[Federal Register Volume 65, Number 240 (Wednesday, December 13, 2000)]
[Notices]
[Pages 77889-77898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31758]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket Number 001206343-0343-01 and I.D. 120400E]


Solicitation of Public Comments on a Proposed Policy for Review 
of Mandatory Conditions Developed by the Departments of the Interior 
and Commerce in the Context of Hydropower Licensing

AGENCIES: Office of the Secretary, Interior; National Oceanic and 
Atmospheric Administration (NOAA), National Marine Fisheries Service 
(NMFS), Commerce.

[[Page 77890]]


ACTION: Notice of solicitation of public comments on proposed agency 
policy.

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SUMMARY: The Department of the Interior and the Department of Commerce 
(Departments) are proposing a new process for public review of and 
comment on mandatory conditions and prescriptions the Departments 
develop as part of the Federal Energy Regulatory Commission's 
(Commission's) hydropower licensing proceedings under part I of the 
Federal Power Act (Act). This policy would offer an opportunity for 
public comment on the Departments' mandatory conditions and 
prescriptions for both the traditional licensing process and the 
alternative licensing process.

DATES: Submit written comments on the proposed policy to be received by 
the Departments on or before January 3, 2001.

ADDRESSES: Submit written comments to Kathryn Conant, National Marine 
Fisheries Service, Office of Habitat Conservation, 1315 East West 
Highway, Building 3, Room 15206, Silver Spring, Maryland 20910 or fax: 
301-713-1043.

FOR FURTHER INFORMATION CONTACT: Tom Iseman, U.S. Department of the 
Interior, 202-208-6291, or Kathryn Conant, U.S. Department of Commerce, 
301-713-2325, extension 205.

SUPPLEMENTARY INFORMATION:

I. Background

    Pursuant to Part I of the Federal Power Act, 16 U.S.C. 791a et seq. 
(Act), the Department of the Interior and the Department of Commerce 
(Departments) possess certain authorities in the process for licensing 
non-federal hydroelectric generating facilities. Although the final 
licensing decision lies with the Federal Energy Regulatory Commission 
(Commission), the Departments, and Bureaus within the Department of the 
Interior, provide input to the Commission on a number of issues related 
to the license application. Among others, the Departments' authorities 
include the U.S. Fish and Wildlife Service's and National Marine 
Fisheries Service's authority to prescribe fishways under section 18 of 
the Act, 16 U.S.C. 811, and the Secretary of the Interior's authority 
under section 4(e) of the Act, 16 U.S.C. 797(e), to establish 
conditions ``necessary for the adequate protection and utilization'' of 
land ``reservations'' that may contain non-federal hydropower project 
works. The affected reservations may include lands managed principally 
by the U.S. Fish and Wildlife Service, the National Park Service, the 
Bureau of Land Management, the Bureau of Reclamation, or the Bureau of 
Indian Affairs.
    The Act requires that both section 18 prescriptions and section 
4(e) conditions be included in any license issued by the Commission. 
The mandatory nature of these prescriptions and conditions has been 
upheld by Federal courts, including the Supreme Court. Escondido Mutual 
Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984); 
Bangor Hydroelectric Company v. FERC, 78 F.3d 659 (DC Cir.1996); 
American Rivers v. FERC, 129 F.3d 99 (2d Cir. 1997); American Rivers v. 
FERC, 201 F.3d 1186 (9th Cir. 1999). After incorporation into a 
license, the prescriptions and conditions are subject to judicial 
review under the Act's appeal procedures, which place exclusive 
jurisdiction in the Federal courts of appeals, 16 U.S.C. 8251(b).
    The Departments' practice has been to try to work closely with 
license applicants in developing mandatory conditions and 
prescriptions. However, licensees and others have expressed interest in 
having the Departments consider outside input and comments on these 
conditions and prescriptions through a standardized process. Such a 
standardized mechanism would provide an opportunity for interested 
parties to provide comment on the conditions and prescriptions. On May 
26, 2000, the Departments published a Federal Register notice 
soliciting public comments on the possibility of the Departments' 
establishing a review process for their mandatory conditions and 
prescriptions, and asking six specific questions regarding such a 
possible review process. (65 FR 34151, May 26, 2000).
    The Departments received 25 sets of comments representing a broad 
range of parties interested in hydropower licensing. All the commenters 
supported the idea of establishing a review process, and they expressed 
a broad range of views regarding the potential timing and substance of 
the process. After careful review and consideration of the comments 
received and the constraints of the existing hydropower licensing 
process the Departments are proposing to provide a two part process for 
review of mandatory conditions and prescriptions under the traditional 
licensing process of the Act and the Commission's regulations. In 
addition, the Departments are proposing a more limited process for 
review of conditions and prescriptions developed through the 
Commission's alternative licensing process.
    The review process proposed today will be limited to section 4(e) 
and 18 conditions and prescriptions. The recommendations filed by the 
Departments under sections 10(a) and 10(j) of the Act are subject to 
further review by the Commission and may be addressed under existing 
Commission procedures. In all cases, the review of conditions and 
prescriptions would occur at an appropriate level within the relevant 
agency.
    This process would be adopted as an agency policy to be become 
effective six months after adoption, in order to provide time for field 
implementation.
    The proposed review procedures are briefly summarized below. 
(Please refer to the detailed description of the policy for more 
specific information.)

A. Review Process--Traditional Licensing

    The Departments are proposing a two-part process for review of 
license conditions and prescriptions in the traditional licensing 
process. This process would provide participating parties an 
opportunity both before and after license issuance to comment on 
conditions and prescriptions.
    First, the Departments propose to consider comments through the 
Commission's traditional hydropower licensing process, prior to 
issuance of the license. In most situations, the Departments file 
preliminary conditions and prescriptions in response to the 
Commission's Ready for Environmental Analysis (REA) notice. Under this 
process, parties will have the opportunity to comment on the 
preliminary conditions and prescriptions to the appropriate Departments 
within a 45-day time period. In most cases, this will be concurrent 
with the Commission's allowed time to reply to REA submissions. 
Although the Departments intend for this 45-day response period to be 
the primary mechanism for receiving comments from participants in the 
licensing process, they will also seek comments in response to the 
Commission's draft National Environmental Policy Act (NEPA) document, 
to ensure that the public at-large has the opportunity to participate 
in the review process. The Departments will consider information 
developed through the draft NEPA document and all comments on the 
conditions and prescriptions, and then issue modified conditions and 
prescriptions to the Commission for inclusion in its final NEPA 
document.
    In addition, the Departments propose to consider any issues raised 
regarding the Departments' conditions and

[[Page 77891]]

prescriptions, submitted through the Commission's request for rehearing 
process after license issuance. If an intervener \1\ submits a request 
for rehearing, pursuant to 18 CFR 385.713, that clearly addresses the 
Departments' conditions and prescriptions, the Departments will review 
those comments. The Departments will submit a written response to 
issues raised regarding its mandatory conditions and prescriptions, 
including any necessary changes to the conditions and prescriptions, 
within 30 days if possible. In those infrequent situations when more 
than 30 days is required for response because of substantive and new 
information or other unexpected circumstances, the Departments will, 
within 30 days, submit a description of the reason for additional 
review and a reasonable time line for the written response.
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    \1\ The request for rehearing is available only to interveners, 
as described by FERC regulations.
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B. Review Process--Alternative Licensing Procedure.

    The Commission's alternative licensing procedure raises unique 
concerns regarding the adoption of a review process for the 
Departments' mandatory conditions and prescriptions, particularly when 
parties negotiate delicately balanced license terms in a settlement 
agreement. If the Departments submit conditions and prescriptions that 
are not included in a settlement agreement, the Departments propose to 
apply to that proceeding the review process described above for the 
traditional licensing process.
    If the Departments submit conditions and prescriptions that are 
included in the settlement agreement, then the Departments propose to 
apply a modified version of the review process described above. The 
Departments will review specific comments on conditions and 
prescriptions in response to the Commission-issued notice calling for 
comment on the settlement agreement and/or license application pursuant 
to 18 CFR 4.34(b). If comments raise substantive issues that may 
require amendment of the negotiated agreement, the Departments will 
discuss appropriate resolution with the settling parties. After 
conferring with the settling parties, the Departments will respond to 
the comments. The Departments will include any changes or adjustments 
made to the agreed-upon conditions and prescriptions as a result of the 
comments received and collaboration with the settling parties when the 
conditions and prescriptions are formally submitted to the Commission.

II. Response to Comments

    In response to the Federal Register notice (May 26, 2000), the 
Departments received comments from a variety of stakeholders who 
participate in hydropower licensing, including: the Commission; the 
United States Department of Agriculture, Forest Service; National 
Hydropower Association; Western Urban Water Coalition; the 
Hydroelectric Licensing Reform Task Force; Alcoa Power Generating, 
Inc.; Duke Power; the American Public Power Association; Pacific Gas 
and Electric Company; Alabama Power Company; Public Utility District 
No. 1 Chelan County; Public Utility District No. 1 of Douglas District 
and Public Utility District of Grant County; Idaho Power; Petersburg 
Municipal Power & Light; Orion Power of New York; Southern California 
Edison; New York Power Authority; Senator Coppola of the State of New 
York; Edison Electric Institute; Allegheny Energy Supply; Northwestern 
University; Kleinschmidt Associates Consulting Engineers; Trout 
Unlimited; American Rivers; New York Rivers United; and Defenders of 
Wildlife.
    By their Federal Register notice, the Departments sought public 
comment on six questions. After consideration of all of the comments 
received, and giving consideration to the issues raised as discussed in 
the preamble, these specific questions are answered in Section I--
Response to Specific Questions. Some commenters raised issues not 
directly related to the specific questions. These general issues, and 
expansion of some issues raised in the specific questions, are 
addressed in Section II--Response to General Issues.

A. Section I--Response to Specific Questions

    Question 1. Should a review process be adopted and, if so, what 
kind of process should be established?
    Answer. The Departments agree with the unanimous comments received 
that a review process should be adopted. Through this notice, the 
Departments are proposing to establish a Mandatory Conditions Review 
Process (MCRP). Commenters provided a wide range of options regarding 
the kind of process--from a process that includes an appeal component 
to a process that includes full evidentiary hearings with 
administrative law judges \2\ to a process that involves some form for 
notice and comment upon preliminary conditions and prescriptions.\3\ 
All options suggested by commenters were considered by the Departments 
in the development of this procedure.
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    \2\ Alabama Power Company; American Public Power Association; 
the Hydropower Licensing Reform Task Force; Southern California 
Electric; Public Utility Districts of Chelan, Douglas and Grant 
Counties; National Hydropower Association; Idaho Power Company; Duke 
Energy; Orion Power of NY; and Edison Electric Institute.
    \3\ Senator Coppola; Federal Energy Regulatory Commission; 
Defenders of Wildlife; New York Rivers United; Alcoa Power 
Generating Inc.; Trout Unlimited; American Rivers.
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    Question 2. If so, how could such a process be integrated into the 
Commission's current licensing procedures in a timely and efficient 
manner? To meet the constraints of timeliness and resource limitations, 
are changes needed in the timing or implementation of various steps in 
the agencies'--including the Commission's--existing regulations or 
procedures? If not, then when should the review process take place?
    Answer. Most commenters suggested that any review process designed 
by the Departments should not impede or delay the Commission's 
licensing process.\4\ The Departments agree. In designing the proposed 
MCRP, the Departments gave predominant consideration to establishing a 
seamless process which would provide the desired opportunities for 
meaningful review, without undermining, impeding or delaying the 
Commission's licensing process in any fundamental way. The Departments' 
proposed MCRP, in fact, employs the Commission's existing licensing 
process and requires only minor adjustments. If the Departments foresee 
that review of comments may require more time than is allotted in the 
Commission's licensing process, the Departments propose submitting 
target letters to the Commission, with schedules for completion of 
review of public comments and modification of conditions and 
prescriptions. The Departments anticipate only minor delays and expect 
that target letters will be required rarely, in instances when new and 
substantive information is provided in comments, if coordination 
between the Departments or bureaus with the Department of Interior 
requires additional time, or other unexpected situations.
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    \4\ Coppola; New York Rivers United; Western Urban Water 
Coalition; Alcoa Power Generating Inc.; Edison Electric Institute; 
Public Utility Districts of Chelan, Douglas and Grant Counties.
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    Question 3. If, under any review process mechanism, it were not 
possible to avoid delaying the overall licensing process, would it 
still be worth establishing such a process?

[[Page 77892]]

    Answer. While most commenters did not want the Departments' review 
process to cause significant delay to the licensing process,\5\ most 
commenters also responded that in order to achieve meaningful review of 
the Departments' mandatory conditions and prescriptions, some delay was 
justifiable.\6\ However, while the Departments agree, the Departments 
have developed a process that provides meaningful review without 
significant delay to the licensing process.
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    \5\ See Footnote 4 herein.
    \6\ Northwestern University; Idaho Power Company, Federal Energy 
Regulatory Commission; Defenders of Wildlife; Petersburg Municipal 
Power and Light; Kleindschmidt Associates; National Hydropower 
Association; and Trout Unlimited.
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    Question 4. Should the review process for section 4(e) and section 
18 be the same?
    Answer. All commenters who addressed this issue commented that the 
review process for mandatory conditions under section 4(e) and 
mandatory prescriptions under section 18 should be the same.\7\ The 
Departments agree.\8\ The proposed MCRP is generally the same whether 
the mandatory condition is submitted under section 4(e) or under 
section 18. However, it should be noted that the Departments also 
designed the proposed MCRP to be used by both Departments, including 
the different bureaus within the Department of the Interior. Thus, 
flexibility was necessary to accommodate the different chain of 
command, signature authority and other administrative functions within 
and between Departments and the bureaus within the Department of the 
Interior.
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    \7\ Senator Coppola; Idaho Power Company; Federal Energy 
Regulatory Commission; Defenders of Wildlife; Orion Power of NY; New 
York Rivers United; Kleindschmidt Associates; Western Water 
Coalition; American Public Power Association; Trout Unlimited; 
Public Utility Districts of Chelan, Douglas and Grant Counties.
    \8\ The U.S. Forest Service already has a public review process, 
through its Forest Planning/NEPA guidelines, for its 4(e) 
conditions.
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    Question 5. Who should be allowed to initiate and/or participate in 
the review process? Should it be limited to the license applicant? 
Should it be limited to formal parties (i.e. interveners) to the 
Commission's licensing process (note that, depending upon when the 
review process takes place, there may not yet be interveners before the 
Commission)? Should the opportunity be available to anyone with an 
interest in the project?
    Answer. There was some divergence in comments on this issue. Some 
commenters asserted the process should apply only to the license 
applicant.\9\ Other commenters asserted that any review process should 
be open to any participant.\10\ The Departments agree that participants 
in the process in addition to the license applicant have a significant 
interest in these proceedings, and that all participants in the 
licensing process may be included in the review process without 
creating either a cumbersome or time-consuming process. Consequently, 
the Departments have proposed that the MCRP should include review 
opportunity for the license applicant, any participants in the 
licensing process, and the general public. The Departments have 
designed the MCRP to be available to the participants in the licensing 
process on the Commission's Service List when the Departments submit 
preliminary conditions and prescriptions in response to the 
Commission's Ready for Environmental Analysis (REA) Notice and to any 
members of the general public when the Commission includes the 
preliminary conditions and prescriptions in the publication of the 
Commission's Draft National Environmental Policy Act (NEPA) document. 
All of these comments will be considered in the Departments' review and 
in their submission of modified conditions and prescriptions after the 
Draft NEPA document is published. In order to merge time frames with 
the Commission regulations, participants in the licensing process 
should submit comments in response to the submission of preliminary 
conditions and prescriptions after the REA Notice. The comment period 
after public notice in the Draft NEPA document publication is provided 
to allow members of the public who may have an interest, but were not 
previously involved in the licensing process, the opportunity to 
comment as well. In this way, both participants in the licensing 
process and members of the general public who have an interest, but 
were not previously involved, will have an opportunity to provide 
comments. Those who have intervened in accordance with Commission 
regulations will be provided further review through the Commission's 
request for rehearing.
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    \9\ Senator Coppola; Western Urban Water Coalition; Edison 
Electric Institute.
    \10\ Northwestern University; Idaho Power Company; Federal 
Energy Regulatory Commission; Defenders of Wildlife; Orion Power; 
Petersburg Municipal Power & Light; New York Rivers United; 
Kleinschmidt Associates; Duke Power; Trout Unlimited; National 
Hydropower Association; American Rivers; Public Utility Districts of 
Chelan, Douglas and Grant Counties.
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    Question 6. Should the new process be available for prescriptions 
and conditions agreed upon pursuant to the Commission's streamlined 
alternative licensing procedure--a process that already provides 
considerable opportunity for communication and negotiation among the 
Departments and other interested parties?
    Answer. Many commented that the review process should be applicable 
to the alternative licensing process (ALP).\11\ Some commenters 
asserted that the review process was not necessary in the alternative 
licensing process, given the extensive amount of consultation and 
coordination which is embodied in the process itself.\12\ The 
Departments find merit in both of these comments. In considering this 
issue, the Departments had several concerns: most of the alternative 
licensing process takes place before a license application is filed or 
an administrative record of the proceeding is established, precluding 
the preparation of conditions and prescriptions; the process is new and 
unique to each project, so clear hallmarks and procedures do not exist; 
and, most importantly, review and alteration of carefully crafted 
license conditions could undermine settlement agreements negotiated 
through the ALP. For these reasons, designing a practical process was 
difficult. However, the Departments propose to provide an opportunity 
for comment on mandatory conditions and prescriptions negotiated 
through alternative licensing proceedings and included in the 
settlement agreement.
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    \11\ Idaho Power Company; Federal Energy Regulatory Commission; 
Defenders of Wildlife; Petersburg Municipal Power & Light; 
Kleinschmidt; Duke Power; National Hydropower Association; Public 
Utility Districts of Chelan, Douglas & Grant Counties; American 
Rivers; Trout Unlimited; New York Rivers United.
    \12\ Western Urban Water Coalition; Edison Electric Institute.
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B. Section II--Response to General Comments

1. Public Input to Process Development
    Some commenters suggested the possibility of the Departments' 
holding a technical conference to discuss options for the proposed 
review process.\13\ The Departments considered this possibility, but 
decided that an opportunity to seek written comments would give the 
public more time to comment on a proposed process and provide better 
documentation of concerns raised with the proposed process. Further, 
the Departments intend to revisit the process after two years, allowing 
refinement based on experience to date. Therefore, this proposed policy 
has been developed based on the public response to Federal

[[Page 77893]]

Register notice (May 26, 2000), staff experience with the licensing 
process, and consultation with Commission staff.
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    \13\ Orion Power of New York; Kleindschmidt Associates; Duke 
Power; National Hydropower Association; Public Utility Districts of 
Chelan, Douglas and Grant Counties.
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2. Form of Review Process
    Some commenters suggested that the review process should be 
established through binding regulations.\14\ Others recommended that 
the review process should start immediately with policy and move toward 
regulation, or that new regulations were not necessary.\15\ In 
considering all comments, the Departments propose that the best way to 
implement the proposed MCRP is through the publication of a policy. In 
addition, the Departments recognize that meaningful evaluation of this 
process may best take place after a trial period of implementation. The 
Departments intend to revisit the process after two years, allowing 
refinement based on experience to date.
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    \14\ Southern California Edison; Idaho Power Company; Alabama 
Power Company; Duke Power; Public Utility Districts of Chelan, 
Douglas and Grant Counties; New York Rivers United; Western Urban 
Water Coalition.
    \15\ National Hydropower Association; American Rivers; Orion 
Power; Federal Energy Regulatory Commission.
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3. Timing
    The Departments found that timing was a principal consideration in 
determining whether and how to establish a review procedure for the 
Departments' conditions and prescriptions. Several comments suggested 
that the Departments should write conditions and prescriptions and 
provide a review period before a hydropower license application is 
submitted,\16\ but the Departments found that unworkable. While the 
Departments will continue to work with licensees to coordinate 
development of conditions and prescriptions together with project 
design, license applications still may change significantly between 
drafts circulated to interested parties and final applications 
submitted to the Commission. Many of the studies identified by the 
parties as necessary would not have been completed, again undermining 
the ability to formulate preliminary conditions and prescriptions. 
Moreover, the publication of preliminary conditions and prescriptions 
before there is a proceeding, or a license application on the record 
that identifies a specific project, project operations, and probable 
project impacts for which mitigation may be needed, is not consistent 
with the legal requirements for substantial evidence in the record 
before the Commission, set forth in Bangor Hydroelectric Co., Inc. v. 
FERC, 78 F.3d 659 (DC Cir. 1996).
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    \16\ Senator Coppola, Southern California Edison, Idaho Power 
Company, Federal Energy Regulatory Commission, Western Urban Water 
Coalition, Alcoa Power Generating Inc.
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    Once an application is submitted to the Commission, the timing of 
the issuance of mandatory conditions and prescriptions and any review 
process is necessarily intertwined with the Commission's procedures for 
processing the application. The length of time required for hydropower 
licensing has been a continuing concern for the Commission, the 
Departments, licensees and other members of the interested public. 
While the Departments and the Commission may disagree over the extent 
to which the Commission may affect the Departments' authorities through 
its procedural regulations, the Departments wish to work with the 
Commission and within the Commission's existing process to the extent 
possible, in order to avoid creating any new delays in the licensing 
process. Thus, the timing of the Departments' proposed review process 
takes into account the timing contemplated by the Commission's 
regulations.
    The Departments have found, however, that it is not always possible 
to act within the time period contemplated by the Commission's 
regulations. Since the Commission's REA notice is based upon the 
Commission's own requirements for information to perform its NEPA 
analysis, it does not necessarily take into account the question of 
whether the Departments have sufficient information to form the basis 
of the conditions that meet the Departments' statutory responsibilities 
and to provide substantial evidence for the Departments' administrative 
record. See Bangor Hydroelectric v. FERC, 78 F.3d 659 (DC Cir. 1996). 
In addition, the Departments propose to file modified conditions and 
prescriptions 90 days after the close of the comment period on the 
Commission's draft NEPA document, in order to respond to public 
comments addressing the preliminary conditions and prescriptions. 
Currently, Commission practice anticipates that the modified conditions 
and prescriptions would be filed within the public comment period. 
Another conflict could arise with the Departments' proposal to file a 
response following requests for rehearing that raise issues with the 
Departments' conditions and prescriptions. Current Commission 
regulations provide discretion for the Commission to allow filings in 
response to a request for rehearing, and the Commission generally does 
not reject or exclude from the record such filings. However, the 
Departments' proposal would standardize that practice. By proposing to 
notify the Commission regarding the anticipated timing for the 
Departments' filings, the Departments seek to improve agency 
coordination and reduce delays in the process.
4. Appeal Mechanism
    Many of the commenters wanted an appeal component, some including 
full evidentiary hearings before administrative law judges.\17\ Other 
commenters recommended notice and comment.\18\ The Departments have 
given this issue careful consideration. The Departments propose not to 
provide full evidentiary hearings for two primary reasons: (1) no 
appropriate forum is available that has jurisdiction over the 
Departments' decision under the FPA; and (2) full evidentiary hearings 
would prevent the Departments from meeting the most common request of 
all commenters, that the review process fit within the Commission's 
existing licensing process and not cause extended delay. However, the 
Departments propose to meet the request for an appeal component by 
answering specific issues raised on its modified conditions and 
prescriptions that are included in a party's request for rehearing.
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    \17\ See Footnote 2 herein.
    \18\ See Footnote 3 herein.
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5. Level of Review
    Some commenters \19\ specifically requested that the review process 
be conducted at a different and/or higher level than the staff 
responsible for preparing the conditions and prescriptions. These 
comments may, in part, be based on a misconception regarding the level 
at which the Departments submit conditions; in most cases, conditions 
and prescriptions are submitted at the regional level or higher. 
Nonetheless, the Departments considered this issue in developing this 
process. The initial signature level of the conditions and prescription 
is different between the Departments of Commerce and Interior, and also 
within the bureaus of the Department of the Interior. The level of 
review of modified conditions and prescriptions will vary depending 
upon the Department and the bureau. In all cases, the Departments 
propose that the review will occur at least at the State or regional 
level.
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    \19\ Pacific Gas & Electric Co.; American Public Power 
Association; Duke Power; Hydropower Licensing Reform Task Force.

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[[Page 77894]]

6. Review of Non-Exercise or Reservation of Authority
    Some commenters suggested that any review process should be 
applicable to situations in which a stakeholder challenges the 
Departments' failure to exercise mandatory authority.\20\ In certain 
cases when the Commission issues the REA notice, the Departments 
already participating in the licensing process may respond by 
exercising their section 4(e) or 18 statutory authority by reserving 
that authority. In these cases, that submission would be subject to the 
review process proposed here. When the Department(s) are not 
participating in a licensing process, the review process is not 
applicable.
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    \20\ New York Rivers United; American Rivers.
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7. Review of Economic Impacts
    Some commenters suggested that the review process provide a review 
of the economic impacts of the conditions and prescriptions on the 
project.\21\ It is not necessary, or appropriate, to address here what 
substantive issues may be raised by participants in requesting review. 
Commenters may raise whatever concerns they consider relevant at the 
appropriate time in each licensing proceeding.
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    \21\ Western Urban Water Coalition' American Public Power 
Association; Hydropower Licensing Reform Task Force.
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III. Procedural Requirements

A. Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), it has 
been determined that the action proposed (implementation of a policy) 
is not a ``significant regulatory action''. This proposed policy 
describes an opportunity for public review of and comment on conditions 
and prescriptions that the Departments develop as part of the 
Commission's existing hydropower licensing process. Thus, the policy 
would not impose a compliance burden on the economy generally.

B. Administrative Procedures Act

    This policy is not subject to prior notice and an opportunity to 
comment because it is a general statement of policy (5 U.S.C. 
553(b)(A)).

C. Regulatory Flexibility Act

    This policy is not subject to notice and comment under the 
Administrative Procedures Act, and therefore not subject to the 
analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). Furthermore, the Departments have determined that this policy 
will not have a significant economic effect on a substantial number of 
small entities as defined under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.). This proposed policy is guidance and does not 
compel any party to conduct any action. This policy would provide a 
standardized opportunity for public comment on the Departments' 
mandatory conditions and prescriptions. Therefore, the Departments 
believe that no economic effects on small entities will result from 
compliance to the criteria in this policy.

D. Small Business Regulatory Enforcement Fairness Act

     This policy is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This policy:
    1. Will not have an annual effect on the economy of $100 million or 
more and is expected to have no significant economic impacts.
    2. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions and will impose no additional 
regulatory restraints in addition to those already in operation.
    3. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
intent of the policy is to provide a standardized opportunity for 
public comment on the Departments' mandatory conditions and 
prescriptions. It will impose no additional regulatory restraints to 
those already in operation. The Departments have, therefore, determined 
that the policy will not have a significant economic effect on a 
substantial number of small entities as defined in the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

E. Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.):
    1. This policy will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. The policy 
does not require any additional management responsibilities. The 
Departments expect that this proposed policy will not result in any 
significant additional expenditures by entities that participate in the 
Commission's hydropower licensing process.
    2. This proposed policy will not produce a Federal mandate of $100 
million or greater in any year, that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. This rule 
is not expected to have significant economic impacts nor will it impose 
any unfunded mandates on other Federal, State, or local governments 
agencies to carry out specific activities.

F. Federalism

    In accordance with Executive Order 13132, this proposed policy does 
not have significant Federalism effects; therefore, a Federalism 
assessment is not required. This policy will not have substantial 
direct effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. No intrusion 
on State policy or administration is expected, roles or 
responsibilities of Federal or State governments will not change, and 
fiscal capacity will not be substantially directly affected. Therefore, 
the policy does not have significant effects or implications on 
Federalism.

G. Paperwork Reduction Act

    This policy does not require an information collection under the 
Paperwork Reduction Act. Therefore, this proposed policy does not 
constitute a new information collection requiring Office of Management 
and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq.

H. National Environmental Policy Act

     The Departments have analyzed this policy in accordance with the 
criteria of the National Environmental Policy Act (NEPA). This proposed 
policy does not constitute a major Federal action significantly 
affecting the quality of the human environment because it only provides 
notice and comment on conditions and prescriptions. Issuance of the 
proposed policy is categorically excluded under the Department of the 
Interior's NEPA procedures in 516 DM 2, Appendix 1.10. The National 
Oceanic and Atmospheric Administration (NOAA) has determined that the 
issuance of this policy qualifies for a categorical exclusion as 
defined by NOAA 216-6 Administrative Order, Environmental Review 
Procedure.

I. Essential Fish Habitat

     We have analyzed this policy in accordance with section 305(b) of 
the Magnuson-Stevens Fishery Conservation and Management Act and 
determined that issuance of this policy may not adversely affect the 
essential fish habitat of federally managed species, and, therefore, an 
essential fish

[[Page 77895]]

habitat consultation on this policy is not required.

J. Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, the Departments have assessed 
the impact of this proposed policy on tribal trust resources and have 
determined that it does not directly affect Tribal resources. Because 
the policy will standardize a review process of section 4(e) 
conditions, which do directly affect tribal resources, the Departments 
will consult with tribal governments when reviewing and responding to 
comments or requests for rehearing that directly relate to conditions 
that affect tribal resources.

IV. Commission Coordination

    The Departments have begun discussions with the Commission 
regarding the integration of the proposed MCRP with the Commission's 
existing licensing process. Timing issues require coordination with the 
Commission, and the Departments will continue to work with the 
Commission to determine how best to minimize timing conflicts while 
providing meaningful review of the Departments' conditions and 
prescriptions.

V. Mandatory Conditions Review Process--Narrative

A. Traditional Licensing Process

    The following process describes a proposal for the Departments to 
receive and respond to comments regarding the mandatory conditions and 
prescriptions submitted to the Commission through the traditional 
licensing process. The Departments already have informal policies and 
practices for maintaining communications with licensees and others 
throughout the development of conditions and prescriptions. The 
Departments view this as an iterative, cooperative process. However, 
the Departments have not until now had a standardized process for 
reviewing public comments on the conditions and prescriptions developed 
during the licensing process. This proposed policy is designed to work 
within the Commission's licensing process to efficiently allow 
meaningful public input without unduly delaying licensing.
1. Part A: Notice and Comment on Preliminary Conditions and 
Prescriptions
    a. Ready for Environmental Analysis. The Departments' proposed 
Mandatory Conditions Review Process (MCRP) is triggered when the 
Commission determines that a hydropower license application is complete 
and it has issued a notice indicating the license application is Ready 
for Environmental Analysis (REA). Comments, recommendations, terms and 
conditions, and prescriptions concerning the license application are 
typically to be filed with the Commission within 60 days from the date 
of the REA notice. The MCRP relates only to the mandatory conditions 
and prescriptions (not comments or recommendations). The information 
that is filed in response to the REA notice is generally incorporated 
into the Commission's National Environmental Policy Act (NEPA) analysis 
that establishes the framework for license conditions the Commission 
may include in any issued license.
    b. Filing of Preliminary Conditions and Prescriptions. The 
Departments will file preliminary conditions and prescriptions within 
the Commission's 60-day REA comment period. In those infrequent cases 
when the Departments' administrative record is insufficient, the 
Departments need more time to coordinate, or other circumstances arise 
and the Departments are unable to issue preliminary conditions and 
prescriptions during this period, the Departments will follow the 
procedures described below.
    When the Departments are unable to provide some or all preliminary 
prescriptions and conditions to the Commission within the 60-day REA 
notice period, the Departments will, in a letter to the Commission and 
its service list, exercise their statutory authorities by reserving 
authority. The Departments will include in this letter: (1) the reasons 
why preliminary prescriptions and conditions are not being filed at 
this time; and (2) a schedule, including a target date, for submitting 
the preliminary prescriptions and conditions. When the preliminary 
prescriptions and conditions are completed, they will be provided to 
the Commission and its service list. The Departments intend that 
preliminary conditions and prescriptions will be filed for inclusion in 
the draft NEPA document and that both comment periods will be completed 
as discussed below.
    If the Departments make the determination that their administrative 
record does not support the filing of conditions and prescriptions at 
the time of licensing, but may support such a filing during the license 
term, the Departments will exercise statutory authority by reserving 
that authority until a later date when the Departments' administrative 
record supports such an exercise. The participating Departments will 
provide the reservation of authority during the 60-day REA comment 
period.
    The level of signature for preliminary conditions and prescriptions 
will vary depending on the signature authority within each Department 
and within the bureaus of the Department of the Interior. The 
Departments will file an original and eight copies of the preliminary 
conditions and prescriptions with the Commission and an index to the 
Departments' administrative record that supports the preliminary 
conditions and prescriptions. These materials will also be provided to 
the Commission's service list. The Departments will file an original 
and three copies of the Departments' administrative record with the 
Commission either concurrently or within a time period specified in the 
preliminary submission. The administrative record will also be provided 
to the applicant and, for section 4(e) conditions mandated for the 
protection and utilization of an Indian Reservation, to the Indian 
Tribe of that Reservation. The Departments' administrative record will 
be available at the Departmental office from which it originates, but 
will not be automatically served upon the service list. Any party may 
request copies of the record, in whole or in part, from the 
conditioning Department, according to procedures described in the 
issuing document.
    c. Comment Opportunity. The proposed MCRP would provide two very 
specific opportunities for notice and comment targeted to two separate 
audiences. The Departments will respond to comments and modify 
conditions and prescriptions as necessary after the end of the second 
comment opportunity.
    The first opportunity is provided to participants in the licensing 
process who receive the Departments' preliminary conditions and 
prescriptions in response to the Commission's REA notice. The 
preliminary submission, which is served on the Commission's Service 
List, will invite comments and new supporting evidence on the 
preliminary conditions and prescriptions within a 45 day time period. 
Commission regulations call for submissions within 60 days of the REA 
notice, and provide for reply to those submissions to be filed

[[Page 77896]]

within 105 days of the REA notice See 18 CFR 4.34(b). Thus, the comment 
period on the preliminary conditions and prescriptions will usually be 
concurrent with the Commission's allowed time to reply to REA 
submissions. All comments on the Departments' preliminary conditions 
and prescriptions should be specifically identified and include 
supporting evidence. The Departments will begin reviewing comments when 
received; however, no response will be made until after review of the 
draft NEPA document.
    To be responsive to the fact that there may be persons with an 
interest in the Departments' preliminary conditions and prescriptions 
who have not been previously involved in the licensing process, the 
Departments are providing a second opportunity to the public to provide 
comments. With publication of the draft NEPA document for comment, 
which will include the Departments' preliminary conditions and 
prescriptions, the Commission will inform the public that, if they want 
to comment, they must provide a copy of specific comments and 
supporting evidence to the Departments within the comment period for 
the draft NEPA document. In order to have adequate time to thoroughly 
review comments and to efficiently provide the Commission with the 
modified conditions and prescriptions, the Departments strongly 
encourage participants in the licensing process to submit comments 
during the first notice and comment period, rather than wait until the 
NEPA comment period. While it is neither necessary nor recommended for 
participants in the licensing process to re-submit comments already 
submitted, to the extent that participants in the process resubmit 
comments in the NEPA comment period, any changes or new comments should 
be specifically and expressly identified in the submission. The 
Departments will consider all comments received.
    d. Filing Modified Conditions and Prescriptions. The Departments 
will review the draft NEPA document and all comments received on the 
preliminary conditions and prescriptions. Based on this review, the 
Departments will modify the conditions and prescriptions, as needed, 
and respond to comments. Within 90 days of the close of the draft NEPA 
comment period, the Departments will submit modified conditions and 
prescriptions, unless substantial and new information was provided 
during the NEPA comment period requiring additional review time, or 
coordination between the Departments or Department of Interior's 
bureaus or other unexpected circumstances arise that reasonably require 
additional time. In those infrequent situations where additional time 
is needed, the Departments will submit to the Commission and its 
service list, and all commenters, a letter providing an explanation of 
the need for additional time and a schedule for preparing the modified 
conditions and prescriptions.
    The process of comment and review itself modifies the conditions 
and prescriptions by modifying the record underlying them, even if the 
actual language of the conditions and prescriptions does not change. 
The Departments will coordinate the review and response to comments. 
The format of the response to comments will be commensurate with the 
nature, substance and extent of the comments received, the inter-agency 
and intra-bureau involvement, time frame, staff availability and the 
Departments' practice. Signature authority will vary between the 
Departments and among the bureaus of the Department of the Interior; 
however, this submission will be signed at the state or regional level.
    The result of this process will be the Departments' submission to 
the Commission of an original and eight copies of the modified 
conditions and prescriptions, a response to comments, and an index to 
the Departments' supplemental administrative record generated as a 
result of the review process, as needed. These materials will also be 
provided to the Commission's service list and to commenters. The 
Departments will file an original and three copies of the Departments' 
supplemental administrative record with the Commission. The 
supplemental administrative record will also be provided to the 
applicant and, for section 4(e) conditions mandated for the protection 
and utilization of an Indian Reservation, to the Indian Tribe of that 
Reservation. Any party may again request copies of the supplemental 
record, in whole or in part. The Departments intend that modified 
conditions and prescriptions will be provided to the Commission in 
advance of issuance of the final NEPA document.
2. Part B: Comments on Modified Conditions and Prescriptions
    a. Request for Rehearing. After the Commission issues the license, 
if any intervener submits a request for rehearing, pursuant to 
Commission regulations at 18 CFR 385.713, that clearly identifies 
issues with the Departments' modified conditions and prescriptions, and 
includes supporting evidence, the Departments will review those 
concerns. Assuming the Commission grants rehearing for further 
consideration, as is its custom, the Departments will review all 
information and coordinate their response to all issues raised within 
30 days of the formal filing with the Commission of a timely request 
for rehearing. The Departments may choose to file consolidated 
responses to more than one request for rehearing. The Departments will 
either file the response pursuant to 18 CFR 385.713(d)(2) or, in the 
unexpected situation that substantive or new issues are raised, the 
Departments will notify the Commission of the issues raised, that 
additional time is necessary to review issues, and provide a time line 
for response. The content of the response will vary depending on 
whether the issue is one that has been raised previously, or presents 
new issues that require a new response or supplementation of the 
record. The Departments will file the response with the Commission and 
its Service List.

B. Alternative Licensing Process

    The following process describes a proposed opportunity for the 
Departments to receive and respond to comments regarding the mandatory 
conditions and prescriptions submitted to the Commission through the 
alternative licensing process. The form of the review process will 
depend on whether the Departments submit conditions and prescriptions 
as part of a settlement agreement. If the Departments submit conditions 
and prescriptions that are not part of a settlement agreement, then the 
process described for the traditional licensing process applies, as 
detailed herein.
    If negotiations in the alternative licensing process result in an 
agreement as to the Departments' mandatory conditions and 
prescriptions, then a modified review process applies. Under the 
alternative licensing process, the license applicant files a license 
application, including any settlement offer, which may include the 
Departments' agreement as to their preliminary mandatory conditions and 
prescriptions, and a Draft Applicant Prepared NEPA document with the 
Commission. The Commission then publishes a notice calling for comments 
on the license application, including the settlement offer and any 
agreed-upon preliminary conditions and prescriptions included in the 
settlement offer. In response to the Commission's notice, interested 
parties, including parties that are not signatories to the

[[Page 77897]]

settlement, are provided an opportunity to provide comments regarding 
the license application, the settlement offer, and the Departments' 
agreed-upon preliminary conditions and prescriptions.
    If a non-settling party submits comments directly addressing the 
Departments' agreed-upon conditions and prescriptions, including the 
evidence in support thereof, then the Departments will review the 
comments pertaining to the mandatory conditions and prescriptions. If 
comments do not necessitate changes to the mandatory conditions and 
prescriptions that would render them inconsistent with the settlement 
agreement, the Departments will address the comments without returning 
to the settling parties. If comments are substantive and raise issues 
not previously identified, the Departments will discuss the comments 
and their appropriate resolution with the settling parties. If the 
Departments determine, after discussion with the settling parties, that 
the comments warrant a change in the conditions and prescriptions, the 
Departments will submit modified conditions and prescriptions. This 
process will be the only review of the Departments' agreed-upon 
conditions and prescriptions submitted through the alternative 
licensing process.
    As part of the alternative licensing process, the Commission also 
publishes a notice indicating that it is proceeding with the 
environmental review. In response to this Notice, the Departments, 
pursuant to their statutory authority under sections 4(e) and 18, will 
submit to the Commission, as a separate filing, their agreed-upon 
conditions and prescriptions, so that, regardless of Commission action 
on the settlement agreement, the Departments' agreed-upon conditions 
and prescriptions will become mandatory license conditions. Any changes 
that may have been made to the settlement conditions and prescriptions 
as a result of comments received will be included in this submission.

VI. Mandatory Conditions Review Process--Step-by-Step

A. Traditional Licensing Process

    1. Notice and Comment on Preliminary Conditions and Prescriptions:
    a. The Commission issues a notice stating that the license 
application is Ready for Environmental Analysis (REA).
    b. In most cases, the Departments will submit to the Commission 
some or all preliminary conditions and prescriptions within 60 days of 
the REA notice. Signature authority will vary between the Departments 
and within the bureaus of the Department of the Interior.
    To the extent that the Departments' conditions and prescriptions 
are based on materials not already included in the Commission's 
administrative record, a copy of the materials submitted by the 
Departments in support of conditions and prescriptions will be 
maintained at the originating office
    Additions to the administrative record will be filed with the 
preliminary conditions and prescriptions or within a specified time 
period thereafter.
    Submission to the Commission will include:
     An original and eight copies of the preliminary conditions 
and prescriptions; and
     The index to the Departments' administrative record that 
includes documents not already included in the Commission's 
administrative record and appropriate citations for documents already 
included in the Commission's record; and
     An original and three copies of the Departments' 
administrative record. Submission to the applicant and, for section 
4(e) conditions mandated for the protection and utilization of an 
Indian Reservation, to the Indian Tribe of that Reservation, will 
include:
     A copy of the preliminary conditions and prescriptions; 
and
     The index to the Departments' administrative record that 
includes documents not already included in the Commission's 
administrative record and appropriate citations for documents already 
included in the Commission's record; and
     A copy of the Departments' administrative record
    Submission to the Commission's service list will include:
     A copy of the preliminary conditions and prescriptions; 
and
     The index to the Departments' administrative record that 
includes documents not already included in the Commission's 
administrative record and appropriate citations for documents already 
included in the Commission's record.
    A party may request copies of the record, in whole or in part, 
according to procedures described in the issuing document.
    c. If the Departments determine that the evidence in the 
Commission's administrative record and information generally available 
is not sufficient or if other circumstances arise and the Departments 
cannot file preliminary conditions and prescriptions within 60 days of 
the REA notice, the Departments will include a reservation of 
authority. The submission will also include:
     An explanation for the delay; and
     A schedule and date for submitting preliminary conditions 
and prescriptions.
    d. The preliminary conditions and prescriptions submission will 
include an invitation for interested persons to submit comments.
    The comment period will be 45 days. This is concurrent with the 
time allowed by Commission regulation to reply to REA submissions.
    The Departments will consider comments if they:
     Are identified as raising issues pertaining to the 
mandatory conditions and prescriptions;
     Include supporting evidence.
    The Departments will begin reviewing comments; however, no response 
will be made until after review of the NEPA document.
    e. The Commission will issue the draft NEPA document for public 
comment, which will include the Departments' preliminary conditions and 
prescriptions.
    The Commission's notice will inform the public that they may submit 
comments on the preliminary conditions and prescriptions.
    The Departments will consider comments if they:
     Are identified as raising issues pertaining to the 
mandatory conditions and prescriptions;
     Are copied to the conditioning Department(s); and
     Include supporting evidence.
    f. The Departments will review all comments received and the draft 
NEPA document within 90 days of the close of the Draft NEPA comment 
period, the Departments will either
     Submit the modified conditions and prescriptions; or
     Send the Commission a letter (an original and eight 
copies) with an explanation of why additional time is required and an 
anticipated target date for submitting the modified conditions and 
prescriptions. The letter will also be served on the Commission's 
Service List.
    The Departments will coordinate the review and submission of 
modified conditions and prescriptions, when appropriate.
    The response to comment will be commensurate with the nature, 
substance and extent of the comments received, the inter-agency and 
intra-bureau involvement, the time frame, staff availability and the 
Departments' practice.
    Signature authority will vary between the Departments and within 
the bureaus

[[Page 77898]]

of the Department of the Interior; however this submission will be 
signed at the state or regional level or higher.
    The Departments intend to submit the modified conditions and 
prescriptions in advance of issuance of the Commission's final NEPA 
document.
    A copy of the Departments' supplemental administrative record, as 
needed, will be maintained at the originating office.
    The Departments' administrative record will be filed with the 
modified conditions or within a time period specified in the 
submission.
    Submission to Commission will include:
     An original and eight copies of the modified conditions 
and prescriptions;
     An index of the Departments' supplemental administrative 
record formed as part of the review process and not yet included in the 
Commission's administrative record and appropriate citations for 
documents already included in the Commission's record;
     An original and three copies of the Departments' 
supplemental administrative record; and
     Response to comments.
    Submission to the applicant and, for section 4(e) conditions 
mandated for the protection and utilization of an Indian Reservation, 
the Indian Tribe of that Reservation, will include:
     A copy of the modified conditions and prescriptions;
     An index of the Departments' supplemental administrative 
record formed as part of the review process and not yet included in the 
Commission's administrative record and appropriate citations for 
documents already included in the Commission's record;
     A copy of the Departments' supplemental administrative 
record; and,
     Response to comments.
    Submission to the Commission's service list and all other 
commenters will include:
     A copy of the modified conditions and prescriptions;
     An index to the Departments' supplemental administrative 
record, as needed. A party may request copies of the record, in whole 
or in part, according to procedures described in the issuing document; 
and
     Response to comments
    2. Comments on Modified Conditions and Prescriptions:
    a. After the license is issued, an intervener may submit a request 
for rehearing pursuant to 18 CFR 385.713.
    The request for rehearing is available only to interveners, as 
described by the Commission's regulations.
    b. The Departments will consider those issues raised in requests 
for rehearing: that pertain to the mandatory conditions and 
prescriptions; are clearly identified as issues relating to the 
Departments' mandatory conditions and prescriptions; and include 
supporting evidence or citation to the supporting evidence in the 
administrative record.
    c. Within 30 days of the filing of the request for rehearing, the 
Departments will either submit a response relating only to those issues 
directed to the Department's conditions and prescriptions, with any 
changes to the conditions and prescriptions, if needed; or send the 
Commission a letter (an original and eight copies), in those infrequent 
cases where significant and/or new issues relating to the Departments' 
mandatory conditions and prescriptions are raised in the request, with 
an explanation of why additional time is required and an anticipated 
date for submitting the response and any changes to the modified 
conditions and prescriptions, if needed. The letter will also be served 
on the Commission's Service List.
    d. The Departments may coordinate this submission, but may submit 
their responses separately.
    e. The response will be commensurate with the nature, substance and 
extent of the comments received, the inter-agency and intra-bureau 
involvement, the time frame, staff availability and the Departments' 
practice.
    For issues addressed earlier in the licensing process, the response 
will include the appropriate citations to the administrative record.
    f. The response will be sent to the Commission (an original and 
eight copies) and be served on the Commission's Service List.
    g. The Departments intend to submit the response prior to issuance 
of the Commission's decision on the requests for rehearing.

B. Alternative Licensing Process

    1. If the Departments submit conditions and prescriptions that are 
not part of a settlement agreement resulting from an alternative 
licensing process, then the review process described for the 
traditional licensing process applies.
    2. If the Departments submit mandatory conditions and prescriptions 
that are included in the license application and settlement offer, then 
the following process applies.
    a. The license applicant will file a license application, including 
the settlement offer, which may include any agreed-upon preliminary 
mandatory conditions and prescriptions, and Draft Applicant Prepared 
Environmental Assessment to the Commission.
    b. The Commission will publish a Notice calling for comments on the 
license application (including the settlement offer and any agreed-upon 
conditions and prescriptions).
    c. If a non-settling party submits comments that raise issues on 
the Departments' agreed-upon preliminary conditions and prescriptions, 
then the Departments will review the comments pertaining to the 
mandatory conditions and prescriptions.
    Comments should include specific comments on the mandatory 
conditions and prescriptions and supporting evidence.
    d. If comments do not necessitate changes to the mandatory 
conditions and prescriptions that would render them inconsistent with 
the settlement agreement, the Departments will address the comments 
without returning to the settling parties.
    e. To the extent that the comments are substantive and raise issues 
not previously identified, the Departments will discuss the comments 
and their appropriate resolution with the settling parties.
    f. The Commission issues Notice stating the application is ready 
for final analysis.
    g. The resource agencies will formally file those agreed-upon 
preliminary conditions and prescriptions as modified by the Departments 
in response to comments and after consultation with the settling 
parties.

    Dated: December 5, 2000.
David J. Hayes,
Deputy Secretary, U.S. Department of the Interior.
    Dated: December 7, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-31758 Filed 12-12-00; 8:45 am]
BILLING CODE 3510-22-P; 4310-10-P