52354 Federal Register / Vol. 62, No. 194 / Tuesday, October 7, 1997 / Notices

DEPARTMENT OF THE INTERIOR

Bureau of Reclamation

Review of Existing Coordinated LongRange Operating Criteria for Colorado

River Reservoirs (Operating Criteria)

AGENCY: Bureau of Reclamation,

Interior.

ACTION: Reissue of Notice of Proposed

Decision Regarding the Operating

Criteria

SUMMARY: The purpose of this action is

to provide public notice that the

Secretary of the Interior (Secretary)

proposes no change to the existing

Operating Criteria as a result of the

current review process. The current

review has been conducted as an open

public process, including formal

consultation with the seven Colorado

River Basin States (Basin States). The

results of the review indicate that

modification of the Operating Criteria is

not justified at the present time.

The original Federal Register notice

was published on August 27, 1997 (62

FR 45440). Due to requests from

interested parties and agencies, the

comment period has been extended by

the Bureau of Reclamation.

DATES: All written comments relevant to

this proposed decision must be received

by close of business, October 17, 1997.

ADDRESSES: Interested parties should

send comments or questions to Bruce

Moore, Bureau of Reclamation, 125

South State Street, Room 6107, Salt

Lake City, Utah 84138–1102, telephone

(801) 524–3702, or Jayne Harkins,

Bureau of Reclamation, P.O. Box 61470,

Boulder City, Nevada 89005, telephone

(702) 293–8190.

SUPPLEMENTARY INFORMATION: The

public review process began with a

Federal Register notice published on

August 20, 1996 (61 FR 43073),

announcing the review of the Operating

Criteria and inviting comments during

the 60 days following the notice. On

October 31, 1996, another Federal

Register notice (61 FR 56246) was

published announcing two public

consultation meetings and extending the

comment period an additional 30 days.

On November 4, 1996, a Fact Sheet

containing information about the

Operating Criteria review and an

invitation to the public consultation

meetings was sent to known and

anticipated interested parties and

agencies, and governor-designated

representatives of the Basin States,

inviting their participation.

Comments from the two Federal

Register notices were received from 18

respondents. The comments were

reviewed by the Bureau of Reclamation

for identification and analysis of the

issues. Public consultation meetings

were held on November 18, 1996, and

December 2, 1996, to discuss the

identified issues and answer questions

from all interested parties. A set of all

comment letters received was provided

to any interested party requesting a

copy. After the public consultation

meetings, the analyses of the issues

were revised to reflect any information

resulting from the two meetings. That

information was then sent to all

interested parties and participants in a

March 1997 newsletter entitled the

River Review.

In response to requests, another

public consultation meeting and an

additional 45-day comment period were

announced in the Federal Register on

March 28, 1997 (62 FR 14942). On April

4, 1997, a letter from the Reclamation

Team Leader containing the preliminary

results of Reclamation’s analysis on

each major issue area and an invitation

to attend the next public consultation

meeting was sent to all 18 respondents,

governor-designated representatives of

the Basin States, and any others who

had attended meetings or expressed an

interest in the review of the Operating

Criteria. On April 22, 1997, a final

public consultation meeting was

conducted to discuss the preliminary

analyses.

As required by Pub. L. 90–537, formal

consultation with the representatives of

the seven Basin States, and other parties

and agencies as the Secretary may deem

appropriate, was conducted in the

context of public consultation meetings

on three separate occasions: November

18, 1996; December 2, 1996; and April

22, 1997.

Following analysis of comments

received as a result of this notice, any

proposed federal action will be

evaluated by Reclamation to determine

the appropriate National Environmental

Policy Act (NEPA) compliance. After

that process has been completed, the

final Secretarial decision will be

published in the Federal Register.

Background

The Operating Criteria, promulgated

pursuant to Section 602 of Public Law

90–537 (43 U.S.C. 1552), were

published in the Federal Register on

June 10, 1970. The Operating Criteria

provide for the coordinated long-range

operation of the reservoirs constructed

and operated under the authority of the

Colorado River Storage Project Act, the

Boulder Canyon Project Act, and the

Boulder Canyon Project Adjustment Act

for the purposes of complying with and

carrying out the provisions of the

Colorado River Compact, the Upper

Colorado River Basin Compact, and the

Mexican Water Treaty.

Previous reviews of the Operating

Criteria were initiated in 1975, 1980,

1985, and 1990. They resulted in no

changes to the Operating Criteria. Prior

to 1990, reviews were conducted

primarily through meetings with and

correspondence among representatives

of the seven Basin States and

Reclamation. Because the long-range

operation of the Colorado River

reservoirs is important to many agencies

and individuals, in 1990, through an

active public involvement process,

Reclamation expanded the review of the

Operating Criteria to include all

interested stakeholders. A team

consisting of Reclamation staff from

Denver, Colorado; Salt Lake City, Utah;

and Boulder City, Nevada, was

organized to conduct the 1990 review.

For the 1995 review, Reclamation staff

from Salt Lake City, Utah, and Boulder

City, Nevada, followed the same public

process.

The scope of the review has been

consistent with the statutory purposes

of the Operating Criteria which are ‘‘to

comply with and carry out the

provisions of the Colorado River

Compact, the Upper Colorado River

Basin Compact, and the Mexican Water

Treaty.’’ Long-range operations

generally refer to the planning of

reservoir operations over several

decades, as opposed to the Annual

Operating Plan (AOP) which details

specific reservoir operations for the next

operating year.

Synopsis of Review Results

Many of the issues raised during the

review are more properly dealt with

during the development of the AOP.

These include annual surplus

determinations in the Lower Basin; the

probability of spills from Lake Powell,

including the release of beach/habitat

building flows from Glen Canyon Dam;

storage equalization between Lakes

Powell and Mead; and factors for

determining 602(a) storage.

The Operating Criteria were

purposely designed to be flexible so that

during the development of the AOP,

variations in hydrologic conditions and

changing demands for water use,

including environmental demands and

possible mitigation measures, could be

accommodated. The process for

developing the AOP is open to the

public and all interested parties.

Reclamation regularly applies the

NEPA process to activities constituting

a major federal action significantly

affecting the quality of the human

environment. The appropriate level of
Federal Register / Vol. 62, No. 194 / Tuesday, October 7, 1997 / Notices 52355

NEPA compliance for the review of the

Operating Criteria will be determined by

Reclamation. At this time, Reclamation

recommends preparation of a NEPA

categorical exclusion document for this

review.

With respect to other environmental

issues, Reclamation is in various stages

of consultation with the Fish and

Wildlife Service under Section 7 of the

Endangered Species Act on most

Colorado River mainstem facilities.

When a Section 7 consultation results in

the Service providing Reclamation with

specific recommendations such as

specific flow recommendations to

remove or prevent jeopardy to listed

species or their critical habitat, they are

incorporated into Reclamation’s

operations, and if appropriate, included

in the AOP.

Reclamation has programmed and

expended funds for fish and wildlife

mitigation and enhancement for impacts

associated with previous activities

where appropriate. Reclamation will

continue to use this approach. Any

changes associated with the long-range

Operating Criteria will also be evaluated

to determine if there are any mitigation

requirements or enhancement

opportunities.

Regarding the issue of water

marketing and banking, Reclamation has

initiated a rule making process focused

on water banking in groundwater

aquifers or off-mainstem storage

reservoirs in the Lower Basin. This

administrative rule is considered a

responsibility of the Secretary of the

Interior and focuses only on the three

Lower Basin states. Reclamation

believes that water marketing and

banking would not require a change to

the current Operating Criteria, as this

issue lends itself to the AOP process.

Throughout the course of the review

of the Operating Criteria, Reclamation

has encouraged public participation and

developed a thorough administrative

record. Based on the results of the

review and the analysis of public

comments, it is proposed that the

Operating Criteria not be modified at

this time.

Analysis of Issues

Issue #1: Application of the

Administrative Procedure Act (APA)

Background

The APA was signed into law in 1946

by President Truman. The purposes of

the Act are: (1) to require agencies to

keep the public informed on

organization, procedures and rules, (2)

to provide for public participation in the

rule making process, (3) to prescribe

uniform standards of conduct for rule

making and adjudicatory proceedings,

and (4) to restate the law of judicial

review. The law primarily deals with

rule making. The definition in the law

of a rule in part is as follows: ‘‘* * * the

whole or part of an agency statement of

general or particular applicability and

future effect designed to implement,

interpret, or prescribe law or policy or

describing the organization, procedure,

or practice requirements of an agency.

* * *’’ Rule making has two parts,

formal and informal.

Analysis and Response

The Coordinated Long-Range

Operating Criteria is a document

generated from a requirement in the

1968 Colorado River Basin Project Act.

It describes how the Secretary of the

Interior will meet some of the

commitments under the Act. The review

of the Coordinated Long-Range

Operating Criteria is not a rulemaking

exercise and is therefore not subject to

the rulemaking provisions of the APA.

Nevertheless, the Bureau of

Reclamation is encouraging full public

participation in this process and has

developed a thorough administrative

record of this review.

Issue #2

Surplus declarations are referenced in

the 1964 Supreme Court decree

(Arizona v. California) and are a part of

the 1970 Criteria for Coordinated LongRange Operation of Colorado River

Reservoirs. The decree apportions

surpluses (50 percent to California, 46

percent to Arizona, and 4 percent to

Nevada), while the Operating Criteria

define surpluses as existing when there

is sufficient storage in Lake Mead to

supply greater than 7.5 million acre-feet

(MAF) for Lower Basin consumptive

uses. Guidelines for determining when

surplus conditions exist have never

been formally adopted.

Background

In the past, Reclamation has

performed computer modeling studies

of alternative surplus guidelines to

determine the effects of various levels of

surplus use. Because the shortage risks

of surplus use (Arizona) fall on other

than the benefactor (California), impacts

and differences in risks of future

shortages and reservoir drawdown have

been keenly debated. All modeling

strategies have as their foundation the

principle of reducing system spills by

allowing greater use in the Lower Basin,

thus drawing down the reservoirs and

thereby avoiding flood control releases.

This greater drawdown then allows the

high flows of flood years to be captured

by the reservoir system. While the

amount of system spills is thus reduced,

the degree of drawdown affects the risk

of shortages to users during possible

future drought conditions. Resolving the

balance between risk of shortages and

spills is the heart of the surplus issue.

Until 1996, Lower Basin consumptive

uses were less than their allocation of

7.5 MAF, and California uses were met

through unused apportionments of

Arizona and Nevada rather than surplus

declarations. However, with the

implementation of the Arizona

groundwater banking program, total

Lower Basin use now exceeds 7.5 MAF

and water above this amount can only

be delivered through surplus

declarations.

The 1996 Annual Operating Plan

(AOP) committed to meet all reasonable

beneficial consumptive uses, and later

in the year when the annual Lower

Basin use was greater than 7.5 MAF, a

surplus was declared. The 1997 AOP

contains an explicit determination of

surplus, based on the current hydrologic

situation and a lack of impacts from this

single decision. As a result of 1997

system flood control operations and

hydrologic conditions, the 1998 AOP

will almost certainly contain an explicit

surplus determination.

However, these determinations have

relied solely on an annual examination

of reservoir conditions in the Colorado

River Basin rather than specific, longterm strategies which examine the

potential for problems in the future.

Drought periods in the basin can extend

for many years and with the large

volume of reservoir storage, many years

could be required before negative

impacts of surplus determinations are

observed. Much of the current debate is

focused on the risk of certain things

happening in the future.

Analysis and Response

The comments received addressed

three key topics relating to surplus

determinations: (1) the establishment of

guidelines, (2) the forum for establishing

these guidelines, and (3) how surpluses

will affect the probability of spills from

Lake Powell.

Establishment of Guidelines.—The

comments all agreed that surplus and

shortage guidelines should be

established, but varied in how firm or

detailed these guidelines should be. The

most flexible approach would be the

annual determination of surplus/

normal/shortage conditions through the

AOP process, deciding on the condition

of the reservoir system on a year-by-year

basis. The most rigid approach would be

the revision of the Operating Criteria to

include specific guidelines which then
52356 Federal Register / Vol. 62, No. 194 / Tuesday, October 7, 1997 / Notices

would be applied each year to produce

a determination.

Flexible guidelines have the

advantage of being easily modified as

consumptive use demands and

hydrologic conditions change

throughout the basin. For some parties,

near-term surpluses could be more

liberal than when Upper Basin uses

increase and the likelihood of surplus

deliveries are reduced. Flexible

guidelines could be adopted without the

more formal process of incorporating

guidelines into the Operating Criteria.

Modifying the Operating Criteria to

include surplus guidelines offers the

advantage of clearly specifying under

what conditions surpluses would be

declared. All interests would then

understand exactly what impacts could

be expected under ranges of hydrologic

conditions. Contingency plans could be

implemented to mitigate adverse

impacts and agreements could be

formed to help meet consumptive use

demands during non-surplus periods.

Forum for Establishing Guidelines.—

Most commentors felt that the AOP

would be the most appropriate

mechanism for preparing surplus/

shortage guidelines. The less formal

nature of the AOP meetings was viewed

as positive for attempting to resolve this

difficult issue. However, the issue has

been addressed for the last five years in

the AOP meetings, and no definite

guidelines have been produced.

Probability of Spills from Lake

Powell.—The release of beach/habitat

building flows from Glen Canyon Dam

was a contentious topic during the

completion of the Glen Canyon Dam

Environmental Impact Statement. The

1968 Colorado River Basin Project Act

directed the Secretary of the Interior to

avoid anticipated spills while the 1992

Grand Canyon Protection Act directed

the Secretary to operate the dam to

improve the environmental conditions

in the Grand Canyon. In 1995, an

agreement was reached between

interested parties which attempts to

meet the intents of both the 1968 and

1992 Acts by providing these high flows

during high reservoir storage conditions

when required for dam safety purposes.

Surplus determinations which

explicitly drop the level of Lake Mead

and through equalization drop the level

of Lake Powell would likely reduce the

probability of these powerplant

bypasses. Commentors responded with

concern for this possibility

recommending that if surpluses were

declared, measures should be taken to

keep the probability of bypasses the

same as at the present. The impacts of

high spring flows are currently believed

to be very important and this potential

effect should be addressed as surplus

guidelines are developed.

The Bureau of Reclamation believes

that surplus/shortage criteria should (1)

be specific guidelines that can be used

to predict measurable effects in the

future, (2) be developed through the

AOP process, and (3) include a

discussion of the potential effects on

Lake Powell spills along with possible

mitigation measures.

Issue #3

Section 602(a)(3) of the 1968 Colorado

River Basin Project Act discusses the

quantification of a reservoir storage

volume in the Upper Basin. This storage

is intended to supplement the

unregulated flow of the Colorado River

at Lees Ferry during drought periods as

part of the 1922 Colorado River

Compact deliveries to the Lower Basin.

The intent of this provision is to avoid

impairment of Upper Basin

consumptive uses.

Background

The 1968 Act contains several

provisions which can be viewed as

accomplishing the intent of the Article

III (e) provision of the Colorado River

Compact, that of the Upper Basin not

withholding water that the Lower Basin

requires for consumptive use demands.

Through a combination of avoiding

spills, equalizing storage between Lakes

Powell and Mead, and the 602(a) storage

volume, Upper Basin water was to be

transferred to Lake Mead for use in the

Lower Basin. When Upper Basin storage

falls below this 602(a) storage level,

storage equalization provisions of the

1968 Act are disregarded.

By statute, the 602(a) storage volume

was to be quantified taking into account

historic stream flows, the most critical

period of record, and probabilities of

water supply. Since the purpose of this

storage is to help provide Lower Basin

deliveries, it is quantified as the

difference between depleted flow at

Lees Ferry and the Lower Basin delivery

requirements over some period of

drought. Upper Basin depletion levels

significantly affect the storage

calculation. Using the most critical

period of natural flow, the 602(a)

volume is currently estimated to be

about 10 million acre-feet, which

includes preservation of the 5.2 million

acre-feet minimum power pool in Lake

Powell. In the future, when Upper Basin

consumptive uses increase, it has been

assumed that Lake Powell could be

completely drained to provide Lower

Basin deliveries.

Controversy exists regarding the

probability attached to the depleted

flow assumptions with respect to both

the rarity of the critical flow period and

the projected depletion increases in the

Upper Basin. These are the principle

reasons that 602(a) storage has never

been formally determined and agreed to

by the Basin States. However, in the

computer modeling of long-range

operations of the reservoir system, some

estimate or procedure must be used to

model this portion of the applicable

statutes. Currently, the Bureau of

Reclamation uses the observed critical

12-year period (1953–1964) as the basis

for the storage calculation. Reflecting

the lack of a formal determination, each

year’s Annual Operating Plan has

contained language stating that current

reservoir storage in Upper Basin

reservoirs exceeds the storage required

under Section 602 under any reasonable

range of assumptions which may be

applied. The current Upper Basin

depletion level is the prime reason that

this statement is true.

Analysis and Response

The relationship between the 602(a)

volume and surplus/shortage criteria

has been raised in previous Annual

Operating Plan discussions. Some

parties have argued that both less or

more severe drought periods should be

used in the modeling, thus changing the

Upper Basin risk of shortages.

Formally specifying or changing the

risks associated with the 602(a) storage

level will likely require a legal opinion

on the issue of avoiding impairment of

Upper Basin consumptive uses. Since

these uses presently do not significantly

restrict Lower Basin surpluses and

require much less than full Lake Powell

storage to meet Lower Basin deliveries,

this issue perhaps is not ripe for

resolution. Reclamation recommends

delaying implementing guidelines or

changing the current 602(a) modeling

assumptions until current assumptions

or practices create unacceptable

impacts.

Issue #4a

The Bureau of Reclamation should

conduct an environmental analysis

under the National Environmental

Policy Act (NEPA) of any changes to the

Operating Criteria.

Background

Letters of comment to the Operating

Criteria review expressed concern over

the long-term effects of the Operating

Criteria on downstream resources as it

relates to cumulative effects and spill

frequency. Several letters indicated that

the current Operating Criteria do not

give equal consideration to

environmental and recreational

resources, and instead focus only on
Federal Register / Vol. 62, No. 194 / Tuesday, October 7, 1997 / Notices 52357

traditional water and power uses. To

incorporate consideration of all

resources and impacts of the Operating

Criteria, the commentors recommended

that the Operating Criteria be evaluated

through application of NEPA.

Analysis and Response

Reclamation regularly applies the

NEPA process to activities constituting

a federal action, and agrees that

compliance with NEPA would be

required for any proposed changes to

the long-range Operating Criteria that

are discretionary Federal Actions

(Chapter 3.1 of the NEPA Handbook).

The appropriate level of NEPA

compliance will be determined by

Reclamation for this review of the

Operating Criteria.

NEPA regulations require that each

agency promulgate agency-specific

guidelines to supplement the Council

on Environmental Quality’s general

regulations (40 CFR Parts 1500–1508).

These classifications list those actions

that: (1) have a significant impact on the

environment (requiring preparation of

an environmental impact statement); (2)

those which are categorically excluded

from the EIS process (for which a

categorical exclusion (CE) is prepared);

and (3) those which fall in between (1)

and (2) and will usually require the

preparation of an environmental

assessment (EA). As a result of the

analysis contained in an EA, either an

EIS or a Finding of No Significant

Impact (FONSI) is prepared by the

agency.

The key issue in whether NEPA

documentation is needed regarding this

5-year review is whether there is a

Federal action or Federal discretion

associated with this review. If no

Federal action is being proposed or

taken by Reclamation, no NEPA

documentation would be required.

While no changes are being proposed as

the result of this review, Reclamation is

making a decision in proposing no

change. Because of this, Reclamation

concludes that preparation of a NEPA

compliance document is appropriate.

Reclamation recommends that a

Categorical Exclusion be prepared

pursuant to Departmental Instructions

516 DM 2, appendix 1.7, which

provides that a CE may be prepared for

routine and continuing government

business, including such things as

supervision, administration, operations,

maintenance and replacement activities

having limited context and intensity;

e.g. limited size and magnitude or shortterm effects.

Issue #4b

The Operating Criteria should

recognize the need to preserve and

recover endangered species dependent

upon the quantity, quality, and pattern

of release.

Background

Construction and operation of water

storage and delivery facilities on the

Colorado River and its tributaries are

recognized as factors contributing to the

decline of certain fish and wildlife

species which have been listed as

threatened or endangered by the Fish

and Wildlife Service (Service). Storing

water during the spring runoff decreases

the natural spring flow, and releasing

water later in the year for consumptive

use raises the base flow. These types of

changes in the hydrograph have

removed spawning cues, effected water

temperature, clarity, the food base, and

fluvial geomorphology. Physical

alteration from riverine to extensive

reservoir environments has occurred

causing further change to habitat for

these species and resulted in the

establishment of exotic species of fish,

wildlife, and plants that directly

compete with listed species and their

habitat. The control of natural flood

cycles and development of the

floodplain for agriculture and other

purposes has significantly changed or

eliminated original habitats in and along

extensive parts of the lower Colorado

River. The success of efforts to recover

endangered species are often thought to

be dependant on restoring the natural

hydrograph to the degree possible.

Commentors are concerned that if

provisions for releases designed to

recover endangered species are not

incorporated into the Operating Criteria,

changes to operations will not be

implemented.

Analysis and Response

Reclamation is in various stages of

consultation with the Service under

Section 7 of the Endangered Species Act

on most mainstem facilities.

Conservation plans and recovery

programs are also a large part of

Reclamation activities in operation of

the Colorado River. Operation of these

facilities for endangered species would

remain consistent with the original

intended purpose of the project in

accordance with the implementing

regulations of the Endangered Species

Act. When a Section 7 consultation

results in the Service providing

Reclamation with specific flow

recommendations or other alternatives

to remove or prevent jeopardy to listed

species or their critical habitat, they are

incorporated into Reclamation’s

operations, and if appropriate, are

included in the Annual Operating Plan

of the particular facility which was the

subject of the consultation. Operations

remain consistent with the ‘‘Law of the

River,’’ water service contracts, and

other legal obligations. Examples of

facilities where consultation has been

completed are Flaming Gorge Dam on

the Green River in Utah, Glen Canyon

Dam on the Colorado River in Arizona,

and several features of the Colorado

River Front Work and Levee System

Program on the last 270 miles of the

Colorado River in the United States.

Reclamation and the Service recently

completed formal Section 7 consultation

on lower Colorado River operations and

maintenance (Lake Mead to the

Southerly International Boundary with

Mexico), and are engaged in ongoing

consultation for Navajo Reservoir

operations on the San Juan River in

Colorado, and Aspinall Unit operations

on the Gunnison River in Colorado. The

Department of the Interior signed a

Memorandum of Agreement in August

1995 that was further described in a

Memorandum of Clarification and most

recently a joint Participation Agreement

to develop a long-term (50 year) Lower

Colorado River Multi-Species

Conservation Program (MSCP) from

Lees Ferry to the Southerly International

Boundary with Mexico. The overall

objective of the MSCP is to develop a

plan which would conserve and protect

more than 100 listed and sensitive

species within the Colorado River and

its one hundred-year flood plain, and to

the greatest extent consistent with law,

accommodate current and future water

and power operations.

Reclamation continues to undertake

and pursue efforts for conservation and

recovery of fish and wildlife and

associated critical habitat under specific

project authorities such as Section 8 of

the Colorado River Storage Project Act

and the Grand Canyon Protection Act.

In addition, Reclamation has significant

ongoing conservation and recovery

efforts under the authority of Section

7(a)(1) of the Endangered Species Act.

For example, the Lake Mohave Native

Fish Rearing Program in the Lower

Colorado River Basin continues to

collect and rear wild larval razorback

and bonytail chubs for release back into

Lake Mohave to maintain the primary

adult population and genetic pool for

these species. Voluntary refinements to

river operations have also been

implemented when possible to benefit

endangered species (i.e., management of

reservoir levels in Mohave for

endangered fish). The Upper Colorado

River Recovery Implementation
52358 Federal Register / Vol. 62, No. 194 / Tuesday, October 7, 1997 / Notices

Program, with an annual budget

exceeding $7 million, and the San Juan

River Basin Recovery Implementation

Program are other examples.

Reclamation will continue to plan and

implement initiatives for protection of

endangered species and associated

critical habitat on a project-specific

basis as described, with the goal of

integrating these actions to the greatest

degree possible to address ecosystem

level needs. Where appropriate,

initiatives such as the Glen Canyon

Adaptive Management Program and the

MSCP will be considered and

incorporated into future Annual

Operating Plans and Section 7

consultations, as appropriate.

Issue #4c

Funding for mitigation of negative

impacts to fish and wildlife resources

should be provided.

Background

Modification of river flows due to the

operation of projects authorized by the

Colorado River Storage Project Act has

impacted fish, wildlife, and their

habitats through reduction or

elimination of overbank flooding,

channelization, water depletions, and

changes in water quality. These projects

produce revenue primarily through

power production. Commentors are

concerned that sufficient funds be made

available for mitigation activities.

Analysis and Response

Reclamation, like all federal agencies,

must have both authorization and

appropriations to undertake actions and

incur debt. In the Upper Colorado River

Basin, Section 8 of the Colorado River

Storage Project Act authorizes and

directs the Secretary of the Interior to

investigate, plan, construct, operate, and

maintain facilities to improve

conditions for and mitigate losses of fish

and wildlife. Funds authorized by this

section of the Act are nonreimbursable

and nonreturnable, and therefore must

be appropriated by Congress. Section

5(a) specifies that the Basin Fund will

not be applied to Section 8 (fish and

wildlife mitigation). The Grand Canyon

Protection Act states that power

revenues may be used for activities

designed to conserve the environment

downstream from Glen Canyon Dam,

but does not exclude the use of other

funding mechanisms.

Mitigation and enhancement activities

are typically identified and proposed on

a project-by-project basis through

project planning and environmental

compliance. Reclamation has

programmed and expended funds for

fish and wildlife mitigation and

enhancement for impacts associated

with previous activities where

appropriate. Most often these activities

are identified in Fish and Wildlife

Coordination Act Reports and National

Environmental Policy Act documents.

Reclamation will continue to use this

approach. Since no changes are being

proposed, there is no specific mitigation

or enhancement necessary for this

action. Reclamation will continue to

comply with NEPA and other

appropriate environmental laws in

identifying, planning, and carrying out

mitigation and enhancement activities.

Issue #5

Is there a need to change the

Operating Criteria.

Background

The Operating Criteria are to

accomplish the objectives of Section

602(a) of the Colorado River Basin

Project Act. Modification of the

Operating Criteria can be done by the

Secretary of the Interior ’’ * * * as a

result of actual operating experiences or

unforeseen circumstances * * * to

better achieve the purposes specified in

[Section 602(a) of the Colorado River

Basin Project Act].’’

Commentors stated that they believe

‘‘* * * there are no conditions resulting

from actual operating experiences or

unforeseen circumstances, since the last

review, that justify the need to modify

the existing Criteria,’’ and that the

reservoirs have been operating

satisfactorily under the present

Operating Criteria. These comments

support not changing the criteria at this

time.

Others stated that we are entering a

new era and that the Operating Criteria

should be changed to reflect different

circumstances and concerns. The Lower

Basin States have reached their annual

apportionment of 7.5 million acre-feet

for consumptive use. Environmental

and recreational issues have increased

in value in the eyes of the public. There

were also those who stated that the

Operating Criteria need to be changed to

include specific guidelines that allow

the Secretary of the Interior to make

surplus, shortage, and normal

determinations. These comments all

support a need for change.

Analysis and Response

The Operating Criteria provide

guidelines for the operation of Upper

Basin Reservoirs and Lake Mead.

Specific operational needs are not

detailed in the Operating Criteria. The

specific needs have, in the past, been

addressed in the Annual Operating Plan

development process.

The Operating Criteria may be

modified from time to time as a result

of actual operating experiences or

unforeseen circumstances. With the

issues of surplus and flood control in

our current operations and possibly

emerging over the next several years, the

operational experiences needed to

determine if changes to the Operating

Criteria are necessary will be acquired.

Under the present Operating Criteria,

surpluses have been declared for use in

the United States as well as in Mexico.

With the above in mind, the

evaluation of operational experiences

over the next several years will

determine whether or not to change the

Operating Criteria. But in the interim,

the recommendation is not to change

the Operating Criteria.

Issue #6

Water marketing and banking.

Background

Several years ago the Bureau of

Reclamation advanced draft regulations

for administering Colorado River water

entitlements in the Lower Basin States

of Arizona, California, and Nevada. The

draft regulations contained provisions

for water banking and water marketing

in the Lower Basin. Because there was

not consensus with the states regarding

the draft regulations, they have been

held in abeyance while the three states

attempt to reach some agreement on

numerous issues, including water

marketing and banking. This negotiation

process among the states is continuing.

Many people believe that some form of

water banking and marketing will be

essential to meeting future water needs

in the Lower Colorado River Basin.

Analysis and Response

Reclamation has initiated a rule

making process focused on water

banking in groundwater aquifers or offmainstem storage reservoirs in the

Lower Basin. This administrative rule is

considered a responsibility of the

Secretary of the Interior under the

Boulder Canyon Project Act, and

focuses only on the three Lower Basin

States. Reclamation continues to work

with the states and to encourage them

to cooperatively develop a proposal for

water marketing and banking in the

Lower Basin.

Reclamation believes that the limited

water marketing and banking currently

under consideration would not require

a change to the current Operating

Criteria.

Proposed Decision

The Department has considered issues

arising from the review of the Operating
Federal Register / Vol. 62, No. 194 / Tuesday, October 7, 1997 / Notices 52359

Criteria. After a careful review of the

issues, solicitation of involved party’s

responses to Reclamation’s analysis, and

consultation with the Governor’s

representatives of the seven Basin

States, the Department proposes no

modifications to the Operating Criteria

at this time.

Dated: October 1, 1997.

Stephen V. Magnussen,

Acting Commissioner, Bureau of

Reclamation.

[FR Doc. 97–26500 Filed 10–6–97; 8:45 am]

BILLING CODE 4310–94–P

INTERNATIONAL TRADE

COMMISSION

[Inv. No. 337–TA–383]

Commission Decision Not To Review a

Final Initial Determination, and

Schedule For Filing of Written

Submissions on the Issues of Remedy,

the Public Interest, and Bonding, and

Appeals of ALJ Order No. 96

Certain Hardware Logic Emulation Systems

and Components Thereof;

AGENCY: U.S. International Trade

Commission.

ACTION: Notice.

SUMMARY: Notice is hereby given that

the U.S. International Trade

Commission has determined not to

review the final initial determination

issued by the presiding administrative

law judge on August 1, 1997, finding a

violation of section 337, 19 U.S.C.

§ 1337, in the above-captioned

investigation.

FOR FURTHER INFORMATION CONTACT: Jay

H. Reiziss, Esq., Office of the General

Counsel, U.S. International Trade

Commission, telephone 202–205–3116.

SUPPLEMENTARY INFORMATION: This

patent-based section 337 investigation

was instituted on March 8, 1996, based

upon a complaint and motion for

temporary relief filed on January 26,

1996, by Quickturn Design Systems, Inc.

(‘‘Quickturn’’). 61 FR 9486 (March 8,

1996). The respondents are Mentor

Graphics Corporation (‘‘Mentor’’) and

Meta Systems (‘‘Meta’’) (collectively

‘‘respondents’’). After an 11-day

evidentiary hearing, in April and May of

1996, the presiding administrative law

judge (‘‘ALJ’’) issued an initial

determination (‘‘TEO ID’’) granting

Quickturn’s motion for temporary relief.

On August 5, 1996, the Commission

determined not to modify or vacate the

TEO ID and issued a temporary limited

exclusion order and a temporary cease

and desist order against domestic

respondent Mentor. The Commission

imposed a bond of 43 percent of entered

value on respondents’ importations and

sales of emulation systems and

components thereof during the

remaining pendency of the

investigation. The Commission set

complainant’s bond at $200,000.

Beginning on April 7, 1997, the ALJ

held a pre-hearing conference and a 14-

day evidentiary hearing concerning

permanent relief issues and several

sanctions-related motions. Closing

arguments were held on June 25 and 26,

1997. On August 1, 1997, the ALJ issued

an initial determination (‘‘Final ID’’),

finding that respondents violated

section 337 of the Tariff Act of 1930, as

amended (19 U.S.C. § 1337) by

infringing claims of all five of

Quickturn’s asserted patents. The ALJ

found: (1) There has been importation

and sale of the accused products; (2)

Quickturn practices the patents in

controversy and satisfies the domestic

industry requirements of section 337; (3)

the claims in issue are valid; (4) the

accused products directly infringe the

claims in issue; (5) components of the

accused products contributorily infringe

the claims in issue; and (6) respondents

have induced infringement of the claims

in issue. Based on these findings, the

ALJ concluded there was a violation of

section 337. The ALJ recommended

issuance of a permanent exclusion order

and a cease and desist order.

Having examined the record in this

investigation, including the Final ID, the

petition for review, and the responses

thereto, the Commission has determined

not to review the Final ID; thus, the

Commission has found a violation of

section 337.

In connection with the final

disposition of this investigation, the

Commission may issue (1) an order that

could result in the exclusion of the

subject articles from entry into the

United States, and/or (2) cease and

desist orders that could result in

respondents being required to cease and

desist from engaging in unfair acts in

the importation and sale of such

articles. Accordingly, the Commission is

interested in receiving written

submissions that address the form of

remedy, if any, that should be ordered.

If a party seeks exclusion of an article

from entry into the United States for

purposes other than entry for

consumption, the party should so

indicate and provide information

establishing that activities involving

other types of entry either are adversely

affecting it or likely to do so. For

background, see the Commission

Opinion, In the Matter of Certain

Devices for Connecting Computers via

Telephones Lines, Inv. No. 337–TA–

360, USITC Pub. No. 2843 (December,

1994).

If the Commission contemplates some

form of remedy, it must consider the

effects of that remedy upon the public

interest. The factors the Commission

will consider include the effect that an

exclusion order and/or cease and desist

orders would have on (1) the public

health and welfare, (2) competitive

conditions in the U.S. economy, and (3)

U.S. production of articles that are like

or directly competitive with those that

are subject to investigation, and (4) U.S.

consumers. The Commission is

therefore interested in receiving written

submissions that address the

aforementioned public interest factors

in the context of this investigation.

If the Commission orders some form

of remedy, the President has 60 days to

approve or disapprove the

Commission’s action. During this

period, the subject articles would be

entitled to enter the United States under

a bond, in an amount determined by the

Commission and prescribed by the

Secretary of the Treasury. The

Commission is therefore interested in

receiving submissions concerning the

amount of the bond that should be

imposed.

On August 1, 1997, the ALJ also

issued Order No. 96 in the investigation

finding that respondents have engaged

in discovery abuses and abuse of

process justifying the imposition of

evidentiary and monetary sanctions.

Pursuant to rule 210.25(d) of the

Commission’s Rules of Practice and

Procedure, 19 C.F.R. § 210.25(d), the

Commission has specified below the

schedule for the filing of petitions

appealing Order No. 96 and responses

thereto.

Written Submissions

The parties to the investigation,

interested government agencies, and any

other interested parties are encouraged

to file written submissions on the issues

of remedy, the public interest, and

bonding. Such submissions should

address the August 1, 1997,

recommended determination by the ALJ

on remedy and bonding. Complainant

and the Commission investigative

attorney are also requested to submit

proposed remedial orders for the

Commission’s consideration. The

written submissions and proposed

remedial orders must be filed no later

than close of business on October 16,

1997. Reply submissions must be filed

no later than the close of business on

October 23, 1997. No further

submissions on these issues will be