[Title 18 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2003 Edition]
[From the U.S. Government Printing Office]



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                    18


          Part 400 to End

                         Revised as of April 1, 2003

Conservation of Power and Water Resources





          Containing a codification of documents of general 
          applicability and future effect
          As of April 1, 2003
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003



  For sale by the Superintendent of Documents, U.S. Government Printing 
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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 18:
          Chapter III--Delaware River Basin Commission               3
          Chapter VI--Water Resources Council                       51
          Chapter VIII--Susquehanna River Basin Commission         103
          Chapter XIII--Tennessee Valley Authority                 131
  Finding Aids:
      Table of CFR Titles and Chapters........................     271
      Alphabetical List of Agencies Appearing in the CFR......     289
      List of CFR Sections Affected...........................     299



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

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  18 CFR 401.0 refers 
                       to title 18, part 401, 
                       section 0.

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

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
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name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
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LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 2003.



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                               THIS TITLE

    Title 18--Conservation of Power and Water Resources is composed of 
two volumes. The first volume containing parts 1 to 399, includes all 
current regulations of the Federal Energy Regulatory Commission, 
Department of Energy. The second volume, containing part 400 to end, 
includes all current regulations issued by the Delaware River Basin 
Commission, the Water Resources Council, the Susquehanna River Basin 
Commission, and the Tennessee Valley Authority as of April 1, 2003.

    The OMB control numbers for the Federal Energy Regulatory 
Commission, Department of Energy, appear in Sec. 389.101 of chapter I.

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           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES




                  (This book contains part 400 to End)

  --------------------------------------------------------------------
                                                                    Part

chapter iii--Delaware River Basin Commission................         401

chapter vi--Water Resources Council.........................         701

chapter viii--Susquehanna River Basin Commission............         801

chapter xiii--Tennessee Valley Authority....................        1300


Cross References: Applications and entries conflicting with lands 
  reserved or classified as power sites, or covered by power 
  applications: See Public Lands, Interior, 43 CFR part 2300, subpart 
  2320.

  Interstate Commerce Commission: See Transportation, 49 CFR chapter X.

  Irrigation projects; electrification, Bureau of Indian Affairs, 
Department of the Interior: See Indians, 25 CFR parts 175--177.

  Regulations of the Bureau of Land Management relating to rights-of-way 
for power, telephone, and telegraph purposes: See Public Lands, 
Interior, 43 CFR part 2800.

  Rights-of-way over Indian lands: See Indians, 25 CFR parts 169, 170, 
and 265.

  Securities and Exchange Commission: See Commodity and Securities 
Exchanges, 17 CFR chapter II.

  Withdrawal of public lands: See Public Lands, Interior, 43 CFR part 
2300.

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                    CHAPTER III--DELAWARE RIVER BASIN






                               COMMISSION




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

                   SUBCHAPTER A--ADMINISTRATIVE MANUAL
Part                                                                Page
401             Rules of practice and procedure.............           5
410             Basin regulations; water code and 
                    administrative manual--Part III water 
                    quality regulations.....................          27
415             Basin regulations--flood plain regulations..          27
420             Basin regulations--water supply charges.....          34
                    SUBCHAPTER B--SPECIAL REGULATIONS
430             Ground water protection area: Pennsylvania..          39

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                   SUBCHAPTER A--ADMINISTRATIVE MANUAL





PART 401--RULES OF PRACTICE AND PROCEDURE--Table of Contents




Sec.
401.0  Introduction.

                      Subpart A--Comprehensive Plan

401.1  Scope.
401.2  Concept of the plan.
401.3  Other agencies.
401.4  Project applications and proposed revisions and changes.
401.5  Review of applications.
401.6  Proposed revisions and changes.
401.7  Further action.
401.8  Public projects under Article 11 of the Compact.
401.9  Custody and availability.

                   Subpart B--Water Resources Program

401.21  Scope.
401.22  Concept of the Program.
401.23  Procedure.
401.24  Preparation and adoption.
401.25  Alternatives for public projects.
401.26  Inventory of other projects.

       Subpart C--Project Review Under Section 3.8 of the Compact

401.31  Scope.
401.32  Concept of 3.8.
401.33  Administrative agreements.
401.34  Submission of project required.
401.35  Classification of projects for review under Section 3.8 of the 
          Compact.
401.36  Water supply projects--Conservation requirements.
401.37  Sequence of approval.
401.38  Form of referral by State or Federal agency.
401.39  Form of submission of projects not requiring prior approval by 
          State or Federal agencies.
401.40  Informal conferences and emergencies.
401.41  Limitation of approval.

Subpart D [Reserved]

Subpart E--Appeals or Objections to Decisions of the Executive Director 
                         in Water Quality Cases

401.71  Scope.
401.72  Notice and request for hearing.
401.73  Form of request.
401.74  Form and contents of report.
401.75  Protection of trade secrets; Confidential information.
401.76  Failure to furnish report.
401.77  Informal conference.
401.78  Consolidation of hearings.

              Subpart F--Administrative and Other Hearings

401.81  Hearings generally.
401.82  Authorization to conduct hearings.
401.83  Hearing Officer.
401.84  Hearing procedure.
401.85  Staff and other expert testimony.
401.86  Record of proceedings.
401.87  Assessment of costs; Appeals.
401.88  Findings, report and Commission review.
401.89  Action by the Commission.
401.90  Appeals from final Commission action; Time for appeals.

        Subpart G--Penalties and Settlements in Lieu of Penalties

401.91  Scope of subpart.
401.92  Notice to possible violators.
401.93  The record for decision-making.
401.94  Adjudicatory hearings.
401.95  Assessment of a penalty.
401.96  Factors to be applied in fixing penalty amount.
401.97  Enforcement of penalties.
401.98  Settlement by agreement in lieu of penalty.
401.99  Suspension or modification of penalty.

           Subpart H--Public Access to Records and Information

401.101  Policy on disclosure of Commission records.
401.102  Partial disclosure of records.
401.103  Request for existing records.
401.104  Preparation of new records.
401.105  Indexes of certain records.
401.106  FOIA Officer.
401.107  Permanent file of requests for Commission records.
401.108  Filing a request for records.
401.109  Time limitations.
401.110  Fees.
401.111  Waiver of fees.
401.112  Exempt information.
401.113  Segregable materials.
401.114  Data and information previously disclosed to the public.
401.115  Discretionary disclosure by the Executive Director.
401.116  Disclosure to consultants, advisory committees, State and local 
          government officials, and other special government employees.
401.117  Disclosure to other Federal government departments and 
          agencies.

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401.118  Disclosure in administrative or court proceedings.
401.119  Disclosure to Congress.

                      Subpart I--General Provisions

401.121  Definitions.
401.122  Supplementary details.
401.123  Waiver of rules.
401.124  Construction.

    Authority: Delaware River Basin Compact (75 Stat. 688), unless 
otherwise noted.

    Source: 39 FR 25474, July 11, 1974, unless otherwise noted.



Sec. 401.0  Introduction.

    (a) The Delaware River Basin Compact requires the Commission to 
formulate and adopt a Comprehensive Plan and Water Resources Program. In 
addition, the Compact provides in Section 3.8 that no project having a 
substantial effect on the water resources of the Basin shall be 
undertaken unless it shall have been first submitted to and approved by 
the Commission. The Commission is required to approve a project whenever 
it finds and determines that such project would not substantially impair 
or conflict with the Comprehensive Plan. Section 3.8 further provides 
that the Commission shall provide by regulation for the procedure of 
submission, review and consideration of projects and for its 
determinations pursuant to Section 3.8.
    (b) The Comprehensive Plan consists of all public and those private 
projects and facilities which the Commission has directed be included 
therein. It also includes those documents and policies which the 
Commission has determined should be included with the Comprehensive Plan 
as being needed to insure optimum planning, development, conservation, 
use, management and control of the water resources of the Delaware Basin 
to meet present and future needs. The Comprehensive Plan is subject to 
periodic review and revision as provided in Sections 3.2 and 13.1 of the 
Compact.
    (c) The Water Resources Program is based upon the Comprehensive 
Plan. It is required to be updated annually and to include a systematic 
presentation of the quantity and quality of water resources needs of the 
area to be served for such reasonably foreseeable period as the 
Commission may determine, balanced by existing and proposed projects 
required to satisfy such needs. The Commission's review and modification 
of the Water Resources Program is conducted pursuant to the provisions 
of Articles 3.2 and 13.2 of the Compact.
    (d) The Commission's Rules of Practice and Procedure govern the 
adoption and revision of the Comprehensive Plan, the Water Resources 
Program, the exercise of the Commission's authority pursuant to the 
provisions of Article 3.8 and other actions of the Commission mandated 
or authorized by the Compact.
    (e) These Rules of Practice and Procedure extend to the following 
areas of Commission responsibility and regulation:

Article 1--Comprehensive Plan.
Article 2--Water Resources Program.
Article 3--Project Review Under Section 3.8 of the Compact.
Article 4--(Reserved).
Article 5--Appeals or Objections to Decisions of the Executive Director 
in Water Quality Cases.
Article 6--Administrative and Other Hearings.
Article 7--Penalties and Settlements in Lieu of Penalties.
Article 8--Public Access to the Commission's Records and Information.
Article 9--General Provisions.

    (f) These rules are subject to Commission revision and modification 
from time to time as the Commission may determine. The Commission 
reserves the right to waive any Rule of Practice and Procedure it 
determines should not be applicable in connection with any matter 
requiring Commission action. All actions by the Commission, however, 
shall comply fully with the applicable provisions of the Compact.

[62 FR 64154, Dec. 4, 1997]



                      Subpart A--Comprehensive Plan

    Source: 62 FR 64154, Dec. 4, 1997, unless otherwise noted.



Sec. 401.1   Scope.

    This subpart shall govern the submission, consideration, and 
inclusion of projects into the Comprehensive Plan.

[[Page 7]]



Sec. 401.2   Concept of the plan.

    (a) The Comprehensive Plan shall be adopted, revised and modified as 
provided in Sections 3.2 and 13.1 of the Compact. It is the Commission's 
responsibility to adopt the Comprehensive Plan, after consultation with 
water users and interested public bodies, for the immediate and long-
range development and uses of the water resources of the Basin. The Plan 
shall include the public and private projects and facilities which the 
Commission determines are required for the optimum planning, 
development, conservation, utilization, management and control of the 
water resources of the Basin to meet present and future needs. In 
addition to the included projects and facilities, the Comprehensive Plan 
consists of the statements of policies, and programs that the Commission 
determines are necessary to govern the proper development and use of the 
River Basin. The documents within the Comprehensive Plan expressing the 
Commission's policies and programs for the future, including the means 
for carrying them out, may be set forth through narrative text, maps, 
charts, schedules, budgets and other appropriate means.
    (b) Specific projects and facilities and statements of policy and 
programs may be incorporated, deleted or modified from time to time to 
reflect changing conditions, research results and new technology. The 
degree of detail described in particular projects may vary depending 
upon the status of their development.



Sec. 401.3   Other agencies.

    Projects of the federal agencies affecting the water resources of 
the Basin, subject to the limitations in Section 1.4 of the Compact, 
shall be governed by Section 11.1 of the Compact. Projects of the 
signatory states, their political subdivisions and public corporations 
affecting the water resources of the Basin, shall be governed by the 
provisions of Section 11.2 of the Compact.



Sec. 401.4   Project applications and proposed revisions and changes.

    (a) Applications for inclusion of new public projects and the 
deletion or alteration of previously included public projects may be 
submitted by signatory parties and agencies or political subdivisions 
thereof. Owners or sponsors of privately owned projects may submit 
applications for the inclusion of new private projects and the deletion 
or alteration of previously included private projects in which the 
applicant has an interest. The Commission may also receive and consider 
proposals for changes and additions to the Comprehensive Plan which may 
be submitted by any agency of the signatory parties, or any interested 
person, organization, or group. Any application or proposal shall be 
submitted in such form as may be required by the Executive Director to 
facilitate consideration by the Commission.
    (b) Applications for projects shall include at least the following 
information:
    (1) Purpose or purposes, including quantitative measures of physical 
benefit anticipated from the proposal;
    (2) The location, physical features and total area required.
    (3) Forecast of the cost or effect on the utilization of water 
resources;
    (4) Relation to other parts of the existing Comprehensive Plan;
    (5) A discussion of conformance with Commission policies included in 
the Comprehensive Plan; and
    (6) A discussion of the alternatives considered.



Sec. 401.5  Review of applications.

    Following staff study, examination, and review of each project 
application, the Commission shall hold a public hearing upon notice 
thereon as provided in paragraph 14.4(b) of the Compact and may take 
such action on a project application as it finds to be appropriate.



Sec. 401.6  Proposed revisions and changes.

    Proposals for changes and additions to the Comprehensive Plan 
submitted by any agency of the signatory parties or any interested 
person, organization or group shall identify the specific revision or 
change recommended. In order to permit adequate Commission

[[Page 8]]

consideration of any proposal, the Executive Director may require such 
additional information as may be needed. Review or consideration of such 
proposals shall be based upon the recommendation of the Executive 
Director and the further direction of the Commission.



Sec. 401.7  Further action.

    The Commission will review the Comprehensive Plan in its entirety at 
least once every six years from the date of the initial adoption of the 
Comprehensive Plan (March 28, 1962). Such review may include 
consideration of proposals submitted by the signatory parties, agencies 
or political subdivision thereof or other interested parties. The 
amendments, additions, and deletions adopted by the Commission will be 
compiled and the Plan as so revised shall be made available for public 
inspection.



Sec. 401.8  Public projects under Article 11 of the Compact.

    (a) After a project of any federal, state or local agency has been 
included in the Comprehensive Plan, no further action will be required 
by the Commission or by the agency to satisfy the requirements of 
Article 11 of the Compact, except as the Comprehensive Plan may be 
amended or revised pursuant to the Compact and this part. Any project 
which is changed substantially from the project as described in the 
Comprehensive Plan will be deemed to be a new and different project for 
the purposes of Article 11 of the Compact. Whenever a change is made the 
sponsor shall advise the Executive Director who will determine whether 
the change is deemed substantial within the meaning of this part.
    (b) Any public project not having a substantial effect on the water 
resources of the Basin, as defined in subpart C of this part, may 
proceed without reference to Article 11 of the Compact.



Sec. 401.9  Custody and availability.

    The Comprehensive Plan shall be and remain in the custody of the 
Executive Director. The Plan, including all maps, charts, description 
and supporting data shall be and remain a public record open to 
examination during the regular business hours of the Commission, under 
such safeguards as the Executive Director may determine to be necessary 
to preserve and protect the Plan against loss, damage or destruction. 
Copies of the Comprehensive Plan or any part or parts thereof shall be 
made available by the Executive Director for public sale at a price 
covering the cost of production and distribution.



                   Subpart B--Water Resources Program



Sec. 401.21  Scope.

    This subpart shall govern the submission, consideration and 
inclusion of projects into the Water Resources Program.



Sec. 401.22  Concept of the Program.

    The Water Resources Program, as defined and described in section 
13.2 of the Compact, will be a reasonably detailed amplification of that 
part of the Comprehensive Plan which the Commission recommends for 
action within the ensuing six-year period. That part of the Program 
consisting of a presentation of the water resources needs of the basin 
will be revised only at such intervals as may be indicated to reflect 
new findings and conclusions, based upon the Commission's continuing 
planning programs.



Sec. 401.23  Procedure.

    Each project included in the Water Resources Program shall have been 
previously included in the Comprehensive Plan, except that a project may 
be added to both the Plan and the Program by concurrent action of the 
Commission. The project's sponsor shall furnish the following 
information prior to the inclusion of the project in the Water Resources 
Program:
    (a) The Comprehensive Plan data brought up-to-date for the period of 
the Water Resources Program.
    (b) Specific location and dimension of a structural project, and 
specific language of a standard, policy or other non-structural 
proposal.
    (c) The plan of operation of a structural project.
    (d) The specific effects of a non-structural project.

[[Page 9]]

    (e) Sufficient data to indicate a workable financial plan under 
which the project will be carried out.
    (f) A timetable for implementation.



Sec. 401.24  Preparation and adoption.

    The Water Resources Program will be prepared and considered by the 
Commission for adoption annually. Projects required to satisfy the basin 
needs during the period covered by the Program may be classified as 
follows:
    (a) ``A'' list. This shall include public projects which require no 
further review, and inclusion in such list shall be deemed to be 
approved for the purposes of section 3.8 of the Compact.
    (b) ``B'' list. This shall include public projects not included in 
the ``A'' list and privately sponsored projects which are proposed or 
anticipated by the Commission.



Sec. 401.25  Alternatives for public projects.

    Any publc project which has been included in the Comprehensive Plan 
but is not on the ``A'' list of the current Water Resources Program, at 
the option of the sponsor, may be submitted for review and approval 
under section 3.8 of the Compact in accordance with Subpart C of this 
part.



Sec. 401.26  Inventory of other projects.

    Each Water Resources Program will include, for information purposes 
only, an inventory of projects approved during the previous year 
pursuant to section 3.8 of the Compact but which are not part of the 
Comprehensive Plan or Water Resources Program.



       Subpart C--Project Review Under Section 3.8 of the Compact

    Source: 62 FR 64155, Dec. 4, 1997, unless otherwise noted.



Sec. 401.31  Scope.

    This subpart shall govern the submission and review of projects 
under Section 3.8 of the Delaware River Basin Compact.



Sec. 401.32  Concept of 3.8.

    Section 3.8 is intended to protect and preserve the integrity of the 
Comprehensive Plan. This section of the Compact provides:

    ``No project having a substantial effect on the water resources of 
the basin shall hereafter be undertaken by any person, corporation or 
governmental authority unless it shall have been first submitted to and 
approved by the Commission, subject to the provisions of Sections 3.3 
and 3.5. The Commission shall approve a project whenever it finds and 
determines that such project would not substantially impair or conflict 
with the Comprehensive Plan and may modify and approve as modified, or 
may disapprove any such project whenever it finds and determines that 
the project would substantially impair or conflict with such Plan. The 
Commission shall provide by regulation for the procedure of submission, 
review and consideration of projects, and for its determinations 
pursuant to this section. Any determination of the Commission hereunder 
shall be subject to judicial review in any court of competent 
jurisdiction.''



Sec. 401.33  Administrative agreements.

    The Executive Director is authorized and directed to enter into 
cooperative Administrative Agreements with federal and state regulatory 
agencies concerned with the review of projects under federal or state 
law as follows:
    (a) To facilitate the submission and review of applications and the 
determinations required under Section 3.8 of the Compact;
    (b) To avoid unnecessary duplication of staff functions and hearings 
required by law; and
    (c) For such other and different purposes as he may deem feasible 
and advantageous for the administration of the Compact or any other law.



Sec. 401.34  Submission of project required.

    Any project which may have a substantial effect on the water 
resources of the Basin, except as provided in paragraph (d) of this 
section, shall be submitted to the Commission for a determination as to 
whether the project impairs or conflicts with the Comprehensive Plan, as 
follows:
    (a) Where the project is subject to review by a state or federal 
agency which has entered into an Administrative Agreement with the 
Commission, such project will be referred to the Commission in 
accordance with the terms of

[[Page 10]]

the Administrative Agreement, and appropriate instructions will be 
prepared and issued by the Executive Director for guidance of project 
sponsors and applicants.
    (b) Where no other state or federal agency has jurisdiction to 
review and approve a project, or no Administrative Agreement is in 
force, the project sponsor shall apply directly to the Commission.
    (c) Any project proposal, which may have a substantial effect on the 
water resources of the Basin, may be received and reviewed by the staff 
informally in conference with the project sponsor during the preliminary 
planning phase to assist the sponsor to develop the project in 
accordance with the Commission's requirements.
    (d) Whenever a project sponsored by one of the signatory parties, or 
by any agency, political subdivision or public corporation thereof, has 
been included in the Water Resources Program in the ``A List'' 
classification, the project, to the extent of such inclusion and as 
described in the Program, shall be deemed approved for the purposes of 
Section 3.8 of the Compact.
    (e) Whenever a project is subject to review and approval by the 
Commission under this section, there shall be no substantial 
construction activity thereon, including related preparation of land, 
unless and until the project has been approved by the Commission; 
provided, however, that this prohibition shall not apply to the drilling 
of wells for purposes of obtaining geohydrologic data, nor to in-plant 
control and pretreatment facilities for pollution abatement.



Sec. 401.35  Classification of projects for review under Section 3.8 of the Compact.

    (a) Except as the Executive Director may specially direct by notice 
to the project owner or sponsor, or as a state or federal agency may 
refer under paragraph (c) of this section, a project in any of the 
following classifications will be deemed not to have a substantial 
effect on the water resources of the Basin and is not required to be 
submitted under Section 3.8 of the Compact:
    (1) The construction of new impoundments or the enlargement or 
removal of existing impoundments, for whatever purpose, when the storage 
capacity is less than 100 million gallons;
    (2) A withdrawal from ground water for any purpose when the daily 
average gross withdrawal during any 30 consecutive day period does not 
exceed 100,000 gallons;
    (3) A withdrawal from impoundments or running streams for any 
purpose when the daily average gross withdrawal during any 30 
consecutive day period does not exceed 100,000 gallons;
    (4) The construction of new domestic sewage treatment facilities or 
alteration or addition to existing domestic sewage treatment facilities 
when the design capacity of such facilities is less than a daily average 
rate of 10,000 gallons per day in the drainage area to Outstanding Basin 
Waters and Significant Resource Waters or less than 50,000 gallons per 
day elsewhere in the Basin; and all local sewage collector systems and 
improvements discharging into authorized trunk sewage systems;
    (5) The construction of new facilities or alteration or addition to 
existing facilities for the direct discharge to surface or ground waters 
of industrial wastewater having design capacity of less than 10,000 
gallons per day in the drainage area to Outstanding Basin Waters and 
Significant Resource Waters or less than 50,000 gallons per day 
elsewhere in the Basin; except where such wastewater contains toxic 
concentrations of waste materials;
    (6) A change in land cover on major ground water infiltration areas 
when the amount of land that would be altered is less than three square 
miles;
    (7) Deepening, widening, cleaning or dredging existing stream beds 
or relocating any channel, and the placement of fill or construction of 
dikes, on streams within the Basin except the Delaware River and tidal 
portions of tributaries thereto, and streams draining more than one 
state;
    (8) Periodic maintenance dredging;
    (9) Encroachments on streams within the Basin caused by:
    (i) Floating docks and anchorages and buoys and navigational aids;
    (ii) Temporary construction such as causeways, cofferdams and 
falsework

[[Page 11]]

required to facilitate construction on permanent structures;
    (10) Bridges and highways unless they would pass in or across an 
existing or proposed reservoir or recreation project area as designated 
in the Comprehensive Plan;
    (11) Liquid petroleum products pipelines and appurtenances designed 
to operate under pressures less than 150 psi; local electric 
distribution lines and appurtenances; local communication lines and 
appurtenances; local natural and manufactured gas distribution lines and 
appurtenances; local water distribution lines and appurtenances; and 
local sanitary sewer mains, unless such lines would involve significant 
disturbance of ground cover affecting water resources;
    (12) Electric transmission or bulk power system lines and 
appurtenances; major trunk communication lines and appurtenances; 
natural and manufactured gas transmission lines and appurtenances; major 
water transmission lines and appurtenances; unless they would pass in, 
on, under or across an existing or proposed reservoir or recreation 
project area as designated in the Comprehensive Plan; unless such lines 
would involve significant disturbance of ground cover affecting water 
resources;
    (13) Liquid petroleum products pipelines and appurtenances designed 
to operate under pressures of more than 150 psi, unless they would pass 
in, on, under or across an existing or proposed reservoir or recreation 
project area as designated in the Comprehensive Plan, or in, on, under 
or across any stream within the Basin; unless such lines would involve 
significant disturbance of ground cover affecting water resources;
    (14) Landfill projects, unless no state-level review and permit 
system is in effect; broad regional consequences are anticipated; or the 
standards or criteria used in state level review are not adequate to 
protect the water of the Basin for the purposes prescribed in the 
Comprehensive Plan;
    (15) Draining, filling or otherwise altering marshes or wetlands 
when the area affected is less than 25 acres; provided; however, that 
areas less than 25 acres shall be subject to Commission review and 
action;
    (i) Where neither a state nor a federal level review and permit 
system is in effect, and the Executive Director determines that a 
project is of major regional or interstate significance requiring action 
by the Commission, or
    (ii) When a Commissioner or the Executive Director determines that 
the final action of a state or federal permitting agency may not 
adequately reflect the Commission's policy as to wetlands of the Basin. 
In the case of a project affecting less than 25 acres for which there 
has been issued a state or federal permit, a determination to undertake 
review and action by the Commission shall be made no later than 30 days 
following notification of the Commission of such permit action. The 
Executive Director, with the approval of the Chairman, may at any time 
within the 30-day period inform any permit holder, signatory party or 
other interested party that the Commission will decline to undertake 
review and action concerning any such project;
    (16) The diversion or transfer of water from the Delaware River 
Basin (exportation) whenever the design capacity is less than a daily 
average rate of 100,000 gallons;
    (17) The diversion or transfer of water into the Delaware River 
Basin (importation) whenever the design capacity is less than a daily 
average rate of 100,000 gallons except when the imported water is 
wastewater;
    (18) The diversion or transfer of wastewater into the Delaware River 
Basin (importation) whenever the design capacity is less than a daily 
average rate of 50,000 gallons; and
    (19) Temporary or short term projects determined to have non-
substantial impact on the water resources of the Basin by the Executive 
Director.
    (b) All other projects which have or may have a substantial effect 
on the water resources of the Basin shall be submitted to the Commission 
in accordance with this part for determination as to whether the project 
impairs or conflicts with the Comprehensive Plan. Among these are 
projects involving the following (except as provided in paragraph (a) of 
this section):
    (1) Impoundment of water;

[[Page 12]]

    (2) Withdrawal of ground water;
    (3) Withdrawal of water from impoundment or streams;
    (4) Diversion of water into or out of the Basin;
    (5) Deepening or widening of existing stream beds, channels, 
anchorages, harbors or tuning basins, or the construction of new or 
enlarged channels, anchorages, harbors or turning basins, or the 
dredging of the bed of any stream or lake and disposal of the dredged 
spoil, when the nature or location of the project would affect the 
quantity or quality of ground or surface waters, or fish and wildlife 
habitat;
    (6) Discharge of pollutants into surface or ground waters of the 
Basin;
    (7) Facilities designed to intercept and transport sewage to a 
common point of discharge; and pipelines and electric power and 
communication lines;
    (8) Facilities for the direct discharge to surface or ground waters 
of industrial wastewater;
    (9) Projects that substantially encroach upon the stream or upon the 
100-year flood plain of the Delaware River or its tributaries;
    (10) Change in land cover on major ground water infiltration areas;
    (11) Hydroelectric power projects, including pumped storage 
projects;
    (12) Projects or facilities of Federal, state and local agencies 
such as highways, buildings and other public works and improvements, 
affecting the water and related land resources of the Basin;
    (13) Draining, filling or otherwise altering marshes or wetlands;
    (14) Regional wastewater treatment plans developed pursuant to the 
Federal Water Pollution Control Act;
    (15) Landfills and solid waste disposal facilities affecting the 
water resources of the Basin;
    (16) State and local standards of flood plain regulation;
    (17) Electric generating or cogenerating facilities designed to 
consumptively use in excess of 100,000 gallons per day of water during 
any 30-day period; and
    (18) Any other project that the Executive Director may specially 
direct by notice to the project sponsor or land owner as having a 
potential substantial water quality impact on waters classified as 
Special Protection Waters.
    (c) Whenever a state or federal agency determines that a project 
falling within an excluded classification (as defined in paragraph (a) 
of this section) may have a substantial effect on the water resources of 
the Basin, such project may be referred by the state or federal agency 
to the Commission for action under this part.
    (d) Except as otherwise provided by Sec. 401.39 the sponsor shall 
submit an application for review and approval of a project included 
under paragraph (b) of this section through the appropriate agency of a 
signatory party. Such agency will transmit the application or a summary 
thereof to the Executive Director, pursuant to Administrative Agreement, 
together with available supporting materials filed in accordance with 
the practice of the agency of the signatory party.



Sec. 401.36  Water supply projects--Conservation requirements.

    Maximum feasible efficiency in the use of water is required on the 
part of water users throughout the Basin. Effective September 1, 1981 
applications under Section 3.8 of the Compact for new water withdrawals 
subject to review by the Commission shall include and describe water-
conserving practices and technology designed to minimize the use of 
water by municipal, industrial and agricultural users, as provided in 
this section.
    (a) Applications for approval of new withdrawal from surface or 
ground water sources submitted by a municipality, public authority or 
private water works corporation whose total average withdrawals exceed 
one million gallons per day shall include or be in reference to a 
program prepared by the applicant consisting of the following elements:
    (1) Periodic monitoring of water distribution and use, and 
establishment of a systematic leak detection and control program;
    (2) Use of the best practicable water-conserving devices and 
procedures by all classes of users in new construction or installations, 
and provision of information to all classes of existing users

[[Page 13]]

concerning the availability of water-conserving devices and procedures; 
and
    (3) A contingency plan including use priorities and emergency 
conservation measures to be instituted in the event of a drought or 
other water shortage condition. Contingency plans of public authorities 
or private water works corporations shall be prepared in cooperation 
with, and made available to, all municipalities in the area affected by 
the contingency plan, and shall be coordinated with any applicable 
statewide water shortage contingency plans.
    (b) Programs prepared pursuant to paragraph (a) of this section 
shall be subject to any applicable limitations of public utility 
regulations of the signatory party in which the project is located.
    (c) Applications for approval of new industrial or commercial water 
withdrawals from surface or ground water sources in excess of an average 
of one million gallons per day shall contain
    (1) A report of the water-conserving procedures and technology 
considered by the applicant, and the extent to which they will be 
applied in the development of the project; and
    (2) A contingency plan including emergency conservation measures to 
be instituted in the event of a drought or other water shortage. The 
report and contingency plan shall estimate the impact of the water 
conservation measures upon consumptive and non-consumptive water use by 
the applicant.
    (d) Applications for approval of new agricultural irrigation water 
withdrawals from surface or ground water sources in excess of one 
million gallons per day shall include a statement of the operating 
procedure or equipment to be used by the applicant to achieve the most 
efficient method of application of water and to avoid waste.
    (e) Reports, programs and contingency plans required under this 
section shall be submitted by the applicant as part of the permit 
application to the state agency having jurisdiction over the project, or 
directly to the Commission in those cases where the project is not 
subject to the jurisdiction of a state agency. State agencies having 
jurisdiction over a project that is subject to the provisions of this 
section shall determine the adequacy and completeness of the applicant's 
compliance with these requirements and shall advise the Commission of 
their findings and conclusions.



Sec. 401.37  Sequence of approval.

    A project will be considered by the Commission under Section 3.8 of 
the Compact either before or after any other state or federal review, in 
accordance with the provisions of the Administrative Agreement 
applicable to such project.



Sec. 401.38  Form of referral by State or Federal agency.

    Upon approval by any State or Federal agency of any project 
reviewable by the Commission under this part, if the project has not 
prior thereto been reviewed and approved by the Commission, such agency 
shall refer the project for review under Section 3.8 of the Compact in 
such form and manner as shall be provided by Administrative Agreement.
    (a) The Commission will rely on the appropriate agency in each state 
to review and regulate the potability of all public water supplies. 
Applications before the Commission should address the impact of the 
withdrawal, use and disposal of water on the water resources of the 
Basin.
    (b) The Commission will rely on signatory party reviews as much as 
possible and generally the Commission will not review the performance 
standards of individual components of treatment processes but will 
require compliance with all policies in the Comprehensive Plan including 
all applicable Water Quality Standards.



Sec. 401.39  Form of submission of projects not requiring prior approval by State or Federal agencies.

    Where a project does not require approval by any other State or 
Federal agency, or where such approval is required but an Administrative 
Agreement is not in force, the project shall be submitted directly to 
the Commission for review and determination of compatibility with the 
Comprehensive Plan, in such form of application, with such supporting 
documentation, as the

[[Page 14]]

Executive Director may reasonably require for the administration of the 
provisions of the Compact. These shall include without limitation 
thereto:
    (a) Exhibits to accompany application. The application shall be 
accompanied by the following exhibits:
    (1) Abstract of proceedings authorizing project, where applicable;
    (2) General map showing specific location and dimension of a 
structural project, or specific language of a standard or policy in the 
case of a non-structural proposal;
    (3) Section of the United States Geological Survey topographic map 
showing the territory and watershed affected;
    (4) Maps, drawings, specifications and profiles of any proposed 
structures, or a description of the specific effects of a non-structural 
project;
    (5) Written report of the applicant's engineer showing the proposed 
plan of operation of a structural project;
    (6) Map of any lands to be acquired or occupied;
    (7) Estimate of the cost of completing the proposed project, and 
sufficient data to indicate a workable financial plan under which the 
project will be carried out; and
    (8) Analyses and conclusions of regional water supply and wastewater 
investigations.
    (b) Letter of transmittal. The application shall be accompanied by a 
letter of transmittal in which the applicant shall include a list of all 
enclosures, the names and addresses to which communications may be 
directed to the applicant, and the names and addresses of the 
applicant's engineer and counsel, if any.
    (c) Unless otherwise ordered by the Commission, two copies of the 
application and accompanying papers shall be filed. If any application 
is contested, the Commission may require additional copies of the 
application and all accompanying papers to be furnished by the 
applicant. In such cases, certified copies of photographic prints or 
reproduction may be used.



Sec. 401.40  Informal conferences and emergencies.

    (a) Whenever the Executive Director shall deem necessary, or upon 
request of the applicant, an informal conference may be scheduled to 
explain, supplement or review an application.
    (b) In the event of an emergency requiring immediate action to 
protect the public interest or to avoid substantial and irreparable 
injury to any private person or property, and the circumstances do not 
permit a review, hearing and determination in the regular course of the 
regulations in this part, the Executive Director with the approval of 
the chairman of the Commission may issue an emergency certificate 
authorizing an applicant to take such action as the Executive Director 
may deem necessary and proper in the circumstances, pending review, 
hearing and determination by the Commission as otherwise required in 
this part.



Sec. 401.41  Limitation of approval.

    (a) Approval by the Commission under this part shall expire three 
years from the date of Commission action unless prior thereto the 
sponsor has expended substantial funds (in relation to the cost of the 
project) in reliance upon such approval. An approval may be extended or 
renewed by the Commission upon application.
    (b) Any application that remains dormant (no proof of active pursuit 
of approvals) for a period of three years from date of receipt, shall be 
automatically terminated. Any renewed activity following that date will 
require submission of a new application.

Subpart D [Reserved]



Subpart E--Appeals or Objections to Decisions of the Executive Director 
                         in Water Qualtity Cases

    Source: 62 FR 64158, Dec. 4, 1997, unless otherwise noted.



Sec. 401.71  Scope.

    This subpart shall apply to the review, hearing and decision of 
objections and issues arising as a result of administrative actions and 
decisions taken or rendered by the Executive Director under the Compact 
and the regulations in this chapter. Any hearings

[[Page 15]]

shall be conducted pursuant to the provisions of subpart F of this part.



Sec. 401.72  Notice and request for hearing.

    The Executive Director shall serve notice of an action or decision 
by him under the regulations in this chapter by personal service or 
certified mail, return receipt requested. The affected discharger shall 
be entitled (and the notice of action or decision shall so state) to 
show cause at a Commission hearing why such action or decision should 
not take effect. A request for such a hearing shall be filed with the 
Secretary of the Commission not more than 30 days after service of the 
Executive Director's determination. Failure to file such a request 
within the time limit shall be deemed to be an acceptance of the 
Executive Director's determination and a waiver of any further hearing.

[62 FR 64158, Dec. 4, 1997, as amended at 63 FR 45943, Aug. 28, 1998]



Sec. 401.73  Form of request.

    (a) A request for a hearing may be informal but shall indicate the 
name of the individual and the address to which an acknowledgment may be 
directed. It may be stated in such detail as the objector may elect. The 
request shall be deemed filed only upon receipt by the Commission.
    (b) Whenever the Executive Director determines that the request for 
a hearing is insufficient to identify the nature and scope of the 
objection, or that one or more issues may be resolved, reduced or 
identified by such action, he may require the objector to prepare and 
submit to the Commission, within such reasonable time (not less than 30 
days) as he may specify, a technical report of the facts relating to the 
objection prior to the scheduling of the hearing. The report shall be 
required by notice in writing served upon the objector by certified 
mail, return receipt requested, addressed to the person or entity filing 
the request for hearing at the place indicated in the request.



Sec. 401.74  Form and contents of report.

    (a) Generally. A request for a report under this subpart may require 
such information and the answers to such questions as may be reasonably 
pertinent to the subject of the action or determination under 
consideration.
    (b) Waste loading. In cases involving objections to an allocation of 
the assimilative capacity of a stream, wasteload allocation for a point 
source, or load allocation for a new point source, the report shall be 
signed and verified by a technically qualified person having personal 
knowledge of the facts stated therein, and shall include such of the 
following items as the Executive Director may require:
    (1) A specification with particularity of the ground or grounds for 
the objection; and failure to specify a ground for objection prior to 
the hearing shall foreclose the objector from thereafter asserting such 
a ground at the hearing;
    (2) A description of industrial processing and waste treatment 
operational characteristics and outfall configuration in such detail as 
to permit an evaluation of the character, kind and quantity of the 
discharges, both treated and untreated, including the physical, chemical 
and biological properties of any liquid, gaseous, solid, radioactive, or 
other substance composing the discharge in whole or in part;
    (3) The thermal characteristics of the discharges and the level of 
heat in flow;
    (4) Information in sufficient detail to permit evaluation in depth 
of any in-plant control or recovery process for which credit is claimed;
    (5) The chemical and toxicological characteristics including the 
processes and/or indirect discharges which may be the source of the 
chemicals or toxicity;
    (6) An analysis of all the parameters that may have an effect on the 
strength of the waste or impinge upon the water quality criteria set 
forth in the regulations in this chapter, including a determination of 
the rate of biochemical oxygen demand and the projection of a first-
stage carbonaceous oxygen demand;
    (7) Measurements of the waste as closely as possible to the 
processes where the wastes are produced, with the sample composited 
either continually or at frequent intervals (one-half hour or, where 
permitted by the Executive Director, one hour periods), so as

[[Page 16]]

to represent adequately the strength and volume of waste that is 
discharged; and
    (8) Such other and additional specific technical data as the 
Executive Director may reasonably consider necessary and useful for the 
proper determination of a wasteload allocation.

[62 FR 64158, Dec. 4, 1997, as amended at 63 FR 45943, Aug. 28, 1998]



Sec. 401.75  Protection of trade secrets; Confidential information.

    No person shall be required in such report to divulge trade secrets 
or secret processes. All information disclosed to any Commissioner, 
agent or employee of the Commission in any report required by this part 
shall be confidential for the purposes of Section 1905 of Title 18 of 
the United States Code which provides:

    Whoever, being an officer or employee of the United States or of any 
department or agency thereof, publishes, divulges, discloses, or makes 
known in any manner or to any extent not authorized by law any 
information coming to him in the course of his employment or official 
duties or by reason of any examination or investigation made by, or 
return, report or record made to or filed with, such department or 
agency or officer or employee thereof, which information concerns or 
relates to the trade secrets, processes, operations, style of work, or 
apparatus, or to the identity, confidential statistical data, amount or 
source of any income, profits, losses, or expenditures of any person, 
firm, partnership, corporation or association; or permits any income 
return or copy thereof to be seen or examined by any persons except as 
provided by law; shall be fined not more than $1,000 or imprisoned not 
more than one year, or both; and shall be removed from office or 
employment. June 25, 1948, C.645, 62 Stat. 791.



Sec. 401.76   Failure to furnish report.

    The Executive Director may, upon five days` notice to the objector 
dismiss the request for a hearing as to any objector who fails to file a 
complete report within such time as shall be prescribed in the 
Director's notice.



Sec. 401.77   Informal conference.

    Whenever the Executive Director deems it appropriate, he may cause 
an informal conference to be scheduled between an objector and such 
member of the Commission staff as he may designate. The purpose of such 
a conference shall be to resolve or narrow the ground or grounds of the 
objections.



Sec. 401.78   Consolidation of hearings.

    Following such informal conferences as may be held, to the extent 
that the same or similar grounds for objections are raised by one or 
more objectors, the Executive Director may in his discretion and with 
the consent of the objectors, cause a consolidated hearing to be 
scheduled at which two or more objectors asserting that ground may be 
heard.



              Subpart F--Administrative and Other Hearings

    Source: 62 FR 64159, Dec. 4, 1997, unless otherwise noted.



Sec. 401.81  Hearings generally.

    (a) Scope of subpart. This subpart shall apply to contested cases 
required to be held under subparts C and E of this part, to the conduct 
of other administrative hearings involving contested cases and to 
proceedings which Commission regulation or the Commission directs be 
conducted pursuant to this subpart.
    (b) Definition of contested case. ``Contested case'' means a 
proceeding in which the legal rights, duties, obligations, privileges, 
benefits or other legal relations of specific parties are involved. Such 
a proceeding may involve personnel matters, project applications and 
docket decisions but shall not extend to the review of any proposed or 
adopted rule or regulation of the Commission.
    (c) Requests for hearings. Any person seeking a hearing to review 
the action or decision of the Commission or the Executive Director may 
request a hearing pursuant to the provisions of this subpart provided 
such a request is received by the Commission within thirty (30) days of 
the action or decision which is the subject of the requested hearing. 
Requests shall be submitted in writing to the Secretary of the 
Commission and shall identify the specific action or decision for which 
a hearing is requested, the date of the action or

[[Page 17]]

decision, the interest of the person requesting the hearing in the 
subject matter of the proposed hearing and a summary statement setting 
forth the basis for objecting to or seeking review of the action or 
decision. Any request filed more than thirty days after an action or 
decision will be deemed untimely and such request for a hearing shall be 
considered denied unless the Commission by unanimous vote otherwise 
directs. Receipt of requests for hearings, pursuant to this subpart, 
whether timely filed or not, shall be submitted by the Secretary to the 
Commissioners for their information.
    (d) Optional joint hearings. Whenever designated by a department, 
agency or instrumentality of a signatory party, and within any 
limitations prescribed by the designation, a Hearing Officer designated 
pursuant to this subpart may also serve as a Hearing Officer, examiner 
or agent pursuant to such additional designation and may conduct joint 
hearings for the Commission and for such other department, agency or 
instrumentality. Pursuant to the additional designation, a Hearing 
Officer shall cause to be filed with the department, agency or 
instrumentality making the designation, a certified copy of the 
transcript of the evidence taken before him and, if requested, of his 
findings and recommendations. Neither the Hearing Officer nor the 
Delaware River Basin Commission shall have or exercise any power or duty 
as a result of such additional designation to decide the merits of any 
matter arising under the separate laws of a signatory party (other than 
the Delaware River Basin Compact).
    (e) Schedule. The Executive Director shall cause the schedule for 
each hearing to be listed in advance upon a ``hearing docket'' which 
shall be posted in public view at the office of the Commission.
    (f) Notice of hearing. Notice of any hearing to be conducted 
pursuant to this subpart shall comply with the provisions of Section 
14.4(b) of the Compact relating to public notice unless otherwise 
directed by the Commission.



Sec. 401.82  Authorization to conduct hearings.

    (a) Written requests for hearings. Upon receipt of a written request 
for a hearing pursuant to this subpart, the Executive Director shall 
review the record available with regard to the action or decision for 
which a hearing is requested. Thereafter, the Executive Director shall 
present the request for a hearing to the Commission for its 
consideration. The Commission shall grant a request for a hearing 
pursuant to this subpart if it determines that an adequate record with 
regard to the action or decision is not available, the contested case 
involves a determination by the Executive Director or staff which 
requires further action by the Commission or that the Commission has 
found that an administrative hearing is necessary or desirable. If the 
Commission denies any request for a hearing in a contested case, the 
party seeking such a hearing shall be limited to such remedies as may be 
provided by the Compact or other applicable law or court rule.
    (b) Commission directed hearings. This subpart shall be applicable 
to any proceeding which Commission regulation or the Commission directs 
be conducted in accordance with the provisions, of this subpart.



Sec. 401.83  Hearing Officer.

    (a) Generally. Hearings shall be conducted by one or more members of 
the Commission, by the Executive Director, or by such other Hearing 
Officer as the Chairman may designate, except as provided in paragraph 
(b) of this section.
    (b) Wasteload allocation cases. In cases involving the allocation of 
the assimilative capacity of a stream:
    (1) The Executive Director shall appoint a hearing board of at least 
two persons. One of them shall be nominated by the water pollution 
control agency of the state in which the discharge originates, and he 
shall be chairman. The board shall have and exercise the powers and 
duties of a Hearing Officer;

[[Page 18]]

    (2) A quorum of the board for purposes of the hearing shall consist 
of two members; and
    (3) Questions of practice or procedure during the hearing shall be 
determined by the Chairman.



Sec. 401.84   Hearing procedure.

    (a) Participation in the hearing. In any hearing, the person 
requesting the hearing shall be deemed an interested party and shall be 
entitled to participate fully in the hearing procedure. In addition, any 
person whose legal rights may be affected by the decision rendered in a 
contested case shall be deemed an interested party. Interested parties 
shall have the right to be represented by counsel, to present evidence 
and to examine and cross-examine witnesses. In addition to interested 
parties, any persons having information concerning a contested case or 
desiring to present comments concerning the subject matter of the 
Hearing for inclusion in the record may submit a written statement to 
the Commission. Any interested party may request the right to examine or 
cross-examine any person who submits a written statement. In the absence 
of a request for examination of such person, all written statements 
submitted shall be included within the record and such statements may be 
relied upon to the extent determined by the Hearing Officer or the 
Commission.
    (b) Powers of the Hearing Officer. The Hearing Officer shall:
    (1) Rule upon offers of proof and the admissibility of evidence, 
regulate the course of the hearings, hold conferences for the settlement 
or simplification of procedures or issues, and shall schedule submission 
of documents, briefs and the time for the hearing.
    (2) Cause each witness to be sworn or to make affirmation.
    (3) Limit the number of times any witness may testify, limit 
repetitious examination or cross-examination of witnesses or the extent 
to which corroborative or cumulative testimony shall be accepted.
    (4) Exclude irrelevant, immaterial or unduly repetitious evidence, 
but the interested parties shall not be bound by technical rules of 
evidence and all relevant evidence of reasonably probative value may be 
received.
    (5) Require briefs and oral arguments to the extent determined 
necessary which shall be included as part of the record unless otherwise 
ordered by the Hearing Officer.



Sec. 401.85   Staff and other expert testimony.

    (a) Presentation on behalf of the Commission. The Executive Director 
shall arrange for the presentation of testimony by the Commission's 
technical staff and other experts, as he may deem necessary or 
desirable, to incorporate in the record or support the administrative 
action, determination or decision which is the subject of the hearing.
    (b) Expert witnesses. An interested party may submit in writing to 
the Hearing Officer the report and proposed testimony of an expert 
witness. No expert report or proposed testimony, however, shall be 
included in the record if the expert is not available for examination 
unless the report and proposed testimony shall have been provided to the 
Commission and all interested parties prior to the hearing and the 
Commission and interested parties have waived the right of cross-
examination.
    (c) The Executive Director may designate for inclusion in the record 
those records of the Commission which the Executive Director deems 
relevant to a decision in a contested case or to provide an 
understanding of applicable Commission policies, regulations or other 
requirements relating to the issues in the contested case. The 
designation of such Commission documents shall be provided to all 
interested parties prior to the hearing.



Sec. 401.86   Record of proceedings.

    A record of the proceedings and evidence at each hearing shall be 
made by a qualified stenographer designated by the Executive Director. 
Where demanded by the applicant, objector, or any other person who is a 
party to these proceedings, or where deemed necessary by the Hearing 
Officer, the testimony shall be transcribed. In those instances where a 
transcript of proceedings is made, two copies shall

[[Page 19]]

be delivered to the Commission. The applicant, objector, or other 
persons who desire copies shall obtain them from the stenographer at 
such price as may be agreed upon by the stenographer and the person 
desiring the transcript.



Sec. 401.87   Assessment of costs; Appeals.

    (a) Whenever a hearing is conducted under this subpart, the costs 
thereof, as defined in this subpart, shall be assessed by the Hearing 
Officer to the party requesting the hearing unless apportioned between 
the interested parties where cost sharing is deemed fair and equitable 
by the Hearing Officer. For the purposes of this section costs include 
all incremental costs incurred by the Commission, including, but not 
limited to, hearing examiner and expert consultants reasonably necessary 
in the matter, stenographic record, rental of a hearing room and other 
related expenses.
    (b) Upon scheduling of a matter for hearing, the Secretary shall 
furnish to the applicant and/or interested parties a reasonable estimate 
of the costs to be incurred under this section. The applicant and/or 
interested parties may be required to furnish security for such costs 
either by cash deposit or by a surety bond of a corporate surety 
authorized to do business in a signatory state.
    (c) An appeal of the assessment of costs may be submitted in writing 
to the Commission within ten (10) days of the assessment. A copy of the 
appeal shall be filed with the Secretary and served on all interested 
parties. The filing of said appeal shall not stay the Hearing.



Sec. 401.88  Findings, report and Commission review.

    (a) The Hearing Officer shall prepare a report of his findings and 
recommendations. In the case of an objection to a waste load allocation, 
the Hearing Officer shall make specific findings of a recommended 
allocation which may increase, reduce or confirm the Executive 
Director's determination. The report shall be served by personal service 
or certified mail (return receipt requested) upon each party to the 
hearing or its counsel unless all parties have waived service of the 
report. The applicant and any objector may file objections to the report 
within 20 days after the service upon him of a copy of the report. A 
brief shall be filed together with any objections. The report of the 
Hearing Officer together with objections and briefs shall be promptly 
submitted to the Commission. The Commission may require or permit oral 
argument upon such submission prior to its decision.
    (b) The Executive Director, in addition to any submission to the 
Hearing Officer, may also submit to the Commission staff comments upon, 
or a response to, the Hearing Officer's findings and report and, where 
appropriate, a draft docket or other recommended Commission action. 
Interested parties shall be served with a copy of such submission and 
may have not less than ten (10) days to respond before action by the 
Commission.



Sec. 401.89  Action by the Commission.

    (a) The Commission will act upon the findings and recommendations of 
the Hearing Officer pursuant to law.
    (b) Commission Counsel shall assist the Commission with its review 
of the hearing record and the preparation of a Commission decision to 
the extent directed to do so by the Chairman.
    (c) The determination of the Commission will be in writing and shall 
be filed together with any transcript of the hearing, report of the 
Hearing Officer, objections thereto, and all plans, maps, exhibits and 
other papers, records or documents relating to the hearing. All such 
records, papers and documents may be examined by any person at the 
office of the Commission, and shall not be removed therefrom except 
temporarily upon the written order of the Secretary after the filing of 
a receipt therefor in form prescribed by the Secretary. Copies of any 
such records and papers may be made in the office of the Commission by 
any person, subject to such reasonable safeguards for the protection of 
the records as the Executive Director may require.



Sec. 401.90  Appeals from final Commission action; Time for appeals.

    Any party participating in a hearing conducted pursuant to the 
provisions

[[Page 20]]

of this subpart may appeal any final Commission action. To be timely, 
such an appeal must be filed with an appropriate federal court, as 
provided in Article 15.1(p) of the Commission's Compact, within forty-
five (45) days of final Commission action.



        Subpart G--Penalties and Settlements in Lieu of Penalties

    Source: 52 FR 37602, Oct. 8, 1987, unless otherwise noted.



Sec. 401.91  Scope of subpart.

    This subpart shall be applicable where the Commission shall have 
information indicating that a person has violated or attempted to 
violate any provision of the Commission's Compact or any of its rules, 
regulations or orders (hereafter referred to as possible violator). For 
the purposes of this subpart, person shall include person, partnership, 
corporation, business association, governmental agency or authority.



Sec. 401.92  Notice to possible violators.

    Upon direction of the Commission the Executive Director shall, and 
in all other instances, the Executive Director may require a possible 
violator to show cause before the Commission why a penalty should not be 
assessed in accordance with the provisions of these rules and section 
14.17 of the Compact. The notice to the possible violator shall:
    (a) Set forth the date on which the possible violator shall respond; 
and
    (b) Set forth any information to be submitted or produced by the 
possible violator.



Sec. 401.93  The record for decision-making.

    (a) Written submission. In addition to the information required by 
the Commission, any possible violator shall be entitled to submit in 
writing any other information that it desires to make available to the 
Commission before it shall act. The Executive Director may require 
documents to be certified or otherwise authenticated and statements to 
be verified. The Commission may also receive written submissions from 
any other persons as to whether a violation has occurred and the adverse 
consequences resulting from a violation of the Commission's Compact or 
its rules, regulations and orders.
    (b) Presentation to the Commission. At the date set in the Notice, 
the possible violator shall have the opportunity to supplement its 
written presentation before the Commission by any oral statement it 
wishes to present and shall be prepared to respond to any questions from 
the Commission or its staff or to the statements submitted by persons 
affected by the possible violation.



Sec. 401.94  Adjudicatory hearings.

    (a) An adjudicatory hearing, which may be in lieu of or in addition 
to proceedings pursuant to Sec. 401.93 at which testimony may be 
presented and documents received shall not be scheduled unless:
    (1) The Executive Director determines that a hearing is required to 
have an adequate record for the Commission; or
    (2) The Commission directs that such a hearing be held.
    (b) If an adjudicatory hearing is scheduled, the possible violator 
shall be given at least 14 days written notice of the hearing date 
unless waived by consent. Notice of such a hearing may be given to the 
general public and the press in the manner provided in section 14.4(b) 
of the Compact but may be waived by the Executive Director.
    (c) Except to the extent inconsistent with the provisions of this 
subpart adjudicatory hearings shall be conducted in accordance with the 
provisions of Secs. 491.83 through 401.88 (including Sec. 401.86 et 
seq.).



Sec. 401.95  Assessment of a penalty.

    The Executive Director may recommend to the Commission the amount of 
the penalty to be imposed. Such a recommendation shall be in writing and 
shall set forth the basis for the penalty amount proposed. Based upon 
the record submitted to the Commission, the Commission shall decide 
whether a violation has occurred that justifies the imposition of a 
penalty pursuant to Sec. 14.17 of the Compact. If it

[[Page 21]]

is found that such a violation has occurred, the Commission shall 
determine the amount of the penalty to be paid.



Sec. 401.96  Factors to be applied in fixing penalty amount.

    (a) Consideration shall be given to the following factors in 
deciding the amount of any penalty or any settlement in lieu of penalty:
    (1) Previous violation, if any, of the Commission's Compact and 
regulations;
    (2) Whether the violation was unintentional or willful and 
deliberate;
    (3) Whether the violation caused adverse environmental consequences 
and the extent of any harm;
    (4) The costs incurred by the Commission or any signatory party 
relating to the failure to comply with the Commission's Compact and 
regulations;
    (5) The extent to which the violator has cooperated with the 
Commission in correcting the violation and remediating any adverse 
consequences or harm that resulted therefrom; and
    (6) Whether the failure to comply with the Commission's Compact and 
regulations was economically beneficial to the violator.
    (b) The Commission retains the right to waive any penalty or reduce 
the amount of the penalty should it determine that, after consideration 
of the factors in paragraph (a) of this section, extenuating 
circumstances justify such action.



Sec. 401.97  Enforcement of penalties.

    Any penalty imposed by the Commission shall be paid within 30 days 
or such further time period as shall be fixed by the Commission. The 
Executive Director and Commission counsel are authorized to take such 
action as may be necessary to assure enforcement of this subpart. If a 
proceeding before a court becomes necessary, the action of the 
Commission in determining a penalty amount shall constitute the penalty 
amount recommended by the Commission to be fixed by the court pursuant 
to Sec. 14.17 of the Compact.



Sec. 401.98  Settlement by agreement in lieu of penalty.

    A possible violator may request settlement of a penalty proceeding 
by agreement. If the Executive Director determines that settlement by 
agreement in lieu of a penalty is in the best interest of the 
Commission, he may submit to the Commission a proposed settlement 
agreement in lieu of a penalty. No settlement will be considered by the 
Commission unless the possible violator has indicated to the Commission 
acceptance of the terms of the agreement and the intention to comply 
with all requirements of the settlement agreement including payment of 
any settlement amount within the time period provided. If the Commission 
determines not to approve a settlement agreement, the Commission may 
proceed with a penalty action in accordance with this subpart.



Sec. 401.99  Suspension or modification of penalty.

    The Commission may postpone the imposition of a penalty or provide 
for reconsideration of the penalty amount imposed pending correction of 
the condition that gave rise to the violation or pending a satisfactory 
resolution of any adverse consequences that resulted from the violation.



           Subpart H--Public Access to Records and Information

    Authority: 5 U.S.C. 552.

    Source: 40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975, 
unless otherwise noted. Redesignated at 52 FR 37602, Oct. 8, 1987.



Sec. 401.101  Policy on disclosure of Commission records.

    The Commission will make the fullest possible disclosure of records 
to the public, consistent with the rights of individuals to privacy, the 
property rights of persons in trade secrets and confidential commercial 
or financial information, and the need for the Commission to promote 
frank internal policy deliberations and to pursue its regulatory 
activities without disruption.

[[Page 22]]



Sec. 401.102  Partial disclosure of records.

    If a record contains both disclosable and nondisclosable 
information, the nondisclosable information will be deleted and the 
remaining record will be disclosed unless the two are so inextricably 
intertwined that it is not feasible to separate them or release of the 
disclosable information would compromise or impinge upon the 
nondisclosable portion of the record.



Sec. 401.103  Request for existing records.

    (a) Any written request to the Commission for existing records not 
prepared for routine distribution to the public shall be deemed to be a 
request for records pursuant to the Freedom of Information Act, whether 
or not the Freedom of Information Act is mentioned in the request, and 
shall be governed by the provisions of this part.
    (b) Records or documents prepared by the Commission for routine 
public distribution, e.g., pamphlets, speeches, public information and 
educational materials, shall be furnished free of charge upon request as 
long as the supply lasts. The provisions of this part shall not be 
applicable to such requests.
    (c) All existing Commission records are subject to routine 
destruction according to standard record retention schedules.



Sec. 401.104  Preparation of new records.

    The Freedom of Information Act and the provisions of this part apply 
only to existing records that are reasonably described in a request 
filed with the Commission pursuant to the procedures herein established. 
The Commission shall not be required to prepare new records in order to 
respond to a request for information.



Sec. 401.105  Indexes of certain records.

    (a) Indexes shall be maintained, and revised at least quarterly, for 
the following Commission records:
    (1) Final opinions and orders made in the adjudication of cases.
    (2) Statements of policy and interpretation adopted by the 
Commission and still in force and not published in the Federal Register 
or official minutes of Commission meetings.
    (3) Administrative staff manuals and instructions to staff that 
affect members of the public.
    (b) A copy of each such index is available at cost of duplication 
from the FOIA Officer.



Sec. 401.106  FOIA Officer.

    The Executive Director shall designate a Commission employee as the 
FOIA Officer. The FOIA Officer shall be responsible for Commission 
compliance with the Freedom of Information Act and these regulations. 
All requests for agency records shall be sent in writing to:

FOIA Officer
Delaware River Basin Commission
P.O. Box 7360
West Trenton, NJ 08628-0360

[40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975. Redesignated at 
52 FR 37602, Oct. 8, 1987, as amended at 63 FR 45943, Aug. 28, 1998]



Sec. 401.107  Permanent file of requests for Commission records.

    The Commission shall maintain a permanent file of all requests for 
Commission records and all responses thereto, incuding a list of all 
records furnished in response to a request. This file is available for 
public review during working hours.



Sec. 401.108  Filing a request for records.

    (a) All requests for Commission records shall be filed in writing 
delivered to the FOIA Officer, or by mailing it to the Commission. The 
Commission will supply forms for written requests.
    (b) A request for Commission records shall reasonably describe the 
records being sought, in a way that they can be identified and located. 
A request should include all pertinent details that will help identify 
the records sought. A person requesting disclosure of records shall be 
permitted an opportunity to review them without the necessity for 
copying them where the records involved contain only disclosable data 
and information.
    (1) If the description is insufficient to locate the records 
requested, the FOIA Officer will so notify the person making the request 
and indicate the additional information needed to identify the records 
requested.

[[Page 23]]

    (2) Every reasonable effort shall be made by the staff to assist in 
the identification and location of the records sought.
    (3) In any situation in which it is determined that a request for 
voluminous records would unduly burden and interfere with the operations 
of the Commission, the person making the request will be asked to be 
more specific and to narrow the request, and to agree on an orderly 
procedure for the production of the requested records.
    (c) Upon receipt of a request for records, the FOIA Officer shall 
enter it in a public log (which entry may consist of a copy of the 
request). The log shall state the date and time received, the name and 
address of the person making the request, the nature of the records 
requested, the action taken on the request, the date of the 
determination letter sent pursuant to Sec. 401.99(b), the date(s) any 
records are subsequently furnished, the number of staff-hours and grade 
levels of persons who spent time responding to the request, and the 
payment requested and received.
    (d) A denial of a request for records, in whole or in part, shall be 
signed by the FOIA Officer. The name and title or position of each 
person who participated in the denial of a request for records shall be 
set forth in a letter denying the request. This requirement may be met 
by attaching a list of such individuals to the letter.



Sec. 401.109  Time limitations.

    (a) All time limitations established pursuant to this section shall 
begin as of the time at which a request for records is logged in by the 
FOIA Officer pursuant to Sec. 401.98(c). An oral request for records 
shall not begin any time requirement. A written request for records sent 
elsewhere within the Commission shall not begin any time requirement 
until it is redirected to the FOIA Officer and is logged in accordance 
with Sec. 401.98(c). A request that is expected to involve fees in 
excess of $50 will not be deemed received until the requester is 
promptly notified and agrees to bear the cost or has so indicated on his 
request.
    (b) Within ten (10) working days (excepting Saturdays, Sundays, and 
legal public holidays) after a request for records is logged by the FOIA 
Officer, the record shall be furnished or a letter shall be sent to the 
person making the request determining whether, or the extent to which, 
the Commission will comply with the request, and, if any records are 
denied, the reasons therefor.
    (1) If all of the records requested have been located and a final 
determination has been made with respect to disclosure of all of the 
records requested, the letter shall so state.
    (2) If all of the records have not been located or a final 
determination has not yet been made with respect to disclosure of all of 
the records requested, the letter shall state the extent to which the 
records involved shall be disclosed pursuant to the rules established in 
this part.
    (3) In the following unusual circumstances, the time for sending 
this letter may be extended by the Executive Director for up to an 
additional ten (10) working days by written notice to the person making 
the request setting forth the reasons for such extension and the time 
within which a determination is expected to be dispatched:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
Commission's Headquarters.
    (ii) The need to search for, collect and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request.
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
Commission having substantial subject-matter interest therein.
    (c) If any record is denied, the letter shall state the right of the 
person requesting such records to appeal any adverse determination to 
the Executive Director of the Commission. Such an appeal shall be filed 
within thirty (30) days from receipt of the FOIA Officer's determination 
denying the requested information (where the entire request has been 
denied), or from the receipt of

[[Page 24]]

any information made available pursuant to the request (where the 
request has been denied in part). Within twenty (20) working days 
(excepting Saturdays, Sundays, and legal public holidays) after receipt 
of any appeal, or any authorized extension, the Executive Director or 
his designee shall make a determination and notify the appellant of his 
determination. If the appeal is decided in favor of the appellant the 
requested information shall be promptly supplied as provided in this 
part. If on appeal the denial of the request for records is upheld in 
whole or in part, the appellant shall be entitled to appeal to the 
Commission at its next regular meeting. In the event that the Commission 
confirms the Executive Director's denial the appellant shall be notified 
of the provisions for judicial review.
    (d) If the request for records will result in a fee of more than 
$25, determination letter under Sec. 401.99 shall specify or estimate 
the fee involved and may require prepayment, as well as payment of any 
amount not yet received as a result of any previous request, before the 
records are made available. If the fee is less than $25, prepayment 
shall not be required unless payment has not yet been received for 
records disclosed as a result of a previous request.
    (e) Whenever possible, the determination letter required under 
Sec. 401.99(b), relating to a request for records that involves a fee of 
less than $25.00, shall be accompanied by the requested records. Where 
this is not possible, the records shall be forwarded as soon as possible 
thereafter. For requests for records involving a fee of more than 
$25.00, the records shall be forwarded as soon as possible after receipt 
of payment.



Sec. 401.110  Fees.

    (a) Unless waived in accordance with the provisions of Sec. 401.111, 
the following fees shall be imposed for production of any record 
pursuant to this part.
    (1) Administrative fees. (i) Charges for administrative fees include 
staff time associated with:
    (A) Processing FOIA requests;
    (B) Locating and reviewing files;
    (C) Monitoring file reviews;
    (D) Generating computer records (electronic print-outs); and
    (E) Preparing logs of records deemed non-public.
    (ii) Administrative charges will be calculated as follows: 
Administrative charges will be billed to the requester per quarter hour 
following the first quarter hour. These charges will be billed at the 
current, hourly paygrade rate (pro-rated for quarter hour increments) of 
the personnel performing the service. Administrative charges will be in 
addition to any copying charges.
    (iii) Appointment rescheduling/cancellation. Requesters that do not 
reschedule or cancel appointments to view files at least one full 
business day in advance of the appointment may be subject to the 
administrative charges incurred by the Commission in preparing the 
requested records. The Commission will prepare an itemized invoice of 
these charges and mail it to the requester for payment.
    (2) Photocopying fees. The following are charges for photocopies of 
public records made by Commission personnel:
    (i) Standard sized, black and white copies. The charge for copying 
standard sized, black and white public records shall be $0.15 per 
printed page (i.e., single-sided copies are $0.15 and double-sided 
copies are $0.30). This charge applies to copies on the following 
standard paper sizes:
    (A) 8.5 x 11;
    (B) 8.5 x 14;
    (C) 11 x 17.
    (ii) Color copies/printouts. The charge for color copies or color 
printouts shall be as follows:
    (A) 8.5 x 11--$1.00 per page;
    (B) 8.5 x 14--$1.50 per page;
    (C) 11 x 17--$2.00 per page;
    (D) The charge for all color copies larger than 11 x 
17 (including, but not limited to: photographic imagery, GIS 
print-outs, and maps) shall be calculated at the rate of $2.50 per 
square foot.
    (iii) Electronically generated records. Charges for copying records 
maintained in electronic format will be calculated by the material costs 
involved in generating the copies (including, but

[[Page 25]]

not limited to: magnetic tape, diskette, or compact disc costs) and 
administrative costs.
    (iv) Other copying fees. The Commission, at its discretion, may 
arrange to have records copied by an outside contractor if the 
Commission does not have the resources or equipment to copy such 
records. In this instance, the requester will be liable for payment of 
these costs.
    (3) Forwarding material to destination. Postage, insurance, and 
special fees will be charged on an actual cost basis.
    (b) No charge shall be made for the time spent in resolving legal or 
policy issues or in examining records for the purpose of deleting 
nondisclosable portions thereof.
    (c) Payment shall be made by check or money order payable to 
``Delaware River Basin Commission'' and shall be sent to the FOIA 
Officer.

[40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975. Redesignated at 
52 FR 37602, Oct. 8, 1987, as amended at 67 FR 56753, Sept. 5, 2002]



Sec. 401.111  Waiver of fees.

    (a) No fee shall be charged for disclosure of records pursuant to 
this part where:
    (1) The records are requested by a congressional committee or 
subcommittee or the General Accounting Office.
    (2) The records are requested by an agency of a signatory party.
    (3) The records are requested by a court of competent jurisdiction.
    (4) The records are requested by a state or local government having 
jurisdiction thereof.
    (b) No fee shall be charged if a record requested is not found or 
for any record that is totally exempt from disclosure.



Sec. 401.112  Exempt information.

    The following materials and information covered by this part shall 
be exempt from disclosure; that is, information that is:
    (a) Related solely to the internal personnel matters of the 
Commission;
    (b) Specifically exempted from disclosure by statute;
    (c) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential. (For purposes of this 
section a trade secret may consist of any formula, pattern, device, or 
compilation of information which is used in one's business and which 
gives him an opportunity to obtain an advantage over competitors who do 
not know or use it. Commercial or financial information that is 
privileged or confidential means valuable data or information which is 
used in one's business and is of a type customarily held in strict 
confidence or regarded as privileged and not disclosed to any member of 
the public by the person to whom it belongs.)
    (d) Inter-agency or intra-agency memorandums or letters other than 
purely factual compilations, which would not be available by law to a 
party other than an agency in litigation with the Commission;
    (e) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy; and
    (f) Investigatory records compiled for law enforcement purposes, but 
only to the extent that the production of such records would (1) 
interfere with enforcement proceedings, (2) deprive a person of a right 
to a fair trial or an impartial adjudication, (3) constitute an 
unwarranted invasion of personal privacy, (4) disclose the identity of a 
confidential source, (5) disclose investigative techniques and 
procedures, or (6) endanger the life or physical safety of law 
enforcement personnel.

[40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975. Redesignated at 
52 FR 37602, Oct. 8, 1987, as amended at 63 FR 45943, Aug. 28, 1998]



Sec. 401.113  Segregable materials.

    Any reasonably segregable portion of a record shall be provided to 
any person requesting such record after deletion of the portions which 
are exempt under this part, except as provided in Sec. 401.92.



Sec. 401.114  Data and information previously disclosed to the public.

    Any Commission record that is otherwise exempt from public 
disclosure pursuant to this part is available for public disclosure to 
the extent that it contains data or information that have previously 
been disclosed in a lawful manner to any member of the public, other 
than an employee or consultant

[[Page 26]]

or pursuant to other commercial arrangements with appropriate safeguards 
for secrecy.



Sec. 401.115  Discretionary disclosure by the Executive Director.

    (a) The Executive Director may, in his discretion, disclose part or 
all of any Commission record that is otherwise exempt from disclosure 
pursuant to this part. The Executive Director shall exercise his 
discretion to disclose such records whenever he determines that such 
disclosure is in the public interest, will promote the objectives of the 
Commission, and is consistent with the rights of individuals to privacy, 
the property rights of persons in trade secrets, and the need for the 
Commission to promote frank internal policy deliberations and to pursue 
its regulatory activities without disruption.
    (b) Discretionary disclosure of a record pursuant to this section 
shall invoke the requirement that the record shall be disclosed to any 
person who requests it pursuant to Sec. 401.98, but shall not set a 
precedent for discretionary disclosure of any similar or related record 
and shall not obligate the Executive Director to exercise his discretion 
to disclose any other record that is exempt from disclosure.



Sec. 401.116  Disclosure to consultants, advisory committees, State and local government officials, and other special government employees.

    Data and information otherwise exempt from public disclosure may be 
disclosed to Commission consultants, advisory committees, state and 
local government officials, and other special government employees for 
use only in their work in cooperation with the Commission. Such persons 
are thereafter subject to the same restrictions with respect to the 
disclosure of such data and information as any other Commission 
employee.



Sec. 401.117  Disclosure to other Federal government departments and agencies.

    Any Commission record otherwise exempt from public disclosure may be 
disclosed to other Federal Government departments and agencies, except 
that trade secrets may be disclosed only to a department or agency that 
has concurrent jurisdiction over the matter and separate legal authority 
to obtain the specific information involved. Any disclosure under this 
section shall be pursuant to an agreement that the record shall not be 
further disclosed by the other department or agency except with the 
written permission of the Commission.



Sec. 401.118  Disclosure in administrative or court proceedings.

    Data and information otherwise exempt from public disclosure may be 
revealed in Commission administrative or court proceedings where the 
data or information are relevant. The Commission will request that the 
data or information be held in camera and that any other appropriate 
measures be taken to reduce disclosure to the minimum necessary under 
the circumstances.



Sec. 401.119  Disclosure to Congress.

    All records of the Commission shall be disclosed to Congress upon an 
authorized request.



                      Subpart I--General Provisions

    Source: 40 FR 14059, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975, 
unless otherwise noted. Redesignated at 52 FR 37602, Oct. 8, 1987.



Sec. 401.121  Definitions.

    For the purposes of this part, except as the context may otherwise 
require:
    (a) All words and phrases which are defined by section 1.2 of the 
Compact shall have the same meaning herein.
    (b) Words and phrases which are defined by part I of the 
Administrative Manual (section 1-3) shall have the same meaning for the 
purposes of this part 401.
    (c) Application shall mean a request for action by the Commission in 
any written form, including without limitation thereto, a letter, 
referral by any agency of a signatory party, or an official form 
prescribed by the Commission; provided that whenever an official form of 
application has been duly required, an application shall not be deemed 
to be pending before the Commission until such time as such form, 
together with the information required thereby, has been completed and 
filed.

[[Page 27]]

    (d) Applicant shall mean any sponsor or other person who has 
submitted an application to the Commission.
    (e) Sponsor shall mean any person authorized to initiate, construct 
or administer a project.



Sec. 401.122  Supplementary details.

    Forms, procedures and supplementary information, to effectuate these 
regulations, may be provided or required by the Executive Director as to 
any hearing, project or class of projects.



Sec. 401.123  Waiver of rules.

    The Commission may, for good cause shown, waive rules or require 
additional information in any case.



Sec. 401.124  Construction.

    This part is promulgated pursuant to section 14.2 of the Compact and 
shall be construed and applied subject to all of the terms and 
conditions of the Compact and of the provisions of section 15.1 of Pub. 
L. 87-328, 75 Stat. 688.



PART 410--BASIN REGULATIONS; WATER CODE AND ADMINISTRATIVE MANUAL--PART III WATER QUALITY REGULATIONS--Table of Contents




    Authority: Delaware River Basin Compact, 75 Stat. 688.



Sec. 410.1  Basin regulations--Water Code and Administrative Manual--Part III Water Quality Regulations.

    (a) The Water Code of the Delaware River Basin is a codification of 
regulations of the Delaware River Basin Commission concerning the 
policies and standards applicable to public and private water projects 
and programs within the Delaware River Basin. Article I of the water 
code sets forth general policies of the Commission. Article II concerns 
the conservation, development and utilization of Delaware River Basin 
water resources. Article III sets forth the water quality standards and 
guidelines for the Delaware River Basin. The Commission's Administrative 
Manual--Part III, Water Quality Regulations, apply to all waste 
dischargers, public and private, using the waters of the Delaware River 
Basin. The regulations contained within the Water Code and within the 
Administrative Manual--Part III Water Quality Regulations of the 
Delaware River Basin Commission are hereby incorporated in and made a 
part of this Part 410 and include all amendments to the Water Code and 
the Administrative Manual--Part III Water Quality Regulations adopted 
through May 28, 1986.
    (b) The Water Code and the Administrative Manual--Part III and the 
regulations contained therein and information about them may be obtained 
from the Delaware River Basin Commission, P.O. Box 7360, West Trenton, 
New Jersey 08628.
    (c) The regulations may be amended from time to time by the 
Commission after due notice and public hearing. An official file of 
changes will be kept for public inspection in the offices of the 
Commission.

[51 FR 20960, June 10, 1986]



PART 415--BASIN REGULATIONS--FLOOD PLAIN REGULATIONS--Table of Contents




                                Generally

Sec.
415.1  Short title.
415.2  Definitions.
415.3  Purpose and findings.

                   Types of Projects and Jurisdiction

415.20  Class I projects.
415.21  Class II projects.

                                Standards

415.30  Regulations generally.
415.31  Prohibited uses.
415.32  Permitted uses generally.
415.33  Uses by special permit.

                             Administration

415.40  Administrative agency.
415.41  Special permits.
415.42  Technical standards.
415.43  Mapped and unmapped delineations.

                               Enforcement

415.50  General conditions.
415.51  Prior non-confirming structures.
415.52  Violations.

    Authority: Pub. L. 87-328 (75 Stat. 688).

    Source: 42 FR 13541, Mar. 11, 1977, unless otherwise noted.

[[Page 28]]

                                Generally



Sec. 415.1  Short title.

    This part shall be known and may be cited as the ``Flood Plain 
Regulations.''



Sec. 415.2  Definitions.

    For the purposes of this part, except as otherwise required by the 
context:
    Project means the same word as defined by section 1.2(g) of the 
Delaware River Basin Compact.
    Floodway means the channel of the watercourse and those portions of 
the adjoining flood plains which are reasonably required to carry and 
discharge the regulatory flood. For this purpose the limit of the 
floodway shall be established by allowing not more than a one-foot rise 
of the water surface elevation of the regulatory flood as a result of 
encroachment. Wherever practical, equal conveyance reduction from each 
side of the flood plain shall be used. (See Figure 1.)

[[Page 29]]

[GRAPHIC] [TIFF OMITTED] TC05OC91.022

    Flood fringe means that portion of the flood hazard area outside the 
floodway.
    Flood hazard area means the area inundated by the regulatory flood.
    Flood plain means the area adjoining the channel of a stream which 
has been or hereafter may be covered by flood water.

[[Page 30]]

    Floodproofing means any combination of structural and nonstructural 
additions, changes, or adjustments to properties and structures which 
reduce or eliminate flood damage to lands, water and sanitary 
facilities, structures, and contents of buildings.
    Flood protection elevation means one foot above the elevation of the 
flood that has a one percent chance of occurring in any one year. (The 
100-year flood).
    Major tributary means the mainstem of the following streams:

                              Pennsylvania

    Brandywine Creek, Brodhead Creek, Big Bushkill Creek, Lackawaxen, 
Lehigh, Schuylkill, Neshaminy.

                                Delaware

    Brandywine Creek, Christina.

                                New York

    East Branch, Mongaup, Neversink, West Branch.

                               New Jersey

    Assunpink, Musconetcong, Paulins Kill, Rancocas, Pequest.

    Official flood plain map means a map showing the flood plain area of 
a community prepared pursuant to the National Flood Insurance Act, or a 
map recognized by the Executive Director as meeting equivalent hydraulic 
or engineering criteria.
    Regulatory flood means the flood which has a one percent chance of 
occurring in any one year. (The 100-year flood.)
    Structure means any assembly of material above or below the surface 
of land or water, including but not limited to, buildings, dams, fills, 
levees, bulkheads, dikes, jetties, embankments, causeways, culverts, 
roads, railroads and bridges.



Sec. 415.3  Purpose and findings.

    (a) The Commission hereby finds and determines that the use of flood 
plains is affected with a public interest due to:
    (1) The danger to life and property due to increased flood heights 
or velocities caused by encroachments.
    (2) The danger that materials may be swept onto other lands or 
downstream to the injury of others.
    (3) The requirements of a facility for a waterfront location.
    (b) In order to protect the public interest, the following 
principles and goals have been determined:
    (1) The overall goal is prudent land use within the physical and 
environmental constraints of the site.
    (2) The principle of equal and uniform treatment shall apply to all 
flood plain users who are similarly situated.
    (3) Flood plain use shall not result in nuisance to other 
properties.
    (4) Flood plain use shall not threaten public safety, health and 
general welfare.
    (5) Future land uses in private flood plains shall not result in 
public expense to protect the property and associated public services 
from flood damage.
    (6) All future public and private flood plain users shall bear the 
full direct and indirect costs attributable to their use and actions.
    (7) Restrictions on flood plain use, and flood hazard information 
shall be widely publicized.
    (8) Land and water use regulations of responsible units of 
government shall not impair or conflict with the flood plain use 
standards duly adopted for the basin, except as provided for in 
Sec. 415.42(a) of this part.
    (9) Plans for land and water use adopted by responsible agencies 
shall not impair or conflict with these flood plain use standards.
    (10) No action of any unit of government shall impair or conflict 
with these flood plain use standards.

                   Types of Projects and Jurisdiction



Sec. 415.20  Class I projects.

    Projects described in paragraphs (a) and (b) of this section shall 
be subject to review by the Commission under standards provided by this 
section and in accordance with the provisions of Secs. 415.30 through 
415.33 of this part, as follows:
    (a) All projects subject to review by the Commission under section 
3.8 of the Compact and the regulations thereunder.

[[Page 31]]

    (b) State and local standards of flood plain regulation.



Sec. 415.21  Class II projects.

    Class II projects, subject to review in accordance with Secs. 415.40 
through 415.43 of this part, include all projects other than Class I 
projects, in non-tidal areas of the basin, which involve either:
    (a) A development of land, either residential or non-residential 
within a flood hazard area which:
    (1) Includes one or more structures covering a total land area in 
excess of 50,000 square feet; or
    (2) Contains in excess of 25 residential building lots or 25 
dwelling units as part of an integrated development plan whether or not 
such development is included in a single application; or
    (b) A development of land in the flood hazard area to mine, 
manufacture, process, store or dispose of materials which, if flooded, 
would pollute the waters of the basin or threaten damage to off-site 
areas, including, without limitation thereto, materials which are 
poisonous, radioactive, biologically undesirable or floatable.

                                Standards



Sec. 415.30  Regulations generally.

    The uses of land within a flood hazard area shall be subject to 
regulation within one of the following categories:
    (a) Prohibited uses;
    (b) Permitted uses generally;
    (c) Uses by special permit.



Sec. 415.31  Prohibited uses.

    (a) Within the floodway, except as permitted by special permit, the 
following uses are prohibited:
    (1) Erection of any structure for occupancy at any time by humans or 
animals.
    (2) Placing, or depositing, or dumping any spoil, fill or solid 
waste.
    (3) Stockpiling or disposal of pesticides, domestic or industrial 
waste, radioactive materials, petroleum products or hazardous material 
which, if flooded, would pollute the waters of the basin.
    (4) The storage of equipment or of buoyant materials, except for 
purposes of public safety.
    (b) Within the flood fringe, except as permitted by special permit, 
the following uses are prohibited:
    (1) Stockpiling or disposal of pesticides, domestic or industrial 
waste, radioactive materials, petroleum products or hazardous material 
which, if flooded, would pollute the waters of the basin.
    (2) Any use which will adversely affect the capacity of channels or 
floodways of any tributary to the main stream, drainage ditch, or any 
other drainage facility.



Sec. 415.32  Permitted uses generally.

    (a) Within the floodway, the following uses are permitted to the 
extent that they do not require structures, fill or storage of materials 
or permanently installed equipment, and do not adversely affect the 
capacity of the floodway:
    (1) Agricultural uses such as general farming, livestock, and dairy 
farming, horticulture, truck farming, sod farming, forestry, wild crop 
harvesting, and normal operating practices associated therewith.
    (2) Industrial-commercial uses such as loading areas, parking areas 
and airport landing strips.
    (3) Private and public recreational uses such as golf courses, 
driving ranges, archery ranges, picnic grounds, boat launching ramps, 
swimming areas, parks, wildlife and nature preserves, game farms, 
shooting preserves, target ranges, trap and skeet ranges, hunting and 
fishing areas, hiking and horseback riding trails.
    (4) Uses such as lawns, gardens, parking areas and play areas.
    (b) Within the flood fringe, the following uses are permitted:
    (1) Any use permitted in the floodway.
    (2) Residences and other structures constructed so that the first 
floor, including basement, is above the Flood Protection Elevation. When 
fill is used the finished fill elevation shall be no lower than the 
Flood Protection Elevation for the particular area and shall extend at 
least 15 feet beyond the limits of any structure or building erected 
thereon.

[[Page 32]]



Sec. 415.33  Uses by special permit.

    (a) Within the floodway the following uses by special permit may be 
authorized under the standards hereinafter provided:
    (1) Uses or structures accessory to open space use.
    (2) Circuses, carnivals and similar transient enterprises.
    (3) Drive-in theaters, signs and billboards.
    (4) Extraction of sand, gravel and other non-toxic materials.
    (5) Marinas, boat liveries, docks, piers, wharves and water control 
structures.
    (6) Fish hatcheries.
    (7) Railroads, streets, bridges, utility transmission lines and 
pipelines.
    (b) Within the flood fringe the following uses by special permit may 
be authorized under standards hereinafter provided:
    (1) Non-residential uses generally. Structures other than residence 
shall ordinarily be elevated as herein provided but may in special 
circumstances be otherwise flood proofed to a point above the Flood 
Protection Elevation.
    (2) Commercial uses. Commercial structures shall be elevated so that 
no first floor or basement floor is below the Flood Protection 
Elevation; or such structures may be flood proofed to the Flood 
Protection Elevation. Accessory land uses, such as yards, railroad 
tracks and parking lots may be at lower elevations. However, a permit 
for such facilities to be used by the general public shall not be 
granted in the absence of a flood warning system, if the area is 
inundated to a depth greater than two feet or subject to flood 
velocities greater than four feet per second upon the occurrence of the 
Regulatory Flood.
    (3) Manufacturing and industrial uses. Manufacturing and industrial 
buildings, structures, and appurtenant works shall be elevated so that 
no first floor or basement floor is below the Flood Protection 
Elevation; or such structures may be flood proofed to the Flood 
Protection Elevation. Measures shall be taken to minimize flood water 
interference with normal plant operations especially for streams having 
protracted flood durations. Certain accessory land uses as yards and 
parking lots may have lesser protection subject to the flood warning 
requirements set out in 2 above.
    (4) Utilities, railroad tracks, streets and bridges. Public utility 
facilities, roads, railroad tracks and bridges shall be designed to 
minimize increases in flood elevations and shall be compatible with 
local comprehensive flood plain development plans to the extent 
applicable. Protection to the Flood Protection Elevation shall be 
provided where failure or interruption of these public facilities would 
result in danger to the public health or safety, or where such 
facilities are essential to the orderly functioning of the area. Where 
failure or interruption of service would not endanger life or health, a 
lesser degree of protection may be provided for minor or auxiliary 
roads, railroads or utilities.
    (5) Water supply and waste treatment. No new construction, addition 
or modification of a water supply or waste treatment facility shall be 
permitted unless the lowest operating floor of such facility is above 
the Flood Protection Elevation, or the facility is flood proofed 
according to plans approved by the Commission, nor unless emergency 
plans and procedures for action to be taken in the event of flooding are 
prepared. Plans shall be filed with the Delaware River Basin Commission 
and the concerned state or states. The emergency plans and procedures 
shall provide for measures to prevent introduction of any pollutant or 
toxic material into the flood water or the introduction of flood waters 
into potable supplies.

                             Administration



Sec. 415.40  Administrative agency.

    (a) Class I projects as defined by Sec. 415.20 of this part shall be 
subject to review and approval by the Commission.
    (b) Class II projects as defined by Sec. 415.21 shall be subject to 
review and approval by a duly empowered state or local agency; and if 
there be no such state or local agency at any time on and after January 
1, 1978, and only during such time, the Commission may review any such 
project which has been

[[Page 33]]

identified by the Executive Director as having special flood hazards, 
and:
    (1) Is located along the mainstem Delaware River or a major 
tributary thereof, or
    (2) An agency of a signatory party requests such review.



Sec. 415.41  Special permits.

    A special permit may be granted, or granted on stated conditions, 
provided:
    (a) There is a clear balance in favor of the public interest in 
terms of the following environmental criteria:
    (1) The importance of a facility to the community.
    (2) The availability of alternative locations not subject to 
flooding for the proposed use.
    (3) The compatibility of the proposed use with existing development 
and development anticipated in the foreseeable future.
    (4) The relationship of the proposed use to any applicable 
comprehensive plan or flood plain management program for the area.
    (5) The safety of access to the property in times of flood for 
ordinary and emergency vehicles.
    (6) The expected heights, velocity, duration, rate of rise and 
sediment transport of the flood water expected at the site.
    (7) The degree to which the proposed activity would alter natural 
water flow or water temperature.
    (8) The degree to which archaeological or historic sites and 
structures, endangered or rare species of animals or plants, high 
quality wildlife habitats, scarce vegetation types, and other 
irreplaceable land types would be degraded or destroyed.
    (9) The degree to which the natural, scenic and aesthetic values at 
the proposed activity site could be retained.
    (b) The project shall not:
    (1) Endanger human life.
    (2) Have high flood damage potential.
    (3) Obstruct flood flows nor increase flood heights or velocities 
unduly whether acting alone or in combination with other uses.
    (4) Degrade significantly the water carrying capacity of any 
delineated floodway or channel.
    (5) Increase significantly the rate of local runoff, erosion, or 
sedimentation.
    (6) Degrade significantly the quality of surface water or the 
quality or quantity of ground water.
    (7) Be susceptible to flotation.
    (8) Have service facilities installed below the elevation of the 
regulatory flood without being adequately flood proofed.



Sec. 415.42  Technical standards.

    (a) Standards used by state and local governments shall conform in 
principle to Commission standards but may vary in detail provided that 
resulting flood plain use will not be less restrictive than would result 
from the application of Commission standards. The Commission will review 
proposed state and local flood plain regulations to determine their 
compliance with Commission standards.
    (b) Because of the variety and diversity of presently recognized 
hydrologic procedures, no one procedure or method is prescribed for 
determining the peak flow in cubic feet per second for the 100-year 
storm (Q 100) on which profiles for the delineation of flood hazard 
areas are based. The following may be used:
    (1) A uniform Technique for Determining Flood Flow Frequencies--
Bulletin No. 15--Water Resources Council, December 1967.
    (2) Basin-Wide Program for Flood Plain Delineation--Delaware River 
Basin Commission--Anderson-Nichols & Co., Inc., June 1973.
    (3) Magnitude and Frequency of Floods in New Jersey with Effects of 
Urbanization--Special Report 38 U.S.G.S.--New Jersey Department of 
Environmental Protection, 1974.
    (4) Guidelines for Determining Flood Flow Frequency--Bulletin No. 
17--Water Resources Council, March 1976.

State and local agencies may use methods resulting in Q 100s which are 
in reasonable agreement with those of the Commission. Any significant 
difference shall be reviewed with and subject to approval by the 
Executive Director.
    (c) Methods and procedures shall be uniform, so far as practicable, 
within sub-basins which have a major effect on the larger basins of 
which they are

[[Page 34]]

a part. To assist in achieving this objective the Commission staff will 
periodically provide to the various interested governmental agencies and 
others Q 100 data as developed by the Delaware River Basin Commission 
Hydrology Coordinating Committee for key locations in the Delaware River 
Basin. These will be based on a Log Pearson Type 3 analysis of data from 
the U.S.G.S. gaging stations using station skew, regional skew, or 
weighted skew, depending on the scope of data at each station.



Sec. 415.43  Mapped and unmapped delineations.

    (a) Whenever an official flood plain map providing the pertinent 
information is available with respect to a given project, the map shall 
be used for the delineation of the flood hazard area, floodway, flood 
fringe and determination of flood protection elevation.
    (b) Whenever an official flood plain map providing the required 
information is not available with respect to a given project, the 
administrative agency shall require the project landowner to submit 
details concerning the proposed uses as needed to determine the floodway 
and flood fringe limits at the proposed site, including: cross-sections 
of the stream channel and overbanks, stream profile, and factors 
involved in determining obstructions to flow. From the data submitted, 
soil surveys, historic flood maps, high water marks and other empirical 
data, the applicant, subject to verification by the administrative 
agency, shall calculate flood hazard areas, and establish the flood 
protection elevation for the particular site.
    (c) Pending the preparation and completion of flood plain mapping, a 
``general flood plain'' area shall be prescribed by the administrative 
agency to delineate for public guidance the areal limits of site 
locations which are required to be submitted for review under this 
regulation.

                               Enforcement



Sec. 415.50  General conditions.

    On and after January 1, 1978, where:
    (a) The flood hazard at the site is clear, present and significant, 
or the local government having jurisdiction has special flood hazard 
areas identified pursuant to the National Flood Insurance Act; and
    (b) The site is not subject to an approved state or municipal 
regulatory system having the same or similar effect on the flood hazard 
as this regulation, the Commission may condition its approval on any 
local governmental project under section 3.8 of the Compact upon the 
adoption and enforcement of flood plain regulations, approved hereunder, 
by the state or local government having jurisdiction.



Sec. 415.51  Prior non-conforming structures.

    A structure which was lawful before the adoption of this regulation 
but which is not in conformity with the provisions hereof, shall be 
subject to the following conditions (to be enforced by the appropriate 
authority as to Class I and Class II projects, respectively, under 
Secs. 415.40 through 415.43 of this part):
    (a) A non-conforming structure in the floodway may not be expanded, 
except that it may be modified, altered or repaired to incorporate flood 
proofing measures provided such measures do not raise the level of the 
100-year flood.
    (b) A non-conforming structure in the floodway which is destroyed or 
damaged by any means, including a flood, to the extent of 50 percent or 
more of its market value at that time may not be restored, repaired, 
reconstructed or improved except in conformity with the provisions of 
these regulations.



Sec. 415.52  Violations.

    Any violation of this regulation shall be subject to penalties 
imposed by the Compact.



PART 420--BASIN REGULATIONS--WATER SUPPLY CHARGES--Table of Contents




                                 General

Sec.
420.1  Definitions.

                           Water Supply Policy

420.21  Policy.
420.22  Prohibition; sanctions.
420.23  Exempt uses under the Compact.

[[Page 35]]

420.24  Effective date of rates.

                    Entitlement; Measurement; Billing

420.31  Certificate of entitlement.
420.32  Measurement and billing of water taken.
420.33  Payment of bills.

                           Charges; Exemptions

420.41  Schedule of water charges.
420.42  Contracts; minimum charge.
420.43  Exempt use.
420.44  Cooling water.
420.45  Historical use.

                  Hydroelectric Power Water Use Charges

420.51  Hydroelectric power plant water use charges.

    Authority: Delaware River Basin Compact, 75 Stat. 688.

    Source: 42 FR 13544, Mar. 11, 1977, unless otherwise noted.

                                 General



Sec. 420.1  Definitions.

    For the purposes of this part 420, except as otherwise required by 
the context:
    Person means any person, corporation, partnership, association, 
trust, or other entity, public or private.
    Water user means any person who uses, takes, withdraws or diverts 
surface waters within the Delaware River Basin.
    Executive Director means the Executive Director of the Delaware 
River Basin Commission.
    Consumptive use means the water lost due to transpiration from 
vegetation in the building of plant tissue, incorporated into products 
during their manufacture, lost to the atmosphere from cooling devices, 
evaporated from water surfaces, exported from the Delaware River Basin, 
or any other water use for which the water withdrawn is not returned to 
the surface waters of the basin undiminished in quantity.

                           Water Supply Policy



Sec. 420.21  Policy.

    The provisions of this part 420 implement Commission Resolution No. 
71-4 (Comprehensive Plan) relating to water supply charges.



Sec. 420.22  Prohibition; sanctions.

    Any person, firm, corporation or other entity, including a public 
corporation, body or agency, who shall use, withdraw or divert surface 
waters of the basin, shall pay such charges therefor as may be required 
by this resolution. Any violation of this resolution shall be subject to 
penalty as prescribed under Article 14.17 of the Compact. The Commission 
may also recover the value (according to the established water pricing 
schedules of the Commission) of any such use, withdrawal or diversion, 
and invoke the jurisdiction of the courts to enjoin any further use, 
withdrawal or diversion, unless all charges under this resolution are 
paid in full when due.



Sec. 420.23  Exempt uses under the Compact.

    (a) Section 15.1(b) of the Delaware River Basin Compact provides 
that ``no provision of section 3.7 of the Compact shall be deemed to 
authorize the Commission to impose any charge for water withdrawals or 
diversions from the basin if such withdrawals or diversions could 
lawfully have been made without charge on the effective date of the 
Compact; * * *'' In compliance with this provision: There shall be no 
charge for water withdrawn or diverted in quantities not exceeding the 
legal entitlement of the user, determined as of October 27, 1961. Each 
water user may submit proof satisfactory to the Commission of the 
factors constituting legal entitlement, as defined in paragraph (b) 
thereof. In the absence of such proof of these conditions as of October 
27, 1961, the quantity of water exempt from charge to each user will be 
the legal entitlement of the user determined as of March 31, 1971.
    (b) For the purposes of paragraph (a) of this section:
    (1) Legal entitlement means the quantity or volume of water 
expressed in million gallons per month determined by the lesser of the 
following conditions:
    (i) A valid and subsisting permit, issued under the authority of one 
of the signatory parties, if such permit was required as of October 27, 
1961, or thereafter;

[[Page 36]]

    (ii) Physical capability as required for such taking; or
    (iii) The total allocable flow without augmentation by the 
Commission, using a seven-day, ten-year, low-flow criterion measured at 
the point of withdrawal or diversion.
    (2) Physical capability means the capacity of pumps, water lines and 
appurtenances installed and operable, determined according to sound 
engineering principles. The physical capability specifically includes 
plant facilities actually using water, but excludes facilities which may 
have been installed in anticipation of future plant expansion not yet 
realized.
    (c) Whenever adequate records of legal entitlement for agricultural 
irrigation purposes are not available to the Commission, such legal 
entitlement shall be measured by the maximum number of acres under 
irrigation by the water user at any time during the year ending March 
31, 1971, allowing one acre-foot of surface water annually per acre 
irrigated.
    (d) Notwithstanding the provisions of paragraphs (a), (b) and (c) of 
this section, there shall be no charge for water made available from 
storage where:
    (1) The cost of the storage facility has or will be otherwise paid 
for by the user,
    (2) Such storage controls a drainage area, and
    (3) The use does not exceed the yield of such storage without 
augmentation from other surface water of the basin.



Sec. 420.24  Effective date of rates.

    Rates and charges shall apply to all water users not exempt 
hereunder on and after the date of the first impoundment of water for 
water supply purposes at the Beltzville Reservoir (February 8, 1971), or 
the effective date hereof, whichever is later.

                    Entitlement; Measurement; Billing



Sec. 420.31  Certificate of entitlement.

    (a) The Executive Director will issue to each known water user a 
certificate of entitlement within 30 days after the effective date of 
these regulations subject to the provisions of paragraph (b). In 
addition, any other water user may apply for a certificate of 
entitlement at any time. A preliminary notice of entitlement shall be 
issued to each user. Such entitlement shall become final and take 
effect, unless the user shall file with the Commission, within 20 days 
after the service of the notice of entitlement, a request for hearing by 
the Commission. At such hearing the water user may show cause why the 
proposed entitlement shall not take effect.
    (b) The Executive Director shall schedule a hearing to be held not 
less than ten days after receipt of a request for a hearing by the 
Commission. Hearings shall be conducted and the results thereof subject 
to review in accordance with Article 5 of the Commission's rules of 
practice and procedure.
    (c) A final certificate of entitlement will be issued either upon 
expiration of the time to request a hearing, where there has been no 
request, or in accordance with the determination of a hearing where one 
is held.
    (d) A certificate of entitlement is not transferable, except as 
provided in paragraphs (e) and (f) of this section. For the purposes of 
this section, transfer shall mean any sale or other conveyance by a 
holder of a certificate of entitlement involving a specific facility and 
shall include any transfer which results in a change of ownership and/or 
control of the facility or of the stock, or other indicia of ownership 
of a corporation which holds title to the facility.
    (e) Whenever ownership or possession of land in agricultural use is 
transferred, a certificate of entitlement with respect to such land 
shall be deemed to run with the land, so long as the water use continues 
to be for agricultural irrigation. Upon any such land transfer, the 
Executive Director will reissue a certificate of entitlement to the new 
user.
    (f) A certificate of entitlement may be transferred in connection 
with a corporate reorganization within any of the following categories:
    (1) Whenever property is transferred to a corporation by one or more 
persons solely in exchange for stock or securities of the same 
corporation, provided that immediately after the exchange the same 
person or persons are

[[Page 37]]

in control of the transferee corporation; that is, they own 80 percent 
of the voting stock and 80 percent of all other stock of the 
corporation; or
    (2) Where such transfer is merely a result of a change of the name, 
identify, internal corporate structure or place of organization of a 
corporate holder of a certificate of entitlement and does not affect 
ownership and/or control.

[42 FR 13544, Mar. 11, 1977, as amended at 59 FR 64571, Dec. 15, 1994]



Sec. 420.32  Measurement and billing of water taken.

    (a) The quantity and volume of waters used by each person shall be 
determined by meters, or other methods approved by the Commission, 
installed, maintained and read by or on behalf of the taker. Meters or 
other methods of measurement shall be subject to approval and inspection 
by the Commission as to installation, maintenance and reading.
    (b) Each user of surface water who is not exceeding the quantity 
specified in his ``certificate of entitlement'' shall annually, on or 
before January 31, file with the Commission, on a form to be prescribed 
by the Executive Director, a report of the user's physical capability, 
as defined, permit limitations, and the volume of water used during the 
preceding year.
    (c) Each user of surface water who is taking a quantity of water 
greater than the amount specified in his ``certificate of entitlement'' 
shall report his usage to the Commission on or before April 30, July 31, 
October 31 and January 31, of each year covering the next preceding 
calendar quarter, respectively, on forms to be prescribed by the 
Executive Director. The amount due for water usage in excess of the 
legal entitlement for each of the first three quarters of a calendar 
year shall be computed and paid by the user, together with the report.
    (d) The Commission will render a statement of the net amount due 
based on the fourth quarter report, including a negative or positive 
adjustment, so that the net total billing and payment for four quarters 
will equal the total water used during the four quarters less the user's 
legal entitlement, if any.



Sec. 420.33  Payment of bills.

    The amount due for each quarter shall bear interest at the rate of 1 
percent per month for each day it is unpaid beginning 30 days after the 
due date of the quarterly report for the first three quarters and 30 
days after the bill is rendered for the fourth quarter.

                           Charges; Exemptions



Sec. 420.41  Schedule of water charges.

    The Commission will from time to time, after public notice and 
hearing, make, amend and revise a schedule of water charges. Until 
changed, the charge for water shall be as follows:
    (a) Six cents per thousand gallons for consumptive use; and
    (b) Six-tenths of a mill per thousand gallons for nonconsumptive 
use.

[42 FR 13544, Mar. 11, 1977, as amended at 43 FR 56655, Dec. 4, 1978]



Sec. 420.42  Contracts; minimum charge.

    Subject to the exclusions for certificates of entitlement and exempt 
uses, the Executive Director may require contracts for any taking, use, 
withdrawal or diversion of waters of the basin. Each contract shall 
provide for a minimum annual payment in accordance with an estimated 
annual demand schedule, regardless of use, withdrawal or diversion. The 
failure of any person to execute a contract under this section shall not 
affect the application of other requirements of this resolution.



Sec. 420.43  Exempt use.

    The following uses shall be exempt from charge:
    (a) Non-consumptive uses of less than 1,000 gallons during any day, 
and less than 100,000 gallons during any quarter.
    (b) Ballast water used for shipping purposes.
    (c) Water taken, withdrawn or diverted from streams tributary to the 
river master's gauging station at Montague.
    (d) Water taken, withdrawn or diverted below R.M. 38 (the mouth of 
the Cohansey River) and such proportion of waters taken, diverted or 
withdrawn

[[Page 38]]

above R.M. 38 and below R.M. 92.4 (the mouth of the Schuylkill River) as 
the Executive Director may determine, on the basis of hydrologic 
studies, would have no discernible effect upon the maintenance of the 
salt front below the mouth of the Schuylkill River.



Sec. 420.44  Cooling water.

    Water used exclusively for cooling purposes which is returned to the 
stream in compliance with the effluent requirements of applicable water 
quality standards, shall be charged at the non-consumptive use rate 
except that losses due to in-stream evaporation caused by cooling uses 
will be charged as consumptive use.



Sec. 420.45  Historical use.

    A person who or which could not for any reason use, take, withdraw 
or divert waters of the basin from the place in question on March 31, 
1971, shall not be entitled to a certificate of entitlement.

                  Hydroelectric Power Water Use Charges



Sec. 420.51  Hydroelectric power plant water use charges.

    (a) Annual base charges. Owners of conventional run-of-river 
hydroelectric power plants that benefit from water storage facilities 
owned or partially owned by the Commission shall pay an annual base 
charge to the Commission. The amount of the base annual charge shall be 
one dollar per kilowatt of installed capacity.
    (b) Annual variable charges. In addition to the base charge 
established in (a) of this section, annual charges based on power 
generated at each facility will be assessed as follows:
    (1) Owners of hydroelectric power plants that benefit from increased 
hydraulic head available to the hydroelectric project as a result of 
investments by the Commission shall be charged one mill per kilowatt-
hour of energy produced.
    (2) Owners of hydroelectric power plants that derive additional 
benefits from increased flows available to the hydroelectric project 
that would not have been available without the Commission-sponsored 
project shall be charged one-half mill per kilowatt-hour of energy 
produced. No charges for increased flows will be required when charges 
for increased hydraulic head are in effect.
    (3) Charges for the use of any facilities such as pipe conduits, 
outlet works, and so on, installed in, on or near a Commission-sponsored 
project that benefit the hydroelectric project in any way will be 
determined on a case-by-case basis as approved by the Commission.
    (c) Credits. The owner of any hydroelectric generating facility 
shall receive a credit against the current year water use fee otherwise 
payable to the Commission for any amount which the Commission receives 
from the U.S. Army Corps of Engineers or from the Federal Energy 
Regulatory Commission for each calendar year.
    (d) Exemptions. No payment will be required when hydroelectric power 
facility water use charges would amount to less than $25 per year. 
Retroactive charges will not be assessed for facilities which have 
already obtained Commission approval pursuant to Section 3.8 of the 
Delaware River Basin Compact. All hydroelectric generating projects that 
do not benefit from storage owned or partially owned by the Commission 
are exempt from these Commission water charges.
    (e) Payment of bills. The amount due each year shall bear interest 
at the rate of 1% per month for each day it is unpaid beginning 30 days 
after the due date. Payments are due within 30 days of the end of each 
calendar year. Annual base charges will be prorated for periods less 
than a year.

[53 FR 45260, Nov. 9, 1988]

[[Page 39]]



                    SUBCHAPTER B--SPECIAL REGULATIONS





PART 430--GROUND WATER PROTECTION AREA: PENNSYLVANIA--Table of Contents




Sec.
430.1  Policy.
430.3  Purpose.
430.5  Definitions.
430.7  Determination of protected areas and restriction on water use.
430.9  Comprehensive plan policies.
430.11  Advance notice of exploratory drilling.
430.13  Protected area permits for new withdrawals.
430.15  Conservation requirements.
430.17  Registration of existing withdrawals.
430.19  Ground water withdrawal metering, recording, and reporting.
430.21  Protection of existing users.
430.23  Technical determinations and procedures.
430.25  Other permit requirements.
430.27  Emergencies.
430.29  Appeals.
430.31  Sanctions: Civil and criminal.
430.33  Duration.
430.35  Amendments.

    Authority: Pub. L. 87-328 (75 Stat. 688).

    Source: 46 FR 24, Jan. 2, 1981, unless otherwise noted.



Sec. 430.1  Policy.

    The provisions of this part implement Commission Resolutions 80-18 
and 80-27 relating to ground water protection in southeastern 
Pennsylvania.



Sec. 430.3  Purpose.

    The purpose of this regulation is to protect the ground water 
resources in the Triassic lowland and adjacent area of southeastern 
Pennsylvania and the public interest in those resources. In particular 
this regulation is to:
    (a) Assure the effective management of water withdrawals to avoid 
depletion of natural stream flows and ground waters and to protect the 
quality of such water.
    (b) Assure that ground water withdrawals are undertaken consistent 
with the policies stated in the Comprehensive Plan.
    (c) Protect the just and equitable interests and rights of present 
and future lawful users of water resources, giving due regard to the 
need to balance and reconcile alternative and conflicting uses in view 
of present and threatened shortages of water of the quality required to 
serve such uses.
    (d) Provide a mechanism for the acquisition of additional 
information necessary to more accurately plan and manage water 
resources.
    (e) Encourage all water users to adopt and implement reasonable 
water conservation measures and practices, to assure efficient use of 
limited water supplies.



Sec. 430.5  Definitions.

    For purposes of this regulation, except as otherwise required by the 
context:
    Aquifer means waterbearing formation that contains sufficient ground 
water to be important as a source of supply.
    Comprehensive Plan means the plans, policies and programs adopted as 
part of the Comprehensive Plan of the Delaware Basin in accordance with 
section 3.2 and Article 13 of the Delaware River Basin Compact.
    Ground water means all water beneath the surface of the ground.
    Ground water basin means a subsurface structure having the character 
of a basin with respect to the collection, retention and outflow of 
water.
    Ground water protected area means the areas declared and delineated 
by the Commission to be a ground water protected area pursuant to 
Article 10 of the Delaware River Basin Compact and this regulation.
    Ground water recharge means the addition of water to an aquifer by 
infiltration of precipitation through the soil, infilitration from 
surface streams, lakes or reservoirs, flow of ground water from another 
aquifer, or pumpage of water into the aquifer through wells.
    Project means the same word as defined by section 1.2(g) of the 
Delaware River Basin Compact.
    Protected area permit means a permit to divert or withdraw ground 
water within the ground water protected area for domestic, municipal, 
agricultural or industrial uses, granted pursuant to

[[Page 40]]

section 10.3 of the Delaware River Basin Compact and this regulation.



Sec. 430.7  Determination of protected areas and restriction on water use.

    In consideration of the foregoing facts and for the purposes cited 
above:
    (a) The Commission hereby determines and delineates the following 
area to be a protected area within the meaning and for the purpose of 
Article 10 of the Delaware River Basin Compact:

Southeastern Pennsylvania Ground Water Protected Area

    The ``Southeastern Pennsylvania Ground Water Protected Area'' shall 
consist of those portions of the following listed counties and political 
subdivision located within the Delaware Basin:

                                                      Townships
Berks County..............................  Douglass, Hereford, Union.
Bucks County..............................  Bedminster, Buckingham,
                                             Doylestown, East Rockhill,
                                             Hilltown, Lower
                                             Southampton, Middletown,
                                             Milford, New Britain,
                                             Newtown, Northampton,
                                             Plumstead, Richland, Upper
                                             Southampton, Warminster,
                                             Warrington, Warrick, West
                                             Rockhill, Wrightstown.
                                                      Boroughs
                                            Chalfont, Doylestown,
                                             Dublin, Hulmeville,
                                             Ivyland, Langhorne,
                                             Langhorne Manor, New
                                             Britain, Newtown, Penndel,
                                             Perkasie, Quakertown,
                                             Richlandtown, Sellersville,
                                             Silverdale, Telford,
                                             Trumbauersville.
                                                      Townships
Chester County............................  Birmingham, Charlestown,
                                             East Coventry, East
                                             Bradford, East Goshen, East
                                             Pikeland, Easttown, East
                                             Vincent, East Whiteland,
                                             North Coventry, Schuylkill,
                                             South Coventry, Thornbury,
                                             Tredyffrin, Warwick, West
                                             Bradford, West Goshen,
                                             Westtown, Willistown, West
                                             Whiteland.
                                                      Boroughs
                                            Elverson, Malvern,
                                             Phoenixville, Spring City,
                                             West Chester.
                                                      Townships
Lehigh County.............................  Lower Milford.
Montgomery County.........................  All of the area within the
                                             county boundary.
------------------------------------------------------------------------

    (b) The Commission hereby determines that within the Southeastern 
Pennsylvania Ground Water Protected Area demands upon available ground 
water supplies have developed or threaten to develop to such a degree as 
to create a water shortage or to impair or conflict with the 
requirements or effectuation of the Comprehensive Plan. Accordingly, no 
person, firm, corporation or other entity within the area shall withdraw 
ground water for any purpose at a rate exceeding 10,000 gallons per day, 
except as prescribed by this regulation.



Sec. 430.9  Comprehensive plan policies.

    The water resources within the Southeastern Pennsylvania Ground 
Water Protected Area shall be managed consistent with the Comprehensive 
Plan policies. For purposes of this ground water protected area, section 
2.20.4 of the Water Code of the Delaware River Basin shall be applied 
using the following definition of the term ``withdrawal limits'':
    (a) Withdrawal limits. Except as may be otherwise determined by the 
Commission to be in the public interest, withdrawals from the 
underground waters of the basin shall be limited to the maximum draft of 
all withdrawals from a ground water basin, aquifer, or aquifer system 
that can be sustained without rendering supplies unreliable, causing 
long-term progressive lowering of ground water levels, water quality 
degradation, permanent loss of storage capacity, or substantial impact 
on low flows of perennial streams.
    (b) [Reserved]



Sec. 430.11  Advance notice of exploratory drilling.

    The Commission encourages consultation with any project sponsor who 
is considering development of a new or expanded ground water withdrawal 
that is being planned for any purpose when the daily average withdrawal 
during any calendar month exceeds 10,000 gallons to insure proper 
implementation of this regulation and to reduce the possibility of 
investment in new ground water development facilities which may not be 
approved hereunder. Such consultation should occur early in the planning 
stage of a new project and prior to initiation of exploratory drilling.
    (a) Any person, firm corporation or other entity planning a new or 
expanded ground water withdrawal that may be operated at a daily average 
withdrawal during any calendar month in excess of 10,000 gallons shall 
notify the Executive Director not less than 30

[[Page 41]]

days prior to initiation of exploratory drilling. Such notice shall be 
in writing and shall specify the location of proposed new facility, the 
anticipated rate of withdrawal, and the general purpose of the proposed 
water use. The notice shall also state the location of existing wells 
within the radius set forth in Sec. 430.21(a).
    (b) Whenever the Executive Director shall deem necessary, or upon 
request of a party proposing a new or expanded withdrawal of ground 
water, an informal conference may be scheduled to review the nature of 
the proposed withdrawal, the applicability of the Commission's standards 
relating to ground water, and the requirements of a protected area 
permit under this regulation.



Sec. 430.13  Protected area permits for new withdrawals.

    Any person, firm, corporation or other entity who proposes to 
develop a new ground water withdrawal or expand an existing ground water 
withdrawal for any purpose within the Southeastern Pennsylvania Ground 
Water Protected Area shall be required to obtain a protected area permit 
under this regulation if the proposed new or increased rate of 
withdrawal from a well or group of wells operated as a system average 
more than 10,000 gallons per day over a 30-day period. Whenever the 
Executive Director, upon investigation or upon a reference from a state 
or federal agency, determines that a new or increased withdrawal from a 
group of wells within the protected area, whether or not such wells are 
operated as a system, may have a substantial effect on the water 
resources of the basin or is likely to have a significant adverse effect 
on other water uses within the protected area, the Commission may direct 
a notice to the owners or sponsors of such wells, and require such 
owners or sponsors to apply for and obtain a protected area permit under 
this regulation.
    (a) Applications for a protected area permit shall be submitted to 
the Commission on forms approved by the Executive Director. Each 
application shall be accompanied by the following information:
    (1) A map indicating the location of existing wells and perennial 
streams.
    (2) A written report prepared by a hydrogeologist describing the 
expected effects of the proposed withdrawal on existing wells, flows of 
perennial streams and the long-term lowering of ground water levels.
    (3) A log showing the nature of subsurface material encountered 
during the construction and installation of the exploratory or 
production well(s).
    (4) The detailed results of extended pump tests, of not less than 48 
hours duration, and records of observations during such pump tests from 
representative monitoring wells.
    (b) Applications for a protected area permits whose daily average 
withdrawal during any calendar month is in excess of 10,000 gallons 
shall be accompanied by an application fee of $100. Government agencies 
shall be exempt from such application fee.
    (c) If the application for a protected area permit is for a daily 
average withdrawal during any calendar month in excess of 100,000 
gallons, it shall be accompanied by such other information or exhibits 
required by Article 3 of the Commission's Rules of Practice and 
Procedure. In such cases, only the application fee required by the Rules 
will be assessed.
    (d) To qualify for approval of a protected area permit, the owner or 
sponsor of the proposed withdrawal shall demonstrate that:
    (1) The proposed withdrawal is consistent with the Commission's 
Comprehensive Plan and the policies and purposes of these regulations.
    (2) Opportunities to satisy water requirements on a timely basis 
from existing available supplies and facilities have been explored and 
found infeasible.
    (3) The proposed withdrawal, in conjunction with other withdrawals 
in the applicable ground water basin, will not exceed withdrawal limits 
of a ground water basin, aquifer or aquifer system.
    (4) The proposed withdrawal will not significantly impair or reduce 
the flow of perennial streams in the area.
    (5) Existing ground and surface water withdrawals will not be 
adversely impacted, or will be otherwise assured of

[[Page 42]]

adequate supplies in accordance with the requirements of Sec. 430.19 of 
this part.
    (6) The proposed withdrawal will not cause substantial, permanent 
adverse impact to the overlying environment.
    (7) The owner or sponsor has adopted and will implement conservation 
and management programs as required by Sec. 430.15 of this part.
    (e) Ground water withdrawals for space heating or cooling purposes 
that are less than 100,000 gallons per day shall be exempt from 
obtaining a protected area permit provided that the water withdrawn is 
returned locally, and to the same ground water basin and aquifer system 
from which it is withdrawn, undiminished in quantity and quality (except 
temperature). Ground water withdrawals for space heating or cooling that 
are subsequently used for commercial or industrial water supply purposes 
are subject to Commission withdrawal and wastewater discharge 
regulations. Ground water withdrawals exempted pursuant to this 
subsection shall be subject to the registration requirements of 
Sec. 430.17.
    (f) All ground water withdrawal projects exempted by subsection 
``e'' above shall be constructed in conformance with accepted industry 
practice and as a minimum shall comply with the following standards:
    (1) All wells shall be drilled by a Pennsylvania licensed well 
driller and a Water Well Inventory Report shall be completed and filed 
with the Pennsylvania Department of Environmental Resources (PADER);
    (2) No wells shall be located within a 100-year floodway;
    (3) All wells shall have top of casing extended a minimum of one 
foot above the 100-year flood elevation;
    (4) All wells shall have the casing protruding a minimum of six 
inches above the immediate surrounding grade;
    (5) The area around all wells or well pits shall be constructed and/
or graded to prevent the entrance of surface waters;
    (6) All wells shall be accessible for inspection and shall have an 
access hole for water level measurements;
    (7) In order to protect against significant leaks of refrigerant, 
all ground water heat pump systems shall be equipped with an automatic 
shutdown device that senses abnormally low or abnormally high 
refrigerant pressures;
    (8) Any drilled well holes that are abandoned shall be sealed with a 
minimum of ten feet of cement grout. Additional seals may be required to 
separate different water-bearing zones.
    (g) Protected area permits shall be approved or disapproved by the 
Executive Director with the concurrence of the Pennsylvania member of 
the Commission or his alternate.
    (h) Dockets and protected area permits may be issued for a duration 
of up to ten years and shall specify the maximum total withdrawals that 
must not be exceeded during any consecutive 30-day period. Such maximum 
total withdrawals shall be based on demands projected to occur during 
the duration of the docket or protected area permit.
    (i) Ground water withdrawal limits shall be defined for subbasins in 
accordance with the provisions of (i)(1) or (2) of this section. The 
limits for specific subbasins are set forth in (i)(3) of this section.
    (1) Baseflow frequency analyses shall be conducted for all subbasins 
in the Southeastern Pennsylvania Ground Water Protected Area. The 
analyses shall determine the 1-year-in-25 average annual baseflow rate. 
The 1-year-in-25 average annual baseflow rate shall serve as the maximum 
withdrawal limit for net annual ground water withdrawals for subbasins. 
If net annual ground water withdrawals exceed 75 percent of this rate 
for a subbasin, such a subbasin shall be deemed ``potentially 
stressed.'' The Commission shall maintain a current list of net annual 
ground water withdrawals for all subbasins. ``Net'' annual ground water 
withdrawals includes total ground water withdrawals less total water 
returned to the ground water system of the same subbasin.
    (2) Upon application by the appropriate governmental body or bodies, 
the withdrawal limits criteria set forth in (i)(1) of this section may 
be revised by the Commission to provide additional protection for any 
subbasin identified in (i)(3) of this section with streams or stream 
segments designated by the Commonwealth of Pennsylvania

[[Page 43]]

as either ``high quality,'' or ``exceptional value,'' or ``wild,'' or 
``scenic,'' or ``pastoral,'' or to correspond with more stringent 
requirements in integrated resource plans adopted and implemented by all 
municipalities within a subbasin identified in (i)(3) of this section. 
Integrated resource plans shall be developed according to sound 
principles of hydrology. Such plans shall at a minimum assess water 
resources and existing uses of water; estimate future water demands and 
resource requirements; evaluate supply-side and demand-side alternatives 
to meet water withdrawal needs; assess options for wastewater discharge 
to subsurface formations and streams; consider stormwater and floodplain 
management; assess the capacity of the subbasin to meet present and 
future demands for withdrawal and nonwithdrawal uses such as instream 
flows; identify potential conflicts and problems; incorporate public 
participation; and outline plans and programs including land use 
ordinances to resolve conflicts and meet needs. Integrated resource 
plans shall be adopted and implemented by all municipalities within a 
subbasin and incorporated into each municipality's Comprehensive Plan.
    (3)(i) The potentially stressed levels and withdrawal limits for all 
delineated basins and subbasins are set forth below:

------------------------------------------------------------------------
                                            Potentially
                Subbasin                  Stressed (mgy)    Withdrawal
                                                \1\         Limit (mgy)
------------------------------------------------------------------------
                          Neshaminy Creek Basin
------------------------------------------------------------------------
West Branch Neshaminy Creek Basin.......            1054            1405
Pine Run Basin..........................             596             795
North Branch Neshaminy Creek............             853            1131
Doylestown Subbasin Neshaminy Creek.....             710             946
Warwick Subbasin Neshaminy Creek........             889            1185
Warrington Subbasin Little Neshaminy                 505             673
 Creek..................................
Park Creek Basin........................             582             776
Warminster Subbasin Little Neshaminy                1016            1355
 Creek..................................
Mill Creek Basin........................            1174            1565
Northampton Subbasin Neshaminy Creek....             596             794
Newtown Creek...........................             298             397
Core Creek Basin........................             494             658
Ironworks Creek Basin...................             326             434
Schuylkill River Basin..................            3026           4034
                 Lower Section Subbasin Neshaminy Creek
------------------------------------------------------------------------
Hay Creek...............................             974            1299
Lower Reach Manatawny-Ironstone Creek...            1811            2414
Pigeon Creek............................             611             815
Schuylkill-Crow Creek...................            1157            1543
Schuylkill-Mingo Creek..................             671             895
Schuylkill-Plymouth-Mill Creeks.........            4446            5929
Schuylkill-Sixpenny Creek...............            1490            1987
Schuylkill-Sprogels Run.................            1091            1455
Schuylkill-Stony Creek..................             687             916
Schuylkill-Trout Creek..................            1082            1443
Stony Creek.............................            1242            1655
Valley Creek............................            1865            2486
                  French and Pickering Creek Subbasins
------------------------------------------------------------------------
Lower Reach French Creek................             634             845
Lower Reach Pickering Creek.............            1716            2288
Middle Reach French Creek...............            1608            2145
South Branch French Creek...............            1044            1393
Upper Reach French Creek................            1295            1726
Upper Reach Pickering Creek.............            1358           1811
                 Perkiomen and Skippack Creek Subbasins
------------------------------------------------------------------------
East Branch Perkiomen-Indian Creeks.....             633             844
East Branch Perkiomen-Mill Creeks.......             720             961
East Branch Perkiomen-Morris Run........            1214            1619
Hosensack-Indian Creeks.................            1257            1676
Lower Reach Skippack Creek..............            1069            1426
Perkiomen-Deep Creeks...................            1047            1396
Perkiomen-Lodal Creeks..................            1200            1600
Perkiomen-Macoby Creek..................            1252            1669
Swamp-Middle Creeks.....................            1423            1898

[[Page 44]]

 
Swamp-Minister Creeks...................             547             730
Swamp-Scioto Creeks.....................             746             994
Towamencin Creek........................             466             622
Unami-Licking Creeks....................             992            1322
Unami-Ridge Valley Creeks...............            1068            1424
Upper Reach Perkiomen Creek.............            1223            1631
Upper Reach Skippack Creek..............             813            1084
West Branch Perkiomen Creek.............            1566           2088
                          Delaware River Basin
------------------------------------------------------------------------
Jericho Creek...........................             421             562
Mill Creek..............................            1600            2134
Paunnacussing Creek.....................             513             684
Pidcock Creek...........................             563             751
Upper Reach Cobbs Creek.................             871            1161
Upper Reach Crum Creek..................            1290            1721
Upper Reach Darby Creek.................            1625            2167
Upper Reach East Branch Chester Creek...            1865            2487
Upper Reach Frankford Creek.............            1414            1886
Upper Reach Poquessing Creek............            1008            1344
Upper Reach Ridley Creek................            1707            2275
                            Tohickon Subbasin
------------------------------------------------------------------------
Tohickon-Beaver-Morgan Creeks...........            1156            1541
Tohickon-Deep Run.......................             956            1274
Tohickon-Geddes-Cabin Runs..............             602             803
Tohickon-Lake Nockamixon................             556             741
Tohickon-Three Mile Run.................             726            968
                   Pennypack and Wissahickon Subbasins
------------------------------------------------------------------------
Lower Reach Wissahickon Creek...........            2750            3666
Upper Reach Wissahickon Creek...........            1302            1736
Middle Reach Pennypack Creek............            1295            1727
Upper Reach Pennypack Creek.............            1358           1811
                        Brandywine Creek Subbasin
------------------------------------------------------------------------
East Branch Brandywine-Taylor Run.......            1054            1405
Middle Reach Brandywine Creek...........             823            1098
Upper Reach Brandywine Creek............            1614            2153
West Branch Brandywine-Beaver Run.......            2110            2813
West Branch Brandywine-Broad Run........            2380            3173
West Valley Creek.......................            1673           2231
                             Lehigh Subbasin
------------------------------------------------------------------------
Upper Reach Saucon Creek................             946            1262
------------------------------------------------------------------------
\1\ mgy means million gallons per year.

    (ii) Subject to public notice and hearing, this section may be 
updated or revised based upon new and evolving information on hydrology 
and streamflow and ground water monitoring or in accordance with 
paragraph (i)(2) of this section.
    (j) Upon its determination that a subbasin is potentially stressed, 
the Commission shall notify all ground water users in the subbasin 
withdrawing 10,000 gallons per day or more during any 30-day period of 
its determination. If any such users have not obtained a docket or 
protected area permit from the Commission, they shall be required to 
apply to the Commission within 60 days of notification.
    (k) In potentially stressed subbasins, dockets and protected area 
permit applications for new or expanded ground water withdrawals must 
include one or more programs to mitigate the adverse impacts of the new 
or expanded ground water withdrawal. The eligible programs are noted 
below. If the remainder of the application and the program(s) submitted 
are acceptable, the withdrawal may be approved by the Commission for an 
initial three-year period. The applicant shall implement the program(s) 
immediately upon Commission approval. If after the three-year period the 
program(s) is deemed successful by the Commission, the

[[Page 45]]

docket or permit duration may be extended for up to 10 years. The 
project sponsor shall be required to continue the program(s) for the 
duration of the docket or permit.
    (1) A conjunctive use program that demonstrates the applicant's 
capability to obtain at least 15 percent of its average annual system 
usage from a reliable surface water supply. An acceptable program shall 
include either reservoir storage or an interconnection with a surface 
water supplier and an agreement or contract to purchase water from the 
supplier for the duration of the docket or permit.
    (2) A water conservation program that exceeds the requirements of 
Sec. 430.15. For existing water utilities, the program shall reduce 
average annual per capita water usage by at least five percent. All 
conservation programs shall include water conservation pricing, either 
inclining block rates, seasonal rates, or excess-use surcharges, and 
plumbing fixture rebate or retrofit components. For self-supplied users, 
the program shall include water efficient technologies such as 
recycling, reuse, xeriscaping, drip or micro irrigation, or other 
innovative technology approved by the Commission.
    (3) A program to monitor and control ground water infiltration to 
the receiving sewer system. The program must quantify ground water 
infiltration to the system and document reductions in infiltration. The 
program should include such measures as leakage surveys of sewer mains, 
metering of sewer flows in mains and interceptors, analysis of sewer 
system flows to quantify infiltration, and remedial measures such as 
repair of leaks and joints, main lining, and main replacement.
    (4) An artificial recharge or spray irrigation program that 
demonstrates a return of at least 60 percent of the total new or 
expanded annual withdrawal to the same ground water basin and aquifer 
system from which it is withdrawn. The program shall not impair ground 
water quality.
    (5) An alternative program approved by the Commission to mitigate 
the adverse impacts of the new or expanded ground water withdrawal.
    (l) The durations of all existing dockets and protected area permits 
may be extended by the Commission for an additional five years if the 
docket or permit holder successfully implements in either (k)(1) or 
(k)(2) of this section. If the docket or permit holder successfully 
implements both options, the docket or permit may be extended for an 
additional ten years. The Executive Director shall notify all docket and 
permit holders potentially affected by this resolution of their right to 
file an application to determine their eligibility for extension.
    (m) It is the policy of the Commission to prevent, to the extent 
reasonably possible, net annual ground water withdrawals from exceeding 
the maximum withdrawal limit. An application for a proposed new or 
expanded ground water withdrawal that would result in net annual ground 
water withdrawals exceeding the maximum withdrawal limit established in 
paragraph (i)(3) of this section shall set forth the applicant's 
proposal for complying with the Commission's policy, with such 
supporting documentation as may be required by the Executive Director. 
Notification of the application shall be given to all affected existing 
water users who may also submit comments or recommendations for 
consideration by the Commission on the pending application. In taking 
action upon the application, the Commission shall give consideration to 
the submissions from the applicant and affected water users. If the 
Commission determines that it is in the public interest to do so, it may 
reduce the total of proposed and existing ground water withdrawals 
within a subbasin to a level at or below the withdrawal limit. Unless 
otherwise determined by the Commission, docket and permit holders shall 
share equitably in such reductions.

[46 FR 24, Jan. 2, 1981, as amended at 50 FR 5973, Feb. 13, 1985; 63 FR 
6477, Feb. 9, 1998; 64 FR 35566, July 1, 1999]



Sec. 430.15  Conservation requirements.

    The following conservation requirements shall apply to all existing, 
new or expanded ground water withdrawals for municipal, public, 
industrial or commercial water supply whose cumulative daily average 
withdrawal from one or more wells during any calendar month exceeds 
10,000 gallons.

[[Page 46]]

    (a) Each person, firm, corporation or other entity withdrawing 
ground water within the Southeastern Pennsylvania Ground Water Protected 
Area for purposes of municipal or public water supply shall comply with 
the following conservation requirements:
    (1) Water connections shall be metered, and water charges collected 
shall be based on metered usage.
    (2) A water conservation program shall be initiated and diligently 
pursued within the service area of the municipal or public water supply. 
Such program shall include a program for leakage control providing for 
the monitoring, prevention and repair of significant leakage, and the 
provision of customer information relating to water-saving devices.
    (3) Interconnections with adjacent water systems shall be considered 
to assure more reliable supplies of water during emergencies.
    (4) A drought emergency plan specifying actions which would be taken 
to reduce demand and assure supplies to priority uses in the event of 
drought conditions shall be prepared in cooperation with the 
municipalities in the service area. The plan shall be filed with the 
Commission.
    (b) Each person, firm, corporation or other entity withdrawing 
ground water within the Southeastern Pennsylvania Ground Water Protected 
Area for purposes of industrial or commercial water supply shall comply 
with the following conservation requirements:
    (1) Opportunities for water conservation shall be investigated and 
all feasible conservation measures shall be implemented at the earliest 
practicable time.
    (2) Water uses shall be monitored, and a systematic process shall be 
adopted and implemented to provide for the detection and expeditious 
correction of leakage.
    (3) A drought emergency plan specifying the actions to be taken to 
reduce demand in the event of drought conditions shall be prepared and 
filed with the Commission.
    (c) Permits issued pursuant to these regulations shall be 
conditioned upon compliance with the requirements of this section.



Sec. 430.17  Registration of existing withdrawals.

    (a) Existing users of ground water within the Southeastern 
Pennsylvania Ground Water Protected Area whose lawful use commenced 
prior to the effective date of this regulation, whose cumulative monthly 
average daily withdrawal from one or more wells exceeds 10,000 gallons 
and whose withdrawal has not previously been approved by DRBC, pursuant 
to section 3.8 of the Compact, shall, prior to July 1, 1981, register 
their use with the Pennsylvania Department of Environmental Resources 
acting as agent for the Commission. Registration is required as a 
condition for such existing users being eligible for the protection 
afforded by this regulation. Such registration shall include withdrawals 
from quarries that are not fed by surface streams.
    (b) Registrations shall be filed on forms approved by the Executive 
Director of the Commission. Each registrant shall provide, without 
limitation thereto, the following:
    (1) A description of the location, size and depth of each well and 
the pump facilities installed therein.
    (2) The estimated quantity of water withdrawn from each well, or 
related group of wells, during each month of 1980.
    (3) The purposes for which the water is withdrawn, its place of use, 
and the approximate quantity of water used for each purpose.
    (4) The location and method of wastewater disposal and discharge.
    (5) A registration fee of $5 for each well.



Sec. 430.19  Ground water withdrawal metering, recording, and reporting.

    (a) Each person, firm, corporation, or other entity whose cumulative 
daily average withdrawal of ground water from a well or group of wells 
operated as a system exceeds 10,000 gallons per day during any 30-day 
period shall meter or measure and record their withdrawals and report 
such withdrawals to the Pennsylvania Department of Environmental 
Resources. Withdrawals shall be measured by means of an automatic 
continuous recording device, flow meter, or other

[[Page 47]]

method, and shall be measured to within five percent of actual flow. 
Meters or other methods of measurement shall be subject to approval and 
inspection by the Pennsylvania Department of Environmental Resources as 
to type, method, installation, maintenance, calibration, reading, and 
accuracy. Withdrawals shall at a minimum be recorded on a daily basis 
for public water supply use and on a biweekly basis for all other water 
uses, and reported as monthly totals annually. More frequent recording 
or reporting may be required by the Pennsylvania Department of 
Environmental Resources or the Commission.
    (b) The following water uses and operations are exempt from the 
metering or measurement requirements of paragraph (a): Agricultural 
irrigation; snowmaking; dewatering incidental to mining and quarrying; 
dewatering incidental to construction; and space heating or cooling uses 
that are exempt from permit requirements in Sec. 430.13. Except for 
space heating and cooling uses described herein, persons engaged in such 
exempt withdrawals in excess of 10,000 gallons per day during any 30-day 
period shall record the pumping rates and the dates and elapsed hours of 
operation of any well or pump used to withdraw ground water, and report 
such information as required in paragraph (a). Space heating and cooling 
uses that are exempt from permit requirements in Sec. 430.13 shall also 
be exempt from the requirement for recording and reporting.
    (c) Pursuant to section 11.5 of the Compact, the Pennsylvania 
Department of Environmental Resources shall administer and enforce a 
program for metering, recording, and reporting ground-water withdrawals 
in accordance with this regulation.

(Delaware River Basin Compact, 75 Stat. 688)

[51 FR 25031, July 10, 1986]



Sec. 430.21  Protection of existing users.

    (a) Protected area permits issued under this regulation for new or 
expanded withdrawals of ground water shall include conditions to protect 
the owners of existing wells in accordance with the provisions of this 
section.
    (b) Any person, firm, corporation or other entity who commences a 
new or expanded withdrawal of ground water that is subject to the 
requirement of a protected area permit under this regulation shall 
provide mitigating measures if the withdrawal significantly affects or 
interferes with any existing well. Mitigation measures may consist of:
    (1) Providing an alternative water supply, of adequate quantity and 
quality, to the effected well owner(s);
    (2) Providing financial compensation to the affected well owner(s) 
sufficient to cover the costs of acquiring an alternative water supply 
of adequate quantity and quality; or
    (3) Such other measures as the Commission shall determine to be just 
and equitable under the circumstances present in the case of any 
individual application.

[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]



Sec. 430.23  Technical determinations and procedures.

    (a) The radius to be considered in assessing the potential impact of 
a proposed new or expanded ground water withdrawal, as required by 
Secs. 430.11 and 430.13 of this part shall be as follows:

------------------------------------------------------------------------
                                                        Radius from the
                                                           proposed
  Quantity of cumulative proposed withdrawal (gpd)     withdrawal to be
                                                      considered (miles)
------------------------------------------------------------------------
10,000 to 50,000....................................           0.5
50,000 to 100,000...................................           0.75
In excess of 100,000................................           1.0
------------------------------------------------------------------------

    (b) Ground water withdrawal limits, as defined in section 2.20.4 of 
the Water Code of the Delaware River Basis and Sec. 430.9 of this part, 
shall be calculated on the basis of the average recharge rate to the 
basin, aquifer, or aquifer system during repetition of a period which 
includes the worst recorded drought.
    (c) The requirement of paragraph (a) or (b) of this section may be 
modified or waived by the Executive Director or the Commission if an 
applicant adopts and implements a program for coordinated use of ground 
and surface water, and the applicant demonstrates that operation of the 
coordinated program will be consistent with the policies

[[Page 48]]

contained in the Comprehensive Plan and the purposes of these 
regulations.

[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]



Sec. 430.25  Other permit requirements.

    (a) Except to the extent provided in these regulations, registration 
of existing ground and surface water withdrawals and the issuance of 
withdrawal permits hereunder shall not create any private or proprietary 
rights in the water of the basin and the Commission reserves the right 
to amend, alter, or repeal these regulations and to amend, alter or 
rescind any actions taken hereunder in order to insure the proper 
control, use and management of the water resources of the basin.
    (b) Neither the obligation to obtain a protected area permit under 
this regulation, nor the receipt thereof, shall relieve the sponsor of a 
new or expanded ground water withdrawal project of the obligation to 
obtain any other applicable permits required by Federal, state or local 
government agencies.
    (c) A new or expanded ground water withdrawal subject to the 
requirement of a protected area permit under this regulation shall not 
require any further approval by the Commission if the daily average 
withdrawal during any calendar month is less than 100,000 gallons. If 
the new or expanded withdrawal exceeds a daily average of 100,000 
gallons during any calendar month, the project shall be subject to 
review and approval by the commission pursuant to section 3.8 of the 
Delaware River Basin Compact, and the requirement of a protected area 
permit for such a project shall be in addition to other requirements of 
the Commission and its Rules of Practice and Procedure.

[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]



Sec. 430.27  Emergencies.

    In the event of an emergency requiring immediate action to protect 
the public health and safety or to avoid substantial and irreparable 
injury to any private person or property, and the circumstances do not 
permit full review and determination in accordance with these 
regulations, the Executive Director, with the concurrence of the 
Pennsylvania member of the Commission or his alternate, may issue an 
emergency permit authorizing an applicant to take such action relating 
to these regulations as the Executive Director may deem necessary and 
proper. In such cases, the applicant shall be fully responsible for 
protecting existing ground water users, as prescribed in Sec. 430.19 of 
this part. The Executive Director shall report at the next meeting of 
the Commission on the nature of the emergency and any action taken under 
this section.

[47 FR 21776, May 20, 1982. Redesignated at 51 FR 25031, July 10, 1986]



Sec. 430.29  Appeals.

    Any person aggrieved by any action or decision of the Executive 
Director taken under these regulations shall be entitled upon timely 
filing of a request therefor, to a hearing in accordance with Article 6 
of the Commission'a Rules of Practice and Procedure.

[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]



Sec. 430.31  Sanctions: Civil and criminal.

    (a) Any person, association, corporation, public or private entity 
who or which violates or attempts or conspires to violate any provision 
of this regulation, or any order, regulation or permit issued in 
furtherance thereof, shall be punishable as provided in section 14.17 of 
the Compact.
    (b) General Counsel of the Commission may, in his discretion, 
request the appropriate law enforcement officers of the Commonwealth of 
Pennsylvania to prosecute any or all violations of this regulation in 
accordance with the Compact and the laws of the Commonwealth, and for 
recovery of the fines fixed by section 14.17 of the Compact, in the name 
and on behalf of the Commission. The Commonwealth of Pennsylvania and 
its law enforcement officers are hereby requested pursuant to sections 
10.1 and 11.5 of the Compact, to provide such technical, professional 
and administrative services as may be required for such enforcement.
    (c) In addition to such penal sanctions as may be imposed pursuant 
to

[[Page 49]]

this section, any violation of this regulation shall be subject to such 
civil remedies by injunction and otherwise as provided by law.

[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]



Sec. 430.33  Duration.

    The delineation and declaration of the Southeastern Pennsylvania 
Ground Water Protected Area made pursuant to this regulation, and the 
requirements established hereby, shall continue until terminated by 
specific action of the Commission.

[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]



Sec. 430.35  Amendments.

    Upon request by any interested party, or on its own motion, the 
Commission may consider amendment of this regulation, and modify the 
geographic boundaries of the protected area, in accordance with Article 
10 of the Compact.

[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]

[[Page 51]]



                   CHAPTER VI--WATER RESOURCES COUNCIL




  --------------------------------------------------------------------
Part                                                                Page
701             Council organization........................          53
704             Plan formulation standards and procedures...          67
705             Nondiscrimination in federally assisted 
                    programs--effectuation of Title VI of 
                    the Civil Rights Act of 1964............          68
706             Employee responsibilities and conduct.......          76
707             Compliance with the National Environmental 
                    Policy Act (NEPA).......................          83
708             Upper Mississippi River Basin Commission: 
                    Public participation in Upper 
                    Mississippi River System Master Plan....          87
725             Implementation of Executive Orders 11988, 
                    Floodplain Management and 11990, 
                    Protection of Wetlands..................          92
740             State Water Management Planning Program.....          94

[[Page 53]]



PART 701--COUNCIL ORGANIZATION--Table of Contents




                         Subpart A--Introduction

Sec.
701.1  General.
701.2  Creation and basic authority.
701.3  Purpose of the Water Resources Council.
701.4  Functions.
701.5  Organization pattern.
701.6  Location of office.

                  Subpart B--Headquarters Organization

701.51  The Council.
701.52  Definitions.
701.53  Council decisions by Members.
701.54  Interagency Liaison Committee.
701.55  Associate Members.
701.56  Observers.
701.57  Official decisions of the Council.
701.58  Task forces.
701.59  Advisory committees.
701.60  Procedures for revision of rules and regulations.
701.71  The Chairman.
701.76  The Water Resources Council Staff.
701.77  Director--duties and responsibilities.
701.78  Director--delegation of authorities.
701.79  Selection policy for professional personnel.

                      Subpart C--Field Organization

701.100  Field Directors.
701.101  Field committees.
701.102  Existing committees.

                 Subpart D--Availability of Information

701.200  Statement of policy.
701.201  Availability of records and informational materials.
701.202  Procedure for requests for information.
701.203  Schedule of fees.
701.204  Time limits for WRC initial determinations regarding requests 
          for information.
701.205  Time limit for requester to appeal an initial adverse 
          determination.
701.206  Time limit for WRC final determinations regarding requests for 
          information appealed by the requester from an initial adverse 
          determination.
701.207  Extension of time limits for WRC initial and final 
          determinations.
701.208  WRC petition for judicial extension of time.
701.209  River basin commissions and field committees.

                    Subpart E--Protection of Privacy

701.300  Purpose and scope.
701.301  Definitions.
701.302  Procedures for notification of existence of records pertaining 
          to individuals.
701.303  Conditions of disclosure.
701.304  Procedures for identification of individuals making requests.
701.305  Procedures for requests for access to or disclosure of records 
          pertaining to individuals.
701.306  Special procedure: Medical records.
701.307  Request for correction or amendment to record.
701.308  Council review of request for correction or amendment of 
          record.
701.309  Appeal of initial adverse determination.
701.310  Disclosure of record to person other than the individual to 
          whom it pertains.
701.311  Accounting for disclosures.
701.312  Fees.
701.313  Penalties.
701.314  Exemptions.

    Authority: Sec. 402, Pub. L. 89-80; 79 Stat. 244, as amended (42 
U.S.C. 1962-1962d-5), unless otherwise noted.



                         Subpart A--Introduction

    Source: 43 FR 25944, June 15, 1978, unless otherwise noted.



Sec. 701.1  General.

    This part describes the organization established by the Water 
Resources Council in discharging its duties and responsibilities. The 
organization is designed to assure that Council Members will meet at 
least quarterly and consider and decide major matters before the 
Council. It provides that the Director can take action when necessary 
and appropriate; provided, that in the preparation of agenda items for 
the Council meetings, the Director shall consult with the Interagency 
Liaison Committee. It also provides that the Council Members shall be 
continuously advised of the significant actions of the Council staff. 
Council Members expect to participate personally in the work of the 
Council.



Sec. 701.2  Creation and basic authority.

    The Water Resources Council was established by the Water Resources 
Planning Act of 1965 (Pub. L. 89-80, 79 Stat. 244, as amended (42 U.S.C. 
1962-1962d-5)). The rules and regulations of this part are promulgated 
by authority of

[[Page 54]]

section 402 of the Act (42 U.S.C. 1962d-1).

[41 FR 20548, May 19, 1976]



Sec. 701.3  Purpose of the Water Resources Council.

    It is the purpose of the Water Resources Council to effectuate the 
policy of the United States in the Water Resources Planning Act 
(hereinafter the Act) to encourage the conservation, development, and 
utilization of water and related land resources of the United States on 
a comprehensive and coordinated basis by the Federal Government, States, 
localities, and private enterprise with the cooperation of all affected 
Federal agencies, States, local governments, individuals, corporations, 
business enterprises, and others concerned, within the limitations set 
forth in section 3 of the Act (42 U.S.C. 1962-1).



Sec. 701.4  Functions.

    The functions of the Water Resources Council are:
    (a) To maintain a continuing study and prepare periodically an 
assessment of the adequacy of supplies of water necessary to meet the 
water requirements in each water resource region in the United States 
and of the national interest therein.
    (b) To maintain a continuing study of the relation of regional or 
river basin plans and programs to the requirements of larger regions of 
the Nation.
    (c) To appraise the adequacy of administrative and statutory means 
for coordination and implementation of the water and related land 
resources policies and programs of the several Federal agencies and to 
make recommendations to the President with respect to Federal policies 
and programs.
    (d) To establish, after consultation with appropriate interested 
Federal and non-Federal entities, and with approval of the President, 
principles, standards, and procedures for Federal participation in the 
preparation of comprehensive regional or river basin plans and for the 
formulation and evaluation of Federal water and related land resources 
projects, including primary direct navigation benefits as defined by 
section 7a, Pub. L. 89-670.
    (e) To coordinate schedules, budgets, and programs of Federal 
agencies in comprehensive interagency regional or river basin planning.
    (f) To carry out its responsibilities under Title II of the Act with 
regard to the creation, operation, and termination of Federal-State 
river basin commissions.
    (g) To receive plans or revisions thereof submitted by river basin 
commissions in accordance with section 204(3) of the Act (42 U.S.C. 
1962b(3)), and to review and transmit them, together with its 
recommendations, to the President in accordance with section 104 of the 
Act (42 U.S.C. 1962a-3).
    (h) To assist the States financially in developing and participating 
in the development of comprehensive water and related land resources 
plans in accordance with Title III of the Act.
    (i) To perform such other functions as the Council may be authorized 
by law, executive orders, regulations, or other appropriate instructions 
to perform.
    (j) To take such actions as are necessary and proper to implement 
the Act and to carry out the functions enumerated herein.



Sec. 701.5  Organization pattern.

    (a) The Office of the Water Resources Council is composed of the 
Water Resources Council, the Chairman of the Water Resources Council, 
the Water Resources Council Staff headed by a Director, and Field 
Organizations within its jurisdiction.
    (b) The Water Resources Council consists of the following Members: 
The Secretary of Agriculture; the Secretary of the Army; the Secretary 
of Commerce; the Secretary of Energy; the Secretary of Housing and Urban 
Development; the Secretary of the Interior; the Secretary of 
Transportation; and the Administrator of the Environmental Protection 
Agency.
    (c) The Chairman of the Council is designated by the President.
    (d) The Water Resources Council staff is employed, assigned duties 
and responsibilities, and supervised by the Director.
    (e) The Council Members shall establish an Interagency Liaison 
Committee. Task forces may be established

[[Page 55]]

and assigned duties by the Director with the concurrence of the Members, 
and/or action of the Council. Any Council Member may provide each task 
force with whatever representation he or she deems necessary.
    (f) Field organizations are established by or operate under the 
Council and include field committees formerly under the Inter-Agency 
Committee on Water Resources and the offices of the Chairmen of Federal-
State River Basin Commissions established under Title II of the Act.



Sec. 701.6  Location of office.

    The Headquarters is located in the Washington, DC area.



                  Subpart B--Headquarters Organization

    Source: 43 FR 25945, June 15, 1978, unless otherwise noted.



Sec. 701.51  The Council.

    Decisions of the Council are made as hereinafter described in 
Secs. 701.53 and 701.54.



Sec. 701.52  Definitions.

    As used in this part the term Member means the Secretary of 
Agriculture, the Secretary of the Army, the Secretary of Commerce, the 
Secretary of Energy, the Secretary of Housing and Urban Development, the 
Secretary of the Interior, the Secretary of Transportation, and the 
Administrator of the Environmental Protection Agency, or Alternate 
appointed in accordance with Sec. 701.53(a) when the alternate is acting 
for one of the above-named.



Sec. 701.53  Council decisions by Members.

    Council decisions by Members may be made by direct vote at Council 
meetings or by a written communication which may provide for either a 
written or telephone response. Written communications shall state the 
time limit for voting on issues which they contain; however, extensions 
of time may be granted by the Director or Chairman when it is deemed 
necessary. Issues raised at Council meetings shall be decided by 
majority vote of Members present and voting. Issues identified in 
written communications must receive approval of all Members. If an 
action item does not receive approval of all Members, it will be 
considered as an agenda item at the next Council meeting. For purposes 
of this section, approval of all Members shall be defined as approval 
without a negative vote within the time limit for voting provided within 
each action memorandum. Decisions affecting the authority or 
responsibility of a Member, within the meaning of section 3(b) of the 
Act, (42 U.S.C. 1962-1(b)), can be made only with that Member's 
concurrence.
    (a) Each of the Members in Sec. 701.5(b) shall designate in writing 
to the Chairman, with a copy to the Director, those individuals who may 
act as their Alternates in fulfilling the duties as a Member. Each 
Member shall designate one Alternate and one second Alternate to 
represent the Member on the Council.
    (b) A quorum for the transaction of business at Council meetings 
shall consist of five or more Members and a majority shall consist of at 
least four votes.
    (c) Each Member has equal responsibility and authority in all 
decisions and actions of the Council. Each Member may place an item on a 
meeting agenda or, acting through the Director, circulate in writing an 
item for Council action. Each Member, as well as each Associate Member 
and each Observer, shall have full access to all information relating to 
the performance of his duties and responsibilities.
    (d) No vote shall be taken at Council meetings until each Member and 
Associate Member present has had full opportunity to express his views.
    (e) Members shall meet regularly at least quarterly, upon the call 
of the Chairman, or when requested by a majority of Members.
    (f) Matters specifically reserved for Council decision by Members 
are:
    (1) Actions requiring Presidential action or approval.
    (2) Approval of Annual Budget requests and the Annual Operating 
Program of the Office of the Water Resources Council.
    (3) Decisions involving substantial policy issues.
    (4) Delegations of authority.

[[Page 56]]

    (5) Determination that testimony taken or evidence received shall be 
taken under oath.
    (6) Issuance of invitations to become Associate Members or 
Observers.
    (7) Appointment and termination of the appointment of the Director.

[43 FR 25945, June 15, 1978, as amended at 45 FR 24460, Apr. 10, 1980]



Sec. 701.54  Interagency Liaison Committee.

    There is established within the Council an Interagency Liaison 
Committee (hereafter referred to as ILC).
    (a) The ILC shall be composed of one representative for each Member, 
Associate Member, and Observer. Additional agency representatives may 
participate in the ILC meeting whenever necessary.
    (b) The chairmanship of the ILC shall rotate quarterly among the 
Members` representatives. Secretarial assistance shall be the 
responsibility of the ILC Chairman.
    (c) The function of the ILC will be to provide a forum for 
discussion of agenda items prior to Council meetings to advise the 
Director of the Members` views on such agenda items, and with the 
Director, to develop the final agenda. It shall be the duty of the 
Director or his representative to brief the ILC on each agenda item at 
these meetings.
    (d) The ILC may meet at other times upon the call of the Chairman or 
Director, to consider other items.
    (e) Draft agenda items shall be submitted to ILC representatives at 
least 30 days prior to the Council meeting. The ILC shall meet at least 
20 days prior to the Council meeting. Final Council agenda material 
shall be submitted to the Members at least 7 days prior to the Council 
meeting.
    (f) All ILC meetings will be open except when privileged information 
is discussed. At such meetings only representatives of Members shall be 
present.

[43 FR 25945, June 15, 1978, as amended at 45 FR 58834, Sept. 5, 1980]



Sec. 701.55  Associate Members.

    (a) The Chairman, with concurrence of the Council, may invite the 
heads of other Federal agencies having authorities and responsibilites 
relating to the work of the Council to become Associate Members. 
Associate Members, on the same terms and conditions as Members, may 
designate persons, in accordance with the same procedure identified in 
Sec. 701.53(a), to serve for them as Associate Members.
    (b) Associate Members may participate with Members in consideration 
of all matters relating to their areas of responsibility, except that 
their concurrence on a decision of the Council is not required.



Sec. 701.56  Observers.

    (a) Chairmen and Vice-Chairmen of River Basin Commissions 
established under Title II of the Act shall be Observers.
    (b) The Chairman, with the concurrence of the Council, may invite 
the heads of offices or other officials of the Executive Office of the 
President or other Federal agencies to become Observers.
    (c) Observers may designate persons to attend Council meetings of 
Members. Observers will be furnished agenda and other materials on the 
same basis as Associate Members.



Sec. 701.57  Official decisions of the Council.

    Official decisions of the Council shall be of record. Such decisions 
shall be recorded in accepted minutes of duly called regular or special 
meetings or set forth in resolutions, memoranda, or other documents 
approved by Members. Decisions which would affect the authority and 
responsibilities of heads of other Federal agencies, including Associate 
Members, within the meaning of section 3(b) of the Act, shall only be 
made during a regular or special meeting of Members and recorded in the 
minutes thereof.



Sec. 701.58  Task forces.

    The Director with Council concurrence or the Council may establish 
task forces from time to time to aid in the preparation of issues for 
presentation to the Council.
    (a) Any Member, Associate Member, or Observer may provide 
representation on each task force.

[[Page 57]]

    (b) The Director or the Council may designate the chairman of each 
task force.
    (c) For each task force, the Director or the Council shall set forth 
the purpose and specific functions of each task force and their 
termination dates in establishing such task forces. Such charter 
documents shall also identify the relationship of each task force to 
functions of the Council.
    (d) Each duly constituted task force will be provided administrative 
and secretarial support by the Water Resources Council Staff to the 
extent possible, directly or through arrangements with other Federal 
agencies.



Sec. 701.59  Advisory committees.

    The Council may establish standing and ad hoc advisory committees. 
The establishment, operation, and termination of such committees shall 
be in accordance with the Federal Advisory Committee Act (Pub. L. 92-
463) and other pertinent law and directives.



Sec. 701.60  Procedures for revision of rules and regulations.

    Revisions proposed by the Water Resources Council Members to the 
Principles and Standards Manual of Procedures promulgated as rules and 
regulations by the Water Resources Council are to be submitted in 
writing by one or more Members of the Water Resouces Council to the 
Director, Water Resources Council, to be handled as an action item in 
accordance with Sec. 701.53. Proposed revisons adopted by the Council in 
accordance with Sec. 701.53 will be published in the Federal Register as 
proposed interim, or final changes. Proposed or interim changes shall be 
subject to a minimum 60-day public comment period; after the comment 
period, the Water Resources Council will publich notice that the 
revision is final as written or as changed to reflect comment or is 
revoked. Final changes will not be subject to a public comment period 
following publication in the Federal Register and will become effective 
when published or at specified date.

[44 FR 72584, Dec. 14, 1979]



Sec. 701.71  The Chairman.

    (a) The Chairman shall preside at Council Meetings of Members.
    (b) The Chairman is the official spokesman of the Council and 
represents it in its relations with the Congress, the States, Federal 
agencies, persons, or the public. He shall from time to time report, on 
behalf of the Council, to the President. He shall keep the Council 
apprised of his actions under this section.
    (c) The Chairman shall request the heads of other Federal agencies 
to participate with the Council when matters affecting their 
responsibilities are considered by the Council.
    (d) In the case of absence, disability, or vacancy, the acting 
Chairman shall be, in order of precedence, as designated (1) by the 
President (2) by the Chairman from among the Members, or (3) by the 
Council from among the Members.



Sec. 701.76  The Water Resources Council Staff.

    The Water Resources Council Staff (hereinafter the Staff) serves the 
Council and the Chairman in the performance of their functions and in 
the exercise of their authorities in accordance with the Act, the rules 
and regulations and other decisions of the Council, and all other laws, 
rules, regulations, and orders applicable to the Water Resources 
Council, and will be organized in accordance with a structure approved 
by the Council.



Sec. 701.77  Director--duties and responsibilities.

    The Director shall serve as the principal executive officer for the 
Council and as the head of the staff, and shall see to the faithful 
execution of the policies, programs, and decisions of the Council; 
report thereon to the Council from time to time or as the Council may 
direct; administer the office and staff of the Council within the limits 
of the Annual Budget and the Annual Operating Program related thereto; 
make recommendations to the Council and the Chairman relating to the 
performance of their functions and the exercise of their authorities; 
and facilitate the work of the Council and the Chairman.

[[Page 58]]

His duties and responsibilities include, but are not limited to, the 
following:
    (a) Acting for the Chairman, represents the Council in its relations 
with the Congress, States, Federal agencies, persons, or the public 
under the general supervision and direction of the Council.
    (b) Establishes the line of succession as Acting Director among the 
other officers of the Council below the Deputy Director.
    (c) Directs the Staff in its service to the Council and the Chairman 
in the performance of their functions and in the exercise of their 
authorities. The Director is responsible to the council for the 
organization of the Staff, employment and discharge of personnel, 
training and personnel development program, assignment of duties and 
responsibilities, and the conduct of its work.
    (d) Insures that the quality of the work of the Staff in its 
studies, reports, and in other assignments is high that the professional 
integrity of its personnel is respected, and that its overall 
perspective and independence of judgment with regard to water and 
related land resources matters is approximately maintained within the 
context of the inter-agency, intergovernmental, and other staff 
collaboration that is both necessary and desirable in the fulfillment of 
the purpose of the Council as set forth in Sec. 701.3.
    (e) Prepares and recommends reports on legislation, Executive 
orders, and other documents requested of the Council.
    (f) Prepares and recommends an Annual Budget request in accordance 
with policies, rules, and regulations applicable thereto. During its 
consideration by the Office of Management and Budget the President and 
the Congress, the Director shall seek acceptance of the proposed Annual 
Budget by every appropriate means. On behalf of the Council, he is 
authorized in his descretion to make appeals and agree to adjustments. 
However, to the extent that time and circumstances permit, he shall 
consult with and obtain the approval of the Council on all substantial 
appeals and adjustments.
    (g) Prepares and recommends the Annual Operating Program to carry 
out the work of the Council, within the appropriations provided by the 
Congress and allowances approved by the Office of Management and Budget.
    (h) Prepares and recommends proposed rules and regulations, 
including proposed delegations of authority, for carrying out the 
provisions of the Act, or other provisions of law which are administered 
by the Council.
    (i) Prepares and recommends reports and materials for public 
information that are explanatory of the work and accomplishments of the 
Council.
    (j) Appoints staff representatives to each task force established 
pursuant to Sec. 701.58.
    (k) Establishes and enforces administrative rules and regulations 
pertaining to the Staff consistent with applicable laws, Executive 
Orders, Budget Circulars, and other regulations and orders.



Sec. 701.78  Director--delegation of authorities.

    (a) Under the authority of section 403 of the Act (42 U.S.C. 1962d-
2), the Director is delegated authority to:
    (1) Hold hearings, sit and act at such times and places, take such 
testimony, receive such evidence, and print or otherwise reproduce and 
distribute so much of its proceedings and reprints thereon as he may 
deem advisable.
    (2) Acquire, furnish, and equip such office space as is necessary.
    (3) Use the U.S. mails in the same manner and upon the same 
conditions as other departments and agencies of the United States.
    (4) Employ and fix compensation of all personnel as the Director 
deems advisable in accordance with the civil service laws and the 
Classification Act of 1949, as amended; assign duties and 
responsibilities among such personnel and supervise personnel so 
employed.
    (5) Procure services as authorized by section 15 of the Act of 
August 2, 1946 (5 U.S.C. 3109), at rates not in excess of the daily 
equivalent of the rate prescribed for grade GS-18 under section 5332 of 
Title 5 of the United States Code in the case of individual experts or 
consultants.
    (6) Purchase, hire, operate, and maintain passenger motor vehicles.

[[Page 59]]

    (7) Utilize and expend such funds as are deemed advisable for proper 
administration of the authorities delegated herein. However, contract 
and individual modifications there of in excess of $100,000 or which 
involve significant policy decisions shall be submitted to the Council 
for approval before execution.
    (8) Request any Federal department or agency (i) to furnish to the 
Council such information as may be necessary for carrying out its 
functions and as may be available to or procurable by such department or 
agency, and (ii) to detail personnel to temporary duty with the Council 
on a reimbursable basis.
    (9) Make available for public inspection during ordinary office 
hours all appropriate records and papers of the Council.
    (10) Compute and certify for payment funds to the States in 
accordance with standards and formula approved by the Council, and 
perform related functions of the Council contained in section 305 of the 
Act.
    (11) Serve as a duly authorized representative of the Chairman of 
the Council for the purpose of audit and examination of any pertinent 
books, documents, papers, and records of the recipient of a grant under 
Title III of the Act, and recommend to the Chairman the appointment of 
further representatives as may be necessary for such function.
    (12) Review, for compliance, State programs approved under Title 
III; conduct full inquiries as the Council may direct; and recommend for 
Council decision such withholding or reinstatement of payments as is 
appropriate and authorized by section 304 of the Act.
    (13) Serve as the ``responsible agency official'' under part 705 of 
these rules and regulations.
    (b) The authorities delegated in this section may be redelegated by 
the Director to the extent determined by him to be necessary and 
desirable for proper administration.



Sec. 701.79  Selection policy for professional personnel.

    In the selection for employment of the professional staff as a 
whole, the Director shall be guided by the following criteria:
    (a) Outstanding character and competence--both personal and 
professional.
    (b) Spread and balance of training and experience in the several 
relevant professions--ecology; economics; economic geography; 
engineering; fish and wildlife biology; forestry; hydrology; irrigation; 
landscape architecture; law; political science; recreation; sanitary 
engineering; soil conservation; urban and other land planning; etc.
    (c) Diversity of prior identification and experience, both planning 
and operating in Washington and in the field; including personnel with 
prior identification and experience with Federal, State, or local 
government, private enterprise, or university teaching and research.



                      Subpart C--Field Organization

    Source: 39 FR 20590, June 12, 1974, unless otherwise noted.



Sec. 701.100  Field Directors.

    The Council may employ as professional staff Field Directors who 
shall be designated as chairmen of committees or groups established by 
the Council to develop and prepare regional or river basin assessments 
or plans. Such Field Directors shall perform their official functions at 
locations established by the Council.



Sec. 701.101  Field committees.

    The Council may establish or continue already established regional 
committees to carry out assigned functions at field level.



Sec. 701.102  Existing committees.

    Field Committees operating under the Water Resources Council 
(formerly under the Inter-Agency Committee on Water Resources) are as 
follows:

Pacific Southwest Inter-Agency Committee
Arkansas-White-Red Inter-Agency Committee
Southeast Basins Inter-Agency Committee

[[Page 60]]



                 Subpart D--Availability of Information

    Authority: 5 U.S.C. 552 as amended by Pub. L. 93-502, 88 Stat. 1561; 
42 U.S.C. 1962d-1.

    Source: 40 FR 7253, Feb. 19, 1975, unless otherwise noted.



Sec. 701.200  Statement of policy.

    Water Resources Council records and informational materials are 
available to the fullest extent possible consistent with 5 U.S.C. 552, 
as amended, and will be promptly furnished to any member of the public.



Sec. 701.201  Availability of records and informational materials.

    (a) Except for records and materials exempted from disclosure 
pursuant to paragraph (b) of this section, any person may inspect and 
copy any document in the possession and custody of the Water Resources 
Council in accordance with the procedure provided in Sec. 701.202.
    (b) The provisions of 5 U.S.C. 552 which require that agencies make 
their records available for public inspection and copying do not apply 
to matters which are:
    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and
    (ii) Are in fact properly classified pursuant to such Executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Investigatory records compiled for law enforcement purposes but 
only to the extent that the production of such records would (i) 
interfere with enforcement proceedings, (ii) deprive a person of a right 
to a fair trial or an impartial adjudication, (iii) constitute an 
unwarranted invasion of personal privacy, (iv) disclose the identity of 
a confidential source and, in the case of a record compiled by a 
criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, confidential information furnished only by 
the confidential source, (v) disclose investigative techniques and 
procedures, or (vi) endanger the life or physical safety of law 
enforcement personnel;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.

Any reasonably segregable portion of a record shall be provided to any 
person requesting such record after deletion of the portions which are 
exempt under this subsection.



Sec. 701.202  Procedure for requests for information.

    (a) A member of the public who requests records or materials from 
the Water Resources Council must provide a reasonable description of the 
records or materials sought so that such records or materials may be 
located without undue search or inquiry.
    (b) Requests which reasonably describe the records or materials 
sought should be directed to the Public Information Officer, Water 
Resources Council, Suite 800, 2120 L Street NW., Washington, DC 20037.
    (c) To insure that requests for information are processed as 
expeditiously as possible, all Freedom of Information Act (FOIA) 
requests should be clearly identified by the requester as such on the 
envelope and in the letter.
    (d) Records or materials will be available for inspection and 
copying in person during normal business hours or by mail.

[[Page 61]]

    (e) Requests for records which originate in or concern matters which 
originate in another department or agency may be forwarded to the 
department or agency primarily concerned and the requester so notified.



Sec. 701.203  Schedule of fees.

    (a) The Public Information Officer will to the extent practicable, 
encourage the widest possible distribution of information by permitting 
requests for inspection or copies of records or materials to be met 
without cost to the person making the request.
    (b) Fees will be charged in the case of requests which are 
determined by the Public Information Officer to involve a burden on 
staff or facilities significantly in excess of that normally accepted by 
the Council in handling routine requests for information.
    (c) In all instances where the Public Information Officer determines 
that a request for information can be considered as primarily benefiting 
the general public (despite a Sec. 701.203 determination of burden), 
such request shall be met either without cost wherever practicable or at 
a reduced cost to the requester. Any such reduction shall be determined 
by the Public Information Officer on the basis of the balance between 
the benefit to the general public and the cost to the Water Resources 
Council.
    (d) Fees shall be limited to recovery of only direct costs of search 
and duplication but in no event shall the fee for search and duplication 
exceed $2.50 per half hour, nor shall the fee for copying exceed $0.25 
per page (maximum per page dimension of 8x14 inches).
    (e) Unless a request for information specifically states that 
whatever cost is involved will be acceptable, or acceptable up to a 
specified limit that covers anticipated costs, a request that is 
expected to involve an assessed fee in excess of $50.00 will not be 
deemed to have been received until the requester is advised promptly 
upon physical receipt of the request of the anticipated cost and agrees 
to bear it.
    (f) When anticipated fees exceed $50.00, a deposit for 25% of the 
amount must be made within 10 days of the notice to the requester of the 
initial determination.
    (g) The Council reserves the right to limit the number of copies of 
any document that will be provided to any one person.



Sec. 701.204  Time limits for WRC initial determinations regarding requests for information.

    (a) An initial determination to grant or deny each request for 
information will be made within ten (10) working days of receipt of such 
request.
    (b) The requester shall be notified immediately of the initial 
determination and the reasons therefor.
    (c) The Public Information Officer will make initial determinations 
to grant requests for information.
    (1) In those instances where the initial determination by the Public 
Information Officer is to grant the request and the information is 
immediately supplied such action will serve as both notice of 
determination and compliance with the request.
    (2) In those instances where the initial determination by the Public 
Information Officer is to grant the request, but the information is not 
immediately available, the Public Information Officer will send 
immediate notice of the determination to comply, and the approximate 
date the information will be forwarded.
    (d) The Public Information Officer will make initial determination 
to deny the requests only with the concurrence of the General Counsel. 
The requester shall be notified immediately of the initial adverse 
determination, the reasons therefor, and the right to appeal the initial 
adverse determination to the Director.



Sec. 701.205  Time limit for requester to appeal an initial adverse determination.

    (a) The requester shall have thirty (30) calendar days to file with 
the Director an appeal from an initial adverse determination. The appeal 
must be in writing.
    (b) The thirty (30) day period of appeal shall run from receipt of 
the initial adverse determination (in cases of denials of an entire 
request) and from receipt of any records being made

[[Page 62]]

available pursuant to the initial adverse determination (in cases of 
partial denials).



Sec. 701.206  Time limit for WRC final determinations regarding requests for information appealed by the requester from an initial adverse determination.

    The Director shall make a final determination with respect to any 
appeal within twenty (20) working days after receipt of such appeal. If 
the initial adverse determination is in whole or in part upheld by the 
Director, the requester shall be notified of the final adverse 
determination and the provisions for judicial review of that 
determination as stated in the Freedom of Information Act, as amended 
(see 5 U.S.C. 552(a)(4) et seq.; as amended by Pub. L. 93-502).



Sec. 701.207  Extension of time limits for WRC initial and final determinations.

    (a) In unusual circumstances, as specified in this section, the time 
limits prescribed in either Sec. 701.203 or Sec. 701.204 may be extended 
by written notice from the responsible WRC official (i.e., the Public 
Information Officer in instances of initial requests and the Director in 
instances of appeals) to the requester setting forth the reasons for 
such extension and the date on which a determination is expected to be 
dispatched. No such notice shall specify a date that would result in an 
extension for more than ten (10) working days, and in no event shall the 
total extended time exceed ten (10) working days with respect to a 
particular request.
    (b) As used in this section, unusual circumstances means, but only 
to the extent reasonably necessary to the proper processing of the 
particular request:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.



Sec. 701.208  WRC petition for judicial extension of time.

    The provisions of Sec. 701.206 notwithstanding, the Director may 
petition for judicial extension of time when exceptional circumstances 
warrant such action.



Sec. 701.209  River basin commissions and field committees.

    (a) River basin commissions established pursuant to Title II of the 
Water Resources Planning Act are encouraged to establish, pursuant to 
section 205(c) of that Act, procedures for public availability of 
information that are consistent with 5 U.S.C. 552, as amended, and this 
subpart.
    (b) Field committees will be governed by the procedures adopted by 
the lead Federal agency to implement 5 U.S.C. 552, as amended; except 
that if the lead agency of a field committee is a non-Federal entity, 
the standards of this subpart shall apply.
    (c) Requests for documents and informational materials may be made 
to the chairmen of the field committees and river basin commissions at 
the following addresses.
    (1) River Basin Commissions:

Great Lakes Basin Commission, P.O. Box 999, Ann Arbor, Michigan 48106;
New England River Basins Commission, 55 Court Street, Boston, 
Massachusetts 02108;
Ohio River Basin Commission, 36 East 4th Street, Suite 208-220, 
Cincinnati, Ohio 45202;
Pacific Northwest River Basins Commission, P.O. Box 908, Vancouver, 
Washington 98660;
Upper Mississippi River Basin Commission, Federal Office Building, Room 
510, Fort Snelling, Twin Cities, Minnesota 55111;
Missouri River Basin Commission, 10050 Regency Circle, Suite 403 Omaha, 
Nebraska 68114.

    (2) Field Committees:

Arkansas-White-Red Inter-Agency Committee, Room 4030, Federal Building, 
Albuquerque, New Mexico 87101;

[[Page 63]]

Pacific Southwest Inter-Agency Committee, 630 Sansome Street, Room 1216, 
San Francisco, California 94111;
Southeast Basins Inter-Agency Committee, 402 New Walton Building, 
Atlanta, Georgia 30303.

[40 FR 7253, Feb. 19, 1975, as amended at 40 FR 10668, Mar. 7, 1975]



                    Subpart E--Protection of Privacy

    Authority: Sec. 402, Water Resources Planning Act of 1965 (Sec. 402, 
Pub. L. 89-80; 79 Stat. 254, as amended (42 U.S.C. 1962d-1)) and the 
Privacy Act of 1974 (Pub. L. 93-579; 88 Stat. 1896 (5 U.S.C. 552a)).

    Source: 40 FR 45676, Oct. 2, 1975, unless otherwise noted.



Sec. 701.300  Purpose and scope.

    (a) The purpose of this subpart is to set forth rules to inform the 
public about information maintained by the U.S. Water Resources Council 
relating to identifiable individuals and to inform those individuals how 
they may gain access to and correct or amend information about 
themselves.
    (b) The regulations in this subpart implement the requirements of 
the Privacy Act of 1974 (Pub. L. 93-579; 88 Stat. 1896 (5 U.S.C. 552a)).
    (c) The regulations in this subpart apply only to records disclosed 
or requested under the Privacy Act of 1974, and not requests for 
information made pursuant to the Freedom of Information Act, as amended 
(5 U.S.C. 552, as amended by Pub. L. 93-502).



Sec. 701.301  Definitions.

    For the purposes of this subpart, unless otherwise required by the 
context:
    (a) Council means the U.S. Water Resources Council;
    (b) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent resident;
    (c) Maintain means maintain, collect, use or disseminate;
    (d) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Council, including, but 
not limited to, his education, financial transactions, medical history 
and criminal or employment history, and that contains his name, or the 
identifying number, symbol, or other identifying particular assigned to 
the individual, such as a finger or voice print or a photograph;
    (e) Adverse determination means a decision by the proper Council 
official to deny, in whole or in part, a request from an individual for 
a correction or amendment of a record concerning the individual and 
maintained by the Council; and
    (f) Record system means system of records as defined in the Act, 
i.e., a group of any records under the control of the Council from which 
information is retrieved by the name of the individual or by some 
identifying particular assigned to the individual.



Sec. 701.302  Procedures for notification of existence of records pertaining to individuals.

    (a) The systems of records, as defined in the Privacy Act of 1974, 
maintained by the Council are listed annually in the Federal Register as 
required by that Act. Any individual may request the Council to inform 
him or her whether a particular record system named by the individual 
contains a record pertaining to him or her. The request may be made in 
person during business hours or in writing at the location and to the 
person specified in the notice describing that record system.
    (b) An individual who believes that the Council maintains records 
pertaining to him or her but who cannot determine which records system 
contains those records, may request assistance by mail or in person at 
the Division of Program Coordination and Management, 2120 L Street, NW., 
Washington, DC 20037, during business hours (8:00 a.m. through 4:30 
p.m., Monday through Friday, excluding legal holidays).
    (c) The Council will attempt to respond to a request as to whether a 
record exists within 10 working days from the time it receives the 
request or to inform the requestor of the need for additional time or 
additional information within 10 working days. If a request is complied 
with within 10 working days, no separate acknowledgment will be made.

[40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8343, Feb. 26, 1976]

[[Page 64]]



Sec. 701.303  Conditions of disclosure.

    (a) Subject to the conditions of paragraphs (b) and (c) of this 
section, the Council will not disclose any record which is contained in 
a system of records, by any means of communication to any person who is 
not an individual to whom the record pertains.
    (b) Upon written request or with prior written consent of the 
individual to whom the record pertains, the Council may disclose any 
such record to any person or other agency.
    (c) In the absence of a written consent from the individual to whom 
the record pertains, the Council may disclose any such record provided 
such disclosure is:
    (1) To those officers and employees of the Council who have a need 
for the record in the performance of their duties;
    (2) Required under the Freedom of Information Act (5 U.S.C. 552);
    (3) For a routine use compatible with the purpose for which it was 
collected;
    (4) To the Bureau of Census for purposes of planning or carrying out 
a census or survey or related activity under the provisions of Title 13 
of the United States Code;
    (5) To a recipient who has provided the Council with adequate 
advance written assurance that the record will be used solely as a 
statistical research or reporting record, and the record is to be 
transferred in a form that is not individually identifiable;
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States government, or for evaluation by the 
Administrator of General Services or his designee to determine whether 
the record has such value;
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity authorized by law: Provided, 
The head of the agency or instrumentality has made a prior written 
request to the Assistant Director Program Coordination and Management 
specifying the particular record and the law enforcement activity for 
which it is sought;
    (8) To a person pursuant to a showing of compelling circumstance 
affecting the health or safety of an individual: Provided, That upon 
such disclosure notification is transmitted to the last known address of 
such individual (and see Sec. 701.306);
    (9) To either House of Congress, and to the extent of a matter 
within its jurisdiction, any committee or subcommittee, or joint 
committee of Congress;
    (10) To the Comptroller General, or any of his authorized 
representatives in the course of the performance of the duties of the 
GAO; or
    (11) Under an order of a court of competent jurisdiction.



Sec. 701.304  Procedures for identification of individuals making requests.

    (a) Each individual requesting the disclosure of a record or copy of 
a record will furnish the following information with his or her request:
    (1) The name of the record system containing the record;
    (2) Proof as described in paragraph (b) of this section that he or 
she is the individual to whom the requested record relates; and
    (3) Any other information required by the notice describing the 
record system.
    (b) Proof of identity as required by paragraph (a)(2) of this 
section will be provided as described in paragraph (b)(1) and (2) of 
this section. Requests made by an agent, parent, or guardian will 
include the authorization described in Sec. 701.310(a) and (b).
    (1) Requests made in writing will include a statement, signed by the 
individual and properly notarized, that he or she appeared before a 
notary public and submitted proof of identification in the form of a 
drivers license, birth certificate, passport or other identification 
acceptable to the notary public. In any case in which, because of the 
extreme sensitivity of the record sought to be seen or copied, the 
agency determines that the identification is not adequate, it may 
request the individual to submit additional proof of identification.
    (2) If the request is made in person, the requester will submit 
proof of identification similar to that described in

[[Page 65]]

paragraph (b)(1) of this section, acceptable to the Council.

[41 FR 8343, Feb. 26, 1976]



Sec. 701.305  Procedures for requests for access to or disclosure of records pertaining to individuals.

    (a) After being informed by the Council that a system of records 
contains a record pertaining to him or her, an individual may request 
the Council for access to or disclosure of that record to him or her in 
the manner described in this section. Each such request of a record or a 
copy of it will be made at the place specified in the notice describing 
that system of records, either in writing or in person. Requests may be 
made by agents, parents, or guardians of individuals as described in 
Sec. 701.310(a) and (b).
    (b) The request for access to or disclosure of a record should 
specifically identify the systems of records involved.
    (c) The Council will attempt to affirm or deny a request within 10 
working days from the time it receives the request or to inform the 
requester of the need for additional time, additional information, 
identification, or the tendering of fees (as specified in Sec. 701.312), 
within 10 working days; except that if the request for access was not 
preceded by a notification request as provided in Sec. 701.302, then the 
10-day period will not begin until after such time as it has been 
determined that the record exists. If a request is complied with within 
10 working days, no separate acknowledgement will be made.

[41 FR 8343, Feb. 26, 1976]



Sec. 701.306  Special procedure: Medical records.

    (a) An individual requesting disclosure of a record which contains 
medical or psychological information may name a medical doctor or other 
person to act as his agent as described in Sec. 701.310(a). Records 
containing medical or psychological information may be disclosed to that 
agent rather than to the individual at the individual's request.
    (b) If the individual has not named a medical doctor as agent, the 
Council may determine, after consultation with a medical doctor, that 
disclosure of the information would have an adverse effect on the 
requester. The Council may then disclose that information to a medical 
doctor specified by the individual, rather than to that individual, 
either in person or by mail.

[40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8343, Feb. 26, 1976]



Sec. 701.307  Request for correction or amendment to record.

    (a) Any individual who has reviewed a record pertaining to him that 
was furnished to him under this subpart, may request the agency to 
correct or amend all or any part of that record.
    (b) Each individual requesting a correction or amendment will send 
the request to the agency official who furnished the record to him.
    (c) Each request for a correction or amendment of a record will 
contain the following information:
    (1) The name of the individual requesting the correction or 
amendment;
    (2) The name of the system of records in which the record sought to 
be corrected or amended is maintained;
    (3) The location of that record in the system of records;
    (4) A copy of the record sought to be corrected or amended or a 
description of that record;
    (5) A statement of the material in the record requested to be 
corrected or amended;
    (6) A statement of the specific wording of the correction or 
amendment sought; and
    (7) A statement of the basis for the requested correction or 
amendment, including any material that the individual can furnish to 
substantiate the reasons for the correction or amendment sought.



Sec. 701.308  Council review of request for correction or amendment of record.

    (a) Not later than 10 days (excluding Saturdays, Sundays, and legal 
holidays) after the receipt of the request for the correction or 
amendment of a record under Sec. 701.307, the Council will acknowledge 
receipt of the request and inform the individual whether further 
information is required before the correction or amendment can be 
considered.

[[Page 66]]

    (b) The Council will promptly review the request and either make the 
requested correction or amendment or notify the individual of the 
initial adverse determination, including in the notification the reasons 
for the adverse determination and the appeal procedure provided by 
Sec. 701.309.
    (c) The Assistant Director, Program Coordination and Management, or 
his designee, will, after consulting with the General Counsel, or his 
designee, have the primary authority to make an initial adverse 
determination.
    (d) The Council will make each requested correction or amendment to 
a record if that correction or amendment will correct anything that is 
not accurate, relevant, timely, or complete, within the record.
    (e) If the requested correction or amendment to a record is agreed 
to by the Council, the Council will, within 30 working days:
    (1) Advise the individual;
    (2) Correct the record accordingly; and
    (3) Where an accounting of disclosures had been made (as provided in 
Sec. 701.311), advise all previous recipients (including the individual) 
of the record of the fact that the correction was made and the substance 
of the correction.

[40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8343, Feb. 26, 1976]



Sec. 701.309  Appeal of initial adverse determination.

    (a) Any individual whose request for a correction or amendment, 
requested by him, to a record has been denied, in whole or in part, may 
appeal that decision to the Director of the Council.
    (b) The appeal will be in writing and will:
    (1) Name the individual making the appeal;
    (2) Identify the record sought to be amended;
    (3) Name the record system in which that record is contained;
    (4) Contain a short statement describing the amendment sought; and
    (5) State the name and location of the Council official who made the 
initial adverse determination.
    (c) Not later than 30 days (excluding Saturdays, Sundays, and legal 
holidays) after the date on which the Council received the appeal, the 
Director will complete his review of the appeal and make a final 
decision thereon. However, for good cause shown, the Director may extend 
that 30 day period by not more than an additional 30 working days. If 
the Director so extends the period, he will promptly notify the 
individual requesting the review that the extension has been made and 
the reasons therefor.
    (d) After review of an appeal request, the agency will send a 
written notice to the requester containing the following information:
    (1) The decision and, if the denial is upheld, the reasons for the 
decision; and
    (2) The specific civil remedies available to the requester as per 
section 2(g) of Pub. L. 93-579, as well as notice that additional 
remedies may be appropriate and available to enable the full exercise of 
the requester's rights at law.
    (3) The right to file with the Council a concise statement setting 
forth the requester's reasons for disagreement with the Council's 
refusal to correct or amend the record.

[40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8344, Feb. 26, 1976]



Sec. 701.310  Disclosure of record to person other than the individual to whom it pertains.

    (a) Any individual who desires to have a record covered by this 
subpart disclosed to or mailed to a person other than that individual 
may authorize that person to act as his agent for that specific purpose. 
The authorization will be in writing, signed by the individual, and will 
be notarized. The agent will submit with the authorization proof of the 
individual's identity as required by Sec. 701.304(b).
    (b) The parent of any minor individual or the legal guardian of any 
individual who has been declared by a court of competent jurisdiction to 
be incompetent due to physical or mental incapacity or age, may act on 
behalf of that individual in any matter covered by this subpart. A 
parent or guardian who desires to act on behalf of such an individual 
will present suitable evidence of parentage or guardianship, by

[[Page 67]]

birth certificate, certified copy of a court order, or similar 
documents, and proof of the individual's identity in a form that 
complies with Sec. 701.304(b).
    (c) An individual to whom a record is to be disclosed in person 
pursuant to this subpart, may have a person of his own choosing 
accompany the individual when the record is disclosed.



Sec. 701.311  Accounting for disclosures.

    (a) Maintenance of an accounting. (1) Where a record is disclosed to 
any person, or to another agency, under any of the provisions of 
Sec. 701.303 except Sec. 701.303(c)(1) and (2), an accounting will be 
made.
    (2) The accounting will record (i) the date, nature, and purpose of 
each disclosure of a record to any person or to another agency and (ii) 
the name and address of the person or agency to whom the disclosure was 
made.
    (3) Accountings prepared under this section will be maintained for 
at least five years or the life of the record, whichever is longer, 
after the disclosure for which the accounting is made.
    (b) Access to accounting. (1) Except for accounting of disclosures 
made under Sec. 701.303(c)(1) and (2), accountings of all disclosures of 
a record will be made available to the individual to whom the record 
relates at his or her request.
    (2) An individual desiring access to accountings of disclosures of a 
record pertaining to him or her will submit his request by following the 
procedures of Sec. 701.305.
    (c) Notification of disclosure. When a record is disclosed pursuant 
to Sec. 701.303(c)(11) as the result of the order of a court of 
competent jurisdiction, reasonable efforts will be made to notify the 
individual to whom the record pertains as soon as the order becomes a 
matter of public record.

[41 FR 8344, Feb. 26, 1976]



Sec. 701.312  Fees.

    (a) The Council will not charge an individual for the costs of 
making a search for a record or the costs of reviewing the record. When 
the Council makes a copy of a record as a necessary part of the process 
of disclosing the record to an individual, the Council will not charge 
the individual for the cost of making that copy.
    (b) If an individual requests the Council to furnish him with a copy 
of the record (when a copy has not otherwise been made as a necessary 
part of the process of disclosing the record to the individual), the 
Council will charge a maximum fee of $0.25 per page (maximum per page 
dimension of 8x14 inches) to the extent that the request exceeds $5.00 
in cost to the Council. Requests not exceeding $5.00 in cost to the 
Council will be met without cost to the requester.

[40 FR 45676, Oct. 2, 1975. Redesignated at 41 FR 8344, Feb. 26, 1976]



Sec. 701.313  Penalties.

    Title 18 U.S.C. 1001, Crimes and Criminal Procedures, makes it a 
criminal offense, subject to a maximum fine of $10,000 or imprisonment 
for not more than 5 years or both, to knowingly and willfully make or 
cause to be made any false or fraudulent statements or representations 
in any matter within the jurisdiction of any agency of the United 
States. Section 552a(i)(3) of the Privacy Act (5 U.S.C. 552a(i)(3)) 
makes it a misdemeanor, subject to a maximum fine of $5,000, to 
knowingly and willfully request or obtain any record concerning an 
individual under false pretenses. Section 552a(i)(1) and (2) of the 
Privacy Act (5 U.S.C. 552a(i)(1) and (2) provide penalties for 
violations by agency employees of the Privacy Act or regulations 
established thereunder.

[40 FR 45676, Oct. 2, 1975. Redesignated at 41 FR 8344, Feb. 26, 1976]



Sec. 701.314  Exemptions.

    No Council records system or systems are exempted from the 
provisions of 5 U.S.C. 552a as permitted under certain conditions by 5 
U.S.C. 552a(j) and (k).

[40 FR 45676, Oct. 2, 1975. Redesignated at 41 FR 8344, Feb. 26, 1976]



PART 704--PLAN FORMULATION STANDARDS AND PROCEDURES--Table of Contents




Subparts A-D [Reserved]

[[Page 68]]



        Subpart E--Standards for Plan Formulation and Evaluation

    Authority: Sec. 402, 79 Stat. 254; 42 U.S.C. 1962d-1.



Sec. 704.39  Discount rate.

    (a) The interest rate to be used in plan formulation and evaluation 
for discounting future benefits and computing costs, or otherwise 
converting benefits and costs to a common time basis, shall be based 
upon the average yield during the preceding fiscal year on interest-
bearing marketable securities of the United States which, at the time 
the computation is made, have terms of 15 years or more remaining to 
maturity: Provided, however, That in no event shall the rate be raised 
or lowered more than one-quarter of 1 percent for any year. The average 
yield shall be computed as the average during the fiscal year of the 
daily bid prices. Where the average rate so computed is not a multiple 
of one-eighth of 1 percent, the rate of interest shall be the multiple 
of one-eighth of 1 percent nearest to such average rate.
    (b) The computation shall be made as of July 1 of each year, and the 
rate thus computed shall be used during the succeeding 12 months. The 
Executive Director shall annually request the Secretary of the Treasury 
to inform the Water Resources Council of the rate thus computed.
    (c) Subject to the provisions of paragraphs (d) and (e) of this 
section, the provisions of paragraphs (a) and (b) of this section shall 
apply to all Federal and federally assisted water and related land 
resources project evaluation reports submitted to the Congress, or 
approved administratively, after the close of the second session of the 
90th Congress.
    (d) Where construction of a project has been authorized prior to the 
close of the second session of the 90th Congress, and the appropriate 
State or local governmental agency or agencies have given prior to 
December 31, 1969, satisfactory assurances to pay the required non-
Federal share of project costs, the discount rate to be used in the 
computation of benefits and costs for such project shall be the rate in 
effect immediately prior to the effective date of this section, and that 
rate shall continue to be used for such project until construction has 
been completed, unless the Congress otherwise decides.
    (e) Notwithstanding the provisions of paragraphs (a) and (b) of this 
section, the discount rate to be used in plan formulation and evaluation 
during the remainder of the fiscal year 1969 shall be 4\5/8\ percent 
except as provided by paragraph (d) of this section.
    (f) Section V. G. 2 of the interagency agreement dated May 15, 1962, 
approved by the President on May 15, 1962, entitled ``Policies, 
Standards, and Procedures in the Formulation, Evaluation, and Review of 
Plans for Use and Development of Water and Related Land Resources,'' and 
published on May 29, 1962, as Senate Document No. 97, 87th Congress, 2d 
Session, is superseded by the provisions of this section.

[33 FR 19170, Dec. 24, 1968]



PART 705--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents




Sec.
705.1  Purpose.
705.2  Definitions.
705.3  Application of this part.
705.4  Discrimination prohibited.
705.5  Assurance required.
705.6  Compliance information.
705.7  Conduct of investigations.
705.8  Procedure for effecting compliance.
705.9  Hearings.
705.10  Decisions and notices.
705.11  Judicial review.
705.12  Effect on other regulations.

    Authority: Sec. 602 of Pub. L. 88-352, 78 Stat. 252, (42 U.S.C. 2000 
d--1), and sec. 402 of Pub. L. 89-80, 79 Stat. 254, (42 U.S.C. 1962 d--
1).

    Source: 39 FR 41521, Nov. 29, 1974, unless otherwise noted.



Sec. 705.1  Purpose.

    The purpose of this subpart is to implement the provisions of Title 
VI of the Civil Rights Act of 1964, 78 Stat. 252 (hereafter referred to 
as the ``Act''), to the end that no person in the United States shall, 
on the ground of race, color, or national origin, be excluded from 
participation in, be denied the

[[Page 69]]

benefits of, or otherwise be subjected to discrimination under any 
program or activity receiving Federal financial assistance from the 
Water Resources Council.



Sec. 705.2  Definitions.

    As used in this part:
    (a) Applicant means one who submits an application, request, or plan 
required to be approved by the Water Resources Council, or by a primary 
recipient, as a condition to eligibility for Federal financial 
assistance, and the term application means such an application, request, 
or plan.
    (b) Facility includes all or any part of structures, equipment, or 
other real or personal property or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alteration or acquisition of facilities.
    (c) Federal financial assistance includes:
    (1) Grants and loans of Federal funds;
    (2) The grant or donation of Federal property and interests in 
property;
    (3) The detail of Federal personnel;
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient; and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (d) Primary recipient means any recipient that is authorized or 
required to extend Federal financial assistance to another recipient for 
the purpose of carrying out a program.
    (e) Program includes any program, project, or activity for the 
provision of services, financial aid, or other benefits to individuals 
(including education or training, health, welfare, rehabilitation, 
housing, or other services, whether provided through employees of the 
recipient of Federal financial assistance or provided by others through 
contracts or other arrangements with the recipient, and including work 
opportunities), or for the provision of facilities for furnishing 
services, financial aid or other benefits to individuals. The services, 
financial aid, or other benefits provided under a program receiving 
Federal financial assistance shall be deemed to include any services, 
financial aid, or other benefits provided with the aid of Federal 
financial assistance or the aid of any non-Federal funds, property, or 
other resources required to be expended or made available for the 
program to meet matching requirements or other conditions which must be 
met in order to receive the Federal financial assistance, and to include 
any services, financial aid, or other benefits provided in or through a 
facility provided with the aid of Federal financial assistance or such 
non-Federal resources.
    (f) Recipient may mean any State, territory, possession, the 
District of Columbia, or Puerto Rico, or any political subdivision 
thereof, or instrumentality thereof, any public or private agency, 
institution, or organization, or other entity, or any individual, in any 
State, territory, possession, the District of Columbia, or Puerto Rico, 
to whom Federal financial assistance is extended, directly or through 
another recipient, for any program, including any successor, assignee, 
or transferee thereof, but such term does not include any ultimate 
beneficiary under any such program.
    (g) Responsible agency official means the Director of the Water 
Resources Council or his designee.



Sec. 705.3  Application of this part.

    This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Water Resources 
Council. It applies to money paid, property transferred, or other 
Federal financial assistance extended under any such program after the 
date of this part pursuant to an application whether approved before or 
after such date. This part does not apply to (a) any Federal financial 
assistance by way of insurance or guaranty contracts, or (b) any 
employment practice except to the extent described in Sec. 705.4(c).

[[Page 70]]



Sec. 705.4  Discrimination prohibited.

    (a) General. No person in the United States shall, on the grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under, any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient 
under any program to which this part applies may not directly or through 
contractual or other arrangements, on the grounds of race, color, or 
national origin:
    (i) Deny a person any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to a 
person which is different, or is provided in a different manner, from 
that provided to others under the program;
    (iii) Subject a person to segregation or separate treatment in any 
matter related to his receipt of any service, financial aid, or other 
benefit under the program;
    (iv) Restrict a person in any way in the enjoyment of any advantage 
or privilege enjoyed by others receiving any service, financial aid, or 
other benefit under the program;
    (v) Treat a person differently from others in determining whether he 
satisfies any admission, enrollment, quota, eligibility, membership, or 
other requirement or condition which persons must meet in order to be 
provided any service, financial aid, or other benefit provided under the 
program; or
    (vi) Deny a person an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program.
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of persons to whom, or the situations in 
which, such services, financial aid, other benefits, or facilties will 
be provided under any such program, or the class of persons to be 
afforded an opprotunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting persons 
to discrimination because of their race, color, or national origin, or 
have the effect of defeating or substantially impairing accomplishment 
of the objectives of the program with respect to individuals of a 
particular race, color, or national origin.
    (3) As used in this section, the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
include any service, financial aid, or other benefit provided in or 
through a facility provided with the aid of Federal financial 
assistance.
    (4) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (5) This part does not prohibit the consideration of race, color, or 
national origin if the purpose and effect are to remove or overcome the 
consequences of practices or impediments which have restricted the 
availability of, or participation in, the program or activity receiving 
Federal financial assistance, on the grounds of race, color, or national 
origin. When previous discriminatory practice or usage tends, on the 
grounds of race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program or activity to which this part applies, 
the applicant or recipient has an obligation to take reasonable action 
to remove or overcome the consequences of the prior discriminatory 
practice or usage, and to accomplish the purposes of the Act.
    (c) Employment practices. (1) Where a primary objective of a program 
of Federal financial assistance to which this part applies is to provide 
employment, a recipient or other party subject to this part shall not, 
directly or through contractual or other arrangements, subject a person 
to discrimination on the grounds of race, color, or national origin in 
its employment practices

[[Page 71]]

under such program (including recruitment or recruitment advertising, 
hiring, firing, upgrading, promotion, demotion, transfer, layoff, 
termination, rates of pay or other forms of compensation or benefits, 
selection for training or apprenticeship, use of facilities, and 
treatment of employees). Such recipient shall take affirmative action to 
insure that applicants are employed, and employees are treated during 
employment, without regard to their race, color, or national origin. The 
requirements applicable to construction employment under any such 
program shall be those specified in or pursuant to Part III of Executive 
Order 11246 or any Executive Order which supersedes it.
    (2) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program to which this regulation applies, the 
provisions of paragraph (c)(1) of this section shall apply to the 
employment practice of the recipient or other persons subject to the 
regulation, to the extent necessary to assure equality of opportunity 
to, and nondiscriminatory treatment of, beneficiaries.
    (d) Location of facilities. A recipient may not make a selection of 
a site or location of a facility if the purpose of that selection, or 
its effect when made, is to exclude individuals from participation in, 
to deny them the benefits of, or to subject them to discrimination under 
any program or activity to which this rule applies, on the grounds of 
race, color, or national origin; or if the purpose is to, or its effect 
when made will, substantially impair the accomplishment of the 
objectives of this part.



Sec. 705.5  Assurance required.

    (a) General. Every application for Federal financial assistance to 
carry out a program to which this part applies, and every application 
for Federal financial assistance to provide a facility shall, as a 
condition to its approval and the extension of any Federal financial 
assistance pursuant to the application, contain or be accompanied by an 
assurance that the program will be conducted or the facility operated in 
compliance with all requirements imposed by or pursuant to this part. In 
the case of an application for Federal financial assistance to provide 
real property or structures thereon, or personal property or equipment 
of any kind, such assurance shall obligate the recipient, or, in the 
case of a subsequent transfer, the transferee, for the period during 
which the property is used for a purpose for which the Federal financial 
assistance is extended or for any other purpose involving the provisions 
of similar services or benefits. In all other cases, such assurance 
shall obligate the recipient for the period during which Federal 
financial assistance is extended pursuant to the application. The 
responsible agency official shall specify the form of the foregoing 
assurances for each program, and the extent to which like assurances 
will be required of subgrantees, contractors, and subcontractors, 
transferees, successors in interest, and other participants in the 
program. Any such assurance shall include provisions which give the 
United States a right to seek its judicial enforcement.
    (b) Planning grants to States. Each designated State agency must 
submit the assurance specified in Sec. 703.5(n) of these rules and 
regulations.
    (c) River basin commissions. Each river basin commission is required 
to submit, along with its annual budget request, written assurance of 
its continuing compliance with Sec. 705.4 of this part.



Sec. 705.6  Compliance information.

    (a) Cooperation and assistance. The responsible agency official 
shall, to the fullest extent practicable, seek the cooperation of 
recipients in obtaining compliance with this part and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible agency official timely,

[[Page 72]]

complete, and accurate compliance reports at such times, and in such 
form and containing such information, as the responsible agency official 
may determine to be necessary to enable him to ascertain whether the 
recipient has complied or is complying with this part. In the case of 
any program under which a primary recipient extends Federal financial 
assistance to any other recipient or subcontracts with any other person 
or group, such other recipient shall also submit such compliance reports 
to the primary recipient as may be necessary to enable the primary 
recipient to carry out its obligations under this part.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible agency official during normal business hours 
to such of its books, records, accounts, and other sources of 
information, and its facilities, as may be pertinent to ascertain 
compliance with this part. Whenever any information required of a 
recipient is in the exclusive possession of any other agency, 
institution, or person and that agency, institution, or person fails or 
refuses to furnish that information, the recipient shall so certify in 
its report and set forth the efforts which it has made to obtain the 
information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program under which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the responsible agency official 
finds necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this part.



Sec. 705.7  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible agency official 
shall from time to time review the practices of recipients to determine 
whether they are complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this part may by himself or by a representative file with the 
responsible agency official a written complaint. A complaint must be 
filed not later than 180 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible agency official.
    (c) Investigations. The responsible agency official will make a 
prompt investigation whenever a compliance review, report, complaint, or 
any other information indicates a possible failure to comply with this 
part. The investigation should include, whenever appropriate, a review 
of the pertinent practices and policies of the recipient, the 
circumstances under which the possible noncompliance with this part 
occurred, and other factors relevant to a determination as to whether 
the recipient has failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the responsible agency official will so inform the recipient and 
the matter will be resolved by informal means whenever possible. If it 
has been determined that the matter cannot be resolved by informal 
means, action will be taken as provided for in Sec. 705.8.
    (2) If an investigation does not warrant action pursuant to 
subparagraph (1) of this paragraph, the responsible agency official will 
so inform the recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purpose of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.

[[Page 73]]



Sec. 705.8  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, the responsible 
agency official may suspend or terminate, or refuse to grant or 
continue, Federal financial assistance, or use any other means 
authorized by law, to induce compliance with this part. Such other means 
include, but are not limited to, (1) a reference to the Department of 
Justice with a recommendation that appropriate proceedings be brought to 
enforce any rights of the United States under any law of the United 
States (including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with assurance requirement. If an applicant or 
recipient fails or refuses to furnish an assurance required under 
Sec. 705.5 or fails or refuses to comply with the provisions of the 
assurance it has furnished, or otherwise fails or refuses to comply with 
any requirement imposed by or pursuant to Title VI or this part, Federal 
financial assistance may be suspended, terminated, or refused in 
accordance with the procedures of Title VI and this part. The Water 
Resources Council shall not be required to provide assistance in such a 
case during the pendency of administrative proceedings under this part, 
except that the Council will continue assistance during the pendency of 
such proceedings whenever such assistance is due and payable pursuant to 
a final commitment made or an application finally approved prior to the 
effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until:
    (1) The responsible agency official has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means;
    (2) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part;
    (3) The action has been approved by the Chairman of the Water 
Resources Council pursuant to Sec. 705.10(e); and
    (4) The expiration of 30 days after the responsible agency official 
has filed with the committee of the House and the committee of the 
Senate having legislative jurisdiction over the program involved, a full 
written report of the circumstances and the grounds for such action. Any 
action to suspend or terminate or to refuse to grant or to continue 
Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance 
with Title VI of the Act by any other means authorized by law shall be 
taken until:
    (1) The responsible agency official has determined that compliance 
cannot be secured by voluntary means;
    (2) The recipient or other person has been notified or its failure 
to comply and of the action to be taken to effect compliance; and
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period of at least 
10 days, additional efforts shall be made to persuade the recipient or 
other person to comply with the regulation and to take such corrective 
action as may be appropriate.



Sec. 705.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 705.8(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less

[[Page 74]]

than 20 days after the date of such notice within which the applicant or 
recipient may request of the responsible agency official that the matter 
be scheduled for heaing or (2) advise the applicant or recipient that 
the matter in question has been set down for hearing at a stated place 
and time. The time and place so fixed shall be reasonable and shall be 
subject to change for cause. The complainant, if any, shall be advised 
of the time and place of the hearing. An applicant or recipient may 
waive a hearing and submit written information and argument for the 
record. The failure of an applicant or recipient to request a hearing 
under this paragraph or to appear at a hearing for which a date has been 
set shall be deemed to be a waiver of the right to a hearing under 
section 602 of the Act and Sec. 705.8(c) and consent to the making of a 
decision on the basis of such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Water Resources Council in Washington, DC, at a time fixed by the 
responsible agency official unless it determines that the convenience of 
the applicant or recipient or of the Council requires that another place 
be selected. Hearings shall be held before the responsible agency 
official or at its discretion, before a hearing examiner appointed in 
accordance with section 3105 of Title 5, U.S.C., or detailed under 
section 3344 of Title 5, U.S.C.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Water Resources Council shall have the 
right to be represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
the Administrative Procedure Act (5 U.S.C. 554-557) and with such other 
regulations that may be necessary or appropriate for the conduct of 
hearings pursuant to this part.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more programs to which this part applies, or 
noncompliance with this part and the regulations of one or more other 
Federal departments or agencies issued under Title VI of the Act, the 
responsible agency official may, by agreement with such other 
departments or agencies, where applicable, provide for the conduct of 
consolidated or joint hearings, and for the application to such hearings 
of rules or procedures not inconsistent with this part. Final decisions 
in such cases, insofar as this regulation is concerned, shall be made in 
accordance with Sec. 705.10.



Sec. 705.10  Decisions and notices.

    (a) Procedure on decisions by hearing examiner. If the hearing is 
held by a hearing examiner, the hearing examiner shall either make an 
initial decision, if so authorized, or certify the entire record 
including his recommended findings and proposed decision to the 
responsible agency official for a final decision, and a copy of such 
initial decision or certification shall be mailed to the applicant or 
recipient. Where the initial decision is made by the hearing examiner, 
the applicant or recipient may, within 30 days after the mailing of such 
notice of initial decision, file with the responsible agency official 
his exceptions to the initial decision, with his reasons therefor. In 
the absence of exceptions, the responsible agency official may, on his 
own motion, within 45 days after the initial

[[Page 75]]

decison, serve on the applicant or recipient a notice that he will 
review the decision. Upon the filing of such exceptions or of notice of 
review, the responsible agency official shall review the initial 
decision and issue his own decision thereon including the reasons 
therefor. In the absence of either exceptions or a notice or review the 
initial decision shall, subject to paragraph (e) constitute the final 
decision of the responsible agency official.
    (b) Decisions on record or review by the responsible agency 
official. Whenever a record is certified to the responsible agency 
official for decision or its reviews the decision of a hearing examiner 
pursuant to paragraph (a) of this section or whenever the responsible 
agency official conducts the hearing, the applicant or recipient shall 
be given reasonable opportunity to file with it briefs or other written 
statements of its contentions and a written copy of the final decision 
of the responsible agency official shall be sent to the applicant or 
recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 705.9, a decision shall be made by 
the responsible agency official on the record and a written copy of such 
decision shall be sent to the applicant or recipient, and to the 
complainant, if any.
    (d) Rulings required. Each decision of a hearing examiner or the 
responsible agency official shall set forth his or its ruling on each 
finding, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this part with 
which it is found that the applicant or recipient has failed to comply.
    (e) Approval by the Chairman. Any final decision by the responsible 
agency official provides for the suspension or termination of, or the 
refusal to grant or continue Federal financial assistance, or the 
imposition of any other sanction available under this part or the Act, 
shall promptly be transmitted to the Chairman of the Water Resources 
Council, who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, under the program involved, and may 
contain such terms, conditions, and other provisions as are consistent 
with and will effectuate the purposes of the Act and this part, 
including provisions designed to assure that no Federal financial 
assistance will thereafter be extended under such programs to the 
applicant or recipient determined by such decision to be in default in 
its performance of an assurance given by it pursuant to this part, or to 
have otherwise failed to comply with this part, unless and until it 
corrects its noncompliance and satisfies the responsible agency official 
that it will fully comply with this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) shall be 
restored to full eligibility to receive Federal financial assistance if 
it satisfies the terms and conditions of that order for such eligibility 
or if it brings itself into compliance with this part and provides 
reasonable assurance that it will fully comply with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible agency official to restore fully its eligibility 
to receive Federal financial assistance. Any such request shall be 
supported by information showing that the applicant or recipient has met 
the requirements of paragraph (g)(1) of this section. If the responsible 
agency official determines that those requirements have been satisfied, 
he shall restore such eligibility.
    (3) If the responsible agency official denies any such request, the 
applicant or recipient may submit a request for a hearing in writing, 
specifying why it believes the responsible agency official to have been 
in error. It shall thereupon be given an expeditious hearing, with a 
decision on the record. The applicant or recipient will be estored to 
such eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (g)(1). While proceedings under this paragraph 
are pending, the sanctions imposed by the

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order issued under paragraph (f) of this section shall remain in effect.



Sec. 705.11  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec. 705.12  Effect on other regulations.

    (a) Nothing in this part shall be deemed to supersede any other 
order, regulation, or instruction which prohibits discrimination on the 
grounds of race, color, or national origin in any program or situation 
to which this part is inapplicable, or prohibit discrimination on any 
other ground.
    (b) Forms and instructions. The responsible agency official shall 
issue and promptly make available to all interested persons forms and 
detailed instructions and procedures for effectuating this part as 
applied to programs to which this part applies and for which he is 
responsible.
    (c) Supervision and coordination. The responsible agency official 
may from time to time assign to officials of other departments or 
agencies of the Government with the consent of such departments or 
agencies, responsibilities in connection with the effectuation of the 
purposes of Title VI of the Act and this part (other than responsibility 
for final decision as provided in Sec. 705.10), including the 
achievement of effective coordination and maximum uniformity within the 
Water Resources Council and within the Executive Branch of the 
Government in the application of Title VI and this part to similar 
programs and in similar situations. Any action, taken, determination 
made, or requirements imposed by an official of another department or 
agency acting pursuant to an assignment of responsibility under this 
paragraph shall have the same effect as though such action had been 
taken by the responsible agency official.



PART 706--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




                      Subpart A--General Provisions

Sec.
706.101  Purpose.
706.102  Definitions.
706.103  Remedial action.
706.104  Interpretation and advisory service.

          Subpart B--Conduct and Responsibilities of Employees

706.201  Proscribed actions.
706.202  Gifts, entertainment, and favors.
706.203  Outside employment and activity.
706.204  Financial interests.
706.205  Misuse of information.
706.206  Support of Council programs.
706.207  Use of Government property.
706.208  Indebtedness.
706.209  Gambling, betting, and lotteries.
706.210  Coercion.
706.211  General conduct prejudicial to the Government.
706.212  Miscellaneous statutory provisions.

 Subpart C--Conduct and Responsibilities of Special Government Employees

706.301  Use of Government employment.
706.302  Use of inside information.
706.303  Gifts, entertainment, and favors.
706.304  Applicability of other provisions.

       Subpart D--Statements of Employment and Financial Interests

706.401  Employees required to submit statements.
706.402  Employee's complaint on filing requirements.
706.403  Form of statements.
706.404  Time for submission of statements.
706.405  Supplementary statements.
706.406  Interests of employees` relatives.
706.407  Information not known by employees.
706.408  Information not required.
706.409  Opportunity for explanation of conflict or appearance of 
          conflict.
706.410  Confidentiality of statements.
706.411  Effect of statements on other requirements.
706.412  Submission of statements by special Government employees.
706.413  Submission of statements by River Basin Commission Chairmen.

    Authority: Water Resources Planning Act, 1965 (Sec. 402, Pub. L. 89-
80, 79 Stat. 254 (42 U.S.C. 1962d-1)); E.O. 11222 (30 FR 6469, 3 CFR 
Proc. 3279; as amended); 5 CFR Part 735 (33 FR 12487).

    Source: 40 FR 32818, Aug. 4, 1975, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 706.101  Purpose.

    The maintenance of unusually high standards of honesty, integrity, 
impartiality, and conduct by employees and

[[Page 77]]

special Government employees is essential to assure the proper 
performance of the Water Resources Council's (hereafter referred to as 
the Council) business and the maintenance of confidence by citizens in 
their Government. The avoidance of misconduct and conflicts of interest 
on the part of employees and special Government employees through 
informed judgment is indispensable to the maintenance of these 
standards. To accord with these concepts, this part sets forth the 
Council's regulations prescribing standards of conduct and 
responsibilities and governing statements of employment and financial 
interests for employees and special Government employees.



Sec. 706.102  Definitions.

    In this part:
    (a) Employee means the Director and an employee of the Council 
employed by the Director under the authority of Sec. 701.78(a)(4) of 
this chapter.
    (b) Special Government employee means a special Government employee 
as defined in section 202 of Title 18 of the United States Code who is 
employed by the Council.



Sec. 706.103  Remedial action.

    (a) A violation of this part by an employee or special Government 
employee may be cause for remedial action. Remedial action may include, 
but is not limited to:
    (1) Changes in assigned duties;
    (2) Divestment by the employee or special Government employee of his 
conflicting interest;
    (3) Disciplinary action which may be in addition to any penalty 
prescribed by law; or
    (4) Disqualification for a particular assignment.
    (b) Remedial action, whether disciplinary or otherwise, shall be 
effected in accordance with any applicable laws, Executive orders, and 
regulations.



Sec. 706.104  Interpretation and advisory service.

    The General Counsel will serve as Counselor for the purpose of 
providing interpretation and advisory assistance to the Council staff on 
matters covered in this Part 706.



          Subpart B--Conduct and Responsibilities of Employees



Sec. 706.201  Proscribed actions.

    An employee shall avoid any action which might result in, or create 
the appearance of:
    (a) Using public office for private gain;
    (b) Giving preferential treatment to any person;
    (c) Impeding Government efficiency or economy;
    (d) Losing complete independence or impartiality;
    (e) Making a Government decision outside official channels; or
    (f) Affecting adversely the confidence of the public in the 
integrity of the Government.



Sec. 706.202  Gifts, entertainment, and favors.

    (a) Except as provided in paragraphs (b) and (c) of this section, an 
employee shall not solicit or accept, directly or indirectly, any gift, 
gratuity, favor, entertainment, loan, or any other thing of monetary 
value, from a person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relations with the Council;
    (2) Conducts operations or activities that are regulated by the 
Council; or
    (3) Has interests that may be substantially affected by the 
performance or nonperformance of his official duty.
    (b) The restrictions set forth in paragraph (a) of this section do 
not apply to:
    (1) Obvious family or personal relationships, such as those between 
the employee and his parents, children, or spouse, when the 
circumstances make it clear that those relationships rather than the 
business of the persons concerned are the motivating factors;
    (2) The acceptance of food and refreshments of nominal value on 
infrequent occasions in the ordinary course of a luncheon or dinner 
meeting or other meeting or on an inspection tour where an employee may 
be properly in attendance;
    (3) The acceptance of loans from banks or other financial 
institutions on customary terms to finance proper and usual activities 
of employees, such as home mortgage loans; and

[[Page 78]]

    (4) The acceptance of unsolicited advertising or promotional 
material, such as pens, pencils, note pads, calendars, and other items 
of nominal intrinsic value.
    (c) An employee shall not solicit a contribution from another 
employee for a gift to an official superior, make a donation as a gift 
to an official superior, or accept a gift from an employee receiving 
less pay than himself (5 U.S.C. 7351). However, this paragraph does not 
prohibit a voluntary gift of nominal value or donation in a nominal 
amount made on a special occasion such as marriage, illness, or 
retirement.
    (d) An employee shall not accept a gift, present, decoration, or 
other thing from a foreign government unless authorized by Congress as 
provided by the Constitution and in 5 U.S.C. 7342.
    (e) Neither this section nor Sec. 706.203 precludes an employee from 
receipt of bona fide reimbursement, unless prohibited by law, for 
expenses of travel and such other necessary subsistence as is compatible 
with this part for which no Government payment or reimbursement is made. 
However, this paragraph does not allow an employee to be reimbursed, or 
payment to be made on his behalf, for excessive personal living 
expenses, gifts, entertainment, or other personal benefits, nor does it 
allow an employee to be reimbursed by a person for travel on official 
business under Council orders when reimbursement is proscribed by 
Decision B-128527 of the Comptroller General dated March 7, 1967.



Sec. 706.203  Outside employment and activity.

    (a) An employee shall not engage in outside employment or other 
outside activity not compatible with the full and proper discharge of 
the duties and responsibilities of his Government employment. 
Incompatible activities include, but are not limited to:
    (1) Acceptance of a fee, compensation, gift, payment of expense, or 
any other thing of monetary value in circumstances wherein acceptance 
may result in, or create the appearance of, a conflict of interest;
    (2) Outside employment or activity which tends to impair his mental 
or physical capacity to perform the duties and responsibilities of his 
position in an acceptable manner;
    (3) Outside employment or activity which is in violation of a 
statute, Executive order, or regulation, including applicable State and 
local statutes and ordinances.
    (b) Employees are encouraged to engage in teaching, lecturing, and 
writing that is not prohibited by law, Executive Order 11222 of May 11, 
1965, as amended by Executive Order 11590 of April 27, 1971, this part 
or other Council regulations. However, an employee shall not, either for 
or without compensation, engage in teaching, lecturing, or writing, 
including teaching, lecturing, or writing for the purpose of the special 
preparation of a person or class of persons for an examination of the 
Civil Service Commission or Board of Examiners for the Foreign Service, 
that depends on information obtained as a result of his Government 
employment, except when that information has been made available to the 
general public or will be made available on request, or when the agency 
head gives written authorization for use of non-public information on 
the basis that the use is in the public interest.
    (c) An employee shall not receive any salary or anything of monetary 
value from a private source as compensation for his services to the 
Government.
    (d) An employee shall not engage in outside work or activity which 
may be construed by the public to be official acts of the Council, or of 
a nature closely paralleling the work of the Council.
    (e) An employee who engages in any kind of outside paid employment 
on a substantially regular basis shall submit to his immediate 
supervisor a memorandum describing the employment and stating 
approximately how many hours per week he is so employed. The immediate 
supervisor shall forward the memorandum through the Director for 
inclusion in the employee's Official Personnel Folder.
    (f) This section does not preclude an employee from:
    (1) Participation in the activities of national or State political 
parties not proscribed by law;

[[Page 79]]

    (2) Participation in the local self-government activities in the 
community in which he resides to the extent permitted by law; or,
    (3) Participation in the affairs of, or acceptance of an award for 
meritorious public contribution or achievement given by, a charitable, 
religious, professional, social, fraternal, nonprofit educational, 
recreational, public service, or civic organization.



Sec. 706.204  Financial interests.

    (a) An employee shall not:
    (1) Have a direct or indirect financial interest that conflicts 
substantially, or appears to conflict substantially, with his Government 
duties and responsibilities; or
    (2) Engage in, directly or indirectly, a financial transaction as a 
result of or primarily relying on, information obtained through his 
Government employment.
    (b) This section does not preclude an employee from having a 
financial interest or engaging in financial transactions to the same 
extent as a private citizen not employed by the Government so long as it 
is not prohibited by law, Executive Order 11222, as amended, 5 CFR part 
735, or this part.



Sec. 706.205  Misuse of information.

    For the purpose of furthering a private interest an employee shall 
not, except as provided in Sec. 706.203(b), directly or indirectly use, 
or allow the use of, official information obtained through or in 
connection with his Government employment which has not been made 
available to the general public.



Sec. 706.206  Support of Council programs.

    (a) When a Council program is based on law or Executive order, every 
employee has a positive obligation to make it function as efficiently 
and economically as possible and to support it as long as it is a part 
of recognized public policy. An employee may, therefore, properly make 
an address explaining and interpreting such a program, citing its 
achievements, defending it against uninformed or unjust criticism, 
pointing out the need for possible improvements, or soliciting views for 
improving it.
    (b) An employee shall not, either directly or indirectly, use 
appropriated funds to influence a Member of Congress to favor or oppose 
legislation in violation of 18 U.S.C. 1913. However, an employee is not 
prohibited from:
    (1) Testifying as a representative of the Council on pending 
legislation proposals before congressional committees on request; 
provided, that the relevant provisions of the current OMB Circular A-14 
(``Legislation Coordination and Clearance'') are complied with; or
    (2) Assisting congressional committees in drafting bills or reports 
on request, when it is clear that the employee is serving solely as a 
technical expert under the direction of committee leadership.



Sec. 706.207  Use of Government property.

    An employee shall not directly or indirectly use, or allow the use 
of, Government property of any kind, including property leased to the 
Government, for other than officially approved activities. An employee 
has a positive duty to protect and conserve Government property 
including equipment, supplies, and other property entrusted or issued to 
him.



Sec. 706.208  Indebtedness.

    (a) An employee shall pay each just financial obligation in a proper 
and timely manner, especially one imposed by law, such as Federal, 
State, or local taxes. For the purpose of this section, a ``just 
financial obligation'' means one acknowledged by the employee or reduced 
to judgment by a court or one imposed by law such as Federal, State or 
local taxes.
    (b) When an employee has a levy placed against his salary for 
failure to pay an indebtedness for Federal income taxes, he shall be 
issued a written reprimand stating that failure to make satisfactory 
arrangements regarding future tax liabilities will be grounds for 
removal.
    (c) When an employee is the subject of a letter of complaint stating 
that he has not paid his State or local taxes and has failed to make 
satisfactory arrangements regarding the debt, he shall be interviewed by 
the Assistant

[[Page 80]]

Director, Division of Program Coordination and Management. In this 
interview he shall be instructed to make satisfactory arrangements for 
the payment of his debt immediately and informed that failure to do so 
will be grounds for removal.
    (d) When an employee is the subject of a letter of complaint 
regarding any other kind of indebtedness to a unit of government, 
Federal, State, or local, the procedure prescribed in paragraph (c) of 
this section shall be observed.
    (e) When a creditor who holds a legal judgment against an employee 
requests that the Council assist in collecting the debt, the employee 
shall be interviewed by the Assistant Director, Division of Program 
Coordination and Management. In this interview he shall be instructed to 
pay the debt in full within 90 days, or within whatever longer period is 
specified by the Assistant Director, Division of Program Coordination 
and Management if he determines that a 90-day limit would impose undue 
hardship on the employee, and informed that failure to do so will be 
grounds for removal.
    (f) When an employee is the subject of a letter of complaint from a 
creditor who does not hold a legal judgment against the employee, the 
Assistant Director, Division of Program Coordination and Management 
shall forward a copy of the letter to the employee together with a 
memorandum calling the employee's attention to the provisions of this 
section. However, the Council will not assist the creditor in collecting 
the debt.



Sec. 706.209  Gambling, betting, and lotteries.

    An employee shall not participate, while on Government-owned or 
leased property or while on duty for the Government, in any gambling 
activity, including the operation of a gambling device, in conducting a 
lottery or pool, in a game for money or property, or in selling or 
purchasing a numbers slip or ticket.



Sec. 706.210  Coercion.

    An employee shall not use his Government employment to coerce, or 
give the appearance of coercing, a person to provide financial benefit 
to himself or another person, particularly one with whom he has family, 
business, or financial ties.



Sec. 706.211  General conduct prejudicial to the Government.

    An employee shall not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct, or other conduct 
prejudicial to the Government.



Sec. 706.212  Miscellaneous statutory provisions.

    The attention of each employee is directed to the following 
statutory provisions:
    (a) House Concurrent Resolution 175, 85th Congress, 2d Session, 72 
Stat. B12, the Code of Ethics for Government Service.
    (b) Chapter 11 of Title 18, United States Code, relating to bribery, 
graft and conflicts of interest.
    (c) The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913).
    (d) The prohibitions against disloyalty and striking (E.O. 10450, 18 
U.S.C. 1918).
    (e) The prohibition against the employment of a member of a 
Communist organization (50 U.S.C. 784).
    (f) The prohibitions against:
    (1) The disclosure of classified information (18 U.S.C. 798, 50 
U.S.C. 783); and
    (2) The disclosure of confidential information (18 U.S.C. 1905).
    (g) The provision relating to the habitual use of intoxicants to 
excess (5 U.S.C. 7352).
    (h) The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a(c)).
    (i) The prohibition against the misuse of the franking privilege (18 
U.S.C. 1719).
    (j) The prohibition against the use of deceit in an examination or 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    (k) The prohibition against fraud or false statements in a 
Government matter (18 U.S.C. 1001).
    (l) The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071).

[[Page 81]]

    (m) The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508).
    (n) The prohibitions against:
    (1) Embezzlement of Government money or property (18 U.S.C. 641);
    (2) Failing to account for public money (18 U.S.C. 643); and
    (3) Embezzlement of the money or property of another person in the 
possession of an employee by reason of his employment (18 U.S.C. 654).
    (o) The prohibition against unauthorized use of documents relating 
to claims from or by the Government (18 U.S.C. 285).
    (p) The prohibitions against political activities in Subchapter III 
of Chapter 73 of Title 5, United States Code and 18 U.S.C. 602, 603, 
607, and 608.
    (q) The provision relating to the denial of the right to petition 
Congress (5 U.S.C. 7102).
    (r) The prohibition against an employee acting as the agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).
    (s) The prohibition against a public official appointing or 
promoting a relative, or advocating such an appointment or promotion (5 
U.S.C. 3110).
    (t) The prohibition against the employment of an individual 
convicted of felonious rioting or related offenses (5 U.S.C. 7313).
    (u) The tax imposed on certain employees (e.g., Presidential 
appointees, employees excepted under Schedule C, employees in GS-16 or 
above, or a comparable pay level) who knowingly engage in self-dealing 
with a private foundation (26 U.S.C. 4941, 4946). ``Self-dealing'' is 
defined in the statute to include certain transactions involving an 
employee's receipt of pay, a loan, or reimbursement for travel or other 
expenses from, or his sale to or purchase of property from a private 
foundation.



 Subpart C--Conduct and Responsibilities of Special Government Employees



Sec. 706.301  Use of Government employment.

    A special Government employee shall not use his Government 
employment for a purpose that is, or gives the appearance of being, 
motivated by the desire for private gain for himself or another person, 
particularly one with whom he has family, business, or financial ties.



Sec. 706.302  Use of inside information.

    (a) A special Government employee shall not use inside information 
obtained as a result of his Government employment for private gain for 
himself or another person either by direct action on his part or by 
counsel, recommendation, or suggestion to another person, particularly 
one with whom he has family, business, or financial ties. For the 
purpose of this section, ``inside information'' means information 
obtained under Government authority which has not become part of the 
body of public information.
    (b) A special Government employee may engage in teaching, lecturing, 
and writing to the same extent, and subject to the same restrictions, as 
provided in Sec. 706.303(b) for employees.



Sec. 706.303  Gifts, entertainment, and favors.

    (a) Except as provided in paragraph (b) of this section a special 
Government employee, while so employed or in connection with his 
employment, shall not receive or solicit from a person having business 
with the Council anything of value as a gift, gratuity, loan, 
entertainment, or favor for himself or another person, particularly one 
with whom he has family, business, or financial ties.
    (b) The exceptions from the restrictions as set forth in 
Sec. 706.202(b) for employees apply in the same manner to special 
Government employees.



Sec. 706.304  Applicability of other provisions.

    The provisions of Secs. 706.206 through 706.211 apply to special 
Government employees in the same manner as to employees.



       Subpart D--Statements of Employment and Financial Interests



Sec. 706.401  Employees required to submit statements.

    (a) Employees in the following named positions shall submit 
statements of

[[Page 82]]

employment and financial interst to the Director:
    (1) Employees in Grade GS-16 or above of the General Schedule 
established by the Classification Act of 1949, as amended;
    (2) The General Counsel and Administrative Officer;
    (3) The Staff Specialists assigned to review applications by States 
for planning grants under Title III of the Water Resources Planning Act;
    (4) Special Government employees, as defined in Sec. 706.102; and
    (5) Employees classified at GS-13 or above under 5 U.S.C. 5332, or 
at a comparable pay level under another authority, who are in positions 
which the Director may determine have duties and responsibilites which 
require the incumbent to report employment and financial interests in 
order to avoid involvement in possible conflicts-of-interest situation 
and carry out the purpose of law, Executive order, and Council 
regulations.
    (b) A statement of employment and financial interest is required 
from the Director and shall be submitted by the Director to the Chairman 
of the Council.



Sec. 706.402  Employee's complaint on filing requirements.

    An employee who feels that his position has been improperly included 
in the list in Sec. 706.401 as one requiring the submission of a 
statement of employment and financial interests may obtain a review of 
his complaint under the Council's internal grievance procedure.



Sec. 706.403  Form of statements.

    An employee required to submit a statement of employment and 
financial interests shall submit that statement in the format prescribed 
by the Division of Management.



Sec. 706.404  Time for submission of statements.

    An employee required to submit a statement of employment and 
financial intersts by Sec. 706.401 shall submit that statement no later 
than 30 days after the date of entrance on duty in the position covered 
by Sec. 706.401.



Sec. 706.405  Supplementary statements.

    Changes in, or additions to, the information contained in an 
employee's statement of employment and financial interests shall be 
reported in a supplementary statement, in the format prescribed by the 
Division of Management, as of June 30 each year. If no changes or 
additions occur, a negative report is required. Notwithstanding the 
filing of the annual report required by this section, each employee 
shall at all times avoid acquiring a financial interest that could 
result, or taking an action that would result in a violation of the 
conflicts-of-interest provisions of section 18 U.S.C. 208, or subpart B 
of this part.



Sec. 706.406  Interests of employees` relatives.

    The interests of a spouse, minor child, or other member of an 
employee's immediate household are considered to be interests of the 
employee. For the purpose of this section, ``member of a employee's 
immediate household'' means those blood relations who are residents of 
the employee's household.



Sec. 706.407  Information not known by employees.

    If any information required to be included on a statement of 
employment and financial interests or on a supplementary statement, 
including holdings placed in trust, is not known to the employee but is 
known to another person, the employee shall request that other person to 
submit the information in his behalf.



Sec. 706.408  Information not required.

    An employee is not required to submit on a statement of employment 
and financial interests, or on a supplementary statement, any 
information relating to the employee's connection with, or interest in, 
a professional society or a charitable, religious, social, fraternal, 
recreational, public service, civic, or political organization or a 
similar organization not conducted as a business enterprise. For the 
purpose of this section, educational and other institutions doing 
research and development or related work involving grants of money from 
or contracts with

[[Page 83]]

the Government are deemed ``business enterprises'' and are required to 
be included in an employee's statement of employment and financial 
interests.



Sec. 706.409  Opportunity for explanation of conflict or appearance of conflict.

    When a statement submitted under Sec. 706.401 indicates a conflict 
or an appearance of conflict, between the interests of an employee and 
the performance of his services for the Government, the employee 
concerned shall be given an opportunity to explain the conflict or 
appearance of conflict before remedial action is initiated.



Sec. 706.410  Confidentiality of statements.

    Each statement of employment and financial interests, and each 
supplementary statement, shall be held in confidence and retained in 
limited access files of the reviewing official. The use of information 
on the statements shall be limited to that necessary to carry out the 
purposes of this part. Information from a statement or a supplementary 
statement shall not be disclosed except by decision of the Director for 
good cause shown: Provided, That information from a statement or a 
supplementary statement of the Director shall not be disclosed except by 
decision of the Chairman for good cause shown.



Sec. 706.411  Effect of statements on other requirements.

    The statements of employment and financial interests and 
supplementary statements required of employees are in addition to, and 
not in substitution for or in derogation of any similar requirement 
imposed by law, order, or regulation. The submission of a statement or 
supplementary statement by an employee does not permit him or any other 
person to participate in a matter in which he or the other person's 
participation is prohibited by law, order, or regulation.



Sec. 706.412  Submission of statements by special Government employees.

    (a) Each special Government employee shall submit a statement of 
employment and financial interests not later than the time of his 
employment. Each special Government employee shall keep his statement 
current throughout his period of employment by the submission of 
supplementary statements.
    (b) A special Government employee shall submit his statement of 
employment and financial interests in the format prescribed by the 
Division of Management. The statement will be filed with the Division of 
Management and is accorded the confidentiality prescribed in 
Sec. 706.410.
    (c) The provisions of Secs. 706.406 through 706.411 apply to special 
Government employees in the same manner as to employees.
    (d) The Director may waive the requirement in paragraph (a) of this 
section for the submission of a statement of employment and financial 
interests in the case of a special Government employee who is not a 
consultant or an expert when he finds that the duties of the position 
held by that special Government employee are of a nature and at such a 
level of responsibility that the submission of the statement by the 
incumbent is not necessary to protect the integrity of the Government. 
For the purposes of this paragraph ``consultant'' and ``expert'' have 
the meanings given those terms by Chapter 304 of the Federal Personnel 
Manual.



Sec. 706.413  Submission of statements by River Basin Commission Chairmen.

    A statement of employment and financial interest is not required 
under this part from Chairmen of River Basin Commissions created by the 
President pursuant to Title II of the U.S. Water Resources Planning Act. 
The Commission Chairmen are subject to section 401 of Executive Order 
11222, as amended, and are required to file a statement with the 
Chairman of the Civil Service Commission.



PART 707--COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)--Table of Contents




                           Subpart A--General

Sec.
707.1  Background.
707.2  Purpose.
707.3  Applicability.
707.4  Definitions.

[[Page 84]]

707.5  Policy.

       Subpart B--Water Resources Council Implementing Procedures

707.6  Early involvement in private, State, local, and other non-Federal 
          activities requiring Federal action.
707.7  Ensuring that environmental documents are actually considered in 
          agency decisionmaking.
707.8  Typical classes of action requiring similar treatment under NEPA.
707.9  Tiering.
707.10  Scoping.
707.11  Environmental information.

    Authority: National Environmental Policy Act of 1969 (42 U.S.C. 4321 
et seq.); E.O. 11991, 42 FR 26967; 3 CFR 1977 Compl. p. 123.

    Source: 44 FR 69922, Dec. 5, 1979, unless otherwise noted.



                           Subpart A--General



Sec. 707.1  Background.

    (a) The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 
4321 et seq.) establishes national policies and goals for the protection 
and enhancement of the environment. Section 102(2) of NEPA contains 
certain policy statements and procedural requirements directed toward 
the attainment of such goals. In particular, all Federal agencies are 
required to give appropriate consideration to the environmental effects 
of their proposed actions in their decisionmaking and to prepare 
detailed environmental statements on recommendations or reports on 
proposals for legislation and other major Federal actions significantly 
affecting the quality of the human environment.
    (b) Executive Order 11991 of May 24, 1977, amended E.O. 11514 and 
directed the Council on Environmental Quality (CEQ) to issue regulations 
to implement the procedural provisions of NEPA. Accordingly, CEQ issued 
final NEPA regulations (40 CFR Parts 1500-1508) on November 29, 1978, 
which are binding on all Federal agencies as of July 30, 1979. Section 
1507.3(a) of CEQ regulations provides that each Federal agency shall as 
necessary adopt implementing procedures to supplement the regulations. 
Section 1507.3(b) of the CEQ NEPA regulations identifies those sections 
of the regulations which must be addressed in agency procedures.



Sec. 707.2  Purpose.

    The purpose of this NEPA rule is to establish Water Resources 
Council (WRC) policy and procedures which supplement the CEQ NEPA 
regulations by making them more specifically applicable to our 
activities and which implement Sec. 1507.3 (a) and (b) of the CEQ NEPA 
regulations. This rule will be revised to incorporate detailed 
procedures integrating NEPA and the Principles and Standards (P&S) and 
applicable parts of the procedures for Federal participants in the 
preparation of comprehensive regional or river basin plans when these 
procedures are developed. This NEPA rule must be used in conjunction 
with the CEQ NEPA regulations. Compliance with both the CEQ NEPA 
regulations and this NEPA rule is required. Information in the CEQ NEPA 
regulations generally is not repeated here to avoid needless 
duplication. This NEPA rule supersedes WRC Policy Statement No. 2--
Environmental Statements-Framework Studies and Assessments and Regional 
or River Basin Plans.



Sec. 707.3  Applicability.

    This NEPA rule applies to the WRC as an independent executive agency 
and to Title II river basin commissions (RBC's) and other entities (such 
as interagency committees) preparing studies and plans for WRC review 
and transmittal to the President. Although Title III State planning 
grants do not normally require environmental assessments or statements 
(Sec. 707.8 (a)(3)), the WRC will encourage States receiving grants to 
give appropriate consideration to the environmental effects of their 
proposed actions and to incorporate suitable environmental conditions, 
to the extent permitted by State law. The preamble to the WRC Title III 
guidelines will reflect this policy.



Sec. 707.4  Definitions.

    (a) Responsible Federal Official (RFO). The ``Responsible Federal 
Official (RFO)'' is the official of the Federal Government designated by 
this rule

[[Page 85]]

who shall be responsible for the implementation of NEPA, including 
regulations issued by the CEQ (40 CFR Parts 1500 through 1508) and the 
rule. Of particular importance, the RFO determines the need for an 
Environmental Assessment or Environmental Impact Statement (EIS) in 
accordance with Sec. 707.8 (a)(2) and (b), and if an EIS is required, 
files the draft and final EIS, makes the Record of Decision and assures 
appropriate public involvement in accordance with 40 CFR 1506.6. The 
Chairman of the RBC's are the RFO's for the purpose of ensuring 
compliance with the provisions of NEPA and the P&S for those activities 
which are funded in whole or in part through the WRC and carried out by 
the RBC's, such as framework studies, special studies, comprehensive 
coordinated joint plans, regional or river basin (Level B) plans and 
revisions thereof. The Chairman of the WRC, or his designee, is the RFO 
for complying with the provisons of NEPA and the P&S for those framework 
studies, regional or river basin plans, comprehensive coordinated joint 
plans, and special studies which are funded by the WRC and carried out 
by WRC interagency committees and WRC coordinating committees; 
principles, standards and procedures for planning water and related land 
resources; rules and regulations of the WRC, and other activities of the 
WRC.
    (b) Major Federal Action. ``Major Federal action'' as defined in the 
CEQ NEPA regulations (40 CFR 1508.18) includes actions with effects that 
may be major and which are potentially subject to Federal control and 
responsibility. Such actions include WRC interagency committee, and WRC 
coordinating committee adoption, approval or submittal of plans for 
water and related land resources. For the purpose of this rule, RBC 
adoption, approval or submittal of a plan for water and related land 
resources is considered a major Federal action by virtue of the scope 
and significant environmental consequences of such actions, the 
participation of Federal officials in these RBC actions, and the WRC 
requirements for Federal agency consistency with approved regional water 
resource management plans (WRC Policy Statement No. 4--The Utilization 
of Comprehensive Regional Water Resource Management Plans).



Sec. 707.5  Policy.

    (a) General. The WRC and the RBC's administer certain programs that 
must comply with both NEPA and the P&S. Generally, the environmental 
analysis done during the development of the Environmental Quality (EQ) 
account under the P&S partially overlaps the analysis required in an 
EIS, presenting an opportunity for integration. The requirements of NEPA 
and the P&S will be carried out by integrating the two processes to the 
fullest extent practicable and by combining to the fullest extent 
practicable the Environmental Assessment or, when required, 
Environmental Impact Statement, with each study or plan into a single 
document that will comply fully with the requirements of both processes, 
as provided by the CEQ NEPA regulations (40 CFR 1502.10 and 1506.4).
    (b) Public participation. For each environmental assessment and 
impact statement, the appropriate RFO will establish a specific program 
and schedule for public participation of all interested parties in the 
NEPA process, and shall otherwise provide for public involvement in 
accordance with the CEQ NEPA regulations (40 CFR 1506.6).
    (c) Environmental Impact Statements. Environmental Impact Statements 
(EIS's) as required under Section 102(2)(C) of NEPA will be prepared by 
river basin commissions, interagency committee, or WRC coordinating 
committees for comprehensive coordinated joint plans and regional or 
river basin (Level B) plans, or revisions thereof. The Environmental 
Impact Statement will be prepared concurrently with the preparation of 
the study or plan. The statement will reflect the level of planning 
involved and will address those environmental considerations and 
alternatives relevant to decisionmaking at that level (see Sec. 707.9 
Tiering). Review and comment on the draft study or plan and the 
incorporated draft environmental impact statement will be performed 
simultaneously, and the final combined report will incorporate and 
discuss the comments received on the draft.

[[Page 86]]



       Subpart B--Water Resources Council Implementing Procedures



Sec. 707.6  Early involvement in private, State, local, and other non-Federal activities requiring Federal action.

    (a) Section 1501.2(d) of the CEQ NEPA regulations requires Federal 
agencies to provide for early involvement in activities which, while 
planned by private or other non-Federal entities, requires some 
subsequent form of Federal approval or action to which NEPA applies. 
Such activities for which early involvement is appropriate include those 
private, local, State, or regional water and related land resources 
plans, projects or programs which should be included in a regional water 
resources management plan or Level B plan, since the plans normally 
required an EIS or assessment as provided in Sec. 707.8(a) of this NEPA 
rule.
    (b) To facilitate the implementation of 40 CFR 1501.2(d), the 
appropriate RFO shall publish and distribute in the region or basin in 
which a comprehensive or Level B study is conducted, guidelines for non-
Federal entities of the types of plans, projects, and programs which 
shall be included in such comprehensive or Level B plan. The RFO shall 
advise non-Federal entities on the scope and level of environmental 
information and analysis needed for environmental documents.



Sec. 707.7  Ensuring that environmental documents are actually considered in agency decisionmaking.

    (a) Section 1505.1 of the NEPA regulations contains requirements to 
ensure adequate consideration of the environmental documents in agency 
decisionmaking. To implement these requirements, the RFO shall:
    (1) Consider relevant environmental documents in evaluating actions 
proposed in plans and studies.
    (2) Make relevant environmental documents, comments, and responses 
part of the record in any formal rulemaking or adjudicatory proceedings.
    (3) Ensure that relevant environmental documents, comments and 
responses accompany the proposed actions through existing review 
processes.
    (4) Consider only those alternatives encompassed by the range of 
alternatives discussed in the relevant environmental documents when 
evaluating proposals for agency action.
    (5) Where an EIS has been prepared, consider the specific 
alternatives analyzed in the EIS when evaluating the proposal which is 
the subject of the EIS.
    (b) The NEPA process begins at the earliest possible stage of the 
planning process and is completed when the RFO makes a finding of 
significant impact or a record of decision. In cases where the Chairman 
of a River Basin Commission, or regional Federal official has been 
designated as the RFO, and a plan or report is submitted to WRC for 
review and comment after completion of the NEPA process, the 
environmental documents incorporated into such plans or reports, or 
submitted with them, shall be fully considered by WRC when it prepares 
its views, comments, and recommendations for transmittal to the 
President and Congress. The RFO shall include the Findings of No 
Significant Impact, or the Record of Decision, with the documents 
submitted to WRC for review.



Sec. 707.8  Typical classes of action requiring similar treatment under NEPA.

    (a) Section 1507.3(b)(2) of the CEQ NEPA regulations in conjunction 
with Sec. 1508.4 requires agencies to establish three typical classes of 
action for similar treatment under NEPA. These typical classes of 
actions are set forth below:
    (1) Actions normally requiring EIS's:
    (i) Adoption, approval or submittal of regional water resources 
management plans (comprehensive, coordinated, joint plans or elements 
thereof).
    (ii) Adoption, approval or submittal of Level B plans.
    (2) Actions normally requiring assessments but not necessarily 
EIS's:
    (i) Establishment and implementing guidance (including significant 
changes) in principles, standards, and procedures for planning water and 
related land resources.
    (ii) Adoption, approval or submittal of framework studies and 
special studies which include recommendations for future actions.

[[Page 87]]

    (iii) Any action not in paragraph (a) (1) or (3) of this section.
    (3) Actions normally not requiring assessments or EIS's (categorical 
exclusions):
    (i) Approval of Title III State planning grants.
    (ii) Adoption, approval or transmittal or priorities reports.
    (iii) Preparation of the National Water Assessment.
    (iv) Recommendations to the President with the respect to Federal 
policies and programs, except for transmittal of plans described in 
paragraph (a) (1) or (2) of this section for which the original EIS or 
Environmental Assessment (EA) will be transmitted with the plan. A 
second EIS is not required.
    (v) Framework studies and assessments and special studies which do 
not include recommendations for future actions.
    (b) Where the presence of extraordinary circumstances indicates that 
an action normally excluded may have a significant environmental effect, 
the appropriate RFO shall independently determine whether an EIS or an 
environmental assessment is required.



Sec. 707.9  Tiering.

    In accordance with the CEQ NEPA regulations 40 CFR 1502.4(d) and 
1508.28(a), this NEPA rule emphasizes the use of tiering to relate broad 
and narrow actions. The level of detail in EIS's and EA's prepared by 
RBC's, WRC interagency committees or WRC coordinating committees will 
reflect the level of detail in the plans, particularly the comprehensive 
and policy nature of comprehensive, coordinated, joint plans or elements 
or revisions thereof. These EIS's are not intended to substitute for 
individual statements on individual projects as more detailed planning 
and analysis will be required for major Federal actions proposed in 
these plans. The ``policy'' or ``overview'' EIS should serve as the 
framework and introduction for a more site-specific project EIS 
developed by the implementing Federal agency. Environmental impact 
statements for regional water resource management and Level B plans will 
generally address the items in the recommended format (40 CFR 1502.10) 
on the basis of water and related land resources of an entire region or 
river basin. This is the level of consideration at which the 
environmental issues and considerations are most relevant to 
decisionmaking. They may also address groups of interrelated or 
individual plan elements where these involve significant environmental 
considerations.



Sec. 707.10  Scoping.

    Scoping will be used to determine the extent of issues to be 
addressed by the EIS and to identify significant issues related to the 
proposed action. Scoping will be conducted as described by the CEQ NEPA 
regulations, Secs. 1501.7 and 1508.25.



Sec. 707.11  Environmental information.

    Interested persons may contact the Director, U.S. Water Resources 
Council, 2120 L Street, NW., Washington, DC 20037, for information 
regarding the Council's compliance with NEPA.



PART 708--UPPER MISSISSIPPI RIVER BASIN COMMISSION: PUBLIC PARTICIPATION IN UPPER MISSISSIPPI RIVER SYSTEM MASTER PLAN--Table of Contents




Sec.
708.1  Definitions.
708.2  Scope.
708.3  Policy, objectives, and standards.
708.4  Required programs and reports.
708.5  Program objectives implementation.

    Authority: Title II, sec. 204, Pub. L. 89-80, Water Resources 
Planning Act of 1965; Title I, sec. 101(b), Pub. L. 95-502, Inland 
Waterways Authorization Act of 1978.

    Source: 44 FR 14537, Mar. 13, 1979, unless othewise noted.



Sec. 708.1  Definitions.

    As used in the part, the term:
    (a) Act means the Inland Waterways Authorization Act of 1978, Pub. 
L. 95-502.
    (b) Commission means the Upper Mississippi River Basin Commission, 
with headquarters at Fort Snelling, Twin Cities, Minnesota.
    (c) Master Plan means the Upper Mississippi River System 
Comprehensive Master Management Plan mandated by Title I of the Act.

[[Page 88]]

    (d) GREAT refers to studies conducted by Great River Environmental 
Action Teams pursuant to section 117 of the Water Resources and 
Development Act of 1976 (Pub. L. 94-587) for purposes of developing 
balanced management strategies for multipurpose use of the Upper 
Mississippi River.
    (e) System means those Upper Mississippi River reaches containing 
commercial navigation channels on the Mississippi River main stem north 
of Cairo, Illinois; the Minnesota River, Minnesota; Black River, 
Wisconsin; Saint Croix River, Minnesota and Wisconsin; Illinois River 
and Waterway, Illinois; and Kaskaskia River, Illinois.
    (f) Public meeting means a meeting to provide individuals and 
representatives of interested organizations opportunities to present 
their opinions and suggestions by means of an informally structured 
format.
    (g) Public hearing means a formally structured public meeting 
scheduled to provide adequate time for each testimony, which will be 
recorded, transcribed, published, and made available to the public.



Sec. 708.2  Scope.

    (a) This part describes minimum guidelines for public participation 
in the development, revision, and implementation of the Master Plan 
specified in the Act.
    (b) This part applies to the following organizations with references 
to the activities described in Sec. 708.2(a):
    (1) The Commission, including its staff and persons, organizations, 
and agencies under contract to it for work within the scope of the 
Master Plan.
    (2) Such Federal departments and agencies as are directed under 
section 101(3) of the Act to conduct studies pursuant to the Master 
Plan, for any work carried out for purposes of developing, revising, and 
implementing the Master Plan.
    (3) Such departments and agencies of any state or local government 
as are authorized and/or directed to carry out studies and analyses 
under direction or advice of the Commission as stipulated in section 101 
of the Act.
    (c) The guidelines referred to in this part shall be considered 
general requirements applicable to all studies, procedures, programs, 
regulations, or other administrative devices carried out under 
Sec. 708.2(b), but only for those Master Plan Activities under authority 
of the Act.



Sec. 708.3  Policy, objectives, and standards.

    (a) Policy. (1) Congress has directed the Commission to prepare a 
comprehensive Master Plan for management of the System in cooperation 
with appropriate Federal, state, and local officials. In developing the 
plan, the Commission is required to identify various economic, 
recreational, and environmental objectives of the System, recommend 
guidelines to achieve such objectives, and propose methods to assure 
compliance with such guidelines and coordination of future management 
decisions affecting the System, and include with the proposed plan any 
legislative proposals which may be necessary to carry out such 
recommendations and achieve such objectives.
    (2) The Commission is required to provide for public participation 
in the development, revision, and implementation of the Master Plan and 
to encourage and assist such participation. In doing this, the 
Commission seeks to foster a spirit of openness and a sense of mutual 
trust between the public and the planners. Public participation is 
expected to result in greater responsiveness of the Master Plan to 
public concerns and priorities, as well as improved popular 
understanding of official studies, planning processes, and decisions.
    (3) In order for public participation to be effective, it must be 
timely and integrated into the planning process. The Commission shall 
seek public participation prior to any decision-making on the Master 
Plan or any of its components. Such public participation will ordinarily 
include informational output about the plan, public response and input, 
two-way discussions or exchange, and Commission consideration of public 
expressions.
    (4) Neither the Master Plan as a whole nor any component of it shall 
be formulated without incorporation of a program of public participation 
involving fair representation of all segments of the public. The public 
participation

[[Page 89]]

section of the Master Plan--Plan of Study shall be developed consistent 
with the guidelines described in this part.
    (5) Public participation processes utilized by the Commission in 
developing the Master Plan shall aim for the highest achievable 
standards of objectivity and thoroughness consistent with other 
requirements of the Act and the intent, concepts, ideas, and basic 
tenets of the Principles and Standards for Planning Water and Related 
Land Resources published by the Water Resources Council in the Federal 
Register, Volume 38, Number 174, Part III, September 10, 1973 and any 
forthcoming revisions. Public participation programs shall include 
monitoring procedures to maintain an acceptable degree of responsiveness 
and accountability.
    (b) Objectives. Objectives of the public participation program 
developed by the Commission as part of the Master Plan are:
    (1) To develop awareness of public preferences by those responsible 
for preparation and approval of the Master Plan.
    (2) To anticipate and help resolve conflicts arising during the 
study,
    (3) To improve information transfer and public awareness of the 
study,
    (4) To provide for periodic reviews in the development of the Master 
Plan as well as the final review required by the Act, and
    (5) To provide for evaluation of public participation in the 
planning process.
    (c) Standards. The Commission in meeting the above objectives 
recognizes that:
    (1) Inputs from the public are important for development of the 
Master Plan;
    (2) Participants are to include individual citizens as well as 
organizations;
    (3) The public participation program is to assume the existence of 
numerous publics and their interests--identified and delineated 
according to a number of socioeconomic, demographic, geographic, person, 
and ideological variables;
    (4) The public participation process must be continuous: it is to be 
provided for, encouraged, and assisted throughout the planning process;
    (5) The public participation process is to have as a product 
measurable sets of opinion and other manifestations of the public will 
in regard to details of the Master Plan;
    (6) Inputs from the public into the Master Plan through avenues 
other than the Commission public participation program should be 
facilitated; and
    (7) Desires expressed by the public are likely to be conflicting and 
therefore, public participation cannot be substituted for the decision-
making responsibility.



Sec. 708.4  Required programs and reports.

    (a) The Commission shall prepare a work plan for public 
participation as part of the Master Plan--Plan of Study. The work plan 
shall satisfy minimum standards described in this part. The work plan 
shall describe all substantive administrative and management 
arrangements to elicit public participation, shall delineate Commission 
member and staff responsibilities, and shall identify budgetary 
provisions.
    (b) In addition to public meetings and hearings, the public 
participation program shall include survey research, program evaluation, 
and information/education activities as described in Sec. 708.5.
    (c) The Commission shall recommend long-term public participation 
activities and programs related to implementation of the Master Plan. 
These recommendations shall be based on evaluation of procedures and 
results mandated in this part and carried out during the Master Plan 
preparation.
    (d) The Commission shall issue reports describing the participation 
program as developed or implemented during the designated reporting 
period. Each such report shall include as a minimum a brief description 
of the main participation elicited, the costs of the effort, and the use 
that was made of the elicited information in the planning process. The 
reporting periods shall be arranged so as to correspond generally with 
the main sequential segments of the overall planning process.

[[Page 90]]



Sec. 708.5  Program objectives implementation.

    (a) The continuing public participation program shall contain 
mechanisms or activities for each objective listed in Sec. 708.3(b). The 
listing of specific measures in this section shall not preclude 
additional techniques for obtaining, encouraging, or assisting public 
participation. Special efforts shall be made to simplify the planning 
process and products for public and media use. Variances may occur in 
the use of any given program element, according to the nature of the 
planning issues, the budgetary resources accorded the participation 
process, and the effectiveness of the participation actually elicited 
and measured in the field.
    (b) To obtain data in regard to plan-relevant public opinion, 
methods, shall include but not be limited to survey research.
    (1) The survey research process shall be developed and utilized in 
connection with the Master Plan as a whole and its components. Whereas 
public meetings are organized to elicit unstructured participation and 
opinion changes, surveys shall be targeted on carefully selected samples 
of functionally defined publics located throughout the System.
    (2) The Commission shall evaluate the effectiveness of the 
information/education program on the part of the surveyed publics. This 
is necessary for continued and sustained participation in the decision-
making steps of the planning process.
    (3) If a gap is found between the desired and actual effectiveness, 
the Commission shall develop and implement a short-term narrow-focus 
information and education program targeted at the specific problem areas 
in question.
    (4) On completion of the short-term information/education program, 
re-surveys shall be made among the affected publics. The results shall 
constitute a measure of the effectiveness of the short-term information/
education program.
    (c) To improve information transfer and public awareness of the 
study, two levels of information and education activities shall be 
pursued. The first shall have the general public as its target audience 
and shall emphasize methods that foster general awareness and 
understanding of plan issues and the nature of the ongoing planning 
process. The second level of information and education activities shall 
focus on public interest groups, agency representatives, and elected 
officials and shall emphasize the creation of plan component data and 
information in a form that can be utilized by these groups in the plan 
decision-making process. The information presented shall be broadly 
representative of the relevant perspectives and issues.
    (d) Throughout the period of study and the succeeding period of 
implementation of the Master Plan, the Commission shall provide a 
centralized capability for acting as an information/education center. 
The Commission shall provide a central source of media-directed 
information about the Master Plan, its components, future expected 
planning needs in the System, current program-related activities, and 
other relevant subject areas. Special efforts shall be made to summarize 
complex technical materials for public and media use. The Commission 
shall have standing arrangements for early consultation and exchange of 
views with interested or affected persons and organizations on 
development or revisions of plans, programs, or other significant 
actions prior to decision-making. Survey research methods and other 
procedures will be used to determine the content and emphasis of 
information and education activities and products.
    (e) The Commission shall provide for periodic reviews of the 
development of the Master Plan as well as the final review required by 
the Act. Activities to accomplish this shall include:
    (1) Public meetings. (i) Public meetings shall be organized at 
locations in parts of the System most significantly affected by the 
possible outcomes. These open meetings shall be timed to coincide with 
sequential elements of the planning process.
    (ii) The meetings shall provide citizens and representatives of 
interested organizations an opportunity to utilize an informally-
structured format to air their suggestions and grievances in regard to 
the subject matter of the Master Plan.

[[Page 91]]

    (iii) When the Commission deems a formal public hearing is 
necessary, it may coincide with the pulic meeting. When this is the 
case, a clear distinction shall be made between the formal and open 
segments of the meeting/hearing.
    (iv) Documents and data pertaining to the agenda for each public 
meeting shall be made available to the public for a reasonable time 
prior to the public meeting, at a location convenient to the expected 
participants. In addition, the Commission shall prepare outlines of 
major issues including brief descriptions of the issues, alternatives, 
and sources of additional information.
    (2) Public hearings. (i) The Commission is required to publish a 
preliminary plan not later than January 1, 1981 and to hold public 
hearings in each state which would be affected by the plan. The 
Commission is required to review all comments presented at such hearings 
or submitted in writing to the Commission, and, after making any 
revisions in the plan it decides are necessary, to submit to Congress a 
final Master Plan not later than January 1, 1982.
    (ii) The public hearings on the preliminary plan and any other 
public hearings deemed necessary by the Commission are to be consistent 
with the provisions of sec. 205 of Pub. L. 89-80 in conformity with this 
part. If conflict exists between the minimum guidelines of this part and 
requirements of state or Federal law or other regulations pertaining to 
a particular hearing, the more stringent requirements shall be observed.
    (iii) In addition to any other formal legal requirements, the public 
hearings are to be well publicized and notices of each hearing will be 
mailed to interested or affected persons at least 30 calendar days 
before the hearings.
    (iv) In determining locations and times for hearings, consideration 
will be given to travel and to facilitating attendance and testimony by 
a cross-section of interested or affected persons and organizations. 
Accessibility of hearing sites by public transportation will be 
considered.
    (v) The preliminary plan and any supporting reports, documents, and 
data to be discussed at the public hearings are to be made available to 
the public at least 30 days prior to the public hearings. Information 
concerning availability of the preliminary plan, reports, documents, and 
data will be provided in public hearing notices.
    (vi) The elements of the public hearings, proposed time schedules, 
and any constraints on statements shall be specified in public hearing 
notices.
    (vii) Testimony of witnesses at public hearings shall be scheduled 
in advance when necessary to ensure maximum participation and allotment 
of adequate time for testimony, provided that such scheduling is not 
used as a bar to unscheduled testimony. Blocks of time shall be 
considered for major categories of witnesses.
    (viii) Public hearing procedures shall not inhibit free expression 
of views by requirements of more than one legible copy of any statement 
submitted, or for qualifications of witnesses beyond that needed for 
identification.
    (ix) A record of public hearing proceedings shall be made promptly 
available to the public at cost. The Commission shall invite, receive, 
and consider comments in writing from any interested or affected persons 
and organizations. All such comments shall be part of the public record.
    (f) To provide mechanisms for evaluation of public participations in 
the Master Plan:
    (1) The Commission shall conduct periodic evaluations of the public 
participation program. The purpose of this evaluation is to determine 
the following:
    (i) The extent of actual participation elicited from each of the 
process phases--public meetings, public hearings, survey research, 
direct input from organizations, and other sources.
    (ii) The degree to which participation elicited from each process 
phase was actually utilized in the planning process.
    (iii) Regional/local differences in effectiveness of public 
participation methods and procedures.
    (iv) The need to modify the public participation process during the 
Master Plan.
    (2) Public participation evaluations shall be incorporated into the 
Master Plan. Recommendations resulting from

[[Page 92]]

this overall evaluation shall be utilized to draft new guidelines and 
plans of study for public participation programs to be implemented after 
the Master Plan has been adopted.



PART 725--IMPLEMENTATION OF EXECUTIVE ORDERS 11988, FLOODPLAIN MANAGEMENT AND 11990, PROTECTION OF WETLANDS--Table of Contents




                         Subpart A--Introduction

Sec.
725.0  Purpose.
725.1  Authority.
725.2  Policy.
725.3  Applicability.
725.4  Definitions.

                       Subpart B--Responsibilities

725.5  Council studies.
725.6  Principles, standards and procedures.
725.7  Regional or river basin planning.
725.8  Report, plan and recommendation development and review.
725.9  Reviews of compliance.

    Authority: The Water Resources Planning Act of 1965, sec. 402, Pub. 
L. 89-80, 79 Stat. 245 (42 U.S.C. 1962d-1), the National Environmental 
Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), the National 
Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.), the 
Flood Disaster Protection Act of 1973, as amended (87 Stat. 975), E.O. 
11988 and E.O. 11990 (42 FR 26951).

    Source: 45 FR 76683, Nov. 20, 1980, unless otherwise noted.



                         Subpart A--Introduction



Sec. 725.0  Purpose.

    This rule establishes the procedures to be followed by the U.S. 
Water Resources Council for applying Executive Order 11988, Floodplain 
Management, and Executive Order 11990, Wetlands Protection, to the water 
resources planning assistance activities that it performs.



Sec. 725.1  Authority.

    This rule is being promulgated pursuant to the Water Resources 
Planning Act of 1965, section 402, Pub. L. 89-90, 79 Stat. 245 (42 
U.S.C. 1962d-1). In addition, Executive Order 11988, Floodplain 
Management, at section 2(d); directs the preparation of procedures 
implementing its provisions, as does Executive Order 11990, Protection 
of Wetlands, at section 6. Each of these Orders was prepared in 
furtherance of the National Environmental Policy Act of 1969, as amended 
(42 U.S.C. 4321 et seq.). The floodplain management Order is also based 
on the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 
et seq.), and the Flood Disaster Protection Act of 1977, as amended (87 
Stat. 975).



Sec. 725.2  Policy.

    It is the policy of the Council to provide leadership in floodplain 
management and the protection of wetlands. Further, the Council shall 
integrate the goals of the Orders to the greatest possible degree into 
its procedures for implementing the National Environmental Policy Act. 
The Council shall take action to:
    (a) Avoid long- and short-term adverse impacts associated with the 
occupancy and modification of floodplains and the destruction or 
modification of wetlands;
    (b) Avoid direct and indirect support of floodplain development and 
new construction in wetlands wherever there is a practicable 
alternative;
    (c) Reduce the risk of flood loss;
    (d) Promote the use of nonstructural loss reduction methods to 
reduce the risk of flood loss;
    (e) Minimize the impact of floods on human health, safety and 
welfare;
    (f) Minimize the destruction, loss or degradation of wetlands;
    (g) Restore and preserve the natural and beneficial values served by 
floodplains;
    (h) Preserve and enhance the natural and beneficial values served by 
wetlands;
    (i) Involve the public throughout the floodplain management and 
wetlands protection decisionmaking process;
    (j) Adhere to the objectives of the Unified National Program for 
Floodplain Management;
    (k) Continually analyze existing and new policies of the Council to 
ensure consistency between them and the provisions of E.O. 11988 and 
11990; and
    (l) Improve and coordinate the Council's plans, programs, functions 
and resources so that the Nation may attain

[[Page 93]]

the widest range of beneficial uses of the environment without 
degradation or risk to health and safety.



Sec. 725.3  Applicability.

    These regulations apply to all Council actions which have the 
potential to affect floodplains or wetlands or which would be subject to 
potential harm if they were located in floodplains or wetlands. The 
basic test of the potential of an action to affect floodplains or 
wetlands is the action's potential to result in the long- or short-term 
adverse impacts associated with:
    (a) The occupancy or modification of floodplains, or the direct and 
indirect support of floodplain development; or
    (b) The destruction or modification of wetlands or the direct or 
indirect support of new construction in wetlands.

These procedures apply to Level A and B regional or river basin planning 
activities carried out by regional planning sponsors including 
consideration of inclusion of site specific projects in Level A or B 
regional or river basin plans. These procedures do not apply to site 
specific Level C planning carried out by individual Federal agencies. 
Each Federal agency shall use its own procedures promulgated pursuant to 
these Orders for such Level C planning.



Sec. 725.4  Definitions.

    The following definitions shall apply throughout this regulation:
    (a) All definitions from section 6 of E.O. 11988 (42 FR 26951); all 
definitions from section 7 of E.O. 11990 (42 FR 26951); and all 
definitions listed in the Glossary of the Council's Floodplain 
Management Guidelines for Implementing E.O. 11988 (43 FR 6030) from the 
term base flood through the term structures.
    (b) Action means all Council activities including but not limited to 
plan review, study preparation, preparation and modifications to the 
Council's Principles, Standards and Procedures (P,S,&P), provision of 
financial assistance for State, regional, and river basin planning and 
reviews of compliance.
    (c) Council means the U.S. Water Resources Council.
    (d) Enhance means to increase, heighten, or improve the natural and 
beneficial values associated with wetlands.
    (e) Regional planning sponsors means Federal agencies, states, 
groups of States, river basin commissions, interstate compact 
commissions and interagency committees.



                       Subpart B--Responsibilities



Sec. 725.5  Council studies.

    All studies and appraisals performed by the Council pursuant to 
section 102 of Pub. L. 89-80 and any recommendations based on these 
activities shall include specific analyses for reflection of and 
opportunities to meet the objectives of E.O. 11988 and E.O. 11990. The 
Council's Floodplain Management Guidelines (43 FR 6030), E.O. 11988 and 
E.O. 11990 provide the basic evaluation tools for these analyses.



Sec. 725.6  Principles, standards and procedures.

    The Principles, Standards and Procedures established by the Council 
pursuant to section 103 of Pub. L. 89-80 shall reflect the provisions of 
the Executive Orders. These Principles, Standards and Procedures are 
found in 18 CFR parts 710 through 717.



Sec. 725.7  Regional or river basin planning.

    (a) In agreements between river basin commissions or other regional 
planning sponsors and the Council for the preparation and revision of 
regional and river basin Level B Studies and regional water resource 
management plans, the responsible official representing the river basin 
commission or regional planning sponsor shall certify to the Council 
that the following criteria have been or will be utilized as part of the 
planning process:
    (1) Determination of whether proposed activities would be located in 
floodplains or wetlands, or, even if located outside of them, would have 
the potential to affect floodplains or wetlands;
    (2) Avoidance of performing activities within floodplains or 
wetlands wherever there is a practicable alternative;

[[Page 94]]

    (3) Where avoidance of floodplains cannot be achieved, minimization 
of adverse impacts and support of floodplain development, and 
preservation and restoration of natural and beneficial floodplain 
values;
    (4) Where avoidance of wetlands cannot be achieved, minimization of 
adverse impacts and support of new construction in wetlands, and 
preservation and enhancement of natural and beneficial wetlands values; 
and
    (5) Involvement of the public in the floodplain management and 
wetlands protection decisionmaking process.
    (b) The Council's Floodplain Management Guidelines (43 FR 6030) 
shall be used as the basis for implementing the criteria in 
Sec. 725.7(a)(1) through (5).
    (c) The responsible official representing the regional planning 
sponsor shall, to the fullest extent of his or her authority, ensure 
that any activities carried out under his or her plans and programs meet 
the criteria in Sec. 725.7(a)(1) through (5).



Sec. 725.8  Report, plan and recommendation development and review.

    All reports, plans and recommendations received under section 104 of 
Pub. L. 89-80 shall be reviewed by the Council for reflection of and 
opportunities to meet the objectives of E.O. 11988 and 11990. This 
review shall be based on the criteria in Sec. 725.7(a)(1) through (5), 
on E.O. 11988 and 11990, and on the Council's Floodplain Management 
Guidelines (43 FR 6030).



Sec. 725.9  Reviews of compliance.

    Reviews of compliance performed pursuant to section 304 of Pub. L. 
89-80 shall include analysis of each program's treatment of floodplain 
management and wetland protection in accordance with the manner in which 
these concepts are expressed in E.O. 11988, 11990, and the Council's 
Floodplain Management Guidelines (43 FR 6030).



PART 740--STATE WATER MANAGEMENT PLANNING PROGRAM--Table of Contents




Sec.
740.1  Purpose and scope.
740.2  Definitions.
740.3  State applications.
740.4  State water management planning program.
740.5  Review and approval of State applications and programs.
740.6  Financial assistance.
740.7  Administration of financial assistance.
740.8  Reporting.
740.9  Recordkeeping.
740.10  Program review and assistance.
740.11  Federal/State coordination.
740.12  Amendments.
740.13  Supplemental instructions.

    Authority: Water Resources Planning Act of 1965 (as amended), Pub. 
L. 89-80, 79 Stat. 244, 42 U.S.C. 1962c; Federal Grant and Cooperative 
Agreement Act of 1977, Pub. L. 95-224, 92 Stat. 3, 41 U.S.C. 501 et 
seq.; E.O. 12044, 43 FR 12660.

    Source: 45 FR 72010, Oct. 30, 1980, unless otherwise noted.



Sec. 740.1  Purpose and scope.

    (a) In recognition of the role of the States as the focal point for 
the management of water and related land resources, this part 
establishes guidelines for financial and program assistance to States 
for water management planning programs which address each State's 
particular needs, which are based on established State goals and 
objectives, and which take into consideration national goals and 
objectives.
    (b) The purpose of the State Water Management Planning Program 
(Program) is to provide financial and program assistance to 
participating States to support the development and modification of 
comprehensive water management planning programs.
    (c) Funds made available under this part shall be used to establish, 
develop or enhance existing or proposed State water resources management 
and planning programs that are designed to address pertinent State and 
national goals and objectives, as well as the goals and objectives of 
Title III of the Water Resources Planning Act (Act), Pub. L. 89-80, as 
amended, by addressing in the Program the following:
    (1) Coordination of the program authorized by the Act and those 
related programs of other Federal agencies;
    (2) Integration of water conservation with State water management 
planning;
    (3) Integration of water quantity and water quality planning;
    (4) Integration of ground and surface water planning;

[[Page 95]]

    (5) Planning for protection and management of groundwater supplies;
    (6) Planning for protection and management of instream values; and
    (7) Enhanced cooperation and coordination between Federal, regional 
State and local governmental entities involved in water and related land 
resources planning and management.



Sec. 740.2  Definitions.

    Act means the Water Resources Planning Act (as amended), Pub. L. 89-
80, 42 U.S.C. 1962 et seq.
    Activities means a series of actions and operations which address 
the water management problems of the State and have a specific purpose 
or objective. Activities are further characterized by one or more major 
tasks and milestones.
    Affected interests means public and private organizations, local, 
tribal, State and Federal governments that may be potentially affected 
by the State water management planning program.
    Application means a document submitted by a Governor or designee for 
consideration by the Council for a grant.
    Council means the Water Resources Council established by section 101 
of the Act.
    Designated agency means an entity of a State designated by the 
Governor to act as the grant recipient and to act as liaison with the 
Council for this Program.
    Fiscal year means a 12-month period ending on September 30, unless 
otherwise specified.
    Governor means the chief executive officer of a State, including the 
Mayor of the District of Columbia.
    Grant agreement means a document executed by the authorized official 
of the Water Resources Council and by the authorized representative of 
the State agency designated as the grant recipient containing the agreed 
terms and conditions of the approved grant offer and award.
    Grant period means a 12-month period specified in the grant 
agreement, which shall begin during the fiscal year as defined above, 
during which program funds are authorized to be expended, obligated, or 
firmly committed by the grantee for the purposes specified in the Act, 
in the grant agreement and in these guidelines.
    Land area of a State means the land and inland water area of a State 
as defined and set forth in the publication ``Boundaries of the United 
States and the Several States'' Geological Survey Professional Paper 
909, U.S. Government Printing Office, Washington, DC issued in 1976, or 
revisions thereof.
    Local government means a local unit of government including a county 
municipality, city, town, township, local public authority, school 
district, special district, intrastate district, council of governments, 
sponsor group representative organization (as defined in 7 CFR 620.2, 40 
FR 12472, March 19, 1975) and other regional or interstate government 
entity; or any agency or instrumentality of a local government exclusive 
of institutions of higher education and hospitals.
    Milestones mean key events in the activity implementation schedule. 
Milestones indicate important dates for design implementation and 
monitoring tasks. Examples of milestones include but are not limited to 
hiring of key staff, publication dates, workshop dates, or the 
completion of specific phases of the implementation schedule.
    Obligation means orders placed, contracts awarded, grants issued, 
services received and similar transactions during a given period that 
require the disbursement of money.
    Per capita income of a State means the most recent year of official 
U.S. Department of Commerce per capita income figures for the State.
    Program period means the period beginning on October 1, 1980, and 
extending through the authorized life of the Program.
    Program funds means grant funds provided under the Act, non-Federal 
funds and the value of in-kind contributions used for matching purposes.
    Population of a State means the latest official resident population 
estimate by the U.S. Department of Commerce available on or before 
January 1, of the year preceding the fiscal year for which funds under 
this part are appropriated.
    Related land resources means any land affected by present or 
projected management practices causing significant

[[Page 96]]

effects on the quantity or quality of the water resource.
    State means each of the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, or the 
Commonwealth of the Northern Mariana Islands.
    State water management planning means those activities necessary to 
effect coordinated decisions for the use of water and related resources 
within a State or interstate region; which provide for the correction or 
prevention, respectively, of present and future water and related land 
resources problems; which consider the potential for water and related 
land resources use from the standpoint of present and future needs; and 
which provide for involvement of affected interests. Water management 
planning activities may include, but are not limited to, planning, data 
collection and analysis, studies and investigations, program design and 
coordination, development of regulation and enforcement programs, 
information dissemination, public meetings, and the coordination of the 
program with other related programs.
    Task means a specific action or operation which comprises a part of 
the implementation effort for an activity.
    Water conservation means activities designed to (1) reduce the 
demand for water, (2) improve efficiency in use and reduce losses and 
waste of water, or (3) improve land management practices to conserve 
water.
    Water management planning need is defined as the basis for 
establishing criteria for assessing each State's need for assistance 
under the Program.
    Work Plan means a document listing the major program elements to be 
performed under the program during each grant period which presents, in 
chronological order, the major activities and tasks in the program 
element; which targets major milestones or proposed accomplishments by 
activity, cost and date; and which will be used in preparing reports to 
reflect accomplishment of goals and objectives under the participating 
State's comprehensive program.



Sec. 740.3  State applications.

    (a) The Council shall invite the Governor of each State to submit a 
State application.
    (b) To be eligible for financial assistance under this part, a State 
shall submit to the Council an original and two copies of a State 
application executed by the Governor or designee. The State application 
shall be submitted not later than 90 days from the date of the Council's 
invitation.
    (c) The program application package shall consist of:
    (1) The forms and instructions for completing the application;
    (2) The criteria to be used by the Council in assessing need for 
water management planning funds;
    (3) Information on the applicable Federal requirements for 
administering the program; and
    (4) Other information pertinent to the application.
    (d) A State application shall contain:
    (1) The name and address of the designated State agency;
    (2) A description of the comprehensive State water management 
planning program, or modifications thereto, as required by 
Sec. 740.4(a);
    (3) A work plan of the major program activities of the State water 
management planning program which targets milestones on a semi-annual 
basis;
    (4) A budget and corresponding narrative in accordance with the 
forms and instructions provided by the Council;
    (5) A notice of concurrence by the State clearinghouse in accordance 
with the Office of Management and Budget (OMB) Circular A-95;
    (6) The manner in which the general public is involved in the 
development and modification of the State program; and
    (7) A brief description of activities, in order of priority, which 
would be carried out if additional funds were made available during the 
grant period under the provisions of Sec. 740.6(e). This may include 
supplementing or complementing ongoing activities described in paragraph 
(d)(3) of this section.
    (e) The Governor or designee may request an extension to the 
submission date by submitting a written request

[[Page 97]]

to the Council not less than 30 days prior to the date referred to in 
paragraph (b) of this section. The extension shall be granted only if, 
in the Council's judgment, acceptable and substantial justification is 
shown and the extension would further the objectives of the Act. An 
extension shall not be granted for more than 30 days.



Sec. 740.4  State water management planning program.

    (a) A State shall submit a description of its proposed State program 
with the State application, which shall:
    (1) Describe water and related land resources problems, needs and 
opportunities, and the priorities proposed for their resolution;
    (2) Specify the goals and objectives which reflect the water 
resources policy of the State and which address the major problems which 
are of concern to the State;
    (3) Describe the major elements of the State water management 
program, which should address but not be limited to:
    (i) The integration of water quantity and water quality planning and 
management;
    (ii) The protection and management of instream values;
    (iii) The protection and management of groundwater supplies;
    (iv) The integration of ground and surface water planning and 
management; and
    (v) Water conservation.
    (4) Identify Federal, State, or local government, or public or 
private organizations that will participate and a general description of 
how they are involved in the managment planning process;
    (5) If provisions are made for pass-through of funds, describe the 
process by which recipients will be selected, and the purpose of the 
pass-through; and
    (6) List existing or proposed administrative, legal and/or 
institutional arrangements to be used in coordinating intrastate, 
interstate and regional water resources planning activities involving 
State, local and/or the Federal Government with the proposed water 
management planning program of the State to assure that all such 
activities are considered in program implementation.



Sec. 740.5  Review and approval of State applications and programs.

    (a) The Council shall review and approve each State application for 
financial assistance if it is determined that:
    (1) The State water management planning program meets the objectives 
of the Act;
    (2) The State application and the State water management planning 
program meet the requirements of this part; and
    (3) Progress on the previous grant period's work plan is 
satisfactory, based on the requirements set forth by the Council.
    (b) Based on the review of the application, the Council shall 
determine the amount of funds to be made available pursuant to 
Sec. 740.6 and shall notify the designated agency in each participating 
State of the grant award as soon as possible after funds are apportioned 
for Council use.
    (c) If an application is not approved by the Council, it shall be 
returned by registered mail with a full explanation of the reasons for 
that determination. The State shall then be allowed the opportunity to 
submit a revised application within 30 days after receipt by the State 
of such notification. Should the State determine that further review is 
required by the State clearinghouse under OMB Circular A-95, an 
additional 30 days will be allowed.
    (d) If the grant amount requested by a State differs from the grant 
amount offered by the Council, the Council will request the designated 
State agency to submit a revised budget and work plan with the 
acceptance of the grant offer.
    (e) The State, upon acceptance of the terms and conditions of the 
notice of grant award, as presented by the Council, will be granted 
financial assistance in the amount of the approved final budget.
    (f) The work plan for the State water management planning program 
may be revised at any time by submitting revisions to the work plan and 
budget to the Council for approval in connection with any proposed 
significant change (an addition or deletion of major activities 
specified in the approved work

[[Page 98]]

plan) with appropriate provision for A-95 State clearinghouse review. 
The Council will review the proposed revision and notify the State of 
its decision no later than 30 days from the date of receipt of the 
request.



Sec. 740.6  Financial assistance.

    (a) The Council shall provide financial assistance from funds 
available for each fiscal year to each State having an approved 
application pursuant to Sec. 740.5.
    (b) Within the provisions prescribed by paragraphs (c) and (d) of 
this section, the Council may grant up to 50 percent of the cost for a 
State program.
    (c) The funds appropriated pursuant to the Act for the fiscal year 
shall be allocated among the participating States as follows, except 
that under paragraphs (d) (2) through (4) of this section no State shall 
be granted a greater or lesser sum of funds which shall be based upon a 
procedure in which each of the factors of population, land area, and the 
reciprocal of per capital income, are adjusted such that:
    (1) Those States having observations two standard deviations below 
the mean of each respective factor are equated to the mean-minus-two 
standard deviations, and
    (2) Those States having observations two standard deviations above 
the mean of each respective factor are equated to the mean-plus-two 
standard deviations.
    (d) Financial assistance for the Program shall be allocated among 
the participating States from funds available for any fiscal year based 
on the following formula:
    (1) An equal share not to exceed $100,000, the total of which shares 
shall not exceed 10 percent of the funds available for any fiscal year;
    (2) One-third of the remaining balance of the funds after accounting 
for paragraph (d)(1) of this section in the ratio that the population of 
each State bears to the population of all States;
    (3) One-third of the remaining balance of the funds after accounting 
for paragraphs (d)(1) and (2) of this section in the ratio that the land 
area of each State bears to the land area of all the States;
    (4) One-third of the remaining balance of funds after accounting for 
paragraphs (d)(1), (2), and (3) of this section in the ratio that the 
reciprocal of all per capital income of a State bears to the sum of the 
reciprocals for all States; and
    (5) The remainder of the funds according to the need for water 
management planning in each State as expressed by the State and assessed 
by the Council. In assessing need for water management, the Council 
shall utilize established criteria, the proposed program, and 
information made available during program review.
    (e) Redistribution of grant funds may occur:
    (1) If a State fails to apply for a grant within the period 
specified in Sec. 740.3, or is unable to match the total allocation 
reserved under Sec. 740.6(d) for that State, that portion of the 
reserved allocation will be withdrawn by the Council;
    (2) If a State fails to obligate Federal funds within the grant 
period of the approved or amended grant agreement as prescribed in 
Sec. 740.7(c), such funds shall be returned to the Council not later 
than 30 days after submission of the Financial Statement for the grant 
period unless the Council, based on written request, grants an exception 
or extension to this time limitation;
    (3) Funds available under paragraph (e)(1) of this section shall be 
available for redistribution to those States requesting additional funds 
pursuant to Sec. 740.3(d)(7). These funds shall be distributed on the 
basis of proposals in the application, and the relationship of the 
State's original allocation to the original allocation of other States 
requesting redistribution funds; and
    (4) Funds available under paragraph (e)(2) of this section shall be 
added to funds available for distribution for the next fiscal year, if 
the appropriation legislation for the current year allows such action.



Sec. 740.7  Administration of financial assistance.

    (a) Grants under this part shall comply with the requirements of:
    (1) Office of Management and Budget (OMB) Circular A-102, Revised, 
(34 CFR

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Part 256), entitled ``Uniform Administrative Requirements for Grants-in-
Aid to State and Local Governments;''
    (2) Federal Management Circular (FMC) 74-4 (34 CFR Part 255), 
entitled ``Cost Principles Applicable to Grants and Contracts with State 
and Local Governments;''
    (3) OMB Circular A-73 (34 CFR Part 251), entitled ``Audit of Federal 
Operations and Programs;''
    (4) OMB Circular A-95, entitled ``Evaluation, Review and 
Coordination of Federal and Federally assisted Programs and Projects;''
    (5) Treasury Circular (TC) 1075, entitled ``Regulations Governing 
Withdrawals of Cash from the Treasury for Advances under Federal Grants 
and other Programs;''
    (6) TC 1082, entitled, ``Notification to States of Grants-in-Aid 
Information''; and
    (7) Other procedures which the Council may from time to time 
prescribe for the administration of financial assistance.
    (b) The planning process as required by these guidelines and 
assisted by WRC Title III program funds shall reflect the concepts of 
the Council's 1979 publication, A Unified National Program for 
Floodplain Management, and the concepts of floodplain and wetlands 
identification, avoidance and mitigation as described in the Council's 
Floodplain Management Guidelines (43 FR 6030). In the application for 
financial assistance, the State shall assure the Council that the 
following planning concepts have been or will be integrated into the 
planning process:
    (1) Determination of whether proposed activities would be located in 
floodplains or wetlands, or, even if located outside of them, would have 
the potential to affect floodplains or wetlands;
    (2) Avoidance of performing activities within floodplains or 
wetlands wherever there is a practicable alternative;
    (3) Where avoidance of floodplains cannot be achieved, minimization 
of adverse impacts and support of floodplain development, and 
preservation and restoration of natural and beneficial floodplain 
values; and
    (4) Where avoidance of wetlands cannot be achieved, minimization of 
adverse impacts and support of new construction in wetlands, and 
preservation and enhancement of natural and beneficial wetlands values.
    (c) Program funds must be obligated within the grant period unless 
the Council, based on written request, grants an exception or extension 
to this time limitation. The repeated occurrence of unobligated program 
funds at the end of the grant period will be considered in determining 
the need for assistance in subsequent years pursuant to 
Sec. 740.6(d)(5).
    (d) The procurement standards, practices, rules and policies of the 
State as customarily applied, if in accordance with Attachment O of OMB 
Circular A-102, shall govern for procurement costs incurred in an 
approved program.
    (e) For all matching funds the sources of a State's cost share shall 
have no bearing on whether or not such costs can be matched by Federal 
funds except that:
    (1) Other Federal funds or property cannot be used for matching 
purposes unless specifically permitted by Federal law;
    (2) Program funds shall not be used to match Federal funds under any 
other federally aided program;
    (3) Non-Federal funds used to match other federally aided programs 
shall not be used to match funds provided under the Act; and
    (4) Federal funds provided through this program, if duly matched 
through the requirements of this part, may be used as non-Federal 
contributions for Level B studies beginning in Fiscal Year 1981.
    (f) Any cost incurred for water management planning may be employed 
for matching a grant awarded under the Act except as specified in this 
section. Such expenditures must be reasonable, documentable, and 
directly applicable to the approved program.
    (g) Program funds may not be used for:
    (1) Items whose costs are not allowable under the provision of FMC 
74-4;
    (2) Contributions, dues or assessments to support headquarters 
offices of interstate commissions, compacts,

[[Page 100]]

councils, interagency committees, or other similar organizations;
    (3) Scholarly or scientific investigations for purposes other than 
addressing water management problems, needs, concerns or interests 
specifically identified and explained in the approved program as a 
priority consideration;
    (4) Construction, payment of subsidies, or purchase of land or 
easements;
    (5) Purchase of equipment with a unit cost of $1,500 or more without 
prior approval of the Council; and
    (6) Purchase of equipment with a unit cost of less than $1,500 when 
the cumulative cost of such equipment in any one grant period exceeds 1 
percent of the grant award, without prior approval of the Council.
    (h) Federal funds may not be used to substitute for State and local 
funds that would have been made available for water management planning 
programs in the absence of the grant funds provided under this part. 
Federal funds may be used to supplement and complement existing water 
management planning programs. It does not prevent drawing matching 
shares from individual programs or from existing agency appropriations, 
budgets, or resources so long as expenditures are not substituted by 
Federal funds for the purposes of the Act.
    (i) Payments shall be made in accordance with Attachment J of OMB 
Circular A-102 and TC 1075. Grant funds shall be requested only on an as 
needed basis.
    (j) Financial management procedures shall comply with Attachment G 
of OMB Circular A-102 and with TC 1075. The applicable Federal 
requirements shall apply to the State and to local governments or non-
governmental entities that receive funds as a sub-grantee for the 
purposes of the Act.



Sec. 740.8  Reporting.

    (a) The designated agency shall submit program status reports and 
financial statements in accordance with procedures established by the 
Council. Instructions and a description of the content of these reports 
and the appropriate forms will be provided by the Council and will be in 
accordance with Attachments H, I and K of OMB Circular A-102 and TC 
1075.
    (b) The annual program report shall be due 90 days after the end of 
the grant period, as specified in the grant agreement, and shall 
contain:
    (1) A summary description of the major accomplishments and results 
of the water management planning activities for the year, and an 
explanation of any work proposed in the work plan that has not been 
completed;
    (2) An updated activity milestone chart, for each major activity in 
the work plan, showing the completion dates of major tasks;
    (3) For those States implementing an evaluation system, a summary of 
the results of the evaluation efforts on the overall program 
effectiveness and key water management activities;
    (4) A list of publications, public information materials, and other 
documents prepared in whole or in part with program funds which must 
duly note the use of Council grant funds in the printing of these 
documents;
    (5) Other pertinent information, including any specific need for 
assistance; and
    (6) An annual Financial Status Report.
    (c) The Report of Federal Cash Transactions, as required under the 
provisions of Treasury Circular 1075, is due 30 days after the end of 
each quarter of the grant period, as specified in the grant agreement.



Sec. 740.9  Recordkeeping.

    Each State or other entity within a State receiving financial 
assistance under this part shall make and retain records required by the 
Council, including records which fully disclose the amount and 
disposition of financial assistance received; the cost of 
administration; the total cost of all activities for which assistance is 
given or used; and any data and information which the Council determines 
are necessary to protect the interests of the United States and to 
facilitate an effective financial audit and performance evaluation. The 
Council and the Comptroller General of the United States shall have 
access to any books, documents, records or receipts which the Council 
determines are relevant or pertinent,

[[Page 101]]

either directly or indirectly, to any financial assistance provided 
under this part. Such records shall be retained for a period of three 
years, which starts from the date of the submission of the annual 
financial status report for the grant period.



Sec. 740.10  Program review and assistance.

    (a) Each State's program will be reviewed annually by the Council to 
evaluate program management and accomplishments relative to the approved 
work plan. The Council shall:
    (1) Review progam information including the application, annual 
reports, and other relevant information; and
    (2) Make onsite visits as frequently as practicable to review the 
State program to:
    (i) Provide assistance in the administration of the program, and at 
the request of the State, specific technical assistance in water 
resources management;
    (ii) Determine whether Council policies, procedures or guidelines 
need revision to more effectively administer the grant; and
    (iii) Gather information on practical or innovative techniques, 
methodologies, or other relevant information on the program.
    (b) Based on the Council's annual review of each State program, the 
following may occur:
    (1) If the program conforms to the requirements of the Act, the 
State will be advised of its continued eligibility for a grant;
    (2) If it appears that the program does not comply with the 
requirements of the Act in either design or administration, the Council 
shall ascertain all the relevant facts. The State shall be notified 
immediately of the apparent inadequacies of the program with citation of 
specific requirements of the Act, this part, or other relevant 
instructions which apparently have not been met. The State shall be 
given timely opportunity to be heard through the filing of written 
statements and personal presentations in support of their position. If 
the Council is satisfied that sufficient adjustments have been made in 
the design and operation of the program, payments to the State will be 
continued; and
    (3) If the Council determines on the basis of all the facts that the 
program still does not meet the requirements of the Act, the Governor 
shall be notified of the decision and the reasons therefore, and that no 
further payments shall be made until the noted inadequacies are 
satisfactorily resolved.



Sec. 740.11  Federal/State coordination.

    The Council will coordinate the program under this part with similar 
or related programs of other Federal agencies in an effort to achieve 
consistency and compatibility in the administration of Federal programs.



Sec. 740.12  Amendments.

    The Council may amend all or portions of these guidelines in 
accordance with established procedures. If it does, it will:
    (a) Consult with appropriate advisory groups;
    (b) Publish such proposed rulemaking in the Federal Register; and
    (c) Simultaneously provide a copy of such proposed changes to each 
designated agency.



Sec. 740.13  Supplemental instructions.

    As deemed appropriate, the Council may amplify the guidelines in 
this part by means of supplemental instructions, and may clarify program 
or administrative requirements set forth in these guidelines by the 
means of policy bulletins.

[[Page 103]]



            CHAPTER VIII--SUSQUEHANNA RIVER BASIN COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
801             General policies............................         105
803             Review and approval of projects.............         111
804             Special regulations and standards...........         123
805             Hearings/enforcement actions................         124

[[Page 105]]



PART 801--GENERAL POLICIES--Table of Contents




Sec.
801.0  Introduction.
801.1  Standard definitions.
801.2  Coordination, cooperation, and intergovernmental relations.
801.3  Allocations, diversions, withdrawals, and release.
801.4  Project review.
801.5  Comprehensive plan.
801.6  Water supply.
801.7  Water quality.
801.8  Flood plain management and protection.
801.9  Watershed management.
801.10  Recreation.
801.11  Public values.
801.12  Electric power generation.
801.13  Proviso.

    Authority: Secs. 3.1, 3.5(1) and 15.2, Pub. L. 91-575 (84 Stat. 1509 
et seq.).

    Source: 38 FR 4662, Feb. 20, 1973, unless otherwise noted.



Sec. 801.0  Introduction.

    (a) The Governors of the States of New York, Pennsylvania, and 
Maryland, and a representative of the President of the United States are 
members of the Susquehanna River Basin Commission. The Commission is a 
regional governmental agency whose purpose is to effect comprehensive 
multiple purpose planning for the conservation, utilization, 
development, management, and control of the water and related natural 
resources of the basin, which includes part of New York, Pennsylvania, 
and Maryland.
    (b) The Susquehanna River Basin Compact provides broad authority for 
the Commission to carry out basinwide planning programs and projects, 
and to take independent action as it determines essential to fulfill its 
statutory regional governmental role.
    (c) The objectives of the Commission are to:
    (1) Develop cooperative and coordinated Federal, State, local, and 
private water and related natural resources planning within the basin,
    (2) Formulate, adopt, effectuate, and keep current a comprehensive 
plan and a water resources program for the immediate and long-range use 
and development of the water resources of the basin,
    (3) Provide for orderly collection and evaluation of data, and for 
the continuing promotion and conduct of appropriate research relating to 
water resources problems,
    (4) Establish priorities for planning, financing subject to 
applicable laws, development and use of projects and facilities 
essential to effectively meet identified water resource needs,
    (5) And to maintain these resources in a viable state.
    (d) The Commission shall employ a multiobjective approach 
recognizing national economy, regional development and environmental 
quality in planning for the use and development of the water resources 
of the basin.
    (e) It is the purpose of this document to set forth the objectives 
of the Commission and to present certain basic policies that (1) have 
basinwide application, (2) are specifically pertinent to the formulation 
of a comprehensive plan, (3) will serve as guidelines for all agencies 
or individuals with planning responsibilities for the development and 
use of the water resources of the basin, (4) form the basis for working 
relationship between the Commission and other agencies having related 
responsibilities in the basin. This statement will be amended and 
updated from time to time.



Sec. 801.1  Standard definitions.

    (a) Many terms that will be used in official Commission documents 
may have slightly different meanings to various groups. To avoid 
confusion and to increase the clarity of the meaning the Commission 
applies to frequently used terms standard definitions will be utilized.
    (b) The Commission will use the standard definitions set forth for 
the terms shown in section 1.2 of the Compact, \1\ and will add terms 
and appropriate definitions as deemed necessary.
---------------------------------------------------------------------------

    \1\ Filed as part of FR Doc. 72-17234, Oct. 7, 1972.
---------------------------------------------------------------------------



Sec. 801.2  Coordination, cooperation, and intergovernmental relations.

    (a) The interstate nature of the Susquehanna River Basin and the 
broad regional authority of the Commission require clear and effective 
working relationships with the States, Federal Government, and local and 
private sectors

[[Page 106]]

in all matters relating to the water resources of the basin.
    (1) The Federal Government will be encouraged and asked to 
participate in water resources projects and programs having national or 
broad regional significance. The Commission will act to encourage local 
initiative to solve water resources problems within a local and regional 
context, but when faced with obviously needed action that is not 
forthcoming from other sources will act, in accordance with the Compact, 
on its own.
    (2) The Compact provides authority for the Commission to serve in a 
regulatory capacity and also to act as a managing and operating agency. 
The Commission will exercise its regulatory authority mainly in 
interstate matters or where signatory authority is not being effectively 
exercised or where the signatory has little or no authority to act. 
Similarly, the Commission may manage and operate various facilities if 
it is determined that this is an area in which an important and 
necessary service can be rendered.
    (3) Should it become necessary for the Commission to undertake 
development, management and operation of projects, arrangements for 
repayment of all project costs and eventual operation and maintenance 
costs will be appropriately prorated among the signatories or otherwise 
financed in accordance with the Compact.
    (4) The Commission will utilize the functions, powers, and duties of 
the existing offices and agencies of government to the extent consistent 
with the Compact.
    (5) In its actions the Commission will maintain a high level of 
public visibility. Broad government, public, and private sector 
commentary on Commission proposals and findings will be invited, and to 
the extent possible be incorporated and reflected in decisions for 
finalization of plans, projects, and programs having significant effect 
on the water resources of the basin. A concerted effort will be made to 
keep the Commission and its activities readily available to government 
and public scrutiny, and responsive to their concerns.
    (b) The Commission shall exercise its regional jurisdiction in an 
effort to avoid and minimize conflicts and duplication of effort and 
shall:
    (1) Cooperate with and help coordinate Federal, State, local 
government, and private sector efforts in all matters relating to the 
planning, conservation, preservation, use, development, management and 
control of the water resources of the basin.
    (2) Develop administrative agreements, as needed, with appropriate 
agencies of the signatories and other agencies to facilitate achievement 
of the Commission's objectives and related responsibilities of other 
agencies by minimizing duplication of effort and maximizing the 
contributions the respective agencies are best able to make.
    (3) Build upon present water resources planning and related 
activities of the signatory parties, local government, other public 
bodies, and the private sector and fully consider their recommendations 
and suggestions.
    (4) Establish advisory committees as needed for specific assignments 
and seek meaningful liaison with sources of technical and scientific 
expertise.
    (5) Share with interested parties results of investigations, 
studies, tests, and research undertaken by the Commission in an 
appropriate manner and form.
    (6) Conduct its regular meetings announced in advance and open to 
the public.
    (7) Depend upon existing public and private agencies for the 
construction, operation, and maintenance of projects except when the 
project is necessary to further the comprehensive plan and the 
responsible agency does not act or when the Commission is asked to act 
by one or more signatories, one or more local governments, or other 
responsible entities.
    (8) Require that the planning of projects affecting the water 
resources of the basin by Federal, State, local agencies and private 
organizations be undertaken in coordination with the Commission and in 
accordance with the Compact.
    (9) Require that periodic reports of projects affecting water 
resources

[[Page 107]]

within the basin and listings of discharge permits granted, and similar 
activities undertaken by offices or agencies of the signatory parties, 
be submitted to the Commission.



Sec. 801.3  Allocations, diversions, withdrawals and release.

    (a) The extremes in availability of water in the basin means that 
water will not always be available when and where it is needed. One of 
the responsibilities of the Commission is to act upon requests for 
allocations, withdrawals, or diversions of water for in-basin or out-of-
basin use. Water emergencies may be expected to develop in portions of 
the basin due to drought conditions or other causes. The Commission will 
act promptly to effect alleviation of the condition to the extent 
posible.
    (b) The Commission will require evidence that proposed interbasin 
transfers of water will not jeopardize, impair or limit the efficient 
development and management of the Susquehanna River Basin's water 
resources, or any aspects of these resources for in-basin use, or have a 
significant unfavorable impact on the resources of the basin and the 
receiving waters of the Chesapeake Bay.
    (c) The Commission may, in making decisions on allocations, 
diversions, withdrawals, and releases, consider the following principles 
among others:
    (1) That allocations, diversions, or withdrawals of water be based 
on the common law principles of riparian rights which entitles 
landholders in any watershed to draw upon the natural stream flow in 
reasonable amounts and be entitled to the stream flow not unreasonably 
diminished in quality or quantity by upstream use or diversion of water; 
and on the maintenance of the historic seasional variations of the flows 
into Chesapeake Bay.
    (d) When the need arises for action on requests for allocations, 
diversions, or withdrawals of water from either surface or ground waters 
of the basin the Commission shall:
    (1) Allocate waters of the basin to and among the signatory States 
to the Compact as the need appears, and impose related conditions, 
obligations, and release requirements.
    (2) Determine if a proposed allocation, withdrawal or diversion is 
in conflict with or will significantly affect the comprehensive plan, 
and assure existing immediate and projected long term local and regional 
uses are protected.
    (3) Impose conditions, obligations and release requirements for dams 
and/or diversion structures to protect prior local interests, downstream 
interests, and environmental quality.
    (4) In the matter of drought, disasters or catastrophes, natural or 
manmade, which cause actual and immediate shortage of available and 
usable water supply, determine and delineate the area of shortage and by 
unanimous vote declare a state of water supply emergency therein, and 
impose direct controls on any and all allocations, diversions and uses 
of water to meet the emergency condition.
    (5) In water emergencies coordinate the efforts of Federal, State, 
local, and other persons and entities in dealing with the emergency.
    (6) Determine and delineate, after public hearing, areas within the 
basin wherein the demands upon supply made by water users have developed 
or threaten to develop to such a degree as to create a water shortage or 
impair or conflict with the comprehensive plan.
    (7) When areas in need of protection from overdemand of safe yield 
of the supply have been delineated, declare such areas protected from 
further depletion, with the consent of the member or members from the 
affected State or States.
    (8) Require that no person divert or withdraw from any protected 
area water for domestic, municipal, agricultural, or industrial uses in 
excess of such quantities as the Commission may prescribe by general 
regulation or pursuant to a permit granted heretofore under the laws of 
any of the signatory States.

[[Page 108]]



Sec. 801.4  Project review.

    (a) The Compact provides generally that no project affecting the 
water resources of the basin shall be undertaken by any person, 
governmental authority, or other entity prior to approval by the 
Commission.
    (b) In many instances, one or more of the signatory parties will 
exercise project review authority regarding proposed projects in the 
basin coming under the review of the Commission. Accordingly the 
Commission will direct its attention to reviewing the completeness and 
effectiveness of the review procedures of the signatories and will 
endeavor to minimize duplication of staff effort, and time and cost to 
the applicant.
    (c) The Commission will establish exempt categories in accordance 
with the section 3.10-3 of the Compact, and for projects determined not 
to have a substantial effect on the water resources of the basin. In 
dealing with Federal or federally licensed projects, the Commission will 
take the provisions of reservations (r) and (w) of United States Pub. L. 
91-575 (84 Stat. 1509) and provisions of the Compact into account.
    (d) It is expected that project review procedures will be modified 
following adoption of the comprehensive plan. In the meantime the 
Commission will:
    (1) Base its review and comments pertaining to proposed projects 
within the basin coming under the purview of the Commission, on review 
and comments of signatory parties. In general, the Commission review 
will seek to ascertain the completeness of procedures followed by the 
signatory parties in their review, and will refrain from specifically 
rechecking detailed evaluations. (Susquehanna River Basin Commission 
Resolution No. 72-5)
    (2) Require as it determines necessary, submission of pertinent 
project plans and documents for its independent review and approval. The 
purpose of this review will be to ascertain whether all relevant 
provisions of the Compact and actions taken pursuant thereto have been 
observed:
    (i) When the Commission has determined that a project may have 
significant effect on the water resources of the basin.
    (ii) When a proposed project does not fall under the review 
jurisdiction of any agency of the signatory parties.



Sec. 801.5  Comprehensive plan.

    (a) The Compact requires that the Commission formulate and adopt a 
comprehensive plan for the immediate and long-range development and use 
of the water resources of the basin.
    (1) The plan will include existing and proposed public and private 
programs, projects, and facilities which are required, in the judgment 
of the Commission, to meet present and future water resources needs of 
the basin. Consideration shall be given to the effect of the plan, or 
any part of the plan, on the receiving waters of the Chesapeake Bay. The 
Commission shall consult with interested public bodies and public 
utilities and fully consider the findings and recommendations of the 
signatory parties, their various subdivisions and interested groups. 
Prior to adoption of the plan the Commission shall conduct at least one 
public hearing in each signatory State.
    (2) The plan will reflect consideration, of the multiobjectives of 
national economy, regional development and environmental quality; and 
multipurpose use of projects.
    (3) Water quantity and water quality planning will be studied 
together and correlated to the extent feasible, with existing and 
proposed land uses. The development of a basinwide land use study to 
enable full consideration of basic and alternative proposals to meet 
water resources needs will be explored.
    (4) An important phase of the plan formulation process is a thorough 
review and evaluation of the Susquehanna River Basin Coordinating 
Committee Study report, pertinent plans and reports of the signatories, 
including water quality standards and other data available. The findings 
and recommendations presented in the Susquehanna River Basin 
Coordinating Committee Study report will be considered for incorporation 
in the Commission's plan to the extent they are feasible and compatible 
with the current and projected needs and interests.
    (5) Essentially the comprehensive plan will reflect the findings of 
an analysis of a mix of alternative futures

[[Page 109]]

for industrial, agricultural, residential, and recreational development 
in the basin.
    (6) The Commission will act diligently to promote Federal, State, 
local governmental, and private sector cooperation and coordination in 
the implementation of the adopted plan. It is expected that recommended 
development programs will be undertaken by the signatories, local 
governmental agencies, or private interests. If expeditious action by 
others is not forthcoming or is not possible the Commission will act in 
accordance with the Compact to implement programs, projects, and 
standards to the extent necessary to further the aims of the 
comprehensive plan.
    (b) The comprehensive plan shall provide for the immediate and long-
range use, development, conservation, preservation, and management of 
the water resources of the basin. The plan will be presented in a form 
and order as determined by the Commission and shall include, but not be 
limited to the following:
    (1) Statement of authority, purpose, objectives, and scope.
    (2) Description of the physical and human environment.
    (3) Inventory of the basin's water resources and existing 
developments and facilities.
    (4) Projection of immediate and long-range water resources needs of 
the basin.
    (5) Description of a general system of measures and programs, 
including water quality and other standards as determined necessary, and 
reasonable alternatives considered essential to and capable of 
satisfying water resources needs into the reasonably foreseeable future.
    (6) Criteria used for review and acceptance of projects within the 
plan.
    (7) Procedures for updating and modifying the plan.
    (8) Necessary appendices.



Sec. 801.6  Water supply.

    (a) The Susquehanna River Basin is rich in water resources. With 
proper planning and management, and with adequate public and private 
investment in treatment, storage, and distribution facilities, the high 
potential of the basin to provide water of suitable quality for a wide 
array of public and private purposes into the foreseeable future should 
be possible.
    (b) The Commission may regulate the withdrawal of waters of the 
basin not regulated by the signatory parties for domestic, municipal, 
industrial, and agricultural uses if regulation is considered essential 
to further the aims set forth in the comprehensive plan.
    (c) The Commission shall study the basin's water supply needs, the 
potential surface and ground water resources, and the interrelationships 
to meet these needs through existing and new facilities and projects. 
Efficient use and management of existing facilities with emphasis on the 
full utilization of known technology will be explored in meeting water 
supply needs for domestic, municipal, agricultural, and industrial water 
supply before new programs or projects are approved.



Sec. 801.7  Water quality.

    (a) The signatory States have the primary responsibility in the 
basin for water quality management and control. However, protection of 
the water resources of the basin from pollution, and actions by the 
signatory parties to achieve abatement and control of pollution are 
important to the Commission.
    (b) The signatory parties have adopted water quality standards for 
the intra and interstate waters of the basin. Initially these standards 
will serve as the basis for the Commission's water quality program in 
the comprehensive plan.
    (c) The Commission's role in water quality management and control 
essentially will be one of coordination to ensure water quality 
standards are adequate to protect broad public water resources 
interests, and that uniform policies and enforcement are affected by the 
signatories.
    (d) The Commission shall:
    (1) Encourage and coordinate efforts of the signatory parties to 
prevent, reduce, control, and eliminate water pollution and to maintain 
water quality in accordance with established standards.
    (2) Promote government and private sector implementation of maximum

[[Page 110]]

practical use of waste utilization and treatment technology.
    (3) Promote and encourage State and local governments and industry 
to plan for regional waste water treatment and management.
    (4) In cooperation with appropriate agencies of the signatory 
parties, make periodic inspections to ascertain the state of compliance 
with appropriate water quality standards, and as needed establish and 
operate water quality monitoring stations.

[38 FR 4662, Feb. 20, 1973, as amended at 38 FR 6386, Mar. 9, 1973]



Sec. 801.8  Flood plain management and protection.

    (a) Periodic inundation of lands along waterways has not discouraged 
development of flood hazards areas. Major floods cause loss of life, 
extensive damages, and other conditions not in the public interest. A 
balanced flood plain management and protection program is needed to 
reduce the flood hazard to a minimum.
    (b) The Commission may regulate the use of flood prone lands with 
approval of the appropriate signatory party, to safeguard public health, 
welfare, safety and property, and to sustain economic development.
    (c) To foster sound flood plain controls, as an essential part of 
water resources management, the Commission shall:
    (1) Encourage and coordinate the efforts of the signatory parties to 
control modification of the Susquehanna River and its tributaries by 
encroachment.
    (2) Plan and promote implementation of projects and programs of a 
structural and nonstructural nature for the protection of flood plains 
subject to frequent flooding.
    (3) Assist in the study and classification of flood prone lands to 
ascertain the relative risk of flooding, and establish standards for 
flood plain management.
    (4) Promote the use of flood insurance by helping localities qualify 
for the national program.
    (5) Assist in the development of a modern flood forecasting and 
warning system.



Sec. 801.9  Watershed management.

    (a) The character, extent, and quality of water resources of a given 
watershed are strongly affected by the land use practices within that 
watershed. Accordingly the Commission will maintain close liaison with 
Federal, State, and local highway, mining, soil, forest, fish and 
wildlife, and recreation agencies and with government agencies dealing 
with urban and residential development programs.
    (b) The Commission shall:
    (1) Promote sound practices of watershed management including soil 
and water conservation measures, land restoration and rehabilitation, 
erosion control, forest management, improvement of fish and wildlife 
habitat, and land use in highway, urban, and residential development as 
related to water resources.



Sec. 801.10  Recreation.

    (a) The use of surface water resources of the basin for recreation 
purposes is extensive. Swimming, fishing, boating, and other water 
oriented activities have regional and local economic benefit as well as 
recreational benefit.
    (b) The Commission shall cooperate with public and private agencies 
in the planning and development of water-related recreation and fish and 
wildlife programs and projects within the basin and shall:
    (1) Promote public access to and recreational use of existing and 
future public water areas.
    (2) Promote recreational use of public water supply reservoirs and 
lakes where adequate treatment of water is provided, and/or where 
recreational uses are compatible with primary project purposes.
    (3) Include recreation as a purpose where feasible, in multipurpose 
water use planning of reservoirs and other water bodies.



Sec. 801.11  Public values.

    (a) The basin has many points of archeological and historic 
interest, and is well endowed with vistas of aesthetic significance.
    (b) The Commission fully recognizes that the value of these areas 
cannot be measured simply in economic terms and will strive to preserve 
and promote

[[Page 111]]

them for the enjoyment and enrichment of present and future generations.
    (c) The Commission shall:
    (1) Seek the advice and assistance of appropriate societies and 
governmental agencies in the identification of archeological, historic, 
and scenic areas and unique lands in any planning or development 
affecting these attributes of the basin.



Sec. 801.12  Electric power generation.

    (a) Significant uses are presently being made of the waters of the 
basin for the generation of electric power at hydro, pumped storage, and 
thermoelectric generating stations. Increased demands for electric power 
throughout the East Coast can be expected to result in proposals for the 
development of additional electric power generating stations located 
either in the basin or nearby its borders.
    (b) There appears to be limited site potential in the basin for 
additional hydroelectric generation, and considerable potential for 
additional pumped storage and thermoelectric generation. The direct and 
indirect effects of existing and proposed electric generation projects 
will be considered by the Commission. Items of concern will include 
consumptive uses of water, alteration of natural stream regimen, effects 
on water quality, and on the other uses of the streams affected.
    (c) The Commission, in cooperation with appropriate agencies of the 
signatory parties, and with other public and private agencies shall:
    (1) Conduct a thorough review of applications to relicense existing 
electric power generating projects and facilities, and applications to 
amend existing licenses to determine if the proposal is in accord with 
the comprehensive plan.
    (2) Require that the proposed siting and location in the basin of 
any type of electric generating facility or any facility located outside 
the basin having an effect on the waters of the basin, shall be planned 
in direct consultation with the Commission to enable advance 
consideration of the possible effects of such installation on the water 
resources of the basin.



Sec. 801.13  Proviso.

    (a) This part is promulgated pursuant to sections 3.1, 3.5(1), and 
15.2 of the Compact and shall be construed and applied subject to all of 
the terms and conditions of the Compact and of the provisions of Pub. L. 
91-575, 84 Stat. 1509: Provided, Any provision in this statement of 
general policies that is inconsistent with the Compact itself shall be 
null and void.



PART 803--REVIEW AND APPROVAL OF PROJECTS--Table of Contents




                      Subpart A--General Provisions

Sec.
803.1  Introduction.
803.2  Purposes.
803.3  Definitions.
803.4  Projects requiring review and approval.
803.5  Projects which may require review and approval.
803.6  Concurrent project review by signatory parties.
803.7  Waiver/modification.

                    Subpart B--Application Procedure

803.20  Purpose of this subpart.
803.21  Preliminary consultations.
803.22  Request for determination.
803.23  Submission of application.
803.24  Contents of application.
803.25  Notice of application.
803.26  Staff review/action/recommendations.
803.27  Emergencies.
803.28  Application/monitoring fees.

               Subpart C--Terms and Conditions of Approval

803.30  Duration of approvals.
803.31  Transferability of approvals.
803.32  Reopening/modification.
803.33  Interest on fees.

     Subpart D--Standards for Review and Approval/Special Standards

803.40  Purpose of this subpart.
803.41  General standards.
803.42  Standards for consumptive uses of water.
803.43  Standards for ground-water withdrawals.
803.44  Standards for surface-water withdrawals.

    Authority: Secs. 3.4, 3.8, 3.10 and 15.2, Pub. L. 91-575, 84 Stat. 
1509 et seq.

    Source: 60 FR 31394, June 15, 1995, unless otherwise noted.

[[Page 112]]



                      Subpart A--General Provisions



Sec. 803.1  Introduction.

    (a) This part establishes the scope and procedures for review and 
approval of projects under Section 3.10 of the Susquehanna River Basin 
Compact, Public Law 91-575, 84 Stat. 1509 et seq., (the compact) and 
establishes special standards under Section 3.4 (2) of the compact 
governing water withdrawals and the consumptive use of water. The 
special standards established pursuant to Section 3.4 (2) shall be 
applicable to all water withdrawals and consumptive uses in accordance 
with the terms of those standards, irrespective of whether such 
withdrawals and uses are also subject to project review under Section 
3.10.
    (b) Except for activities relating to site evaluation, no person or 
governmental entity shall begin construction or operation of any project 
subject to commission review and approval until such project is approved 
by the commission.
    (c) When projects subject to commission review and approval are 
sponsored by governmental entities, the commission shall submit 
recommendations and findings to the sponsoring agency which shall be 
included in any report submitted by such agency to its respective 
legislative body or to any committee thereof in connection with any 
request for authorization or appropriation therefor. The commission 
review will ascertain the project's compatibility with the objectives, 
goals, guidelines and criteria set forth in the comprehensive plan. If 
determined compatible, the said project will also be incorporated into 
the comprehensive plan if so required by the compact. This part, and 
every other part of 18 CFR chapter VIII, shall also be incorporated into 
and made a part of the comprehensive plan.
    (d) If any portion of this part, or any other part of 18 CFR chapter 
VIII, shall, for any reason, be declared invalid by a court of competent 
jurisdiction, all remaining provisions shall remain in full force and 
effect.
    (e) Except as otherwise stated in this part this part shall be 
effective on May 11, 1995; provided, however, that nothing in this 
paragraph shall be deemed to exempt:
    (1) Any project which has been or could have been subject to review 
and approval by the commission under the authority set forth in Section 
3.10 of the compact or any prior regulations of the commission; or
    (2) Any withdrawal or consumptive use which has been or could have 
been subject to special standards adopted pursuant to Section 3.4 (2) of 
the compact.
    (f) When any period of time is referred to in this part, such period 
in all cases shall be so computed as to exclude the first and include 
the last day of such period. Whenever the last day of any such period 
shall fall on Saturday or Sunday, or on any day made a legal holiday by 
the law of the United States, such day shall be omitted from the 
computation.
    (g) Any forms or documents referenced in this part may be obtained 
from the commission at 1721 N. Front Street, Harrisburg, PA 17102-2391.



Sec. 803.2  Purposes.

    (a) The general purposes of this part are to advance the purposes of 
the compact and include but are not limited to:
    (1) The promotion of interstate comity;
    (2) The conservation, utilization, development, management, and 
control of water resources under comprehensive, multiple purpose 
planning; and
    (3) The direction, supervision and coordination of water resources 
efforts and programs of federal, state and local governments and of 
private enterprise.
    (b) In addition, Secs. 803.42, 803.43 and 803.44 contain the 
following specific purposes: Protection of public health, safety and 
welfare; stream quality control; economic development; protection of 
fisheries and aquatic habitat; recreation; dilution and abatement of 
pollution; the regulation of flows and supplies of surface and ground 
waters; the avoidance of conflicts among water users; the prevention of 
undue salinity; and protection of the Chesapeake Bay.
    (c) The objective of all interpretation and construction of this 
part is to ascertain and effectuate the purposes and the intention of 
the commission set out in paragraph (b) of this section.

[[Page 113]]



Sec. 803.3  Definitions.

    For purposes of this part, the words listed in this section are 
defined as follows:
    Agricultural water use. A water use associated primarily with the 
raising of food or forage crops, trees, flowers, shrubs, turf, 
aquaculture and livestock.
    Application. A request for action by the commission in written form 
including without limitation thereto a letter, referral by any agency of 
a signatory party, or an official form prescribed by the commission.
    Basin. The Susquehanna River basin.
    Commission. The Susquehanna River Basin Commission, a body politic 
created under Article 2, Section 2.1 of the compact.
    Compensation. Water utilized or provided from storage as makeup for 
a consumptive use.
    Comprehensive plan. The ``Comprehensive Plan for Management and 
Development of the Water Resources of the Susquehanna River Basin'' 
prepared and adopted by the commission pursuant to Article 3, Section 
3.3 of the compact.
    Construction. Clearing or excavation of the site or installation of 
any portion of the project on the site.
    Consumptive use. Consumptive use is the loss of water from a ground-
water or surface water source through a manmade conveyance system 
(including such water that is purveyed through a public water supply 
system), due to transpiration by vegetation, incorporation into products 
during their manufacture, evaporation, diversion from the Susquehanna 
River basin, or any other process by which the water withdrawn is not 
returned to the waters of the basin undiminished in quantity. Deep well 
injection shall not be considered a return to the waters of the basin.
    Dedicated augmentation. Release from an upstream storage facility 
which is required for any other instream or withdrawal use.
    Deep well injection. Injection of waste or wastewater substantially 
below aquifers containing fresh water.
    Diversion. The transfer of water into or from the basin.
    Executive Director. The chief executive officer of the commission 
appointed pursuant to Article 15, Section 15.5 of the compact.
    Facility. Any real or personal property, within or without the 
basin, and improvements thereof or thereon, and any and all rights of 
way, water, water rights, plants, structures, machinery, and equipment 
acquired, constructed, operated, or maintained for the beneficial use of 
water resources or related land uses or otherwise including, without 
limiting the generality of the foregoing, any and all things and 
appurtenances necessary, useful, or convenient for the control, 
collection, storage, withdrawal, diversion, release, treatment, 
transmission, sale, or exchange of water; or for navigation thereon, or 
the development and use of hydroelectric energy and power, and public 
recreational facilities; of the propagation of fish and wildlife; or to 
conserve and protect the water resources of the basin or any existing or 
future water supply source, or to facilitate any other uses of any of 
them. For purposes of this part and every other part contained in this 
chapter, a facility shall be considered a project (see definition of 
project in this section).
    Governmental entity. The federal government, the signatory states, 
their political subdivisions, public corporations, public authorities 
and special purpose districts.
    Ground-water source. (1) Pumped wells or well fields;
    (2) Flowing wells;
    (3) Pumped quarries, pits, and underground mines having no 
significant surface water inflow (significant meaning that any surface 
water inflow is greater than the withdrawal); or
    (4) A spring in which the water level is sufficiently lowered by 
pumping to eliminate the surface flow. All other springs will be 
considered to be surface water.
    Person. An individual, corporation, partnership, unincorporated 
association, and the like and shall have no gender and the singular 
shall include the plural.
    Pre-compact use. The maximum average quantity or volume of water 
consumptively used over any consecutive 30 day period prior to January 
23, 1971 expressed in ``gallons per day'' (gpd).

[[Page 114]]

    Project. Any work, service, or activity which is separately planned, 
financed, or identified by the Commission, or any separate facility 
undertaken or to be undertaken by the Commission or otherwise within a 
specified area, for the conservation, utilization, control, development, 
or management of water resources which can be established and utilized 
independently or as an addition to an existing facility and can be 
considered as a separate entity for purposes of evaluation.
    Signatory party. The States of Maryland and New York, the 
Commonwealth of Pennsylvania, and the United States of America.
    Signatory state. The States of Maryland and New York, the 
Commonwealth of Pennsylvania.
    Sponsor. Any person or governmental entity proposing to undertake a 
project. The singular shall include the plural.
    Surface water source. Any river, perennial stream, natural lake or 
pond, spring, wetland or other body of surface water situated in the 
basin.
    Susquehanna River basin. The area of drainage of the Susquehanna 
River and its tributaries into the Chesapeake Bay to the southern edge 
of the former Pennsylvania Railroad Bridge between Havre de Grace and 
Perryville, Maryland.
    Water(s). Surface and ground water(s) contained within the 
Susquehanna River basin either before or after withdrawal.
    Withdrawal. A taking or removal of water from any source within the 
basin for use within the basin.

[60 FR 31394, June 15, 1995; 63 FR 32124, June 12, 1998]



Sec. 803.4  Projects requiring review and approval.

    (a) The following projects are subject to review and approval by the 
commission and require an application to be submitted to the commission 
in accordance with the procedures outlined in Sec. 803.23:
    (1) Projects on or crossing the boundary between two signatory 
states;
    (2) Projects involving the diversion of water;
    (3) Projects resulting in a consumptive use of water exceeding an 
average of 20,000 gallons per day (gpd) for any consecutive thirty-day 
period or such other amounts as stipulated in Sec. 803.42;
    (4) Projects withdrawing in excess of an average of 100,000 gpd for 
any consecutive thirty-day period from a ground-water or surface water 
source or such other amounts as stipulated in Secs. 803.43 and 803.44; 
and
    (5) Projects which have been included by the commission in its 
comprehensive plan.
    (b) Sponsors of projects who feel that their projects are likely to 
be classified as requiring the commission's approval may request that 
the executive director waive the ``request for determination'' procedure 
and may thereafter proceed directly to the filing of an application for 
approval.



Sec. 803.5  Projects which may require review and approval.

    The following projects, if not already covered under Sec. 803.4, may 
be subject to commission review and approval and require, in accordance 
with the procedures outlined in Sec. 803.22, a ``request for 
determination'' to be submitted to the executive director:
    (a) Projects which may change interstate water quality standards or 
criteria.
    (b) Projects within a signatory state that have the potential to 
affect waters within another signatory state. This includes but is not 
limited to projects which have the potential to alter the physical, 
biological, chemical or hydrological characteristics of water and 
related natural resources of interstate streams designated by the 
commission under separate resolution.
    (c) Projects which may have a significant effect upon the 
comprehensive plan.
    (d) Projects not included in paragraphs (a) through (c) of this 
section, but which could have an adverse, adverse cumulative, or 
interstate effect on the water resources of the basin; provided that the 
project sponsor is notified in writing by the executive director that it 
shall submit a ``request for determination''.

[[Page 115]]



Sec. 803.6  Concurrent project review by signatory parties.

    (a) The commission recognizes that agencies of the signatory parties 
will exercise their review authority and evaluate many proposed projects 
in the basin. The commission will adopt procedures to assure 
compatibility between signatory review and commission review.
    (b) To avoid duplication of work and to cooperate with other 
government agencies, the commission may develop agreements of 
understanding, in accordance with the procedures outlined in this part, 
with appropriate agencies of the signatory parties regarding joint 
review of projects. These agreements may provide for joint efforts by 
staff, delegation of authority by an agency or the commission, or any 
other matter to support cooperative review activities. Permits issued by 
a signatory agency shall be considered commission approved if issued 
pursuant to an agreement of understanding with the commission 
specifically providing therefor.



Sec. 803.7  Waiver/modification.

    The commission may, in its discretion, waive or modify the 
requirements of this part if the essential purposes set forth in 
Sec. 803.2 continue to be served.



                    Subpart B--Application Procedure



Sec. 803.20  Purpose of this subpart.

    The purpose of this subpart is to set forth procedures governing 
applications required by Secs. 803.4 and 803.5.



Sec. 803.21  Preliminary consultations.

    (a) Any sponsor of a proposed project that is or may be subject to 
the commission's review jurisdiction under Sec. 803.4 or Sec. 803.5 is 
encouraged, prior to making application for commission review, to 
request a preliminary consultation with the commission staff for an 
informal discussion of preliminary plans for the proposed project. To 
facilitate preliminary consultations, it is suggested that the sponsor 
provide a general description of the proposed project, a map showing its 
location and, to the extent available, data concerning dimensions of any 
proposed structures and the environmental impacts.
    (b) Preliminary consultations shall be optional with the project 
sponsor and shall not relieve the sponsor from complying with the 
requirements of the compact or with this part.



Sec. 803.22  Request for determination.

    (a) Sponsors of projects which may require review and approval, as 
described in Sec. 803.5, shall submit a ``request for determination'' to 
the executive director with such accompanying information and data as 
the executive director shall prescribe.
    (b) If a project sponsor is uncertain whether a ``request for 
determination'' should be filed with the commission, the sponsor may ask 
for and, within thirty days after submission of information in such form 
and manner as will allow the executive director to make a decision, 
receive from the executive director a letter stating whether a ``request 
for determination'' should be filed. The executive director may also 
direct a project sponsor to submit a ``request for determination.''
    (c) Within thirty days of the receipt of such ``request for 
determination,'' the executive director shall determine whether the said 
project must be reviewed and approved by the commission. In making such 
determination, the executive director shall be guided primarily by his/
her findings as to the following factors:
    (1) Whether the proposed project will have a significant interstate 
effect on water supply, stream flows, aquifers, water quality, flooding, 
sensitive land areas, aquatic or terrestrial forms of plant or animal 
life, historical or cultural resources, or any other water-related 
resource.
    (2) Whether the proposed project will have a significant impact upon 
the goals, objectives, guidelines, plans, or projects included in the 
comprehensive plan.
    (3) Whether the proposed project may have an adverse or adverse 
cumulative effect on the water resources of the basin.
    (d) The executive director shall notify the sponsor of the project, 
the agency of the signatory party, if any, reviewing the project, the 
governing

[[Page 116]]

body of each municipality and the planning agency of each county in 
which the project is located of his/her initial determination under this 
section. Notice to the sponsor shall be by certified mail, and to all 
other interested parties by regular, first class mail. At a cost to be 
assessed to the project sponsor, the executive director shall also 
publish in a newspaper of general circulation in that municipality, at 
least once, a notice of such determination. If no objection is made to 
the executive director's initial determination, it shall become final 
ten days after publication as set forth in this paragraph.
    (e) Any interested party objecting to the determination may, within 
ten days of the newspaper publication, object to such determination and 
appeal to the executive director by letter for reconsideration. 
Following such reconsideration, if requested, the executive director 
shall serve notice upon the agency of the signatory party, the applicant 
and each such objector of his/her determination. Any such party may 
appeal such final determination to the commission by notice in writing 
served upon the executive director within 14 days after the service of 
the executive director's decision upon reconsideration. The commission 
will determine such appeal at a regular meeting thereafter.



Sec. 803.23  Submission of application.

    (a) Sponsors of projects requiring the review and approval of the 
commission under Sec. 803.4, or determined to require the approval of 
the commission under Sec. 803.22, shall, prior to the time the project 
is undertaken, submit an application to the commission. The application 
shall be submitted to the commission at its headquarters, 1721 N. Front 
Street, Harrisburg, Pennsylvania 17102-2391, and shall contain the 
information prescribed in Sec. 803.24.
    (b) An application shall not be deemed to be pending before the 
commission until such time as the information required under Sec. 803.24 
has been provided and any applicable fee has been paid.
    (c) As determined from applications or otherwise, the commission 
shall review and either approve, approve with conditions or 
modifications, or disapprove such projects.



Sec. 803.24  Contents of application.

    (a) Applications shall be submitted on forms prescribed by the 
commission.
    (b) If no forms are prescribed by the commission for a particular 
type of project, the sponsor shall submit an application addressing the 
following items applicable to the project:
    (1) Identification of sponsor and name of person authorized to speak 
for the sponsor.
    (2) Description of project and site in terms of:
    (i) Water use and availability.
    (ii) Engineering feasibility.
    (iii) Ability of sponsor to fund the project or action.
    (iv) Project location.
    (v) Project purpose.
    (vi) Identification and description of reasonable alternatives, the 
extent of their economic and technical investigation, and an assessment 
of their potential environmental impact. In the case of a proposed 
diversion, the sponsor should include information:
    (A) Detailing the efforts that have been made to develop its own in-
basin sources of water; and
    (B) Demonstrating that the proposed diversion will not have 
substantial adverse effects on the ability of the Susquehanna River 
basin to meet its own water needs.
    (vii) Supporting studies, reports and other information upon which 
assumptions and assertions have been based.
    (viii) Compatibility of proposed project with existing and 
anticipated uses.
    (ix) Plans for avoiding or compensating for consumptive use during 
low flow periods.
    (x) Anticipated impact of the proposed project on:
    (A) Flood damage potential considering the location of the project 
with respect to the flood plain and flood hazard zones;
    (B) Surface water characteristics (quality, quantity, flow regimen, 
other hydrologic characteristics);
    (C) Recreation potential;
    (D) Fish and wildlife (habitat quality, kind and number of species);

[[Page 117]]

    (E) Natural environment uses (scenic vistas, natural and manmade 
travel corridors, wild and wilderness areas, wild, scenic and recreation 
rivers);
    (F) Site development considerations (geology, topography, soil 
characteristics, adjoining and nearby land uses, adequacy of site 
facilities); and
    (G) Historical, cultural and archaeological impacts.
    (3) Governmental considerations:
    (i) Need for governmental services or finances.
    (ii) Commitment of government to provide services or finances.
    (iii) Status of application with other governmental regulatory 
bodies.
    (4) Project estimated completion date and estimated construction 
schedule.
    (c) A report about the project prepared for any other purpose, or an 
application for approval prepared for submission to a signatory party, 
may be accepted by the commission provided the said report or 
application addresses the applicable items listed in paragraph (b) of 
this section.



Sec. 803.25  Notice of application.

    (a) The project sponsor shall, within ten days of the submission of 
an application to the commission, notify area and regional news media, 
the municipality(ies) in which the project is situated, the county 
planning agency of the county(ies) in which the project is situated, and 
contiguous property owners that an application has been submitted to the 
commission. The commission shall compile a list of additional interested 
parties who comment on the application, request a hearing or make 
inquiries concerning the application. The project sponsor shall also 
publish at least once in a newspaper of general circulation in that 
municipality a notice of the submission of the application which 
contains a sufficient description of the project, its purpose and its 
location. Both the notification and the notice shall contain the address 
and phone number of the commission.
    (b) The project sponsor shall provide the commission with a copy of 
the return receipt for the required municipal notification and a proof 
of publication for the required newspaper notice. The project sponsor 
shall also provide certification on a form provided by the commission 
that it has made such other notifications as required under paragraph 
(a) of this section. Until these items are provided to the commission, 
processing of the application will not proceed.



Sec. 803.26  Staff review/action/recommendations.

    (a) The commission's staff shall review the application, and if 
necessary, request the sponsor to provide any additional information 
that is deemed pertinent for proper evaluation of the project. The staff 
review shall include:
    (1) Determination of completeness of the application. An application 
deemed incomplete will not be processed.
    (2) Identification of the issues pertinent to commission review.
    (3) Assessment of the project's compatibility with the compact, 
comprehensive plan, and with the other requirements of this part.
    (4) Consultation with the project sponsor if requested or deemed 
necessary.
    (5) Determination of the appropriate application fee in accordance 
with the commission's project review fee schedule and the transmission 
of a billing to the project sponsor for that fee. Applications will not 
be presented to the commission for review and action until such 
application fee has been paid.
    (6) Formal docketing of the project and, within 90 days of receipt 
of a complete application, presentation to the commission along with the 
recommendations of the staff for disposition of the application. The 
executive director may, for good cause, extend this review period for up 
to an additional 60 days. Any further extension must be approved by the 
commission.
    (b) If the project sponsor fails to respond to the commission's 
request for additional information, the commission may notify the 
project sponsor that the application process has been terminated. To 
reactivate the closed file, the project sponsor shall reapply and may be 
required to submit new or updated evaluations.

[[Page 118]]



Sec. 803.27  Emergencies.

    In the event of an emergency requiring immediate action to protect 
the public health, safety and welfare or to avoid substantial and 
irreparable injury to any person, property, or natural resources and the 
circumstances do not permit a review and determination in the regular 
course of the regulations in this part, the executive director, with the 
concurrence of the chairperson of the commission and the member from the 
affected signatory state, may issue an emergency certificate authorizing 
a project sponsor to take such action as the executive director may deem 
necessary and proper in the circumstances, pending review and 
determination by the commission as otherwise required by this part.



Sec. 803.28  Application/monitoring fees.

    The commission may, by separate resolution, establish and modify 
fees for the submission and processing of applications and for the 
monitoring of project compliance with this part.



               Subpart C--Terms and Conditions of Approval



Sec. 803.30  Duration of approvals.

    (a) Approvals issued under this part shall have a duration equal to 
the term of any accompanying signatory license or permit regulating the 
same subject matter. If there is no such accompanying license or permit 
or if no term is specified in such accompanying license or permit, the 
duration of a commission approval issued under this part shall be 25 
years. The commission, upon its own motion or that of a project sponsor, 
may modify this duration in consideration of such factors as the time 
needed to amortize a project investment, the time needed to secure 
project financing, the potential risks of interference with an existing 
project, and other equitable factors. Unless there is an accompanying 
signatory license or permit regulating the same subject matter and 
specifying a duration, the 25 year duration for projects previously 
approved by the commission under this part shall commence five years 
from the date on which such projects were initially approved.
    (b) For projects that have been approved by the commission but not 
implemented, approval by the commission under this part shall expire 
three years from the date of commission action. Likewise, if the use of 
a project is discontinued for such a period of time and under such 
circumstances that an abandonment of the project may reasonably be 
inferred, the commission may rescind a prior approval for such abandoned 
project. In either case, an approval may be extended or renewed by the 
commission upon request.
    (c) The sponsors of projects previously approved by the commission 
should apply for renewal of their approvals no later than six months 
prior to the expiration of their previous approval. Such applications 
for renewal shall be reviewed under the same procedures and standards as 
for newly proposed projects.



Sec. 803.31  Transferability of approvals.

    Approvals by the commission are transferable to new owners of 
projects, provided that the transferors or the transferees notify the 
commission of the transfer either before or within 60 days after the 
date of the transfer and that the new owners, within 30 days of being 
requested to do so by the commission, submit in writing their intention 
to comply with all conditions of the project's docket approval and 
assume all other associated obligations. The commission may waive or 
extend any of these deadline periods for good cause.



Sec. 803.32  Reopening/modification.

    Once approved, the commission, upon its own motion, or upon 
application of the project sponsor or any interested party, may at any 
time reopen any project docket and make additional orders that may be 
necessary to mitigate or avoid adverse impacts or to otherwise protect 
the public health, safety, and welfare or natural resources. Whenever an 
application for reopening is filed by an interested party, the burden 
shall be upon that interested party to show, by a preponderance of the 
evidence, that a substantial adverse impact or a threat to the public 
health, safety or welfare exists that warrants reopening of the docket. 
Before such

[[Page 119]]

application may be submitted to the commission for action, the executive 
director shall first determine that an interested party has made out a 
prima faci case favoring the reopening of the docket. The executive 
director shall inform the commission of any negative finding in this 
regard so that the commission is afforded the opportunity to over-rule 
his/her decision.



Sec. 803.33  Interest on fees.

    The commission may, by resolution, establish interest to be paid on 
all overdue or outstanding fees of any nature that are payable to the 
commission.



     Subpart D--Standards for Review and Approval/Special Standards



Sec. 803.40  Purpose of this subpart.

    The purpose of this subpart is to set forth standards that shall be 
used by the commission to evaluate proposed projects pursuant to 
Secs. 803.4 and 803.5, and to establish special standards applicable to 
certain water withdrawals and consumptive uses irrespective of whether 
such withdrawals and consumptive uses are subject to project review 
pursuant to Section 3.10 of the compact. General standards applying to 
all projects and special standards applying to certain types of projects 
are set forth in this subpart. This subpart does not identify all the 
aspects of a proposed project that will be evaluated, nor should it be 
construed as a self-imposed limitation upon the commission's authority 
and scope of review. The special standards established pursuant to 
Section 3.4 (2) of the compact shall be applicable to all water 
withdrawals and consumptive uses in accordance with the terms of those 
standards, irrespective of whether such withdrawals and uses are also 
subject to project review under Section 3.10 of the compact.



Sec. 803.41  General standards.

    (a) A project shall not be detrimental to the proper conservation, 
development, management, or control of the water resources of the basin.
    (b) The commission may modify and approve as modified, or may 
disapprove, a project if it determines that the project is not in the 
best interest of the conservation, development, management, or control 
of the basin's water resources, or is in conflict with the comprehensive 
plan.



Sec. 803.42  Standards for consumptive uses of water.

    (a) Requirement. (1) Compensation shall be required for consumptive 
uses of water during periods of low flow. Compensation is required 
during periods of low flow for the purposes set forth in Sec. 803.2.
    (i) Surface water source. Compensation in an amount equal to the 
project's total consumptive use shall be required when the streamflow at 
the point of taking equals or is anticipated to equal the low flow 
criterion which is the 7-day 10-year low flow plus the project's total 
consumptive use and dedicated augmentation. The commission reserves the 
right to apply a higher low flow criterion for a particular stream reach 
when it finds, as the result of evidence presented at a public hearing 
that it is needed to serve the purposes outlined in paragraph (b)(1) of 
this section.
    (ii) Ground-water source. Compensation for the project's consumptive 
use of ground water shall be required when the stream flow is less than 
the applicable low flow criterion. For the purposes of implementing this 
regulation, the commission will identify the appropriate stream gaging 
station for determining the applicable low flow.
    (2) Consumptive uses by a project not exceeding an average of 20,000 
gpd for any consecutive thirty-day period from surface or groundwaters 
are exempt from the requirement unless such uses adversely affect the 
purposes outlined in paragraph (b)(1) of this section.
    (b) Method of Compensation. (1) Methods of compensation acceptable 
to the commission will depend upon the character of the project's source 
of water supply and other factors noted in this paragraph (b)(1).
    (i) The required amount of compensation shall be provided by the 
applicant

[[Page 120]]

or project sponsor at the point of taking (for a surface source) or 
another appropriate site as approved by the commission to satisfy the 
purposes outlined in this paragraph (b) (1). If compensation for 
consumptive use from a surface source is to be provided upstream from 
the point of taking, such compensation shall reasonably assure no 
diminution of the flow immediately downstream from the point of taking 
which would otherwise exist naturally, plus any other dedicated 
augmentation.
    (ii) Compensation may be provided by one, or a combination of the 
following:
    (A) Construction or acquisition of storage facilities.
    (B) Purchase of available water supply storage in existing public or 
private storage facilities, or in public or private facilities scheduled 
for completion prior to completion of the applicant's project.
    (C) Purchase of water to be released as required from a water 
purveyor.
    (D) Releases from an existing facility owned and operated by the 
applicant.
    (E) Use of water from a public water supplier utilizing raw water 
storage that maintains a conservation release or flow-by, as applicable, 
of Q7-10 or greater at the public water supplier's point of taking.
    (F) Ground water.
    (G) Purchase and release of waters stored in other subbasins or 
watersheds.
    (H) Other alternatives.
    (2) Alternatives to compensation may be appropriate such as 
discontinuance of that part of the project's operation that consumes 
water, imposition of conservation measures, utilization of an 
alternative source that is unaffected by the compensation requirement, 
or a monetary payment to the commission in an amount to be determined by 
the commission from time-to-time.
    (3) The commission shall, in its sole discretion, determine the 
acceptable manner of compensation or alternatives to compensation, as 
applicable, for consumptive uses by a project. Such a determination will 
be made after considering the project location, anticipated amount of 
consumptive use and its effect on the purposes set forth in Sec. 803.2 
of this part, and any other pertinent factors.
    (c) Quantity of consumptive use. For purposes of evaluating a 
proposed project, the commission shall require estimates of anticipated 
consumptive use from the project sponsor. The commission, as part of the 
project review, shall evaluate the proposed methodology for monitoring 
consumptive losses and compensating flows including flow metering 
devices, stream gages, and other facilities used to measure the 
consumptive use of the project or the rate of streamflow. If the 
commission determines that additional flow measuring devices are 
required, these shall be provided at the expense of the project sponsor 
and shall be subject to inspection by the commission at any time. When 
the project is operational, the commission shall be responsible for 
determining when compensation is required and shall notify the project 
sponsor accordingly. The project sponsor shall provide the commission 
with periodic reports in the time and manner as it requires showing 
actual consumptive uses associated with the project. The commission may 
use this data to modify, as appropriate, the magnitude and timing of the 
compensating releases initially required when the project was approved.
    (d) Quality of compensation water. The physical, chemical and 
biological quality of water used for compensation shall at all times 
meet the quality requirements for the purposes listed in Sec. 803.2, as 
applicable.
    (e) Effective date. Notwithstanding the overall effective date for 
other portions of this part set forth in Sec. 803.1(e), this section 
shall apply to all consumptive uses initiated on or after January 23, 
1971, the effective date of the compact.
    (f) Public water suppliers, except to the extent that they are 
diverting the waters of the basin, shall be exempt from the requirements 
of this section; provided, however, that nothing in this section shall 
be construed to exempt individual consumptive users connected to any 
such public water supply system from the requirements of this section.

[[Page 121]]



Sec. 803.43  Standards for ground-water withdrawals.

    (a) Requirement. (1) With respect to projects coming into existence 
on or after the effective date of this section, any project sponsor 
proposing to withdraw from a ground-water source in excess of an average 
of 100,000 gpd for any consecutive thirty-day period, proposing to 
increase a withdrawal to more than an average of 100,000 for any 
consecutive thirty-day period or proposing to increase a withdrawal 
above that amount which was previously approved by the commission, shall 
apply for approval pursuant to subpart B of this part. These withdrawals 
may be denied or may be limited by the commission to the amount 
(quantity and rate) of ground water that is needed to meet the 
reasonably foreseeable needs of the project sponsor and that can be 
withdrawn from an aquifer or aquifer system without causing adverse 
lowering of ground-water levels, rendering competing supplies 
unreliable, causing water quality degradation that may be injurious to 
any existing or potential ground or surface water use, causing permanent 
loss of aquifer storage capacity, or having a substantial adverse impact 
on low flow of perennial streams.
    (2) With respect to projects withdrawing any quantity of water prior 
to the effective date of this section, any project sponsor proposing to 
increase the said withdrawal in excess of 100,000 gpd above that which 
such project was withdrawing prior to the said effective date, shall 
apply for approval pursuant to subpart B of this part.
    (3) After obtaining approval for the withdrawal pursuant to this 
paragraph, the sponsor shall also comply with metering, monitoring and 
reporting requirements as set forth in this section.
    (b) Withdrawal application. Information required by the commission 
is specified in the commission's ground-water withdrawal application and 
includes but is not limited to the results of a constant rate pumping 
test. Review and approval by SRBC staff of the test procedures to be 
used by the applicant are necessary before the test is started.
    (c) Metering. Projects approved under this section shall meter all 
approved ground-water withdrawals. The meters shall be accurate to 
within 5 percent of the actual flow.
    (d) Monitoring and reporting. (1) Monitoring and periodic reporting 
of water levels, well production, and ground-water quality are required 
of all approved ground-water withdrawals. The required information is 
listed in Form SRBC 30 (Ground-water Withdrawal Reporting Form) 
and includes but is not limited to the following:
    (i) Ground-water levels shall be measured weekly in all approved 
production wells and reported to the commission annually. Additional 
water level measurements may be required in one or more observation 
wells as determined by the commission.
    (ii) Production from approved ground-water sources shall be recorded 
weekly and reported to the commission annually.
    (iii) Samples of ground water for water quality analysis shall be 
obtained and the results reported to the commission every three years. 
The required chemical constituents to be included in the analysis are 
listed in Form SRBC 30.
    (2) The information in paragraph (d)(1) of this section may be 
provided to the commission either on Form SRBC 30 or other 
similar document containing all of the required information.
    (e) Planning. If projections indicate that a project's ground-water 
supply will be constrained in the future by either the quantity or 
quality of available ground water, the commission may, in its 
discretion, require the submission of a water resource development plan 
prior to accepting any new withdrawal applications for the same or 
related projects.
    (f) Interference with existing withdrawals. If review of the 
application or substantial data demonstrates that operation of a 
proposed ground-water withdrawal will significantly affect or interfere 
with an existing ground-water or surface water withdrawal, the project 
may be denied or the project sponsor may be required to provide, at its 
expense, an alternate water supply or other mitigating measures.
    (g) Effective date. Notwithstanding the overall effective date for 
other portions of this part set forth in Sec. 803.1(e),

[[Page 122]]

this section shall apply to all ground-water withdrawals initiated on or 
after July 13, 1978.



Sec. 803.44  Standards for surface water withdrawals.

    (a) Requirement. (1) With respect to projects coming into existence 
on or after the effective date of this section, any project sponsor 
proposing to withdraw either directly or a public water supplier 
proposing to withdraw indirectly (through another user) from a surface 
source in excess of an average of 100,000 gpd for any consecutive 
thirty-day period, proposing to increase a withdrawal to more than an 
average of 100,000 gpd for any consecutive thirty-day period or 
proposing to increase a withdrawal above that amount which was 
previously approved by the commission, shall obtain commission approval 
of the withdrawal. These withdrawals may be denied or may be limited by 
the commission to the amount (quantity and rate) of water that is needed 
to meet the reasonably foreseeable needs of the project sponsor and that 
can be withdrawn without causing adverse lowering of streamflow levels, 
rendering competing supplies unreliable, causing water quality 
degradation that may be injurious to any existing or potential water 
use, adversely affecting fish, wildlife or other living resources or 
their habitat, or having a substantial adverse impact on the low flow of 
perennial streams.
    (2) With respect to projects withdrawing any quantity of water prior 
to the effective date of this section, any project sponsor proposing to 
increase the said withdrawal in excess of 100,000 gpd above that which 
such project was withdrawing prior to the said effective date, shall 
apply for approval pursuant to subpart B of this part.
    (3) Any sponsor of a project subject to this section shall complete 
a surface water withdrawal application. After obtaining approval under 
this section, the sponsor shall comply with metering, monitoring, and 
conservation requirements as set forth in this section.
    (b) Withdrawal application. Information required by the commission 
is specified in the commission's application for withdrawal from surface 
water sources.
    (c) Metering. Project sponsors shall meter or use other suitable 
methods of measuring surface withdrawals approved under this section. 
The meters shall be accurate to within 5 percent of the actual flow.
    (d) Monitoring and reporting. Monitoring and periodic reporting of 
surface water withdrawals approved under this section is required. The 
required information includes but is not limited to the following:
    (1) Daily, weekly, or monthly records of withdrawals by source, as 
specified by the commission, and reported annually;
    (2) Description of conservation activity; and
    (3) Records of releases or flowby for instream protection reported 
annually.
    (e) Planning. If projections indicate that a project's surface water 
supply will be constrained in the future by either the quantity or 
quality of available surface water, the commission may, in its 
discretion, require the submission of a water resource development plan 
prior to accepting any new withdrawal applications for the same or 
related projects.
    (f) Interference with existing withdrawals. If review of the 
application or substantial data demonstrates that operation of a 
proposed surface water withdrawal will significantly affect or interfere 
with an existing ground-water or surface water withdrawal, the project 
may be denied or the project sponsor may be required to provide, at its 
expense, an alternate water supply or other mitigating measures.
    (g) Effective date. This section shall be effective six months after 
the effective date set forth in Sec. 803.1(e), except for projects 
previously reviewed and approved by the commission under the general 
authority of section 3.10 of the compact. Commission authority shall 
continue over such previously approved projects.
    (h) Hydroelectric projects. Hydroelectric projects, except to the 
extent that such projects constitute a withdrawal, shall be exempt from 
the requirements of this section; provided, however, that nothing in 
this paragraph shall be construed as exempting hydroelectric projects 
from review and approval under any other category of

[[Page 123]]

project requiring review and approval as set forth in Secs. 803.4 and 
803.5.



PART 804--SPECIAL REGULATIONS AND STANDARDS--Table of Contents




                Subpart A--Water Withdrawal Registration

Sec.
804.1  Requirement.
804.2  Time limits.
804.3  Administrative agreements.
804.4  Effective date.
804.5  Definitions.

               Subpart B--Water Conservation Requirements

804.20  Requirement.
804.21  Effective date.
804.22  Definitions.

    Authority: Secs. 3.4(2) and (9), 3.8, 3.10 and 15.2, Pub. L. 91-575, 
84 Stat. 1509 et seq.

    Source: 60 FR 31401, June 15, 1995, unless otherwise noted.



                Subpart A--Water Withdrawal Registration



Sec. 804.1  Requirement.

    In addition to any other requirements of commission regulations, and 
subject to the consent of the affected signatory state to this 
requirement, all persons withdrawing or diverting in excess of an 
average of 10,000 gpd for any consecutive thirty-day period, from 
surface or ground-water sources, as defined in Part 803 of this chapter, 
shall register the amount of this withdrawal with the commission and 
provide such other information as requested on forms prescribed by the 
commission.



Sec. 804.2  Time limits.

    (a) Except for agricultural water use projects, all registration 
forms shall be submitted within one year after May 11, 1995, or within 
six months of their initiation, whichever is later; provided, however, 
that nothing in this section shall limit the responsibility of an 
applicant to apply for and obtain an approval as may be required under 
part 803 of this chapter. All registered withdrawals shall re-register 
with the commission within five years of their initial registration, and 
at five-year intervals thereafter, unless sooner discontinued.
    (b) Sponsors of existing agricultural water use projects (i.e. 
projects coming into existence prior to March 31, 1997) withdrawing or 
diverting in excess of an average of 10,000 gpd for any consecutive 30-
day period from a surface or ground-water source shall register their 
use no later than March 31, 1997. Thereafter, the sponsors of new 
projects proposing to withdraw or divert in excess of 10,000 gpd for any 
consecutive 30-day period from a surface or ground-water source shall be 
registered prior to project initiation.



Sec. 804.3  Administrative agreements.

    The commission may complete appropriate administrative agreements or 
informal arrangements to carry out this registration requirement through 
the offices of signatory agencies. Forms developed by the commission 
shall apprise registrants of any such agreements or arrangements and 
provide appropriate instructions to complete and submit the form. 
Permits issued by a signatory party agency shall be considered a 
registration with the commission if issued pursuant to an agreement of 
understanding with the commission specifically providing therefor.



Sec. 804.4  Effective date.

    This subpart shall be effective on May 11, 1995 and shall apply to 
all present and future withdrawals or diversions irrespective of when 
such withdrawals or diversions were initiated.



Sec. 804.5  Definitions.

    Terms used in this subpart shall be defined as set forth in 
Sec. 803.3 of this chapter.



               Subpart B--Water Conservation Requirements



Sec. 804.20  Requirement.

    Any project sponsor whose project is subject to commission approval 
under this part or part 803 of this chapter proposing to withdraw water 
either directly or indirectly (through another user) from surface or 
ground-water sources or both shall comply with the following 
requirements:

[[Page 124]]

    (a) Public water suppliers. As circumstances warrant, the public 
water supplier shall:
    (1) Reduce distribution system losses to a level not exceeding 20 
percent of the gross withdrawal.
    (2) Install meters for all users.
    (3) Establish a program of water conservation that will:
    (i) Require installation of water conservation devices, as 
applicable, by all classes of users;
    (ii) Prepare and distribute literature to customers describing 
available water conservation techniques;
    (iii) Implement a water pricing structure which encourages 
conservation; and
    (iv) Encourage water reuse.
    (b) Industrial water users. Industrial users shall:
    (1) Designate a company representative to manage plant water use.
    (2) Install meters or other suitable devices or utilize acceptable 
flow measuring methods for accurate determination of water use by 
various parts of the company operation.
    (3) Install flow control devices which match the needs of the 
equipment being used for production.
    (4) Evaluate and utilize applicable recirculation and reuse 
practices.
    (c) Agricultural and other irrigation. Water users for irrigation 
purposes shall utilize irrigation systems properly designed for the 
user's respective soil characteristics, topography and vegetation.



Sec. 804.21  Effective date.

    Notwithstanding the effective date for other portions of this part, 
this subpart shall apply to all surface and ground-water withdrawals 
initiated on or after January 11, 1979.



Sec. 804.22  Definitions.

    Terms used in this subpart shall be defined as set forth in 
Sec. 803.3 of this chapter.



PART 805--HEARINGS/ENFORCEMENT ACTIONS--Table of Contents




                      Subpart A--Conduct of Hearing

Sec.
805.1  Public hearings.
805.2  Adjudicatory hearing.
805.3  Consolidation of hearing.
805.4  Joint hearings.
805.5  Transcript.
805.6  Continuance.
805.7  Effective date.
805.8  Definitions.

             Subpart B--Enforcement Actions and Settlements

805.20  Scope of subpart.
805.21  Notice to possible violators.
805.22  The record for decision-making.
805.23  Adjudicatory hearings/alleged violations.
805.24  Assessment of a penalty/abatement or remedial action.
805.25  Factors to be applied in fixing penalty amount.
805.26  Enforcement of penalties/abatement or remedial orders.
805.27  Settlement by agreement.
805.28  Effective date.
805.29  Definitions.

    Authority: Secs. 3.4(9), 3.5(5), 3.10, 15.2 and 15.17, Pub. L. 91-
575, 84 Stat. 1509 et seq.

    Source: 60 FR 31401, June 15, 1995, unless otherwise noted.



                      Subpart A--Conduct of Hearing



Sec. 805.1  Public hearings.

    (a) A public hearing shall be conducted in the following instances:
    (1) Addition of projects or adoption of amendments to the 
comprehensive plan except as otherwise provided by Section 14.1 of the 
compact.
    (2) Rulemaking.
    (3) Approval of projects.
    (4) Hearing requested by a signatory party.
    (5) When in the opinion of the commission, a hearing is necessary to 
give adequate consideration to issues relating to public safety, 
protection of the environment, or other important societal factors.
    (6) To decide factual disputes.
    (7) At all other times required by the compact or commission 
regulations in this chapter.
    (b) Notice of public hearing. At least 20 days before any public 
hearing required by the compact, notices stating the date, time, place 
and purpose of the hearing including issues of interest to the 
commission shall be published at least once in a newspaper or newspapers 
of general circulation in the area affected. Occasions when public

[[Page 125]]

hearings are required by the compact include, but are not limited to, 
amendments to the comprehensive plan, drought emergency declarations, 
and review and approval of diversions. In all other cases, at least 10 
days prior to the hearing, notice shall be posted at the office of the 
commission, mailed by first class mail to the parties who, to the 
commission's knowledge, will participate in the hearing, and mailed by 
first class mail to persons, organizations, news media and governmental 
entities who have made requests to the commission for notices of 
hearings or of a particular hearing. In the case of hearings held in 
connection with rulemaking, notices need only be forwarded to the 
directors of the New York Register, the Pennsylvania Bulletin, the 
Maryland Register, and the Federal Register, and it is sufficient that 
this notice appear only in the Federal Register at least 20 days prior 
to the hearing and in each individual state publication at least 10 days 
prior to any hearing scheduled in that state.
    (c) Participants to a public hearing. (1) Hearings shall be open to 
the public. Participants to a public hearing shall be the project 
sponsor and the commission staff. Participants may also be any person or 
governmental entity wishing to appear at the hearing and make an oral or 
written statement. Statements may favor or oppose the project/proposal 
or may simply express a position without specifically favoring or 
opposing the project/proposal. Statements shall be made a part of the 
record of the hearing, and written statements may be received up to and 
including the last day on which the hearing is held, or within a 
reasonable time thereafter as may be specified by the presiding officer, 
which time shall be not less than ten days nor more than 30 days, except 
that a longer time may be specified if requested by a participant.
    (2) Participants (except the project sponsor and the commission 
staff) are encouraged to file with the commission at its headquarters 
written notice of their intention to appear at the hearing. The notice 
should be filed at least three days prior to the opening of the hearing.
    (d) Representative capacity. Participants wishing to be heard at a 
public hearing may appear in person or be represented by an attorney or 
other representative. A governmental entity may be represented by one of 
its officers, employees or by a designee of the governmental entity. Any 
person intending to appear before the commission in a representative 
capacity on behalf of a participant shall give the commission written 
notice of the nature and extent of his/her authorization to represent 
the person or governmental entity on whose behalf he/she intends to 
appear.
    (e) Description of project. When notice of a public hearing is 
issued, there shall be available for inspection at the commission 
offices such plans, summaries, maps, statements, orders or other 
supporting documents which explain, detail, amplify, or otherwise 
describe the project the commission is considering. Instructions on 
where and how the documents may be obtained will be included in the 
notice.
    (f) Presiding officer. A public hearing shall be conducted by the 
commission, the executive director, or any member or designee of the 
commission. The presiding officer shall have full authority to control 
the conduct of the hearing and make a record of the same.



Sec. 805.2  Adjudicatory hearing.

    (a) Generally. The commission, upon application by any interested 
party or upon its own motion, may determine that, due to outstanding 
issues of fact, an adjudicatory hearing shall be conducted. If, for any 
reason, the commission determines that there are not sufficient issues 
of fact to schedule an adjudicatory hearing, it may still require briefs 
or oral argument on any issues of law.
    (b) Hearing procedure. (1) The presiding officer shall have the 
power to rule upon offers of proof and the admissibility of evidence, to 
regulate the course of the hearings, to hold conferences for the 
settlement or simplification of issues, to determine the proper parties 
to the hearing, to determine the scope of any discovery procedures, and 
to delineate the issues to be adjudicated.

[[Page 126]]

    (2) The presiding officer shall cause each witness to be sworn or to 
make affirmation.
    (3) Any party to a hearing shall have the right to present evidence 
and to examine and cross-examine witnesses.
    (4) When necessary, in order to prevent undue prolongation of the 
hearing, the presiding officer may limit the number of times any witness 
may testify, the repetitious examination or cross-examination of 
witnesses, or the extent of corroborative or cumulative testimony.
    (5) The presiding officer shall exclude irrelevant, immaterial or 
unduly repetitious evidence, but the parties shall not be bound by 
technical rules of evidence, and all relevant evidence of reasonably 
probative value may be received.
    (6) Any party may appear and be heard in person or be represented by 
an attorney at law.
    (7) Briefs and oral argument may be required by the presiding 
officer and shall be permitted upon request made prior to the close of 
the hearing by any party. They shall be part of the record unless 
otherwise ordered by the presiding officer.
    (c) Staff and other expert testimony. The executive director shall 
arrange for the presentation of testimony by the commission's technical 
staff and other experts, as he/she may deem necessary or desirable, to 
incorporate in the record or support the administrative action, 
determination or decision which is the subject of the hearing.
    (d) Written testimony. If the direct testimony of an expert witness 
is expected to be lengthy or of a complex, technical nature, the 
presiding officer may order that such direct testimony be submitted to 
the commission in sworn, written form. Copies of said testimony shall be 
served upon all parties appearing at the hearing at least ten days prior 
to said hearing. Such written testimony, however, shall not be admitted 
whenever the witness is not present and available for cross-examination 
at the hearing unless all parties have waived the right of cross-
examination.
    (e) Assessment of costs. (1) Whenever an adjudicatory hearing is 
required, the costs thereof, as herein defined, shall be assessed by the 
presiding officer to the project sponsor or such other party as the 
hearing officer deems equitable. For the purposes of this section, costs 
include all incremental costs incurred by the commission, including, but 
not limited to, hearing examiner and expert consultants reasonably 
necessary in the matter, stenographic record, rental of the hall and 
other related expenses.
    (2) Upon the scheduling of a matter for adjudicatory hearing, the 
commission secretary shall furnish to the applicant a reasonable 
estimate of the costs to be incurred under this section. The applicant 
may be required to furnish security for such costs either by cash 
deposit or by a surety bond of a corporate surety authorized to do 
business in a signatory state.
    (f) Findings and report. The presiding officer shall prepare a 
report of his/her findings and recommendations. The report shall be 
served by personal service or certified mail (return receipt requested) 
upon each party to the hearing or its counsel unless all parties have 
waived service of the report. Any party may file objections to the 
report within 20 days after the service upon the party of a copy of the 
report. A brief shall be filed together with objections and briefs shall 
be promptly submitted to the commission. The commission may require or 
permit oral argument upon such submission prior to its decision.
    (g) Action by the commission. The commission will act upon the 
findings and recommendations of the presiding officer pursuant to law. 
The determination of the commission will be in writing and shall be 
filed together with any transcript of the hearing, report of the hearing 
officer, objections thereto, and all plans, maps, exhibits and other 
papers, records or documents relating to the hearing.



Sec. 805.3  Consolidation of hearing.

    The commission may order any two or more public hearings involving a 
common or related question of law or fact to be consolidated for hearing 
on any or all the matters at issue in such hearings.

[[Page 127]]



Sec. 805.4  Joint hearings.

    The commission may conduct public hearings in concert with any other 
agency of a signatory party.



Sec. 805.5  Transcript.

    A verbatim transcript of the adjudicatory hearings shall be kept by 
the commission. Other public hearings may be electronically recorded and 
a transcript made only if deemed necessary by the executive director or 
general counsel. A certified copy of the transcript and exhibits shall 
be available for review during business hours at the commission's 
headquarters to anyone wishing to examine them. Persons wishing to 
obtain a copy of the transcript of any hearing shall make arrangements 
to obtain it directly from the recording stenographer at their expense.



Sec. 805.6  Continuance.

    The sponsor and all other persons wishing to be heard should be 
prepared to proceed on the date of the hearing. Applications for 
continuances will not be granted, except when good cause is shown.



Sec. 805.7  Effective date.

    This subpart shall be effective on May 11, 1995.



Sec. 805.8  Definitions.

    Terms used in this subpart shall be defined as set forth in 803.3 of 
this chapter.



             Subpart B--Enforcement Actions and Settlements



Sec. 805.20  Scope of subpart.

    This subpart shall be applicable where the commission has 
information indicating that a person or governmental entity (hereafter 
referred to as alleged violator) has violated or attempted to violate 
any provision of the compact or any of the commission's rules, 
regulations or orders.



Sec. 805.21  Notice to possible violators.

    Upon direction of the commission, the executive director shall, and 
in all other instances, the executive director may require an alleged 
violator to show cause before the commission why a penalty should not be 
assessed in accordance with the provisions of this chapter and Section 
15.17 of the compact. The notice to the alleged violator shall:
    (a) Set forth the date on which the alleged violator shall respond;
    (b) Set forth any information to be submitted or produced by the 
alleged violator; and
    (c) Specify the violation that is alleged to have occurred.



Sec. 805.22  The record for decision-making.

    (a) Written submission. In addition to the information required by 
the commission, any alleged violator shall be entitled to submit in 
writing any other information that it desires to make available to the 
commission before it shall act. The executive director may require 
documents to be certified or otherwise authenticated and statements to 
be verified. The commission may also receive written submissions from 
any other persons as to whether a violation has occurred and the adverse 
consequences resulting from a violation of the compact or the 
commission's rules, regulations and orders.
    (b) Presentation to the commission. On the date set in the notice, 
the alleged violator shall have the opportunity to supplement its 
written presentation before the commission by any oral statement it 
wishes to present and shall be prepared to respond to any questions from 
the commission or its staff or to the statements submitted by persons 
affected by the alleged violation.



Sec. 805.23  Adjudicatory hearings/alleged violations.

    (a) An adjudicatory hearing (which may be in lieu of or in addition 
to proceedings pursuant to Secs. 805.21 and 805.22) shall not be 
scheduled unless the executive director or the commission determines 
that a hearing is required to have an adequate record for the 
commission, or the commission directs that such a hearing be held.
    (b) If an adjudicatory hearing is scheduled, the alleged violator 
shall be given at least 14 days written notice of

[[Page 128]]

the hearing date unless waived by consent. Notice of such a hearing 
shall be given to the general public and the press in the manner 
provided in Sec. 805.1(b).
    (c) Except to the extent inconsistent with the provisions of this 
subpart, adjudicatory hearings shall be conducted in accordance with the 
provisions of Secs. 805.2 through 805.6.



Sec. 805.24  Assessment of a penalty/abatement or remedial action.

    The executive director may recommend to the commission the amount of 
the penalty to be imposed or the abatement and remedial actions to be 
required. Such a recommendation shall be in writing and shall set forth 
the basis for the penalty amount proposed. Based upon the record 
submitted to the commission, the commission shall decide whether a 
violation has occurred that justifies the imposition of a penalty 
pursuant to Section 15.17 of the compact or the requirement of abatement 
or remedial action. If it is found that such a violation has occurred, 
the commission shall determine the amount of the penalty to be paid and 
the nature of the abatement or remedial action to be undertaken.



Sec. 805.25  Factors to be applied in fixing penalty amount.

    (a) Consideration shall be given to the following factors in 
deciding the amount of any penalty or any settlement:
    (1) Previous violation, if any, of the compact, commission 
regulations or orders;
    (2) The intent of the alleged violator;
    (3) The extent to which the violation caused adverse environmental 
consequences;
    (4) The costs incurred by the commission or any signatory party 
relating to the failure to comply with the compact, commission 
regulations or orders;
    (5) The extent to which the violator has cooperated with the 
commission in correcting the violation and remediating any adverse 
consequences or harm that has resulted therefrom;
    (6) The extent to which the failure to comply with the commission's 
compact and regulations was economically beneficial to the violator; and
    (7) The length of time over which the violation occurred and the 
amount of water used during that time period.
    (b) The commission retains the right to waive any penalty or reduce 
the amount of the penalty should it determine that, after consideration 
of the factors in paragraph (a) of this section, extenuating 
circumstances justify such action.



Sec. 805.26  Enforcement of penalties/abatement or remedial orders.

    Any penalty imposed or abatement or remedial action ordered by the 
commission shall be paid or completed within such time period as shall 
be fixed by the commission. The executive director and commission 
counsel are authorized to take such action as may be necessary to assure 
enforcement of this subpart. If a proceeding before a court becomes 
necessary, the action of the commission in determining a penalty amount 
shall constitute the penalty amount recommended by the commission to be 
fixed by the court pursuant to Section 15.17 of the compact.

[[Page 129]]



Sec. 805.27  Settlement by agreement.

    An alleged violator may request settlement of an enforcement 
proceeding by agreement. If the executive director determines that 
settlement by agreement is in the best interest of the commission, he/
she may submit to the commission a proposed settlement agreement. No 
settlement will be considered by the commission unless the alleged 
violator has indicated in writing to the commission acceptance of the 
terms of the agreement and the intention to comply with all requirements 
of the settlement agreement including payment of any settlement amount 
or completion of any abatement or remedial action within the time period 
provided. If the commission determines not to approve a settlement 
agreement, the commission may proceed with an enforcement action in 
accordance with this subpart.



Sec. 805.28  Effective date.

    This subpart shall be effective on May 11, 1995.
Sec. 805.29   Definitions.
    Terms used in this subpart shall be defined as set forth in 
Sec. 803.3 of this chapter.

[[Page 131]]



                CHAPTER XIII--TENNESSEE VALLEY AUTHORITY




  --------------------------------------------------------------------
Part                                                                Page
1300            Standards of conduct for employees of 
                    Tennessee Valley Authority..............         133
1301            Procedures..................................         134
1302            Nondiscrimination in federally assisted 
                    programs of TVA--effectuation of Title 
                    VI of the Civil Rights Act of 1964......         156
1303            Property management.........................         167
1304            Approval of construction in the Tennessee 
                    River System and regulation of 
                    structures..............................         167
1305            Land between the lakes......................         176
1306            Relocation assistance and real property 
                    acquisition policies....................         177
1307            Nondiscrimination with respect to handicap..         179
1308            Contract disputes...........................         189
1309            Nondiscrimination with respect to age.......         197
1310            Administrative cost recovery................         206
1311            Intergovernmental review of Tennessee Valley 
                    Authority Federal financial assistance 
                    and direct Federal development programs 
                    and activities..........................         207
1312            Protection of archaeological resources: 
                    Uniform regulations.....................         210
1313            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Tennessee 
                    Valley Authority........................         223
1314            Book-entry procedures for TVA power 
                    securities issued through the Federal 
                    Reserve Banks...........................         230
1315            New restrictions on lobbying................         234
1316            General conditions and certifications for 
                    incorporation in contract documents or 
                    actions.................................         246
1317            Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving federal financial assistance..         250

[[Page 133]]



PART 1300--STANDARDS OF CONDUCT FOR EMPLOYEES OF TENNESSEE VALLEY AUTHORITY--Table of Contents




Sec.
1300.101  Cross references to employee ethical conduct standards and 
          other applicable regulations.
1300.102  Gambling, betting, and lotteries.
1300.103  General conduct prejudicial to TVA.
1300.104  Sexual harassment.
1300.105  National origin harassment.
1300.106  Harassment on the basis of race, color, religion, age, or 
          disability.
1300.107  Financial interest exemptions.

    Authority: 16 U.S.C. 831-831dd; 18 U.S.C. 208(b)(2).

    Source: 61 FR 20118, May 6, 1996, unless otherwise noted.



Sec. 1300.101  Cross references to employee ethical conduct standards and other applicable regulations.

    Employees of the Tennessee Valley Authority (TVA) are subject to the 
executive branch-wide standards of ethical conduct at 5 CFR part 2635 
and to the TVA regulations at 5 CFR part 7901 which supplement the 
executive branch-wide standards. In addition, certain TVA employees are 
subject to executive branch-wide financial disclosure regulations at 5 
CFR part 2634.



Sec. 1300.102  Gambling, betting, and lotteries.

    An employee shall not participate, while on Government- or TVA-owned 
or leased property or while on TVA duty, in any gambling activity 
including the operation of a gambling device, in conducting a lottery or 
pool, in a game for money or property, or in selling or purchasing a 
numbers slip or ticket. However, this section does not preclude 
activities:
    (a) Necessitated by an employee's law enforcement duties; or
    (b) Under section 7 of Executive Order 12353 (47 FR 12785, 3 CFR, 
1982 Comp., p. 139) and similar TVA-approved activities.



Sec. 1300.103  General conduct prejudicial to TVA.

    An employee shall not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct, or other conduct 
prejudicial to TVA.



Sec. 1300.104  Sexual harassment.

    It is TVA policy that all TVA employees are responsible for assuring 
that the workplace is free from sexual harassment. Accordingly, all 
employees must avoid any action or conduct which could be viewed as 
sexual harassment including:
    (a) Unwelcome sexual advances;
    (b) Requests for sexual favors; and
    (c) Other verbal or physical conduct of a sexual nature when:
    (1) Submission to such conduct is made either explicitly or 
implicitly a term or condition of an individual's employment;
    (2) Submission to or rejection of such conduct by an individual is 
used as the basis for employment decisions affecting such individual; or
    (3) Such conduct has the purpose or effect of unreasonably 
interfering with an individual's work performance or creating an 
intimidating, hostile, or offensive working environment.



Sec. 1300.105  National origin harassment.

    It is TVA policy that all TVA employees are responsible for assuring 
that the workplace is free from national origin harassment. Accordingly, 
all employees must avoid any action or conduct which could be viewed as 
national origin harassment, including ethnic slurs and other verbal or 
physical conduct relating to an individual's national origin when such 
conduct:
    (a) Has the purpose or effect of creating an intimidating, hostile, 
or offensive working environment;
    (b) Has the purpose or effect of unreasonably interfering with an 
individual's work performance; or
    (c) Otherwise adversely affects an individual's employment 
opportunities.



Sec. 1300.106  Harassment on the basis of race, color, religion, age, or disability.

    It is TVA policy that all TVA employees are responsible for assuring 
that the workplace is free from harassment on the basis of race, color, 
religion, age, or disability. Accordingly, all employees must avoid any 
action or

[[Page 134]]

conduct which could be viewed as harassment on these bases, including 
any verbal or physical conduct relating to an individual's race, color, 
religion, age, or disability when such conduct:
    (a) Has the purpose or effect of creating an intimidating, hostile, 
or offensive working environment;
    (b) Has the purpose or effect of unreasonably interfering with an 
individual's work performance; or
    (c) Otherwise adversely affects an individual's employment 
opportunities.



Sec. 1300.107  Financial interest exemptions.

    In accordance with the provisions of 18 U.S.C. 208(b)(2), TVA has 
exempted the following financial interests of its employees from the 
requirements of 18 U.S.C. 208(a) upon the ground that such interests are 
too remote or too inconsequential to affect the integrity of such 
employees` services. When any of the following exemptions applies only 
to a limited range of official actions, rather than all official acts, 
the range of actions will be specified within the language of the 
exemption.
    (a) An investment in a business enterprise in the form of ownership 
of bonds, notes, and other evidences of indebtness which are not 
convertible into shares of preferred or common stock and have no 
warrants attached entitling the holder to purchase stock provided that 
the estimated market value of the interest does not exceed $5,000;
    (b) An investment in the form of shares in the ownership of 
enterprises, including preferred and common stocks whether voting or 
nonvoting, or warrants to purchase such shares, or evidences of 
indebtedness convertible into such shares provided that the estimated 
market value of the interest does not exceed $5,000 and does not exceed 
1 percent of the estimated market value of all the outstanding shares of 
the enterprise;
    (c) Shares or investments in a well-diversified money market or 
mutual fund;
    (d) Vested interests in a pension fund arising out of former 
employment and to which no further contributions are being made in the 
employee's behalf, provided that, if the pension plan is a defined 
benefit plan, the assets of the plan are diversified. For the purpose of 
this provision, payments are not considered to be made ``in the 
employee's behalf'' if they are made solely to maintain adequate plan 
funding rather than to provide specific benefits for the employee; or
    (e) The interest an employee has by virtue of his or her personal or 
family use of electric power or through his or her interests in an 
organization using electric power generated or distributed by TVA, for 
purposes of his or her official actions at TVA in the process of 
developing or approving TVA power rate schedules.



PART 1301--PROCEDURES--Table of Contents




                  Subpart A--Freedom of Information Act

Sec.
1301.1  General provisions.
1301.2  Public reading rooms.
1301.3  Requirements for making requests.
1301.4   Responsibility for responding to requests.
1301.5  Timing of responses to requests.
1301.6  Responses to requests.
1301.7  Exempt records.
1301.8  Business information.
1301.9  Appeals.
1301.10  Fees.

                         Subpart B--Privacy Act

1301.11  Purpose and scope.
1301.12  Definitions.
1301.13  Procedures for requests pertaining to individual records in a 
          record system.
1301.14  Times, places, and requirements for identification of 
          individuals making requests.
1301.15  Disclosure of requested information to individuals.
1301.16  Special procedures--medical records.
1301.17  Requests for correction or amendment of record.
1301.18  TVA review of request for correction or amendment of record.
1301.19  Appeals on initial adverse agency determination on correction 
          or amendment.
1301.20  Disclosure of record to persons other than individual to whom 
          it pertains.
1301.21  Fees.
1301.22  Penalties.
1301.23  General exemptions.
1301.24  Special exemptions.

                Subpart C--Government in the Sunshine Act

1301.41  Purpose and scope.

[[Page 135]]

1301.42  Definitions.
1301.43  Open meetings.
1301.44  Notice of meetings.
1301.45  Procedure for closing meetings.
1301.46  Criteria for closing meetings.
1301.47  Transcripts of closed meetings.
1301.48  Public availability of transcripts and other documents.



                  Subpart A--Freedom of Information Act

    Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552.

    Source: 64 FR 4044, Jan. 27, 1999, unless otherwise noted.



Sec. 1301.1  General provisions.

    (a) This subpart contains the rules that TVA follows in processing 
requests for records under the Freedom of Information Act (FOIA), 5 
U.S.C. 552. These rules should be read together with the FOIA, which 
provides additional information about access to records maintained by 
TVA. Requests made by individuals for records about themselves under the 
Privacy Act of 1974, 5 U.S.C. 552a, which are processed under subpart B 
of this part, are processed under this subpart also. Information 
routinely provided to the public as part of a regular TVA activity (for 
example, press releases) may be provided to the public without the need 
for a FOIA request under this subpart. As a matter of policy, TVA makes 
discretionary disclosures of records or information exempt from 
disclosure under the FOIA whenever disclosure would not foreseeably harm 
an interest protected by a FOIA exemption, but this policy does not 
create any right enforceable in court.
    (b) Nothing in this subpart shall be construed to entitle any 
person, as of right, to any service or to the disclosure of any record 
to which such person is not entitled under the FOIA.



Sec. 1301.2  Public reading rooms.

    TVA maintains a public electronic reading room accessible in its 
Corporate Libraries at 400 Summit Hill Drive, Knoxville, TN 37902-1499 
and 1101 Market Street, Chattanooga, TN 37402-2801. This electronic 
reading room contains the records that the FOIA requires to be made 
regularly available for public inspection and copying. Each TVA 
organization is responsible for determining which of the records it 
generates are required to be made available in this way and for ensuring 
that those records are available in TVA's reading room. TVA's FOIA 
Officer will maintain a current subject-matter index of TVA's reading 
room records. The index will be updated regularly, at least quarterly, 
with respect to newly included records.



Sec. 1301.3  Requirements for making requests.

    (a) How made and addressed. You may make a request for records of 
TVA by writing to the Tennessee Valley Authority, FOIA Officer, 400 W. 
Summit Hill Drive (ET 5D), Knoxville, Tennessee 37902-1499. You may find 
TVA's ``Guide to Information About TVA''--which is available 
electronically at TVA's World Wide Web site, and is available in paper 
form as well--helpful in making your request. For additional information 
about the FOIA, you may refer directly to the statute. If you are making 
a request for records about yourself, see Subpart B Privacy Act for 
additional requirements. If you are making a request for records about 
another individual, either a written authorization signed by that 
individual permitting disclosure of those records to you or proof that 
that individual is deceased (for example, a copy of a death certificate 
or an obituary) will help the processing of your request. Your request 
will be considered received as of the date it is received by the FOIA 
Officer. For the quickest possible handling, you should mark both your 
request letter and the envelope ``Freedom of Information Act Request.''
    (b) Descriptions of records sought. You must describe the records 
that you seek in enough detail to enable TVA personnel to locate them 
with a reasonable amount of effort. Whenever possible, your request 
should include specific information about each record sought, such as 
the date, title or name, author, recipient, and subject matter of the 
record. If known, you should include any file designations or 
descriptions for the records that you want. As a general rule, the more 
specific you are about the records or type of records

[[Page 136]]

that you want, the more likely TVA will be able to locate those records 
in response to your request. If TVA determines that your request does 
not reasonably describe records, it shall tell you either what 
additional information is needed or why your request is otherwise 
insufficient. TVA shall also give you an opportunity to discuss your 
request so that you may modify it to meet the requirements of this 
section. If your request does not reasonably describe the records you 
seek, the agency's response to your request may be delayed.
    (c) Agreement to pay fees. If you make a FOIA request, it shall be 
considered an agreement by you to pay all applicable fees charged under 
Sec. 1301.11, up to $25.00, unless you seek a waiver of fees. TVA's FOIA 
Officer will confirm this agreement in an acknowledgement letter. When 
making a request, you may specify a willingness to pay a greater or 
lesser amount.

[64 FR 4044, Jan. 27, 1999, as amended at 65 FR 16513, Mar. 29, 2000]



1301.4  Responsibility for responding to requests.

    (a) TVA's FOIA Officer, or the FOIA Officer's designee, is 
responsible for responding to all FOIA requests. In determining which 
records are responsive to a request, TVA will ordinarily include only 
records in its possession as of the date it begins its search for them. 
If any other date is used, the FOIA Officer shall inform the requester 
of that date.
    (b) Authority to grant or deny requests. TVA's FOIA Officer, or the 
FOIA Officer's designee, is authorized to grant or deny any request for 
a TVA record.
    (c) Consultations and referrals. When the FOIA Officer receives a 
request for a record in TVA's possession, the FOIA Officer shall 
determine whether another agency of the Federal Government is better 
able to determine whether the record is exempt from disclosure under the 
FOIA and, if so, whether it should be disclosed as a matter of 
administrative discretion. If the FOIA Officer determines that TVA is 
not best able to process the record, the FOIA Officer shall either:
    (1) Respond to the request regarding that record, after consulting 
with the agency best able to determine whether to disclose it and with 
any other agency that has a substantial interest in it; or
    (2) Refer the responsibility for responding to the request regarding 
that record to the agency that originated the record (but only if that 
agency is subject to the FOIA). Ordinarily, the agency that originated a 
record will be presumed to be best able to determine whether to disclose 
it.
    (d) Notice of referral. Whenever TVA refers all or any part of the 
responsibility for responding to a request to another agency, it 
ordinarily shall notify the requester of the referral and inform the 
requester of the name of each agency to which the request has been 
referred and of the part of the request that has been referred.
    (e) Timing of responses to consultations and referrals. All 
consultations and referrals will be handled according to the date the 
FOIA request initially was received by the FOIA Officer, not any later 
date.
    (f) Agreements regarding consultations and referrals. TVA may make 
agreements with other agencies to eliminate the need for consultations 
or referrals for particular types of records.

[64 FR 4044, Jan. 27, 1999, as amended at 68 FR 4700, Jan. 30, 2003]



Sec. 1301.5  Timing of responses to requests.

    (a) In general, TVA ordinarily shall respond to requests according 
to their order of receipt and placement in an appropriate processing 
track, as follows:
    (b) Multi-track processing procedures. TVA has established three 
tracks for handling requests and the track to which a request is 
assigned will depend on the nature of the request and the estimated 
processing time, including a consideration of the number of pages 
involved. If TVA places a request in a track other than Track 1, it will 
advise requesters of the limits of its faster track(s). TVA may provide 
requesters in its tracks 2 and 3 with an opportunity to limit the scope 
of their requests in order to qualify for faster processing within the 
specified limits of TVA's faster track(s). When doing

[[Page 137]]

so, TVA may contact the requester either by telephone or by letter, 
whichever is most efficient in each case.
    (1) Track 1. Requests that can be answered with readily available 
records or information. These are the fastest to process. These requests 
ordinarily will be responded to within 20 working days of receipt of a 
request by the FOIA Officer. The 20 working day time limit provided in 
this paragraph may be extended by TVA for unusual circumstances, as 
defined in paragraph (c) of this section, upon written notice to the 
person requesting the records.
    (2) Track 2. Requests where we need records or information from 
other offices throughout TVA, where we must consult with other 
Governmental agencies, or when we must process a submitter notice as 
described in Sec. 1301.8(d), but we do not expect that the decision on 
disclosure will be as time consuming as for requests in Tract 3.
    (3) Tract 3. Requests which require a decision or input from another 
office or agency, extensive submitter notifications because of the 
presence of Business Information as defined in Sec. 1301.8(b)(1), and a 
considerable amount of time will be needed for that, or the request is 
complicated or involves a large number of records. Usually, these cases 
will take the longest to process.
    (c) Unusual circumstances. (1) Where the time limits for processing 
a request cannot be met because of unusual circumstances and TVA 
determines to extend the time limits on that basis, TVA shall as soon as 
practicable notify the requester in writing of the unusual circumstances 
and of the date by which processing of the request can be expected to be 
completed. Where the extension is for more than ten working days, TVA 
shall provide the requester with an opportunity either to modify the 
request so that it may be processed within the time limits or to arrange 
an alternative time period with TVA for processing the request or a 
modified request. As used in this paragraph, `unusual circumstances` 
means, but only to the extent reasonably necessary to the proper 
processing of the particular requests:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject matter interest therein.
    (2) When TVA reasonably believes that multiple requests submitted by 
a requester, or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve unusual circumstances, and 
the requests involve clearly related matters, they may be aggregated, as 
defined in Sec. 1301.10(h). Multiple requests by a requester involving 
unrelated matters will not be aggregated.
    (d) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever TVA determines that they 
involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity which 
affect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing must be sent to and 
received by TVA's FOIA Officer.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the

[[Page 138]]

best of that person's knowledge and belief, explaining in detail the 
basis for requesting expedited processing. For example, a requester 
within the category in paragraph (d)(1)(ii) of this section, if not a 
full-time member of the news media, must establish that he or she is a 
person whose main professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. A 
requester within the category in paragraph (d)(1)(ii) of this section 
also must establish a particular urgency to inform the public about the 
government activity involved in the request, beyond the public's right 
to know about government activity generally. The formality of 
certification may be waived as a matter of administrative discretion.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, TVA's FOIA Officer shall decide whether to grant it and 
shall notify the requester of the decision. If a request for expedited 
treatment is granted, the request shall be given priority and shall be 
processed as soon as practicable. If a request for expedited processing 
is denied, any appeal of that decision shall be acted upon 
expeditiously.



Sec. 1301.6  Responses to requests.

    (a) Acknowledgements of requests. On receipt of a request, the FOIA 
Officer ordinarily shall send an acknowledgement letter to the requester 
which shall confirm the requester's agreement to pay fees under 
Sec. 1301.10 and provide an assigned request number for further 
reference.
    (b) Grants of requests. Ordinarily, TVA shall have twenty business 
days from when a request is received to determine whether to grant or 
deny the request. Once TVA makes a determination to grant a request in 
whole or in part, it shall notify the requester in writing. The FOIA 
Officer shall inform the requester in the notice of any fee charged 
under Sec. 1301.10 and shall disclose records to the requester promptly 
on payment of any applicable fee, if the fee is equal to or more than 
$100. If the fee is less than $100, the FOIA officer shall disclose the 
records along with a statement of the fee. Records disclosed in part 
shall be marked or annotated to show the amount of information deleted 
unless doing so would harm an interest protected by an applicable 
exemption. The location of the information deleted also shall be 
indicated on the record, if technically feasible.
    (c) Adverse determinations of requests. If TVA makes an adverse 
determination denying a request in any respect, they shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, consist of: a determination to withhold any 
requested record in whole or in part; a determination that a requested 
record does not exist or cannot be located; a determination that a 
record is not readily reproducible in the form or format sought by the 
requester; a determination that what has been requested is not a record 
subject to the FOIA; a determination on any disputed fee matter, 
including a denial of a request for a fee waiver; and a denial of a 
request for expedited treatment. The denial letter shall be signed by 
the FOIA Officer or the FOIA Officer's designee, and shall include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason(s) for the denial, including any 
FOIA exemption applied by TVA in denying the request;
    (3) An estimate of the volume of records or information withheld, in 
number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by an applicable 
exemption; and
    (4) A statement that the denial may be appealed under Sec. 1301.9 
and a description of the requirements of Sec. 1301.9.



Sec. 1301.7  Exempt records.

    (a) Records available. TVA's records will be made available for 
inspection and copying upon request as provided in this section, except 
that records are exempt and are not made available if they are:
    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest

[[Page 139]]

of national defense or foreign policy and
    (ii) Are in fact properly classified pursuant to such Executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
TVA;
    (3) Specifically exempted from disclosure by statute;
    (4) Trade secrets and commercial or financial information obtained 
from any person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a private party in litigation with TVA, 
including without limitation records relating to control and accounting 
for special nuclear material and to the physical security plans for the 
protection of TVA's nuclear facilities;
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings,
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication,
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy,
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source,
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operation, or condition 
reports prepared by, on behalf of, or for the use of any agency 
responsible for the regulation or supervision of financial institution; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (b) The availability of certain classes of nonexempt records is 
deferred for such time as TVA may determine is reasonably necessary to 
avoid interference with the accomplishment of its statutory 
responsibilities. Such records include bids and information concerning 
the identity and number of bids received prior to bid opening; all 
nonexempt records relating to bids between the time of bid opening and 
award; and all nonexempt records relating to negotiations in progress 
involving contracts or agreements for the acquisition or disposal of 
real or personal property by TVA prior to the conclusion of such 
negotiations. Any reasonably segregable portion of an available record 
shall be provided to any person requesting such record after deletion of 
the portions which are exempt under this paragraph.



Sec. 1301.8  Business information.

    (a) In general. Business information obtained by TVA from a 
submitter will be disclosed under the FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by TVA from a submitter that may be protected from disclosure 
under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom TVA obtains 
business information, directly or indirectly. The term includes 
corporations; state and local governments; and foreign governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the

[[Page 140]]

time of submission or at a reasonable time thereafter, any portions of 
its submission that it considers to be protected from disclosure under 
Exemption 4. These designations will expire ten years after the date of 
the submission unless the submitter requests, and provides justification 
for, a longer designation period.
    (d) Notice to submitters. TVA shall provide a submitter with prompt 
written notice of a FOIA request or administrative appeal that seeks its 
business information wherever required under paragraph (e) of this 
section, except as provided in paragraph (h) of this section, in order 
to give the submitter an opportunity to object to disclosure of any 
specified portion of that information under paragraph (f) of this 
section. The notice shall either describe the business information 
requested or include copies of the requested records or record portions 
containing the information. When notification of a voluminous number of 
submitters is required, notification may be made by posting or 
publishing the notice in a place reasonably likely to accomplish 
notification of submitters.
    (e) Where notice is required. Notice shall be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) TVA has reason to believe that the information may be protected 
from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. TVA will allow a submitter 
a reasonable time to respond to the notice described in paragraph (d) of 
this section. If a submitter has any objection to disclosure, it is 
required to submit a detailed written statement. The statement must 
specify all grounds for withholding any portion of the information under 
any exemption of the FOIA and, in the case of Exemption 4, it must show 
why the information is a trade secret or commercial or financial 
information that is privileged or confidential. In the event that a 
submitter fails to respond to the notice within the time specified in 
it, the submitter will be considered to have no objection to disclosure 
of the information. Information provided by the submitter that is not 
received by TVA until after its disclosure decision has been made shall 
not be considered by TVA. Information provided by a submitter under this 
paragraph may itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. TVA shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether to 
disclose business information. Whenever TVA decides to disclose business 
information over the objection of a submitter, TVA shall give the 
submitter written notice, which shall include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed, and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) TVA determines that the information should not be disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or by applicable regulation; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
the component shall, within a reasonable time prior to a specified 
disclosure date, give the submitter written notice of any final decision 
to disclose the information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, TVA shall 
promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever TVA provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, TVA shall also notify the requester(s). 
Whenever TVA notifies a submitter of its intent to disclose requested 
information under paragraph

[[Page 141]]

(g) of this section, TVA shall also notify the requester(s). Whenever a 
submitter files a lawsuit seeking to prevent the disclosure of business 
information, TVA shall notify the requester(s).



Sec. 1301.9  Appeals.

    (a) Appeals of adverse determinations. If you are dissatisfied with 
TVA's response to your request, you may appeal an adverse determination 
denying your request, in any respect, to TVA's FOIA Appeal Official, the 
Vice President, External Communications, Tennessee Valley Authority, 400 
Summit Hill Drive (ET 6A), Knoxville, TN 37902-1499. You must make your 
appeal in writing and it must be received by the Vice President, 
External Communications within 30 days of the date of the letter denying 
your request. Your appeal letter may include as much or as little 
related information as you wish, as long as it clearly identifies the 
TVA determination (including the assigned request number, if known) that 
you are appealing. An adverse determination by the TVA Appeal Official 
will be the final action of TVA.
    (b) Responses to appeals. The decision on your appeal will be made 
in writing within 20 days (excluding Saturdays, Sundays, and legal 
holidays) after an appeal is received. A decision affirming an adverse 
determination in whole or in part shall contain a statement of the 
reason(s) for the affirmance, including any FOIA exemption(s) applied, 
and will inform you of the FOIA provisions for court review of the 
decision. If the adverse determination is reversed or modified on 
appeal, in whole or in part, you will be notified in a written decision 
and your request will be reprocessed in accordance with that appeal 
decision.
    (c) When appeal is required. If you wish to seek review by a court 
of any adverse determination, you must first appeal it under this 
section.

[64 FR 4044, Jan. 27, 1999, as amended at 65 FR 16513, Mar. 29, 2000; 67 
FR 14853, Mar. 28, 2002]



Sec. 1301.10  Fees.

    (a) In general, TVA shall charge for processing requests under the 
FOIA in accordance with paragraph (c) of this section, except where fees 
are limited under paragraph (d) of this section or where a waiver or 
reduction of fees is granted under paragraph (k) of this section. If the 
applicable fees are $100 or more, TVA ordinarily will collect all 
applicable fees before sending copies of requested records to a 
requester. If the applicable fees are less than $100, TVA ordinarily 
will bill the requester for the fees in the letter responding to the 
request and enclosing the requested records. Requesters must pay fees by 
check or money order made payable to the Tennessee Valley Authority.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include furthering 
those interests through litigation. TVA shall determine, whenever 
reasonably possible, the use to which a requester will put the requested 
records. When it appears that the requester will put the records to a 
commercial use, either because of the nature of the request itself or 
because TVA has reasonable cause to doubt a requester's stated use, TVA 
shall provide the requester a reasonable opportunity to submit further 
clarification.
    (2) Direct costs means those expenses that TVA actually incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records to respond to a FOIA request. Direct costs 
include, for example, the salary of the employee performing the work 
(the basic rate of pay for the employee, plus 16 percent of that rate to 
cover benefits, unless the fee is a standard TVA fee as set forth in 
paragraph (c) of this section) and the cost of operating duplication 
machinery. Not included in direct costs are overhead expenses such as 
the costs of space and heating or lighting of the facility in which the 
records are kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk), among

[[Page 142]]

others. TVA shall honor a requester's specified preference of form or 
format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, or an 
institution of professional education, or an institution of vocational 
education, that operates a program of scholarly research. To be in this 
category, a requester must show that the request is authorized by and is 
made under the auspices of a qualifying institution and that the records 
are not sought for commercial or private use, but are sought to further 
scholarly research.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)(1) of this section, and that is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry. To be in this 
category, a requester must show that the request is authorized by and is 
made under the auspices of a qualifying institution and that the records 
are not sought for a commercial or private use but are sought to further 
scientific research.
    (6) Representative of the news media, or news media requester, means 
any person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only in those instances where they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they must 
demonstrate a solid basis for expecting publication through that 
organization. A publication contract would be the clearest proof, but 
TVA shall also look to the past publication record of a requester in 
making this determination. To be in this category, a requester must not 
be seeking the requested records for a commercial or private use. 
However, a request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a commercial 
use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. It also includes processing any record for disclosure--for 
example, doing all that is necessary to redact it and prepare it for 
disclosure. Review costs are recoverable even if a record ultimately is 
not disclosed. Review time includes time spent considering any formal 
objection to disclosure made by a business submitter under Sec. 1301.8, 
but does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. TVA shall ensure that 
searches are done in the most efficient and least expensive manner 
reasonably possible. For example, TVA shall not search line-by-line 
where duplicating an entire document would be quicker and less 
expensive.
    (c) Fees. In responding to a FOIA request, TVA shall charge the 
following fees unless a waiver or reduction of fees has been granted 
under paragraph (k) of this section:
    (1) Search time charges for other than computer searches. For time 
spent by clerical employees in searching files, the charge is $14.90 per 
hour. For time spent by supervisory and professional employees, the 
charge is $34.30 per hour.
    (2) Duplication charges. For photostatic reproduction of requested 
material which consists of sheets no larger than 8\1/2\ by 14 inches, 
the charge is 10 cents per page. For copies produced by

[[Page 143]]

computer, such as tapes or printouts, TVA will charge the direct costs, 
including operator time, of producing the copy. For other forms of 
duplication, TVA will charge the direct cost of that duplication.
    (3) Review charges. Review fees will be charged to requesters who 
make a commercial use request. Review fees will be charged only for the 
initial record review--in other words, the review done when TVA 
determines whether an exemption applies to a particular record or record 
portion at the initial request level. No charge will be made for review 
at the administrative appeal level for an exemption already applied. 
However, record or record portions withheld under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
whether any other exemption not previously considered applies; the costs 
of that review are chargeable where it is made necessary by a change of 
circumstances. Review fees will be charged at the same rates as those 
charged for a search under paragraph (c)(1) of this section.
    (d) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (2) No search fee or review fee will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, TVA 
will provide the following without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); and
    (ii) The first two hours of search (or the cost equivalent).
    (4) No fee is charged to any requester if the cost of collecting the 
fee would be equal to or greater than the fee itself.
    (5) The provisions of paragraphs (d)(3) and (4) of this section work 
together. This means that for requesters other than those seeking 
records for a commercial use, no fee will be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages is equal to or greater than the fee itself.
    (e) Notice of anticipated fees in excess of $25.00. When TVA 
determines or estimates that the fees to be charged under this section 
will amount to more than $25.00, TVA shall notify the requester of the 
actual or estimated amount of the fees, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fee can be estimated readily, TVA shall advise the 
requester that the estimated fee may be only a portion of the total fee. 
In cases in which a requester has been notified that actual or estimated 
fees amount to more than $25.00, the request shall not be considered 
received and further work shall not be done on it until the requester 
agrees to pay the anticipated total fee. Any such agreement should be 
documented in writing. A notice under this paragraph will offer the 
requester an opportunity to discuss the matter with TVA personnel in 
order to reformulate the request to meet the requester's needs at a 
lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, when TVA chooses as a matter of administrative discretion 
to provide a special service--such as certifying that records are true 
copies or sending them by other than ordinary mail--the direct costs of 
providing the service ordinarily will be charged.
    (g) Charging interest. TVA may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 
and will accrue from the date of the billing until payment is received 
by TVA.
    (h) Aggregating requests. When TVA reasonably believes that a 
requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, TVA may aggregate those requests and charge accordingly. TVA may 
presume that multiple requests of this type made within a 30-day period 
have been made in order to avoid fees. Where requests are separated by a 
longer period, TVA will aggregate them only where there exists a solid 
basis for determining that aggregation is warranted under all of the

[[Page 144]]

circumstances involved. Multiple requests involving unrelated matters 
will not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) and (3) of this section, TVA shall not require the 
requester to make an advance payment-in other words, a payment made 
before work is begun or continued on a request. Payment owed for work 
already completed (i.e., a prepayment before copies are sent to a 
requester) is not an advance payment.
    (2) Where TVA determines or estimates that a total fee to be charged 
under this section will be more than $250.00, it may require the 
requester to make an advance payment of an amount up to the amount of 
the entire anticipated fee before beginning to process the request, 
except where it receives a satisfactory assurance of full payment from a 
requester that has a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to TVA or another agency within 30 days of the date of 
billing, TVA may require the requester to pay the full amount due, plus 
any applicable interest, and to make an advance payment of the full 
amount of any anticipated fee, before TVA begins to process a new 
request or continues to process a pending request from that requester.
    (4) In cases in which TVA requires advance payment or payment due 
under paragraph (i) (2) or (3) of this section, the request shall not be 
considered received and further work will not be done on it until the 
required payment is received.
    (j) Other fees for TVA published materials. The fee schedule of this 
section does not apply to fees charged by TVA for documents, including 
maps or reports and the like, which TVA sells to the public at 
established prices. Where records responsive to requests are maintained 
for distribution and sale by TVA at established prices. TVA will inform 
requesters of the steps for obtaining records from those sources so that 
they may do so most economically.
    (k) Waiver or reduction of fees. (1) Records responsive to a request 
will be furnished without charge or at a charge reduced below that 
established under paragraph (c) of this section where TVA determines, 
based on all available information, that the requester has documented 
that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
TVA will consider the following factors:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' The 
subject of the requested records must concern identifiable operations or 
activities of the federal government, with a connection that is direct 
and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding where nothing new would be 
added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public shall be considered. It shall be presumed that 
a representative of

[[Page 145]]

the news media will satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a significant extent. TVA shall not make 
value judgments about whether information that would contribute 
significantly to public understanding of the operations or activities of 
the government is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
TVA will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. TVA shall consider any commercial interest of the 
requester (with reference to the definition of ``commercial use'' in 
paragraph (b) (1) of this section), or of any person on whose behalf the 
requester may be acting, that would be furthered by the requested 
disclosure. Requesters shall be given an opportunity in the 
administrative process to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure. Whether any identified 
commercial interest of the requester is sufficiently large, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. TVA ordinarily shall 
presume that where a news media requester has satisfied the public 
interest standard, the public interest will be the interest primarily 
served by disclosure to that requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return shall not be presumed to primarily serve the public 
interest.
    (4) Where only some of the requested records satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k) (2) and (3) of this section, insofar as 
they apply to each request. TVA will exercise their discretion to 
consider the cost-effectiveness of their investment of administrative 
resources in this decisionmaking process, however, in deciding to grant 
waivers or reductions of fees.



                         Subpart B--Privacy Act

    Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552a.

    Source: 40 FR 45313, Oct. 1, 1975, unless otherwise noted. 
Redesignated at 44 FR 30682, May 29, 1979.



Sec. 1301.11  Purpose and scope.

    (a) The regulations in Secs. 1301.11 to 1301.24 implement section 3 
of the Privacy Act of 1974, 5 U.S.C. 552a, with respect to systems of 
records maintained by TVA. They provide procedures by which an 
individual may exercise the rights granted by the Act to determine 
whether a TVA system contains a record pertaining to him; to gain access 
to such records; to have a copy made of all or any portion thereof; and 
to request administrative correction or amendment of such records. They 
prescribe fees to be charged for copying records; establish 
identification requirements; list penalties provided by statute for 
certain violations of the Act; and establish exemptions from certain 
requirements of the Act for certain TVA systems or components thereof.
    (b) Nothing in Secs. 1301.11 to 1301.24 entitles an individual to 
any access to any information or record compiled in reasonable 
anticipation of a civil action or proceeding.
    (c) Certain records of which TVA may have physical possession are 
the official records of another government agency which exercises 
dominion and control over the records, their content, and access 
thereto. In such cases, TVA's maintenance of the records is subject to 
the direction of the other

[[Page 146]]

government agency. Except for a request for a determination of the 
existence of the record, when TVA receives requests related to these 
records, TVA will immediately refer the request to the controlling 
agency for all decisions regarding the request, and will notify the 
individual making the request of the referral.



Sec. 1301.12  Definitions.

    For purposes of Secs. 1301.11 to 1301.24:
    (a) The Act means section 3 of the Privacy Act of 1974, 5 U.S.C. 
552a;
    (b) The terms individual, maintain, record, system of records, 
statistical record, and routine use have the meaning provided for by the 
Act;
    (c) The term TVA system means a system of records maintained by TVA;
    (d) The term TVA system notice means a notice of a TVA system 
published in the Federal Register pursuant to the Act. TVA has published 
TVA system notices about the following TVA systems:

Apprentice Training Record System--TVA.
Personnel Files--TVA.
Upgrade Craft Training Program--TVA.
Demonstration Farm Records--TVA.
Discrimination Complaint Files--TVA.
Employee Accident Information System--TVA.
Employee Accounts Receivable--TVA.
Employee Alleged Misconduct Investigatory Files--TVA.
Medical Record System--TVA.
Employee Statement of Employment and Financial Interests--TVA.
Payroll Records--TVA.
Travel History Records--TVA.
Employment Applicant Files--TVA.
Grievance Records--TVA.
LAND BETWEEN THE LAKES[reg] Hunter Records--TVA.
LAND BETWEEN THE LAKES[reg] Register of Law Violations--TVA.
Employee Supplementary Vacancy Announcement Records--TVA.
Consultant and Personal Service Contractor Records--TVA.
Nuclear Quality Assurance Personnel Records--TVA.
Questionnaire--Farms in Vicinity of Proposed or Licensed Nuclear Power 
Plant--TVA.
Radiation Dosimetry Personnel Monitoring Records--TVA.
Retirement System Records--TVA.
Test Demonstration Farm Records--TVA.
Woodland Resource Analysis Program Input Data--TVA.
Electricity Use, Rate, and Service Study Records--TVA.
LAND BETWEEN LAKES[reg] Mailing Lists--TVA.
OIG Investigative Records--TVA.
Call Detail Records--TVA.
Office of Nuclear Power Call Detail Records--TVA.
Project/Tract Files--TVA.
Building Access Security Records--TVA.
Section 26a Permit Applications--TVA.

    (e) The term appellant means an individual who has filed an appeal 
pursuant to Sec. 1301.19(a) from an initial determination refusing to 
amend a record on request of the individual;
    (f) The term reviewing official means TVA's Vice President, Employee 
Worklife, or another TVA official designated by the Vice President in 
writing to decide an appeal pursuant to Sec. 1301.19;
    (g) The term day, when used in computing a time period, excludes 
Saturdays, Sundays, and legal public holidays.

[40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 53 FR 30252, Aug. 11, 1988; 56 FR 9288, Mar. 6, 1991; 57 
FR 33634, July 30, 1992; 57 FR 59803, Dec. 16, 1992]



Sec. 1301.13  Procedures for requests pertaining to individual records in a record system.

    (a) An individual may, in accordance with this section (1) request a 
TVA determination whether a record retrieved by the individual's name or 
other personal identifier is maintained in a TVA system, and (2) request 
access to such a record. A request for determination may be combined 
with a request for access.
    (b) Requests under this section shall:
    (1) Be in writing and signed by the individual seeking the 
determination or access;
    (2) Include the individual's mailing address;
    (3) Name the TVA system as listed in the TVA system notice;
    (4) Include any additional identifying information specified in the 
paragraph headed ``Notification procedure'' in the applicable TVA system 
notice;
    (5) Specify whether the request is for determination only or for 
both determination and access; and

[[Page 147]]

    (6) Include such proof of identity as may be required by 
Sec. 1301.14 and the applicable system notice.

Requests may be presented in person or by mail. In-person requests shall 
be presented during normal TVA business hours, as set out in 
Sec. 1301.14(g).
    (c) Requests for determination only shall be presented to the 
official designated in the paragraph headed ``Notification procedure'' 
in the TVA system notice for the TVA system concerned. Requests for both 
determination and access shall be presented to the official designated 
in the paragraph headed ``Access procedure'' in the TVA system notice 
for the TVA system concerned. Certain TVA system notices designate 
officials at field locations of TVA systems. With respect to such TVA 
systems, an individual who believes his record is located at the field 
location may present a request to the designated official at the field 
location. If the record is not available at that field location, the 
request will be forwarded to the appropriate TVA office.
    (d) If a request is for determination only, the determination will 
normally be made within 10 days after receipt of the request. If the 
determination cannot be made within 10 days after receipt of a request, 
the designated official will acknowledge the request in writing and 
state when the determination will be made. Upon making a determination, 
the designated official will notify the individual making the request 
whether the record exists. The notice will include any additional 
information necessary to enable the individual to request access to the 
record.
    (e) A request which includes a request for access will be 
acknowledged within 10 days after receipt. If access can be granted as 
requested, the acknowledgment will provide a time and place for 
disclosure of the requested record. Disclosure will normally be made 
within 30 days of the date of the acknowledgement, but the designated 
official may extend the 30-day period for reasons found by him to be 
good cause. In case of an extension, TVA will notify the individual, in 
writing, that disclosure will be delayed, the reasons for delay, and the 
anticipated date on which the individual may expect the record to be 
disclosed. TVA will attempt to accommodate reasonable requests for 
disclosure at specified times and dates, as set forth in a request for 
access, so far as compatible with the conduct of TVA business.



Sec. 1301.14  Times, places, and requirements for identification of individuals making requests.

    (a) TVA will require proof of identity, in accordance with this 
section, before it will disclose a record under Sec. 1301.15 of this 
part to an individual requesting access to the record, and before it 
will disclose the existence of a record to a requester under 
Sec. 1301.13 of this part, if TVA determines that disclosure of the 
existence of such record would constitute an unwarranted invasion of 
personal privacy.
    (b) Identification normally required would be an identification card 
such as a valid state driver's license or TVA or other employee 
identification card. A comparison of the signature of the requester with 
either the signature on the card or a signature in the record may be 
used to confirm identity.
    (c) Because of the sensitivity of the subject matter in a TVA 
system, a TVA system notice may prescribe special identification 
requirements for the disclosure of the existence of or access to records 
in that TVA system. In such case, the special identification 
requirements prescribed in the TVA system notice shall apply in lieu of 
those prescribed by paragraph (b) of this section.
    (d) If TVA deems it warranted by the nature of identification 
presented, the subject matter of the material to be disclosed, or other 
reasons found by TVA to be sufficient, TVA may require the individual 
requesting access to sign a statement asserting identity and stating 
that the individual understands that knowingly or willfully seeking or 
obtaining access to records about another person under false pretenses 
is punishable by a fine of up to $5,000.
    (e) Where TVA is requested to provide access to records by mailing 
copies of records to the requester, the request shall contain or be 
accompanied by adequate identifying information to make it likely the 
requester is the person he purports to be and a notarized statement 
asserting identity and stating that the individual understands

[[Page 148]]

that knowingly or willfully seeking or obtaining access to records about 
another person under false pretenses is punishable by a fine of up to 
$5,000.
    (f) Where sensitivity of record information may warrant (i.e., 
unauthorized access could cause harm or embarrassment to the individual) 
or disclosure by mail to third persons is requested, TVA may require in-
person confirmation of identity. If in-person confirmation of identity 
is required, the individual may arrange with the designated TVA official 
to provide such identification at any of these TVA locations convenient 
to the individual: Knoxville, Nashville, and Chattanooga, Tennessee; 
Muscle Shoals, Alabama; Washington, DC, or another location agreed upon 
by the individual and the designated TVA official. Upon request the TVA 
official will provide an address and an appropriate time for such 
identification to be presented.
    (g) In general, TVA offices located in the eastern time zone are 
open 8 a.m. to 4:45 p.m., and those in the central time zone 7:30 a.m. 
to 4:15 p.m. Construction project offices and Land Between The Lakes are 
generally open 7 a.m. to 3:30 p.m. Offices are closed on Saturdays, 
Sundays, and the following holidays: New Year's Day, Birthday of Martin 
Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, 
Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas 
Day.

[40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 53 FR 30253, Aug. 11, 1988]



Sec. 1301.15  Disclosure of requested information to individuals.

    (a) All disclosure and examination of records shall normally be made 
in the presence of a TVA representative. If an individual wishes to be 
accompanied by a third person of the individual's choosing when the 
record is disclosed, TVA may require the individual to furnish TVA, in 
advance of disclosure of the record, a statement signed by the 
individual authorizing discussion and disclosure of the record in the 
presence of the accompanying person. If desired by the individual, TVA 
shall provide copies of any documents reviewed in the record which are 
requested at the time of review. Fees shall be charged for such copies 
in accordance with the fee schedule in Sec. 1301.21, and shall be 
payable prior to delivery of the copies to the individual.
    (b) Where permitted by Sec. 1301.14, copies of an individual's 
record will be made available by mail. A charge for copies will be made 
in accordance with Sec. 1301.21 of this part. All fees due shall be paid 
prior to mailing of the materials. However, if TVA is unable to allow 
in-person review of the record, the first copy will be made available 
without charge.



Sec. 1301.16  Special procedures--medical records.

    If, in the judgment of TVA, the transmission of medical records, 
including psychological records, directly to a requesting individual 
could have an adverse effect upon such individual, TVA may refuse to 
disclose such information directly to the individual. TVA will, however, 
disclose this information to a licensed physician designated by the 
individual in writing.



Sec. 1301.17  Requests for correction or amendment of record.

    (a) An individual may request amendment of records pertaining to him 
in a TVA system to the extent permitted by the Act in accordance with 
this section. A request for amendment shall:
    (1) Be in writing and signed by the individual seeking the 
amendment;
    (2) Name the TVA system in which the record is maintained;
    (3) Describe the item or items of information to be amended;
    (4) Describe the nature of the amendment requested; and
    (5) Give the reasons for the requested change.
    (b) Requests shall be made to the official designated in the 
paragraph headed ``Contesting record procedures'' in the TVA system 
notice for the TVA system concerned. Before considering a request, TVA 
may require proof of identity of the requester similar to that required 
under Sec. 1301.14 to gain access to the record.
    (c) The individual requesting amendment has the responsibility of 
providing TVA with evidence of why his record should be amended, and 
must

[[Page 149]]

provide adequate evidence to TVA to justify his request.
    (d) The provisions of Secs. 1301.11 to 1301.24 of this part do not 
permit the alteration of evidence presented or to be presented in the 
course of judicial or administrative proceedings; neither do they permit 
collateral attack on a prior judicial or administrative action, or 
provide a collateral remedy for a matter otherwise judicially or 
administratively cognizable.

[40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 53 FR 30253, Aug. 11, 1988]



Sec. 1301.18  TVA review of request for correction or amendment of record.

    (a) TVA will acknowledge a request for amendment within 10 days of 
receipt. The acknowledgement will be in writing, will request any 
additional information TVA requires to determine whether to make the 
requested correction or amendment, and will indicate the date by which 
TVA expects to make its initial determination.
    (b) TVA will, except in unusual circumstances, complete its 
consideration of requests to amend records within 30 days. If more time 
is deemed necessary, TVA will notify the individual of the delay and of 
the expected date of completion of the review.
    (c) If TVA determines that a record should be corrected or amended, 
in whole or in part, in accordance with a request, it will advise the 
requesting individual in writing of its determination, and correct or 
amend the record accordingly. If an accounting of disclosures has been 
made, TVA will, to the extent of the accounting, inform prior recipients 
of the record of the fact that the correction was made and the substance 
of the correction.
    (d) If TVA, after initial consideration of a request, determines 
that a record should not be corrected or amended, in whole or in part, 
in accordance with a request, it will notify the individual in writing 
of its refusal to amend the record and the reasons therefor. The 
notification will inform the individual that the refusal may be appealed 
administratively and will advise the individual of the procedures for 
such appeals.



Sec. 1301.19  Appeals on initial adverse agency determination on correction or amendment.

    (a) An individual may appeal an initial determination refusing to 
amend that individual's record in accordance with this section. An 
appeal must be taken within 20 days of receipt of notice of TVA's 
initial refusal to amend the record and is taken by delivering a written 
notice of appeal to the Vice President, Employee Worklife, Tennessee 
Valley Authority, Knoxville, Tennessee 37902. Such notice shall be 
signed by the appellant and shall state:
    (1) That it is an appeal from a denial of a request to amend the 
individual's records under these regulations and under the Privacy Act 
of 1974;
    (2) The reasons why the appellant believes the denial to have been 
erroneous;
    (3) The date on which the denial was issued; and
    (4) The date on which the denial was received by the appellant.
    (b) Appeals shall be determined by a reviewing official. Such 
determination may be based on information provided for the initial 
determination; any additional information which TVA or the appellant may 
desire to provide; and any other material the reviewing official deems 
relevant to the determination. The reviewing official, in his sole 
discretion, may request TVA or the appellant to provide additional 
information deemed relevant to the appeal. The appellant will be given 
an opportunity to respond to any information provided by TVA or 
independently procured by the reviewing official. If in the sole 
discretion of the reviewing official a hearing is deemed necessary for 
resolution of the appeal, the reviewing official may conduct a hearing 
upon notice to TVA and the appellant, at which both TVA and the 
appellant shall be afforded an opportunity to be heard on the appeal. 
The rules governing any hearing will be set forth in the notice of 
hearing.
    (c) The reviewing official shall make final determination on the 
appeal within 30 days after it is received unless such period is 
extended for good cause. If the reviewing official finds good cause for 
an extension, TVA will inform the appellant in writing of the

[[Page 150]]

reason for the delay and of the approximate date on which the reviewing 
official expects to complete his determination of the appeal.
    (d) If the reviewing official determines that a record should be 
amended in whole or in part in accordance with an appellant's request, 
TVA will inform the appellant in writing of its determination and 
correct or amend the record. If an accounting of disclosures has been 
made, TVA will, to the extent of the accounting, inform prior recipients 
of the record of the fact that the correction was made and of the 
substance of the correction.
    (e) If the reviewing official determines not to amend a record, in 
whole or in part, in accordance with a request, TVA will advise the 
individual:
    (1) Of its refusal to amend and the reasons therefor;
    (2) Of the appellant's right to file a concise statement of reasons 
for disagreement with the refusal as set out in paragraph (f) of this 
section;
    (3) Of the procedures for filing a statement of disagreement;
    (4) That any statement of disagreement will be made available to 
anyone to whom the record is subsequently disclosed together with any 
statement by TVA summarizing its reasons for refusing to amend the 
record;
    (5) That prior recipients of the disputed record will be provided a 
copy of any statement of dispute to the extent that an accounting of 
disclosures was maintained; and
    (6) Of his or her right to seek judicial review of the agency's 
refusal to amend a record.
    (f) If the reviewing official's final determination of an appeal is 
a refusal to correct or amend a record, in whole or in part, in 
accordance with the request, the appellant may file with TVA a concise 
statement setting forth the reasons for his or her disagreement with the 
refusal of TVA to amend the records. Such statements normally should not 
exceed 100 words. A statement of disagreement should be submitted within 
30 days of receipt of notice of the reviewing official's decision on the 
appeal, and should be sent to system manager. In any disclosure 
containing information about which the individual has filed a statement 
of disagreement which occurs after the filing of the statement, TVA will 
clearly note any portion of the record which is disputed and provide 
copies of the statement with the disclosure. Copies of the statement 
will also be furnished to persons or other agencies to whom the record 
has been disclosed to the extent that an accounting of disclosures was 
made. TVA may attach to the statement of disagreement a brief summary of 
TVA's reasons for refusing to amend the record. Such summaries will be 
disclosed to the individual, but are not subject to amendment.

[40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 53 FR 30253, Aug. 11, 1988; 57 FR 33634, July 30, 1992]



Sec. 1301.20  Disclosure of record to persons other than individual to whom it pertains.

    For purposes of Secs. 1301.11 to 1301.24, the parent of any minor or 
the legal guardian of any individual who has been declared incompetent 
due to physical or mental incapacity or age by a court of competent 
jurisdiction may act on behalf of the individual. TVA may require proof 
of the relationship prior to allowing such action. The parent or legal 
guardian may not act where the individual concerned objects to the 
action of the parent or legal guardian, unless a court otherwise orders.



Sec. 1301.21  Fees.

    (a) Fees to be charged, if any, to any individual for making copies 
of his or her record exclude the cost of any search and review of the 
record. The following fees are applicable:
    (1) For reproduction of material consisting of sheets no larger than 
8\1/2\ by 14 inches, ten cents per page; and
    (2) For reproduction of other materials, the direct cost of 
photostats or other means necessarily used for duplication.
    (b) [Reserved]



Sec. 1301.22  Penalties.

    Section 552a(i), Title 5, United States Code provides that:

    (1) Criminal Penalties. Any officer or employee of an agency, who by 
virtue of his employment or official position, has possession

[[Page 151]]

of, or access to, agency records which contain individually identifiable 
information the disclosure of which is prohibited by this section or by 
rules or regulations established thereunder, and who knowing that 
disclosure of the specific material is so prohibited, willfully 
discloses the material in any manner to any person or agency not 
entitled to receive it, shall be guilty of a misdemeanor and fined not 
more than $5,000.
    (2) Any officer or employee of any agency who willfully maintains a 
system of records without meeting the notice requirements of subsection 
(e)(4) of this section shall be guilty of a misdemeanor and fined not 
more than $5,000.
    (3) Any person who knowingly and willfully requests or obtains any 
record concerning an individual from an agency under false pretenses 
shall be guilty of a misdemeanor and fined not more than $5,000.



Sec. 1301.23  General exemptions.

    (a) Individuals may not have access to records maintained by TVA but 
which were provided by another agency which has determined by regulation 
that such information is subject to general exemption under 5 U.S.C. 
552a(j). If such exempt records are within a request for access, TVA 
will advise the individual of their existence and of the name and 
address of the source agency. For any further information concerning the 
record and the exemption, the individual must contact that source 
agency.
    (b) The TVA system ``Land Between The Lakes Register of Law 
Violations--TVA'' is exempted from subsections (c)(3), (4); (d); (e)(1), 
(2), (3), (4)(G), (4)(H), (4)(I), (5); (f); (g); and (h) of 5 U.S.C. 
552a and corresponding sections of these rules pursuant to section 
(j)(2) of 5 U.S.C. 552a (section 3 of the Privacy Act). Application of 
these provisions of the Privacy Act to the criminal law enforcement 
records in this system might interfere with effective law enforcement at 
the Land Between The Lakes.

[40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 53 FR 30253, Aug. 11, 1988]



Sec. 1301.24  Specific exemptions.

    (a) The TVA system ``Employee Alleged Misconduct Investigatory 
Files--TVA'' is exempted from subsections (c)(3); (d); (e)(1), (4)(G), 
(4)(H), (4)(I); and (f) of 5 U.S.C. 552a and corresponding sections of 
these rules pursuant to section (k)(2) of 5 U.S.C. 552a (section 3 of 
the Privacy Act). This TVA system is exempted because applications of 
these provisions to this system might impair investigations of employee 
misconduct.
    (b)(1) The TVA systems ``Apprentice Training Record System-TVA,'' 
``Consultant and Personal Service Contractor Records-TVA,'' ``Upgrade 
Craft Training Program-TVA,'' ``Employment Applicant Files-TVA,'' 
``Personnel Files-TVA,'' and ``Nuclear Quality Assurance Personnel 
Records-TVA'' are exempted from subsections (d); (e)(4)(H); (f)(2), (3), 
and (4) of 5 U.S.C. 552a and corresponding sections of these rules to 
the extent that disclosure of material would reveal the identity of a 
source who furnished information to the Government under an express 
promise that the identity of the source would be held in confidence, or 
prior to September 27, 1975, under an implied promise that the identity 
of the source would be held in confidence. These TVA systems are 
exempted pursuant to section (k)(5) of 5 U.S.C. 552a (section 3 of the 
Privacy Act).
    (2) Each of these TVA systems contain reference letters and 
information concerning employees and other individuals who perform 
services for TVA. TVA has received this information in the past under 
both express and implied promises of confidentiality and consistent with 
the Privacy Act these promises will be honored. Pledges of 
confidentiality will be necessary in the future to ensure that 
unqualified or unsuitable individuals are not selected for TVA 
positions. Without the ability to make these promises, a potential 
source of information may be unwilling to provide needed information, or 
may not be sufficiently frank to be of value in personnel screening.
    (c)(1) The TVA systems ``Apprentice Training Record System-TVA,'' 
``Consultant and Personal Service Contractor Records-TVA,'' ``Upgrade 
Craft Training Program-TVA,'' ``Employment Applicant Files-TVA,'' and 
``Personnel Files-TVA,'' are exempted from subsections (d); (e)(4)(H); 
(f)(2), (3), and (4) of 5 U.S.C. 552a and corresponding sections of 
these rules to the extent that disclosure of testing or examination 
material used solely to determine

[[Page 152]]

individual qualifications for appointment or promotion in the Federal 
service would compromise the objectivity or fairness of the testing or 
examination process. These systems are exempted pursuant to section 
(k)(6) of 5 U.S.C. 552a (section 3 of the Privacy Act).
    (2) This material is exempted because its disclosure would reveal 
information about the testing process which would potentially give an 
individual an unfair competitive advantage in selection based on test 
performance.
    (d) The TVA system OIG Investigative Records is exempt from 
subsections (c)(3), (d), (e)(1), (e)(4), (G), (H), and (I) and (f) of 5 
U.S.C. 552a (section 3 of the Privacy Act) and corresponding sections of 
these rules pursuant to 5 U.S.C. 552a(k)(2). The TVA system OIG 
Investigative Records is exempt from subsections (c)(3), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (e)(8), and (g) 
pursuant to 5 U.S.C. 552a(j)(2). This system is exempt because 
application of these provisions might alert investigation subjects to 
the existence or scope of investigations, lead to suppression, 
alteration, fabrication, or destruction of evidence, disclose 
investigative techniques or procedures, reduce the cooperativeness or 
safety of witnesses, or otherwise impair investigations.
    (e) The TVA system TVA Police Records is exempt from subsections 
(c)(3), (d), (e)(1), (e)(4), (G), (H), and (I) and (f) of 5 U.S.C. 552a 
(section 3 of the Privacy Act) and corresponding sections of these rules 
pursuant to 5 U.S.C. 552a(k)(2). The TVA system Police Records is exempt 
from subsections (c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), 
and (I), (e)(5), (e)(8), and (g) pursuant to 5 U.S.C. 552a(j)(2). This 
system is exempt because application of these provisions might alert 
investigation subjects to the existence or scope of investigations, lead 
to suppression, alteration, fabrication, or destruction of evidence, 
disclose investigative techniques or procedures, reduce the 
cooperativeness or safety of witnesses, or otherwise impair 
investigations.

[40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 53 FR 30253, Aug. 11, 1988; 56 FR 9288, Mar. 6, 1991; 61 
FR 2111, Jan. 25, 1996; 62 FR 4644, Jan. 31, 1997]



                Subpart C--Government in the Sunshine Act

    Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552b.

    Source: 42 FR 14086, Mar. 15, 1977, unless otherwise noted. 
Redesignated at 44 FR 30682, May 29, 1979.



Sec. 1301.41  Purpose and scope.

    (a) The provisions of this subpart are intended to implement the 
requirements of section 3(a) of the Government in the Sunshine Act, 5 
U.S.C. 552b, consistent with the purposes and provisions of the 
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831-831dd.
    (b) Nothing in this subpart expands or limits the present rights of 
any person under the Freedom of Information Act (5 U.S.C. 552) and the 
provisions of Subpart A of this part, except that the exemptions set 
forth in Sec. 1301.46 shall govern in the case of any request made 
pursuant to the Freedom of Information Act and Subpart A to copy or 
inspect the transcripts, recordings, or minutes described in 
Sec. 1301.47.
    (c) Nothing in this subpart authorizes TVA to withhold from any 
individual any record, including transcripts, recordings, or minutes 
required by this subpart, which is otherwise accessible to such 
individual under the Privacy Act (5 U.S.C. 552a) and the provisions of 
Subpart B.
    (d) The requirements of Chapter 33 of Title 44 of the United States 
Code shall not apply to the transcripts, recordings, and minutes 
described in Sec. 1301.47.



Sec. 1301.42  Definitions.

    For the purposes of this subpart:
    (a) The term Board means the Board of Directors of the Tennessee 
Valley Authority;
    (b) The term meeting means the deliberations of two or more members 
of the

[[Page 153]]

TVA Board where such deliberations determine or result in the joint 
conduct or disposition of official TVA business, but the term does not 
include deliberations required or permitted by Sec. 1301.44 or 
Sec. 1301.45;
    (c) The term member means an individual who is a member of the TVA 
Board; and
    (d) The term TVA means the Tennessee Valley Authority.



Sec. 1301.43  Open meetings.

    Members shall not jointly conduct or dispose of TVA business other 
than in accordance with this subpart. Except as provided in 
Sec. 1301.46, every portion of every meeting of the agency shall be open 
to public observation, and TVA shall provide suitable facilities 
therefor, but participation in the deliberations at such meetings shall 
be limited to members and certain TVA personnel. The public may make 
reasonable use of electronic or other devices or cameras to record 
deliberations or actions at meetings so long as such use is not 
disruptive of the meetings.

[42 FR 21470, Apr. 27, 1977. Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1301.44  Notice of meetings.

    (a) TVA shall make a public announcement of the time, place, and 
subject matter of each meeting, whether it is to be open or closed to 
the public, and the name and telephone number of a TVA official who can 
respond to requests for information about the meeting.
    (b) Such public announcement shall be made at least one week before 
the meeting unless two or more members determine by a recorded vote that 
TVA business requires that such meeting be called at an earlier date. If 
an earlier date is so established, TVA shall make such public 
announcement at the earliest practicable time.
    (c) Following a public announcement required by paragraph (a) of 
this section, the time or place of the meeting may be changed only if 
TVA publicly announces the change at the earliest practicable time. The 
subject matter of a meeting or the determination to open or close a 
meeting or portion of a meeting to the public may be changed following 
the public announcement required by paragraph (a) of this section only 
if two or more members determine by a recorded vote that TVA business so 
requires and that no earlier announcement of the change was possible and 
if TVA publicly announces such change and the vote of each member upon 
such change at the earliest, practicable time.
    (d) Immediately following each public announcement required by this 
section, notice of the time, place, and subject matter of a meeting, 
whether the meeting is open or closed, any change in one of the 
preceding, and the name and phone number of the TVA official designated 
to respond to requests for information about the meeting shall be 
submitted for publication in the Federal Register.



Sec. 1301.45  Procedure for closing meetings.

    (a) Action under Sec. 1301.46 to close a meeting shall be taken only 
when two or more members vote to take such action. A separate vote shall 
be taken with respect to each meeting a portion or portions of which are 
proposed to be closed to the public pursuant to Sec. 1301.46 or with 
respect to any information which is proposed to be withheld under 
Sec. 1301.46. A single vote may be taken with respect to a series of 
meetings, a portion or portions of which are proposed to be closed to 
the public, or with respect to any information concerning such series of 
meetings, so long as each meeting in such series involves the same 
particular matters and is scheduled to be held no more than 30 days 
after the initial meeting in such series. The vote of each member 
participating in such vote shall be recorded and no proxies shall be 
allowed.
    (b) Notwithstanding that the members may have already voted not to 
close a meeting, whenever any person whose interests may be directly 
affected by a portion of a meeting requests that the agency close such 
portion to the public for any of the reasons referred to in paragraphs 
(e), (f), or (g) of Sec. 1301.46, the Board, upon request of any one of 
its members made prior to the commencement of such portion, shall vote 
by recorded vote whether to close such portion of the meeting.

[[Page 154]]

    (c) Within one day of any vote taken pursuant to this section, TVA 
shall make publicly available in accordance with Sec. 1301.48 a written 
copy of such vote reflecting the vote of each member on the question. If 
a portion of a meeting is to be closed to the public, TVA shall, within 
one day of the vote taken pursuant to this section, make publicly 
available in accordance with Sec. 1301.48 a full written explanation of 
this action closing the portion together with a list of all persons 
expected to attend the meeting and their affiliation.
    (d) Prior to every meeting closed pursuant to Sec. 1301.46, there 
shall be a certification by the General Counsel of TVA stating whether, 
in his or her opinion, the meeting may be closed to the public and each 
relevant exemptive provision. A copy of such certification shall be 
retained by TVA and shall be made publicly available in accordance with 
Sec. 1301.48.



Sec. 1301.46  Criteria for closing meetings.

    Except in a case where the Board finds that the public interest 
requires otherwise, the second sentence of Sec. 1301.43 shall not apply 
to any portion of a meeting and such portion may be closed to the 
public, and the requirements of Secs. 1301.44 and 1301.45(a), (b), and 
(c) shall not apply to any information pertaining to such meeting 
otherwise required by this subpart to be disclosed to the public, where 
the Board properly determines that such portion or portions of its 
meeting or the disclosure of such information is likely to:
    (a) Disclose matters that are (1) specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interests of national defense or foreign policy and (2) in fact properly 
classified pursuant to such Executive order;
    (b) Relate solely to the internal personnel rules and practices of 
an agency;
    (c) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552), provided that such statute (1) 
requires that the matters be withheld from the public in such a manner 
as to leave no discretion on the issue, or (2) establishes particular 
criteria for withholding or refers to particular types of matters to be 
withheld;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime, or formally censuring 
any person;
    (f) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would:
    (1) Interfere with enforcement proceedings,
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (3) Constitute an unwarranted invasion of personal privacy,
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (5) Disclose investigative techniques and procedures, or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of any agency responsible for the regulation or supervision of 
financial institutions;
    (i) Disclose information the premature disclosure of which would:
    (1) In the case of any agency which regulates currencies, 
securities, commodities, or financial institutions, be likely to (i) 
lead to significant financial speculation in currencies, securities, or 
commodities, or (ii) significantly endanger the stability of any 
financial institution; or
    (2) In the case of any agency, be likely to significantly frustrate 
implementation of a proposed agency action, except that this provision 
shall not apply in any instance where the agency has

[[Page 155]]

already disclosed to the public the content or nature of its proposed 
action, or where the agency is required by law to make such disclosure 
on its own initiative prior to taking final action on such proposal; or
    (j) Specifically concern an agency's issuance of a subpena, or its 
participation in a civil action or proceeding, an action in a foreign 
court or international tribunal, or an arbitration, or the initiation, 
conduct, or disposition by an agency of a particular case of formal 
agency adjudication pursuant to the procedures in 5 U.S.C. 554 or 
otherwise involving a determination on the record after opportunity for 
a hearing.



Sec. 1301.47  Transcripts of closed meetings.

    (a) For every meeting closed pursuant to Sec. 1301.46, the presiding 
officer of the meeting shall prepare a statement setting forth the time 
and place of the meeting, and the persons present, and such statement 
shall be retained by TVA.
    (b) TVA shall maintain a complete transcript or electronic recording 
adequate to record fully the proceedings of each meeting, or portion of 
a meeting, closed to the public, except that in the case of a meeting, 
or portion of a meeting, closed to the public pursuant to paragraph (h), 
(i)(1), or (j) of Sec. 1301.46, TVA shall maintain either such a 
transcript or recording, or a set of minutes. Such minutes shall fully 
and clearly describe all matters discussed and shall provide a full and 
accurate summary of any actions taken, and the reasons therefor, 
including a description of each of the views expressed on any item and 
the record of any rollcall vote (reflecting the vote of each member on 
the question). All documents considered in connection with any action 
shall be identified in such minutes.
    (c) TVA shall maintain a complete verbatim copy of the transcript, a 
complete copy of the minutes, or a complete electronic recording of each 
meeting, or portion of a meeting, closed to the public, for a period of 
at least two years after such meeting, or until one year after the 
conclusion of any TVA proceeding with respect to which the meeting or 
portion was held, whichever occurs later.



Sec. 1301.48  Public availability of transcripts and other documents.

    (a) Public announcements of meetings pursuant to Sec. 1301.44, 
written copies of votes to change the subject matter of meetings made 
pursuant to Sec. 1301.44(c), written copies of votes to close meetings 
and explanations of such closings made pursuant to Sec. 1301.45(c) and 
certifications of the General Counsel made pursuant to Sec. 1301.45(d) 
shall be available for public inspection during regular business hours 
in the TVA Corporate Library, room WT 2F, 400 West Summit Hill Drive, 
Knoxville, Tennessee 37902-1499.
    (b) TVA shall make promptly available to the public at the location 
described in paragraph (a) of this section the transcript, electronic 
recording, or minutes (as required by Sec. 1301.47(b)) of the discussion 
of any item on the agenda, or of any item of the testimony of any 
witness received at the meeting, except for such item or items of such 
discussion or testimony as TVA determines to contain information which 
may be withheld under Sec. 1301.46. Each request for such material shall 
be made to the Manager, Media Relations, Tennessee Valley Authority, 
Knoxville, Tennessee 37902-1499; state that it is a request for records 
pursuant to the Government in the Sunshine Act and this subpart; and 
reasonably describe the discussion or item of testimony, and the date of 
the meeting, with sufficient specificity to permit TVA to identify the 
item requested.
    (c) In the event the person making a request under paragraph (b) of 
this section has reason to believe that all transcripts, electronic 
recordings, or minutes or portions thereof requested by that person and 
required to be made available under paragraph (b) of this section were 
not made available, the person shall make a written request to the 
Manager, Media Relations for such additional transcripts, electronic 
recordings, or minutes or portions thereof as that person believes 
should have been made available under paragraph (b) of this section and 
shall set forth in the request the reasons why such additional material 
is required to be made

[[Page 156]]

available with sufficient particularity for the Manager, Media Relations 
to determine the validity of such request. Promptly after a request 
pursuant to this paragraph is received, the Manager, Media Relations or 
his/her designee shall make a determination as to whether to comply with 
the request, and shall immediately give written notice of the 
determination to the person making the request. If the determination is 
to deny the request, the notice to the person making the request shall 
include a statement of the reasons for the denial, a notice of the right 
of the person making the request to appeal the denial to TVA's Senior 
Vice President, Communications and Employee Development, and the time 
limits thereof.
    (d) If the determination pursuant to paragraph (c) of this section 
is to deny the request, the person making the request may appeal such 
denial to TVA's Senior Vice President, Communications and Employee 
Development. Such an appeal must be taken within 30 days after the 
person's receipt of the determination by the Manager, Media Relations 
and is taken by delivering a written notice of appeal to the Senior Vice 
President, Communications and Employee Development, Tennessee Valley 
Authority, Knoxville, Tennessee 37902-1499. Such notice shall include a 
statement that it is an appeal, from a denial of a request under 
Sec. 1301.48(c) and the Government in the Sunshine Act and shall 
indicate the date on which the denial was issued and the date on which 
the denial was received by the person making the request. Promptly after 
such an appeal is received, TVA's Senior Vice President, Communications 
and Employee Development or the Senior Vice President's designee shall 
make a final determination on the appeal. In making such a 
determination, TVA will consider whether or not to waive the provisions 
of any exemption contained in Sec. 1301.46. TVA shall immediately give 
written notice of the final determination to the person making the 
request. If the final determination on the appeal is to deny the 
request, the notice to the person making the request shall include a 
statement of the reasons for the denial and a notice of the person's 
right to judicial review of the denial.
    (e) Copies of materials available for public inspection under this 
section shall be furnished to any person at the actual cost of 
duplication or transcription.

[42 FR 14086, Mar. 15, 1977. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 56 FR 55452, Oct. 28, 1991]



PART 1302--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF TVA--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents




Sec.
1302.1  Purpose.
1302.2  Application of this part.
1302.3  Definitions.
1302.4  Discrimination prohibited.
1302.5  Assurances required.
1302.6  Compliance information.
1302.7  Compliance reviews and conduct of investigations.
1302.8  Procedure for effecting compliance.
1302.9  Hearings.
1302.10  Decisions and notices.
1302.11  Judicial review.
1302.12  Effect on other regulations; supervision and coordination.

Appendix A to Part 1302--Federal Financial Assistance to Which These 
          Regulations Apply

    Authority: TVA Act, 48 Stat. 58 (1933) as amended, 16 U.S.C. 831-
831dd, and sec. 602 of the Civil Rights Act of 1964, 78 Stat. 252, 42 
U.S.C. 2000d-1.

    Source: 30 FR 311, Jan. 9, 1965, unless otherwise noted. 
Redesignated at 44 FR 30682, May 29, 1979.



Sec. 1302.1  Purpose.

    The purpose of this part is to effectuate the provisions of Title VI 
of the Civil Rights Act 1964 (hereafter referred to as the ``Act'') to 
the end that no person in the United States shall, on the ground of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program or activity receiving financial assistance from TVA.



Sec. 1302.2  Application of this part.

    This part applies to any program in which financial assistance is 
provided by TVA. The programs to which this

[[Page 157]]

part applies are listed in Appendix A of this part. Financial 
assistance, as used in this part, includes the grant or loan of money; 
the donation of real or personal property; the sale, lease, or license 
of real or personal property for a consideration which is nominal or 
reduced for the purpose of assisting the recipient; the waiver of 
charges which would normally be made, in order to assist the recipient; 
the entry into a contract where a purpose is to give financial 
assistance to the contracting party; and similar transactions. This part 
does not apply to:
    (a) Any financial assistance by way of insurance or guaranty 
contracts,
    (b) Money paid, property transferred, or other assistance extended 
under any such program before the effective date of this part,
    (c) Any assistance to any individual who is the ultimate beneficiary 
under any such program, or
    (d) Any employment practice, under any such program, of any 
employer, employment agency, or labor organization, unless such practice 
exists in a program where a primary objective of the TVA financial 
assistance is to provide employment; or where such practice subjects 
persons to discrimination in the provision of services and benefits on 
the grounds of race, color, or national origin in a program or activity 
receiving Federal financial assistance from TVA.

The fact that a program is not listed in Appendix A shall not mean, if 
Title VI of the Act is otherwise applicable, that such program is not 
covered. Other programs may be added to this list by notice published in 
the Federal Register.

[30 FR 311, Jan. 9, 1965. Redesignated at 44 FR 30682, May 29, 1979, and 
amended at 49 FR 20481, May 15, 1984]



Sec. 1302.3  Definitions.

    (a) TVA as used in these regulations, refers to the Tennessee Valley 
Authority, as created by the Tennessee Valley Authority Act of 1933, 48 
Stat. 58, as amended, 16 U.S.C. 831-831dd. See also paragraph (e) of 
Sec. 1302.6.
    (b) Recipient refers to any person, group, or other entity which 
either receives financial assistance from TVA, or which has been denied 
such assistance.
    (c) Assistant Attorney General refers to the Assistant Attorney 
General, Civil Rights Division, Department of Justice.
    (d) Title VI refers to Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d, et seq.

[49 FR 20481, May 15, 1984; 49 FR 47383, Dec. 4, 1984]



Sec. 1302.4  Discrimination prohibited.

    (a) General. No person in the United States shall, on the ground of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program or activity receiving Federal financial assistance 
from TVA. For the purposes of this part, the following definitions of 
race and ethnic group apply:
    (1) Black, not of Hispanic origin. A person having origins in any of 
the black racial groups of Africa;
    (2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or 
South American, or other Spanish culture or origin, regardless of race;
    (3) Asian or Pacific Islander. A person having origin in any of the 
original peoples of the Far East, Southeast Asia, the Indian 
Subcontinent, or the Pacific Islands. This area includes, for example, 
China, Japan, Korea, the Philippine Islands, and Samoa;
    (4) American Indian or Alaskan Native. A person having origins in 
any of the original peoples of North America, and who maintains cultural 
identification through tribal affiliation or community recognition;
    (5) White, not of Hispanic origin. A person having origins in any of 
the original peoples of Europe, North Africa, or the Middle East.

Additional subcategories based on national origin or primary language 
spoken may be used where appropriate.
    (b) Specific discriminatory actions prohibited. (1) A recipient 
under any program or activity receiving Federal financial assistance 
from TVA may not, directly or through contractual or other arrangements, 
on ground of race, color, or national origin:

[[Page 158]]

    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any manner related to that individual's receipt of any service, 
financial aid, or other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether any admission, enrollment, quota, eligibility, membership, or 
other requirement or condition which individuals must meet in order to 
be provided any service, financial aid, or other benefit provided under 
the program has been satisfied.
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford that individual 
an opportunity to do so which is different from that afforded others 
under the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respect individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
may not make selections with the purpose or effect of excluding 
individuals from, denying them the benefits of, or subjecting them to 
discrimination under any program to which this regulation applies, on 
the grounds of race, color, or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of the Act or this regulation.
    (4) As used in this section the services, financial aid, or other 
benefits provided under a program receiving financial assistance shall 
be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of the financial 
assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6) This regulation does not prohibit the consideration of race, 
color, or national origin if the purpose and effect are to remove or 
overcome the consequences of practices or impediments which have 
restricted the availability of, or participation in, the program or 
activity receiving Federal financial assistance, on the grounds of race, 
color, or national origin. Where previous discriminatory practice or 
usage tends, on the grounds of race, color, or national origin, to 
exclude individuals from participation in, to deny them the benefits of, 
or to subject them to discrimination under any program or activity to 
which this regulation applies, the recipient has an obligation to take 
reasonable action to remove or overcome the consequences of the prior 
discriminatory practice or usage, and to accomplish the purposes of the 
Act.

[30 FR 311, Jan. 9, 1965, as amended at 38 FR 17944, July 5, 1973. 
Redesignated at 44 FR 30682, May 29, 1979. Redesignated and amended at 
49 FR 20481, May 15, 1984]



Sec. 1302.5  Assurances required.

    (a) TVA contributes financial assistance only under agreements which 
contain a provision which specifically requires compliance with this 
part in programs or activities receiving Federal financial assistance 
from TVA. If the financial assistance involves the furnishing of real 
property, the agreement shall obligate the recipient, or in the case of 
a subsequent transfer, the

[[Page 159]]

transferee, for the period during which the real property is used for a 
purpose for which the financial assistance is extended or for another 
purpose involving the provision of similar services or benefits. Where 
the financial assistance involves the furnishing of personal property, 
the agreement shall obligate the recipient for the period during which 
the recipient retains ownership or possession of the property. In all 
other cases the agreement shall obligate the recipient for the period 
during which financial assistance is extended pursuant to the agreement. 
TVA shall specify the form of the foregoing agreements, and the extent 
to which an agreement shall be applicable to subgrantees, contractors 
and subcontractors, transferees, successors in interest, and other 
participants in the program.
    (b) In the case of real property, structures or improvements 
thereon, or interests therein, which is acquired through a program of 
Federal financial assistance, or in the case where Federal financial 
assistance is provided in the form of a transfer by TVA of real property 
or interest therein, the instrument effecting or recording the transfer 
of title shall contain a covenant running with the land assuring 
nondiscrimination for the period during which the real property is used 
for a purpose for which the Federal financial assistance is extended or 
for another purpose involving the provision of similar services or 
benefits. Where no transfer of property is involved, but property is 
improved under a program of Federal financial assistance, the recipient 
shall agree to include such a covenant in any subsequent transfer of 
such property. Where the property is obtained by transfer from TVA, the 
covenant against discrimination may also include a condition coupled 
with a right to be reserved by TVA to revert title to the property in 
the event of a breach of the covenant where, in the discretion of TVA, 
such a condition and right of reverter is appropriate to the program 
under which the real property is obtained and to the nature of the grant 
and the grantee. In such event if a transferee of real property proposes 
to mortgage or otherwise encumber the real property as security for 
financing construction of new, or improvement of existing, facilities on 
such property for the purposes for which the property was transferred, 
TVA may agree, upon request of the transferee and if necessary to 
accomplish such financing, and upon such conditions as it deems 
appropriate, to forbear the exercise of such right to revert title for 
so long as the lien of such mortgage or other encumbrance remains 
effective.

[30 FR 311, Jan. 9, 1965, as amended at 38 FR 17944, July 5, 1973. 
Redesignated at 44 FR 30682, May 29, 1979. Redesignated and amended at 
49 FR 20481, May 15, 1984]



Sec. 1302.6  Compliance information.

    (a) Cooperation and assistance. TVA shall to the fullest extent 
practicable seek the cooperation of recipients in obtaining compliance 
with this part and shall provide assistance and guidance to recipients 
to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to TVA timely, complete and accurate compliance reports at such 
times, and in such form and containing such information, as TVA may 
determined to be necessary to enable it to ascertain whether the 
recipient has complied or is complying with this part. In the case of 
any program under which a primary recipient extends Federal financial 
assistance to any other recipient, such other recipient shall also 
submit such compliance reports to the primary recipient as may be 
necessary to enable the primary recipient to carry out its obligations 
under this part.
    (c) Access to sources of information. Each recipient shall permit 
access by TVA during normal business hours to such of its books, 
records, accounts, and other sources of information, and its facilities 
as may be pertinent to ascertain compliance with this part. Where any 
information required of a recipient is in the exclusive possession of 
any other agency, institution or person and this agency, institution or 
person shall fail or refuse to furnish this information, the recipient 
shall so certify in its report and shall set forth what efforts it has 
made to obtain the information.

[[Page 160]]

    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program under which the recipient 
receives financial assistance, and make such information available to 
them in such manner as TVA finds necessary to apprise such persons of 
the protections against discrimination assured them by the Act and this 
part.

(Information collection requirements appearing in Sec. 1302.6 were 
approved by the Office of Management and Budget under control number 
3316-0077)

[30 FR 311, Jan. 9, 1965. Redesignated at 44 FR 30682, May 29, 1979. 
Redesignated at 49 FR 20481, May 15, 1984, and amended at 51 FR 9649, 
Mar. 20, 1986]



Sec. 1302.7  Compliance reviews and conduct of investigations.

    (a) Preaward compliance reviews. (1) Prior to approval of financial 
assistance, TVA will make a determination as to whether the proposed 
recipient is in compliance with Title VI and the requirements of this 
part with respect to a program or activity for which it is seeking 
Federal financial assistance from TVA. The basis for such a 
determination shall be submission of an assurance of compliance and a 
review of the data and information submitted by the proposed recipient, 
any relevant compliance review reports on file with TVA, and any other 
information available to TVA. Where a determination cannot be made from 
this data, TVA will require the submission of necessary additional 
information and may take additional steps. Such additional steps may 
include, for example, communicating with local government officials, 
protected class organizations, and onsite reviews.
    (2) No proposed recipient shall be approved unless it is determined 
that the proposed recipient is in compliance with Title VI and this part 
or has agreed in writing to take necessary specified steps within a 
stated period of time to come into compliance with Title VI and this 
part. Such an agreement must be approved by TVA and made a part of the 
conditions of the agreement under which the financial assistance is 
provided.
    (3)(i) Where TVA finds that a proposed recipient may not be in 
compliance with Title VI and this part, TVA shall notify the proposed 
recipient and the Assistant Attorney General for Civil Rights in writing 
of:
    (A) The preliminary findings setting forth the alleged 
noncompliance;
    (B) Suggested actions for correcting the alleged noncompliance; and
    (C) The fact that the proposed recipient has 10 days to correct the 
alleged noncompliance or to provide during this time a written 
submission responding to or rebutting the preliminary findings or 
suggested corrective actions set forth in the notice.
    (ii) If within this 10-day period the proposed recipient has not 
agreed to the suggested actions set forth or to other actions that would 
correct the alleged noncompliance under paragraph (a)(3)(i)(B) of this 
section, or the preliminary findings set forth in paragraph (a)(3)(i)(A) 
of this section have not been rebutted to TVA's satisfaction, or 
voluntary compliance has not been otherwise secured, TVA shall make a 
formal determination of compliance or noncompliance, notify the proposed 
recipient, and the Assistant Attorney General for Civil Rights and 
institute proceedings (including provision of an opportunity for a 
hearing) under Sec. 1302.8 of this part.
    (b) Postaward compliance reviews. (1) TVA may periodically conduct 
compliance reviews of selected recipients in their programs or 
activities receiving TVA financial assistance, including the request of 
data and information, and may conduct onsite reviews where it has reason 
to believe that discrimination may be occurring in such programs or 
activities.
    (2) Selection for review shall be made on the basis of the following 
criteria among others:
    (i) The number and nature of discrimination complaints filed against 
a recipient with TVA or other Federal agencies;
    (ii) The scope of the problem revealed by an investigation commenced 
on the basis of a complaint filed with TVA against a recipient; and

[[Page 161]]

    (iii) The amount of assistance provided to the recipient.
    (3) Within 15 days after selection of a recipient for review, TVA 
shall inform the recipient that it has been selected for review. The 
review will ordinarily be initiated by a letter requesting data 
pertinent to the review and advising the recipient of:
    (i) The practices to be reviewed;
    (ii) The program or activities affected by the review;
    (iii) The opportunity to make, at any time prior to receipt of the 
final TVA findings with respect to the review pursuant to paragraph 
(b)(6) of this section, a documentary submission responding to TVA which 
explains, validates, or otherwise addresses the practices under review; 
and
    (iv) The schedule under which the review will be conducted and a 
determination of compliance or noncompliance made.
    (4) Within 180 days of initiation of a review, TVA shall advise the 
recipient, in writing of:
    (i) Its preliminary findings;
    (ii) Where appropriate, recommendations for achieving voluntary 
compliance;
    (iii) The opportunity to request TVA to engage in voluntary 
compliance negotiations prior to TVA's final determination of compliance 
or noncompliance. TVA shall notify the Assistant Attorney General at the 
time it notifies the recipient of any matter where recommendations for 
achieving voluntary compliance are made.
    (5) TVA's General Manager may extend the 180-day period set out in 
paragraph (b)(4) of this section for good cause shown.
    (6) If, within 50 days of the recipient's notification under 
paragraph (b)(4) of this section, TVA's recommendations for compliance 
are not met or voluntary compliance is not secured, and the preliminary 
findings have not been rebutted to TVA's satisfaction, TVA shall make a 
final determination of compliance or noncompliance. The determination is 
to be made no later than 14 days after the conclusion of the 50-day 
negotiation period. TVA's General Manager may extend the 14-day period 
for good cause shown.
    (7) Where TVA makes a formal determination of noncompliance on a 
postaward review, the recipient and the Assistant Attorney General shall 
be immediately notified in writing of the determination and of the fact 
that the recipient has an additional 10 days in which to come into 
voluntary compliance. If voluntary compliance has not been achieved 
within the 10 days, TVA shall institute proceedings under Sec. 1302.8 of 
this part.
    (8) All agreements to come into voluntary compliance shall be in 
writing and signed by TVA and an official who has authority to legally 
bind the recipient.
    (c) Complaint investigation. (1) TVA shall investigate complaints of 
discrimination in a program or activity receiving Federal financial 
assistance from TVA that allege a violation of Title VI or this part.
    (2) No complaint will be investigated if it is received by TVA more 
than 180 days after the date of the alleged discrimination unless the 
time for filing is extended by TVA for good cause shown. Where a 
complaint is accepted for investigation, TVA will initiate an 
investigation. The complainant shall be notified in writing as to 
whether the complaint has been accepted or rejected.
    (3) TVA shall conduct investigations of complaints as follows:
    (i) Within 10 days of receipt of a complaint, the Director of Equal 
Opportunity Compliance shall:
    (A) Determine whether TVA has jurisdiction under paragraphs (c) (1) 
and (2) of this section;
    (B) If jurisdiction is not found, wherever possible refer the 
complaint to the Federal agency with such jurisdiction and advise the 
complainant;
    (C) If jurisdiction is found, notify the recipient alleged to be in 
violation of the receipt and acceptance of the complaint; and
    (D) Initiate the investigation.
    (ii) The investigation will ordinarily be initiated by a letter to 
the recipient requesting data pertinent to the complaint and informing 
the recipient of:
    (A) The nature of the complaint, and with the written consent of the 
complainant, the identity of the complainant;

[[Page 162]]

    (B) The program or activities affected by the complaint;
    (C) The opportunity to make, at any time prior to receipt of TVA's 
final findings under paragraph (c)(5) of this section, a documentary 
submission, responding to, rebutting, or denying the allegations made in 
the complaint; and
    (D) The schedule under which the complaint will be investigated and 
a determination of compliance or noncompliance made.
    (iii) Within 180 days of the initiation of a complaint 
investigation, TVA shall advise the recipient, in writing, of:
    (A) Preliminary findings;
    (B) Where appropriate, recommendations for achieving voluntary 
compliance; and
    (C) The opportunity to request TVA to engage in voluntary compliance 
negotiations prior to TVA's final determination of compliance or 
noncompliance. TVA shall notify the Assistant Attorney General at the 
time the recipient is notified of any matter where recommendations for 
achieving voluntary compliance are made.
    (4) If, within 50 days of the recipient's notification under 
paragraph (c) of this section, TVA's recommendations for compliance are 
not met, or voluntary compliance is not secured, and the preliminary 
findings have not been rebutted to TVA's satisfaction, TVA shall make a 
formal determination of compliance or noncompliance. The determination 
is to be made no later than 14 days after conclusion of a 50-day 
negotiation period. TVA's General Manager may extend the 14-day period 
for good cause shown.
    (5) Where TVA makes a formal determination of noncompliance, the 
complainant, the recipient, and the Assistant Attorney General shall be 
immediately notified in writing of the determination and of the fact 
that the recipient has an additional 10 days in which to come into 
compliance. If voluntary compliance has not been achieved within the 10 
days, TVA shall institute proceedings under Sec. 1302.8 of this part. 
The complainant shall also be notified of any action taken including the 
closing of the complaint or the achievement of voluntary compliance. All 
agreements to come into voluntary compliance shall be in writing and 
signed by TVA and an official who has authority to legally bind the 
recipient and shall be made available to the complainant on request.
    (6) If the complainant or party other than TVA has filed suit in 
Federal or State court alleging the same discrimination as alleged in a 
complaint pending before TVA, and if during TVA's investigation the 
trial of that suit would be in progress, TVA will consult with the 
Assistant Attorney General and court records to determine the need to 
continue or suspend the investigation and will monitor the litigation 
through the court docket and contacts with the complainant. Upon receipt 
of notice that the court has made a finding of discrimination against a 
recipient that would constitute a violation of this part, TVA shall 
institute proceedings as specified in Sec. 1302.8 of this part. All 
agreements to come into voluntary compliance shall be in writing and 
signed by TVA and an official who has authority to legally bind the 
recipient.
    (7) The time limits listed in paragraphs (c) (3) through (5) of this 
section shall be appropriately adjusted where TVA requests another 
Federal agency to act on the complaint. TVA shall monitor the progress 
of the matter through liaison with the other agency. Where the request 
to act does not result in timely resolution of the matter, TVA shall 
institute appropriate proceedings as required by this part.
    (d) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of Title VI or this part, or because 
such individual has made a complaint, testified, assisted, or 
participated in any manner in an investigation, proceeding, or hearing 
under this part. The identity of complainants shall be kept confidential 
except to the extent necessary to carry out the purposes of this 
regulation, including the conduct of any investigation, hearing, or 
judicial proceeding arising thereunder.
    (e) Enforcement authority. TVA's Director of Equal Opportunity 
Compliance, or a successor as designated by

[[Page 163]]

TVA's Board of Directors, will be responsible for all decisions about 
initiating compliance reviews and complaint investigations. TVA's 
General Manager, or a successor as designated by TVA's Board of 
Directors, shall be responsible for all decisions about initiating 
compliance actions under Sec. 1302.8(a) of this part.

(Information collection requirements appearing in Sec. 1302.7 were 
approved by the Office of Management and Budget under control number 
3316-0077)

[49 FR 20481, May 15, 1984, as amended at 49 FR 47383, Dec. 4, 1984; 51 
FR 9649, Mar. 20, 1986]



Sec. 1302.8  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this regulation may be effected by the suspension or termination of or 
refusal to grant or to continue financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to,
    (1) A reference to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States (including other titles 
of the Act),
    (2) Institution of appropriate proceedings by TVA to enforce the 
provisions of the agreement of financial assistance or of any deed or 
instrument relating thereto, and
    (3) Any applicable proceeding under State or local law.

The Assistant Attorney General, Civil Rights Division, Department of 
Justice, will be notified of all findings of probable noncompliance at 
the same time the recipient or applicant is notified.
    (b) Noncompliance with Sec. 1302.5. If anyone requesting financial 
assistance declines to furnish the assurance required under Sec. 1302.5 
of this part, or otherwise fails or refuses to comply with a requirement 
imposed by or pursuant to that section, financial assistance may be 
refused in accordance with the procedures of paragraph (c) of this 
section and for such purposes, the term ``recipient'' shall be deemed to 
include one which has been denied financial assistance. TVA shall not be 
required to provide assistance in such a case during the pendency of the 
administrative proceedings under such paragraph except that TVA shall 
continue assistance during the pendency of such proceedings where such 
assistance is due and payable pursuant to an agreement therefor entered 
into with TVA prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue financial 
assistance. No order suspending, terminating or refusing to grant or 
continue financial assistance shall become effective until (1) TVA has 
advised the recipient of his failure to comply and has determined that 
compliance cannot be secured by voluntary means, (2) there has been an 
express finding on the record, after opportunity for hearing, or a 
failure by the recipient to comply with a requirement imposed by or 
pursuant to this part, (3) the action has been approved by the TVA Board 
pursuant to Sec. 1302.9, and (4) the expiration of 30 days after the TVA 
Board has filed with the committee of the House and the committee of the 
Senate having legislative jurisdiction over the program involved, a full 
written report of the circumstances and the grounds for such action. Any 
action to suspend or terminate or to refuse to grant or to continue 
financial assistance shall be limited to the particular political 
entity, or part thereof, or recipient as to whom such a finding has been 
made and shall be limited in its effect to the particular program, or 
part thereof, in which such noncompliance has been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) TVA has 
determined that compliance cannot be secured by voluntary means, (2) the 
recipient or other person has been notified of its failure to comply and 
of the action to be taken to effect compliance, and (3) the expiration 
of at least 10 days from

[[Page 164]]

the mailing of such notice to the recipient or other person. During this 
period of at least 10 days additional efforts shall be made to persuade 
the recipient or other person to comply with the regulation and to take 
such corrective action as may be appropriate.

[30 FR 311, Jan. 9, 1965, as amended at 38 FR 17945, July 5, 1973. 
Redesignated at 44 FR 30682, May 29, 1979. Redesignated and amended at 
49 FR 20483, May 15, 1984; 49 FR 47384, Dec. 4, 1984]



Sec. 1302.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 1302.7(b), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
recipient. This notice shall advise the recipient of the action proposed 
to be taken, the specific provision under which the proposed action 
against it is to be taken, and the matters of fact or law asserted as 
the basis for this action, and either (1) fix a date not less than 20 
days after the date of such notice within which the recipient may 
request of TVA that the matter be scheduled for hearing or (2) advise 
the recipient that the matter in question has been set down for hearing 
at a stated time and place. The time and place so fixed shall be 
reasonable and shall be subject to change for cause. The complainant, if 
any, shall be advised of the time and place of the hearing. A recipient 
may waive a hearing and submit written information and argument for the 
record. The failure of a recipient to request a hearing under this 
subsection or to appear at a hearing for which a date has been set shall 
be deemed to be a waiver of the right to a hearing under section 602 of 
the Act and Sec. 1302.7(b) and consent to the making of a decision on 
the basis of such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the time 
and place fixed by TVA unless it determines that the convenience of the 
recipient requires that another place be selected. Hearings shall be 
held before the TVA Board, or a member thereof, or, at the discretion of 
the Board, before a hearing examiner designated in accordance with 
section 11 of the Administrative Procedure Act.
    (c) Right to counsel. In all proceedings under this section, the 
recipient and TVA shall have the right to be represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
the procedures contained in 5 U.S.C. 554-557 (sections 5-8 of the 
Administrative Procedure Act) and in accordance with such rules of 
procedure as are proper (and not inconsistent with this section) 
relating to the conduct of the hearing, giving of notices subsequent to 
those provided for in paragraph (a) of this section, taking of 
testimony, exhibits, arguments and briefs, requests for findings, and 
other related matters. Both TVA and the recipient shall be entitled to 
introduce all relevant evidence on the issues as stated in the notice 
for hearing or as determined by the officer conducting the hearing at 
the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or Joint Hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more programs to which this part applies, or 
noncompliance with this part and the regulations of one or more other 
Federal departments or agencies issued under Title VI of the Act, the 
TVA Board may, by agreement with such other departments or agencies 
where applicable, provide for

[[Page 165]]

the conduct of consolidated or joint hearings, and for the application 
to such hearings of rules of procedure not inconsistent with this part. 
Final decisions in such cases, insofar as this part is concerned, shall 
be made in accordance with Sec. 1302.9.

[30 FR 311, Jan. 9, 1965, as amended at 38 FR 17945, July 5, 1973. 
Redesignated at 44 FR 30682, May 29, 1979, and 49 FR 20483, May 15, 
1984]



Sec. 1302.10  Decisions and notices.

    (a) Decision by a member of the TVA Board or a hearing examiner. A 
member of the TVA Board or a hearing examiner who holds the hearing 
shall either make an initial decision or certify the entire record, 
including the Board member's or examiner's recommended findings and 
proposed decision, to the TVA Board for a final decision. A copy of such 
initial decision or certification shall be mailed to the recipient. 
Where the initial decision is made by a member of the TVA Board or a 
hearing examiner, the recipient may file exceptions to the initial 
decision, together with a statement of reasons therefor. Such exceptions 
and statement shall be filed with the TVA Board within 30 days of the 
date the notice of initial decision was mailed to the recipient. In the 
absence of exceptions, the TVA Board may on its own motion within 45 
days after the initial decision serve on the recipient a notice that the 
TVA Board will review the decision. Upon the filing of such exceptions 
or of such notice of review, the TVA Board shall review the initial 
decision and issue its own decision thereon including the reasons 
therefor. In the absence of either exceptions or a notice of review, the 
initial decision shall constitute the final decision of the TVA Board.
    (b) Decisions on record or review by the TVA Board. Whenever a 
record is certified to the TVA Board for decision or it reviews the 
decision of a member of the TVA Board or a hearing examiner pursuant to 
paragraph (a) of this section, or whenever the TVA Board conducts the 
hearing, the recipient shall be given reasonable opportunity to file 
with the Board briefs or other written statements of its contentions, 
and a copy of the final decision of the Board shall be given in writing 
to the recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 1302.8(a) a decision shall be made by 
the TVA Board on the record and a copy of such decision shall be given 
to the recipient, and to the complainant, if any.
    (d) Rulings required. Each decision shall set forth a ruling on each 
finding, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this part with 
which it is found that the recipient has failed to comply.
    (e) Approval by TVA Board. Any final decision (other than a decision 
by the TVA Board) which provides for the suspension or termination of, 
or the refusal to grant or continue financial assistance, or the 
imposition of any other sanction available under this regulation or the 
Act, shall promptly be transmitted to the TVA Board, which may approve 
such decision, may vacate it, or remit or mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue financial assistance, 
in whole or in part, under the program involved, and may contain such 
terms, conditions, and other provisions as are consistent with and will 
effectuate the purposes of the Act and this part, including provisions 
designed to assure that no financial assistance will thereafter be 
extended under such program to the recipient determined by such decision 
to have failed to comply with this part, unless and until it corrects 
its noncompliance and satisfies TVA that it will fully comply with this 
part.
    (g) Posttermination proceedings. (1) A recipient adversely affected 
by an order issued under paragraph (f) of this section shall be restored 
to full eligibility to receive Federal financial assistance if it 
satisfies the terms and conditions of that order for such eligibility or 
if it brings itself into compliance with this regulation and provides 
reasonable assurance that it will fully comply with this regulation.
    (2) Any recipient or proposed recipient adversely affected by an 
order entered pursuant to paragraph (f) of this

[[Page 166]]

section may at any time request TVA to restore fully the recipient's 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information showing that the recipient has met the 
requirements of paragraph (g)(1) of this section. If TVA determines that 
those requirements have been satisfied, TVA shall restore such 
eligibility.
    (3) If TVA denies any such request, the recipient may submit a 
written request for a hearing specifying why it believes TVA to have 
been in error. The recipient shall thereupon be given an expeditious 
hearing, with a decision on the record, in accordance with rules of 
procedure issued by TVA. The recipient will be restored to such 
eligibility if the recipient proves at such a hearing that it satisfied 
the requirements of paragraph (g)(1) of this section. While proceedings 
under this paragraph are pending, the sanctions imposed by the order 
issued under paragraph (f) of this section shall remain in effect.

[30 FR 311, Jan. 9, 1965. Redesignated at 44 FR 30682, May 29, 1979. 
Redesignated and amended at 45 FR 20483, May 15, 1983]



Sec. 1302.11  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.

[30 FR 311, Jan. 9, 1965. Redesignated at 44 FR 30682, May 29, 1979, and 
49 FR 47384, Dec. 4, 1984]



Sec. 1302.12  Effect on other regulations; supervision and coordination.

    (a) Effect on other regulations. All regulations, orders, or like 
directions heretofore issued by TVA which impose requirements designed 
to prohibit any discrimination against individuals on the ground of 
race, color, or national origin under any program to which this 
regulation applies, and which authorize the suspension or termination of 
or refusal to grant or to continue financial assistance to any recipient 
of such assistance under such program for failure to comply with such 
requirements, are hereby superseded to the extent that such 
discrimination is prohibited by this part, except that nothing in this 
part shall be deemed to relieve any person of any obligation assumed or 
imposed under any such superseded regulation, order, instruction, or 
like direction prior to the effective date of this part. Nothing in this 
part, however, shall be deemed to supersede any of the following 
(including future amendments thereof):
    (1) Executive Order 12250 and regulations issued thereunder, or
    (2) Any other regulations or instructions, insofar as they prohibit 
discrimination on the ground of race, color, or national origin in any 
program or situation to which this regulation is inapplicable, or 
prohibit discrimination on any other ground.
    (b) Supervision and coordination. TVA may from time to time assign 
to officials of other departments or agencies of the Government with the 
consent of such departments or agencies, responsibilities in connection 
with the effectuation of the purposes of Title VI of the Act and this 
part (other than responsibility for final decision as provided in 
Sec. 1302.9), including the achievement of effective coordination and 
maximum uniformity within the Executive Branch of the Government in the 
application of Title VI and this part to similar programs and in similar 
situations. Any action taken, determination made, or requirement imposed 
by an official of another department or agency acting pursuant to an 
assignment of responsibility under this subsection shall have the same 
effect as though such action had been taken by TVA.

[38 FR 17945, July 5, 1973. Redesignated at 44 FR 30682, May 29, 1979. 
Redesignated and amended at 49 FR 20484, May 15, 1984]

  Appendix A to Part 1302--Federal Financial Assistance to Which These 
                            Regulations Apply

    1. Transfers, leases and licenses of real property for nominal 
consideration to states, counties, municipalities, and other public 
agencies for development for public recreation.
    2. Furnishing funds, property and services to state agencies, local 
governments and citizen organizations to advance economic growth in 
watersheds of Tennessee River tributaries through cooperative resource 
development programs.
    3. Furnishing funds, property and services to land grant colleges 
for use in a cooperative program utilizing test-demonstration farms to 
test experimental fertilizers developed by TVA and to educate farmers 
and

[[Page 167]]

other interested persons concerning these new fertilizers. This program 
also includes the furnishing of fertilizers at reduced prices by TVA, 
through its fertilizer distributors, to such test-demonstration farms.
    4. Furnishing space and utilities without charge under agreements 
with state agencies for use in accordance with the Vending Stands for 
Blind Act.

[30 FR 311, Jan. 9, 1965, as amended at 38 FR 17945, July 5, 1973. 
Redesignated at 44 FR 30682, May 29, 1979]



PART 1303--PROPERTY MANAGEMENT--Table of Contents




                     Subpart A--General Information

Sec.
1303.1  Applicability.

                       Subpart B--Tobacco Products

1303.2  Definition.
1303.3  Prohibition on tobacco products.

    Authority: 16 U.S.C. 831-831dd.

    Source: 61 FR 6110, Feb. 16, 1996, unless otherwise noted.



                     Subpart A--General Information



Sec. 1303.1  Applicability.

    This part sets out certain regulations applicable to buildings, 
structures, and other property under TVA control.



                       Subpart B--Tobacco Products



Sec. 1303.2  Definition.

    Tobacco product means cigarettes, cigars, little cigars, pipe 
tobacco, smokeless tobacco, snuff, and chewing tobacco.

[61 FR 6110, Feb. 16, 1996; 61 FR 54849, Oct. 22, 1996]



Sec. 1303.3  Prohibition on tobacco products.

    (a) Sale of tobacco products by vending machine on TVA property is 
prohibited. Tobacco product vending machines already in place on TVA 
property as of November 15, 1995, may continue in operation for one year 
from February 16, 1996 while TVA completes review of whether such 
machines should be exempted under paragraph (c) of this section.
    (b) Distribution of free samples of tobacco products on TVA property 
is prohibited.
    (c) TVA may, as appropriate, designate areas not subject to this 
section if individuals under the age of 18 are not allowed in such 
areas.



PART 1304--APPROVAL OF CONSTRUCTION IN THE TENNESSEE RIVER SYSTEM AND REGULATION OF STRUCTURES--Table of Contents




                     Subpart A--General Requirements

Sec.
1304.1  Definitions.
1304.2  Scope and intent.
1304.3  Flotation devices and material.
1304.4  Treatment of sewage.
1304.5  Removal of unauthorized, unsafe, and derelict structures.

                   Subpart B--Approval of Construction

1304.100  Scope and intent.
1304.101  Delegation of authority.
1304.102  Application.
1304.103  Contents of application.
1304.104  Little Tennessee River; date of formal submission.
1304.105  Determination of application.
1304.106  Appeals.
1304.107  Conduct of hearings.
1304.108  Conditions of approvals.
1304.109  Habitable and certain other enclosed structures within the 
          flowage easement areas of TVA reservoirs.

    Subpart C--Regulation of Boathouses, Houseboats, Other Floating 
                      Structures, and Harbor Limits

1304.200  Scope and intent.
1304.201  Definitions.
1304.202  Designation of harbor areas at commercial boat docks.
1304.203  Houseboats.
1304.204  Floating boathouses.
1304.205  Approval of plans for floating boathouses and nonnavigable 
          houseboats.
1304.206  Numbering and transfer of approved facilities.

    Authority: 16 U.S.C. 831-831dd, unless otherwise noted.

    Source: 36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971, 
unless otherwise noted. Redesignated at 44 FR 30682, May 29, 1979.

[[Page 168]]



                     Subpart A--General Requirements



Sec. 1304.1  Definitions.

    Except as the context may otherwise require, the following words or 
terms, when used in this Part 1304, have the meaning specified in this 
section.
    Act means the Tennessee Valley Authority Act of 1933, as amended.
    Applicant means the person, corporation, State, municipality, 
political subdivision or other entity making application.
    Application means a written request for the approval of plans 
pursuant to section 26a of the Act and the regulations contained in this 
part.
    Board means the Board of Directors of TVA.
    Director means the Director of Land and Forest Resources of TVA.
    TVA means the Tennessee Valley Authority.

[42 FR 65146, Dec. 30, 1977, as amended at 44 FR 23066, Apr. 18, 1979. 
Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.2  Scope and intent.

    The Act among other things confers on TVA broad powers related to 
the unified conservation and development of the Tennessee River Valley 
and surrounding area and directs that property in TVA's custody be used 
to promote the Act's purposes. In particular, section 26a of the Act 
requires that TVA's approval be obtained prior to the construction, 
operation, or maintenance of any dam, appurtenant works, or other 
obstruction affecting navigation, flood control, or public lands or 
reservations along or in the Tennessee River or any of its tributaries. 
By way of example only, such obstructions include boat docks, piers, 
boathouses, rafts, buoys, floats, boat launching ramps, fills, and 
nonnavigable houseboats as defined in Sec. 1304.201. Any person 
considering construction, operating, or maintaining any such structure 
should carefully study these regulations before doing so. The 
regulations also apply to certain structures built upon land subject to 
TVA flowage easements. In the transfer or other disposition affecting 
shoreline lands within its custody, TVA has also retained land rights to 
carry out the Act's purposes including rights related to control of 
water pollution from the use of the land transferred. TVA uses and 
permits use of the lands and land rights in its custody alongside and 
subjacent to TVA reservoirs to carry out the purposes and policies of 
the Act. In addition, recent legislation, including the National 
Environmental Policy Act of 1969, as amended, (NEPA) 42 U.S.C. 4321 et 
seq., and the Federal Water Pollution Control Act Amendments of 1972, 33 
U.S.C. 1251 et seq. (FWPCA), have declared it to be congressional policy 
that agencies should administer their statutory authorities so as to 
restore, preserve and enhance the quality of the environment and should 
cooperate in the control of pollution. Unless otherwise noted, all 
references in this title to these statutes shall be deemed to include 
any future amendments to them. It is the intent of the regulations 
prescribed in this Part 1304 to carry out the purposes of the Act and 
other statutes relating to these purposes, and this part shall be 
interpreted and applied to that end.

[42 FR 65146, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.3  Flotation devices and material.

    (a) Because of the possible release of toxic or polluting 
substances, and the hazard to navigation from metal drums that become 
partially filled with water and escape from docks, boathouses, 
houseboats, floats, and other water-use structures and facilities for 
which they are used for flotation, the Board has prohibited use of metal 
drums in any form, except as authorized in paragraph (b) of this 
section, for flotation of any facilities requiring approval under this 
part before being constructed or placed on any TVA reservoir.
    (b) The only metal drums permitted are those which have been filled 
with plastic foam or other solid flotation materials and welded, 
strapped, or otherwise firmly secured in place prior to July 1, 1972, on 
existing facilities, but replacement of any metal drum flotation 
permitted to be used by this subsection must be with some type of 
permanent flotation device or material, for example, pontoons, boat 
hulls, or other buoyancy devices made of steel,

[[Page 169]]

aluminum, fiberglass, or plastic foam, not including filled metal drums.
    (c) Every flotation device employed in the Tennessee River system 
must be firmly and securely affixed to the structure it supports with 
materials capable of withstanding prolonged exposure to wave wash and 
weather conditions.

[36 FR 20424, Oct. 22, 1971, as amended at 42 FR 65147, Dec. 30, 1977. 
Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.4  Treatment of sewage.

    No person operating a commercial boat dock on or over real property 
of the United States in the custody and control of TVA, or on or over 
real property subject to provisions for the control of water pollution 
in a deed, grant or easement, lease, license, permit or other instrument 
from or to the United States or TVA shall permit the mooring on or over 
such real property of any watercraft or floating structure equipped with 
a marine toilet unless such toilet is in compliance with all applicable 
statutes and regulations, including the FWPCA and regulations issued 
thereunder.

[42 FR 65147, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.5  Removal of unauthorized, unsafe, and derelict structures.

    If, at any time, any dock, wharf, floating boathouse, nonnavigable 
houseboat, outfall, or other fixed or floating structure or facility 
anchored, installed, constructed, or moored under a license, permit, or 
approval from TVA is not constructed in accordance with plans approved 
by TVA, or is not maintained or operated so as to remain in accordance 
with such plans, or is not kept in a good state of repair and in good, 
safe, and substantial condition, and the owner or operator thereof fails 
to repair or remove such structure (or operate or maintain it in 
accordance with such plans) within ninety (90) days after written notice 
from TVA to do so, TVA may cancel such license, permit, or approval and 
remove such structure, or cause it to be removed, from the Tennessee 
River system and/or lands in the custody or control of TVA. Such written 
notice may be given by mailing a copy thereof to the owner's address as 
listed on the license, permit, or approval or by posting a copy on the 
structure or facility. TVA will remove or cause to be removed any such 
structure or facility anchored, installed, constructed, or moored 
without such license, permit, or approval, whether such license or 
approval has once been obtained and subsequently canceled, or whether it 
has never been obtained.

[42 FR 65147, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979]



                   Subpart B--Approval of Construction



Sec. 1304.100  Scope and intent.

    Approval must be obtained with respect to each structure subject to 
section 26a of the Act prior to its construction, operation, or 
maintenance. This subpart prescribes procedures to be followed in any 
case where it is desired to obtain such approval.

[42 FR 65147, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.101  Delegation of authority.

    The power to approve or disapprove applications under this part is 
delegated to the Director, subject to appeal to the Board as provided in 
Sec. 1304.106. In his discretion the Director may submit any application 
to the Board for its approval or disapproval. Administration of the 
handling of applications is delegated to the Division of Land and Forest 
Resources.

[42 FR 65147, Dec. 30, 1977, as amended at 44 FR 23066, Apr. 18, 1979. 
Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.102  Application.

    Applications shall be addressed to Tennessee Valley Authority, 
Director of Land and Forest Resources, Norris, Tenn. 37828.

[44 FR 20366, Apr. 18, 1979. Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.103  Contents of application.

    (a) Each application must be accompanied by five (5) complete sets 
of plans for the construction, operation, and maintenance of the 
proposed structure. The application shall be prepared

[[Page 170]]

according to ``Instructions for Preparing an Application for an Approval 
of Plans for Proposed Structures Under section 26a of the Tennessee 
Valley Authority Act.'' These instructions require that the application 
include, among other things:
    (1) Accurate maps showing the exact location where the structure is 
proposed to be built, moored, or installed;
    (2) Plans, including layout, in scale, of the proposed structure;
    (3) Statements of the plans formulated for the maintenance and 
operation of the structure when completed;
    (4) Sufficient information to describe adequately all of the 
persons, corporations, organizations, agencies, or others who propose to 
construct, own, and operate such structure; and
    (5) A report of the anticipated environmental consequences resulting 
from the construction, operation, and maintenance of the proposed 
structure. This report of anticipated environmental consequences shall 
include a discussion of:
    (i) The probable impact of the proposed structure on the 
environment;
    (ii) Any probable adverse environmental consequences which cannot be 
avoided;
    (iii) Alternatives to the proposed structure;
    (iv) The relationship betweeen the local short-term uses of the 
environment and the maintenance of long-term productivity which will 
result from the proposed structure; and
    (v) Any irreversible or irretrievable commitments of resources which 
would be involved by virtue of the proposed structure.
    (b) If construction, maintenance, or operation of the proposed 
structure or any part thereof, or the conduct of the activity in 
connection with which approval is sought, may result in any discharge 
into navigable waters of the United States, applicant shall also submit 
with the application, in addition to the material required by paragraph 
(a) of this section, a certification from the State in which such 
discharge would originate, or, if appropriate, from the interstate water 
pollution control agency having jurisdiction over the navigable waters 
at the point where the discharge would originate, or from the 
Environmental Protection Agency, that such State or interstate agency or 
the Environmental Protection Agency has determined after public notice 
of applicant's proposal that there is reasonable assurance that 
applicant's proposed activity will be conducted in a manner which will 
not violate applicable water quality standards. If construction or 
operation of the proposed structure will affect water quality but is not 
subject to any applicable water quality standards, applicant shall 
submit a written statement to that effect by such State, interstate 
agency, or the Environmental Protection Agency. The applicant shall 
further submit such supplemental and additional information as TVA may 
deem necessary for the review of the application, including, without 
limitation, information concerning the amounts, chemical makeup, 
temperature differentials, type and quantity of suspended solids, and 
proposed treatment plans for any proposed discharges.
    (c) Detailed information concerning contents of applications, kinds 
and amounts of information required to be submitted for specific 
structures, and instructions are available at the address specified in 
Sec. 1304.102 or from the Manager of Properties, Division of Land and 
Forest Resources, Tennessee Valley Authority, at one of the following 
district offices:
    (1) Western District, Post Office Box 280, Paris, Tenn. 38242 
(office location: 202 West Blythe Street).
    (2) Southern District, 601 First Federal Building, Muscle Shoals, 
Ala. 35660 (office location: 102 South Court Street, Florence).
    (3) Central District, Post Office Box 606, Athens, Tenn. 37303 
(office location: 110 Congress Parkway).
    (4) Eastern District, 2611 West Andrew Johnson Highway, Morristown, 
Tenn. 37814.

[42 FR 65147, Dec. 30, 1977, as amended at 44 FR 23066, Apr. 18, 1979. 
Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.104  Little Tennessee River; date of formal submission.

    As regards structures on the Little Tennessee River, applications 
are deemed by TVA to be ``formally submitted'' within the meaning of 
section

[[Page 171]]

26a of the Act, on that date upon which applicant has complied in good 
faith with all of the provisions of paragraphs (a) and (b) of 
Sec. 1304.103.



Sec. 1304.105  Determination of application.

    (a) The Division of Land and Forest Resources conducts preliminary 
investigations, coordinates the processing of applications within TVA; 
notifies the applicant if preparation and review of an environmental 
statement are required under NEPA and of what additional information 
must be submitted to TVA by applicant so that TVA may comply with the 
requirements of that statute and related legal requirements, and 
complete its review of the application; and arranges for notification to 
the Environmental Protection Agency of applications that request 
approval of plans for structures which may result in a discharge into 
navigable waters of the United States and are certified in accordance 
with the requirements of Sec. 1304.103(b).
    (b) Hearings concerning approval of applications are conducted (in 
accordance with Sec. 1304.107) (1) when requested by the applicant, (2) 
when TVA deems that a hearing is necessary or appropriate in determining 
any issue presented by the application, (3) when required under 
applicable provisions of the FWPCA.
    (c) Upon completion of the investigation, coordination of the review 
of water quality aspects of the application under the FWPCA, completion 
of review under NEPA if required, and hearing or hearings, if any, the 
Director approves or disapproves the application on the basis of the 
application and supporting documents the report of investigation, the 
transcript of the hearing or hearings, if any be held, the 
recommendations of other agencies, the intent of this part, and the 
applicable provisions of the TVA Act, the FWPCA, NEPA, and other 
applicable laws or regulations. In his discretion the Director may refer 
any application and supporting materials to the Board for its approval 
or disapproval.
    (d) Promptly following determination, the Director or the Board, as 
the case may be, furnishes a written copy of the decision to the 
applicant and to any parties of record pursuant to Sec. 1304.107. In the 
case of applications initially approved or disapproved by the Board, 
written requests for reconsideration may be made to the Board in the 
same manner as provided for appeals under Sec. 1304.106(a).

[42 FR 65148, Dec. 30, 1977, as amended at 44 FR 23066, Apr. 18, 1979. 
Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.106  Appeals.

    (a) If the Director disapproves an application, the applicant may, 
by written request addressed to the Board of Directors, Tennessee Valley 
Authority, Knoxville, Tenn. 37902, and mailed within thirty (30) days 
after receipt of notification of such disapproval, obtain review by the 
Board of the determination of the Director disapproving the application.
    (b) A party of record to any hearing before the Director who is 
aggrieved or adversely affected by any determination of the Director 
approving an application, may obtain review by the Board of such 
determination by written request addressed and mailed as provided in 
paragraph (a) of this section.
    (c) Requests for review shall specify the reasons why it is 
contended that the Director's determination is in error.
    (d) Following receipt of a request for review, the Board will review 
the material on which the Director's decision was based and may conduct 
or cause to be conducted such investigation of the application as the 
Board deems necessary or desirable. The applicant and the person 
requesting review may submit additional written material in support of 
his position to the Board within thirty (30) days after receipt by TVA 
of the request for review. Based on the review, investigation, and 
written submissions provided for in this paragraph, the Board shall 
render its decision approving or disapproving the application.
    (e) The Board will furnish a written copy of its decision in any 
review proceeding under this section to the applicant and to all parties 
of record

[[Page 172]]

promptly following determination of the matter.

[36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971, as amended at 42 
FR 65148, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.107  Conduct of hearings.

    (a) If a hearing is to be held for any of the reasons described in 
Sec. 1304.105(b) TVA gives notice of the hearing to permit attendance by 
interested persons. Such notice may be given by publication in the 
Federal Register, publication in a daily newspaper of general 
circulation in the area of the proposed structure, personal written 
notice, or a combination of these methods. The notice indicates the 
place, date and time of hearing, so far as feasible indicates the 
particular issues to which the hearing will pertain, states the manner 
of becoming a party of record, and provides other relevant information. 
The applicant is automatically a party of record.
    (b) Hearings may be conducted by the Director and/or such other 
person or persons as he may designate for that purpose. Hearings are 
public and are conducted in an informal manner. Parties of record may be 
represented by counsel or other persons of their choosing. Technical 
rules of evidence are not observed although reasonable bounds are 
maintained as to relevancy, materiality, and competency. Evidence may be 
presented orally or by written statement and need not be under oath. 
After the hearing has been completed, additional evidence will not be 
received unless it presents new and material matter that in the judgment 
of the person or persons conducting the hearing could not be presented 
at the hearing. Where construction of the project also requires the 
approval of another agency of the Federal Government by or before whom a 
hearing is to be held, the Director may arrange with such agency to hold 
a joint hearing.



Sec. 1304.108  Conditions of approvals.

    (a) Approvals of applications shall contain such conditions as are 
required by law. Approvals of applications may contain such other 
conditions as TVA deems necessary to carry out the provisions of the 
Act, the policy of related statutes, and the intent of this part.
    (b) If an approval is granted under this subpart of a structure or 
facility with respect to which a certificate of compliance with 
applicable water quality standards has been obtained pursuant to FWPCA 
and no additional or other Federal permit or license is required for 
operation of such structure or facility, the holder of the TVA approval 
shall, prior to initial operation of such structure or facility, provide 
an opportunity for the certifying state or, if appropriate, the 
interstate agency or the Environmental Protection Agency to review the 
manner in which the structure or facility will be operated or conducted, 
for the purpose of assuring that applicable water quality standards will 
not be violated.
    (c) Except for plans which must be approved only because the 
proposed structure is to be built upon land subject to a TVA flowage 
easement, as provided in Sec. 1304.109, no plans will be approved for 
any structure, including by way of example only, boat docks, piers, 
fixed boathouses, floats or rafts, if they provide for toilets, living 
or sleeping quarters, or any type of enclosed floor space in excess of 
25 square feet, not including walkways around boat wells or mooring 
slips. Such walkways shall not exceed 4 feet in width unless, in the 
sole judgment of the Director, the size of the well or slip justifies a 
greater width. For the purposes of this subsection, floor space shall 
not be deemed enclosed solely because of plans providing for the use of 
wire mesh or similar screening which leaves the interior of the 
structure of facility open to the weather: And, provided further, That 
nothing contained in this paragraph shall be construed as prohibiting 
enclosure of the boat well or mooring slip proper. In the case of 
applications for structures to be used as part of a public boat dock, 
marina, or other public or commercial facility, the requirements of this 
paragraph (c) may be waived or modified by the Director if he considers 
such waiver necessary or desirable for proper development of the 
facility.

[36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971, as amended at 42 
FR 65148, Dec. 30, 1977; 43 FR 6766, Feb. 16, 1978. Redesignated at 44 
FR 30682, May 29, 1979]

[[Page 173]]



Sec. 1304.109  Habitable and certain other enclosed structures within the flowage easement areas of TVA reservoirs.

    In addition to all other requirements of this part, any structure 
built upon land subject to a flowage easement held by TVA shall be 
deemed an obstruction affecting navigation, flood control, or public 
lands or reservations within the meaning of section 26a of the Act if 
it:
    (a) Is a fixed enclosed structure having a cost-in-place in excess 
of five thousand dollars; or
    (b) Is designed or used for human habitation, regardless of cost; or
    (c) Involves a discharge into the navigable waters of the United 
States.

Such obstructions shall be subject to all requirements of this subpart, 
but nothing contained in this section shall be construed to be in 
derogation of the rights of the United States or of TVA under any 
flowage easement held by TVA.

For purposes of this section enclosed structure shall mean a structure 
enclosed overhead and on all sides so as to keep out weather.

[42 FR 65148, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979]



    Subpart C--Regulation of Boathouses, Houseboats, Other Floating 
                      Structures, and Harbor Limits



Sec. 1304.200  Scope and intent.

    This subpart prescribes regulations governing designation of harbor 
areas at commercial boat docks and the approval of structures and 
facilities which can be moored or installed in such areas and in other 
areas in the Tennessee River and its tributaries, all in such a manner 
as to avoid obstruction of or interference with navigation and flood 
control, avoid or minimize adverse effects on public lands and 
reservations, prevent the preemption of public waters by houseboats 
moored in permanent or semipermanent locations outside such harbors and 
used as floating dwellings, attain the widest range of beneficial uses 
of land and land rights owned by the United States of America, enhance 
reasonable recreational use of TVA reservoirs by all segments of the 
general public, protect lands and land rights owned by the United States 
alongside and subjacent to TVA reservoirs from trespass and other 
unlawful or unreasonable uses, and maintain, protect, and enhance the 
quality of the human environment.

[42 FR 65148, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.201  Definitions.

    For the purposes of this subpart, in addition to any definitions 
contained elsewhere in this part, the following words or terms shall 
have the meaning specified in this section, unless the context requires 
otherwise:
    Existing as applied to floating boathouses or other structures, 
except houseboats, means those which were moored, anchored, or otherwise 
installed on, along, or in a TVA reservoir on or before July 1, 1972.
    Existing as applied to houseboats shall mean those which were 
moored, anchored, or otherwise installed on, along, or in a TVA 
reservoir on or before February 15, 1978.
    Floating boathouse means a floating structure or facility, any 
portion of which is enclosed, capable of storing or mooring any 
houseboat or other vessel under cover.
    Houseboat means any vessel which is equipped with enclosed or 
covered sleeping quarters.
    Navigable houseboat means any self propelled houseboat having 
maneuverability which is (a) built on a boat hull or on two or more 
pontoons; (b) equipped with motor and rudder controls located at a point 
on the houseboat from which there is forward visibility over a 180 deg. 
range; and (c) in compliance with all applicable State and Federal 
requirements relating to watercraft: Provided, however, That any 
existing houseboat which was deemed navigable under the provisions of 
the former Sec. 1304.201, which became effective November 21, 1971, 
shall continue to be deemed navigable for all purposes of this subpart, 
except that such houseboats shall be subject to the provisions of 
Sec. 1304.203(d).
    New as applied to houseboats, floating boathouses, floats, or other 
structures means all houseboats, floating

[[Page 174]]

boathouses, or structures, other than existing ones.
    Nonnavigable houseboat means a houseboat not in compliance with one 
or more of the criteria defining a navigable houseboat.
    Pontoon means an elongated watertight box or cylinder extending fore 
and aft for the full length of a vessel and having a sloped or molded 
bow to facilitate movement through the water.
    Vessel means any watercraft or other structure or contrivance used 
or capable of use as a means of water transportation, such as a boat, 
floatboat, or houseboat.

[42 FR 65148, Dec. 30, 1977; 43 FR 6766, Feb. 16, 1978. Redesignated at 
44 FR 30682, May 29, 1979]



Sec. 1304.202  Designation of harbor areas at commercial boat docks.

    The landward limits of harbor areas are determined by the extent of 
land rights held by the dock operator. The lakeward limits of harbors at 
commercial boat docks will be designated by TVA on the basis of the size 
and extent of facilities at the dock, navigation and flood control 
requirements, optimum use of lands and land rights owned by the United 
States, and on the basis of the environmental effects associated with 
the use of the harbor. Mooring buoys or slips and indefinite anchoring 
are prohibited beyond such lakeward limits, except as otherwise provided 
in this subpart.



Sec. 1304.203  Houseboats.

    (a) No new nonnavigable houseboat shall be moored, anchored, or 
installed in any TVA reservoir.
    (b) Existing nonnavigable houseboats may remain in TVA reservoirs 
subject to the provisions of paragraph (d) of this section, but only if:
    (1) They have flotation devices complying with Sec. 1304.3;
    (2) They are approved and numbered pursuant to Secs. 1304.205 and 
1304.206; and
    (3) They are moored in compliance with paragraph (c) of this 
section.
    (c) Existing nonnavigable houseboats shall be moored:
    (1) To mooring facilities provided by a commercial dock operator 
within the designated harbor limits of his dock; or
    (2) To the bank of the reservoir outside the designated harbor 
limits of commercial boat docks, if the houseboat owner is the owner or 
lessee of the abutting property at the mooring location (or the licensee 
of such owner or lessee) and has requested and obtained from TVA, 
pursuant to Sec. 1304.205, written approval authorizing mooring at such 
location.
    (d) Ordinary maintenance and repair of existing nonnavigable 
houseboats permitted to be moored pursuant to this section may be 
continued, including replacement of metal drum flotation as required by 
Sec. 1304.3, but such houseboats may not be structurally modified or 
expanded, nor may they be replaced, rebuilt, or returned to the 
reservoir when they have been abandoned, destroyed, or removed from the 
reservoir, or have deteriorated or been damaged so as to be unusable and 
unrepairable.

[42 FR 65149, Dec. 30, 1977; 43 FR 6766, Feb. 16, 1978. Redesignated at 
44 FR 30682, May 29, 1979]

    Editorial Note: For an interpretation of Sec. 1304.203, see the 
appendix to Sec. 1304.204.



Sec. 1304.204  Floating boathouses.

    (a) Floating boathouses may be moored in TVA reservoirs only if:
    (1) They have flotation devices complying with Sec. 1304.3;
    (2) They are approved and numbered pursuant to Secs. 1304.205 and 
1304.206; and
    (3) They are moored in compliance with paragraph (b) of this 
section.
    (b) All floating boathouses shall be moored:
    (1) To mooring facilities provided by a commercial dock operator 
within the designated harbor limits of his dock; or
    (2) To the bank of the reservoir outside the designated harbor 
limits of a commercial boat dock, if the boathouse owner is the owner or 
lessee of the abutting property at the mooring location (or the licensee 
of such owner or lessee) and has requested and obtained from TVA, 
pursuant to Sec. 1304.205, written approval authorizing mooring at such 
location.
    (c) Ordinary maintenance and repair of existing floating boathouses 
permitted to be moored pursuant to this section may be continued, 
including replacement of metal drum flotation as

[[Page 175]]

required by Sec. 1304.3, but such floating boathouses may not be 
structurally modified or expanded, or replaced, rebuilt, or returned to 
the reservoir when they have been abandoned, destroyed, or removed from 
the reservoir, or have deterioriated or been damaged, so as to be 
unusable or unrepairable: Provided, however, That such floating 
boathouses may be so structurally modified or expanded, replaced, 
rebuilt, or so returned to the reservoir if they comply with all the 
requirements of Sec. 1304.205(d) and approval is obtained under that 
section as for a new floating boathouse.

        Appendix--Interpretations of Secs. 1304.203 and 1304.204

    1. Sections 1304.203(a) and 1304.204(a) of Title 18 of the Code of 
Federal Regulations prohibit new nonnavigable houseboats and new 
floating boathouses not meeting the requirements of Sec. 1304.205(d) in 
TVA reservoirs. These sections also provide that existing nonnavigable 
houseboats approved for continued mooring on TVA reservoirs and all 
floating boathouses shall be moored: (1) To mooring facilities provided 
by a commercial dock operator within the designated harbor limits of his 
dock; or (2) to the bank of the reservoir outside the designated harbor 
limits of commercial boat docks, if the houseboat or boathouse owner is 
the owner or lessee of the abutting property at the mooring location (or 
the licensee of such owner or lessee) and has requested and obtained 
from TVA, pursuant to Sec. 1304.205, written approval authorizing 
mooring at such location.
    In all cases where more than one person owns or leases the abutting 
property at a present or proposed mooring location as tenants in common 
or in any other sort of cotenancy, TVA interprets the terms ``the owner 
or lessee of the abutting property'' and ``such owner or lessee'' in 18 
CFR 1304.203(c)(2) and 1304.204(b)(2) as meaning all of the owners of 
such abutting property. The owner or owners of only a fractional 
interest or of fractional interests totalling less than one in any such 
property shall under no circumstances be considered, by virtue of such 
fractional interest or interests only, to be the ``owner or lessee'' of 
such abutting property for the purposes of 18 CFR 1304.203(c)(2) or 
1304.204(b)(2) and, as such, eligible to moor or license others to moor 
as provided therein without the consent of the other coowners.

(Sec. 26a of the Tennessee Valley Authority Act of 1933, as amended (16 
U.S.C. 831y-1))

[42 FR 65149, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 48 FR 9639, Mar. 8, 1983]



Sec. 1304.205  Approval of plans for floating boathouses and nonnavigable houseboats.

    (a) Existing nonnavigable houseboats and all floating boathouses 
must be approved pursuant to this subpart and the provisions of Subpart 
B of this part.
    (b) Persons proposing to moor new floating boathouses shall submit 
applications to TVA prior to commencement of construction or mooring 
thereof. Applications shall be accompanied by plans showing in 
reasonable detail the size and shape of the facility; the kind of 
flotation device; the proposed mooring locations thereof; whether a 
marine toilet is on the facility; and the name and mailing address of 
the owner. TVA shall be kept advised of any changes in the kind of 
flotation devices which may be made by the applicant after approval is 
granted. Plans described in this section shall be in lieu of the plans 
specified in Sec. 1304.103(a).
    (c) If the proposed mooring location is outside the designated 
harbor limits of a commercial boat dock, the application and plans shall 
be accompanied by evidence satisfactory to TVA showing that the 
applicant is the owner or lessee of the abutting property at the 
proposed mooring location, or the licensee of such owner or lessee.
    (d) Applications for new floating boathouses will be disapproved if 
the plans provide for toilets, living or sleeping quarters, or enclosed 
spaces with more than 25 square feet of floor space, not including 
walkways around boat wells or mooring slips. Such walkways shall not 
exceed 4 feet in width unless, in the sole judgment of the Director, the 
size of the well or slip justifies a greater width. A new floating 
boathouse or part thereof shall not be deemed ``enclosed'' solely 
because of plans providing for the use of wire mesh or similar screening 
which leaves the interior of the structure open to the weather, and 
nothing contained in this subsection shall be construed as prohibiting 
enclosure of the boat well or mooring slip proper. Plans for any new 
floating boathouses will also be disapproved if the proposed flotation 
device includes metal drums in any form.

[[Page 176]]

    (e) Applications for mooring outside designated harbor limits will 
be disapproved if TVA determines that such proposed mooring location 
will be contrary to the intent of this subpart, of Sec. 1304.2, or of 
any applicable law. Applications will also be disapproved if marine 
toilets not in compliance with Sec. 1304.4 are proposed.
    (f) Approvals of applications shall contain such conditions as may 
be required by law and may contain such other conditions as TVA 
determines to be necessary or desirable to carry out the intent of this 
subpart, this part or other applicable law. Included, without 
limitation, among such conditions are conditions relating to the mooring 
of houseboats and floating boathouses at locations outside the 
designated harbor limits of commercial boat docks. Strict compliance 
with all conditions will be required.

[36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971, as amended at 42 
FR 65149, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979]



Sec. 1304.206  Numbering and transfer of approved facilities.

    (a) Upon approval of an application concerning a nonnavigable 
houseboat or floating boathouse, TVA will assign a number to such 
facility. The owner of the facility shall paint such number on, or 
attach a facsimile thereof to, a readily visible part of the outside of 
the facility in letters not less than three (3) inches high. The 
placement of such number shall be consistent with the requirements of 
any State or Federal law or regulation concerning numbering of 
watercraft.
    (b) The transferee of any floating boathouse or nonnavigable 
houseboat approved pursuant to this part and which, after transfer, 
remains subject to this part, shall promptly report such transfer to 
TVA. A facility moored at a location approved pursuant to this part 
shall not be moored at a different location without prior approval of 
such location by TVA under this subpart, except for transfers of 
location to or between mooring facilities provided by commercial dock 
operators within the designated harbor limits of their docks.

[36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971, as amended at 42 
FR 65149, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29, 1979]



PART 1305--LAND BETWEEN THE LAKES--Table of Contents




                  Subpart A--Use of Motorized Vehicles

Sec.
1305.1  Motor vehicles generally.
1305.2  Motorcycles.
1305.3  Off-road vehicles.
1305.4  Major off-road vehicle areas.
1305.5  Mini-bike areas at family campgrounds as designated.
1305.6  Enforcement.

Subpart B [Reserved]

    Authority: 16 U.S.C. 831-831dd. Sections 1305.1 to 1305.6 also 
issued under 42 U.S.C. 4321 and E.O. 11644, 37 FR 2877.

    Source: 38 FR 5458, Mar. 1, 1973, unless otherwise noted. 
Redesignated at 44 FR 30682, May 29, 1979.



                  Subpart A--Use of Motorized Vehicles



Sec. 1305.1  Motor vehicles generally.

    All properly licensed motor vehicles may be operated on paved, 
graveled, or graded roads unless otherwise posted or gated or 
barricaded, and on other roads if specifically authorized in writing by 
an authorized Land Between the Lakes official. Driving in woods or 
fields or on foottrails or utility rights of way is prohibited, except 
as authorized in Secs. 1305.3 through 1305.5. Drivers must hold a valid 
State operator's license to drive on improved roads. All vehicles must 
be equipped with properly functioning mufflers. Maximum speed within 
Land Between the Lakes is 35 miles per hour or less if so posted, except 
on the Trace and U.S. Highway 68, where a maximum speed of 60 miles per 
hour is permitted unless posted for reduced speeds.



Sec. 1305.2  Motorcycles.

    Motorcycles of all types shall be equipped with properly functioning 
spark arresters. Safety requirements for motorcycle riders on improved 
roads are safety helmets and protective eyewear.



Sec. 1305.3  Off-road vehicles.

    Except for operation as authorized in Sec. 1305.1, off-road 
vehicles, including

[[Page 177]]

trail bikes and mini-bikes, may be operated only within the posted 
boundaries of areas designated by TVA for this purpose during daylight 
hours, in accordance with posted regulations, and at the sole risk of 
the operator. TVA recommends that off-road vehicle riders follow all 
safety practices recommended by the American Motorcycle Association 
regarding safety helmets, heavy shoes, protective clothing, and 
protective shatterproof eyewear. All vehicles shall be equipped with 
properly functioning mufflers, and motorcycles with spark arresters. No 
vehicles emitting an unusually loud noise may be operated in such areas. 
All operation of such vehicles shall be in full compliance with 
applicable State laws. If such laws permit operation within such areas 
without registration and licensing, any unlicensed bikes must be 
transported to the areas.



Sec. 1305.4  Major off-road vehicle areas.

    (a) Off-road vehicles of all kinds, including trail bikes and mini-
bikes, may be operated within the posted boundaries of major off-road 
vehicle areas, which include trails, camping space, unloading ramps, and 
sanitary facilities. The only area presently so designated is the Turkey 
Bay Off-Road Vehicle Area, a 2,500-acre tract reached by a drive running 
west off the Trace approximately 2\1/4\ miles south of the U.S. Highway 
68 overpass.
    (b) Off-road vehicles may be operated in these areas from 8 a.m. 
until 30 minutes before sundown. Motors must be off at all other times 
except for the purpose of entering or leaving the area.
    (c) The areas will not be made available for competitive events 
sponsored by any organized riding groups.
    (d) All one-way and other directional signs on trails shall be 
strictly observed.
    (e) Signs designating cemeteries, experimental plantings, and other 
portions of these areas as off limits to riders shall be strictly 
observed.
    (f) All garbage and other debris must be placed in containers 
provided.
    (g) Riders and campers in the areas shall not harass or otherwise 
disturb other persons or wildlife in any way.



Sec. 1305.5  Mini-bike areas at family campgrounds as designated.

    (a) Mini-bikes and small trail bikes may be ridden on marked trails 
and within posted boundaries in areas designated for that purpose at 
family campgrounds. Such areas are presently designated at the Piney and 
Hillman Ferry campgrounds.
    (b) These areas are open from 9:30 a.m. until 30 minutes before 
sundown.
    (c) All bikes must be equipped with a properly functioning 
combination muffler and U.S. Forest Service-approved spark arrester.
    (d) All one-way and other directional signs on trails shall be 
strictly observed.
    (e) Reckless operation, horseplay, and any action endangering or 
disturbing other users is prohibited.



Sec. 1305.6  Enforcement.

    Persons violating any of the foregoing rules and regulations may be 
excluded from Land Between the Lakes or denied use of the areas and 
trails designated for operation of off-road vehicles, as deemed 
appropriate by authorized officials of Land Between the Lakes.

Subpart B [Reserved]



PART 1306--RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES--Table of Contents




                  Subpart A--Regulations and Procedures

Sec.
1306.1  Purpose and applicability.
1306.2  Uniform real property acquisition policy.
1306.3  Surrender of possession.
1306.4  Rent after acquisition.
1306.5  Tenants` rights in improvements.
1306.6  Expense of transfer of title and proration of taxes.

Subpart B [Reserved]

    Authority: Sec. 213, Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42 
U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 101 Stat. 
246-256 (42 U.S.C. 4601 note); 48 Stat. 58, as amended (16 U.S.C. 831-
831dd).

[[Page 178]]



                  Subpart A--Regulations and Procedures



Sec. 1306.1  Purpose and applicability.

    (a) Purpose. The purpose of the regulations and procedures in this 
Subpart A is to implement Uniform Relocation Assistance and Real 
Property acquisition Policies Act of 1970 (Pub. L. 91-646, 84 Stat. 42 
U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987 (Title IV of Pub. L. 100-17, Stat. 
246-256, 42 U.S.C. 4601 note) (Uniform Act, as amended).
    (b) Applicability. (1) Titles and I and II of the Uniform Act, as 
amended, govern relocation assistance by TVA. For TVA program activities 
undertaken after April 1, 1989, relocation assistance under those titles 
will be governed by implementing regulations set forth in Subpart A and 
Subparts C through G of 49 CFR Part 24.
    (2) Regulations and procedures for complying with the real property 
acquisition provisions of Title III of the Uniform Act, as amended, are 
set forth in this part.

[52 FR 48019, Dec. 17, 1987]



Sec. 1306.2  Uniform real property acquisition policy.

    (a) Before negotiations are initiated for acquisition of real 
property, the Chief of TVA's Land Branch will cause the property to be 
appraised and establish an amount believed to be just compensation 
therefor. The appraiser shall afford the owner or his representative an 
opportunity to accompany him during his inspection of the property.
    (b) When negotiations are initiated to acquire real property, the 
owner will be given a written statement of, and summary of the basis 
for, the amount estimated as just compensation. The statement will 
identify the property and the interest therein to be acquired, including 
buildings and other improvements to be acquired as a part of the real 
property, the amount of the estimated just compensation, and the basis 
therefor. If only a portion of the property is to be acquired, the 
statement will include a statement of damages and benefits, if any, to 
the remainder.

[38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17, 1987]



Sec. 1306.3  Surrender of possession.

    Possession of real property will not be taken until the owner has 
been paid the agreed purchase price or TVA's estimate of just 
compensation has been deposited in court in a condemnation proceeding. 
To the greatest extent practicable, no person will be required to move 
from property acquired by TVA without at least 90 days` written notice 
thereof.

[38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17, 1987]



Sec. 1306.4  Rent after acquisition.

    If TVA rents real property acquired by it to the former owner or 
former tenant, the amount of rent shall not exceed the fair rental value 
on a short-term basis.

[38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17, 1987]



Sec. 1306.5  Tenants` rights in improvements.

    Tenants of real property being acquired by TVA will be paid just 
compensation for any improvements owned by them, whether or not they 
might have a right to remove such improvements under the terms of their 
tenancy. Such payment will be made only upon the condition that all 
right, title, and interest of the tenant in such improvements shall be 
transferred to TVA and upon the further condition that the owner of the 
real property being acquired shall execute a disclaimer of any interest 
in said improvements.

[38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17, 1987]



Sec. 1306.6  Expense of transfer of title and proration of taxes.

    In connection with the acquisition of real property by TVA:
    (a) TVA will, to the extent it deems fair and reasonable, bear all 
expenses incidental to the transfer of title to the United States, 
including penalty costs for the prepayment of any valid preexisting 
recorded mortgage;

[[Page 179]]

    (b) Real property taxes shall be prorated to relieve the seller from 
paying taxes which are allocable to a period subsequent to vesting of 
title in the United States or the date of possession, whichever is 
earlier.

[38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17, 1987]

Subpart B [Reserved]



PART 1307--NONDISCRIMINATION WITH RESPECT TO HANDICAP--Table of Contents




Sec.
1307.1  Definitions.
1307.2  Purpose.
1307.3  Application.
1307.4  Program discrimination.
1307.5  Employment discrimination.
1307.6  Program accessibility.
1307.7  Assurances required.
1307.8  Compliance information.
1307.9  Conduct of investigations.
1307.10  Procedure for effecting compliance.
1307.11  Hearings.
1307.12  Decisions and notices.
1307.13  Effect on other regulations; supervision and coordination.

    Authority: TVA Act, 48 Stat. 58 (1933) as amended, 16 U.S.C. 831-
831dd (1976) and sec. 504 of the Rehabilitation Act of 1973, Pub. L. 93-
112, as amended, 29 U.S.C. 794 (1976; Supp. II 1978).

    Source: 45 FR 22895, Apr. 4, 1980, unless otherwise noted.



Sec. 1307.1  Definitions.

    As used in this part, the following terms have the stated meanings, 
unless the context otherwise requires:
    (a) Section 504 means section 504 of the Rehabilitation Act of 1973, 
Pub. L. 93-112, as amended, 29 U.S.C. 794.
    (b) Recipient means any individual, any State or its political 
subdivision, or any instrumentality of either, and any public or private 
agency, institution, organization, or other entity to which financial 
assistance is extended by TVA directly or through another recipient, 
including any successor, assignee, or transferee of a recipient as 
hereinafter set forth, but excluding the ultimate beneficiary of the 
assistance.
    (c) Financial assistance means the grant or loan of money; the 
donation of real or personal property; the sale, lease, or license of 
real or personal property for a consideration which is nominal or 
reduced for the purpose of assisting the recipient; the waiver of 
charges which would normally be made, in order to assist the recipient; 
the entry into a contract where a purpose is to give financial 
assistance to the contracting party; and similar transactions.
    (d) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (e) Federal agency means any department, agency, or instrumentality 
of the Government of the United States, other than TVA.
    (f) Handicapped person means any individual who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment, as further defined below, except that, as related to 
employment, the term handicapped individual does not include any 
individual who is an alcoholic or drug abuser whose current use of 
alcohol or drugs prevents such individual from performing the duties of 
the job in question or whose employment, by reason of such current drug 
or alcohol abuse, would constitute a direct threat to property or the 
safety of others:
    (1) Physical or mental impairment means (i) any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: Neurological; 
musculoskeletal; special sense organs; respiratory, including speech 
organs; cardiovascular; reproductive; digestive; genitourinary; hemic 
and lymphatic; skin; and endocrine; or (ii) any mental or psychological 
disorder, such as mental retardation, organic brain syndrome, emotional 
or mental illness, and specific learning disabilities. The term physical 
or mental impairment includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments; 
cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; 
cancer; heart disease; diabetes; mental retardation; emotional illness; 
and drug addiction and alcoholism.

[[Page 180]]

    (2) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a physical or mental impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having such an impairment means (i) has a 
physical or mental impairment that does not substantially limit major 
life activities but which is treated by a recipient as constituting such 
a limitation; (ii) has a physical or mental impairment that 
substantially limits major life activities only as a result of the 
attitudes of others toward the impairment; or (iii) does not have a 
physical or mental impairment as defined in paragraph (f)(1) of this 
section but is treated by a recipient as having such an impairment.
    (g) Qualified handicapped person means (1) with respect to 
employment, a handicapped person (except an alcoholic or drug abuser as 
defined in paragraph (f) of this section), who, with reasonable 
accommodation, can perform the essential functions of the job in 
question and (2) with respect to services, a handicapped person who 
meets the essential eligibility requirements for the receipt of such 
services.
    (h) Historic property means an architecturally, historically, or 
culturally significant property listed in or eligible for listing in the 
National Register of Historic Places, or a property officially 
designated as having architectural, historic, or cultural significance 
under a statute of the appropriate State or local governmental body.
    (i) Building alterations means those changes to existing conditions 
and equipment of a building which do not involve any structural changes, 
but which typically improve and upgrade a building, such as site 
improvements and alterations to stairways, doors, toilets or elevators.
    (j) Structural changes shall mean those changes which alter the 
structure of a building, including but not limited to its load bearing 
walls and all types of post and beam systems in wood, steel, iron or 
concrete.



Sec. 1307.2  Purpose.

    The purpose of this part is to effectuate section 504 to the end 
that no otherwise qualified handicapped individual shall, solely by 
reason of his or her handicap, be excluded from the participation in, be 
denied the benefits of, or be subjected to discrimination under any 
program or activity receiving financial assistance from TVA.



Sec. 1307.3  Application.

    This part applies to any program in which financial assistance is 
provided by TVA, except that this part does not apply to any (a) TVA 
procurement contracts, contracts with other Federal agencies, or 
contracts of insurance or guaranty, (b) money paid, property 
transferred, or other assistance extended to a recipient under any 
program before the effective date of this part, or (c) assistance to any 
individual or entity which is the ultimate beneficiary under any such 
program. Nothing in paragraph (b) of this section exempts any recipient 
of financial assistance under a contract in effect on the effective date 
of this part from compliance with this part.



Sec. 1307.4  Program discrimination.

    (a) General. No qualified handicapped person, shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity to which this part applies.
    (b) Specific discriminatory actions. (1) A recipient under any 
program to which this part applies shall not, directly or through 
contractual, licensing, or other arrangements, on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or services available 
under the program;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others under the program;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service

[[Page 181]]

that is not as effective in affording equal opportunity to obtain the 
same result, to gain the same benefit, or to reach the same level of 
achievement as that provided to others under the program;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others, unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others under the program;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or entity that discriminates on the basis of handicap in providing any 
aid, benefit, or service to beneficiaries of the recipient's program;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards with respect to 
the program; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment under the program of any right, privilege, advantage, or 
opportunity enjoyed by others under the program.
    (2) A recipient shall not deny a qualified handicapped person the 
opportunity to participate under the program in activities that are not 
separate or different, despite the existence of permissibly separate or 
different activities.
    (3) A recipient shall not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration (i) that 
have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap, (ii) that have the purpose or 
effect of defeating or substantially impairing accomplishment of the 
objectives of the program with respect to handicapped persons, or (iii) 
that perpetuate the discrimination of another recipient if both 
recipients are subject to common administrative control.
    (4) A recipient shall not, in determining the site or location of a 
facility under the program, make selections (i) that have the effect of 
excluding handicapped persons from, denying them the benefits of, or 
otherwise subjecting them to discrimination under the program, or (ii) 
that have the purpose or effect of defeating or substantially impairing 
the accomplishment of the objectives of the program or activity with 
respect to handicapped persons.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) Recipients shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons. A recipient who wishes to establish a policy of separate 
programs or different treatment for handicapped and nonhandicapped 
persons shall request and receive written approval from TVA before 
instituting such policy or undertaking any such separate treatment.
    (e) Recipients shall take appropriate steps to ensure that 
communications to their applicants, employees, and beneficiaries are 
available to such persons with impaired vision and hearing.



Sec. 1307.5  Employment discrimination.

    (a) General. No qualified handicapped person shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity subject to this part.
    (b) Specific discriminatory actions. With respect to a program or 
activity subject to this part, a recipient shall not limit, segregate, 
or classify applicants or employees in any way that adversely affects 
their opportunities or status because of handicap.
    (c) A recipient shall make all decisions concerning employment under 
any program or activity subject to this part in a manner which ensures 
that discrimination on the basis of handicap does not occur, including 
the following activities:
    (1) Recruitment, advertising, and processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;

[[Page 182]]

    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including social or recreational 
programs; and
    (9) Any other term, condition, or privilege of employment.
    (d) A recipient shall not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this part, 
including relationships with employment and referral agencies, with 
labor unions, with organizations providing or administering fringe 
benefits to employees of the recipient, and with organizations providing 
training and apprenticeship programs.
    (e) Reasonable accommodation. (1) A recipient shall make reasonable 
accommodation to the known physical or mental limitations of an 
otherwise qualified handicapped applicant or employee unless the 
recipient can demonstrate that the accommodation would impose an undue 
hardship on the operation of the program or activity subject to this 
part. Reasonable accommodation may include:
    (i) Making facilities used by employees readily accessible to and 
usable by handicapped persons; and
    (ii) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provision of 
readers or interpreters, or other similar actions.
    (2) In determining whether an accommodation would impose an undue 
hardship on the operation of a recipient's program or activity under 
this paragraph factors to be considered include but are not limited to:
    (i) The nature and cost of the accommodation needed, and its effect, 
if any, on the recipient's programs.
    (ii) The kind of operation conducted by the recipient, including the 
composition and structure of the recipient's workforce; and
    (iii) The overall size of the recipient's program or activity with 
respect to number of employees, number and type of facilities, and size 
of budget.
    (3) It is not an undue hardship with respect to a qualified 
handicapped employee or applicant if the sole basis for the claim of 
hardship is the need to make an accommodation to the physical or mental 
limitations of the otherwise qualified employee or applicant and the 
accommodation is deemed by TVA to be reasonable.
    (f) Employment criteria. A recipient shall not use employment tests 
or criteria that discriminate against handicapped persons and shall 
ensure that employment tests are adapted for use by persons who have 
handicaps that impair sensory, manual, or speaking skills.
    (g) Preemployment inquiries. (1) A recipient shall not conduct a 
preemployment medical examination or make a preemployment inquiry as to 
whether an applicant is a handicapped person or as to the nature or 
severity of a handicap except as set out in this paragraph (g).
    (2) A recipient may make a preemployment inquiry into an applicant's 
ability to perform job-related functions.
    (3) When a recipient is taking remedial action to correct the 
effects of past discrimination, taking voluntary action to overcome the 
effects of conditions that resulted in limited participation in its TVA-
assisted program or activity or is taking affirmative action pursuant to 
section 503 of the Rehabilitation Act of 1973, the recipient may invite 
applicants for employment to indicate whether and to what extent they 
are handicapped: Provided, That the recipient states clearly on any 
written questionnaire used for this purpose, or makes clear orally if no 
written questionnaire is so used, that:

[[Page 183]]

    (i) The information requested is intended for use solely in 
connection with such remedial, voluntary or affirmative action efforts;
    (ii) The information is being requested on a voluntary basis and it 
will be kept confidential as provided in paragraph (g)(4) of this 
section;
    (iii) Refusal to provide the information will not subject the 
applicant or employee to any adverse treatment; and
    (iv) The information will be used only in accordance with this part.
    (4) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty: 
Provided, That:
    (i) All entering employees are subjected to such an examination 
regardless of handicap; and
    (ii) The results of such an examination are used only in accordance 
with the requirements of this part.
    (5) Information obtained in accordance with this section as to the 
medical condition or history of an employee or applicant shall be 
collected and maintained on separate forms that shall be accorded 
confidentiality as medical records, except that:
    (i) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (ii) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (iii) TVA officials investigating compliance with section 504 shall 
be provided information which they deem relevant upon request.



Sec. 1307.6  Program accessibility.

    (a) General. No qualified handicapped person shall, because 
facilities are inaccessible to or unusable by handicapped persons, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program subject to this part.
    (b) Existing facilities. (1) Each program subject to this part shall 
be operated so that, viewed in its entirety, it is readily accessible to 
and usable by qualified handicapped persons. This paragraph does not 
necessarily require a recipient to make each of its existing facilities 
or every part of an existing facility accessible to and usable by 
handicapped persons. A recipient is not required to make building 
alterations or structural changes if other methods are effective in 
achieving program accessibility. Such compliance methods may include 
(subject to the provisions of Secs. 1307.4 and 1307.5), reassigning 
programs or activities to accessible locations within a facility; 
providing assistance to handicapped persons into or through an otherwise 
inaccessible facility; delivering programs or activities at other 
alternative sites which are accessible and are operated or available for 
use by the recipient; or other methods which comply with the intent of 
this paragraph.
    (2) This paragraph governs the timing of development of transition 
plans and the completion of necessary building alterations and 
structural changes to existing facilities, including historic property 
covered by paragraph (c) of this section. If building alterations or 
structural changes will be necessary to make covered programs or 
activities in existing facilities of a recipient accessible, the 
recipient shall develop a transition plan setting forth the steps 
necessary to complete the alterations or changes in accordance with such 
standards as TVA may specify in the contract or agreement, and shall 
have the plan approved by TVA. If the financial assistance from TVA is 
expected to last for less than three years, the contract or agreement 
shall specify the date by which the transition plan shall be developed 
and approved. If the financial assistance from TVA is expected to last 
for at least three years, the transition plan shall be developed and 
submitted to TVA within six months from the effective date of the 
contract or agreement, subject to extension by TVA for an additional six 
month period, for good cause shown to it. A transition plan shall:
    (i) Be developed with the assistance of interested persons or 
organizations representing handicapped persons;

[[Page 184]]

    (ii) Be available for public inspection after approval by TVA (or at 
any earlier time required by state or local law applicable to the 
recipient);
    (iii) Identify the official responsible for implementation of the 
approved plan; and
    (iv) Specify the date by which the required alterations or changes 
shall be completed, which shall be as soon as practicable and in no 
event later than three years after the effective date that financial 
assistance is extended by TVA.
    (3) Alterations to existing facilities shall, to the maximum extent 
feasible, be designed and constructed to be readily accessible to and 
usable by handicapped persons.
    (c) Historic property. If a recipient's program or activity uses an 
existing facility which is an historic property, the recipient shall 
endeavor to assure compliance with paragraph (b)(1) of this section by 
compliance methods which do not alter the historic character or 
architectural integrity of the historic property. The recipient must 
determine that program accessibility cannot be accomplished by such 
alternative methods before considering building alterations as a 
compliance method. To the maximum extent possible any building 
alterations determined to be necessary shall be undertaken so as not to 
alter or destroy architecturally significant elements or features. A 
recipient may determine that structural changes are necessary to 
accomplish program accessibility only if the recipient has determined 
that accessibility cannot feasibly be accomplished by any of the other 
foregoing methods. To the maximum extent possible, any structural 
changes determined to be necessary shall be undertaken so as not to 
alter or destroy architecturally significant elements or features.
    (d) New construction. (1) New facilities required under a program 
subject to this part shall be designed and constructed to be readily 
accessible to and usable by handicapped persons.
    (2) Effective as of November 4, 1988, design, construction, or 
alteration of buildings in conformance with Sections 3-8 of the Uniform 
Federal Accessibility Standards (UFAS) (41 CFR Subpart 101-19.6 app. A) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (3) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of physically handicapped persons.
    (4) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[45 FR 22895, Apr. 4, 1980, as amended at 53 FR 39083, Oct. 5, 1988]



Sec. 1307.7  Assurances required.

    (a) TVA contributes financial assistance only under agreements which 
contain a provision which specifically requires compliance with this 
part and compliance with such standards for construction and alteration 
of facilities as TVA may provide. If the financial assistance involves 
the furnishing of real property, the agreement shall obligate the 
recipient, or the transferee in the case of a subsequent transfer, for 
the period during which the real property is used for a purpose for 
which the financial assistance is extended or for another purpose 
involving the provision of similar services or benefits. Where the 
financial assistance involves the furnishing of personal property, the 
agreement shall obligate the recipient during the period for which 
ownership or possession of the property is retained. In all other cases 
the agreement shall obligate the recipient for the period during which 
financial assistance is extended pursuant to the agreement. TVA shall 
specify the form of the foregoing agreement, and the extent to which an 
agreement shall be applicable to subcontractors, transferees, successors 
in interest, and other participants in the program.

[[Page 185]]

    (b) In the case of real property, structures or improvements 
thereon, or interests therein, acquired through a program of TVA 
financial assistance, or in the case where financial assistance was 
provided in the form of a transfer by TVA of real property or interest 
therein, the instrument effecting or recording the transfer of title 
shall contain a convenant running with the land assuring compliance with 
this part and the guidelines contained herein for the period during 
which the real property is used for a purpose for which the TVA 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. Where no transfer of property 
is involved, but property is improved under a program of TVA financial 
assistance, the recipient shall agree to include such a covenant in any 
subsequent transfer of such property. Where the property is obtained by 
transfer from TVA, the covenant against discrimination may also include 
a condition coupled with a right to be reserved by TVA to revert title 
to the property in the event of a breach of the covenant where, in the 
discretion of TVA, such a condition and right of reverter is appropriate 
to the program under which the real property is obtained and to the 
nature of the grant and the grantee. In such event, if a transferee of 
real property proposes to mortgage or otherwise encumber the real 
property as security for financing construction of new, or improvement 
of existing, facilities on such property for the purposes for which the 
property was transferred, TVA may agree, upon request of the transferee 
and if necessary to accomplish such financing, and upon such conditions 
as it deems appropriate, to forbear the exercise of such right to revert 
title for so long as the lien of such mortgage or other encumbrance 
remains effective.



Sec. 1307.8  Compliance information.

    (a) Cooperation and assistance. TVA shall to the fullest extent 
practicable seek the cooperation of recipients in obtaining compliance 
with this part and shall provide assistance and guidance to recipients 
to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to TVA timely, complete and accurate compliance reports at such 
times, and in such form and containing such information, as TVA may 
determine to be necessary to enable it to ascertain whether the 
recipient has complied or is complying with this part. In the case of 
any program under which a primary recipient extends financial assistance 
to any other recipient, such other recipient shall also submit such 
compliance reports to the primary recipient as may be necessary to 
enable the primary recipient to carry out its obligations under this 
part.
    (c) Access to sources of information. Each recipient shall permit 
access by TVA during normal business hours to such of its books, 
records, accounts, and other sources of information, and its facilities, 
as TVA may require to ascertain compliance with this part. Where any 
information required of a recipient is in the exclusive possession of 
any other agency, institution or person and this agency, institution or 
person shall fail or refuse to furnish this information, the recipient 
shall so certify in its report and set forth the efforts it has made to 
obtain the information.
    (d) Information to employees, beneficiaries and participants. Each 
recipient shall make available to employees, participants, 
beneficiaries, and other interested persons such information regarding 
the provisions of this part and its applicability to the program under 
which the recipient receives financial assistance, and shall make such 
information available to them in such manner, as TVA finds necessary to 
apprise such persons of the protections against discrimination assured 
them by section 504 and this part.



Sec. 1307.9  Conduct of investigations.

    (a) Periodic compliance reviews. TVA shall from time to time review 
the practices of recipients to determine whether they are complying with 
this part.
    (b) Complaints. Any individual who claims (individually or on behalf 
of any specific class of individuals) to have been subjected to 
discrimination prohibited by this part may, personally or

[[Page 186]]

by a representative, file with TVA a written complaint. A complaint must 
be filed not later than ninety (90) days from the date of the alleged 
discrimination, unless the time for filing is extended by TVA.
    (c) Investigations. TVA will make a prompt investigation whenever a 
compliance review, report, complaint, or any other information indicates 
a possible failure to comply with this part. The investigation shall 
include, where appropriate, a review of the pertinent practices and 
policies of the recipient, the circumstances under which the possible 
noncompliance with this part occurred, and other factors relevant to a 
determination as to whether the recipient has failed to comply with this 
part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, TVA will so inform the recipient and the matter will be resolved 
by informal means whenever possible. If TVA determines that the matter 
cannot be resolved by informal means, action will be taken as provided 
for in Sec. 1307.10.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d) (1) of this section, TVA will so inform the recipient and 
the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 504 or this part, or because the individual 
had made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.



Sec. 1307.10  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue financial assistance or by any other means 
authorized by law. Such other means may include, but are not to be 
limited to, (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States, (2) 
institution of appropriate proceedings by TVA to enforce the provisions 
of the agreement of financial assistance or of any deed or instrument 
relating thereto, and (3) any applicable proceeding under State or local 
law.
    (b) Noncompliance with Sec. 1307.7. If any entity requesting 
financial assistance from TVA declines to furnish the assurance required 
under Sec. 1307.7, or otherwise fails or refuses to comply with a 
requirement imposed by or pursuant to that section, financial assistance 
may be refused in accordance with the procedures of paragraph (c) of 
this section; and for such purposes, the term ``recipient'' includes one 
who has been denied financial assistance. TVA shall not be required to 
provide assistance in such a case during the pendency of the 
administrative proceedings under such paragraph except that TVA shall 
continue assistance during the pendency of such proceedings where such 
assistance was due and payable pursuant to an agreement therefor entered 
into with TVA prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue financial 
assistance. No order suspending, terminating or refusing to grant or 
continue financial assistance shall become effective until (1) TVA has 
advised the recipient of the failure to comply and has determined that 
compliance cannot be secured by voluntary means, (2) there has been an 
express finding on the record, after opportunity for hearing, of a 
failure by the recipient to comply with a requirement imposed by or 
pursuant to this part, including any act of discrimination on the basis 
of handicap in violation of this part, and (3) the action has been 
approved by the TVA Board pursuant to Sec. 1307.12. Any action to 
suspend or terminate or to refuse to grant

[[Page 187]]

or to continue financial assistance shall be limited to the particular 
recipient as to whom such a finding had been made and shall be limited 
in its effect to the particular program, or part thereof, in which such 
noncompliance had been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) TVA has 
determined that compliance cannot be secured by voluntary means, (2) the 
recipient or other person has been notified of its failure to comply and 
of the action to be taken to effect compliance, and (3) the expiration 
of at least ten (10) days from the mailing of such notice to the 
recipient or other person. During this period of at least ten (10) days 
additional efforts will be made to persuade the recipient or other 
person to comply with this part and to take such corrective action as 
may be appropriate.



Sec. 1307.11  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 1307.10, reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
recipient. This notice shall advise the recipient of the action proposed 
to be taken, the specific provision under which the proposed action 
against it is to be taken, and the matters of fact or law asserted as 
the basis for this action, and shall either (1) fix a date not less than 
twenty (20) days after the date of such notice within which the 
recipient may request of TVA that the matter be scheduled for hearing or 
(2) advise the recipient that the matter in question has been set down 
for hearing at a stated time and place. The time and place so fixed 
shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. A recipient may waive a hearing and submit written information 
and argument for the record. The failure of a recipient to request a 
hearing under this subsection or to appear at a hearing for which a date 
has been set shall be deemed to be a waiver of the right to a hearing 
and a consent to the making of a decision on the basis of such 
information as is available.
    (b) Time and place of hearing. Hearings shall be held at the time 
and place fixed by TVA unless it determines that the convenience of the 
recipient requires that another place be selected. Hearings shall be 
held before the TVA Board or before a ``hearing officer'' who shall be 
either a member of the TVA Board or, at the discretion of the Board, a 
person designated by the Board who shall not be employed in or under the 
TVA division through or under which the financial assistance has been 
extended by TVA to the recipient involved in the hearing.
    (c) Right to counsel. In all proceedings under this section, the 
recipient and TVA shall have the right to be represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in accordance with 
such rules of procedure as are proper (and not inconsistent with this 
section) relating to the conduct of the hearing, giving of notices 
subsequent to those provided for in paragraph (a) of this section, 
taking of testimony, exhibits, arguments and briefs, requests for 
findings, and other related matters. Both TVA and the recipient shall be 
entitled to introduce all relevant evidence on the issues as stated in 
the notice for hearing or as determined by the officer conducting the 
hearing at the outset of or during the hearing.
    (2) Technical rules of evidence will not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. That officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall

[[Page 188]]

be based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more programs to which this part applies, or 
noncompliance with this part and the regulations of one or more other 
Federal agencies issued under section 504, the TVA Board may, by 
agreement with such other agency, provide for the conduct of 
consolidated or joint hearings, and for the application to such hearings 
of rules of procedure not inconsistent with this part. Final decisions 
in such cases, insofar as this part is concerned, shall be made in 
accordance with Sec. 1307.12.



Sec. 1307.12  Decisions and notices.

    (a) Decision by a member of the TVA Board or a hearing officer. If 
the hearing is held before a ``hearing officer'' as defined in 
Sec. 1307.11(b), that hearing officer shall either make an initial 
decision, if so authorized, or certify the entire record including 
recommended findings and proposed decision to the TVA Board for a final 
decision. A copy of such initial decision or certification shall be 
mailed to the recipient. Where the initial decision is made by a hearing 
officer, the recipient may file with the TVA Board exceptions to the 
initial decision, which shall include a statement of reasons therefor. 
Such exceptions shall be filed within thirty (30) days of the mailing of 
the notice of initial decision. In the absence of exceptions, the TVA 
Board may on its own motion within forty-five (45) days after the 
initial decision serve on the recipient a notice that it will review the 
decision. Upon the filing of such exceptions or of such notice of 
review, the TVA Board shall review the initial decision and issue its 
own decision thereon including the reasons therefor. In the absence of 
either exceptions or a notice of review, the initial decision shall 
constitute the final decision of the TVA Board.
    (b) Decisions on record or review by the TVA Board. Whenever a 
record is certified to the TVA Board for decision or it reviews the 
decision of a hearing officer pursuant to paragraph (a) of this section, 
or whenever the TVA Board conducts the hearing, the recipient shall be 
given reasonable opportunity to file with the Board briefs or other 
written statements of its contentions, and a copy of the final decision 
of the Board shall be given in writing to the recipient and to the 
complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived, a decision shall be made by the TVA Board on the 
record and a copy of such decision shall be given to the recipient, and 
to the complainant, if any.
    (d) Rulings required. Each decision shall set forth a ruling on each 
finding, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this part with 
which it is found that the recipient has failed to comply.
    (e) Approval by TVA Board. Any final decision (other than a decision 
by the TVA Board) which provides for the suspension or termination of, 
or the refusal to grant or continue financial assistance, or the 
imposition of any other sanction available under this part or section 
504 shall promptly be transmitted to the TVA Board which may approve 
such decision, vacate it, or remit or mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue financial assistance, 
in whole or in part, under the program involved, and may contain such 
terms, conditions, and other provisions as are consistent with and will 
effectuate the purposes of section 504 and this part, including 
provisions designed to assure that no financial assistance will 
thereafter be extended under such program to the recipient determined by 
such decision to have failed to comply with this part, unless and until 
it corrects its noncompliance and satisfies TVA that it will fully 
comply with this part.
    (g) Posttermination proceedings. (1) A recipient adversely affected 
by an order issued under paragraph (f) of this section shall be restored 
to full eligibility to receive financial assistance upon satisfaction of 
the terms and conditions for such eligibility contained in that order, 
or if the recipient otherwise comes into compliance with this part

[[Page 189]]

and provides reasonable assurance of future full compliance with this 
part.
    (2) Any recipient adversely affected by an order entered pursuant to 
paragraph (f) of this section may at any time request that TVA fully 
restore the recipient's eligibility to receive financial assistance. Any 
such request shall be supported by information showing that the 
recipient has met the requirements of paragraph (g)(1) of this section. 
If TVA determines that those requirements have been satisfied, it shall 
restore such eligibility.
    (3) If TVA denies any such request, the recipient may submit a 
request for a hearing in writing, specifying its reasons for believing 
TVA to have been in error. The recipient shall thereupon be given an 
expeditious hearing, with a decision on the record, in accordance with 
rules of procedure issued by TVA. The recipient, upon proving at such a 
hearing that the requirements of paragraph (g)(1) of this section are 
satisfied, will be restored to such eligibility. While proceedings under 
this paragraph are pending, the sanctions imposed by the order issued 
under paragraph (f) of this section shall remain in effect.



Sec. 1307.13  Effect on other regulations; supervision and coordination.

    (a) Effect on other regulations. Nothing in this part shall be 
deemed to supersede or affect any of the following (including future 
amendments thereof): (1) Regulations by TVA and other Federal agencies 
issued with respect to section 503 of the Rehabilitation Act of 1973, or 
(2) any other regulations or instructions, insofar as they prohibit 
discrimination on the ground of handicap in any program or situation to 
which this part is inapplicable, or which prohibit discrimination on any 
other ground.
    (b) Supervison and coordination. TVA may from time to time assign to 
officials of other Federal agencies, with the consent of such agencies, 
responsibilities in connection with the effectuation of the purposes of 
section 504 and this part (other than responsibility for final decision 
as provided in Sec. 1307.12), including the achievement of effective 
coordination and maximum uniformity within the Executive Branch of the 
government in the application of section 504 and this part to similar 
programs and in similar situations. Any action taken, determination 
made, or requirement imposed by an official of another federal agency 
acting pursuant to an assignment of responsibility under this part shall 
have the same effect as though such action had been taken by TVA.



PART 1308--CONTRACT DISPUTES--Table of Contents




                       Subpart A--General Matters

Sec.
1308.1  Purpose and organization.
1308.2  Definitions.
1308.3  Exclusions.
1308.4  Coverage of certain excluded Contractors.
1308.5  Interest.
1308.6  Fraudulent claims.
1308.7  Effective date.

                     Subpart B--Contracting Officers

1308.11  Contractor's request for relief.
1308.12  Submission and decision of Contractor's claim.
1308.13  Time limits for decisions.
1308.14  Request for relief by TVA.
1308.15  Finality of decisions.
1308.16  Decisions involving fraudulent claims.
1308.17  Failure to render timely decision.

                  Subpart C--Board of Contract Appeals

1308.21  Jurisdiction and organization.
1308.22  Representation.
1308.23  Finality of decisions.
1308.24  Undue delay in Contracting Officer's decision.
1308.25  Stay of appeal for Contracting Officer's decision.
1308.26  Appeals.
1308.27  Appeal files.

              Subpart D--Prehearing and Hearing Procedures

1308.31  Filing and service.
1308.32  Prehearing procedures.
1308.33  Hearings.
1308.34  Record on appeal.
1308.35  Small claims procedure.
1308.36  Accelerated appeal procedure.
1308.37  Decisions.
1308.38  Reconsideration.
1308.39  Briefs and motions.

                          Subpart E--Subpoenas

1308.51  Form.
1308.52  Issuance.

[[Page 190]]

1308.53  Service.
1308.54  Requests to quash or modify.
1308.55  Penalties.

    Authority: Tennessee Valley Authority Act of 1933, as amended, 16 
U.S.C. 831-831dd; Contract Disputes Act of 1978, 92 Stat. 2383-2391.

    Source: 44 FR 29648, May 22, 1979, unless otherwise noted. 
Redesignated at 44 FR 30682, May 29, 1979.



                       Subpart A--General Matters



Sec. 1308.1  Purpose and organization.

    The regulations in this part implement the Contract Disputes Act of 
1978 as it relates to TVA. This part consists of 5 subparts. Subpart A 
deals with matters applicable throughout the part, incuding definitions. 
Subpart B deals with Contracting Officers` decisions. Subpart C deals 
with general matters concerning the TVA Board of Contract Appeals. 
Subpart D deals with hearing and prehearing procedures, including 
discovery. Subpart E deals with subpoenas.



Sec. 1308.2  Definitions.

    For the purposes of this part, unless otherwise provided:
    (a) The term Act means the Contract Disputes Act of 1978, 92 Stat. 
2383-91.
    (b) The term Board means the TVA Board of Contract Appeals.
    (c) The term claim means a written demand by a Contractor, in 
compliance with this paragraph, for a decision by a Contracting Officer 
under a disputes clause. A claim must:
    (1) State the amount of monetary relief, or the kind of nonmonetary 
relief, sought, and identify the contract provision relied upon;
    (2) Include sufficient supporting data to permit the Contracting 
Officer to decide the claim, or provide appropriate reference to 
previously submitted data;
    (3) If monetary relief totalling more than $50,000 is involved, 
include a signed certification by the Contractor that the claim is made 
in good faith, that the supporting data are accurate and complete to the 
best of the Contractor's knowledge and belief, and that the amount 
requested accurately reflects the contract adjustment for which the 
Contractor believes TVA is liable;
    (4) Be signed by the Contractor, or on its behalf if the Contractor 
is other than an individual. If signed on a Contractor's behalf, the 
claim must include evidence of the authority of the individual so 
signing it, and of the individual signing any certification required by 
this paragraph, unless such authority appears in the contract or 
contract file.

The Contracting Officer has no authority to waive any of the 
requirements of this paragraph.
    (d) The term contract means an agreement in writing entered into by 
TVA for:
    (1) The procurement of property, other than real property in being;
    (2) The procurement of nonpersonal services;
    (3) The procurement of construction, alteration, repair or 
maintenance of real property; or
    (4) The disposal of personal property. The term ``contract'' does 
not include any TVA contract for the sale of fertilizer or electric 
power, or any TVA contract related to the conduct or operation of the 
electric power system.
    (e) The term Contracting Officer means TVA's Director of Purchasing, 
or duly authorized representative acting within the limits of the 
representative's authority. The TVA Purchasing Agent who administers a 
contract for TVA is designated as the duly authorized representative of 
the Director of Purchasing to act as Contracting Officer for all 
purposes in the administration of the contract (including, without 
limitation, decision of claims under the disputes clause). Such a 
designation continues until it is revoked or modified by written notice 
to the Contractor and the Purchasing Agent from TVA's Director of 
Purchasing.
    (f) The term Contractor means a party to a TVA contract which 
contains a disputes clause. The term ``Contractor'' does not include 
TVA.
    (g) The term disputes clause means a clause in a TVA contract 
requiring that a contract dispute be resolved through a TVA-conducted 
administrative process. It does not include, for example, arbitration 
provisions, or provisions specifying an independent third

[[Page 191]]

party to decide certain kinds of matters or special mechanisms to 
establish prices or price adjustments in contracts.
    (h) The term Hearing Officer means a member of the Board who has 
been designated to hear and determine a particular matter pending before 
the Board.
    (i) The term TVA means the Tennessee Valley Authority.
    (j) A term defined as in a contract subject to this part shall have 
the meaning given it in the contract.



Sec. 1308.3  Exclusions.

    (a) This part does not apply to any TVA contract which does not 
contain a disputes clause.
    (b) Except as otherwise specifically provided, this part does not 
apply to any TVA contract entered into prior to March 1, 1979, or to any 
dispute relating to such a contract.



Sec. 1308.4  Coverage of certain excluded Contractors.

    (a) A Contractor whose contract is excluded from this part under 
Sec. 1308.3(b) may elect to proceed under this part and the Act with 
respect to any dispute pending before a Contracting Officer on March 1, 
1979, or initiated thereafter. If the disputes clause in the contract is 
not an ``all disputes'' clause (see Patton Wrecking & Dem. Co. v. 
Tennessee Valley Authority, 465 F.2d 1073 (5th Cir. 1972)), a 
Contractor's election under this section shall cause the provisions of 
the first two sentences of section 6(a) of the Act to apply to the 
contract, and such an election shall be irrevocable.
    (b) A Contractor makes an election under paragraph (a) of this 
section by giving written notice to the Contracting Officer stating that 
the Contractor elects to proceed with the dispute under the Act. For 
disputes pending on March 1, 1979, the notice shall be actually received 
by the Contracting Officer within 30 days after the Contractor receives 
the Contracting Officer's decision. For disputes initiated thereafter, 
the notice shall be included in the document first requesting a decision 
by the Contracting Officer.



Sec. 1308.5  Interest.

    TVA shall pay a Contractor interest on the amount found to be due on 
a claim:
    (a) From the date payment is due under the contract or the 
Contracting Officer receives the claim, whichever is later, until TVA 
makes payment;
    (b) At the rate payable pursuant to section 12 of the Act on the 
date from which interest runs pursuant to paragraph (a) of this section.



Sec. 1308.6  Fraudulent claims.

    (a) If a Contractor is unable to support any part of a claim and it 
is determined that such inability is attributable to the Contractor's 
misrepresentation of fact or fraud, the Contractor shall be liable to 
TVA, as set out in section 5 of the Act, for:
    (1) An amount equal to the unsupported part of the claim; plus
    (2) All TVA's costs attributable to reviewing that part of the 
claim.
    (b) The term ``misrepresentation of fact'' has the meaning given it 
in section 2(7) of the Act.
    (c) Prior to TVA's filing suit for amounts due under this section, 
TVA shall provide the Contractor with a copy of any opinion under 
Sec. 1308.16 or Sec. 1308.37(b), and shall request the Contractor to pay 
voluntarily the amount TVA asserts is due to it.
    (d) A determination by TVA that fraud or misrepresentation of the 
fact has been committed is not subject to decision under a disputes 
clause.
    (e) The provisions of this section are in addition to whatever 
penalties or remedies may otherwise be provided by law.



Sec. 1308.7  Effective date.

    Subject to Sec. 1308.3(a), this part applies to any TVA contract 
having an effective date on or after March 1, 1979.



                     Subpart B--Contracting Officers



Sec. 1308.11  Contractor's request for relief.

    Any request for relief which a Contractor believes is due under a 
contract shall be submitted to the Contracting Officer in writing, in 
accordance with

[[Page 192]]

the terms of the contract, including applicable time limits.



Sec. 1308.12  Submission and decision of Contractor's claim.

    (a) If Contractor and TVA are unable to resolve Contractor's request 
for relief by agreement within a reasonable time, Contractor may submit 
a claim to the Contracting Officer.
    (b) The Contracting Officer shall issue a decision to the Contractor 
on a submitted claim in conformity with the contract's disputes clause. 
Specific findings of fact are not required, but may be made. Such 
findings are not binding in any subsequent proceeding except as provided 
in Sec. 1308.15. The decision shall:
    (1) Be in writing;
    (2) State the reasons for the decision reached;
    (3) Include information about the Contractor's rights of appeal 
under sections 7 and 10 of the Act (including time limits); and
    (4) Notify the Contractor, as appropriate, of the special procedures 
available under Secs. 1308.35 and 1308.36 at the Contractor's election. 
A copy of the provisions of this part shall be furnished with the 
decision.



Sec. 1308.13  Time limits for decisions.

    (a) If a submitted claim involves $50,000 or less, the Contracting 
Officer shall issue the decision within 60 days from actual receipt of 
the claim. If a submitted claim involves more than $50,000, the 
Contracting Officer within 60 days from actual receipt shall either 
issue a decision or notify the Contractor of the date by which a 
decision shall be rendered, which shall be within a reasonable time. The 
Contracting Officer shall not be deemed to be in ``actual receipt'' of a 
claim until the claim meets all requirements of Sec. 1308.2(c).
    (b) The Contracting Officer shall issue a decision within any time 
limits set by an order under Sec. 1308.24. If a Hearing Officer grants a 
stay of an appeal pursuant to Sec. 1308.25, the Contracting Officer 
shall issue a decision within any time limits specified by the stay 
order, or within a reasonable time after receipt of the stay, if it sets 
no time limits.
    (c) As used in this subpart, the reasonableness of a time period 
depends on the amount or kind of relief involved and complexity of the 
issues raised, the adequacy of the Contractor's supporting data, 
contractual requirements for auditing of Contractor's cost or other 
data, and other relevant factors.



Sec. 1308.14  Request for relief by TVA.

    When TVA believes it is due relief under a contract, the Contracting 
Officer shall make a request for relief against the Contractor, and 
shall attempt to resolve the request by agreement. If agreement cannot 
be reached within a reasonable time, the Contracting Officer shall issue 
a decision which complies with the requirements of Sec. 1308.12(b).



Sec. 1308.15  Finality of decisions.

    A decision by a Contracting Officer under the disputes clause of a 
contract subject to this part is final and conclusive and not subject to 
review by any forum, tribunal, or Government agency unless an appeal or 
suit is timely commenced under this part or section 10(a) (2) and (3) of 
the Act.



Sec. 1308.16  Decisions involving fraudulent claims.

    If a Contracting Officer denies any part of a Contractor's claim for 
lack of support, and the Contracting Officer is of the opinion that the 
Contractor's inability to support that part of the claim is within 
Sec. 1308.6 and section 5 of the Act, the Contracting Officer's decision 
shall not state that opinion, but, contemporaneously with the decision, 
the Contracting Officer shall separately notify TVA's General Counsel of 
that opinion and the reasons therefor.



Sec. 1308.17  Failure to render timely decision.

    Any failure by Contracting Officer to issue a decision on a 
submitted claim within the period required or permitted by Sec. 1308.13, 
will be deemed to be a decision by the Contracting Officer denying the 
claim and will authorize the commencement of an appeal on the claim 
under this part, or a suit on the claim as provided in section 10(a)(2) 
of the Act. If no appeal or suit pursuant to this section has been 
commenced at

[[Page 193]]

the time the Contracting Officer issues a decision, the right to sue or 
appeal and the time limits therefor shall be determined as otherwise 
provided in this part and the Act, and this section shall not authorize 
an appeal or suit from the decision.



                  Subpart C--Board of Contract Appeals



Sec. 1308.21  Jurisdiction and organization.

    (a) The Board shall consider and determine timely appeals filed by 
Contractors from decisions of TVA Contracting Officers pursuant to a 
disputes clause.
    (b) The Board shall consist of an indeterminate number of members, 
who shall serve on a part-time basis. The members of the Board shall all 
be attorneys at law duly licensed by any state, commonwealth, territory, 
or the District of Columbia. One of the members of the Board shall be 
designated as ``Chairman'' pursuant to section 8(b)(2) of the Act.
    (c) Each appeal or other matter before the Board shall normally be 
assigned to a single Hearing Officer, to be designated by the Chairman. 
The Chairman may act as a Hearing Officer, and shall notify the 
Contractor and TVA of the name and mailing address of the person 
designated as Hearing Officer.
    (d) If a member to whom an appeal has been assigned cannot perform 
in a timely manner the duties of Hearing Officer, because of 
unavailability or incapacity which would in the Chairman's judgment 
affect the expeditious and timely resolution of the appeal, or for any 
other reason deemed sufficient by the Chairman, the Chairman may take 
any action deemed appropriate to effectuate the disposition of the 
appeal and the rights of the parties under this part. The kind of action 
taken, and the manner thereof, shall be within the discretion of the 
Chairman, and may include, but is not limited to, action on pending 
motions, discovery, issuance of or ruling on objections to subpoenas, 
and reassignment of an appeal in whole or in part.



Sec. 1308.22  Representation.

    (a) In any appeal to the Board, a Contractor may be represented by 
an attorney at law duly licensed by any state, commonwealth, territory, 
or the District of Columbia. A Contractor not an individual and not 
wishing to appear by an attorney may be represented by any member, 
partner, or officer duly authorized to act on Contractor's behalf, or if 
an individual, may appear personally.
    (b) TVA shall be represented by attorneys from its Office of General 
Counsel.



Sec. 1308.23  Finality of decisions.

    A decision by a Hearing Officer on an appeal shall be the decision 
of the Board and shall be final, subject only to amendment under 
Sec. 1308.37(c), reconsideration under Sec. 1308.38 or appeal pursuant 
to sections 8(g)(2) and 10(b) of the Act.



Sec. 1308.24  Undue delay in Contracting Officer's decision.

    (a) If there is an undue delay by a Contracting Officer in issuing a 
decision on a claim, the Contractor may request the Chairman to direct 
the Contracting Officer to issue a decision within a specified period of 
time.
    (b) A request under this section shall:
    (1) Be in writing;
    (2) State the date on which the claim was submitted to the 
Contracting Officer.
    (3) State the date suggested for issuance of a decision by the 
Contracting Officer.
    (c) TVA may reply to a motion under this section within 5 days after 
its receipt.
    (d) The Chairman shall issue a written decision on the request. If 
granted, the decision shall specify the date by which the Contracting 
Officer's decision is to be rendered, and a copy shall be served on the 
Contracting Officer.



Sec. 1308.25  Stay of appeal for Contracting Officer's decision.

    If an appeal has been taken because of a Contracting Officer's 
failure to render a timely decision, as provided by Sec. 1308.17, the 
Hearing Officer, with or without a motion by a party, may stay 
proceedings on the appeal in order to

[[Page 194]]

obtain a decision on the matter appealed. Oral argument will not be 
heard on such a motion unless otherwise directed. The stay order will 
normally set a date certain by which the decision of the Contracting 
Officer will be rendered. Such date shall take into account the factors 
mentioned in Sec. 1308.13(c), the length of time the matter has already 
been pending before the Contracting Officer, and the need for prompt and 
expeditious action on appeals.



Sec. 1308.26  Appeals.

    (a) An appeal to the Board from a Contracting Officer's decision 
under Sec. 1308.12 shall be initiated within 90 days from the 
Contractor's receipt of the Contracting Officer's decision and in the 
manner set forth in the disputes clause.
    (b) An appeal from the Contracting Officer's failure to render a 
timely decison shall be taken within the time period provided by 
Sec. 1308.17. The notice of appeal shall be in the form and filed in the 
manner specified in the disputes clause, but shall state that it is an 
appeal under Sec. 1308.17, and shall include a copy of the claim which 
was submitted for decision.



Sec. 1308.27  Appeal files.

    (a) Notices of appeal shall be filed as provided in the disputes 
clause, and shall be promptly transmitted by TVA to the Chairman.
    (b) Following transmittal of the notice of appeal, TVA shall 
assemble and transmit to the Hearing Officer and the Contractor an 
appeal file consisting of:
    (1) The Contracting Officer's decision, if any, from which the 
appeal is taken;
    (2) The contract and pertinent amendments, specifications, plans, 
and drawings (a list of the documents submitted may be provided 
Contractor in lieu of copies);
    (3) The claim;
    (4) Any other matter pertinent to the appeal submitted to or 
considered by the Contracting Officer for reaching a decision.
    (c) The appeal file shall be submitted within 30 days. Within 30 
days after receipt of a copy, the Contractor may submit to the Hearing 
Officer and TVA's General Counsel any documents within the scope of 
paragraph (b) of this section which are not included in the appeal file 
but which the Contractor believes are pertinent to the appeal. Such 
documents are considered a part of the appeal file.



              Subpart D--Prehearing and Hearing Procedures



Sec. 1308.31  Filing and service.

    (a) All documents required to be served shall be served on TVA and 
Contractor and filed with the Board, except subpoenas.
    (b) A request under Sec. 1308.15 shall be directed to the General 
Manager, Tennessee Valley Authority, 400 Commerce Avenue, Knoxville, 
Tennessee 37902, and shall be transmitted to the Chairman.
    (c) All other documents required to be filed shall be directed to 
the Hearing Officer assigned to the matter.
    (d) Service on the opposing party may be made personally or by mail. 
The copy presented for filing shall bear an appropriate certificate or 
acknowledgment of service.



Sec. 1308.32  Prehearing procedures.

    (a) Unless otherwise provided in this part, prehearing procedures, 
including discovery, shall be conducted in accordance with Rules 6, 
7(b), 16, 26, 28-37, and 56 of the Federal Rules of Civil Procedure, 
except that the Hearing Officer may modify those Rules to meet the needs 
of the parties in a particular case.
    (b) The term court as used in those Rules shall be deemed to mean 
``Hearing Officer''; the term plaintiff shall be deemed to mean 
``Contractor''; the term defendant shall be deemed to mean ``TVA''; and 
the term action shall be deemed to mean the pending appeal.
    (c) Discovery subpoenas are subject to Subpart E.
    (d) The party giving notice of a deposition is responsible for 
securing a reporter.
    (e) No appeal of counterclaim may be dismissed except by order of 
the Hearing Officer. The Hearing Officer may order at any time, with or 
without a motion by a party, that an appeal or counterclaim, or any part 
thereof, be

[[Page 195]]

dismissed because the matter has been settled, because the party no 
longer desires to pursue the matter, or because of the party's failure 
to prosecute the matter or to comply with the regulations in this part 
or with any order of the Hearing Officer. Any dismissal under this 
paragraph operates as an adjudication on the merits of the matter which 
is dismissed, and is a decision within the meaning of Sec. 1308.23, but 
does not affect the Hearing Officer's jurisdiction over any matter not 
so dismissed.

[44 FR 29648, May 22, 1979. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 49 FR 3845, Jan. 31, 1984]



Sec. 1308.33  Hearings.

    (a) TVA shall arrange for the verbatim reporting of evidentiary 
hearings before the Hearing Officer, and shall provide the Hearing 
Officer with the original transcript. The parties shall make their own 
arrangements with the reporter for copies.
    (b) Admissibility of evidence shall generally be governed by the 
Federal Rules of Evidence, subject, however, to the Hearing Officer's 
discretion. As used in those Rules, the term court shall be deemed to 
mean ``Hearing Officer.''
    (c)(1) Conduct of hearings shall generally be governed by Rules 42-
44, 44.1, and 46 of the Federal Rules of Civil Procedure, except that 
the Hearing Officer may modify those Rules to meet the needs of the 
parties in a particular case. The terms court, plaintiff, defendant, and 
action as used in those Rules shall be deemed to have the meaning given 
them in Sec. 1308.32.
    (2) After the Contractor has completed the presentation of his 
evidence, TVA, without waiving the right to offer evidence in the event 
the motion is not granted, may move for a dismissal on the ground that 
upon the facts and the law the Contractor has shown no right to relief. 
The Hearing Officer as the trier of the facts may then determine them 
and render a decision against the Contractor, or take the matter under 
advisement, or decline to render any decision until the close of all the 
evidence. Any decision rendered under this paragraph shall conform to 
Sec. 1308.37, and is a decision within the meaning of Sec. 1308.23.
    (d) Hearings shall be as informal as may be reasonable and 
appropriate under the circumstances, and shall be held at a time and 
place to be specified by the Hearing Officer.
    (e) Evidentiary subpoenas are subject to Subpart E of this part.

[44 FR 29648, May 22, 1979. Redesignated at 44 FR 30682, May 29, 1979, 
and amended at 49 FR 3845, Jan. 31, 1984]



Sec. 1308.34  Record on appeal.

    Except as otherwise provided in this part, the appeal shall be 
decided on the basis of the record on appeal, which consists of the 
notice of appeal, the claim, any notice of election under Sec. 1308.35 
or Sec. 1308.36, orders entered during the proceeding, admissions, 
transcripts of hearings, hearing exhibits and stipulations on file, all 
other documents admitted in evidence, and all briefs submitted by the 
parties.



Sec. 1308.35  Small claims procedure.

    (a) The Contractor may elect to have the appeal processed under this 
section, if the amount in dispute is $10,000 or less. This amount shall 
be determined by totalling the amounts claimed by TVA and Contractor.
    (b) Appeals under this section shall be decided, whenever possible, 
within 120 days after the Hearing Officer receives written notice that 
the Contractor has elected to proceed under this section. Such election 
may be made a part of the notice of appeal.
    (c) An appeal under this section shall be determined on the basis of 
the record on appeal and those documents in the appeal file identified 
in Sec. 1308.27(b)(1), (2), and (3). Other documents may be considered 
in the determination of the appeal as may be stipulated to by the 
parties, or as the Hearing Officer may order on motion by a party. No 
evidentiary hearing shall be held unless the Hearing Officer directs 
testimony on a particular issue. Discovery and other prehearing 
procedures may be conducted under such time periods as the Hearing 
Officer may set to meet the 120-day period, and the Hearing Officer may 
reserve up to 30 days to prepare a decision. Upon request by either 
party, the Hearing Officer shall

[[Page 196]]

hear oral argument after the record is closed, and may direct oral 
argument on specified issues if the parties do not request it.
    (d) The Hearing Officer's decision under this section will be short 
and contain only summary findings of fact and conclusions of law. The 
decision may, at the Hearing Officer's discretion, be rendered orally at 
the conclusion of any oral argument held. In such case, the Hearing 
Officer will promptly furnish the parties a typed copy of the decision, 
which shall constitute the final decision.
    (e) Decisions under this section shall be final and conclusive 
except for fraud, and shall have no value as precedent for future 
appeals.



Sec. 1308.36  Accelerated appeal procedure.

    (a) The Contractor may elect to have the appeal processed under this 
section if the amount in dispute is $50,000 or less. The amount shall be 
determined by totalling the amounts claimed by TVA and Contractor.
    (b) Appeals under this section shall be decided, whenever possible, 
within 180 days after the Hearing Officer receives written notice that 
the Contractor has elected to proceed under this section. Such election 
may be made a part of the notice of appeal.
    (c) In cases under this section, the parties are encouraged to limit 
discovery and briefing, consistent with adequate presentation of their 
positions. The Hearing Officer may shorten applicable time periods in 
order to meet the 180-day period, and may reserve 30 days to prepare a 
decision.
    (d) The Hearing Officer's decision under this section will be short 
and may contain only summary findings of fact and conclusions of law. 
The decision may, at the Hearing Officer's election, be rendered orally 
at the conclusion of the evidentiary hearing, following such oral 
argument as may be permitted. In such case, the Hearing Officer will 
promptly furnish the parties a typed copy of the decision, which shall 
constitute the final decision.



Sec. 1308.37  Decisions.

    (a) The Hearing Officer's decision shall be in writing. Except as 
provided by Sec. 1308.35 or 1308.36, the decision shall contain complete 
findings of fact and conclusions of law. The parties may be directed to 
submit proposed findings and conclusions. A decision against a 
Contractor on a claim shall include notice of the Contractor's rights 
under paragraphs (2) and (3) of section 10(a) of the Act.
    (b) If the decision denies any part of a Contractor's claim for lack 
of support and the Hearing Officer is of the opinion that the 
Contractor's inability to support that part is within Sec. 1308.6 and 
section 5 of the Act, the decision shall not state that opinion, but 
contemporaneously with the decision the Hearing Officer shall separately 
notify TVA's General Counsel of that opinion and the reasons therefor.
    (c) Not later than 10 days after receipt of the decision, a party 
may move to alter or amend the findings or make additional findings and 
amend the conclusions and decision accordingly. Such a motion may be 
combined with a motion under Sec. 1308.38. This time period cannot be 
extended.



Sec. 1308.38  Reconsideration.

    Motions for reconsideration shall be served not later than 10 days 
after issuance of the Hearing Officer's decision. This time period 
cannot be extended. Such a motion shall be heard and decided in the 
manner provided by Rule 59 of the Federal Rules of Civil Procedure for 
motions for new trial in actions tried without a jury.



Sec. 1308.39  Briefs and motions.

    (a) All motions shall be accompanied by a brief or memorandum 
setting forth supporting authorities. Briefs in opposition to a motion 
shall be served within 10 days after receipt of the motion, unless 
otherwise specified in this part, or by order of the Hearing Officer.
    (b) The Hearing Officer shall set the schedule for service of 
prehearing and posthearing briefs on the merits.
    (c) A motion to dismiss an appeal for lack of jurisdiction should be 
served seasonably, but may be served at any time. The issue of lack of 
jurisdiction may be raised by the Hearing Officer sua sponte, in which 
case the Hearing Officer shall set a briefing schedule on

[[Page 197]]

the issue in the document raising it to the parties.
    (d) A motion for summary judgment may be made at any time after the 
appeal file has been transmitted under Sec. 1308.26.



                          Subpart E--Subpoenas



Sec. 1308.51  Form.

    (a) A subpoena shall state the name of the Board and the title of 
the appeal; shall command the person to whom it is directed to attend 
and give testimony at a deposition or hearing, as appropriate, and, if 
appropriate, to produce specified books, papers, documents, or tangible 
things at a time and place therein specified; and shall notify the 
person of the right to request that the subpoena be quashed or modified 
and of the penalties for contumacy or failure to obey.
    (b) [Reserved]



Sec. 1308.52  Issuance.

    (a) A deposition subpoena shall not issue except upon the filing of 
a notice of deposition of the person to be subpoenaed, which notice 
should normally be filed at least 15 days in advance of the scheduled 
deposition.
    (b) A subpoena for the attendance of a witness at an evidentiary 
hearing shall not issue except upon the filing of a request for 
appearance at the hearing of the person to be subpoenaed, which request 
should normally be filed at least 30 days in advance of the scheduled 
hearing. The request should state:
    (1) The name and address of the witness;
    (2) The general scope of the witness` testimony;
    (3) The books, records, papers, and other tangible things sought to 
be produced; and
    (4) The general relevance of the matters sought to the case.
    (c) Upon receipt of a notice of deposition or request for appearance 
at a hearing, the Hearing Officer shall fill in the name of the witness 
and sign and issue a subpoena otherwise in blank to the party seeking 
it, together with a duplicate for proof of service. The party requesting 
the subpoena shall fill in both copies before service.
    (d) Letters rogatory may be issued by the Hearing Officer as 
provided in 28 U.S.C. 1781-1784.



Sec. 1308.53  Service.

    A subpoena may be served at any place, and may be served by any 
individual not a party who is at least 18 years of age, or as otherwise 
provided by law. Service may be made by an attorney or employee of a 
party. Service shall be made by personal delivery of the subpoena to the 
individual named therein, together with tender of the amounts required 
by 5 U.S.C. 503 or other applicable law. The individual making service 
shall file with the Board the duplicate subpoena, filled out as served, 
with the return of service filled in, signed and notarized.



Sec. 1308.54  Requests to quash or modify.

    The person served with a subpoena (or a party, if the person served 
is a party's employee) may request the Hearing Officer to quash or 
modify a subpoena. Such requests shall be made and determined in 
accordance with the time limits and principles of Rule 45(a), (b) and 
(d) of the Federal Rules of Civil Procedure.



Sec. 1308.55  Penalties.

    In case of contumacy or refusal to obey a subpoena by a person who 
resides, is found, or transacts business within the jurisdiction of a 
United States District Court, the Board will apply to the court through 
the General Counsel of TVA for an order requiring the person to appear 
before the Hearing Officer, to produce evidence or give testimony, or 
both. Any failure of any such person to obey the order of the court may 
be punished by the court as a contempt thereof.



PART 1309--NONDISCRIMINATION WITH RESPECT TO AGE--Table of Contents




Sec.
1309.1  What are the defined terms in this part and what do they mean?
1309.2  What is the purpose of the Act?
1309.3  What is the purpose of this part?
1309.4  What programs and activities are covered by the Act and this 
          part?
1309.5  What are the rules against age discrimination?

[[Page 198]]

1309.6  Is the normal operation or statutory objective of any program or 
          activity an exception to the rules against age discrimination?
1309.7  Is the use of reasonable factors other than age an exception to 
          the rules against age discrimination?
1309.8  Who has the burden of proving that an action is excepted?
1309.9  How does TVA provide financial assistance in conformity with the 
          Act?
1309.10  What general responsibilities do recipients and TVA have to 
          ensure compliance with the Act?
1309.11  What specific responsibilities do TVA and recipients have to 
          ensure compliance with the Act?
1309.12  What are a recipient's responsibilities on compliance reviews 
          and access to information?
1309.13  What are the prohibitions against intimidation or retaliation?
1309.14  How will complaints against recipients be processed?
1309.15  How will TVA enforce compliance with the Act and this part?
1309.16  What is the alternate funds disbursal procedure?
1309.17  What is the procedure for hearings and issuance of TVA 
          decisions required by this part?
1309.18  Under what circumstances must recipients take remedial or 
          affirmative action?
1309.19  When may a complainant file a civil action?

    Authority: TVA Act of 1933, 48 Stat. 58 (1933), as amended, 16 
U.S.C. 831-831dd (1976), and sec. 304 of the Age Discrimination Act of 
1975, 89 Stat 729 (1975), as amended, 42 U.S.C. 6103 (1976).

    Source: 46 FR 30811, June 11, 1981, unless otherwise noted.



Sec. 1309.1  What are the defined terms in this part and what do they mean?

    As used in this part the following terms have the stated meanings:
    (a) Act means the Age Discrimination Act of 1975, as amended, 42 
U.S.C. 6101, et seq. (Title III of Pub. L. 94-135).
    (b) Action means any act, activity, policy, rule, standard, or 
method of administration; or the use of any policy, rule, standard, or 
method of administration.
    (c) Age means how old a person is, or the number of elapsed years 
from the date of a person's birth.
    (d) Age distinction means any action using age or an age-related 
term.
    (e) Age-related term means a term which necessarily implies a 
particular age or range of ages (for example, ``children,'' ``adult,'' 
``older persons,'' but not ``student'').
    (f) Financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement, by which 
TVA provides or otherwise makes available to a recipient assistance in 
any of the following forms:
    (1) Funds;
    (2) Services of TVA personnel;
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
share of its fair market value provided by TVA is not returned to TVA.
    (g) For purposes of Secs. 1309.6 and 1309.7, normal operation means 
the operation of a program or activity without significant changes that 
would impair its ability to meet it objectives.
    (h) For purposes of Secs. 1309.6 and 1309.7, statutory objective 
means any purpose of a program or activity expressly stated in any 
Federal statute, State statute, or local statute or ordinance adopted by 
an elected, general purpose legislative body.
    (i) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any State-
created or recognized public or private agency, institution, 
organization, or other entity, or any person to which TVA extends 
financial assistance directly or through another recipient. Recipient 
includes any successor, assignee, or transferee, but excludes the 
ultimate beneficiary of the assistance.
    (j) Secretary means the Secretary of the Department of Health, 
Education, and Welfare, and its successors.
    (k) United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Canal Zone, the Trust Territory of the Pacific Islands, the Northern 
Marianas, and the territories and possessions of the United States.

[[Page 199]]

    (l) TVA means the Tennessee Valley Authority.



Sec. 1309.2  What is the purpose of the Act?

    The Act is designed to prohibit discrimination on the basis of age 
in programs or activities receiving Federal financial assistance. The 
Act also permits federally assisted programs and activities, and 
recipients of Federal funds, to continue to use certain age distinctions 
and factors other than age which meet the requirements of the Act and 
this part.



Sec. 1309.3  What is the purpose of this part?

    The purpose of this part is to effectuate the Act in all programs or 
activities of recipients which receive financial assistance from TVA, 
and to inform the public and the recipients of financial assistance from 
TVA of the Act's requirements and how it will be enforced.



Sec. 1309.4  What programs and activities are covered by the Act and this part?

    (a) The Act and this part apply to any program or activity receiving 
financial assistance from TVA.
    (b) The Act and this part do not apply to:
    (1) An age distinction contained in that part of a Federal, State or 
local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program.



Sec. 1309.5  What are the rules against age discrimination?

    (a) General rule. No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under, any program or activity receiving 
financial assistance from TVA.
    (b) Specific rules. In any program or activity receiving financial 
assistance from TVA, a recipient may not directly or through 
contractual, licensing, or other arrangements, use age distinctions or 
take any other actions which have the effect, on the basis of age of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under a program or activity receiving 
financial assistance from TVA, or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving financial assistance 
from TVA.
    (c) The specific forms of age discrimination listed in paragraph (b) 
of this section do not necessarily constitute a complete list.
    (d) The rules stated in this section are limited by the exceptions 
contained in Secs. 1309.6 and 1309.7.



Sec. 1309.6  Is the normal operation or statutory objective of any program or activity an exception to the rules against age discrimination?

    A recipient is permitted to take an action, otherwise prohibited by 
Sec. 1309.5, if the action reasonably takes into account age as a factor 
necessary to the normal operation or the achievement of any statutory 
objective of a program or activity. An action reasonably takes into 
account age as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity, if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics; and
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity; and
    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) It is impractical to measure the other characteristic(s) 
directly on an individual basis.

[[Page 200]]



Sec. 1309.7  Is the use of reasonable factors other than age an exception to the rules against age discrimination?

    A recipient is permitted to take an action otherwise prohibited by 
Sec. 1309.5 which is based on a factor other than age, even though that 
action may have a disproportionate effect on persons of different ages. 
An action may be based on a factor other than age only if the factor 
bears a direct and substantial relationship to the normal operation of 
the program or activity or to the achievement of a statutory objective.



Sec. 1309.8  Who has the burden of proving that an action is excepted?

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Secs. 1309.6 and 1309.7 is on the 
recipient of financial assistance from TVA.



Sec. 1309.9  How does TVA provide financial assistance in conformity with the Act?

    (a) TVA contributes financial assistance only under agreements which 
contain a provision which specifically requires compliance with the Act 
and this part. If the financial assistance involves the furnishing of 
real property, the agreement shall obligate the recipient, or the 
transferee in the case of a subsequent transfer, for the period during 
which the real property is used for a purpose for which the financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits. Where the financial assistance involves 
the furnishing of personal property, the agreement shall obligate the 
recipient during the period for which ownership or possession of the 
property is retained. In all other cases the agreement shall obligate 
the recipient for the period during which financial asssistance is 
extended pursuant to the agreement. TVA shall specify the form of the 
foregoing agreement, and the extent to which an agreement shall be 
applicable to subcontractors, transferees, successors in interest, and 
other participants in the program.
    (b) In the case of real property, structures or improvements 
thereon, or interests therein, acquired through a program of TVA 
financial assistance, or in the case where TVA financial assistance was 
provided in the form of a transfer by TVA of real property or an 
interest therein, the instrument effecting or recording the transfer of 
title shall contain a covenant running with the land assuring compliance 
with this part and the guidelines contained herein for the period during 
which the real property is used for a purpose for which the TVA 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. Where no transfer of property 
is involved, but property is improved under a program of TVA financial 
assistance, the recipient shall agree to include such a covenant in any 
subsequent transfer of such property. Where the property is obtained by 
transfer from TVA, the covenant against discrimination may also include 
a condition coupled with a right to be reserved by TVA to revert title 
to the property in the event of a breach of the covenant where, in the 
discretion of TVA, such a condition and right of reverter is appropriate 
to the nature of (1) the program under which the real property is 
obtained, (2) the recipient, and (3) the instrument effecting or 
recording the transfer of title. In such event, if a transferee of real 
property proposes to mortgage or otherwise encumber the real property as 
security for financing construction of new, or improvement of existing, 
facilities on such property for the purposes for which the property was 
transferred, TVA may agree, upon request of the transferee and if 
necessary to accomplish such financing, and upon such conditions as it 
deems appropriate, to forbear the exercise of such right to revert title 
for so long as the lien of such mortgage or other encumbrance remains 
effective.



Sec. 1309.10  What general responsibilities do recipients and TVA have to ensure compliance with the Act?

    (a) A recipient has primary responsibility to ensure that its 
programs and activities are in compliance with the Act and shall take 
steps to eliminate violations of the Act. A recipient also has 
responsibility to maintain records, provide information, and afford TVA

[[Page 201]]

access to its records to the extent required by TVA to determine whether 
the recipient is in compliance with the Act.
    (b) TVA has responsibility to attempt to secure a recipient's 
compliance with the Act by voluntary means, to the fullest extent 
practicable, and to provide assistance and guidance to recipients to 
help them comply voluntarily. TVA may use the services of appropriate 
Federal, State, local, or private organizations for this purpose. TVA 
also has the responsibility to enforce the Act when a recipient fails to 
eliminate violations of the Act.



Sec. 1309.11  What specific responsibilities do TVA and recipients have to ensure compliance with the Act?

    (a) Written notice, technical assistance, and educational materials. 
TVA shall:
    (1) Provide written notice to each recipient of its obligations 
under the Act. The notice shall include a requirement that where the 
recipient initially receiving funds makes the funds available to a 
subrecipient, the recipient must notify the subrecipient of its 
obligations under the Act. The notice may be made a part of the contract 
under which financial assistance is provided by TVA.
    (2) Provide technical assistance to recipients, where necessary, to 
aid them in complying with the Act.
    (3) Make available educational materials setting forth the rights 
and obligations of beneficiaries and recipients under the Act.
    (b) [Reserved]



Sec. 1309.12  What are a recipient's responsibilities on compliance reports and access to information?

    (a) Compliance reports. Each recipient shall keep such records and 
submit to TVA timely, complete and accurate compliance reports at such 
times and in such form and containing such information, as TVA may 
determine to be necessary to enable it to ascertain whether the 
recipient has complied or is complying with this part. In the case of 
any program under which a primary recipient passes through financial 
assistance from TVA to any other recipient, such other recipient shall 
also submit such compliance reports to the primary recipient as may be 
necessary to enable the primary recipient to carry out its obligations 
under this part.
    (b) Access to sources of information. Each recipient shall permit 
access by TVA during normal business hours to such of its books, 
records, accounts and other sources of information, and its facilities 
as may be pertinent to ascertain compliance with this part. Where any 
information required of a recipient is in the exclusive possession of 
any other agency, institution or person, and such agency, institution or 
person shall fail or refuse to furnish this information, the recipient 
shall so certify in its report and shall set forth what efforts it has 
made to obtain the information.
    (c) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program under which the recipient 
receives financial assistance, and make such information available to 
them in such manner as TVA finds necessary to apprise such persons of 
the protections against discrimination assured them by the Act and this 
part.



Sec. 1309.13  What are the prohibitions against intimidation or retaliation?

    No recipient or other person shall intimidate, threaten, coerce, or 
discriminate against any individual for the purpose of interfering with 
any right secured by the Act or this part, or because such individual 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, mediation, hearing, or other proceeding under this 
part. The identity of complainants shall be kept confidential except to 
the extent necessary to carry out the purposes of this part, including 
the conduct of any investigation, mediation, hearing, or judicial 
proceeding arising under the Act or this part.



Sec. 1309.14  How will complaints against recipients be processed?

    (a) Receipt of complaints. Any individual who claims (individually 
or on behalf of any specific class of individuals) that he or she has 
been subjected

[[Page 202]]

to discrimination prohibited by this part (including Sec. 1309.13) may 
file a written complaint with TVA. The written complaint must be filed 
not later than 90 days from the date of the alleged discrimination, 
unless the time for filing is extended by TVA for good cause shown. A 
complaint shall be signed by the complainant, give the name and mailing 
address of the complainant and the recipient, identify the TVA financial 
assistance program involved, and state the facts and occurrences 
(including dates) which led the complainant to believe that an act of 
prohibited discrimination has occurred. Anonymous complaints will not be 
accepted or filed under this section, but may be the basis for a 
compliance review. TVA will reject any complaint which does not fall 
within the coverage of the Act and this part, and may reject or require 
supplementation or clarification of any complaint which does not contain 
sufficient information for further processing as set forth in this 
paragraph. A complaint shall not be deemed filed until all such 
information has been provided to TVA.
    (b) Prompt resolution of complaints. The complaint shall be resolved 
promptly. To this end, TVA shall proceed with the complaint without 
undue delay so that the complaint is resolved within 180 calendar days 
after it is filed with TVA. The recipient and complainant involved in 
each complaint are required to cooperate in this effort. Failure to 
cooperate on the part of the complainant may result in cancellation of 
the complaint, while such failure on the part of the recipient may 
result in enforcement action as described in Sec. 1309.15.
    (c) Mediation of complaints. All complaints which fall within the 
coverage of the Act and this part will be referred to a mediation agency 
designated by the Secretary.
    (1) The participation of the recipient and the complainant in the 
mediation process is required, although both parties need not meet with 
the mediator at the same time.
    (2) If the complainant and recipient reach a mutually satisfactory 
resolution of the complaint during the mediation period, they shall 
reduce the agreement to writing. The mediator shall send a copy of the 
settlement to TVA. No further action shall be taken based on that 
complaint unless it appears that the complainant or the recipient is 
failing to comply with the agreement.
    (3) Not more than 60 days after the complaint is filed, the mediator 
shall return a still unresolved complaint to TVA for initial 
investigation. The mediator may return a complaint at any time before 
the end of the 60-day period if it appears that the complaint cannot be 
resolved through mediation.
    (4) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the agency 
appointing the mediator.
    (d) Investigation. (1) TVA will make a prompt investigation whenever 
a complaint is unresolved within 60 days after it is filed with TVA or 
is reopened because of a violation of the mediation agreement. The 
investigation should include, where appropriate, a review of the 
pertinent practices and policies of the recipient, the circumstances 
under which the possible noncompliance with the Act and this part 
occurred, and other factors relevant to a determination as to whether 
the recipient has failed to comply with the Act and this part.
    (2) As part of the initial investigation, TVA shall use informal 
fact finding methods including joint or individual discussions with the 
complainant and recipient to establish the facts, and, if possible, to 
resolve the complaint to the mutual satisfaction of the parties. TVA may 
seek the assistance of any involved State program agency.
    (3) If TVA cannot resolve the matter within 10 calendar days after 
the mediator returns the complaint, it shall complete the investigation, 
attempt to achieve voluntary compliance satisfactory to TVA, if the 
investigation indicates a violation, and arrange for enforcement as 
described in Sec. 1309.15, if necessary.

[[Page 203]]



Sec. 1309.15  How will TVA enforce compliance with the Act and this part?

    (a) If a compliance report, self-evaluation, or preaward review 
indicates a violation or threatened violation of the Act or this part, 
TVA shall attempt to secure the recipient's voluntary compliance with 
the Act and this part. If the violation or threatened violation cannot 
be corrected by informal means, compliance with the Act and this part 
may be effected by the following means:
    (1) Termination of a recipient's financial assistance under the 
program or activity involved where the recipient has violated the Act or 
this part. The determination of the recipient's violation may be made 
only after a recipient has had an opportunity for a hearing on the 
record before an appropriate hearing officer.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or this part.
    (ii) Use of any requirement of or referral to any Federal, State, or 
local government agency which will have the effect of correcting a 
violation of the Act or this part.
    (iii) Commencement by TVA of proceedings to enforce any rights of 
TVA or obligations of the recipient created by the contract, the Act, or 
this part.
    (b) Any termination under paragraph (a)(1) of this section shall be 
limited to the particular recipient and the particular prograrm or 
activity (or portion thereof) receiving financial assistance from TVA 
which is found to be in violation of the Act or this part. No 
termination shall be based in whole or in part on a finding with respect 
to any program or activity which does not receive financial assistance 
from TVA.
    (c) No assistance will be terminated under paragraph (a)(1) of this 
section until:
    (1) TVA has advised the recipient of its failure to comply with the 
Act or this part and has determined that voluntary compliance cannot be 
obtained.
    (2) Thirty days have elapsed after TVA has sent a written report of 
the circumstances and grounds of the termination of assistance to the 
committees of the Congress having legislative jurisdiction over the TVA 
program or activity involved. A report shall be filed in each case in 
which TVA has determined that assistance will be terminated under 
paragraph (a)(1) of this section.
    (d) TVA may defer granting new financial assistance to a recipient 
when termination proceedings under paragraph (a)(1) of this section are 
initiated.
    (1) New financial assistance includes all assistance administrated 
by or through TVA for which an application or approval, including 
renewal or continuation of existing activities, or authorization of new 
activities, is required during the deferral period. New financial 
assistance does not include assistance approved prior to the beginning 
of termination proceedings.
    (2) A deferral may not begin until the recipient has received a 
notice of opportunity for a hearing under paragraph (a)(1) of this 
section. A deferral may not continue for more than 60 days unless a 
hearing has begun within that time or the time for beginning the hearing 
has been extended by mutual consent of the recipient and TVA. A deferral 
may not continue for more than 30 days after the close of the hearing, 
unless the hearing results in a finding against the recipient.



Sec. 1309.16  What is the alternate funds disbursal procedure?

    When TVA withholds funds from a recipient under this part, TVA may 
contract to disburse the withheld funds directly to any public or 
nonprofit private organization or agency, or State or political 
subdivision of the State. These alternate recipients must demonstrate 
the ability to comply with this part and to achieve the goals of the 
program or activity involved.



Sec. 1309.17  What is the procedure for hearings and issuance of TVA decisions required by this part?

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 1309.15(a)(1), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
recipient. This notice shall

[[Page 204]]

advise the recipient of the action proposed to be taken, the specific 
provision under which the proposed action against it is to be taken, and 
the matters of fact or law asserted as the basis for this action, and 
either (1) fix a date not less than 20 days after the date of such 
notice within which the recipient may request of TVA that the matter be 
scheduled for hearing or (2) advise the recipient that the matter in 
question has been set down for hearing at a stated time and place. The 
time and place so fixed shall be reasonable and shall be subject to 
change for cause. The complainant, if any, shall be advised of the time 
and place of the hearing. A recipient may waive a hearing and submit 
written information and argument for the record. The failure of a 
recipient to request a hearing under this subsection or to appear at a 
hearing for which a date has been set shall be deemed to be a waiver of 
the right to a hearing under the Act and Sec. 1309.15(a)(1) and a 
consent to the making of a decision on the basis of such information as 
is available.
    (b) Time and place of hearing. Hearings shall be held at the time 
and place fixed by TVA unless it determines that the convenience of the 
recipient requires that another place be selected. Hearings shall be 
held before a hearing officer who shall be designated by TVA's General 
Manager, and who shall not be a TVA employee.
    (c) Right to counsel. In all proceedings under this section, the 
recipient and TVA shall have the right to be represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof by TVA's Board of Directors shall be 
conducted in conformity with this part and in accordance with such rules 
of procedure as are proper (and not inconsistent with this section) 
relating to the conduct of the hearing, giving of notices subsequent to 
those provided for in paragraph (a) of this section, taking of 
testimony, exhibits, arguments and briefs, requests for findings, and 
other related matters, as prescribed by the hearing officer. Both TVA 
and the recipient shall be entitled to introduce all relevant evidence 
on the issues as stated in the notice for hearing or as determined by 
the hearing officer at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the hearing officer. The hearing officer may exclude 
irrelevant, immaterial, or unduly repetitious evidence. All documents 
and other evidence offered or received for the record shall be open to 
examination by the parties and opportunity shall be given to refute 
facts and arguments advanced on either side of the issues. A transcript 
shall be made of the oral evidence except to the extent the substance 
thereof is stipulated for the record. All decisions shall be based upon 
the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more programs to which this part applies, or 
noncompliance with this part and the regulations of one or more other 
Federal departments or agencies issued under the Act, the TVA Board may, 
by agreement with such other departments or agencies where applicable, 
provide for the conduct of consolidated or joint hearings, and for the 
application to such hearings of the rules of procedure applicable to 
such hearings by such other departments or agencies. Final decisions in 
such cases, insofar as this part is concerned, shall be made in 
accordance with paragraph (f) of this section.
    (f) Decisions. (1) After the hearing, or after the hearing is waived 
under paragraph (a) of this section, the hearing officer shall make an 
initial decision. The recipient may file exceptions to the decision with 
the TVA Board within 10 days of receipt of the decision. If exceptions 
are not filed within the specified time, the hearing officer's initial 
decision becomes the final TVA decision.
    (2) Based on the hearing record, investigation, and any written 
submission to the hearing officer or the TVA

[[Page 205]]

Board, the Board shall render its decision accepting the initial 
decision, or rejecting it, in whole or part.
    (3) The final decision may provide for suspension or termination of, 
or refusal to grant or continue financial assistance, in whole or in 
part, under the program involved, and may contain such terms, 
conditions, and other provisions as are consistent with and will 
effectuate the purposes of the Act and this part, including provisions 
designed to assure that no financial assistance will thereafter be 
extended under such program to the recipient determined by such decision 
to have failed to comply with this part, unless and until it corrects 
its noncompliance and satisfies TVA that it will fully comply with this 
part.
    (g) Posttermination proceedings. (1) A recipient adversely affected 
by an order issued under paragraph (f) of this section shall be restored 
to full eligibility to receive financial assistance from TVA if it 
satisfies the terms and conditions of that order for such eligibility or 
if it brings itself into compliance with this part and provides 
reasonable assurance that it will fully comply with this part.
    (2) Any recipient adversely affected by an order entered pursuant to 
paragraph (f) of this section may at any time request TVA to restore 
fully its eligibility to receive financial assistance from TVA. Any such 
request shall be supported by information showing that the recipient has 
met the requirements of paragraph (g)(1) of this section. If TVA 
determines that those requirements have been satisfied, it shall restore 
such eligibility.
    (3) If TVA denies any such request, the recipient may submit a 
written request for a hearing, specifying why it believes TVA to have 
been in error. The recipient shall thereupon be given an expeditious 
hearing, with a decision on the record, in accordance with rules of 
procedure issued by TVA. The recipient will be restored to such 
eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (g)(1) of this section. While proceedings 
under this paragraph are pending, the sanctions imposed by the order 
issued under paragraph (f)(3) of this section shall remain in effect.



Sec. 1309.18  Under what circumstances must recipients take remedial or affirmative action?

    (a) Where a recipient is found to have discriminated on the basis of 
age, the recipient shall take any remedial action which TVA may require 
to overcome the effects of the discrimination, if another recipient 
exercises control over the recipient that has discriminated, both 
recipients may be required to take remedial action.
    (b) Even in the absence of a finding of discrimination, a recipient 
may take affirmative action to overcome the effects of conditions that 
resulted in limited participation recipient's program or activity on the 
basis of age.
    (c) If a recipient operating a program which serves the elderly or 
children, in addition to persons of other ages, provides special 
benefits to the elderly or to children, the provision of those benefits 
shall be presumed to be voluntary affirmative action provided that it 
does not have the effect of excluding otherwise eligible persons from 
participation in the program.



Sec. 1309.19  When may a complainant file a civil action?

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and TVA has made no finding with regard to the complaint; or
    (2) TVA issues any finding in favor of the recipient.
    (b) If either of the conditions set forth in paragraph (a) of this 
section is satisfied, TVA shall:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right, under Section 305(e) 
of the Act, to bring a civil action for injunctive relief that will 
effect the purposes of the Act; and
    (3) Inform the complainant:
    (i) That a civil action can only be brought in a United States 
district court for the district in which the recipient is found or 
transacts business;
    (ii) That a complainant prevailing in a civil action has the right 
to be

[[Page 206]]

awarded the costs of the action, including reasonable attorney's fees, 
but that these costs must be demanded in the complaint;
    (iii) That before commencing the action the complainant shall give 
30 days` notice by registered mail to the Secretary, the Attorney 
General of the United States, TVA, and the recipient;
    (iv) That the notice shall state: the alleged violation of the Act; 
the relief requested; the court in which the action will be brought; and 
whether or not attorney's fees are demanded in the event the complainant 
prevails; and
    (v) That no action shall be brought if the same alleged violation of 
the Act by the same recipient is the subject of a pending action in any 
court of the United States.



PART 1310--ADMINISTRATIVE COST RECOVERY--Table of Contents




Sec.
1310.1  Purpose.
1310.2  Application.
1310.3  Assessment of administrative charge.

    Authority: 16 U.S.C. 831-831dd; 31 U.S.C. 9701.

    Source: 60 FR 8196, Feb. 13, 1995, unless otherwise noted.



Sec. 1310.1  Purpose.

    The purpose of the regulations in this part is to establish a 
schedule of fees to be charged in connection with the disposition and 
uses of, and activities affecting, real property in TVA's custody or 
control; approval of plans under section 26a of the Tennessee Valley 
Authority Act of 1933, as amended (16 U.S.C. 831y-1); and certain other 
activities in order to help ensure that such activities are self-
sustaining to the full extent possible.



Sec. 1310.2  Application.

    (a) General. TVA will undertake the following actions only upon the 
condition that the applicant pay to TVA such administrative charge as 
the Vice-President of Land Management or the Manager of Power Properties 
(hereinafter ``responsible land manager''), as appropriate, shall assess 
in accordance with Sec. 1310.3; provided, however, that the responsible 
land manager may waive payment where he/she determines that there is a 
corresponding benefit to TVA or that such waiver is otherwise in the 
public interest:
    (1) Conveyances and abandonment of TVA land or landrights.
    (2) Licenses and other uses of TVA land not involving the 
disposition of TVA real property or interests in real property.
    (3) Actions taken to suffer the presence of unauthorized fills and 
structures over, on, or across TVA land or landrights, and including 
actions not involving the abandonment or disposal of TVA land or 
landrights.
    (4) Actions taken to approve fills, structures, or other 
obstructions under section 26a of the Tennessee Valley Authority Act of 
1933, as amended (16 U.S.C. 831y-1), and TVA's regulations issued 
thereunder at part 1304 of this chapter.
    (b) Exemption. An administrative charge shall not be made for the 
following actions:
    (1) Conveyances pursuant to section 4(k)(d) of the Tennessee Valley 
Authority Act of 1933, as amended (16 U.S.C. 831c(k)(d)).
    (2) Releases of unneeded mineral right options.
    (3) TVA phosphate land and mineral transactions.
    (4) Permits and licenses for use of TVA land by distributors of TVA 
power.
    (c) Quota deer hunt and turkey hunt applications. Quota deer hunt 
and turkey hunt permit applications will be processed by TVA if 
accompanied by the fee prescribed in Sec. 1310.3(d).



Sec. 1310.3  Assessment of administrative charge.

    (a) Range of charges. Except as otherwise provided herein, the 
responsible land manager shall assess a charge which he/she determines 
in his/her sole judgment to be approximately equal to the administrative 
costs incurred by TVA for each action including both the direct cost to 
TVA and applicable overheads. In determining the amount of such charge, 
the responsible land manager may establish a standard charge for each 
category of action rather than determining the actual administrative 
costs for each individual action. The standard charge shall be an

[[Page 207]]

amount approximately equal to TVA's actual average administrative costs 
for the category of action. Charges shall be not less than the minimum 
or greater than the maximum amount specified herein, except as otherwise 
provided in paragraph (c) of this section.
    (1) Land transfers--$500-$10,000.
    (2) Use permits or licenses-$50-$5,000.
    (3) Actions taken to approve plans for fills, structures, or other 
obstructions under section 26a of the TVA Act--$100-$5,000.
    (4) Abandonment of transmission line easements and rights-of-way--
$100-$1,500.
    (5) Quota deer hunt or turkey hunt applications--$5-$25.
    (b) Basis of charge. The administrative charge assessed by the 
responsible land manager shall, to the extent applicable, include the 
following costs:
    (1) Appraisal of the land or landrights affected;
    (2) Assessing applicable rental fees;
    (3) Compliance inspections and other field investigations;
    (4) Title and record searches;
    (5) Preparation for and conducting public auction and negotiated 
sales;
    (6) Mapping and surveying;
    (7) Preparation of conveyance instrument, permit, or other 
authorization or approval instrument;
    (8) Coordination of the proposed action within TVA and with other 
Federal, State, and local agencies;
    (9) Legal review; and
    (10) Administrative overheads associated with the transaction.
    (c) Assessment of charge when actual administrative costs 
significantly exceed established range. When the responsible land 
manager determines that the actual administrative costs are expected to 
significantly exceed the range of costs established in paragraph (a) of 
this section, such manager shall not proceed with the TVA action until 
agreement is reached on payment of a charge calculated to cover TVA's 
actual administrative costs.
    (d) Quota deer hunt and turkey hunt application fees. A fee for each 
person in the amount prescribed by the responsible land manager must 
accompany the complete application form for a quota deer hunt and turkey 
hunt permit. Applications will not be processed unless accompanied by 
the correct fee amount. No refunds will be made to unsuccessful 
applicants, except that fees received after the application due date 
will be refunded.
    (e) Additional charges. In addition to the charges assessed under 
these regulations, TVA may impose a charge in connection with 
environmental reviews or other environmental investigations it conducts 
under its policies or procedures implementing the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.).



PART 1311--INTERGOVERNMENTAL REVIEW OF TENNESSEE VALLEY AUTHORITY FEDERAL FINANCIAL ASSISTANCE AND DIRECT FEDERAL DEVELOPMENT PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
1311.1  What is the purpose of these regulations?
1311.2  What definitions apply to these regulations?
1311.3  What programs and activities of TVA are subject to these 
          regulations?
1311.4  [Reserved]
1311.5  What is TVA's obligation with respect to federal interagency 
          coordination?
1311.6  What procedures apply to the selection of programs and 
          activities under these regulations?
1311.7  How does TVA communicate with state, regional and local 
          officials concerning TVA's programs and activities?
1311.8  How does TVA provide states an opportunity to comment on 
          proposed federal financial assistance and direct federal 
          development?
1311.9  How does TVA receive and respond to comments?
1311.10  How does TVA make efforts to accommodate intergovernmental 
          viewpoints?
1311.11  What are TVA's obligations in interstate situations?
1311.12  [Reserved]
1311.13  May TVA waive any provision of these regulations?

    Authority: Tennessee Valley Authority Act of 1933, 48 Stat. 58, as 
amended, 16 U.S.C. 831-831dd (1976; Supp. V, 1981); E. O. 12372, July 
14, 1982 (47 FR 30,959), amended April 8, 1983 (48 FR 15,887); sec. 401 
of the Intergovernmental Cooperation Act of 1968, as amended.

    Source: 48 FR 29399, June 24, 1983, unless otherwise noted.

[[Page 208]]



Sec. 1311.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982, 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968 and are intended to assist TVA in carrying out 
its responsibilities under the TVA Act.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional, and local coordination for review of 
proposed federal financial assistance and direct federal development.
    (c) These regulations are intended to aid the internal management of 
TVA, and are not intended to create any right or benefit enforceable at 
law by a party against TVA or its officers.



Sec. 1311.2  What definitions apply to these regulations?

    TVA means the Tennessee Valley Authority, a wholly owned corporation 
and independent instrumentality of the United States.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983, and titled ``Intergovernmental Review of Federal 
Programs.''
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 1311.3  What programs and activities of TVA are subject to these regulations?

    TVA publishes in the Federal Register a list of TVA's federal 
financial assistance and direct federal development programs and 
activities that are subject to these regulations.



Sec. 1311.4  [Reserved]



Sec. 1311.5  What is TVA's obligation with respect to federal interagency coordination?

    TVA, to the extent practicable, consults with and seeks advice from 
all other substantially affected federal departments and agencies in an 
effort to assure full coordination between such agencies and TVA 
regarding programs and activities covered under these regulations.



Sec. 1311.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 1311.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify TVA of the 
programs and activities selected for that process.
    (c) A state may notify TVA of changes in its selections at any time. 
For each change, the state shall submit to TVA an assurance that the 
state has consulted with local elected officials regarding the change. 
TVA may establish deadlines by which states are required to inform TVA 
of changes in their program selections.
    (d) TVA uses a state's process as soon as feasible, depending on 
individual programs and activities, after TVA is notified of the states 
selections.



Sec. 1311.7  How does TVA communicate with state, regional, and local officials concerning TVA's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 1311.6, TVA, to the extent permitted by law:
    (1) Uses the official state process to determine views of state and 
local elected officials, and

[[Page 209]]

    (2) Communicates with state and local elected officials, through the 
official state process, as early in a program planning cycle as is 
reasonably feasible to explain specific plans and actions.
    (b) TVA provides notice to directly affected state, areawide, 
regional, and local entities in a state of proposed Federal financial 
assistance or direct federal development if:
    (1) The state has not adopted a process under the Order;
    (2) The assistance or development involves a program or activity not 
selected for the state process; or
    (3) The particular government entity is not part of or involved in 
the state process.

This notice may be made by a publication widely available in the 
potentially affected area or other appropriate means, which TVA in its 
discretion deems appropriate.



Sec. 1311.8  How does TVA provide states an opportunity to comment on proposed federal financial assistance and direct federal development?

    (a) Except in unusual circumstances, TVA gives state processes or 
directly affected state, areawide, regional, and local officials and 
entities:
    (1) [Reserved]
    (2) At least 60 days from the date established by TVA to comment on 
proposed direct Federal development or federal financial assistance.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with TVA have been delegated or 
when TVA provides notice directly to potentially affected state, 
areawide, regional, or local entities under Sec. 1311.7(b).



Sec. 1311.9  How does TVA receive and respond to comments?

    (a) TVA follows the procedures in Sec. 1311.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 1311.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional, or local officials and entities 
where there is no state process recommendation; however, these officials 
or entities may submit comments directly to TVA for TVA's consideration.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional, and local 
officials and entities may submit comments to TVA.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional, and local officials and entities may submit 
comments to TVA. In addition, if a state process recommendation for a 
nonselected program or activity is transmitted to TVA by the single 
point of contact, TVA follows the procedures of Sec. 1311.10 of this 
part.
    (e) TVA considers comments which do not constitute a state process 
recommendation submitted under these regulations and for which TVA is 
not required to apply the procedures of Sec. 1311.10 of this part, when 
such comments are provided by a single point of contact or directly to 
TVA by a state, areawide, regional, or local government.



Sec. 1311.10  How does TVA make efforts to accommodate intergovernmental viewpoints?

    (a) If a state process provides a state process recommendation to 
TVA through its single point contact, TVA either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact (including any regional or 
local office delegated a review and comment role by the state process) 
with written explanation of the decision in such form as TVA in its 
discretion deems appropriate. TVA may also supplement the written 
explanation by providing the explanation to the single point of

[[Page 210]]

contact by telephone, other telecommunications, meeting with the single 
point of contact, and, as appropriate, other interested officials or 
offices, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, TVA 
informs the single point of contact that:
    (1) TVA will not implement its decision for at least 10 days after 
the single point of contact receives the explanation; or
    (2) TVA's General Manager has reviewed the decision and determined 
that, because of unusual circumstances, the waiting period of at least 
10 days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, the explanation is presumed to have been 
received five days after the date of mailing of such notification.



Sec. 1311.11  What are TVA's obligations in interstate situations?

    (a) TVA is responsible for:
    (1) Identifying proposed Federal financial assistance and direct 
Federal development that potentially impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select TVA's program or activity;
    (3) In accordance with Sec. 1311.7(b), making efforts to identify 
and notify the affected state, areawide, regional and local officials 
and entities in those states that have not adopted a process under the 
Order or do not select TVA's program or activity;
    (4) Responding pursuant to Sec. 1311.10 of this part if TVA receives 
a recommendation from a designated areawide agency transmitted by a 
single point of contact, in cases in which the review, coordination, and 
communication with TVA have been delegated.
    (b) TVA uses the procedures in Sec. 1311.10 if a state process 
provides a state process recommendation to TVA through a single point of 
contact.



Sec. 1311.12  [Reserved]



Sec. 1311.13  May TVA waive any provision of these regulations?

    In an emergency, TVA may waive any provision of these regulations.



PART 1312--PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM REGULATIONS--Table of Contents




Sec.
1312.1  Purpose.
1312.2  Authority.
1312.3  Definitions.
1312.4  Prohibited acts and criminal penalties.
1312.5  Permit requirements and exceptions.
1312.6  Application for permits and information collection.
1312.7  Notification to Indian tribes of possible harm to, or 
          destruction of, sites on public lands having religious or 
          cultural importance.
1312.8  Issuance of permits.
1312.9  Terms and conditions of permits.
1312.10  Suspension and revocation of permits.
1312.11  Appeals relating to permits.
1312.12  Relationship to section 106 of the National Historic 
          Preservation Act.
1312.13  Custody of archaeological resources.
1312.14  Determination of archaeological or commercial value and cost of 
          restoration and repair.
1312.15  Assessment of civil penalties.
1312.16  Civil penalty amounts.
1312.17  Other penalties and rewards.
1312.18  Confidentiality of archaeological resource information.
1312.19  Report.
1312.20  Public awareness programs.
1312.21  Surveys and schedules.

    Authority: Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat. 2983 
(16 U.S.C. 470aa-mm) (Sec. 10(a). Related Authority: Pub. L. 59-209, 34 
Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat. 220, 221 (16 
U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 
915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 
(1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 
(1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).

    Source: 49 FR 1028, Jan. 6, 1984, unless otherwise noted.



Sec. 1312.1  Purpose.

    (a) The regulations in this part implement provisions of the 
Archaeological Resources Protection Act of

[[Page 211]]

1979, as amended (16 U.S.C. 470aa-mm) by establishing the uniform 
definitions, standards, and procedures to be followed by all Federal 
land managers in providing protection for archaeological resources, 
located on public lands and Indian lands of the United States. These 
regulations enable Federal land managers to protect archaeological 
resources, taking into consideration provisions of the American Indian 
Religious Freedom Act (92 Stat. 469; 42 U.S.C. 1996), through permits 
authorizing excavation and/or removal of archaeological resources, 
through civil penalties for unauthorized excavation and/or removal, 
through provisions for the preservation of archaeological resource 
collections and data, and through provisions for ensuring 
confidentiality of information about archaeological resources when 
disclosure would threaten the archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation, and other multiple 
uses of the public lands.

[49 FR 1028, Jan. 6, 1984, as amended at 60 FR 5259, 5260, Jan. 26, 
1995]



Sec. 1312.2  Authority.

    (a) The regulations in this part are promulgated pursuant to section 
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires that the Secretaries of the Interior, Agriculture 
and Defense and the Chairman of the Board of the Tennessee Valley 
Authority jointly develop uniform rules and regulations for carrying out 
the purposes of the Act.
    (b) In addition to the regulations in this part, section 10(b) of 
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall 
promulgate such rules and regulations, consistent with the uniform rules 
and regulations in this part, as may be necessary for carrying out the 
purposes of the Act.



Sec. 1312.3  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
    (3) The following classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (5) of this 
section:
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to, pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glassware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked, ground, or pecked stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to, vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);

[[Page 212]]

    (vii) Rock carvings, rock paintings, intaglios and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains;
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal land manager may determine that certain material 
remains, in specified areas under the Federal land manager's 
jurisdiction, and under specified circumstances, are not or are no 
longer of archaeological interest and are not to be considered 
archaeological resources under this part. Any determination made 
pursuant to this subparagraph shall be documented. Such determination 
shall in no way affect the Federal land manager's obligations under 
other applicable laws or regulations.
    (6) For the disposition following lawful removal or excavations of 
Native American human remains and ``cultural items'', as defined by the 
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 
101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is 
referred to NAGPRA and its implementing regulations.
    (b) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (c) Federal land manager means:
    (1) With respect to any public lands, the secretary of the 
department, or the head of any other agency or instrumentality of the 
United States, having primary management authority over such lands, 
including persons to whom such management authority has been officially 
delegated;
    (2) In the case of Indian lands, or any public lands with respect to 
which no department, agency or instrumentality has primary management 
authority, such term means the Secretary of the Interior;
    (3) The Secretary of the Interior, when the head of any other agency 
or instrumentality has, pursuant to section 3(2) of the Act and with the 
consent of the Secretary of the Interior, delegated to the Secretary of 
the Interior the responsibilities (in whole or in part) in this part.
    (d) Public lands means:
    (1) Lands which are owned and administered by the United States as 
part of the national park system, the national wildlife refuge system, 
or the national forest system; and
    (2) All other lands the fee title to which is held by the United 
States, except lands on the Outer Continental Shelf, lands under the 
jurisdiction of the Smithsonian Institution, and Indian lands.
    (e) Indian lands means lands of Indian tribes, or Indian 
individuals, which are either held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, except for subsurface interests not owned or controlled by an 
Indian tribe or Indian individual.
    (f) Indian tribe as defined in the Act means any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
village or regional or village corporation as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In 
order to clarify this statutory definition for purposes of this part, 
``Indian tribe'' means:
    (1) Any tribal entity which is included in the annual list of 
recognized tribes published in the Federal Register by the Secretary of 
the Interior pursuant to 25 CFR part 54;
    (2) Any other tribal entity acknowledged by the Secretary of the 
Interior pursuant to 25 CFR part 54 since the most recent publication of 
the annual list; and
    (3) Any Alaska Native village or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act (85

[[Page 213]]

Stat. 688), and any Alaska Native village or tribe which is recognized 
by the Secretary of the Interior as eligible for services provided by 
the Bureau of Indian Affairs.
    (g) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (h) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (i) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470aa-mm).

[49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984, as amended at 60 
FR 5259, 5260, Jan. 26, 1995]



Sec. 1312.4  Prohibited acts and criminal penalties.

    (a) Under section 6(a) of the Act, no person may excavate, remove, 
damage, or otherwise alter or deface, or attempt to excavate, remove, 
damage, or otherwise alter or deface any archaeological resource located 
on public lands or Indian lands unless such activity is pursuant to a 
permit issued under Sec. 1312.8 or exempted by Sec. 1312.5(b) of this 
part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource was excavated or removed 
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.
    (c) Under section (d) of the Act, any person who knowingly violates 
or counsels, procures, solicits, or employs any other person to violate 
any prohibition contained in section 6 (a), (b), or (c) of the Act will, 
upon conviction, be fined not more than $10,000.00 or imprisoned not 
more than one year, or both: provided, however, that if the commercial 
or archaeological value of the archaeological resources involved and the 
cost of restoration and repair of such resources exceeds the sum of 
$500.00, such person will be fined not more than $20,000.00 or 
imprisoned not more than two years, or both. In the case of a second or 
subsequent such violation upon conviction such person will be fined not 
more than $100,000.00, or imprisoned not more than five years, or both.

[49 FR 1028, Jan. 6, 1984, as amended at 60 FR 5259, 5260, Jan. 26, 
1995]



Sec. 1312.5  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from public lands or Indian lands, and to carry out activities 
associated with such excavation and/or removal, shall apply to the 
Federal land manager for a permit for the proposed work, and shall not 
begin the proposed work until a permit has been issued. The Federal land 
manager may issue a permit to any qualified person, subject to 
appropriate terms and conditions, provided that the person applying for 
a permit meets conditions in Sec. 1312.8(a) of this part.
    (b) Exceptions:
    (1) No permit shall be required under this part for any person 
conducting activities on the public lands under other permits, leases, 
licenses, or entitlements for use, when those activities are exclusively 
for purposes other than the excavation and/or removal of archaeological 
resources, even though those activities might incidentally result in the 
disturbance of archaeological resources. General earth-moving excavation 
conducted under a permit or other authorization shall not be construed 
to mean excavation and/or removal as used in this part. This exception 
does not, however, affect the Federal land manager's responsibility to 
comply with other authorities which protect archaeological resources 
prior to approving permits, leases, licenses, or entitlements for use; 
any excavation and/or removal of archaeological resources required for 
compliance with those authorities shall be conducted in accordance with 
the permit requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this part, provided that 
such collecting does

[[Page 214]]

not result in disturbance of any archaelogical resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by any Indian tribe or member thereof of any archaeological 
resource located on Indian lands of such Indian tribe, except that in 
the absence of tribal law regulating the excavation or removal or 
archaeological resources on Indian lands, an individual tribal member 
shall be required to obtain a permit under this part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.
    (c) Persons carrying out official agency duties under the Federal 
land manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures of Sec. 1312.6. However, the Federal land manager shall 
insure that provisions of Secs. 1312.8 and 1312.9 have been met by other 
documented means, and that any official duties which might result in 
harm to or destruction of any Indian tribal religious or cultural site, 
as determined by the Federal land manager, have been the subject of 
consideration under Sec. 1312.7.
    (d) Upon the written request of the Governor of any State, on behalf 
of the State or its educational institutions, the Federal land manager 
shall issue a permit, subject to the provisions of Secs. 1312.5(b)(5), 
1312.7, 1312.8(a)(3), (4), (5), (6), and (7), 1312.9, 1312.10, 1312.12, 
and 1312.13(a) to such Governor or to such designee as the Governor 
deems qualified to carry out the intent of the Act, for purposes of 
conducting archaeological research, excavating and/or removing 
archaeological resources, and safeguarding and preserving any materials 
and data collected in a university, museum, or other scientific or 
educational institution approved by the Federal land manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of public lands and Indian lands, authorizations may 
be required for activities which do not require a permit under this 
part. Any person wishing to conduct on public lands or Indian lands any 
activities related to but believed to fall outside the scope of this 
part should consult with the Federal land manager, for the purpose of 
determining whether any authorization is required, prior to beginning 
such activities.



Sec. 1312.6  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal land manager for 
a permit to excavate and/or remove archaeological resources from public 
lands or Indian lands and to carry out activities associated with such 
excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
locational maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training, and experience in accord with the 
minimal qualifications listed in Sec. 1312.8(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct, and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on public lands, the names of the university, 
museum, or

[[Page 215]]

other scientific or educational institution in which the applicant 
proposes to store all collections, and copies of records, data, 
photographs, and other documents derived from the proposed work. 
Applicants shall submit written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibility for the collections, records, data, photographs and other 
documents and tm safeguard and preserve these materials as property of 
the United States.
    (6) Where the application is for the excavation and/or removal of 
archaeological resources on Indian lands, the name of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store copies of records, data, photographs, ald 
other documents derived from the proposed work, and all collections in 
the event the Indian owners do not wish tm take custody or otherwise 
dispose of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, or 
willingness tm assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other documents 
derived from the proposed work.
    (c) The Federal land manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The information collection requirement 
contained in Sec. 1312.6 of these regulations has been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1024-0037. The purpose of the information 
collection is to meet statutory and administrative requirements in the 
public interest. The information will be used to assist Federal land 
managers in determining that applicants for permits are qualified, that 
the work proposed would further archaeological knowledge, that 
archaeological resources and associated records and data will be 
properly preserved, and that the permitted activity would not conflict 
with the management of the public lands involved. Response to the 
information requirement is necessary in order for an applicant to obtain 
a benefit.

(Approved by the Office of Management and Budget under control number 
1024-0037)



Sec. 1312.7  Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
public lands, as determined by the Federal land manager, at least 30 
days before issuing such a permit the Federal land manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal land manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal land manager.
    (2) The Federal land manager may provide notice to any other Native 
American group that is known by the Federal land manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal land manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit under Sec. 1312.9.
    (4) When the Federal land manager detemines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat of loss or destruction of an archaeological resource, the Federal 
land manager shall so notify the appropriate tribe.

[[Page 216]]

    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal land manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to public lands under the Federal land 
manager's jurisdiction, the Federal land manager may seek to communicate 
with official representatives of that group to obtain information on 
sites they may consider to be of religious or cultural importance.
    (3) The Federal land manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.
    (4) The Federal land manager should also seek to determine, in 
consultation with official representatives of Indian tribes or other 
Native American groups, what circumstances should be the subject of 
special notification to the tribe or group after a permit has been 
issued. Circumstances calling for notification might include the 
discovery of human remains. When circumstances for special notification 
have been determined by the Federal land manager, the Federal land 
manager will include a requirement in the terms and conditions of 
permits, under Sec. 1312.9(c), for permittees to notify the Federal land 
manger immediately upon the occurrence of such circumstances. Following 
the permittee's notification, the Federal land manager will notify and 
consult with the tribe or group as appropriate. In cases involving 
Native American human remains and other ``cultural items'', as defined 
by NAGPRA, the Federal land manager is referred to NAGPRA and its 
implementing regulations.

[49 FR 1028, Jan. 6, 1984, as amended at 60 FR 5259, 5261, Jan. 26, 
1995]



Sec. 1312.8  Issuance of permits.

    (a) The Federal land manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have had at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;

[[Page 217]]

    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaelogical survey and/or 
data recovery undertaken in accordance with other approved uses of the 
public lands or Indian lands, and the proposed work has been agreed to 
in writing by the Federal land manager pursuant to section 106 of the 
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) 
and (3) shall be deemed satisfied by the prior approval.
    (5) Written consent has been obtained, for work proposed on Indian 
lands, from the Indian landowner and the Indian tribe having 
jurisdiction over such lands;
    (6) Evidence is submitted to the Federal land manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 90 days after 
the date the final report is submitted to the Federal land manager, the 
following will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for the excavation and/or 
removal of archaeological resources from public lands.
    (ii) All artifacts, samples and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the Indian owners, and copies of records, data, 
photographs, and other documents resulting from work conducted under the 
requested permit, where the permit is for the excavation and/or removal 
of archaeological resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land managers shall coordinate the 
review and evaluation of applications and the issuance of permits.

[49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 1312.9  Terms and conditions of permits.

    (a) In all permits issued, the Federal land manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location, and purpose of 
the work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational insitutions in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal land manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas, to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal land manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on public lands 
shall include such terms and conditions as may have been developed 
pursuant to Sec. 1312.7.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.
    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.

[[Page 218]]

    (f) The permittee may request that the Federal land manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal land 
manager, at least annually.



Sec. 1312.10  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal land manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act or Sec. 1312.4. The 
Federal land manager shall provide written notice to the permittee of 
the suspension, the cause thereof, and the requirements which must be 
met before the suspension will be removed.
    (2) The Federal land manager may revoke a permit upon assessment of 
a civil penalty under Sec. 1312.15 upon the permittee's conviction under 
section 6 of the Act, or upon determining that the permittee has failed 
after notice under this section to correct the situation which led to 
suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
land manager may suspend or revoke a permit, without liability to the 
United States, its agents, or employees, when continuation of work under 
the permit would be in conflict with management requirements not in 
effect when the permit was issued. The Federal land manager shall 
provide written notice to the permittee stating the nature of and basis 
for the suspension or revocation.

[49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 1312.11  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit 
through existing administrative appeal procedures, or through procedures 
which may be established by the Federal land manager pursuant to section 
10(b) of the Act and this part.



Sec. 1312.12  Relationship to section 106 of the National Historic Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with section 106 of 
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal land manager from 
compliance with section 106 where otherwise required.



Sec. 1312.13  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from the public 
lands remain the property of the United States.
    (b) Archaeological resources excavated or removed from Indian lands 
remain the property of the Indian or Indian tribe having rights of 
ownership over such resources.
    (c) The Secretary of the Interior may promulgate regulations 
providing for the exchange of archaeological resources among suitable 
universities, museums, or other scientific or educational institutions, 
for the ultimate disposition of archaeological resources, and for 
standards by which archaeological resources shall be preserved and 
maintained, when such resources have been excavated or removed from 
public lands and Indian lands.
    (d) In the absence of regulations referenced in paragraph (c) of 
this section, the Federal land manager may provide for the exchange of 
archaeological resources among suitable universities, museums, or other 
scientific or educational institutions, when such resources have been 
excavated or removed from public lands under the authority of a permit 
issued by the Federal land manager.
    (e) Notwithstanding the provisions of paragraphs (a) through (d) of 
this section, the Federal land manager will follow the procedures 
required by NAGPRA and its implementing regulations for determining the 
disposition of Native American human remains and other ``cultural 
items'', as defined by NAGPRA, that have been excavated, removed, or 
discovered on public lands.

[49 FR 1028, Jan. 6, 1984, as amended at 60 FR 5259, 5261, Jan. 26, 
1995]

[[Page 219]]



Sec. 1312.14  Determination of archaeological or commercial value and cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions in Sec. 1312.4 of this part or conditions 
of a permit issued pursuant to this part shall be the value of the 
information associated with the archaeological resource. This value 
shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtainable prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions in Sec. 1312.4 of this part or conditions of a permit 
issued pursuant to this part shall be its fair market value. Where the 
violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the condition of the 
archaeological resource prior to the violation, to the extent that its 
prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damaged as a 
result of a violation of prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which may include, but need not be 
limited to, the costs of the following:
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom 
and State, local, or tribal law, where appropriate, as determined by the 
Federal land manager.
    (8) Preparation of reports relating to any of the above activities.



Sec. 1312.15  Assessment of civil penalties.

    (a) The Federal land manager may assess a civil penalty against any 
person who has violated any prohibition contained in Sec. 1312.4 or who 
has violated any term or condition included in a permit issued in 
accordance with the Act and this part.
    (b) Notice of violation. The Federal land manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal land manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of a proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal land manager's 
notice of assessment, and to request a hearing in accordance with 
paragraph (g) of this section. The notice shall also inform the person 
of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days

[[Page 220]]

from the date of its service (or the date of service of a proposed 
penalty amount, if later) in which to respond. During this time the 
person may:
    (1) Seek informal discussions with the Federal land manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal land manager's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal land manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later). The petition 
shall be in writing and signed by the person served with the notice of 
violation. If the person is a corporation, the petition must be signed 
by an officer authorized to sign such documents. The petition shall set 
forth in full the legal or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Federal land manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion of informal discussions, whichever is later.
    (2) The Federal land manager shall take into consideration all 
available information, including information provided pursuant to 
paragraphs (c) and (d) of this section or furnished upon further request 
by the Federal land manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Federal land manager shall so notify the person served 
with a notice of violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Federal land manager shall determine a penalty amount in 
accordance with Sec. 1312.16.
    (f) Notice of assessment. The Federal land manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
land manager shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis in Sec. 1312.16 for determining the penalty amount 
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with this part, and 
shall not be limited by the amount assessed by the Federal land manager 
under paragraph (f) of this section or any offer of mitigation or 
remission made by the Federal land manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty

[[Page 221]]

pursuant to paragraph (c)(4) of this section, the notice of violation 
shall constitute the final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for a hearing pursuant to paragraph (g)(1) of this 
section, the decision resulting from the hearing or any applicable 
administrative appeal therefrom shall constitute the final 
administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a U.S. 
District Court as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal land manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a U.S. District Court for any district in which the person 
assessed a civil penalty is found, resides, or transacts business. Where 
the Federal land manager is not represented by the Attorney General, a 
civil action may be initiated directly by the Federal land manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec. 1312.16  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil penalty has not committed any previous violation of any 
prohibition in Sec. 1312.4 or of any term or condition included in a 
permit issued pursuant to this part, the maximum amount of the penalty 
shall be the full cost of restoration and repair of archaeological 
resources damaged plus the archaeological or commercial value of 
archaeological resources destroyed or not recovered.
    (2) Where the person being assessed a civil penalty has committed 
any previous violation of any prohibition in Sec. 1312.4 or of any term 
or condition included in a permit issued pursuant to this part, the 
maximum amount of the penalty shall be double the cost of restoration 
and repair plus double the archaeological or commercial value of 
archaeological resources destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The 
Federal land manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to 
mitigate or remit the penalty may be based upon any of the following 
factors:
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal land manager archaeological resources removed from public 
lands or Indian lands;
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal land manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on public lands or Indian lands;
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation;
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances;
    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.

[[Page 222]]

    (2) When the penalty is for a violation on Indian lands, the Federal 
land manager shall consult with and consider the interests of the Indian 
landowner and the Indian tribe having jurisdiction over the Indian lands 
prior to proposing to mitigate or remit the penalty.
    (3) When the penalty is for a violation which may have had an effect 
on a known Indian tribal religious or cultural site on public lands, the 
Federal land manager should consult with and consider the interests of 
the affected tribe(s) prior to proposing to mitigate or remit the 
penalty.

[49 FR 1028, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]



Sec. 1312.17  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Section 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal land manager 
may certify to the Secretary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State, or local 
government who furnish information or render service in the performance 
of their official duties, and persons who have provided information 
under Sec. 1312.16(b)(1)(iii) shall not be certified eligible to receive 
payment of rewards.
    (c) In cases involving Indian lands, all civil penalty monies and 
any item forfeited under the provisions of this section shall be 
transferred to the appropriate Indian or Indian tribe.



Sec. 1312.18  Confidentiality of archaeological resource information.

    (a) The Federal land manager shall not make available to the public, 
under Subchapter II of Chapter 5 of Title 5 of the U.S. Code or any 
other provision of law, information concerning the nature and location 
of any archaeological resource, with the following exceptions:
    (1) The Federal land manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c), 
without risking harm to the archaeological resource or to the site in 
which it is located.
    (2) The Federal land manager shall make information available, when 
the Governor of any State has submitted to the Federal land manager a 
written request for information, concerning the archaeological resources 
within the requesting Governor's State, provided that the request 
includes:
    (i) The specific archaeological resource or area about which 
information is sought;
    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the 
confidentiality of the information.
    (b) [Reserved]

[49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 1312.19  Report.

    (a) Each Federal land manager, when requested by the Secretary of 
the Interior, will submit such information as is necessary to enable the 
Secretary to comply with section 13 of the Act and comprehensively 
report on activities carried out under provisions of the Act.
    (b) The Secretary of the Interior will include in the annual 
comprehensive report, submitted to the Committee on Interior and Insular 
Affairs of the United States House of Representatives and to the 
Committee on Energy and Natural Resources of the United States Senate 
under section 13 of the Act, information on public awareness programs 
submitted by each Federal land manager under Sec. 1312.20(b). Such 
submittal will fulfill the Federal land manager's responsibility under 
section 10(c) of the Act to report on public awareness programs.
    (c) The comprehensive report by the Secretary of the Interior also 
will include information on the activities carried out under section 14 
of the Act. Each Federal land manager, when requested by the Secretary, 
will submit any available information on surveys and schedules and 
suspected violations

[[Page 223]]

in order to enable the Secretary to summarize in the comprehensive 
report actions taken pursuant to section 14 of the Act.

[60 FR 5259, 5261, Jan. 26, 1995]



Sec. 1312.20  Public awareness programs.

    (a) Each Federal land manager will establish a program to increase 
public awareness of the need to protect important archaeological 
resources located on public and Indian lands. Educational activities 
required by section 10(c) of the Act should be incorporated into other 
current agency public education and interpretation programs where 
appropriate.
    (b) Each Federal land manager annually will submit to the Secretary 
of the Interior the relevant information on public awareness activities 
required by section 10(c) of the Act for inclusion in the comprehensive 
report on activities required by section 13 of the Act.

[60 FR 5259, 5261, Jan. 26, 1995]



Sec. 1312.21  Surveys and schedules.

    (a) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Board of the Tennessee Valley Authority will develop 
plans for surveying lands under each agency's control to determine the 
nature and extent of archaeological resources pursuant to section 14(a) 
of the Act. Such activities should be consistent with Federal agency 
planning policies and other historic preservation program 
responsibilities required by 16 U.S.C. 470 et seq. Survey plans prepared 
under this section will be designed to comply with the purpose of the 
Act regarding the protection of archaeological resources.
    (b) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will prepare schedules 
for surveying lands under each agency's control that are likely to 
contain the most scientifically valuable archaeological resources 
pursuant to section 14(b) of the Act. Such schedules will be developed 
based on objectives and information identified in survey plans described 
in paragraph (a) of this section and implemented systematically to cover 
areas where the most scientifically valuable archaeological resources 
are likely to exist.
    (c) Guidance for the activities undertaken as part of paragraphs (a) 
through (b) of this section is provided by the Secretary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation.
    (d) Other Federal land managing agencies are encouraged to develop 
plans for surveying lands under their jurisdictions and prepare 
schedules for surveying to improve protection and management of 
archaeological resources.
    (e) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will develop a system for 
documenting and reporting suspected violations of the various provisions 
of the Act. This system will reference a set of procedures for use by 
officers, employees, or agents of Federal agencies to assist them in 
recognizing violations, documenting relevant evidence, and reporting 
assembled information to the appropriate authorities. Methods employed 
to document and report such violations should be compatible with 
existing agency reporting systems for documenting violations of other 
appropriate Federal statutes and regulations. Summary information to be 
included in the Secretary's comprehensive report will be based upon the 
system developed by each Federal land manager for documenting suspected 
violations.

[60 FR 5259, 5261, Jan. 26, 1995]



PART 1313--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE TENNESSEE VALLEY AUTHORITY--Table of Contents




Sec.
1313.101  Purpose.
1313.102  Application.
1313.103  Definitions.
1313.104-1313.109  [Reserved]
1313.110  Self-evaluation.
1313.111  Notice.
1313.112-1313.129  [Reserved]
1313.130  General prohibitions against discrimination.
1313.131-1313.139  [Reserved]

[[Page 224]]

1313.140  Employment.
1313.141-1313.148  [Reserved]
1313.149  Program accessibility: Discrimination prohibited.
1313.150  Program accessibility: Existing facilities.
1313.151  Program accessibility: New construction and alterations.
1313.152-1313.159  [Reserved]
1313.160  Communications.
1313.161-1313.169  [Reserved]
1313.170  Compliance procedures.

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22889, 22896, June 23, 1986, unless otherwise noted.



Sec. 1313.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec. 1313.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 1313.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alocoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.

[[Page 225]]

    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can acheive the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 1313.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Secs. 1313.104-1313.109  [Reserved]



Sec. 1313.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 1313.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.

[[Page 226]]



Secs. 1313.112-1313.129  [Reserved]



Sec. 1313.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.

[[Page 227]]



Secs. 1313.131-1313.139  [Reserved]



Sec. 1313.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Secs. 1313.141-1313.148  [Reserved]



Sec. 1313.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1313.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 1313.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 1313.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of the services to accessible buildings, 
assignment of aides to beneficiaries, home visits, delivery of services 
at alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 1313.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to handicapped 
persons. In cases where a physical alteration to an historic property is 
not required because

[[Page 228]]

of Sec. 1313.150(a)(2) or (a)(3), alternative methods of achieving 
program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 1313.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Secs. 1313.152-1313.159  [Reserved]



Sec. 1313.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and adminstrative 
burdens. In

[[Page 229]]

those circumstances where agency personnel believe that the proposed 
action would fundamentally alter the program or activity or would result 
in undue financial and administrative burdens, the agency has the burden 
of proving that compliance with Sec. 1313.160 would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
handicapped persons receive the benefits and services of the program or 
activity.



Secs. 1313.161-1313.169  [Reserved]



Sec. 1313.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Supervisor, Contracting and Community Assistance, shall be 
responsible for coordinating implementation of this section. Complaints 
may be sent to Supervisor, Contracting and Community Assistance, 
Tennessee Valley Authority, E5 B30, 400 West Summit Hill Drive, 
Knoxville, Tennessee 37902.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 1313.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making

[[Page 230]]

the final determination may not be delegated to another agency.

[51 FR 22889, 22896, June 23, 1986, as amended at 51 FR 22890, June 23, 
1986]



PART 1314--BOOK-ENTRY PROCEDURES FOR TVA POWER SECURITIES ISSUED THROUGH THE FEDERAL RESERVE BANKS--Table of Contents




Sec.
1314.1  Applicability and effect.
1314.2  Definition of terms.
1314.3  Authority of Reserve Banks.
1314.4  Law governing the rights and obligations of TVA and Reserve 
          Banks; law governing the rights of any Person against TVA and 
          Reserve Banks; law governing other interests.
1314.5  Creation of Participant's Security Entitlement; security 
          interests.
1314.6  Obligations of TVA.
1314.7  Liability of TVA and Reserve Banks.
1314.8  Identification of accounts.
1314.9  Waiver of regulations.
1314.10  Additional provisions.

    Authority: 16 U.S.C. 831-831dd.

    Source: 62 FR 920, Jan. 7, 1997, unless otherwise noted.



Sec. 1314.1  Applicability and effect.

    (a) Applicability. The regulations in this part govern the issuance 
of, and transactions in, all TVA Power Securities issued by TVA in book-
entry form through the Reserve Banks.
    (b) Effect. The TVA Power Securities to which the regulations in 
this part apply are obligations which, by the terms of their issue, are 
available exclusively in book-entry form through the Reserve Banks` 
Book-entry System.



Sec. 1314.2  Definition of terms.

    Unless the context requires otherwise, terms used in this part 1314 
that are not defined in this section have the meanings as set forth in 
31 CFR 357.2. Definitions and terms used in 31 CFR part 357 should be 
read as though modified to effectuate their application to Book-entry 
TVA Power Securities where applicable.
    (a) Book-entry System means the automated book-entry system operated 
by the Reserve Banks acting as the fiscal agent for TVA on which Book-
entry TVA Power Securities are issued, recorded, transferred, and 
maintained in book-entry form.
    (b) Book-entry TVA Power Security means any TVA Power Security 
issued or maintained in the Book-entry System of the Reserve Banks.
    (c) CUSIP Number is a unique identification for each security issue 
established by the Committee on Uniform Security Identification 
Procedures.
    (d) Depository Institution means any Participant.
    (e) Entitlement Holder means a Person to whose account an interest 
in a Book- entry TVA Power Security is credited on the records of a 
Securities Intermediary.
    (f) Funds Account means a reserve and/or clearing account at a 
Reserve Bank to which debits or credits are posted for transfers against 
payment, book-entry securities transaction fees, or principal and 
interest payments.
    (g) Other TVA Power Evidences of Indebtedness means any TVA Power 
Security issued consistent with section 2.5 of the TVA Basic Bond 
Resolution (see paragraph (r) of this section).
    (h) Participant (also called ``holder'' in the TVA Basic Bond 
Resolution and in other resolutions adopted by the TVA Board of 
Directors relating to Book-entry TVA Power Securities) means a Person 
that maintains a Participant's Security Account with a Reserve Bank.
    (i) Participant's Security Account means an account in the name of a 
Participant at a Reserve Bank to which Book-entry TVA Power Securities 
held for a Participant are or may be credited.
    (j) Person means and includes an individual, corporation, company, 
governmental entity, association, firm, partnership, trust, estate, 
representative, and any other similar organization, but does not mean or 
include the United States or a Reserve Bank.
    (k) Reserve Banks means the Federal Reserve Banks of the Federal 
Reserve System and their branches.
    (l) Reserve Bank Operating Circular means the publication issued by 
each Reserve Bank that sets forth the terms and conditions under which 
the Reserve Bank maintains book-entry securities accounts and transfers 
book-entry securities.

[[Page 231]]

    (m) Securities Documentation means the applicable documents 
establishing the terms of a Book-entry TVA Power Security.
    (n) Securities Intermediary means:
    (1) A Person that is registered as a ``clearing agency'' under the 
Federal securities law; a Reserve Bank; any other Person that provides 
clearance or settlement services with respect to a Book-entry TVA Power 
Security that would require it to register as a clearing agency under 
the Federal securities laws but for an exclusion or exemption from the 
registration requirement, if its activities as a clearing corporation, 
including promulgation of rules, are subject to regulation by a Federal 
or State governmental authority; or
    (2) A Person (other than an individual, unless such individual is 
registered as a broker or dealer under the Federal securities laws), 
including a bank or broker, that in the ordinary course of business 
maintains securities accounts for others and is acting in that capacity.
    (o) Security Entitlement means the rights and property interests of 
an Entitlement Holder with respect to a Book-entry TVA Power Security.
    (p) State means any State of the United States, the District of 
Columbia, Puerto Rico, the Virgin Islands, or any other territory or 
possession of the United States.
    (q) TVA means the Tennessee Valley Authority, a wholly owned 
corporate agency and instrumentality of the United States of America 
created and existing under the Tennessee Valley Authority Act of 1933, 
as amended (16 U.S.C. 831-831dd).
    (r) TVA Basic Bond Resolution means the Basic Tennessee Valley 
Authority Power Bond Resolution \1\ adopted by the TVA Board of 
Directors on October 6, 1960, as heretofore and hereafter amended.
---------------------------------------------------------------------------

    \1\ A copy of the TVA Basic Bond Resolution may be obtained upon 
request directed to TVA, 400 West Summit Hill Drive, Knoxville, 
Tennessee 37902-1499, Attn.: Treasurer.
---------------------------------------------------------------------------

    (s) TVA Power Bond means any TVA Power Security issued by TVA under 
section 2.2 of the TVA Basic Bond Resolution and the supplemental 
resolution adopted by the TVA Board of Directors authorizing the 
issuance thereof.
    (t) TVA Power Bond Anticipation Obligation means any TVA Power 
Security issued consistent with section 2.4 of the TVA Basic Bond 
Resolution.
    (u) TVA Power Note means any Other TVA Power Evidences of 
Indebtedness in the form of a note having a maturity at the date of 
issue of less than one year.
    (v) TVA Power Security means a TVA Power Bond, TVA Power Bond 
Anticipation Obligation, TVA Power Note, or Other TVA Power Evidence of 
Indebtedness issued by TVA under Section 15d of the TVA Act, as amended.

[62 FR 920, Jan. 7, 1997; 62 FR 4833, Jan. 31, 1997, as amended at 62 FR 
29288, May 30, 1997]



Sec. 1314.3  Authority of Reserve Banks.

    (a) Each Reserve Bank is hereby authorized as fiscal agent of TVA to 
perform the following functions with respect to the issuance of Book-
entry TVA Power Securities offered and sold by TVA to which this part 
1314 applies, in accordance with the Securities Documentation, Reserve 
Bank Operating Circulars, this part 1314, and procedures established by 
the Secretary of the United States Treasury consistent with these 
authorities:
    (1) To service and maintain Book-entry TVA Power Securities in 
accounts established for such purposes;
    (2) To make payments with respect to such securities, as directed by 
TVA;
    (3) To effect transfer of Book-entry TVA Power Securities between 
Participants` Security Accounts as directed by the Participants;
    (4) To perform such other duties as fiscal agent as may be requested 
by TVA.
    (b) Each Reserve Bank may issue Reserve Bank Operating Circulars not 
inconsistent with this part 1314, governing the details of its handling 
of Book-entry TVA Power Securities, Security Entitlements, and the 
operation of the Book-entry System under this part 1314.

[62 FR 920, Jan. 7, 1997, as amended at 62 FR 29288, May 30, 1997]

[[Page 232]]



Sec. 1314.4  Law governing the rights and obligations of TVA and Reserve Banks; law governing the rights of any Person against TVA and Reserve Banks; law 
          governing other interests.

    (a) Except as provided in paragraph (b) of this section, the 
following rights and obligations are governed solely by the book-entry 
regulations contained in this part 1314, the Securities Documentation 
(but not including any choice of law provisions in such documentation), 
and Reserve Bank Operating Circulars:
    (1) The rights and obligations of TVA and Reserve Banks with respect 
to:
    (i) A Book-entry TVA Power Security or Security Entitlement; and
    (ii) The operation of the Book-entry System as it applies to TVA 
Power Securities; and
    (2) The rights of any Person, including a Participant, against TVA 
and Reserve Banks with respect to:
    (i) A Book-entry TVA Power Security or Security Entitlement; and
    (ii) The operation of the Book-entry System as it applies to TVA 
Power Securities.
    (b) A security interest in a Security Entitlement that is in favor 
of a Reserve Bank from a Participant and that is not recorded on the 
books of a Reserve Bank pursuant to Sec. 1314.5(c) is governed by the 
law (not including the conflict-of-law rules) of the jurisdiction where 
the head office of the Reserve Bank maintaining the Participant's 
Security Account is located. A security interest in a Security 
Entitlement that is in favor of a Reserve Bank from a Person that is not 
a Participant, and that is not recorded on the books of a Reserve Bank 
pursuant to Sec. 1314.5(c), is governed by the law determined in the 
manner specified in paragraph (d) of this section.
    (c) If the jurisdiction specified in the first sentence of paragraph 
(b) of this section is a State that has not adopted Revised Article 8, 
then the law specified in paragraph (b) of this section shall be the law 
of that State as though Revised Article 8 had been adopted by that 
State.
    (d) To the extent not otherwise inconsistent with this part 1314, 
and notwithstanding any provision in the Securities Documentation 
setting forth a choice of law, the provisions set forth in 31 CFR 357.11 
regarding law governing other interests apply and should be read as 
though modified to effectuate the application of 31 CFR 357.11 to Book-
entry TVA Power Securities.

[62 FR 920, Jan. 7, 1997; 62 FR 8619, Feb. 26, 1997, as amended at 62 FR 
29288, May 30, 1997]



Sec. 1314.5  Creation of Participant's Security Entitlement; security interests.

    (a) A Participant's Security Entitlement is created when a Reserve 
Bank indicates by book-entry that a Book-entry TVA Power Security has 
been credited to a Participant's Security Account.
    (b) A security interest in a Security Entitlement of a Participant 
in favor of the United States to secure deposits of public money, 
including without limitation deposits to the Treasury tax and loan 
accounts, or other security interest in favor of the United States that 
is required by Federal statute, regulation or agreement, and that is 
marked on the books of a Reserve Bank, is thereby effected and 
perfected, and has priority over any other interest in the securities. 
Where a security interest in favor of the United States in a Security 
Entitlement of a Participant is marked on the books of a Reserve Bank, 
such Reserve Bank may rely, and is protected in relying, exclusively on 
the order of an authorized representative of the United States directing 
the transfer of the security. For purposes of this paragraph, an 
``authorized representative of the United States'' is the official 
designated in the applicable regulations or agreement to which a Reserve 
Bank is a party governing the security interest.
    (c) TVA and Reserve Banks have no obligation to agree to act on 
behalf of any Person or to recognize the interest of any transferee of a 
security interest or other limited interest in favor of any Person 
except to the extent of any specific requirement of Federal law or 
regulation or to the extent set forth in any specific agreement with the 
Reserve Bank on whose books the interest of the Participant is recorded. 
To the extent required by such law or regulation or set forth in an 
agreement with

[[Page 233]]

a Reserve Bank or in a Reserve Bank Operating Circular, a security 
interest in a Security Entitlement that is in favor of a Reserve Bank or 
a Person may be created and perfected by a Reserve Bank marking its 
books to record the security interest. Subject to paragraph (b) of this 
section with respect to a security interest in favor of the United 
States, a security interest in a Security Entitlement marked on the 
books of a Reserve Bank shall have priority over any other interest in 
the securities.
    (d) In addition to the method provided in paragraph (c) of this 
section, a security interest, including a security interest in favor of 
a Reserve Bank, may be perfected by any method by which a security 
interest may be perfected under applicable law as described in 
Sec. 1314.4(b) or (d). The perfection, effect of perfection or non-
perfection, and priority of a security interest are governed by such 
applicable law. A security interest in favor of a Reserve Bank shall be 
treated as a security interest in favor of a clearing corporation in all 
respects under such law, including with respect to the effect of 
perfection and priority of such security interest. A Reserve Bank 
Operating Circular shall be treated as a rule adopted by a clearing 
corporation for such purposes.

[62 FR 920, Jan. 7, 1997; 62 FR 4833, Jan. 31, 1997; 62 FR 8619, Feb. 
26, 1997]



Sec. 1314.6  Obligations of TVA.

    (a) Except in the case of a security interest in favor of the United 
States or a Reserve Bank or otherwise as provided in Sec. 1314.5(c), for 
the purposes of this part 1314, TVA and Reserve Banks shall treat the 
Participant to whose securities account an interest in a Book-entry TVA 
Power Security has been credited as the Person exclusively entitled to 
issue a transfer message, to receive interest and other payments with 
respect thereof, and otherwise to exercise all the rights and powers 
with respect to such security, notwithstanding any information or notice 
to the contrary. Neither TVA nor the Reserve Banks are liable to a 
Person asserting or having an adverse claim to a Security Entitlement or 
to a Book-entry TVA Power Security in a Participant's Security Account, 
including any such claim arising as a result of the transfer or 
disposition of a Book-entry TVA Power Security by a Reserve Bank 
pursuant to a transfer message that the Reserve Bank reasonably believes 
to be genuine.
    (b) The obligation of TVA to make payments with respect to Book-
entry TVA Power Securities is discharged at the time payment in the 
appropriate amount is made as follows:
    (1) Interest or other payments on Book-entry TVA Power Securities 
are either credited by a Reserve Bank to a Funds Account maintained at 
such bank or otherwise paid as directed by the Participant.
    (2) Book-entry TVA Power Securities are redeemed in accordance with 
their terms by a Reserve Bank withdrawing the securities from the 
Participant's Security Account in which they are maintained and by 
either crediting the amount of the redemption proceeds, including both 
principal and interest, where applicable, to a Funds Account at such 
bank or otherwise paying such principal and interest as directed by the 
Participant. No action by the Participant ordinarily is required in 
connection with the redemption of a Book-entry TVA Power Security.

[62 FR 920, Jan. 7, 1997; 62 FR 8619, 8620, Feb. 26, 1997]



Sec. 1314.7  Liability of TVA and Reserve Banks.

    TVA and the Reserve Banks may rely on the information provided in a 
transfer message and are not required to verify the information. TVA and 
the Reserve Banks shall not be liable for any action taken in accordance 
with the information set out in a transfer message or evidence submitted 
in support thereof.

[62 FR 920, Jan. 7, 1997; 62 FR 4833, Jan. 31, 1997]



Sec. 1314.8  Identification of accounts.

    Book-entry accounts may be established in such form or forms as 
customarily permitted by the entity (e.g., Depository Institution, 
Securities Intermediary, etc.) maintaining them, except that each 
account established by such entity (other than a Reserve

[[Page 234]]

Bank) should include data to permit both customer identification by 
name, address, and taxpayer identifying number, as well as a 
determination of the Book-entry TVA Power Securities being held in such 
account by amount, maturity, date, and CUSIP Number, and of transactions 
relating thereto.

[62 FR 920, Jan. 7, 1997; 62 FR 8620, Feb. 26, 1997]



Sec. 1314.9  Waiver of regulations.

    TVA reserves the right in TVA's discretion to waive any provision of 
the regulations in this part in any case or class of cases for the 
convenience of TVA or in order to relieve any Person of unnecessary 
hardship, if such action is not inconsistent with law and does not 
adversely affect any substantial existing rights, and TVA is satisfied 
that such action will not subject TVA to any substantial expense or 
liability.



Sec. 1314.10  Additional provisions.

    (a) Additional requirements. In any case or any class of cases 
arising under the regulations in this part, TVA may require such 
additional evidence and a bond of indemnity, with or without surety, as 
may in the judgment of TVA be necessary for the protection of the 
interests of TVA.
    (b) Notice of attachment for TVA Power Securities in Book-entry 
System. The interest of a debtor in a Security Entitlement may be 
reached by a creditor only by legal process upon the Securities 
Intermediary with whom the debtor's securities account is maintained, 
except where a Security Entitlement is maintained in the name of a 
secured party, in which case the debtor's interest may be reached by 
legal process upon the secured party. The regulations in this part do 
not purport to establish whether a Reserve Bank is required to honor an 
order or other notice of attachment in any particular case or class of 
cases.



PART 1315--NEW RESTRICTIONS ON LOBBYING--Table of Contents




                           Subpart A--General

Sec.
1315.100  Conditions on use of funds.
1315.105  Definitions.
1315.110  Certification and disclosure.

                 Subpart B--Activities by Own Employees

1315.200  Agency and legislative liaison.
1315.205  Professional and technical services.
1315.210  Reporting.

            Subpart C--Activities by Other Than Own Employees

1315.300  Professional and technical services.

                  Subpart D--Penalties and Enforcement

1315.400  Penalties.
1315.405  Penalty procedures.
1315.410  Enforcement.

                          Subpart E--Exemptions

1315.500  Secretary of Defense.

                        Subpart F--Agency Reports

1315.600  Semi-annual compilation.
1315.605  Inspector General report.

Appendix A to Part 1315--Certification Regarding Lobbying
Appendix B to Part 1315--Disclosure Form to Report Lobbying

    Authority: 16 U.S.C. 831-831ee; 31 U.S.C. 1352.

    Source: 55 FR 6737 and 6748, Feb. 26, 1990, unless otherwise noted.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                           Subpart A--General



Sec. 1315.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative

[[Page 235]]

agreement shall file with that agency a certification, set forth in 
Appendix A, that the person has not made, and will not make, any payment 
prohibited by paragraph (a) of this section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in Appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in Appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in Appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 1315.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.

[[Page 236]]

    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 1315.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or

[[Page 237]]

    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

Unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

Shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                 Subpart B--Activities by Own Employees



Sec. 1315.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in 
Sec. 1315.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:

[[Page 238]]

    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 1315.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in 
Sec. 1315.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.

[[Page 239]]



Sec. 1315.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C--Activities by Other Than Own Employees



Sec. 1315.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in 
Sec. 1315.100 (a), does not apply in the case of any reasonable payment 
to a person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 1315.110 (a) and (b) 
regarding filing a disclosure form by each person, if required, shall 
not apply with respect to professional or technical services rendered 
directly in the preparation, submission, or negotiation of any 
commitment providing for the United States to insure or guarantee a 
loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                  Subpart D--Penalties and Enforcement



Sec. 1315.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $12,000 and not more than 
$120,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
Appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $12,000 and not more than $120,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent

[[Page 240]]

the imposition of such civil penalty for a failure occurring before that 
date. An administrative action is commenced with respect to a failure 
when an investigating official determines in writing to commence an 
investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraph (a) or (b) of this section shall 
be subject to a civil penalty of $12,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $12,000 and $120,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.

[55 FR 6737 and 6748, Feb. 26, 1990, as amended at 61 FR 55098, Oct. 24, 
1996; 67 FR 9925, Mar. 5, 2002]



Sec. 1315.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.



Sec. 1315.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E--Exemptions



Sec. 1315.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F--Agency Reports



Sec. 1315.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see Appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of

[[Page 241]]

Representatives (whichever such committees have jurisdiction of matters 
involving such information) and to the Committees on Appropriations of 
the Senate and the House of Representatives in accordance with 
procedures agreed to by such committees. Such information shall not be 
available for public inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 1315.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

        Appendix A to Part 1315--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 242]]

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 243]]

       Appendix B to Part 1315--Disclosure Form to Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC05OC91.023


[[Page 244]]


[GRAPHIC] [TIFF OMITTED] TC05OC91.024


[[Page 245]]


[GRAPHIC] [TIFF OMITTED] TC05OC91.025


[[Page 246]]





PART 1316--GENERAL CONDITIONS AND CERTIFICATIONS FOR INCORPORATION IN CONTRACT DOCUMENTS OR ACTIONS--Table of Contents




                     Subpart A--General Information

Sec.
1316.1  Applicability.

            Subpart B--Text of Conditions and Certifications

1316.2  Affirmative action and equal opportunity.
1316.3  Anti-kickback procedures.
1316.4  Buy American Act supply contracts.
1316.5  Clean Air and Water Acts.
1316.6  Discrimination on the basis of age.
1316.7  Drug-free workplace.
1316.8  Employee protected activities.
1316.9  Nuclear energy hazards and nuclear incidents.
1316.10  Officials not to benefit.

    Authority: 16 U.S.C. 831-831dd.

    Source: 58 FR 25930, Apr. 29, 1993, unless otherwise noted.



                     Subpart A--General Information



Sec. 1316.1  Applicability.

    This part sets out the text of certain conditions and certifications 
which may be included by reference in certain TVA contract documents or 
actions. The provisions set out in this part are not automatically 
incorporated in all TVA actions.



            Subpart B--Text of Conditions and Certifications



Sec. 1316.2  Affirmative action and equal opportunity.

    When so indicated in TVA contract documents or actions, the 
following clause is included by reference in such documents or actions:

                Affirmative Action and Equal Opportunity

    (a) To the extent applicable, contract incorporates the following 
provisions: ``Affirmative Action for Disabled Veterans and Veterans of 
the Vietnam Era'' clause, 41 CFR 60-250.4; the ``Affirmative Action for 
Handicapped Workers'' clause, 41 CFR 60-741.4; and the ``Equal 
Opportunity'' clause, 41 CFR 60-1.4. Contractor complies with applicable 
regulatory requirements, including information reports and affirmative 
action programs.
    (b) Certification of Nonsegregated Facilities: (1) By submission of 
its offer, the offeror certifies that it does not and will not maintain 
or provide for employees any segregated facilities at any of its 
establishments, and that it does not and will not permit employees to 
perform their services at any location under its control where 
segregated facilities are maintained. The offeror agrees that a breach 
of this certification is a violation of the Equal Opportunity clause in 
this contract.
    (2) As used in this certification, the term ``segregated 
facilities'' means any waiting rooms, work areas, restrooms and 
washrooms, restaurants and other eating areas, timeclocks, locker rooms 
and other storage or dressing areas, parking lots, drinking fountains, 
recreation or entertainment areas, transportation, or housing facilities 
provided to employees which are segregated by explicit directive or are 
in fact segregated on the basis of race, religion, color, or national 
origin, because of habit, local custom, or otherwise.
    (3) Contractor further agrees that (except where it has obtained 
identical certifications from proposed subcontractors for specific time 
periods) identical certifications will be obtained from proposed 
subcontractors prior to the award of subcontractors exceeding $10,000 
which are not exempt from the provisions of the Equal Opportunity 
clause; that it will retain such certifications in its files; and that 
it will forward the following notice to such proposed subcontractors 
(except where the proposed subcontractors have submitted identical 
certifications for specific time periods):
    Notice to Prospective Subcontractors of Requirement for 
Certifications of Nonsegregated Facilities. A Certification of 
Nonsegregated Facilities must be submitted prior to the award of a 
subcontract exceeding $10,000 which is not exempt from the provision of 
the Equal Opportunity clause. The certification may be submitted either 
for each subcontract or for all subcontracts during a period (i.e., 
quarterly, semiannually, or annually).
    (4) Note: The penalty for making false statements in offers is 
prescribed in Title 18 U.S.C. 1001.

                             (End of clause)



Sec. 1316.3  Anti-kickback procedures.

    When so indicated in TVA contract documents or actions, the 
following clause is included by reference in such documents or actions:

                        Anti-Kickback Procedures

    Contractor shall comply with the following:
    (a) Definitions. As used in this clause, terms shall have the 
meanings defined in the

[[Page 247]]

Anti-Kickback Act of 1986 (41 U.S.C. 51-58) (the Act).
    (b) The Act prohibits any person from--
    (1) Providing or attempting to provide or offering to provide any 
kickback;
    (2) Soliciting, accepting, or attempting to accept any kickback; or
    (3) Including, directly or indirectly, the amount of any kickback in 
the contract price charged by a prime contractor to TVA or in the 
contract price charged by the subcontractor to a prime contractor or 
higher tier subcontractor.
    (c)(1) Contractor shall have in place and follow reasonable 
procedures designed to prevent and detect possible violations described 
in section (b) of this clause in its own operations and direct business 
relationships.
    (2) When Contractor has reasonable grounds to believe that a 
violation described in section (b) of this clause may have occurred, 
Contractor shall promptly report in writing the possible violation. Such 
reports shall be made to the TVA Inspector General.
    (3) Contractor shall cooperate fully with TVA or any other Federal 
agency investigating a possible violation described in section (b) of 
this clause.
    (4) (i) Regardless of the contract tier at which a kickback was 
provided, accepted, or charged under the contract in violation of 
section (b) of this clause, the Contracting Officer may--
    (A) Offset the amount of the kickback against any monies owed by TVA 
under this contract; and/or
    (B) Direct that Contractor withhold from sums owed the subcontractor 
the amount of the kickback.
    (ii) The Contracting Officer may order that monies withheld under 
subsection (c)(4)(i)(B) of this clause be paid over to TVA unless TVA 
has already offset those monies under subsection (c)(4)(i)(A) of this 
clause. In the latter case, Contracting shall notify the Contracting 
Officer when the monies are withheld.
    (5) Contractor agrees to incorporate the substance of this clause, 
including this subsection (c)(5), in all subcontracts under this 
contract.

                             (End of clause)



Sec. 1316.4  Buy American Act supply contracts.

    When so indicated in TVA contract documents or actions, the 
following clause is included by reference in such documents or actions:

                    Buy American Act Supply Contracts

    (a) In TVA's acquisition of end products, the Buy American Act (41 
U.S.C. 10a-10d) provides that preference be given to domestic end 
products. A domestic end product means:
    (1) An unmanufactured end product which has been mined or produced 
in the United States; and
    (2) An end product manufactured in the United States if the cost of 
components thereof which are mined, produced, or manufactured in the 
United States exceeds 50 percent of the cost of all its components.
    (b) Contractor agrees that there will be delivered under this 
contract only domestic end products, except end products:
    (1) Which are for use outside the United States;
    (2) Which TVA determines are not mined, produced, or manufactured in 
the United States in sufficient and reasonably available commercial 
quantities and of a satisfactory quality;
    (3) As to which TVA determines the domestic preference to be 
inconsistent with the public interest; or
    (4) As to which TVA determines the cost to be unreasonable.

                             (End of clause)



Sec. 1316.5  Clean Air and Water Acts.

    When so indicated in TVA contract documents or actions, the 
following clause is included by reference in such documents or actions:

                        Clean Air and Water Acts

    (a) If performance of this contract would involve the use of 
facilities which have given rise to a conviction under section 113(c)(1) 
of the Clean Air Act (42 U.S.C. 7413) or section 309(c) of the Federal 
Water Pollution Control Act (33 U.S.C. 1319), offeror shall include in 
its offer a statement clearly setting forth the facts and circumstances 
of said conviction and shall list the facilities which gave rise to said 
conviction. If no such statement is submitted, submission of an offer 
constitutes certification by the offeror that performance of this 
contract will not involve the use of facilities which have given rise to 
a conviction under section 113(c)(1) of the Clean Air Act or section 
309(c) of the Federal Water Pollution Control Act. As used in this 
clause ``facilities'' shall have the meaning set forth in 40 CFR 15.4.
    (b) TVA will not award a contract to any offeror whose performance 
would involve the use of any facility or facilities which have given 
rise to a conviction as set forth in paragraph (a) of this clause except 
to the extent TVA, in its sole judgment, determines that such contract 
is exempt at the time of contract award from the provisions of 40 CFR 
part 15 as set forth therein.
    (c) A condition of award of this contract is that contractor shall 
notify the Contracting

[[Page 248]]

Officer in writing of the receipt of any communication from the U.S. 
Environmental Protection Agency (EPA) indicating that a facility to be 
utilized for this contract is under consideration to be listed on the 
EPA List of Violating Facilities. Prompt notification shall be required 
prior to contract award.

                             (End of clause)



Sec. 1316.6  Discrimination on the basis of age.

    When so indicated in TVA contract documents or actions, the 
following clause is included by reference in such documents or actions:

                   Discrimination On The Basis Of Age

    Executive Order 11141, 3 CFR, 1964-1965 Comp., p. 179, states that 
it is the policy of the Executive Branch of the United States that: 
Contractors and subcontractors engaged in the performance of Federal 
contracts shall not, in connection with the employment, advancement, or 
discharge of employees, or in connection with the terms, conditions, or 
privileges of their employment, discriminate against persons because of 
their age except upon the basis of a bona fide occupational 
qualification, retirement plan, or statutory requirement; and that 
contractors and subcontractors, or persons acting on their behalf, shall 
not specify, in solicitations or advertisements for employees to work on 
Government contracts, a maximum age limit for such employment unless the 
specified maximum age limit is based upon a bona fide occupational 
qualification, retirement plan, or statutory requirement.

                             (End of clause)



Sec. 1316.7  Drug-free workplace.

    When so indicated in TVA contract documents or actions, the 
following clause is included by reference in such documents or actions:

                           Drug-Free Workplace

    (a) Definitions. As used in this provision:
    Controlled substance means a controlled substance in schedules I 
through V of Section 202 of the Controlled Substances Act (21 U.S.C. 
812) and as further defined in regulations at 21 CFR 1308.11 through 
1308.15
    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, possession, 
or use of any controlled substance.
    Drug-free workplace means a site, including TVA premises, for the 
performance of work done in connection with a specific contract at which 
employees of Contractor are prohibited from engaging in the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance.
    Employee means an employee of a contractor directly engaged in the 
performance of work under a Government contract.
    Individual means an offeror/contractor that has no more than one 
employee, including the offeror/contractor.
    (b) Offerors Other than Individuals. By submission of its offer, the 
offeror, if other than an individual, who is making an offer that equals 
or exceeds $25,000, certifies and agrees that, with respect to all 
employees of the offeror to be employed under a contract resulting from 
this solicitation, it will--
    (1) Publish a statement notifying such employees that the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance is prohibited in Contractor's workplace and 
specifying the actions that will be taken against employees for 
violations of such prohibition;
    (2) Establish a drug-free awareness program to inform such employees 
about--
    (i) The dangers of drug abuse in the workplace;
    (ii) Contractor's policy of maintaining a drug-free workplace;
    (iii) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (iv) The penalties that may be imposed upon employees for drug abuse 
violations occurring in the workplace;
    (3) Provide all employees engaged in performance of the contract 
with a copy of the statement required by paragraph (b)(1) of this 
section;
    (4) Notify such employees in the statement required by paragraph 
(b)(1) of this section that, as a condition of continued employment on 
the contract resulting from this solicitation, the employee will--
    (i) Abide by the terms of the statement; and
    (ii) Notify Contractor of any criminal drug statute conviction for a 
violation occurring in the workplace no later than 5 days after such 
conviction;
    (5) Notify the Contracting Officer within 10 days after receiving 
notice under paragraph (b)(4)(ii) of this section from an employee or 
otherwise receiving actual notice of such conviction;
    (6) Within 30 days after receiving notice under subsection (b)(4) of 
this section of a conviction, impose the following sanctions or remedial 
measures on any employee who is convicted of drug abuse violations 
occurring in the workplace:

[[Page 249]]

    (i) Take appropriate personnel action against such employee, up to 
and including termination; or
    (ii) Require such employee to satisfactorily participate in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency;
    (7) Make a good-faith effort to maintain a drug-free workplace 
through implementation of subsections (b)(1) through (b)(6) of this 
provision.
    (c) Individuals. By submission of its offer, the offeror, if an 
individual who is making an offer of any dollar value, certifies and 
agrees that the offeror will not engage in the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
in the performance of the contract resulting from this solicitation.
    (d) Enforcement. Failure of the offeror to provide the certification 
required by section (b) or (c) of this provision, renders the offeror 
unqualified and ineligible for award. Failure of Contractor to comply 
with the requirements of subsections (b)(1) through (b)(7) or section 
(c) shall constitute a material breach of contract entitling TVA to 
suspend payments, terminate the contract, suspend or debar Contractor 
from Government contracting in accordance with subsection 5152(b)(2) of 
the Drug-Free Workplace Act of 1988 (41 U.S.C. 701(b)(2)), or take such 
other action as may be in accordance with law or the contract.
    (e) In addition to other remedies available to the Government, the 
certification in sections (b) and (c) of this provision concerns a 
matter within the jurisdiction of an agency of the United States, and 
making of a false, fictitious, or fraudulent certification may render 
the maker subject to prosecution under 18 U.S.C. 1001.

                             (End of clause)



Sec. 1316.8  Employee protected activities.

    When so indicated in TVA contract documents or actions, the 
following clause is included by reference in such documents or actions:

                      Employee Protected Activities

    (Applicable to contracts for goods or services delivered to nuclear 
facilities or otherwise relating to Nuclear Regulatory Commission (NRC) 
licensed activities.)
    (a) Contractor shall comply with Section 211 of the Energy 
Reorganization Act of 1974 (42 U.S.C. 5851), as amended, which prohibits 
discrimination against employees for engaging in certain protected 
activities. The Secretary of Labor has determined that 
``discrimination'' means discharge or any other adverse actions that 
relate to compensation, terms, conditions, and privileges of employment; 
the term ``protected activities'' includes, among other things, 
employees raising nuclear safety or quality controls complaints either 
internally to their employer or to the NRC. Contractor shall 
aggressively pursue any employee allegation of discrimination and shall 
fully investigate such allegations. Contractor shall notify the TVA 
Concerns Resolution Staff Site Representative of such allegation or 
complaint in writing, together with a copy of any complaint. Contractor 
shall provide TVA any investigative reports that it may prepare and 
shall also provide to TVA a full written description of any management 
action taken in response to any such allegation or complaint. In 
circumstances where any such allegation or complaint also charges TVA 
employees with involvement in any discriminatory activities, contractor 
shall cooperate fully with TVA counsel in its representation.
    (b) Contractor shall ensure that no agreement affecting 
compensation, terms, conditions, and privileges of employment, 
including, but not limited to, any agreement to settle a complaint filed 
by an employee or former employee of the Contractor with the Department 
of Labor pursuant to Section 211 of the Energy Reorganization Act of 
1974, as amended, may contain any provision which would prohibit, 
restrict, or otherwise discourage an employee or former employee from 
participating in any protected activity as described in the ``Employee 
Protection'' regulations of NRC, 10 CFR 50.7, including, but not limited 
to, providing information to NRC on potential violations of the NRC's 
regulations or other matters within NRC's regulatory responsibilities.
    (c) Any breach of this provision shall be a material breach of the 
contract. In the event NRC imposes a civil penalty against TVA as a 
result of a breach of this provision, such a civil penalty is considered 
by the parties to be direct and not special or consequential damages.
    (d) Contractor agrees to place this provision, along with the flow-
down requirement of this sentence, in all subcontracts of any tier 
entered into pursuant to this contract.

                             (End of clause)



Sec. 1316.9  Nuclear energy hazards and nuclear incidents.

    When so indicated in TVA contract documents or actions, the 
following clause is included by reference in such documents or actions:

              Nuclear Energy Hazards and Nuclear Incidents

    (Applicable only to contracts for goods or services delivered to 
nuclear plants.)

[[Page 250]]

    (a) Prior to, or at the time of shipment of the first nuclear fuel 
to the TVA nuclear facility, TVA will furnish nuclear liability 
protection in accordance with Section 170 of the Atomic Energy Act (42 
U.S.C. 2210) and applicable regulations of the Nuclear Regulatory 
Commission. Should this system of protection be repealed or changed, TVA 
would undertake to maintain in effect during the period of operation of 
the plant, to the extent available on reasonable terms, liability 
protection which would not result in a material impairment of the 
protection afforded to Contractor and its suppliers under existing 
system.
    (b) TVA waives any claim it might have against Contractor or its 
subcontractors because of damage to, loss of, or loss of use of any 
property at the site of the TVA nuclear facility resulting from nuclear 
energy hazards or nuclear incidents. This provision shall not affect 
Contractor's obligation under the ``Warranty'' provision of this 
contract.
    (c) TVA will indemnify Contractor and its subcontractors and save 
them harmless from any claims, losses, or liability arising as a result 
of damage to, loss of, or loss of use of any property at the site of the 
TVA nuclear facility resulting from nuclear energy hazards or nuclear 
incidents. In return for this indemnification, Contractor waives any 
claim it might have against any third party because of damage to, loss 
of, or loss of use of its property at the site of the TVA nuclear 
facility resulting from nuclear energy hazards or nuclear incidents.
    (d) The foregoing waiver and indemnification provisions will apply 
to the full extent permitted by law and regardless of fault. The 
subcontractors referred to above include any of Contractor's suppliers 
of material, equipment, or services for the work, regardless of tier.
    (e) For purposes of these provisions, the following definitions 
shall apply: Nuclear energy hazards shall mean the hazardous properties 
of nuclear material. Hazardous properties shall include radioactive, 
toxic, or explosive properties of nuclear material. Nuclear material 
shall include source material, special nuclear material or by-product 
material as those are defined in the Atomic Energy Act (42 U.S.C. 2014). 
Nuclear incident shall have the meaning given that term in the Atomic 
Energy Act (42 U.S.C. 2014(q)).

                             (End of clause)



Sec. 1316.10  Officials not to benefit.

    When so indicated in TVA contract documents or actions, the 
following clause is included by reference in such documents or actions:

                        Officials Not To Benefit

    No member of or delegate to Congress or Resident Commissioner, or 
any officer, employee, special Government employee, or agent of TVA 
shall be admitted to any share or part of this agreement or to any 
benefit that may arise therefrom unless it be made with a corporation 
for its general benefit; nor shall Contractor offer or give, directly or 
indirectly, to any officer, employee, special Government employee, or 
agent of TVA, any gift, gratuity, favor, entertainment, loan, or any 
other thing of monetary value, except as provided in 5 CFR part 2635. 
Breach of this clause shall constitute a material breach of this 
contract, and TVA shall have the right to exercise all remedies provided 
in this contract or at law.

                             (End of clause)



PART 1317--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A--Introduction

Sec.
1317.100  Purpose and effective date.
1317.105  Definitions.
1317.110  Remedial and affirmative action and self-evaluation.
1317.115  Assurance required.
1317.120  Transfers of property.
1317.125  Effect of other requirements.
1317.130  Effect of employment opportunities.
1317.135  Designation of responsible employee and adoption of grievance 
          procedures.
1317.140  Dissemination of policy.

                           Subpart B--Coverage

1317.200  Application.
1317.205  Educational institutions and other entities controlled by 
          religious organizations.
1317.210  Military and merchant marine educational institutions.
1317.215  Membership practices of certain organizations.
1317.220  Admissions.
1317.225  Educational institutions eligible to submit transition plans.
1317.230  Transition plans.
1317.235  Statutory amendments.

     Subpart C--Discrimination on the Basis of Sex in Admission and 
               Recruitment Prohibited 1317.300 Admission.

1317.305  Preference in admission.

[[Page 251]]

1317.310  Recruitment.

 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

1317.400  Education programs or activities.
1317.405  Housing.
1317.410  Comparable facilities.
1317.415  Access to course offerings.
1317.420  Access to schools operated by LEAs.
1317.425  Counseling and use of appraisal and counseling materials.
1317.430  Financial assistance.
1317.435  Employment assistance to students.
1317.440  Health and insurance benefits and services.
1317.445  Marital or parental status.
1317.450  Athletics.
1317.455  Textbooks and curricular material.

Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

1317.500  Employment.
1317.505  Employment criteria.
1317.510  Recruitment.
1317.515  Compensation.
1317.520  Job classification and structure.
1317.525  Fringe benefits.
1317.530  Marital or parental status.
1317.535  Effect of state or local law or other requirements.
1317.540  Advertising.
1317.545  Pre-employment inquiries.
1317.550  Sex as a bona fide occupational qualification.

                          Subpart F--Procedures

1317.600  Notice of covered programs.
1317.605  Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52877, Aug. 30, 2000, unless otherwise noted.



                         Subpart A--Introduction



Sec. 1317.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec. 1317.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Manager, Supplier and Diverse 
Business Relations.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or

[[Page 252]]

extended directly to such students for payment to that entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at 
Secs. 1317.100 through 1317.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972,

[[Page 253]]

20 U.S.C. 1681(a)(2), under which an educational institution operates in 
making the transition from being an educational institution that admits 
only students of one sex to being one that admits students of both sexes 
without discrimination.

[65 FR 52865 and 52877, 52878, Aug. 30, 2000]



Sec. 1317.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 1317.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with 
Sec. 1317.110(a) to eliminate existing discrimination on the basis of 
sex or to eliminate the effects of past discrimination whether occurring 
prior to or subsequent to the submission to the designated agency 
official of such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during

[[Page 254]]

which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 1317.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Secs. 1317.205 through 1317.235(a).



Sec. 1317.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec. 1317.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec. 1317.135  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt

[[Page 255]]

and equitable resolution of student and employee complaints alleging any 
action that would be prohibited by these Title IX regulations.



Sec. 1317.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Secs. 1317.300 through 1317.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec. 1317.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B--Coverage



Sec. 1317.200  Application.

    Except as provided in Secs. 1317.205 through 1317.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec. 1317.205  Educational institutions and other entities controlled by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict

[[Page 256]]

with a specific tenet of the religious organization.



Sec. 1317.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec. 1317.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 1317.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Secs. 1317.225 and 1317.230, and Secs. 1317.300 through 
1317.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Secs. 1317.300 through .310. Except as provided 
in paragraphs (d) and (e) of this section, Secs. 1317.300 through 
1317.310 apply to each recipient. A recipient to which Secs. 1317.300 
through 1317.310 apply shall not discriminate on the basis of sex in 
admission or recruitment in violation of Secs. 1317.300 through 
1317.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Secs. 1317.300 through 1317.310 apply only to institutions of vocational 
education, professional education, graduate higher education, and public 
institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Secs. 1317.300 through 1317.310 do not apply to any public institution 
of undergraduate higher education that traditionally and continually 
from its establishment has had a policy of admitting students of only 
one sex.



Sec. 1317.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Secs. 1317.300 through 1317.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Secs. 1317.300 through 
1317.310.



Sec. 1317.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 1317.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the

[[Page 257]]

plan is applicable, and the name, address, and telephone number of the 
person to whom questions concerning the plan may be addressed. The 
person who submits the plan shall be the chief administrator or 
president of the institution, or another individual legally authorized 
to bind the institution to all actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 1317.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Secs. 1317.300 through 
1317.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 1317.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 1317.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;

[[Page 258]]

    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C--Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 1317.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Secs. 1317.300 through Secs. 1317.310 apply, except 
as provided in Secs. 1317.225 and Secs. 1317.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Secs. 1317.300 through 1317.310 apply 
shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests

[[Page 259]]

or criteria that do not have such a disproportionately adverse effect 
are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Secs. 1317.300 through 1317.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 1317.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 1317.305  Preference in admission.

    A recipient to which Secs. 1317.300 through 1317.310 apply shall not 
give preference to applicants for admission, on the basis of attendance 
at any educational institution or other school or entity that admits as 
students only or predominantly members of one sex, if the giving of such 
preference has the effect of discriminating on the basis of sex in 
violation of Secs. 1317.300 through 1317.310.



Sec. 1317.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which 
Secs. 1317.300 through 1317.310 apply shall not discriminate on the 
basis of sex in the recruitment and admission of students. A recipient 
may be required to undertake additional recruitment efforts for one sex 
as remedial action pursuant to Sec. 1317.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to 
Sec. 1317.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Secs. 1317.300 through 1317.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Secs. 1317.300 through 1317.310.



 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 1317.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
1317.400 through 1317.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Secs. 1317.300 through 1317.310 do not 
apply, or an entity, not a recipient, to which Secs. 1317.300 through 
1317.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Secs. 1317.400 
through 1317.455, in providing any aid, benefit, or service to a 
student, a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;

[[Page 260]]

    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 1317.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.

[[Page 261]]



Sec. 1317.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 1317.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 1317.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 1317.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one

[[Page 262]]

sex, the recipient shall take such action as is necessary to assure 
itself that such disproportion is not the result of discrimination on 
the basis of sex in counseling or appraisal materials or by counselors.



Sec. 1317.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 1317.450.



Sec. 1317.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates 
Secs. 1317.500 through 1317.550.



Sec. 1317.440  Health and insurance benefits and services.

    Subject to Sec. 1317.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Secs. 1317.500 through 1317.550 if it were provided to employees 
of the recipient.

[[Page 263]]

This section shall not prohibit a recipient from providing any benefit 
or service that may be used by a different proportion of students of one 
sex than of the other, including family planning services. However, any 
recipient that provides full coverage health service shall provide 
gynecological care.



Sec. 1317.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 1317.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 1317.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;

[[Page 264]]

    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec. 1317.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 1317.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Secs. 1317.500 
through 1317.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Secs. 1317.500 through 1317.550 
apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure,

[[Page 265]]

demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 1317.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 1317.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Secs. 1317.500 through 1317.550.



Sec. 1317.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 1317.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 1317.550.



Sec. 1317.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 1317.515.
    (b) Prohibitions. A recipient shall not:

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    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 1317.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 1317235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 1317.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Secs. 1317.500 through 1317.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 1317.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec. 1317.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.

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Sec. 1317.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Secs. 1317.500 
through 1317.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F--Procedures



Sec. 1317.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec. 1317.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 18 CFR part 1302.

[65 FR 52878, Aug. 30, 2000]


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                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected



[[Page 271]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2003)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2 [Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)

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    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--100)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)

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        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of