[Federal Register Volume 69, Number 23 (Wednesday, February 4, 2004)]
[Rules and Regulations]
[Pages 5268-5272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2223]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 2, 4, 5, 9, 16, 375, and 385

[Docket No. RM02-16-001; Order No. 2002-A]


Hydroelectric Licensing Under the Federal Power Act; Order on 
Rehearing of Final Rule

Issued January 23, 2004.

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Order on rehearing of final rule.

-----------------------------------------------------------------------

SUMMARY: On July 23, 2003, the Commission issued a final rule amending 
its regulations to establish a new hydroelectric licensing process that 
integrates pre-filing consultation with preparation of the Commission's 
NEPA document and improves coordination of the licensing process with 
other Federal and state regulatory processes. The final rule retained 
the existing traditional licensing process and the alternative 
licensing procedures, and established rule for selection of a licensing 
process. The final rule also modified some aspects of the traditional 
licensing process.
    The Commission herein denies the requests for rehearing and grants 
certain requests for clarification.

EFFECTIVE DATE: The revisions implemented in this order on rehearing of 
the final rule are effective October 23, 2003.

FOR FURTHER INFORMATION CONTACT: John Clements, Office of the General 
Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, 202-502-8070.

SUPPLEMENTARY INFORMATION: Before Commissioners: Pat Wood, III, 
Chairman; Nora Mead Brownell, Joseph T. Kelliher, and Suedeen G. Kelly.

I. Introduction

    1. In this order, the Commission addresses requests for rehearing 
of Order No. 2002, which amends the Commission's regulations for 
licensing of hydroelectric projects by establishing a new licensing 
process (the integrated process).\1\ The final rule also retains the 
existing traditional licensing process \2\ and the alternative 
licensing procedures (ALP).\3\ Requests for rehearing were filed by the 
Hydropower Reform Coalition (HRC), Edison Electric Institute (EEI), and 
Western Urban Water Coalition (WUWC).\4\
---------------------------------------------------------------------------

    \1\ 68 FR 51070 (Aug. 25, 2003); III FERC Stats. & Regs. ] 
31,150 (July 23, 2003). Corrections to the final rule were published 
in the Federal Register at 68 FR 61742-61743 (Oct. 30, 2003), 68 FR 
63194 (Nov. 7, 2003), and 68 FR 69957 (Dec. 16, 2003). The 
integrated process regulations are found in 18 CFR part 5.
    \2\ The traditional licensing process regulations are found in 
18 CFR parts 4 and, for relicensing, part 16.
    \3\ The alternative licensing procedures are found at 18 CFR 
4.34(e).
    \4\ WUWC is composed of various urban water utilities in several 
western states.
---------------------------------------------------------------------------

II. Discussion

A. Good Cause To Approve Use of Traditional Process

    2. The final rule provides that after a transition period ending 
July 22, 2005, the integrated process will be the default licensing 
process, but a potential license applicant may apply for authorization 
to use the traditional process or ALP.\5\ The standard for granting a 
request to use the traditional process or ALP is ``good cause 
shown.''\6\
---------------------------------------------------------------------------

    \5\ Until July 22, 2005, a potential applicant may elect to use 
either the traditional or integrated process, but must, as now, 
receive authorization to use the ALP.
    \6\ 18 CFR 5.3.
---------------------------------------------------------------------------

    3. Potential applicants requesting to use the traditional process 
and commenters thereon are encouraged to address various criteria. 
These are: (1) Likelihood of timely license issuance; (2) complexity of 
the resource issues; (3) level of anticipated controversy; (4) relative 
cost of the traditional process compared to the integrated process; (5) 
the amount of available information and potential for significant 
disputes over studies; and (6) other factors believed by the requester 
or commenter to be pertinent.\7\
---------------------------------------------------------------------------

    \7\ 18 CFR 5.3(c)(1)(ii).
---------------------------------------------------------------------------

    4. HRC states that it supports these criteria, but that the ``good 
cause'' standard should be specifically linked to overcoming the 
presumption that the integrated process is the default. Otherwise, it 
fears, the meaning of ``good cause'' and the significance of the 
criteria will be ambiguous. HRC requests that we define good cause to 
mean that use of the traditional process is more likely than the 
integrated process to maximize coordination of all pertinent regulatory 
processes, assure timely adoption and implementation of a study plan, 
and prevent, resolve, or narrow disputes related to the study plan and 
environmental protection measures.\8\
---------------------------------------------------------------------------

    \8\ HRC Request at pp. 4-5.
---------------------------------------------------------------------------

    5. EEI, supported by WUWC, requests that we clarify that good cause 
may be shown notwithstanding that a licensing proceeding is likely to 
be complex and controversial. In support, EEI suggests that non-
licensees will attempt to thwart requests to use the traditional 
process by manufacturing issues and controversies. It also reiterates 
comments on the notice of proposed rulemaking \9\ that complexity and 
controversy may make the integrated process less suitable than the 
traditional process because the former is more collaborative in nature, 
and that the cost of the integrated process may be so great as to 
outweigh all other considerations.
---------------------------------------------------------------------------

    \9\ 68 FR 13988 (Mar. 21, 2003); IV FERC Stats. & Regs. ] 32,568 
(Feb. 20, 2003).
---------------------------------------------------------------------------

    6. We are not persuaded that the regulations need to be changed or 
clarified in this regard. The outcomes included in HRC's suggested 
definition may weigh in favor of a good cause finding, but we are not 
prepared in advance of any requests being filed to conclude that they 
are the only, or the most important, considerations in all possible 
cases. We agree with EEI that good cause may be shown notwithstanding 
that a license proceeding is likely to be complex or controversial, but 
are also not prepared to speculate on the particular

[[Page 5269]]

circumstances of future applications in which that would be the case.

B. Pre-Application Document

    7. The first step in the integrated process is the potential 
applicant's notification of intent (NOI) to file a license application 
and the filing and distribution of the Pre-Application Document 
(PAD).\10\ The PAD is a tool for identifying issues and information 
needs, including for scoping under the National Environmental Policy 
Act (NEPA),\11\ developing study requests and study plans, and 
providing information for the Commission's NEPA document. It is a 
precursor to the environmental exhibit of the license application. It 
should include all engineering, economic, and environmental information 
relevant to licensing the project that is reasonably available when the 
NOI is filed and can be obtained with the exercise of due diligence.
---------------------------------------------------------------------------

    \10\ See 18 CFR 5.5 and 5.6.
    \11\ 42 U.S.C. 4321, et seq.
---------------------------------------------------------------------------

    8. Because the PAD plays an essential role in the integrated 
process, HRC requests that we incorporate into the regulations 
disincentives for filing and distributing a deficient PAD. 
Specifically, HRC recommends that a PAD be defined as deficient if the 
potential applicant fails to properly summarize existing information; 
show reasonable cause for any content deficiencies; or exercise due 
diligence in obtaining and presenting existing, relevant materials. 
Sanctions for a deficient PAD would include: Forfeiture of the 
potential applicant's right to contest additional information requests 
(AIRs), a reduced license term, or imposition of preliminary 
environmental protection measures during the term of annual licenses 
that may be issued.
    9. We decline to adopt this recommendation. HRC's proposed 
definition largely restates the due diligence requirement that is 
already in the regulations.\12\ Its proposed sanctions miss the mark. 
There is no incentive to prepare a poor quality PAD, as that would only 
result in additional data gathering or study requirements in the 
Commission-approved study plan. In any event, the process leading to 
the study plan should cure any such deficiencies, which makes the 
matter of post-application AIRs irrelevant. Forfeiture of a potential 
applicant's opportunity to contest an AIR would simply impair the 
Commission's ability to evaluate the merits of the request. Reducing 
the license term and imposing interim environmental measures are also 
not relevant to the curing of any deficiencies. As a general matter 
moreover, we are disinclined to establish a regime of sanctions before 
we have gained experience in the practical implementation of this new 
requirement.\13\
---------------------------------------------------------------------------

    \12\ 18 CFR 5.6(b)(1)(ii).
    \13\ HRC also points out that the PAD is required to be 
distributed to, among others, local governments (18 CFR 5.6(a)(1), 
but the NOI is not (18 CFR 5.5(c)). Since these documents are to be 
distributed together, HRC recommends that the distribution lists be 
reconciled. We agree, and the correction has been made (see n.1).
---------------------------------------------------------------------------

C. Dispute Resolution Panel

    10. The final rule establishes a formal study dispute resolution 
process in which resource agencies or Indian tribes with mandatory 
conditioning authority may dispute any element of the Commission-
approved study plan that pertains to the exercise of its conditioning 
authority. This dispute is submitted to an advisory panel of technical 
experts. The advisory panel convenes a technical conference before it 
makes its recommendation, which any interested party may attend, and at 
which the panel receives additional information and arguments in its 
discretion before it makes a recommendation based on the record to the 
Director of the Office of Energy Projects. The Director then resolves 
the dispute.\14\
---------------------------------------------------------------------------

    \14\ 18 CFR 5.14.
---------------------------------------------------------------------------

    11. In recognition of the fact that the potential applicant bears 
the burden of conducting any studies required in the approved study 
plan, we afforded it the right to submit comments and information to 
the advisory panel. This occurs prior to the technical conference.\15\
---------------------------------------------------------------------------

    \15\ 18 CFR 5.14(j).
---------------------------------------------------------------------------

    12. HRC argues that it is unfair and unlawful to grant a potential 
license applicant this right while other interested entities that are 
not parties to the dispute may only make submissions if requested to do 
so by the panel. HRC states that the only apparent reason for the 
policy is to reduce the process burden, which it contends is not a 
logical reason for the distinction between potential applicants and 
others. It adds that the policy will bias the Director's decision in 
favor of the potential license applicant. In support, HRC notes that 
the Administrative Procedures Act (APA) generally requires that all 
interested parties must be given an opportunity to submit facts and 
arguments,\16\ and that the courts have held that the APA should be 
construed expansively so that the record does not reflect only the 
views of the project proponent. HRC therefore recommends that we modify 
Section 5.14(i) to permit any interested party to make a written filing 
regarding a formal dispute.
---------------------------------------------------------------------------

    \16\ HRC cites APA section 554(c), 5 U.S.C. 554(c), which states 
that agencies must ``give all interested parties an opportunity for 
the submission and consideration of facts, arguments, offers of 
settlement, or proposals of amendments when time, the nature of the 
proceeding and the public interest permit.''
---------------------------------------------------------------------------

    13. We decline to make the requested modification. The formal 
dispute resolution process applies only to disputes between the 
Commission staff and agencies or Indian tribes with mandatory 
conditioning authority that relate to the impact of the study plan on 
the ability of those entities to exercise their statutory authorities. 
Although other participants in the process may be interested in the 
outcome of that dispute, the potential applicant clearly has much more 
at stake because they bear the expense of implementing the study plan. 
These other participants also do not have the burden that conditioning 
agencies have to support a condition with substantial evidence.\17\
---------------------------------------------------------------------------

    \17\ This is fully consistent with APA section 554(c)'s language 
stating that the manner in which parties can participate can be 
defined in light of the nature of the proceeding and time 
constraints.
---------------------------------------------------------------------------

    14. We disagree as well with HRC's suggestion that the formal 
dispute resolution process excludes other interested entities from 
making submissions with respect to matters in dispute. The formal 
process applicable to disputes filed by conditioning agencies occurs 
only after all entities with an interest in the potential application 
have had the opportunity to submit information and arguments in support 
of their study requests during the development of the Commission-
approved study plan, which includes meetings for the specific purpose 
of resolving differences. Any disputes that parties without 
conditioning authority have with the potential applicant are resolved 
in that context. As noted, these other parties enjoy an additional 
opportunity to participate in the technical conference during any 
formal dispute resolution process that may be initiated with respect to 
their issues by an entity with mandatory conditioning authority. We 
anticipate that members of dispute resolution panels will act 
reasonably when deciding how such participation should be structured.
    15. As to assertions of a biased record, the advisory panel will 
have before it the submissions of the disputing agency and the 
potential applicant, plus all other information filed during the 
proceeding. Under these circumstances, we are confident that the panel 
will

[[Page 5270]]

have all of the information needed to make an unbiased recommendation.

D. Finality of Study Plan Orders

    16. EEI contends that study plan orders are final Commission orders 
binding on potential license applicants and are therefore subject to 
immediate rehearing and judicial review. EEI adds that study plan 
orders are inequitable because they are not binding on other parties, 
apparently in the sense that other parties can make subsequent requests 
to modify the required studies or make additional information gathering 
and study plan requests,\18\ or may require additional information in 
the context of their exercise of independent statutory authority, such 
as acting on applications for water quality certification under section 
401 of the Clean Water Act (CWA).\19\ EEI states that the Commission 
should make explicit provisions for rehearing and judicial review of 
study plan orders or, preferably, modify the rule by making study plan 
orders advisory.
---------------------------------------------------------------------------

    \18\ Such requests could be made in response to the potential 
applicant's initial or updated study reports provided for in section 
5.15 or in response to the potential applicant's preliminary 
licensing proposal, as provided for in section 5.16.
    \19\ 33 U.S.C. 1341.
---------------------------------------------------------------------------

    17. Study plans are not advisory, and EEI's request to consider 
them as such is denied. As to EEI's other arguments, once the Director 
makes a study plan determination pursuant to the authority delegated to 
the Director by the Commission in newly adopted section 
375.308(a)(i),\20\ that determination may then be appealed to the 
Commission in a request for rehearing pursuant to section 375.301(a) 
and 385.713 of the Commission's regulations.\21\ Any such occurrence 
should however be exceedingly rare. The study plan development process 
was designed to ensure that study requests are subject to established 
standards, that parties work together to resolve differing opinions, 
and that the Director's order establishing the study plan rests on the 
standards and the complete record developed by the participants with 
the advice and assistance of Commission staff. Whether judicial review 
of the Commission's decision on rehearing is appropriate is a matter to 
be determined by the court from which judicial review is sought.
---------------------------------------------------------------------------

    \20\ 18 CFR 375.308(aa)(i).
    \21\ 18 CFR 375.301(a) and 385.713.
---------------------------------------------------------------------------

E. Additional Information Requests

    18. The rule makes no express provision for parties to make 
additional information requests following the filing of a license 
application. Rather, it concludes that the multiple opportunities to 
request information and studies and to resolve study disputes during 
the pre-application phase of the proceeding will ensure that the 
application will include all information needs.\22\
---------------------------------------------------------------------------

    \22\ 68 FERC at p. 51,094, III FERC Stats. & Regs. at pp. 
30,731-732.
---------------------------------------------------------------------------

    19. HRC states that as a result the last opportunity for new 
information requests will be in response to the preliminary license 
proposal (or draft license application, should the potential applicant 
elect to file one), but that there could be significant changes between 
the preliminary license proposal and the filed application that would 
require additional information. This is possible, but unlikely. In any 
event, and as we previously explained, the possibility of material 
changes in circumstances has always been inherent in the license 
application process, and the Commission has always exercised its 
authority to require additional information in appropriate cases, on 
its own initiative or in response to the request of a party.\23\
---------------------------------------------------------------------------

    \23\ Id.
---------------------------------------------------------------------------

    20. Section 5.15(f) \24\ provides that requests for new information 
gathering or studies in response to a potential applicant's updated 
study report describing its overall progress in implementing the study 
plan and schedule must demonstrate ``extraordinary circumstances.'' HRC 
states that this term, which is not defined in the regulations, should 
be defined as ``factors that could not have been predicted or foreseen 
under the circumstances, especially those where there is a change in 
regulation or law.'' \25\
---------------------------------------------------------------------------

    \24\ 18 CFR 5.15(f).
    \25\ HRC Request at p. 19.
---------------------------------------------------------------------------

    21. We agree in general that unforeseeable events, including 
changes in laws or regulations, may constitute extraordinary 
circumstances with respect to identifying information needed for an 
analysis of a license application. We do not however wish to limit our 
discretion in this regard to the occurrence of such events, and the 
mere fact that an event was not foreseeable does not establish a 
connection between it and a request for additional information. We 
expect requesters to fully explain the circumstances supporting their 
requests, and will act reasonably when we consider them.

F. Draft NEPA Documents

    22. The Commission sometimes issues in non-controversial cases an 
environmental assessment (EA) that is not preceded by a draft EA. The 
integrated process regulations reflect that fact by establishing 
slightly different procedures depending on whether or not a draft EA is 
needed.\26\ HRC does not state that this practice is unlawful, but 
suggests that it is generally inconsistent with the thrust of NEPA and 
the Council on Environmental Quality's (CEQ) regulations, as well as 
our commitment to attach draft license articles to environmental 
documents by reducing the parties' opportunities for review and 
comment. HRC adds that the opportunity to comment on draft EAs can 
result in changes and corrections that reduce or eliminate requests for 
rehearing. HRC concludes that a draft EA should be omitted, if ever, 
only in the most benign of cases. It recommends that we eliminate 
sections 5.24 and 5.25, and instead include a section which defines 
limited circumstances under which a draft EA will not be required, 
based on a list of factors found in CEQ's regulations pertaining to 
whether or not a proposed action requires an EIS.
---------------------------------------------------------------------------

    \26\ See 18 CFR 5.24 (applications not requiring a draft NEPA 
document) and 5.25 (applications requiring a draft NEPA document).
---------------------------------------------------------------------------

    23. There is no need to make the changes recommended by HRC. The 
Commission has exercised its discretion in this regard very 
conservatively and the integrated process will enhance the parties' 
opportunities for input on and review of the record upon which the 
Commission makes its decisions. Sections 5.24 and 5.25 are moreover 
purely procedural provisions that set forth steps in the integrated 
process. They have no bearing on the decision of whether or not a draft 
EA is required.

G. Other Matters

1. Production and Distribution of the PAD
    24. HRC believes there may be an inconsistency between the document 
availability requirements of section 5.2(a) and the PAD distribution 
requirements of section 5.6. Section 5.2(a) states that a potential 
applicant must make the PAD and any materials referenced therein 
available for public inspection at its principal place of business or 
other accessible location, and to send the same to any requester at the 
reasonable cost of reproduction and postage. Federal and State fish and 
wildlife agencies and Indian tribes are, however, required to be 
provided with these materials without charge.
    25. Section 5.6(a) requires the PAD to be distributed to Federal, 
State, and interstate resource agencies, Indian

[[Page 5271]]

tribes, local governments, and members of the public likely to be 
interested in the proceeding. Section 5.6(c)(2) provides that sources 
of information referenced by, rather than included in, the PAD, such as 
scientific studies and voluminous data, must be provided upon request 
to recipients of the PAD. HRC is uncertain why the requirements of 
these sections are not identical, and requests that we clarify that 
both the PAD and materials referenced therein are available to all 
recipients of the PAD at no charge.
    26. We are granting the requested clarification. The document 
availability requirements of section 5.2(a) reflect the requirement of 
FPA section 15(b)(2) \27\ that a potential new license applicant 
maintain a ``library'' of relicensing materials which interested 
entities may examine and from which they may request documents to be 
reproduced at cost. It also reflects in part our previously existing 
requirement that the materials from the library be provided to certain 
Federal and State agencies at no charge.\28\
---------------------------------------------------------------------------

    \27\ 16 U.S.C. 808(b)(2).
    \28\ 18 CFR 16.7(e)(3).
---------------------------------------------------------------------------

    27. The PAD contents are related to the relicensing library 
contents, but are not identical. The PAD and materials referenced 
therein are to be distributed at no charge to the recipient, as is 
ordinarily the case with any other document required to be filed with 
the Commission or served upon other entities. This is consistent with 
our discussion of the industry's cost concerns in the final rule, 
wherein we reduced the content requirements for the PAD by permitting 
supporting materials to be referenced, and encourage potential 
applicants to take advantage of technological advances by arranging for 
distribution over the Internet, through CD-ROMs, or by other electronic 
means.\29\ To the extent a potential license applicant elects to 
include in its relicensing library any materials not required to be 
included in or referenced in the PAD (or otherwise required to be 
served on the parties), the potential applicant may charge entities 
other than Federal and State fish and wildlife agencies and Indian 
tribes reasonable costs of reproduction and postage.
---------------------------------------------------------------------------

    \29\ 68 FR 51077; III FERC Stats. & Regs. at p. 30,702.
---------------------------------------------------------------------------

2. Water Quality Certification
    28. The regulations provide that an application to amend a license 
or an amendment to a pending license application is required to include 
a new application for a water quality certification if ``the amendment 
would have a material adverse impact on the water quality in the 
discharge from the project.'' \30\ HRC states that this provision is 
inconsistent with Alabama Rivers Alliance v. FERC.\31\ The court there 
interpreted the requirement of CWA section 401(a)(1) \32\ that a state 
water quality certification must be provided or waived for ``any 
activity'' which ``may result in a discharge'' into navigable waters to 
include a license amendment which would result in an increase in the 
discharge from the project turbines. HRC states that we should modify 
our regulations accordingly. HRC overlooks however the fact that the 
Court found that the amendment in that case would result in the release 
of substantially increased volumes of water with low dissolved oxygen 
levels.\33\ We do not interpret the Court's ruling to hold that any 
increase in a project's discharge, however insignificant and innocuous, 
requires a new application for water quality certification. The Court 
moreover noted that the Commission's orders in the case did not address 
the applicability of the material adverse impact regulation to the 
licensee's amendment application,\34\ and stated that its decision was 
based solely on its interpretation of the discharge requirement of 
section 401(a)(1).\35\
---------------------------------------------------------------------------

    \30\ 18 CFR 4.34(b)(5)(iii). Prior to the final rule, this 
provision was located at 18 CFR 4.38(f)(7).
    \31\ 325 F.3d 290 (D.C. Cir. 2003).
    \32\ 33 U.S.C. 1341(a)(1).
    \33\ 325 F.3d at p. 299.
    \34\ Id. at p. 295, n.6.
    \35\ Id. at p. 296.
---------------------------------------------------------------------------

3. Cooperating Agencies Policy
    29. In the NOPR we proposed to reverse our policy that agencies 
which have been cooperating agencies for purposes of preparing a NEPA 
document may not thereafter intervene in a proceeding. In the final 
rule we concluded that the proposed policy change would violate the 
prohibitions of the APA and case law against ex parte 
communications.\36\
---------------------------------------------------------------------------

    \36\ 68 FR 51099-51100; III FERC Stats. & Regs. at pp. 30,740-
741.
---------------------------------------------------------------------------

    30. HRC concedes that our analysis in the final rule was correct, 
but asserts that our rules should include affirmative procedures for 
coordinating preparation of the Commission's NEPA document with the 
regulatory processes of other agencies in the absence of a cooperating 
agency agreement.
    31. We conclude that additional regulations are not needed. The 
integrated process rules provide ample opportunity for such 
coordination. In fact, the regulations are premised on the active 
participation of all entities interested in a license application from 
the time the NOI and PAD are filed. In particular, the integrated 
process provides for the development with the participation of other 
agencies a process plan and schedule and a Commission-approved study 
plan designed to maximize the likelihood that it will produce all the 
information needed by all agencies with conditioning authority for the 
proposed project.\37\
---------------------------------------------------------------------------

    \37\ Development of the study plan essentially encompasses all 
steps from filing and distribution of the NOI and PAD through 
completion of any needed formal dispute resolution (18 CFR 5.1 
through 5.14).
---------------------------------------------------------------------------

4. Timing of Request for Water Quality Certification
    32. Some entities have requested clarification of the filing 
deadline for license applicants to file a request for water quality 
certification pursuant to CWA section 401. In the integrated, 
traditional, and alternative processes, effective for applications 
filed on or after October 23, 2003, the water quality certification 
application must be filed no later than 60 days following issuance by 
the Commission of the notice requesting terms and conditions. In the 
integrated and traditional processes that will also be the notice that 
the application is ready for environmental analysis.\38\ Under the 
alternative procedures there may not be a specific notice that the 
application is ready for environmental analysis, but the notice 
requesting terms and conditions serves the same function.\39\
---------------------------------------------------------------------------

    \38\ See 18 CFR 4.34(b)(5) (traditional and alternative 
processes) and 18 CFR 5.23(b) (integrated process). See also 
discussion at 68 FR 51095-51096; III FERC Stats. & Regs. at p. 
30,735.
    \39\ See 18 CFR 4.34(b)(5)(ii).
---------------------------------------------------------------------------

III. Information Collection Statement

    33. The Office of Management and Budget's (OMB) regulations require 
that OMB approve certain information collection requirements imposed by 
agency rule.\40\ OMB approved the final rule issued in Order No. 2002 
on October 28, 2003. No changes have been made to the information 
collection requirements in this order on rehearing.
---------------------------------------------------------------------------

    \40\ 5 CFR part 1320.
---------------------------------------------------------------------------

IV. Environmental Analysis

    34. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\41\ 
Included in the

[[Page 5272]]

exclusions are rules that are clarifying, corrective, or procedural or 
that do not substantively change the effect of the regulations being 
amended. This rule is clarifying and procedural in nature and therefore 
falls under the exceptions. Consequently, no environmental 
consideration is necessary.
---------------------------------------------------------------------------

    \41\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs., Reg. Preambles 1986-1990 (Dec. 10, 1987).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act

    35. The Regulatory Flexibility Act of 1980 (RFA) \42\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The Commission is not required to make such an analysis if a rule would 
not have such an effect. The Commission certifies that this rule does 
not have such an impact on small entities.
---------------------------------------------------------------------------

    \42\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------

VI. Document Availability

    36. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through the Commission's Home Page (http://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5 p.m. eastern time) at 888 First Street, NE., Room 2A, 
Washington, DC 20426.
    37. From FERC's home page on the Internet, this information is 
available in eLibrary. The full text of this document is available in 
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or 
downloading. To access this document in eLibrary, type the docket 
number excluding the last three digits of this document in the docket 
number field.
    38. User assistance is available for eLibrary and the FERC's 
website during normal business hours from our Help line at (202) 502-
8222 or the Public Reference Room at (202) 502-8371 Press 0, TTY (202) 
502-8659. E-Mail the Public Reference Room at 
<a href="/cdn-cgi/l/email-protection#48383d2a24212b663a2d2e2d3a2d262b2d3a272725082e2d3a2b662f273e"><span class="__cf_email__" data-cfemail="1d6d687f71747e336f787b786f78737e786f7272705d7b786f7e337a726b">[email protected]</span></a>.

VII. Effective Date

    39. This order makes no changes to the final rule, which became 
effective on October 23, 2003. Because no changes were made, the 
provisions of 5 U.S.C. 801 regarding Congressional review of final 
rules do not apply to this order.

    By the Commission.
Magalie R. Salas,
Secretary.
[FR Doc. 04-2223 Filed 2-3-04; 8:45 am]
BILLING CODE 6717-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>