[Federal Register Volume 69, Number 174 (Thursday, September 9, 2004)]
[Proposed Rules]
[Pages 54615-54620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20469]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 221

[Docket No. 040812238-4238-01; I.D. 080904D]
RIN 0648-AS55


Procedures for Review of Mandatory Fishway Prescriptions 
Developed by the Department of Commerce in the Context of Federal 
Energy Regulatory Commission's Hydropower Licensing

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes a public review process for mandatory fishway 
prescriptions (prescriptions) NMFS develops, pursuant to its authority 
under the Federal Power Act, for inclusion in hydropower licenses 
issued by the Federal Energy Regulatory Commission (FERC). This 
proposed rule is intended to supercede and codify NMFS' existing policy 
governing review of its prescriptions, to solicit public comments on 
how the process has worked during the trial period of implementation 
and to determine whether any further revision is warranted. The public 
review process will enable the public to comment on the Department's 
preliminary prescriptions, and to provide information to assist the 
Department in considering any needed modifications

[[Page 54616]]

of prescriptions to be included in FERC's final license.

DATES: Written comments must be received no later than November 8, 
2004.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: [email protected]. Include in the subject line 
the following identifier: RIN 0648-AS55.
     Federal e-Rulemaking Portal: http://www.regulations.gov.
     Mail: Written comments must be sent to: Thomas Bigford, 
Chief, Habitat Protection Division, Office of Habitat Conservation, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910. To ensure proper identification of your comments, 
include in the subject line the name, date and Federal Register 
citation of this document.

FOR FURTHER INFORMATION CONTACT: Melanie Harris at 301-713-4300, ext. 
154.

SUPPLEMENTARY INFORMATION:

I. Background

    Pursuant to Part I of the Federal Power Act (FPA), 16 U.S.C. 791(a) 
et seq., the Department of Commerce (DOC) was granted certain 
authorities in the licensing process for non-federal hydroelectric 
generating facilities. The DOC, acting through NMFS, provides input to 
the Federal Energy Regulatory Commission (FERC) on a number of issues 
related to the license application. Among others, NMFS' authorities 
include the authority to prescribe fishways pursuant to section 18 of 
the FPA, 16 U.S.C. 811.
    The FPA requires that section 18 prescriptions be included in any 
license issued by FERC. The mandatory nature of these prescriptions was 
upheld by Federal court in American Rivers v. FERC, 201 F.3d 1186 (9th 
Cir. 1999) and American Rivers v. FERC, 129 F.3d 99 (2d Cir. 1997). 
After a license has been issued, the license, including the NMFS' 
prescriptions, is subject to rehearing before the FERC and subsequent 
judicial review under the FPA's appeal procedures, which place 
exclusive jurisdiction in the Federal Court of Appeals, 16 U.S.C. 
825l(b).
    NMFS' practice has been to try to work closely with license 
applicants in developing prescriptions. However, licensees and others 
have expressed interest in having NMFS consider public input and 
comments on these prescriptions through a standardized review process. 
Such a process would provide an opportunity for interested parties to 
provide comment on the prescriptions.
    The DOC, acting through NMFS, jointly with the Department of the 
Interior based on shared authority under section 18 of the FPA 
(together with Interior's authority under section 4(e) of the FPA), 
published two Federal Register notices while developing what initially 
was intended to be issued as a joint policy and procedure for public 
review of mandatory prescriptions (Mandatory Conditions Review Process 
or MCRP).
    First, on May 26, 2000 (65 FR 34151), the Departments published a 
Federal Register notice soliciting public comments on the Departments' 
proposed policy establishing a review process for mandatory conditions 
and prescriptions they develop as part of FERC's hydropower licenses. 
Second, on December 13, 2000 (65 FR 77889), the Departments solicited 
public comments on a new process for public review of, and comment on, 
mandatory conditions and prescriptions concerning hydropower licenses. 
Refer to the December 13, 2000, Federal Register publication for a 
summary of the significant comments submitted in response to the May 
26, 2000 notice, and the Departments' responses. In response to the 
December 13, 2000 notice, the Departments received 18 sets of comments 
representing a broad range of interests. The January 2001 joint MCRP, 
including responses to the public comments received on the December 13, 
2000 (65 FR 77889) Federal Register notice was posted on the NMFS 
website, at the following location: http://www.nmfs.noaa.gov/habitat/habitatprotection/pdf/FINAL%20MCR.pdf.
    The proposed rule is intended to codify an MCRP for NMFS, and to 
solicit public comments to inform NMFS' review process. At the same 
time, in a parallel proposed rule, the Department of the Interior 
proposes to codify an MCRP, while also proposing to add an 
administrative appeals process, in lieu of a rehearing stage. The DOC 
and the Department of the Interior employ different formats for 
regulations, but in all other aspects, the MCRP portions of the two 
proposed rules are intended to be the same.
    The proposed MCRP rule published herein applies to NMFS' section 18 
of the FPA prescriptions, under the FPA filed in connection with any of 
the following three licensing processes provided by FERC: the 
Traditional Licensing Process (TLP), the Alternative Licensing Process 
(ALP) or the Integrated Licensing Process (ILP). NMFS' recommendations 
under sections 10(a) and 10(j) of the FPA are subject to review by FERC 
under Commission procedures, and are not governed by the MCRP.
    NMFS hereby is also soliciting public comments on how its process 
for developing prescriptions under Section 18 has worked. Based on all 
comments received, NMFS will determine whether any further revision is 
warranted, and publish a final rule implementing the MCRP.

II. Changes from Existing MCRP

    NMFS notes that the proposed rule codifies the MCRP as it has 
implemented during the trial period since January 2001, with the 
following changes. The existing MCRP provides 60 days for comments on 
NMFS' preliminary fishway prescriptions. In this rulemaking, 45 days 
has been selected to conform to the reply comments time period in 
FERC's ILP. See section 5.23 of 104 FERC 61,109 (July 23, 2003). In 
addition, the proposed rule addresses the need for special review 
procedures in the context of negotiated settlements, regardless of 
whether a settlement is reached under the TLP, ALP or ILP.

III. Administrative Review Mechanism

    In the earlier joint responses to comments on the draft MCRP 
policy, the Departments indicated that numerous comments requested the 
implementation of an administrative appeals process, in addition to the 
review stages provided under the draft MCRP. The Departments determined 
at that time that an appeals process was unwarranted. However, given 
now that NMFS and other participants in the FERC licensing process have 
more than three years of experience under the MCRP, and being aware of 
the Department of Interior's separate proposal for an administrative 
appeals process to be implemented in lieu of the MCRP's rehearing 
stage, NMFS is again considering the possible addition of a mechanism 
for administrative review of its prescriptions within NMFS, including 
the relationship of any such mechanism to the existing FERC rehearing 
process, and solicits public comments. NMFS invites commenters to 
consider differences in the size of the case load, agency staffing, and 
scope of authority, relative to the Department of Interior, in 
commenting on the need for an additional administrative review 
mechanism, and the form such a review mechanism should take.
    In addition, NMFS is aware of a proposal for amending the Federal 
Power Act that is currently being considered by Congress. The 
legislative proposal appears in the hydropower title passed by the 
House in H.R. 6 and

[[Page 54617]]

by the Senate in S. 14 in the 108th Congress. The same language also 
appears in S. 2095 which was introduced in the Senate on February 12, 
2004. NMFS invites comment about whether elements of the legislative 
proposal should be incorporated into this rulemaking.

IV. Procedural Requirements

A. National Environmental Policy Act

    NMFS has analyzed this proposed rule in accordance with the 
criteria of the National Environmental Policy Act (NEPA). This proposed 
rule does not constitute a major Federal action significantly affecting 
the quality of the human environment because it only provides notice 
and comment on prescriptions. The prescriptions will be part of FERC's 
NEPA analysis. NMFS has determined that the issuance of this proposed 
rule qualifies for a categorical exclusion as defined by NOAA 
Administrative Order 216-6, Environmental Review Procedure.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires an agency to conduct 
a regulatory flexibility analysis of any rule subject to notice and 
comment rulemaking requirements unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions.
    The Chief Counsel for Regulation of the DOC certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
proposed rule, if adopted, will not have a significant economic impact 
on a substantial number of small entities as defined under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    The proposed rule will not affect a substantial number of small 
entities. According to the Small Business Administration, for NAICS 
code 221111 hydroelectric power generation, a firm is small if, 
including its affiliates, its total electric output for the preceding 
fiscal year did not exceed 4 million megawatt hours. During the period 
from 2001 to 2003, of 108 licenses issued by FERC, only 4 contained 
section 18 prescriptions from NMFS, and none of these projects was 
owned or operated by small entities as defined above. Based on FERC's 
projected licensing schedule, reflecting licenses due to expire over 
the next several decades, there is no reason to expect that the 
currently small percentage of licenses issued subject to NMFS' section 
18 authority will significantly change, or that of these projects, a 
significant number will be licensed to small entities. Furthermore, in 
the event that NMFS, in the future, issued a Section 18 prescription 
for a project licensed to one or more small entities, the effect of the 
proposed rule would not be significant. The proposed rule provides a 
formal opportunity for public review of and comment on prescriptions 
developed by NMFS as part of FERC's hydropower licensing process, but 
does not mandate or determine the effects of the fishway prescriptions 
themselves. All fishway prescriptions are considered on a case-by-case 
basis and are made part of FERC's license decision, and any licenses 
that would have significant effects would need to undergo public review 
pursuant to the National Environmental Policy Act. For these reasons, 
the proposed rule will not have a significant economic effect. As a 
result, a regulatory flexibility analysis was not prepared.

C. Regulatory Planning and Review

    This document is a significant rule. Though this rule will not have 
an adverse effect or an annual effect of $100 million or more on the 
economy, the preliminary assessment of the Office of Management and 
Budget (OMB) is that the rule may represent a novel approach to public 
input, it may serve as a model for future rulemakings, and it may have 
interagency implications. Therefore, the rule will be reviewed by the 
OMB under Executive Order 12866.

D. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This proposed rule:
    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. Will 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 this proposed rule is to provide a standardized opportunity 
for public comment on NMFS' prescriptions. It will impose no additional 
regulatory restraints to those entities already in operation. The DOC 
has, therefore, determined that the proposed rule 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 proposed rule will not ``significantly or uniquely'' affect 
small governments. A Small Government Agency Plan is not required. The 
proposed rule does not require any additional management 
responsibilities. NMFS expects that this proposed rule will not result 
in any significant additional expenditures by entities that participate 
in FERC's hydropower licensing process.
    2. This proposed rule 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 
proposed 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

    Executive Order 13132 requires agencies to take into account any 
federalism impacts of regulations under development. It includes 
specific consultation directives for situations where a regulation will 
preempt state law, or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this proposed rule; therefore, a 
Federalism assessment is not required. This proposed rule 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.

G. Paperwork Reduction Act

    This proposed rule does not require an information collection under 
the Paperwork Reduction Act. Therefore, this proposed rule 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.

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H. Essential Fish Habitat

    NMFS has analyzed this proposed rule in accordance with section 
305(b) of the Magnuson-Stevens Fishery Conservation and Management Act 
and determined that the issuance of this proposed rule may not 
adversely affect the essential fish habitat of federally managed 
species, and therefore, an essential fish habitat consultation on this 
proposed rule is not required.

I. Government-to-Government Relationship With Tribes

    This rule has been determined to not have impacts on Native 
American tribes, as that term is used in E.O. 13175. Because the 
proposed rule will standardize a review process of section 18 of the 
FPA fishway prescriptions, which directly affect tribal resources, NMFS 
will consult with Tribal governments when reviewing and responding to 
comments or Requests for Rehearing that directly relate to 
prescriptions that affect tribal resources.

List of Subjects in 50 CFR Part 221

    Fisheries, Hydropower.

    Dated: September 2, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to add 50 
CFR part 221 to read as follows:

PART 221--HYDROPOWER LICENSE CONDITIONS

Subpart A--General Provisions

Sec.
221.1 Basis and purpose.
221.2 Definitions.

Subpart B--Procedures for Review of Mandatory Fishway Prescriptions

221.3 Traditional or Integrated Licensing Process (TLP or ILP, 
respectively).
221.4 Prescriptions submitted with an offer of settlement, whether 
in an Alternative Licensing Process (ALP) or otherwise.

    Authority: 16 U.S.C. 811; Pub. L. 102-486, 1106 Stat. 3008.

Subpart A--General Provisions


Sec.  221.1  Basis and purpose.

    (a) Section 18 of the Federal Power Act (16 U.S.C. 811), and Sec.  
1701(b) of the Energy Policy Act, Pub. L. 102-486, Title XVII, Sec.  
1701(b), Oct. 24, 1992, 1106 Stat. 3008, authorize the Secretary of 
Commerce to prescribe fishways that are required to be constructed, 
maintained and operated by hydropower licensees pursuant to mandatory 
conditions contained in licenses issued by the Federal Energy 
Regulatory Commission. The Secretary's authority under the Federal 
Power Act, 16 U.S.C. 791(a) et seq. is delegated to the Assistant 
Administrator for Fisheries, National Oceanic and Atmospheric 
Administration, and re-delegated to the Regional Administrators.
    (b) The purpose of this part is to establish a process for the 
public to review and comment on mandatory fishway prescriptions 
formulated by NMFS pursuant to section 18 of the Federal Power Act, and 
section 1701(b) of the Energy Policy Act of 1992, and filed with the 
Federal Energy Regulatory Commission pursuant to FERC's hydropower 
licensing regulations set forth at 18 CFR subchapter B.


Sec.  221.2  Definitions.

    Applicant means a person or legal entity applying to FERC for a 
hydropower license under the Federal Power Act, 16 U.S.C. 791a-823b.
    Department means the U.S. Department of Commerce.
    FERC means the Federal Energy Regulatory Commission.
    Indian Tribe means a federally recognized Indian tribe identified 
in NMFS' section 18 prescriptions.
    Mandatory Conditions Review Process (MCRP) means a process that 
allows the public to review and comment on preliminary prescriptions 
that NMFS submits for inclusion in a hydropower license issued under 
subchapter I of the Federal Power Act, 16 U.S.C. 791-823b. The process 
is open to the license applicant, all participants in the licensing 
process, and the public generally, and is limited to prescriptions 
submitted pursuant to section 18 of the FPA, 16 U.S.C. 811. It does not 
apply to recommendations filed under sections 10(a) and 10(j) of the 
FPA, 16 U.S.C. 803(a) and (j).
    Modified fishway prescriptions means mandatory fishway 
prescriptions developed for inclusion in a hydropower license pursuant 
to section 18 of the Federal Power Act, 16 U.S.C. 811, as modified 
based on comments received according to the procedures set forth in 
this rule, and filed with FERC after the close of the comment period on 
the draft NEPA document.
    NMFS means the National Marine Fisheries Service, a constituent 
agency of the Department of Commerce, acting by and through the 
Assistant Administrator for Fisheries or one of the agency's six 
Regional Administrators, as appropriate.

Subpart B--Procedures for Review of Mandatory Fishway Prescriptions


Sec.  221.3  Traditional or Integrated Licensing Process (TLP or ILP, 
respectively)

    (a) Notice and comment on preliminary prescriptions--(1) Ready for 
Environmental Analysis. Even thoughNMFS will work with applicants 
during the prefiling and postfiling stages, the MCRP is triggered when 
FERC issues a notice indicating the license application is Ready for 
Environmental Analysis (REA). Comments, recommendations, terms and 
conditions, and prescriptions concerning the license application will 
typically be filed with FERC within 60 days from the date of the REA 
notice.
    (2) Filing of preliminary prescriptions. (i) NMFS will file 
preliminary prescriptions within FERC's 60-day REA comment period. In 
order to ensure that this submission is as complete as possible and 
that NMFS can receive meaningful comments, NMFS needs to receive all 
requested information from the applicant in a timely manner, and 
accurate notification from FERC of when the REA notice will be issued. 
If settlement negotiations are on-going at the time FERC issues the REA 
notice, NMFS will suspend these negotiations in order to prepare 
preliminary prescriptions to meet FERC's deadline. When filing the 
preliminary prescriptions, NMFS will include a rationale for the 
prescriptions, reference relevant documents already filed with FERC, 
and provide a schedule of when the preliminary prescriptions will be 
modified. The schedule should indicate that NMFS will submit modified 
prescriptions within 60 days after the close of the draft NEPA comment 
period. The information that is filed in response to the REA notice is 
generally incorporated into FERC's National Environmental Policy Act 
(NEPA) analysis that establishes the framework for license conditions.
    (ii) Exceptional circumstances, such as the filing of competing 
applications for a hydropower license, may preclude NMFS from filing 
preliminary prescriptions within 60 days after FERC issues its REA 
notice. When exceptional circumstances occur, NMFS will work with FERC 
and the applicant(s) on a case-by-case basis to ensure that an 
opportunity for public review and comment is provided.
    (iii) If NMFS determines at the time of the REA notice that it does 
not have sufficient information, such as completed reports on required 
studies or information on technical feasibility, to support the filing 
of preliminary prescriptions, it may exercise its

[[Page 54619]]

authority under section 18 of the FPA by reserving the authority to 
submit prescriptions at a later date. In these situations, NMFS will 
file with FERC its reservation of authority within 60 days after FERC 
issues its REA Notice and will provide the reasons for this action. 
NMFS will accept comments on its reservation of authority.
    (iv) NMFS will file the preliminary prescriptions, the schedule for 
modification, and reference to supporting information with FERC. NMFS 
also will provide this information to FERC's Service List, which 
includes the applicant.
    (3) Comment opportunity. (i) The MCRP will provide a primary 
opportunity for notice and comment during the 45 days immediately 
following the submission of preliminary prescriptions under the TLP or 
ILP. NMFS will begin reviewing comments when received; however, no 
response will be made until after review of the draft NEPA document.
    (ii) NMFS' preliminary submission to FERC, which is served on 
FERC's Service List, will invite comments and new supporting evidence 
on the preliminary prescriptions within a 45-day time period. 
Participants on the Service List and other interested stakeholders are 
encouraged to comment at this time. All comments on NMFS' preliminary 
prescriptions should be specifically identified as such and include 
supporting evidence.
    (iii) In addition, to be responsive to persons with an interest in 
the preliminary prescriptions, but who have not been previously 
involved in the licensing process, NMFS will consider public comments 
provided during the draft NEPA comment period. FERC's draft NEPA 
document includes NMFS' preliminary prescriptions. All comments 
submitted to NMFS will be considered. In order to give the comments the 
full and thorough consideration necessary to efficiently provide FERC 
with the modified prescriptions, NMFS strongly encourages participants 
in the licensing process to submit comments during the primary notice 
and comment period, rather than wait until the NEPA comment period. 
Comments submitted on the preliminary prescriptions during the 45-day 
comment period need not be resubmitted during the draft NEPA comment 
period.
    (iv) If NMFS reserves its authority, it will accept comments on 
this decision during the comment period. If and when the reservation of 
authority is invoked during the term of the license, NMFS will work 
with all interested parties to determine how to apply the MCRP. Because 
this reservation of authority has rarely been invoked, it is hard to 
predict how the MCRP will apply. In addition, NMFS will accept comments 
even when it has not been involved in the proceedings. However, it must 
be noted that procedural limitations may make it difficult for NMFS to 
become involved late in the process. Therefore, these issues should be 
raised to NMFS in the initial consultation phase or as early as 
possible in the licensing process to allow NMFS the opportunity to 
enter the licensing process at a meaningful stage.
    (b) Filing modified prescriptions. (1) NMFS will review the draft 
NEPA document and all comments received on the preliminary 
prescriptions. Based on this review, NMFS will modify the 
prescriptions, as needed, and respond to comments. Modified 
prescriptions are reviewed and signed at a level at least as high as 
the Regional Administrator. Within 60 days of the close of the draft 
NEPA comment period, NMFS will submit modified prescriptions, unless 
substantial or new information is provided during the NEPA comment 
period requiring additional review time. In those infrequent situations 
when additional time is needed, NMFS will submit to FERC, and serve 
upon the Service List and all commenters, a letter providing an 
explanation of the need for additional time and a schedule for 
preparing the modified prescriptions.
    (2) NMFS will coordinate with other resource agencies and tribes, 
as appropriate, when reviewing and responding to comments. The format 
of the response to comments may vary depending on the nature, substance 
and extent of the comments received, inter-agency involvement, time 
frame, and NMFS' practice. Submission of the modified prescriptions 
will be signed by an authorized person at least as high as the Regional 
Administrator level.
    (3) NMFS will submit to FERC modified prescriptions, a response to 
comments, and an index of NMFS' administrative record. In its 
submission, NMFS will identify the schedule for filing its 
administrative record. NMFS will file its administrative records with 
FERC. A copy of the administrative record will be provided to the 
applicant. Any party on the Service List may request copies of the 
administrative record, in whole or in part. Finally, NMFS intends to 
furnish modified prescriptions to FERC in advance of issuance of the 
final NEPA document.
    (c) Reconsideration of modified prescriptions - requests for 
rehearing. After FERC issues the license, if any intervener submits a 
request for rehearing that clearly identifies substantial issues with 
NMFS' modified prescriptions and includes supporting evidence, NMFS 
will review those concerns. For substantive issues raised regarding 
NMFS' prescriptions, NMFS will submit a written response to the 
commenter, and file a copy with FERC, within 30 days if possible. In 
those cases when FERC authorizes parties an opportunity to file briefs 
or present oral argument on the issues presented on rehearing, NMFS 
will submit its written response in the form of a brief, filed with 
FERC pursuant to 18 CFR 385.713(d)(2), In those unusual situations when 
more than 30 days is required for response because of significant or 
new information, NMFS will, within 30 days, submit its reason for 
needing this time and a reasonable schedule for the written response. 
NMFS may choose to file consolidated responses to more than one request 
for rehearing.


Sec.  221.4  Prescriptions submitted with an offer of settlement, 
whether in an Alternative Licensing Process (ALP) or otherwise.

    This Sec.  221.4 describes an opportunity for NMFS to receive and 
respond to comments regarding the mandatory prescriptions submitted to 
FERC pursuant to a negotiated offer of settlement, including 
settlements reached under FERC's ALP. The form of the review process 
will depend on whether NMFS submits prescriptions that are intended to 
implement corresponding terms of a settlement agreement entered into by 
NMFS pursuant to its statutory authority. If NMFS submits prescriptions 
that are not part of a settlement agreement, then the procedure 
described in Sec.  221.3 applies.
    (a) Under the ALP the applicant files a license application, 
including an offer of settlement, which may include NMFS' agreement as 
to its prescriptions, and a draft applicant prepared NEPA document with 
FERC. Alternatively, NMFS may join as a party to a settlement agreement 
reached through negotiations under the TLP or ILP. If, pursuant to a 
settlement agreement reached with the licensee and other parties, NMFS 
agrees to the terms of settlement pertaining to its exercise of 
authority under section 18 of the FPA, then the following modified 
review process applies:
    (1) Under the ALP, or in response to the submission of any offer of 
settlement reached under the TLP or ILP, FERC will publish a notice 
calling for comments on the license application and the offer of 
settlement, including the terms of settlement pertaining to NMFS' 
agreed upon section 18 of the

[[Page 54620]]

FPA prescriptions. In response to FERC's notice, interested parties are 
provided an opportunity to comment on the license application, the 
settlement offer, and NMFS' agreed upon prescriptions.
    (2) If comments and supporting evidence directly addressing NMFS' 
agreed upon fishway prescriptions are submitted, then NMFS will review 
the comments. If comments are substantive and raise issues not 
previously identified and possibly require changes to the prescriptions 
and/or settlement agreement, NMFS will discuss the comments and its 
appropriate resolution with participants, based on the parties' 
communications protocol.
    (3) If NMFS determines, after discussion with the other settlement 
participants, that the comments warrant a change in the agreed-upon 
prescriptions, NMFS will modify the agreed-upon prescriptions. NMFS 
will modify the agree-upon prescriptions that are made as a result of 
comments received and discussions with the settlement participants. If 
submitted under the ALP, this comment opportunity provided pursuant to 
the offer of settlement will be the only review conducted by NMFS' on 
its agreed-upon prescriptions, prior to FERC's license decision.
    (b) Under the ALP and other licensing processes, FERC also 
publishes a notice indicating that it is ready to proceed with the 
environmental review. In response to this Notice, NMFS, pursuant to its 
statutory authority under section 18 of the FPA, will submit to FERC, 
as a separate filing, its agreed-upon prescriptions, so that regardless 
of FERC action on the settlement agreement, NMFS' agreed-upon 
prescriptions will become mandatory license conditions. Any changes 
that may have been made to the settlement prescriptions as a result of 
comments received will be included in this submission.
[FR Doc. 04-20469 Filed 9-8-04; 8:45 am]
BILLING CODE 3510-22-S