[Federal Register Volume 65, Number 240 (Wednesday, December 13, 2000)]
[Notices]
[Pages 77889-77898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31758]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket Number 001206343-0343-01 and I.D. 120400E]
Solicitation of Public Comments on a Proposed Policy for Review
of Mandatory Conditions Developed by the Departments of the Interior
and Commerce in the Context of Hydropower Licensing
AGENCIES: Office of the Secretary, Interior; National Oceanic and
Atmospheric Administration (NOAA), National Marine Fisheries Service
(NMFS), Commerce.
[[Page 77890]]
ACTION: Notice of solicitation of public comments on proposed agency
policy.
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SUMMARY: The Department of the Interior and the Department of Commerce
(Departments) are proposing a new process for public review of and
comment on mandatory conditions and prescriptions the Departments
develop as part of the Federal Energy Regulatory Commission's
(Commission's) hydropower licensing proceedings under part I of the
Federal Power Act (Act). This policy would offer an opportunity for
public comment on the Departments' mandatory conditions and
prescriptions for both the traditional licensing process and the
alternative licensing process.
DATES: Submit written comments on the proposed policy to be received by
the Departments on or before January 3, 2001.
ADDRESSES: Submit written comments to Kathryn Conant, National Marine
Fisheries Service, Office of Habitat Conservation, 1315 East West
Highway, Building 3, Room 15206, Silver Spring, Maryland 20910 or fax:
301-713-1043.
FOR FURTHER INFORMATION CONTACT: Tom Iseman, U.S. Department of the
Interior, 202-208-6291, or Kathryn Conant, U.S. Department of Commerce,
301-713-2325, extension 205.
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to Part I of the Federal Power Act, 16 U.S.C. 791a et seq.
(Act), the Department of the Interior and the Department of Commerce
(Departments) possess certain authorities in the process for licensing
non-federal hydroelectric generating facilities. Although the final
licensing decision lies with the Federal Energy Regulatory Commission
(Commission), the Departments, and Bureaus within the Department of the
Interior, provide input to the Commission on a number of issues related
to the license application. Among others, the Departments' authorities
include the U.S. Fish and Wildlife Service's and National Marine
Fisheries Service's authority to prescribe fishways under section 18 of
the Act, 16 U.S.C. 811, and the Secretary of the Interior's authority
under section 4(e) of the Act, 16 U.S.C. 797(e), to establish
conditions ``necessary for the adequate protection and utilization'' of
land ``reservations'' that may contain non-federal hydropower project
works. The affected reservations may include lands managed principally
by the U.S. Fish and Wildlife Service, the National Park Service, the
Bureau of Land Management, the Bureau of Reclamation, or the Bureau of
Indian Affairs.
The Act requires that both section 18 prescriptions and section
4(e) conditions be included in any license issued by the Commission.
The mandatory nature of these prescriptions and conditions has been
upheld by Federal courts, including the Supreme Court. Escondido Mutual
Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984);
Bangor Hydroelectric Company v. FERC, 78 F.3d 659 (DC Cir.1996);
American Rivers v. FERC, 129 F.3d 99 (2d Cir. 1997); American Rivers v.
FERC, 201 F.3d 1186 (9th Cir. 1999). After incorporation into a
license, the prescriptions and conditions are subject to judicial
review under the Act's appeal procedures, which place exclusive
jurisdiction in the Federal courts of appeals, 16 U.S.C. 8251(b).
The Departments' practice has been to try to work closely with
license applicants in developing mandatory conditions and
prescriptions. However, licensees and others have expressed interest in
having the Departments consider outside input and comments on these
conditions and prescriptions through a standardized process. Such a
standardized mechanism would provide an opportunity for interested
parties to provide comment on the conditions and prescriptions. On May
26, 2000, the Departments published a Federal Register notice
soliciting public comments on the possibility of the Departments'
establishing a review process for their mandatory conditions and
prescriptions, and asking six specific questions regarding such a
possible review process. (65 FR 34151, May 26, 2000).
The Departments received 25 sets of comments representing a broad
range of parties interested in hydropower licensing. All the commenters
supported the idea of establishing a review process, and they expressed
a broad range of views regarding the potential timing and substance of
the process. After careful review and consideration of the comments
received and the constraints of the existing hydropower licensing
process the Departments are proposing to provide a two part process for
review of mandatory conditions and prescriptions under the traditional
licensing process of the Act and the Commission's regulations. In
addition, the Departments are proposing a more limited process for
review of conditions and prescriptions developed through the
Commission's alternative licensing process.
The review process proposed today will be limited to section 4(e)
and 18 conditions and prescriptions. The recommendations filed by the
Departments under sections 10(a) and 10(j) of the Act are subject to
further review by the Commission and may be addressed under existing
Commission procedures. In all cases, the review of conditions and
prescriptions would occur at an appropriate level within the relevant
agency.
This process would be adopted as an agency policy to be become
effective six months after adoption, in order to provide time for field
implementation.
The proposed review procedures are briefly summarized below.
(Please refer to the detailed description of the policy for more
specific information.)
A. Review Process--Traditional Licensing
The Departments are proposing a two-part process for review of
license conditions and prescriptions in the traditional licensing
process. This process would provide participating parties an
opportunity both before and after license issuance to comment on
conditions and prescriptions.
First, the Departments propose to consider comments through the
Commission's traditional hydropower licensing process, prior to
issuance of the license. In most situations, the Departments file
preliminary conditions and prescriptions in response to the
Commission's Ready for Environmental Analysis (REA) notice. Under this
process, parties will have the opportunity to comment on the
preliminary conditions and prescriptions to the appropriate Departments
within a 45-day time period. In most cases, this will be concurrent
with the Commission's allowed time to reply to REA submissions.
Although the Departments intend for this 45-day response period to be
the primary mechanism for receiving comments from participants in the
licensing process, they will also seek comments in response to the
Commission's draft National Environmental Policy Act (NEPA) document,
to ensure that the public at-large has the opportunity to participate
in the review process. The Departments will consider information
developed through the draft NEPA document and all comments on the
conditions and prescriptions, and then issue modified conditions and
prescriptions to the Commission for inclusion in its final NEPA
document.
In addition, the Departments propose to consider any issues raised
regarding the Departments' conditions and
[[Page 77891]]
prescriptions, submitted through the Commission's request for rehearing
process after license issuance. If an intervener \1\ submits a request
for rehearing, pursuant to 18 CFR 385.713, that clearly addresses the
Departments' conditions and prescriptions, the Departments will review
those comments. The Departments will submit a written response to
issues raised regarding its mandatory conditions and prescriptions,
including any necessary changes to the conditions and prescriptions,
within 30 days if possible. In those infrequent situations when more
than 30 days is required for response because of substantive and new
information or other unexpected circumstances, the Departments will,
within 30 days, submit a description of the reason for additional
review and a reasonable time line for the written response.
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\1\ The request for rehearing is available only to interveners,
as described by FERC regulations.
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B. Review Process--Alternative Licensing Procedure.
The Commission's alternative licensing procedure raises unique
concerns regarding the adoption of a review process for the
Departments' mandatory conditions and prescriptions, particularly when
parties negotiate delicately balanced license terms in a settlement
agreement. If the Departments submit conditions and prescriptions that
are not included in a settlement agreement, the Departments propose to
apply to that proceeding the review process described above for the
traditional licensing process.
If the Departments submit conditions and prescriptions that are
included in the settlement agreement, then the Departments propose to
apply a modified version of the review process described above. The
Departments will review specific comments on conditions and
prescriptions in response to the Commission-issued notice calling for
comment on the settlement agreement and/or license application pursuant
to 18 CFR 4.34(b). If comments raise substantive issues that may
require amendment of the negotiated agreement, the Departments will
discuss appropriate resolution with the settling parties. After
conferring with the settling parties, the Departments will respond to
the comments. The Departments will include any changes or adjustments
made to the agreed-upon conditions and prescriptions as a result of the
comments received and collaboration with the settling parties when the
conditions and prescriptions are formally submitted to the Commission.
II. Response to Comments
In response to the Federal Register notice (May 26, 2000), the
Departments received comments from a variety of stakeholders who
participate in hydropower licensing, including: the Commission; the
United States Department of Agriculture, Forest Service; National
Hydropower Association; Western Urban Water Coalition; the
Hydroelectric Licensing Reform Task Force; Alcoa Power Generating,
Inc.; Duke Power; the American Public Power Association; Pacific Gas
and Electric Company; Alabama Power Company; Public Utility District
No. 1 Chelan County; Public Utility District No. 1 of Douglas District
and Public Utility District of Grant County; Idaho Power; Petersburg
Municipal Power & Light; Orion Power of New York; Southern California
Edison; New York Power Authority; Senator Coppola of the State of New
York; Edison Electric Institute; Allegheny Energy Supply; Northwestern
University; Kleinschmidt Associates Consulting Engineers; Trout
Unlimited; American Rivers; New York Rivers United; and Defenders of
Wildlife.
By their Federal Register notice, the Departments sought public
comment on six questions. After consideration of all of the comments
received, and giving consideration to the issues raised as discussed in
the preamble, these specific questions are answered in Section I--
Response to Specific Questions. Some commenters raised issues not
directly related to the specific questions. These general issues, and
expansion of some issues raised in the specific questions, are
addressed in Section II--Response to General Issues.
A. Section I--Response to Specific Questions
Question 1. Should a review process be adopted and, if so, what
kind of process should be established?
Answer. The Departments agree with the unanimous comments received
that a review process should be adopted. Through this notice, the
Departments are proposing to establish a Mandatory Conditions Review
Process (MCRP). Commenters provided a wide range of options regarding
the kind of process--from a process that includes an appeal component
to a process that includes full evidentiary hearings with
administrative law judges \2\ to a process that involves some form for
notice and comment upon preliminary conditions and prescriptions.\3\
All options suggested by commenters were considered by the Departments
in the development of this procedure.
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\2\ Alabama Power Company; American Public Power Association;
the Hydropower Licensing Reform Task Force; Southern California
Electric; Public Utility Districts of Chelan, Douglas and Grant
Counties; National Hydropower Association; Idaho Power Company; Duke
Energy; Orion Power of NY; and Edison Electric Institute.
\3\ Senator Coppola; Federal Energy Regulatory Commission;
Defenders of Wildlife; New York Rivers United; Alcoa Power
Generating Inc.; Trout Unlimited; American Rivers.
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Question 2. If so, how could such a process be integrated into the
Commission's current licensing procedures in a timely and efficient
manner? To meet the constraints of timeliness and resource limitations,
are changes needed in the timing or implementation of various steps in
the agencies'--including the Commission's--existing regulations or
procedures? If not, then when should the review process take place?
Answer. Most commenters suggested that any review process designed
by the Departments should not impede or delay the Commission's
licensing process.\4\ The Departments agree. In designing the proposed
MCRP, the Departments gave predominant consideration to establishing a
seamless process which would provide the desired opportunities for
meaningful review, without undermining, impeding or delaying the
Commission's licensing process in any fundamental way. The Departments'
proposed MCRP, in fact, employs the Commission's existing licensing
process and requires only minor adjustments. If the Departments foresee
that review of comments may require more time than is allotted in the
Commission's licensing process, the Departments propose submitting
target letters to the Commission, with schedules for completion of
review of public comments and modification of conditions and
prescriptions. The Departments anticipate only minor delays and expect
that target letters will be required rarely, in instances when new and
substantive information is provided in comments, if coordination
between the Departments or bureaus with the Department of Interior
requires additional time, or other unexpected situations.
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\4\ Coppola; New York Rivers United; Western Urban Water
Coalition; Alcoa Power Generating Inc.; Edison Electric Institute;
Public Utility Districts of Chelan, Douglas and Grant Counties.
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Question 3. If, under any review process mechanism, it were not
possible to avoid delaying the overall licensing process, would it
still be worth establishing such a process?
[[Page 77892]]
Answer. While most commenters did not want the Departments' review
process to cause significant delay to the licensing process,\5\ most
commenters also responded that in order to achieve meaningful review of
the Departments' mandatory conditions and prescriptions, some delay was
justifiable.\6\ However, while the Departments agree, the Departments
have developed a process that provides meaningful review without
significant delay to the licensing process.
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\5\ See Footnote 4 herein.
\6\ Northwestern University; Idaho Power Company, Federal Energy
Regulatory Commission; Defenders of Wildlife; Petersburg Municipal
Power and Light; Kleindschmidt Associates; National Hydropower
Association; and Trout Unlimited.
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Question 4. Should the review process for section 4(e) and section
18 be the same?
Answer. All commenters who addressed this issue commented that the
review process for mandatory conditions under section 4(e) and
mandatory prescriptions under section 18 should be the same.\7\ The
Departments agree.\8\ The proposed MCRP is generally the same whether
the mandatory condition is submitted under section 4(e) or under
section 18. However, it should be noted that the Departments also
designed the proposed MCRP to be used by both Departments, including
the different bureaus within the Department of the Interior. Thus,
flexibility was necessary to accommodate the different chain of
command, signature authority and other administrative functions within
and between Departments and the bureaus within the Department of the
Interior.
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\7\ Senator Coppola; Idaho Power Company; Federal Energy
Regulatory Commission; Defenders of Wildlife; Orion Power of NY; New
York Rivers United; Kleindschmidt Associates; Western Water
Coalition; American Public Power Association; Trout Unlimited;
Public Utility Districts of Chelan, Douglas and Grant Counties.
\8\ The U.S. Forest Service already has a public review process,
through its Forest Planning/NEPA guidelines, for its 4(e)
conditions.
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Question 5. Who should be allowed to initiate and/or participate in
the review process? Should it be limited to the license applicant?
Should it be limited to formal parties (i.e. interveners) to the
Commission's licensing process (note that, depending upon when the
review process takes place, there may not yet be interveners before the
Commission)? Should the opportunity be available to anyone with an
interest in the project?
Answer. There was some divergence in comments on this issue. Some
commenters asserted the process should apply only to the license
applicant.\9\ Other commenters asserted that any review process should
be open to any participant.\10\ The Departments agree that participants
in the process in addition to the license applicant have a significant
interest in these proceedings, and that all participants in the
licensing process may be included in the review process without
creating either a cumbersome or time-consuming process. Consequently,
the Departments have proposed that the MCRP should include review
opportunity for the license applicant, any participants in the
licensing process, and the general public. The Departments have
designed the MCRP to be available to the participants in the licensing
process on the Commission's Service List when the Departments submit
preliminary conditions and prescriptions in response to the
Commission's Ready for Environmental Analysis (REA) Notice and to any
members of the general public when the Commission includes the
preliminary conditions and prescriptions in the publication of the
Commission's Draft National Environmental Policy Act (NEPA) document.
All of these comments will be considered in the Departments' review and
in their submission of modified conditions and prescriptions after the
Draft NEPA document is published. In order to merge time frames with
the Commission regulations, participants in the licensing process
should submit comments in response to the submission of preliminary
conditions and prescriptions after the REA Notice. The comment period
after public notice in the Draft NEPA document publication is provided
to allow members of the public who may have an interest, but were not
previously involved in the licensing process, the opportunity to
comment as well. In this way, both participants in the licensing
process and members of the general public who have an interest, but
were not previously involved, will have an opportunity to provide
comments. Those who have intervened in accordance with Commission
regulations will be provided further review through the Commission's
request for rehearing.
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\9\ Senator Coppola; Western Urban Water Coalition; Edison
Electric Institute.
\10\ Northwestern University; Idaho Power Company; Federal
Energy Regulatory Commission; Defenders of Wildlife; Orion Power;
Petersburg Municipal Power & Light; New York Rivers United;
Kleinschmidt Associates; Duke Power; Trout Unlimited; National
Hydropower Association; American Rivers; Public Utility Districts of
Chelan, Douglas and Grant Counties.
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Question 6. Should the new process be available for prescriptions
and conditions agreed upon pursuant to the Commission's streamlined
alternative licensing procedure--a process that already provides
considerable opportunity for communication and negotiation among the
Departments and other interested parties?
Answer. Many commented that the review process should be applicable
to the alternative licensing process (ALP).\11\ Some commenters
asserted that the review process was not necessary in the alternative
licensing process, given the extensive amount of consultation and
coordination which is embodied in the process itself.\12\ The
Departments find merit in both of these comments. In considering this
issue, the Departments had several concerns: most of the alternative
licensing process takes place before a license application is filed or
an administrative record of the proceeding is established, precluding
the preparation of conditions and prescriptions; the process is new and
unique to each project, so clear hallmarks and procedures do not exist;
and, most importantly, review and alteration of carefully crafted
license conditions could undermine settlement agreements negotiated
through the ALP. For these reasons, designing a practical process was
difficult. However, the Departments propose to provide an opportunity
for comment on mandatory conditions and prescriptions negotiated
through alternative licensing proceedings and included in the
settlement agreement.
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\11\ Idaho Power Company; Federal Energy Regulatory Commission;
Defenders of Wildlife; Petersburg Municipal Power & Light;
Kleinschmidt; Duke Power; National Hydropower Association; Public
Utility Districts of Chelan, Douglas & Grant Counties; American
Rivers; Trout Unlimited; New York Rivers United.
\12\ Western Urban Water Coalition; Edison Electric Institute.
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B. Section II--Response to General Comments
1. Public Input to Process Development
Some commenters suggested the possibility of the Departments'
holding a technical conference to discuss options for the proposed
review process.\13\ The Departments considered this possibility, but
decided that an opportunity to seek written comments would give the
public more time to comment on a proposed process and provide better
documentation of concerns raised with the proposed process. Further,
the Departments intend to revisit the process after two years, allowing
refinement based on experience to date. Therefore, this proposed policy
has been developed based on the public response to Federal
[[Page 77893]]
Register notice (May 26, 2000), staff experience with the licensing
process, and consultation with Commission staff.
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\13\ Orion Power of New York; Kleindschmidt Associates; Duke
Power; National Hydropower Association; Public Utility Districts of
Chelan, Douglas and Grant Counties.
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2. Form of Review Process
Some commenters suggested that the review process should be
established through binding regulations.\14\ Others recommended that
the review process should start immediately with policy and move toward
regulation, or that new regulations were not necessary.\15\ In
considering all comments, the Departments propose that the best way to
implement the proposed MCRP is through the publication of a policy. In
addition, the Departments recognize that meaningful evaluation of this
process may best take place after a trial period of implementation. The
Departments intend to revisit the process after two years, allowing
refinement based on experience to date.
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\14\ Southern California Edison; Idaho Power Company; Alabama
Power Company; Duke Power; Public Utility Districts of Chelan,
Douglas and Grant Counties; New York Rivers United; Western Urban
Water Coalition.
\15\ National Hydropower Association; American Rivers; Orion
Power; Federal Energy Regulatory Commission.
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3. Timing
The Departments found that timing was a principal consideration in
determining whether and how to establish a review procedure for the
Departments' conditions and prescriptions. Several comments suggested
that the Departments should write conditions and prescriptions and
provide a review period before a hydropower license application is
submitted,\16\ but the Departments found that unworkable. While the
Departments will continue to work with licensees to coordinate
development of conditions and prescriptions together with project
design, license applications still may change significantly between
drafts circulated to interested parties and final applications
submitted to the Commission. Many of the studies identified by the
parties as necessary would not have been completed, again undermining
the ability to formulate preliminary conditions and prescriptions.
Moreover, the publication of preliminary conditions and prescriptions
before there is a proceeding, or a license application on the record
that identifies a specific project, project operations, and probable
project impacts for which mitigation may be needed, is not consistent
with the legal requirements for substantial evidence in the record
before the Commission, set forth in Bangor Hydroelectric Co., Inc. v.
FERC, 78 F.3d 659 (DC Cir. 1996).
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\16\ Senator Coppola, Southern California Edison, Idaho Power
Company, Federal Energy Regulatory Commission, Western Urban Water
Coalition, Alcoa Power Generating Inc.
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Once an application is submitted to the Commission, the timing of
the issuance of mandatory conditions and prescriptions and any review
process is necessarily intertwined with the Commission's procedures for
processing the application. The length of time required for hydropower
licensing has been a continuing concern for the Commission, the
Departments, licensees and other members of the interested public.
While the Departments and the Commission may disagree over the extent
to which the Commission may affect the Departments' authorities through
its procedural regulations, the Departments wish to work with the
Commission and within the Commission's existing process to the extent
possible, in order to avoid creating any new delays in the licensing
process. Thus, the timing of the Departments' proposed review process
takes into account the timing contemplated by the Commission's
regulations.
The Departments have found, however, that it is not always possible
to act within the time period contemplated by the Commission's
regulations. Since the Commission's REA notice is based upon the
Commission's own requirements for information to perform its NEPA
analysis, it does not necessarily take into account the question of
whether the Departments have sufficient information to form the basis
of the conditions that meet the Departments' statutory responsibilities
and to provide substantial evidence for the Departments' administrative
record. See Bangor Hydroelectric v. FERC, 78 F.3d 659 (DC Cir. 1996).
In addition, the Departments propose to file modified conditions and
prescriptions 90 days after the close of the comment period on the
Commission's draft NEPA document, in order to respond to public
comments addressing the preliminary conditions and prescriptions.
Currently, Commission practice anticipates that the modified conditions
and prescriptions would be filed within the public comment period.
Another conflict could arise with the Departments' proposal to file a
response following requests for rehearing that raise issues with the
Departments' conditions and prescriptions. Current Commission
regulations provide discretion for the Commission to allow filings in
response to a request for rehearing, and the Commission generally does
not reject or exclude from the record such filings. However, the
Departments' proposal would standardize that practice. By proposing to
notify the Commission regarding the anticipated timing for the
Departments' filings, the Departments seek to improve agency
coordination and reduce delays in the process.
4. Appeal Mechanism
Many of the commenters wanted an appeal component, some including
full evidentiary hearings before administrative law judges.\17\ Other
commenters recommended notice and comment.\18\ The Departments have
given this issue careful consideration. The Departments propose not to
provide full evidentiary hearings for two primary reasons: (1) no
appropriate forum is available that has jurisdiction over the
Departments' decision under the FPA; and (2) full evidentiary hearings
would prevent the Departments from meeting the most common request of
all commenters, that the review process fit within the Commission's
existing licensing process and not cause extended delay. However, the
Departments propose to meet the request for an appeal component by
answering specific issues raised on its modified conditions and
prescriptions that are included in a party's request for rehearing.
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\17\ See Footnote 2 herein.
\18\ See Footnote 3 herein.
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5. Level of Review
Some commenters \19\ specifically requested that the review process
be conducted at a different and/or higher level than the staff
responsible for preparing the conditions and prescriptions. These
comments may, in part, be based on a misconception regarding the level
at which the Departments submit conditions; in most cases, conditions
and prescriptions are submitted at the regional level or higher.
Nonetheless, the Departments considered this issue in developing this
process. The initial signature level of the conditions and prescription
is different between the Departments of Commerce and Interior, and also
within the bureaus of the Department of the Interior. The level of
review of modified conditions and prescriptions will vary depending
upon the Department and the bureau. In all cases, the Departments
propose that the review will occur at least at the State or regional
level.
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\19\ Pacific Gas & Electric Co.; American Public Power
Association; Duke Power; Hydropower Licensing Reform Task Force.
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[[Page 77894]]
6. Review of Non-Exercise or Reservation of Authority
Some commenters suggested that any review process should be
applicable to situations in which a stakeholder challenges the
Departments' failure to exercise mandatory authority.\20\ In certain
cases when the Commission issues the REA notice, the Departments
already participating in the licensing process may respond by
exercising their section 4(e) or 18 statutory authority by reserving
that authority. In these cases, that submission would be subject to the
review process proposed here. When the Department(s) are not
participating in a licensing process, the review process is not
applicable.
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\20\ New York Rivers United; American Rivers.
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7. Review of Economic Impacts
Some commenters suggested that the review process provide a review
of the economic impacts of the conditions and prescriptions on the
project.\21\ It is not necessary, or appropriate, to address here what
substantive issues may be raised by participants in requesting review.
Commenters may raise whatever concerns they consider relevant at the
appropriate time in each licensing proceeding.
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\21\ Western Urban Water Coalition' American Public Power
Association; Hydropower Licensing Reform Task Force.
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III. Procedural Requirements
A. Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), it has
been determined that the action proposed (implementation of a policy)
is not a ``significant regulatory action''. This proposed policy
describes an opportunity for public review of and comment on conditions
and prescriptions that the Departments develop as part of the
Commission's existing hydropower licensing process. Thus, the policy
would not impose a compliance burden on the economy generally.
B. Administrative Procedures Act
This policy is not subject to prior notice and an opportunity to
comment because it is a general statement of policy (5 U.S.C.
553(b)(A)).
C. Regulatory Flexibility Act
This policy is not subject to notice and comment under the
Administrative Procedures Act, and therefore not subject to the
analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Furthermore, the Departments have determined that this policy
will not have a significant economic effect on a substantial number of
small entities as defined under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). This proposed policy is guidance and does not
compel any party to conduct any action. This policy would provide a
standardized opportunity for public comment on the Departments'
mandatory conditions and prescriptions. Therefore, the Departments
believe that no economic effects on small entities will result from
compliance to the criteria in this policy.
D. Small Business Regulatory Enforcement Fairness Act
This policy is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This policy:
1. Will not have an annual effect on the economy of $100 million or
more and is expected to have no significant economic impacts.
2. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions and will impose no additional
regulatory restraints in addition to those already in operation.
3. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. The
intent of the policy is to provide a standardized opportunity for
public comment on the Departments' mandatory conditions and
prescriptions. It will impose no additional regulatory restraints to
those already in operation. The Departments have, therefore, determined
that the policy will not have a significant economic effect on a
substantial number of small entities as defined in the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
E. Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.):
1. This policy will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. The policy
does not require any additional management responsibilities. The
Departments expect that this proposed policy will not result in any
significant additional expenditures by entities that participate in the
Commission's hydropower licensing process.
2. This proposed policy will not produce a Federal mandate of $100
million or greater in any year, that is, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. This rule
is not expected to have significant economic impacts nor will it impose
any unfunded mandates on other Federal, State, or local governments
agencies to carry out specific activities.
F. Federalism
In accordance with Executive Order 13132, this proposed policy does
not have significant Federalism effects; therefore, a Federalism
assessment is not required. This policy will not have substantial
direct effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. No intrusion
on State policy or administration is expected, roles or
responsibilities of Federal or State governments will not change, and
fiscal capacity will not be substantially directly affected. Therefore,
the policy does not have significant effects or implications on
Federalism.
G. Paperwork Reduction Act
This policy does not require an information collection under the
Paperwork Reduction Act. Therefore, this proposed policy does not
constitute a new information collection requiring Office of Management
and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C.
3501 et seq.
H. National Environmental Policy Act
The Departments have analyzed this policy in accordance with the
criteria of the National Environmental Policy Act (NEPA). This proposed
policy does not constitute a major Federal action significantly
affecting the quality of the human environment because it only provides
notice and comment on conditions and prescriptions. Issuance of the
proposed policy is categorically excluded under the Department of the
Interior's NEPA procedures in 516 DM 2, Appendix 1.10. The National
Oceanic and Atmospheric Administration (NOAA) has determined that the
issuance of this policy qualifies for a categorical exclusion as
defined by NOAA 216-6 Administrative Order, Environmental Review
Procedure.
I. Essential Fish Habitat
We have analyzed this policy in accordance with section 305(b) of
the Magnuson-Stevens Fishery Conservation and Management Act and
determined that issuance of this policy may not adversely affect the
essential fish habitat of federally managed species, and, therefore, an
essential fish
[[Page 77895]]
habitat consultation on this policy is not required.
J. Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, the Departments have assessed
the impact of this proposed policy on tribal trust resources and have
determined that it does not directly affect Tribal resources. Because
the policy will standardize a review process of section 4(e)
conditions, which do directly affect tribal resources, the Departments
will consult with tribal governments when reviewing and responding to
comments or requests for rehearing that directly relate to conditions
that affect tribal resources.
IV. Commission Coordination
The Departments have begun discussions with the Commission
regarding the integration of the proposed MCRP with the Commission's
existing licensing process. Timing issues require coordination with the
Commission, and the Departments will continue to work with the
Commission to determine how best to minimize timing conflicts while
providing meaningful review of the Departments' conditions and
prescriptions.
V. Mandatory Conditions Review Process--Narrative
A. Traditional Licensing Process
The following process describes a proposal for the Departments to
receive and respond to comments regarding the mandatory conditions and
prescriptions submitted to the Commission through the traditional
licensing process. The Departments already have informal policies and
practices for maintaining communications with licensees and others
throughout the development of conditions and prescriptions. The
Departments view this as an iterative, cooperative process. However,
the Departments have not until now had a standardized process for
reviewing public comments on the conditions and prescriptions developed
during the licensing process. This proposed policy is designed to work
within the Commission's licensing process to efficiently allow
meaningful public input without unduly delaying licensing.
1. Part A: Notice and Comment on Preliminary Conditions and
Prescriptions
a. Ready for Environmental Analysis. The Departments' proposed
Mandatory Conditions Review Process (MCRP) is triggered when the
Commission determines that a hydropower license application is complete
and it has issued a notice indicating the license application is Ready
for Environmental Analysis (REA). Comments, recommendations, terms and
conditions, and prescriptions concerning the license application are
typically to be filed with the Commission within 60 days from the date
of the REA notice. The MCRP relates only to the mandatory conditions
and prescriptions (not comments or recommendations). The information
that is filed in response to the REA notice is generally incorporated
into the Commission's National Environmental Policy Act (NEPA) analysis
that establishes the framework for license conditions the Commission
may include in any issued license.
b. Filing of Preliminary Conditions and Prescriptions. The
Departments will file preliminary conditions and prescriptions within
the Commission's 60-day REA comment period. In those infrequent cases
when the Departments' administrative record is insufficient, the
Departments need more time to coordinate, or other circumstances arise
and the Departments are unable to issue preliminary conditions and
prescriptions during this period, the Departments will follow the
procedures described below.
When the Departments are unable to provide some or all preliminary
prescriptions and conditions to the Commission within the 60-day REA
notice period, the Departments will, in a letter to the Commission and
its service list, exercise their statutory authorities by reserving
authority. The Departments will include in this letter: (1) the reasons
why preliminary prescriptions and conditions are not being filed at
this time; and (2) a schedule, including a target date, for submitting
the preliminary prescriptions and conditions. When the preliminary
prescriptions and conditions are completed, they will be provided to
the Commission and its service list. The Departments intend that
preliminary conditions and prescriptions will be filed for inclusion in
the draft NEPA document and that both comment periods will be completed
as discussed below.
If the Departments make the determination that their administrative
record does not support the filing of conditions and prescriptions at
the time of licensing, but may support such a filing during the license
term, the Departments will exercise statutory authority by reserving
that authority until a later date when the Departments' administrative
record supports such an exercise. The participating Departments will
provide the reservation of authority during the 60-day REA comment
period.
The level of signature for preliminary conditions and prescriptions
will vary depending on the signature authority within each Department
and within the bureaus of the Department of the Interior. The
Departments will file an original and eight copies of the preliminary
conditions and prescriptions with the Commission and an index to the
Departments' administrative record that supports the preliminary
conditions and prescriptions. These materials will also be provided to
the Commission's service list. The Departments will file an original
and three copies of the Departments' administrative record with the
Commission either concurrently or within a time period specified in the
preliminary submission. The administrative record will also be provided
to the applicant and, for section 4(e) conditions mandated for the
protection and utilization of an Indian Reservation, to the Indian
Tribe of that Reservation. The Departments' administrative record will
be available at the Departmental office from which it originates, but
will not be automatically served upon the service list. Any party may
request copies of the record, in whole or in part, from the
conditioning Department, according to procedures described in the
issuing document.
c. Comment Opportunity. The proposed MCRP would provide two very
specific opportunities for notice and comment targeted to two separate
audiences. The Departments will respond to comments and modify
conditions and prescriptions as necessary after the end of the second
comment opportunity.
The first opportunity is provided to participants in the licensing
process who receive the Departments' preliminary conditions and
prescriptions in response to the Commission's REA notice. The
preliminary submission, which is served on the Commission's Service
List, will invite comments and new supporting evidence on the
preliminary conditions and prescriptions within a 45 day time period.
Commission regulations call for submissions within 60 days of the REA
notice, and provide for reply to those submissions to be filed
[[Page 77896]]
within 105 days of the REA notice See 18 CFR 4.34(b). Thus, the comment
period on the preliminary conditions and prescriptions will usually be
concurrent with the Commission's allowed time to reply to REA
submissions. All comments on the Departments' preliminary conditions
and prescriptions should be specifically identified and include
supporting evidence. The Departments will begin reviewing comments when
received; however, no response will be made until after review of the
draft NEPA document.
To be responsive to the fact that there may be persons with an
interest in the Departments' preliminary conditions and prescriptions
who have not been previously involved in the licensing process, the
Departments are providing a second opportunity to the public to provide
comments. With publication of the draft NEPA document for comment,
which will include the Departments' preliminary conditions and
prescriptions, the Commission will inform the public that, if they want
to comment, they must provide a copy of specific comments and
supporting evidence to the Departments within the comment period for
the draft NEPA document. In order to have adequate time to thoroughly
review comments and to efficiently provide the Commission with the
modified conditions and prescriptions, the Departments strongly
encourage participants in the licensing process to submit comments
during the first notice and comment period, rather than wait until the
NEPA comment period. While it is neither necessary nor recommended for
participants in the licensing process to re-submit comments already
submitted, to the extent that participants in the process resubmit
comments in the NEPA comment period, any changes or new comments should
be specifically and expressly identified in the submission. The
Departments will consider all comments received.
d. Filing Modified Conditions and Prescriptions. The Departments
will review the draft NEPA document and all comments received on the
preliminary conditions and prescriptions. Based on this review, the
Departments will modify the conditions and prescriptions, as needed,
and respond to comments. Within 90 days of the close of the draft NEPA
comment period, the Departments will submit modified conditions and
prescriptions, unless substantial and new information was provided
during the NEPA comment period requiring additional review time, or
coordination between the Departments or Department of Interior's
bureaus or other unexpected circumstances arise that reasonably require
additional time. In those infrequent situations where additional time
is needed, the Departments will submit to the Commission and its
service list, and all commenters, a letter providing an explanation of
the need for additional time and a schedule for preparing the modified
conditions and prescriptions.
The process of comment and review itself modifies the conditions
and prescriptions by modifying the record underlying them, even if the
actual language of the conditions and prescriptions does not change.
The Departments will coordinate the review and response to comments.
The format of the response to comments will be commensurate with the
nature, substance and extent of the comments received, the inter-agency
and intra-bureau involvement, time frame, staff availability and the
Departments' practice. Signature authority will vary between the
Departments and among the bureaus of the Department of the Interior;
however, this submission will be signed at the state or regional level.
The result of this process will be the Departments' submission to
the Commission of an original and eight copies of the modified
conditions and prescriptions, a response to comments, and an index to
the Departments' supplemental administrative record generated as a
result of the review process, as needed. These materials will also be
provided to the Commission's service list and to commenters. The
Departments will file an original and three copies of the Departments'
supplemental administrative record with the Commission. The
supplemental administrative record will also be provided to the
applicant and, for section 4(e) conditions mandated for the protection
and utilization of an Indian Reservation, to the Indian Tribe of that
Reservation. Any party may again request copies of the supplemental
record, in whole or in part. The Departments intend that modified
conditions and prescriptions will be provided to the Commission in
advance of issuance of the final NEPA document.
2. Part B: Comments on Modified Conditions and Prescriptions
a. Request for Rehearing. After the Commission issues the license,
if any intervener submits a request for rehearing, pursuant to
Commission regulations at 18 CFR 385.713, that clearly identifies
issues with the Departments' modified conditions and prescriptions, and
includes supporting evidence, the Departments will review those
concerns. Assuming the Commission grants rehearing for further
consideration, as is its custom, the Departments will review all
information and coordinate their response to all issues raised within
30 days of the formal filing with the Commission of a timely request
for rehearing. The Departments may choose to file consolidated
responses to more than one request for rehearing. The Departments will
either file the response pursuant to 18 CFR 385.713(d)(2) or, in the
unexpected situation that substantive or new issues are raised, the
Departments will notify the Commission of the issues raised, that
additional time is necessary to review issues, and provide a time line
for response. The content of the response will vary depending on
whether the issue is one that has been raised previously, or presents
new issues that require a new response or supplementation of the
record. The Departments will file the response with the Commission and
its Service List.
B. Alternative Licensing Process
The following process describes a proposed opportunity for the
Departments to receive and respond to comments regarding the mandatory
conditions and prescriptions submitted to the Commission through the
alternative licensing process. The form of the review process will
depend on whether the Departments submit conditions and prescriptions
as part of a settlement agreement. If the Departments submit conditions
and prescriptions that are not part of a settlement agreement, then the
process described for the traditional licensing process applies, as
detailed herein.
If negotiations in the alternative licensing process result in an
agreement as to the Departments' mandatory conditions and
prescriptions, then a modified review process applies. Under the
alternative licensing process, the license applicant files a license
application, including any settlement offer, which may include the
Departments' agreement as to their preliminary mandatory conditions and
prescriptions, and a Draft Applicant Prepared NEPA document with the
Commission. The Commission then publishes a notice calling for comments
on the license application, including the settlement offer and any
agreed-upon preliminary conditions and prescriptions included in the
settlement offer. In response to the Commission's notice, interested
parties, including parties that are not signatories to the
[[Page 77897]]
settlement, are provided an opportunity to provide comments regarding
the license application, the settlement offer, and the Departments'
agreed-upon preliminary conditions and prescriptions.
If a non-settling party submits comments directly addressing the
Departments' agreed-upon conditions and prescriptions, including the
evidence in support thereof, then the Departments will review the
comments pertaining to the mandatory conditions and prescriptions. If
comments do not necessitate changes to the mandatory conditions and
prescriptions that would render them inconsistent with the settlement
agreement, the Departments will address the comments without returning
to the settling parties. If comments are substantive and raise issues
not previously identified, the Departments will discuss the comments
and their appropriate resolution with the settling parties. If the
Departments determine, after discussion with the settling parties, that
the comments warrant a change in the conditions and prescriptions, the
Departments will submit modified conditions and prescriptions. This
process will be the only review of the Departments' agreed-upon
conditions and prescriptions submitted through the alternative
licensing process.
As part of the alternative licensing process, the Commission also
publishes a notice indicating that it is proceeding with the
environmental review. In response to this Notice, the Departments,
pursuant to their statutory authority under sections 4(e) and 18, will
submit to the Commission, as a separate filing, their agreed-upon
conditions and prescriptions, so that, regardless of Commission action
on the settlement agreement, the Departments' agreed-upon conditions
and prescriptions will become mandatory license conditions. Any changes
that may have been made to the settlement conditions and prescriptions
as a result of comments received will be included in this submission.
VI. Mandatory Conditions Review Process--Step-by-Step
A. Traditional Licensing Process
1. Notice and Comment on Preliminary Conditions and Prescriptions:
a. The Commission issues a notice stating that the license
application is Ready for Environmental Analysis (REA).
b. In most cases, the Departments will submit to the Commission
some or all preliminary conditions and prescriptions within 60 days of
the REA notice. Signature authority will vary between the Departments
and within the bureaus of the Department of the Interior.
To the extent that the Departments' conditions and prescriptions
are based on materials not already included in the Commission's
administrative record, a copy of the materials submitted by the
Departments in support of conditions and prescriptions will be
maintained at the originating office
Additions to the administrative record will be filed with the
preliminary conditions and prescriptions or within a specified time
period thereafter.
Submission to the Commission will include:
An original and eight copies of the preliminary conditions
and prescriptions; and
The index to the Departments' administrative record that
includes documents not already included in the Commission's
administrative record and appropriate citations for documents already
included in the Commission's record; and
An original and three copies of the Departments'
administrative record. Submission to the applicant and, for section
4(e) conditions mandated for the protection and utilization of an
Indian Reservation, to the Indian Tribe of that Reservation, will
include:
A copy of the preliminary conditions and prescriptions;
and
The index to the Departments' administrative record that
includes documents not already included in the Commission's
administrative record and appropriate citations for documents already
included in the Commission's record; and
A copy of the Departments' administrative record
Submission to the Commission's service list will include:
A copy of the preliminary conditions and prescriptions;
and
The index to the Departments' administrative record that
includes documents not already included in the Commission's
administrative record and appropriate citations for documents already
included in the Commission's record.
A party may request copies of the record, in whole or in part,
according to procedures described in the issuing document.
c. If the Departments determine that the evidence in the
Commission's administrative record and information generally available
is not sufficient or if other circumstances arise and the Departments
cannot file preliminary conditions and prescriptions within 60 days of
the REA notice, the Departments will include a reservation of
authority. The submission will also include:
An explanation for the delay; and
A schedule and date for submitting preliminary conditions
and prescriptions.
d. The preliminary conditions and prescriptions submission will
include an invitation for interested persons to submit comments.
The comment period will be 45 days. This is concurrent with the
time allowed by Commission regulation to reply to REA submissions.
The Departments will consider comments if they:
Are identified as raising issues pertaining to the
mandatory conditions and prescriptions;
Include supporting evidence.
The Departments will begin reviewing comments; however, no response
will be made until after review of the NEPA document.
e. The Commission will issue the draft NEPA document for public
comment, which will include the Departments' preliminary conditions and
prescriptions.
The Commission's notice will inform the public that they may submit
comments on the preliminary conditions and prescriptions.
The Departments will consider comments if they:
Are identified as raising issues pertaining to the
mandatory conditions and prescriptions;
Are copied to the conditioning Department(s); and
Include supporting evidence.
f. The Departments will review all comments received and the draft
NEPA document within 90 days of the close of the Draft NEPA comment
period, the Departments will either
Submit the modified conditions and prescriptions; or
Send the Commission a letter (an original and eight
copies) with an explanation of why additional time is required and an
anticipated target date for submitting the modified conditions and
prescriptions. The letter will also be served on the Commission's
Service List.
The Departments will coordinate the review and submission of
modified conditions and prescriptions, when appropriate.
The response to comment will be commensurate with the nature,
substance and extent of the comments received, the inter-agency and
intra-bureau involvement, the time frame, staff availability and the
Departments' practice.
Signature authority will vary between the Departments and within
the bureaus
[[Page 77898]]
of the Department of the Interior; however this submission will be
signed at the state or regional level or higher.
The Departments intend to submit the modified conditions and
prescriptions in advance of issuance of the Commission's final NEPA
document.
A copy of the Departments' supplemental administrative record, as
needed, will be maintained at the originating office.
The Departments' administrative record will be filed with the
modified conditions or within a time period specified in the
submission.
Submission to Commission will include:
An original and eight copies of the modified conditions
and prescriptions;
An index of the Departments' supplemental administrative
record formed as part of the review process and not yet included in the
Commission's administrative record and appropriate citations for
documents already included in the Commission's record;
An original and three copies of the Departments'
supplemental administrative record; and
Response to comments.
Submission to the applicant and, for section 4(e) conditions
mandated for the protection and utilization of an Indian Reservation,
the Indian Tribe of that Reservation, will include:
A copy of the modified conditions and prescriptions;
An index of the Departments' supplemental administrative
record formed as part of the review process and not yet included in the
Commission's administrative record and appropriate citations for
documents already included in the Commission's record;
A copy of the Departments' supplemental administrative
record; and,
Response to comments.
Submission to the Commission's service list and all other
commenters will include:
A copy of the modified conditions and prescriptions;
An index to the Departments' supplemental administrative
record, as needed. A party may request copies of the record, in whole
or in part, according to procedures described in the issuing document;
and
Response to comments
2. Comments on Modified Conditions and Prescriptions:
a. After the license is issued, an intervener may submit a request
for rehearing pursuant to 18 CFR 385.713.
The request for rehearing is available only to interveners, as
described by the Commission's regulations.
b. The Departments will consider those issues raised in requests
for rehearing: that pertain to the mandatory conditions and
prescriptions; are clearly identified as issues relating to the
Departments' mandatory conditions and prescriptions; and include
supporting evidence or citation to the supporting evidence in the
administrative record.
c. Within 30 days of the filing of the request for rehearing, the
Departments will either submit a response relating only to those issues
directed to the Department's conditions and prescriptions, with any
changes to the conditions and prescriptions, if needed; or send the
Commission a letter (an original and eight copies), in those infrequent
cases where significant and/or new issues relating to the Departments'
mandatory conditions and prescriptions are raised in the request, with
an explanation of why additional time is required and an anticipated
date for submitting the response and any changes to the modified
conditions and prescriptions, if needed. The letter will also be served
on the Commission's Service List.
d. The Departments may coordinate this submission, but may submit
their responses separately.
e. The response will be commensurate with the nature, substance and
extent of the comments received, the inter-agency and intra-bureau
involvement, the time frame, staff availability and the Departments'
practice.
For issues addressed earlier in the licensing process, the response
will include the appropriate citations to the administrative record.
f. The response will be sent to the Commission (an original and
eight copies) and be served on the Commission's Service List.
g. The Departments intend to submit the response prior to issuance
of the Commission's decision on the requests for rehearing.
B. Alternative Licensing Process
1. If the Departments submit conditions and prescriptions that are
not part of a settlement agreement resulting from an alternative
licensing process, then the review process described for the
traditional licensing process applies.
2. If the Departments submit mandatory conditions and prescriptions
that are included in the license application and settlement offer, then
the following process applies.
a. The license applicant will file a license application, including
the settlement offer, which may include any agreed-upon preliminary
mandatory conditions and prescriptions, and Draft Applicant Prepared
Environmental Assessment to the Commission.
b. The Commission will publish a Notice calling for comments on the
license application (including the settlement offer and any agreed-upon
conditions and prescriptions).
c. If a non-settling party submits comments that raise issues on
the Departments' agreed-upon preliminary conditions and prescriptions,
then the Departments will review the comments pertaining to the
mandatory conditions and prescriptions.
Comments should include specific comments on the mandatory
conditions and prescriptions and supporting evidence.
d. If comments do not necessitate changes to the mandatory
conditions and prescriptions that would render them inconsistent with
the settlement agreement, the Departments will address the comments
without returning to the settling parties.
e. To the extent that the comments are substantive and raise issues
not previously identified, the Departments will discuss the comments
and their appropriate resolution with the settling parties.
f. The Commission issues Notice stating the application is ready
for final analysis.
g. The resource agencies will formally file those agreed-upon
preliminary conditions and prescriptions as modified by the Departments
in response to comments and after consultation with the settling
parties.
Dated: December 5, 2000.
David J. Hayes,
Deputy Secretary, U.S. Department of the Interior.
Dated: December 7, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 00-31758 Filed 12-12-00; 8:45 am]
BILLING CODE 3510-22-P; 4310-10-P