended that DOE not require project proponents to determine associated generation resources where burdensome, speculative, and of limited value to decision makers, and revise the provision to include only “specific” generation resources. CATF cited to judicial decisions to support the proposition that an analysis of foreseeable generation is not required where the generation would likely have occurred even absent the project. ClearPath offered additional criticisms of the foreseeable generation requirement. ClearPath urged DOE not to exceed its jurisdiction to conduct environmental reviews by including additional requirements without consulting CEQ, and stated that DOE's requirements to consider indirect impacts of the project and identify effects from existing or reasonably foreseeable projects are beyond DOE's statutory authority and are contrary to CEQ Guidance. ClearPath recommended that DOE limit IIP Process requirements, and subsequent review in an EIS, to only an electric transmission line and its attendant facilities within Federal jurisdiction. Finally, the NM SHPO inquired generally about foreseeable generation, and whether foreseeable development will be considered in the assessment of historic properties under NHPA section 106 and its implementing regulations. DOE also received comments on the iterative nature of the IIP Process and the role and scope of the three anchor meetings. While ACP approved of the general structure of anchor meetings, ACP emphasized the importance of flexibility in order to accommodate proposed projects that already have conducted significant Federal and State outreach or have agency-specific reporting that may differ in approach and timing to the IIP. ACP also suggested that DOE clarify how potential route changes can be accommodated without restarting the process, and that the final rule provide specific criteria that DOE and relevant Federal entities would follow in their consideration of adding, deleting, or modifying these routes. ACEG suggested that DOE amend the proposed rule to strike or significantly modify its “sufficiency” standard for scheduling meetings, which DOE proposed to be required for scheduling each of the three required anchor meeting requests. ACEG and NYTOs commented that DOE should only find a meeting request insufficient when the information provided in the meeting request is insufficient to support a productive meeting, e.g., a review meeting request should only require sufficient information to hold a productive discussion on the initial resource reports. For an example, NYTOs stated that as an “initial review meeting” is intended to identify issues of concern, information gaps or data needs—the existence of information gaps or the need for additional data, itself, should not be an appropriate basis for declining to proceed with a review meeting. ACEG expressed concerns that the current approach could allow an application to be indefinitely “parked” by unreasonable or overly burdensome demands for more information for purposes of a sufficiency determination. Similarly, Idaho Power asked, recognizing that review under the IIP Process is iterative, what controls there are to avoid continued and repeated refinement of analysis. Idaho Power also asked if the resource report requirement change infers the project proponent will have already identified potential resource concerns by consulting with relevant, Federal land managers. DOE requested comments on page limits for certain submission in the NOPR and received seven responses. CBD and the CARE Coalition both expressed a general concern with page limits on environmental reviews, with CBD stating that arbitrary limits risk sacrificing detail, undermining public participation, and causing delays. The Kentucky SHPO stated that page limits may be applicable if resource reports will serve only as background information, but page limits may not comply with NHPA or applicable State statutes if documentation is intended to be utilized by the project proponent or Federal agency for section 106 consultation materials. AZGFD noted that the NOPR only mentions page limits in the documents Summary of the Qualifying Project and Project Participation Plan, required by § 900.5, and recommended that DOE not include page limits for resource reports. ACP expressed concern with imposing page limits on project summaries and participations plans required by § 900.5 and instead recommended that DOE allow for flexibility and allow for page-limit carve outs for appendices where appropriate. Gallatin Power stated that the page limits for the Summary of the Qualifying Project and Project Participation Plan are reasonable but noted that the scope of transmission projects will vary greatly and suggested that DOE allow project proponents to request additional pages if deemed necessary. The CEC/CPUC stated that the page limit for the Summary of the Qualifying Project is appropriate but the limit for the Project Participation Plan may be limiting. Similarly, EDF raised a concern that the ten-page limitation for a Project Participation Plan might constrain the level of detail needed to comprehensively and holistically assess the project's impact and may signal to project proponents that only a cursory assessment is needed. DOE received one comment regarding the participation of relevant Federal entities. EEI noted that transmission projects that interconnect, parallel, or cross facilities owned or operated by Federal power marketing administrations, such as Bonneville Power Administration and the Western Area Power Administration, may also be qualifying projects under the CITAP Program as proposed. EEI suggested that in such cases, the Federal power marketing administrations must be involved in some manner as relevant Federal entities, either as joint lead agency with DOE or otherwise, and should remain actively involved in the coordination process. EEI further noted that providing a coordination role for Federal power marketing administrations is consistent with section 216(h). DOE received comments from ACEG, AEP, and PIOs that addressed participation of relevant non-Federal entities. AEP urged DOE to be mindful of the important and necessary roles State and local decisionmakers play in the proposed transmission project approval process. ACEG and PIOs generally supported the clear and increased role for non-Federal entities, including Indian Tribes, SHPOs, and THPOs, in the IIP Process but noted that the important role of these additional entities in the process can also complicate reviews. ACEG recommended that DOE ensure that these non-Federal entities not only have but also use their seat at the IIP Process table and have necessary resources to fully participate in the process. PIOs stated that such improved coordination will be essential to ensure that resource reports provide all the necessary analysis and information to enable project proponents to receive all relevant authorizations. ACEG also noted that one way DOE can facilitate this participation is by effectively implementing its grant funding opportunities for transmission siting and permitting participation. Regarding confidential information and/or CEII, the CARE Coalition recommended that DOE specifically invite comments from Indian Tribes regarding best practices around outreach by project proponents and prioritize Tribal recommendations. The CARE Coalition also recommended that DOE create a list of best practices; add free, prior, and informed consent (FPIC) to that list; and add language stating agencies must apply FPIC to all interactions between agencies and Tribal governments. The CARE Coalition believes that these changes will ensure that agencies adhere to both the United Nations Declaration on the Rights of Indigenous Peoples and the Federal trust responsibility to Tribal governments. Relatedly, PIOs recommended that DOE adopt language from the Washington State Attorney General's Centennial Accord Plan, Indigenous Knowledge requirements, and requirements from the 2022 Biden Memorandum on Uniform Consultation Standards. The CARE Coalition recommended that DOE add a separate provision requiring agencies to clearly articulate the levels of confidentiality afforded to the public and governmental engagement for the information shared therein. The CARE Coalition recommended that DOE ensure that sacred sites, locations, and Indigenous Knowledge are protected from public disclosure to the greatest extent practicable. The NM SHPO added that agency officials should address concerns about confidentiality with Tribes. DOE received comments requesting clarification on how the proposed rule would affect transmission projects that are already in the permitting process from Stoel Rives LLP and Idaho Power and a comment from Gallatin Power regarding the interaction of the IIP Process with other permitting processes. Stoel Rives argued that these projects should also be eligible for DOE's improved and expedited approval process, under the CITAP Program or otherwise. Stoel Rives encouraged DOE to consider these projects in this final rule and provide a roadmap detailing how they can be integrated into the process. Gallatin Power raised a concern that under the current provisions, a project proponent will not be able to submit applications to relevant Federal agencies for necessary Federal authorizations until after the completion of the IIP Process. Gallatin Power contended that the submission of an authorization application and supporting materials allows for the developer to identify its interest in a right-of-way path impacting Federal land and be designated the “first-in-line” for review. Forcing the application submittal to later in the process could result in multiple developers attempting to complete the IIP Process, including the intensive resource reports, for the same lands at the same time. This would create substantial inefficiencies for both the project proponents and the agencies involved. Gallatin Power suggested that to avoid this, DOE should either continue to allow developers to submit applications to Federal agencies prior to initiating the IIP Process or institute a similar “first-in-line” approach based on when projects are proposed for the CITAP Program. Gallatin Power also proposed that the transmission projects that have already submitted applications for authorizations to relevant Federal agencies should not be forced to redo their application process or have their applications invalidated until the IIP Process is completed. They argued that doing so would be highly disruptive to development efforts and counterproductive to DOE's goals. DOE also received comments regarding studies that may be undertaken during the IIP Process. The CEC/CPUC encouraged early coordination and review of a project proponent's supporting study methods for the IIP Process because reviewing study methods and securing necessary approvals for field review, before a proponent has conducted its studies, could reduce later delays. Additionally, the CEC/CPUC encouraged DOE to help other Federal agencies set schedules for timely study authorizations and afford exemptions to allow project proponents to initiate the IIP/CITAP Process if other Federal agency authorizations are delayed. Idaho Power asked DOE to clarify if the level of study is assumed to be desktop/GIS-informed or if there an expectation that field surveys will be completed for all project alternatives. Idaho Power also asked if DOE would be the final arbiter of completeness for studies or if each relevant Federal land management agency would have the authority to request additional information. Gallatin Power commented that DOE should clarify when the project proponent will receive authorization from Federal agencies to complete field resource surveys. Gallatin Power further stated that a lack of structure could allow for the permitting timelines to remain the same since uncertainty would be shifted to before the start of the rule's proposed two-year NEPA deadline. Five commenters provided responses to DOE's request regarding the duplicative aspects of the NOPR. ACP commented that project proponents should be permitted to incorporate by reference existing data, environmental reviews, and public engagement efforts to streamline the process. ACEG recommended that the specific language regarding incorporation by reference be clarified so that incorporation by reference is permissible for all data, not just material in other resource reports and provided some suggested edits to the provision. CEC/CPUC stated that duplicative aspects of reports should be eliminated to limit inconsistencies in review, providing as an example that the Cultural Resources resource report, the Tribal Resources resource report, the Communities of Interest resource report, and the Socioeconomic resource report all overlap but may not be reviewed by the same agency subject matter experts, which may result in inconsistent evaluations. ClearPath stated that the requirement for project proponents to list and describe all dwellings and related structures or other structures normally or intended to be inhabited by humans within a 0.5-mile-wide corridor centered on the proposed transmission line was duplicative of information regarding affected landowners required in General Project Description resource report and should be omitted. ACP recommended that DOE not require the public disclosure of names of people project proponents spoke to in preparing the resource reports, as this is overly onerous and lack of detail in this section should not be a basis to legally challenge DOE's eventual determination. DOE Response In this final rule, DOE retains the purpose and scope of the IIP Process as proposed in the NOPR, including the three-anchor-meeting structure and information requirements for progressing through the process, with minor revisions. DOE revises this final rule for clarity and to reduce burdensome and duplicative requirements in response to comments, as described below. DOE revises the page limits in this final rule to allow for project proponents to request a waiver. DOE makes no other revisions in response to these comments but notes that revisions to resource reports and IIP Process meetings in response to other, specific comments received on those aspects are addressed in sections VI.N and G of this document. DOE declines to act on those comments urging greater flexibility in the IIP Process and in the content of resource reports because it believes such measures are unnecessary. This final rule confirms the provisions in the NOPR that provide for sufficient flexibility: the three anchor meetings, which provide structured opportunities to discuss and establish expectations; the provision permitting the project proponent to submit resource reports missing discrete pieces of information so long as the project proponent provides an acceptable reason for the omission and an acceptable timeline for curing the omission; and the provision granting the Director of the Grid Deployment Office with discretion to waive any requirement imposed on a project proponent if the Director of the Grid Deployment Office determines that that it is unnecessary, duplicative, or impracticable under the relevant circumstances. DOE finds that together these provisions provided the flexibility necessary to respond to a wide variety of circumstances. Regarding comments from ACP, ACEG, ACORE, SEIA, and CEBA on the level of detail requested in resource reports and specifically the availability of information based on project maturity and compliance with NEPA regulations, DOE makes no revisions in response to these comments. First, DOE believes the level of detail in the resource reports is necessary for DOE to implement its authority under section 216(h), which includes both environmental review and the coordination of decision making with relevant Federal entities. Second, this final rule adopts the proposed provision that project proponents may address and justify omissions or incomplete information. DOE believes this provides sufficient flexibility to accommodate project differences without further revision. Regarding ACP's request to modify language from shall to “should” or “to the extent practicable”, where DOE intends to impose a mandatory obligation, it uses appropriate language, including “shall.” Regarding the inclusion of reasonably foreseeable effects, DOE declines to make changes to the requirements that project proponents identify certain reasonably foreseeable effects. DOE's obligations under NEPA, as well as corresponding obligations under section 106 of the NHPA and the ESA, require the Department to consider the reasonably foreseeable effects of major Federal actions affecting the quality of the human environment, as noted in PIOs' comment. While the scope of any NEPA review will be determined at the close of the IIP Process and on a case-by-case basis, the information required for inclusion within the resource reports discussed in this section is likely to be relevant for preparation of environmental review documents necessary for authorizations subject to this rule. In order to assist DOE in fully considering this relevant information, DOE seeks input from project proponents to identify reasonably foreseeable generation projects that may be caused by a Federal authorization. Even when DOE determines a particular generation resource to be outside the scope of review DOE may still need to identify the resource and explain its conclusion. The language of the rule tracks these statutory obligations, and is consistent with the Secretary of Energy's authority under section 216(h) to require the submission of all data considered necessary. Regarding the iterative nature and level of information requested for the three anchor meetings, DOE makes minor changes in this final rule regarding the discussion of and criteria for modifying study corridors in response to comments. DOE restates that the IIP Process is designed to allow for flexibility throughout the process while maintaining sufficient review periods to ensure that the project proponent is taking the steps necessary to complete the required Federal authorization processes. In response to ACP's concern on how route changes will be accommodated without restarting the IIP Process, DOE believes the iterative nature of the IIP Process provides mechanisms to account for route changes, including: meetings, the use of analysis areas for resource report assessments (discussed in section VI.K.ii of this document in detail), study corridors that may contain multiple routes, and the resubmission of resources reports, none of which require a restart to the IIP Process. Accordingly, DOE makes no changes in response. Regarding ACP's request for criteria on adding or deleting routes, DOE revises the rule for clarity. First, DOE relocates the list of criteria from the initial meeting to § 900.4, Purpose and Scope of the IIP Process, and clarifies in the text that these are the initial list of criteria the project proponent should consider when developing potential study corridors and potential routes for the IIP Process. The change encourages the project proponent to utilize the criteria in identifying routes and corridors throughout the IIP Process, rather than just after the initial meeting. Second, DOE removes “deleting” from the initial meeting discussion topic to clarify that the IIP Process does not include a Federal entity deleting any corridors or routes. This final rule retains the requirement for DOE and other agencies to identify other criteria for adding or modifying potential routes and includes that the agencies should also identify criteria for potential study corridors as well. DOE makes no further revisions as these changes sufficiently clarify the criteria recommended and how they will be considered, and any additional criteria will be discussed on a project-by-project basis. DOE makes no changes to the final rule in response to comments from ACEG and NYTO regarding establishing a standard for determining the sufficiency of materials required for each IIP Process meeting. DOE requests the information it deems necessary and sufficient for each meeting as described in the rule and has chosen not to provide a specific standard in order to maintain flexibility to evaluate submitted materials depending on the specific needs and circumstances of each project. As previously noted, IIP Process materials may be submitted with omissions provided that the omission is noted, a reason is given, and reasonable timeline for curing the omission is provided. Additionally, the final rule confirms the proposed provisions through which DOE will provide reasons for finding the submissions deficient and how such deficiencies may be addressed by the project proponent. DOE believes these provisions provide flexibility for a wide range of project circumstances. Regarding concerns from Idaho Power and ACEG that projects could be “parked” in the IIP Process, DOE makes no revisions to the final rule. This final rule confirms the intended iterative nature of the IIP Process and the interests of DOE in engaging in communications that are not limited to the three anchor meetings. These provisions are intended to prevent the situation described by the commenters where a request is rejected due to information or knowledge gaps or continued study refinement, by providing a communication mechanism through which such gaps could be discussed in advance. Additionally, as previously explained, DOE provides sufficient flexibility to the IIP Process to accommodate unique circumstances. Regarding Idaho Power's question as to whether project proponents are expected to engage with agencies prior to the IIP Process, DOE responds that project proponents may choose to consult with relevant entities prior to IIP Process at their discretion, but are not required or expected to do so. Regarding page limits, DOE believes that the limitation on the number of pages in the Summary of the Qualifying Project and the Project Participation Plan is generally useful and appropriate, but agrees with commenters that some complex projects may require additional pages to address pertinent information for the project and the project proponent's outreach. Accordingly, DOE revises this final rule to allow for project proponents to request waivers to the page limitations of the Summary of the Qualifying Project and the Project Participation Plan. As the proposed rule established no specific page limitations on the environmental review document or resource reports, DOE makes no additional revisions in response to comments on those documents but acknowledges that relevant statutory page limits for environmental review documents will be followed. Regarding the participation of relevant Fede [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-08157. Public record. Not legal advice.