[Federal Register: September 9, 2004 (Volume 69, Number 174)]
[Proposed Rules]
[Page 54602-54612]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09se04-21]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 25
RIN 1090-AA91
Procedures for Review of Mandatory Conditions and Prescriptions
in FERC Hydropower Licenses
AGENCY: Office of the Secretary, Interior.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of the Interior (Department) proposes a public
review process for conditions and prescriptions of the Department
pursuant to its authority under the Federal Power Act. The Department
also proposes to create an administrative appeals process for review of
such measures. The Federal Power Act authorizes the Department to
include in hydropower licenses issued by the Federal Energy Regulatory
Commission conditions and prescriptions necessary to protect Federal
and tribal lands and resources and to provide fishways when navigable
waterways or Federal reservations are used for hydropower generation.
The public review process will enable the public and the license
applicant to comment on the Department's preliminary conditions and
prescriptions, and to provide information to assist the Department in
its formulation of modified conditions and prescriptions. The
information obtained through this process will help the Department in
refining and developing its conditions and prescriptions, which an
applicant may appeal using the proposed appeals process to obtain an
expeditious policy level review. These proposed processes are designed
to coincide with and complement the Commission's overall licensing
process. The Department recently worked with the Commission to develop
a new integrated licensing process, see Federal Energy Regulatory
Commission Order 2002, July 23, 2003, 104 FERC ] 61,109.
DATES: Comments should be received no later than November 8, 2004, late
comments will be considered to the extent practicable.
ADDRESSES: You may submit comments, identified by RIN 1090-AA91, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: Larry_Finfer@ios.doi.gov. Include RIN 1090-AA91
in the subject line of the message.
Fax: 202-208-4867.
Mail: Office of the Secretary, Office of Policy Analysis,
MS 4426-MIB, U.S. Department of the Interior, 1849 C Street, NW.,
Washington, DC 20240.
Your comments on the information collection provisions of this
rulemaking should be sent to the attention of the desk officer for the
Department of the Interior at the Office of Management and Budget via
facsimile (202-395-6566) or by e-mail (OIRA_Docket@omb.eop.gov).
Please also send a copy of these comments to the Office of Policy
Analysis, U.S. Department of the Interior, at the address provided
above.
FOR FURTHER INFORMATION CONTACT: William Bettenberg, Office of Policy
Analysis, MS4426-MIB, U.S. Department of the Interior, 1849 C St., NW.,
Washington, DC 20240; phone: 202-208-5978; fax: 202-208-4867;
electronic mail address: William_Bettenberg@ios.doi.gov.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
III. Discussion of the Proposed Rule
IV. Commission Coordination
V. Procedural Requirements
I. Public Comment Procedures
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
II. Background
Federal Power Act
Subchapter I of the Federal Power Act (FPA), 16 U.S.C. 791-823c,
vests in the Department of the Interior (Department), and other Federal
resource agencies, the authority to include conditions and
prescriptions in licenses for hydroelectric generating facilities
issued by the Federal Energy Regulatory Commission (FERC or Commission)
(see 18 CFR parts 4, 5, and 16). Under section 18 of the FPA, 16 U.S.C.
811, the U.S. Fish and Wildlife Service may prescribe fishways, and
under section 4(e) of the FPA, 16 U.S.C. 797(e), the Secretary of the
Interior may establish conditions necessary for the adequate protection
and utilization of reservations. ``Reservations,'' as used in the FPA,
include lands and certain facilities under the jurisdiction of the U.S.
Fish and Wildlife Service, National Park Service, Bureau of Land
Management, Bureau of Reclamation, or Bureau of Indian Affairs. Through
these sections, the FPA authorizes the Department to set conditions for
the protection of public and tribal resources that may be affected when
navigable waterways or Federal reservations are used for hydropower
generation licensed by FERC.
The Department's final conditions and prescriptions pursuant to
sections 4(e) and 18 of the FPA are mandatory. Thus, once the
Department has issued its conditions and prescriptions, the Commission
must incorporate these measures into any hydropower license it issues
under the FPA. This authority has been recognized and upheld by the
Federal courts, including the Supreme Court. See Escondido Mut. Water
Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984); American
Rivers v. FERC, 201 F.3d 1186 (9th Cir. 1999); American Rivers v. FERC,
129 F.3d 99 (2d Cir. 1997); Bangor Hydro-Electric Co. v. FERC, 78 F.3d
659 (D.C. Cir. 1996). After a license has been issued, the license,
including the Department's
[[Page 54603]]
conditions and prescriptions, is subject to rehearing before FERC and
subsequent judicial review under the FPA's appeal procedures. The FPA
gives the Federal appeals courts exclusive jurisdiction over such
appeals. 16 U.S.C. 825l(b).
Mandatory Conditions Review Process (MCRP)
On January 19, 2001, in response to requests for a review and
comment opportunity prior to the issuance of conditions and
prescriptions, the Department of the Interior established, through an
interagency policy with the Department of Commerce (collectively
``Departments''), the Mandatory Conditions Review Process (MCRP).\1\
The MCRP provides license applicants and interested parties an
opportunity to review and comment on the Departments' preliminary
conditions and prescriptions for specific hydropower licenses. In
addition, commenters are encouraged to provide any additional
information regarding the Departments' conditions and prescriptions.
The MCRP was carefully crafted to work within FERC's deadlines and its
process under the National Environmental Policy Act (NEPA), while
affording interested parties an opportunity to comment on the record on
the Departments' conditions and prescriptions.
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\1\ See http://www.doi.gov/hydro/final_mcrp_policy.htm.
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Prior to finalizing the MCRP, the Departments provided a public
comment period on a draft MCRP. 65 FR 77889 (Dec. 13, 2000). The
Departments received 18 sets of comments representing a broad range of
interests. Many commenters proposed that the Departments provide, in
addition to review and comment, an administrative appeals process. The
Departments elected to forego the adoption of an appeals process at
that time.
The MCRP has now been in effect for three years. Upon review, the
Department of the Interior has concluded that the policy has provided
valuable information to inform the Department's conditions and
prescriptions and has created important opportunities for the
Department to work with license applicants and other interested
persons. These positive results support the Department's current
proposal to codify, and in some instances clarify, the MCRP in a
regulatory framework.
The proposed rule codifies the review process of the MCRP, but only
as it relates to Interior authorities and actions, since it establishes
the schedule, and underpins the proposed appeals process. At the same
time, in a parallel proposed rule, the Department of Commerce is
proposing to codify the existing MCRP policy, retaining the rehearing
stage of the existing MCRP, while soliciting comments on the possible
addition of an administrative review mechanism. In all other respects,
the MCRP portions of the two proposed rules are essentially the same.
After reviewing the public comments, the Department will determine
if further revision is warranted and publish a final rule. The existing
MCRP policy remains in effect until revised or superseded by the final
rule.
Administrative Appeals Process
In addition, the Department has determined that an administrative
appeals process, that follows review and comment under the MCRP, would
further benefit the Department's development of conditions and
prescriptions in the licensing process. During the original comment
period on the MCRP in 2000, some commenters requested that the
Departments implement a more elaborate appeals process than is being
proposed in this notice, including employing the use of administrative
law judges and evidentiary hearings. That concept was again considered
in development of the appeals process in this proposed rule, but
rejected because of issues of timeliness. Both the current FERC
licensing schedule and FERC's new hydropower licensing process barely
provide time for the expedited appeals process being proposed by the
Department in this proposed rulemaking. Additionally, the President's
National Energy Policy criticized the current licensing process as too
prolonged and costly, and called for making the process more clear and
efficient. The Department uses a variety of processes for considering
appeals under other programs and authorities. Those which include the
use of administrative law judges and evidentiary hearings are managed
by the Department's Office of Hearings and Appeals (OHA), which employs
administrative law judges and is staffed to manage evidentiary
hearings. That office, however, has substantial backlogs in appeal
cases, and the average case currently takes approximately one and a
half years from the date of receipt to resolution. While OHA is making
progress in reducing its backlog, there appear to be no prospects that
hydropower appeals cases could be processed by that office in the
three-month period that appears to fit with FERC's decision schedule
and is contemplated by this proposed rule. Prolonging the current
licensing process by up to two years is considered untenable.
The proposed appeals process would allow a license applicant to
appeal mandatory conditions and prescriptions directly to the
Department. The mechanics of the proposed appeals process are designed
to accommodate the specific structure of the Department of the
Interior, with five bureaus and five assistant secretaries involved in
relicensing. The Department believes it is natural and appropriate for
the Departments of Agriculture and Commerce to develop hydropower
licensing conditions and prescriptions through different institutional
processes given that each of those Departments have a single bureau
with licensing responsibilities, as long as conditions and
prescriptions are timely and consistent. The Department is mindful that
if multiple agencies exercise conditions in the same proceeding, the
applicant may need to participate in two or more different
institutional processes. The Department notes, however, that it is rare
for multiple agencies to exercise conditions in the same proceeding. In
the 108 license orders issued between 2001 and 2003, 78 did not contain
mandatory conditions, 24 contained conditions from one agency, and 6
contained conditions from 2 or more agencies.
National Energy Policy
Interior's proposed rule is consistent with the National Energy
Policy Development Group's Recommendation in the National Energy
Policy. This proposed rule will codify Interior's Federal Power Act
processes as regulations. These regulations, which will be established
subject to notice and comment, will be more clear to applicants and the
public than Interior's existing guidance and policies. In addition, the
proposed rule will help to make the FERC licensing process as a whole
more efficient, by integrating the MCRP and appeals process into FERC's
process. The Department is of the view that an administrative appeals
process will advance efforts to streamline the overall licensing
process while also expediting the implementation of effective license
conditions. Therefore, in addition to the proposed MCRP regulations,
the Department has developed an administrative appeals process that
works in concert with the MCRP. These proposals are discussed below.
[[Page 54604]]
III. Discussion of the Proposed Rule
The decision on whether to issue a license for a hydropower
facility is solely under the jurisdiction of FERC. The general purpose
of the Department's proposed rulemaking is to assure open and careful
consideration of mandatory conditions and prescriptions developed by
the Department in the licensing of hydropower generating facilities. To
that end, the Department is proposing to codify, and in some instances
clarify, the existing MCRP (section A, below), and to provide an
opportunity for appeal by license applicants of mandatory conditions
and prescriptions (section B, below). As discussed below, this proposed
framework advances the hydropower licensing goals expressed in the
President's National Energy Policy and further harmonizes the
Department's processes with existing Commission regulations.
A. The Mandatory Conditions Review Process
Proposed section 25.3 describes the MCRP as a process that allows
the public to review and comment on preliminary conditions and
prescriptions submitted by the Department for inclusion in hydropower
licenses issued by FERC pursuant to the FPA. The process as proposed is
open to all, but is limited to conditions and prescriptions issued by
the Department under the authority of sections 4(e) and 18 of the FPA.
Recommendations filed under sections 10(a) and 10(j) of the FPA, 16
U.S.C. 803(a) and (j), are outside the scope of the MCRP.
The MCRP is triggered when FERC issues a notice that a license
application is ready for environmental analysis (REA). Proposed section
25.5 makes clear that the Department will file its preliminary
conditions and prescriptions within 60 days after FERC issues its REA
notice. It is possible that this 60-day deadline may not be met if the
Department lacks sufficient information, such as completed reports on
required studies or information on technical feasibility, to support
the need for conditions and prescriptions. In such event, the
Department may exercise its authority under sections 4(e) and 18 of the
FPA by reserving the authority to submit conditions and prescriptions
at a later date.
The MCRP ensures that preliminary conditions and prescriptions are
publicly reviewed and can be modified if necessary by providing, at
proposed sections 25.6(a) and (b), an initial 45-day review and comment
period on preliminary conditions and prescriptions and an additional
review and comment period in conjunction with review of FERC's draft
NEPA document.
As proposed at section 25.6(a), the first review and comment
opportunity follows the Department's filing of preliminary conditions
and prescriptions with FERC. In addition to filing with FERC, the
Department sends its preliminary conditions and reference to supporting
information to parties on FERC's service list. By letter to both the
parties and FERC, the Department provides 45 days for comments and
solicits new supporting evidence regarding the preliminary conditions
or prescriptions. At this point in the licensing process, the
Department has often worked with the applicant and other interested
parties for well over two years through prefiling consultation. The
Department notes that the existing MCRP provides 60 days for comments
at this stage. In this rulemaking, 45 days has been selected to conform
to the reply comments time period in FERC's integrated licensing
process.\2\
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\2\ See 18 CFR 5.23.
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As proposed at section 25.6(b), a second review and comment
opportunity coincides with the development of FERC's NEPA analysis. As
part of the licensing process, FERC includes the Department's
preliminary conditions and prescriptions in its draft NEPA document.
Through the NEPA process, all interested parties--not only those on
FERC's service list--have an opportunity to comment on the preliminary
conditions and prescriptions.\3\ Following the close of the comment
period on the NEPA document, the Department will respond to all
comments received. By waiting until the close of the draft NEPA comment
period, the Department is provided the opportunity to consider
additional information developed in the NEPA process.
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\3\ See 18 CFR 4.34, and 18 CFR 5.24 and 5.25.
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Any modification of the Department's preliminary conditions and
prescriptions occurs after the close of FERC's NEPA comment period.
When considering whether to modify a preliminary condition or
prescription, the Department coordinates with all of its bureaus, State
and Federal resource agencies, and Indian tribes. Proposed section
25.7(b) states that if commenters provide evidence indicating that the
Department's preliminary conditions and prescriptions warrant
modification, the Department will modify the conditions and
prescriptions as necessary and file them with FERC within 60 days of
the close of the NEPA comment period. Significantly, the MCRP provides
for a higher level of internal review at the modification stage;
modified conditions and prescriptions are reviewed and signed at a
level at least as high as the State Director or Regional Director,
depending on the bureau involved.
The Department notes that the existing MCRP offers one additional
opportunity after license issuance for parties to the FERC proceeding
to obtain review of the Department's modified conditions and
prescriptions. That additional review opportunity would be supplanted
by the proposed administrative appeal process and is therefore not
included in the proposed rule.
The existing MCRP provides that if, after license issuance, a
request to FERC for rehearing identifies substantial issues with the
Department's conditions or prescriptions and provides supporting
information, the Department would review the conditions or
prescriptions and provide a written response within 30 days or within
an established schedule. As discussed in more detail below, the
proposed rule provides an administrative appeal directly to the
Assistant Secretary with authority over the bureau imposing the
conditions or prescriptions at issue. Such appeals are intended to be
resolved in advance of license issuance. The proposed rule therefore
eliminates the need for additional Departmental review at the FERC
rehearing stage. Parties remain free to raise issues relating to the
Department's conditions and prescriptions in their requests for
rehearing.
Proposed section 25.8 addresses how the Department will apply the
MCRP in situations in which it is involved in settlement negotiations.
Because settlements can occur at any stage during a license proceeding,
the MCRP's application depends largely on the stage of the proceeding
in which an offer of settlement is made, and on whether the Department
files conditions and prescriptions that are part of an offer of
settlement. Generally, the provisions of sections 25.6 and 25.7 apply
if the Department files preliminary conditions or prescriptions that
are not part of an offer of settlement. If, on the other hand, the
Department files conditions that are part of an offer of settlement,
the Department will follow the special provisions of section 25.8(b).
If the Department is involved in ongoing settlement negotiations at the
time FERC issues its REA Notice the Department may suspend the
negotiations to prepare and file its preliminary conditions and
prescriptions within 60 days of the REA
[[Page 54605]]
Notice. Similarly, the Department may enter into settlement
negotiations after it has already filed preliminary or even modified
conditions and prescriptions. If, in either of these situations,
negotiations do not result in an offer of settlement, section 25.8(a)
will apply. If, on the other hand, either of the above situations
results in settlement, the Department will determine, depending on the
stage of the proceeding and on a case-by-case basis, the best way to
ensure adequate review and comment.
B. The Administrative Appeal
Consistent with the National Energy Policy's goals of streamlining
and improving the hydropower licensing process, the Department is
proposing to create an expeditious appeals process for review of
mandatory conditions and prescriptions. This process will ensure that
high standards for resource conservation and economic efficiency are
maintained. In the appeals process, the applicant is afforded the
opportunity to appeal the conditions or prescriptions and propose
alternative conditions or prescriptions. The information provided by
the applicant, as well as any additional information that a State,
Indian tribe, Federal agency, or the public may provide, will help to
ensure that both the impacts and benefits of a hydropower generating
facility are appropriately addressed in the licensing process.
The appeals process is proposed to be available to applicants for a
hydropower license in proceedings in which the Department establishes
one or more mandatory conditions or prescriptions. The Department
invites comments on whether the appeals process should be open to
others as well.
The appeal is limited by proposed section 25.53 to those issues
raised by the applicant during the MCRP and in the FERC record, or
issues resulting from the Department's modification of conditions and
prescriptions based on new information that was not available for
review by the applicant during the MCRP. The Department anticipates
that these procedural limits will encourage interested parties to
provide early and full information regarding the environmental,
economic, and social issues and opportunities that accompany hydropower
licensing. The proposed process will ensure that issues are fully
briefed and considered, prior to the release of modified conditions,
and could possibly reduce the number of appeals. Moreover, if an appeal
is filed, the proposed process ensures that issues are well-developed
for an Assistant Secretary's timely consideration.
An efficient process is necessary given the multiple agencies with
authorities and responsibilities under the Federal Power Act. The
Department considers it important to adhere strictly to applicable FERC
filing deadlines and schedules. Proposed section 25.54 therefore
provides that an appeal must be received within 30 calendar days of the
date the Department files its modified conditions and prescriptions
with FERC. No extensions of this deadline will be granted, and untimely
appeals will be dismissed.
A 21-day period is provided to Indian tribes, States, Federal
agencies, and the public to comment on an appeal. These requirements
will help to ensure that the appeals process will be completed within
60 days of receipt of the appeal.
The Assistant Secretary (or Assistant Secretaries) with supervisory
authority over the bureau establishing the conditions or prescriptions
will review the appeal. Proposed section 25.59 states that the
Assistant Secretary's review is to be de novo, i.e., nondeferential. In
deciding the appeal, the Assistant Secretary will consider, among other
things, comments submitted by States, Indian tribes, Federal agencies,
and the public, materials submitted by the applicant in support of the
appeal, and pertinent portions of the administrative record supporting
the conditions or prescriptions, including, as appropriate, comments
and information received during the MCRP. Proposed section 25.59 makes
this clear.
Materials submitted by the applicant in support of the appeal must
include sufficient information consistent with a substantial evidence
standard. The Supreme Court has held that mandatory conditions and
prescriptions must be supported by substantial evidence in order to
withstand judicial review. Escondido Mut. Water Co. v. La Jolla Band of
Mission Indians, 466 U.S. 765, 778 (1984); see also 16 U.S.C. 825l(b).
Proposed section 25.56 therefore provides that the applicant must
include, for each condition or prescription appealed, the following:
(a) A concise statement of the reasons for appeal;
(b) A demonstration that the specific issues on appeal were raised
with the Department during the Mandatory Conditions Review Process and
in the FERC record;
(c) A summary of consultation with the Department, including a
statement of disagreements regarding studies, resource impacts, or
proposed protection, mitigation, or enhancement measures, as
appropriate to the matter or matters being appealed;
(d) A proposed alternative for the appealed condition or
prescription which is supported by substantial evidence in the record,
is set forth in the same level of detail as the appealed condition or
prescription, and is reasonably related to alternatives raised during
the MCRP and in the FERC record;
(e) An assessment of how the proposed alternative would affect
fish, wildlife, and Indian trust resources; and
(f) Supplementary information, as applicable, such as Form 1 or
Form 412 filings, or system load data.
The Assistant Secretary will use this information along with other
available information, to assess whether the applicant has demonstrated
that the appeal meets one or more of the three criteria set forth in
proposed section 25.59(c):
(a) The modified conditions or prescriptions conflict with
conditions or prescriptions of another Department, or conflict with
those of another bureau (or bureaus); or
(b) An alternative mitigation measure, preferred by the applicant,
is as effective as that of the Department, (i.e., the applicant's
proposed alternative meets or exceeds the result that would be obtained
by the modified condition or prescription filed by the Department);
(c) The modified conditions or prescriptions are not reasonably
related to the impacts of the project because they mandate a level of
mitigation that is inappropriate given the level of impacts
attributable to the project.
In addition, before the Assistant Secretary adopts an alternative
condition or prescription, he or she must also find that the
alternative meets standards set forth in proposed section 25.59. Any
proposed alternative must be:
(a) Supported by the technical and scientific record submitted with
the appeal or compiled in the FERC proceeding;
(b) Consistent with the Department's trustee responsibilities for
Indian trust resources;
(c) Consistent with the Department's responsibilities for fish,
wildlife, and cultural resources; and
(d) Not in conflict with conditions of another Department or with
those of another bureau (or bureaus).
Upon receipt of the appeal, proposed section 25.55 states that a
review team will be designated to prepare, as appropriate, a
substantive assessment of the appeal for the reviewing Assistant
Secretary (or Assistant Secretaries). As proposed, the professional
review team will not include individuals who developed or approved the
mandatory
[[Page 54606]]
conditions or prescriptions that are under appeal, although the review
team may consult with those individuals or any others. The review team
is directed to conduct a threshold evaluation to determine whether the
appeal is appropriate for review. As proposed in section 25.55(c), the
review team will determine whether the appeal is properly filed and
contains the required documentation as set forth in section 25.56, and
whether the Secretary has authority to issue the remedy requested by
the appeal. For example, the review team will dismiss those appeals
that are not timely filed.
With respect to appeals that are reviewed, the Assistant Secretary
(or Assistant Secretaries) will have several options pursuant to
proposed section 25.59, including: substituting the applicant's
proposed remedy for the condition or prescription previously submitted
to FERC by the Department; not changing the modified condition or
prescription; revision of a modified condition or prescription; or, in
the case of appeals asserting a conflict between or among proposed
conditions or prescriptions, initiating action to reconcile the
conflict. In the unlikely event that a modified condition or
prescription has the potential to conflict with the conditions or
prescriptions of another Department or Interior bureau, the Assistant
Secretary (or Assistant Secretaries) will take action to assure that
such a conflict does not occur. This can take many forms but section
25.59(d)(4) would ultimately require eliminating the conflict, either
through conforming the modified conditions or prescriptions to the
conditions or prescriptions of the other agencies, or the other agency
choosing to modify its conditions or prescriptions so that no conflict
would occur.
The results of the review will be made public through the FERC
docket system. Section 25.59(e) requires the Assistant Secretary to
file the new conditions, or a notice that the conditions are unchanged,
with FERC within 60 days of receipt of the appeal. Section 25.60(b)
requires the Assistant Secretary to file additional findings and
supporting information with FERC in another 15 days. By requiring these
items to be filed with FERC the rule is providing public notification--
the parties to the FERC proceeding will get copies of the filing, and
other members of the public will be able to access the filing through
FERC electronic eLibrary (http://www.ferc.gov/docs-filing/elibrary.asp
). This is the same means of publication as all other
filings with FERC, including publication of the preliminary and
modified conditions. FERC filing requirements are outlined in 18 CFR
385.2001.
In sum, the Department is of the view that this framework will
ensure an expeditious, cost-effective, and informed process that
advances the National Energy Policy's streamlining goals. The MCRP and
the appeals components of the review process build from the same
record. This ensures consistency and reduces the need for rehearing or
judicial review of FERC licensing decisions. Also, by utilizing the
record developed through the MCRP, the proposed appeals process imposes
only specific, minimal burdens on applicants and other parties. Such
efficiency helps to ensure that the process will be completed within 60
days from the Department's receipt of an appeal. To ensure that the
process is cost-effective and well-informed, the Department has
developed appeal criteria that encourage innovation by license
applicants, and ensure careful development of mandatory conditions and
prescriptions. Also, the process provides for policy level review of
mandatory conditions and prescriptions in a forum that is consistent
with FERC's substantial evidence requirements and comports with the
Department's statutory and Indian trust responsibilities. All of these
mechanisms will benefit the Department's exercise of its Federal Power
Act authorities as well as improve coordination with FERC's licensing
process.
C. Pending Legislation
The Department is aware of a proposal for amending the Federal
Power Act that is currently being considered by Congress.\4\ The
Department invites comment about whether elements of the legislative
proposal should be incorporated into this rulemaking, specifically:
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\4\ The above discussion centers on the hydropower title passed
by the House in H.R. 6 and by the Senate in S. 14 in the 108th
Congress. The same language also appears in S. 2095 which was
introduced in the Senate on February 12, 2004. Language regarding
alternative hydropower conditions was also included in bills that
reached conference in the 107th Congress.
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(1) Should the Department include a provision for an on-the-record,
trial-type hearing on disputed issues of material fact? If not, why,
and if so, why? If a respondent indicates support for a trial-type
hearing on disputed issues of material fact, the Department requests
that it provide specific examples of disputed material facts from past
or present proceedings, and describe in detail how such a process would
work in light of FERC schedules for the three hydropower licensing
processes it has established;
(2) The provisions of sections 25.56 et seq. cover the substantive
requirements for appeals and standards by which appeals will be
resolved. The record will document the basis for resolving the appeal.
Are there other criteria that should be weighed, and are there tests
that respondents suggest be considered in how to weigh such criteria?
In the consideration of conditions and prescriptions should the
Department give equal consideration to energy supply, distribution,
cost and use; flood control; navigation; water supply; and air quality
(in addition to the preservation of other aspects of environmental
quality)? Should the Department consider other factors? How would the
Department demonstrate that equal consideration was given to these
factors? What would be the implications of providing equal
consideration to such factors for the Department's duties to protect
tribal resources, fish, wildlife, and cultural resources if this
standard were applied?
(3) Should the Department be required to accept an alternative
condition proposed by a license applicant if it provides adequate
protection and utilization of the reservation, costs less to implement,
and results in improved operation of the project works for electricity
production? Please provide the reasons for your response.
(4) Should the Department be required to accept an alternative
prescription proposed by a license applicant if it is no less
protective than the fishway prescribed by the Department, costs less to
implement, and results in improved operation of the project works for
electricity production? Please provide the reasons for your response.
(5) In questions (3) and (4) above, an element of the criteria
required is that the alternative proposed by the applicant ``costs less
to implement.'' If the applicant, for whatever reason, such as improved
operations, favors an alternative that is more expensive than that in
the Department's modified condition or prescription, is there any
reason it should be rejected so long as it is ``equally effective?''
IV. Commission Coordination
The Commission is on record supporting the MCRP and an appeals
process. In comments on the MCRP dated June 26, 2000, Commission staff
stated: ``Because decisions regarding mandatory conditions are
essentially reserved to the Departments, public process before the
Commission on these
[[Page 54607]]
issues is of very limited value. Creating a public process conducted by
the Departments on draft mandatory conditions will ensure that public
input is available to the Departments, and will help build an
administrative record to support reasoned decision-making. Commission
staff encourages the Departments to establish formal procedures,
preferably in the form of a procedural rule that is codified in the
Departments' regulations, for making draft mandatory conditions
available to the public, and considering public comment received on
those draft conditions.''
The Commission has also encouraged the Department's establishment
of an appeals process. In a February 20, 2003, Notice of Proposed
Rulemaking, 102 FERC ] 61,185, FERC stated the following: ``We
appreciate the collegial spirit in which the Departments of
Agriculture, Commerce, and the Interior, in particular, have worked
with us during the development of this proposed rule. We applaud the
announcement of Interior's Assistant Secretary--Policy, Management, and
Budget, at our joint hearing on November 7, 2002, in this proceeding,
that Interior is developing an administrative appeals process for its
mandatory conditions.''
FERC's current schedule calls for initiating work on the final NEPA
document upon the filing of modified conditions and prescriptions by
resource agencies, and completing that document within 90 days. The
Department is of the view that appeals of mandatory conditions and
prescriptions should follow filing of modified conditions. This will
provide regional officials with a full opportunity to consider comments
filed during the MCRP comment period and on FERC's draft NEPA document.
The regional officials can thus address various issues and concerns at
the modified stage, thereby reducing disputes over conditions and
prescriptions. This should cut down significantly on the number of
licenses being appealed to assistant secretaries, and the number of
requests for rehearing before FERC and subsequent litigation.
The Department recognizes that the timing of the appeals process as
proposed potentially could stretch FERC's schedule for completing final
NEPA documents by up to 90 days in some cases. The Department's
proposed process for filing of appeals and comments on them, and their
consideration and resolution by assistant secretaries or other
officials is a 90-day process which the Department considers to be the
minimum amount of time in which appeals can be realistically managed
given the flood of other business before assistant secretaries. The
Department also notes that the new FERC integrated licensing process is
scheduled to be conducted within a 17-month period of the two years
allowed for timely consideration of license applications without
requiring resort to license extensions, and that there are at least
four options for dealing with the apparent timing conflict between the
proposed appeals process and FERC's NEPA schedule. Those four final
NEPA timing options are: (1) Continue with the current FERC schedule
since, historically, only about 25 percent of licenses have included
mandatory conditions or prescriptions and an even smaller proportion of
proceedings would likely include an appeal, much less one in which the
resolution rendered the final NEPA document inadequate, resulting in
the final NEPA document being within proper scope; (2) delay the NEPA
preparation schedule until the Interior appeal deadline (30 days), or
if an appeal is filed, consider adding an additional NEPA alternative
to better assure that the final NEPA document will be properly scoped;
(3) delay the NEPA preparation schedule for 90 days to assure that the
results of the appeals process are fully considered in the final NEPA
document; or (4) prepare a supplement to the final NEPA document if it
turns out that resolution of the appeal would render the final NEPA
document inadequate for the decision before the FERC commissioners.
Using any of these four options, the licensing process could still be
completed within the two year limit without resort to license
extensions. The Department, however, is sensitive to the issue of
potentially extending the duration of the licensing process, and
invites comment on how best to fit the appeals process into existing
FERC hydroelectric licensing processes and the seriousness of a
potential 90-day delay in those processes compared to an opportunity
for consideration of appeals and further public comment at the policy
level within the Department.
V. Procedural Requirements
1. Regulatory Planning and Review (E.O. 12866)
This document is a significant rule. Though this rule will not have
an adverse effect or an annual effect of $100 million or more on the
economy, the preliminary assessment of the Office of Management and
Budget (OMB) is that the provision for public participation through the
MCRP process and the addition of an opportunity for an appeal under the
rule may represent novel approaches to public input and review, may
serve as a model for future rulemakings, and may have interagency
implications. Therefore, the rule will be reviewed by the OMB under
Executive Order 12866.
(1) This rule will not have an annual effect of $100 million or
more on the economy. The review and comment procedures of the MCRP are
already in place, and codifying these procedures as a rule will not
impose new costs. The Department expects about two appeals per year
under the proposed rule, requiring about 200 hours of additional work
by the applicant. Staff costs for two applicants per year clearly fall
well short of $100 million. This conclusion also holds in a worst-case
analysis; if every applicant appealed modified conditions and
prescriptions, that would represent about eight appeals per year.
Furthermore, since the decision to appeal is entirely at the discretion
of the applicant, that cost will only be incurred when an applicant
decides the cost will be justified by the benefits of the process.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. The
proposed rule is designed to fit within the Commission's current and
proposed rules for hydropower licensing. The Commission is on record
supporting the MCRP and an appeals process (See part IV above).
(3) This rule will not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. This proposed rule concerns only public review and
administrative appeal procedures for the Department's hydropower
licensing conditions and prescriptions. The rule merely streamlines and
improves the Department's participation in the licensing of hydropower
generating facilities.
(4) This rule does not raise novel legal issues. The preliminary
assessment of the Office of Management and Budget (OMB) is that the
rule may raise novel policy issues, in that it represents a potentially
new approach to public input.
2. Regulatory Flexibility Act
The Department certifies that the proposed rule will not have a
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The proposed rule will not affect a substantial number of small
entities. According to the Small Business
[[Page 54608]]
Administration, for NAICS code 221111 hydroelectric power generation, a
firm is small if, including its affiliates, its total electric output
for the preceding fiscal year did not exceed 4 million megawatt hours.
Over half of the Commission-licensed projects are less than 5 megawatts
of capacity (542 of 1009). Over 80 percent of Commission licensees hold
only one license (483 of 598). Despite the fact that the regulated
community of Commission licensees does include a substantial number of
small entities, the number of affected entities in a given year is
likely to be small. During the period from 2001 to 2003, of 108
licenses issued by the Commission, 13 contained conditions or
prescriptions from the Department of the Interior. Eight of these 13
affected small entities.
More important, the effect of the proposed rule will not be
significant. The only action required of any entity under the proposed
rule is the preparation and submission of an appeal. Applicants already
prepare and submit comments on conditions pursuant to the MCRP, which
is currently in effect as a policy.
To file an appeal, the applicant would simply collect information
already in the record of the proceeding before the Commission, and put
it together in the format described in the proposed rule. Since the
decision to appeal is entirely at the discretion of the applicant, that
cost will only be incurred when an applicant decides the cost will be
justified by the benefits of the process. For these reasons, the
proposed rule will not have a significant economic effect.
3. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule does not have
an annual effect on the economy of $100 million or more. (See
conclusion under Section 1 above.) This rule will not cause a major
increase in costs or prices for consumers, individual industries,
Federal, State, or local government agencies, or geographic regions. A
public review process and administrative appeals process for the
Department's hydropower conditions and prescriptions will not affect
costs or prices. This rule will not have significant, adverse effects
on competition, employment, investment, productivity, innovation, or
the ability of United States based enterprises to compete with foreign-
based enterprises.
4. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments in the aggregate or on the private sector of more
than $100 million per year. The rule does not have a significant or
unique effect on State, local, or tribal governments or the private
sector. State, local, and tribal governments routinely file comments on
the Department's licensing conditions under the existing MCRP policy.
The new appeal opportunity will only be available to the license
applicant, and, as discussed above, the costs to the applicant will be
small and the Department expects that there will be an improvement in
ensuring consistency and transparency. Therefore, a statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
5. Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. The Departmental conditions and
prescriptions included in hydropower licenses relate to operation of
hydropower facilities on resources not owned by the applicant (public
waterways and/or public lands). Therefore, this rule will not result in
a taking of private property, and a takings implication assessment is
not required.
6. Federalism (E.O. 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. There is no foreseeable effect on States of
codifying procedures for public review of Departmental conditions and
prescriptions, or providing the applicant with an opportunity for an
administrative appeal of such. The rule, which governs only the
Department's responsibilities in hydropower licensing, does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or in the distribution of power
and responsibilities among the various levels of government. The rule
does not preempt State law. Therefore, a Federalism Assessment is not
required.
7. Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. The proposed rule has been reviewed and provides clear
language as to what is allowed and what is prohibited. Litigation
regarding Commission hydropower licenses currently begins with
rehearing at the Commission, and then moves to Federal appeals court.
By offering public review and an administrative appeal of conditions
and prescriptions imposed by the Department, the rule will likely
result in a decrease in the number of proceedings that are litigated.
In addition, it is not anticipated that more than an average of two
appeals will be filed in any given year.
8. Paperwork Reduction Act
The proposed rule contains provisions that would collect
information from the public and therefore requires approval by the
Office of Management and Budget (OMB) under the Paperwork Reduction Act
(PRA) of 1995. According to the PRA, a Federal agency may not conduct
or sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number
that indicates OMB approval. For this approval, Form 83-I and
supporting information have been submitted to OMB.
The purpose of the information collection in this rulemaking is to
provide an opportunity for license applicants to appeal mandatory
conditions and prescriptions before licenses are issued by the
Commission. It is estimated that an average of six new licenses with
mandatory conditions will be issued each year for the next few years,
and that an average of two license applicants will appeal the mandatory
conditions each year. It is estimated that the burden for filing an
appeal under Subpart B of the proposed rulemaking is 200 hours; thus,
the total information collection burden of this rulemaking would be
about 400 hours per year.
As required by OMB regulations at 5 CFR 1320.8(d)(1), on behalf of
OMB, the Department is requesting your comments on this information
collection. In particular, your comments to OMB should address: (1)
Whether the proposed collection of information is necessary and
appropriate for its intended purpose; (2) the accuracy of our estimate
of the burden; (3) ways to enhance the quality, utility, and clarity of
the information collected; and (4) ways to minimize the burden on the
respondents of the collection of information, including the possible
use of automated collection techniques or other forms of information
technology.
OMB must make a decision concerning approval of this collection of
information no sooner than 30 days, but no later than 60 days, after
the proposed rule is published in the Federal
[[Page 54609]]
Register. Therefore, your comments on the information collection are
best assured of having their maximum effect if OMB receives them within
30 days of publication. Your comments should be directed to OMB via
facsimile or e-mail as indicated in the ADDRESSES section of this
rulemaking. Please also send a copy of your comments to us at the
address indicated in the ADDRESSES section.
If you wish to obtain a copy of our full submission to OMB
requesting approval of this information collection, which includes the
OMB form 83-I and supporting statement, please contact the person
listed in the FOR FURTHER INFORMATION CONTACT section. A copy will be
sent to you at no charge.
9. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. The Department has
determined that the proposed rule is categorically excluded from review
under section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)). The Department
has made this determination pursuant to 516 Departmental Manual (DM),
Chapter 2, Appendix 1, Item 1.10, which excludes ``policies,
directives, regulations and guidelines of an administrative, financial,
legal, technical or procedural nature; or the environmental effects of
which are too broad, speculative or conjectural to lend themselves to
meaningful analysis and will be subject later to the NEPA process,
either collectively or case-by-case.'' In addition, the Department
found that the proposed rule would not significantly affect the 10
criteria for exceptions to categorical exclusion listed in 516 DM 2,
Appendix 2. Therefore, a detailed statement under NEPA is not required.
10. Government-to-Government Relationship With Indian Tribes
In accordance with the President's 1994 Executive Memorandum,
Government-to-Government Relations with Native American Tribal
Governments, 59 FR 22951 (April 29, 1994), supplemented by Executive
Order No. 13,175, Consultation and Coordination with Indian Tribal
Governments, 65 FR 67249 (November 6, 2000), and 512 DM 2, the
Department has assessed the impact of the proposed rule on tribal trust
resources and has determined that it does not directly affect tribal
resources. The proposed rule is of a procedural and administrative
nature. It should be clear, however, that individual Departmental 4(e)
conditions and section 18 fishways may directly affect tribal
resources, and the Department will consult with tribal governments when
developing conditions and prescriptions that directly affect those
tribal trust resources. The Department will consult with Indian tribes
during the MCRP and at appropriate times during the appeal process.
11. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
In accordance with Executive Order 13211, the Department has
determined that the proposed rule will not have substantial direct
effects on energy supply, distribution, or use, including shortfall in
supply or price increase. Recent analysis by the Commission has found
that on average installed capacity increased through licensing by 4.06
percent, and the average annual generation loss, attributable largely
to increased flows to protect aquatic resources, was 1.59 percent.\5\
Since the licensing process itself has such a modest energy impact,
this proposed rule, which affects only the Department's review and
appeal policies, is not expected to have a significant impact (i.e.,
reductions in electricity production in excess of 1 billion kilowatt-
hours per year or in excess of 500 megawatts of installed capacity).
---------------------------------------------------------------------------
\5\ Report on Hydroelectric Licensing Policies, Procedures, and
Regulations, Comprehensive Review and Recommendations Pursuant to
Section 603 of the Energy Act of 2000, prepared by the staff of the
Federal Energy Regulatory Commission, May 2001.
---------------------------------------------------------------------------
12. Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. The Department invites your comments on
how to make this rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the rule
clearly stated? (2) Does the rule contain technical language or jargon
that interferes with its clarity? (3) Does the format of the rule
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce its clarity? (4) Would the rule be easier to understand
if it were divided into more (but shorter) sections? (5) Is the
description of the rule in the SUPPLEMENTARY INFORMATION section of the
preamble helpful in understanding the proposed rule? (6) What else
could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Mail Stop
7229, Department of the Interior, 1849 C Street, NW., Washington, DC
20240. You may also e-mail the comments to this address:
Exsec@ios.doi.gov.
List of Subjects in 43 CFR Part 25
Administrative practice and procedure, Indians--lands; National
parks, Public land, Water resources, Wildlife.
Dated: September 2, 2004.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget, U.S. Department of
the Interior.
For the reasons set forth in the Preamble, part 25 of Title 43 of
the Code of Federal Regulations is proposed to be added, as set forth
below.
PART 25--HYDROPOWER LICENSING; CONDITIONS AND PRESCRIPTIONS
Subpart A--Mandatory Conditions Review Process
Sec.
25.1 What is the purpose of this subpart?
25.2 What terms are used in this subpart?
25.3 What is the Mandatory Conditions Review Process?
25.4 When is the Mandatory Conditions Review Process triggered?
25.5 When will the Department file its preliminary conditions or
prescriptions?
25.6 When may the public review and comment on the Department's
preliminary conditions and prescriptions?
25.7 When will the Department submit modified conditions and
prescriptions to FERC?
25.8 What process will be used to review conditions and
prescriptions submitted as part of an offer of settlement, whether
in an alternative licensing process or otherwise?
Subpart B--Procedures for Appeal of Mandatory Conditions and
Prescriptions in FERC Hydropower Licensing
25.50 What is the purpose of this subpart?
25.51 What terms are used in this subpart?
25.52 Who may appeal?
25.53 What limits are there to raising an issue on appeal?
25.54 When is an appeal timely?
25.55 Where is the appeal filed?
25.56 What must the appeal include?
25.57 Who may comment on an appeal?
25.58 Who will review the appeal?
25.59 How will the appeal be reviewed?
25.60 How will results of the review be made available?
Authority: 5 U.S.C. 301; 16 U.S.C. 3, 668 dd(d)(1); 25 U.S.C. 2,
9; 43 U.S.C. 1201, 1740.
Subpart A--Mandatory Conditions Review Process
Sec. 25.1 What is the purpose of this subpart?
This subpart describes the process for the public to review and
comment on mandatory conditions and prescriptions
[[Page 54610]]
developed by the Department of the Interior for inclusion in a
hydropower license issued under subchapter I of the Federal Power Act,
16 U.S.C. 791-823c. The authority to develop these conditions and
prescriptions is granted by sections 4(e) and 18 of the Federal Power
Act, 16 U.S.C. 797(e) and 811, which authorize the Secretary to
condition hydropower licenses issued by the Federal Energy Regulatory
Commission and to prescribe fishways.
Sec. 25.2 What terms are used in this subpart?
As used in this subpart:
Bureau means the U.S. Fish and Wildlife Service, National Park
Service, Bureau of Land Management, Bureau of Reclamation, or the
Bureau of Indian Affairs.
Department means the U.S. Department of the Interior or one or more
of its constituent bureaus.
FERC means the Federal Energy Regulatory Commission.
FPA means the Federal Power Act, 16 U.S.C. 791-823c.
REA Notice means a notice issued by FERC that states that a license
application is Ready for Environmental Analysis.
Sec. 25.3 What is the Mandatory Conditions Review Process?
The Mandatory Conditions Review Process is a process that allows
the public to review and comment on preliminary conditions and
prescriptions that the Department of the Interior submits for inclusion
in a hydropower license issued under subchapter I of the FPA. The
process is open to the license applicant, all participants in the
licensing process, and the public generally, and is limited to
conditions and prescriptions submitted pursuant to sections 4(e) and 18
of the FPA, 16 U.S.C. 797(e) and 811. It does not apply to
recommendations filed under sections 10(a) and 10(j) of the FPA, 16
U.S.C. 803(a) and (j).
Sec. 25.4 When is the Mandatory Conditions Review Process triggered?
The Mandatory Conditions Review Process is triggered when FERC
issues a notice indicating that a license application filed pursuant to
subchapter I of the FPA, is ready for environmental analysis (REA
Notice).
Sec. 25.5 When will the Department file its preliminary conditions or
prescriptions?
(a) Unless the circumstances in paragraphs (b) or (c) of this
section apply, the Department will file its preliminary conditions and
prescriptions with FERC within 60 days after FERC issues its REA
Notice. The Department will include a rationale for the conditions and
prescriptions, reference relevant documents already filed with FERC,
and provide a schedule of when the preliminary conditions and
prescriptions will be modified. The Department's submission to FERC
will enable the public to submit comments and new supporting evidence
on the preliminary conditions and prescriptions within the comment
period provided in Sec. 25.6(a).
(b) Exceptional circumstances, such as the filing of competing
applications for a hydropower license, may preclude the Department from
filing preliminary conditions and prescriptions within 60 days after
FERC issues its REA Notice. When exceptional circumstances occur, the
Department will work with FERC and the applicant(s) on a case-by-case
basis to ensure that an opportunity for public review and comment is
provided.
(c) If the Department determines that it does not have sufficient
information, such as completed reports on required studies or
information on technical feasibility, to support the filing of
preliminary conditions and prescriptions, it may exercise its authority
under sections 4(e) and 18 of the FPA by reserving the authority to
submit conditions and prescriptions at a later date. In these
situations, instead of filing preliminary conditions and prescriptions,
the Department will file with FERC its reservation of authority within
60 days after FERC issues its REA Notice and will provide the reasons
for this action. The Department will accept comments on its reservation
of authority.
Sec. 25.6 When may the public review and comment on the Department's
preliminary conditions and prescriptions?
(a) The first opportunity for the public to review and comment on
the Department's preliminary conditions and prescriptions is the 45-day
period immediately following the Department's submission of preliminary
conditions and prescriptions to FERC.
(b) A second opportunity for public review and comment on the
Department's preliminary conditions and prescriptions can occur during
the period(s) provided by FERC for public comment under the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., on FERC's
draft NEPA document for the license. All comments on the Department's
preliminary conditions and prescriptions that are submitted along with
comments on the draft NEPA document (or environmental assessment if no
draft NEPA document is prepared) should be identified as such.
(c) Comments, which should include supporting evidence, submitted
under either paragraph (a) or (b) of this section should be sent
directly to the office identified in the Department's submission of
preliminary conditions and prescriptions.
(d) Comments submitted during the comment period set forth in
paragraph (a) of this section need not be resubmitted during the
comment period set forth in paragraph (b) of this section.
Sec. 25.7 When will the Department submit modified conditions and
prescriptions to FERC?
(a) After reviewing FERC's draft NEPA document (or environmental
assessment if no draft NEPA document is prepared) and all comments
timely received on the Department's preliminary conditions and
prescriptions, and after coordinating with Indian tribes and other
resource agencies, the Department will modify its preliminary
conditions and prescriptions, as needed, and respond to comments.
(b) Based on this review, the Department will submit modified
conditions and prescriptions to FERC within 60 days after the close of
the comment period in Sec. 25.6(b) unless substantial or new
information is received during this comment period that requires
additional time for review. In those infrequent situations, the
Department will inform FERC, all commenters, and all persons on the
FERC service list for the proceeding why such additional time is needed
and when it will submit the modified conditions and prescriptions.
(c) The submission described in Sec. 25.7(b) will include the
Department's response to comments, an index of the Department's
administrative record, and a schedule for filing its administrative
record with FERC.
Sec. 25.8 What process will be used to review conditions and
prescriptions submitted as part of an offer of settlement, whether in
an alternative licensing process or otherwise?
(a) If the Department submits to FERC preliminary or modified
conditions and prescriptions that are not part of an offer of
settlement, the procedures in Sec. Sec. 25.6 and 25.7 respectively will
apply.
(b) If the Department submits to FERC conditions and prescriptions
that are part of an offer of settlement, the following procedures will
apply:
(1) The Department will review any comments and supporting evidence
submitted in response to FERC's notice calling for comments on the
offer of settlement that directly address the Department's agreed-upon
mandatory conditions and prescriptions.
[[Page 54611]]
(2) If the comments are substantive, raise issues not previously
identified, and may require changes to the agreed-upon mandatory
conditions and prescriptions and/or the offer of settlement, the
Department will, in accordance with any applicable settlement
communications protocol, discuss the comments and their appropriate
resolution with the other settlement participants. If the Department
determines, after discussion with the other settlement participants,
that the comments warrant a change in the agreed-upon mandatory
conditions and prescriptions, the Department will modify the agreed-
upon mandatory conditions and prescriptions.
(3) The Department will submit to FERC any changes to the agreed-
upon mandatory conditions and prescriptions that are made as a result
of comments received under paragraph (b)(2) of this section.
(4) The process described in this paragraph (b) will be the only
opportunity for review of the Department's agreed-upon mandatory
conditions and prescriptions submitted pursuant to an offer of
settlement.
Subpart B--Procedures for Appeal of Mandatory Conditions and
Prescriptions in FERC Hydropower Licensing
Sec. 25.50 What is the purpose of this subpart?
The purpose of this subpart is to describe the appeals process that
an applicant for a hydropower license may use to obtain administrative
review of modified conditions and prescriptions.
Sec. 25.51 What terms are used in this subpart?
Applicant means a person or legal entity applying to FERC for a
hydropower license at a FERC jurisdictional facility under the Federal
Power Act, 16 U.S.C. 791-823c.
Bureau means the U.S. Fish and Wildlife Service, National Park
Service, Bureau of Land Management, Bureau of Reclamation, or the
Bureau of Indian Affairs.
Department means the U.S. Department of the Interior or one or more
of its constituent bureaus.
FERC means the Federal Energy Regulatory Commission.
Indian tribe means a federally recognized Indian tribe.
Mandatory Conditions Review Process (MCRP) means the process
described in 43 CFR Part 25, Subpart A.
Modified conditions and prescriptions means mandatory conditions
and prescriptions developed for inclusion in a hydropower license
pursuant to sections 4(e) and 18 of the Federal Power Act, 16 U.S.C.
797(e) and 811, as modified through the MCRP and filed with FERC after
the close of the comment period on the draft National Environmental
Policy Act (NEPA) document (or environmental assessment if no draft
NEPA document is prepared).
Sec. 25.52 Who may appeal?
This appeals process is available to applicants for a hydropower
license in proceedings in which the Department establishes one or more
modified conditions or prescriptions.
Sec. 25.53 What limits are there to raising an issue on appeal?
The Department's issuance of one or more modified conditions or
prescriptions for inclusion in a hydropower license pursuant to
sections 4(e) and 18 of the Federal Power Act, 16 U.S.C. 797(e) and
811, may be appealed if the specific issue was previously raised during
the MCRP and in the FERC record, or if the modified condition or
prescription was primarily based on new information, including
technical and scientific data not available when the applicant
commented on the Department's preliminary conditions and prescriptions.
Modified conditions or prescriptions issued by the Bureau of
Reclamation specifically concerning dam safety or security may not be
appealed. Modified conditions or prescriptions agreed to in a
settlement agreement may not be appealed through this process. Appeals
will be reviewed pursuant to the process set forth in Sec. Sec. 25.55
and 25.59.
Sec. 25.54 When is an appeal timely?
(a) An appeal is timely if received by the Office of Environmental
Policy and Compliance (OEPC) within 30 calendar days after the date the
Department files its modified conditions and prescriptions with FERC.
The date of the Department's filing with FERC is determined by the date
stamp affixed by FERC to the modified conditions and prescriptions.
(b) No extensions of this deadline will be granted.
(c) An appeal not received in a timely manner will be dismissed.
(d) In computing the period of time for filing an appeal, the first
day shall be the day after the date affixed by FERC to the modified
conditions and prescriptions. The last day of the 30-day period is
included in the time period, unless it is a Saturday, Sunday, Federal
legal holiday designated at 5 U.S.C. 6103, or other nonbusiness day, in
which event the period does not close until the end of the next day
which is not a Saturday, Sunday, Federal legal holiday, or nonbusiness
day.
Sec. 25.55 Where is the appeal filed?
(a) An appeal must be filed with the Office of Environmental Policy
and Compliance (OEPC), U.S. Department of the Interior, MS 2342, 1849 C
St., NW, Washington, DC 20240. The appeal is deemed filed when it is
received by OEPC at this address. Upon receipt of the appeal, OEPC will
date-stamp the appeal, forward it to the Assistant Secretary (or
Assistant Secretaries) with supervisory responsibility over the bureau
(or bureaus) that developed the modified conditions or prescriptions,
and provide appropriate notice to FERC. The Assistant Secretary (or
Secretaries) will designate a professional Departmental review team
from a previously authorized, standing pool of Department hydropower
professionals to prepare, as appropriate, a substantive assessment of
the appeal. The professional review team cannot be comprised of
individuals who developed or approved the preliminary or modified
conditions or prescriptions that are under appeal, but may consult with
Departmental staff.
(b) The applicant shall simultaneously file an information copy of
the appeal with FERC. The applicant shall serve a copy of the appeal on
parties included on FERC's service list for the license proceeding. The
applicant shall certify this service in the appeal filed with OEPC.
(c)(1) The review team will conduct an initial evaluation to
determine if the appeal:
(i) Is properly filed consistent with Sec. Sec. 25.52, 25.53,
25.54, and this section; and
(ii) Contains the required documentation as set forth in Sec.
25.56; and
(iii) Proposes a remedy that is within the Secretary's authority.
(2) If either paragraph (c)(1)(i), (ii), or (iii) is not the case,
then the appeal shall be dismissed. Otherwise, the appeal shall be
processed.
Sec. 25.56 What must the appeal include?
For each condition or prescription challenged, the appeal must
include the following components. Appeals that do not provide the
following information may be dismissed.
(a) A concise statement of the specific reasons for appeal,
referencing and meeting at least one of the criteria in Sec. 25.59(c);
(b) A demonstration that the specific issues on appeal were raised
during the
[[Page 54612]]
MCRP and in the FERC record. If the Department's modified conditions
were primarily based on new information that was not available when the
applicant commented on the Department's preliminary conditions and
prescriptions, a clear identification of the condition or prescription
that was modified and the new information on which it was based;
(c) A summary of consultation with the Department, including a
statement of disagreements regarding studies, resource impacts, or
proposed protection, mitigation, or enhancement measures, as
appropriate to the matter or matters being appealed;
(d) A proposed alternative for the appealed condition or
prescription which is supported by substantial evidence in the record,
is set forth in at least the same level of detail as the appealed
condition or prescription, and is reasonably related to alternatives
raised during the MCRP and in the FERC record;
(e) An assessment of the effects of the proposed alternative on
fish, wildlife, and Indian trust resources; and
(f) Supplementary information that includes the following, as
applicable:
(1) The most recent Form 1 filing (if investor-owned utility) or
Form 412 filing (if publicly-owned applicant) filing; and if all or
part of the basis of the appeal is adverse effect on electricity
generation, power revenues, and/or the economic viability of the
project,
(i) Data on the most recent five years of system load for the
project, including an explanation of any anomalies attributable to a
specific time frame or hydrologic condition; and
(ii) An analysis that demonstrates, using historic cost and load
data and documented pro forma adjustments for future operations, the
impacts of the Department's proposed condition or prescription on the
cost and operational characteristics of the system, and which provides
a comparison to the applicant's proposal.
(2) [Reserved]
Sec. 25.57 Who may comment on an appeal?
Indian tribes, States, Federal agencies, and the public may comment
on an appeal. Comments shall be sent to OEPC at the address specified
in Sec. 25.55(a), and must be received by OEPC not later than 21
calendar days from the date on which the appeal was served, as
documented in the certification of service submitted by the applicant
pursuant to Sec. 25.55(b).
Sec. 25.58 Who will review the appeal?
The Assistant Secretary (or Assistant Secretaries) with supervisory
authority over the bureau establishing the modified condition or
prescription will review the appeal. If an applicant appeals the
modified conditions or prescriptions of more than one bureau in the
same licensing project, then the Assistant Secretaries with supervisory
authority over the bureaus shall coordinate their consideration of
appeals to assure consistency. If more than one Assistant Secretary is
involved and agreement among them is not reached, the appeal will be
resolved by the Secretary or the Secretary's designee.
Sec. 25.59 How will the appeal be reviewed?
(a) The Assistant Secretary's review authority is de novo.
(b) The Assistant Secretary will resolve the appeal after
considering, among other things, the materials submitted by the
applicant pursuant to Sec. 25.56, any substantive assessment prepared
by the professional review team designated pursuant to Sec. 25.55(a),
any comments submitted pursuant to Sec. 25.57, and any Federal, State,
or tribal conditions, prescriptions, or water quality certifications,
and pertinent portions of the administrative record filed with FERC in
support of the modified conditions or prescriptions.
(c) The Assistant Secretary will assess whether the applicant has
demonstrated that:
(1) The modified conditions or prescriptions conflict with
conditions or prescriptions of another Department, or conflict with
those of another bureau (or bureaus); or
(2) An alternative mitigation measure, preferred by the applicant,
is as effective as that of the Department; or
(3) The modified conditions or prescriptions are not reasonably
related to the impacts of the project because they mandate a level of
mitigation that is inappropriate given the level of impacts
attributable to the project.
(d) Before an Assistant Secretary adopts an alternative condition
or prescription, he or she must also find that the alternative:
(1) Is supported by the technical and scientific record submitted
with the appeal or compiled in the FERC proceeding;
(2) Provides protection consistent with the Department's trustee
responsibilities for Indian trust resources;
(3) Provides protection consistent with the Department's
responsibilities for fish, wildlife, and cultural resources; and
(4) Will not conflict with conditions or prescriptions of another
Department, or conflict with those of another bureau (or bureaus).
(e) The Assistant Secretary will resolve the appeal and file new
modified conditions or prescriptions or a notice that the previously
filed conditions or prescriptions will not be changed with FERC within
60 days of receipt by OEPC of the appeal.
Sec. 25.60 How will results of the review be made available?
(a) Findings and results of the review of the Assistant Secretary
will be collected and saved by OEPC in a retrievable format, and made
available to the public.
(b) Applicants and FERC will be informed promptly by the Department
of findings made by the Assistant Secretary (or Assistant Secretaries).
All relevant supporting information, to the extent not already part of
the FERC administrative record, will be filed with FERC within 15
calendar days of the Assistant Secretary's filing of the results of the
review with FERC.
[FR Doc. 04-20392 Filed 9-8-04; 8:45 am]