81 FR 84389 - Resource Agency Hearings and Alternatives Development Procedures in Hydropower Licenses

DEPARTMENT OF AGRICULTURE
Office of the Secretary
DEPARTMENT OF THE INTERIOR
Office of the Secretary
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 226 (November 23, 2016)

Page Range		84389-84396
FR Document		2016-28063
The Departments of Agriculture, the Interior, and Commerce are jointly issuing final rules for procedures for expedited trial-type hearings and the consideration of alternative conditions and fishway prescriptions required by the Energy Policy Act of 2005. The hearings are conducted to expeditiously resolve disputed issues of material fact with respect to conditions or prescriptions developed for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission under the Federal Power Act. The final rules make no changes to existing regulations that have been in place since the revised interim rules were published on March 31, 2015, and took effect on April 30, 2015. At the time of publication of the revised interim rules, the Departments also requested public comments on additional ways the rules could be improved. The Departments now respond to the public comments received on the revised interim rules by providing analysis and clarifications in the preamble. The Departments have determined that no revisions to existing regulations are warranted at this time.
Federal Register, Volume 81 Issue 226 (Wednesday, November 23, 2016)
[Federal Register Volume 81, Number 226 (Wednesday, November 23, 2016)]
[Rules and Regulations]
[Pages 84389-84396]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28063]



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Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / 
Rules and Regulations

[[Page 84389]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 1

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 45

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 221

[Docket No. 080220223-6961-03]
RINs 0596-AC42, 1090-AA91, and 0648-AU01


Resource Agency Hearings and Alternatives Development Procedures 
in Hydropower Licenses

AGENCY: Office of the Secretary, Agriculture; Office of the Secretary, 
Interior; National Oceanic and Atmospheric Administration, Commerce.

ACTION: Final rules; response to comments.

-----------------------------------------------------------------------

SUMMARY: The Departments of Agriculture, the Interior, and Commerce are 
jointly issuing final rules for procedures for expedited trial-type 
hearings and the consideration of alternative conditions and fishway 
prescriptions required by the Energy Policy Act of 2005. The hearings 
are conducted to expeditiously resolve disputed issues of material fact 
with respect to conditions or prescriptions developed for inclusion in 
a hydropower license issued by the Federal Energy Regulatory Commission 
under the Federal Power Act. The final rules make no changes to 
existing regulations that have been in place since the revised interim 
rules were published on March 31, 2015, and took effect on April 30, 
2015. At the time of publication of the revised interim rules, the 
Departments also requested public comments on additional ways the rules 
could be improved. The Departments now respond to the public comments 
received on the revised interim rules by providing analysis and 
clarifications in the preamble. The Departments have determined that no 
revisions to existing regulations are warranted at this time.

DATES: Effective November 23, 2016.

FOR FURTHER INFORMATION CONTACT: Mona Koerner, Lands and Realty 
Management, Forest Service, U.S. Department of Agriculture, 202-205-
0880; John Rudolph, Solicitor's Office, Department of the Interior, 
202-208-3553; or Melanie Harris, Office of Habitat Conservation, 
National Marine Fisheries Service, 301-427-8636. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    The Departments of Agriculture, the Interior, and Commerce (the 
Departments) are issuing final rules to implement section 241 of the 
Energy Policy Act of 2005. Energy Policy Act of 2005, 109 Public Law 
58, 119 Stat. 594, 674, 109 Public Law 58, 2005. Section 241 created 
additional procedures applicable to conditions or prescriptions that a 
Department develops for inclusion in a hydropower license issued by 
Federal Energy Regulatory Commission (FERC). Specifically, section 241 
amended sections 4 and 18 of the Federal Power Act (FPA) to provide for 
trial-type hearings on disputed issues of material fact with respect to 
a Department's conditions or prescriptions; and it added a new section 
33 to the FPA, allowing parties to propose alternative conditions and 
prescriptions.
    In 2015, the Departments promulgated three substantially similar 
revised rules--one for each agency--with a common preamble. The revised 
interim rules became effective on April 30, 2015, so that interested 
parties and the agencies more immediately could avail themselves of the 
improvements made to the procedures. At the same time, the Departments 
requested public comment on additional ways the rules could be 
improved.
    The Departments have reviewed the public comments received on the 
revised interim rules, and are providing responses to the public 
comments and further analysis and clarification. The Departments have 
determined that no changes to existing regulations are warranted in the 
Final Rules.

II. Background

A. Interim Final Rules

    On November 17, 2005, at 70 FR 69804, the Departments jointly 
published interim final rules implementing section 241 of the Energy 
Policy Act of 2005 (EPAct), Public Law 109-58. Section 241 of EPAct 
amended FPA sections 4(e) and 18, 16 U.S.C. 797(e), 811, to provide 
that any party to a license proceeding before FERC is entitled to a 
determination on the record, after opportunity for an agency trial-type 
hearing of no more than 90 days, of any disputed issues of material 
fact with respect to mandatory conditions or prescriptions developed by 
one or more of the three Departments for inclusion in a hydropower 
license. EPAct section 241 also added a new FPA section 33, 16 U.S.C. 
823d, allowing any party to the license proceeding to propose an 
alternative condition or prescription, and specifying the consideration 
that the Departments must give to such alternatives.
    The interim final rules were made immediately effective, but a 60-
day comment period was provided for the public to suggest changes to 
the interim regulations. The Departments stated in the preamble that 
based on the comments received and the initial results of 
implementation, they would consider publication of revised final rules.

B. Request for Additional Comment Period

    In July 2009, the Hydropower Reform Coalition (HRC) and the 
National Hydropower Association (NHA) sent a joint letter to the three 
Departments, asking that an additional 60-day comment period be 
provided before publication of final rules. The organizations noted 
that they and their members had gained extensive experience with the 
interim final rules

[[Page 84390]]

since their initial comments were submitted in January 2006, and they 
now have additional comments to offer on ways to improve the trial-type 
hearing and alternatives processes. The Departments granted NHA and 
HRC's request. Instead of publishing final rules, the Departments 
published revised interim rules, effective on April 30, 2015, with a 
60-day comment period.

C. Revised Interim Rules

    On March 31, 2015, the Departments jointly published revised 
interim rules implementing EPAct section 241. 80 FR 17156. The rules 
and preamble addressed a few issues that remained open in the 2005 
rulemaking, such as who has the burden of proof in a trial-type hearing 
and whether a trial-type hearing is an administrative remedy that a 
party must exhaust before challenging conditions or prescriptions in 
court. Additionally, the revised interim rules clarified the 
availability of the trial-type hearing and alternatives processes in 
the situation where a Department exercises previously reserved 
authority to include conditions or prescriptions in a hydropower 
license.
    The revised interim rules went into effect on April 30, 2015, but a 
60-day comment period was provided for the public to suggest changes to 
the revised interim regulations.

D. Comments Received

    The Departments received comments on the revised interim rules from 
Exelon Generation Company, LLC (``Exelon'') and comments submitted 
jointly by the National Hydropower Association, American Public Power 
Association, Edison Electric Institute, and Public Utility District no. 
1 of Snohomish County, Washington (``Industry Commenters''). Responses 
to these comments are provided below. The Departments also received a 
comment that is not relevant to this rulemaking and therefore does not 
necessitate a response. The reader may wish to consult the section-by-
section analysis in the revised interim rules for additional 
explanation of all the regulations.
Burden of Proof
    The Industry Commenters strongly disagree with the Departments' 
decision in the revised interim final rule to assign the burden of 
proof to the party requesting a hearing. See 7 CFR 1.657(a), 43 CFR 
45.57(a), and 50 CFR 221.57(a). They assert that the burden of 
persuasion should be assigned, in accordance with Sec.  7(d) of the 
Administrative Procedure Act (APA), 5 U.S.C. 556(d), to the party that 
is ``the proponent of [the] rule or order,'' and that the burden should 
be assigned to the Departments because they are the proponents of their 
mandatory conditions or prescriptions which they seek to attach to a 
licensing order as well as the alleged facts supporting those 
conditions or prescriptions. The Departments received these comments on 
the interim final rule and explained the Departments' rationale for 
disagreeing with the comment in the revised interim rules. 80 FR 17170-
17171. For the reasons explained in the revised interim rules, the 
Departments do not agree with the comment and no changes to the 
regulations are required.
    The Industry Commenters cite Escondido Mutual Water Co. v. La Jolla 
Band of Mission Indians, 466 U.S. 765 (1984), in support of the 
assertion that the Departments are the proponents. In that case the 
Supreme Court noted that a condition or prescription must be supported 
by evidence provided by the conditioning agency (or other interested 
parties). Id. at 777 nn.17, 20. The Industry Commenters assert that 
this is consistent with the APA requirement that the proponent of an 
order ``has the burden of proof.'' However, the Escondido case dealt 
with an appeal from a U.S. court of appeals' decision that Sec.  4(e) 
of the FPA required FERC to accept without modification any license 
conditions recommended by the Secretary of the Interior. As noted by 
the Supreme Court, FERC's orders, including licenses, are reviewable by 
a U.S. court of appeals under 18 U.S.C. 825l(b), and the court of 
appeals, and not FERC, has exclusive authority to determine the 
validity of a condition or prescription in a license. 466 U.S. at 777 
and 777 nn. 19, 21. Because conditions and prescriptions, and whether 
they are supported by substantial evidence, are only reviewable under 
Sec.  825l(b), the conditions or prescriptions themselves are not the 
subject ``orders'' of the trial-type hearing. Rather, the subject of 
the hearing is the hearing requester's claim that the correct facts are 
different than the Department's factual basis for the conditions or 
prescriptions.
    In a trial-type hearing, the requester seeks a decision from the 
ALJ upholding its claim and thus is the proponent of the order and 
bears the burden of persuasion. See Schaffer v. Weast, 546 U.S. 49, 62 
(2005). The correctness of this position is strongly buttressed by the 
fact that the same conclusion was reached by all six independent ALJs 
who ruled on this issue prior to specifically assigning the burden of 
proof in the revised interim rules. No changes to the regulations are 
necessary.
Applicability of Rules on Reopener
    The Industry Commenters state that the revised interim rules 
should, but do not appear to, provide for a trial-type hearing or the 
submission of alternative conditions or fishway prescriptions 
(alternatives) when an agency imposes conditions and prescriptions 
during the licensing proceeding, reserves its right to impose 
additional or modify existing conditions or prescriptions during the 
license term, and then exercises that reserved right. The Departments 
disagree with the commenter's premise that the rules do not provide for 
a trial type-hearing or the submission of alternatives in such a 
situation.
    The revised interim rules provide that where a Department ``has 
notified or notifies FERC that it is reserving its authority to develop 
one or more conditions or prescriptions at a later time, the hearing 
and alternatives processes under this part for such conditions or 
prescription will be available if and when DOI exercises its 
authority.'' 7 CFR 1.601(c); 15 CFR 221.1(c); 43 CFR 45.1(c). 
Accordingly, if a Department exercises reserved authority during the 
license term to impose additional or modified conditions or 
prescriptions, the hearing and alternatives processes under this part 
for such conditions or prescriptions will be available.
    The Industry Commenters contend that where a Department imposes new 
or substantially modified conditions or prescriptions under reserved 
authority during the license term, the Department has an obligation 
under the license to justify these changes based on a change in facts. 
This comment pertains to the justification for a Department's exercise 
of its reserved authority, which is beyond the scope of this 
rulemaking, and therefore merits no further response.
Improvements to the Hearing Timeline
    The revised interim rules extended a few of the deadlines in the 
2005 rules, while not adopting some commenters' recommendations that 
the Departments significantly expand the hearing schedule. The Industry 
Commenters assert that these extensions do not go far enough because 
the compressed timeline set out in the rules imposes extreme hardship 
on the parties and forces parties to limit the scope of their 
challenges to agency conditions and prescriptions. They contend that 
EPAct does not require such a condensed schedule.
    Specifically, they reiterate two recommendations rejected in the 
revised interim rules: (1) Extending the deadline

[[Page 84391]]

for filing trial-type hearing requests and proposed alternative 
conditions or prescriptions from 30 to 45 days after a Department 
issues its preliminary conditions or prescriptions; see 7 CFR 
1.621(a)(2)(i), 43 CFR 45.21(a)(2)(i), and 50 CFR 221(a)(2)(i), and (2) 
allowing for consecutive rather than concurrent 90-day hearings when 
there are two unconsolidated hearing requests pending for the same 
conditions or prescriptions, thus delaying by 90 days the issuance of a 
decision by the ALJ for one of the hearings. The Departments continue 
to reject these recommendations for the reasons stated in the revised 
interim rules, 80 FR 17164-65, including that adding more time to the 
hearing process raises a significant potential for delay in license 
issuance, a result Congress expressly sought to avoid in section 241 of 
EPAct.
    The commenters also recommend a rule amendment to allow for 
supplementation of the exhibit and witness lists which must be filed 
with the hearing request. The Departments decline to make such an 
amendment because supplementation is already allowed. See 7 CFR 
1.642(b), 43 CFR 45.42(b), and 50 CFR 221.42(b).
    Another commenter recommendation is that the rules should mandate 
rather than merely allow consolidation of hearing requests with common 
issues of fact. In fact, the rules do require consolidation for all 
hearing requests with respect to any conditions from the same 
Department or any prescriptions from the same Department. See 7 CFR 
1.623(c)(1) and (2), 43 CFR 45.23(c)(1) and (2), and 50 CFR 
221.23(c)(1) and (2).
    Regarding all other situations, certainly consolidation may be 
appropriate to avoid inconsistent decisions, promote economy of 
administration, and serve the convenience of the parties. However, 
especially where the commonality is minimal, allowing the requests to 
be processed separately may be the most economical and streamlined 
approach, avoiding complicating one process with the numerous, 
intricate issues of the other process. Consequently, the Departments 
decline to accept the recommendation, opting to retain the flexibility 
to determine the best approach based on the unique circumstances of 
each situation. See 7 CFR 1.623(c)(3), 43 CFR 45.23(c)(3), and 50 CFR 
221.23(c)(3).
Definition of Disputed Issue of Material Fact
    In the preamble to the revised interim rules, the Departments 
offered guidance on the types of issues which constitute disputed 
issues of material fact and are thus appropriate for resolution in a 
trial-type hearing, stating that legal or policy issues are not issues 
of material fact. The Industry Commenters contend that the Departments 
should revisit their guidance, asserting that the Departments' notion 
of what is a legal or policy issue is overbroad.
    However, the focus of their comments is not on the relevant 
regulation or guidance, but on the positions taken by the Departments 
during previous trial-type hearings. They reference several instances 
in which ALJs disagreed with the Departments' litigation positions 
regarding what constitutes a disputed issue of material fact. The 
positions the Departments have taken in trial-type hearings are based 
on the specific facts and circumstances of the issues before the ALJ. 
The Departments' litigation positions are not the subject of this 
rulemaking; therefore, these comments do not necessitate a change to 
the regulations.
    The commenters refer the Departments to the Departments preamble 
statement in the revised interim rules that ```historical facts' such 
as whether fish were historically present above a dam `may be resolved 
based on available evidence and do not involve attempts to predict what 
may happen in the future.''' 80 FR 17178. The commenters assert that 
the ``Departments' attempt to distinguish between an `historical fact' 
and matters of `prediction' is a false dichotomy.'' The commenters 
reason:

    Whether a condition or prescription will, in practice, have the 
desired effect or achieve an agency's goals is a factual question, 
not a policy question. All conditions and prescriptions are attempts 
to achieve a future result, and thus have predictive elements. 
Parties often disagree with an agency whether its condition or 
prescription will achieve that result. An essential and fundamental 
element of the scientific method is prediction. . . . Scientific 
prediction is a tool for crafting environmental policies. Any 
disputed issues of material fact with regard to the science behind 
proposed conditions or prescriptions are appropriate for 
determination by the ALJ.

    The Departments do not agree that the distinction between 
historical facts and matters of prediction is a false dichotomy. As 
explained in the revised interim rules, only disputed issues of 
material fact are appropriate for resolution in a trial-type hearing.80 
FR 17177-17178. While the Departments agree that some predictive 
elements of a condition or prescription may represent disputed issues 
of material fact in a particular case, such as whether a prescription 
will result in the passage of fish, other predictive elements of a 
condition or prescription may represent legal, policy or non-material 
issues that are not appropriate for resolution in a trial-type hearing. 
The Departments continue to believe that only disputed issues of 
material fact are appropriate for determination by the ALJ.
    The Industry Commenters also contend that disputed issues with 
respect to alternatives considered and rejected by a Department are 
material facts that should be resolved by the ALJ. They assert that if 
a Department, in issuing a preliminary condition or prescription, 
considered and rejected other potential conditions or prescriptions, 
the scientific justification for why those options were rejected is 
material.
    This contention is responsive to the Departments' position in the 
revised interim rules that immaterial issues not appropriate for ALJ 
consideration include those that blur the distinction between the EPAct 
trial-type hearing process and the separate alternatives process 
created under new FPA section 33. The Departments' position and 
reasoning remain unchanged in this regard:

    Trial-type hearings are limited to resolving disputed issues of 
material fact relating to a Department's own preliminary condition 
or prescription. Where the hearing requester's purpose is to 
establish facts that may support an alternative proposed under the 
distinct section 33 process, but that do not otherwise affect the 
Department's ultimate decision whether to affirm, modify, or 
withdraw its preliminary prescription or condition, then the issue 
raised is not ``material'' to that condition or prescription.
    Such matters must be resolved by the relevant Department through 
the section 33 process, and the ALJ should not make findings that 
would preempt the Department's review.

80 FR 17178. Prohibition against Forum-shopping: (1) Venue selection, 
(2) ALJ selection.
    The Industry Commenters propose changes to the regulations based on 
the assumption that the Departments exert undue influence over the 
selection of a venue for the trial-type hearing and the presiding ALJ. 
The Departments disagree with this assumption and therefore the 
proposed changes are unnecessary.
    Regarding venue selection, they offer purported examples of undue 
influence in support of a suggested rule change requiring the ALJ to 
balance the convenience of the parties. The commenters point to the 
assignment of an ALJ in the Pacific Northwest for FERC Project No. 
2206, which involved a licensee based in Raleigh, North Carolina, with 
counsel in Birmingham, Alabama. However, that hearing was

[[Page 84392]]

scheduled to take place in Charlotte, North Carolina, and was settled 
before a hearing was held.
    The commenters also refer to the assignment of an ALJ in 
Sacramento, California, for FERC Project No. 2082, which involved a 
licensee based in Portland, Oregon, with counsel in Washington, DC 
However, the licensee withdrew a motion to hold the hearing in Portland 
after the overwhelming majority of the parties expressed to the ALJ a 
preference for a hearing in Sacramento during the prehearing 
conference. These examples do not demonstrate any undue influence.
    Further, the apparent inference that the venue is determined by the 
location of the ALJ's office is not correct. Nor is it determined 
solely by balancing the convenience of the parties, as implied by the 
commenters suggested amendment. As pointed out in the preamble to the 
revised interim rules:

the ALJ has discretion to manage hearing locations. As the ALJs have 
done in prior cases, the Departments expect that an ALJ will take 
into consideration factors such as convenience to the parties and to 
the ALJ, the location of witnesses, and the availability of adequate 
hearing facilities when determining the location of a hearing. 80 FR 
17170.

    The Departments conclude that no change in the rules is needed 
regarding hearing venue selection.
    Regarding the selection of an ALJ, the Industry Commenters assert 
that a Department ``should not be allowed to hand pick a Department ALJ 
or an ALJ with a track record favorable to the Department.'' They 
identify two potential remedial amendments: (1) Use a lottery system to 
select an ALJ, or (2) preferably, use FERC ALJs instead of Department 
ALJs under the assumption that FERC ALJs would be more neutral and have 
more subject matter expertise.
    The Departments disagree with the unsupported assumptions that they 
are exercising undue influence over the selection of ALJs or that a 
Department would consider ``hand picking'' an ALJ to obtain an 
advantage. In accordance with the mandate of 5 U.S.C. 3105, 
administrative law judges are assigned to cases in rotation so far as 
practicable, with due consideration given to the demands of existing 
caseloads and the case to be assigned.
    The Departments also dispute the assertion that FERC ALJs are 
``more neutral'' or have more germane expertise. In fact, the 
independence of all ALJs is protected and impartiality fostered by laws 
which, among other things, exempt them from performance ratings, 
evaluation, and bonuses (see 5 U.S.C. 4301(2)(D), 5 CFR 930.206); vest 
the Office of Personnel Management rather than the employing agency 
with authority over the ALJs' compensation and tenure (see 5 U.S.C. 
5372, 5 CFR 930.201-930.211); and provide that most disciplinary 
actions against ALJs may be taken only for good cause established and 
determined by the Merit Systems Protection Board on the record after 
opportunity for a hearing (see 5 U.S.C. 7521). As for expertise, the 
Departments' ALJs have considerable experience and expertise evaluating 
natural resource issues similar to those which typically underlie 
imposition of a condition or prescription.
    Furthermore, the use of FERC ALJs would require the agreement of 
FERC and possibly a statutory amendment. In sum, the Departments 
disagree with the premises of the comment regarding the selection of 
ALJs and conclude that no related change in the rules is necessary or 
desirable.
Stay of Case for Settlement
    The Industry Commenters also assert that the revised interim rules 
should permit settlement negotiations not only for 120 days before a 
case is referred to an Administrative Law Judge (ALJ)--as provided in 
the revised interim rules--but also during the period after the ALJ has 
issued the decision, yet before issuance of the Department's modified 
conditions. The Industry Commenters add that settlement discussions 
should not be prohibited under ex parte principles, considering that 
settlements ought to be encouraged at all points in a hearing process.
    Notwithstanding the Industry Commenters' assertion, the Industry 
Commenters also offered support for the new 120-day stay period for 
purposes of facilitating settlement. We agree that both the length of 
this period and its placement at the pre-referral stage could lead to 
more settlements and avoid the more formal stages of the hearing 
process. We also agree with the Industry Commenters that settlements 
should be permitted whenever reached by parties. Yet here we note that 
the availability of a stay period is not the only mechanism or 
incentive by which settlements can be facilitated, and that parties are 
at liberty to conduct robust and meaningful settlement discussions 
concurrently with the ongoing hearing process, at any stage in such 
process. Further, given that Congress established in EPAct a short 90-
day time limit for completion of the trial-type hearing to avoid the 
potential for substantial delay in license issuance, it would be 
unworkable to provide for any additional amount of time beyond the 
revised interim rules' 120 day-period for a stay in proceedings in 
which to pursue a settlement.

Other Minor Modifications

1. Discovery
    In the preamble to the revised interim rules, the Departments 
declined to amend the discovery provisions for the trial-type hearing 
in response to comments that the rules needlessly limit discovery by 
requiring authorization from the ALJ or agreement of the parties. The 
commenters recommended that the Departments adopt the approach of the 
FERC regulations at 18 CFR 385.402(a) and 385.403(a), which authorize 
discovery to begin without the need for ALJ involvement unless there 
are discovery disputes. Industry Commenters have reiterated these 
comments, further arguing that section 241 of EPAct guarantees the 
availability of discovery, not that such discovery must be first agreed 
to by the parties or authorized by the ALJ.
    The Departments continue to disagree that the regulations should be 
changed for the reasons detailed in the preamble to the revised interim 
rules. See 80 FR 17168-69. In summary, the Departments' rules do allow 
for rapid initiation of discovery and the criteria for allowing 
discovery are fairly similar to those utilized by FERC and federal 
courts. More importantly, discovery limits are necessary in this 
specialized trial-type hearing context to fit within the expedited time 
frame mandated by section 241 of EPAct, and wide-ranging discovery 
should not be necessary, given the typical documentation generated 
during the license proceeding, including the record supporting the 
conditions or prescriptions.
    Also, the fact that section 241 provides for ``the opportunity to 
undertake discovery'' does not guarantee unlimited discovery.

    It is fundamental that the scope of discovery is not limitless 
and is restricted by the concepts of relevancy. United States Lines 
(S.A.) Inc.--Petition for Declaratory Order Re: The Brazil 
Agreements, 24 S.R.R. 1387, 1388 (ALJ 1988). See also 4 James W. 
Moore et al., Moore's Federal Practice, P 26.56[1], at 26-96 (2d ed. 
1993).

American President Lines, LTD v Cyprus Mines Corp., 1994 FMC LEXIS 33, 
*31-32 (Jan. 31, 1994); see also Fed. R. Civ. P. 26(d)(1). Further, as 
noted by the Supreme Court, even the liberal discovery rules of the 
Federal Rules of Civil Procedures,

are subject to the injunction of Rule 1 that they ``be construed to 
secure the just, speedy, and inexpensive determination of every 
action.'' To this end, the requirements of Rule 26(d)(1) that the 
material sought in

[[Page 84393]]

discovery be ``relevant'' should firmly be applied, and the . . . 
courts should not neglect their power to restrict discovery where 
``justice requires [protection for] a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense . . 
. . '' Rule 26(c). With this authority at hand, judges should not 
hesitate to exercise appropriate control over the discovery process.

Herbert v. Lands, 441 U.S. 153, 177 (1979) (emphasis in original).
    The revised interim rules reasonably incorporate similar standards 
for discovery, see 7 CFR 1.641(b), 43 CFR 45.41(b), and 50 CFR 
221.41(b), to be applied by the administrative law judges to secure the 
just, speedy, and inexpensive determination of each case. The Industry 
Commenters have not addressed how application of those standards would 
unduly limit discovery. Because the Departments conclude that the 
standards are fair and reasonable, no change in the discovery 
provisions is warranted.
2. Page Limitations
    In preamble to the revised interim rules, the Departments declined 
to extend the page limits for hearing requests in response to comments 
requesting that the limit for describing each issue of material fact be 
increased from two pages to five pages and that the limit for each 
witness identification be increased from one to three pages. The 
Departments did conclude that the required list of specific citations 
to supporting information and the list of exhibits need not be included 
in the page restrictions and amended the rules accordingly. See 7 CFR 
1.621(d), 43 CFR 45.21(d), and 50 CFR 221.21(d).
    The Industry Commenters renew the same requests without offering 
any new reasons why the requests should be granted. The Departments 
continue to believe that the page limits are generally appropriate and 
provide sufficient space for parties to identify disputed issues, 
particularly in light of the expedited nature of the proceeding. The 
Departments further note that they are bound by the same page limits in 
submitting an answer. See 7 CFR 1.622, 43 CFR 45.22, and 50 CFR 221.22. 
Therefore, for the reasons stated in the preamble to the revised 
interim rules, the Departments decline to amend the page limitations.
3. Electronic Filing
    In the preamble to the revised interim rules, the Departments 
rejected commenter suggestions to revise the regulations to allow 
parties to file documents electronically, using email or FERC's eFiling 
system. The Departments did agree that, in many circumstances, the 
electronic transmission of documents is a preferable means of providing 
documents to another party and revised the rules to allow for 
electronic service of documents on a party who consents to such 
service. However, the Departments noted that ALJ offices do not 
currently have the capacity or resources to accept electronically and 
print off the large volume of documents typically filed in connection 
with a trial-type hearing.
    The Industry Commenters again suggest that electronic filing should 
be allowed at the ALJ's discretion, citing the example of a Coast Guard 
ALJ allowing filing by email pursuant to the agreement of the parties 
at a prehearing conference addressing a trial-type hearing request. For 
the reasons discussed in the revised interim rules, the Departments 
decline to adopt regulations that permit filing by email with the ALJ 
offices. 80 FR 17161-17612. Email is not a substitute for a dedicated 
electronic filing system in which administrative, information 
technology, and policy issues such as document management, storage, 
security, and access can be systematically addressed. Because none of 
the ALJ Offices have a dedicated system, the Departments will not 
authorize filing by electronic means.
Equal Consideration Statements
    The Industry Commenters request that the Departments revisit their 
interpretation of section 33 of the Federal Power Act (FPA section 33) 
as described in the revised interim rules. 80 FR 17176-17177. In the 
revised interim rules, the Departments interpreted FPA section 33 to 
require a Department to prepare an equal consideration statement only 
when a party has submitted an alternative condition or prescription.
    The commenters state that the Departments' interpretation is 
contrary to the plain language of section 33(a)(4) and (b)(4), which 
they suggest should be read to require that a Department prepare an 
equal consideration statement whenever a Department submits any 
condition or prescription, regardless of whether a party submits an 
alternative. The commenters assert that the Departments' contextual 
analysis of FPA section 33, as described in the revised interim rules, 
is flawed because FPA section 33 unambiguously supports the commenters' 
interpretation. The Departments disagree with this comment.
    As the Departments explained in the revised interim rules, the 
requirement that the Departments prepare an equal consideration 
statement must be read in the context of the overall statutory scheme. 
80 FR 17177. Section 33 of the FPA is titled ``Alternative Conditions 
and Prescriptions,'' and it sets forth a series of sequential steps for 
considering an alternative and reaching a final determination. Section 
33(a)(l) permits any party to a hydropower license proceeding to 
propose an alternative condition. Under section 33(a)(2), the Secretary 
must accept an alternative if it ``(A) provides for the adequate 
protection and utilization of the reservation; and (B) will either, as 
compared to the condition initially [deemed necessary] by the 
Secretary[,] (i) cost significantly less to implement; or (ii) result 
in improved operation of the project works for electricity 
production.'' 16 U.S.C. 823d(a)(2). When evaluating an alternative, 
section 33(a)(3) directs the Secretary to consider evidence otherwise 
available concerning ``the implementation costs or operational impacts 
for electricity production of a proposed alternative.'' The Departments 
continue to believe that a contextual analysis of FPA section 33 
demonstrates that section 33 requires the preparation of an equal 
consideration statement only when a party submits an alternative 
condition or prescription. No changes to the regulations are needed in 
response to the comment.
    The commenters also disagree with the Departments' perspective, as 
explained in the revised interim rules, that in the absence of an 
alternative the Departments will generally lack sufficient information 
to provide a meaningful equal consideration analysis of the factors 
required by FPA section 33(a)(4) and (b)(4). The commenters state that 
ample information is available to the Departments in the licensing 
application at the time the Departments adopt a condition or 
prescription, regardless of whether any alternatives were proposed 
under FPA section 33. The commenters observe that ``[w]ithout this 
information, the Departments presumably would not have sufficient 
information to draft meaningful preliminary conditions and 
prescriptions.''
    The Departments note FPA sections 4(e) and 18, which authorize the 
Departments to issue conditions and prescriptions, do not require the 
Departments to consider certain types of information otherwise required 
by FPA section 33 when evaluating alternatives, such as ``the 
implementation costs or operational impacts for electricity production 
of a proposed alternative.'' 16 U.S.C. 823d(a)(3). Accordingly, the

[[Page 84394]]

Departments generally lack related information until such time that the 
Departments evaluate an alternative and prepare an equal consideration 
statement, which occurs after the Departments prepare preliminary 
conditions and prescriptions.
    When preparing an equal consideration statement, the Departments 
must evaluate ``such information as may be available to the Secretary, 
including information voluntarily provided in a timely manner by the 
applicant and other parties.'' 16 U.S.C. 823d(a)(4) and (b)(4). The 
revised interim rules require a proponent of an alternative to submit 
information necessary to evaluate the alternative and prepare an equal 
consideration statement pursuant to FPA section 33. While such 
information may or may not be available in licensing applications 
prepared for FERC, the Departments will generally lack sufficient 
information to provide a meaningful equal consideration pursuant to FPA 
section 33 until such time as the proponent of an alternative submits 
the information with an explanation of how the alternative meets the 
criteria set forth in FPA section 33. No changes to the regulations are 
needed in response to the comment.
Hearings on Modified Conditions and Prescriptions
    Commenters request that the Departments address perceived loopholes 
in the revised interim rules that would allow the Departments to avoid 
trial-type hearings in three scenarios. The commenters state that the 
interim final rules were silent as to whether a right to a trial-type 
hearing exists in situations where (1) the Department issues no 
preliminary conditions or prescriptions, but reserves the right to 
submit mandatory conditions or prescriptions later in the licensing 
process; (2) the Department adds conditions or prescriptions that were 
not included with its preliminary conditions or prescriptions; or (3) 
the Department's modified conditions or prescriptions include factual 
issues or justifications that were not presented with its preliminary 
conditions or prescriptions. The commenters write that the revised 
interim rules addresses the second scenario by handling it on a case-
by-case basis, but do not address the first and third scenarios. The 
Departments believe that the revised interim rules address all three of 
these scenarios and no changes to the regulations are needed. The 
Departments again note that in several instances, the commenters 
discuss specific licensing proceedings. As stated above, such 
proceedings are not the subject of the rulemaking and therefore, the 
comments about them do not necessitate a change to the regulations.
    The revised interim rules address the commenters' first scenario, 
in which a Department issues no preliminary conditions or 
prescriptions, but reserves a right to submit conditions and 
prescriptions later in the licensing process. The Departments received 
comments on the interim final rules that requested the availability of 
a trial-type hearing when a Department reserves its authority to 
include conditions or prescriptions in a license. The Department 
responded to this comment by stating that ``under EPAct, it is only 
when a Department affirmatively exercises its discretion to mandate a 
condition or prescription that the hearing and alternatives processes 
are triggered. Allowing for trial-type hearings and alternatives when 
the agencies have not exercised this authority would be both 
inconsistent with the legislation and an inefficient use of the 
Departments' resources. Consequently, these final rules continue to 
provide that the hearing and alternatives processes are available only 
when a Department submits a preliminary condition or prescription to 
FERC, either during the initial licensing proceeding or subsequently 
through the exercise of reserved authority.'' 80 FR 17159. Thus, the 
revised interim rules addressed the commenters' first scenario by 
providing a right to a trial-type hearing only when a Department 
submits a preliminary condition or prescription to FERC during the 
initial licensing proceeding, or when a Department submits a condition 
or prescription to FERC through the exercise of reserved authority 
after FERC has issued a license.
    In discussing their first scenario, the commenters' language 
suggests that they may not be concerned about a Department's 
reservation of authority to submit conditions or prescriptions, but 
instead may actually be concerned with the availability of a trial-type 
hearing when a Department issues no preliminary conditions or 
prescriptions, but submits conditions and prescriptions outside of the 
timeframe contemplated in FERC's regulations for filing preliminary 
conditions or prescriptions, which is ``no later than 60 days after the 
notice of acceptance and ready for environmental analysis.'' 18 CFR 
5.23(a). See also 18 CFR 4.34(b). The Departments note that in this 
scenario, the Departments would not be exercising reserved authority to 
submit preliminary conditions or prescriptions because, as long as a 
licensing proceeding is pending, a Department has authority to submit 
conditions and prescriptions without the need to ``reserve'' its 
authority. A reservation of authority is only necessary for submission 
of conditions or prescriptions after FERC has issued a license.
    The revised interim rules, when addressing whether a trial-type 
hearing should be held to address disputed issues of fact at the 
preliminary or modified condition/prescription stage, impliedly 
addressed the scenario where the Departments submit conditions and 
prescriptions outside of the timeframe for doing so in FERC's 
regulations. The Departments explained the circumstances under which a 
Department may submit a preliminary condition or prescription later in 
the licensing process and that the availability of the trial-type 
hearing process would be decided on a case-by-case basis: 
``[E]xceptional circumstances may arise where facts not in existence 
and not anticipated at an earlier stage necessitate a new preliminary 
condition or prescription. This circumstance would be handled on a 
case-by-case basis, in coordination with FERC as necessary.'' 80 FR 
17164. The Departments have continued to apply this rationale and 
process in the final rules.
    With respect to the third scenario, the Departments received 
similar comments on the interim final rule that requested ``the 
regulations provide for trial type hearings at the modified stage if 
the modifications are based on new facts that did not exist or were not 
anticipated at the preliminary stage, or if the agency submits an 
entirely new condition or prescription at the modified stage.'' 80 FR 
17163. The Departments responded by stating that the revised interim 
rules ``continue the approach taken in the interim regulations of 
scheduling the trial-type hearing process immediately following the 
issuance of preliminary conditions and prescription.'' 80 FR 17164. The 
Departments reasoned that this approach allows trial-type hearings to 
occur during FERC's licensing time frame as required by Congress, that 
it promotes efficiency, and that providing for trial-type hearings at 
the modified stage is not a reasonable or efficient use of resources. 
80 FR 17163-17164. The Departments maintain this rationale in the final 
rules.
    Industry commenters state that any final rules must provide a 
remedy for licensees who object to new conditions and prescriptions 
imposed at the modified stage, or when the Department's modified 
conditions or

[[Page 84395]]

prescriptions include factual issues or justifications that were not 
presented with its preliminary conditions or prescriptions. The 
commenters also state that the final rules must provide a standard for 
when a modified condition or prescription would trigger the right to a 
trial-type hearing. The Departments disagree with these comments. For 
the reasons discussed above and in the revised interim rules, the 
Departments will continue their approach of scheduling the trial-type 
hearing process immediately following the issuance of preliminary 
conditions and prescriptions. The Departments again acknowledge ``that 
exceptional circumstances may arise where facts not in existence and 
not anticipated at an earlier stage necessitate a new preliminary 
condition or prescription. This circumstance would be handled on a 
case-by-case basis, in coordination with FERC as necessary.'' 80 FR 
17164. No changes to the regulations are needed in response to these 
comments.
Submissions and Acceptance of Alternatives
    The Industry Commenters believe the Departments are not complying 
with the requirements of FPA section 33 to accept a proposed 
alternative if the alternative: ``(A) provides for the adequate 
protection and utilization of the reservation; and (B) will either, as 
compared to the condition initially proposed by the Secretary--(i) cost 
significantly less to implement; or (ii) result in improved operation 
of the project works for electricity production.'' 16 U.S.C. 823(a)(2). 
The Departments disagree with this comment. Notwithstanding this 
comment, the Industry Commenters do not provide proposed revisions, and 
the Departments do not believe any changes to the regulations are 
necessary.
    The Industry Commenters also ``commend'' the revised interim rules 
for adding a new change to allow for a revised alternative within 20 
days of an ALJ decision, but express the view that this time period is 
still ``unnecessarily short,'' given an ALJ opinion's typical length 
and underlying complexity. The commenters compare this timeframe to the 
60-day timeframe in which the Departments may revise conditions and 
prescriptions, and suggest that the deadline for a revised alternative 
be, similarly, 60 days.
    In response, the Departments note that the FPA specifically 
provides that the Departments will evaluate alternatives ``based on 
such information as may be available to the [Departments], including 
information voluntarily provided in a timely manner by the applicant 
and others.'' 16 U.S.C. 823d(a)(4), (b)(4) (emphasis added). To achieve 
a proper balance between the Congressional mandate to consider evidence 
otherwise available to DOI, including information timely submitted, and 
Congressional intent to avoid delays in the FERC licensing process, the 
Departments established a 20-day period for submittal of revised 
alternatives.
    Exelon submitted comments concerning 43 CFR 45.74(c), which 
generally provides that DOI will consider information regarding 
alternatives provided by the deadline for filing comments on FERC's 
National Environmental Policy Act (NEPA) document. This provision 
states that ``[f]or purposes of paragraphs (a) and (b) of this section, 
DOI will consider evidence and supporting material provided by any 
license party by the deadline for filing comments on FERC's NEPA 
document under 18 CFR 5.25(c).'' 43 CFR 45.74(c). Paragraph (a) in 43 
CFR 45.74 specifies the evidence and supporting material DOI must 
consider when deciding whether to accept an alternative. Paragraph (b) 
in 43 CFR 45.74 identifies the criteria DOI must use to evaluate 
whether to accept an alternative. Paragraph (c) in 18 CFR 5.25 
identifies which FERC hydropower license applications require FERC to 
issue a draft NEPA document. As discussed below in more detail, the 
provision's scope is limited to license applications under FERC's 
Integrated License Application Process, as opposed to proposed 
amendments to existing licenses.
    Exelon interpreted 43 CFR 45.74(c) as establishing a strict 
deadline for submittal of information regarding a proposed alternative. 
The commenter noted that the subsequent finalization of any conditions 
or prescriptions may occur much later than this deadline, sometimes 
because of pending applications for water quality certifications 
(required under section 401 of the Clean Water Act). Exelon expressed 
concern that a potentially substantial time gap between the NEPA 
comment deadline and finalization of a prescription or condition could 
result in the exclusion of the best and most current scientific 
research to inform DOI's evaluation of alternative prescriptions and 
conditions.
    DOI does not believe that 43 CFR 45.74(c) will result in the 
exclusion of the best and most current scientific research to inform 
the Department's evaluation of alternative conditions and fishway 
prescriptions. DOI believes that considering information regarding 
alternatives submitted by any license party by the close of the FERC 
NEPA comment period will provide the Departments with all reasonably 
available information to evaluate an alternative condition or fishway 
prescription in accordance with Section 33 of the Federal Power Act.
    Furthermore, as noted in the interim final rule, ``[g]iven the 
complexity of the issues and the volume of material to be analyzed in 
the typical case, the Departments cannot reasonably be expected to 
continue to accept and incorporate new information right up until the 
FERC filing deadline for modified conditions and prescriptions.'' 80 FR 
17156, 17176. Nevertheless, the language of 43 CFR 45.74(c) only sets 
forth the requirement that DOI must consider pre-deadline submittals, 
and thus it does not preclude DOI from considering, in exceptional 
circumstances, evidence and supporting material submitted after the 
deadline.
    It is not unusual for a license applicant to have authorization 
petitions pending at the time a Department considers an alternative. 
These types of pending petitions include, but are not limited to, 
applications for a Clean Water Act section 401 water quality 
certification.
    As a practical matter, the parties and stakeholders share an 
interest in the timely submittal of evidence and supporting materials 
in order to ensure a robust alternatives process and avoid delays 
during FERC's licensing proceedings. The timely submittal of evidence 
under 43 CFR 45.74(c) also reflects a statutory process that prescribes 
specific timeframes. The EPAct avoids delay by requiring the hearing 
process to be completed in a 90-day timeframe and ``within the time 
frame established by [FERC] for each license proceeding.'' As noted in 
the revised interim rules, the hearing process was crafted to work 
within FERC's licensing timeframes. 80 FR 17156, 17163 (Mar. 31, 2015). 
The process for submitting, evaluating, and adopting alternatives was 
similarly drafted with the timeframes in mind.
    Under FERC's rules, modified conditions and prescriptions, 
including any adopted alternatives, must be filed within 60 days after 
the close of FERC's NEPA comment period. 18 CFR 5.25(d). The timely 
submission of information under 43 CFR 45.74(c) is necessary so DOI has 
adequate time to consider the information and file modified conditions 
and prescriptions 60 days after the close of FERC's NEPA comment 
period.
    Additionally, the FPA specifically provides that the Departments 
will evaluate alternatives ``based on such

[[Page 84396]]

information as may be available to the [Departments], including 
information voluntarily provided in a timely manner by the applicant 
and others.'' 16 U.S.C. 823d(a)(4), (b)(4) (emphasis added). DOI 
believes that 43 CFR 45.74(c) achieves the proper balance between the 
Congressional mandate to consider evidence otherwise available to DOI, 
including information timely submitted, and Congressional intent to 
avoid delays in the FERC licensing process.
    Exelon also expressed concern that in instances where DOI exercises 
its reserved authority to include a condition or prescription in a 
license that FERC has previously issued, the language in 43 CFR 
45.74(c), that the DOI ``will consider'' information submitted prior to 
the NEPA comment deadline, could potentially preclude the introduction 
of additional relevant and supporting information that was not 
submitted during the license-application-related NEPA process. As 
discussed above, the language of 43 CFR 45.74(c) only sets forth the 
requirement that DOI must consider pre-deadline submittals. Thus, it 
does not preclude DOI from considering evidence and supporting material 
submitted after the deadline in cases where FERC has issued a license 
and a Department exercises reserved authority. Therefore, 
notwithstanding Exelon's concern, paragraph (c) of 43 CFR 45.74 does 
not preclude the introduction of relevant information that would 
support a proposed alternative condition or prescription after DOI 
exercises its reserved authority to include a condition or fishway 
prescription in a FERC license.

VI. Consultation With FERC

    Pursuant to EPAct's requirement that the agencies promulgate rules 
implementing EPAct section 241 ``in consultation with the Federal 
Energy Regulatory Commission,'' the agencies have consulted with FERC 
regarding the content of the revised interim rules. After considering 
post-promulgation comments, no changes were made to the revised interim 
final regulations in the final rules.

VII. Conclusion

    These final rules have been determined to be not significant for 
purposes of Executive Order 12866.
    OMB has reviewed the information collection in these rules and 
approved an extension without change of a currently approved collection 
under OMB control number 1094-0001. This approval expires November 30, 
2018.
    The Departments have reviewed the comments received in response to 
the revised interim rules and have determined that no change to the 
rules is necessary.
    Accordingly, the interim rules amending 6 CFR part 1, 43 CFR part 
45, and 50 CFR part 221, which were published at 80 FR 17155 on March 
31, 2015, are adopted as final without change.

    Dated: October 6, 2016.
Robert F. Bonnie,
Undersecretary--Natural Resources and Environment, U.S. Department of 
Agriculture.
    Dated: September 22, 2016.
Kristen J. Sarri,
Principal Deputy Assistant Secretary--Policy, Management and Budget, 
U.S. Department of the Interior.
    Dated: October 31, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
U.S. Department of Commerce.
[FR Doc. 2016-28063 Filed 11-22-16; 8:45 am]
 BILLING CODE 3411-15-P; 4310-79-P; 3510-22-P
84389

Rules and Regulations Federal Register
Vol. 81, No. 226

Wednesday, November 23, 2016

This section of the FEDERAL REGISTER regulations that have been in place since Departments requested public comment
contains regulatory documents having general the revised interim rules were published on additional ways the rules could be
applicability and legal effect, most of which on March 31, 2015, and took effect on improved.
are keyed to and codified in the Code of April 30, 2015. At the time of The Departments have reviewed the
Federal Regulations, which is published under publication of the revised interim rules, public comments received on the
50 titles pursuant to 44 U.S.C. 1510.
the Departments also requested public revised interim rules, and are providing
The Code of Federal Regulations is sold by comments on additional ways the rules responses to the public comments and
the Superintendent of Documents. Prices of could be improved. The Departments further analysis and clarification. The
new books are listed in the first FEDERAL now respond to the public comments Departments have determined that no
REGISTER issue of each week. received on the revised interim rules by changes to existing regulations are
providing analysis and clarifications in warranted in the Final Rules.
the preamble. The Departments have
DEPARTMENT OF AGRICULTURE II. Background
determined that no revisions to existing
regulations are warranted at this time. A. Interim Final Rules
Office of the Secretary DATES: Effective November 23, 2016. On November 17, 2005, at 70 FR
FOR FURTHER INFORMATION CONTACT: 69804, the Departments jointly
7 CFR Part 1
Mona Koerner, Lands and Realty published interim final rules
DEPARTMENT OF THE INTERIOR Management, Forest Service, U.S. implementing section 241 of the Energy
Department of Agriculture, 202–205– Policy Act of 2005 (EPAct), Public Law
Office of the Secretary 0880; John Rudolph, Solicitor’s Office, 109–58. Section 241 of EPAct amended
Department of the Interior, 202–208– FPA sections 4(e) and 18, 16 U.S.C.
43 CFR Part 45 3553; or Melanie Harris, Office of 797(e), 811, to provide that any party to
Habitat Conservation, National Marine a license proceeding before FERC is
DEPARTMENT OF COMMERCE Fisheries Service, 301–427–8636. entitled to a determination on the
Persons who use a telecommunications record, after opportunity for an agency
National Oceanic and Atmospheric device for the deaf (TDD) may call the trial-type hearing of no more than 90
Administration Federal Information Relay Service days, of any disputed issues of material
(FIRS) at 800–877–8339. fact with respect to mandatory
50 CFR Part 221 SUPPLEMENTARY INFORMATION: conditions or prescriptions developed
by one or more of the three Departments
I. Executive Summary
[Docket No. 080220223–6961–03] for inclusion in a hydropower license.
The Departments of Agriculture, the EPAct section 241 also added a new
RINs 0596–AC42, 1090–AA91, and 0648– Interior, and Commerce (the
AU01
FPA section 33, 16 U.S.C. 823d,
Departments) are issuing final rules to allowing any party to the license
Resource Agency Hearings and implement section 241 of the Energy proceeding to propose an alternative
Alternatives Development Procedures Policy Act of 2005. Energy Policy Act of condition or prescription, and
in Hydropower Licenses 2005, 109 Public Law 58, 119 Stat. 594, specifying the consideration that the
674, 109 Public Law 58, 2005. Section Departments must give to such
AGENCY: Office of the Secretary, 241 created additional procedures alternatives.
Agriculture; Office of the Secretary, applicable to conditions or prescriptions The interim final rules were made
Interior; National Oceanic and that a Department develops for immediately effective, but a 60-day
Atmospheric Administration, inclusion in a hydropower license comment period was provided for the
Commerce. issued by Federal Energy Regulatory public to suggest changes to the interim
ACTION: Final rules; response to Commission (FERC). Specifically, regulations. The Departments stated in
comments. section 241 amended sections 4 and 18 the preamble that based on the
of the Federal Power Act (FPA) to comments received and the initial
SUMMARY: The Departments of provide for trial-type hearings on results of implementation, they would
Agriculture, the Interior, and Commerce disputed issues of material fact with consider publication of revised final
are jointly issuing final rules for respect to a Department’s conditions or rules.
procedures for expedited trial-type prescriptions; and it added a new
hearings and the consideration of section 33 to the FPA, allowing parties B. Request for Additional Comment
alternative conditions and fishway to propose alternative conditions and Period
prescriptions required by the Energy prescriptions. In July 2009, the Hydropower Reform
Policy Act of 2005. The hearings are In 2015, the Departments promulgated Coalition (HRC) and the National
conducted to expeditiously resolve three substantially similar revised Hydropower Association (NHA) sent a
mstockstill on DSK3G9T082PROD with RULES

disputed issues of material fact with rules—one for each agency—with a joint letter to the three Departments,
respect to conditions or prescriptions common preamble. The revised interim asking that an additional 60-day
developed for inclusion in a rules became effective on April 30, comment period be provided before
hydropower license issued by the 2015, so that interested parties and the publication of final rules. The
Federal Energy Regulatory Commission agencies more immediately could avail organizations noted that they and their
under the Federal Power Act. The final themselves of the improvements made members had gained extensive
rules make no changes to existing to the procedures. At the same time, the experience with the interim final rules

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for filing trial-type hearing requests and thus appropriate for resolution in a trial- condition or prescription may represent
proposed alternative conditions or type hearing, stating that legal or policy legal, policy or non-material issues that
prescriptions from 30 to 45 days after a issues are not issues of material fact. are not appropriate for resolution in a
Department issues its preliminary The Industry Commenters contend that trial-type hearing. The Departments
conditions or prescriptions; see 7 CFR the Departments should revisit their continue to believe that only disputed
1.621(a)(2)(i), 43 CFR 45.21(a)(2)(i), and guidance, asserting that the issues of material fact are appropriate
50 CFR 221(a)(2)(i), and (2) allowing for Departments’ notion of what is a legal for determination by the ALJ.
consecutive rather than concurrent 90- or policy issue is overbroad. The Industry Commenters also
day hearings when there are two However, the focus of their comments contend that disputed issues with
unconsolidated hearing requests is not on the relevant regulation or respect to alternatives considered and
pending for the same conditions or guidance, but on the positions taken by rejected by a Department are material
prescriptions, thus delaying by 90 days the Departments during previous trial- facts that should be resolved by the ALJ.
the issuance of a decision by the ALJ for type hearings. They reference several They assert that if a Department, in
one of the hearings. The Departments instances in which ALJs disagreed with issuing a preliminary condition or
continue to reject these the Departments’ litigation positions prescription, considered and rejected
recommendations for the reasons stated regarding what constitutes a disputed other potential conditions or
in the revised interim rules, 80 FR issue of material fact. The positions the prescriptions, the scientific justification
17164–65, including that adding more Departments have taken in trial-type for why those options were rejected is
time to the hearing process raises a hearings are based on the specific facts material.
significant potential for delay in license and circumstances of the issues before This contention is responsive to the
issuance, a result Congress expressly the ALJ. The Departments’ litigation Departments’ position in the revised
sought to avoid in section 241 of EPAct. positions are not the subject of this interim rules that immaterial issues not
The commenters also recommend a rulemaking; therefore, these comments appropriate for ALJ consideration
rule amendment to allow for do not necessitate a change to the include those that blur the distinction
supplementation of the exhibit and regulations. between the EPAct trial-type hearing
witness lists which must be filed with The commenters refer the process and the separate alternatives
the hearing request. The Departments Departments to the Departments process created under new FPA section
decline to make such an amendment preamble statement in the revised 33. The Departments’ position and
because supplementation is already interim rules that ‘‘‘historical facts’ such reasoning remain unchanged in this
allowed. See 7 CFR 1.642(b), 43 CFR as whether fish were historically present regard:
45.42(b), and 50 CFR 221.42(b). above a dam ‘may be resolved based on Trial-type hearings are limited to resolving
Another commenter recommendation available evidence and do not involve disputed issues of material fact relating to a
is that the rules should mandate rather Department’s own preliminary condition or
attempts to predict what may happen in
than merely allow consolidation of prescription. Where the hearing requester’s
the future.’’’ 80 FR 17178. The
hearing requests with common issues of purpose is to establish facts that may support
commenters assert that the an alternative proposed under the distinct
fact. In fact, the rules do require
‘‘Departments’ attempt to distinguish section 33 process, but that do not otherwise
consolidation for all hearing requests
between an ‘historical fact’ and matters affect the Department’s ultimate decision
with respect to any conditions from the
of ‘prediction’ is a false dichotomy.’’ whether to affirm, modify, or withdraw its
same Department or any prescriptions preliminary prescription or condition, then
The commenters reason:
from the same Department. See 7 CFR the issue raised is not ‘‘material’’ to that
1.623(c)(1) and (2), 43 CFR 45.23(c)(1) Whether a condition or prescription will, condition or prescription.
and (2), and 50 CFR 221.23(c)(1) and (2). in practice, have the desired effect or achieve Such matters must be resolved by the
Regarding all other situations, an agency’s goals is a factual question, not a relevant Department through the section 33
certainly consolidation may be policy question. All conditions and process, and the ALJ should not make
prescriptions are attempts to achieve a future findings that would preempt the
appropriate to avoid inconsistent result, and thus have predictive elements.
decisions, promote economy of Department’s review.
Parties often disagree with an agency
administration, and serve the whether its condition or prescription will 80 FR 17178. Prohibition against Forum-
convenience of the parties. However, achieve that result. An essential and shopping: (1) Venue selection, (2) ALJ
especially where the commonality is fundamental element of the scientific method selection.
minimal, allowing the requests to be is prediction. . . . Scientific prediction is a The Industry Commenters propose
processed separately may be the most tool for crafting environmental policies. Any changes to the regulations based on the
economical and streamlined approach, disputed issues of material fact with regard assumption that the Departments exert
avoiding complicating one process with to the science behind proposed conditions or undue influence over the selection of a
prescriptions are appropriate for venue for the trial-type hearing and the
the numerous, intricate issues of the determination by the ALJ.
other process. Consequently, the presiding ALJ. The Departments
Departments decline to accept the The Departments do not agree that the disagree with this assumption and
recommendation, opting to retain the distinction between historical facts and therefore the proposed changes are
flexibility to determine the best matters of prediction is a false unnecessary.
approach based on the unique dichotomy. As explained in the revised Regarding venue selection, they offer
circumstances of each situation. See 7 interim rules, only disputed issues of purported examples of undue influence
CFR 1.623(c)(3), 43 CFR 45.23(c)(3), and material fact are appropriate for in support of a suggested rule change
50 CFR 221.23(c)(3). resolution in a trial-type hearing.80 FR requiring the ALJ to balance the
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17177–17178. While the Departments convenience of the parties. The
Definition of Disputed Issue of Material agree that some predictive elements of commenters point to the assignment of
Fact a condition or prescription may an ALJ in the Pacific Northwest for
In the preamble to the revised interim represent disputed issues of material FERC Project No. 2206, which involved
rules, the Departments offered guidance fact in a particular case, such as whether a licensee based in Raleigh, North
on the types of issues which constitute a prescription will result in the passage Carolina, with counsel in Birmingham,
disputed issues of material fact and are of fish, other predictive elements of a Alabama. However, that hearing was

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scheduled to take place in Charlotte, rather than the employing agency with a stay in proceedings in which to pursue
North Carolina, and was settled before authority over the ALJs’ compensation a settlement.
a hearing was held. and tenure (see 5 U.S.C. 5372, 5 CFR
The commenters also refer to the Other Minor Modifications
930.201–930.211); and provide that
assignment of an ALJ in Sacramento, most disciplinary actions against ALJs 1. Discovery
California, for FERC Project No. 2082, may be taken only for good cause In the preamble to the revised interim
which involved a licensee based in established and determined by the Merit rules, the Departments declined to
Portland, Oregon, with counsel in Systems Protection Board on the record amend the discovery provisions for the
Washington, DC However, the licensee after opportunity for a hearing (see 5 trial-type hearing in response to
withdrew a motion to hold the hearing U.S.C. 7521). As for expertise, the comments that the rules needlessly limit
in Portland after the overwhelming Departments’ ALJs have considerable discovery by requiring authorization
majority of the parties expressed to the experience and expertise evaluating from the ALJ or agreement of the parties.
ALJ a preference for a hearing in natural resource issues similar to those
Sacramento during the prehearing The commenters recommended that the
which typically underlie imposition of Departments adopt the approach of the
conference. These examples do not a condition or prescription.
demonstrate any undue influence. FERC regulations at 18 CFR 385.402(a)
Furthermore, the use of FERC ALJs and 385.403(a), which authorize
Further, the apparent inference that would require the agreement of FERC
the venue is determined by the location discovery to begin without the need for
and possibly a statutory amendment. In ALJ involvement unless there are
of the ALJ’s office is not correct. Nor is sum, the Departments disagree with the
it determined solely by balancing the discovery disputes. Industry
premises of the comment regarding the Commenters have reiterated these
convenience of the parties, as implied selection of ALJs and conclude that no
by the commenters suggested comments, further arguing that section
related change in the rules is necessary 241 of EPAct guarantees the availability
amendment. As pointed out in the or desirable.
preamble to the revised interim rules: of discovery, not that such discovery
Stay of Case for Settlement must be first agreed to by the parties or
the ALJ has discretion to manage hearing authorized by the ALJ.
locations. As the ALJs have done in prior The Industry Commenters also assert
cases, the Departments expect that an ALJ The Departments continue to disagree
that the revised interim rules should that the regulations should be changed
will take into consideration factors such as
convenience to the parties and to the ALJ, the permit settlement negotiations not only for the reasons detailed in the preamble
location of witnesses, and the availability of for 120 days before a case is referred to to the revised interim rules. See 80 FR
adequate hearing facilities when determining an Administrative Law Judge (ALJ)—as 17168–69. In summary, the
the location of a hearing. 80 FR 17170. provided in the revised interim rules— Departments’ rules do allow for rapid
The Departments conclude that no but also during the period after the ALJ initiation of discovery and the criteria
change in the rules is needed regarding has issued the decision, yet before for allowing discovery are fairly similar
hearing venue selection. issuance of the Department’s modified to those utilized by FERC and federal
Regarding the selection of an ALJ, the conditions. The Industry Commenters courts. More importantly, discovery
Industry Commenters assert that a add that settlement discussions should limits are necessary in this specialized
Department ‘‘should not be allowed to not be prohibited under ex parte trial-type hearing context to fit within
hand pick a Department ALJ or an ALJ principles, considering that settlements the expedited time frame mandated by
with a track record favorable to the ought to be encouraged at all points in section 241 of EPAct, and wide-ranging
Department.’’ They identify two a hearing process. discovery should not be necessary,
potential remedial amendments: (1) Use Notwithstanding the Industry given the typical documentation
a lottery system to select an ALJ, or (2) Commenters’ assertion, the Industry generated during the license proceeding,
preferably, use FERC ALJs instead of Commenters also offered support for the including the record supporting the
Department ALJs under the assumption new 120-day stay period for purposes of conditions or prescriptions.
that FERC ALJs would be more neutral facilitating settlement. We agree that Also, the fact that section 241
and have more subject matter expertise. both the length of this period and its provides for ‘‘the opportunity to
The Departments disagree with the placement at the pre-referral stage could undertake discovery’’ does not
unsupported assumptions that they are lead to more settlements and avoid the guarantee unlimited discovery.
exercising undue influence over the more formal stages of the hearing It is fundamental that the scope of
selection of ALJs or that a Department process. We also agree with the Industry discovery is not limitless and is restricted by
would consider ‘‘hand picking’’ an ALJ Commenters that settlements should be the concepts of relevancy. United States
to obtain an advantage. In accordance permitted whenever reached by parties. Lines (S.A.) Inc.—Petition for Declaratory
with the mandate of 5 U.S.C. 3105, Yet here we note that the availability of Order Re: The Brazil Agreements, 24 S.R.R.
administrative law judges are assigned a stay period is not the only mechanism 1387, 1388 (ALJ 1988). See also 4 James W.
to cases in rotation so far as practicable, or incentive by which settlements can Moore et al., Moore’s Federal Practice, P
with due consideration given to the be facilitated, and that parties are at 26.56[1], at 26–96 (2d ed. 1993).
demands of existing caseloads and the liberty to conduct robust and American President Lines, LTD v Cyprus
case to be assigned. meaningful settlement discussions Mines Corp., 1994 FMC LEXIS 33, *31–
The Departments also dispute the concurrently with the ongoing hearing 32 (Jan. 31, 1994); see also Fed. R. Civ.
assertion that FERC ALJs are ‘‘more process, at any stage in such process. P. 26(d)(1). Further, as noted by the
neutral’’ or have more germane Further, given that Congress established Supreme Court, even the liberal
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expertise. In fact, the independence of in EPAct a short 90-day time limit for discovery rules of the Federal Rules of
all ALJs is protected and impartiality completion of the trial-type hearing to Civil Procedures,
fostered by laws which, among other avoid the potential for substantial delay are subject to the injunction of Rule 1 that
things, exempt them from performance in license issuance, it would be they ‘‘be construed to secure the just, speedy,
ratings, evaluation, and bonuses (see 5 unworkable to provide for any and inexpensive determination of every
U.S.C. 4301(2)(D), 5 CFR 930.206); vest additional amount of time beyond the action.’’ To this end, the requirements of
the Office of Personnel Management revised interim rules’ 120 day-period for Rule 26(d)(1) that the material sought in

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discovery be ‘‘relevant’’ should firmly be Departments did agree that, in many that the Departments prepare an equal
applied, and the . . . courts should not circumstances, the electronic consideration statement must be read in
neglect their power to restrict discovery transmission of documents is a the context of the overall statutory
where ‘‘justice requires [protection for] a preferable means of providing scheme. 80 FR 17177. Section 33 of the
party or person from annoyance,
embarrassment, oppression, or undue burden
documents to another party and revised FPA is titled ‘‘Alternative Conditions
or expense . . . . ’’ Rule 26(c). With this the rules to allow for electronic service and Prescriptions,’’ and it sets forth a
authority at hand, judges should not hesitate of documents on a party who consents series of sequential steps for considering
to exercise appropriate control over the to such service. However, the an alternative and reaching a final
discovery process. Departments noted that ALJ offices do determination. Section 33(a)(l) permits
not currently have the capacity or any party to a hydropower license
Herbert v. Lands, 441 U.S. 153, 177
resources to accept electronically and proceeding to propose an alternative
(1979) (emphasis in original).
print off the large volume of documents condition. Under section 33(a)(2), the
The revised interim rules reasonably
typically filed in connection with a Secretary must accept an alternative if it
incorporate similar standards for
trial-type hearing. ‘‘(A) provides for the adequate
discovery, see 7 CFR 1.641(b), 43 CFR The Industry Commenters again protection and utilization of the
45.41(b), and 50 CFR 221.41(b), to be suggest that electronic filing should be reservation; and (B) will either, as
applied by the administrative law allowed at the ALJ’s discretion, citing compared to the condition initially
judges to secure the just, speedy, and the example of a Coast Guard ALJ [deemed necessary] by the Secretary[,]
inexpensive determination of each case. allowing filing by email pursuant to the (i) cost significantly less to implement;
The Industry Commenters have not agreement of the parties at a prehearing or (ii) result in improved operation of
addressed how application of those conference addressing a trial-type the project works for electricity
standards would unduly limit hearing request. For the reasons production.’’ 16 U.S.C. 823d(a)(2).
discovery. Because the Departments discussed in the revised interim rules, When evaluating an alternative, section
conclude that the standards are fair and the Departments decline to adopt 33(a)(3) directs the Secretary to consider
reasonable, no change in the discovery regulations that permit filing by email evidence otherwise available concerning
provisions is warranted. with the ALJ offices. 80 FR 17161– ‘‘the implementation costs or
2. Page Limitations 17612. Email is not a substitute for a operational impacts for electricity
dedicated electronic filing system in production of a proposed alternative.’’
In preamble to the revised interim which administrative, information The Departments continue to believe
rules, the Departments declined to technology, and policy issues such as that a contextual analysis of FPA section
extend the page limits for hearing document management, storage, 33 demonstrates that section 33 requires
requests in response to comments security, and access can be the preparation of an equal
requesting that the limit for describing systematically addressed. Because none consideration statement only when a
each issue of material fact be increased of the ALJ Offices have a dedicated party submits an alternative condition
from two pages to five pages and that system, the Departments will not or prescription. No changes to the
the limit for each witness identification authorize filing by electronic means. regulations are needed in response to
be increased from one to three pages. the comment.
The Departments did conclude that the Equal Consideration Statements
The commenters also disagree with
required list of specific citations to The Industry Commenters request that the Departments’ perspective, as
supporting information and the list of the Departments revisit their explained in the revised interim rules,
exhibits need not be included in the interpretation of section 33 of the that in the absence of an alternative the
page restrictions and amended the rules Federal Power Act (FPA section 33) as Departments will generally lack
accordingly. See 7 CFR 1.621(d), 43 CFR described in the revised interim rules. sufficient information to provide a
45.21(d), and 50 CFR 221.21(d). 80 FR 17176–17177. In the revised meaningful equal consideration analysis
The Industry Commenters renew the interim rules, the Departments of the factors required by FPA section
same requests without offering any new interpreted FPA section 33 to require a 33(a)(4) and (b)(4). The commenters
reasons why the requests should be Department to prepare an equal state that ample information is available
granted. The Departments continue to consideration statement only when a to the Departments in the licensing
believe that the page limits are generally party has submitted an alternative application at the time the Departments
appropriate and provide sufficient space condition or prescription. adopt a condition or prescription,
for parties to identify disputed issues, The commenters state that the regardless of whether any alternatives
particularly in light of the expedited Departments’ interpretation is contrary were proposed under FPA section 33.
nature of the proceeding. The to the plain language of section 33(a)(4) The commenters observe that ‘‘[w]ithout
Departments further note that they are and (b)(4), which they suggest should be this information, the Departments
bound by the same page limits in read to require that a Department presumably would not have sufficient
submitting an answer. See 7 CFR 1.622, prepare an equal consideration information to draft meaningful
43 CFR 45.22, and 50 CFR 221.22. statement whenever a Department preliminary conditions and
Therefore, for the reasons stated in the submits any condition or prescription, prescriptions.’’
preamble to the revised interim rules, regardless of whether a party submits an The Departments note FPA sections
the Departments decline to amend the alternative. The commenters assert that 4(e) and 18, which authorize the
page limitations. the Departments’ contextual analysis of Departments to issue conditions and
FPA section 33, as described in the prescriptions, do not require the
3. Electronic Filing
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revised interim rules, is flawed because Departments to consider certain types of
In the preamble to the revised interim FPA section 33 unambiguously supports information otherwise required by FPA
rules, the Departments rejected the commenters’ interpretation. The section 33 when evaluating alternatives,
commenter suggestions to revise the Departments disagree with this such as ‘‘the implementation costs or
regulations to allow parties to file comment. operational impacts for electricity
documents electronically, using email As the Departments explained in the production of a proposed alternative.’’
or FERC’s eFiling system. The revised interim rules, the requirement 16 U.S.C. 823d(a)(3). Accordingly, the

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84394 Federal Register / Vol. 81, No. 226 / Wednesday, November 23, 2016 / Rules and Regulations

Departments generally lack related above, such proceedings are not the proceeding is pending, a Department
information until such time that the subject of the rulemaking and therefore, has authority to submit conditions and
Departments evaluate an alternative and the comments about them do not prescriptions without the need to
prepare an equal consideration necessitate a change to the regulations. ‘‘reserve’’ its authority. A reservation of
statement, which occurs after the The revised interim rules address the authority is only necessary for
Departments prepare preliminary commenters’ first scenario, in which a submission of conditions or
conditions and prescriptions. Department issues no preliminary prescriptions after FERC has issued a
When preparing an equal conditions or prescriptions, but reserves license.
consideration statement, the a right to submit conditions and The revised interim rules, when
Departments must evaluate ‘‘such prescriptions later in the licensing addressing whether a trial-type hearing
information as may be available to the process. The Departments received should be held to address disputed
Secretary, including information comments on the interim final rules that issues of fact at the preliminary or
voluntarily provided in a timely manner requested the availability of a trial-type modified condition/prescription stage,
by the applicant and other parties.’’ 16 hearing when a Department reserves its impliedly addressed the scenario where
U.S.C. 823d(a)(4) and (b)(4). The revised authority to include conditions or the Departments submit conditions and
interim rules require a proponent of an prescriptions in a license. The prescriptions outside of the timeframe
alternative to submit information Department responded to this comment for doing so in FERC’s regulations. The
necessary to evaluate the alternative and by stating that ‘‘under EPAct, it is only Departments explained the
prepare an equal consideration when a Department affirmatively circumstances under which a
statement pursuant to FPA section 33. exercises its discretion to mandate a Department may submit a preliminary
While such information may or may not condition or prescription that the condition or prescription later in the
be available in licensing applications hearing and alternatives processes are licensing process and that the
prepared for FERC, the Departments triggered. Allowing for trial-type availability of the trial-type hearing
will generally lack sufficient hearings and alternatives when the process would be decided on a case-by-
information to provide a meaningful agencies have not exercised this case basis: ‘‘[E]xceptional circumstances
equal consideration pursuant to FPA authority would be both inconsistent may arise where facts not in existence
section 33 until such time as the with the legislation and an inefficient and not anticipated at an earlier stage
proponent of an alternative submits the use of the Departments’ resources. necessitate a new preliminary condition
information with an explanation of how Consequently, these final rules continue or prescription. This circumstance
the alternative meets the criteria set to provide that the hearing and would be handled on a case-by-case
forth in FPA section 33. No changes to alternatives processes are available only basis, in coordination with FERC as
the regulations are needed in response when a Department submits a necessary.’’ 80 FR 17164. The
to the comment. preliminary condition or prescription to Departments have continued to apply
FERC, either during the initial licensing this rationale and process in the final
Hearings on Modified Conditions and
proceeding or subsequently through the rules.
Prescriptions With respect to the third scenario, the
exercise of reserved authority.’’ 80 FR
Commenters request that the 17159. Thus, the revised interim rules Departments received similar comments
Departments address perceived addressed the commenters’ first on the interim final rule that requested
loopholes in the revised interim rules scenario by providing a right to a trial- ‘‘the regulations provide for trial type
that would allow the Departments to type hearing only when a Department hearings at the modified stage if the
avoid trial-type hearings in three submits a preliminary condition or modifications are based on new facts
scenarios. The commenters state that the prescription to FERC during the initial that did not exist or were not
interim final rules were silent as to licensing proceeding, or when a anticipated at the preliminary stage, or
whether a right to a trial-type hearing Department submits a condition or if the agency submits an entirely new
exists in situations where (1) the prescription to FERC through the condition or prescription at the
Department issues no preliminary exercise of reserved authority after modified stage.’’ 80 FR 17163. The
conditions or prescriptions, but reserves FERC has issued a license. Departments responded by stating that
the right to submit mandatory In discussing their first scenario, the the revised interim rules ‘‘continue the
conditions or prescriptions later in the commenters’ language suggests that they approach taken in the interim
licensing process; (2) the Department may not be concerned about a regulations of scheduling the trial-type
adds conditions or prescriptions that Department’s reservation of authority to hearing process immediately following
were not included with its preliminary submit conditions or prescriptions, but the issuance of preliminary conditions
conditions or prescriptions; or (3) the instead may actually be concerned with and prescription.’’ 80 FR 17164. The
Department’s modified conditions or the availability of a trial-type hearing Departments reasoned that this
prescriptions include factual issues or when a Department issues no approach allows trial-type hearings to
justifications that were not presented preliminary conditions or prescriptions, occur during FERC’s licensing time
with its preliminary conditions or but submits conditions and frame as required by Congress, that it
prescriptions. The commenters write prescriptions outside of the timeframe promotes efficiency, and that providing
that the revised interim rules addresses contemplated in FERC’s regulations for for trial-type hearings at the modified
the second scenario by handling it on a filing preliminary conditions or stage is not a reasonable or efficient use
case-by-case basis, but do not address prescriptions, which is ‘‘no later than 60 of resources. 80 FR 17163–17164. The
the first and third scenarios. The days after the notice of acceptance and Departments maintain this rationale in
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Departments believe that the revised ready for environmental analysis.’’ 18 the final rules.
interim rules address all three of these CFR 5.23(a). See also 18 CFR 4.34(b). Industry commenters state that any
scenarios and no changes to the The Departments note that in this final rules must provide a remedy for
regulations are needed. The scenario, the Departments would not be licensees who object to new conditions
Departments again note that in several exercising reserved authority to submit and prescriptions imposed at the
instances, the commenters discuss preliminary conditions or prescriptions modified stage, or when the
specific licensing proceedings. As stated because, as long as a licensing Department’s modified conditions or

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Document Created: 2016-11-23 05:30:00
Document Modified: 2016-11-23 05:30:00
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rules; response to comments.
Dates		Effective November 23, 2016.
Contact		Mona Koerner, Lands and Realty Management, Forest Service, U.S. Department of Agriculture, 202-205- 0880; John Rudolph, Solicitor's Office, Department of the Interior, 202-208-3553; or Melanie Harris, Office of Habitat Conservation, National Marine Fisheries Service, 301-427-8636. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
FR Citation		81 FR 84389
CFR Citation		43 CFR 45 50 CFR 221 7 CFR 1
81 FR 84389 - Resource Agency Hearings and Alternatives Development Procedures in Hydropower Licenses

DEPARTMENT OF AGRICULTUREOffice of the SecretaryDEPARTMENT OF THE INTERIOROffice of the SecretaryDEPARTMENT OF COMMERCENational Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 226 (November 23, 2016)

DEPARTMENT OF AGRICULTURE
Office of the Secretary
DEPARTMENT OF THE INTERIOR
Office of the Secretary
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
