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Overall Description of Deadline: Public Law 109-58 charges agencies requiring mandatory conditions and prescriptions with the promulgation of new regulations by November 7, 2005, to provide the regulatory framework to implement a trial-type hearing process.

Statement of Need: The Departments of Agriculture, the Interior, and Commerce are jointly revising the procedures they established for expedited trial-type hearings. The three Departments are also revising the procedures they established for the consideration of alternative conditions and prescriptions submitted by any party to a Federal Energy Regulatory (FERC) hydroelectric licensing proceeding. Three substantially similar rules are being promulgated - one for each agency - with a joint preamble. The rules and preamble reflect changes to each Department’s interim final rules, in response to public comments and the Departments’ experience in implementing their interim final rules.

Summary of the Legal Basis: On November 17, 2005, the Departments of Agriculture, the Interior, and Commerce jointly published interim final rules implementing section 241 of the Energy Policy Act of 2005 (EPAct), Pub. L. 109-58. 70 FR 69804-51. In their joint preamble, the Departments stated that, based upon comments received and experience gained with their interim final rules, they would consider revising the rules.

Alternatives: There was some discussion among the Departmental/Agency representatives over the interpretation of the scope of work and trigger for conducting an alternative condition analysis. DOI proposed that the group conduct an alternative condition analysis on ALL mandatory conditions. The DOI position was agreed to with some clarification that this approach was selected as it is not explicit in the language of Section 241 of the Energy Policy Act of 2005.

Anticipated Costs and Benefits: The Final rule addresses the uncertainty by commenters about the “Interim Final” rule from 2005 and it incorporates some of the lessons learned of some of the Trial Type and Alternative Condition processes conducted since promulgation of the Interim Final Rule. The most notable costs are staff time to conduct an Alternative Condition Analysis for all mandatory terms and conditions submitted to FERC and potential litigation challenging the Alternative Condition Analysis due to limited expertise in some of the legislated considerations when conducting an Alternative Condition Analysis.

Risks: No risks have been identified at this time.