[Federal Register Volume 70, Number 111 (Friday, June 10, 2005)]
[Rules and Regulations]
[Pages 33825-33828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11551]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 4

[Docket No. RM05-18-000; Order No. 655]


Modification of Hydropower Procedural Regulations, Including the 
Deletion of Certain Outdated or Non-Essential Regulations

May 27, 2005.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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[[Page 33826]]

SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
amending its regulations concerning applications for preliminary 
permits to eliminate certain outdated requirements and reduce 
unnecessary burdens on persons subject to the Commission's regulations. 
These modifications are the result of a review begun by the 
Commission's FERC Information Assessment Team (FIAT) to identify all of 
the Commission's current information collections to evaluate their 
original purposes and current uses, and to propose ways to reduce the 
burden on industry through the elimination, reduction, streamlining or 
reformatting of current collections. The Commission is amending its 
regulations to eliminate 18 CFR 4.81(d)(3) to remove the requirements 
for identifying a market for power and related power system information 
in the application for a preliminary permit. The Commission expects 
that these minor modifications of its regulations will not have a 
significant impact on preliminary permit proceedings. Because these 
changes relate only to the Commission's procedures and relieve 
unnecessary regulatory burdens, notice and comment on the changes is 
not required.

EFFECTIVE DATE: July 11, 2005.

FOR FURTHER INFORMATION CONTACT:

William O. Blome (Legal Information), Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
8462.
Thomas E. DeWitt (Technical Information), Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
6070.

SUPPLEMENTARY INFORMATION:

    Before Commissioners: Pat Wood, III, Chairman; Nora Mead 
Brownell, Joseph T. Kelliher, and Suedeen G. Kelly.

I. Introduction

    1. The Federal Energy Regulatory Commission (Commission) has 
reviewed its hydropower procedural regulations to determine whether 
they contain any outdated requirements or impose any unnecessary 
burdens on persons subject to the Commission's jurisdiction. This 
review was begun by the FERC Information Assessment Team (FIAT), which 
was directed by the Chairman to assess the Commission's information 
needs. Goal 2 of the tasks identified by the team to meet this mission 
included identifying all of the Commission's current information 
collections, through forms and filing requirements, and evaluating 
their original purposes and current uses, and proposing ways to reduce 
the reporting burden on industry through elimination, reduction, 
streamlining or reformatting of current collections.
    2. In this final rule, the Commission is amending its regulations 
to eliminate 18 CFR 4.81(d) (3), in order to remove the requirement 
that the applicant for a preliminary permit must identify a market for 
the power that it proposes to generate and provide related power system 
information at the preliminary permit stage of a hydropower license 
application. At the preliminary permit stage, the applicant is not 
required to develop a proposed project in detail, so this information 
is unnecessary.
    3. The Commission expects these regulations will reduce the amount 
of information the Commission requires applicants to file, and that 
these modifications will not have a significant impact on preliminary 
permit proceedings. Because these changes relate only to the 
Commission's procedures and relieve unnecessary regulatory burdens, 
notice and comment on the changes is not required, and the changes are 
effective July 11, 2005.
    4. The Commission's regulations provide a range of alternatives for 
development of a hydropower project. A prospective developer may, inter 
alia, apply to the Commission for a preliminary permit under Section 
4(f) of the Federal Power Act.\1\ These permits allow a specified term, 
no more than three years, for the prospective developer to perform 
investigations and studies to support a license application and to 
determine the economic, engineering and environmental feasibility of 
developing a hydropower project at a specific site. The permit 
preserves the exclusive right to file, during the specified term, an 
application for either a license or an exemption from licensing for the 
proposed project. Thus, the permittee may conduct needed studies to 
determine the feasibility of the project without fear of someone else 
filing a development application for the site. A preliminary permit is 
not required to develop a project; a developer may choose to file 
directly for either a license or an exemption from licensing. 
Preliminary permits are not transferable.
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    \1\ 16 U.S.C. 797(f) (2000).
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II. Discussion

    5. The Commission regulates non-Federal hydropower development 
under Part I of the Federal Power Act \2\ (FPA). The Commission issues 
licenses for terms up to 50 years for ``projects best adapted to a 
comprehensive plan'' for improving a waterway for beneficial public 
purposes. Pursuant to Section 4(f) of the FPA, the Commission is 
authorized to issue preliminary permits, for the purpose of enabling 
prospective license applicants to secure the information necessary to 
support an application for license. Preliminary permits, issued for 
three years, reserve the right to file a development application at a 
specific site,\3\ but do not authorize construction of any hydropower 
facilities or other land-disturbing activities.\4\
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    \2\ 16 U.S.C. 791a, et seq. (2000).
    \3\ See FPA Section 5, 16 U.S.C. 798.
    \4\ See, e.g., Greenfields Irrigation District, 111 FERC ] 
62,039 (2005).
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    6. The purpose of obtaining a preliminary permit, as noted above, 
is to maintain a priority status for an application for a license while 
the prospective applicant conducts site examinations and surveys to 
prepare maps, plans, specifications and estimates. This period of time 
also provides the applicant with the opportunity to conduct 
engineering, economic and environmental feasibility studies, and to 
make financial arrangements for the construction of any project. During 
the term of the permit, the Commission will accept no other application 
for a preliminary permit or application for license or exemption 
submitted by another person for the same site.
    7. The Commission is eliminating 18 CFR 4.81(d) (3), thus 
eliminating the need for preliminary permit applicants to identify the 
market for the power that they propose to generate and to provide 
certain related power system information. At the time of a preliminary 
permit application, the project proposal is necessarily incomplete and 
this information is not needed to understand the project at this stage. 
The Commission is also incorporating 18 CFR 4.81(d) (1) and (2), 
concerning study costs and financing sources, into 18 CFR 4.81(c), 
which requires the applicant to describe studies conducted or to be 
conducted in connection with the preparation of a development 
application for the proposed project. These rules benefit applicants 
for preliminary permits by simplifying and expediting the preliminary 
permit process.

III. Information Collection Statement

    8. Office of Management and Budget (OMB) regulations require OMB to 
approve certain information collection requirements imposed by agency 
rule.\5\ Comments are solicited on the Commission's need for this 
information,

[[Page 33827]]

whether it will have practical utility, the accuracy of burden 
estimates, ways to enhance the quality, utility and clarity of the 
information to be collected, and any suggested methods for minimizing 
respondents' burden, including the use of automated information 
techniques.
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    \5\ 5 CFR 1320.11.
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IV. Estimated Annual Burden

    9. The current reporting burden for this information collection is 
as follows:

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                                                            Number of     Number of     Number of   Total annual
                     Data collection                       respondents      hours       responses       hours
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FERC-512................................................           50            73             1         3,650
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    The Commission estimates that preliminary permit applications filed 
pursuant to the new rule would require approximately 15 percent less 
time to prepare. Using an assumed cost of $52 per hour, the total 
savings would be $572 per application or $28,000 saved for a year in 
which 50 applications are prepared and filed.
    Title: Application for Preliminary Permit (FERC-512).
    Action: Change to an Existing Collection.
    OMB Control No.: 1902-0073.
    Respondents: Businesses or other for-profit and not-for-profit 
institutions.
    Frequency of Responses: On occasion.
    Necessity of Information: The proposed regulations will revise the 
reporting requirements for a preliminary permit application to 
streamline the requirements and reduce the burden on the applicant. The 
information filed with the Commission preserves a priority to file by a 
prospective developer of a hydropower project. These permits allow a 
specified time for the developer to conduct investigations necessary to 
support a license application and to determine the economic, 
engineering and environmental feasibility of developing a hydropower 
project at a certain site. The preliminary permit is not required to 
develop a project. Therefore, the developer may file directly for 
either a license or an exemption from licensing. The Commission offers 
preliminary permits as part of its efforts to simplify and expedite the 
hydropower licensing process. This final rule will take those efforts 
one step further.
    Internal Review: The Commission has reviewed the proposed 
amendments to its regulations to remove the requirement that an 
applicant for a preliminary permit must identify a market for the power 
that it proposes to generate and provide related power system 
information at the preliminary permit stage of a hydropower license 
application. At the preliminary permit application stage, it is not 
necessary for the applicant to provide information regarding a market 
for the project's power and related matters. This amendment to the 
Commission's regulations conforms to the Commission's plan for 
efficient information collection, communication, and management within 
the hydropower industry. The Commission has assured itself, by means of 
internal review, that the new rule will reduce the burden estimates 
associated with preliminary permit applications.
    10. Interested persons may obtain information on the information 
requirements by contacting the following: The Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426 [Attention: 
Michael Miller, Office of the Executive Director, Phone (202) 502-8415, 
fax: (202) 273-0873, e-mail: [email protected].]
    11. Please send your comments concerning the collection of 
information(s) and the associated burden estimate(s) to the contact 
listed above and to the Office of Management and Budget, Office of 
Information and Regulatory Affairs, Washington, DC 20503, [Attention: 
Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 
395-4650, fax: (202) 395-7285].

V. Environmental Analysis

    12. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\6\ The 
Commission has categorically excluded certain actions from these 
requirements as not having a significant effect on the human 
environment.\7\ The action taken here falls within the categorical 
exclusions in the Commission's regulations for rules that involve 
information gathering, analysis, and dissemination.\8\ This proposed 
rule, if finalized, is procedural in nature and therefore falls under 
this exception. Therefore, an environmental assessment is unnecessary 
and one has not been prepared for this rulemaking.
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    \6\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, Order No. 486, 52 FR 47897 (Dec. 17, 
1987), FERC Stats. & Regs. ] 30,783 (1987).
    \7\ 18 CFR 380.4(a) (2) (ii).
    \8\ 18 CFR 380.4(a) (5).
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VI. Regulatory Flexibility Act Certification

    13. The Regulatory Flexibility Act of 1980 (RFA) \9\ requires a 
description and analysis of final rules that will have significant 
economic impact on a substantial number of small entities.\10\ The 
Commission is not required to make such analyses if a rule would not 
have such an effect.
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    \9\ 5 U.S.C. 601-612 (2000).
    \10\ The RFA definition of ``small entity'' refers to the 
definition provided in the Small Business Act, which defines a 
``small business concern'' as a business which is independently 
owned and operated and which is not dominant in its field of 
operation. 15 U.S.C. 632 (2000). The Small Business Size standards 
component of the North American Industry Classification System 
defines a small electric utility as one that, including its 
affiliates, is primarily engaged in the generation, transmission, 
and/or distribution of electric energy for sale and whose total 
electric output for the preceding fiscal years did not exceed four 
million megawatthours. 13 CFR 121.201 (Section 22, Utilities, NAICS) 
(2004).
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    14. The Commission has concluded that the amendments to its 
regulations would not have such an impact on small entities. These 
regulations are intended to benefit all entities regardless of size by 
reducing the burden of information collection while preparing an 
application for a preliminary permit. The adoption of these amendments 
to the regulations will reduce the amount of information that must be 
filed with the Commission and will be of greater benefit to small 
entities who have limited resources for conducting investigations and 
preparing a licensing application if they so choose. Therefore, the 
Commission certifies that this rule will not have a significant 
economic impact on a substantial number of small entities.

VIII. Document Availability

    15. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

[[Page 33828]]

    16. From FERC's Home Page on the Internet, this information is 
available in the Commission's document management system, eLibrary, 
using the eLibrary link. The full text of this document is available on 
eLibrary in PDF and Microsoft Word format for viewing, printing and 
downloading. To access this document in eLibrary, type the docket 
number of this document, excluding the last three digits, in the docket 
number field.
    17. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours. For assistance, please contact FERC 
Online Support at [email protected] or calling toll-free at 
(866) 208-3676. For TTY, contact (202) 502-8659, or the Public 
Reference Room at (202) 502-8371, TTY (202) 502-8659, (e-mail at 
[email protected]).

IX. Effective Date and Congressional Notification

    18. This Final Rule will take effect July 11, 2005. The Commission 
has determined, with the concurrence of the Administrator of the Office 
of Information and Regulatory Affairs, Office of Management and Budget 
(OMB), that this rule is not a major rule within the meaning of Section 
251 of the Small Business Regulatory Enforcement Fairness Act of 
1996.\11\ The Commission will submit the Final Rule to both houses of 
Congress and to the General Accountability Office.\12\
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    \11\ See 5 U.S.C. 804(2) (2000).
    \12\ See 5 U.S.C. 801(a)(1)(A) (2000).
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    19. The Administrative Procedure Act (APA) \13\ requires 
rulemakings to be published in the Federal Register. It also requires 
that an opportunity for comment be provided when the agency promulgates 
regulations. However, notice and comment are not required by the APA 
when the agency for good cause finds that notice and public comments 
thereon are impracticable, unnecessary, or contrary to the public 
interest.\14\ The Commission finds that notice and comment are 
unnecessary to this rulemaking. As explained above, we are merely 
clarifying the scope of our regulations concerning applications for 
preliminary permits. This action should benefit the public by reducing 
the need to provide more information than is necessary for the 
Commission to evaluate preliminary permit applications. This 
clarification will result in a reduction of the filing requirements and 
will decrease the reporting burden on persons planning to develop 
hydroelectric power projects. Accordingly, this rule is effective July 
11, 2005.
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    \13\ 5 U.S.C. 551-559 (2000).
    \14\ 5 U.S.C. 553(b)(3)(B) (2000).
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List of Subjects in 18 CFR Part 4

    Hydropower, Reporting and recordkeeping requirements.

    By the Commission.
Linda Mitry,
Deputy Secretary.

0
In consideration of the foregoing, the Commission amends part 4, 
Chapter 1, Title 18, Code of Federal Regulations, as follows:

PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATIONS OF 
PROJECT COSTS

0
1. The authority citation for part 4 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.


Sec.  4.81  [Amended]

0
2. In Sec.  4.81,
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a. Remove paragraph (d)(3);
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b. Paragraphs (d) introductory text, (d)(1) and (d)(2) are redesignated 
as paragraphs (c)(4) introductory text, (c)(4)(i) and (c)(4)(ii);
0
c. In the redesignated paragraph (c)(4) introductory text, the words 
``Exhibit 3'' are removed and the words ``Exhibit 2'' are inserted in 
their place;
0
d. Paragraph (e) is redesignated as paragraph (d);
0
e. In redesignated paragraph (d), the words ``Exhibit 4'' are removed 
and the words ``Exhibit 3'' are inserted in their place.

[FR Doc. 05-11551 Filed 6-9-05; 8:45 am]
BILLING CODE 6717-01-P