5268 Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 

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.

2The traditional licensing process regulations are 

found in 18 CFR parts 4 and, for relicensing, part 

16.

3The alternative licensing procedures are found 

at 18 CFR 4.34(e).

4WUWC is composed of various urban water 

utilities in several western states.

5Until 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.

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

8HRC Request at pp. 4–5.

9 68 FR 13988 (Mar. 21, 2003); IV FERC Stats. & 

Regs. ¶ 32,568 (Feb. 20, 2003).

ruleforum.llnl.gov). For information 

about the interactive rulemaking Web 

site, contact Ms. Carol Gallagher (301) 

415–6219, e-mail: CAG@nrc.gov.

FOR FURTHER INFORMATION CONTACT:

Brian J. Richter, Office of Nuclear 

Reactor Regulation, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555, Telephone (301) 415–1978, email: bjr@nrc.gov.

SUPPLEMENTARY INFORMATION: On 

November 20, 2003 (68 FR 65386), the 

NRC published a direct final rule 

amending its regulations in 10 CFR part 

50 related to decommissioning trust 

fund provisions to correct typographical 

errors and make minor changes to a 

final rule entitled ‘‘Decommissioning 

Trust Provisions,’’ promulgated by the 

NRC on December 24, 2002 (67 FR 

78332). In the direct final rule, NRC 

stated that if no significant adverse 

comments were received, the direct 

final rule would become effective on 

December 24, 2003. The NRC did not 

receive any comments on the direct 

final rule. Therefore, this rule is 

effective as scheduled.

Dated at Rockville, Maryland, this 29th day 

of January, 2004.

For the Nuclear Regulatory Commission. 

Michael T. Lesar, 

Chief, Rules and Directives Branch, Division 

of Administrative Services, Office of 

Administration.

[FR Doc. 04–2240 Filed 2–3–04; 8:45 am] 

BILLING CODE 7590–01–P

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

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

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

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

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.

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 

Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 5269

10See 18 CFR 5.5 and 5.6.

11 42 U.S.C. 4321, et seq.

12 18 CFR 5.6(b)(1)(ii).

13HRC 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).

14 18 CFR 5.14.

15 18 CFR 5.14(j).

16HRC 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.’’

17This 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.

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.

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

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

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

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.

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

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 Commissionapproved 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 

5270 Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 

18Such 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.

20 18 CFR 375.308(aa)(i).

21 18 CFR 375.301(a) and 385.713.

22 68 FERC at p. 51,094, III FERC Stats. & Regs. 

at pp. 30,731–732.

23 Id.

24 18 CFR 5.15(f).

25HRC Request at p. 19.

26See 18 CFR 5.24 (applications not requiring a 

draft NEPA document) and 5.25 (applications 

requiring a draft NEPA document).

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.

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.

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

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

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

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.

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 

Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 5271

27 16 U.S.C. 808(b)(2).

28 18 CFR 16.7(e)(3).

29 68 FR 51077; III FERC Stats. & Regs. at p. 

30,702.

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.

36 68 FR 51099–51100; III FERC Stats. & Regs. at 

pp. 30,740–741.

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).

38See 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.

39See 18 CFR 4.34(b)(5)(ii).

40 5 CFR part 1320.

41Order 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).

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. 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.

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

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

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 Commissionapproved 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

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

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.

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 

5272 Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 

42 5 U.S.C. 601–612.

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.

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.

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 

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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

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES

Food and Drug Administration

21 CFR Part 1271

[Docket No. 97N–484R]

Human Cells, Tissues, and Cellular and 

Tissue-Based Products; Establishment 

Registration and Listing; Correction

AGENCY: Food and Drug Administration, 

HHS.

ACTION: Interim final rule; correction

SUMMARY: The Food and Drug 

Administration (FDA) is correcting an 

interim final rule that published in the 

Federal Register on January 27, 2004 

(69 FR 3823). The interim final rule 

excepted human dura mater and human 

heart valve allografts, currently subject 

to application or notification 

requirements under the Federal Food, 

Drug, and Cosmetic Act from the scope 

of the definition of ‘‘human cells, 

tissues, or cellular or tissue-based 

products (HCT/P’s)’’ subject to the 

registration and listing requirements 

contained in 21 CFR Part 1271. That 

definition became effective on January 

21, 2004. The interim final rule 

published with some errors. This 

document corrects those errors.

FOR FURTHER INFORMATION CONTACT:

Paula S. McKeever, Center for Biologics 

Evaluation and Research (HFM–17), 

Food and Drug Administration, 1401 

Rockville Pike, Rockville, MD 20852–

1448, 301–827–6210.

SUPPLEMENTARY INFORMATION: In the FR 

Doc. 04–1733, appearing on page 3824 

in the Federal Register of Tuesday, 

January 27, 2004, the following 

corrections are made:

1. On page 3824, in the DATES section, 

by removing the sentence ‘‘The 

compliance date is March 29, 2004.’’

2. On page 3824, under 

SUPPLEMENTARY INFORMATION in the I. 

Background section, the phrase ‘‘FDA 

understands that many establishments 

may have reasonably expected FDA to 

delay the effective date of this provision 

again, since the donor suitability and 

GTP rules are not yet finalized’’ is 

revised to read:

‘‘FDA understands that many 

establishments may have reasonably 

expected FDA to delay the effective date 

of this provision again, since the donor 

suitability and GTP rules are not yet 

finalized. Accordingly, FDA expects 

that affected firms will be in compliance 

with these requirements by March 29, 

2004, and not on January 21, 2004, the 

effective date of the definition 

regulation.’’

Dated: January 29, 2004.

William K. Hubbard,

Associate Commissioner for Policy and 

Planning.

[FR Doc. 04–2312 Filed 1–30–04; 3:49 pm]

BILLING CODE 4160–01–S

DEPARTMENT OF THE TREASURY

Internal Revenue Service 

26 CFR Part 1

[TD 9105] 

RIN 1545–BC17

Changes in Computing Depreciation; 

Correction

AGENCY: Internal Revenue Service (IRS), 

Treasury.

ACTION: Correction to final and 

temporary regulations. 

SUMMARY: This document corrects final 

and temporary regulations (TD 9105) 

that were published in the Federal 

Register on January 2, 2004 (69 FR 5). 

The document contains regulations 

relating to a change in computing 

depreciation or amortization as well as 

a change from a nondepreciable or 

nonamortizable asset to a depreciable or 

amortizable asset (or vice versa).

DATES: This correction is effective 

January 2, 2004.

FOR FURTHER INFORMATION CONTACT: Sara 

Logan, (202) 622–3110 (not a toll-free 

number).

SUPPLEMENTARY INFORMATION: 

Background 

The final and temporary regulations 

(TD 9105) that is the subject of this 

correction is under section 446(e) of the 

Internal Revenue Code. 

Need for Correction 

As published, the final and temporary 

regulations (TD 9105) contain errors that 

may prove to be misleading and are in 

need of clarification. 

Correction of Publication

Accordingly, the publication of the 

final and temporary regulations (TD 

9105) that was the subject of FR. Doc. 

03–31820, are corrected as follows: 

1. On page 6, column 1, in the 

preamble, paragraph 3, line 3, the