59802 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations

The rule, as explained above, will

give smaller non-owner airlines the

ability to choose the level of service

they will buy from each system by

barring the use of airline parity clauses.

Smaller non-owner airlines will be able

to choose how they will distribute their

services and thus be better able to

operate more efficiently.

The rule will not directly affect travel

agencies but may affect the operations of

smaller travel agencies. If an airline

reduces its level of participation in one

or more systems without reducing its

level of participation in all of the

systems, agencies using a system in

which the airline reduced its level of

participation would not be able to

operate as efficiently as before or as

efficiently as some of the agencies’

competitors. That loss in efficiency

would be significant for an agency only

if the airline provided a substantial

amount of the airline service in the area

where the agency conducts its business

and if the reduction in the level of

participation made it substantially more

difficult for an agent to book the

airline’s services. We doubt that any

significant airline currently

participating in the systems will

drastically reduce its level of

participation in any system, so changes

in participation levels are not likely to

significantly interfere with the

efficiency of travel agency operations.

Furthermore, the parity clauses give

airlines the option of either reducing

their level of participation in the

favored system or upgrading their level

of participation in other systems. Since

a participating airline may well choose

to reduce its participation level in the

favored system, parity clauses do not

ensure that every airline will participate

at a high level in all systems. For these

reasons, we conclude that the rule will

not significantly harm travel agencies.

In addition, the rule should encourage

airlines and other firms to develop

alternative means of transmitting

information on airline services and

enabling travel agencies to carry out

booking transactions. In the long term

these developments would benefit travel

agencies.

The only alternative rule suggested by

the commenters was Sabre’s proposal

that we allow each system to enforce a

parity clause as long as that system’s

terms for the higher level of

participation or enhancement were

comparable to the terms offered by the

competing system in which the airline

was already participating at a higher

level. As discussed above, we decided

against adopting this proposal, since it

would not promote competition in the

CRS and airline industries and would

force airlines without any CRS

affiliation to buy more services than

they considered desirable.

Our rule contains no direct reporting,

recordkeeping, or other compliance

requirements that would affect small

entities. There are no other federal rules

that duplicate, overlap, or conflict with

our proposed rules.

The Department certifies under

section 605(b) of the Regulatory

Flexibility Act (5 U.S.C. et seq.) that this

regulation will not have a significant

economic impact on a substantial

number of small entities.

Paperwork Reduction Act

This rule contains no collection-ofinformation requirements subject to the

Paperwork Reduction Act, Public Law

96–511, 44 U.S.C. Chapter 35.

Federalism Implications

The rule we are adopting will have no

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12812,

we have determined that the rule does

not have sufficient federalism

implications to warrant preparation of a

Federalism Assessment.

This rule does not impose unfunded

mandates or requirements that will have

any impact on the quality of the human

environment.

List of Subjects for 14 CFR Part 255

Air carriers, Antitrust, Reporting and

recordkeeping requirements.

Accordingly, the Department of

Transportation amends 14 CFR Part 255,

Carrier-owned Computer Reservations

Systems, as follows:

PART 255—[AMENDED]

1. The authority citation for part 255

is revised to read as follows:

Authority: 49 U.S.C. 40101, 40102, 40105,

40113, 41712, recodifying 49 U.S.C. 1301,

1302, 1324, 1381, 1502 (1992 ed.).

2. Section 255.6 is amended by

adding paragraph (e) to read as follows:

§ 255.6 Contracts with participating

carriers.

* * * * *

(e) No system may require a carrier

(other than a carrier that owns or

markets, or is an affiliate of a person

that owns or markets, a foreign or

domestic computerized reservations

system) to maintain any particular level

of participation or buy any

enhancements in its system on the basis

of participation levels or enhancements

selected by that carrier in any other

foreign or domestic computerized

reservations system. A system may not

compel a carrier that owns or markets,

or is an affiliate of a person that owns

or markets, a foreign or domestic

computerized reservations system, to

maintain a particular level of

participation or buy an enhancements in

its system on the basis of participation

levels or enhancements selected by that

carrier in another foreign or domestic

computerized reservations system, until

14 days after it has given the

Department and such carrier written

notice of its intent to take such action.

Issued in Washington, D.C. on October 28,

1997.

Rodney E. Slater,

Secretary of Transportation.

[FR Doc. 97–29295 Filed 11–4–97; 8:45 am]

BILLING CODE 4910–62–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory

Commission

18 CFR Parts 4 and 375

[Docket No. RM95–16–000; Order No. 596]

Regulations for the Licensing of

Hydroelectric Projects; Final Rule

Issued October 29, 1997.

AGENCY: Federal Energy Regulatory

Commission, DOE.

ACTION: Final rule.

SUMMARY: The Federal Energy

Regulatory Commission (Commission) is

revising its procedural regulations

governing applications for licenses and

exemptions for hydroelectric projects.

The regulations offer an alternative

administrative process whereby in

appropriate circumstances the pre-filing

consultation process and the

environmental review process will be

combined. This alternative process is

designed to improve communication

among affected entities and to be

flexible and tailored to the facts and

circumstances of the particular

proceeding. The final rule does not

delete or replace any existing

regulations.

EFFECTIVE DATE: December 5, 1997.

FOR FURTHER INFORMATION CONTACT:

Edward Abrams, Office of Hydropower

Licensing, 888 First Street, N.E.,

Washington, DC 20426, (202) 219–

2773

Merrill Hathaway, Office of the General

Counsel, 888 First Street, N.E.,

Washington, DC 20426, (202) 208–

0825
Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations 59803

1 77 FERC ¶ 61,209 (1996).

2The commenters are listed in Appendix A.

3 42 U.S.C. 4321 et seq.

4Comments of U.S. Department of Commerce,

National Marine Fisheries Service (NMFS), at 5.

SUPPLEMENTARY INFORMATION: In

addition to publishing the full text of

this document in the Federal Register,

the Commission provides all interested

persons an opportunity to inspect or

copy the contents of this document

during normal business hours in Room

2A, 888 First Street, N.E., Washington

DC 20426.

The Commission Issuance Posting

System (CIPS), an electronic bulletin

board service, provides access to the

texts of formal documents issued by the

Commission. CIPS is available at no

charge to the user and may be accessed

using a personal computer with a

modem by dialing 202–208–1397 if

dialing locally or 1–800–856–3920 if

dialing long distance. To access CIPS,

set your communications software to

19200, 14400, 12000, 9600, 7200, 4800,

2400, or 1200 bps, full duplex, no

parity, 8 data bits and 1 stop bit. The

full text of this order will be available

on CIPS in ASCII and WordPerfect 6.1

format. CIPS user assistance is available

at 202–208–2474.

CIPS is also available on the Internet.

Telnet software is required. To access

CIPS via the Internet, point your

browser to the URL address: http://

www.ferc.fed.us and select the Bulletin

Board System. Read instructions on the

next page, select FedWorld Dialup/

Telnet. A screen will appear presenting

you with several options, select option

1. There will be a welcome message

from FedWorld and a log on prompt.

Enter your user ID and password (if you

already have an account). To establish

an account, type the word NEW and

answer the questions which follow.

Upon establishing an account, the

FedWorld Main Menu will appear.

From the Main Menu, type /go ferc.

Finally, the complete text on diskette

in WordPerfect format may be

purchased from the Commission’s copy

contractor, La Dorn Systems

Corporation. La Dorn Systems

Corporation is also located in the Public

Reference Room at 888 First Street, N.E.,

Washington, DC 20426.

Before Commissioners: James J. Hoecker,

Chairman; Vicky A. Bailey, and William L.

Massey.

I. Introduction

On November 26, 1996, the Federal

Energy Regulatory Commission

(Commission) issued a Notice of

Proposed Rulemaking (NOPR) to revise

its procedural regulations governing

applications for licenses for

hydroelectric projects.1 In response to

the comments received,2 the

Commission adopts a final rule in this

proceeding which offers an alternative

administrative process in which the prefiling consultation and the

environmental review processes will be

combined. This alternative process is

designed to improve communication

between affected entities and to be

flexible and tailored to the facts and

circumstances of the particular

proceeding. The final rule does not

delete or replace any existing

regulations.

II. Purpose of the Final Rule

The NOPR was issued in response to

a petition by the National Hydropower

Association (NHA), seeking completely

new Commission regulations to improve

the licensing process for hydropower

applicants. The Commission agreed

with commenters on NHA’s petition,

that adoption of its proposed rules

would not be fair to other entities

interested in the licensing process, such

as resource agencies, Indian tribes and

citizens’ groups, and would not in fact

expedite licensing proceedings. The

Commission noted, however, that the

collaborative option in NHA’s proposal

resembled the alternative procedures

that the Commission had been

developing for use on a case-by-case

basis as requested by the applicant,

pursuant to waivers granted by the

Office of Hydropower Licensing. The

Commission determined that the

experience with the alternative

procedures had been positive, that many

applicants and interested entities

appeared to be interested in pursuing

the alternative procedures, and that it

would be helpful to refine, clarify, and

codify the procedures in the regulations.

A wide range of entities, representing

the hydropower industry, state and

federal resource agencies, citizens’

groups, and an Indian tribe, filed

comments generally supporting

adoption of the rule proposed in the

NOPR. The commenters made a number

of recommendations for improving the

proposed rule, many of which are

adopted in the final rule, as discussed

in detail below.

The final rule offers alternative

administrative procedures for the

processing of applications for licenses to

construct, operate, and maintain

hydropower projects, including

applications for certain major

amendments to such licenses, and for

applications for exemption. Under the

final rule, in appropriate circumstances

pre-filing consultation and

environmental review can be combined

into a single process. This alternative

process can be used only if there is a

consensus among the interested entities

to make use of it (consent of the

applicant is required but agreement of

everyone interested is not), and is

designed to be flexible and tailored to

the facts and circumstances of the

particular proceeding. The final rule

does not delete or replace any existing

regulations, but would supplement the

existing regulations by offering

applicants an opportunity to use the

alternative procedures.

The present regulations require

applicants for a license to engage in

consultation with federal and state

resource agencies and Indian tribes

during the preparation of the

application for the license and prior to

filing it. Thereafter the Commission

performs an environmental review of

the application pursuant to the National

Environmental Policy Act (NEPA) 3 and

related statutes. The final rule is

intended to simplify and expedite the

licensing process by combining the prefiling consultation and environmental

review processes into a single process,

and by improving communication

among the participants in the licensing

process. We hope that adoption and use

of the alternative procedures, on a

voluntary basis by applicants, will

result in expedited licensing

proceedings before the Commission,

including the narrowing of contested

issues and the submission of offers of

settlement that can be used as a basis for

licensing orders.

III. Discussion

A. Application for and Scope of

Alternative Procedures

In proposed § 4.34(i)(1) we set forth

the scope of the alternative procedures

and who could request them. The

proposed regulatory text stated that the

applicant could submit a request to the

Commission to use the alternative

procedures where it intended to file an

application for a hydropower license or

for the amendment of a license subject

to the provisions of the pre-filing

consultation regulations at § 4.38.

Some commenters pointed out that

the title of the rule in the notice in the

Federal Register indicated it only

applied to applications for relicense and

that it should be changed to include all

applications for license. A commenter

recommended that an applicant be

required to join with other interested

entities, such as resource agencies, in

making such a request.4 Commenters

also have asked whether the alternative
59804 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations

5Comments of Penobscot Nation (Penobscots),

U.S. Dept. of the Interior (Interior) at 4, 10.

6Hydropower Reform Coalition (HRC) Comments

at 8–10.

7Comments of Holyoke Gas & Electric Dept. and

the Northern California Power Agency.

8Comments of NMFS at 3.

9 33 U.S.C. 1341(a)(1).

procedures apply to applications for

preliminary permits or exemption.

We will not require the applicant to

obtain the express consent of others in

order to submit a request to use

alternative procedures in preparing its

application. An applicant may

voluntarily request to use the alternative

procedures. As provided in the final

rule and discussed below, the

Commission will give public notice of,

and interested entities may submit

comments on, the applicant’s request to

use alternative procedures. If an

applicant for a hydropower license

wishes to use the standard procedures

in preparing its application, it may

comply with the pre-filing consultation

requirements of § 4.38 or § 16.8 of the

regulations and need not prepare a

preliminary draft NEPA document.

The title of the notice accompanying

this final rule in the Federal Register

accurately describes the application of

the new rule, extending to all

applications for the licensing of

hydroelectric projects. The alternative

procedures apply only to applications

for license and amendments to licenses

that are subject to the pre-filing

consultation rules contained in § 4.38

and § 16.8 of the regulations. Since

applications for preliminary permit are

not subject to such requirements, we see

no reason to make the alternative

procedures available to such applicants.

On the other hand, applications for

exemption are subject to the pre-filing

consultation requirements of § 4.38, and

we conclude that these alternative

procedures should be available to

applicants for exemption, if they wish to

take advantage of them and meet the

applicable requirements of the final

rule. Accordingly, we are making

changes in the rule to clarify that it also

applies to applicants for exemption.

B. Objectives of Process

In the proposed regulatory text at

§ 4.34(i)(2), we set forth the goals of the

alternative procedures, which included

integrating the pre-filing consultation

process and the environmental review

process, facilitating greater participation

by Commission staff and the public in

the pre-filing consultation process,

allowing the applicant to prepare an

environmental assessment (EA) or a

contractor to prepare an environmental

impact statement (EIS), encouraging the

applicant and interested persons to

narrow any areas of disagreement, and

promoting settlement of the issues

raised by the hydropower proposal.

Commenters have recommended that

these statements of objective be

broadened in the final rule. They have

asked that the interests of Indian tribes

be kept in mind.5 A commenter has also

asked that the stated objectives include

providing for effective participation in

the process by citizens’ groups,

including the provision of financial

assistance where appropriate, and

allowing such participants a role in

selecting contractors to conduct

scientific studies and prepare required

documents.6 Commenters have asked

the Commission to keep in mind in

regard to the proposed regulations the

goal of promoting competition between

rival applicants for proposed

hydropower facilities.7 A commenter

was concerned that the proposed rule

may suggest that under the alternative

procedures the Commission would

delegate to an outside party its

responsibility for NEPA documents.8

We believe that the language of the

objectives of the alternative procedures

should be revised. We have changed

proposed § 4.34(i)(2)(i) to reflect the goal

of combining into one process not only

the pre-filing consultation procedures

and the environmental review process

under NEPA, but also those

administrative processes associated

with section 401(a) of the Clean Water

Act 9 and other statutes. We are revising

proposed § 4.34(i)(2)(ii) to make clear

that the goal of the alternative

procedures includes greater

participation in the process by and

improved communication among all

concerned entities, including the

applicant, resource agencies, Indian

tribes, the public and Commission staff.

While meeting certain minimum

requirements of openness and fairness,

the process is designed to be as flexible

as possible, tailored to the

circumstances of each case.

Section 4.34(i)(2)(iv) is revised to state

that the rule is designed to promote

cooperative efforts by the applicant and

interested entities, including the sharing

of pertinent information about the

resource impacts of the applicant’s

hydropower proposal and appropriate

mitigation and enhancement measures.

The goal of encouraging settlement is

not confined to submitting a formal offer

of settlement among parties on the

application when it is filed, but

includes any agreement that can be

reached that narrows the range of

contested issues, both on necessary

studies and on mitigation and

enhancement measures.

We decline to modify the goal

statement in the regulations as

recommended by HRC. We have no

objection to an applicant voluntarily

deciding to provide financial assistance

to citizens’ groups to facilitate their

effective participation in the alternative

process or to allowing such groups an

appropriate role in choosing contractors

to do necessary studies. We believe that

if any participant believes such

measures are important and would

further the successful completion of the

process and the achievement of its other

objectives, these questions should be

discussed among the participants. But

we do not believe it would be

appropriate or helpful for the

Commission to attempt to force

participants to make such arrangements,

which should be strictly voluntary and

arise from the particular circumstances

and dynamics of each case.

The final rule establishing alternative

procedures for hydropower applications

is neutral in regard to its impact on

potential rival applicants for

hydropower facilities, such as an

applicant seeking to renew its license

for such facilities and a municipal

competitor seeking a license for the

same facilities. No applicant in a

competitive proceeding has asked the

Commission to use the alternative

procedures. However, nothing in the

final rule precludes granting such a

request. If it is made, we will consider

whether it should be granted,

considering all the relevant factors

presented.

We are changing the language of

§ 4.34(i)(2)(iii) to state that the applicant

or its contractor or consultant will only

prepare a preliminary draft EA or a

preliminary draft EIS, which after filing

(with the related application) will be

subject to complete review, revision and

issuance for comment by the

Commission.

Finally, we are adding a § 4.34(i)(2)(v)

to the rules, to make it clear that another

objective of the alternative procedures is

the orderly and expeditious review by

the Commission of any agreement or

offer of settlement filed to resolve issues

raised by an application for hydropower

license, amendment, or exemption. We

hope that involvement of the

Commission’s staff, prior to the filing of

an application and agreement or offer of

settlement with the Commission,

together with the preparation of

preliminary draft NEPA documents

during the pre-filing consultation

process, will result in filings that the

Commission can expeditiously review.

These filings should include water

quality certification under section 401

of the Clean Water Act, with any
Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations 59805

10 16 U.S.C. 791a et seq.

11E.g., Comments of HRC at 4–5, Interior at 3–4.

12E.g., Comments of NHA at 4, 15–18, Alabama

Power Co. and Georgia Power Co. at 3–5.

13E.g., Comments of Public Generating Pool at 6–

8.

14Comments of U.S. Dept. of Agriculture, Forest

Service, at 2.

15Comments of NMFS at 5.

16Webster’s Third New International Dictionary

(1981), or use of a particular voting procedure, to

memorialize the consensus on use of the

procedures. We do not give any single interested

entity a veto power over the applicant’s use of

alternative procedures.

17The Commission will place a copy of the

decision (on the request to use alternative

procedures) on the Commission Issuance Posting

System (CIPS), so that it can readily be found by

anyone interested.

18E.g., Comments of Interior at 4, Forest Service

at 3.

19NMFS Comments at 4–5.

20HRC Comments at 9–10, 13.

21E.g., Comments of Forest Service at 4.

applicable conditions, and (after filing

of the application) a final decision by

any land management agency under

section 4(e) of the Federal Power Act

(FPA),10/ with mandatory conditions,

should be submitted to the Commission

so that we can make a prompt decision

on the license or exemption application.

C. Demonstration Required of Applicant

The NOPR proposed in § 4.34(i)(3)(i)

to require that the applicant, in its

request to the Commission for use of the

alternative procedures, demonstrate that

it had made a reasonable effort to

contact all resource agencies, Indian

tribes, citizens’ groups and others

affected by the hydropower proposal,

and that a ‘‘consensus’’ exists that the

use of alternative procedures is

appropriate.

This proposed regulatory text

generated the most controversy in the

rulemaking. Commenters disagreed

vigorously as to what ‘‘consensus’’

should mean, with some arguing that it

should mean unanimous agreement by

all concerned,11/ and others arguing that

it should mean the preponderance of

views, at least by the major participants

in the process.12/ Some commenters

have proposed elaborate voting schemes

in this regard,13/ while others have

claimed that certain entities, such as

resource agencies, should have a veto

power over use of the alternative

procedures.14/ Some commenters have

asked the Commission to specify in the

rule exactly what the requester should

include in its showing.15/

The term ‘‘consensus’’ in ordinary

usage means ‘‘general agreement’’ or

‘‘collective opinion: the judgment

arrived at by most of those concerned.’’

16/ That is how the Commission

employs the term here. While

unanimous views obviously reflect

consensus, unanimity is not always

essential to a fundamentally consensual

approach in a multi-party situation. The

final rule does not require the applicant,

in the request for use of the alternative

procedures, to show that everyone

concerned supports the use of these

procedures. The applicant need only

show that the weight of opinions

expressed make it reasonable to

conclude that under the circumstances

it appears that use of the alternative

procedures will be productive. We do

not require the applicant to make any

formal showing, such as a signed

agreement

We envision a series of interactions

between the applicant and participants

that goes beyond an exchange of letters.

Such interactions could include

teleconferences and meetings involving

Commission staff to explore the

alternative procedures. In some cases

the applicant’s showing may rely on a

lack of objections raised in such

meetings. This situation may arise at the

outset of the pre-filing consultation

process, when interested entities are

unsure of how the alternative

procedures may compare to those

otherwise required under Commission

regulations and are unaware of the

relative benefits of the alternative. The

Commission believes that in these

situations it is worth allowing the

applicant and participants to try the

alternative process rather than closing

the door on this option.

To protect the rights of all interested

entities to be advised of the request for

alternative procedures and to file

comments on the request in order to

make their views known directly to the

Commission, the final rule specifies, as

proposed in the NOPR, that in all cases

the Commission will give public notice

in the Federal Register of the filing by

an applicant of a request to use

alternative procedures. Comments may

be filed in response to this notice, and

the Commission will take them into

account in deciding whether or not to

grant the request. The decision on the

request will be final and not subject to

interlocutory rehearing or appeal.17

D. Required Steps to Follow

In § 4.34(i)(4), the NOPR set forth

certain minimum steps that all

alternative procedures should include

as appropriate: (1) The initial

information meeting; (2) the scoping of

environmental issues; (3) the analysis of

scientific studies and further scoping;

and (4) the preparation of a preliminary

draft NEPA document and related

application. Participants would be free,

under the communications protocol to

be submitted with the request to use

alternative procedures, to describe those

steps in greater detail or to agree to steps

in addition to those set forth in the

proposed rule.

Some commenters objected to the

statement that these steps would only be

included ‘‘as appropriate,’’ and

expressed their stongly held views that

the steps were the minimum that should

be required in any alternative

procedure.18 Others argued in general

for more flexibility.19 Some commenters

wanted more requirements in the

regulatory text, to make clear that the

alternative process must include

distribution by the applicant of an

initial information package, that the

initial information meeting should be

open to the public, and that there

should be cooperation between the

applicant and interested persons on the

determination of necessary studies and

their design and scope.20

Commenters also requested that the

Commission specify in detail in the

regulations the deadlines that would

apply during the alternative process.21

We have set forth in the final rule a

list of the minimum steps we think

should be a part of any alternative

process, if it is to serve its objectives of

expediting the completion of the

administrative process, while at the

same time being fair to all participants.

The final rule adopted provides for the

inclusion of three steps by combining

the second and third steps (dealing with

the scoping and study processes, as

outlined above) that were proposed in

the NOPR. We do not believe that the

requirement that these three steps be

included restricts the flexibility of the

alternative process.

We do not, however, make the

inclusion of these three steps mandatory

in every alternative process, as there

may be special circumstances where

some of them are not possible or

necessary.

The best example of such a case is if

the alternative process begins after the

applicant has already completed the

first step in the standard pre-filing

consultation process (the initial

information meeting open to the public).

The Commission will entertain requests

to use the alternative process at any

reasonable time, and they need not be

submitted before the commencement of

the standard pre-filing consultation

process. In such a case, if the

Commission grants the request, it would

make no sense to require by rule that the

applicant repeat a step that is the same

as or substantially similar to a step it
59806 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations

22E.g., Comments of Interior at 5.

23HRC Comments at 5–6.

24Comments of Interior at 6–7.

25Comments of Interior at 6–7 and Forest Service

at 1.

26Comments of Interior at 7.

27Applicants should note that in order to have

sufficient copies for internal distribution, the

Commission requires the submission of an original

and eight copies of all filings in hydropower

matters. See 18 CFR 4.34(h). The final rule makes

clear that this requirement applies to filings with

the Commission that are made in the course of the

alternative pre-filing process described in § 4.34(i).

See § 4.34(i)(6)(ii).

28The final rule requires the applicant to

maintain a public file of all relevant documents in

the pre-filing consultation process. See

§ 4.34(i)(6)(iii).

has already taken under the standard

process. The Commission is sensitive to

the concerns expressed in the comments

and will not abridge procedures allowed

in the alternative process in a way that

would curtail notice to or participatory

rights of any interested entity. We wish

to be flexible and fair to all concerned.

We agree with the comments asking

for changes in the regulatory text to

clarify the basic requirements for the

completion of these minimum steps in

the alternative process. Accordingly,

§ 4.34(i)(4) of the final rule makes clear

that the applicant must distribute an

initial information package and conduct

an initial information meeting open to

the public, as required in the standard

process, and that the approved

procedures must include provisions for

the cooperative scoping of

environmental issues with all

participants, including the selection and

design of required scientific studies and

any further scoping. Our goal is to

promote as much candid

communication as possible among the

participants about the applicant’s

proposal, its resource impacts, and the

proposals and views of the other

participants.

We do not think it is necessary or

appropriate to spell out, in greater detail

in the regulations, deadlines for the

alternative process. The establishment

of these deadlines should be done

cooperatively by the participants in a

manner that fits the circumstances and

needs of each case, with the guidance

and support of Commission staff. We

believe that the successful use of the

alternative procedures is predicated on

a climate of cooperation among the

applicant and interested entities.

Therefore we do not believe that the

Commission should mandate by rule

exactly how the alternative process may

unfold in every case. To do so would

unnecessarily repeat requirements in

the standard pre-filing consultation

process, which remains available for use

in appropriate cases, and would

undercut the flexibility and spirit of

cooperation and open communiciation

that lie at the heart of the alternative

process.

E. Notice, Filings and Service

Requirements

The NOPR proposed in § 4.34(i)(5)

that the Commission would give public

notice of the filing of the applicant’s

request to use the alternative

procedures, inviting comment on the

request. Proposed § 4.34(6)(i) would

require the Commission and the

applicant to give public notice of each

of the four steps required in the

alternative process under proposed

§ 4.34(i)(4). The applicant would be

required to give notice of each of these

stages to entities on a mailing list

approved by the Commission. The

proposal required the applicant to file

with the Commission quarterly reports

on the progress of the alternative

process, pursuant to § 4.34(i)(6)(ii), and

implied in § 4.34(i)(6)(iii) that the

applicant would also have to file with

the Commission the critical documents

generated in the process, namely the

initial information package, scoping

documents, and the preliminary draft

environmental review document.

Some commenters have urged the

Commission to add language to the rule

in order to make it clear how the

Commission and the applicant would

give notice.22 A commenter urged that,

in the case of an applicant seeking a

new license, the applicant be required

to give notice at the outset to (1) any

entity that had contacted the

Commission during the period of the

previous license about the project in

question and (2) published lists of

citizens’ groups that may have an

interest.23 The Commission was also

asked to require that various filings

made by the applicant in the course of

the alternative process be served on all

participants in the process.24 Resource

agencies requested that the Commission

require the applicant, at the conclusion

of the alternative process, to index its

public file (which documents the prefiling consultation and environmental

review processes) and submit all of

these documents, together with the

index, to the Commission with its

application.25 Commenters also

expressed concern that omission of

Exhibit E would eliminate important

information from the Commission’s

record.26

We agree that revisions should be

made in the final rule about the

requirements for notice, filings and

service of documents. New

§ 4.34(i)(3)(iii) requires the applicant,

when it files its request for alternative

procedures with the Commission, to

serve copies on all affected resource

agencies and Indian tribes and all

entities that have expressed an interest

in the alternative process. As provided

in § 4.34(i)(5), the Commission will give

notice in the Federal Register of receipt

of the request. We believe that these

requirements, together with the rule’s

requirement that the applicant must

have made reasonable efforts to contact

interested entities prior to the filing of

its request (see § 4.34(i)(3)(i)), will be

sufficient to put the public on notice of

the request. As discussed in section III.C

above, the Commission will consider

any comments received in determining

whether to grant the request.

Section 4.34(6)(i) is also revised from

the proposal to make clear that the

Commission’s public notice of each of

the first two stages in the alternative

process, described in § 4.34(i)(4), will

appear in the Federal Register, and that

the applicant’s public notice of these

stages is required to appear in local

newspapers in the county or counties in

which the project is located. Section

4.34(i)(6)(ii) is revised to make clear that

reports to the Commission on the prefiling consultation process are required

only every six months, and that this

requirement can be satisfied by the

submission of documents already

available, such as summaries or minutes

of meetings held. This section also

clarifies what critical documents in the

process the applicant must file with the

Commission and provides that copies of

these documents must be served on

each participant in the process that

requests a copy.27

When the applicant files its

application and preliminary draft

environmental review document with

the Commission, these filings, and such

additional material as will be specified

by the Commission in each case, will

replace the Exhibit E material that is

required in the standard process. We

will not permit applicants to omit

material necessary for the Commission’s

review in these filings.

We do not think it necessary to

require the applicant to index all of the

documents in its public file compiled

during the alternative process and to

submit those documents, together with

the index, to the Commission with its

application.28 Any party to the

proceeding before the Commission may

file any material it wishes as part of its

comments on the application, or the

party may request that materials in the

possession of the applicant be filed with

the Commission. The Commission may

order such filings if it believes they
Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations 59807

29HRC Comments at 11–12, U.S. Environmental

Protection Agency at 1, Washington Dept. of Fish

and Wildlife at 3–4.

30Reply Comments of EEI at 4–6.

31Comments of Interior at 8.

32Comments of Duke Power Co. at 2–3, Pacific

Gas & Electric Co. at 4; HRC Comments at 7, Reply

Comments at 11–12. asked the Commission to

direct what should happen in such circumstances.

33Comments of Forest Service at 4, Montana

Power Co. at 6–7, EEI Reply Comments at 6.

would be in the public interest. See the

final rule § 4.34(i)(6)(iv).

F. Requests for Scientific Studies

Under the proposed rule

§ 4.34(i)(6)(v), the procedures approved

in the alternative process may require

all participants in the process to submit

during the pre-filing consultation period

their requests for scientific studies by

the applicant. The proposal also

allowed requests for such studies to be

filed with the Commission after the

filing of the application for good cause,

with an explanation of why it was not

possible to request the study during the

pre-filing period.

This proposal was controversial.

Some commenters pointed out that it

was too restrictive, and that any party

should be able to file a request for

scientific studies by the applicant after

the filing of its application, so long as

good cause is shown. The Commission

was also asked to give examples of

situations in which a party would be

able to show good cause.29 Other

commenters wanted the rule to be

tightened to eliminate in whole or in

part the right of any party to request

scientific studies after the filing of the

application.30

We believe that an important result of

the alternative process, and the greater

participation and communication

among participants it encourages,

should be the amicable resolution

among participants of disputes about

necessary scientific studies during the

pre-filing consultation period, not after

the application is filed with the

Commission. With improved

communication among the participants

and the availability of dispute

resolution in the alternative process, we

do not expect to receive frequent

requests for additional studies after the

filing of an application that is subject to

the alternative process. We understand,

however, that not all such disputes will

be so resolved, and that some

participants, even though they have

participated actively and in good faith

in the alternative process, may be

unwilling thereby to waive their

requests for certain studies, even if the

other participants in the process do not

think they are necessary. The alternative

process does not require such a waiver.

We hope that through the alternative

process, with the assistance of

Commission staff, participants will be

able to resolve all important differences

about a hydropower proposal, including

disputes about necessary studies. If the

participants cannot resolve such a

dispute, even with the dispute

resolution procedure discussed in the

next section, a party may raise it to the

Commission’s attention after the filing

of the application. In such a case, the

Commission will rule on the request,

either by separate order or when issuing

a decision on the application.

The requirement of good cause is selfexplanatory, and the Commission does

not wish to bind by rule the discretion

of future Commissions to do justice in

a particular case. We will not, therefore,

encumber the final rule or include in

this preamble additional language that

would attempt to explain what would

suffice to make a showing of good cause

in a particular case.

G. Dispute Resolution

The proposed rule was silent on

whether the Commission’s provisions

for dispute resolution, available in the

standard pre-filing consultation process,

would apply to the alternative process.

Commenters asked whether they could

seek resolution of disputes by the

Commission in the alternative process,

should it be necessary.31

We believe that participants should be

able to ask the Commission to resolve

disputes arising during the alternative

process, but only if they have first made

reasonable efforts to resolve the disputes

with other participants, using any

mechanisms established by agreement

among the participants and the help of

Commission staff, where appropriate.

Any such request should be served on

all participants and must document

what efforts have been made to resolve

the dispute.

H. Collapse of Consensus

The NOPR asked the commenters to

address what they thought should

happen if the consensus that had

appeared to exist when the Commission

granted an applicant’s request for

alternative procedures subsequently

collapsed.

Many commenters attempted to

answer this question. Most seemed to

recognize that in certain circumstances

it would make no sense to continue

with the alternative process,32 and some

asked the Commission to direct what

should happen in such circumstances.33

Despite the best of intentions of the

participants, it is possible in some

instances for the consensus supporting

the continued use of the alternative

procedures to collapse. We do not mean

by this loss of consensus a disagreement

on what studies should be conducted or

what mitigation or enhancement

measures should be required in

response to the applicant’s proposal, or

loss of confidence on the part of one

participant or a few participants in the

process. We believe that a consensus

will collapse if the weight of opinion of

the applicant and the other participants

is that the process has become a waste

of their valuable time and resources and

that the public interest would be better

served under the circumstances by the

Commission’s directing a completion of

the pre-filing process and what further

steps are required of the applicant. In

such a situation an alternative pre-filing

process directed by the Commission

would be required in order to clarify

what steps the applicant would have to

take in the time remaining to file an

acceptable application.

Accordingly, the final rule adds

§ 4.34(i)(7) to allow a participant

(including the applicant), in the event

that a consensus supporting the

alternative process is lost, to file a

request that the Commission direct what

steps should be taken to complete the

pre-filing consultation process.

I. Grandfather Provision

The NOPR asked what should be done

about alternative processes already

approved by the Commission, pursuant

to case-by-case waivers of current

regulatory requirements, if the

Commission adopts a final rule

establishing alternative procedures.

All commenters addressing this

question felt that the rule should

grandfather such already approved

processes.

We agree and are adding § 4.34(i)(9) to

the final rule to grandfather existing

alternative processes. Steps already

taken do not have to be repeated, and

applicants are not required to act

inconsistently with written agreements

already reached by participants in such

cases. Other provisions of the new rule,

however, such as public file

requirements or requirements to file

materials with the Commission

(consisting of an original and eight

copies) and serve copies on other

participants, that may be in addition to

those already agreed to in cases where

waivers have been granted, will apply to

all such cases after the effective date of

the final rule.

J. Miscellaneous

NHA asked the Commission to

improve its public noticing of
59808 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations

34 16 U.S.C. 1531–1544. Comments of Interior at

9 and NMFS at 4.

35Comments of Forest Service at 4, Interior at 10.

36Comments of NMFS at 3, Western Urban Water

Coalition at 4, Public Generating Pool at 14–29,

Sacramento Municipal Utility District at 18–36, and

the City and County of Denver at 2–3.

37 18 CFR 385.2201.

38Regulations Implementing National

Environmental Policy Act, 52 FR 47897 (Dec. 17,

1987), codified at 18 CFR Part 380.

39 18 CFR 380.4(a)(2)(ii).

40 18 CFR 380.4.

41 5 U.S.C. 601–612.

hydropower applications, by including

the licensee name and the name of the

project in addition to the project

number, and to use public libraries to

facilitate notice to the public. NHA also

asked the Commission to explain what

the NOPR meant in stating that staff

could participate in cases where there

was no alternative process proposed and

approved, pursuant to proposed

§ 4.34(i)(7).

Resource agencies were concerned

about the impact of the alternative

procedures on the Commission’s

obligations under NEPA, section 10(j) of

the FPA and the Endangered Species

Act (ESA).34 Federal agencies were

concerned about whether the alternative

procedures would affect their

participation as cooperating agencies for

NEPA purposes.35 A number of

commenters asked the Commission to

explain how the alternative pre-filing

procedures would affect the

Commission’s conduct of the hearing

process on the application when it is

filed.36

Regarding notices concerning a

hydropower project, the Commission

agrees with NHA that all public notices

of a hydropower application should

include not only the project number but

also the name of the licensee and the

name of the project. Participants in the

alternative process may agree to use

public libraries to facilitate notice and

to provide information to the public, in

addition to complying with the notice

and public file requirements contained

in the final rule.

The final rule contains a provision at

§ 4.34(i)(8) making it clear that, at the

Commission’s discretion, its staff may

participate not only in the pre-filing

consultation process where alternative

procedures are in use, but also in other

cases where these procedures are not

being used. The Commission may

commit its staff, upon request and on a

case-by-case basis, to limited

participation in the pre-filing

consultation process in connection with

the preparation of any application for

license, exemption, or license

amendment. The goals of such

participation may include exploring

whether the participants in the process

should consider the use of alternative

procedures and, to the extent feasible

and appropriate, assisting in the

informal resolution of disputes and the

combination of the pre-filing

consultation process with the NEPA

process and related processes, such as

the grant of water quality certification

under the Clean Water Act and the

issuance of mandatory conditions

pursuant to section 4(e) of the FPA.

In such cases, on request and at its

discretion, the Commission may

approve suitable modifications to the

procedures otherwise applicable during

the pre-filing and post-filing periods,

similar to those made for alternative

procedures set forth in the proposed

rule. If the applicant subsequently

requests and is granted permission to

use alternative procedures, the

Commission may direct how the

applicant and interested entities may

shift from the standard pre-filing

consultation process to the alternative

process.

The final rule does not affect the

Commision’s compliance with NEPA,

section 10(j) of the FPA, or the ESA, nor

does it in any way deprive a party of the

right to contest issues before the

Commission and obtain a decision on

these issues based on the administrative

record before the Commission. The

Commission will review the application

for adequacy, and if it is accepted for

filing the Commission will invite

interventions and set a deadline for the

submission of final recommendations,

prescriptions, mandatory conditions,

and comments. Upon receipt of the

application the Commission will not

issue a notice inviting additional study

requests, and the Commission will not

issue a notice that the application is

ready for environmental analysis, as

would occur under the standard

procedures. The Commission will

review the preliminary draft NEPA

document, prepared in the course of the

pre-filing consultation period under the

alternative procedures, and issue a draft

NEPA document for comment. The

Commission will take any steps

required to examine contested issues

and comply in its usual manner with

statutory mandates applicable to the

case, such as section 10(j) of the FPA

and the ESA. The Commission will then

issue the NEPA document in final form

and an order on the application for

license, exemption, or license

amendment.

If an agreement or offer of settlement

is filed in connection with an

application that the Commission grants,

the order will address the agreement or

offer of settlement. If contested issues

remain, as determined by the position of

the parties and resource agencies before

the Commission, the order will resolve

the issues based on the administrative

record before the Commission.

Finally, an agency, such as a federal

land management agency with authority

over the proposed project under FPA

section 4(e) or a state agency with

responsibility for issuing a certification

for the project under the Clean Water

Act, is free to participate fully in any

alternative procedures under the final

rule and subsequently to elect to be a

cooperating agency with the

Commission for NEPA purposes. The

Commission will continue to enforce its

policy, however, that such an agency

cannot intervene as a party in the

proceeding and at the same time be a

cooperating agency for NEPA purposes.

We believe that allowing an agency to

pursue both of these roles

simultaneously could raise concerns

about compliance by the Commission

with its ex parte rule.37

IV. Environmental Analysis

Commission regulations describe the

circumstances where preparation of an

environmental assessment or an

environmental impact statement will be

required.38 The Commission has

categorically excluded certain actions

from this requirement as not having a

significant effect on the human

environment.39 No environmental

consideration is necessary for the

promulgation of a rule that is clarifying,

corrective, or procedural, or that does

not substantially change the effect of

legislation or regulations being

amended.40

This final rule is procedural in nature.

It proposes alternative procedures that

participants to a hydroelectric licensing

or exemption proceeding may wish to

use. Thus, no environmental assessment

or environmental impact statement is

necessary for the requirements proposed

in the rule.

V. Regulatory Flexibility Certification

The Regulatory Flexibility Act of 1980

(RFA) 41 generally requires a description

and analysis of final rules that will have

significant economic impact on a

substantial number of small entities.

Pursuant to section 605(b) of the RFA,

the Commission hereby certifies that the

regulations promulgated will not have a

significant economic impact on a

substantial number of small entities.

The procedures adopted herein are

purely voluntary in nature, and are

designed to reduce burdens on small

entities (as well as large entities) rather
Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations 59809

42 5 CFR 1320.11.

than to increase them. More

fundamentally, the alternative process

we are proposing herein is voluntary.

The procedures constitute an alternative

to the procedures currently prescribed

in our regulations, and will not be

available unless it is the consensus of

the persons and entities interested in

the proceeding, as discussed herein, to

use the alternative procedures. Under

this approach, each small entity will be

able to evaluate for itself whether the

alternative procedures are beneficial or

burdensome, and oppose their adoption

if they appeared to be more burdensome

than beneficial. Under these

circumstances, the economic impact of

the proposed rule will be either neutral

or beneficial to the small entities

affected by it.

VI. Information Collection

Requirements

The Office of Management and Budget

(OMB) regulations require OMB to

approve certain reporting and

recordkeeping requirements (collections

of information) imposed by agency

rule.42 OMB has reviewed the NOPR

without comment. The final rule

adopted herein will impose reporting

burdens only on those applicants that

voluntarily choose to use the alternate

procedures. Respondents subject to the

filing requirements of this final rule will

not be penalized for failing to respond

to these collections of information

unless the collections of information

display a valid OMB control number.

The Final Rule will affect two existing

data collections, FERC–500 and FERC–

505. Most of the reporting burdens

associated with preparing and filing an

application for a hydropower license,

exemption, or amendment to license are

imposed by existing regulations.

Public Reporting Burden

The alternative procedures will only

require minor additional filing

requirements with the Commission. The

other additional burdens of the

alternative procedures, as compared to

the standard procedures, do not involve

filings with the Commission, but will

consist of various outreach efforts of the

applicant and related interactions with

entities interested in its hydropower

proposal. An applicant would

presumably only incur such additional

burdens if it believed that, in the long

run, it would save on litigation and

other costs incurred to pursue the

standard procedures.

The Commission has made

approximate estimates of the additional

time that may be required of an

applicant to comply with the alternative

procedures, as compared with the

standard procedures. It is difficult to be

precise about such estimates, because

the time required for one applicant

could vary considerably from the time

required for other applicants, depending

upon the circumstances involved,

including the complexity of the issues

raised, the total number of participants

in the pre-filing process, and how

cooperatively those participants worked

together. If the alternative procedures

were successful and resulted, for

example, in the filing of an agreement

or offer of settlement with the

Commission, the applicant may be able

to save substantially more time by

avoiding litigation than was invested in

the alternative procedures. If an

applicant requested and was allowed to

use the alternative procedures, the main

additional burden, with the estimated

hours to comply with each, are

estimated to be:

Process

Burden

(hours of effort)

(1) Contact interested entities 80

(2) Prepare and submit request, including communications protocol ....................... 80

(3) Prepare and distribute

scoping and hold related

meetings .............................. 50

(4) Develop agenda and other

documents, including minutes, for all meetings and

prepare and distribute them

(only additional time as

compared to presently required meetings ................... 600

(5) Prepare and publish public

notices ................................. 24

(6) Prepare and submit semiannual progress reports and

make other required Commission filings ...................... 48

(7) Maintain a complete record

of the pre-filing consultation

proceedings that would be

open to the public ............... 250

It is estimated that to prepare and

distribute the preliminary draft

environmental review document would

not take any more time than to prepare

Exhibit E under the standard process.

Therefore, the estimated additional

burden of the tasks required of an

applicant if it voluntarily undertakes the

alternative process totals 1132 hours.

The OMB regulations require OMB to

approve certain information collection

requirements imposed by agency rule.

Accordingly, pursuant to OMB

regulations, the Commission is

providing notice of its proposed

information collections to OMB.

Title: FERC–500 ‘‘Application for

License for Water Projects with More

than 5MW Capacity’’; FERC–505

‘‘Application for Water Projects 5MW or

Less Capacity’’.

Action: Proposed Data Collections.

OMB Control No.: 1902–0058; 1902–

0115.

Respondents: Businesses or other for

profit.

Frequency of Responses: On

Occasion.

Necessity of Information: There are

approximately 1,021 hydropower

licenses issued by the Commission that

are currently outstanding. These

licenses all expire at the completion of

fixed terms, and at expiration the

license holders may apply for a new

licenses. Other applicants may apply for

exemptions or original licenses to

construct and operate new or existing

hydropower projects.

The final rule authorizes a potential

applicant for a license, exemption or

certain major amendments to a license

to file a request for alternative

procedures if the applicant wants to use

such procedures, as authorized by the

rule. The rule also requires the filing of

a communications protocol with the

request for alternative procedures. The

applicant will have to do a number of

other things in the pre-filing

consultation process, including

distribution of an initial information

package and conduct an initial public

meeting, which are required under

existing Commission regulations. The

applicant, possibly with a contractor’s

assistance, would have to conduct the

scoping of environmental issues; this is

a new requirement, not now imposed on

applicants, but which is related to

currently required pre-filing

consultation duties of the applicant and

would substitute in part for the

environmental review process

traditionally done by the Commission

after the filing of an application for

hydropower license or for certain major

license amendments.

The applicant would have to do

studies of the resource impacts of its

proposal, as it now must do under

current Commission regulations

governing the pre-filing consultation

process. The applicant or the contractor

would also have to prepare a

preliminary draft NEPA document and

submit additional information in lieu of

what is now required as Exhibit E to a

hydropower application. These two

filing requirements—what is now

required and what would be required

under the regulations for the alternative

procedures—are similar.

The applicant would have to file with

the Commission semi-annual reports on
59810 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations

the progress of the pre-filing

consultation process under the

alternative procedures. No such reports

are now required, although the filing of

these reports under the alternative

procedures avoids the requirement in

the current regulations for the applicant

to document the entire pre-filing

consultation process when the

application is filed. Under the

alternative procedures the applicant

would have to maintain a public file of

the pre-filing process and to give

various public notices during this

process, while current regulations do

not require maintenance of a public file

containing all this information or the

issuance of as many such notices during

the pre-filing consultation period.

Internal Review: The Commission has

assured itself, by means of its internal

review, that there is specific, objective

support for the burden estimates

associated with the information

requirements. The Commission’s Office

of Hydropower Licensing will upon

receipt of the application review it to

determine the broad impact of the

license application. Commission staff

conducts a systematic review of the

prepared application with supplemental

documentation provided by the

solicitation of comments from other

agencies and the public. The

Commission will take any steps

required to examine contested issues

and comply with statutory mandates

applicable to the case. These reviews

ensure that the Federal Power Act as

amended by other statutory provisions

is formally administered to ensure

compliance by the licensee. These

requirements conform to the

Commission’s plan for efficient

information collection, communication,

and management within the

hydroelectric industry.

Interested persons may obtain

information on the reporting

requirements by contacting the

following: Federal Energy Regulatory

Commission, 888 First Street, NE.,

Washington, DC 20426. [Attention:

Michael Miller, Division of Information

Services Phone: (202) 208–1415, fax:

(202) 273–0873, email:

mmiller@ferc.fed.us]

Comments are solicited on the

Commission’s need for this information,

whether the information will have

practical utility, the accuracy of the

provided burden estimates, ways to

enhance the quality, utility, and clarity

of the information to be collected, and

any suggested methods for minimizing

respondents’ burden, including the use

of automated information techniques.

For submitting comments concerning

the collections of information and the

associated burden estimates, please

send your comments to the contact

listed above and to the Office of

Management and Budget, Office of

Information and Regulatory Affairs,

Washington, DC 20503. [Attention: Desk

Officer for the Federal Energy

Regulatory Commission, phone (202)

395–3087, fax: (202) 395–7285]

Estimated Annual Burden (includes

burden hours already approved for

standard procedures):

Data collection Number of

respondents

Number of

responses

Hours per

response

Total annual

hours

FERC–500 ........................................................................................................ 6 6 853 5,120

FERC–505 ........................................................................................................ 10 10 182 1,818

Total Annual Hours for collections

(Reporting + Recordkeeping, (if

appropriate)) = 6,938.

Information Collection Costs: The

Commission seeks comments on the

costs to comply with these

requirements. It has projected the

average annualized cost for all

respondents to be:

Data collection

Annualized

capital/start-up

costs

Annualized

costs (operations & maintenance)

Total

annualized

costs

FERC–500 .................................................................................................................................... $269,861 $0.00 $269,861.00

FERC–505 .................................................................................................................................... 95,822 0.00 95,822.00

Total ................................................................................................................................... ........................ ........................ 365,683.00

VII. Effective Date

This rule is effective December 5,

1997. If OMB has not approved the

information collection provisions at that

time, the Commission will issue a notice

delaying the effective date until OMB

approval of the final rule.

List of Subjects

18 CFR Part 4

Electric power, Reporting and

recordkeeping requirements.

18 CFR Part 375

Authority delegations (Government

agencies), Seals and insignia, Sunshine

Act.

By the Commission.

Lois D. Cashell,

Secretary.

In consideration of the foregoing, the

Commission amends parts 4 and 375 of

Chapter I, Title 18, Code of Federal

Regulations, as set forth below.

PART 4—LICENSES, PERMITS,

EXEMPTIONS, AND DETERMINATION

OF PROJECT COSTS

1. The authority citation for part 4

continues to read as follows:

Authority: 16 U.S.C. 791a–825r, 2601–

2645; 42 U.S.C. 7101–7352.

2. In § 4.34, the section heading is

revised and a new paragraph (i) is added

to read as follows:

§ 4.34 Hearings on applications;

consultation on terms and conditions;

motions to intervene; alternative

procedures.

* * * * *

(i) Alternative procedures. (1) An

applicant may submit to the

Commission a request to approve the

use of alternative procedures for prefiling consultation and the filing and

processing of an application for an

original, new or subsequent hydropower

license or exemption that is subject to

§ 4.38 or § 16.8 of this chapter, or for the

amendment of a license that is subject

to the provisions of § 4.38.

(2) The goal of such alternative

procedures shall be to:

(i) Combine into a single process the

pre-filing consultation process, the
Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations 59811

environmental review process under the

National Environmental Policy Act and

administrative processes associated

with the Clean Water Act and other

statutes;

(ii) Facilitate greater participation by

and improve communication among the

potential applicant, resource agencies,

Indian tribes, the public and

Commission staff in a flexible pre-filing

consultation process tailored to the

circumstances of each case;

(iii) Allow for the preparation of a

preliminary draft environmental

assessment by an applicant or its

contractor or consultant, or of a

preliminary draft environmental impact

statement by a contractor or consultant

chosen by the Commission and funded

by the applicant;

(iv) Promote cooperative efforts by the

potential applicant and interested

entities and encourage them to share

information about resource impacts and

mitigation and enhancement proposals

and to narrow any areas of disagreement

and reach agreement or settlement of the

issues raised by the hydropower

proposal; and

(v) Facilitate an orderly and

expeditious review of an agreement or

offer of settlement of an application for

a hydropower license, exemption or

amendment to a license.

(3) A potential hydropower applicant

requesting the use of alternative

procedures must:

(i) Demonstrate that a reasonable

effort has been made to contact all

resource agencies, Indian tribes,

citizens’ groups, and others affected by

the applicant’s proposal, and that a

consensus exists that the use of

alternative procedures is appropriate

under the circumstances;

(ii) Submit a communications

protocol, supported by interested

entities, governing how the applicant

and other participants in the pre-filing

consultation process, including the

Commission staff, may communicate

with each other regarding the merits of

the applicant’s proposal and proposals

and recommendations of interested

entities; and

(iii) Serve a copy of the request on all

affected resource agencies and Indian

tribes and on all entities contacted by

the applicant that have expressed an

interest in the alternative pre-filing

consultation process.

(4) As appropriate under the

circumstances of the case, the

alternative procedures should include

provisions for:

(i) Distribution of an initial

information package and conduct of an

initial information meeting open to the

public;

(ii) The cooperative scoping of

environmental issues (including

necessary scientific studies), the

analysis of completed studies and any

further scoping; and

(iii) The preparation of a preliminary

draft environmental assessment or

preliminary draft environmental impact

statement and related application.

(5) The Commission will give public

notice in the Federal Register inviting

comment on the applicant’s request to

use alternative procedures. The

Commission will consider any such

comments in determining whether to

grant or deny the applicant’s request to

use alternative procdures. Such a

decision will not be subject to

interlocutory rehearing or appeal.

(6) If the Commission accepts the use

of alternative procedures, the following

provisions will apply.

(i) To the extent feasible under the

circumstances of the proceeding, the

Commission will give notice in the

Federal Register and the applicant will

give notice, in a local newspaper of

general circulation in the county or

counties in which the project is located,

of the initial information meeting and

the scoping of environmental issues.

The applicant will also send notice of

these stages to a mailing list approved

by the Commission.

(ii) Every six months, the applicant

shall file with the Commission a report

summarizing the progress made in the

pre-filing consultation process and

referencing the applicant’s public file,

where additional information on that

process can be obtained. Summaries or

minutes of meetings held in the process

may be used to satisfy this filing

requirement. The applicant must also

file with the Commission a copy of its

initial information package, each

scoping document, and the preliminary

draft environmental review document.

All filings with the Commission under

this section must include the number of

copies required by paragraph (h) of this

section, and the applicant shall send a

copy of these filings to each participant

that requests a copy.

(iii) At a suitable location, the

applicant will maintain a public file of

all relevant documents, including

scientific studies, correspondence, and

minutes or summaries of meetings,

compiled during the pre-filing

consultation process. The Commission

will maintain a public file of the

applicant’s initial information package,

scoping documents, periodic reports on

the pre-filing consultation process, and

the preliminary draft environmental

review document.

(iv) An applicant authorized to use

alternative procedures may substitute a

preliminary draft environmental review

document and additional material

specified by the Commission instead of

Exhibit E to its application and need not

supply additional documention of the

pre-filing consultation process. The

applicant will file with the Commission

the results of any studies conducted or

other documentation as directed by the

Commission, either on its own motion

or in response to a motion by a party to

the licensing or exemption proceeding.

(v) Pursuant to the procedures

approved, the participants will set

reasonable deadlines requiring all

resource agencies, Indian tribes,

citizens’ groups, and interested persons

to submit to the applicant requests for

scientific studies during the pre-filing

consultation process, and additional

requests for studies may be made to the

Commission after the filing of the

application only for good cause shown.

(vi) During the pre-filing process the

Commission may require the filing of

preliminary fish and wildlife

recommendations, prescriptions,

mandatory conditions, and comments,

to be submitted in final form after the

filing of the application; no notice that

the application is ready for

environmental analysis need be given

by the Commission after the filing of an

application pursuant to these

procedures.

(vii) Any potential applicant, resource

agency, Indian tribe, citizens’ group, or

other entity participating in the

alternative pre-filing consultation

process may file a request with the

Commission to resolve a dispute

concerning the alternative process

(including a dispute over required

studies), but only after reasonable efforts

have been made to resolve the dispute

with other participants in the process.

No such request shall be accepted for

filing unless the entity submitting it

certifies that it has been served on all

other participants. The request must

document what efforts have been made

to resolve the dispute.

(7) If the potential applicant or any

resource agency, Indian tribe, citizens’

group, or other entity participating in

the alternative pre-filing consultation

process can show that it has cooperated

in the process but a consensus

supporting the use of the process no

longer exists and that continued use of

the alternative process will not be

productive, the participant may petition

the Commission for an order directing

the use by the potential applicant of

appropriate procedures to complete its

application. No such request shall be

accepted for filing unless the entity

submitting it certifies that it has been

served on all other participants. The
59812 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations

request must recommend specific

procedures that are appropriate under

the circumstances.

(8) The Commission may participate

in the pre-filing consultation process

and assist in the integration of this

process and the environmental review

process in any case, including

appropriate cases where the applicant,

contractor, or consultant funded by the

applicant is not preparing a preliminary

draft environmental assessment or

preliminary draft environmental impact

statement, but where staff assistance is

available and could expedite the

proceeding.

(9) In all cases where the Commission

has approved the use of alternative prefiling consultation procedures prior to

December 5, 1997, during the pre-filing

process the potential applicant need not

follow any additional requirements

imposed by paragraph (i) of this section,

if in so doing the applicant would

repeat any steps already taken in the

preparation of its application and

supporting documentation or act

inconsistently with any written

agreement signed before December 5,

1997 by the applicant and the other

participants in the alternative process.

PART 375—THE COMMISSION

3. The authority citation for part 375

continues to read as follows:

Authority: 5 U.S.C. 551–557; 15 U.S.C.

717–717w, 3301–3432; 16 U.S.C. 791–825r,

2601–2645; 42 U.S.C. 7101–7352.

4. In § 375.314, paragraph (u) is added

to read as follows:

§ 375.314 Delegations to the Director of

the Office of Hydropower Licensing.

* * * * *

(u) Approve, on a case-specific basis,

and issue such orders as may be

necessary in connection with the use of

alternative procedures, under § 4.34(i) of

this chapter, for the development of an

application for an original, new or

subsequent license, exemption, or

license amendment subject to the prefiling consultation process, and assist in

the pre-filing consultation and related

processes.

Note: The appendix will not appear in the

Code of Federal Regulations.

Appendix A

Comments

Citizens’ Groups

Adirondack Mountain Club

American Rivers

Appalachian Mountain Club

California Hydropower Reform Coalition

Conservation Law Foundation

Hydropower Reform Coalition

Idaho Rivers United

Michigan Hydro Relicensing Coalition

New England FLOW

New York Rivers United

Trout Unlimited

Federal Agencies

U.S. Department of Agriculture, U.S. Forest

Service

U.S. Department of Commerce, National

Marine Fisheries Service

U.S. Department of the Interior

U.S. Environmental Protection Agency

Indian Tribes

Penobscot Nation

Industry Associations

American Public Power Association

Edison Electric Institute

National Hydropower Association

Public Generating Pool

Western Urban Water Coalition

State Agencies

Georgia Department of Natural Resources

New York State Department of

Environmental Conservation

Washington Department of Fish and Game

Licensees

Adirondack Hydro Development Corporation

Alabama Power Company and Georgia Power

Company

Denver Water

Duke Power Company

Holyoke Gas & Electric Company and

Northern California Water Power Agency

Minnesota Power & Light Company

Montana Power Company

Pacific Gas and Electric Company

Portland General Electric Company

Sacramento Municipal Utility District

Seattle City Light

Reply Comments

Alabama Power Company and Georgia Power

Company

City of Holyoke, Massachusetts Gas & Electric

Department

Duke Power Company

Edison Electric Institute

Hydropower Reform Coalition

National Hydropower Association

Sacramento Municipal Utility District

[FR Doc. 97–29196 Filed 11–4–97; 8:45 am]

BILLING CODE 6717–01–P

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 416

[Regulations No. 16]

RIN 0960–AE05

Definition of United States (U.S.)

Resident; Religious Record of Birth or

Baptism as Evidence of Citizenship;

Plan to Help Blind and Disabled

Individuals Achieve Self-Support

AGENCY: Social Security Administration

(SSA).

ACTION: Final rules.

SUMMARY: These final regulations clarify

SSA’s policies on the definition of a

U.S. resident and the acceptable types of

evidence for proving status as a U.S.

citizen or national. They clarify that, for

purposes of the Supplemental Security

Income (SSI) program, resident of the

U.S. means the individual has

established an actual dwelling place in

the U.S. and plans to continue living in

the U.S. These final regulations also

clarify that, for purposes of the SSI

program, a religious record of a birth or

baptism in the U.S. must have been

recorded in the U.S. within 3 months of

the birth, in addition to showing that

the individual was born in the U.S., in

order to be acceptable evidence that the

individual is a U.S. citizen or a national

of the U.S. In addition, these final

regulations correct a typographical error

in the wording regarding income that is

used or set aside to be used under a plan

to become self-supporting.

EFFECTIVE DATE: These regulations are

effective December 5, 1997.

FOR FURTHER INFORMATION CONTACT: Lois

Berg, Legal Assistant, Division of

Regulations and Rulings, Social Security

Administration, 6401 Security

Boulevard, Baltimore, MD 21235, (410)

965–1713. For information on

eligibility, claiming benefits, or coverage

of earnings, call our national toll-free

number, 1–800–772–1213.

SUPPLEMENTARY INFORMATION:

Background

To be eligible for SSI benefits, an

individual must be a resident of the U.S.

(one of the 50 States, the District of

Columbia, or the Northern Mariana

Islands). Generally, a person becomes a

resident when he or she arrives in the

U.S., establishes an actual dwelling

place in the U.S., and plans to continue

living in the U.S.

Our regulation at § 416.1603(b)

currently defines resident of the U.S. as

‘‘a person who is living within the

geographical limits of the United

States.’’ This definition is vague because

it could be read to imply that mere

presence, such as that of a visitor, is

sufficient to establish residency. In

addition, it does not fully support the

evidence of residency documents

required to establish U.S. residency

listed in § 416.1603(a).

Section 416.1603(b) of these final

regulations specifies that an individual

must establish an actual dwelling place

in the U.S. and intend to continue living

in the U.S. to be considered a U.S.

resident. Clarification of this section of

the regulations is necessary to address

problems that have arisen where

individuals have established U.S.