Preliminary Permits for Wave, Current, and Instream New Technology Hydropower Projects, 9281-9284 [E7-3549]
Download as PDF
Federal Register / Vol. 72, No. 40 / Thursday, March 1, 2007 / Proposed Rules
TABLE 1.—AFFECTED 1ST STAGE FAN
BLADES—Continued
P/Ns
SNs
804121 ..........................................
PX4266
Issued in Burlington, Massachusetts, on
February 23, 2007.
Peter A. White,
Acting Manager, Engine and Propeller
Directorate, Aircraft Certification Service.
[FR Doc. E7–3561 Filed 2–28–07; 8:45 am]
BILLING CODE 4910–13–P
For Engines Installed on an Airplane
(1) For engines installed on an airplane
with affected 1st stage fan blades installed,
perform the actions in paragraphs (f)(3)
through (f)(6)(ii) of this AD at the next 1st
stage fan blade exposure.
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
For Engines Not Installed on an Airplane, or,
for Affected 1st Stage Fan Blades Not
Installed in an Engine
18 CFR Chapter I
(2) For engines not installed on an airplane
with affected 1st stage fan blades installed,
or, for affected 1st stage fan blades not
installed in an engine, paragraph (h) of this
AD applies.
Preliminary Permits for Wave, Current,
and Instream New Technology
Hydropower Projects
February 15, 2007.
1st Stage Fan Blade Check
(3) Check the 1st stage fan blade for a
circled, letter I, on the approved marking area
of the outboard side of the blade platform. If
the blade has this marking, no further action
is required.
(4) Remove 1st stage fan blades without a
circled, letter I, on the approved marking area
of the outboard side of the blade platform, if
installed.
(5) Inspect the 1st stage fan blade root
thickness. You can find information on
inspecting the blade root thickness in PW
Engine Manual Section 72–31–02, Inspect-01,
and Repair-23.
(6) For 1st stage fan blades that pass the
inspection referenced in paragraph (f)(5) of
this AD:
(i) Vibropeen the letter I and a circle
around that letter, on the approved marking
area of the outboard side of the blade
platform. You can find information on
approved blade marking in the JT9D–7R4
Engine Manual, Section 72–31–02, Typical
Repair–13, Mark Repair Codes.
(ii) Return the 1st stage fan blades to
service.
Definition
(g) For the purposes of paragraph (f)(1) of
this AD, next 1st stage fan blade exposure is:
(1) When any 1st stage fan blade is
removed from the engine; or
(2) When the 1st stage fan hub is removed
from the engine.
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Prohibited Installation
(h) After the effective date of this AD, do
not install any 1st stage fan blades listed in
Table 1 of this AD on any airplane, unless
the actions of this AD have been done to the
1st stage fan blades.
Alternative Methods of Compliance
(i) The Manager, Engine Certification
Office, has the authority to approve
alternative methods of compliance for this
AD if requested using the procedures found
in 14 CFR 39.19.
Related Information
(j) None.
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[Docket No. RM07–08–000]
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Federal Energy Regulatory
Commission, DOE.
ACTION: Notice of Inquiry (NOI) and
Interim Statement of Policy.
AGENCY:
SUMMARY: The Federal Energy
Regulatory Commission (Commission) is
inviting comments on its procedures
with respect to the treatment of
preliminary permits under Part I of the
Federal Power Act for wave, current,
and instream new technology
hydropower projects.
DATES: Comments on this NOI are due
on April 30, 2007.
ADDRESSES: You may submit comments
identified by Docket No. RM07–8–000,
by one of the following methods:
• Agency Web Site: https://ferc.gov.
Follow the instructions for submitting
comments via the eFiling link found in
the Comment Procedures Section of the
preamble.
• Mail: Commenters unable to file
comments electronically must mail or
hand deliver an original and 14 copies
of their comments to the Federal Energy
Regulatory Commission, Office of the
Secretary, 888 First Street, NE.,
Washington, DC 20426. Please refer to
the Comment Procedures Section of the
preamble for additional information on
how to file paper comments.
FOR FURTHER INFORMATION CONTACT:
William Guey-Lee, Office of Energy
Projects, Federal Energy Regulatory
Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502–
6064.
Merrill Hathaway, (Legal Information),
Office of General Counsel—Energy
Projects, Federal Energy Regulatory
Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 5028825.
SUPPLEMENTARY INFORMATION:
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9281
Introduction
1. The Federal Energy Regulatory
Commission (Commission) is issuing
this Notice of Inquiry to seek comments
on how it should treat applications for
preliminary permits to study
hydropower projects involving
proposals to utilize wave, current, and
instream new technology methods to
develop hydropower.1 The Commission
is also seeking comments on how it
should oversee any such permits during
their terms. Finally, the Commission
also sets an interim policy pending the
outcome of this proceeding.
2. The Commission has seen
increasing interest in new hydroelectric
technologies that would utilize ocean
waves, tides, and currents from freeflowing rivers, as evidenced by a surge
in applications for preliminary permits
to study such projects. Commission staff
has issued 11 preliminary permits for
projects of this type; three are for
proposed tidal energy projects (in New
York, Washington, and California), and
eight are for proposed ocean current
energy projects (off the coast of Florida).
Over 40 preliminary permit applications
for ocean projects are currently pending
before the Commission, all of which
have been filed since March 2006.
3. These new technologies have
significant potential: it has been
estimated that the potential for wave
and current power could be over 350terawatt hours per year, which would
more than double current hydropower
production.2 The Commission
anticipates further exploration of how
these technologies can fit within the
national energy infrastructure in terms
of the amount of potential energy that
can be developed, its reliability,
environmental and safety implications,
and its commercial viability. The
Commission wants to reduce regulatory
barriers to the development of new
technologies, where possible, and has
exhibited the maximum flexibility
permitted by law in regulating these
projects.3
1 There are a variety of technologies in various
stages of development to produce electric power
using ocean currents, tides, and wave action, rather
than the traditional hydropower model involving
hydraulic head developed by use of a dam or other
diversion structure. For purposes of this notice of
inquiry, the Commission refers to these newer
forms of technology as ‘‘wave, current, and instream
new technology’’ or simply ‘‘new technology.’’
However, the Commission is using the terms as
shorthand, and is not attempting to define or limit
the scope of these technologies.
2 See Hydroelectric Infrastructure Technical
Conference, Docket No. AD06–13–000 (December 6,
2006), transcript at 12; 22 (testimony of George
Hagerman).
3 For example, in Verdant, Power, LLC, 111 FERC
¶61,024, on reh’g, 112 FERC ¶61,143 (2005), the
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Background
4. Under Part I of the Federal Power
Act (FPA),4 the Commission regulates
non-federal hydropower projects that
are: located on navigable waters; located
on nonnavigable waters over which
Congress has Commerce Clause
jurisdiction, were constructed after
1935, and affect the interests of
interstate or foreign commerce; located
on public lands or reservations of the
United States; or use surplus water or
water power from a federal dam. The
Commission has construed the term
‘‘navigable water’’ to include waters off
the U.S. coast.5
5. Section 4(f) of the FPA 6 authorizes
the Commission to issue preliminary
permits for the purpose of enabling
prospective applicants for a hydropower
license to secure the data and perform
the acts required by FPA section 9,7
which in turn sets forth the material that
must accompany an application for
license. FPA section 5 8 states:
Each preliminary permit issued under this
part shall be for the sole purpose of
maintaining priority of application for a
license under the terms of this Act for such
period or periods, not exceeding a total of
three years, as in the discretion of the
Commission may be necessary for making
examinations and surveys, for preparing
maps, plans, specifications, and estimates,
and for making financial arrangements. Each
permit shall set forth the conditions under
which priority shall be maintained. Such
permits shall not be transferable, and may be
canceled by order of the Commission upon
failure of permittees to comply with the
conditions thereof or for other good cause
shown after notice and opportunity for
hearing.[9]
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Thus, the purpose of a preliminary
permit is to preserve the right of the
permit holder to have the first priority
in applying for a license for the project
that is being studied.10 Because a permit
is issued only to allow the permit holder
to investigate the feasibility of a project,
and grants no land-disturbing or other
Commission concluded that, under specified
circumstances, the short-term testing of new
hydropower technology would not require a
Commission licensse.
4 16 U.S.C. 791a, et seq. (2000).
5 See AquaEnergy Group, LTD., 102 FERC
¶61,242 (2003).
6 16 U.S.C. 797(f) (2000).
7 16 U.S.C. 802 (2000).
8 16 U.S.C. 798 (2000).
9 Nothing in the FPA requires the Commission to
issue a preliminary permit; whether to do so is a
matter solely within the Commission’s discretion.
10 See, e.g., Mt. Hope Waterpower Project LLP, 116
FERC ¶ 61,232 at P 4 (2006) (‘‘The purpose of a
preliminary permit is to encourage hydroelectric
development by affording its holder priority of
application (i.e., guaranteed first-to-file status) with
respect to the filing of development applications for
the affected site’’).
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property rights,11 the Commission
historically has generally liberally
granted such permits without requiring
an extensive showing by the
applicant.12
6. In contrast, a license issued by the
Commission gives the licensee the
authority to construct and operate a
project. Standard license Article 5
require licensees to acquire title in fee
or the right to use in perpetuity all
lands, other than lands of the United
States, necessary or appropriate for the
construction, maintenance, and
operation of a project. Where licensees
cannot obtain such rights through
contract, they may use eminent domain
to do so.13 In consequence, before
issuing any license, the Commission
conducts a full, searching public
interest inquiry, and the licensing
process is completely distinct from the
permit process.
7. A permit holder is not required to
file a license application. Likewise, a
developer may study a project without
holding a preliminary permit. However,
the holding of a permit does give a
developer first-in-time preference over
any competitors who file applications
for projects at the same site, during the
permit term. As noted above, it is only
if and when a project license is issued
that the licensee can, under the
conditions imposed in the license,
engage in ground-disturbing activities,
and if necessary use eminent domain to
acquire lands for the project.
8. The Commission has begun to
receive preliminary permit applications
for proposed projects that would
produce electric power through
innovative technologies that would take
advantage of various types of water
movement, including ocean wave action
and tides and currents both offshore and
in rivers. In the last two years, the
Commission has granted permits to
study projects off the coast of Florida,14
11 Thus, a permit holder can only enter lands it
does not own with the permission of the
landholder, and is required to obtain whatever
environmental permits federal, state, and local
authorities may require before conducting any
studies.
12 See, e.g., Three Mile Falls Hydro, LLC, 102
FERC ¶ 61,301 at P 6 (2003); see also Town of
Summersville, W.Va. v. FERC, 780 F.2d 1034 (D.C.
Cir. 1986) (discussing nature of preliminary
permits).
13 See FPA section 21, 16 U.S.C. § 814 (2000).
14 Red Circle Systems Corporation, 110 FERC
¶ 62,113 (2005); Red Circle Systems Corporation,
110 FERC ¶ 62,114 (2005); Red Circle Systems
Corporation, 110 FERC ¶ 62,115 (2005); Red Circle
Systems Corporation, 110 FERC ¶ 62,116 (2005);
Red Circle Systems Corporation, 110 FERC ¶ 62,117
(2005); Florida Hydro, Inc., 110 FERC ¶ 62,270
(2005); Red Circle Systems Corporation, 110 FERC
¶ 62,271 (2005); Red Circle Systems Corporation,
110 FERC ¶ 62,272 (2005).
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in San Francisco Bay,15 in the East River
of New York,16 and in Puget Sound,
Washington.17 Approximately 45
additional applications of this type are
pending.
9. On December 6, 2006, the
Commission held a technical conference
with respect to the new technologies.18
At the conference, and in comments
subsequently filed by interested entities,
the Commission heard a wide variety of
ideas regarding the preliminary permit
program, ranging from statements that
the current program works well for new
technologies,19 to suggestions that the
Commission shorten the typical threeyear preliminary permit period to 18
months,20 to comments that the
Commission should adopt a much
stricter policy with respect to the
issuance of preliminary permits for new
technology projects, in order to prevent
site-banking (the reservation of potential
sites without the current intent to
develop a project).21 This diversity of
opinion suggested that it would be
useful for us to conduct a public inquiry
into this subject, to determine if the
Commission should in any way change
the manner in which it treats
preliminary permits for new technology
projects.
The Subject of the Notice of Inquiry
10. The Commission seeks comment
on the standard of review it should
apply to applications for preliminary
permits for ocean wave, tidal, and other
non-traditional hydropower projects,
and how it should regulate those
permits during their terms. We outline
below three alternatives, and encourage
comments on these approaches, as well
as the suggestion of any other methods
that commenters believe would be
fruitful in encouraging and
appropriately regulating the initial
exploration of new technology projects.
11. We received comments at and
following the technical conference
concerning the possibility of creating
new or modified procedures for the
licensing process for new technology
projects. We recognize that this issue is
complex, given that there are many
requirements governing hydropower
licensing that are established by law and
15 Golden Gate Energy Company, 113 FERC
¶ 62,028 (2005).
16 Verdant Power, LLC, 113 FERC ¶ 62,193 (2005).
17 Tacoma Power, 114 FERC ¶ 62,174 (2006).
18 Hydroelectric Infrastructure Technical
Conference, Docket No. AD06–13–000.
19 See Comments of Oceania Energy Company
(filed December 20, 2006).
20 See Comments of Ocean Renewable Energy
Coalition (filed December 20, 2006).
21 See Comments of Gil Sperling, Verdant Power,
LLC (technical conference transcript at 106–07).
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that an examination of this issue has
implications extending to small
traditional hydropower projects, as well
as those involving new technology.
Moreover, we are aware that our staff,
with a view towards simplifying and
shortening the licensing process where
possible, has been able to recommend
waiver of certain aspects of the process
and to expeditiously process license
applications where the applicant has: (a)
Chosen a site that minimizes
environmental impacts, (b) built
consensus among stakeholders
(including the local community and
state and federal resource agencies)
regarding project issues and appropriate
environmental measures, and (c)
provided the Commission with all
necessary information.22 Such
streamlined procedures may be
applicable to some new technology
projects. Given that we recently
received the first license application for
this type of project, we are not prepared
at this time to decide if these or other
procedures can be applied generally to
new technology projects in a manner
consistent with law and sound policy.
However, we will be monitoring new
technology proceedings, and as these
proceedings evolve, we may consider
whether alterations to our process may
be appropriate generically or in
individual cases. In addition, the
Commission will hold a technical
conference on this issue at a future date.
A. Maintain Standard Preliminary
Permit Approach
12. As noted, traditionally, the
Commission has not subjected most
preliminary permit applications to
extensive scrutiny. Further, the
Commission has not often exercised the
right it reserves in all preliminary
permits to cancel the permit.
13. Continuing to follow this
approach could provide some regulatory
protection for developing and testing
new technology, could prevent ‘‘claim
jumping,’’ that is, interference with a
prospective applicant’s ability to
investigate the feasibility of a project,
and may provide some modest
facilitation for financing new projects.
On the other hand, this approach would
do nothing to resolve the concern we
have seen expressed that an entity could
site-bank by filing for a number of new
technology projects that it has no real
intent of developing. It also would not
resolve the question, raised in some
pending permit proceedings, of how to
22 See F & B Wood Corporation, 117 FERC
¶ 62,059 (2006); Birch Power Company, 116 FERC
¶ 62,075 (2006); Birch Power Company, 116 FERC
¶ 61,074 (2006); Wade Jacobson, 116 FERC ¶ 62,073
(2006).
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properly set the boundaries of the area
reserved for study by a preliminary
permit holder. While it is typically easy
to determine the boundaries of a
traditional, riverine hydropower project,
we have heard contrasting suggestions
that establishing strict boundaries for a
new technology project would
artificially restrict the potential scope of
such a project and that allowing too
wide boundaries in such cases would
encourage site-banking, to the possible
detriment of competition in project
development.
B. Stricter Scrutiny Approach
14. In the alternative, the Commission
could process new technology
preliminary permit applications with a
view toward limiting the boundaries of
the permits, to prevent site-banking and
to promote competition. Further, to
ensure that permit holders are actively
pursuing project exploration, the
Commission would carefully scrutinize
the reports that permit holders are
required to file on a semi-annual basis,23
and would, where sufficient progress
was not shown, consider canceling the
permit. Stricter scrutiny could entail
requirements such as reports on public
outreach and agency consultation,
development of study plans, and
deadlines for filing a notice of intent to
file a license application and a
preliminary application document. This
approach could reduce site-banking,
providing a disincentive for developers
to seek permits for projects that they are
not ready to pursue. By limiting the
geographic scope of permits, we may
encourage more thoughtful development
of permit applications, as well as
competition. On the negative side, this
approach could, if not carefully
administered, make it more difficult for
even well-intentioned and prepared
applicants to obtain multiple permits. It
also could require additional
Commission resources to be devoted to
the permit program, both in more
carefully examining applications, and in
giving stricter scrutiny to progress
reports.
C. Decline To Issue Preliminary Permits
for New Technology Projects
15. As a third alternative, the
Commission could decide, as a matter of
policy, not to issue preliminary permits
for new technology hydropower
projects. In this case, all potential
license applicants would have equal
opportunities to explore the
development of new technology
23 As a standard condition in all preliminary
permits, the Commission requires the permit holder
to file progress reports every six months.
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9283
projects, and the Commission would
resolve any resultant competition
during the licensing phase. This
procedure would resolve concerns about
site banking during the permit stage,
because no entity would have priority
with respect to a project site until an
application was actually filed.
Moreover, the Commission’s regulatory
authority would not be invoked, and its
resources not utilized, until an entity
had demonstrated the seriousness of its
interest in a project by filing an
application. This would leave the
market free to explore potential projects,
without the possibly artificial
constraints imposed by the existence of
a preliminary permit held by an entity
that lacks the capacity, or does not have
a serious intent, to develop a project. On
the negative side, potential applicants
would not have the guarantee of first-tofile priority while they explored
potential projects. To the extent that a
preliminary permit provides some
assistance in obtaining financing, this
aid would no longer be available.
Interim Statement of Policy
16. On balance, the Commission has
decided to follow the ‘‘strict scrutiny’’
approach during the pendency of this
proceeding, because this appears to
respond to a significant number of the
issues that have been raised at the
technical conference and in individual
proceedings, particularly with respect to
site-banking and the scope of proposed
projects. However, we have not in any
way decided whether we will ultimately
select one of the three alternatives set
forth in this notice of inquiry, and
perhaps may choose some other
approach. We will determine how to
proceed only after the Commission has
had the opportunity to review and
consider the comments filed in response
to this notice.
Procedure for Comments
17. The Commission invites interested
persons to submit comments, and other
information on the matters, issues and
specific questions identified in this
notice. Comments are due on or before
April 30, 2007. Comments must refer to
Docket No. RM07–8–000, and must
include the commenters’ name, the
organization they represent, if
applicable, and their address.
18. Commenters are requested to use
appropriate headings and to double
space their comments.
19. Comments may be filed on paper
or electronically via the eFiling link on
the Commission’s Web site at https://
www.ferc.gov. The Commission accepts
most standard word processing formats
and commenters may attach additional
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Federal Register / Vol. 72, No. 40 / Thursday, March 1, 2007 / Proposed Rules
files with supporting information in
certain other file formats. Commenters
filing electronically do not need to make
a paper filing. Commenters that are not
able to file comments electronically
must send an original and 14 copies of
their comments to: Federal Energy
Regulatory Commission, Office of the
Secretary, 888 First Street, NE.,
Washington, DC 20426.
20. All comments will be placed in
the Commission’s public files and may
be viewed, printed, or downloaded
remotely as described in the Document
Availability section below. Commenters
are not required to serve copies of their
comments on other commenters.
Document Availability
21. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the Internet through the
Commission’s Home Page (https://
www.ferc.gov) and in the Commission’s
Public Reference Room during normal
business hours (8:30 a.m. to 5 p.m.
Eastern time) at 888 First Street, NE.,
Room 2A, Washington, DC 20426.
22. From the Commission’s Home
Page on the Internet, this information is
available in the Commission’s document
management system, eLibrary. The full
text of this document is available on
eLibrary in PDF and Microsoft Word
format for viewing, printing, and/or
downloading. To access this document
in eLibrary, type the docket number
(excluding the last three digits) in the
docket number field.
23. User assistance is available for
eLibrary and the Commission’s Web site
during normal business hours. For
assistance, please contact the
Commission’s Online Support at 1–866–
208–3676 (toll free) or 202–502–6652 (email at FERCOnlineSupport@ferc.gov)
or the Public Reference Room at 202–
502–8371, TTY 202–502–8659 (e-mail at
public.referenceroom@ferc.gov).
By direction of the Commission.
Magalie R. Salas,
Secretary.
[FR Doc. E7–3549 Filed 2–28–07; 8:45 am]
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BILLING CODE 6717–01–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG–157834–06]
RIN 1545–BG28
Corporate Reorganizations; Additional
Guidance on Distributions Under
Sections 368(a)(1)(D) and 354(b)(1)(B)
Internal Revenue Service (IRS),
Treasury.
ACTION: Notice of proposed rulemaking
by cross-reference to temporary
regulations.
AGENCY:
SUMMARY: In the Rules and Regulations
section of this issue of the Federal
Register, the IRS is issuing temporary
regulations that amend § 1.368–2T(l),
which provides guidance regarding the
qualification of certain transactions as
reorganizations described in section
368(a)(1)(D) where no stock and/or
securities of the acquiring corporation
are issued and distributed in the
transaction. These regulations clarify
that the rules in § 1.368–2T(l) are not
intended to affect the qualification of
related party triangular asset
acquisitions as reorganizations
described in section 368. These
regulations affect corporations engaging
in such transactions and their
shareholders. The text of those
regulations also serves as the text of
these proposed regulations.
DATES: Written or electronic comments
and requests for a public hearing must
be received by May 30, 2007.
ADDRESSES: Send submissions to:
CC:PA:LPD:PR (REG–157834–06),
Internal Revenue Service, P.O. Box
7604, Ben Franklin Station, Washington,
DC 20044. Submissions may be hand
delivered to CC:PA:LPD:PR (REG–
157834–06), Courier Desk, Internal
Revenue Service, 1111 Constitution
Avenue, NW., Washington, DC, or sent
electronically, via the IRS Internet site
at https://www.irs.gov/regs or via the
Federal eRulemaking Portal at https://
www.regulations.gov (IRS REG–157834–
06).
FOR FURTHER INFORMATION CONTACT:
Concerning the proposed regulations,
Bruce A. Decker, (202) 622–7550;
concerning submission of comments,
requests for a public hearing, and/or a
publication and regulations specialist,
Kelly Banks, (202) 622–7180.
SUPPLEMENTARY INFORMATION:
Background
Temporary regulations in the Rules
and Regulations section of this issue of
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the Federal Register amend 26 CFR part
1. The temporary regulations amend
§ 1.368–2T(l), which provides guidance
regarding the qualification of certain
transactions as reorganizations
described in section 368(a)(1)(D) where
no stock and/or securities of the
acquiring corporation are issued and
distributed in the transaction. The text
of those regulations also serves as the
text of these proposed regulations. The
preamble to the temporary regulations
explains the amendments.
Explanation of Provisions
These regulations clarify that the rules
in § 1.368–2T(l) are not intended to
affect the qualification of related party
triangular asset acquisitions as
reorganizations described in section
368.
Special Analyses
It has been determined that this notice
of proposed rulemaking is not a
significant regulatory action as defined
in Executive Order 12866. Therefore, a
regulatory assessment is not required. It
also has been determined that section
553(b) of the Administrative Procedure
Act (5 U.S.C. chapter 5) does not apply
to these regulations, and because the
regulations do not impose a collection
of information on small entities, the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply. Pursuant to
section 7805(f) of the Internal Revenue
Code, this notice of proposed
rulemaking will be submitted to the
Chief Counsel for Advocacy of the Small
Business Administration for comment
on its impact on small business.
Comments and Requests for a Public
Hearing
Before these proposed regulations are
adopted as final regulations,
consideration will be given to any
written (a signed original and eight (8)
copies) or electronic comments that are
submitted timely to the IRS. The IRS
and Treasury Department request
comments on the clarity of the proposed
rules and how they can be made easier
to understand. All comments will be
available for public inspection and
copying. A public hearing will be
scheduled if requested in writing by any
person that timely submits written
comments. If a public hearing is
scheduled, notice of the date, time, and
place for the public hearing will be
published in the Federal Register.
Drafting Information
The principal author of these
regulations is Bruce A. Decker, Office of
Associate Chief Counsel (Corporate).
E:\FR\FM\01MRP1.SGM
01MRP1
Agencies
[Federal Register Volume 72, Number 40 (Thursday, March 1, 2007)]
[Proposed Rules]
[Pages 9281-9284]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-3549]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Chapter I
[Docket No. RM07-08-000]
Preliminary Permits for Wave, Current, and Instream New
Technology Hydropower Projects
February 15, 2007.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Notice of Inquiry (NOI) and Interim Statement of Policy.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
inviting comments on its procedures with respect to the treatment of
preliminary permits under Part I of the Federal Power Act for wave,
current, and instream new technology hydropower projects.
DATES: Comments on this NOI are due on April 30, 2007.
ADDRESSES: You may submit comments identified by Docket No. RM07-8-000,
by one of the following methods:
Agency Web Site: https://ferc.gov. Follow the instructions
for submitting comments via the eFiling link found in the Comment
Procedures Section of the preamble.
Mail: Commenters unable to file comments electronically
must mail or hand deliver an original and 14 copies of their comments
to the Federal Energy Regulatory Commission, Office of the Secretary,
888 First Street, NE., Washington, DC 20426. Please refer to the
Comment Procedures Section of the preamble for additional information
on how to file paper comments.
FOR FURTHER INFORMATION CONTACT:
William Guey-Lee, Office of Energy Projects, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
6064.
Merrill Hathaway, (Legal Information), Office of General Counsel--
Energy Projects, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426, (202) 502-8825.
SUPPLEMENTARY INFORMATION:
Introduction
1. The Federal Energy Regulatory Commission (Commission) is issuing
this Notice of Inquiry to seek comments on how it should treat
applications for preliminary permits to study hydropower projects
involving proposals to utilize wave, current, and instream new
technology methods to develop hydropower.\1\ The Commission is also
seeking comments on how it should oversee any such permits during their
terms. Finally, the Commission also sets an interim policy pending the
outcome of this proceeding.
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\1\ There are a variety of technologies in various stages of
development to produce electric power using ocean currents, tides,
and wave action, rather than the traditional hydropower model
involving hydraulic head developed by use of a dam or other
diversion structure. For purposes of this notice of inquiry, the
Commission refers to these newer forms of technology as ``wave,
current, and instream new technology'' or simply ``new technology.''
However, the Commission is using the terms as shorthand, and is not
attempting to define or limit the scope of these technologies.
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2. The Commission has seen increasing interest in new hydroelectric
technologies that would utilize ocean waves, tides, and currents from
free-flowing rivers, as evidenced by a surge in applications for
preliminary permits to study such projects. Commission staff has issued
11 preliminary permits for projects of this type; three are for
proposed tidal energy projects (in New York, Washington, and
California), and eight are for proposed ocean current energy projects
(off the coast of Florida). Over 40 preliminary permit applications for
ocean projects are currently pending before the Commission, all of
which have been filed since March 2006.
3. These new technologies have significant potential: it has been
estimated that the potential for wave and current power could be over
350-terawatt hours per year, which would more than double current
hydropower production.\2\ The Commission anticipates further
exploration of how these technologies can fit within the national
energy infrastructure in terms of the amount of potential energy that
can be developed, its reliability, environmental and safety
implications, and its commercial viability. The Commission wants to
reduce regulatory barriers to the development of new technologies,
where possible, and has exhibited the maximum flexibility permitted by
law in regulating these projects.\3\
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\2\ See Hydroelectric Infrastructure Technical Conference,
Docket No. AD06-13-000 (December 6, 2006), transcript at 12; 22
(testimony of George Hagerman).
\3\ For example, in Verdant, Power, LLC, 111 FERC ]61,024, on
reh'g, 112 FERC ]61,143 (2005), the Commission concluded that, under
specified circumstances, the short-term testing of new hydropower
technology would not require a Commission licensse.
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[[Page 9282]]
Background
4. Under Part I of the Federal Power Act (FPA),\4\ the Commission
regulates non-federal hydropower projects that are: located on
navigable waters; located on nonnavigable waters over which Congress
has Commerce Clause jurisdiction, were constructed after 1935, and
affect the interests of interstate or foreign commerce; located on
public lands or reservations of the United States; or use surplus water
or water power from a federal dam. The Commission has construed the
term ``navigable water'' to include waters off the U.S. coast.\5\
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\4\ 16 U.S.C. 791a, et seq. (2000).
\5\ See AquaEnergy Group, LTD., 102 FERC ]61,242 (2003).
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5. Section 4(f) of the FPA \6\ authorizes the Commission to issue
preliminary permits for the purpose of enabling prospective applicants
for a hydropower license to secure the data and perform the acts
required by FPA section 9,\7\ which in turn sets forth the material
that must accompany an application for license. FPA section 5 \8\
states:
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\6\ 16 U.S.C. 797(f) (2000).
\7\ 16 U.S.C. 802 (2000).
\8\ 16 U.S.C. 798 (2000).
Each preliminary permit issued under this part shall be for the
sole purpose of maintaining priority of application for a license
under the terms of this Act for such period or periods, not
exceeding a total of three years, as in the discretion of the
Commission may be necessary for making examinations and surveys, for
preparing maps, plans, specifications, and estimates, and for making
financial arrangements. Each permit shall set forth the conditions
under which priority shall be maintained. Such permits shall not be
transferable, and may be canceled by order of the Commission upon
failure of permittees to comply with the conditions thereof or for
other good cause shown after notice and opportunity for
hearing.[\9\]
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\9\ Nothing in the FPA requires the Commission to issue a
preliminary permit; whether to do so is a matter solely within the
Commission's discretion.
Thus, the purpose of a preliminary permit is to preserve the right
of the permit holder to have the first priority in applying for a
license for the project that is being studied.\10\ Because a permit is
issued only to allow the permit holder to investigate the feasibility
of a project, and grants no land-disturbing or other property
rights,\11\ the Commission historically has generally liberally granted
such permits without requiring an extensive showing by the
applicant.\12\
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\10\ See, e.g., Mt. Hope Waterpower Project LLP, 116 FERC ]
61,232 at P 4 (2006) (``The purpose of a preliminary permit is to
encourage hydroelectric development by affording its holder priority
of application (i.e., guaranteed first-to-file status) with respect
to the filing of development applications for the affected site'').
\11\ Thus, a permit holder can only enter lands it does not own
with the permission of the landholder, and is required to obtain
whatever environmental permits federal, state, and local authorities
may require before conducting any studies.
\12\ See, e.g., Three Mile Falls Hydro, LLC, 102 FERC ] 61,301
at P 6 (2003); see also Town of Summersville, W.Va. v. FERC, 780
F.2d 1034 (D.C. Cir. 1986) (discussing nature of preliminary
permits).
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6. In contrast, a license issued by the Commission gives the
licensee the authority to construct and operate a project. Standard
license Article 5 require licensees to acquire title in fee or the
right to use in perpetuity all lands, other than lands of the United
States, necessary or appropriate for the construction, maintenance, and
operation of a project. Where licensees cannot obtain such rights
through contract, they may use eminent domain to do so.\13\ In
consequence, before issuing any license, the Commission conducts a
full, searching public interest inquiry, and the licensing process is
completely distinct from the permit process.
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\13\ See FPA section 21, 16 U.S.C. Sec. 814 (2000).
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7. A permit holder is not required to file a license application.
Likewise, a developer may study a project without holding a preliminary
permit. However, the holding of a permit does give a developer first-
in-time preference over any competitors who file applications for
projects at the same site, during the permit term. As noted above, it
is only if and when a project license is issued that the licensee can,
under the conditions imposed in the license, engage in ground-
disturbing activities, and if necessary use eminent domain to acquire
lands for the project.
8. The Commission has begun to receive preliminary permit
applications for proposed projects that would produce electric power
through innovative technologies that would take advantage of various
types of water movement, including ocean wave action and tides and
currents both offshore and in rivers. In the last two years, the
Commission has granted permits to study projects off the coast of
Florida,\14\ in San Francisco Bay,\15\ in the East River of New
York,\16\ and in Puget Sound, Washington.\17\ Approximately 45
additional applications of this type are pending.
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\14\ Red Circle Systems Corporation, 110 FERC ] 62,113 (2005);
Red Circle Systems Corporation, 110 FERC ] 62,114 (2005); Red Circle
Systems Corporation, 110 FERC ] 62,115 (2005); Red Circle Systems
Corporation, 110 FERC ] 62,116 (2005); Red Circle Systems
Corporation, 110 FERC ] 62,117 (2005); Florida Hydro, Inc., 110 FERC
] 62,270 (2005); Red Circle Systems Corporation, 110 FERC ] 62,271
(2005); Red Circle Systems Corporation, 110 FERC ] 62,272 (2005).
\15\ Golden Gate Energy Company, 113 FERC ] 62,028 (2005).
\16\ Verdant Power, LLC, 113 FERC ] 62,193 (2005).
\17\ Tacoma Power, 114 FERC ] 62,174 (2006).
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9. On December 6, 2006, the Commission held a technical conference
with respect to the new technologies.\18\ At the conference, and in
comments subsequently filed by interested entities, the Commission
heard a wide variety of ideas regarding the preliminary permit program,
ranging from statements that the current program works well for new
technologies,\19\ to suggestions that the Commission shorten the
typical three-year preliminary permit period to 18 months,\20\ to
comments that the Commission should adopt a much stricter policy with
respect to the issuance of preliminary permits for new technology
projects, in order to prevent site-banking (the reservation of
potential sites without the current intent to develop a project).\21\
This diversity of opinion suggested that it would be useful for us to
conduct a public inquiry into this subject, to determine if the
Commission should in any way change the manner in which it treats
preliminary permits for new technology projects.
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\18\ Hydroelectric Infrastructure Technical Conference, Docket
No. AD06-13-000.
\19\ See Comments of Oceania Energy Company (filed December 20,
2006).
\20\ See Comments of Ocean Renewable Energy Coalition (filed
December 20, 2006).
\21\ See Comments of Gil Sperling, Verdant Power, LLC (technical
conference transcript at 106-07).
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The Subject of the Notice of Inquiry
10. The Commission seeks comment on the standard of review it
should apply to applications for preliminary permits for ocean wave,
tidal, and other non-traditional hydropower projects, and how it should
regulate those permits during their terms. We outline below three
alternatives, and encourage comments on these approaches, as well as
the suggestion of any other methods that commenters believe would be
fruitful in encouraging and appropriately regulating the initial
exploration of new technology projects.
11. We received comments at and following the technical conference
concerning the possibility of creating new or modified procedures for
the licensing process for new technology projects. We recognize that
this issue is complex, given that there are many requirements governing
hydropower licensing that are established by law and
[[Page 9283]]
that an examination of this issue has implications extending to small
traditional hydropower projects, as well as those involving new
technology. Moreover, we are aware that our staff, with a view towards
simplifying and shortening the licensing process where possible, has
been able to recommend waiver of certain aspects of the process and to
expeditiously process license applications where the applicant has: (a)
Chosen a site that minimizes environmental impacts, (b) built consensus
among stakeholders (including the local community and state and federal
resource agencies) regarding project issues and appropriate
environmental measures, and (c) provided the Commission with all
necessary information.\22\ Such streamlined procedures may be
applicable to some new technology projects. Given that we recently
received the first license application for this type of project, we are
not prepared at this time to decide if these or other procedures can be
applied generally to new technology projects in a manner consistent
with law and sound policy. However, we will be monitoring new
technology proceedings, and as these proceedings evolve, we may
consider whether alterations to our process may be appropriate
generically or in individual cases. In addition, the Commission will
hold a technical conference on this issue at a future date.
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\22\ See F & B Wood Corporation, 117 FERC ] 62,059 (2006); Birch
Power Company, 116 FERC ] 62,075 (2006); Birch Power Company, 116
FERC ] 61,074 (2006); Wade Jacobson, 116 FERC ] 62,073 (2006).
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A. Maintain Standard Preliminary Permit Approach
12. As noted, traditionally, the Commission has not subjected most
preliminary permit applications to extensive scrutiny. Further, the
Commission has not often exercised the right it reserves in all
preliminary permits to cancel the permit.
13. Continuing to follow this approach could provide some
regulatory protection for developing and testing new technology, could
prevent ``claim jumping,'' that is, interference with a prospective
applicant's ability to investigate the feasibility of a project, and
may provide some modest facilitation for financing new projects. On the
other hand, this approach would do nothing to resolve the concern we
have seen expressed that an entity could site-bank by filing for a
number of new technology projects that it has no real intent of
developing. It also would not resolve the question, raised in some
pending permit proceedings, of how to properly set the boundaries of
the area reserved for study by a preliminary permit holder. While it is
typically easy to determine the boundaries of a traditional, riverine
hydropower project, we have heard contrasting suggestions that
establishing strict boundaries for a new technology project would
artificially restrict the potential scope of such a project and that
allowing too wide boundaries in such cases would encourage site-
banking, to the possible detriment of competition in project
development.
B. Stricter Scrutiny Approach
14. In the alternative, the Commission could process new technology
preliminary permit applications with a view toward limiting the
boundaries of the permits, to prevent site-banking and to promote
competition. Further, to ensure that permit holders are actively
pursuing project exploration, the Commission would carefully scrutinize
the reports that permit holders are required to file on a semi-annual
basis,\23\ and would, where sufficient progress was not shown, consider
canceling the permit. Stricter scrutiny could entail requirements such
as reports on public outreach and agency consultation, development of
study plans, and deadlines for filing a notice of intent to file a
license application and a preliminary application document. This
approach could reduce site-banking, providing a disincentive for
developers to seek permits for projects that they are not ready to
pursue. By limiting the geographic scope of permits, we may encourage
more thoughtful development of permit applications, as well as
competition. On the negative side, this approach could, if not
carefully administered, make it more difficult for even well-
intentioned and prepared applicants to obtain multiple permits. It also
could require additional Commission resources to be devoted to the
permit program, both in more carefully examining applications, and in
giving stricter scrutiny to progress reports.
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\23\ As a standard condition in all preliminary permits, the
Commission requires the permit holder to file progress reports every
six months.
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C. Decline To Issue Preliminary Permits for New Technology Projects
15. As a third alternative, the Commission could decide, as a
matter of policy, not to issue preliminary permits for new technology
hydropower projects. In this case, all potential license applicants
would have equal opportunities to explore the development of new
technology projects, and the Commission would resolve any resultant
competition during the licensing phase. This procedure would resolve
concerns about site banking during the permit stage, because no entity
would have priority with respect to a project site until an application
was actually filed. Moreover, the Commission's regulatory authority
would not be invoked, and its resources not utilized, until an entity
had demonstrated the seriousness of its interest in a project by filing
an application. This would leave the market free to explore potential
projects, without the possibly artificial constraints imposed by the
existence of a preliminary permit held by an entity that lacks the
capacity, or does not have a serious intent, to develop a project. On
the negative side, potential applicants would not have the guarantee of
first-to-file priority while they explored potential projects. To the
extent that a preliminary permit provides some assistance in obtaining
financing, this aid would no longer be available.
Interim Statement of Policy
16. On balance, the Commission has decided to follow the ``strict
scrutiny'' approach during the pendency of this proceeding, because
this appears to respond to a significant number of the issues that have
been raised at the technical conference and in individual proceedings,
particularly with respect to site-banking and the scope of proposed
projects. However, we have not in any way decided whether we will
ultimately select one of the three alternatives set forth in this
notice of inquiry, and perhaps may choose some other approach. We will
determine how to proceed only after the Commission has had the
opportunity to review and consider the comments filed in response to
this notice.
Procedure for Comments
17. The Commission invites interested persons to submit comments,
and other information on the matters, issues and specific questions
identified in this notice. Comments are due on or before April 30,
2007. Comments must refer to Docket No. RM07-8-000, and must include
the commenters' name, the organization they represent, if applicable,
and their address.
18. Commenters are requested to use appropriate headings and to
double space their comments.
19. Comments may be filed on paper or electronically via the
eFiling link on the Commission's Web site at https://www.ferc.gov. The
Commission accepts most standard word processing formats and commenters
may attach additional
[[Page 9284]]
files with supporting information in certain other file formats.
Commenters filing electronically do not need to make a paper filing.
Commenters that are not able to file comments electronically must send
an original and 14 copies of their comments to: Federal Energy
Regulatory Commission, Office of the Secretary, 888 First Street, NE.,
Washington, DC 20426.
20. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters are not required to
serve copies of their comments on other commenters.
Document Availability
21. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through the Commission's Home Page (https://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A,
Washington, DC 20426.
22. From the Commission's Home Page on the Internet, this
information is available in the Commission's document management
system, eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number (excluding the last three digits) in the docket number field.
23. User assistance is available for eLibrary and the Commission's
Web site during normal business hours. For assistance, please contact
the Commission's Online Support at 1-866-208-3676 (toll free) or 202-
502-6652 (e-mail at FERCOnlineSupport@ferc.gov) or the Public Reference
Room at 202-502-8371, TTY 202-502-8659 (e-mail at
public.referenceroom@ferc.gov).
By direction of the Commission.
Magalie R. Salas,
Secretary.
[FR Doc. E7-3549 Filed 2-28-07; 8:45 am]
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