15040 Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations

1 16 U.S.C. 792–823b. 2As discussed below, the final rule eliminates

filing fees for future exemption applications, and

adopts annual charges with respect to exemptions

that are issued in the future for projects that are

equivalent in size to those of major licensed

projects.

3 IV FERC Stats. & Regs. ¶ 32,505. The NOPR was published in the Federal Register on February 3, 1994, 59 FR 5142. 4 16 U.S.C. 803(e)(1). 5 18 CFR part 11. 6The system of basing the annual charges on

actual costs was adopted in Order No. 205, 19 F.P.C. 907 (1958) (with respect to municipal

licensees only), and in Order No. 272, 30 F.P.C. 1333 (1963) (all other licensees); see also Order No. 272–A, 31 F.P.C. 1555 (1964). 7Pub. L. No. 99–509, Title III, Subtitle E, sec. 3401 (1986) (codified at 42 U.S.C. 7178). OBRA is

implemented in Part 382 of the Commission’s Regulations, 18 CFR Part 382. 8See Joint Explanatory Statement of the Committee of Conference to Accompany H.R. 5300

(Conference Report), H.R. Rep. No. 1012, 99th Cong., 2d Sess. 238, reprinted in 1986 U.S.C.C.A.N. 3607, 3883. 9The former procedures for estimating the costs and later adjusting the assessments were described

in Order No. 472, 52 FR 18201 (May 14, 1987), FERC Stats. & Regs. (Regulations Preambles 1986–

1990) ¶ 30,746 at pp. 30,612 and 30,616–17.

effective by telegraphic AD T95–04–51, issued on February 21, 1995, which

contained the requirements of this amendment. Issued in Renton, Washington, on March

14, 1995. Darrell M. Pederson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. 95–6774 Filed 3–21–95; 8:45 am] BILLING CODE 4910–13–U

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 11 and 381

[Docket No. RM93–7–000; Order No. 576] Charges and Fees for Hydroelectric Projects

Issued: March 15, 1995. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Final rule. SUMMARY: The Federal Energy Regulatory Commission (Commission) is amending its regulations governing the

assessment of annual charges for the

administration of Part I of the Federal Power Act, 16 U.S.C. 792–823b. The

final rule adopts a maximum charge and makes the assessments commence at the

same time as the commencement of project construction. The final rule

eliminates annual charges for minor

licensees, and does not (as originally proposed) adopt annual charges for existing exemptees. The final rule

eliminates filing fees for future

exemption applications, and adopts annual charges with respect to

exemptions that are issued in the future

for projects that are equivalent in size to

those of major licensed projects. The

final rule retains at this time the

separate allocation of annual charges for administrative costs for municipal and

non-municipal licensees, and retains as well the existing formulae for allocating

those costs between the two classes of major licensees. The final rule defers consideration of those issues to a future proceeding. EFFECTIVE DATE: April 21, 1995. FOR FURTHER INFORMATION CONTACT: Barry Smoler, Office of the General Counsel, Federal Energy Regulatory Commission, 825 N. Capitol Street NE., Washington, DC 20426, (202) 208–1269. SUPPLEMENTARY INFORMATION: In

addition to publishing the full text of

this document in the Federal Register, the Commission also provides all

interested persons an opportunity to

inspect or copy the contents of this document during normal business hours

in Room 3104, 941 North Capitol Street, NE., 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. To

access CIPS, set your communications

software to 19200, 14400, 12000, 9600, 7200, 4800, 2400, 1200 or 300bps, full duplex, no parity, 8 data bits, and 1 stop

bit. The full text of this document will be available on CIPS for 60 days from

the date of issuance in ASCII and WordPerfect 5.1 format. After 60 days

the document will be archived, but still accessible. The complete text on

diskette in Wordperfect format may also

be purchased from the Commission’s copy contractor, La Dorn Systems Corporation, located in Room 3104, 941 North Capitol Street NE., Washington, DC 20426.

I. Introduction The Federal Energy Regulatory Commission (Commission) is amending

its regulations governing the assessment of annual charges for the administration

of Part I of the Federal Power Act

(FPA).1 The final rule adopts a maximum charge and makes the

assessments commence at the same time

as the commencement of project construction. The final rule eliminates annual charges for minor licensees, and

does not (as originally proposed) adopt annual charges for existing exemptees.2 The final rule retains at this time the

separate allocation of annual charges for administrative costs for municipal and

non-municipal licensees, and retains as well the existing formulae for allocating

those costs between the two classes of major licensees. The final rule defers consideration of those issues to a future proceeding.

II. Public Reporting Burden Under the current regulations, major non-municipal licensees file annual reports containing data on their electric

generation during the prior fiscal year. The final rule does not alter that reporting burden.

III. Background On January 26, 1994, the Commission

issued a Notice of Proposed Rulemaking

(NOPR) proposing to revise its

regulations governing the assessment of annual charges under FPA Part I.3 As explained in the NOPR, the Commission

is required by section 10(e)(1) of the FPA4 to collect annual charges from

licensees for the cost of administering Part I of the FPA. Part 11 of the Commission’s regulations 5 provides the manner in which licensees are charged

for such costs. Prior to the adoption of

the current regulations in 1958 and

1963, administrative charges were not based on the actual costs of the

government, but were in the nature of set fees that were billed for a calendar year.6 Under the current regulations, the

reimbursable costs are determined on a

fiscal year basis. Section 3401 of the Omnibus Budget Reconciliation Act of 1986 (OBRA) 7

requires the Commission to recover all of its costs for the fiscal year through

annual charges and fees.8 The annual charges assessed pursuant to OBRA are based on an estimate of the Commission’s current-fiscal-year costs, with subsequent adjustments based on

actual costs.9 Pursuant to OBRA, the Commission collects annual charges to

recover the costs of administering Parts

II and III of the FPA, as well as the costs

the Commission incurs in administering

the Natural Gas Act, the Natural Gas Policy Act, and the Interstate Commerce Act. In this regard, we note that section

3401(a)(2) of OBRA provides that ‘‘[t]he provisions of this subtitle shall not affect the authority, requirements, exceptions, or limitations in sections 10(e) and 30(e) of the Federal Power Act.’’ In response to the NOPR, the Commission received 73 comments. The
Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations 15041

10See, e.g., EEI at 16–17. 11Water Assn. at 3. See also North America. 12Of that total, 133 municipal major licensees were assessed a total of $11,105,138, while 528 non- municipal major licensees were assessed a total of $40,245,561. 13Of that total, 58 municipal minor licensees were assessed a total of $3,404, while 333 non- municipal minor licensees were assessed a total of $45,057.

14The proposed limit was modelled after the

formula in § 382.203(b) with respect to annual charges for oil pipelines. The maximum annual charge stated therein is 6.339 percent of the total charges, but that figure is based on a much smaller number of significant entities (interstate oil pipelines) sharing a much smaller total cost. 15Washington Company at 5. 16Alaskan at 5.

commenters are listed in Appendix A of

this final rule. The proposals in the NOPR, the comments thereon, and the Commission’s determinations thereon

are discussed below on a subject by

subject basis.

IV. Discussion As explained in the NOPR, former § 11.1 of the Commission’s regulations provided three different allocation

formulae for three different classes of

licensees. For non-municipal licensees of projects of more than 2,000 horsepower of installed capacity, former § 11.1(a) set forth an allocation formula based on a combination of the project’s authorized installed capacity and the

energy actually generated. For municipal licensees of projects of more

than 2,000 horsepower, former § 11.1(b) set forth an allocation formula based

solely on capacity. For all licensees

(both municipal and non-municipal) of projects of 2,000 horsepower or less of

installed capacity, former § 11.1(c) specified an annual charge of five cents per horsepower, with a minimum

charge of $5 per year. The NOPR proposed two alternatives. In Alternative A, the Commission

proposed to base the allocation of all of

the annual charges among a single class of licensees and exemptees, including

all major and minor municipal and non- municipal licensees and all exemptees. The allocation would be based solely on

the respective capacity of each

hydropower project as measured in

kilowatts. Under Alternative B, the Commission proposed to retain separate

categories and formulae for major municipal and non-municipal licensees. Minor licensees and exemptees would

be classified with the comparable

groups of major licensees, and their charges would be assessed pursuant to

the formulae currently used for those

groups. A. Charges for Minor Licensees As noted above, both Alternative A

and Alternative B treated the minor

licensees in the same manner as the major licensees. In Alternative A, all

licensees were combined together in a

single allocation formula. In Alternative B, the minor licensees were included in

the respective allocation formulae for

the major licensees. In other words, the minor municipal licensees were

included in the same allocation formula with the major municipal licensees, and

the minor non-municipal licensees were

included in the same allocation formula with the major non-municipal licensees. The NOPR recognized that, under either scheme, the charges for minor licensees may increase substantially, but

expressed the Commission’s belief that

the existing charge of five cents per horsepower had been so heavily eroded

by inflation since it was adopted in

1963 as to have been rendered

comparatively meaningless. The major licensees favor including

the minor licensees in the same

assessment pool,10 while the minor

licensees object. The major licensees emphasize fairness in broadly spreading

the Commission’s costs, while the minor

licensees emphasize the burden on

them. Water Assn. contends that ‘‘dramatic

increases in fees’’ would cause some

economically marginal minor licensees

to abandon operation of their projects.11 Some minor licensees contend that

they cannot afford a minimum annual charge of $100. Mackowiak, for

instance, has a 37 kilowatt (kW) project

in his back yard, whose purpose is to provide electricity to his home. He proposes that projects smaller than 100

kW in capacity be excluded from the

assessments. We have decided not to assess annual charges on minor projects. As a practical matter, excluding minor projects (i.e., projects of 1.5 MW or smaller) will have no meaningful impact on the other

licensees’ assessments, but will relieve minor licensees of a potentially onerous burden. In fiscal year 1993, a total of 1052

licensees were assessed a total of $51,399,160 in annual charges for administration of Part I of the FPA. Of

that total, the 661 major licensees were

assessed a total of $51,350,699,12 while

the 391 minor licensees were assessed a

total of $48,461.13 Thus, the major

licensees accounted for 99.9 percent of

the total assessments, while the minor

licensees accounted for only 0.1 percent of the total assessments. In other words, no major licensee derives any meaningful financial benefit

from including the minor licensees in

the existing assessment and allocation

scheme. We believe that substantially

increasing the minor licensees’ annual charges, as proposed in the NOPR, could impose unreasonable burdens on many of those licensees, while

exclusion of the minor licensees from

the new assessment and allocation

scheme may provide meaningful relief

to many of those minor licensees. Accordingly, we have defined the scope of the assessment process in new

§ 11.1(b)(1) so as to include only

licensees whose projects exceed 1.5 MW

in authorized installed capacity. The 1.5 MW is the equivalent of the 2,000 horsepower definition of minor projects

in former § 11.1. B. Minimum and Maximum Charges The NOPR proposed to establish a minimum and maximum annual charge. The minimum annual charge would be $100. The maximum charge would set a

limit on annual charges so that, with

respect to costs incurred by the Commission, no licensee’s project would be required to pay more than 2.0 percent of the total costs.14 The NOPR also invited comment on

other potential alternatives. With

respect to a minimum charge, other alternatives would be to waive charges below a fixed dollar amount or below a

fixed capacity. With respect to a maximum charge, different percentages could be used for the ceiling. If the

formula were to be based solely on

capacity, another alternative would be

to have a 50 percent discount for all authorized capacity above a prescribed

ceiling (e.g., 500 megawatts). Many of the commenters express approval for a maximum charge, and many of these comments come from

licensees who would not themselves benefit from such a cap. In general, the

commenters believe that the charges assessed to the largest projects are disproportionate. Washington Company proposes a minimum base annual charge of $500.15 Some smaller exemptees and minor

licensees, on the other hand, contend

that the $100 minimum would be unduly burdensome on them. Ogden opposes the two percent maximum charge on grounds that it would solely benefit larger, non- municipal projects. Alaskan opposes the maximum charge on grounds that, ‘‘[i]f

the charges are equitably allocated at the outset, the effect of the proposed cap

could be to unfairly reallocate costs

from larger to smaller projects.’’ 16 Synergics also believes the cap is unfair. Consolidated would lower the cap

from 2 percent to 1.6 percent. Or, using

the alternative formula discussed in the
15042 Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations

17Consolidated at 11–12; see also Storage Council at 9–10; Kvaerner at 10–11. 18Chelan at 11–13. 19 Grant at 6. 20 Virginia Power at 2. 21We understand Chelan’s point, but we believe

that basing the cap on licensees rather than on

projects might result in as many distortions as the one Chelan notes. No annual charge allocation

formula will ever be ‘‘perfect’’ or totally free of any distortion. We believe that the one we have adopted

is reasonable. In any event, as noted below, our annual charge program is not predicated on

collecting from individual projects in proportion to

their responsibility for administrative costs

incurred. For these and other reasons, we also

believe that no useful purpose would be served by

conducting the study suggested by Grant.

22The NOPR expressed the Commission’s belief

that commencement of construction is a more

appropriate determinant than completion of construction, for two reasons. First, of all, the date on which construction commenced is a legally precise, documented date, whereas the date on which construction is completed is not defined with the same precision. This is because section 13

of the FPA requires that the licensee commence

construction of the project within fixed time periods after issuance of the license, as specified in

section 13 and the license. Thus, the Commission

has evolved standards for determining the precise date of commencement of construction, and the hydropower industry is familiar with those

standards. Secondly, the NOPR expressed the Commission’s understanding that licensees of projects under construction can draw on

construction loan funds to pay the annual charges, whereas such funds may not be available prior to

the commencement of construction.

23EEI at 12–14. EEI goes on to advocate filing fees

for applications for a preliminary permit or an

original license. Those proposals go beyond the

scope of the NOPR and will not be considered here. 24Consolidated at 3–4. 25 Id. at 4–5. 26 Id. at 6. 27Storage Council at 4–5.

NOPR, Consolidated would use a 75 percent discount factor for all capacity

in excess of 500 MW.17 Chelan argues that the proposed two percent cap is inequitable. Chelan has

two large projects each of which would

fall beneath the cap, while its downstream neighbor, Grant, has two

comparable developments that are

grouped together into a single licensed

project large enough to benefit from the

cap. Therefore, Chelan urges us to apply

the cap to licensees, not to projects. Chelan offers a further alternative: ‘‘The maximum charge per licensee could be 2 percent of the total administrative

costs, or .5 percent of the number of projects licensed to it, whichever is greater.’’ 18 Grant suggests that the Commission

conduct ‘‘a reasonable project-by-project sample study’’ that would ‘‘determine

the average relationship of administrative costs to project size,’’ and thereafter adjust the cap ‘‘to reflect

the outcome of the study.’’ 19 Virginia Electric proposes that the minimum

charge be indexed to the rates of

inflation of the Commission’s total costs.20

In light of our determination to assess annual charges only to licensees whose projects have a capacity in excess of 1.5 MW, the proposed minimum charge has been rendered moot. Accordingly, we have not adopted it in the final rule. Having considered the comments

received, and for the reasons stated in

the NOPR, we will adopt the two percent maximum charge that was proposed in the NOPR. We believe it is a reasonable compromise that takes into

account the financial capacity of the

larger projects as well as considerations of fairness in spreading the burden

equitably among licensees by putting

finite limits on the extent of any one project’s burden.21 C. Commencement of Assessments The NOPR recognized that, in the case of major construction projects, the

license may be in effect for several years

before project construction is commenced and before the project commences operation and goes into

service. With respect to non-municipal

licensees, annual charges are payable

each year from the date of issuance of

the license, but there is no incoming

stream of revenue during those years, because no power is being generated. Municipal licensees, on the other hand, do obtain an exemption from annual charges prior to and during the

construction period. This is because § 11.6(g) of the regulations provides a

complete exemption from certain

annual charges when a municipal project is under construction and not generating power, on the theory that the project is operating without profit within the meaning of the municipal exemption in FPA section 10(e). Under the various regulatory regimes discussed in the NOPR, the Commission would maintain the above-described

exemption from annual charges with

respect to municipal projects that have not yet commenced commercial operation. In addition, the NOPR

proposed to include in the assessment

formula (whatever it may be) only

licensed and exempted projects that have already been constructed or whose

construction has commenced. Although

framed in terms of all projects, as a practical matter, because of the

exemption for municipal projects, the

change would primarily affect non- municipal projects.22 Some commenters advocate

commencement of annual charge

assessments upon issuance of the

license or even earlier. Some prefer to delay commencement of charges until

the project commences operating. And

some prefer the middle ground

proposed in the NOPR—commencement of charges after commencement of construction. EEI opposes deferring commencement of billing until commencement of construction, contending that it would

give a ‘‘free ride’’ to licensees whose pre-construction planning activities consume Commission staff time. EEI would, instead, assess the charges during the pre-construction period but defer their payment until after construction, has commenced. Otherwise, according to EEI, the existing

licensees would be ‘‘subsidizing’’ the new licensees; it would be unfair to the

existing licensees, who all paid annual charges from the inception of their

licenses.23 Consolidated states that large pumped

storage projects require substantial lead

time for design and financing prior to

commencement of construction, and

that during this period pumped storage developers typically have limited funds available.24 Consolidated also points out

that the existing regulations based

annual charges for non-municipal pumped storage projects entirely on

capacity, so that such projects did not receive the partial or complete relief accorded to non-municipal conventional projects and municipal projects, both of whose charges were based in part or in whole on generation; charges based on generation do not commence until after construction, because nothing is generated until the project has been built. Thus, Consolidated favors the NOPR’s commencement proposal as a more

equitable solution.25 Consolidated also

asserts that pumped storage projects, because of their large scale, bear a disproportionate share of the annual charges. According to Consolidated, in

1993 pumped storage projects comprised three percent of the total number of licensed projects but paid 32 percent of the total annual charges for administrative costs.26 Storage Council points out that pumped storage projects typically

require two to four years of lead time

after licensing before construction

commences; that the annual charges for

those projects are quite large; and that private developers of these projects need to concentrate their available

finances on project design and power marketing.27 Noah Corp. states that ‘‘(t)he

elimination of annual charges until construction start * * * is the most

important part of this rulemaking. It will make more projects happen, because it
Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations 15043

28Noah Corp. at 1. 29Adirondack at 2. 30Storage Partners at 4. 31PG&E’s comments, however, do not provide

convincing documentation of such Congressional

intent. 32PG&E at 6–8. 33Consumers Power at 6. 34 Duke at 2.

35The NOPR stated that the proposed rule would

codify the policy articulated in Public Utility District No. 2 of Grant County, Washington, 62 FERC ¶ 61,229 (1993). 36EEI at 16. 37Central Maine at 4. 38 Independent at 2–3. See also National Hydro at 2. 39Washington Company at 7; Westinghouse at 2. 40Portland Co. at 3. 41PG&E at 5–6. We note that the portion of the definition in § 11.1(i) that deals with the capacity Continued

will encourage development by

reducing risk cost.’’ 28 Adirondack argues that it is unfair for non-municipal licensees to have to pay

annual charges during the construction

period when municipal licensees do not. Adirondack favors commencing all annual charges at the commencement of project operation, i.e., the day on which

the project first generates electricity.29 Storage Partners also advocates the date of commencement of commercial operations as the appropriate date of commencement of annual charges. Storage Partners would define the

commencement of commercial operations in terms of the contractually defined date of that type specified in

construction contracts, financing

commitments, and power sales contracts.30 PG&E contends that the intent of Congress in FPA section 10(e) was to

require annual licensees to pay annual charges throughout the term of the

license, including the years immediately

after its issuance, even if construction

hasn’t commenced.31 PG&E points out

that this is a period of significant Commission staff involvement in the

licensee’s activities, as the staff monitors and approves various aspects of design and construction.32 Consumers Power contends that the Commission can provide adequate relief

to project-financed projects by

authorizing deferred payment of annual charges on a case-by-case basis.33 Duke

advocates a system of direct billing for actual services rendered, starting with

the Commission’s initial involvement with the applicant/licensee.34

In light of all of the comments, and for

the reasons stated in the NOPR, we believe that the annual charges commencement date proposed in the NOPR strikes a reasonable balance and

compromise among the financial concerns of the different licensees. Licenses are issued for terms of as long

as 50 years, and the projects themselves are often designed and constructed to

last much longer than the license. Thus, over time, providing a modest level of relief to licensees of projects that haven’t yet commenced construction

imposes a very small burden on the

existing licensees, because the licensees of newly constructed projects will be

sharing the total annual charges burden

long after the expiration of the short pre- construction period. Moreover, if a few

years of pre-construction relief from

annual charges enables one or more

licensees of new projects to bring their projects to fruition, these new projects will help share the existing licensees’ burden. As we explained in the NOPR, we prefer to use the date of commencement of construction as the benchmark for commencement of annual charge

assessments, as opposed to the date of commencement of operation, because

the former has come to be defined (for other purposes) with considerably

greater precision in the case law. It also marks the point in time at which

funding is available from construction

loans. D. From Horsepower to Kilowatts As discussed above and in the NOPR, former § 11.1 provided different allocation formulae for municipal and

non-municipal projects of more than

2,000 horsepower of installed capacity. Both formulae, however, took into

account a project’s authorized installed

capacity defined in terms of horsepower. In the NOPR, the Commission

proposed to revise former § 11.1 to

substitute kilowatts for horsepower in

stating a project’s authorized installed

capacity. This change was designed to

reflect modern usage in the rating of equipment used in hydropower projects. For the few licensed hydromechanical projects, all of which are quite small, the Commission would impute a kilowatt figure by multiplying these projects’ existing horsepower capacity

by three-fourths. All of the comments received on this proposal were in favor of it. Accordingly, for the reasons discussed

in the NOPR, this proposal has been

adopted in the final rule. E. The Determination of Authorized

Installed Capacity The NOPR explained that questions have occasionally arisen as to how to define ‘‘authorized installed capacity.’’ The Commission proposed to clarify the

concept of ‘‘authorized installed

capacity’’ by defining it in the proposed

new § 11.1(i). The authorized installed

capacity would be expressed in

kilowatts, and would be the lesser of the

capacity of the generator or the turbine. Thus, if the capacity of the generator exceeded the capacity of the turbine, then the capacity of the turbine would

apply, and vice-versa. The availability

of stream flow, however, would not be

considered.35 The capacity would be based on the

actual power of the equipment in

question without regard to whatever

‘‘nameplate’’ rating might be physically

affixed to the unit (although, with

respect to a new or unmodified unit, the

‘‘nameplate rating’’ may well coincide with the definition proposed herein). If

the generator or turbine are

subsequently modified, such as by

rewinding the generator, the capacity would be recalculated accordingly. This proposal drew a variety of comments. EEI, for instance, proposes convening a technical conference to discuss the matter.36 Central Maine suggests that the Commission ‘‘take into account actual performance limitations such as age, wear, and cavitation limits when

determining authorized capacity.’’37

Independent contends that turbine

and generator nameplate ratings may be

less than accurate as a determinant of actual capacity. Independent states that

turbine ratings vary according to gate or head, and that the total capacity of a multi-unit powerhouse may well be less

than the sum of the individual generator nameplate ratings because of the hydraulics of a multi-unit site.38 Washington Company and Westinghouse make the same points.39 Portland Co. would base the determination of capacity solely on the manufacturer’s nameplate rating, contending that this method ‘‘is simple, fair and predictable.’’ Portland Co. claims that the formula proposed in the NOPR is unreasonable because hydro

turbines have ‘‘a unique gate position

(water flow) vs. megawatt output efficiency curve’’ that has ‘‘established

upper and lower cavitation limits.’’ Use of the maximum head gate opening is unrealistic, because the turbine runner might be damaged at that point on the

curve. Portland Co. would use, instead,

‘‘the design upper cavitation limit as defined by the turbine manufacturer at

the rated head.’’ 40 PG&E advocates measuring capacity

in kilovolt-amperes (kVA), because manufacturers rate their generators’ capacity in kVA.41
15044 Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations

of generators is framed in part in kVA. It is then

converted to kilowatts for purposes of comparison with the capacity of the turbine. 42Westinghouse at 3. 43 18 U.S.C. 823a.

44 16 U.S.C. 2705 and 2708. 45Section 3401(a) of OBRA provides as follows: 46Holders of 5 MW and conduit exemptions would, however, be able to apply for exemption

from annual charges based on their municipal status. (a) In General.—(1) Except as provided in

paragraph (2) and beginning in fiscal year 1987 and

in each fiscal year thereafter, the Federal Energy Regulatory Commission shall, using the provisions of this subtitle and authority provided by other

laws, assess and collect fees and annual charges in

any fiscal year in amounts equal to all of the costs

incurred by the Commission in that fiscal year. (2) The provisions of this subtitle shall not affect

the authority, requirements, exceptions, or

limitations in sections 10(e) and 30(e) of the Federal Power Act. Whereas this provision makes clear that OBRA

does not authorize the collection of annual charges

from, e.g., municipal licensees who qualify for an

exemption under the terms of section 10(e) of the Federal Power Act, projects under exemptions from

licensing are not subject to section 10(e), and

therefore charging them under OBRA does not affect any provision of section 10(e). Section 30(e) of the Federal Power Act requires

the Commission to collect from exemption

applicants and certain license applicants, on behalf of the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and state fish and wildlife

agencies, these agencies’ project-specific costs under section 30(c) (establishment of mandatory

conditions with respect to fish and wildlife

resources). These agencies are required to subtract

from their section 10(e) claims the money they

recover under section 30(e). 5 MW and the conduit exemptions. 47As noted in the NOPR, the Commission does not impose a filing fee for applications for conduit exemptions.

48EEI at 17. 49Humboldt at 3–4. See also Westinghouse at 3–

4. 50Howard at 2. 51Water Assn. at 2. 52Ann Arbor at 1. 53 Desert at 1–2. See also Michiana. 54Columbus at 1. 55Falls Creek at 2.

Westinghouse points out that profitability hinges in significant measure on the price and other terms of a company’s power sales contracts, rather than on the raw capacity of the

company’s equipment. Therefore, Westinghouse suggests utilizing

financial data on operating income and

profitability in allocating annual charges. Westinghouse would also

adjust the annual charges to reflect the

extent to which poor management on

the part of the regulated entity increases

the level of the Commission staff’s

regulatory activities with respect to that entity.42 The most efficient use of the water

resource is at ‘‘best gate’’ rather than at

‘‘maximum gate.’’ Therefore, in

response to the comments, we have

substituted ‘‘best gate (maximum

efficiency point)’’ for ‘‘maximum head

gate’’ in the turbine portion of the definition in § 11.1(i). We will not, however, adjust the total capacity of the

turbines at a multi-unit powerhouse to

reflect the peculiar hydraulics of the

site. That is precisely the sort of potentially contentious complexity we

seek to avoid. We will also clarify the NOPR’s

reference to the generator’s ‘‘nameplate’’ rating. The rating on the generator’s nameplate at licensing will be deemed

to be the capacity of the generator unless the generator has been modified

or rewound subsequent to licensing

such that the nameplate no longer accurately describes the generator’s actual capacity. We are unwilling, however, to inject

into the calculation such subjective and

extraneous factors as the efficiency of

the licensee’s management or the profitability of the licensee’s operation. Moreover, our annual charge program is not predicated on collecting from

individual projects in proportion to

their responsibility for administrative

costs incurred. F. The Five Megawatt and Conduit Exemption Costs As explained in the NOPR, section 30

of the FP 43 provides that the Commission may exempt from the FPA’s licensing provisions any facility

(other than a dam, and within certain megawatt limits) which is constructed

or operated to generate electric power, if the facility is located on non-federal

land and ‘‘utilizes for such generation

only the hydroelectric potential of a

manmade conduit, which is operated for

the distribution of water for agricultural, municipal, or industrial consumption

and not primarily for the generation of electricity.’’ Sections 405 and 408 of the Public Utility Regulatory Policies Act of 1978

(PURPA), as amended by section 408 of

the Energy Security Act of 1980, 44 provide that the Commission may

exempt from the FPA’s licensing

requirements small hydroelectric power projects that are located at the site of an

existing dam (or utilize natural water

features without the need for a dam) and

that have a proposed installed capacity

of five megawatts (MW) or less. In the NOPR, the Commission

expressed its belief that it has the legal authority under OBRA to assess annual charges to exemptees,45 and proposed to do so with respect to both the 5 MW and

the conduit exemptions.46 Finally, pursuant to former § 381.601, the Commission imposed a filing fee for applications for a 5 MW exemption. As a part of its proposal to assess annual charges on 5 MW exemptees, the NOPR

proposed to delete § 381.601 from the

regulations.47 EEI supports the proposal in the NOPR for the same reasons that it supports inclusion of minor licensees in

the same pool with major licensees.48

Humboldt contends that OBRA does not confer any legal authority to assess annual charges independent of the

authority conferred by section 10(e) of

the FPA, which (as the NOPR noted) applies to licensees. Thus, Humboldt contends that the Commission lacks

legal authority to assess annual charges

to exemptees. Humboldt further contends that the

assessment of annual charges against exemptees violates the Congressional purpose and spirit of PURPA, which was to encourage certain small power projects by freeing them from regulatory

requirements and costs.49 Howard contends that ‘‘(l)umping

exempted and licensed projects into a

single administrative framework defeats

the spirit’’ of PURPA, ‘‘which put small projects with minimal environmental

impacts in a separate category to

facilitate their development and

operation.’’ 50 Water Assn. states that many of its exemptee members ‘‘are facing dramatic

reductions’’ in their revenues and ‘‘are

reevaluating the continued operation’’ of their projects. Water Assn. believes

that the imposition of annual charges

‘‘could easily tip the balance against continued operation.’’ 51 Ann Arbor states that it relied in part on the absence of charges when it redeveloped its two small (900 kW and

540 kW) exempted projects, and that the

assessment of annual charges might contribute to a decision to sell or decommission one or both projects.52 Desert also states that it relied, in part, on freedom from annual charges when

it decided to invest in its two small exempted conduit projects; the two projects are operated on a not-for-profit basis to reduce water rates.53 Columbus states that its exempted

project ‘‘was conceived to demonstrate

the feasibility of a municipality

operating a low head generator in Central Ohio at a water supply

reservoir.’’ 54 Falls Creek contends that, by virtue of

its exemption, the level of regulatory

services it receives is lower than those

received by licensees.55 Haemmig states that his 1.4 kW

project ‘‘only produces approximately

$20 per year revenue for us.’’ Adkins’ project is located in a national forest and is used solely to supply electricity
Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations 15045

56See, e.g., EEI at 17–18; Central Maine at 4; Consumers at 7–8; PG&E at 9. PG&E favors extending the period to 60 days. 57See section 17(b) of the FPA, 18 U.S.C. 810(b).

58Snohomish suggests that the Commission pay

interest on annual charges paid in protest that are

later refunded when the protest is upheld. Snohomish argues that this would be fair and

equitable in light of the penalties for late payment of the charges. Snohomish also suggests an escrow

arrangement. The short answer is that the penalties are mandated by the FPA, but the Commission has no statutory authority to pay interest. 59Pub. L. 102–486, 106 Stat. 2776–3133 (Oct. 24, 1992). 60Forest Service comments at 1.

to his ranch, whose alternate source of power is a diesel generator. Lassen

states that his 30 kW conduit exemption

project has a small positive cash flow

but a negative rate of return, and that

the $100 minimum charge proposed in

the NOPR would constitute three percent of his gross revenue. The Commission is persuaded by the

comments that it should not extend the

annual charges scheme to the existing

exemptees. We believe that the statutory

scheme by which the exemptions were

authorized was designed to induce the development of small projects, and that many of the existing exemptees

reasonably relied on freedom from

annual charges when they invested in

their projects. We also note that many

of the existing exemptees paid a

substantial filing fee at the time they

filed their applications for exemption. For all of these reasons, we will not extend the scope of the annual charges

scheme to encompass existing

exemptees. As discussed in the NOPR, the filing

fee for exemption applications generates very little revenue but is so substantial as to likely deter applicants from filing new applications. No comments were

received on the proposal to eliminate

that filing fee. For the reasons stated in

the NOPR, we will delete it from the

regulations. We will, however, include in the

annual charges allocation scheme all exemptees whose projects exceed 1.5 MW in authorized installed capacity

and whose exemptions are issued

subsequent to the effective date of this

final rule. Most of those exemptees will not have paid the application filing fee, and they will be on notice of the annual charges obligation at the time they

choose to accept the exemption and

invest in the exempted project. The

exemption will be conditioned on

knowing, voluntary acceptance of the obligation to participate in the annual charges scheme. We will exclude from

the annual charges all projects of 1.5 MW capacity or less for the same

reasons, explained above, that we

excluded all such projects that are

licensed instead of exempted. As a

transition matter, we will allow any

future exemptees who paid the

application filing fee prior to the

effective date of this final rule to credit

that fee against their annual charge

assessments to the full extent of the fee

that was paid. G. Other Revisions to Annual Charges Former § 11.1(d) stated that the minimum annual charge for projects

involving transmission lines was $5. The NOPR noted that the Commission’s

current practice is to state that charge in

the articles of the individual licenses, as appropriate. Therefore, the NOPR

proposed to conform the text of former § 11.1(d) (renumbered as proposed new

§ 11.1(e)) to that practice. No comments were received on this proposal, and the

change has been made. Former § 11.20 provided two separate deadlines for payment of bills for annual charges: 30 days for headwater benefits bills and 45 days for other annual charges bills. The NOPR

proposed to make all such bills payable upon 30 days of their rendition. Many commenters express strenuous objection to this proposed change,56 and

no commenter supports it. Some

commenters discuss their experience with the time elapsed during mail

transmissions between themselves and

the Commission. They also discuss the

time elapsed during mail transmissions within corporate or governmental entities; the added delays and

complexities of licensees who are

structured as corporate affiliates; and

the layers of authority whose prior approval is needed before issuing

checks for large sums of money. They discuss these matters in the context of

the five percent per month penalty for

late payment of the annual charges bill.57 Without endorsing any particular

reason advanced by the commenters, the Commission is persuaded by their collective response that the present 45- day period should be retained. Therefore, the Commission will conform

the divergent deadlines in § 11.20 by making both of them 45 days. The NOPR proposed a new § 11.20, which would provide for licensees to

file an appeal of the bill to the Commission’s Chief Financial Officer. All decisions of the Chief Financial Officer on appeals would be subject to

rehearing by the Commission pursuant

to § 385.713. This would essentially

codify the current informal practice. The NOPR noted that most billing disputes involve mathematical calculations that can be readily resolved

by discussion with the Commission’s

staff without the need for a formal request to the Commission for rehearing. The bill would still have to be paid within 45 days of its rendition in order

to avoid the assessment of penalty payments under § 11.21, but if a timely

appeal or request for rehearing were

filed the bill could be paid under protest

and subject to refund. This provision would codify the Commission’s current practice. No comments were received on

these proposals. They will be adopted, for the reasons stated in the NOPR. Former § 11.6(i) required that applications for exemptions from

payment of annual charges ‘‘shall be prepared on forms prescribed by the Commission * * *’’ Inasmuch as the Commission does not currently prescribe such forms, the NOPR

announced the Commission’s intention

to delete the reference to such forms. No

comments were received on this, and

the reference has been deleted. The NOPR also proposed to add a

sentence at the end of § 11.6(i) to clarify

that bills for annual charges can be paid

under protest and subject to refund in

the event that an application for an

exemption from payment is pending when the bill becomes payable. The NOPR explained that this provision would codify the Commission’s current practice. No comments were received on

this proposal, and we have adopted it, for the reasons stated in the NOPR.58 The Washington State Energy Office

and the U.S. Forest Service note that the NOPR did not propose new regulations

to implement section 1701(a) of the Energy Policy Act of 1992.59 That

legislation involves recovery through

annual charges of certain costs incurred

by federal and state fish and wildlife

agencies and other natural and cultural resource agencies in connection with

studies they perform pursuant to Part I of the FPA. They urge us to propose new regulations to implement section

1701(a). Citing section 504(g) of the Federal Land Policy Management Act, the Forest Service also argues that ‘‘any

land use fees charged by the Commission for hydropower projects

should be based on the fair market value of these lands for hydropower purposes.’’ 60 None of these matters was addressed

in the NOPR, and they fall beyond the

scope of this rulemaking proceeding. Accordingly, they will not be discussed

or resolved in this final rule.
15046 Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations

61Noah Corp. (at 2) contends that the phased-in

transition provisions are unnecessary and would

further complicate the changes.

62APPA at 17; No. Cal. Power at 4; Okla. Authority; Public Pool at 8–9; Westinghouse at 4–

5. 63We are, however, adopting a minor transition

provision with respect to the change from

horsepower to kilowatts, discussed above. 64 5 U.S.C. 601–612. 65Section 601(c) of the RFA defines a ‘‘small entity’’ as a small business, a small not-for-profit enterprise, or a small governmental jurisdiction. A

‘‘small business’’ is defined by reference to section

3 of the Small Business Act as an enterprise which

is ‘‘independently owned and operated and which

is not dominant in its field of operation.’’ 15 U.S.C. 632(a). 66We note that the regulations previously in

effect, as discussed above, treated as ‘‘minor’’ for annual charge purposes only those projects whose

capacity did not exceed 2,000 horsepower, which

equates to 1.5 megawatts, not 80 megawatts. 67Water Assn. at 3–4.

68Conn. Producers; Desert. 69See Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. (Regulations Preambles 1986–1990) ¶ 30,783 (Dec. 10, 1987) (codified at 18 CFR part 380). 70See 18 CFR 380.4(a)(1). Water Assn. (at 4) contends that we should prepare an environmental

impact statement because, in its view, the proposed

revision of the annual charges allocation will result

in some projects ceasing to operate, thereby

increasing the burning of fossil fuels, thereby

increasing air pollution. Putting aside the procedural nature of the regulatory revisions, Water Assn.’s assertions are purely speculative, relying on

a tenuous series of causal connections and a minute percentage of total hydroelectric generation. Moreover, as discussed above, in response to the

comments received we have significantly modified

the proposal to relieve the potential burden on all existing exemptees and all minor licensees.

H. Separate Classes of Licensees; Capacity or Generation Many commenters expressed their views on the choice between Alternatives A and B in the NOPR, i.e., whether to maintain separate pools of costs attributable to municipal and non- municipal licensees or to combine them

into a single common pool of costs for allocation among all licensees regardless of class. The non-municipal licensees prefer to establish a combined pool, while the municipal licensees prefer to maintain separate pools. The NOPR also

considered what formula to use to

allocate costs among the licensees. Within Alternative A, the NOPR

discussed several potential variations: (1) Base the allocation formula entirely

on authorized installed capacity; (2) base the formula entirely on generation; or (3) base it on a combination of capacity and generation. Within Alternative B, the NOPR retained the

existing formulae (as described above) whereby the allocation of costs for municipal licensees is based entirely on

capacity while the allocation for non- municipal licensees is based on a

combination of both capacity and

generation. Many commenters addressed this

issue. The comments diverged widely, cutting across municipal and non- municipal lines. Some commenters preferred capacity, some preferred

generation, and some preferred a

combination. The Commission has decided to defer consideration of these issues to a future proceeding. Because the Commission

has not reached any decision on whether to revise these aspects of the

current regulations, and if so, how, the

final rule retains the separate pools of costs for municipal and non-municipal

licensees, and retains the distinctions in

the present formulae with respect to use of capacity and generation in the

respective allocations.

I. Transition Arrangements

In the NOPR, the Commission

proposed a three-year transition period

for phasing in the changes described in

the ‘‘Alternative A’’ regulatory text. Many commenters supported use of a

transition period in the event that the Commission adopted significant changes in the annual charges formulae. One commenter opposed having a

transition period.61 Several commenters

suggested extending the transition

period to five years, or even to ten

years.62 As discussed above, the transition

period in the NOPR was proposed to

alleviate the dislocations attributable to

adoption of the Alternative A formula. The proposed regulatory text for Alternative B did not include a

transition period. Our decision to defer consideration of the allocation formulae

renders the proposed transition period moot, and it will not be adopted. Thus, the maximum charge, the exclusion of minor licensees, and the

commencement of assessments only

after commencement of construction will all become effective immediately.63 V. Regulatory Flexibility Certification The Regulatory Flexibility Act of 1980

(RFA)64 generally requires a description

and analysis of proposed regulations

that will have a significant economic

impact on a substantial number of small entities.65 In the NOPR, we certified that

the proposed regulations would not have a significant economic impact on

a substantial number of small entities. The U.S. Small Business Administration, in its comments, asserts

that there are approximately 900

licensees and exemptees whose projects have a rated capacity of less than 80 megawatts, and that section 3(17)(A) of

the FPA uses that standard to define a

‘‘small power production facility.’’ 66 The Association of California Water Agencies (Water Assn.) contends that

‘‘[a]dditional FERC fees for hydroelectric licenses will be a major

impact on already strained local water agency budgets, and will additionally

compromise the ability of the water agencies to meet their mandate of providing essential services of adequate water at reasonable costs.’’ 67 Therefore, the Small Business Administration and

the Water Assn. urge the Commission to perform a regulatory flexibility analysis.

Several other exemptees also raised this

issue. 68 As discussed above, the Commission

received numerous comments from

exemptees and minor licensees urging us to provide a measure of relief from

the proposed new regulations. In

response to these comments, the Commission has decided not to impose

annual charges on either licensees or exemptees whose projects have a

capacity of 1.5 MW or less. This encompasses all of the minor licensees and all of the exemptees of comparable

size. We have also excluded all of the

existing exemptees regardless of size. Accordingly, pursuant to section 605(b) of the RFA, the Commission hereby

certifies that the final rule adopted

herein will not have a significant economic impact on a substantial number of small entities. VI. Environmental Statement

Issuance of this final rule does not constitute a major federal action having

a significant adverse impact on the quality of the human environment under the Commission’s regulations

implementing the National Environmental Policy Act.69 The final rule adopted herein is procedural in

nature and therefore falls within the

categorical exemptions provided in the Commission’s regulations. Consequently, neither an environmental

impact statement nor an environmental assessment is required.70 VII. Information Collection Statement The Office of Management and Budget’s (OMB) regulations at 5 CFR

part 1320 require that OMB approve

certain information and recordkeeping

requirements imposed by an agency. The information collection requirements pertinent to the existing regulations that are retained by this final rule are

contained in FERC–583 ‘‘Annual Kilowatt Generating Report (Annual Charges)’’ (1902–0136). The Commission’s Financial Services
Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations 15047 Division uses the data for determination

of the amount of annual charges to be

assessed licensees for reimbursable

government administrative costs. The Commission will submit to the OMB a notification that these collections of

information have been modified. Interested persons may obtain

information on these reporting

requirements by contacting the Federal Energy Regulatory Commission, 941 North Capitol Street NE., Washington, DC 20426 (Attention: Michael Miller, Information Services Division, (202) 208–1415). Comments on the

requirements of this rule can be sent to

the Office of Information and Regulatory Affairs of OMB (Attention: Desk Officer

for Federal Energy Regulatory Commission). VIII. Effective Date This final rule is effective April 21, 1995. List of Subjects 18 CFR Part 11 Electric power, Reporting and

recordkeeping requirements. 18 CFR Part 381 Electric power plants, Electric utilities, Natural gas, Reporting and

recordkeeping requirements. Lois D. Cashell, Secretary.

In consideration of the foregoing, the Commission amends parts 11 and 381 of chapter I, title 18, Code of Federal Regulations, as set forth below. PART 11—ANNUAL CHARGES UNDER

PART I OF THE FEDERAL POWER ACT

1. The authority citation for part 11

continues to read as follows: Authority: 16 U.S.C. 791a–825r; 42 U.S.C. 7101–7352. 2. Section 11.1 is revised to read as

follows: § 11.1 Costs of administration. (a) Authority. Pursuant to section

10(e) of the Federal Power Act and

section 3401 of the Omnibus Budget Reconciliation Act of 1986, the Commission will assess reasonable

annual charges against licensees and

exemptees to reimburse the United

States for the costs of administration of

the Commission’s hydropower

regulatory program. (b) Scope. The annual charges under

this section will be charged to and

allocated among: (1) All licensees of projects of more

than 1.5 megawatts of installed capacity; and

(2) All holders of exemptions under either section 30 of the Federal Power Act or sections 405 and 408 of the Public Utility Regulatory Policies Act of 1978, as amended by section 408 of the Energy Security Act of 1980, but only if

the exemption was issued subsequent to April 21, 1995 and is for a project of more than 1.5 megawatts of installed

capacity. (3) If the exemption for a project of more than 1.5 megawatts of installed

capacity was issued subsequent to April 21, 1995 but pursuant to an application

filed prior to that date, the exemptee may credit against its annual charge any

filing fee paid pursuant to § 381.601 of

this chapter, which was removed

effective April 21, 1995, 18 CFR 381.601

(1994), until the total of all such credits equals the filing fee that was paid. (c) Licenses and exemptions other

than State or municipal. For licensees and exemptees, other than State or municipal: (1) A determination shall be made for each fiscal year of the costs of administration of Part I of the Federal Power Act chargeable to such licensees or exemptees, from which shall be deducted any administrative costs that are stated in the license or exemption or

fixed by the Commission in determining headwater benefit payments. (2) For each fiscal year the costs of administration determined under paragraph (c)(1) of this section will be

assessed against such licenses or exemptee in the proportion that the

annual charge factor for each such

project bears to the total of the annual charge factors under all such

outstanding licenses and exemptions. (3) The annual charge factor for each

such project shall be found as follows: (i) For a conventional project the

factor is its authorized installed capacity plus 150 times its annual energy output

in millions of kilowatt-hours. (ii) For a pure pumped storage project

the factor is its authorized installed

capacity. (iii) For a mixed conventional- pumped storage project the factor is its authorized installed capacity plus 150

times its gross annual energy output in millions of kilowatt-hours less 100

times the annual energy used for pumped storage pumping in million of kilowatt-hours. (iv) For purposes of determining their annual charges factor, projects that are operated pursuant to an exemption will be deemed to have an annual energy

output of zero. (4) To enable the Commission to determine such charges annually, each

licensee whose authorized installed

capacity exceeds 1.5 megawatts must

file with the Commission, on or before November 1 of each year, a statement under oath showing the gross amount of power generated (or produced by nonelectrical equipment) and the

amount of power used for pumped

storage pumping by the project during

the preceding fiscal year, expressed in

kilowatt hours. If any licensee does not report the gross energy output of its project within the time specified above, the Commission’s staff will estimate the

energy output and this estimate may be used in lieu of the filings required by

this section made by such licensee after November 1. (5) For unconstructed projects, the

assessments start on the date of commencement of project construction. For constructed projects, the

assessments start on the effective date of

the license or exemption, except for any new capacity authorized therein. The

assessments for new authorized capacity

start on the date of commencement of construction of such new capacity. In

the event that construction commences during a fiscal year, the charges will be prorated based on the date on which

construction commenced. (d) State and municipal licensees and

exemptees. For State or municipal

licensees and exemptees: (1) A determination shall be made for each fiscal year of the cost of administration under Part I of the Federal Power Act chargeable to such

licensees and exemptees, from which

shall be deducted any administrative

costs that are stated in the license or exemption or that are fixed by the Commission in determining headwater benefit payments. (2) An exemption will be granted to

a licensee or exemptee to the extent, if any, to which it may be entitled under section 10(e) of the Act provided the data is submitted as requested in

paragraphs (d) (4) and (5) of this section. (3) For each fiscal year the total actual cost of administration as determined

under paragraph (d)(1) of this section will be assessed against each such

licensee or exemptee (except to the

extent of the exemptions granted

pursuant to paragraph (d)(2) of this

section) in the proportion that the

authorized installed capacity of each

such project bears to the total such

capacity under all such outstanding

licenses or exemptions. (4) To enable the Commission to

compute on the bill for annual charges

the exemption to which State and municipal licensees and exemptees are

entitled because of the use of power by

the licensee or exemptee for State or municipal purposes, each such licensee or exemptee must file with the
15048 Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations Commission, on or before November 1

of each year, a statement under oath

showing the following information with

respect to the power generated by the project and the disposition thereof during the preceding fiscal year, expressed in kilowatt-hours: (i) Gross amount of power generated

by the project. (ii) Amount of power used for station

purposes and lost in transmission, etc. (iii) Net amount of power available for sale or use by licensee or exemptee, classified as follows: (A) Used by licensee or exemptee. (B) Sold by licensee or exemptee. (5) When the power from a licensed

or exempted project owned by a State or municipality enters into its electric

system, making it impracticable to meet

the requirements of this section with

respect to the disposition of project power, such licensee or exemptee may, in lieu thereof, furnish similar

information with respect to the disposition of the available power of the

entire electric system of the licensee or exemptee. (6) The assessments commence on the date of commencement of project operation. In the event that project operation commences during a fiscal year, the charges will be prorated based

on the date on which operation

commenced. (e) Transmission lines. For projects

involving transmission lines only, the

administrative charge will be stated in

the license. (f) Maximum charge. No licensed or exempted project’s annual charge may

exceed a maximum charge established

each year by the Commission to equal 2.0 percent of the adjusted Commission

costs of administration of the hydropower regulatory program. For every project with an annual charge determined to be above the maximum

charge, that project’s annual charge will be set at the maximum charge, and any

amount above the maximum charge will be reapportioned to the remaining projects. The reapportionment will be

computed using the method outlined in

paragraphs (c) and (d) of this section

(but excluding any project whose

annual charge is already set at the maximum amount). This procedure will be repeated until no project’s annual charge exceeds the maximum charge. (g) Commission’s costs. (1) With

respect to costs incurred by the Commission, the assessment of annual charges will be based on an estimate of

the costs of administration of Part I of

the Federal Power Act that will be

incurred during the fiscal year in which

the annual charges are assessed. After

the end of the fiscal year, the assessment

will be recalculated based on the costs of administration that were actually

incurred during that fiscal year; the

actual costs will be compared to the

estimated costs; and the difference between the actual and estimated costs will be carried over as an adjustment to

the assessment for the subsequent fiscal year. (2) The issuance of bills based on the

administrative costs incurred by the Commission during the year in which

the bill is issued will commence in

1993. The annual charge for the

administrative costs that were incurred

in fiscal year 1992 will be billed in

1994. At the licensee’s option, the

charge may be paid in three equal annual installments in fiscal years 1994, 1995, and 1996, plus any accrued

interest. If the licensee elects the three- year installment plan, the Commission will accrue interest (at the most recent yield of two-year Treasury securities) on

the unpaid charges and add the accrued

interest to the installments billed in

fiscal years 1995 and 1996. (h) In making their annual reports to

the Commission on their costs in

administering Part I of the Federal Power Act, the United States Fish and Wildlife Service and the National Marine Fisheries Service are to deduct any amounts that were deposited into

their Treasury accounts during that year as reimbursements for conducting

studies and reviews pursuant to section

30(e) of the Federal Power Act. (i) Definition. As used in paragraph (c) of this section, authorized installed

capacity means the lesser of the ratings of the generator or turbine units. The

rating of a generator is the product of

the continuous-load capacity rating of

the generator in kilovolt-amperes (kVA) and the system power factor in kW/ kVA. If the licensee or exemptee does not know its power factor, a factor of 1.0

kW/kVA will be used. The rating of a

turbine is the product of the turbine’s capacity in horsepower (hp) at best gate

(maximum efficiency point) opening under the manufacturer’s rated head

times a conversion factor of 0.75 kW/hp. If the generator or turbine installed has a rating different from that authorized in

the license or exemption, or the

installed generator is rewound or otherwise modified to change its rating, or the turbine is modified to change its

rating, the licensee or exemptee must apply to the Commission to amend its authorized installed capacity to reflect

the change. (j) Transition. For a license having the

capacity of the project for annual charge purposes stated in horsepower, that capacity shall be deemed to be the

capacity stated in kilowatts elsewhere in

the license, including any amendments

thereto. 3. In § 11.6, the heading, the

introductory text of paragraph (a), and

paragraph (i), are revised, and the cross- reference at the end of the section is

removed, to read as follows: § 11.6 Exemption of State and municipal

licensees and exemptees. (a) Bases for exemption. A State or municipal licensee or exemptee may

claim total or partial exemption from

the assessment of annual charges upon

one or more of the following grounds: * * * * *

(i) Application for exemption. Applications for exemption from

payment of annual charges shall be

signed by an authorized executive officer or chief accounting officer of the

licensee or exemptee and verified under oath. An original and three copies of such application shall be filed with the Commission within the time allowed

(by § 11.28) for the payment of the

annual charges. If the licensee or exemptee, within the time allowed for

the payment of the annual charges, files notice that it intends to file an

application for exemption, an additional period of 30 days is allowed within which to complete and file the

application for exemption. The filing of an application for exemption does not by itself alleviate the requirement to pay

the annual charges, nor does it exonerate the licensee or exemptee from

the assessment of penalties under § 11.21. If a bill for annual charges becomes payable after an application for an exemption has been filed and while

the application is still pending for decision, the bill may be paid under protest and subject to refund. 4. Section 11.20 is revised to read as

follows: § 11.20 Time for payment. Annual charges must be paid no later

than 45 days after rendition of a bill by

the Commission. If the licensee or exemptee believes that the bill is

incorrect, no later than 45 days after its

rendition the licensee or exemptee may

file an appeal of the bill with the Chief Financial Officer. No later than 30 days after the date of issuance of the Chief Financial Officer’s decision on the

appeal, the licensee or exemptee may

file a request for rehearing of that decision pursuant to § 385.713 of this chapter. In the event that a timely

appeal to the Chief Financial Officer or a timely request to the Commission for

rehearing is filed, the payment of the bill may be made under protest, and

subject to refund pending the outcome of the appeal or rehearing.
Federal Register / Vol. 60, No. 55 / Wednesday, March 22, 1995 / Rules and Regulations 15049

PART 381—FEES

5. The authority citation for Part 381

is revised to read as follows: Authority: 15 U.S.C. 717–717w; 16 U.S.C. 791–828c, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352; 49 U.S.C. 60502; 49 App. U.S.C. 1–85. 6. Section 381.601 is removed and

subpart F is reserved. Appendix A

(Note: This Appendix will not be published in the Code of Federal Regulations.) Commenters Adirondack Hydro Development Corp. (Adirondack) Adrian Haemmig (Haemmig) Alabama Power Company (Alabama Power) Alaskan Utilities (Alaskan) Allegheny Power System (Allegheny) American Public Power Association (APPA) Association of California Water Agencies

(Water Assn.) Calaveras County Water District (Calaveras) California Department of Water Resources

(Cal. Water) Calleguas Municipal Water District

(Calleguas) Central Maine Power (Central Maine) City of Ann Arbor, Michigan (Ann Arbor) City of Spokane, Washington (Spokane) City of Tallahassee, Florida (Tallahassee) Columbus Department of Public Utilities

(Columbus) Connecticut Small Power Producers Association (Conn. Producers) Consolidated Pumped Storage, Inc. (Consolidated) Consumers Power Company (Consumers Power) Desert Water Agency (Desert) Duke Power Company (Duke) Eagle Mountain Energy (Eagle) Edison Electric Institute (EEI) Energy Storage Partners (Storage Partners) Fairfax County Water Authority (Fairfax) Falls Creek H.P. Friant Power Authority (Friant) Georgia Power Company (Georgia) Great Bear Hydropower, Inc. (Bear) Humboldt Bay Municipal Water District, Kaweah River Power Authority, and Nevada Irrigation District (Humboldt) Hydro Energy Storage Council (Storage Council)

Idaho Power Company (Idaho Power)

Independent Hydro Developers, Inc. (Independent)

James B. Adkins (Adkins)

James C. Katsekas (Katsekas)

John E. Howard (Howard) Kvaerner Energy Development and Halecrest Company (Kvaerner) Lassen Research (Lassen) McCallum Enterprises Limited Partnership

(McCallum) Michiana Hydroelectric Company (Michiana) Montecito Water District (Montecito) National Hydro Noah Corp. North American Hydro, Inc. (North American)

Northern California Power Agency and the City of Santa Clara, California (No. Cal. Power) Ogden Environmental and Energy Services

(Ogden) Oklahoma Municipal Power Authority (Okl. Authority) Otter Tail Power Company (Otter Tail) Pacific Gas and Electric Company (PG&E) Pennsylvania Power & Light Company

(Pennsylvania Power) Portland General Electric Company (Portland Co.) Potlatch Corporation (Potlatch) Power Authority of the State of New York

(PASNY) Public Generating Pool (Public Pool) Public Utility District No. 1 of Chelan County, Washington (Chelan) Public Utility District No. 1 of Douglas County, Washington (Douglas) Public Utility District No. 2 of Grant County, Washington (Grant) Richard G. Mackowiak (Mackowiak) Sabine River Authority of Texas and Sabine River Authority, State of Louisiana

(Sabine) Sacramento Municipal Utility District

(SMUD) Seattle City Light (Seattle Light) Snohomish County, Washington, Public Utility District No. 1 (Snohomish) South Carolina Electric & Gas Company

(Carolina Electric) Summit Hydropower (Summit) Susquehanna Power Company and Peco Energy Power Company (Susquehanna) Synergics Energy Development, Inc. (Synergics) Tacoma Public Utilities (Tacoma) U.S. Forest Service U.S. Small Business Administration Virginia Electric and Power Company

(Virginia Electric) Washington State Energy Office (Washington Office) Washington Water Power Company

(Washington Company) Westinghouse Electric Company

(Westinghouse) Zoes J. Dimos (Dimos)

[FR Doc. 95–6979 Filed 3–21–95; 8:45 am] BILLING CODE 6717–01–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 100

[CGD01–95–016] Special Local Regulations: The Great Kennebec River Whatever Race, Augusta, ME AGENCY: Coast Guard, DOT. ACTION: Notice of implementation. SUMMARY: This notice puts into effect

the permanent regulations, 33 CFR

100.108, for the Great Kennebec River Whatever Race. The regulation will be

effective Sunday, July 2, 1995 from 6

a.m. until 6 p.m. This regulation is necessary to control vessel traffic due to

the confined nature of the waterway and

anticipated congestion at the time of the

event. The purpose of this regulation is

to provide for the safety of life and

property during the event. EFFECTIVE DATE: The regulations in 33 CFR 100.108 are effective from 6 a.m. to

6 p.m. on Sunday, July 2, 1995. FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) B.M. Algeo, Chief, Boating Affairs Branch, First Coast Guard District, (617) 223–8311. Drafting Information: The principal persons involved in drafting this document are LTJG B.M. Algeo, Project Manager, First Coast Guard District Boating Safety Division, and LCDR S.R. Watkins, Project Attorney, First Coast Guard District Legal Office. SUPPLEMENTARY INFORMATION: This notice provides the effective period for

the permanent regulation governing the 1995 running of the Great Kennebec River Whatever Race, Maine. A portion

of the Kennebec River will be closed

during the effective period to all vessel

traffic except participants, official regatta vessels, and patrol craft. The

regulated area is that portion of the Kennebec River, extending bank to

bank, between the Maine Route 126

bridge to the U.S. Route 201–202 bridge. Additional public notification will be made via the First Coast Guard District Local Notice to Mariners and marine

safety broadcasts. The full text of this

regulation is found in 33 CFR 100.108. Dated: March 8, 1995. J.L. Linnon, Rear Admiral, Coast Guard, Commander, First Coast Guard District. [FR Doc. 95–6954 Filed 3–21–95; 8:45 am] BILLING CODE 4910–14–M

33 CFR Parts 100 and 165

[CGD 95–025] Safety Zones, Security Zones, and Special Local Regulations AGENCY: Coast Guard, DOT. ACTION: Notice of temporary rules

issued. SUMMARY: This document provides

required notice of substantive rules adopted by the Coast Guard and

temporarily effective between October 1, 1994 and December 31, 1994, which were not published in the Federal Register. This quarterly notice lists

temporary local regulations, security

zones, and safety zones, which were of

limited duration and for which timely publication in the Federal Register was not possible.