[Title 18 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2006 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          18


          Parts 1 to 399

                         Revised as of April 1, 2006


          Conservation of Power and Water Resources
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2006
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 18:
          Chapter I--Federal Energy Regulatory Commission, 
          Department of Energy                                       3
  Finding Aids:
      Material Approved for Incorporation by Reference........    1057
      Table of CFR Titles and Chapters........................    1059
      Alphabetical List of Agencies Appearing in the CFR......    1077
      List of CFR Sections Affected...........................    1087

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 18 CFR 1.101 refers 
                       to title 18, part 1, 
                       section 101.

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

[[Page v]]



                               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 
regulation. Each title is divided into chapters which usually bear the 
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 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 2006), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of textual material 
appearing in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
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ELECTRONIC SERVICES

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    The Office of the Federal Register also offers a free service on the 
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register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 2006.

[[Page ix]]



                               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, 2006.

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

    For this volume, Carol A. Conroy was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page 1]]



           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES




                   (This book contains parts 1 to 399)

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

chapter i--Federal Energy Regulatory Commission, Department 
  of Energy.................................................           1


Abbreviations Used in This Chapter:
    M.c.f. = Thousand cubic feet. B.t.u. = British thermal units. ICC = 
  Interstate Commerce Commission.

[[Page 3]]



  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
-  --------------------------------------------------------------------

                       SUBCHAPTER A--GENERAL RULES
Part                                                                Page
1               Rules of general applicability..............           9
1b              Rules relating to investigations............           9
1c              Prohibition of energy market manipulation...          14
2               General policy and interpretations..........          14
3               [Reserved]
3a              National security information...............          43
3b              Collection, maintenance, use, and 
                    dissemination of records of identifiable 
                    personal information....................          56
3c              Standards of conduct........................          67
          SUBCHAPTER B--REGULATIONS UNDER THE FEDERAL POWER ACT
4               Licenses, permits, exemptions, and 
                    determination of project costs..........          69
5               Integrated license application process......         139
6               Surrender or termination of license.........         171
8               Recreational opportunities and development 
                    at licensed projects....................         172
9               Transfer of license or lease of project 
                    property................................         174
11              Annual charges under Part I of the Federal 
                    Power Act...............................         175
12              Safety of water power projects and project 
                    works...................................         191
16              Procedures relating to takeover and 
                    relicensing of licensed projects........         204
20              Authorization of the issuance of securities 
                    by licensees and companies subject to 
                    sections 19 and 20 of the Federal Power 
                    Act.....................................         226
24              Declaration of intention....................         227
25              Application for vacation of withdrawal and 
                    for determination permitting restoration 
                    to entry................................         227
32              Interconnection of facilities...............         229
33              Applications under Federal Power Act Section 
                    203.....................................         230
34              Application for authorization of the 
                    issuance of securities or the assumption 
                    of liabilities..........................         241

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35              Filing of rate schedules and tariffs........         245
36              Rules concerning applications for 
                    transmission services under section 211 
                    of the Federal Power Act................         303
37              Open access same-time information systems...         304
39              Rules concerning certification of the 
                    Electric Reliability Organization; and 
                    procedures for the establishment, 
                    approval, and enforcement of electric 
                    reliability standards...................         310
41              Accounts, records, memoranda and disposition 
                    of contested audit findings and proposed 
                    remedies................................         319
45              Application for authority to hold 
                    interlocking positions..................         321
46              Public utility filing requirements and 
                    filing requirements for persons holding 
                    interlocking positions..................         327
                SUBCHAPTER C--ACCOUNTS, FEDERAL POWER ACT
101             Uniform system of accounts prescribed for 
                    public utilities and licensees subject 
                    to the provisions of the Federal Power 
                    Act.....................................         331
104             Note [Reserved]
125             Preservation of records of public utilities 
                    and licensees...........................         461
   SUBCHAPTER D--APPROVED FORMS, FEDERAL POWER ACT AND PUBLIC UTILITY 
                     REGULATORY POLICIES ACT OF 1978
131             Forms.......................................         469
141             Statements and reports (schedules)..........         478
142-149         [Reserved]

             SUBCHAPTER E--REGULATIONS UNDER NATURAL GAS ACT
152             Application for exemption from the 
                    provisions of the Natural Gas Act 
                    pursuant to section 1(c) thereof and 
                    issuance of blanket certificates 
                    authorizing certain sales for resale....         485
153             Applications for authorization to construct, 
                    operate, or modify facilities used for 
                    the export or import of natural gas.....         486
154             Rate schedules and tariffs..................         491
156             Applications for orders under section 7(a) 
                    of the Natural Gas Act..................         522
157             Applications for certificates of public 
                    convenience and necessity and for orders 
                    permitting and approving abandonment 
                    under section 7 of the Natural Gas Act..         528

[[Page 5]]

158             Accounts, records, memoranda and disposition 
                    of contested audit findings and proposed 
                    remedies................................         569
                 SUBCHAPTER F--ACCOUNTS, NATURAL GAS ACT
201             Uniform system of accounts prescribed for 
                    natural gas companies subject to the 
                    provisions of the Natural Gas Act.......         572
204             Note [Reserved]
225             Preservation of records of natural gas 
                    companies...............................         718
              SUBCHAPTER G--APPROVED FORMS, NATURAL GAS ACT
250             Forms.......................................         726
260             Statements and reports (schedules)..........         729
    SUBCHAPTER H--PROCEDURES GOVERNING DETERMINATIONS FOR TAX CREDIT 
                                PURPOSES
270             Determination procedures....................         735
SUBCHAPTER I--OTHER REGULATIONS UNDER THE NATURAL GAS POLICY ACT OF 1978 
                         AND RELATED AUTHORITIES
280             General provisions applicable to Subchapter 
                    I.......................................         747
281             Natural gas curtailment under the Natural 
                    Gas Policy Act of 1978..................         747
284             Certain sales and transportation of natural 
                    gas under the Natural Gas Policy Act of 
                    1978 and related authorities............         759
286             Accounts, records, memoranda and disposition 
                    of contested audit findings and proposed 
                    remedies................................         784
 SUBCHAPTER J--REGULATIONS UNDER THE POWERPLANT AND INDUSTRIAL FUEL USE 
                               ACT OF 1978
287             Rules generally applicable to powerplant and 
                    industrial fuel use.....................         787
 SUBCHAPTER K--REGULATIONS UNDER THE PUBLIC UTILITY REGULATORY POLICIES 
                               ACT OF 1978
290             Collection of cost of service information 
                    under section 133 of the Public Utility 
                    Regulatory Policies Act of 1978.........         788
292             Regulations under sections 201 and 210 of 
                    the Public Utility Regulatory Policies 
                    Act of 1978 with regard to small power 
                    production and cogeneration.............         789

[[Page 6]]

294             Procedures for shortages of electric energy 
                    and capacity under section 206 of the 
                    Public Utility Regulatory Policies Act 
                    of 1978.................................         807
  SUBCHAPTER L--REGULATIONS FOR FEDERAL POWER MARKETING ADMINISTRATIONS
300             Confirmation and approval of the rates of 
                    Federal power marketing administrations.         809
301             Average system cost methodology for sales 
                    from utilities to Bonneville Power 
                    Administration under Northwest Power Act         815
                       SUBCHAPTERS M--O [RESERVED]
       SUBCHAPTER P--REGULATIONS UNDER THE INTERSTATE COMMERCE ACT
340             Rate schedules and tariffs..................         824
341             Oil pipeline tariffs: Oil pipeline companies 
                    subject to section 6 of the Interstate 
                    Commerce Act............................         825
342             Oil pipeline rate methodologies and 
                    procedures..............................         833
343             Procedural rules applicable to oil pipeline 
                    proceedings.............................         835
344             Filing quotations for U.S. Government 
                    shipments at reduced rates..............         836
346             Oil pipeline cost-of-service filing 
                    requirements............................         837
347             Oil pipeline depreciation studies...........         839
348             Oil pipeline applications for market power 
                    determinations..........................         840
349             Disposition of contested audit findings and 
                    proposed remedies.......................         842
        SUBCHAPTER Q--ACCOUNTS UNDER THE INTERSTATE COMMERCE ACT
351             Financial statements released by carriers...         845
352             Uniform systems of accounts prescribed for 
                    oil pipeline companies subject to the 
                    provisions of the Interstate Commerce 
                    Act.....................................         845
          SUBCHAPTER R--APPROVED FORMS, INTERSTATE COMMERCE ACT
356             Preservation of records for oil pipeline 
                    companies...............................         886

[[Page 7]]

357             Annual special or periodic reports: Carriers 
                    subject to part I of the Interstate 
                    Commerce Act............................         890
      SUBCHAPTER S--STANDARDS OF CONDUCT FOR TRANSMISSION PROVIDERS
358             Standards of conduct........................         893
                         SUBCHAPTER T [RESERVED]
 SUBCHAPTER U--REGULATIONS UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT 
                                 OF 2005
366             Public Utility Holding Company Act of 2005..         899
                   SUBCHAPTER W--REVISED GENERAL RULES
375             The Commission..............................         908
376             Organization, mission, and functions; 
                    operations during emergency conditions..         929
380             Regulations implementing the National 
                    Environmental Policy Act................         931
381             Fees........................................         955
382             Annual charges..............................         961
                     SUBCHAPTER X--PROCEDURAL RULES
385             Rules of practice and procedure.............         965
388             Information and requests....................        1039
389             OMB control numbers for Commission 
                    information collection requirements.....        1051
390             Electronic registration.....................        1053
391-399         [Reserved]

[[Page 9]]



                       SUBCHAPTER A_GENERAL RULES


PART 1_RULES OF GENERAL APPLICABILITY--Table of Contents

             Subpart A_Definitions and Rules of Construction

Sec.
1.101 Definitions.
1.102 Words denoting number, gender and so forth.

    Authority: Dept. of Energy Organization Act, 42 U.S.C. 7101-7352; 
E.O. 12009, 3 CFR 142 (1978); Administrative Procedure Act, 5 U.S.C. Ch. 
5.



             Subpart A_Definitions and Rules of Construction



Sec. 1.101  Definitions.

    The definitions set forth in this section apply for purposes of this 
chapter, except as otherwise provided in this chapter:
    (a) Commission means the Federal Energy Regulatory Commission.
    (b) Chairman means the Chairman of the Commission.
    (c) Commissioner and Member mean a member of the Commission.
    (d) Secretary means the Secretary of the Commission.
    (e) Executive Director means the Executive Director of the 
Commission.
    (f) General Counsel means the General Counsel of the Commission.
    (g) DOE Act means the Department of Energy Organization Act.
    (h) DOE means the Department of Energy.
    (i) Administrative law judge means an officer appointed under 
section 3105 of title 5 of the United States Code.
    (j) Attorney means an attorney admitted to practice before the 
Supreme Court of the United States or the highest court of any State, 
territory of the United States, or the District of Columbia, or any 
other person with the requisite qualifications to represent others, who 
acts in a representative capacity for any participant before the 
Commission.
    (k) State Commission means the regulatory body of any State or 
municipality having jurisdiction to regulate rates or charges for the 
sale of electric energy or natural gas to consumers or for the 
transportation of oil by pipeline within the State or municipality.
    (l) Oath includes affirmation and sworn includes affirmed.

[Order 225, 47 FR 19022, May 3, 1982; 48 FR 786, Jan. 7, 1983]



Sec. 1.102  Words denoting number, gender and so forth.

    In determining the meaning of any provision of this chapter, unless 
the context indicates otherwise:
    (a) The singular includes the plural;
    (b) The plural includes the singular;
    (c) The present tense includes the future tense; and
    (d) Words of one gender include the other gender.

[Order 225, 47 FR 19022, May 3, 1982]



PART 1b_RULES RELATING TO INVESTIGATIONS--Table of Contents

Sec.
1b.1 Definitions.
1b.2 Scope.
1b.3 Scope of investigations.
1b.4 Types of investigations.
1b.5 Formal investigations.
1b.6 Preliminary investigations.
1b.7 Procedure after investigation.
1b.8 Requests for Commission investigations.
1b.9 Confidentiality of investigations.
1b.10 By whom conducted.
1b.11 Limitation on participation.
1b.12 Transcripts.
1b.13 Powers of persons conducting formal investigations.
1b.14 Subpoenas.
1b.15 Non-compliance with compulsory processes.
1b.16 Rights of witnesses.
1b.17 Appearance and practice before the Commission.
1b.18 Right to submit statements.
1b.19 Submissions.
1b.20 Request for confidential treatment.
1b.21 Enforcement hotline.

    Authority: 15 U.S.C. 717 et seq.; 16 U.S.C. 792 et seq.; 49 U.S.C. 
60502; 49 A.P. U.S.C. 1-85; 42 U.S.C. 7101-7352; E.O. 12009, 42 FR 
46267.

    Source: 43 FR 27174, June 23, 1978, unless otherwise noted.

[[Page 10]]



Sec. 1b.1  Definitions.

    For purposes of this part--
    (a) Formal investigation means an investigation instituted by a 
Commission Order of Investigation.
    (b) Preliminary Investigation means an inquiry conducted by the 
Commission or its staff, other than a formal investigation.
    (c) Investigating officer means the individual(s) designated by the 
Commission in an Order of Investigation as Officer(s) of the Commission.
    (d) Enforcement Hotline is a forum in which to address quickly and 
informally any matter within the Commission's jurisdiction concerning 
natural gas pipelines, oil pipelines, electric utilities and 
hydroelectric projects.

[43 FR 27174, June 23, 1978, as amended by Order 602, 64 FR 17097, Apr. 
8, 1999]



Sec. 1b.2  Scope.

    This part applies to investigations conducted by the Commission but 
does not apply to adjudicative proceedings.



Sec. 1b.3  Scope of investigations.

    The Commission may conduct investigations relating to any matter 
subject to its jurisdiction.



Sec. 1b.4  Types of investigations.

    Investigations may be formal or preliminary, and public or private.



Sec. 1b.5  Formal investigations.

    The Commission may, in its discretion, initiate a formal 
investigation by issuing an Order of Investigation. Orders of 
Investigation will outline the basis for the investigation, the matters 
to be investigated, the officer(s) designated to conduct the 
investigation and their authority. The director of the office 
responsible for the investigation may add or delete Investigating 
Officers in the Order of Investigation.



Sec. 1b.6  Preliminary investigations.

    The Commission or its staff may, in its discretion, initiate a 
preliminary investigation. In such investigations, no process is issued 
or testimony compelled. Where it appears from the preliminary 
investigation that a formal investigation is appropriate, the staff will 
so recommend to the Commission.



Sec. 1b.7  Procedure after investigation.

    Where it appears that there has been or may be a violation of any of 
the provisions of the acts administered by the Commission or the rules, 
opinions or orders thereunder, the Commission may institute 
administrative proceedings, initiate injunctive proceedings in the 
courts, refer matters, where appropriate, to the other governmental 
authorities, or take other appropriate action.



Sec. 1b.8  Requests for Commission investigations.

    (a) Any individual, partnership, corporation, association, 
organization, or other Federal or State governmental entity, may request 
the Commission to institute an investigation.
    (b) Requests for investigations should set forth the alleged 
violation of law with supporting documentation and information as 
completely as possible. No particular forms or formal procedures are 
requested.
    (c) It is the Commission's policy not to disclose the name of the 
person or entity requesting an investigation except as required by law, 
or where such disclosure will aid the investigation.



Sec. 1b.9  Confidentiality of investigations.

    All information and documents obtained during the course of an 
investigation, whether or not obtained pursuant to subpoena, and all 
investigative proceedings shall be treated as nonpublic by the 
Commission and its staff except to the extent that (a) the Commission 
directs or authorizes the public disclosure of the investigation; (b) 
the information or documents are made a matter of public record during 
the course of an adjudicatory proceeding; or (c) disclosure is required 
by the Freedom of Information Act, 5 U.S.C. 552. Procedures by which 
persons submitting information to the Commission during the course of an 
investigation may specifically seek confidential treatment of 
information for purposes of Freedom of Information Act disclosure are 
set forth in 18 CFR part 3b and Sec. 1b.20. A request for confidential 
treatment of information for purposes of Freedom of Information Act 
disclosure shall not, however, prevent disclosure for law enforcement

[[Page 11]]

purposes or when disclosure is otherwise found appropriate in the public 
interest and permitted by law.



Sec. 1b.10  By whom conducted.

    Formal Commission investigations are conducted by the Commission or 
by an individual(s) designated and authorized in the Order of 
Investigation. Investigating Officers are officers within the meaning of 
the statutes administered by the Commission and are authorized to 
perform the duties of their office in accordance with the laws of the 
United States and the regulations of the Commission. Investigating 
Officers shall have such duties as the Commission may specify in an 
Order of Investigation.



Sec. 1b.11  Limitation on participation.

    There are no parties, as that term is used in adjudicative 
proceedings, in an investigation under this part and no person may 
intervene or participate as a matter of right in any investigation under 
this part. Section 2.72 of the rules is specifically not applicable to 
private investigations conducted by the Commission or its staff.



Sec. 1b.12  Transcripts.

    Transcripts, if any, of investigative testimony shall be recorded 
solely by the official reporter, or by any other person or means 
designated by the investigating officer. A witness who has given 
testimony in an investigation shall be entitled, upon written request, 
to procure a transcript of the witness' own testimony on payment of the 
appropriate fees, except that in a non-public formal investigation, the 
office responsible for the investigation may for good cause deny such 
request. In any event, any witness or his counsel, upon proper 
identification, shall have the right to inspect the official transcript 
of the witness' own testimony. This provision supersedes Sec. 
385.1904(b) of this chapter.

[43 FR 27174, June 23, 1978, as amended by Order 225, 47 FR 19054, May 
3, 1982]



Sec. 1b.13  Powers of persons conducting formal investigations.

    Any member of the Commission or the Investigating Officer, in 
connection with any formal investigation ordered by the Commission, may 
administer oaths and affirmations, subpoena witnesses, compel their 
attendance, take evidence, and require the production of any books, 
papers, correspondence, memoranda, contracts, agreements or other 
records relevant or material to the investigation.



Sec. 1b.14  Subpoenas.

    (a) Service of a subpoena upon a person named therein shall be made 
be the investigating officer (1) by personal delivery, (2) by certified 
mail, (3) by leaving a copy thereof at the principle office or place of 
business of the person to be served, (4) or by delivery to any person 
designated as agent for service or the person's attorney.
    (b) At the time for producing documents subpoenaed in an 
investigation, the subpoenaed party shall submit a statement stating 
that, if true, such person has made a diligent search for the subpoenaed 
documents and is producing all the documents called for by the subpoena. 
If any subpoenaed document(s) are not produced for any reason, the 
subpoenaed party shall state the reason therefor.
    (c) If any subpoenaed documents in an investigation are withheld 
because of a claim of the attorney-client privilege, the subpoenaed 
party shall submit a list of such documents which shall, for each 
document, identify the attorney involved, the client involved, the date 
of the document, the person(s) shown on the document to have prepared 
and/or sent the document, and the person(s) shown on the document to 
have received copies of the document.



Sec. 1b.15  Non-compliance with compulsory processes.

    In cases of failure to comply with Commission compulsory processes, 
appropriate action may be initiated by the Commission or the Attorney 
General, including but not limited to actions for enforcement or the 
imposition of penalties.



Sec. 1b.16  Rights of witnesses.

    (a) Any person who is compelled or requested to furnish documentary 
evidence or testimony in a formal investigation shall, upon request, be 
shown

[[Page 12]]

the Commission's Order of Investigation. Copies of Orders of 
Investigation shall not be furnished, for their retention, to such 
persons requesting the same except with the express approval of the 
director of the office responsible for the investigation. Such approval 
shall not be given unless the director of the office responsible for the 
investigation, in the director's discretion is satisfied that there 
exist reasons consistent with the protection of privacy of persons 
involved in the investigation and with the unimpeded conduct of the 
investigation.
    (b) Any person compelled to appear, or who appears in person at a 
formal investigation by request or permission of the Investigating 
Officer may be accompanied, represented and advised by counsel, as 
provided by Sec. 385.2101 of this chapter and these rules, except that 
all witnesses shall be sequestered and, unless permitted in the 
discretion of the Investigating Officer, no witness or the counsel 
accompanying any such witness shall be permitted to be present during 
the examination of any other witness called in such proceeding. When 
counsel does represent more than one person in an investigation, for 
example, where the counsel is counsel to the witness and his employer, 
said counsel shall inform the Investigating Officer and each client of 
said counsel's possible conflict of interest in representing that client 
and, if said counsel appears with a witness giving testimony on the 
record in an investigation, counsel shall state on the record all 
persons said counsel represents in the investigation.
    (c) Any witness may be accompanied, represented, and advised by 
counsel as follows:
    (1) Counsel for a witness may advise the witness, in confidence, 
upon his initiative or the witness' with respect to any question, and if 
the witness refuses to answer a question, then the witness or counsel 
may briefly state on the record the legal grounds for such refusal.
    (2) Where it is claimed that the witness has a privilege to refuse 
to answer a question on the grounds of self-incrimination, the witness 
must assert the privilege personally.
    (3) Following completion of the examination of a witness, such 
witness may make a statement on the record and his counsel may on the 
record question the witness to enable the witness to clarify any of the 
witness' answers or to offer other evidence.
    (4) The Investigating Officer shall take all necessary action to 
regulate the course of the proceeding to avoid delay and prevent or 
restrain obstructionist or contumacious conduct or contemptuous 
language. Such officer may report to the Commission any instances where 
an attorney or representative has refused to comply with his directions, 
or has engaged in obstructionist or contumacious conduct or has used 
contemptuous language in the course of the proceeding. The Commission 
may thereupon take such further action as the circumstances may warrant, 
including suspension or disbarment of counsel from further appearance or 
practice before it, in accordance with Sec. 385.2101 of this chapter, 
or exclusion from further participation in the particular investigation.
    (d) Unless otherwise ordered by the Commission, in any public formal 
investigation, if the record shall contain implications of wrongdoing by 
any person, such person shall have the right to appear on the record; 
and in addition to the rights afforded other witnesses hereby, he shall 
have a reasonable opportunity of cross-examination and production of 
rebuttal testimony or documentary evidence. Reasonable shall mean 
permitting persons as full an opportunity to assert their position as 
may be granted consistent with administrative efficiency and with 
avoidance of undue delay. The determinations of reasonableness in each 
instance shall be made in the discretion of the investigating officer.

[43 FR 27174, June 23, 1978, as amended by Order 225, 47 FR 19054, May 
3, 1982]



Sec. 1b.17  Appearance and practice before the Commission.

    The provisions of subpart U of part 385 of this chapters are 
specifically applicable to all investigations.

[43 FR 27174, June 23, 1978, as amended by Order 225, 47 FR 19054, May 
3, 1982]

[[Page 13]]



Sec. 1b.18  Right to submit statements.

    Any person may, at any time during the course of an investigation, 
submit documents, statements of facts or memoranda of law for the 
purpose of explaining said person's position or furnishing evidence 
which said person considers relevant regarding the matters under 
investigation.



Sec. 1b.19  Submissions.

    When the Investigating Officer determines it is appropriate in the 
interest of the proper administration of the law, he may inform any 
person that a recommendation may be made to the Commission that said 
person be a defendant in a civil action to be brought by the Commission. 
In such case, said person may submit a statement of fact, argument, and/
or memorandum of law, with such supporting documentation as said person 
chooses showing why said person should not be a defendant in any civil 
action brought by the Commission. The investigating officer shall inform 
said potential defendant of the date by which such statement may be 
submitted to said officer, and if such statement is submitted by such 
date, it shall be presented to the Commission together with any 
recommendation for enforcement action by the office responsible for the 
investigation.



Sec. 1b.20  Request for confidential treatment.

    Any person compelled to produce documents in an investigation may 
claim that some or all of the information contained in a particular 
document(s) is exempt from the mandatory public disclosure requirements 
of the Freedom of Information Act (5 U.S.C. 552), is information 
referred to in 18 U.S.C. 1905, or is otherwise exempt by law from public 
disclosure. In such case, the person making such claim shall, at the 
time said person produces the document to the officer conducting the 
investigation shall also produce a second copy of the document from 
which has been deleted the information for which the person wishes to 
claim confidential treatment. The person shall indicate on the original 
document that a request for confidential treatment is being made for 
some or all of the information in the document and shall file a 
statement specifying the specific statutory justification for non-
disclosure of the information for which confidential treatment is 
claimed. General claims of confidentiality are not sufficient. 
Sufficient information must be furnished for the officer conducting the 
investigation, or other appropriate official, to make an informed 
decision on the request for confidential treatment. If the person states 
that the information comes within the exception in 5 U.S.C. 552(b)(4) 
for trade secrets and commercial or financial information, the person 
shall include a statement specifying why the information is privileged 
or confidential. If the person filing a document does not submit a 
second copy of the document with the confidential information deleted, 
the Officer conducting the investigation may assume that there is no 
objection to public disclosure of the document in its entirety. The 
Commission retains the right to make the determination with regard to 
any claim of confidentiality. Notice of the decision by the 
investigating Officer or other appropriate official to deny a claim, in 
whole or in part, and an opportunity to respond shall be given to a 
person claiming confidentiality no less than 5 days before its public 
disclosure.



Sec. 1b.21  Enforcement hotline.

    (a) The Hotline Staff may provide information to the public and give 
informal staff opinions. The opinions given are not binding on the 
General Counsel or the Commission.
    (b) Any person may seek information or the informal resolution of a 
dispute by calling or writing to the Hotline at the telephone number and 
address in paragraph (f) of this section. The Hotline Staff will 
informally seek information from the caller and any respondent, as 
appropriate. The Hotline Staff will attempt to resolve disputes without 
litigation or other formal proceedings. The Hotline Staff may not 
resolve matters that are before the Commission in docketed proceedings.
    (c) All information and documents obtained through the Hotline Staff 
shall be treated as non-public by the Commission and its staff, 
consistent with the provisions of section 1b.9 of this part.

[[Page 14]]

    (d) Calls to the Hotline may be made anonymously.
    (e) Any person who contacts the Hotline is not precluded from filing 
a formal action with the Commission if discussions assisted by Hotline 
Staff are unsuccessful at resolving the matter. A caller may terminate 
use of the Hotline procedure at any time.
    (f) The Hotline may be reached by calling (202) 502-8390 or 1-888-
889-8030 (toll free), by e-mail at hotline@ferc.gov, or writing to: 
Enforcement Hotline, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426.

[Order 602, 64 FR 17097, Apr. 8, 1999, as amended by Order 647, 69 FR 
32438, June 10, 2004]



PART 1c_PROHIBITION OF ENERGY MARKET MANIPULATION--Table of Contents

Sec.
1c.1 Prohibition of natural gas market manipulation.
1c.2 Prohibition of electric energy market manipulation.

    Authority: 15 U.S.C. 717-717z; 16 U.S.C. 791-825r, 2601-2645; 42 
U.S.C. 7101-7352.

    Source: 71 FR 4258, Jan. 26, 2006, unless otherwise noted.



Sec. 1c.1  Prohibition of natural gas market manipulation.

    (a) It shall be unlawful for any entity, directly or indirectly, in 
connection with the purchase or sale of natural gas or the purchase or 
sale of transportation services subject to the jurisdiction of the 
Commission,
    (1) To use or employ any device, scheme, or artifice to defraud,
    (2) To make any untrue statement of a material fact or to omit to 
state a material fact necessary in order to make the statements made, in 
the light of the circumstances under which they were made, not 
misleading, or
    (3) To engage in any act, practice, or course of business that 
operates or would operate as a fraud or deceit upon any entity.
    (b) Nothing in this section shall be construed to create a private 
right of action.



Sec. 1c.2  Prohibition of electric energy market manipulation.

    (a) It shall be unlawful for any entity, directly or indirectly, in 
connection with the purchase or sale of electric energy or the purchase 
or sale of transmission services subject to the jurisdiction of the 
Commission,
    (1) To use or employ any device, scheme, or artifice to defraud,
    (2) To make any untrue statement of a material fact or to omit to 
state a material fact necessary in order to make the statements made, in 
the light of the circumstances under which they were made, not 
misleading, or
    (3) To engage in any act, practice, or course of business that 
operates or would operate as a fraud or deceit upon any entity.
    (b) Nothing in this section shall be construed to create a private 
right of action.



PART 2_GENERAL POLICY AND INTERPRETATIONS--Table of Contents

   Statements of General Policy and Interpretations of the Commission

Sec.
2.1 Initial notice; service; and information copies of formal documents.
2.1a Public suggestions, comments, proposals on substantial prospective 
          regulatory issues and problems.
2.1b Availability in contested cases of information acquired by staff 
          investigation.
2.1c Policy statement on consultation with Indian tribes in Commission 
          proceedings.

Statements of General Policy and Interpretations Under the Federal Power 
                                   Act

2.2 Transmission lines.
2.4 Suspension of rate schedules.
2.7 Recreational development at licensed projects.
2.8 [Reserved]
2.9 Conditions in preliminary permits and licenses--list of and 
          citations to ``P--'' and ``L--'' forms.
2.12 Calculation of taxes for property of public utilities and licensees 
          constructed or acquired after January 1, 1970.
2.13 Design and construction.
2.15 Specified reasonable rate of return.
2.17 Price discrimination and anticompetitive effect (price squeeze 
          issue).
2.18 Phased electric rate increase filings.
2.19 State and Federal comprehensive plans.

[[Page 15]]

2.20 Good faith requests for transmission services and good faith 
          responses by transmitting utilities.
2.21 Regional Transmission Groups.
2.22 Pricing policy for transmission services provided under the Federal 
          Power Act.
2.23 Use of reserved authority in hydropower licenses to ameliorate 
          cumulative impacts.
2.24 Project decommissioning at relicensing.
2.25 Ratemaking treatment of the cost of emissions allowances in 
          coordination transactions.
2.26 Policies concerning review of applications under section 203.

 Statements of General Policy and Interpretations Under the Natural Gas 
                                   Act

2.51 [Reserved]
2.52 Suspension of rate schedules.
2.55 Definition of terms used in section 7(c).
2.57 Temporary certificates--pipeline companies.
2.60 Facilities and activities during an emergency--accounting treatment 
          of defense-related expenditures.
2.67 Calculation of taxes for property of pipeline companies constructed 
          or acquired after January 1, 1970.
2.69 [Reserved]
2.76 Regulatory treatment of payments made in lieu of take-or-pay 
          obligations.
2.78 Utilization and conservation of natural resources--natural gas.

Statement of General Policy To Implement Procedures for Compliance With 
              the National Environmental Policy Act of 1969

2.80 Detailed environmental statement.

Statement of General Policy To Implement the Economic Stabilization Act 
        of 1970, as Amended, and Executive Orders 11615 and 11627

2.100-2.102 [Reserved]
2.103 Statement of policy respecting take or pay provisions in gas 
          purchase contracts.
2.104 Mechanisms for passthrough of pipeline take-or-pay buyout and 
          buydown costs.
2.105 Gas supply charges.

                     Rules of General Applicability

2.201 [Reserved]

 Statements of General Policy and Interpretations under the Natural Gas 
                           Policy Act of 1978

2.300 Statement of policy concerning allegations of fraud, abuse, or 
          similar grounds under section 601(c) of the NGPA.

Statement of Interpretation Under the Public Utility Regulatory Policies 
                               Act of 1978

2.400 Statement of interpretation of waste concerning natural gas as the 
          primary energy source for qualifying small power production 
          facilities.

 Statement of Penalty Reduction/Waiver Policy To Comply With the Small 
          Business Regulatory Enforcement Fairness Act of 1996

2.500 Penalty reduction/waiver policy for small entities.

Appendix A to Part 2--Guidance for Determining the Acceptable 
          Construction Area for Replacements
Appendix B to Part 2 [Reserved]
Appendix C to Part 2--Nationwide Proceeding Computation of Federal 
          Income Tax Allowance Independent Producers, Pipeline 
          Affiliates and Pipeline Producers Continental U.S.

    Authority: 5 U.S.C. 601; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 
792-825y, 2601-2645; 42 U.S.C. 4321-4361, 7101-7352; Pub. L. No. 109-58, 
119 Stat. 594.2.

   Statements of General Policy and Interpretations of the Commission



Sec. 2.1  Initial notice; service; and information copies of formal 
documents.

    (a) Whenever appropriate, publication of an initial notice or order 
in the Federal Register shall be the primary means of informing 
interested persons and the general public that the proceeding to which 
the notice or order relates has been instituted before the Commission. 
The mailing of individual copies shall be confined to that which is 
required by law, by the Commission's rules and regulations, or by other 
considerations deemed valid by the Secretary in specific instances.
    (1) It is the policy of the Commission to publish notice in the 
Federal Register upon the institution of the following proceedings 
before the Commission:
    (i) Natural gas pipeline companies and public utility rate schedules 
and tariffs. (A) Initial rate schedule filings and changes in rates 
schedules proposed by public utilities and changes in rate schedules or 
tariffs proposed by natural gas pipeline companies, including purchased 
gas adjustment clauses.

[[Page 16]]

    (B) Changes in rates proposed by natural gas pipeline companies for 
field sales.
    (C)-(D) [Reserved]
    (E) Tracking rate schedule or tariff filings made pursuant to 
settlement agreements.
    (F) Rate schedule or tariff filings made by natural gas pipeline 
companies or public utilities in compliance with Commission orders.
    (G) Reports of refunds by natural gas pipeline companies and public 
utilities.
    (H) [Reserved]
    (I) Complaints against natural gas pipeline companies and public 
utilities, unless otherwise directed.
    (ii) Interconnections, service and exportation pursuant to the 
Federal Power Act. (A) Applications for interconnection and service 
under section 202(b).
    (B)-(C) [Reserved]
    (D) Applications pursuant to section 207.
    (E) [Reserved]
    (iii) Hydroelectric, Federal Power Act. (A) Applications for 
preliminary permits pursuant to section 4(f).
    (B) Applications for licenses for constructed or unconstructed 
projects, or notice of declaration of intention, sections 4(e), 
23(a)(b).
    (C) Applications for amendment of license, unless otherwise 
directed.
    (D) Application for relicenses or nonpower licenses, or a 
recommendation for takeover, sections 14 and 15.
    (E) Applications for transfer of license, section 8.
    (F) Applications for surrender of license, section 6.
    (G) Proceeding for revocation or termination of license, sections 6, 
13, 26.
    (H) Issuance of annual licenses, section 15.
    (I) Lands withdrawn pursuant to an application for preliminary 
permit or license, and the vacation of such land withdrawals, section 
24.
    (J) Complaints against licensees, unless otherwise directed.
    (iv) Corporate electric. (A) Applications pursuant to sections 203, 
204, of the Federal Power Act, and applications or complaints pursuant 
to section 305 of the Federal Power Act.
    (v) Accounting, gas and electric. (A) Applications pursuant to 
sections 4, 23, 301, and 302 of the Federal Power Act.
    (B) Applications pursuant to sections 8 and 9 of the Natural Gas 
Act.
    (vi) Federal rates. (A) Application for confirmation and approval of 
rate schedules for Federal hydroelectric projects.
    (vii) Natural gas pipeline certificates, exportations, and 
importations, Natural Gas Act. (A) Applications for exemption under 
section 1(c).
    (B) Applications for authorization to import and export gas under 
section 3.
    (C) Applications for orders directing physical connection of 
facilities and sale of natural gas under section 7(a).
    (D) Applications for permission and approval to abandon under 
section 7(b).
    (E) Applications for permanent certificates under section 7(c).
    (F) [Reserved]
    (G) Complaints against natural gas pipeline companies, filed by 
individuals and companies, unless otherwise directed.
    (viii)-(ix) [Reserved]
    (x) Environmental statements. (A) Notice to be published pursuant to 
Order series 415.
    (xi) Miscellaneous, gas and electric. (A) Order instituting an 
investigation in which hearings are fixed or in which an opportunity is 
given for filing comments or petitions to intervene.
    (B) Show cause order, in which hearings are fixed or in which an 
opportunity is given for filing comments or petitions to intervene.
    (C) Order or notice consolidating proceedings for hearing purposes 
or severing a proceeding formerly consolidated for hearing purposes.
    (D) Applications for declaratory order, disclaimers of jurisdiction, 
or waiver of Commission regulations, unless otherwise directed.
    (E) Requests for redesignation pursuant to Sec. 3.5(a)(26) of this 
subchapter, unless otherwise directed.
    (F) Requests for extension of time pursuant to Sec. 3.75.302(j) of 
this chapter, unless otherwise directed.
    (G) Consolidations and severance pursuant to Sec. 375.302(f) of 
this chapter, unless otherwise directed.
    (H) Notice of correction of a document in any of the above 
categories.
    (I) Notice of meetings of advisory committees established by the 
Commission.

[[Page 17]]

    (J) Notices of conferences in docketed rulemaking proceedings.
    (K) Proposed penalties under section 31 of the Federal Power Act.
    (L) Such other notices or orders as may be submitted by the 
Secretary for publication.
    (2) Otherwise directed, as referred to above, shall be interpreted 
to mean notice given by the discretion of the Secretary.
    (b) After notice has been given, the service of formal documents 
issued in a proceeding shall be confined to the parties of record or 
their attorneys, and the mailing of information copies shall be confined 
to that which is required by the Commission's rules and regulations, by 
courtesy in response to written requests for copies, or by other 
considerations deemed valid by the Secretary in specific instances.

(Secs. 308, 309; 49 Stat. 858; 16 U.S.C. 825g, 825h; secs. 15, 16; 52 
Stat. 829, 830; 15 U.S.C. 717n, 717o)

[Order 211, 24 FR 1345, Feb. 21, 1959, as amended by Order 463, 37 FR 
28054, Dec. 20, 1972; 38 FR 3192, Feb. 2, 1973; 44 FR 34941, June 18, 
1979; 45 FR 21224, Apr. 1, 1980; Order 541, 57 FR 21733, May 22, 1992; 
Order 603, 64 FR 26603, May 14, 1999; Order 2002, 68 FR 51115, Aug. 25, 
2003]



Sec. 2.1a  Public suggestions, comments, proposals on substantial 
prospective regulatory issues and problems.

    (a) The Commission by this policy statement explicitly encourages 
the public, including those persons subject to regulation by the 
Commission, to submit suggestions, comments, or proposals concerning 
substantial prospective regulatory policy issues and problems, the 
resolution of which will have a substantial impact upon those regulated 
by the Commission or others affected by the Commission's activities. 
This policy is intended to serve as a means of advising the Commission 
on a timely basis of potential significant issues and problems which may 
come before it in the course of its activities and to permit the 
Commission an early opportunity to consider argument regarding policy 
questions and administrative reforms in a general context rather than in 
the course of individual proceedings.
    (b) Upon receipt of suggestions, comments, or proposals pursuant to 
paragraph (a) of this section, the Commission shall review the matters 
raised and take whatever action is deemed necessary with respect to the 
filing, including, but not limited to, requesting further information 
from the filing party, the public, or the staff, or prescribing an 
informal public conference for initial discussion and consultation with 
the Commission, a Commissioner, or the Staff, concerning the matter(s) 
raised. In the absence of a notice of proposed rulemaking, any 
conferences or procedures undertaken pursuant to this section shall not 
be deemed by the Commission as meeting the requirements of the 
Administrative Procedure Act with respect to notice of rulemakings, but 
are to be utilized by the Commission as initial discussions for advice 
as a means of determining the need for Commission action, investigation 
or study prior to the issuance of a notice of proposed rulemaking to the 
extent required by the Administrative Procedure Act, 5 U.S.C. 553.
    (c) [Reserved]
    (d) A person may not invoke this policy as a means of advocating ex 
parte before the Commission a position in a proceeding pending at the 
Commission and any such filing will be rejected. Comments must relate to 
general conditions in industry or the public or policies or practices of 
the Commission which may need reform, review, or initial consideration 
by the Commission.

[Order No. 547, 41 FR 15004, Apr. 9, 1976, as amended by Order 225, 47 
FR 19054, May 3, 1982]



Sec. 2.1b  Availability in contested cases of information acquired by 
staff investigation.

    Pursuant to the Commission's authority under the Natural Gas Act, 
particularly subsection (b) of section 8 thereof, and under the Federal 
Power Act, particularly subsection (b) of section 301 thereof, upon 
request by a party to the proceedings, or as required in conjunction 
with the presentation of a Commission staff case of staff's cross-
examination of any other presentation therein, all relevant information 
acquired by Commission staff, including

[[Page 18]]

workpapers pursuant to any staff investigation conducted under sections 
8, 10, or 14 of the Natural Gas Act, and sections 301, 304 or 307 of the 
Federal Power Act, shall, without further order of the Commission, be 
free from the restraints of said subsection (b) of section 8 of the 
Natural Gas Act, and subsection (b) of section 301 of the Federal Power 
Act, regarding the divulgence of information, with respect to any matter 
hereafter set for formal hearing.

[58 FR 38292, July 16, 1993]



Sec. 2.1c  Policy statement on consultation with Indian tribes in 
Commission proceedings.

    (a) The Commission recognizes the unique relationship between the 
United States and Indian tribes as defined by treaties, statutes, and 
judicial decisions. Indian tribes have various sovereign authorities, 
including the power to make and enforce laws, administer justice, and 
manage and control their lands and resources. Through several Executive 
Orders and a Presidential Memorandum, departments and agencies of the 
Executive Branch have been urged to consult with federally-recognized 
Indian tribes in a manner that recognizes the government-to-government 
relationship between these agencies and tribes. In essence, this means 
that consultation should involve direct contact between agencies and 
tribes and should recognize the status of the tribes as governmental 
sovereigns.
    (b) The Commission acknowledges that, as an independent agency of 
the federal government, it has a trust responsibility to Indian tribes 
and this historic relationship requires it to adhere to certain 
fiduciary standards in its dealings with Indian tribes.
    (c) The Commission will endeavor to work with Indian tribes on a 
government-to-government basis, and will seek to address the effects of 
proposed projects on tribal rights and resources through consultation 
pursuant to the Commission's trust responsibility, the Federal Power 
Act, the Natural Gas Act, the Public Utility Regulatory Policies Act, 
section 32 of the Public Utility Holding Company Act, the Interstate 
Commerce Act, the Outer Continental Shelf Lands Act, section 106 of the 
National Historic Preservation Act, and in the Commission's 
environmental and decisional documents.
    (d) As an independent regulatory agency, the Commission functions as 
a neutral, quasi-judicial body, rendering decisions on applications 
filed with it, and resolving issues among parties appearing before it, 
including Indian tribes. Therefore, the provisions of the Administrative 
Procedure Act and the Commission's rules concerning off-the-record 
communications, as well as the nature of the Commission's licensing and 
certificating processes and of the Commission's review of jurisdictional 
rates, terms and conditions, place some limitations on the nature and 
type of consultation that the Commission may engage in with any party in 
a contested case. Nevertheless, the Commission will endeavor, to the 
extent authorized by law, to reduce procedural impediments to working 
directly and effectively with tribal governments.
    (e) The Commission, in keeping with its trust responsibility, will 
assure that tribal concerns and interests are considered whenever the 
Commission's actions or decisions have the potential to adversely affect 
Indian tribes or Indian trust resources.
    (f) The Commission will seek to engage tribes in high-level meetings 
to discuss general matters of importance, such as those that uniquely 
affect the tribes. Where appropriate, these meetings may be arranged for 
particular tribes, by region, or in some proceedings involving 
hydroelectric projects, by river basins.
    (g) The Commission will strive to develop working relationships with 
tribes and will seek to establish procedures to educate Commission staff 
about tribal governments and cultures and to educate tribes about the 
Commission's various statutory functions and programs. To assist in this 
effort, the Commission is establishing the position of tribal liaison. 
The tribal liaison will provide a point of contact and a resource for 
tribes for any proceeding at the Commission.
    (h) Concurrently with this policy statement, the Commission is 
issuing certain new regulations regarding the licensing of hydroelectric 
projects. In this connection, the Commission sets

[[Page 19]]

forth the following additional policies for the hydroelectric licensing 
process.
    (i) The Commission believes that the hydroelectric licensing process 
will benefit by more direct and substantial consultation between the 
Commission staff and Indian tribes. Because of the unique status of 
Indian tribes in relation to the Federal government, the Commission will 
endeavor to increase direct communications with tribal representatives 
in appropriate circumstances, recognizing that different issues and 
stages of a proceeding may call for different approaches, and there are 
some limitations that must be observed.
    (j) The Commission will seek to notify potentially-affected tribes 
about upcoming hydroelectric licensing processes, to discuss the 
consultation process and the importance of tribal participation, to 
learn more about each tribe's culture, and to establish case-by-case 
consultation procedures consistent with our ex parte rules.
    (k) In evaluating a proposed hydroelectric project, the Commission 
will consider any comprehensive plans prepared by Indian tribes or 
inter-tribal organizations for improving, developing, or conserving a 
waterway or waterways affected by a proposed project. The Commission 
will treat as a comprehensive plan, a plan that:
    (1) Is a comprehensive study of one or more of the beneficial uses 
of a waterway or waterways;
    (2) Includes a description of the standards applied, the data relied 
upon, and the methodology used in preparing the plan; and
    (3) Is filed with the Secretary of the Commission. See generally 18 
CFR 2.19.

[Order 635, 68 FR 46455, Aug. 6, 2003]

Statements of General Policy and Interpretations Under the Federal Power 
                                   Act

    Authority: Sections 2.2 through 2.13, issued under sec. 309, 49 
Stat. 858; 16 U.S.C. 825h, unless otherwise noted.



Sec. 2.2  Transmission lines.

    In a public statement dated March 7, 1941, the Commission announced 
its determination that transmission lines which are not primary lines 
transmitting power from the power house or appurtenant works of a 
project to the point of junction with the distribution system or with 
the interconnected primary transmission system as set forth in section 
3(11) of the Act are not within the licensing authority of the 
Commission, and directed that future applications filed with it for such 
licenses be referred for appropriate action to the Federal department 
having supervision over the lands or waterways involved.

[Order 141, 12 FR 8471, Dec. 19, 1947. Redesignated by Order 147, 13 FR 
8259, Dec. 23, 1948]



Sec. 2.4  Suspension of rate schedules.

    The Commission approved and adopted on May 29, 1945, the following 
conclusions as to its powers of suspension of rate schedules under 
section 205 of the act:
    (a) The Commission cannot suspend a rate schedule after its 
effective date.
    (b) The Commission can suspend any new schedule making any change in 
an existing filed rate schedule, including any rate, charge, 
classification, or service, or in any rule, regulation, or contract 
relating thereto, contained in the filed schedule.
    (c) Included in such changes which may be suspended are:
    (1) Increases.
    (2) Reductions.
    (3) Discriminatory changes.
    (4) Cancellation or notice of termination.
    (5) Changes in classification, service, rule, regulation or 
contract.
    (d) Immaterial, unimportant or routine changes will not be 
suspended.
    (e) During suspension, the prior existing rate schedule continues in 
effect and should not be changed during suspension.
    (f) Changes under escalator clauses may be suspended as changes in 
existing filed schedules.
    (g) Suspension of a rate schedule, within the ambit of the 
Commission's

[[Page 20]]

statutory authority is a matter within the discretion of the Commission.

(Natural Gas Act, 15 U.S.C. 717-717w (1976 & Supp. IV 1980); Federal 
Power Act, 16 U.S.C. 791a-828c (1976 & Supp. IV 1980); Dept. of Energy 
Organization Act, 42 U.S.C. 7101-7352 (Supp. IV 1980); E.O. 12009, 3 CFR 
part 142 (1978); 5 U.S.C. 553 (1976))

[Order 141, 12 FR 8471, Dec. 19, 1947. Redesignated by Order 147, 13 FR 
8259, Dec. 23, 1948, and amended by Order 303, 48 FR 24361, June 1, 
1983; Order 575, 60 FR 4852, Jan. 25, 1995]



Sec. 2.7  Recreational development at licensed projects.

    The Commission will evaluate the recreational resources of all 
projects under Federal license or applications therefor and seek, within 
its authority, the ultimate development of these resources, consistent 
with the needs of the area to the extent that such development is not 
inconsistent with the primary purpose of the project. Reasonable 
expenditures by a licensee for public recreational development pursuant 
to an approved plan, including the purchase of land, will be included as 
part of the project cost. The Commission will not object to licensees 
and operators of recreational facilities within the boundaries of a 
project charging reasonable fees to users of such facilities in order to 
help defray the cost of constructing, operating, and maintaining such 
facilities. The Commission expects the licensee to assume the following 
responsibilities:
    (a) To acquire in fee and include within the project boundary enough 
land to assure optimum development of the recreational resources 
afforded by the project. To the extent consistent with the other 
objectives of the license, such lands to be acquired in fee for 
recreational purposes shall include the lands adjacent to the exterior 
margin of any project reservoir plus all other project lands specified 
in any approved recreational use plan for the project.
    (b) To develop suitable public recreational facilities upon project 
lands and waters and to make provisions for adequate public access to 
such project facilities and waters and to include therein consideration 
of the needs of persons with disabilities in the design and construction 
of such project facilities and access.
    (c) To encourage and cooperate with appropriate local, State, and 
Federal agencies and other interested entities in the determination of 
public recreation needs and to cooperate in the preparation of plans to 
meet these needs, including those for sport fishing and hunting.
    (d) To encourage governmental agencies and private interests, such 
as operators of user-fee facilities, to assist in carrying out plans for 
recreation, including operation and adequate maintenance of recreational 
areas and facilities.
    (e) To cooperate with local, State, and Federal Government agencies 
in planning, providing, operating, and maintaining facilities for 
recreational use of public lands administered by those agencies adjacent 
to the project area.
    (f)(1) To comply with Federal, State and local regulations for 
health, sanitation, and public safety, and to cooperate with law 
enforcement authorities in the development of additional necessary 
regulations for such purposes.
    (2) To provide either by itself or through arrangement with others 
for facilities to process adequately sewage, litter, and other wastes 
from recreation facilities including wastes from watercraft, at 
recreation facilities maintained and operated by the licensee or its 
concessionaires.
    (g) To ensure public access and recreational use of project lands 
and waters without regard to race, color, sex, religious creed or 
national origin.
    (h) To inform the public of the opportunities for recreation at 
licensed projects, as well as of rules governing the accessibility and 
use of recreational facilities.

[Order 313, 30 FR 16198, Dec. 29, 1965, as amended by Order 375-B, 35 FR 
6315, Apr. 18, 1970; Order 508, 39 FR 16338, May 8, 1974; Order 2002, 68 
FR 51115, Aug. 25, 2003]



Sec. 2.8  [Reserved]



Sec. 2.9  Conditions in preliminary permits and licenses--list of and 
citations to ``P--'' and ``L--'' forms.

    (a) The Commission has approved several sets of standard conditions 
for

[[Page 21]]

normal inclusion in preliminary permits or licenses for hydroelectric 
developments. In a special situation, of course, the Commission in 
issuing a permit or license for a project will modify or eliminate a 
particular article (condition). For reference purposes the sets of 
conditions are designated as ``Forms''--those for preliminary permits 
are published in Form P-1, and those for licenses are published in Form 
L's. There are different Form L's for different types of licenses, and 
the forms have been revised from time to time. Thus at any given time 
there will be several series of standard forms applicable to the various 
vintages of different types of licenses. The forms and their revisions 
are published in the Federal Power Commission reports and citations 
thereto are listed below.
    (b) New or revised forms may be approved after preparation of this 
list (which is current as of October, 1975) and consequently do not 
appear herein. Forms currently in use, including those forms which have 
not yet appeared in the FPC reports, may be obtained from the Federal 
Power Commission, Office of Public Information, Washington, DC 20426.
    (c) Within each of the categories, unless retired, the last-listed 
form is the one in use at the date of preparation of the list. The dates 
in the list represent issuance dates of the orders with which the 
particular forms were first published, or subsequently revised, in the 
FPC reports.

P-1: Preliminary Permit, 11 F.P.C. 699 (December 2, 1952), 16 F.P.C. 
1303 (December 4, 1956), 54 F.P.C. ------ (October --, 1975).
L-1: Constructed Major Project Affecting Lands of the United States, 12 
F.P.C. 1262 (September 25, 1953), 32 F.P.C. 71 (July 8, 1964), 54 F.P.C. 
------ (October --, 1975).
L-2: Unconstructed Major Project Affecting Lands of the United States, 
12 F.P.C. 1137 (August 7, 1953), 17 F.P.C. 62 (January 18, 1957), 31 
F.P.C. 528 (March 10, 1964), 54 F.P.C. ------ (October --, 1975).
L-3: Constructed Major Project Affecting Navigable Waters of the United 
States, 12 F.P.C. 836 (February 6, 1953), 17 F.P.C. 385 (March 4, 1957), 
30 F.P.C. 1658 (November 21, 1963), 32 F.P.C. 1114 (October 15, 1964), 
36 F.P.C. 971 (December 6, 1966), 40 F.P.C. 1136 (October 29, 1968), 54 
F.P.C. ------ (October --, 1975).
L-4: Unconstructed Major Project Affecting Navigable Waters of the 
United States, 16 F.P.C. 1284 (November 29, 1956), 32 F.P.C. 839 
(September 21, 1964), 42 F.P.C. 280 (July 30, 1969), 54 F.P.C. ------ 
(October --, 1975).
L-5: Constructed Major Project Affecting Navigable Waters and Lands of 
the United States, 12 F.P.C. 1329 (October 23, 1953), 17 F.P.C. 110 
(January 13, 1957), 38 F.P.C. 203 (July 26, 1967), 54 F.P.C. ------ 
(October --, 1975).
L-6: Unconstructed Major Project Affecting Navigable Waters and Lands of 
the United States, 12 F.P.C. 1271 (September 29, 1953), 16 F.P.C. 1127 
(October 29, 1956), 31 F.P.C. 284 (February 5, 1964), 34 F.P.C. 1114 
(October 7, 1965), 54 F.P.C. ------ (October --, 1975).
L-7 (retired): Minor Project Affecting Lands of the United States, 12 
F.P.C. 911 (March 30, 1953), 17 F.P.C. 486 (April 2, 1957).
L-8 (retired): Minor-Part Project (Transmission Line), 12 F.P.C. 1017 
(June 12, 1953), 41 F.P.C. 217 (March 5, 1969).
L-9: Constructed Minor Project Affecting Navigable Waters of the United 
States, 32 F.P.C. 577 (August 10, 1964), 54 F.P.C. ------ (October --, 
1975).
L-10: Constructed Major Project Affecting the Interests of Interstate or 
Foreign Commerce, 37 F.P.C. 860 (May 9, 1967), 40 F.P.C. 1489 (December 
20, 1968), 54 F.P.C. ------ (October --, 1975).
L-11: Unconstructed Major Project Affecting the Interests of Interstate 
or Foreign Commerce, 34 F.P.C. 602 (August 26, 1965), 36 F.P.C. 687 
(September 26, 1966), 41 F.P.C. 719 (June 6, 1969), 54 F.P.C. ------ 
(October --, 1975).
L-12: Constructed Minor Project Affecting the Interests of Interstate or 
Foreign Commerce, 35 F.P.C. 875 (June 3, 1966), 40 F.P.C. 1447 (December 
10, 1968), 54 F.P.C. ------ (October --, 1975).
L-13: (retired): Unconstructed Major Project Affecting the Interests of 
Interstate or Foreign Commerce and Affecting Lands of the United States, 
42 F.P.C. 367 (August 6, 1969).
L-14: Unconstructed Minor Project Affecting Navigable Waters of the 
United States, 54 F.P.C. ------ (October --, 1975).
L-15: Unconstructed Minor Project Affecting the Interests of Interstate 
or Foreign Commerce, 54 F.P.C. ------ (October --, 1975).
L-16: Constructed Minor Project Affecting Lands of the United States, 54 
F.P.C. ------ (October --, 1975).
L-17: Unconstructed Minor Project Affecting Lands of the United States, 
54 F.P.C. ------ (October --, 1975).
L-18: Constructed Minor Project Affecting Navigable Waters and Lands of 
the United States, 54 F.P.C. ------ (October --, 1975).
L-19: Unconstructed Minor Project Affecting Navigable Waters and Lands 
of the United States, 54 F.P.C. ------ (October --, 1975).
L-20: Constructed Transmission Line Project, 54 F.P.C. ------ (October 
--, 1975).

[[Page 22]]

L-21: Unconstructed Transmission Line Project, 54 F.P.C. ------ (October 
--, 1975).


(Secs. 3, 4, 15, 16, 301, 304, 308, and 309 (41 Stat. 1063-1066, 1068, 
1072, 1075; 49 Stat. 838, 839, 840, 841, 854-856, 858-859; 82 Stat. 617; 
16 U.S.C. 796, 797, 803, 808, 809, 816, 825, 825b, 825c, 825g, 825h, 
826i), as amended, secs. 8, 10, and 16 (52 Stat. 825-826, 830; 15 U.S.C. 
717g, 717i, 717o))

[Order 348, 32 FR 8521, June 14, 1967, as amended by Order 540, 40 FR 
51998, Nov. 7, 1975; Order 567, 42 FR 30612, June 16, 1977]



Sec. 2.12  Calculation of taxes for property of public utilities and 
licensees constructed or acquired after January 1, 1970.

    Pursuant to the provisions of section 441(a)(4)(A) of the Tax Reform 
Act of 1969, 83 Stat. 487, 625, public utilities and licensees regulated 
by the Commission under the Federal Power Act which have exercised the 
option provided by that section to change from flow through accounting 
will be permitted by the Commission, with respect to liberalized 
depreciation, to employ a normalization method for computing federal 
income taxes in their accounts and annual reports with respect to 
property constructed or acquired after January 1, 1970, to the extent 
with which such property increases the productive or operational 
capacity of the utility and is not a replacement of existing capacity. 
Such normalization will also be permitted for ratemaking purposes to the 
extent such rates are subject to the Commission's ratemaking authority. 
As to balances in Account 282 of the Uniform System of Accounts, 
``Accumulated deferred income taxes--Other property,'' it will remain 
the Commission's policy to deduct such balances from rate base in rate 
proceedings.

(Secs. 3, 4, 15, 16, 301, 304, 308, and 309 (41 Stat. 1063-1066, 1068, 
1072, 1075; 49 Stat. 838, 839, 840, 841, 854-856, 858-859; 82 Stat. 617; 
16 U.S.C. 796, 797, 803, 808, 809, 816, 825, 825b, 825c, 825g, 825h, 
826i), as amended, Secs. 8, 10, and 16 (52 Stat. 825-826, 830; 15 U.S.C. 
717g, 717i, 717o))

[Order 404, 35 FR 7964, May 23, 1970, as amended by Order 567, 42 FR 
30612, June 16, 1977]



Sec. 2.13  Design and construction.

    (a) The Commission recognizes the importance of protecting and 
enhancing natural, historic, scenic, and recreational values at projects 
licensed or proposed to be licensed under the Federal Power Act.
    (b) The Commission has adopted ``Guidelines for the Protection of 
Natural, Historic, Scenic, and Recreational Values in the Design and 
Location of Rights-of-Way and Transmission Facilities'' \1\ as set forth 
in Order No. 414 issued November 27, 1970. The Commission will consider 
these guidelines inter alia, in the determination of whether 
applications for any licenses under the Federal Power Act are best 
adapted to a comprehensive plan for developing a waterway. The 
guidelines may be obtained from the Office of Public Information, 
Federal Power Commission, Washington, DC 20426.
---------------------------------------------------------------------------

    \1\ Filed as part of the original document.
---------------------------------------------------------------------------

    (c) In furtherance of these polices, the Commission will not (1) 
permit the amendment of any license for the purpose of construction of 
additional facilities or (2) authorize the disposition of any interest 
in project lands for construction of any type, unless a showing is made 
that the construction will be designed to avoid or minimize conflict 
with the natural, historic, and scenic values and resources of the 
project area, including compliance with the Commission's ``Guidelines 
for the Protection of Natural, Historic, Scenic, and Recreational Values 
in the Design and Location of Rights-of-Way and Transmission 
Facilities''.

(Secs. 3, 4, 15, 16, 301, 304, 308, and 309 (41 Stat. 1063-1066, 1068, 
1072, 1075; 49 Stat. 838, 839, 840, 841, 854-856, 858-859; 82 Stat. 617; 
16 U.S.C. 796, 797, 803, 808, 809, 816, 825, 825b, 825c, 825g, 825h, 
826i), as amended, Secs. 8, 10, and 16 (52 Stat. 825-826, 830; 15 U.S.C. 
717g, 717i, 717o))

[Order 414, 35 FR 18586, Dec. 8, 1970, as amended by Order 567, 42 FR 
30612, June 16, 1977]



Sec. 2.15  Specified reasonable rate of return.

    (a) Pursuant to section 10(d) of the Federal Power Act, the 
Commission has determined that the specified reasonable rate of return 
used in computing amortization reserves for hydroelectric project 
licenses shall be calculated annually based on current capital ratios 
developed from an average of 13 monthly balances of amounts

[[Page 23]]

properly includible in the licensee's long-term debt and proprietary 
capital accounts, as listed in the Commission's Uniform System of 
Accounts. The cost rate for such ratios shall be the weighted average 
cost of long-term debt and preferred stock for the year, and the cost of 
common equity shall be the interest rate on 10-year government bonds 
(reported as the Treasury Department's 10-year constant maturity series) 
computed on the monthly average for the year in question, plus four 
percentage points (400 basis points).
    (b) The Statement of Policy adopted herein shall be effective upon 
issuance of this order.
    (c) The Secretary shall cause prompt publication of this order to be 
made in the Federal Register.
    (d) All requests and suggestions not specifically dealt with herein 
are hereby denied.
    (e) The Secretary is hereby authorized to change the appropriate 
license article upon application by the licensees to reflect the 
specified reasonable rate of return as adopted herein.

[Order 550, 41 FR 27032, July 1, 1976]



Sec. 2.17  Price discrimination and anticompetitive effect (price 
squeeze issue).

    To implement compliance with the Supreme Court decision in F.P.C. v. 
Con-Way Corp., 426 U.S. 271 (1976), aff'g 510 F. 2d 1264 (D.C. Cir. 
1975) and to expedite the consideration of price squeeze issues in 
wholesale electric rate proceedings, the Commission adopts the following 
procedures for raising price squeeze issues which are to be followed 
unless they are demonstrated in an individual case to be inadequate:
    (a) Any wholesale customer, state commission or other interested 
person may file petitions to intervene alleging price discrimination and 
anticompetitive effects of the wholesale rates. In order to have the 
issue of price discrimination considered in the rate proceeding, the 
intervening customer or other interested person must support its 
allegation by a prima facie case. The elements of the prima facie case 
shall include at a minimum:
    (1) Specification of the filing utility's retail rate schedules with 
which the intervening wholesale customer is unable to compete due to 
purchased power costs;
    (2) A showing that a competitive situation exists in that the 
wholesale customer competes in the same market as the filing utility;
    (3) A showing that the retail rates are lower than the proposed 
wholesale rates for comparable service;
    (4) The wholesale customer's prospective rate for comparable retail 
service, i.e. the rate necessary to recover bulk power costs (at the 
proposed wholesale rate) and distribution costs;
    (5) An indication of the reduction in the wholesale rate necessary 
to eliminate the price squeeze alleged.
    (b) Where price squeeze is alleged, the Commission shall, in the 
order granting intervention, direct the Administrative Law Judge to 
convene a prehearing conference within 15 days from the date of the 
order for the purpose of hearing intervenors' request for data required 
to present their case, including prima facie showing, on price squeeze 
issues.
    (c) Within 30 days from the date of the conference the filing 
utility shall respond to the data requests authorized by the 
Administrative Law Judge.
    (d) Within 30 days from the filing utility's response, the 
intervenors shall file their case-in-chief on price squeeze issues, 
which shall include their prima facie case, unless filed previously.
    (e) The burden of proof (i.e. the risk of nonpersuasion) to rebut 
the allegations of price squeeze and to justify the proposed rates are 
on the utility proposing the rates under section 205(e) of the Federal 
Power Act.
    (f) In proceedings where price squeeze is an issue, the Secretary 
shall include the state commission, agency or body which is responsible 
for regulation of retail rates in the state affected in the service list 
maintained under Sec. 385.2010(c) of this chapter.

[Order 563, 42 FR 16132, Mar. 25, 1977, as amended by Order 225, 47 FR 
19054, May 3, 1982]



Sec. 2.18  Phased electric rate increase filings.

    (a) In general, when a public utility files a phased rate increase, 
the Commission will determine the appropriate

[[Page 24]]

suspension period based on the total increase requested in all phases. 
If a utility files a rate increase within sixty days after filing 
another rate increase, the Commission will consider the filings together 
to be a phased rate increase request.
    (b) This policy will not be applied if the increase is phased:
    (1) To coordinate with new facilities coming on line;
    (2) To implement a rate moderation plan;
    (3) To avoid price squeeze;
    (4) To comply with a settlement approved by the Commission; or
    (5) If the utility makes a convincing showing that application of 
the policy would be harsh and inequitable and that, therefore, good 
cause has been shown not to apply the policy in the case.

[52 FR 11, Jan. 11, 1987]



Sec. 2.19  State and Federal comprehensive plans.

    (a) In determining whether the proposed hydroelectric project is 
best adapted to a comprehensive plan under section (10)(a)(1) of the 
Federal Power Act for improving or developing a waterway, the Commission 
will consider the extent to which the project is consistent with a 
comprehensive plan (where one exists) for improving, developing, or 
conserving a waterway or waterways affected by the project that is 
prepared by:
    (1) An agency established pursuant to Federal law that has the 
authority to prepare such a plan, or
    (2) A state agency, of the state in which the facility is or will be 
located, authorized to conduct such planning pursuant to state law.
    (b) The Commission will treat as a state or Federal comprehensive 
plan a plan that:
    (1) Is a comprehensive study of one or more of the beneficial uses 
of a waterway or waterways;
    (2) Includes a description of the standards applied, the data relied 
upon, and the methodology used in preparing the plan; and
    (3) Is filed with the Secretary of the Commission.

[Order 481-A, 53 FR 15804, May 4, 1988]



Sec. 2.20  Good faith requests for transmission services and good faith 
responses by transmitting utilities.

    (a) General Policy. (1) This Statement of Policy is adopted in 
furtherance of the goals of sections 211(a) and 213(a) of the Federal 
Power Act, as amended and added by the Energy Policy Act of 1992.
    (2) Under section 211(a), the Commission may issue an order 
requiring a transmitting utility to provide transmission services 
(including any enlargement of transmission capacity necessary to provide 
such services) only if an applicant has made a request for transmission 
services to the transmitting utility that would be the subject of such 
order at least 60 days prior to its filing of an application for such 
order. The requirement in section 211(a) that an applicant make such a 
request will be met if such an applicant has, pursuant to section 213(a) 
of the FPA, made a good faith request to a transmitting utility to 
provide wholesale transmission services and requests specific rates and 
charges, and other terms and conditions.
    (3) It is the Commission's intention to apply the standards of this 
Statement of Policy when determining whether and when a valid ``good 
faith'' request for service was made.
    (4) It is the Commission's intention to encourage an open exchange 
of information that exhibits a reasonable degree of specificity and 
completeness between the party requesting transmission services and the 
transmitting utility.
    (5) The Commission intends to apply this Statement of Policy so as 
to carry out Congress' objective that, subject to appropriate terms and 
conditions and just and reasonable rates, in conformance with section 
212 of the FPA, access to the electric transmission system for the 
purposes of wholesale transactions be more widely available.
    (b) The Components of a good faith request. The Commission generally 
considers the following to constitute the minimum components of a good 
faith request for transmission services:
    (1) The identity, address, telephone number, and facsimile number of 
the party requesting transmission services, and the same information, if 
different,

[[Page 25]]

for the party's contact person or persons.
    (2) A statement that the party requesting transmission services is, 
or will be upon commencement of service, an entity eligible to request 
transmission under sections 211(a) and 213(a) of the FPA.
    (3) A statement that the request for transmission services is 
intended to satisfy the ``request for transmission services'' 
requirement under sections 211(a) and 213(a) of the FPA, and that the 
request is not a request for mandatory retail wheeling prohibited under 
section 212(h) of the FPA.
    (4) The party requesting transmission services should specify the 
character and nature of the services requested. Some types of service 
may require more detailed information than others. Where point-to-point 
service is requested, the party requesting transmission services should 
specify the anticipated point(s) of receipt to the transmitting 
utility's grid and the anticipated point(s) of delivery from the 
transmitting utility's grid. Where a party requesting transmission 
services requests additional flexibility to schedule multiple resources 
to meet its needs (e.g., network service), the request for services 
should contain a description of the requested services in sufficient 
detail to permit the transmitting utility to model the additional 
services on its transmission system.
    (5) The names of any other parties likely to provide transmission 
service to deliver electric energy to, and receive electric energy from, 
the transmitting utility's grid in connection with the requested 
transmission services.
    (6) The proposed dates for initiating and terminating the requested 
transmission services.
    (7) The total amount of transmission capacity being requested.
    (8) To the extent it is known or can be estimated, a description of 
the ``expected transaction profile'' including load factor data 
describing the hourly quantities of power and energy the party 
requesting transmission services would expect to deliver to the 
transmitting utility's grid at relevant points of interconnection. In 
the event delivery is to multiple points within the transmitting 
utility's electric control area, the requestor should describe, to the 
extent it is known or can be estimated, the expected load (over a given 
duration of time) at each such delivery point.
    (9) Whether firm or non-firm service is being requested. Where a 
party requests non-firm service, it should specify the priority of 
service it is willing to accept, or the conditions under which it is 
willing to accept interruption or curtailment, if known.
    (10) A statement as to whether the request is being made in response 
to a solicitation and a copy of the solicitation if publicly available. 
This will help the transmitting utility determine whether requests for 
transmission service are duplicative or mutually exclusive of requests 
filed by other parties.
    (11) The proposed rates, terms and conditions for the requested 
transmission services as required by section 213(a). It is not necessary 
for the requestor to propose a specific numerical rate. Rather, a party 
requesting transmission services can fulfill the rates, terms and 
conditions requirement by specifying a rate methodology (e.g., embedded 
or incremental cost) or by referencing an existing formula rate, 
transmission tariff, or transmission contract. The validity of the good 
faith request will not depend on the rates proposed by the party 
requesting transmission services. This requirement is not intended to 
allow utilities to delay responses to requests for transmission 
services, or to deny requests for transmission services on the basis of 
an overly rigid or technical approach to the ``rates, terms and 
conditions'' element of the request.
    (12) Any other information to facilitate the expeditious processing 
of its request. Such information will improve the negotiation process, 
reduce costs, and will improve chances to arrange the requested 
transmission without resorting to section 211 application procedures 
before the Commission.
    (c) Components of a Reply to a Good Faith Request. The Commission 
generally considers the following to constitute the minimum components 
of a reply to a good faith request for transmission services under 
section 213(a):

[[Page 26]]

    (1) Unless the parties agree to a different time frame, the 
transmitting utility must acknowledge the request within 10 days of 
receipt. The acknowledgement must include a date by which a response 
will be sent to the party requesting transmission services and a 
statement of any fees associated with responding to the request (e.g., 
initial studies).
    (2) The transmitting utility may ask the applicant to provide 
clarification of only the information needed to evaluate and process a 
``good faith'' request. If the person requesting transmission services 
believes the transmitting utility is attempting to frustrate the process 
by making excessive requests for clarification, it may raise this issue 
if, and when, it files a request for a section 211 order with the 
Commission.
    (3) The transmitting utility must respond to a request within 60 
days of receipt or some other mutually agreed upon response date. If 
both parties agree to an alternative schedule, the agreement must be in 
writing and signed by both parties.
    (4) If the transmitting utility determines that it can provide all 
the requested services from existing capacity, it should respond by 
offering the party requesting transmission services an executable 
service agreement that at a minimum contains the following information:
    (i) A description of the proposed transmission rate and any other 
costs. It is not necessary for the proposed service agreement to contain 
a fully developed cost-of-service. However, the agreement should explain 
the basis for the charges for each component of service, including the 
unbundled components of any transmission rate as well as any other 
charges.
    (ii) The proposed service agreement should explicitly describe all 
of the applicable terms and conditions of the transmission services 
provided under the agreement.
    (iii) The transmitting utility should accompany the proposed service 
agreement with a clear statement of the time during which the offer to 
provide the transmission services will remain open. An open agreement 
offer may obligate the seller while imposing no countervailing 
obligation on the purchaser, and an unexecuted contract potentially ties 
up transmission facilities, thus jeopardizing the availability and price 
for subsequent requests that would use the same facilities. However, at 
a minimum, a transmitting utility should permit the party requesting 
transmission services sufficient time to review service agreements and 
coordinate multiple stages of joint transactions.
    (5) If the transmitting utility determines that it must construct 
additional facilities or modify existing facilities to provide all or 
part of the requested services, it must:
    (i) Identify the specific constraints and their duration that 
prevent it from providing all the requested services and explain how 
these constraints prevent it from providing all the requested services 
or the desired level of firmness.
    (ii) Provide to the applicant all studies, computer input and output 
data, planning, operating and other documents, work papers, assumptions 
and any other material that forms the basis for determining the 
constraints.
    (iii) Offer to the applicant an executable agreement under which the 
applicant agrees to reimburse the transmitting utility for all costs of 
performing any studies necessary to determine what changes to the 
transmitting utility's grid are needed to overcome the constraint and 
provide the requested services, their cost, and the estimated time to 
complete them. At a minimum, the proposed agreement should contain the 
following:
    (A) An estimate of the cost of the study and the time required to 
complete it, and
    (B) A commitment to supply to the party requesting transmission 
services all computer input and output data, planning, operating and 
other documents, work papers, assumptions and any other material used to 
perform the study.
    (iv) If a transmitting utility determines that it can provide part 
but not all of the requested services without building new facilities, 
it should inform the applicant of any portion of

[[Page 27]]

the requested services that can be performed without constructing 
additional facilities or modifying existing facilities. In effect, the 
transmitting utility may be able to treat such a request as two separate 
transactions--one for service on existing facilities and the other as a 
request involving expansion decisions. Furthermore, where there are 
alternative, less expensive means of satisfying all or a portion of a 
transmission request, the Commission expects the transmitting utility to 
explore such alternatives (e.g., redispatching certain generating units 
to alleviate a constraint).

[58 FR 38969, July 21, 1993]



Sec. 2.21  Regional Transmission Groups.

    (a) General policy. The Commission encourages Regional Transmission 
Groups (RTGs) as a means of enabling the market for electric power to 
operate in a more competitive and efficient way. The Commission believes 
that RTGs can provide a means of coordinating regional planning of the 
transmission system and assuring that system capabilities are always 
adequate to meet system demands. RTG agreements that contain components 
that satisfy paragraphs (b) and (c) of this section generally will be 
considered to be just, reasonable, and not unduly discriminatory or 
preferential under the Federal Power Act (FPA). The Commission 
encourages RTG agreements that contain as much detail as possible in all 
of the components listed, particularly if the RTG participants will be 
seeking Commission deference to decisions reached under an RTG 
agreement.
    (b) Organizational components. (1) An RTG agreement should provide 
for broad membership and, at a minimum, allow any entity that is subject 
to, or eligible to apply for, an order under section 211 of the FPA to 
be a member. An RTG agreement should encompass an area of sufficient 
size and contiguity to enable members to provide transmission services 
in a reliable, efficient, and competitive manner.
    (2) An RTG agreement should provide a means of adequate consultation 
and coordination with relevant state regulatory, siting, and other 
authorities.
    (3) An RTG agreement should include fair and nondiscriminatory 
governance and decision making procedures, including voting procedures.
    (c) Other components. (1) An RTG agreement should impose on member 
transmitting utilities an obligation to provide transmission services 
for other members, including the obligation to enlarge facilities, on a 
basis that is consistent with sections 205, 206, 211, 212 and 213 of the 
FPA. To the extent practicable and known, the RTG agreement should 
specify the terms and conditions under which transmission services will 
be offered.
    (2) An RTG agreement should require, at a minimum, the development 
of a coordinated transmission plan on a regional basis and the sharing 
of transmission planning information, with the goal of efficient use, 
expansion, and coordination of the interconnected electric system on a 
grid-wide basis. An RTG agreement should provide mechanisms to 
incorporate the transmission needs of non-members into regional plans. 
An RTG agreement should include as much detail as possible with regard 
to operational and planning procedures.
    (3) An RTG agreement should include voluntary dispute resolution 
procedures that provide a fair alternative to resorting in the first 
instance to section 206 complaints or section 211 proceedings.
    (4) An RTG agreement should include an exit provision for RTG 
members that leave the RTG, specifying the obligations of a departing 
member.
    (d) Filing procedures. Any proposed RTG agreement that in any manner 
affects or relates to the transmission of electric energy in interstate 
commerce by a public utility, or rates or charges for such transmission, 
must be filed with the Commission. Any public utility member of a 
proposed RTG may file the RTG agreement with the Commission on behalf of 
the other public utility members under section 205 of the FPA.

[58 FR 41632, Aug. 5, 1993]

[[Page 28]]



Sec. 2.22  Pricing policy for transmission services provided under the 
Federal Power Act.

    (a) The Commission has adopted a Policy Statement on its pricing 
policy for transmission services provided under the Federal Power Act. 
That Policy Statement can be found at 69 FERC 61,086. The Policy 
Statement constitutes a complete description of the Commission's 
guidelines for assessing the pricing proposals. Paragraph (b) of this 
section is only a brief summary of the Policy Statement.
    (b) The Commission endorses transmission pricing flexibility, 
consistent with the principles and procedures set forth in the Policy 
Statement. It will entertain transmission pricing proposals that do not 
conform to the traditional revenue requirement as well as proposals that 
conform to the traditional revenue requirement. The Commission will 
evaluate ``conforming'' transmission pricing proposals using the 
following five principles, described more fully in the Policy Statement.
    (1) Transmission pricing must meet the traditional revenue 
requirement.
    (2) Transmission pricing must reflect comparability.
    (3) Transmission pricing should promote economic efficiency.
    (4) Transmission pricing should promote fairness.
    (5) Transmission pricing should be practical.
    (c) Under these principles, the Commission will also evaluate ``non-
conforming'' proposals which do not meet the traditional revenue 
requirement, and will require such proposals to conform to the 
comparability principle. Non-conforming proposals must include an open 
access comparability tariff and will not be allowed to go into effect 
prior to review and approval by the Commission under procedures 
described in the Policy Statement.

[59 FR 55039, Nov. 3, 1994]



Sec. 2.23  Use of reserved authority in hydropower licenses to 
ameliorate cumulative impacts.

    The Commission will address and consider cumulative impact issues at 
original licensing and relicensing to the fullest extent possible 
consistent with the Commission's statutory responsibility to avoid undue 
delay in the relicensing process and to avoid undue delay in the 
amelioration of individual project impacts at relicensing. To the 
extent, if any, that it is not possible to explore and address all 
cumulative impacts at relicensing, the Commission will reserve authority 
to examine and address such impacts after the new license has been 
issued, but will define that reserved authority as narrowly and with as 
much specificity as possible, particularly with respect to the purpose 
of reserving that authority. The Commission intends that such articles 
will describe, to the maximum extent possible, reasonably foreseeable 
future resource concerns that may warrant modifications of the licensed 
project. Before taking any action pursuant to such reserved authority, 
the Commission will publish notice of its proposed action and will 
provide an opportunity for hearing by the licensee and all interested 
parties. Hydropower licenses also contain standard ``reopener'' articles 
(see Sec. 2.9 of this part) which reserve authority to the Commission 
to require, among other things, licensees of projects located in the 
same river basin to mitigate the cumulative impacts of those projects on 
the river basin. In light of the policy described above, the Commission 
will use the standard ``reopener'' articles to explore and address 
cumulative impacts only (except in extraordinary circumstances) where 
such impacts were not known at the time of licensing or are the result 
of changed circumstances. The Commission has authority under the Federal 
Power Act to require licensees, during the term of the license, to 
develop and provide data to the Commission on the cumulative impacts of 
licensed projects located in the same river basin. In issuing both new 
and original licenses, the Commission will coordinate the expiration 
dates of the licenses to the maximum extent possible, to maximize future 
consideration of cumulative impacts at the same time in contemporaneous 
proceedings at relicensing. The Commission's intention is to consider to 
the extent practicable cumulative impacts

[[Page 29]]

at the time of licensing and relicensing, and to eliminate the need to 
resort to the use of reserved authority.

[59 FR 66718, Dec. 28, 1994]



Sec. 2.24  Project decommissioning at relicensing.

    The Commission issued a statement of policy on project 
decommissioning at relicensing in Docket No. RM93-23-000 on December 14, 
1994.

[60 FR 347, Jan. 4, 1995]



Sec. 2.25  Ratemaking treatment of the cost of emissions allowances in 
coordination transactions.

    (a) General Policy. This Statement of Policy is adopted in 
furtherance of the goals of Title IV of the Clean Air Act Amendments of 
1990, Pub. L. 101-549, Title IV, 104 Stat. 2399, 2584 (1990).
    (b) Costing Emissions Allowances in Coordination Sales. If a public 
utility's coordination rate on file with the Commission provides for 
recovery of variable costs on an incremental basis, the Commission will 
allow recovery of the incremental costs of emissions allowances 
associated with a coordination sale. If a coordination rate does not 
reflect incremental costs, the public utility should propose alternative 
allowance costing methods or demonstrate that the coordination rate does 
not produce unreasonable results. The Commission finds that the cost to 
replace an allowance is an appropriate basis to establish the 
incremental cost.
    (c) Use of Indices. The Commission will allow public utilities to 
determine emissions allowance costs on the basis of an index or 
combination of indices of the current price of emissions allowances, 
provided that the public utility affords purchasing utilities the option 
of providing emissions allowances. Public utilities should explain and 
justify any use of different incremental cost indices for pricing 
coordination sales and making dispatch decisions.
    (d) Calculation of Amount of Emissions Allowances Associated With 
Coordination Transactions. Public utilities should explain the methods 
used to compute the amount of emissions allowances included in 
coordination transactions.
    (e) Timing. (1) Public utilities should provide information to 
purchasing utilities regarding the timing of opportunities for 
purchasers to stipulate whether they will purchase or return emissions 
allowances. A public utility may require a purchasing utility to 
declare, no later than the beginning of the coordination transaction:
    (i) Whether it will purchase or return emissions allowances; and
    (ii) If it will return emissions allowances, the date on which those 
allowances will be returned.
    (2) Public utilities may include in agreements with purchasing 
utilities non-discriminatory provisions for indemnification if the 
purchasing utility fails to provide emissions allowances by the date on 
which it declares that the allowances will be returned.
    (f) Other Costing Methods Not Precluded. The ratemaking treatment of 
emissions allowance costs endorsed in this Policy Statement does not 
preclude other approaches proposed by individual utilities on a case-by-
case basis.

[59 FR 65938, Dec. 22, 1994, as amended by Order 579, 60 FR 22261, May 
5, 1995]



Sec. 2.26  Policies concerning review of applications under section 203.

    (a) The Commission has adopted a Policy Statement on its policies 
for reviewing transactions subject to section 203. That Policy Statement 
can be found at 77 FERC ] 61,263 (1996). The Policy Statement is a 
complete description of the relevant guidelines. Paragraphs (b)-(e) of 
this section are only a brief summary of the Policy Statement.
    (b) Factors Commission will generally consider. In determining 
whether a proposed transaction subject to section 203 is consistent with 
the public interest, the Commission will generally consider the 
following factors; it may also consider other factors:
    (1) The effect on competition;
    (2) The effect on rates; and
    (3) The effect on regulation.
    (c) Effect on competition. Applicants should provide data adequate 
to allow analysis under the Department of Justice/Federal Trade 
Commission Merger Guidelines, as described in the Policy Statement and 
Appendix A to the Policy Statement.

[[Page 30]]

    (d) Effect on rates. Applicants should propose mechanisms to protect 
customers from costs due to the merger. If the proposal raises 
substantial issues of relevant fact, the Commission may set this issue 
for hearing.
    (e) Effect on regulation. (1) Where the affected state commissions 
have authority to act on the transaction, the Commission will not set 
for hearing whether the transaction would impair effective regulation by 
the state commissions. The application should state whether the state 
commissions have this authority.
    (2) Where the affected state commissions do not have authority to 
act on the transaction, the Commission may set for hearing the issue of 
whether the transaction would impair effective state regulation.
    (f) Under section 203(a)(4) of the Federal Power Act (16 U.S.C. 
824b), in reviewing a proposed transaction subject to section 203, the 
Commission will also consider whether the proposed transaction will 
result in cross-subsidization of a non-utility associate company or 
pledge or encumbrance of utility assets for the benefit of an associate 
company, unless that cross-subsidization, pledge, or encumbrance will be 
consistent with the public interest.

[Order 592, 61 FR 68606, Dec. 30, 1996, as amended by Order 669, 71 FR 
1373, Jan. 6, 2006]

 Statements of General Policy and Interpretations Under the Natural Gas 
                                   Act



Sec. 2.51  [Reserved]



Sec. 2.52  Suspension of rate schedules.

    The interpretation stated in Sec. 2.4 applies as well to the 
suspension of rate schedules under section 4 of the Natural Gas Act.

(Natural Gas Act, 15 U.S.C. 717-717w (1976 & Supp. IV 1980); Federal 
Power Act, 16 U.S.C. 791a-828c (1976 & Supp. IV 1980); Dept. of Energy 
Organization Act, 42 U.S.C. 7101-7352 (Supp. IV 1980); E.O. 12009, 3 CFR 
part 142 (1978); 5 U.S.C. 553 (1976))

[Order 303, 48 FR 24361, June 1, 1983]



Sec. 2.55  Definition of terms used in section 7(c).

    For the purposes of section 7(c) of the Natural Gas Act, as amended, 
the word facilities as used therein shall be interpreted to exclude:
    (a) Auxiliary installations. (1) Installations (excluding gas 
compressors) which are merely auxiliary or appurtenant to an authorized 
or proposed transmission pipeline system and which are installations 
only for the purpose of obtaining more efficient or more economical 
operation of the authorized or proposed transmission facilities, such 
as: Valves; drips; pig launchers/receivers; yard and station piping; 
cathodic protection equipment; gas cleaning, cooling and dehydration 
equipment; residual refining equipment; water pumping, treatment and 
cooling equipment; electrical and communication equipment; and 
buildings.
    (2) Advance notification. One of the following requirements will 
apply to any specified auxiliary installation. If auxiliary facilities 
are to be installed:
    (i) On existing transmission facilities, then no notification is 
required;
    (ii) On, or at the same time as, certificated facilities which are 
not yet in service (except those authorized under the automatic 
procedures of part 157 of subpart F of this chapter), then a description 
of the auxiliary facilities and their locations must be provided to the 
Commission at least 30 days in advance of their installation; or
    (iii) On and at the same time as facilities that are proposed, then 
the auxiliary facilities must be described in the environmental report 
specified in Sec. 380.12 or in a supplemental filing while the 
application is pending.
    (b) Replacement of facilities. (1) Facilities which constitute the 
replacement of existing facilities that have or will soon become 
physically deteriorated or obsolete, to the extent that replacement is 
deemed advisable, if:
    (i) The replacement will not result in a reduction or abandonment of 
service through the facilities;
    (ii) The replacement facilities will have a substantially equivalent 
designed delivery capacity, will be located in the same right-of-way or 
on the same site as the facilities being replaced, and will be 
constructed using

[[Page 31]]

the temporary work space used to construct the original facility (See 
appendix A to this part 2 for guidelines on what is considered to be the 
appropriate work area in this context);
    (iii) Except as described in paragraph (b)(2) of this section, the 
company files notification of such activity with the Commission at least 
30 days prior to commencing construction.
    (2) Advance notification not required. The advance notification 
described in paragraph (b)(1)(iii) of this section is not required if:
    (i) The cost of the replacement project does not exceed the cost 
limit specified in Column 1 of Table I of Sec. 157.208(d) of this 
chapter; or
    (ii) U.S. Department of Transportation safety regulations require 
that the replacement activity be performed immediately;
    (3) Contents of the advance notification. The advance notification 
described in paragraph (b)(1)(iii) of this section must include the 
following information:
    (i) A brief description of the facilities to be replaced (including 
pipeline size and length, compression horsepower, design capacity, and 
cost of construction);
    (ii) Current U.S. Geological Survey 7.5-minute series topographic 
maps showing the location of the facilities to be replaced; and
    (iii) A description of the procedures to be used for erosion 
control, revegetation and maintenance, and stream and wetland crossings.
    (4) Annual report. On or before May 1 of each year, a company must 
file (on electronic media pursuant to Sec. 385.2011 of this chapter, 
accompanied by 7 paper copies) an annual report that lists for the 
previous calendar year each replacement project that was completed 
pursuant to paragraph (b)(1) of this section and that was exempt from 
the advance notification requirement pursuant to paragraph (b)(2) of 
this section. For each such replacement project, the company must 
include all of the information described in paragraph (b)(3) of this 
section. Exception. A company does not have to include in this annual 
report any above-ground replacement project that did not involve 
compression facilities or the use of earthmoving equipment.
    (c)-(d) [Reserved]

(Sec. 7, 52 Stat. 824; 15 U.S.C. 717f)

[Order 148, 14 FR 681, Feb. 16, 1949, as amended by Order 220, 25 FR 
2363, Mar. 19, 1960; Order 241, 27 FR 510, Jan. 18, 1962; Order 148-A, 
38 FR 11450, May 8, 1973; 55 FR 33015, Aug. 13, 1990; Order 544, 57 FR 
46495, Oct. 9, 1992; Order 544-A, 58 FR 57735, Oct. 27, 1993; Order 603, 
64 FR 26603, May 14, 1999; Order 603-A, 64 FR 54535, Oct. 7, 1999; 65 FR 
18221, Apr. 7, 2000]



Sec. 2.57  Temporary certificates--pipeline companies.

    The Federal Power Commission will exercise the emergency powers set 
forth in the second proviso of section 7(c) of the Natural Gas Act to 
authorize in appropriate cases, by issuance of temporary certificates, 
comparatively minor enlargements or extensions of an existing pipeline 
system. It will not be the policy of the Commission, however, to proceed 
summarily, i.e., without notice or hearing, in cases where the proposed 
construction is of major proportions. Pipeline companies are accordingly 
urged to conduct their planning and to submit their applications for 
authority sufficiently early so that compliance with the requirements 
relating to issuance of permanent certificates of public convenience and 
necessity (when those requirements are deemed applicable by the 
Commission) will not cause undue delay in the commencement of necessary 
construction.

(52 Stat. 824; 56 Stat. 83; 15 U.S.C. 717f)

[Gen. Policy 62-1, 26 FR 10098, Oct. 27, 1961]



Sec. 2.60  Facilities and activities during an emergency--accounting 
treatment of defense-related expenditures.

    The Commission, cognizant of the need of the natural gas industry 
for advice with respect to the applicability of the Natural Gas Act and 
the Commission's regulations thereunder regarding activities and 
operations of natural gas companies taking security measures in 
preparation for a possible national emergency, sets forth the following 
interpretation and statement of policy:
    (a) Facilities. The definition of auxiliary installations in Sec. 
2.55(a) for which no

[[Page 32]]

certificate authority is necessary includes such defense-related 
facilities as (1) fallout shelters at compressor stations and other 
operating and maintenance camps; (2) emergency company headquarters or 
other similar installations; and (3) emergency communication equipment.
    (b) The Commission will consider reasonable investment in defense-
related facilities, such as those described in paragraph (a) of this 
section, to be prudent investment for ratemaking purposes.
    (c) When a person, not otherwise subject to the jurisdiction of the 
Commission, files an application for a certificate of public convenience 
and necessity authorizing the construction of facilities to be used 
solely for operation in a national emergency for the delivery of gas to, 
or receipt of gas from, a person subject to the Commission's 
jurisdiction, the Commission will consider a request by such applicant 
for waiver of the requirement to keep and maintain its accounts in 
accordance with the Uniform System of Accounts for Natural Gas Companies 
(parts 201 and 204 of this chapter) or to file the annual reports to the 
Commission required by Sec. Sec. 260.1 and 260.2 of this chapter.

(Secs. 3, 4, 15, 16, 301, 304, 308, and 309 (41 Stat. 1063-1066, 1068, 
1072, 1075; 49 Stat. 838, 839, 840, 841, 854-856, 858-859; 82 Stat. 617; 
16 U.S.C. 796, 797, 803, 808, 809, 816, 825, 825b, 825c, 825g, 825h, 
826i), as amended, secs. 8, 10, and 16 (52 Stat. 825-826, 830; 15 U.S.C. 
717g, 717i, 717o))

[Order 274, 28 FR 12866, Dec. 4, 1963, as amended by Order 567, 42 FR 
30612, June 16, 1977]



Sec. 2.67  Calculation of taxes for property of pipeline companies 
constructed or acquired after January 1, 1970.

    Pursuant to the provisions of section 441(a)(4)(A) of the Tax Reform 
Act of 1969, 83 Stat. 487, 625, natural gas pipeline companies which 
have exercised the option provided by that section to change from flow 
through accounting will be permitted by the Commission, with respect to 
liberalized depreciation, to employ a normalization method for computing 
Federal income taxes in their accounts and annual reports with respect 
to property constructed or acquired after January 1, 1970, to the extent 
to which such property increases the productive or operational capacity 
of the utility and is not a replacement of existing capacity. Such 
normalization will also be permitted for ratemaking purposes. As to 
balances in Account No. 282 of the Uniform System of Accounts, 
``Accumulated deferred income taxes--Other property,'' it will remain 
the Commission's policy to deduct such balances from the rate base of 
natural gas pipeline companies in rate proceedings.

(Secs. 3, 4, 5, 8, 9, 10, 15, 16, 301, 304, 308, and 309 (41 Stat. 1063-
1066, 1068, 1072, 1075; 49 Stat. 838, 839, 840, 841, 854-856, 858-859; 
52 Stat. 822, 823, 825, 826; 76 Stat. 72; 82 Stat. 617; 16 U.S.C. 796, 
797, 803, 808, 809, 816, 825, 825b, 825c, 825g, 825h, 826i); as amended, 
secs. 8, 10, and 16 (52 Stat. 825-826, 830; 15 U.S.C. 717c, 717d, 717g, 
717h, 717i, 717o))

[Order 404, 35 FR 7964, May 23, 1970, as amended by Order 567, 42 FR 
30612, June 16, 1977]



Sec. 2.69  [Reserved]



Sec. 2.76  Regulatory treatment of payments made in lieu of take-or-pay 
obligations.

    With respect to payments made to a first seller of natural gas as 
consideration for waiving or revising any agreement for the first sale 
of natural gas, as defined by section (2)(21) of the Natural Gas Policy 
Act (NGPA), the Commission sets forth the following statement of general 
policy and interpretation of law.
    (a) Payments in consideration. A first seller of natural gas that 
receives payments as consideration for amending or waiving the take-or-
pay or similar minimum payment provisions of a contract for the first 
sale of natural gas is not in violation of section 504(a) of the NGPA.
    (b) Recovery in rates. A pipeline that makes any payments referred 
to under paragraph (a) of this section, to first sellers may file to 
recover such costs in any section 4(e) rate filing other than a filing 
to recover purchased gas costs.
    (c) Case-specific review. A pipeline's method of recovering these 
costs and how it should apportion them among customers will be addressed 
on a case-by-case basis in the context of individual rate case filings.

[[Page 33]]

    (d) Customers' rights. When a pipeline seeks to recover payments 
referred to under paragraph (a) of this section, its customers will have 
the full opportunity contemplated by section 4 of the Natural Gas Act to 
raise questions as to the prudence of such payments, the apportionment 
of costs among customers proposed by the filing pipeline, and any other 
reasonably related matters.
    (e) Certificate amendments and abandonment. With regard to natural 
gas the sale of which is subject to the Commission's jurisdiction under 
the Natural Gas Act, if any payments referred to under paragraph (a) of 
this section are accompanied by a change in or a termination of, the 
first seller's contractual obligation to provide natural gas service, 
the Commission will, as a general policy under sections 7(c) and 7(b) of 
the Natural Gas Act, expeditiously grant any certificate amendments or 
abandonment authorizations, required to effectuate such contractual or 
service modifications.
    In cases where a producer abandonment application is based on 
payments made pursuant to this policy statement, the interstate pipeline 
making the payments will be deemed to have waived any right to oppose 
the abandonment.

[50 FR 16080, Apr. 24, 1985, as amended by Order 436, 50 FR 42487, Oct. 
18, 1985]



Sec. 2.78  Utilization and conservation of natural resources--natural 
gas.

    (a)(1) The national interests in the development and utilization of 
natural gas resources throughout the United States will be served by 
recognition and implementation of the following priority-of-service 
categories for use during periods of curtailed deliveries by 
jurisdictional pipeline companies:
    (i) Residential, small commercial (less than 50 Mcf on a peak day).
    (ii) Large commercial requirements (50 Mcf or more on a peak day), 
firm industrial requirements for plant protection, feedstock and process 
needs, and pipeline customer storage injection requirements.
    (iii) All industrial requirements not specified in paragraph 
(a)(1)(ii), (iv), (v), (vi), (vii), (viii), or (ix) of this section.
    (iv) Firm industrial requirements for boiler fuel use at less than 
3,000 Mcf per day, but more than 1,500 Mcf per day, where alternate fuel 
capabilities can meet such requirements.
    (v) Firm industrial requirements for large volume (3,000 Mcf or more 
per day) boiler fuel use where alternate fuel capabilities can meet such 
requirements.
    (vi) Interruptible requirements of more than 300 Mcf per day, but 
less than 1,500 Mcf per day, where alternate fuel capabilities can meet 
such requirements.
    (vii) Interruptible requirements of intermediate volumes (from 1,500 
Mcf per day through 3,000 Mcf per day), where alternate fuel 
capabilities can meet such requirements.
    (viii) Interruptible requirements of more than 3,000 Mcf per day, 
but less than 10,000 Mcf per day, where alternate fuel capabilities can 
meet such requirements.
    (ix) Interruptible requirements of more than 10,000 Mcf per day, 
where alternate fuel capabilities can meet such requirements.
    (2) The priorities-of-deliveries set forth above will be applied to 
the deliveries of all jurisdictional pipeline companies during periods 
of curtailment on each company's system; except, however, that, upon a 
finding of extraordinary circumstances after hearing initiated by a 
petition filed under Sec. 385.207 of this chapter, exceptions to those 
priorities may be permitted.
    (3) The above list of priorities requires the full curtailment of 
the lower priority category volumes to be accomplished before 
curtailment of any higher priority volumes is commenced. Additionally, 
the above list requires both the direct and indirect customers of the 
pipeline that use gas for similar purposes to be placed in the same 
category of priority.
    (4) The tariffs filed with this Commission should contain provisions 
that will reflect sufficient flexibility to permit pipeline companies to 
respond to emergency situations (including environmental emergencies) 
during periods of curtailment where supplemental deliveries are required 
to forestall irreparable injury to life or property.

[[Page 34]]

    (b) Request for relief from curtailment shall be filed under Sec. 
385.1501 of this chapter. Those petitions shall use the priorities set 
forth in (paragraph (a)(1) of this section) above, the definitions 
contained in paragraph (b)(3) of this section and shall contain the 
following minimal information:
    (1) The specific amount of natural gas deliveries requested on peak 
day and monthly basis, and the type of contract under which the 
deliveries would be made.
    (2) The estimated duration of the relief requested.
    (3) A breakdown of all natural gas requirements on peak day and 
monthly bases at the plant site by specific end-uses.
    (4) The specific end-uses to which the natural gas requested will be 
utilized and should also reflect the scheduling within each particular 
end-use with and without the relief requested.
    (5) The estimated peak day and monthly volumes of natural gas which 
would be available with and without the relief requested from all 
sources of supply for the period specified in the request.
    (6) A description of existing alternate fuel capabilities on peak 
day and monthly bases broken down by end-uses as shown in paragraph 
(b)(3) of this section.
    (7) For the alternate fuels shown in paragraph (b)(5) of this 
section, provide a description of the existing storage facilities and 
the amount of present fuel inventory, names and addresses of existing 
alternate fuel suppliers, and anticipated delivery schedules for the 
period for which relief is sought.
    (8) The current price per million Btu for natural gas supplies and 
alternate fuels supplies.
    (9) A description of efforts to secure natural gas and alternate 
fuels, including documentation of contacts with the Federal Energy 
Office and any state or local fuel allocation agencies or public utility 
commission.
    (10) A description of all fuel conservation activities undertaken in 
the facility for which relief is sought.
    (11) If petitioner is a local natural gas distributor, a description 
of the currently effective curtailment program and details regarding any 
flexibility which may be available by effectuating additional 
curtailment to its existing industrial customers. The distributor should 
also provide a breakdown of the estimated disposition of its natural gas 
estimated to be available by end-use priorities established in paragraph 
(a)(1) of this section for the period for which relief is sought.
    (c) When used in paragraphs (a) and (b) of this section, the 
following terms will be defined as follows:
    (1) Residential. Service to customers which consists of direct 
natural gas usage in a residential dwelling for space heating, air 
conditioning, cooking, water heating, and other residential uses.
    (2) Commercial. Service to customers engaged primarily in the sale 
of goods or services including institutions and local, state, and 
federal government agencies for uses other than those involving 
manufacturing or electric power generation.
    (3) Industrial. Service to customers engaged primarily in a process 
which creates or changes raw or unfinished materials into another form 
or product including the generation of electric power.
    (4) Firm service. Service from schedules or contracts under which 
seller is expressly obligated to deliver specific volumes within a given 
time period and which anticipates no interruptions, but which may permit 
unexpected interruption in case the supply to higher priority customers 
is threatened.
    (5) Interruptible service. Service from schedules or contracts under 
which seller is not expressly obligated to deliver specific volumes 
within a given time period, and which anticipates and permits 
interruption on short notice, or service under schedules or contracts 
which expressly or impliedly require installation of alternate fuel 
capability.
    (6) Plant protection gas. Is defined as minimum volumes required to 
prevent physical harm to the plant facilities or danger to plant 
personnel when such protection cannot be afforded through the use of an 
alternate fuel. This includes the protection of such material

[[Page 35]]

in process as would otherwise be destroyed, but shall not include 
deliveries required to maintain plant production. For the purposes of 
this definition propane and other gaseous fuels shall not be considered 
alternate fuels.
    (7) Feedstock gas. Is defined as natural gas used as raw material 
for its chemical properties in creating an end product.
    (8) Process gas. Is defined as gas use for which alternate fuels are 
not technically feasible such as in applications requiring precise 
temperature controls and precise flame characteristics. For the purposes 
of this definition propane and other gaseous fuels shall not be 
considered alternate fuels.
    (9) Boiler fuel. Is considered to be natural gas used as a fuel for 
the generation of steam or electricity, including the utilization of gas 
turbines for the generation of electricity.
    (10) Alternate fuel capabilities. Is defined as a situation where an 
alternate fuel could have been utilized whether or not the facilities 
for such use have actually been installed; Provided, however, Where the 
use of natural gas is for plant protection, feedstock, or process uses 
and the only alternate fuel is propane or other gaseous fuel then the 
consumer will be treated as if he had no alternate fuel capability.

(Sec. 4, 52 Stat. 822, 76 Stat. 72 (15 U.S.C. 717c); Sec. 5, 52 Stat. 
823 (15 U.S.C. 717d); Sec. 7, 52 Stat. 824, 825, 56 Stat. 83, 84, 61 
Stat. 459 (15 U.S.C. 717f); Sec. 10, 52 Stat. 826 (15 U.S.C. 717i); Sec. 
14, 52 Stat. 820 (15 U.S.C. 717m); Sec. 15, 52 Stat. 829 (15 U.S.C. 
717n); Sec. 16, 52 Stat. 930 (15 U.S.C. 717o); Pub. L. 96-511, 94 Stat. 
2812 (44 U.S.C. 3501 et seq.))

[Order 467A, 38 FR 2171, Jan. 22, 1973, as amended by Order 467B, 38 FR 
6386, Mar. 9, 1973; Order 493-A, 38 FR 30433, Nov. 5, 1973; Order 467-C, 
39 FR 12984, Apr. 10, 1974; Order 225, 47 FR 19055, May 3, 1982]

Statement of General Policy To Implement Procedures for Compliance With 
              the National Environmental Policy Act of 1969

    Authority: Sections 2.80-2.82 issued under secs. 4, 10, 15, 307, 
309, 311 and 312 (41 Stat. 1065, 1066, 1068, 1070; 46 Stat. 798, 49 
Stat. 839, 840, 841, 942, 843, 844, 856, 857, 858, 859, 860, Stat. 501, 
82 Stat. 617; 16 U.S.C. 797, 803, 808, 825f, 825h, 825j, 825k), and the 
Natural Gas Act, particularly secs. 7 and 16 (52 Stat. 824, 825, 830, 56 
Stat. 83, 84; 61 Stat. 459; 15 U.S.C. 717f, 717o), and the National 
Environmental Policy Act of 1969, Pub. L. 91-190, approved January 1, 
1970, particularly secs. 102 and 103 (83 Stat. 853, 854), unless 
otherwise noted.



Sec. 2.80  Detailed environmental statement.

    (a) It will be the general policy of the Federal Energy Regulatory 
Commission to adopt and to adhere to the objectives and aims of the 
National Environmental Policy Act of 1969 (NEPA) in its regulations 
promulgated for statutes under the jurisdiction of the Commission, 
including the Federal Power Act, the Natural Gas Act and the Natural Gas 
Policy Act. The National Environmental Policy Act of 1969 requires, 
among other things, all Federal agencies to include a detailed 
environmental statement in every recommendation or report on proposals 
for legislation and other major Federal actions significantly affecting 
the quality of the human environment.
    (b) Therefore, in compliance with the National Environmental Policy 
Act of 1969, the Commission staff will make a detailed environmental 
statement when the regulatory action taken by the Commission under the 
statutes under the jurisdiction of the Commission will have a 
significant environmental impact. The specific regulations implementing 
NEPA are contained in part 380 of the Commission's regulations.

[Order 486, 52 FR 47910, Dec. 17, 1987]

Statement of General Policy To Implement the Economic Stabilization Act 
        of 1970, as Amended, and Executive Orders 11615 and 11627

    Authority: Sections 2.90 through 2.102 issued under 84 Stat. 799, as 
amended, 85 Stat. 38, unless otherwise noted.



Sec. Sec. 2.100-2.102  [Reserved]



Sec. 2.103  Statement of policy respecting take or pay provisions in gas 
purchase contracts.

    (a) Recognizing that take or pay contract obligations may be 
shielding the prices of deregulated and other higher cost gas from 
market constraints, the Commission sets forth its general policy 
regarding prepayments for natural gas pursuant to take or pay provisions

[[Page 36]]

in gas contracts and amendments thereto between producers and interstate 
pipelines which become effective December 23, 1982. The provisions of 
this policy statement do not establish a binding norm but instead 
provide general guidance. In particular cases, both the underlying 
validity of the policy and its application to particular facts may be 
challenged and are subject to further consideration.
    (b) With respect to gas purchase contracts entered into on or after 
December 23, 1982, the Commission intends to apply a rebuttable 
presumption in general rate cases that prepayments to producers will not 
be given rate base treatment if the prepayments are made pursuant to 
take or pay requirements in such gas purchase contracts or amendments 
which exceed 75 percent of annual deliverability.

(Natural Gas Act, 15 U.S.C. 717-717w; Natural Gas Policy Act of 1978, 
Pub. L. No. 95-621, 92 Stat. 3350, 15 U.S.C. 3301-3432)

[47 FR 57269, Dec. 23, 1982]



Sec. 2.104  Mechanisms for passthrough of pipeline take-or-pay buyout 
and buydown costs.

    (a) General Policy. The Commission as a matter of policy will 
provide two distinct mechanisms for passthrough of take-or-pay buyout 
and buydown costs of interstate natural gas pipelines. The first is 
pursuant to existing Commission policy and practice. Under this method, 
pipelines may pass through prudently incurred take-or-pay buyout and 
buydown costs in their sales commodity rates. The second method is 
available to pipelines which agree to an equitable sharing of take-or-
pay costs and which transport under part 284 of this chapter. Qualifying 
pipelines may utilize the alternative passthrough mechanisms described 
in this section. Where a pipeline agrees to absorb from 25 to 50 percent 
of take-or-pay buyout and buydown costs, the Commission will permit the 
pipeline to recover through a fixed charge an amount equal to (but not 
greater than) the amount absorbed. Any remaining costs up to 50 percent 
of total buyout and buydown costs may be recovered either through a 
commodity rate surcharge or a volumetric surcharge on total throughput.
    (b) Cost allocation procedures. A pipeline's volume-based surcharges 
must be based on the volumes which underlie its most recent Commission-
approved rates. Fixed charges must be based on each customer's 
cumulative deficiency in purchases in recent years (during which the 
current take-or-pay liabilities of the pipelines were incurred) measured 
in relation to that customer's purchases during a representative period 
during which take-or-pay liabilities were not incurred. The allocation 
formula employed must incorporate the following guidelines:
    (1) A representative base period must be selected. The base period 
must reflect a representative level of purchases by the pipeline's firm 
customers during a period preceding the onset of changed conditions 
which resulted in reduced purchases and growth of the take-or-pay 
problem.
    (2) Firm purchases by each customer during the base year under firm 
rate schedules or contracts for firm service must be determined.
    (3) Firm sales purchase deficiency volumes for each subsequent year 
must be determined.
    (4) A fixed charge based on each customer's cumulative deficiencies 
as compared to total cumulative deficiencies must be derived. The filing 
pipeline will be free to select for rate calculation and filing purposes 
a reasonable amortization period for buyout and buydown costs being 
recovered through fixed charges or volumetric surcharges. The pipeline 
will be entitled to interest at the rate set forth in part 154 of this 
chapter on unamortized amounts.
    (c) Implementing procedures. (1) Pipelines acting pursuant to this 
section may submit on or before December 31, 1990, a non-PGA rate filing 
under section 4(e) of the Natural Gas Act. Pipelines may include in 
their filings a fixed charge and a volumetric surcharge to recover 
buyout and buydown costs actually paid as of the date of filing plus 
similar costs which are known and measurable within the following nine 
months. Detailed support for the amounts claimed and for the calculation 
of customer surcharges must be provided. In addition, the pipeline must 
disclose and describe all consideration,

[[Page 37]]

both cash and noncash, given to producers in exchange for take-or-pay 
relief.
    (2) In any filings made under this section, pipelines must include 
proposals for periodic (preferably annual) adjustments to customer 
surcharges, together with any necessary accounting procedures, designed 
to assure that revenues recovered by the pipeline remain in balance with 
buyout and buydown costs covered by the filing and actually incurred by 
the pipeline.
    (d) Prudence. (1) The Commission will examine the issue of prudence 
if it is raised by a party in an individual proceeding. If it is raised, 
the pipeline will be required to demonstrate the prudence of take-or-pay 
buyout and buydown costs which it seeks to recover from its customers 
through both fixed and volume-based charges.
    (2) The Commission intends to exercise its authority to the full 
extent permitted by the Natural Gas Act to approve take-or-pay 
settlements. The Commission intends to approve uncontested take-or-pay 
settlements which are consistent with this section and found to be in 
the public interest. The Commission will also, if it appears reasonable 
and permissible to do so, approve contested settlements as to all 
consenting parties and initiate separate hearings to establish the rates 
for opposing parties. Alternatively, the Commission will approve 
contested settlements on the merits if supported by substantial evidence 
in the record. In any case where hearings are held as to the prudence of 
take-or-pay buyout and buydown costs, the Commission will permit the 
pipeline the opportunity to recover all take-or-pay costs found to be 
prudent from the contesting parties on a proportional basis, even if the 
amount allowed is greater than the amounts initially sought to be 
recovered by the pipeline.
    (e) Flowthrough by downstream pipelines. Downstream pipelines must 
flow through approved take-or-pay fixed charges based on the cumulative 
purchase deficiencies of their customers. Volumetrically-based 
surcharges must be flowed through on a volumetric basis. Customers of 
downstream pipelines have the right in connection with either PGA or 
general rate filings to challenge the purchasing practices of such 
pipelines. Remedies for purchasing practices found by the Commission to 
be imprudent will be determined on a case-by-case basis.
    (f) Ongoing proceedings. Pipeline rate proceedings pending September 
15, 1987 may be utilized as a forum for implementing the approved cost 
recovery mechanisms set forth in this section. Permission will be 
granted in cases where implementation of this policy in pending 
proceedings appears feasible, will not result in inordinate delay, or 
can be expected to result in unnecessary or cumulative rate filings with 
the Commission. In the event permission is granted, the presiding 
judge(s) will allow pipelines to supplement their filings to the extent 
necessary to assure compliance with the filing and data requirements set 
forth herein. The presiding judges shall also establish any procedures 
necessary to protect the rights of all parties. Any rates established 
pursuant to this section will be permitted to become effective only 
prospectively upon Commission approval.
    (g) Scope. This section does not go beyond the Commission's 
determination in the April 10, 1985, policy statement (Docket No. PL85-
1-000) that take-or-pay buyout and buydown costs do not violate the 
pricing provision of the Natural Gas Policy Act of 1978 (NGPA). It is 
not intended to affect take-or-pay prepayments made by pipelines and 
included in account 165 and in their rate bases. Nor does it address the 
issue of whether take-or-pay prepayments to a producer for gas not taken 
and which cannot be made up violate the Title I pricing provisions of 
the NGPA. This policy statement applies only to buyout and buydown costs 
paid by pipelines that are transporting under part 284 of this chapter, 
under existing contracts, and is not intended to disturb in any way 
take-or-pay settlements previously entered into between pipelines and 
their producer suppliers.

[Order 500, 52 FR 30351, Aug. 14, 1987, as amended at 52 FR 35539, Sept. 
22, 1987; Order 500-F, 53 FR 50924, Dec. 19, 1988; 54 FR 52394, Dec. 21, 
1989; Order 581, 60 FR 53064, Oct. 11, 1995]

[[Page 38]]



Sec. 2.105  Gas supply charges.

    An interstate natural gas pipeline that transports under part 284 of 
this chapter may include in its tariff a charge, not related to 
facilities, for standing ready to supply gas to sales customers in 
accordance with the following principles:
    (a) The pipeline may not recover take-or-pay or similar charges from 
suppliers by any other means.
    (b) The pipeline must allow its sales customers to nominate levels 
of service freely within their firm sales entitlements or otherwise 
employ a mechanism for the renegotiation of levels of service at regular 
intervals.
    (c) The pipeline must announce prior to nominations by the customers 
a firm price or pricing formula for the service, and hold that price or 
pricing formula firm during the interval arranged in paragraph (b) of 
this section.
    (d) By nominating a new level of service lower than its current 
level, a customer has consented to any abandonment sought by the 
pipeline commensurate with the difference between the current level of 
service and the nominated level.

[Order 500, 52 FR 30352, Aug. 14, 1987; 52 FR 35539, Sept. 22, 1987, and 
54 FR 52394, Dec. 21, 1989]

                     Rules of General Applicability



Sec. 2.201  [Reserved]

 Statement of General Policy and Interpretations Under the Natural Gas 
                           Policy Act of 1978



Sec. 2.300  Statement of policy concerning allegations of fraud, abuse, 
or similar grounds under section 601(c) of the NGPA.

    Recognizing the potential for an increasing number of intervenor 
complaints predicated on the fraud, abuse, or similar grounds exception 
to guaranteed passthrough, the Commission sets forth the elements of a 
cognizable claim under section 601(c)(2) which it expects to apply in 
cases in which fraud, abuse, or similar grounds is raised. The 
provisions of this policy statement do not establish a binding norm but 
instead provide general guidance. In particular cases, both the 
underlying validity of the policy and its application to particular 
facts may be challenged and are subject to further consideration. The 
procedure prescribed conforms with the NGPA's general guarantee of 
passthrough by placing the burden of pleading the elements and proving 
the elements of a case on intervenors who would allege fraud, abuse, or 
similar grounds as a basis for denying passthrough of gas prices 
incurred by an interstate pipeline.
    (a) In order for the issue of fraud, as that term is used in section 
601(c) of the NGPA, to be considered in a proceeding, an intervenor or 
intervenors must file a complaint alleging that:
    (1) The interstate pipeline, any first seller who sells natural gas 
to the interstate pipeline, or both acting together, have made a 
fraudulent misrepresentation or concealment; and
    (2) Because of that fraudulent misrepresentation or concealment, the 
amount paid by the interstate pipeline to any first seller of natural 
gas was higher than it would have been absent the fraudulent conduct.
    (b) In order for the issue of abuse, as that term is used in section 
601(c) of the NGPA, to be considered in a proceeding, an intervenor or 
intervenors must file a complaint alleging that:
    (1) The interstate pipeline, a first seller who sells to the 
interstate pipeline, or both acting together, have made a negligent 
misrepresentation or concealment, or other misrepresentation or 
concealment in disregard of a duty; and
    (2) Because of that negligent misrepresentation or concealment, or 
other misrepresentation or concealment in disregard of a duty, the 
amount paid by the interstate pipeline to any first seller of natural 
gas was higher than it would have been absent the negligent 
misrepresentation or concealment, or other misrepresentation or 
concealment made in disregard of a duty.
    (c) In order for the issue of similar grounds, as that term is used 
in section 601(c) of the NGPA, to be considered in a proceeding, an 
intervenor or intervenors must file a complaint alleging that:
    (1) The interstate pipeline, any first seller who sells natural gas 
to the

[[Page 39]]

interstate pipeline, or both acting together, have made an innocent 
misrepresentation of fact; and
    (2) Because of that innocent misrepresentation of facts, the amount 
paid by the interstate pipeline to any first seller of natural gas was 
higher than it would have been absent the innocent misrepresentation of 
fact.

(Natural Gas Policy Act of 1978, Pub. L. 95-621, 92 Stat. 3350, (15 
U.S.C. 3301-3432))

[47 FR 6262, Feb. 11, 1982]

Statement of Interpretation Under the Public Utility Regulatory Policies 
                               Act of 1978



Sec. 2.400  Statement of interpretation of waste concerning natural gas 
as the primary energy source for qualifying small power production facilities.

    For purposes of deciding whether natural gas may be considered as 
waste as the primary energy source pursuant to Sec. 292.204(b)(1)(i) of 
this chapter, the Commission will use the criteria described in 
paragraphs (a), (b) and (c) of this section.
    (a) Category 1. Except as provided in paragraph (b) of this section, 
natural gas with a heating value of 300 Btu per standard cubic foot 
(scf) or below will be considered unmarketable.
    (b) Category 2. In determining whether natural gas with a heating 
value above 300 Btu but not more than 800 Btu per scf and natural gas 
produced in the Moxa Arch area is unmarketable, the Commission will 
consider the following information:
    (1) The percentages of the chemical components of the gas, the 
wellhead pressure, and the flow rate;
    (2) Whether the applicant offered the gas to all potential buyers 
located within 20 miles of the wellhead under terms and conditions 
commensurate with those prevailing in the region and that such potential 
buyers refused to buy the gas; and
    (3) A study, which may be submitted by an applicant, that evaluates 
the economics of upgrading the gas for sale and transporting the gas to 
a pipeline. The study should include estimates of the revenues which 
could be derived from the sale of the gas and the fixed and variable 
costs of upgrading.
    (c) Category 3. In determining whether natural gas with a heating 
value above 800 Btu per scf is marketable, the Commission will consider 
the information included in paragraph (b) of this section and whether:
    (1) The gas has actually been flared, vented to the atmosphere, or 
continuously injected into a non-producing zone for a period of one 
year, pursuant to legal authority; or
    (2) The gas has been certified as waste, i.e., suitable for 
disposal, by an appropriate state authority.

[Order 471, 52 FR 19310, May 22, 1987]

 Statement of Penalty Reduction/Waiver Policy To Comply With the Small 
          Business Regulatory Enforcement Fairness Act of 1996



Sec. 2.500  Penalty reduction/waiver policy for small entities.

    (a) It is the policy of the Commission that any small entity is 
eligible to be considered for a reduction or waiver of a civil penalty 
if it has no history of previous violations, and the violations at issue 
are not the product of willful or criminal conduct, have not caused loss 
of life or injury to persons, damage to property or the environment or 
endangered persons, property or the environment. An eligible small 
entity will be granted a waiver if it can also demonstrate that it 
performed timely remedial efforts, made a good faith effort to comply 
with the law and did not obtain an economic benefit from the violations. 
An eligible small entity that cannot meet the criteria for waiver of a 
civil penalty may be eligible for consideration of a reduced penalty. 
Upon the request of a small entity, the Commission will consider the 
entity's ability to pay before assessing a civil penalty.
    (b) Notwithstanding paragraph (a) of this section, the Commission 
reserves the right to waive or reduce civil penalties in appropriate 
individual circumstances where it determines that a waiver or reduction 
is warranted by the public interest.

[Order 594, 62 FR 15830, Apr. 3, 1997]

[[Page 40]]

     Appendix A to Part 2--Guidance for Determining the Acceptable 
                   Construction Area for Replacements

    These guidelines shall be followed to determine what area may be 
used to construct the replacement facility. Specifically, they address 
what areas, in addition to the permanent right-of-way, may be used.
    Pipeline replacement must be within the existing right-of-way as 
specified by Sec. 2.55(b)(1)(ii). Construction activities for the 
replacement can extend outside the current permanent right-of-way if 
they are within the temporary and permanent right-of-way and associated 
work spaces used in the original installation.
    If documentation is not available on the location and width of the 
temporary and permanent rights-of-way and associated work space that was 
used to construct the original facility, the company may use the 
following guidance in replacing its facility, provided the appropriate 
easements have been obtained:
    a. Construction should be limited to no more than a 75-foot-wide 
right-of-way including the existing permanent right-of-way for large 
diameter pipeline (pipe greater than 12 inches in diameter) to carry out 
routine construction. Pipeline 12 inches in diameter and smaller should 
use no more than a 50-foot-wide right-of-way.
    b. The temporary right-of-way (working side) should be on the same 
side that was used in constructing the original pipeline.
    c. A reasonable amount of additional temporary work space on both 
sides of roads and interstate highways, railroads, and significant 
stream crossings and in side-slope areas is allowed. The size should be 
dependent upon site-specific conditions. Typical work spaces are:

------------------------------------------------------------------------
                Item                   Typical extra area (width/length)
------------------------------------------------------------------------
Two lane road (bored)...............  25-50 by 100 feet.
Four lane road (bored)..............  50 by 100 feet.
Major river (wet cut)...............  100 by 200 feet.
Intermediate stream (wet cut).......  50 by 100 feet.
Single railroad track...............  25-50 by 100 feet.
------------------------------------------------------------------------

    d. The replacement facility must be located within the permanent 
right-of-way or, in the case of nonlinear facilities, the cleared 
building site. In the case of pipelines this is assumed to be 50-feet-
wide and centered over the pipeline unless otherwise legally specified.
    However, use of the above guidelines for work space size is 
constrained by the physical evidence in the area. Areas obviously not 
cleared during the original construction, as evidenced by stands of 
mature trees, structures, or other features that exceed the age of the 
facility being replaced, should not be used for construction of the 
replacement facility.
    If these guidelines cannot be met, the company should consult with 
the Commission's staff to determine if the exemption afforded by Sec. 
2.55 may be used. If the exemption may not be used, construction 
authorization must be obtained pursuant to another regulation under the 
Natural Gas Act.

[Order 603, 64 FR 26603, May 14, 1999]

                     Appendix B to Part 2 [Reserved]

[[Page 41]]

   Appendix C to Part 2--Nationwide Proceeding Computation of Federal 
  Income Tax Allowance Independent Producers, Pipeline Affiliates and 
    Pipeline Producers Continental U.S.--1972 Data (Docket No. R-478)

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            (2)--Total                                  (5)--No                  (7)--Percentage
                                                      Schedule   Line                        excluding       (3)--Gas    (4)--Lease      lease      (6)--Total        lease       (8)--Allocated
      Line No.                  Particulars              No.     No.    (1)--Total \1\   production taxes    only \3\    separation    separation       \4\       separation gas  amount gas \6\
                                                                                                \2\                          \3\          \3\                          \5\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     production, exploration and development costs
 
2                     Direct and indirect lease            1-A     01     1,694,893,558     1,694,893,558   57,287,938  $144,679,567  $19,763,791  $221,731,296         90.33        207,740,782
                       costs and expenses.
2                     Taxes (except income and             A-1     02       210,335,720       210,335,720   16,507,630    20,431,444    4,360,024    41,299,098          9.33         39,323,337
                       production).
4                     Production taxes..............       1-A     03       479,424,297  ................   27,124,210    96,699,673   10,005,599   133,829,482         90.33        124,478,624
5                     Other lease expenses..........       1-A     04        61,102,433        61,102,433   17,527,077    24,988,900      336,427    42,852,404         90.33         40,435,977
6                     Depletion, depreciation and          1-A     05     1,716,823,070     1,716,823,070  105,999,777   297,881,312   25,502,048   429,383,137         90.33        400,578,014
                       amortization.
7                     Corporate general expense.....       1-A     06       278,845,909       278,845,909   13,611,337    25,077,796    3,579,728    42,268,861         90.33         39,843,838
8                     Area, district, division and         1-A     07       261,718,417        26,178,417    7,207,320    21,758,604    2,778,944    31,744,868         90.33         29,640,811
                       field expense.
9                     Miscellaneous lease revenues..       1-A     09      (12,203,136)      (12,203,136)  (1,348,729)   (2,768,788)    (314,067)   (4,431,584)         90.33        (4,163,842)
10                    Return on production rate base       1-A     13     2,505,272,672     2,505,272,672  186,055,524   427,939,601   69,857,212   663,852,337         90.33        622,470,578
                       at 15 percent.
11                    Exploration and development          1-A     15     1,673,945,853     1,673,945,853  ...........  ............  ...........  ............  ...............     594,971,262
                       costs and expenses.
12                    Return on exploration rate           1-A     16       588,558,894       588,558,894  ...........  ............  ...........  ............  ...............     234,604,103
                       base at 15 percent.
13                    Regulatory commission expense        1-A     17         6,514,279         6,514,279  ...........  ............  ...........  ............  ...............       6,514,852
                       including return.
                                                                      ==========================================================================================================================
14
15                     Total computed revenue.......  ........  .....     9,465,231,966     8,985,807,669  ...........  ............  ...........  ............  ...............   2,336,439,376
16 (gross income)
                                                                      --------------------------------------------------------------------------------------------------------------------------
17
18 revenue deductions
 
19                    Direct and indirect lease            1-A     01     1,694,893,558     1,694,893,558  ...........  ............  ...........  ............  ...............     207,740,872
                       costs and expenses.
20                    Taxes (except income and             1-A     02       210,335,720       210,335,720  ...........  ............  ...........  ............  ...............      39,323,377
                       production).
21                    Production taxes..............       1-A     03       479,424,297  ................  ...........  ............  ...........  ............  ...............     124,478,624
22                    Other lease expenses..........       1-A     04        61,102,433        61,102,433  ...........  ............  ...........  ............  ...............      40,435,977
23                    Book depletion................  ........  .....               \7\       283,121,242   24,287,986    61,675,828    6,177,596    92,141,410         90.33         86,177,357
                                                                          (283,121,142)
24                    Depreciation expense..........       1-A     05               \7\       654,604,447   30,223,586    94,010,520    7,007,662   131,241,768         90.33        122,150,951
                                                                          (654,604,447)
25                    Amortization of capitalized     ........  .....               \7\       779,097,382   51,488,205   142,194,964   12,316,790   205,999,959         90.33        192,249,706
                       IDC.                                               (779,097,382)
26                    Corporate general expense.....       1-A     06       278,845,909       278,845,909  ...........  ............  ...........  ............  ...............      39,843,838

[[Page 42]]

 
27                    Area, district, division and         1-A     07       261,718,417       261,718,417  ...........  ............  ...........  ............  ...............      29,640,811
                       field expense.
28                    Miscellaneous lease revenues..       1-A     09      (12,203,136)      (12,203,136)  ...........  ............  ...........  ............  ...............     (4,163,842)
29                    Exploration and development     ........  .....     1,673,945,853     1,673,945,853  ...........  ............  ...........  ............  ...............     594,971,262
                       costs and expenses.
30                    Regulatory commission expense.       4-A     01         6,384,384         6,394,384  ...........  ............  ...........  ............  ...............       6,394,384
                                                               ---------------------------------------------------------------------------------------------------------------------------------
31
32                     Total book expenses..........  ........  .....     6,371,380,505     5,891,856,209  ...........  ............  ...........  ............  ...............   1,479,243,227
                                                               ---------------------------------------------------------------------------------------------------------------------------------
33
34                    Production net income (line 15  ........  .....     3,093,951,461     3,093,951,460  ...........  ............  ...........  ............  ...............     857,190,149
                       less line 32).
                                                               ---------------------------------------------------------------------------------------------------------------------------------
35
36 tax adjustment--add (deduct)
 
37                    Amortization of capitalized     ........  .....       779,097,282       779,097,382  ...........  ............  ...........  ............  ...............     192,249,706
                       IDC.
38                    Estimated IDC capitalized in    ........  .....               \8\   (1,470,935,857)  ...........  ............  ...........  ............  ...............   (362,967,445)
                       1972.                                            (1,470,935,857)
39                    Interest expense (calculated).  ........  .....               \9\     (243,846,540)  ...........  ............  ...........  ............  ...............    (60,587,136)
                                                                          (243,846,540)
                                                               ---------------------------------------------------------------------------------------------------------------------------------
40
41                     Taxable income...............  ........  .....     2,158,266,445     2,158,266,445  ...........  ............  ...........  ............  ...............     625,891,274
                                                               ---------------------------------------------------------------------------------------------------------------------------------
42
43                     Federal income tax at 48       ........  .....     1,992,245,949     1,992,245,949  ...........  ............  ...........  ............  ...............            \10\
                       percent.                                                                                                                                                      577,745,791
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Lines 1 thru 15, col. (1). From Notice issued Sept. 12, 1974, app. A, p. 12, col. (d).
\2\ Production taxes have been deleted from col. (1).
\3\ From notice issued Sept. 12, 1974, app. A, p. 12, cols. (g), (h), and (i).
\4\ Col. (3) plus col. (4) plus col. (5).
\5\ Calculated on a modified British thermal unit basis (1.5 to 1).
\6\ Col. (7) times col. (4), plus cols. (3) and (5).
\7\ See composites mailed to all parties on Feb. 13, 1974.
\8\ Calculated, 188.8 percent (A R64-1-2) times $779,097,382 equals $1,470,935,857.
\9\ Calculated 0.0146 (interest rate) times $16,701,817,818 (app. A, schedule 2-A, (d), line 11, p. 13) equals $243,846,540.
\10\ $577,745,791 divided by 9,508,369,001 equals 6.08 cents per thousand cubic feet.


[Opinion 749, 41 FR 3092, Jan. 21, 1976]

[[Page 43]]

                            PART 3 [RESERVED]



PART 3a_NATIONAL SECURITY INFORMATION--Table of Contents

                                 General

Sec.
3a.1 Purpose.
3a.2 Authority.

                             Classification

3a.11 Classification of official information.
3a.12 Authority to classify official information.
3a.13 Classification responsibility and procedure.

                    Declassification and Downgrading

3a.21 Authority to downgrade and declassify.
3a.22 Declassification and downgrading.
3a.23 Review of classified material for declassification purposes.

              Classification Markings and Special Notations

3a.31 Classification markings and special notations.

                     Access to Classified Materials

3a.41 Access requirements.

                            Security Officers

3a.51 Designation of security officers.

              Storage and Custody of Classified Information

3a.61 Storage and custody of classified information.

                 Accountability for Classified Material

3a.71 Accountability for classified material.

                   Transmittal of Classified Material

3a.81 Transmittal of classified material.

                            Data Index System

3a.91 Data index system.

    Authority: E.O. 11652 (37 FR 5209, March 10, 1972), National 
Security Council Directive of May 17, 1972 (37 FR 10053, May 19, 1972), 
sec. 309 of the Federal Power Act (49 Stat. 858, 859; 16 U.S.C. 825h) 
and sec. 16 of the Natural Gas Act (52 Stat. 830; 15 U.S.C. 717o).

    Source: Order 470, 38 FR 5161, Feb. 26, 1973, unless otherwise 
noted.

                                 General



Sec. 3a.1  Purpose.

    This part 3a describes the Federal Power Commission program to 
govern the classification, downgrading, declassification, and 
safeguarding of national security information. The provisions and 
requirements cited herein are applicable to the entire agency except 
that material pertaining to personnel security shall be safeguarded by 
the Personnel Security Officer and shall not be considered classified 
material for the purpose of this part.



Sec. 3a.2  Authority.

    Official information or material referred to as classified in this 
part is expressly exempted from public disclosure by 5 U.S.C. 552(b)(1). 
Wrongful disclosure thereof is recognized in the Federal Criminal Code 
as providing a basis for prosecution. E.O. 11652, March 8, 1972 (37 FR 
5209, March 10, 1972), identifies the information to be protected, 
prescribes classification, downgrading, declassification, and 
safeguarding procedures to be followed and establishes a monitoring 
system to insure its effectiveness. National Security Council Directive 
Governing the Classification, Downgrading, Declassification and 
Safeguarding of National Security Information, May 17, 1972 (37 FR 
10053, May 19, 1972), implements E.O. 11652.

                             Classification



Sec. 3a.11  Classification of official information.

    (a) Security Classification Categories. Information or material 
which requires protection against unauthorized disclosure in the 
interest of the national defense or foreign relations of the United 
States (hereinafter collectively termed national security) is classified 
Top Secret, Secret or Confidential, depending upon the degree of its 
significance to national security. No other categories are to be used to 
identify official information or material requiring protection in the 
interest of national security, except as otherwise expressly provided by 
statute. These classification categories are defined as follows:

[[Page 44]]

    (1) Top Secret. Top Secret refers to national security information 
or material which requires the highest degree of protection. The test 
for assigning Top Secret classification is whether its unauthorized 
disclosure could reasonably be expected to cause exceptionally grave 
damage to the national security. Examples of exceptionally grave damage 
include armed hostilities against the United States or its allies; 
disruption of foreign relations vitally affecting the national security; 
the compromise of vital national defense plans or complex cryptologic 
and communications intelligence systems; the revelation of sensitive 
intelligence operations; and the disclosure of scientific or 
technological developments vital to national security. This 
classification is to be used with the utmost restraint.
    (2) Secret. Secret refers to national security information or 
material which requires a substantial degree of protection. The test for 
assigning Secret classification shall be whether its unauthorized 
disclosure could reasonably be expected to cause serious damage to the 
national security. Examples of serious damage include disruption of 
foreign relations significantly affecting the national security; 
significant impairment of a program or policy directly related to the 
national security; revelation of significant military plans or 
intelligence operations; and compromise of significant scientific or 
technological developments relating to national security. The 
classification Secret shall be sparingly used.
    (3) Confidential. Confidential refers to national security 
information or material which requires protection, but not to the degree 
described in paragraphs (a) (1) and (2) of this section. The test for 
assigning Confidential classification shall be whether its unauthorized 
disclosure could reasonably be expected to cause damage to the national 
security.
    (b) Classified information will be assigned the lowest 
classification consistent with its proper protection. Documents will be 
classified according to their own content and not necessarily according 
to their relationship to other documents.
    (c) The overall classification of a file or group of physically 
connected documents will be at least as high as that of the most highly 
classified document therein. When put together as a unit or complete 
file, the classification of the highest classified document contained 
therein will be marked on a cover sheet, file folder (front and back), 
or other similar covering, and on any transmittal letters, comments, or 
endorsements.
    (d) Administrative Control Designations. These designations are not 
security classification designations, but are used to indicate a 
requirement to protect material from unauthorized disclosure. Material 
identified under the provisions of this subparagraph will be handled and 
protected in the same manner as material classified Confidential except 
that it will not be subject to the central control system described in 
Sec. 3a.71. Administrative Control designations are:
    (1) For Official Use Only. This designation is used to identify 
information which does not require protection in the interest of 
national security, but requires protection in accordance with statutory 
requirements or in the public interest and which is exempt from public 
disclosure under 5 U.S.C. 552(b) and Sec. 388.105(n) of this chapter.
    (2) Limited Official Use. This administrative control designation is 
used by the Department of State to identify nondefense information 
requiring protection from unauthorized access. Material identified with 
this notation must be limited to persons having a definite need to know 
in order to fulfill their official responsibilities.
    (e) A letter or other correspondence which transmits classified 
material will be classified at a level at least as high as that of the 
highest classified attachment or enclosure. This is necessary to 
indicate immediately to persons who receive or handle a group of 
documents the highest classification involved. If the transmittal 
document does not contain classified information, or if the information 
in it is classified lower than in an enclosure, the originator will 
include a notation to that effect. (See Sec. 3a.31(e).)

[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 225, 47 FR 
19055, May 3, 1982]

[[Page 45]]



Sec. 3a.12  Authority to classify official information.

    (a) The authority to classify information or material originally 
under E.O. 11652 is restricted to those offices within the executive 
branch which are concerned with matters of national security, and is 
limited to the minimum number absolutely required for efficient 
administration.
    (b) The authority to classify information or material originally as 
Top Secret is to be exercised only by such officials as the President 
may designate in writing and by the heads of the following departments 
and agencies and such of their principal staff officials as the heads of 
these departments and agencies may designate in writing;

Such offices in the Executive Office of the President as the President 
may designate in writing.
Central Intelligence Agency.
Atomic Energy Commission.
Department of State.
Department of the Treasury.
Department of Defense.
Department of the Army.
Department of the Navy.
Department of the Air Force.
U.S. Arms Control and Disarmament Agency
Department of Justice.
National Aeronautics and Space Administration.
Agency for International Development.

    (c) The authority to classify information or material originally as 
Secret is exercised only by:
    (1) Officials who have Top Secret classification authority under 
Sec. 3a.11(b); and
    (2) The heads of the following departments and agencies and such 
principal staff officials as they may designate in writing:

Department of Transportation.
Federal Communications Commission.
Export-Import Bank of the United States.
Department of Commerce.
U.S. Civil Service Commission.
U.S. Information Agency.
General Services Administration.
Department of Health, Education, and Welfare.
Civil Aeronautics Board.
Federal Maritime Commission.
Federal Power Commission.
National Science Foundation.
Overseas Private Investment Corporation.

    (d) The authority to classify information or material originally as 
Confidential is exercised by officials who have Top Secret or Secret 
classification authority.
    (e) Pursuant to E.O. 11652, the authority to classify information or 
material originally as Secret or Confidential in the FPC shall be 
exercised only by the Chairman, the Vice Chairman, and the Executive 
Director. When an incumbent change occurs in these positions, the name 
of the new incumbent will be reported to the Interagency Classification 
Review Committee NSC.



Sec. 3a.13  Classification responsibility and procedure.

    (a) Each FPC official who has classifying authority (Sec. 3a.12) 
shall be held accountable for the propriety of the classifications 
attributed to him. Unnecessary classification and overclassification 
shall be avoided. Classification shall be solely on the basis of 
national security considerations. In no case shall information be 
classified in order to conceal inefficiency or administrative error, to 
prevent embarrassment to the FPC or any of its officials or employees, 
or to prevent for any other reason the release of information which does 
not require protection in the interest of national security.
    (b) Each classified document shall show on its face its 
classification and whether it is subject to or exempt from the General 
Declassification Schedule (Sec. 3a.22(b)). It also shall show the 
office of origin, the date of preparation and classification and, to the 
extent practicable, be so marked as to indicate which portions are 
classified, at what level, and which portions are not classified in 
order to facilitate excerpting and other use. Material which merely 
contains references to classified materials, which references do not 
reveal classified information, shall not be classified.
    (c) Material classified under this part shall indicate on its face 
the identity of the highest authority authorizing the classification. 
Where the individual who signs or otherwise authenticates a document or 
item has also authorized the classification, no further annotation as to 
his identity is required.

[[Page 46]]

    (d) Classified information or material furnished to the United 
States by a foreign government or international organization shall 
either retain its original classification or be assigned a U.S. 
classification. In either case, the classification shall assure a degree 
of protection equivalent to that required by the government or 
international organization which furnished the information or material.
    (e) Whenever information or material classified by an authorized 
official is incorporated in another document or other material by any 
person other than the classifier, the previously assigned security 
classification category shall be reflected thereon together with the 
identity of the classifier.
    (f) As a holder of classified information or material, the FPC shall 
observe and respect the classification assigned by the originator. If it 
is believed that there is unnecessary classification; that the assigned 
classification is improper, or that the document is subject to 
declassification under E.O. 11652, the FPC will so inform the originator 
who is then required by the Executive order to reexamine the 
classification.

                    Declassification and Downgrading



Sec. 3a.21  Authority to downgrade and declassify.

    (a) The authority to downgrade and declassify information or 
material shall be exercised as follows:
    (1) Information or material may be downgraded or declassified by the 
official authorizing the original classification, by a successor or by a 
supervisory official of either.
    (2) Downgrading and declassification authority may also be exercised 
by an official specifically authorized under regulations issued by the 
head of the Department listed in sections 2 A and B of E.O. 11652, March 
10, 1972.
    (3) In the case of classified information or material transferred 
pursuant to statute or Executive order in conjunction with a transfer of 
function and not merely for storage purposes, the receiving department 
or agency shall be deemed to be the originating department or agency for 
all purposes under E.O. 11652, including downgrading and 
declassification.
    (4) In the case of classified information or material not officially 
transferred under paragraph (a)(3) of this section, but originated in a 
department or agency which has since ceased to exist, each department or 
agency in possession shall be deemed to be the originating department or 
agency for all purposes. Such information or material may be downgraded 
and declassified after consulting with any other departments or agencies 
having an interest in the subject matter.
    (5) Classified information or material transferred to the General 
Services Administration for accession to the Archives of the United 
States shall be downgraded and declassified by the Archivist of the 
United States in accordance with E.O. 11652, directives of the President 
issued through the National Security Council, and pertinent regulations 
of the departments and agencies.



Sec. 3a.22  Declassification and downgrading.

    (a) When classified information of material no longer requires the 
level of protection assigned to it, it shall be downgraded or 
declassified in order to preserve the effectiveness and integrity of the 
classification system. The Chairman, Vice Chairman, and Executive 
Director exercise downgrading and declassification authority in the FPC.
    (b) Information and material classified prior to June 1, 1972, and 
assigned to Group 4 under E.O. 10501, as amended by E.O. 10964, unless 
declassified earlier by the original classifying authority, shall be 
declassified and downgraded in accordance with the following General 
Declassification Schedule.
    (1) Top Secret. Information or material originally classified TOP 
SECRET becomes automatically downgraded to Secret at the end of the 
second full calendar year following the year in which it was originated, 
downgraded to Confidential at the end of the fourth full calendar year 
following the year in which it was originated, and declassified at the 
end of the 10th full calendar year following the year in which it was 
originated.
    (2) Secret. Information and material originally classified Secret 
becomes

[[Page 47]]

automatically downgraded to Confidential at the end of the second full 
calendar year following the year in which it was originated, and 
declassified at the end of the eighth full calendar year following the 
year in which it was originated.
    (3) Confidential. Information and material originally classified 
Confidential becomes automatically declassified at the end of the sixth 
full calendar year following the year in which it was originated.
    (c) To the fullest extent applicable, there shall be indicated on 
each such FPC originated classified document whether it can be 
downgraded or declassified at a date earlier than under the above 
schedule, or after a specified event, or upon the removal of classified 
attachments or enclosures. Classified information in the possession of 
the Federal Power Commission, but not bearing a marking for automatic 
downgrading or declassification, will be marked or designated by the 
Chairman or the Security Officer designated by Sec. 3a.51 hereof for 
automatic downgrading or declassification in accordance with the rules 
and regulations of the department or agency which originally classified 
the information or material.
    (d) When the FPC official having classification authority downgrades 
or cancels the classification of a document before its classification 
status changes automatically, each addressee to whom the document was 
transmitted shall be notified of the change unless the addressee has 
previously advised that the document was destroyed. Addressees must be 
notified similarly when it has been determined that a document must be 
upgraded.
    (e) When classified information from more than one source is 
incorporated into a new document or other material, the document or 
other material shall be classified, downgraded, or declassified in 
accordance with the provisions of E.O. 11652 and NSC directives 
thereunder applicable to the information requiring the greatest 
protection.
    (f) All information or material classified prior to June 1, 1972, 
other than that described in paragraph (b) of this section, is excluded 
from the General Classification Schedule. However, at any time after the 
expiration of 10 years from the date of origin it shall be subject to 
classification review and disposition by FPC provided:
    (1) A department or agency or member of the public requests review;
    (2) The request describes the record with sufficient particularity 
to enable FPC to identify it; and
    (3) The record can be obtained with a reasonable amount of effort.
    (g) All classified information or material which is 30 years old or 
more will be declassified under the following conditions:
    (1) All information and material classified after June 1, 1972, 
will, whether or not declassification has been requested, become 
automatically declassified at the end of 30 full calendar years after 
the date of its original classification except for such specifically 
identified information or material which the Chairman personally 
determines in writing to require continued protection because such 
continued protection is essential to the national security, or 
disclosure would place a person in immediate jeopardy. In such case, the 
Chairman also will specify the period of continued classification.
    (2) All information and material classified before June 1, 1972 and 
more than 30 years old will be systematically reviewed for 
declassification by the Archivist of the United States by the end of the 
30th full calendar year following the year in which it was originated. 
In his review, the Archivist will separate and keep protected only such 
information or material as is specifically identified by the Chairman in 
accordance with paragraph (g) (1) of this section. In such case, the 
Chairman also will specify the period of continued classification.
    (3) The Executive Director, acting for the Chairman, is assigned to 
assist the Archivist of the United States in the exercise of his 
responsibilities indicated in paragraph (g)(2) of this section. He will:
    (i) Provide guidance and assistance to archival employees in 
identifying and separating those materials originated in FPC which are 
deemed to require continued classification; and

[[Page 48]]

    (ii) Develop a list for submission to the Chairman which identifies 
the materials so separated, with recommendations concerning continued 
classification. The Chairman will then make the determination required 
under paragraphs (g) (1) and (2) of this section and cause a list to be 
created which identifies the documents included in the determination, 
indicates the reason for continued classification, and specifies the 
date on which such material shall be declassified.



Sec. 3a.23  Review of classified material for declassification purposes.

    (a) All information and material classified after June 1, 1972, and 
determined in accordance with Chapter 21, title 44, United States Code, 
to be of sufficient historical or other value to warrant preservation 
shall be systematically reviewed on a timely basis for the purpose of 
making such information and material publicly available according to the 
declassification determination at the time of classification. During 
each calendar year the FPC shall segregate to the maximum extent 
possible all such information and material warranting preservation and 
becoming declassified at or prior to the end of such year. Promptly 
after the end of such year the FPC, or the Archives of the United States 
if transferred thereto, shall make the declassified information and 
material available to the public to the extent permitted by law.
    (b) Departments and agencies and members of the public may direct 
requests for review for declassification, as described in Sec. 
3a.22(f), to:

Office of the Secretary, Federal Power Commission,\1\ Washington, DC 
20426.
---------------------------------------------------------------------------

    \1\ Now known as the Federal Energy Regulatory Commission.


The Office of the Secretary will assign the request to the appropriate 
Bureau or Office for action and will acknowledge in writing the receipt 
of the request. If the request requires the rendering of services for 
which fair and equitable fees should be charged pursuant to Title 5 of 
the Independent Offices Appropriations Act, 1952, 31 U.S.C. 483a, the 
requester shall be so notified. The Bureau or Office which is assigned 
action will make a determination within 30 days of receipt or explain 
why further time is necessary. If at the end of 60 days from receipt of 
the request for review no determination has been made, the requester may 
apply to the FPC Review Committee (paragraph (g) of this section) for a 
determination. Should the Bureau or Office assigned the action on a 
request for review determine that under the criteria set forth in 
section 5(B) of E.O. 11652 continued classification is required, the 
requester will be notified promptly and, whenever possible, provided 
with a brief statement as to why the requested information or material 
cannot be declassified. The requester may appeal any such determination 
to the FPC Review Committee and the notice of determination will advise 
him of this right.
    (c) The FPC Review Committee will establish procedures to review and 
act within 30 days upon all applications and appeals regarding requests 
for declassification. The chairman, acting through the committee, is 
authorized to overrule previous determinations in whole or in part when, 
in its judgment, continued protection is no longer required. If the 
committee determines that continued classification is required under the 
criteria of section 5(B) of E.O. 11652, it will promptly so notify the 
requester and advise him that he may appeal the denial to the 
Interagency Classification Review Committee.
    (d) A request by a department or agency or a member of the public to 
review for declassification documents more than 30 years old shall be 
referred directly to the Archivist of the United States, and he shall 
have the requested documents reviewed for declassification. If the 
information or material requested has been transferred to the General 
Services Administration for accession into the Archives, the Archivist 
shall, together with the chairman, have the requested documents reviewed 
for declassification. Classification shall be continued in either case 
only when the chairman makes the personal determination indicated in 
Sec. 3a.22(g)(1).

[[Page 49]]

The Archivist shall notify the requester promptly of such determination 
and of his right to appeal the denial to the Interagency Classification 
Review Committee.
    (e) For purposes of administrative determinations under paragraph 
(b), (c), or (d) of this section, the burden is on the FPC to show that 
continued classification is warranted. Upon a determination that the 
classified material no longer warrants classification, it will be 
declassified and made available to the requester if not otherwise exempt 
from disclosure under section 552(b) of Title 5, U.S.C. (Freedom of 
Information Act) or other provisions of law.
    (f) A request for classification review must describe the document 
with sufficient particularity to enable the FPC to identify it and 
obtain it with a reasonable amount of effort. Whenever a request is 
deficient in its description of the record sought, the requester will be 
asked to provide additional identifying information whenever possible. 
Before denying a request on the ground that it is unduly burdensome, the 
requester will be asked to limit his request to records that are 
reasonably obtainable. If the requester then does not describe the 
records sought with sufficient particularity, or the record requested 
cannot be obtained with a reasonable amount of effort, the requester 
will be notified of the reasons why no action will be taken and of his 
right to appeal such decision.
    (g) The FPC Review Committee will consist of the Executive Director, 
as Committee Chairman, the Secretary, and the Director, Office of Public 
Information, as members. In addition to the activities described in this 
paragraph, the Review Committee has authority to act on all suggestions 
and complaints with respect to administration of E.O. 11652 and this 
part 3a.
    (h) The FPC Review Committee is also responsible for recommending to 
the chairman appropriate administrative action to correct abuse or 
violation of any provision of E.O. 11652 or NSC directives thereunder, 
including notifications by warning letter, formal reprimand, and to the 
extent permitted by law, suspension without pay and removal.
    (i) The Chairman of the Review Committee will submit through the 
chairman, FPC, a report quarterly to the Interagency Classification 
Review Committee, NSC, of actions on classification review requests, 
classification abuses, and unauthorized disclosures.

              Classification Markings and Special Notations



Sec. 3a.31  Classification markings and special notations.

    (a) After the chairman, the vice chairman, or the executive director 
determines that classified information is contained in an original 
document or other item, the appropriate marking, i.e., Secret or 
Confidential, will be applied as indicated herein. In addition, each 
classified document will reflect its date of origin and the Bureau, 
Office, or Regional Office responsible for its preparation and issuance, 
and the identity of the highest authority authorizing the 
classification. Where the individual who signs or otherwise 
authenticates the document or other item has also authorized the 
classification, no further annotation as to his identity is required. 
Each classified document will also show on its face whether it is 
subject to or exempt from the General Declassification Schedule 
described in Sec. 3a.22(b).
    (1) For marking documents which are subject to the General 
Declassification Schedule, the following stamp will be used:

    (Top Secret, Secret, or Confidential) Classified by ------------. 
Subject to General Declassification Schedule of E.O. 11652, 
automatically downgraded at 2-year intervals and declassified on 
December 31, ------------ (insert year).

    (2) For marking documents which are to be automatically declassified 
on a given event or date earlier than the General Declassification 
Schedule the following stamp will be used:

    (Top Secret, Secret, or Confidential) Classified by ------------. 
Automatically declassified on -------------------- (effective date or 
event).

    (3) For marking documents which are exempt from the General 
Declassification Schedule the following stamp will be used:


[[Page 50]]


    (Top Secret, Secret, or Confidential) Classified by ------------. 
Exempt from General Declassification Schedule of E.O. 11652, Exemption 
Category (section 5B (1), (2), (3), or (4). Automatically declassified 
on -------------------- (effective date or event, if any).

    (b) Should the classifier fail to mark such document with one of the 
foregoing stamps, the document shall be deemed to be subject to the 
General Declassification Schedule. The person who signs or finally 
approves a document or other material containing classified information 
shall be deemed to be the classifier. If the classifier is other than 
such person he shall be identified on the stamp as indicated.
    (c) On documents, the classification markings Secret and 
Confidential will be stamped in red ink, printed, or written in letters 
considerably larger than those used in the text of the document. On 
documents which are typewritten in elite, pica or executive size type, 
the above markings should be in letters not less than three-sixteenths 
inch in height. No markings, other than those indicated above, are 
authorized to designate that a document or material requires protection 
in the interests of national security. The overall classification 
assigned to a document will be conspicuously marked on the top and 
bottom of each page and on the outside of the front and back covers, if 
any. Letters of transmittal, endorsements, routing slips, or any other 
papers of any size which conceal or partially conceal the cover, the 
title page, or first page, will bear the marking of the overall 
classification.
    (d) Whenever a classified document contains either more than one 
security classification category or unclassified information, each 
section, part or paragraph should be marked to the extent practicable to 
show its classification category or that it is unclassified.
    (e) Letters of transmittal or other covering documents which are 
classified solely because of classified enclosures or attachments, or 
which are classified in a lower category than such enclosures or 
attachments, will bear either of the following markings, as appropriate.
    (1) If the covering document is classified on its own, but has 
enclosures or attachments of a higher classification, or is a component 
(i.e., an endorsement or comment) or a file in which other components 
bear a higher classification:

Regarded________________________________________________________________
                                            (appropriate classification)
When separated from_____________________________________________________
                                 (identify higher classified components)

    (2) If unclassified when separated from its classified enclosures or 
attachments:

When the Attachments Are Removed, This Transmittal Letter Becomes 
Unclassified.

    (f) In addition to the classification category markings prescribed 
above, the first or title page of each classified document will contain 
instructions as appropriate, in accordance with the following:
    (1) Regarding instructions. The declassification and downgrading 
notation, as described in Sec. 3a.31(g) will be applied to classified 
documents only. The notation will not be carried forward to unclassified 
letters of transmittals or other cover documents. When such cover 
documents are classified by their own content, they will be annotated 
with the notwithstanding instructions which pertain to the enclosures.
    (2) ``Special Handling'' notation. Classified information will not 
be released or disclosed to any foreign national without proper specific 
authorization. This applies even when the classified material does not 
bear the special handling notice described below. The special handling 
notice indicated only that the material has been reviewed and a specific 
determination made that the information is not releasable to foreign 
nationals. If it is anticipated that the handling or distribution of a 
classified document will make it liable to inadvertent disclosure to 
foreign nationals it will be marked with a separate special handling 
notation, which will be carried forward to letters of transmittals or 
other cover documents. The notation reads:

      Special Handling Required Not Releasable to Foreign Nationals

    (g) Whenever classified material is upgraded, downgraded, or 
declassified, the material will be marked to reflect:
    (1) The change in classification.

[[Page 51]]

    (2) The authority for the action.
    (3) The effective date.
    (4) The person or unit taking the action.

When classification changes are made, the classification markings 
themselves will be changed or canceled, and each copy or item of the 
material will be marked with the citation of authority. The notation 
below will be used for this purpose:

Classification__________________________________________________________
                                                               (changed)
________________________________________________________________________
                                                              (canceled)
To______________________________________________________________________
Effective on____________________________________________________________
                                                                  (date)
Under authority of______________________________________________________
                                        (authorizing official or office)
By______________________________________________________________________
                                        (person or office taking action)

    (h) In addition to the foregoing marking requirements, warning 
notices shall be displayed prominently on classified documents or 
materials as prescribed below. When display of these warning notices on 
the documents or other materials is not feasible, the warnings shall be 
included in the written notification of the assigned classification.
    (1) Restricted data. For classified information or material 
containing restricted data as defined in the Atomic Energy Act of 1954, 
as amended:

                             Restricted Data

    This document contains restricted data as defined in the Atomic 
Energy Act of 1954. Its dissemination or disclosure to any unauthorized 
person is prohibited.

    (2) Formerly restricted data. For classified information or material 
containing solely Formerly Restricted Data, as defined in section 142.d, 
Atomic Energy Act of 1954, as amended:

                        Formerly Restricted Data

    Unauthorized disclosure subject to administrative and criminal 
sanctions. Handle as restricted data in foreign dissemination, section 
114.b., Atomic Energy Act, 1954.

    (3) Information other than restricted data or formerly restricted 
data. For classified information or material furnished to persons 
outside the Executive Branch of Government other than as described in 
paragraphs (h)(1) and (2) of this section.

                      National Security Information

    Unauthorized disclosure subject to criminal sanctions.

    (4) Sensitive intelligence information. For classified information 
or material relating to sensitive intelligence sources and methods, the 
following warning notice shall be used, in addition to and in 
conjunction with those prescribed in paragraph (h)(1), (2), or (3), of 
this section, as appropriate:

   Warning Notice--Sensitive Intelligence Sources and Methods Involved

                     Access to Classified Materials



Sec. 3a.41  Access requirements.

    (a) The Personnel Security Officer, on a continuing current basis, 
will certify to the Security Officer, the head of each bureau and office 
and each regional engineer, the names of officers and employees who have 
been granted a security clearance for access to classified material and 
the level of such clearance (Top Secret, Secret, Confidential). The 
Personnel Security Officer will maintain accurate and current listings 
of personnel who have been granted security clearances in accordance 
with the standards and criteria of Executive Orders 10450 and 10865 and 
as prescribed by this part.
    (b) In addition to a security clearance, staff members must have a 
need for access to classified information or material in connection with 
the performance of duties. The determination for the need-to-know will 
be made by the official having responsibility for the classified 
information or material.
    (c) When a staff member no longer requires access to classified 
information or material in connection with performance of official 
duties, the Personnel Security Officer will administratively withdraw 
the security clearance. Additionally, when a staff member no longer 
needs access to a particular security classification category, the 
security clearance will be adjusted to the classification category 
required. In both cases, this action will

[[Page 52]]

be without prejudice to the staff member's eligibility for a security 
clearance or upgrading of category should the need again arise.
    (d) Access to classified information or material originated by the 
FPC may be authorized to persons outside the Executive Branch of the 
Government engaged in historical research and to former Presidential 
appointees as provided in paragraphs VI B and C of the NSC directive 
dated May 17, 1972. The determination of access authorization will be 
made by the Chairman.
    (e) Except as otherwise provided in section 102 of the National 
Security Act of 1947, 61 Stat. 495, 50 U.S.C. 403, classified 
information or material originating in one department or agency shall 
not be disseminated outside any other department or agency to which it 
has been made available without the consent of the originating 
organization.

                            Security Officers



Sec. 3a.51  Designation of security officers.

    (a) The Director, Office of Administrative Operations (OAO) is 
designated as Top Secret Control Officer and Security Officer for 
classified material for the Federal Power Commission. The Director, OAO, 
will designate alternate Top Secret Control Officers and alternated 
Security Officers, who will be authorized, subject to such limitations 
as may be imposed by the Director, to perform the duties for which the 
Top Secret Control Officer and Security Officer is responsible. As used 
hereinafter, the terms Top Secret Control Officer and Security Officer 
shall be interpreted as including the alternate Top Secret Control 
Officers and Security Officers. The FPC Security Officer is authorized 
and directed to insure the proper application of the provisions of 
Executive Order 11652 and of this part.
    (b) Regional Engineers are designated as Regional Security Officers 
for the purpose of carrying out the functions assigned herein.
    (c) The Director, OAO, will appoint in writing appropriately cleared 
staff members to act as couriers for transmittal, as necessary, for 
classified information or material.

              Storage and Custody of Classified Information



Sec. 3a.61  Storage and custody of classified information.

    (a) Unless specifically authorized by the Chairman or Executive 
Director, classified information and materials within the Washington 
office will be stored only in GSA-approved security containers in the 
Office of Administrative Operations. Such containers will be of steel 
construction with built-in, three-position, dial-type, manipulation-
proof, changeable combination locks.
    (b) A custodian and one or more alternate custodians will be 
assigned responsibility for the security of each container under his 
jurisdiction in which classified information is stored. Such assignment 
will be made a matter of record by executing GSA Optional Form 63, 
Classified Container Registration, and affixing it to the container 
concerned. Custodians will be responsible for assuring that combinations 
are changed as required and that locking and checking functions are 
accomplished daily in compliance with paragraphs (g) and (h) of this 
section.
    (c) GSA Optional Form 63 is a 3-sheet form, each sheet having a 
specific purpose and disposition, as follows:
    (1) Sheet 1 records the names, addresses, and home telephone numbers 
of the custodian and alternate custodians. Sheet 1 is affixed to the 
outside of the container.
    (2) Sheet 2 records the combination of the container and is placed 
inside Sheet 3, which is an envelope.
    (3) Sheet 3, an envelope, is a carbon copy of Sheet 1. When the 
container combination is recorded on Sheet 2, it is sealed inside Sheet 
3 which is then forwarded to the FPC Top Secret Control Officer.
    (d) GSA Optional Form 62, Safe or Cabinet Security Record, will be 
attached conspicuously to the outside of each container used to store 
classified information. The form is used to certify the opening and 
locking of a container, and the checking of a container at the end of 
each working day or whenever it is opened and locked during the day.

[[Page 53]]

    (e) Combinations of containers used to store classified materials 
will be assigned classifications equal to the highest category of 
classified information stored therein. Active combinations are subject 
to the safeguarding and receipting requirements of this instruction. 
Superseded combinations become declassified automatically and 
certificates of destruction therefore are unnecessary.
    (f) Knowledge of or access to the combination of a container used 
for the storage of classified material will be given only to those 
appropriately cleared individuals who are authorized access to the 
information stored therein.
    (g) Combinations of containers used to store classified material 
will be changed at least once a year. A combination will be changed also 
whenever anyone knowing or having access to it is transferred; when the 
combination has been subjected to compromise; when the security 
classification of the container is upgraded; and at any other time as 
may be deemed necessary. Combinations to locks on security containers 
will be changed only by individuals having a security clearance equal to 
the highest category of classified material stored therein. Changing 
lock combinations is a responsibility of OAO. (See FPC Special 
Instruction No. AM 2162.2, Periodic Change of Combination on Locks.)
    (h) The individual who unlocks a container will indicate the date 
and time and initial entry on GSA Optional Form 62. At the close of each 
workday, or when the container is locked at earlier time, the individual 
locking the container will make the appropriate entry on GSA Optional 
Form 62. An individual other than the one who locked the container will 
check to insure that it is properly closed and locked and will make the 
appropriate entry on GSA Optional Form 62. When a container has not been 
opened during the day, the checker will enter the date and the notation 
``Not Opened'' and make appropriate entry in the ``Checked By'' column.
    (i) The red and white reversible ``Closed-Open'' cardboard sign will 
be used on all classified containers to indicate whether the container 
is open or locked.
    (j) Typewriter ribbons used in the preparation of classified 
information will be safeguarded in the manner appropriate for the degree 
of classification involved. Cloth ribbons are considered insecure until 
both upper and lower lines have been cycled through the typewriter at 
least twice. Carbon paper or film ribbons are insecure at all times 
since the imprint thereon cannot be obliterated and such ribbon must be 
destroyed as classified waste. Insecure ribbons will not be left in 
typewriters overnight but will be stored in appropriate classified 
container.

                 Accountability For Classified Material



Sec. 3a.71  Accountability for classified material.

    (a) The Office of Administrative Operations is the central control 
registry for the receipt and dispatch of classified material in the 
Washington office and maintains the accountability register of all 
classified material. In addition, each Regional Engineer will maintain 
an accountability register for classified material of which he has 
custody.
    (b) With the exception of the Chairman, Vice Chairman, and Executive 
Director, no individual, bureau, or office is authorized to receive, 
open, or dispatch classified material other than the authorized 
personnel in OAO or the Regional Engineers. Classified material received 
by other than the OAO or Regional Engineers will be delivered promptly 
and unopened to the Security Officer or Regional Engineer in order that 
it may be brought under accountable control.
    (c) Each classified document received by or originating in the FPC 
will be assigned an individual control number by the central control 
registry, OAO. Control numbers will be assigned serially within a 
calendar year. The first digit of the four-digit control number will 
indicate the calendar year in which the document was originated or 
received in the FPC. Control numbers assigned to top secret material 
will be separate from the sequence for other classified

[[Page 54]]

material and will be prefixed by the letters ``TS''. Examples:

9006--Sixth classified document controlled by the central control 
registry in calendar year 1969.
TS 1006--Sixth Top Secret document controlled by the central control 
registry in calendar year 1971.

    (d) The accounting system for control of classified documents will 
be effected through the use of FPC Form 55, Classified Document Control 
Record and Receipt. This form will be used to:
    (1) Register an accurate, unclassified description of the document; 
its assigned control number; and the date it is placed under 
accountability.
    (2) Serve as the accountability register for classified material.
    (3) Record all changes in status or custody of the document during 
its classification life or the period it is retained under 
accountability in the FPC.
    (4) Serve as the principal basis for all classified document 
inventory and tracer actions.
    (5) Serve as a receipt for the central control registry when the 
document is transferred.
    (e) For Top Secret documents only, an access register, FPC Form 
1286, Top Secret Access Record, for recording the names of all 
individuals having access to the document, will be prepared in addition 
to FPC Form 55. In addition, a physical inventory of all Top Secret 
documents will be conducted during June of each year by the Top Secret 
Control Officer and witnessed by a staff member holding a Top Secret 
clearance.
    (f) When classified documents are regraded, declassified, or 
destroyed, the change in status will be recorded in the file copy of FPC 
Form 55 in the central control registry.
    (g) Classified documents will not be reproduced by any means except 
on the specific written authority of the FPC Security Officer.
    (h) In the Washington Office, classified material will be destroyed 
by OAO and will be accomplished by burning in the presence of a 
destroying official and a witnessing official. Destroying and witnessing 
officials will be alternate Security Officers from OAO. A record of 
destruction of each classified document will be maintained on FPC Form 
1285. Classified Document Destruction Certificate. In addition, the date 
of destruction and the destruction certificate number will be recorded 
on the file copy of FPC Form 55 in the central control registry. The 
original signed copy of the destruction certificate will be retained in 
the central control registry. The duplicate copy will be retained by the 
destroying official. Regional Engineers will follow these instructions 
for destruction of classified material in their possession, except that 
the destroying official shall be the Regional Engineer and the 
witnessing official shall be any other individual having appropriate 
security clearance.
    (i) It is the responsibility of any staff member who has knowledge 
of the loss or possible compromise of classified information immediately 
to report the circumstances to the Director, OAO. The Director, OAO, 
will notify the originating Department and any other interested 
Department of the loss or possible compromise in order that a damage 
assessment can be conducted. An immediate inquiry will be initiated by 
the Director, OAO, for the purpose of taking corrective action and for 
recommendations to the chairman, through the Review Committee, for 
appropriate administrative, disciplinary, or legal action.

                   Transmittal of Classified Material



Sec. 3a.81  Transmittal of classified material.

    (a) A continuous receipting system, using copies of FPC Form 55, 
will record all transfers of classified items between elements or 
officials within the FPC. Receipts for transmittal of classified items 
from the central registry to the first recipient will be acknowledged on 
copy number one (original) of FPC Form 55. This copy will be returned to 
and become part of the central register, where it will remain as an 
active record until the item is either destroyed or transmitted outside 
the FPC control registry system. Receipts for subsequent transmittals 
through the FPC will be recorded on the remaining copies of FPC Form 55.
    (b) A recipient will acknowledge receipt and assumption of custody 
of

[[Page 55]]

classified material exactly as it is described on FPC Form 55. If it is 
determined that parts are missing, it is incorrectly numbered, or 
otherwise recorded in error on FPC Form 55. The recipient will not sign 
for the material but will return it promptly to the transmitting 
element, notifying them accordingly.
    (c) Whenever a classified or protected document is being internally 
transmitted, or is in use, it will be covered by either FPC Label 19, 
Top Secret Cover Sheet (yellow); FPC Label 20, Secret Cover Sheet (red); 
FPC Label 21, Confidential Cover Sheet (blue), or FPC Label 22, Official 
Use Only (Limited Official Use) green. In addition, the red back sheet, 
FPC Label 23, will be used. With the exception of the FPC Form 55, no 
transmittal paper or other material will be placed over the label, and 
no writing will be applied thereon.
    (d) The transmission or transfer of custody of classified material 
outside of the FPC Washington offices or the Regional Offices will be 
covered by FPC Form 1284, Classified Document Receipt and/or Tracer, 
prepared in duplicate (one post card and one paper copy). The post card 
will be enclosed, along with the material being transferred, in the 
inner envelope, wrapping or container, and the paper copy retained in 
the central registry pending return of the signed post card.
    (e) Classified material transmitted outside of the FPC Washington 
offices or the Regional Offices will be dispatched in two opaque 
envelopes or double wrapped in opaque wrapping paper. The outgoing 
material will be prepared for transmission by:
    (1) Preparing and enclosing an appropriate receipt (see paragraph 
(d) of this section) in the inner envelope or wrapping.
    (2) Addressing, return addressing, and sealing or taping the inner 
envelope or wrapping.
    (3) Marking the security classification and other required notations 
on the front and back of the inner cover. If the nature of the contents 
deem it necessary or advisable, the inner cover may be marked with the 
following or a similar notation ``To Be Opened By Addressee Only.'' When 
this notation is used, an appropriate ``Attention'' line must be 
contained in the address on the outer envelope to insure delivery to the 
intended recipient.
    (4) Enclosing the inner envelope or wrapping in an opaque outer 
envelope wrapper containing the appropriate address information. These 
outer covers will not contain any of the markings contained on the inner 
cover. If the outer cover does not fully conceal the markings on the 
inner envelope or wrapper, a sheet of plain paper should be folded 
around the inner wrapper to conceal the markings.
    (f) Transmittal of Top Secret information and material shall be 
effected preferably by oral discussion in person between the officials 
concerned. Otherwise the transmission of Top Secret information and 
material shall be by specifically designated personnel, by State 
Department diplomatic pouch, by a messenger-courier system especially 
created for that purpose, over authorized communications circuits in 
encrypted form or by other means authorized by the National Security 
Council.
    (g) Transmittal of material classified Secret or Confidential to any 
addressee in the 48 contiguous States and the District of Columbia, the 
State of Hawaii, the State of Alaska, the Commonwealth of Puerto Rico, 
and Canadian Government installations by the FPC Washington offices or 
the Regional offices will be by registered mail only. Transmittal 
outside these specified areas will be as stated in paragraph C(2), 
Appendix B, of the NSC Directive of May 17, 1972.

                            Data Index System



Sec. 3a.91  Data index system.

    A data index system shall be established for Top Secret, Secret, and 
Confidential information in selected categories prescribed by the 
Interagency Classification Review Committee, in accordance with section 
VII of the National Security Council Directive Governing the 
Classification, Downgrading, Declassification, and Safeguarding of 
National Security Information, May 17, 1972.

[[Page 56]]



PART 3b_COLLECTION, MAINTENANCE, USE, AND DISSEMINATION OF RECORDS OF 
IDENTIFIABLE PERSONAL INFORMATION--Table of Contents

                            Subpart A_General

Sec.
3b.1 Purpose.
3b.2 Definitions.
3b.3 Notice requirements.
3b.4 Government contractors.
3b.5 Legal guardians.

      Subpart B_Standards for Maintenance and Collection of Records

3b.201 Content of records.
3b.202 Collection of information from individuals concerned.
3b.203 Rules of conduct.
3b.204 Safeguarding information in manual and computer-based record 
          systems.

                Subpart C_Rules for Disclosure of Records

3b.220 Notification of maintenance of records to individuals concerned.
3b.221 Access of records to individuals concerned.
3b.222 Identification requirements.
3b.223 Fees.
3b.224 Requests to amend records and disputes thereon.
3b.225 Written consent for disclosure.
3b.226 Accounting of disclosures.
3b.227 Mailing lists.

                     Subpart D_Rules for Exemptions

3b.250 Specific exemptions.

    Authority: Federal Power Act, as amended, sec. 309, 49 Stat. 858-859 
(16 U.S.C. 825h); Natural Gas Act, as amended, sec. 16, 52 Stat. 830 (15 
U.S.C. 717o); and Pub. L. 93-579 (88 Stat. 1896).

    Source: Order 536, 40 FR 44288, Sept. 25, 1975, unless otherwise 
noted.



                            Subpart A_General



Sec. 3b.1  Purpose.

    Part 3b describes the Federal Power Commission's program to 
implement the provisions of the Privacy Act of 1974 (Pub. L. No. 93-579, 
88 Stat. 1896) to allow individuals to have a say in the collection and 
use of information which may be used in determinations affecting them. 
The program is structured to permit an individual to determine what 
records pertaining to him and filed under his individual name, or some 
other identifying particular, are collected, maintained, used or 
disseminated by the Commission, to permit him access to such records, 
and to correct or amend them, and to provide that the Commission 
collect, use, maintain and disseminate such information in a lawful 
manner for a necessary purpose.



Sec. 3b.2  Definitions.

    In this part:
    (a) Agency, as defined in 5 U.S.C. 551(1) as ``* * * each authority 
of the Government of the United States, whether or not it is within or 
subject to review by another agency, * * *'', includes any executive 
department, military department, Government corporation, Government 
controlled corporation, or other establishment in the executive branch 
of the Government (including the Executive Office of the President), or 
any independent regulatory agency [5 U.S.C. 552(e)];
    (b) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence;
    (c) Maintain includes, maintain, collect, use, or disseminate;
    (d) Record means any item, collection or grouping of information 
about an individual that is maintained by an agency, 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) System of records means a group of any records under the control 
of any agency from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual;
    (f) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, except as provided by section 8 of title 13 of 
the United States Code;
    (g) Routine use means, with respect to the disclosure of a record, 
the use of

[[Page 57]]

such record for a purpose which is compatible with the purpose for which 
it was collected; and
    (h) Disclosure means either the transmittal of a copy of a record or 
the granting of access to a record, by oral, written, electronic or 
mechanical communication.



Sec. 3b.3  Notice requirements.

    (a) The Commission will publish at least annually in the Federal 
Register a notice identifying the systems of records currently 
maintained by the Commission. For each system of records, the notice 
will include the following information:
    (1) The name and location of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The categories of records maintained in the system;
    (4) The specific statutory provision or executive order, or rule or 
regulation issued pursuant thereto, authorizing the maintenance of the 
information contained in the system;
    (5) Each routine use of the records contained in the system, 
including the categories of users and the purposes of such use;
    (6) The policies and practices regarding the storage, 
retrievability, access controls, and retention and disposal of the 
records;
    (7) The title and business address of the Commission official who is 
responsible for the system of records;
    (8) The procedures whereby an individual can be notified at his 
request if the system of records contains a record pertaining to him;
    (9) The procedures whereby an individual can be notified at his 
request how he can gain access to any record pertaining to him contained 
in the system of records, and how he can contest its contents; and
    (10) The categories of sources of records in the system.
    (b) At least thirty days prior to its operation, the Commission will 
publish in the Federal Register a notice of its intention to establish a 
new system of records reciting the information required pursuant to 
paragraphs (a) (1) through (10) of this section and notice of any major 
change to an existing system.
    (c) The Commission will publish in the Federal Register a notice of 
its intention to establish any new or intended routine use of the 
information in an existing system of records at least thirty days prior 
to the disclosure of the record for that routine use. A new routine use 
is one which involves disclosure of records for a new purpose compatible 
with the purpose for which the record is maintained or which involves 
disclosure to a new recipient or category of recipients. At a minimum, 
the notice will contain the following information:
    (1) The name of the system of records for which the routine use is 
to be established;
    (2) The authority authorizing the maintenance of the information 
contained in the system;
    (3) The categories of records maintained in the system;
    (4) The proposed routine use(s);
    (5) The categories of recipients for each proposed routine use; and
    (6) Reference to the public notice in the Federal Register under 
which the existing system had already been published.



Sec. 3b.4  Government contractors.

    Systems of records operated by a contractor, pursuant to a contract, 
on behalf of the Commission, which are designed to accomplish a 
Commission function, are considered, for the purposes of this part, to 
be maintained by the Commission. A contract covers any contract, written 
or oral, subject to the Federal Procurement Regulations. The contractual 
instrument will specify, to the extent consistent with the Commission's 
authority to require it, that the systems of records be maintained in 
accordance with the requirements of this part.



Sec. 3b.5  Legal guardians.

    For the purposes of this part, the parent of any minor, or the legal 
guardian of any individual who has been declared to be incompetent due 
to physical or mental incapacity or age by a court of competent 
jurisdiction, may act on behalf of the individual.

[[Page 58]]



      Subpart B_Standards for Maintenance and Collection of Records



Sec. 3b.201  Content of records.

    (a) All records which are maintained by the Commission in a system 
of records will contain only such information about an individual that 
is relevant and necessary to accomplish a purpose of the Commission as 
required to be accomplished by statute or by executive order of the 
President. Pursuant to Sec. 3b.3(a)(4) of this part, the Commission 
will identify in the Federal Register the specific provisions in law 
which authorize it to maintain information in a system of records. In 
determining the relevance and necessity of records, the following 
considerations will govern:
    (1) Whether each item of information relates to the purposes, in 
law, for which the system is maintained;
    (2) The adverse consequences, if any, of not collecting the 
information;
    (3) Whether the need for the information could be met through the 
maintenance of the information in a non-individually identifiable form;
    (4) Whether the information in the record is required to be 
collected on every individual who is the subject of a record in the 
system or whether a sampling procedure would suffice;
    (5) The length of time it is necessary to retain the information;
    (6) The financial cost of maintaining the record as compared to the 
adverse consequences of not maintaining it; and
    (7) Whether the information, while generally relevant and necessary 
to accomplish a statutory purpose, is specifically relevant and 
necessary only in certain cases.
    (b) All records which the Commission maintains in a system of 
records and which are used to make a determination about an individual 
will be maintained with such accuracy, relevance, timeliness, and 
completeness as is reasonably necessary to assure fairness to the 
individual in the determination. Where practicable, in questionable 
instances, reverification of pertinent information with the individual 
to whom the record pertains may be appropriate. In pursuit of 
completeness in the collection of information, the Commission will limit 
its records to those elements of information which clearly bear on the 
determination for which the records are intended to be used, assuring 
that all elements necessary to the determination are present before the 
determination is made.
    (c) Prior to disseminating any records in a system of records, the 
Commission will make reasonable efforts to assure that such records are 
as accurate, relevant, timely, and complete as appropriate for the 
purposes for which they are collected and/or maintained, except when 
they are disclosed to a member of the public under the Freedom of 
Information Act, 5 U.S.C. 552, as amended, or to another agency.
    (d) No records of the Commission in a system of records shall 
describe how any individual exercises his First Amendment rights unless 
expressly authorized by statute or by the individual about whom the 
record is maintained or unless pertinent to and within the scope of an 
authorized law enforcement activity. The exercise of these rights 
includes, but is not limited to, religious and political beliefs, 
freedom of speech and of the press, and freedom of assembly and 
petition. In determining whether or not a particular activity 
constitutes the exercise of a right guaranteed by the First Amendment, 
the Commission will apply the broadest reasonable interpretation.



Sec. 3b.202  Collection of information from individuals concerned.

    (a) Any information collected by the Commission for inclusion in a 
system of records which may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs, 
will, to the greatest extent practicable, be collected directly from the 
subject individual (see paragraph (d) of this section).
    (b) The Commission will inform each individual whom it asks to 
supply information about himself, on the form which it uses to collect 
the information, or on a separate sheet that can be easily retained by 
the individual, in language which is explicit, informative, and easily 
understood, and not

[[Page 59]]

so lengthy as to deter an individual from reading it, of:
    (1) The specific provision of the statute or executive order of the 
President, including the brief title or subject of that statute or order 
which authorizes the solicitation of the information; whether disclosure 
of such information is mandatory or voluntary; and whether the 
Commission is authorized or required to impose penalties for failing to 
respond;
    (2) The principal purpose or purposes for which the information is 
intended to be used;
    (3) The routine uses which may be made of the information, as 
described in the Federal Register in the notice of the system of records 
in which the information is maintained, and which are relatable and 
necessary to a purpose described pursuant to paragraph (b)(2) of this 
section; and
    (4) The effects (beneficial and adverse) on the individual if any, 
of not providing all or any part of the requested information.
    (c) Social security numbers will not be required from individuals 
whom the Commission asks to supply information unless the disclosure of 
the number is required by Federal statute or unless disclosure is to the 
Commission maintaining a system of records in existence and operating 
before January 1, 1975, if such disclosure was required pursuant to a 
statute or regulation adopted prior to such date to verify the identity 
of an individual. When an individual is requested to disclose his social 
security number to the Commission, he will be informed under what 
statutory or other authority such number is solicited, what uses will be 
made of it, whether disclosure is mandatory or voluntary, and if it is 
mandatory, under what provisions of law or regulation.
    (d) The use of third-party sources to collect information about an 
individual may be appropriate in certain circumstances. In determining 
when the use of third-party sources would be appropriate, the following 
considerations will govern:
    (1) When the information needed can only be obtained from a third 
party;
    (2) When the cost of collecting the information directly from the 
individual concerned far exceeds the cost of collecting it from a third 
party;
    (3) When there is little risk that the information proposed to be 
collected from the third party, if inaccurate, could result in an 
adverse determination about the individual concerned.
    (4) When there is a need to insure the accuracy of information 
supplied by an individual by verifying it with a third party, or there 
is a need to obtain a qualitative assessment of the individual's 
capabilities or character; or
    (5) When there are provisions for verifying any third-party 
information with the individual concerned before making a determination 
based on that information.

Third party sources, where feasible, will be informed of the purposes 
for which information which they are asked to provide will be used. In 
appropriate circumstances, pursuant to 5 U.S.C. 552a(k) (2), (5), and 
(7), the Commission may assure a third party that his identity will not 
be revealed to the subject of the collected information.



Sec. 3b.203  Rules of conduct.

    (a) The Executive Director of the Commission has the overall 
administrative responsibility for implementing the provisions of the 
Privacy Act of 1974 and overseeing the conduct of all Commission 
employees with respect to the act.
    (b) It is the responsibility of the Comptroller of the Commission, 
under the guidance of the Executive Director, to prepare the appropriate 
internal administrative procedures to assure that all persons involved 
in the design, development, or operation of any system of records, or in 
collecting, using, or disseminating any individual record, and who have 
access to any system of records, are informed of all rules and 
requirements of the Commission to protect the privacy of the individuals 
who are the subjects of the records, including the applicable provisions 
of the FPC Standards of Conduct for Employees, Special Government 
Employees and Commissioners, specifically 18 CFR 3.207(e) and 3.228(d).
    (c) The Director, Office of Personnel Programs, is responsible for 
establishing and conducting an adequate training program for such 
persons

[[Page 60]]

whose official duties require access to and collection, maintenance, 
use, and dissemination of such records.
    (d) The General Counsel of the Commission is responsible for 
providing legal interpretation of the Privacy Act of 1974, and for 
preparing all agency rules and notices for official publication in 
compliance with the act.
    (e) Commission employees will be informed of all the implications of 
their actions in this area, including especially:
    (1) That there are criminal penalties for knowing and willful 
unauthorized disclosure of material within a system of records; for 
willful failure to publish a public notice of the existence of a system 
of records; and for knowingly and willfully requesting or obtaining 
records under false pretenses;
    (2) That the Commission may be subject to civil suit due to failure 
to amend an individual's record in accordance with his request or 
failure to review his request in conformity with Sec. 3b.224; refusal 
to comply with an individual's request of access to a record under Sec. 
3b.221; willful or intentional failure to maintain a record accurately 
pursuant to Sec. 3b.201(b) and consequently a determination is made 
which is adverse to the individual; or willful or intentional failure to 
comply with any other provision of the Privacy Act of 1974, or any rule 
promulgated thereunder, in such a way as to have an adverse effect upon 
an individual.



Sec. 3b.204  Safeguarding information in manual and computer-based 
record systems.

    (a) The administrative and physical controls to protect the 
information in the manual and computer-based record systems from 
unauthorized access or disclosure will be specified for each system in 
the Federal Register. The system managers, who are responsible for 
providing protection and accountability of such records at all times and 
for insuring that the records are secured in proper containers whenever 
they are not in use or under direct control of authorized persons, will 
be identified for each system of records in the Federal Register.
    (b) Whenever records in the manual or computer-based record systems, 
including input and output documents, punched cards, and magnetic tapes 
or disks, are not under the personal control of an authorized person, 
they will be stored in lockable containers and/or in a secured room, or 
in alternative storage systems which furnish an equivalent or greater 
degree of physical security. In this regard, the Commission may refer to 
security guidelines prepared by the General Services Administration, the 
Department of Commerce (National Bureau of Standards), or other agencies 
with appropriate knowledge and expertise.
    (c) Access to and use of records will only be permitted to persons 
pursuant to Sec. Sec. 3b.221, 3b.224, and 3b.225. Access to areas where 
records are stored will be limited to those persons whose official 
duties require work in such areas. Proper control of data, in any form, 
associated with the manual and computer-based record systems will be 
maintained at all times, including maintenance of an accounting of 
removal of the records from the storage area.



                Subpart C_Rules for Disclosure of Records



Sec. 3b.220  Notification of maintenance of records to individuals 
concerned.

    (a) Upon written request, either in person or by mail, to the 
appropriate system manager specified for each system of records, an 
individual will be notified whether a system of records maintained by 
the Commission and named by the individual contains a record or records 
pertaining to him and filed under his individual name, or some other 
identifying particular.
    (b) The system manager may require appropriate identification 
pursuant to Sec. 3b.222, and if necessary, may request from the 
individual additional information needed to locate the record which the 
individual should reasonably be expected to know, such as, but not 
limited to, date of birth, place of birth, and a parent's first name.
    (c) When practicable, the system manager will provide a written 
acknowledgement of the inquiry within ten days of receipt of the inquiry 
(excluding Saturdays, Sundays and legal public holidays) and 
notification of

[[Page 61]]

whether or not a system of records maintained by the Commission and 
named by the individual contains a record pertaining to him and filed 
under his individual name or some other identifying particular. If the 
system manager is unable to provide an answer within the ten-day period, 
he will so inform the individual in writing, stating the reasons 
therefor (for good cause shown), and when it is anticipated that 
notification will be made. Such an extension will not exceed fifteen 
days from receipt of the inquiry (excluding Saturdays, Sundays, and 
legal public holidays).
    (d) For good cause shown, as used in all sections of this part, 
includes circumstances such as the following: Where a search for and/or 
collection of requested records from inactive storage, field offices, or 
other establishments is required; where a voluminous amount of data is 
involved; where information on other individuals must be separated or 
expunged from the record; or where consultations are required with other 
agencies or with others having a substantial interest in the 
determination of the request.



Sec. 3b.221  Access of records to individuals concerned.

    (a) Upon written request, either in person or by mail, to the 
appropriate system manager specified for each system of records, any 
individual may gain access to records or information in a system of 
records pertaining to him and filed under his individual name, or some 
other identifying particular, to review and to have a copy made of all 
or any portion thereof in a form comprehensible to him.
    (b) A person of his own choosing may accompany the individual to 
whom the record pertains when the record is disclosed [see Sec. 
3b.222(e)].
    (c) Before disclosure, the following procedure may apply:

    Medical or psychological records will be disclosed directly to the 
individual to whom they pertain unless, in the judgment of the system 
manager, in consultation with a medical doctor or a psychologist, access 
to such records could have an adverse effect upon the individual. When 
the system manager and a doctor determine that the disclosure of such 
information could have an adverse effect upon the individual to whom it 
pertains, the system manager may transmit such information to a medical 
doctor named by the requesting individual.

    (d) The system manager will provide a written acknowledgement of the 
receipt of a request for access within ten days of receipt (excluding 
Saturdays, Sundays, and legal public holidays). Such acknowledgement 
may, if necessary, request any additional information needed to locate 
the record which the individual may reasonably be expected to know, and 
may require appropriate identification pursuant to Sec. 3b.222 of this 
part. No acknowledgment is required if access can be granted within the 
ten-day period.
    (1) If access can be granted, the system manager will notify the 
individual, in writing, as to when, and whether access will be granted 
in person or by mail, so that access will be provided within twenty days 
of the receipt of the request (excluding Saturdays, Sundays, and legal 
public holidays). If the system manager is unable to provide access 
within twenty days of receipt of the request, he will inform the 
individual in writing as to the reasons therefor (for good cause shown), 
and when it is anticipated that access will be granted. If the expected 
date of access indicated in the written notification to the individual 
cannot be met, the system manager will advise the individual in writing 
of the delay, the reasons therefor (for good cause shown), and of a 
revised date when access will be granted. Such extensions will not 
exceed thirty days from receipt of the request (excluding Saturdays, 
Sundays, and legal public holidays).
    (2) If access cannot be granted, the system manager will inform the 
individual, in writing, within twenty days of receipt of the request 
(excluding Saturdays, Sundays, and legal public holidays) of the refusal 
of his request; the reasons for the refusal; the right of the 
individual, within thirty days of receipt of the refusal, to request in 
writing a review of the refusal by the Chairman of the Federal Power 
Commission, 825 North Capitol Street, NE., Washington, DC 20426, or by 
an officer designated by the Chairman pursuant to Sec. 3b.224(f); and 
the right of the individual to seek advice or assistance

[[Page 62]]

from the system manager in obtaining such a review.
    (e) The Chairman, or officer designated pursuant to Sec. 3b.224(f), 
not later than thirty days (excluding Saturdays, Sundays, and legal 
public holidays) from the date of receipt of the individual's request 
for review will complete such review, unless, for good cause shown, the 
Chairman, or designated officer, extends the thirty-day period in 
writing to the individual with reasons for the delay and the approximate 
date on which the review is expected to be completed. Such an extension 
will not exceed thirty-five days from receipt of the request for review 
(excluding Saturdays, Sundays and legal public holidays). The Chairman, 
or designated officer, will make one of the following determinations:
    (1) Grant the individual access to the requested record and notify 
the individual, in writing, as to when, and whether access will be 
granted in person or by mail; or
    (2) Inform the individual in writing of the refusal, the reasons 
therefor, and the right of the individual to seek judicial review of the 
refusal of his request for access.
    (f)(1) The Commission will deny an individual access to the 
following records pertaining to him:
    (i) Information compiled in reasonable anticipation of a civil 
action or proceeding;
    (ii) Records listed in the Federal Register as exempt from certain 
provisions of the Privacy Act of 1974, pursuant to subpart D of this 
part; and
    (iii) Records which may be required to be withheld under other 
statutory provisions.
    (2) The Commission will not deny an individual access to a record 
pertaining to him because that record is permitted to be withheld from 
members of the public under the Freedom of Information Act, 5 U.S.C. 
552, as amended.
    (g) Disclosure of an original record will take place in the presence 
of the Commission representative having physical custody of the record.



Sec. 3b.222  Identification requirements.

    The appropriate system manager specified for each system of records 
will require reasonable identification from individuals to assure that 
records in a system of records are disclosed to the proper person. 
Identification requirements will be consistent with the nature of the 
records being disclosed.
    (a) Disclosure of records to the individual to whom the record 
pertains, or under whose name or some other identifying particular the 
record is filed, in person, requires that the individual show an 
identification card. Employee identification, a Medicare card, or a 
driver's license are examples of acceptable identification. Documents 
incorporating a picture and signature of the individual are preferred.
    (b) For records disclosed by mail, the system manager will require 
certain minimum identifying information: name, date of birth, or the 
system's personal identifier if known to the individual. A comparison of 
the signatures of the requester and those in the record will be used to 
determine identity.
    (c) If the system manager determines that the data in the record is 
so sensitive that unauthorized access could cause harm or embarrassment 
to the individual involved, a signed notarized statement asserting 
identity or some other reasonable means to verify identity will be 
required.
    (d) If an individual can provide no suitable information or 
documents for identification, the system manager will require a signed 
statement from the individual asserting his identity and stipulating 
that the individual understands that knowingly or willfully seeking or 
obtaining access to records about an individual under false pretenses is 
a misdemeanor punishable by a fine of up to $5,000.
    (e) The system manager will require an individual who wishes to be 
accompanied by another person when reviewing his records to furnish a 
signed written statement authorizing discussion of his records in the 
presence of the accompanying person.
    (f) The appropriate identification requirements of this section may 
be required by a system manager from an individual to whom a record does 
not pertain who seeks access to the record pursuant to Sec. 3b.225 of 
this part.
    (g) No individual will be denied notification of maintenance of a 
record

[[Page 63]]

pursuant to Sec. 3b.220 or access to a record pursuant to Sec. Sec. 
3b.221 and 3b.224 for refusing to disclose a social security number.
    (h) No verification of identity will be required of individuals 
seeking notification of or access to records which are otherwise 
available to a member of the public under the Freedom of Information 
Act, 5 U.S.C. 552, as amended.



Sec. 3b.223  Fees.

    (a) Fees will be charged for the direct cost of duplication of 
records in a system of records when copies are requested by the 
individual seeking access to the records. Any person may obtain a copy 
of the Commission's schedule of fees by telephone, by mail or by coming 
in person to the office of the appropriate system manager who is 
responsible for the protection and accountability of the desired record. 
Requests for copies of requested records and payment therefor must be 
made to the system manager. Fees will only be charged for costs of $2 or 
more.
    (b) Where practicable, self-service duplication of requested 
documents may also be made on duplicating machines by the person 
requesting the records, on a reimbursable basis to the system manager, 
in the presence of the Commission representative having physical custody 
of the record. Where data has been extracted from one of the 
Commission's systems of records on magnetic tape or disks, or computer 
files, copies of the records of these files may be secured on a 
reimbursable basis upon written request to the appropriate system 
manager. The fee will vary for each requirement, depending on size and 
complexity.
    (c) No fee will be charged in the following instances:
    (1) When the system manager determines that he can grant access to 
records only by providing a copy of the record through the mail because 
he cannot provide reasonable means for the individual to have access in 
person;
    (2) For search and review of requested records to determine if they 
fall within the disclosure requirements of this part; and
    (3) When the system manager makes a copy of the record as a 
necessary part of the process of making it available for review.
    (d) Except for requests made by Government agencies, certification 
of copies of any official Commission record shall be accompanied by a 
fee of $2 per document.



Sec. 3b.224  Requests to amend records and disputes thereon.

    (a) Upon written request, either in person or by mail, to the 
appropriate system manager specified for each system of records, any 
individual may amend records in a system of records pertaining to him 
and filed under his individual name or some other identifying 
particular. Such requests should contain identifying information needed 
to locate the record, a brief description of the item or items of 
information to be amended, and information in support of the request for 
amendment. The individual may obtain assistance in preparing his request 
to amend a record from the appropriate system manager.
    (b) The system manager will provide a written acknowledgement of the 
receipt of a request to amend within ten days of receipt (excluding 
Saturdays, Sundays, and legal public holidays). Such an acknowledgement 
may, if necessary, request any additional information needed to make a 
determination which the individual may reasonably be expected to know, 
and verification of identity consistent with Sec. 3b.222. The 
acknowledgement will clearly describe the request and advise the 
individual requesting the amendment when he may expect to be notified of 
action taken on the request. No acknowledgement is required if the 
request can be reviewed, processed, and the individual notified of 
compliance or denial within the ten-day period.
    (c) The system manager will complete the review and advise the 
individual in writing of the results within twenty days of the receipt 
of the request (excluding Saturdays, Sundays, and legal public 
holidays). If the system manager is unable to complete the review within 
twenty days of the receipt of the request, he will inform the individual 
in writing as to the reasons therefor (for good cause shown) and when it 
is anticipated that the review

[[Page 64]]

will be completed. If the completion date for the review indicated in 
the acknowledgement cannot be met, the system manager will advise the 
individual in writing of the delay, the reasons therefor (for good cause 
shown), and of a revised date when the review may be expected to be 
completed. Such extensions will not exceed thirty days from receipt of 
the request (excluding Saturdays, Sundays, and legal public holidays). 
The system manager will take one of the following actions:
    (1) Make the requested correction or amendment; so advise the 
individual in writing; and, where an accounting of the disclosure of the 
record was made pursuant to Sec. 3b.226, advise all previous recipients 
of the record in writing of the fact that the amendment was made and the 
substance of the amendment [see Sec. 3b.225(d)]; or
    (2) Inform the individual in writing of the refusal to amend the 
record in accordance with the request; the reasons for the refusal 
including any of the standards which were employed pursuant to paragraph 
(d) of this section in conducting the review; the right of the 
individual, within thirty days of receipt of the refusal, to request in 
writing a review of the refusal by the Chairman of the Federal Power 
Commission, 825 North Capitol Street, NE., Washington, DC 20426, or by 
an officer designated by the Chairman pursuant to paragraph (f) of this 
section; and the right of the individual to seek advice or assistance 
from the system manager in obtaining such a review.
    (d) In reviewing a record in response to a request to amend, the 
system manager and the Chairman, or the officer he designates pursuant 
to paragraph (f) of this section, shall assess the accuracy, relevance, 
timeliness and completeness of the record. They shall consider the 
record in terms of the criteria established in Sec. 3b.201 of this 
part.
    (e) The Chairman, or officer designated pursuant to paragraph (f) of 
this section, not later than thirty days (excluding Saturdays, Sundays, 
and legal public holidays) from the date of receipt of the individual's 
request for review, will complete such review, unless, for good cause 
shown, the Chairman, or designated officer, extends the thirty-day 
period in a writing to the individual with reasons for the delay and the 
approximate date on which the review is expected to be completed. Such 
an extension will not exceed thirty-five days from receipt of the 
request for review (excluding Saturdays, Sundays, and legal public 
holidays). The Chairman, or designated officer, will make one of the 
following determinations:
    (1) Make the correction in accordance with the individual's request 
and proceed as in paragraph (c)(1) of this section; or
    (2) Inform the individual in writing of:
    (i) The refusal to amend the record in accordance with the request,
    (ii) The reasons therefor, including any of the standards which were 
employed pursuant to paragraph (d) of this section in conducting the 
review;
    (iii) The right of the individual to file with the Chairman, or 
designated officer, a concise written statement setting forth the 
reasons for his disagreement with the decision;
    (iv) The fact that the statement of disagreement will be made 
available to anyone to whom the record is subsequently disclosed, 
together with the portion of the record which is disputed clearly noted, 
and, with, at the discretion of the Chairman, or designated officer, a 
brief statement by the Chairman, or designated officer, summarizing the 
reasons for refusing to amend the record;
    (v) Where an accounting of the disclosure of the record was made 
pursuant to Sec. 3b.226 of this part, the fact that prior recipients of 
the disputed record will be provided a copy of the individual's 
statement of disagreement, with the portion of the record which is 
disputed clearly noted, and, at the Chairman's or designated officer's 
discretion, the statement summarizing the refusal to amend [see Sec. 
3b.225(d)]; and
    (vi) The individual's right to seek judicial review of the refusal 
to amend.
    (f) The Chairman may designate, in writing, another officer of the 
Commission to act in his capacity for the purposes of this part. The 
officer will be organizationally independent of or senior to the system 
manager who made

[[Page 65]]

the initial determination and will conduct a review independent of the 
initial determination.



Sec. 3b.225  Written consent for disclosure.

    (a) The Commission will not disclose any record which is contained 
in a system of records by any means of communication to any person, or 
to any other agency, unless it has the written request by, or the prior 
written consent of, the individual to whom the record pertains and under 
whose individual name, or some other identifying particular, the record 
is filed. The written request or consent should include, at a minimum, 
the general purposes for or the types of recipients to whom disclosure 
may be made. The fact that an individual is informed of the purposes for 
which information will be used when information is collected pursuant to 
Sec. 3b.202(b)(2) will not constitute consent.
    (b) A written request or consent is not required if the disclosure 
is:
    (1) To those officers and employees of the Commission who have a 
need for the record in the performance of their duties;
    (2) Required under the provisions of the Freedom of Information Act, 
5 U.S.C. 552, as amended;
    (3) For a routine use as defined in Sec. 3b.2(g) of this part and 
as described in the public notice for each system of records;
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
title 13 of the United States Code;
    (5) To a recipient who has provided the appropriate system manager 
specified for each system of records with advance adequate 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. The written statement of assurance 
should include at a minimum:
    (i) A statement of the purpose for requesting the record; and
    (ii) Certification that the record will only be used for statistical 
purposes.

In addition to stripping personally identifying information from records 
released for statistical purposes, the system manager will ensure that 
the identity of the individual cannot reasonably be deduced or 
determined by combining various statistical records, or by reference to 
public records or other available sources of information;
    (6) To the National Archives of the United States, pursuant to 44 
U.S.C. 2103, as a record which has sufficient historical or other value 
to warrant its continued preservation by the United States Government, 
or for the 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 if the activity is authorized 
by law, and if the head of the agency or instrumentality, or his 
delegated official, has made a written request to the appropriate system 
manager specifying the particular portion of the record desired and the 
law enforcement activity for which the record is being sought;
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual (not necessarily the 
individual to whom the record pertains), if, upon disclosure, 
notification of such is sent to the last known address of the individual 
to whom the record pertains;
    (9) To either House of Congress, or to any committee or subcommittee 
thereof, on a matter within its jurisdiction;
    (10) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office; or
    (11) Pursuant to the order of a court of competent jurisdiction.
    (c) When a record is disclosed under compulsory legal process and 
such process becomes a matter of public record, the system manager will 
make reasonable efforts to notify the individual to whom the record 
pertains. A notice will be sent to the individual's last known address 
noted in the Commission's files.
    (d) The appropriate system manager shall notify all prior recipients 
of

[[Page 66]]

records, disclosure to whom an accounting was made pursuant to Sec. 
3b.226, of any amendments made to the records, including corrections, 
amendments and notations of dispute made pursuant to Sec. Sec. 
3b.224(c)(1) and 3b.224(e)(1) and (2)(v), within ten days of receipt of 
the corrected information or notation of dispute (excluding Saturdays, 
Sundays, and legal public holidays), except under unusual circumstances 
[see circumstances described in Sec. 3b.220(d)].
    (e) The content of the records disclosed under this section shall be 
maintained pursuant to the standards established in Sec. 3b.201(c).



Sec. 3b.226  Accounting of disclosures.

    (a) The appropriate system manager specified for each system of 
records will keep an accurate written account of all disclosures of 
records made to any person or to any other agency with the written 
consent or at the written request of the individual to whom the record 
pertains and pursuant to Sec. 3b.225(b)(3) through (11). The account 
will include the following information:
    (1) The date, nature, and purpose of each disclosure;
    (2) The name and address of the person or agency to whom the 
disclosure is made; and
    (3) A reference to the justification or basis upon which the release 
was made, including reference to any written document required as when 
records are released for statistical or law enforcement purposes 
pursuant to Sec. 3b.225(b) (5) and (7).
    (b) Each system manager will retain the accounting made under 
paragraph (a) of this section for at least five years from the date of 
disclosure for which the accounting is made, or the life of the record, 
which ever is longer.
    (c) Except for disclosures made for law enforcement purposes 
pursuant to Sec. 3b.225(b)(7), and unless the system of records has 
been exempted from this provision pursuant to subpart D of this part, 
each system manager will make the accounting made under paragraph (a) of 
this section available to the individual named in the record at his 
written request.
    (d) The accounting of disclosures is not a system of records under 
the definition in Sec. 3b.2(e) and no accounting will be maintained for 
disclosure of the accounting of disclosures.



Sec. 3b.227  Mailing lists.

    An individual's name and address maintained by the Commission will 
not be sold or rented for commercial or other solicitation purposes not 
related to the purposes for which the information was collected, unless 
such sale or rental is specifically authorized by law. This provision 
shall not be construed to require the withholding of names or addresses 
otherwise permitted to be made public, as pursuant to the Freedom of 
Information Act, 5 U.S.C. 552, as amended.



                     Subpart D_Rules for Exemptions



Sec. 3b.250  Specific exemptions.

    Any system of records maintained by the Commission may be exempt 
from certain provisions of the Privacy Act of 1974, and the appropriate 
sections of this part promulgated pursuant thereto, if the following 
requirements are met:
    (a) The system of records falls within one or more of the following 
categories:
    (1) Records subject to the provisions of 5 U.S.C. 552(b)(1) as 
classified material;
    (2) Investigatory material compiled for law enforcement purposes 
[except to the extent that the system is more broadly exempt under 5 
U.S.C. 552a(j)(2) covering records maintained by an agency whose 
principal function pertains to the enforcement of criminal laws] 
provided, however, that is such record is used as a basis for denying an 
individual any right, privilege, or benefit to which the individual 
would be entitled in the absence of that record, the individual must be 
granted access to that record except to the extent that access would 
reveal the identity of a confidential source who furnished the 
information to the Government under an express promise that his identity 
would be held in confidence, or, prior to September 27, 1975, under an 
implied promise that his identity would be held in confidence;
    (3) Records maintained to provide protective services to the 
President of

[[Page 67]]

the United States or other individuals pursuant to 18 U.S.C. 3056;
    (4) Records required by statute to be maintained and used solely as 
statistical records;
    (5) Investigatory material compiled solely for determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, military service, Federal contracts, or access to classified 
information, but only to the extent that disclosure of such material 
would reveal the identity of a source who furnished information to the 
Government under an express promise that his identity would be held in 
confidence, or, prior to September 27, 1975, under an implied promise 
that his identity would be held in confidence;
    (6) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service the disclosure of which would compromise the objectivity or 
fairness of the testing or examination process; or
    (7) Material used to evaluate potential for promotion in the armed 
services, but only to the extent that the disclosure of such material 
would reveal the identity of a source who furnished the information to 
the Government under an express promise that his identity would be held 
in confidence, or, prior to September 27, 1975, under an implied promise 
that his identity would be held in confidence;
    (b) Publication in the Federal Register is made in accordance with 
the requirements (including general public notice) of the Administrative 
Procedure Act, 5 U.S.C. 553, to include, at a minimum:
    (1) The name of the system of records;
    (2) The specific provision or provisions of the Privacy Act of 1974, 
and the appropriate sections of this part promulgated pursuant thereto, 
from which the system is to be exempted; and
    (3) The reasons for the exemption; and
    (c) The system of records is exempted from one or more of the 
following provisions of the Privacy Act and the appropriate sections of 
this part promulgated pursuant thereto:
    (1) 5 U.S.C. 552a(c)(3); 18 CFR 3b.226(c)--Making the accounting of 
disclosures available to the individual named in the record at his 
request;
    (2) 5 U.S.C. 552a(d); 18 CFR 3b.221, 3b.224--Granting an individual 
the right of access to his records and permitting him to request 
amendment of such;
    (3) 5 U.S.C. 552a(e)(1); 18 CFR 3b.201(a)--Requiring maintenance of 
relevant and necessary information in a system of records as required by 
statute or Executive order of the President;
    (4) 5 U.S.C. 552a(e)(4)(G); 18 CFR 3b.3(a)(8)--Requiring a 
description of procedures for determining if a system contains a record 
on an individual in the public notice of the system of records;
    (5) 5 U.S.C. 552a(e)(4)(H); 18 CFR 3b.3(a)(9)--Requiring a 
description of procedures for gaining access to and contesting the 
contents of a record in the public notice of the system of records;
    (6) 5 U.S.C. 552a(e)(4)(I); 18 CFR 3b.3(a)(10)--Requiring a 
description of the categories of the sources of records in the public 
notice of the system of records; and
    (7) 5 U.S.C. 552a(f); 18 CFR 3b.220-3b.224--Requiring agency rules 
for determining if an individual is the subject of a record, for 
handling requests for access, for granting requests for access, for 
amending records, and for fees.



PART 3c_STANDARDS OF CONDUCT--Table of Contents

Sec.
3c.1 Cross-reference to employee ethical conduct standards and financial 
          disclosure regulations.
3c.2 Nonpublic information.
3c.3 Reporting fraud, waste, abuse, and corruption and cooperation with 
          official inquiries.

    Authority: 15 U.S.C. 717g; 16 U.S.C. 825(b); 42 U.S.C. 7171, 7172.

    Source: Order 589, 61 FR 43415, Aug. 23, 1996, unless otherwise 
noted.

[[Page 68]]



Sec. 3c.1  Cross-reference to employee ethical conduct standards and 
financial disclosure regulations.

    Employees of the Federal Energy Regulatory Commission (Commission) 
are subject to the executive branch-wide financial disclosure 
regulations at 5 CFR part 2634, the Standards of Ethical Conduct for 
Employees of the Executive Branch at 5 CFR part 2635, the Commission 
regulations at 5 CFR part 3401 which supplement the Standards of Ethical 
Conduct, and the executive branch-wide employee responsibilities and 
conduct regulation at 5 CFR part 735.



Sec. 3c.2  Nonpublic information.

    (a) Section 301(b) (16 U.S.C. 825(b)) of the Federal Power Act and 
section 8(b) (15 U.S.C. 717g) of the Natural Gas Act prohibit any 
employee, in the absence of Commission or court direction, from 
divulging any fact or information which may come to his or her knowledge 
during the course of examination of books or other accounts.
    (b) The nature and time of any proposed action by the Commission are 
confidential and shall not be divulged to anyone outside the Commission. 
The Secretary of the Commission has the exclusive responsibility and 
authority for authorizing the initial public release of information 
concerning Commission proceedings.



Sec. 3c.3  Reporting fraud, waste, abuse, and corruption and cooperation 
with official inquiries.

    (a) Employees shall, in fulfilling the obligation of 5 CFR 
2635.101(b)(11), report fraud, waste, abuse, and corruption in 
Commission programs, including on the part of Commission employees, 
contractors, subcontractors, grantees, or other recipients of Commission 
financial assistance, to the Office of Inspector General or other 
appropriate Federal authority.
    (b) All alleged violations of the ethical restrictions described in 
Sec. 3c.1 that are reported in accordance with paragraph (a) of this 
section to an appropriate authority within the Commission shall in turn 
be referred by that authority to the Designated Agency Ethics Official 
or his or her designee, or the Inspector General.
    (c) Employees shall cooperate with official inquiries by the 
Inspector General; they shall respond to questions truthfully under oath 
when required, whether orally or in writing, and must provide documents 
and other materials concerning matters of official interest. An employee 
is not required to respond to such official inquiries if answers or 
testimony may subject the employee to criminal prosecution.

[[Page 69]]



          SUBCHAPTER B_REGULATIONS UNDER THE FEDERAL POWER ACT-


PART 4_LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT COSTS
--Table of Contents

  Subpart A_Determination of Cost of Projects Constructed Under License

Sec.
4.1 Initial cost statement.
4.3 Report on project cost.
4.4 Service of report.
4.5 Time for filing protest.
4.6 Burden of proof.
4.7 Findings.

  Subpart B_Determination of Fair Value of Constructed Projects, Under 
                        Section 23(a) of the Act

4.10 Valuation data.
4.11 Reports.
4.12 Service of report.
4.13 Time for filing protest.
4.14 Hearing upon report.

 Subpart C_Determination of Cost of Constructed Projects not Subject to 
                        Section 23(a) of the Act

4.20 Initial statement.
4.21 Reports.
4.22 Service of report.
4.23 Time for filing protest.
4.24 Determination of cost.
4.25 Findings.

  Subpart D_Application for Preliminary Permit, License or Exemption: 
                           General Provisions

4.30 Applicability and definitions.
4.31 Initial or competing application: who may file.
4.32 Acceptance for filing or rejection; information to be made 
          available to the public; requests for additional studies.
4.33 Limitations on submitting applications.
4.34 Hearings on applications; consultation on terms and conditions; 
          motions to intervene; alternative procedures.
4.35 Amendment of application; date of acceptance.
4.36 Competing applications: deadlines for filing; notices of intent; 
          comparisons of plans of development.
4.37 Rules of preference among competing applications.
4.38 Consultation requirements.
4.39 Specifications for maps and drawings.

 Subpart E_Application for License for Major Unconstructed Project and 
                         Major Modified Project

4.40 Applicability.
4.41 Contents of application.

    Subpart F_Application for License for Major Project_Existing Dam

4.50 Applicability.
4.51 Contents of application.

  Subpart G_Application for License for Minor Water Power Projects and 
             Major Water Power Projects 5 Megawatts or Less

4.60 Applicability and notice to agencies.
4.61 Contents of application.

      Subpart H_Application for License for Transmission Line Only

4.70 Applicability.
4.71 Contents of application.

Subpart I_Application for Preliminary Permit; Amendment and Cancellation 
                          of Preliminary Permit

4.80 Applicability.
4.81 Contents of application.
4.82 Amendments.
4.83 Cancellation and loss of priority.
4.84 Surrender of permit.

      Subpart J_Exemption of Small Conduit Hydroelectric Facilities

4.90 Applicability and purpose.
4.91 [Reserved]
4.92 Contents of exemption application.
4.93 Action on exemption applications.
4.94 Standard terms and conditions of exemption.
4.95 Surrender of exemption.
4.96 Amendment of exemption.

Subpart K_Exemption of Small Hydroelectric Power Projects of 5 Megawatts 
                                 or Less

4.101 Applicability.
4.102 Surrender of exemption.
4.103 General provisions for case-specific exemption.
4.104 Amendment of exemption.
4.105 Action on exemption applications.

[[Page 70]]

4.106 Standard terms and conditions of case-specific exemption from 
          licensing.
4.107 Contents of application for exemption from licensing.
4.108 Contents of application for exemption from provisions other than 
          licensing.

             Subpart L_Application for Amendment of License

4.200 Applicability.
4.201 Contents of application.
4.202 Alteration and extension of license.

              Subpart M_Fees Under Section 30(e) of the Act

4.300 Purpose, definitions, and applicability.
4.301 Notice to fish and wildlife agencies and estimation of fees prior 
          to filing.
4.302 Fees at filing.
4.303 Post-filing procedures.
4.304 Payment.
4.305 Enforcement.

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

    Source: Order 141, 12 FR 8485, Dec. 19, 1947, unless otherwise 
noted.



  Subpart A_Determination of Cost of Projects Constructed Under License



Sec. 4.1  Initial cost statement.

    (a) Notification of Commission. When a project is constructed under 
a license issued under the Federal Power Act, the licensee shall, within 
one year after the original project is ready for service, file with the 
Commission a letter, in quadruplicate, declaring that the original costs 
have been booked in compliance with the Commission's Uniform System of 
Accounts and the books of accounts are ready for audit.
    (b) Licensee's books. The licensee's books of accounts for each 
project shall be maintained in such a fashion that each year's 
additions, betterments, and delections to the project may be readily 
ascertained.
    (c) Availability of information to the public. The information made 
available to the Commission in accordance with this section must be 
available to the public for inspection and copying when specifically 
requested.
    (d) Compliance with the Act. Compliance with the provisions of this 
section satisfies the filing requirements of section 4(b) of the Federal 
Power Act (16 U.S.C. 797(b)).

[Order 53, 44 FR 61948, Oct. 29, 1979]



Sec. 4.3  Report on project cost.

    (a) Scheduling an audit. When the original cost declaration letter, 
filed in accordance with Sec. 4.1 is received by the Commission, its 
representative will schedule and conduct an audit of the books, cost 
records, engineering reports, and other records supporting the project's 
original cost. The audit may include an inspection of the project works.
    (b) Project records. The cost records shall be supported by 
memorandum accounts reflecting the indirect and overhead costs prior to 
their spread to primary accounts as well as all the details of 
allocations including formulas utilized to spread the indirect and 
overhead costs to primary accounts.
    (c) Report by Commission staff. Upon completion of the audit, a 
report will be prepared for the Commission setting forth the audit 
findings and recommendations with respect to the cost as claimed.

[Order 53, 44 FR 61948, Oct. 29, 1979]



Sec. 4.4  Service of report.

    Copies of such report will be served by certified mail upon said 
licensees, and copies will also be sent to the State public service 
commission, or if the States has not regulatory agency, to the Governor 
of the State where such project is located, and to such other parties as 
the Commission shall prescribe, and the report will be made available 
for public inspection at the time of service upon the licensee.

(Administrative Procedure Act, 5 U.S.C. 551-557 (1976); Federal Power 
Act, as amended, 16 U.S.C. 291-628 (1976 & Supp. V 1981), Dept. of 
Energy Organization Act 42 U.S.C. 7101-7352 (Supp. V 1981); E.O. 12009, 
3 CFR 142 (1978))

[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 344, 48 FR 
49010, Oct. 24, 1983]



Sec. 4.5  Time for filing protest.

    Thirty days after service thereof will be allowed to such licensee 
within which to file a protest to such reports. If no protest is filed 
within the time allowed, the Commission will issue such

[[Page 71]]

order as may be appropriate. If a protest is filed, a public hearing 
will be ordered in accordance with subpart E of part 385 of this 
chapter.

[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 225, 47 FR 
19056, May 3, 1982]



Sec. 4.6  Burden of proof.

    The burden of proof to sustain each item of claimed cost shall be 
upon the licensee and only such items as are in the opinion of the 
Commission supported by satisfactory proof may be entered in the 
electric plant accounts of the licensee.

[Order 53, 44 FR 61948, Oct. 29, 1979]



Sec. 4.7  Findings.

    (a) Commission determination. Final action by the Commission will be 
in the form of an order served upon all parties to the proceeding. One 
copy of the order will be furnished to the Secretary of Treasury by the 
Commission.
    (b) Adjustments to licensee's books. The licensee's books of account 
for the project shall be adjusted to conform to the actual legitimate 
cost as revised by the order of the Commission. These adjustments and 
the project may be audited by Commission representatives, as scheduled.

[Order 53, 44 FR 61948, Oct. 29, 1979]



  Subpart B_Determination of Fair Value of Constructed Projects, Under 
                        Section 23(a) of the Act



Sec. 4.10  Valuation data.

    (a) Notification of Commission. In every case arising under section 
23(a) of the Federal Power Act that requires the determination of the 
fair value of a project already constructed, the licensee shall, within 
six months after the date of issuance of a license, file with the 
Commission a letter, in quadruplicate.
    (b) Contents of letter. The letter referred to in paragraph (a) 
shall contain a statement to the effect that an inventory and appraisal 
in detail, as of the effective date of the license, of all property 
subject thereto and to be so valued has been completed. The letter shall 
also include a statement to the effect that the actual legitimate 
original cost, or if not known, the estimated original cost, and accrued 
depreciation of the property, classified by prime accounts as prescribed 
in the Commission's Uniform System of Accounts, have been established.
    (c) Licensee's books. The licensee's books of account for each 
project shall be maintained in such a fashion that each year's 
additions, betterments, and deletions to the projects may be readily 
ascertained.
    (d) Availability of information to the public. The information made 
available to the Commission in accordance with this section must be 
available for inspection and copying by the public when specifically 
requested.

[Order 53, 44 FR 61948, Oct. 29, 1979]



Sec. 4.11  Reports.

    Representatives of the Commission will inspect the project works, 
engineering reports, and other records of the project, check the 
inventory and make an appraisal of the property and an audit of the 
books, records, and accounts of the licensee relating to the property to 
be valued, and will prepare a report of their findings with respect to 
the inventory, appraisal, original cost, accrued depreciation, and fair 
value of the property.



Sec. 4.12  Service of report.

    A copy of such report will be served by certified mail upon said 
licensee, and copies will also be sent to the State public service 
commission, or if the State has no regulatory agency, to the Governor of 
the State where such project is located. The report will be made 
available for public inspection at the time of service upon the 
licensee.

(Administrative Procedure Act, 5 U.S.C. 551-557 (1976); Federal Power 
Act, as amended, 16 U.S.C. 291-628 (1976 & Supp. V 1981), Dept. of 
Energy Organization Act 42 U.S.C. 7101-7352 (Supp. V 1981); E.O. 12009, 
3 CFR 142 (1978))

[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 344, 48 FR 
49010, Oct. 24, 1983]

[[Page 72]]



Sec. 4.13  Time for filing protest.

    Thirty days after service thereof will be allowed to the licensee 
within which to file a protest to such report.



Sec. 4.14  Hearing upon report.

    (a) Public hearing. After the expiration of the time within which a 
protest may be filed, a public hearing will be ordered in accordance 
with subpart E of part 385 of this chapter.
    (b) Commission determination. After the conclusion of the hearing, 
the Commission will make a finding of fair value, accompanied by an 
order which will be served upon the licensee and all parties to the 
proceeding. One copy of the order shall be furnished to the Secretary of 
the Treasury by the Commission.
    (c) Adjustment to licensee's books. The licensee's books of account 
for the project shall be adjusted to conform to the fair value of the 
project as revised by the order of the Commission. These adjustments and 
the project may be audited by Commission representatives, as scheduled.

[Order 53, 44 FR 61949, Oct. 29, 1979, as amended by Order 225, 47 FR 
19056, May 3, 1982]



 Subpart C_Determination of Cost of Constructed Projects not Subject to 
                        Section 23(a) of the Act



Sec. 4.20  Initial statement.

    (a) Notification of Commission. In all cases where licenses are 
issued for projects already constructed, but which are not subject to 
the provisions of section 23(a) of the Act (49 Stat. 846; 16 U.S.C. 
816), the licensee shall, within 6 months after the date of issuance of 
license, file with the Commission a letter, in quadruplicate.
    (b) Contents of letter. The letter referred to in paragraph (a) of 
this section shall contain a statement to the effect that an inventory 
in detail of all property included under the license, as of the 
effective date of such license, has been completed. The letter shall 
also include a statement to the effect that actual legitimate original 
cost, or if not known, the estimated original cost, and accrued 
depreciation of the property, classified by prime accounts as prescribed 
in the Commission's Uniform System of Accounts, have been established.
    (c) Licensee's books. The licensee's books of account for each 
project shall be maintained in such a fashion that each year's 
additions, betterments, and deletions to the project may be readily 
ascertained.
    (d) Availability of information to the public. The information made 
available to the Commission in accordance with this section must be 
available for inspection and copying by the public when specifically 
requested.
    (e) Compliance with the Act. Compliance with the provisions of this 
section satisfies the filing requirements of section 4(b) of the Federal 
Power Act (16 U.S.C. 797(b)).

[Order 53, 44 FR 61949, Oct. 29, 1979]



Sec. 4.21  Reports.

    Representatives of the Commission will inspect the project works, 
engineering reports, and other records of the project, check the 
inventory and estimated depreciation, make an audit of the books, 
records, and accounts of the licensee relating to the property under 
license, and prepare a report of their findings with respect to the 
inventory, the original cost of the property, and the estimated accrued 
depreciation thereon.



Sec. 4.22  Service of report.

    Copies of such report will be served by certified mail upon said 
licensees, and copies will also be sent to the State public service 
commission, or if the State has no regulatory agency, to the Governor of 
the State where such project is located, and to such other parties as 
the Commission shall prescribe, and the report will be made available 
for public inspection at the time of service upon the licensee.

(Administrative Procedure Act, 5 U.S.C. 551-557 (1976); Federal Power 
Act, as amended, 16 U.S.C. 291-628 (1976 & Supp. V 1981), Dept. of 
Energy Organization Act 42 U.S.C. 7101-7352 (Supp. V 1981); E.O. 12009, 
3 CFR 142 (1978))

[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 344, 48 FR 
49010, Oct. 24, 1983]

[[Page 73]]



Sec. 4.23  Time for filing protest.

    Thirty days after service thereof will be allowed to such licensee 
within which to file a protest to such reports. If no protest is filed 
within the time allowed, the Commission will issue such order as may be 
appropriate. If a protest is filed, a public hearing will be ordered in 
accordance with subpart E of part 385 of this chapter.

[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 225, 47 FR 
19056, May 3, 1982]



Sec. 4.24  Determination of cost.

    The Commission, after receipt of the reports, or after the 
conclusion of the hearing if one is held, will determine the amounts to 
be included in the electric plant accounts of the licensee as the cost 
of the property and the accrued depreciation thereon.



Sec. 4.25  Findings.

    (a) Commission determination. Final action by the Commission will be 
in the form of an order served upon all parties to the proceeding. One 
copy of the order shall be furnished to the Secretary of Treasury by the 
Commission.
    (b) Adjustment to licensee's books. The licensee's books of account 
for the project shall be adjusted to conform to the actual legitimate 
cost as revised by the order of the Commission. These adjustments and 
the project may be audited by Commission representatives, as scheduled.

[Order 53, 44 FR 61949, Oct. 29, 1979]



  Subpart D_Application for Preliminary Permit, License or Exemption: 
                           General Provisions

    Authority: Federal Power Act, as amended, 16 U.S.C. 792-828c; 
Department of Energy Organization Act, 42 U.S.C. 7101-7352; E.O. 12009, 
42 FR 46267; Public Utility Regulatory Policies Act of 1978, 16 U.S.C. 
2601-2645; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.).



Sec. 4.30  Applicability and definitions.

    (a) (1) This subpart applies to applications for preliminary permit, 
license, or exemption from licensing.
    (2) Any potential applicant for an original license for which 
prefiling consultation begins on or after July 23, 2005 and which wishes 
to develop and file its application pursuant to this part, must seek 
Commission authorization to do so pursuant to the provisions of part 5 
of this chapter.
    (b) For the purposes of this part--
    (1)(i) Competing development application means any application for a 
license or exemption from licensing for a proposed water power project 
that would develop, conserve, and utilize, in whole or in part, the same 
or mutually exclusive water resources that would be developed, 
conserved, and utilized by a proposed water power project for which an 
initial preliminary permit or initial development application has been 
filed and is pending before the Commission.
    (ii) Competing preliminary permit application means any application 
for a preliminary permit for a proposed water power project that would 
develop, conserve, and utilize, in whole or in part, the same or 
mutually exclusive water resources that would be developed, conserved 
and utilized by a proposed water power project for which an initial 
preliminary permit or initial development application has been filed and 
is pending before the Commission.
    (2) Conduit means any tunnel, canal, pipeline, aqueduct, flume, 
ditch, or similar manmade water conveyance that is operated for the 
distribution of water for agricultural, municipal, or industrial 
consumption and not primarily for the generation of electricity. The 
term not primarily for the generation of electricity includes but is not 
limited to a conduit:
    (i) Which was built for the distribution of water for agricultural, 
municipal, or industrial consumption and is operated for such a purpose; 
and
    (ii) To which a hydroelectric facility has been or is proposed to be 
added.
    (3) Construction of a dam, for the purposes of provisions governing 
application for exemption of a small conduit hydroelectric facility, 
means any construction, repair, reconstruction, or modification of a dam 
that creates a new impoundment or increases the normal maximum surface 
elevation or the normal maximum surface area of an existing impoundment.
    (4)(i) Dam, for the purposes of provisions governing application for 
license

[[Page 74]]

of a major project--existing dam, means any structure for impounding or 
diverting water.
    (ii) Dam, for the purposes of provisions governing application for 
exemption of a small conduit hydroelectric facility, means any structure 
that impounds water.
    (iii) Dam, for the purposes of provisions governing application for 
exemption of a small hydroelectric power project, means any structure 
for impounding water, including any diversion structure that is designed 
to obstruct all or substantially all of the flow of a natural body of 
water.
    (5) Development application means any application for either a 
license or exemption from licensing for a proposed water power project.
    (6)(i) Existing dam, for the purposes of provisions governing 
application for license of a major project--existing dam, means any dam 
(as defined in paragraph (b)(4)(i) of this section) that has already 
been constructed and which does not require any construction or 
enlargement of impoundment structures other than repairs or 
reconstruction.
    (ii) Existing dam, for the purposes of provisions governing 
application for exemption of a small hydroelectric power project, means 
any dam, the construction of which was completed on or before April 20, 
1977, and which does not require any construction or enlargement of 
impoundment structures (other than repairs or reconstruction) in 
connection with the installation of any small hydroelectric power 
project.
    (7) Existing impoundment, for the purposes of provisions governing 
application for license of a major project--existing dam, means any body 
of water that an existing dam impounds.
    (8) Federal lands, for the purposes of provisions governing 
application for exemption of a small hydroelectric power project, means 
any lands to which the United States holds fee title.
    (9)(i) Fish and wildlife agencies means the United States Fish and 
Wildlife Service, the National Marine Fisheries Service, and the state 
agency in charge of administrative management over fish and wildlife 
resources of the state in which a proposed hydropower project is 
located.
    (ii) Fish and wildlife recommendation means any recommendation 
designed to protect, mitigate damages to, or enhance any wild member of 
the animal kingdom, including any migratory or nonmigratory mammal, 
fish, bird, amphibian, reptile, mollusk, crustacean, or other 
invertebrate, whether or not bred, hatched, or born in captivity, and 
includes any egg or offspring thereof, related breeding or spawning 
grounds, and habitat. A ``fish and wildlife recommendation'' includes a 
request for a study which cannot be completed prior to licensing, but 
does not include a request that the proposed project not be constructed 
or operated, a request for additional pre-licensing studies or analysis 
or, as the term is used in Sec. Sec. 4.34(e)(1) and 4.34(f)(3), a 
recommendation for facilities, programs, or other measures to benefit 
recreation or tourism.
    (10) Indian tribe means, in reference to a proposal to apply for a 
license or exemption for a hydropower project, an Indian tribe which is 
recognized by treaty with the United States, by federal statute, or by 
the U.S. Department of the Interior in its periodic listing of tribal 
governments in the Federal Register in accordance with 25 CFR 83.6(b), 
and whose legal rights as a tribe may be affected by the development and 
operation of the hydropower project proposed (as where the operation of 
the proposed project could interfere with the management and harvest of 
anadromous fish or where the project works would be located within the 
tribe's reservation).
    (11)(i) Initial development application means any acceptable 
application for either a license or exemption from licensing for a 
proposed water power project that would develop, conserve, and utilize, 
in whole or in part, water resources for which no other acceptable 
application for a license or exemption from licensing has been submitted 
for filing and is pending before the Commission.
    (ii) Initial preliminary permit application means any acceptable 
application for a preliminary permit for a proposed water power project 
that would develop, conserve, and utilize, in whole or

[[Page 75]]

in part, water resources for which no other acceptable preliminary 
permit application has been submitted for filing and is pending before 
the Commission.
    (12) Install or increase, for the purposes of provisions governing 
application for exemption of a small hydroelectric power project, means 
to add new generating capacity at a site that has no existing generating 
units, to replace or rehabilitate an abandoned or unused existing 
generating unit, or to increase the generating capacity of any existing 
power plant by installing an additional generating unit or by 
rehabilitating an operable generating unit in a way that increases its 
rated electric power output.
    (13) Licensed water power project means a project, as defined in 
section 3(11) of the Federal Power Act, that is licensed under Part I of 
the Federal Power Act.
    (14) Major modified project means any major project--existing dam, 
as defined in paragraph (b)(16) of this section, that would include:
    (i) Any repair, modification or reconstruction of an existing dam 
that would result in a significant change in the normal maximum surface 
area or the normal maximum surface elevation of an existing impoundment; 
or
    (ii) Any change in existing project works or operations that would 
result in a significant environmental impact.
    (15) Major unconstructed project means any unlicensed water power 
project that would:
    (i) Have a total installed generating capacity of more than 1.5 MW; 
and
    (ii) Use the water power potential of a dam and impoundment which, 
at the time application is filed, have not been constructed.
    (16) Major project--existing dam means a licensed or unlicensed, 
existing or proposed water power project that would:
    (i) Have a total installed generating capacity or more than 2,000 
horsepower (1.5 MW); and
    (ii) Not use the water power potential provided by any dam except an 
existing dam.
    (17) Minor water power project means any licensed or unlicensed, 
existing or proposed water power project that would have a total 
installed generation capacity of 2,000 horsepower (1.5 MW), or less.
    (18) New development, for the purposes of provisions governing 
application for license of a major project--existing dam, means any 
construction, installation, repair, reconstruction, or other change in 
the existing state of project works or appurtenant facilities, including 
any dredging and filling in project waters.
    (19) New license means any license, except an annual license issued 
under section 15 of the Federal Power Act, for a water power project 
that is issued under the Federal Power Act after the initial license for 
that project.
    (20)(i) Non-Federal lands, for the purposes of provisions governing 
application for exemption of a small conduit hydroelectric facility, 
means any lands except lands to which the United States holds fee title.
    (ii) Non-Federal lands, for the purposes of provisions governing 
application for exemption of a small hydroelectric power project, mean 
any lands other than Federal lands defined in paragraph (b)(8) of this 
section.
    (21) Person means any individual and, as defined in section 3 of the 
Federal Power Act, any corporation, municipality, or state.
    (22) Project, for the purposes of provisions governing application 
for exemption of a small hydroelectric power project, means:
    (i) The impoundment and any associated dam, intake, water conveyance 
facility, power plant, primary transmission line, and other appurtenant 
facility if a lake or similar natural impoundment or a manmade 
impoundment is used for power generation; or
    (ii) Any diversion structure other than a dam and any associated 
water conveyance facility, power plant, primary transmission line, and 
other appurtenant facility if a natural water feature other than a lake 
or similar natural impoundment is used for power generation.
    (23) Qualified exemption applicant means any person who meets the 
requirements specified in Sec. 4.31(b)(2) with respect to a small 
hydroelectric power project for which exemption from licensing is 
sought.

[[Page 76]]

    (24) Qualified license applicant means any person to whom the 
Commission may issue a license, as specified in section 4(e) of the 
Federal Power Act.
    (25) Ready for environmental analysis means the point in the 
processing of an application for an original or new license or exemption 
from licensing which has been accepted for filing, where substantially 
all additional information requested by the Commission has been filed 
and found adequate.
    (26) Real property interests, for the purposes of provisions 
governing application for exemption of a small conduit hydroelectric 
facility or a small hydroelectric power project, includes ownership in 
fee, rights-of-way, easements, or leaseholds.
    (27) Resource agency means a Federal, state, or interstate agency 
exercising administration over the areas of flood control, navigation, 
irrigation, recreation, fish and wildlife, water resource management 
(including water rights), or cultural or other relevant resources of the 
state or states in which a project is or will be located.
    (28) Small conduit hydroelectric facility means an existing or 
proposed hydroelectric facility that is constructed, operated, or 
maintained for the generation of electric power, and includes all 
structures, fixtures, equipment, and lands used and useful in the 
operation or maintenance of the hydroelectric facility, but excludes the 
conduit on which the hydroelectric facility is located or the 
transmission lines associated with the hydroelectric facility and which:
    (i) Utilizes for electric power generation the hydroelectric 
potential of a conduit;
    (ii) Is located entirely on non-Federal lands, as defined in 
paragraph (b)(20)(i) of this section;
    (iii) Has an installed generating capacity of 15 MW or less;
    (iv) Is not an integral part of a dam;
    (v) Discharges the water it uses for power generation either:
    (A) Into a conduit;
    (B) Directly to a point of agricultural, municipal, or industrial 
consumption; or
    (C) Into a natural water body if a quantity of water equal to or 
greater than the quantity discharged from the hydroelectric facility is 
withdrawn from that water body downstream into a conduit that is part of 
the same water supply system as the conduit on which the hydroelectric 
facility is located; and
    (vi) Does not rely upon construction of a dam, which construction 
will create any portion of the hydrostatic head that the facility uses 
for power generation unless that construction would occur for 
agricultural, municipal, or industrial consumptive purposes even if 
hydroelectric generating facilities were not installed.
    (29) Small hydroelectric power project means any project in which 
capacity will be installed or increased after the date of notice of 
exemption or application under subpart K of this chapter, which will 
have a total installed capacity of not more than 5 MW, and which:
    (i) Would utilize for electric power generation the water power 
potential of an existing dam that is not owned or operated by the United 
States or by an instrumentality of the Federal Government, including the 
Tennessee Valley Authority; or
    (ii)(A) Would utilize for the generation of electricity a natural 
water feature, such as a natural lake, waterfall, or the gradient of a 
natural stream, without the need for a dam or man-made impoundment; and
    (B) Would not retain water behind any structure for the purpose of a 
storage and release operation.
    (30) PURPA benefits means benefits under section 210 of the Public 
Utility Regulatory Policies Act of 1978 (PURPA). Section 210(a) of PURPA 
requires electric utilities to purchase electricity from, and to sell 
electricity to, qualifying facilities.

[Order 413, 50 FR 11676, Mar. 25, 1985, as amended by Order 487, 52 FR 
48404, Dec. 22, 1987; Order 499, 53 FR 27001, July 18, 1988; Order 503, 
53 FR 36567, Sept. 21, 1988; Order 533, 56 FR 23146, May 20, 1991; 56 FR 
61154, Dec. 2, 1991; Order 533-A, 57 FR 10809, Mar. 31, 1992; 59 FR 
10577, Mar. 7, 1994; Order 2002, 68 FR 51115, Aug. 25, 2003]



Sec. 4.31  Initial or competing application: who may file.

    (a) Application for a preliminary permit or a license. Any citizen, 
association of citizens, domestic corporation, municipality, or state 
may submit for filing

[[Page 77]]

an initial application or a competing application for a preliminary 
permit or a license for a water power project under Part I of the 
Federal Power Act.
    (b) Application for exemption of a small conduit hydroelectric 
facility--(1) Exemption from provisions other than licensing. Any 
citizen, association of citizens, domestic corporation, municipality, or 
state that has all of the real property interests in the lands necessary 
to develop and operate that project, or an option to obtain those 
interests, may apply for exemption of a small conduit hydroelectric 
facility from provisions of Part I of the Federal Power Act, other than 
licensing provisions.
    (2) Exemption from licensing. Any person having all the real 
property interests in the lands necessary to develop and operate the 
small conduit hydroelectric facility, or an option to obtain those 
interests, may apply for exemption of that facility from licensing under 
Part I of the Federal Power Act.
    (c) Application for case-specific exemption of a small hydroelectric 
power project--(1) Exemption from provisions other than licensing. Any 
qualified license applicant or licensee seeking amendment of its license 
may apply for exemption of the related project from provisions of Part I 
of the Federal Power Act other than licensing provisions.
    (2) Exemption from licensing--(i) Only Federal lands involved. If 
only rights to use or occupy Federal lands would be necessary to develop 
and operate the proposed small hydroelectric power project, any person 
may apply for exemption of that project from licensing.
    (ii) Some non-Federal lands involved. If real property interests in 
any non-Federal lands would be necessary to develop and operate the 
proposed small hydroelectric power project, any person who has all of 
the real property interests in non-Federal lands necessary to develop 
and operate that project, or an option to obtain those interests, may 
apply for exemption of that project from licensing.

[Order 413, 50 FR 11678, Mar. 25, 1985]



Sec. 4.32  Acceptance for filing or rejection; information to be made 
available to the public; requests for additional studies.

    (a) Each application must:
    (1) For a preliminary permit or license, identify every person, 
citizen, association of citizens, domestic corporation, municipality, or 
state that has or intends to obtain and will maintain any proprietary 
right necessary to construct, operate, or maintain the project;
    (2) For a preliminary permit or a license, identify (providing names 
and mailing addresses):
    (i) Every county in which any part of the project, and any Federal 
facilities that would be used by the project, would be located;
    (ii) Every city, town, or similar local political subdivision:
    (A) In which any part of the project, and any Federal facilities 
that would be used by the project, would be located; or
    (B) That has a population of 5,000 or more people and is located 
within 15 miles of the project dam;
    (iii) Every irrigation district, drainage district, or similar 
special purpose political subdivision:
    (A) In which any part of the project, and any Federal facilities 
that would be used by the project, would be located; or
    (B) That owns, operates, maintains, or uses any project facilities 
or any Federal facilities that would be used by the project;
    (iv) Every other political subdivision in the general area of the 
project that there is reason to believe would likely be interested in, 
or affected by, the application; and
    (v) All Indian tribes that may be affected by the project.
    (3)(i) For a license (other than a license under section 15 of the 
Federal Power Act) state that the applicant has made, either at the time 
of or before filing the application, a good faith effort to give 
notification by certified mail of the filing of the application to:
    (A) Every property owner of record of any interest in the property 
within the bounds of the project, or in the case of the project without 
a specific boundary, each such owner of property which

[[Page 78]]

would underlie or be adjacent to any project works including any 
impoundments; and
    (B) The entities identified in paragraph (a)(2) of this section, as 
well as any other Federal, state, municipal or other local government 
agencies that there is reason to believe would likely be interested in 
or affected by such application.
    (ii) Such notification must contain the name, business address, and 
telephone number of the applicant and a copy of the Exhibit G contained 
in the application, and must state that a license application is being 
filed with the Commission.
    (4)(i) As to any facts alleged in the application or other materials 
filed, be subscribed and verified under oath in the form set forth in 
paragraph (a) (3)(ii) of this section by the person filing, an officer 
thereof, or other person having knowledge of the matters sent forth. If 
the subscription and verification is by anyone other than the person 
filing or an officer thereof, it shall include a statement of the 
reasons therefor.
    (ii) This (application, etc.) is executed in the

State of________________________________________________________________

County of_______________________________________________________________

by:--------------------

(Name)--------------------______________________________________________

(Address)_______________________________________________________________

being duly sworn, depose(s) and say(s) that the contents of this 
(application, etc.) are true to the best of (his or her) knowledge or 
belief. The undersigned applicant(s) has (have) signed the (application, 
etc.) this ------------ day of --------------, 19----.

________________________________________________________________________

(Applicant(s))

By:_____________________________________________________________________

    Subscribed and sworn to before me, a [Notary Public, or title of 
other official authorized by the state to notarize documents, as 
appropriate] of the State of ---------------- this day of --------------
, 19----.

/SEAL/ [if any]

________________________________________________________________________


(Notary Public, or other authorized official)

    (5) Contain the information and documents prescribed in the 
following sections of this chapter, according to the type of 
application:
    (i) Preliminary permit: Sec. 4.81;
    (ii) License for a minor water power project and a major water power 
project 5 MW or less: Sec. 4.61;
    (iii) License for a major unconstructed project and a major modified 
project: Sec. 4.41;
    (iv) License for a major project--existing dam: Sec. 4.51;
    (v) License for a transmission line only: Sec. 4.71;
    (vi) Nonpower license for a licensed project: Sec. 16.11;
    (vii) Exemption of a small conduit hydroelectric facility: Sec. 
4.92;
    (viii) Case-specific exemption of a small hydroelectric power 
project: Sec. 4.107; or
    (ix) License or exemption for a project located at a new dam or 
diversion where the applicant seeks PURPA benefits: Sec. 292.208.
    (b) (1) Each applicant for a preliminary permit, license, and 
transfer or surrender of license and each petitioner for surrender of an 
exemption must submit to the Commission's Secretary for filing an 
original and eight copies of the application or petition. The applicant 
or petitioner must serve one copy of the application or petition on the 
Director of the Commission's Regional Office for the appropriate region 
and on each resource agency, Indian tribe, and member of the public 
consulted pursuant to Sec. 4.38 or Sec. 16.8 of this chapter or part 5 
of this chapter. In the case of an application for a preliminary permit, 
the applicant must, if the Commission so directs, serve copies of the 
application on the U.S. Department of the Interior and the U.S. Army 
Corps of Engineers. The application may include reduced prints of maps 
and drawings conforming to Sec. 4.39(d). The originals (microfilm) of 
maps and drawings are not to be filed initially, but will be required 
pursuant to paragraph (d) of this section. The Commission may also ask 
for the filing of full-sized prints in appropriate cases.
    (2) Each applicant for exemption must submit to the Commission's 
Secretary for filing an original and eight copies of the application. An 
applicant must serve one copy of the application on the Director of the 
Commission's

[[Page 79]]

Regional Office for the appropriate region and on each resource agency 
consulted pursuant to Sec. 4.38. For each application filed following 
October 23, 2003, maps and drawings must conform to the requirements of 
Sec. 4.39. The originals (microfilm) of maps and drawing are not to be 
filed initially, but will be requested pursuant to paragraph (d) of this 
section.
    (3)(i) An applicant must make information regarding its proposed 
project reasonably available to the public for inspection and 
reproduction, from the date on which the applicant files its application 
for a license or exemption until the licensing or exemption proceeding 
for the project is terminated by the Commission. This information 
includes a copy of the complete application for license or exemption, 
together with all exhibits, appendices and any amendments, and any 
comments, pleadings, supplementary or additional information, or 
correspondence filed by the applicant with the Commission in connection 
with the application.
    (ii) An applicant must delete from any information made available to 
the public under this section, specific site or property locations the 
disclosure of which would create a risk of harm, theft, or destruction 
of archeological or Native American cultural resources or to the site at 
which the sources are located, or would violate any federal law, 
including the Archaeological Resources Protection Act of l979, 16 U.S.C. 
470w-3, and the National Historic Preservation Act of 1966, 16 U.S.C. 
470hh.
    (4)(i) An applicant must make available the information specified in 
paragraph (b)(3) of this section in a form that is readily accessible, 
reviewable, and reproducible, at the same time as the information is 
filed with the Commission or required by regulation to be made 
available.
    (ii) An applicant must make the information specified in paragraph 
(b)(3) of this section available to the public for inspection:
    (A) At its principal place of business or at any other location that 
is more accessible to the public, provided that all the information is 
available in at least one location;
    (B) During regular business hours; and
    (C) In a form that is readily accessible, reviewable and 
reproducible.
    (iii) The applicant must provide a copy of the complete application 
(as amended) to a public library or other convenient public office 
located in each county in which the proposed project is located.
    (iv) An applicant must make requested copies of the information 
specified in paragraph (b)(3) of this section available either:
    (A) At its principal place of business or at any other location that 
is more accessible to the public, after obtaining reimbursement for 
reasonable costs of reproduction; or
    (B) Through the mail, after obtaining reimbursement for postage fees 
and reasonable costs of reproduction.
    (5) Anyone may file a petition with the Commission requesting access 
to the information specified in paragraph (b)(3) of this section if it 
believes that an applicant is not making the information reasonably 
available for public inspection or reproduction. The petition must 
describe in detail the basis for the petitioner's belief.
    (6) An applicant must publish notice twice of the filing of its 
application, no later than 14 days after the filing date, in a daily or 
weekly newspaper of general circulation in each county in which the 
project is located. The notice must disclose the filing date of the 
application and briefly summarize it, including the applicant's name and 
address, the type of facility applied for, its proposed location, the 
places where the information specified in paragraph (b)(3) of this 
section is available for inspection and reproduction, and the date by 
which any requests for additional scientific studies are due under 
paragraph (b)(7) of this section, and must state that the Commission 
will publish subsequent notices soliciting public participation if the 
application is found acceptable for filing. The applicant must promptly 
provide the Commission with proof of the publications of this notice.
    (7) If any resource agency, Indian tribe, or person believes that an 
additional scientific study should be conducted in order to form an 
adequate

[[Page 80]]

factual basis for a complete analysis of the application on its merits, 
the resource agency, Indian tribe, or person must file a request for the 
study with the Commission not later than 60 days after the application 
is filed and serve a copy of the request on the applicant. The 
Commission will issue public notice of the tendering for filing of each 
application for hydropower license or exemption; each such applicant 
must submit a draft of this notice to the Commission with its 
application. For any such additional study request, the requester must 
describe the recommended study and the basis for the request in detail, 
including who should conduct and participate in the study, its 
methodology and objectives, whether the recommended study methods are 
generally accepted in the Scientific community, how the study and 
information sought will be useful in furthering the resource goals that 
are affected by the proposed facilities, and approximately how long the 
study will take to complete, and must explain why the study objectives 
cannot be achieved using the data already available. In addition, in the 
case of a study request by a resource agency or Indian tribe that had 
failed to request the study during the pre-filing consultation process 
under Sec. 4.38 of this part or Sec. 16.8 of this chapter, the agency 
or Indian tribe must explain why this request was not made during the 
pre-filing consultation process and show good cause why its request for 
the study should be considered by the Commission.
    (8) An applicant may file a response to any such study request 
within 30 days of its filing, serving a copy of the response on the 
requester.
    (9) The requirements of paragraphs (b)(3) to (b)(8) of this section 
only apply to an application for license or exemption filed on or after 
May 20, 1991. Paragraphs (b)(3) and (b)(4) of this section do not apply 
to applications subject to the requirements of Sec. 16.7 of this 
chapter.
    (c)(1) Every application for a licensee or exemption for a project 
with a capacity of 80 megawatts or less must include in its application 
copies of the statements made under Sec. 4.38(b)(1)(vi).
    (2) If an applicant reverses a statement of intent not to seek PURPA 
benefits:
    (i) Prior to the Commission issuing a license or exemption, the 
reversal of intent will be treated as an amendment of the application 
under Sec. 4.35 and the applicant must:
    (A) Repeat the pre-filing consultation process under Sec. 4.38; and
    (B) Satisfy all the requirements in Sec. 292.208 of this chapter; 
or
    (ii) After the Commission issues a license or exemption for the 
project, the applicant is prohibited from obtaining PURPA benefits.
    (d) When any application is found to conform to the requirements of 
paragraphs (a), (b) and (c) of this section, the Commission or its 
delegate will:
    (1) Notify the applicant that the application has been accepted for 
filing, specifying the project number assigned and the date upon which 
the application was accepted for filing, and, for a license or exemption 
application, direct the filing of the originals (microfilm) of required 
maps and drawings;
    (2)(i) For an application for a preliminary permit or a license, 
issue public notice of the application as required in the Federal Power 
Act;
    (ii) For an application for exemption from licensing, publish notice 
once in a daily or weekly newspaper of general circulation in each 
county in which the project is or will be located; and
    (3) If the project affects lands of the United States, notify the 
appropriate Federal office of the application and the specific lands 
affected, pursuant to section 24 of the Federal Power Act.
    (4) For an application for a license seeking benefits under section 
210 of the Public Utility Regulatory Policies Act of 1978, as amended, 
for a project that would be located at a new dam or diversion, serve the 
public notice issued for the application under paragraph (d)(2)(i) of 
this section to interested agencies at the time the applicant is 
notified that the application is accepted for filing.
    (e) In order for an application to conform adequately to the 
requirements of paragraphs (a), (b) and (c) of this section and of Sec. 
4.38, an application must be completed fully. No blanks should be left 
in the application. No material

[[Page 81]]

or information required in the application should be omitted. If an 
applicant believes that its application conforms adequately without 
containing certain required material or information, it must explain in 
detail why the material or information is not being submitted and what 
steps were taken by the applicant to provide the material or 
information. If the Commission finds that an application does not 
adequately conform to the requirements of paragraphs (a), (b) and (c) of 
this section and of Sec. 4.38, the Commission or its designee will 
consider the application either deficient or patently deficient.
    (1) Deficient applications. (i) An application that in the judgment 
of the Director of the Office of Energy Projects does not conform to the 
requirements of paragraphs (a), (b) and (c) of this section and of Sec. 
4.38, may be considered deficient. An applicant having a deficient 
application will be afforded additional time to correct deficiencies, 
not to exceed 45 days from the date of notification in the case of an 
application for a preliminary permit or exemption from licensing or 90 
days from the date of notification in the case of an application for 
license. Notification will be by letter or, in the case of minor 
deficiencies, by telephone. Any notification will specify the 
deficiencies to be corrected. Deficiencies must be corrected by 
submitting an original and the number of copies specified in paragraph 
(b) of this section of the specified materials or information to the 
Secretary within the time specified in the notification of deficiency.
    (ii) Upon submission of a conforming application, action will be 
taken in accordance with paragraph (d) of this section.
    (iii) If the revised application is found not to conform to the 
requirements of paragraphs (a), (b) and (c) of this section and of Sec. 
4.38, or if the revisions are not timely submitted, the revised 
application will be rejected. Procedures for rejected applications are 
specified in paragraph (e)(2)(iii).
    (2) Patently deficient applications. (i) If, within 90 days of its 
filing date, the Director of the Office of Energy Projects determines 
that an application patently fails to substantially comply with the 
requirements of paragraph (a), (b), and (c) of this section and of Sec. 
4.38 of this part or Sec. 16.8 of this chapter, or is for a project 
that is precluded by law, the application will be rejected as patently 
deficient with the specification of the deficiencies that render the 
application patently deficient.
    (ii) If, after 90 days of its filing date, the Director of the 
Office of Energy Projects determines that an application patently fails 
to substantially comply with the requirements of paragraphs (a), (b), 
and (c) of this section and of Sec. 4.38 of this part or Sec. 16.8 of 
this chapter, or is for a project that is precluded by law:
    (A) The application will be rejected by order of the Commission, if 
the Commission determines it is patently deficient; or
    (B) The application will be considered deficient under paragraph 
(e)(1) of this section, if the Commission determines it is not patently 
deficient.
    (iii) Any application that is rejected may be resubmitted if the 
deficiencies are corrected and if, in the case of a competing 
application, the resubmittal is timely. The date the rejected 
application is resubmitted will be considered the new filing date for 
purposes of determining its timeliness under Sec. 4.36 and the 
disposition of competing applications under Sec. 4.37.
    (f) Any application will be considered accepted for filing as of the 
application filing date if the Secretary receives all of the information 
and documents necessary to conform to the requirements of paragraphs 
(a), (b) and (c) of this section and of Sec. 4.38 within the time 
prescribed by the Commission or its delegate under paragraph (e) of this 
section.
    (g) An applicant may be required to submit any additional 
information or documents that the Commission or its designee considers 
relevant for an informed decision on the application. The information or 
documents must take the form, and must be submitted within the time, 
that the Commission or its designee prescribes. An applicant may also be 
required to provide within a specified time additional copies of the 
complete application, or any of the additional information or documents 
that are filed, to the Commission or to

[[Page 82]]

any person, agency, or other entity that the Commission or its designee 
specifies. If an applicant fails to provide timely additional 
information, documents, or copies of submitted materials as required, 
the Commission or its designee may dismiss the application, hold it in 
abeyance, or take other appropriate action under this chapter or the 
Federal Power Act.
    (h) A prospective applicant, prior to submitting its application for 
filing, may seek advice from the Commission staff regarding the 
sufficiency of the application. For this purpose, five copies of the 
draft application should be submitted to the Director of the Division of 
Hydropower, Environment and Engineering. An applicant or prospective 
applicant may confer with the Commission staff at any time regarding 
deficiencies or other matters related to its application. All 
conferences are subject to the requirements of Sec. 385.2201 of this 
chapter governing ex parte communications. The opinions or advice of the 
staff will not bind the Commission or any person delegated authority to 
act on its behalf.
    (i) Intervention in any preliminary permit proceeding will not 
constitute intervention in any subsequent licensing or exemption 
proceeding.
    (j) Any application, the effectiveness of which is conditioned upon 
the future occurrence of any event or circumstance, will be rejected.
    (k) Critical Energy Infrastructure Information. (1) If this section 
requires an applicant to reveal Critical Energy Infrastructure 
Information (CEII), as defined in Sec. 388.113(c) of this chapter, to 
any person, the applicant shall omit the CEII from the information made 
available and insert the following in its place:
    (i) A statement that CEII is being withheld;
    (ii) A brief description of the omitted information that does not 
reveal any CEII; and
    (iii) This statement: ``Procedures for obtaining access to Critical 
Energy Infrastructure Information (CEII) may be found at 18 CFR 388.113. 
Requests for access to CEII should be made to the Commission's CEII 
Coordinator.''
    (2) The applicant, in determining whether information constitutes 
CEII, shall treat the information in a manner consistent with any 
filings that applicant has made with the Commission and shall to the 
extent practicable adhere to any previous determinations by the 
Commission or the CEII Coordinator involving the same or like 
information.
    (3) The procedures contained in Sec. Sec. 388.112 and 388.113 of 
this chapter regarding designation of, and access to, CEII, shall apply 
in the event of a challenge to a CEII designation or a request for 
access to CEII. If it is determined that information is not CEII or that 
a requester should be granted access to CEII, the applicant will be 
directed to make the information available to the requester.
    (4) Nothing in this section shall be construed to prohibit any 
persons from voluntarily reaching arrangements or agreements calling for 
the disclosure of CEII.

[Order 413, 50 FR 11678, Mar. 25, 1985, as amended by Order 480, 52 FR 
37285, Oct. 6, 1987; Order 487, 52 FR 48404, Dec. 22, 1987; Order 499, 
53 FR 27001, July 18, 1988; Order 533, 56 FR 23147, May 20, 1991; 56 FR 
61155, Dec. 2, 1991; Order 540, 57 FR 21737, May 22, 1992; Order 2002, 
68 FR 51115, Aug. 25, 2003; Order 643, 68 FR 52094, Sept. 2, 2003; 68 FR 
61742, Oct. 30, 2003]



Sec. 4.33  Limitations on submitting applications.

    (a) Limitations on submission and acceptance of a preliminary permit 
application. The Commission will not accept an application for a 
preliminary permit for project works that:
    (1) Would develop, conserve, and utilize, in whole or in part, the 
same water resources that would be developed, conserved, and utilized by 
a project for which there is an unexpired preliminary permit.
    (2) Would interfere with a licensed project in a manner that, absent 
the licensee's consent, would be precluded by Section 6 of the Federal 
Power Act.
    (3) Would develop, conserve, and utilize, in whole or in part, the 
same water resources that would be developed, conserved, and utilized by 
a project for which an initial development application has been filed 
unless the preliminary permit application is filed not later than the 
time allowed

[[Page 83]]

under Sec. 4.36(a) for the filing of applications in competition 
against an initial application for a preliminary permit that would 
develop, conserve, and utilize, in whole or in part, the same resources.
    (b) Limitations on submissions and acceptance of a license 
application. The Commission will not accept an application for a license 
or project works that would develop, conserve, or utilize, in whole or 
part, the same water resources that would be developed, conserved, and 
utilized by a project for which there is:
    (1) An unexpired preliminary permit, unless the permittee has 
submitted an application for license; or
    (2) An unexpired license, as provided for in Section 15 of the 
Federal Power Act.
    (c) Limitations on submission and acceptance of an application for a 
license that would affect an exempted project. (1) Except as permitted 
under Sec. 4.33(c)(2), Sec. 4.94(d), or Sec. 4.106 (c), (e) or (f), 
the Commission will not accept an application for a license for project 
works that are already exempted from licensing under this part.
    (2) If a project is exempted from licensing pursuant to Sec. 4.103 
or Sec. 4.109 and real property interests in any non-Federal lands 
would be necessary to develop or operate the project, any person who is 
both a qualified license applicant and has any of those real property 
interests in non-Federal lands may submit a license application for that 
project. If a license application is submitted under this clause, any 
other qualified license applicant may submit a competing license 
application in accordance with Sec. 4.36.
    (d) Limitations on submission and acceptance of exemption 
applications--(1) Unexpired permit or license. (i) If there is an 
unexpired permit in effect for a project, the Commission will accept an 
application for exemption of that project from licensing only if the 
exemption applicant is the permittee. Upon acceptance for filing of the 
permittee's application, the permit will be considered to have expired.
    (ii) If there is an unexpired license in effect for a project, the 
Commission will accept an application for exemption of that project from 
licensing only if the exemption applicant is the licensee.
    (2) Pending license applications. If an accepted license application 
for a project was submitted by a permittee before the preliminary permit 
expired, the Commission will not accept an application for exemption of 
that project from licensing submitted by a person other than the former 
permittee.
    (3) Submitted by qualified exemption applicant. If the first 
accepted license application for a project was filed by a qualified 
exemption applicant, the applicant may request that its license 
application be treated initially as an application for exemption from 
licensing by so notifying the Commission in writing and, unless only 
rights to use or occupy Federal lands would be necessary to develop and 
operate the project, by submitting documentary evidence showing that the 
applicant holds the real property interests required under Sec. 4.31. 
Such notice and documentation must be submitted not later than the last 
date for filing protests or motions to intervene prescribed in the 
public notice issued for its license application under Sec. 4.32(d)(2).
    (e) Priority of exemption applicant's earlier permit or license 
application. Any accepted preliminary permit or license application 
submitted by a person who later applies for exemption of the project 
from licensing will retain its validity and priority under this subpart 
until the preliminary permit or license application is withdrawn or the 
project is exempted from licensing.

[Order 413, 50 FR 11680, Mar. 25, 1985, as amended by Order 499, 53 FR 
27002, July 18, 1988; Order 2002, 68 FR 51116, Aug. 25, 2003]



Sec. 4.34  Hearings on applications; consultation on terms and 
conditions; motions to intervene; alternative procedures.

    (a) Trial-type hearing. The Commission may order a trial-type 
hearing on an application for a preliminary permit, a license, or an 
exemption from licensing upon either its own motion or the motion of any 
interested party of record. Any trial-type hearing will be limited to 
the issues prescribed by order of the Commission. In all other cases the 
hearings will be conducted by notice and comment procedures.

[[Page 84]]

    (b) Notice and comment hearings. All comments (including mandatory 
and recommended terms and conditions or prescriptions) on an application 
for exemption or license must be filed with the Commission no later than 
60 days after issuance by the Commission of public notice declaring that 
the application is ready for environmental analysis. All reply comments 
must be filed within 105 days of that notice. All comments and reply 
comments and all other filings described in this section must be served 
on all persons listed in the service list prepared by the Commission, in 
accordance with the requirements of Sec. 385.2010 of this chapter. If a 
party or interceder (as defined in Sec. 385.2201 of this Chapter) 
submits any written material to the Commission relating to the merits of 
an issue that may affect the responsibilities of a particular resource 
agency, the party or interceder must also serve a copy of the submission 
on this resource agency. The Commission may allow for longer comment or 
reply comment periods if appropriate. A commenter or reply commenter may 
obtain an extension of time from the Commission only upon a showing of 
good cause or extraordinary circumstances in accordance with Sec. 
385.2008 of this chapter. Late-filed fish and wildlife recommendations 
will not be subject to the requirements of paragraphs (e), (f)(1)(ii), 
and (f)(3) of this section, and late-filed terms and conditions or 
prescriptions will not be subject to the requirements of paragraphs 
(f)(1)(iv), (f)(1)(v), and (f)(2) of this section. Late-filed fish and 
wildlife recommendations, terms and conditions, or prescriptions will be 
considered by the Commission under section 10(a) of the Federal Power 
Act if such consideration would not delay or disrupt the proceeding.
    (1) Agencies responsible for mandatory terms and conditions and 
presentations. Any agency responsible for mandatory terms and conditions 
or prescriptions for licenses or exemptions, pursuant to sections 4(e), 
18, and 30(c) of the Federal Power Act and section 405(d) of the Public 
Utility Regulatory Policies Act of l978, as amended, must provide these 
terms and conditions or prescriptions in its initial comments filed with 
the Commission pursuant to paragraph (b) of this section. In those 
comments, the agency must specifically identify and explain the 
mandatory terms and conditions or prescriptions and their evidentiary 
and legal basis. In the case of an application prepared other than 
pursuant to part 5 of this chapter, if ongoing agency proceedings to 
determine the terms and conditions or prescriptions are not completed by 
the date specified, the agency must submit to the Commission by the due 
date:
    (i) Preliminary terms and conditions or prescriptions and a schedule 
showing the status of the agency proceedings and when the terms and 
conditions or prescriptions are expected to become final; or
    (ii) A statement waiving the agency's right to file the terms and 
conditions or prescriptions or indicating the agency does not intend to 
file terms and conditions or prescriptions.
    (2) Fish and Wildlife agencies and Indian tribes. All fish and 
wildlife agencies must set forth any recommended terms and conditions 
for the protection, mitigation of damages to, or enhancement of fish and 
wildlife, pursuant to the Fish and Wildlife Coordination Act and section 
10(j) of the Federal Power Act, in their initial comments filed with the 
Commission by the date specified in paragraph (b) of this section. All 
Indian tribes must submit recommendations (including fish and wildlife 
recommendations) by the same date. In those comments, a fish and 
wildlife agency or Indian tribe must discuss its understanding of the 
resource issues presented by the proposed facilities and the evidentiary 
basis for the recommended terms and conditions.
    (3) Other Government agencies and members of the public. Resource 
agencies, other governmental units, and members of the public must file 
their recommendations in their initial comments by the date specified in 
paragraph (b) of this section. The comments must clearly identify all 
recommendations and present their evidentiary basis.
    (4) Submittal of modified recommendations, terms and conditions or 
prescriptions. (i) If the information and analysis (including reasonable 
alternatives)

[[Page 85]]

presented in a draft environmental document, issued for comment by the 
Commission, indicate a need to modify the recommendations or terms and 
conditions or prescriptions previously submitted to the Commission 
pursuant to paragraphs (b)(1), (b)(2), or (b)(3) of this section, the 
agency, Indian tribe, or member of the public must file with the 
Commission any modified recommendations or terms and conditions or 
prescriptions on the proposed project (and reasonable alternatives) no 
later than the due date for comments on the draft environmental impact 
statement. Modified recommendations or terms and conditions or 
prescriptions must be clearly distinguished from comments on the draft 
document.
    (ii) If an applicant files an amendment to its application that 
would materially change the project's proposed plans of development, as 
provided in Sec. 4.35, an agency, Indian tribe or member of the public 
may modify the recommendations or terms and conditions or prescriptions 
it previously submitted to the Commission pursuant to paragraphs (b)(1), 
(b)(2), or (b)(3) of this section no later than the due date specified 
by the Commission for comments on the amendment.
    (5)(i) With regard to certification requirements for a license 
applicant under section 401(a)(1) of the Federal Water Pollution Control 
Act (Clean Water Act), an applicant shall file within 60 days from the 
date of issuance of the notice of ready for environmental analysis:
    (A) A copy of the water quality certification;
    (B) A copy of the request for certification, including proof of the 
date on which the certifying agency received the request; or
    (C) Evidence of waiver of water quality certification as described 
in paragraph (b)(5)(ii) of this section.
    (ii) In the case of an application process using the alternative 
procedures of paragraph 4.34(i), the filing requirement of paragraph 
(b)(5)(i) shall apply upon issuance of notice the Commission has 
accepted the application as provided for in paragraph 4.32(d) of this 
part.
    (iii) A certifying agency is deemed to have waived the certification 
requirements of section 401(a)(1) of the Clean Water Act if the 
certifying agency has not denied or granted certification by one year 
after the date the certifying agency received a written request for 
certification. If a certifying agency denies certification, the 
applicant must file a copy of the denial within 30 days after the 
applicant received it.
    (iv) Notwithstanding any other provision in title 18, chapter I, 
subchapter B, part 4, any application to amend an existing license, and 
any application to amend a pending application for a license, requires a 
new request for water quality certification pursuant to paragraph 
(b)(5)(i) of this section if the amendment would have a material adverse 
impact on the water quality in the discharge from the project or 
proposed project.
    (c) Additional procedures. If necessary or appropriate the 
Commission may require additional procedures (e.g., a pre-hearing 
conference, further notice and comment on specific issues or oral 
argument). A party may request additional procedures in a motion that 
clearly and specifically sets forth the procedures requested and the 
basis for the request. Replies to such requests may be filed within 15 
days of the request.
    (d) Consultation procedures. Pursuant to the Federal Power Act and 
the Public Utility Regulatory Policies Act of 1978, as amended, the 
Commission will coordinate as appropriate with other government agencies 
responsible for mandatory terms and conditions for exemptions and 
licenses for hydropower projects. Pursuant to the Federal Power Act and 
the Fish and Wildlife Coordination Act, the Commission will consult with 
fish and wildlife agencies concerning the impact of a hydropower 
proposal on fish and wildlife and appropriate terms and conditions for 
license to adequately and equitably protect, mitigate damages to, and 
enhance fish and wildlife (including related spawning grounds and 
habitat). Pursuant to the Federal Power Act and the Endangered Species 
Act, the Commission will consult with the U.S. Fish and Wildlife Service 
or the National

[[Page 86]]

Marine Fisheries Service, as appropriate, concerning the impact of a 
hydropower proposal on endangered or threatened species and their 
critical habitat.
    (e) Consultation on recommended fish and wildlife conditions; 
Section 10(j) process. (1) In connection with its environmental review 
of an application for license, the Commission will analyze all terms and 
conditions timely recommended by fish and wildlife agencies pursuant to 
the Fish and Wildlife Coordination Act for the protection, mitigation of 
damages to, and enhancement of fish and wildlife (including related 
spawning grounds and habitat) affected by the development, operation, 
and management of the proposed project. Submission of such 
recommendations marks the beginning of the process under section 10(j) 
of the Federal Power Act.
    (2) The agency must specifically identify and explain the 
recommendations and the relevant resource goals and objectives and their 
evidentiary or legal basis. The Commission may seek clarification of any 
recommendation from the appropriate fish and wildlife agency. If the 
Commission's request for clarification is communicated in writing, 
copies of the request will be sent by the Commission to all parties, 
affected resource agencies, and Indian tribes, which may file a response 
to the request for clarification within the time period specified by the 
Commission. If the Commission believes any fish and wildlife 
recommendation may be inconsistent with the Federal Power Act or other 
applicable law, the Commission will make a preliminary determination of 
inconsistency in the draft environmental document or, if none, the 
environmental assessment. The preliminary determination, for any 
recommendations believed to be inconsistent, shall include an 
explanation why the Commission believes the recommendation is 
inconsistent with the Federal Power Act or other applicable law, 
including any supporting analysis and conclusions, and an explanation of 
how the measures recommended in the environmental document would 
adequately and equitably protect, mitigate damages to, and enhance, fish 
and wildlife (including related spawning grounds and habitat) affected 
by the development, operation, and management of the project.
    (3) Any party, affected resource agency, or Indian tribe may file 
comments in response to the preliminary determination of inconsistency, 
including any modified recommendations, within the time frame allotted 
for comments on the draft environmental document or, if none, the time 
frame for comments on the environmental analysis. In this filing, the 
fish and wildlife agency concerned may also request a meeting, telephone 
or video conference, or other additional procedure to attempt to resolve 
any preliminary determination of inconsistency.
    (4) The Commission shall attempt, with the agencies, to reach a 
mutually acceptable resolution of any such inconsistency, giving due 
weight to the recommendations, expertise, and statutory responsibilities 
of the fish and wildlife agency. If the Commission decides, or an 
affected resource agency requests, the Commission will conduct a 
meeting, telephone, or video conference, or other procedures to address 
issues raised by its preliminary determination of inconsistency and 
comments thereon. The Commission will give at least 15 days' advance 
notice to each party, affected resource agency, or Indian tribe, which 
may participate in the meeting or conference. Any meeting, conference, 
or additional procedure to address these issues will be scheduled to 
take place within 90 days of the date the Commission issues a 
preliminary determination of inconsistency. The Commission will prepare 
a written summary of any meeting held under this subsection to discuss 
section 10(j) issues, including any proposed resolutions and supporting 
analysis, and a copy of the summary will be sent to all parties, 
affected resource agencies, and Indian tribes.
    (5) The section 10(j) process ends when the Commission issues an 
order granting or denying the license application in question. If, after 
attempting to resolve inconsistencies between the fish and wildlife 
recommendations of a fish and wildlife agency and the purposes and 
requirements of the Federal Power Act or other applicable law, the 
Commission does not adopt in whole or

[[Page 87]]

in part a fish and wildlife recommendation of a fish and wildlife 
agency, the Commission will publish the findings and statements required 
by section 10(j)(2) of the Federal Power Act.
    (f) Licenses and exemption conditions and required findings--(1) 
License conditions. (i) All licenses shall be issued on the conditions 
specified in section 10 of the Federal Power Act and such other 
conditions as the Commission determines are lawful and in the public 
interest.
    (ii) Subject to paragraph (f)(3) of this section, fish and wildlife 
conditions shall be based on recommendations timely received from the 
fish and wildlife agencies pursuant to the Fish and Wildlife 
Coordination Act.
    (iii) The Commission will consider the timely recommendations of 
resource agencies, other governmental units, and members of the public, 
and the timely recommendations (including fish and wildlife 
recommendations) of Indian tribes affected by the project.
    (iv) Licenses for a project located within any Federal reservation 
shall be issued only after the findings required by, and subject to any 
conditions that may be timely received pursuant to, section 4(e) of the 
Federal Power Act.
    (v) The Commission will require the construction, maintenance, and 
operation by a licensee at its own expense of such fishways as may be 
timely prescribed by the Secretary of Commerce or the Secretary of the 
Interior, as appropriate, pursuant to section 18 of the Federal Power 
Act.
    (2) Exemption conditions. Any exemption from licensing issued for 
conduit facilities, as provided in section 30 of the Federal Power Act, 
or for small hydroelectric power projects having a proposed installed 
capacity of 5,000 kilowatts or less, as provided in section 405(d) of 
the Public Utility Regulatory Policies Act of 1978, as amended, shall 
include such terms and conditions as the fish and wildlife agencies may 
timely determine are appropriate to carry out the responsibilities 
specified in section 30(c) of the Federal Power Act.
    (3) Required findings. If, after attempting to resolve 
inconsistencies between the fish and wildlife recommendations of a fish 
and wildlife agency and the purposes and requirements of the Federal 
Power Act or other applicable law, the Commission does not adopt in 
whole or in part a fish and wildlife recommendation of a fish and 
wildlife agency, the Commission will publish the findings and statements 
required by section 10(j)(2) of the Federal Power Act.
    (g) Application. The provisions of paragraphs (b) through (d) and 
(f) of this section apply only to applications for license or exemption; 
paragraph (e) applies only to applications for license.
    (h) Unless otherwise provided by statute, regulation or order, all 
filings in hydropower hearings, except those conducted by trial-type 
procedures, shall conform to the requirements of subpart T of part 385 
of this chapter.
    (i) Alternative procedures. (1) An applicant may submit to the 
Commission a request to approve the use of alternative procedures for 
pre-filing consultation and the filing and processing of an application 
for an original, new or subsequent hydropower license or exemption that 
is subject to Sec. 4.38 or Sec. 16.8 of this chapter, or for the 
amendment of a license that is subject to the provisions of Sec. 4.38.
    (2) The goal of such alternative procedures shall be to:
    (i) Combine into a single process the pre-filing consultation 
process, the environmental review process under the National 
Environmental Policy Act and administrative processes associated with 
the Clean Water Act and other statutes;
    (ii) Facilitate greater participation by and improve communication 
among the potential applicant, resource agencies, Indian tribes, the 
public and Commission staff in a flexible pre-filing consultation 
process tailored to the circumstances of each case;
    (iii) Allow for the preparation of a preliminary draft environmental 
assessment by an applicant or its contractor or consultant, or of a 
preliminary draft environmental impact statement by a contractor or 
consultant chosen by the Commission and funded by the applicant;
    (iv) Promote cooperative efforts by the potential applicant and 
interested entities and encourage them to share information about 
resource impacts

[[Page 88]]

and mitigation and enhancement proposals and to narrow any areas of 
disagreement and reach agreement or settlement of the issues raised by 
the hydropower proposal; and
    (v) Facilitate an orderly and expeditious review of an agreement or 
offer of settlement of an application for a hydropower license, 
exemption or amendment to a license.
    (3) A potential hydropower applicant requesting the use of 
alternative procedures must:
    (i) Demonstrate that a reasonable effort has been made to contact 
all resource agencies, Indian tribes, citizens' groups, and others 
affected by the applicant's proposal, and that a consensus exists that 
the use of alternative procedures is appropriate under the 
circumstances;
    (ii) Submit a communications protocol, supported by interested 
entities, governing how the applicant and other participants in the pre-
filing consultation process, including the Commission staff, may 
communicate with each other regarding the merits of the applicant's 
proposal and proposals and recommendations of interested entities; and
    (iii) Serve a copy of the request on all affected resource agencies 
and Indian tribes and on all entities contacted by the applicant that 
have expressed an interest in the alternative pre-filing consultation 
process.
    (4) As appropriate under the circumstances of the case, the 
alternative procedures should include provisions for:
    (i) Distribution of an initial information package and conduct of an 
initial information meeting open to the public;
    (ii) The cooperative scoping of environmental issues (including 
necessary scientific studies), the analysis of completed studies and any 
further scoping; and
    (iii) The preparation of a preliminary draft environmental 
assessment or preliminary draft environmental impact statement and 
related application.
    (5)(i) If the potential applicant's request to use the alternative 
procedures is filed prior to July 23, 2005, the Commission will give 
public notice in the Federal Register inviting comment on the 
applicant's request to use alternative procedures. The Commission will 
consider any such comments in determining whether to grant or deny the 
applicant's request to use alternative procedures. Such a decision will 
not be subject to interlocutory rehearing or appeal.
    (ii) If the potential applicant's request to use the alternative 
procedures is filed on or after July 23, 2005 and prior to the deadline 
date for filing a notification of intent to seek a new or subsequent 
license required by Sec. 5.5 of this chapter, the Commission will give 
public notice and invite comments as provided for in paragraph (i)(5)(i) 
of this section. Commission approval of the potential applicant's 
request to use the alternative procedures prior to the deadline date for 
filing of the notification of intent does not waive the potential 
applicant's obligation to file the notification of intent required by 
Sec. 5.5 of this chapter and Pre-Application Document required by Sec. 
5.6 of this chapter.
    (iii) If the potential applicant's request to use the alternative 
procedures is filed on or after July 23, 2005 and is at the same time as 
the notification of intent to seek a new or subsequent license required 
by Sec. 5.5, the public notice and comment procedures of part 5 of this 
chapter shall apply.
    (6) If the Commission accepts the use of alternative procedures, the 
following provisions will apply.
    (i) To the extent feasible under the circumstances of the 
proceeding, the Commission will give notice in the Federal Register and 
the applicant will give notice, in a local newspaper of general 
circulation in the county or counties in which the project is located, 
of the initial information meeting and the scoping of environmental 
issues. The applicant will also send notice of these stages to a mailing 
list approved by the Commission.
    (ii) Every six months, the applicant shall file with the Commission 
a report summarizing the progress made in the pre-filing consultation 
process and referencing the applicant's public file, where additional 
information on that process can be obtained. Summaries or minutes of 
meetings held in the process

[[Page 89]]

may be used to satisfy this filing requirement. The applicant must also 
file with the Commission a copy of its initial information package, each 
scoping document, and the preliminary draft environmental review 
document. All filings with the Commission under this section must 
include the number of copies required by paragraph (h) of this section, 
and the applicant shall send a copy of these filings to each participant 
that requests a copy.
    (iii) At a suitable location, the applicant will maintain a public 
file of all relevant documents, including scientific studies, 
correspondence, and minutes or summaries of meetings, compiled during 
the pre-filing consultation process. The Commission will maintain a 
public file of the applicant's initial information package, scoping 
documents, periodic reports on the pre-filing consultation process, and 
the preliminary draft environmental review document.
    (iv) An applicant authorized to use alternative procedures may 
substitute a preliminary draft environmental review document and 
additional material specified by the Commission instead of Exhibit E to 
its application and need not supply additional documentation of the pre-
filing consultation process. The applicant will file with the Commission 
the results of any studies conducted or other documentation as directed 
by the Commission, either on its own motion or in response to a motion 
by a party to the licensing or exemption proceeding.
    (v) Pursuant to the procedures approved, the participants will set 
reasonable deadlines requiring all resource agencies, Indian tribes, 
citizens' groups, and interested persons to submit to the applicant 
requests for scientific studies during the pre-filing consultation 
process, and additional requests for studies may be made to the 
Commission after the filing of the application only for good cause 
shown.
    (vi) During the pre-filing process the Commission may require the 
filing of preliminary fish and wildlife recommendations, prescriptions, 
mandatory conditions, and comments, to be submitted in final form after 
the filing of the application; no notice that the application is ready 
for environmental analysis need be given by the Commission after the 
filing of an application pursuant to these procedures.
    (vii) Any potential applicant, resource agency, Indian tribe, 
citizens' group, or other entity participating in the alternative pre-
filing consultation process may file a request with the Commission to 
resolve a dispute concerning the alternative process (including a 
dispute over required studies), but only after reasonable efforts have 
been made to resolve the dispute with other participants in the process. 
No such request shall be accepted for filing unless the entity 
submitting it certifies that it has been served on all other 
participants. The request must document what efforts have been made to 
resolve the dispute.
    (7) If the potential applicant or any resource agency, Indian tribe, 
citizens' group, or other entity participating in the alternative pre-
filing consultation process can show that it has cooperated in the 
process but a consensus supporting the use of the process no longer 
exists and that continued use of the alternative process will not be 
productive, the participant may petition the Commission for an order 
directing the use by the potential applicant of appropriate procedures 
to complete its application. No such request shall be accepted for 
filing unless the entity submitting it certifies that it has been served 
on all other participants. The request must recommend specific 
procedures that are appropriate under the circumstances.
    (8) The Commission may participate in the pre-filing consultation 
process and assist in the integration of this process and the 
environmental review process in any case, including appropriate cases 
where the applicant, contractor, or consultant funded by the applicant 
is not preparing a preliminary draft environmental assessment or 
preliminary draft environmental impact statement, but where staff 
assistance is available and could expedite the proceeding.
    (9) If this section requires an applicant to reveal Critical Energy 
Infrastructure Information (CEII), as defined by Sec. 388.113(c) of 
this chapter, to

[[Page 90]]

any person, the applicant shall follow the procedures set out in Sec. 
4.32(k).

[Order 533, 56 FR 23148, May 20, 1991, as amended at 56 FR 61155, Dec. 
2, 1991; Order 540, 57 FR 21737, May 22, 1992; Order 596, 62 FR 59810, 
Nov. 5, 1997; Order 2002, 68 FR 51116, Aug. 25, 2003; Order 643, 68 FR 
52094, Sept. 2, 2003; 68 FR 61742, Oct. 30, 2003]



Sec. 4.35  Amendment of application; date of acceptance.

    (a) General rule. Except as provided in paragraph (d) of this 
section, if an applicant amends its filed application as described in 
paragraph (b) of this section, the date of acceptance of the application 
under Sec. 4.32(f) is the date on which the amendment to the applicant 
was filed.
    (b) Paragraph (a) of this section applies if an applicant:
    (1) Amends its filed license or preliminary permit application in 
order to change the status or identity of the applicant or to materially 
amend the proposed plans of development; or
    (2) Amends its filed application for exemption from licensing in 
order to materially amend the proposed plans of development, or
    (3) Amends its filed application in order to change its statement of 
intent of whether or not it will seek benefits under section 210 of 
PURPA, as originally filed under Sec. 4.32(c)(1).
    (c) An application amended under paragraph (a) is a new filing for:
    (1) The purpose of determining its timeliness under Sec. 4.36 of 
this part;
    (2) Disposing of competing applications under Sec. 4.37; and
    (3) Reissuing public notice of the application under Sec. 
4.32(d)(2).
    (d) If an application is amended under paragraph (a) of this 
section, the Commission will rescind any acceptance letter already 
issued for the application.
    (e) Exceptions. This section does not apply to:
    (1) Any corrections of deficiencies made pursuant to Sec. 
4.32(e)(1);
    (2) Any amendments made pursuant to Sec. 4.37(b)(4) by a State or a 
municipality to its proposed plans of development to make them as well 
adapted as the proposed plans of an applicant that is not a state or a 
municipality;
    (3) Any amendments made pursuant to Sec. 4.37(c)(2) by a priority 
applicant to its proposed plans of development to make them as well 
adapted as the proposed plans of an applicant that is not a priority 
applicant;
    (4) Any amendments made by a license or an exemption applicant to 
its proposed plans of development to satisfy requests of resource 
agencies or Indian tribes submitted after an applicant has consulted 
under Sec. 4.38 or concerns of the Commission; and
    (5)(i) Any license or exemption applicant with a project located at 
a new dam or diversion who is seeking PURPA benefits and who:
    (A) Has filed an adverse environmental effects (AEE) petition 
pursuant to Sec. 292.211 of this chapter; and
    (B) Has proposed measures to mitigate the adverse environmental 
effects which the Commission, in its initial determination on the AEE 
petition, stated the project will have.
    (ii) This exception does not protect any proposed mitigative 
measures that the Commission finds are a pretext to avoid the 
consequences of materially amending the application or are outside the 
scope of mitigating the adverse environmental effects.
    (f) Definitions. (1) For the purposes of this section, a material 
amendment to plans of development proposed in an application for a 
license or exemption from licensing means any fundamental and 
significant change, including but not limited to:
    (i) A change in the installed capacity, or the number or location of 
any generating units of the proposed project if the change would 
significantly modify the flow regime associated with the project;
    (ii) A material change in the location, size, or composition of the 
dam, the location of the powerhouse, or the size and elevation of the 
reservoir if the change would:
    (A) Enlarge, reduce, or relocate the area of the body of water that 
would lie between the farthest reach of the proposed impoundment and the 
point of discharge from the powerhouse; or
    (B) Cause adverse environmental impacts not previously discussed in 
the original application; or

[[Page 91]]

    (iii) A change in the number of discrete units of development to be 
included within the project boundary.
    (2) For purposes of this section, a material amendment to plans of 
development proposed in an application for a preliminary permit means a 
material change in the location of the powerhouse or the size and 
elevation of the reservoir if the change would enlarge, reduce, or 
relocate the area of the body of water that would lie between the 
farthest reach of the proposed impoundment and the point of discharge 
from the powerhouse.
    (3) For purposes of this section, a change in the status of an 
applicant means:
    (i) The acquisition or loss of preference as a state or a 
municipality under section 7(a) of the Federal Power Act; or
    (ii) The loss of priority as a permittee under section 5 of the 
Federal Power Act.
    (4) For purposes of this section, a change in the identity of an 
applicant means a change that either singly, or together with previous 
amendments, causes a total substitution of all the original applicants 
in a permit or a license application.

[Order 413, 50 FR 11680, Mar. 25, 1985, as amended by Order 499, 53 FR 
27002, July 18, 1988; Order 533, 56 FR 23149, May 20, 1991; Order 2002, 
68 FR 51115, Aug. 25, 2003]



Sec. 4.36  Competing applications: deadlines for filing; notices of 
intent; comparisons of plans of development.

    The public notice of an initial preliminary permit application or an 
initial development application shall prescribe the deadline for filing 
protests and motions to intervene in that proceeding (the prescribed 
intervention deadline).
    (a) Deadlines for filing applications in competition with an initial 
preliminary permit application. (1) Any preliminary permit application 
or any development application not filed pursuant to a notice of intent 
must be submitted for filing in competition with an initial preliminary 
permit application not later than the prescribed intervention deadline.
    (2) Any preliminary permit application filed pursuant to a notice of 
intent must be submitted for filing in competition with an initial 
preliminary permit application not later than 30 days after the 
prescribed intervention deadline.
    (3) Any development application filed pursuant to a notice of intent 
must be submitted for filing in competition with an initial preliminary 
permit application not later than 120 days after the prescribed 
intervention deadline.
    (b) Deadlines for filing applications in competition with an initial 
development application. (1) Any development application not filed 
pursuant to a notice of intent must be submitted for filing in 
competition with an initial development application not later than the 
prescribed intervention deadline.
    (2) Any development application filed pursuant to a notice of intent 
must be submitted for filing in competition with an initial development 
application not later than 120 days after the prescribed intervention 
deadline.
    (3) If the Commission has accepted an application for exemption of a 
project from licensing and the application has not yet been granted or 
denied, the applicant for exemption may submit a license application for 
the project if it is a qualified license applicant. The pending 
application for exemption from licensing will be considered withdrawn as 
of the date the Commission accepts the license application for filing. 
If a license application is accepted for filing under this provision, 
any qualified license applicant may submit a competing license 
application not later than the prescribed intervention deadline set for 
the license application.
    (4) Any preliminary permit application must be submitted for filing 
in competition with an initial development application not later than 
the deadlines prescribed in paragraphs (a)(1) and (a)(2) for the 
submission of preliminary permit applications filed in competition with 
an initial preliminary permit application.
    (c) Notices of intent. (1) Any notice of intent to file an 
application in competition with an initial preliminary permit or an 
initial development application must be submitted for filing not

[[Page 92]]

later than the prescribed intervention deadline for the initial 
application.
    (2) A notice of intent must include:
    (i) The exact name, business address, and telephone number of the 
prospective applicant; and
    (ii) An unequivocal statement of intent to submit a preliminary 
permit application or a development application (specify which type of 
application).
    (d) Requirements for competing applications. (1) Any competing 
application must:
    (i) Conform to all requirements for filing an initial application; 
and
    (ii) Include proof of service of a copy of the competing application 
on the person(s) designated in the public notice of the initial 
application for service of pleadings, documents, or communications 
concerning the initial application.
    (2) Comparisons of plans of development. (i) After the deadline for 
filing applications in competition against an initial development 
application has expired, the Commission will notify each license and 
exemption applicant of the identity of the other applicants.
    (ii) Not later than 14 days after the Commission serves the 
notification described in paragraph (d)(2)(i) of this section, if a 
license or exemption applicant has not already done so, it must serve a 
copy of its application on each of the other license and exemption 
applicants.
    (iii) Not later than 60 days after the Commission serves the 
notification described in paragraph (d)(2)(i) of this section, each 
license and exemption applicant must file with the Commission a detailed 
and complete statement of how its plans are as well or better adapted 
than are the plans of each of the other license and exemption applicants 
to develop, conserve, and utilize in the public interest the water 
resources of the region. These statements should be supported by any 
technical analyses that the applicant deems appropriate to support its 
proposed plans of development.

[Order 413, 50 FR 11680, Mar. 25, 1985; 50 FR 23947, June 7, 1985]



Sec. 4.37  Rules of preference among competing applications.

    Except as provided in Sec. 4.33(e), the Commission will select 
among competing applications on the following bases:
    (a) If an accepted application for a preliminary permit and an 
accepted application for a license propose project works that would 
develop, conserve, and utilize, in whole or in part, the same water 
resources, and the applicant for a license has demonstrated its ability 
to carry out its plans, the Commission will favor the license applicant 
unless the permit applicant substantiates in its filed application that 
its plans are better adapted to develop, conserve, and utilize in the 
public interest the water resources of the region.
    (b) If two or more applications for preliminary permits or two or 
more applications for licenses (not including applications for a new 
license under section 15 of the Federal Power Act) are filed by 
applicants for project works that would develop, conserve, and utilize, 
in whole or in part, the same water resources, and if none of the 
applicants is a preliminary permittee whose application for license was 
accepted for filing within the permit period, the Commission will select 
between or among the applicants on the following bases:
    (1) If both or neither of two applicants are either a municipality 
or a state, the Commission will favor the applicant whose plans are 
better adapted to develop, conserve, and utilize in the public interest 
the water resources of the region, taking into consideration the ability 
of each applicant to carry out its plans.
    (2) If both of two applicants are either a municipality or a state, 
or neither of them is a municipality or a state, and the plans of the 
applicants are equally well adapted to develop, conserve, and utilize in 
the public interest the water resources of the region, taking into 
consideration the ability of each applicant to carry out its plans, the 
Commission will favor the applicant with the earliest application 
acceptance date.
    (3) If one of two applicants is a municipality or a state, and the 
other is

[[Page 93]]

not, and the plans of the municipality or a state are at least as well 
adapted to develop, conserve, and utilize in the public interest the 
water resources of the region, the Commission will favor the 
municipality or state.
    (4) If one of two applicant is a municipality or a state, and the 
other is not, and the plans of the applicant who is not a municipality 
or a state are better adapted to develop, conserve, and utilize in the 
public interest the water resources of the region, the Commission will 
inform the municipality or state of the specific reasons why its plans 
are not as well adapted and afford a reasonable period of time for the 
municipality or state to render its plans at least as well adapted as 
the other plans. If the plans of the municipality or state are rendered 
at least as well adapted within the time allowed, the Commission will 
favor the municipality or state. If the plans are not rendered at least 
as well adapted within the time allowed, the Commission will favor the 
other applicant.
    (c) If two or more applications for licenses are filed for project 
works which would develop, conserve, and utilize, in whole or in part, 
the same water resources, and one of the applicants was a preliminary 
permittee whose application was accepted for filing within the permit 
period (priority applicant), the Commission will select between or among 
the applicants on the following bases:
    (1) If the plans of the priority applicant are at least as well 
adapted as the plans of each other applicant to develop, conserve, and 
utilize in the public interest the water resources of the region, taking 
into consideration the ability of each applicant to carry out its plans, 
the Commission will favor the priority applicant.
    (2) If the plans of an applicant who is not a priority applicant are 
better adapted than the plans of the priority applicant to develop, 
conserve, and utilize in the public interest the water resources of the 
region, taking into consideration the ability of each applicant to carry 
out its plans, the Commission will inform the priority applicant of the 
specific reasons why its plans are not as well adapted and afford a 
reasonable period of time for the priority applicant to render its plans 
at least as well adapted as the other plans. If the plans of the 
priority applicant are rendered at least as well adapted within the time 
allowed, then the Commission will favor the priority applicant. If the 
plans of the priority applicant are not rendered as well adapted within 
the time allowed, the criteria specified in paragraph (b) will govern.
    (3) The criteria specified in paragraph (b) will govern selection 
among applicants other than the priority applicant.
    (d) With respect to a project for which an application for an 
exemption from licensing has been accepted for filing, the Commission 
will select among competing applications on the following bases:
    (1) If an accepted application for a preliminary permit and an 
accepted application for exemption from licensing propose to develop 
mutually exclusive small hydroelectric power projects, the Commission 
will favor the applicant whose substantiated plans in the application 
received by the Commission are better adapted to develop, conserve, and 
utilize in the public interest the water resources of the region. If the 
substantiated plans are equally well adapted, the Commission will favor 
the application for exemption from licensing.
    (2) If an application for a license and an application for exemption 
from licensing, or two or more applications for exemption from licensing 
are each accepted for filing and each proposes to develop a mutually 
exclusive project, the Commission will favor the applicant whose plans 
are better adapted to develop, conserve, and utilize in the public 
interest the water resources of the region. If the plans are equally 
well adapted, the Commission will favor the applicant with the earliest 
application acceptance date.
    (e) A municipal applicant must provide evidence that the 
municipality is competent under applicable state and local laws to 
engage in the business of developing, transmitting, utilizing, or 
distributing power, or such applicant will be considered a non-municipal 
applicant for the purpose of determining

[[Page 94]]

the disposition of competing applications.

[Order 413, 50 FR 11682, Mar. 25, 1985, as amended by Order 2002, 68 FR 
51117, Aug. 25, 2003]



Sec. 4.38  Consultation requirements.

    (a) Requirement to consult. (1) Before it files any application for 
an original license or an exemption from licensing that is described in 
paragraph (a)(4) of this section, a potential applicant must consult 
with the relevant Federal, State, and interstate resource agencies, 
including the National Marine Fisheries Service, the United States Fish 
and Wildlife Service, the National Park Service, the United States 
Environmental Protection Agency, the Federal agency administering any 
United States lands or facilities utilized or occupied by the project, 
the appropriate State fish and wildlife agencies, the appropriate State 
water resource management agencies, the certifying agency under section 
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act), 
33 U.S.C. Sec. 1341(c)(1), and any Indian tribe that may be affected by 
the proposed project.
    (2) Each requirement in this section to contact or consult with 
resource agencies or Indian tribes shall be construed to require as well 
that the potential applicant contact or consult with members of the 
public.
    (3) If a potential applicant for an original license commences first 
stage pre-filing consultation on or after July 23, 2005 it shall file a 
notification of intent to file a license application pursuant to Sec. 
5.5 and a pre-application document pursuant to the provisions of Sec. 
5.6.
    (4) The Director of the Office of Energy Projects will, upon 
request, provide a list of known appropriate Federal, state, and 
interstate resource agencies, Indian tribes, and local, regional, or 
national non-governmental organizations likely to be interested in any 
license application proceeding.
    (5) An applicant for an exemption from licensing or an applicant for 
a license seeking benefits under section 210 of the Public Utility 
Regulatory Policies Act, as amended, for a project that would be located 
at a new dam or diversion must, in addition to meeting the requirements 
of this section, comply with the consultation requirements in Sec. 
4.301.
    (6) The pre-filing consultation requirements of this section apply 
only to an application for:
    (i) Original license;
    (ii) Exemption;
    (iii) Amendment to an application for original license or exemption 
that materially amends the proposed plans of development as defined in 
Sec. 4.35(f)(1);
    (iv) Amendment to an existing license that would increase the 
capacity of the project as defined in Sec. 4.201(b); or
    (v) Amendment to an existing license that would not increase the 
capacity of the project as defined in Sec. 4.201(b), but that would 
involve:
    (A) The construction of a new dam or diversion in a location where 
there is no existing dam or diversion;
    (B) Any repair, modification, or reconstruction of an existing dam 
that would result in a significant change in the normal maximum surface 
area or elevation of an existing impoundment; or
    (C) The addition of new water power turbines other than to replace 
existing turbines.
    (7) Before it files a non-capacity related amendment as defined in 
Sec. 4.201(c), an applicant must consult with the resource agencies and 
Indian tribes listed in paragraph (a)(1) of this section to the extent 
that the proposed amendment would affect the interests of the agencies 
or tribes. When consultation is necessary, the applicant must, at a 
minimum, provide the resource agencies and Indian tribes with copies of 
the draft application and allow them at least 60 days to comment on the 
proposed amendment. The amendment as filed with the Commission must 
summarize the consultation with the resource agencies and Indian tribes 
on the proposed amendment, propose reasonable protection, mitigation, or 
enhancement measures to respond to impacts identified as being caused by 
the proposed amendment, and respond to any objections, recommendations, 
or conditions submitted by the agencies or Indian tribes. Copies of all 
written correspondence between the applicant, the agencies,

[[Page 95]]

and the tribes must be attached to the application.
    (8) This section does not apply to any application for a new 
license, a nonpower license, a subsequent license, or surrender of a 
license subject to sections 14 and 15 of the Federal Power Act.
    (9) If a potential applicant has any doubt as to whether a 
particular application or amendment would be subject to the pre-filing 
consultation requirements of this section or if a waiver of the pre-
filing requirements would be appropriate, the applicant may file a 
written request for clarification or waiver with the Director, Office of 
Energy Projects.
    (b) First stage of consultation. (1) A potential applicant for an 
original license that commences pre-filing consultation on or after July 
23, 2005 must, at the time it files its notification of intent to seek a 
license pursuant to Sec. 5.5 of this chapter and a pre-application 
document pursuant to Sec. 5.6 of this chapter and, at the same time, 
provide a copy of the pre-application document to the entities specified 
in Sec. 5.6(a) of this chapter.
    (2) A potential applicant for an original license that commences 
pre-filing consultation under this part prior to July 23, 2005 or for an 
exemption must promptly contact each of the appropriate resource 
agencies, affected Indian tribes, and members of the public likely to be 
interested in the proceeding; provide them with a description of the 
proposed project and supporting information; and confer with them on 
project design, the impact of the proposed project (including a 
description of any existing facilities, their operation, and any 
proposed changes), reasonable hydropower alternatives, and what studies 
the applicant should conduct. The potential applicant must provide to 
the resource agencies, Indian tribes and the Commission the following 
information:
    (i) Detailed maps showing project boundaries, if any, proper land 
descriptions of the entire project area by township, range, and section, 
as well as by state, county, river, river mile, and closest town, and 
also showing the specific location of all proposed project facilities, 
including roads, transmission lines, and any other appurtenant 
facilities;
    (ii) A general engineering design of the proposed project, with a 
description of any proposed diversion of a stream through a canal or 
penstock;
    (iii) A summary of the proposed operational mode of the project;
    (iv) Identification of the environment to be affected, the 
significant resources present, and the applicant's proposed 
environmental protection, mitigation, and enhancement plans, to the 
extent known at that time;
    (v) Streamflow and water regime information, including drainage 
area, natural flow periodicity, monthly flow rates and durations, mean 
flow figures illustrating the mean daily streamflow curve for each month 
of the year at the point of diversion or impoundment, with location of 
the stream gauging station, the method used to generate the streamflow 
data provided, and copies of all records used to derive the flow data 
used in the applicant's engineering calculations;
    (vi) (A) A statement (with a copy to the Commission) of whether or 
not the applicant will seek benefits under section 210 of PURPA by 
satisfying the requirements for qualifying hydroelectric small power 
production facilities in Sec. 292.203 of this chapter;
    (B) If benefits under section 210 of PURPA are sought, a statement 
on whether or not the applicant believes diversion (as that term is 
defined in Sec. 292.202(p) of this chapter) and a request for the 
agencies' view on that belief, if any;
    (vii) Detailed descriptions of any proposed studies and the proposed 
methodologies to be employed; and
    (viii) Any statement required by Sec. 4.301(a) of this part.
    (3) (i) A potential exemption applicant and a potential applicant 
for an original license that commences pre-filing consultation;
    (A) On or after July 23, 2005 pursuant to part 5 of this chapter and 
receives approval from the Commission to use the license application 
procedures of part 4 of this chapter; or
    (B) Elects to commence pre-filing consultation under part 4 of this 
chapter prior to July 23, 2005; must:

[[Page 96]]

    (1) Hold a joint meeting at a convenient place and time, including 
an opportunity for a site visit, with all pertinent agencies, Indian 
tribes, and members of the public to explain the applicant's proposal 
and its potential environmental impact, to review the information 
provided, and to discuss the data to be obtained and studies to be 
conducted by the potential applicant as part of the consultation 
process;
    (2) Consult with the resource agencies, Indian tribes and members of 
the public on the scheduling and agenda of the joint meeting; and
    (3) No later than 15 days in advance of the joint meeting, provide 
the Commission with written notice of the time and place of the meeting 
and a written agenda of the issues to be discussed at the meeting.
    (ii) The joint meeting must be held no earlier than 30 days, but no 
later than 60 days, from, as applicable;
    (A) The date of the Commission's approval of the potential 
applicant's request to use the license application procedures of this 
part pursuant to the provisions of part 5 of this chapter; or
    (B) The date of the potential applicant's letter transmitting the 
information required by paragraph (b)(2) of this section, in the case of 
a potential exemption applicant or a potential license applicant that 
commences pre-filing consultation under this part prior to July 23, 
2005.
    (4) Members of the public must be informed of and invited to attend 
the joint meeting held pursuant to paragraph (b)(3) of this section by 
means of the public notice provision published in accordance with 
paragraph (g) of this section. Members of the public attending the 
meeting are entitled to participate in the meeting and to express their 
views regarding resource issues that should be addressed in any 
application for license or exemption that may be filed by the potential 
applicant. Attendance of the public at any site visit held pursuant to 
paragraph (b)(3) of this section will be at the discretion of the 
potential applicant. The potential applicant must make either audio 
recordings or written transcripts of the joint meeting, and must 
promptly provide copies of these recordings or transcripts to the 
Commission and, upon request, to any resource agency, Indian tribe, or 
member of the public.
    (5) Not later than 60 days after the joint meeting held under 
paragraph (b)(3) of this Section (unless extended within this time 
period by a resource agency, Indian tribe, or members of the public for 
an additional 60 days by sending written notice to the applicant and the 
Director of the Office of Energy Projects within the first 60 day 
period, with an explanation of the basis for the extension), each 
interested resource agency and Indian tribe must provide a potential 
applicant with written comments:
    (i) Identifying its determination of necessary studies to be 
performed or the information to be provided by the potential applicant;
    (ii) Identifying the basis for its determination;
    (iii) Discussing its understanding of the resource issues and its 
goals and objectives for these resources;
    (iv) Explaining why each study methodology recommended by it is more 
appropriate than any other available methodology alternatives, including 
those identified by the potential applicant pursuant to paragraph 
(b)(2)(vii) of this section;
    (v) Documenting that the use of each study methodology recommended 
by it is a generally accepted practice; and
    (vi) Explaining how the studies and information requested will be 
useful to the agency, Indian tribe, or member of the public in 
furthering its resource goals and objectives that are affected by the 
proposed project.
    (6)(i) If a potential applicant and a resource agency or Indian 
tribe disagree as to any matter arising during the first stage of 
consultation or as to the need to conduct a study or gather information 
referenced in paragraph (c)(2) of this section, the potential applicant 
or resource agency or Indian tribe may refer the dispute in writing to 
the Director of the Office of Energy Projects (Director) for resolution.
    (ii) At the same time as the request for dispute resolution is 
submitted to the Director, the entity referring the

[[Page 97]]

dispute must serve a copy of its written request for resolution on the 
disagreeing party and any affected resource agency or Indian tribe, 
which may submit to the Director a written response to the referral 
within 15 days of the referral's submittal to the Director.
    (iii) Written referrals to the Director and written responses 
thereto pursuant to paragraphs (b)(6)(i) or (b)(6)(ii) of this section 
must be filed with the Commission in accordance with the Commission's 
Rules of Practice and Procedure, and must indicate that they are for the 
attention of the Director pursuant to Sec. 4.38(b)(6).
    (iv) The Director will resolve the disputes by letter provided to 
the potential applicant and all affected resource agencies and Indian 
tribes.
    (v) If a potential applicant does not refer a dispute regarding a 
request for a potential applicant to obtain information or conduct 
studies (other than a dispute regarding the information specified in 
paragraph (b)(2) of this section), or a study to the Director under 
paragraph (b)(6) of this section, or if a potential applicant disagrees 
with the Director's resolution of a dispute regarding a request for 
information (other than a dispute regarding the information specified in 
paragraph (b)(2) of this section) or a study, and if the potential 
applicant does not provide the requested information or conduct the 
requested study, the potential applicant must fully explain the basis 
for its disagreement in its application.
    (vi) Filing and acceptance of an application will not be delayed, 
and an application will not be considered deficient or patently 
deficient pursuant to Sec. 4.32(e)(1) or (e)(2) of this part, merely 
because the application does not include a particular study or 
particular information if the Director had previously found, under 
paragraph (b)(6)(iv) of this section, that each study or information is 
unreasonable or unnecessary for an informed decision by the Commission 
on the merits of the application or use of the study methodology 
requested is not a generally accepted practice.
    (7) The first stage of consultation ends when all participating 
agencies and Indian tribes provide the written comments required under 
paragraph (b)(5) of this section or 60 days after the joint meeting held 
under paragraph (b)(3) of this section, whichever occurs first, unless a 
resource agency or Indian tribe timely notifies the applicant and the 
Director of Energy Projects of its need for more time to provide written 
comments under paragraph (b)(5) of this section, in which case the first 
stage of consultation ends when all participating agencies and Indian 
tribes provide the written comments required under paragraph (b)(5) of 
this section or 120 days after the joint meeting held under paragraph 
(b)(5) of this section, whichever occurs first.
    (c) Second stage of consultation. (1) Unless determined to be 
unnecessary by the Director pursuant to paragraph (b)(6) of this 
section, a potential applicant must diligently conduct all reasonable 
studies and obtain all reasonable information requested by resource 
agencies and Indian tribes under paragraph (b) of this section that are 
necessary for the Commission to make an informed decision regarding the 
merits of the application. These studies must be completed and the 
information obtained:
    (i) Prior to filing the application, if the results:
    (A) Would influence the financial (e.g., instream flow study) or 
technical feasibility of the project (e.g., study of potential mass soil 
movement); or
    (B) Are needed to determine the design or location of project 
features, reasonable alternatives to the project, the impact of the 
project on important natural or cultural resources (e.g., resource 
surveys), or suitable mitigation or enhancement measures, or to minimize 
impact on significant resources (e.g., wild and scenic river, anadromous 
fish, endangered species, caribou migration routes);
    (ii) After filing the application but before issuance of a license 
or exemption, if the applicant otherwise complied with the provisions of 
paragraph (b)(2) of this section and the study or information gathering 
would take longer to conduct and evaluate than the time between the 
conclusion of the first stage of consultation and the expiration of the 
applicant's preliminary

[[Page 98]]

permit or the application filing deadline set by the Commission;
    (iii) After a new license or exemption is issued, if the studies can 
be conducted or the information obtained only after construction or 
operation of proposed facilities, would determine the success of 
protection, mitigation, or enhancement measures (e.g., post-construction 
monitoring studies), or would be used to refine project operation or 
modify project facilities.
    (2) If, after the end of the first stage of consultation as defined 
in paragraph (b)(7) of this section, a resource agency or Indian tribe 
requests that the potential applicant conduct a study or gather 
information not previously identified and specifies the basis and 
reasoning for its request, under paragraphs (b)(5) (i)-(vi) of this 
section, the potential applicant must promptly initiate the study or 
gather the information, unless the study or information is unreasonable 
or unnecessary for an informed decision by the Commission on the merits 
of the application or use of the methodology requested by a resource 
agency or Indian tribe for conducting the study is not a generally 
accepted practice. The applicant may refer any such request to the 
Director of the Office of Energy Projects for dispute resolution under 
the procedures set forth in paragraph (b)(6) of this section and need 
not conduct prior to filing any study determined by the Director to be 
unreasonable or unnecessary or to employ a methodology that is not 
generally accepted.
    (3)(i) The results of studies and information-gathering referenced 
in paragraphs (c)(1)(ii) and (c)(2) of this section will be treated as 
additional information; and
    (ii) Filing and acceptance of an application will not be delayed and 
an application will not be considered deficient or patently deficient 
pursuant to Sec. 4.32 (e)(1) or (e)(2) merely because the study or 
information gathering is not complete before the application is filed.
    (4) A potential applicant must provide each resource agency and 
Indian tribe with:
    (i) A copy of its draft application that:
    (A) Indicates the type of application the potential applicant 
expects to file with the Commission; and
    (B) Responds to any comments and recommendations made by any 
resource agency and Indian tribe either during the first stage of 
consultation or under paragraph (c)(2) of this section;
    (ii) The results of all studies and information-gathering either 
requested by that resource agency or Indian tribe in the first stage of 
consultation (or under paragraph (c)(2) of this section if available) or 
which pertain to resources of interest to that resource agency or Indian 
tribe and which were identified by the potential applicant pursuant to 
paragraph (b)(2)(vii) of this section, including a discussion of the 
results and any proposed protection, mitigation, or enhancement 
measures; and
    (iii) A written request for review and comment.
    (5) A resource agency or Indian tribe will have 90 days from the 
date of the potential applicant's letter transmitting the paragraph 
(c)(4) information to it to provide written comments on the information 
submitted by a potential applicant under paragraph (c)(4) of this 
section.
    (6) If the written comments provided under paragraph (c)(5) of this 
section indicate that a resource agency or Indian tribe has a 
substantive disagreement with a potential applicant's conclusions 
regarding resource impacts or its proposed protection, mitigation, or 
enhancement measures, the potential applicant will:
    (i) Hold a joint meeting with the disagreeing resource agency or 
Indian tribe and other agencies with similar or related areas of 
interest, expertise, or responsibility not later than 60 days from the 
date of the written comments of the disagreeing agency or Indian tribe 
to discuss and to attempt to reach agreement on its plan for 
environmental protection, mitigation, or enhancement measures;
    (ii) Consult with the disagreeing agency or Indian tribe and other 
agencies with similar or related areas of interest, expertise, or 
responsibility on the scheduling of the joint meeting; and

[[Page 99]]

    (iii) At least 15 days in advance of the meeting, provide the 
Commission with written notice of the time and place of the meeting and 
a written agenda of the issues to be discussed at the meeting.
    (7) The potential applicant and any disagreeing resource agency or 
Indian tribe may conclude a joint meeting with a document embodying any 
agreement among them regarding environmental protection, mitigation, or 
enhancement measures and any issues that are unresolved.
    (8) The potential applicant must describe all disagreements with a 
resource agency or Indian tribe on technical or environmental 
protection, mitigation, or enhancement measures in its application, 
including an explanation of the basis for the applicant's disagreement 
with the resource agency or Indian tribe, and must include in its 
application any document developed pursuant to paragraph (c)(7) of this 
section.
    (9) A potential applicant may file an application with the 
Commission if:
    (i) It has complied with paragraph (c)(4) of this section and no 
resource agency or Indian tribe has responded with substantive 
disagreements by the deadline specified in paragraph (c)(5) of this 
section; or
    (ii) It has complied with paragraph (c)(6) of this section and a 
resource agency or Indian tribe has responded with substantive 
disagreements.
    (10) The second stage of consultation ends:
    (i) Ninety days after the submittal of information pursuant to 
paragraph (c)(4) of this section in cases where no resource agency or 
Indian tribe has responded with substantive disagreements; or
    (ii) At the conclusion of the last joint meeting held pursuant to 
paragraph (c)(6) of this section in cases where a resource agency or 
Indian tribe has responded with substantive disagreements.
    (d) Third stage of consultation. (1) The third stage of consultation 
is initiated by the filing of an application for a license or exemption, 
accompanied by a transmittal letter certifying that at the same time 
copies of the application are being mailed to the resource agencies, 
Indian tribes, other government offices, and consulted members of the 
public specified in paragraph (d)(2) of this section.
    (2) As soon as an applicant files such application documents with 
the Commission, or promptly after receipt in the case of documents 
described in paragraph (d)(2)(iii) of this section, as the Commission 
may direct the applicant must serve on every resource agency, Indian 
tribes, and member of the public consulted, and on other government 
offices copies of:
    (i) Its application for a license or an exemption from licensing;
    (ii) Any deficiency correction, revision, supplement, response to 
additional information request, or amendment to the application; and
    (iii) Any written correspondence from the Commission requesting the 
correction of deficiencies or the submittal of additional information.
    (e) Waiver of compliance with consultation requirements. (1) If a 
resource agency or Indian tribe waives in writing compliance with any 
requirement of this section, a potential applicant does not have to 
comply with that requirement as to that agency or tribe.
    (2) If a resource agency or Indian tribe fails to timely comply with 
a provision regarding a requirement of this section, a potential 
applicant may proceed to the next sequential requirement of this section 
without waiting for the resource agency or Indian tribe to comply.
    (3) The failure of a resource agency or Indian tribe to timely 
comply with a provision regarding a requirement of this section does not 
preclude its participation in subsequent stages of the consultation 
process.
    (4) Following October 23, 2003, a potential license applicant 
engaged in pre-filing consultation under part 4 may during first stage 
consultation request to incorporate into pre-filing consultation any 
element of the integrated license application process provided for in 
part 5 of this chapter. Any such request must be accompanied by a:
    (i) Specific description of how the element of the part 5 license 
application would fit into the pre-filing consultation process under 
this part; and

[[Page 100]]

    (ii) Demonstration that the potential license applicant has made 
every reasonable effort to contact all resource agencies, Indian tribes, 
non-governmental organizations, and others affected by the applicant's 
proposal, and that a consensus exists in favor of incorporating the 
specific element of the part 5 process into the pre-filing consultation 
under this part.
    (f) Application requirements documenting consultation and any 
disagreements with resource agencies. An applicant must show in Exhibit 
E of its application that it has met the requirements of paragraphs (b) 
through (d) and paragraphs (g) and (h) of this section, and must include 
a summary of the consultation process and:
    (1) Any resource agency's or Indian tribe's letters containing 
comments, recommendations, and proposed terms and conditions;
    (2) Any letters from the public containing comments and 
recommendations;
    (3) Notice of any remaining disagreement with a resource agency or 
Indian tribe on:
    (i) The need for a study or the manner in which a study should be 
conducted and the applicant's reasons for disagreement, and
    (ii) Information on any environmental protection, mitigation, or 
enhancement measure, including the basis for the applicant's 
disagreement with the resource agency or Indian tribe;
    (4) Evidence of any waivers under paragraph (e) of this section;
    (5) Evidence of all attempts to consult with a resource agency or 
Indian tribe, copies of related documents showing the attempts, and 
documents showing the conclusion of the second stage of consultation;
    (6) An explanation of how and why the project would, would not, or 
should not, comply with any relevant comprehensive plan as defined in 
Sec. 2.l9 of this chapter and a description of any relevant resource 
agency or Indian tribe determination regarding the consistency of the 
project with any such comprehensive plan;
    (7) A description of how the applicant's proposal addresses the 
significant resource issues raised at the joint meeting held pursuant to 
paragraph (b)(3) of this section; and
    (8) A list containing the name and address of every federal, state, 
and interstate resource agency and Indian tribe with which the applicant 
consulted pursuant to paragraph (a)(1) of this section.
    (g) Public participation. (1) At least 14 days in advance of the 
joint meeting held pursuant to paragraph (b)(3) of this section, the 
potential applicant must publish notice, at least once, of the purpose, 
location, and timing of the joint meeting, in a daily or weekly 
newspaper published in each county in which the proposed project or any 
part thereof is situated. The notice shall include a summary of the 
major issues to be discussed at the joint meeting.
    (2)(i) A potential applicant must make available to the public for 
inspection and reproduction the information specified in paragraph 
(b)(2) of this section from the date on which the notice required by 
paragraph (g)(1) of this section is first published until a final order 
is issued on any license application.
    (ii) The provisions of Sec. 4.32(b) will govern the form and manner 
in which the information is to be made available for public inspection 
and reproduction.
    (iii) A potential applicant must make available to the public for 
inspection at the joint meeting required by paragraph (b)(3) of this 
section at least two copies of the information specified in paragraph 
(b)(2) of this section.
    (h) Critical Energy Infrastructure Information. If this section 
requires an applicant to reveal Critical Energy Infrastructure 
Information (CEII), as defined by Sec. 388.113(c) of this chapter, to 
any person, the applicant shall follow the procedures set out in Sec. 
4.32(k).

[Order 533, 56 FR 23153, May 20, 1991, as amended at 56 FR 61155, Dec. 
2, 1991; Order 2002, 68 FR 51117, Aug. 25, 2003; Order 643, 68 FR 52094, 
Sept. 2, 2003; 68 FR 61742, Oct. 30, 2003]



Sec. 4.39  Specifications for maps and drawings.

    All required maps and drawings must conform to the following 
specifications, except as otherwise prescribed in this chapter:

[[Page 101]]

    (a) Each original map or drawing must consist of a print on silver 
or gelatin 35mm microfilm mounted on Type D (3\1/4\[sec] by 7\3/8\[sec]) 
aperture cards. Full-sized prints of maps and drawings must be on sheets 
no smaller than 24 by 36 inches and no larger than 28 by 40 inches. A 
space five inches high by seven inches wide must be provided in the 
lower right hand corner of each sheet. The upper half of this space must 
bear the title, numerical and graphical scale, and other pertinent 
information concerning the map or drawing. The lower half of the space 
must be left clear. Exhibit G drawings must be stamped by a registered 
land surveyor. If the drawing size specified in this paragraph limits 
the scale of structural drawings (exhibit F drawings) described in 
paragraph (c) of this section, a smaller scale may be used for those 
drawings. Potential applicants or licensees may be required to file maps 
or drawings in electronic format as directed by the Commission.
    (b) Each map must have a scale in full-sized prints no smaller than 
one inch equals 0.5 miles for transmission lines, roads, and similar 
linear features and no smaller than one inch equals 1,000 feet for other 
project features, including the project boundary. Where maps at this 
scale do not show sufficient detail, large scale maps may be required.
    (1) True and magnetic meridians;
    (2) State, county, and town lines; and
    (3) Boundaries of public lands and reservations of the United States 
[see 16 U.S.C. 796 (1) and (2)], if any. If a public land survey is 
available, the maps must show all lines of that survey crossing the 
project area and all official subdivisions of sections for the public 
lands and reservations, including lots and irregular tracts, as 
designated on the official plats of survey that may be obtained from the 
Bureau of Land Management, Washington, DC, or examined in the local land 
survey office; to the extent that a public land survey is not available 
for public lands and reservations of the United States, the maps must 
show the protractions of townships and section lines, which, if 
possible, must be those recognized by the Federal agency administering 
those lands.
    (c) Drawings depicting details of project structures must have a 
scale in full-sized prints no smaller than:
    (1) One inch equals 50 feet for plans, elevations, and profiles; and
    (2) One inch equals 10 feet for sections.
    (d) Each map or drawing must be drawn and lettered to be legible 
when it is reduced to a print that is 11 inches on its shorter side. 
Following notification to the applicant that the application has been 
accepted for filing [see Sec. 4.31(c)], prints reduced to that size 
must be bound in each copy of the application which is required to be 
submitted to the Commission or provided to any person, agency, or other 
entity.
    (e) The maps and drawings showing project location information and 
details of project structures must be filed in accordance with the 
Commission's instructions on submission of Critical Energy 
Infrastructure Information in Sec. Sec. 388.112 and 388.113 of 
subchapter X of this chapter.

[Order 54, 44 FR 61334, Oct. 25, 1979. Redesignated by Order 413, 50 FR 
11678, Mar. 25, 1985; Order 2002, 68 FR 51119, Aug. 25, 2003; 68 FR 
61742, Oct. 30, 2003]



 Subpart E_Application for License for Major Unconstructed Project and 
                         Major Modified Project



Sec. 4.40  Applicability.

    (a) Applicability. The provisions of this subpart apply to any 
application for an initial license for a major unconstructed project 
that would have a total installed capacity of more than 5 megawatts, and 
any application for an initial or new license for a major modified 
project with a total installed capacity more than 5 megawatts. An 
applicant for license for any major unconstructed or major modified 
water power project that would have a total installed generating 
capacity of 5 megawatts or less must submit application under subpart G 
(Sec. Sec. 4.60 and 4.61).
    (b) Guidance from Commission staff. A prospective applicant for a 
license for a major unconstructed project or major modified project may 
seek advice from the Commission's Office of Energy Projects regarding 
the applicability of

[[Page 102]]

this subpart to its project [see Sec. 4.32(h)], including the 
determinations whether any proposed repair, modification or 
reconstruction of an existing dam would result in a significant change 
in the normal maximum surface elevation of an existing impoundment, or 
whether any proposed change in existing project works or operation would 
result in a significant environmental impact.

[Order 184, 46 FR 55936, Nov. 13, 1981, as amended by Order 413, 50 FR 
11683, Mar. 25, 1985; Order 499, 53 FR 27002, July 18, 1988; Order 2002, 
68 FR 51119, Aug. 25, 2003]



Sec. 4.41  Contents of application.

    Any application under this subpart must contain the following 
information in the form prescribed:

    (a) Initial statement.

             Before the Federal Energy Regulatory Commission

    Application for License for Major Unconstructed Project or Major 
                            Modified Project

    (1) [Name of applicant] applies to the Federal Energy Regulatory 
Commission for a [license or new license, as appropriate] for the [name 
of project] water power project, as described in the attached exhibits. 
[Specify any previous FERC project number designation.]
    (2) The location of the proposed project is:

State or territory:_____________________________________________________
County:_________________________________________________________________
Township or nearby town:________________________________________________
Stream or other body of water:__________________________________________

    (3) The exact name, business address, and telephone number of the 
applicant are:

________________________________________________________________________
________________________________________________________________________

    (4) The applicant is a (citizen of the United States, association of 
citizens of the United States, domestic corporation, municipality, or 
State, as appropriate) and (is/is not) claiming preference under section 
7(a) of the Federal Power Act. See 16 U.S.C. 796.
    (5)(i) The statutory or regulatory requirements of the state(s) in 
which the project would be located and that affect the project as 
proposed with respect to bed and banks and to the appropriation, 
diversion, and use of water for power purposes, and with respect to the 
right to engage in the business of developing, transmitting, and 
distributing power and in any other business necessary to accomplish the 
purposes of the license under the Federal Power Act, are: [provide 
citation and brief identification of the nature of each requirement; if 
the applicant is a municipality, the applicant must submit copies of 
applicable state or local laws or a municipal charter or, if such laws 
or documents are not clear, any other appropriate legal authority, 
evidencing that the municipality is competent under such laws to engage 
in the business of developing, transmitting, utilizing, or distributing 
power.]
    (ii) The steps which the applicant has taken, or plans to take, to 
comply with each of the laws cited above are: [provide brief description 
for each requirement]

    (b) Exhibit A is a description of the project. If the project 
includes more than one dam with associated facilities, each dam and the 
associated component parts must be described together as a discrete 
development. The description for each development must contain:
    (1) The physical composition, dimensions, and general configuration 
of any dams, spillways, penstocks, powerhouses, tailraces or other 
structures proposed to be included as part of the project;
    (2) The normal maximum water surface area and normal maximum water 
surface elevation (mean sea level), gross storage capacity of any 
impoundments to be included as part of the project;
    (3) The number, type and rated capacity of any proposed turbines or 
generators to be included as part of the project;
    (4) The number, length, voltage and interconnections of any primary 
transmission lines proposed to be included a part of the project [See 16 
U.S.C. 796(11)];
    (5) The description of any additional mechanical, electrical, and 
transmission equipment appurtenant to the project; and
    (6) All lands of the United States, including lands patented subject 
to the provisions of section 24 of the Act, 16 U.S.C. 818, that are 
enclosed within the project boundary described under paragraph (h) of 
this section (Exhibit G), identified and tabulated by legal subdivisions 
of a public land survey, by the best available legal description. The 
tabulation must show the total acreage of the lands of the United States 
within the project boundary.

[[Page 103]]

    (c) Exhibit B is a statement of project operation and resource 
utilization. If the project includes more than one dam with associated 
facilities, the information must be provided separately for each 
discrete development. The exhibit must contain:
    (1) A description of each alternative site considered in selecting 
of the proposed site;
    (2) A description of any alternative facility designs, processes, 
and operations that were considered.
    (3) A statement as to whether operation of the power plant will be 
manual or automatic, an estimate of the annual plant factor, and a 
statement of how the project will be operated during adverse, mean, and 
high water years;
    (4) An estimate of the dependable capacity and average annual energy 
production in kilowatt-hours (or mechanical equivalent), supported by 
the following data:
    (i) The minimum, mean, and maximum recorded flows in cubic feet per 
second of the stream or other body of water at the powerplant intake or 
point of diversion, with a specification of any adjustment made for 
evaporation, leakage minimum flow releases (including duration of 
releases) or other reductions in available flow; monthly flow duration 
curves indicating the period of record and the gauging stations used in 
deriving the curves; and a specification of the critical streamflow used 
to determine the dependable capacity;
    (ii) An area-capacity curve showing the gross storage capacity and 
usable storage capacity of the impoundment, with a rule curve showing 
the proposed operation of the impoundment and how the usable storage 
capacity is to be utilized;
    (iii) The estimated minimum and maximum hydraulic capacity of the 
powerplant in terms of flow and efficiency (cubic feet per second at 
one-half, full and best gate), and the corresponding generator output in 
kilowatts;
    (iv) A tailwater rating curve; and
    (v) A curve showing powerplant capability versus head and specifying 
maximum, normal, and minimum heads;
    (5) A statement of system and regional power needs and the manner in 
which the power generated at the project is to be utilized, including 
the amount of power to be used on-site, if any, supported by the 
following data:
    (i) Load curves and tabular data, if appropriate;
    (ii) Details of conservation and rate design programs and their 
historic and projected impacts on system loads; and
    (iii) The amount of power to be sold and the identity of proposed 
purchaser(s); and
    (6) A statement of the applicant's plans for future development of 
the project or of any other existing or proposed water power project on 
the affected stream or other body of water, indicating the approximate 
location and estimated installed capacity of the proposed developments.
    (d) Exhibit C is a proposed construction schedule for the project. 
The information required may be supplemented with a bar chart. The 
construction schedule must contain:
    (1) The proposed commencement and completion dates of any new 
construction, modification, or repair of major project works;
    (2) The proposed commencement date of first commercial operation of 
each new major facility and generating unit; and
    (3) If any portion of the proposed project consists of previously 
constructed, unlicensed water power structures or facilities, a 
chronology of original completion dates of those structures or 
facilities specifying dates (approximate dates must be identified as 
such) of:
    (i) Commencement and completion of construction or installation;
    (ii) Commencement of first commercial operation; and
    (iii) Any additions or modifications other than routine maintenance.
    (e) Exhibit D is a statement of project costs and financing. The 
exhibit must contain:
    (1) A statement of estimated costs of any new construction, 
modification, or repair, including:
    (i) The cost of any land or water rights necessary to the 
development;
    (ii) The total cost of all major project works;

[[Page 104]]

    (iii) Indirect construction costs such as costs of construction 
equipment, camps, and commissaries;
    (iv) Interest during construction; and
    (v) Overhead, construction, legal expenses, and contingencies;
    (2) If any portion of the proposed project consists of previously 
constructed, unlicensed water power structures or facilities, a 
statement of the original cost of those structures or facilities 
specifying for each, to the extent possible, the actual or approximate 
total costs (approximate costs must be identified as such) of:
    (i) Any land or water rights necessary to the existing project 
works;
    (ii) All major project works; and
    (iii) Any additions or modifications other than routine maintenance;
    (3) If the applicant is a licensee applying for a new license, and 
is not a municipality or a state, an estimate of the amount which would 
be payable if the project were to be taken over pursuant to section 14 
of the Federal Power Act, 16 U.S.C. 807, upon expiration of the license 
in effect including:
    (i) Fair value;
    (ii) Net investment; and
    (iii) Severance damages;
    (4) A statement of the estimated average annual cost of the total 
project as proposed, specifying any projected changes in the costs 
(life-cycle costs) over the estimated financing or licensing period if 
the applicant takes such changes into account, including:
    (i) Cost of capital (equity and debt);
    (ii) Local, state, and Federal taxes;
    (iii) Depreciation or amortization,
    (iv) Operation and maintenance expenses, including interim 
replacements, insurance, administrative and general expenses, and 
contingencies; and
    (v) The estimated capital cost and estimated annual operation and 
maintenance expense of each proposed environmental measure;
    (5) A statement of the estimated annual value of project power based 
on a showing of the contract price for sale of power or the estimated 
average annual cost of obtaining an equivalent amount of power (capacity 
and energy) from the lowest cost alternative source of power, specifying 
any projected changes in the costs (life-cycle costs) of power from that 
source over the estimated financing or licensing period if the applicant 
takes such changes into account;
    (6) A statement describing other electric energy alternatives, such 
as gas, oil, coal and nuclear-fueled powerplants and other conventional 
and pumped storage hydroelectric plants;
    (7) A statement and evaluation of the consequences of denial of the 
license application and a brief perspective of what future use would be 
made of the proposed site if the proposed project were not constructed;
    (8) A statement specifying the sources and extent of financing and 
annual revenues available to the applicant to meet the costs identified 
in paragraphs (e) (1) and (4) of this section;
    (9) An estimate of the cost to develop the license application; and
    (10) The on-peak and off-peak values of project power, and the basis 
for estimating the values, for projects which are proposed to operate in 
a mode other than run-of-river.
    (f) Exhibit E is an Environmental Report. Information provided in 
the report must be organized and referenced according to the itemized 
subparagraphs below. See Sec. 4.38 for consultation requirements. The 
Environmental Report must contain the following information, 
commensurate with the scope of the project:
    (1) General description of the locale. The applicant must provide a 
general description of the environment of the proposed project area and 
its immediate vicinity. The description must include location and 
general information helpful to an understanding of the environmental 
setting.
    (2) Report on water use and quality. The report must discuss water 
quality and flows and contain baseline data sufficient to determine the 
normal and seasonal variability, the impacts expected during 
construction and operation, and any mitigative, enhancement, and 
protective measures proposed by the applicant. The report must be 
prepared in consultation with the state and Federal agencies with 
responsibility for management of water quality and quantity in the 
affected

[[Page 105]]

stream or other body of water. The report must include:
    (i) A description of existing instream flow uses of streams in the 
project area that would be affected by construction and operation; 
estimated quantities of water discharged from the proposed project for 
power production; and any existing and proposed uses of project waters 
for irrigation, domestic water supply, industrial and other purposes;
    (ii) A description of the seasonal variation of existing water 
quality for any stream, lake, or reservoir that would be affected by the 
proposed project, including (as appropriate) measurements of: 
significant ions, chlorophyll a, nutrients, specific conductance, pH, 
total dissolved solids, total alkalinity, total hardness, dissolved 
oxygen, bacteria, temperature, suspended sediments, turbidity and 
vertical illumination;
    (iii) A description of any existing lake or reservoir and any of the 
proposed project reservoirs including surface area, volume, maximum 
depth, mean depth, flushing rate, shoreline length, substrate 
classification, and gradient for streams directly affected by the 
proposed project;
    (iv) A quantification of the anticipated impacts of the proposed 
construction and operation of project facilities on water quality and 
downstream flows, such as temperature, turbidity and nutrients;
    (v) A description of measures recommended by Federal and state 
agencies and the applicant for the purpose of protecting or improving 
water quality and stream flows during project construction and 
operation; an explanation of why the applicant has rejected any measures 
recommended by an agency; and a description of the applicant's 
alternative measures to protect or improve water quality stream flow;
    (vi) A description of groundwater in the vicinity of the proposed 
project, including water table and artesian conditions, the hydraulic 
gradient, the degree to which groundwater and surface water are 
hydraulically connected, aquifers and their use as water supply, and the 
location of springs, wells, artesian flows and disappearing streams; a 
description of anticipated impacts on groundwater and measures proposed 
by the applicant and others for the mitigation of impacts on 
groundwater; and
    (3) Report on fish, wildlife, and botanical resources. The applicant 
must provide a report that describes the fish, wildlife, and botanical 
resources in the vicinity of the proposed project; expected impacts of 
the project on these resources; and mitigation, enhancement, or 
protection measures proposed by the applicant. The report must be 
prepared in consultation with the state agency or agencies with 
responsibility for these resources, the U.S. Fish and Wildlife Service, 
the National Marine Fisheries Service (if the proposed project may 
affect anadromous, estuarine, or marine fish resources), and any state 
or Federal agency with managerial authority over any part of the 
proposed project lands. The report must contain:
    (i) A description of existing fish, wildlife, and plant communities 
of the proposed project area and its vicinity, including any downstream 
areas that may be affected by the proposed project and the area within 
the transmission line corridor or right-of-way. A map of vegetation 
types should be included in the description. For species considered 
important because of their commercial or recreational value, the 
information provided should include temporal and spatial distributions 
and densities of such species. Any fish, wildlife, or plant species 
proposed or listed as threatened or endangered by the U.S. Fish and 
Wildlife Service or National Marine Fisheries Service [see 50 CFR 17.11 
and 17.12] must be identified;
    (ii) A description of the anticipated impacts on fish, wildlife and 
botanical resources of the proposed construction and operation of 
project facilities, including possible changes in size, distribution, 
and reproduction of essential population of these resources and any 
impacts on human utilization of these resources;
    (iii) A description of any measures or facilities recommended by 
state or Federal agencies for the mitigation of impacts on fish, 
wildlife, and botanical

[[Page 106]]

resources, or for the protection or enhancement of these resources, the 
impact on threatened or endangered species, and an explanation of why 
the applicant has determined any measures or facilities recommended by 
an agency are inappropriate as well as a description of alternative 
measures proposed by applicant to protect fish, wildlife and botanical 
resources; and
    (iv) The following materials and information regarding any 
mitigation measures or facilities, identified under clause (iii), 
proposed for implementation or construction:
    (A) Functional design drawings;
    (B) A description of proposed operation and maintenance procedures 
for any proposed measures or facilities;
    (C) An implementation, construction and operation schedule for any 
proposed measures or facilities;
    (D) An estimate of the costs of construction, operation, and 
maintenance of any proposed facilities or implementation of any 
measures;
    (E) A statement of the sources and amount of financing for 
mitigation measures or facilities; and
    (F) A map or drawing showing, by the use of shading, crosshatching 
or other symbols, the identity and location of any proposed measures or 
facilities.
    (4) Report on historic and archaeological resources. The applicant 
must provide a report that discusses any historical and archaeological 
resources in the proposed project area, the impact of the proposed 
project on those resources and the avoidance, mitigation, and protection 
measures proposed by the applicant. The report must be prepared in 
consultation with the State Historic Preservation Officer (SHPO) and the 
National Park Service of the U.S. Department of Interior. The report 
must contain:
    (i) A description of any discovery measures, such as surveys, 
inventories, and limited subsurface testing work, recommended by the 
specified state and Federal agencies for the purpose of locating, 
identifying, and assessing the significance of historic and 
archaeological resources that would be affected by construction and 
operation of the proposed project, together with a statement of the 
applicant's position regarding the acceptability of the recommendations;
    (ii) The results of surveys, inventories, and subsurface testing 
work recommended by the state and Federal agencies listed above, 
together with an explanation by the applicant of any variations from the 
survey, inventory, or testing procedures recommended;
    (iii) An identification (without providing specific site or property 
locations) of any historic or archaeological site in the proposed 
project area, with particular emphasis on sites or properties either 
listed in, or recommended by the SHPO for inclusion in, the National 
Register of Historic Places that would be affected by the construction 
of the proposed project;
    (iv) A description of the likely direct and indirect impacts of 
proposed project construction or operation on sites or properties either 
listed in, or recommended as eligible for, the National Register of 
Historic Places;
    (v) A management plan for the avoidance of, or mitigation of, 
impacts on historic or archaeological sites and resources based upon the 
recommendations of the state and Federal agencies listed above and 
containing the applicant's explanation of variations from those 
recommendations; and
    (vi) The following materials and information regarding the 
mitigation measures described under paragraph (f)(4)(v) of this section:
    (A) A schedule for implementing the mitigation proposals;
    (B) An estimate of the cost of the measures; and
    (C) A statement of the sources and extent of financing.
    (vii) The applicant must provide five copies (rather than the 
fourteen copies required under Sec. 4.32(b)(1) of the Commission's 
regulations) of any survey, inventory, or subsurface testing reports 
containing specific site and property information, and including maps 
and photographs showing the location and any required alteration of 
historic and archaeological resources in relation to proposed project 
facilities.
    (5) Report on socio-economic impacts. The applicant must provide a 
report which identifies and quantifies the impacts of constructing and 
operating the

[[Page 107]]

proposed project on employment, population, housing, personal income, 
local governmental services, local tax revenues and other factors within 
the towns and counties in the vicinity of the proposed project. The 
report must include:
    (i) A description of the socio-economic impact area;
    (ii) A description of employment, population and personal income 
trends in the impact area;
    (iii) An evaluation of the impact of any substantial in-migration of 
people on the impact area's governmental facilities and services, such 
as police, fire, health and educational facilities and programs;
    (iv) On-site manpower requirements and payroll during and after 
project construction, including a projection of total on-site employment 
and construction payroll provided by month;
    (v) Numbers of project construction personnel who:
    (A) Currently reside within the impact area;
    (B) Would commute daily to the construction site from places 
situated outside the impact area; and
    (C) Would relocate on a temporary basis within the impact area;
    (vi) A determination of whether the existing supply of available 
housing within the impact area is sufficient to meet the needs of the 
additional population;
    (vii) Numbers and types of residences and business establishments 
that would be displaced by the proposed project, procedures to be 
utilized to acquire these properties, and types and amounts of 
relocation assistance payments that would be paid to the affected 
property owners and businesses; and
    (viii) A fiscal impact analysis evaluating the incremental local 
government expenditures in relation to the incremental local government 
revenues that would result from the construction of the proposed 
project. Incremental expenditures may include, but are not be limited 
to, school operating costs, road maintenance and repair, public safety, 
and public utility costs.
    (6) Report on geological and soil resources. The applicant must 
provide a report on the geological and soil resources in the proposed 
project area and other lands that would be directly or indirectly 
affected by the proposed action and the impacts of the proposed project 
on those resources. The information required may be supplemented with 
maps showing the location and description of conditions. The report must 
contain:
    (i) A detailed description of geological features, including bedrock 
lithology, stratigraphy, structural features, glacial features, 
unconsolidated deposits, and mineral resources;
    (ii) A detailed description of the soils, including the types, 
occurrence, physical and chemical characteristics, erodability and 
potential for mass soil movement;
    (iii) A description showing the location of existing and potential 
geological and soil hazards and problems, including earthquakes, faults, 
seepage, subsidence, solution cavities, active and abandoned mines, 
erosion, and mass soil movement, and an identification of any large 
landslides or potentially unstable soil masses which could be aggravated 
by reservoir fluctuation;
    (iv) A description of the anticipated erosion, mass soil movement 
and other impacts on the geological and soil resources due to 
construction and operation of the proposed project; and
    (v) A description of any proposed measures of facilities for the 
mitigation of impacts on soils.
    (7) Report on recreational resources. The applicant must prepare a 
report containing a proposed recreation plan describing utilization, 
design and development of project recreational facilities, and public 
access to the project area. Development of the plan should include 
consideration of the needs of the physically handicapped. Public and 
private recreational facilities provided by others that would abut the 
project should be noted in the report. The report must be prepared in 
consultation with appropriate local, regional, state and Federal 
recreation agencies and planning commissions, the National Park Service 
of the U.S. Department of the Interior, and any other state or Federal 
agency with managerial responsibility for any part of the project lands. 
The report must contain:

[[Page 108]]

    (i) A description of any areas within or in the vicinity of the 
proposed project boundary that are included in, or have been designated 
for study for inclusion in:
    (A) The National Wild and Scenic Rivers Systems (see 16 U.S.C. 
1271);
    (B) The National Trails System (see 16 U.S.C. 1241); or
    (C) A wilderness area designated under the Wilderness Act (see 16 
U.S.C. 1132);
    (ii) A detailed description of existing recreational facilities 
within the project vicinity, and the public recreational facilities 
which are to be provided by the applicant at its sole cost or in 
cooperation with others no later than 3 years from the date of first 
commercial operation of the proposed project and those recreation 
facilities planned for future development based on anticipated demand. 
When public recreation facilities are to be provided by other entities, 
the applicant and those entities should enter into an agreement on the 
type of facilities to be provided and the method of operation. Copies of 
agreements with cooperating entities are to be appended to the plan;
    (iii) A provision for a shoreline buffer zone that must be within 
the project boundary, above the normal maximum surface elevation of the 
project reservoir, and of sufficient width to allow public access to 
project lands and waters and to protect the scenic, public recreational, 
cultural, and other environmental values of the reservoir shoreline;
    (iv) Estimates of existing and future recreational use at the 
project, in daytime and overnight visitation (recreation days), with a 
description of the methodology used in developing these data;
    (v) A development schedule and cost estimates of the construction, 
operation, and maintenance of existing, initial, and future public 
recreational facilities, including a statement of the source and extent 
of financing for such facilities;
    (vi) A description of any measures or facilities recommended by the 
agencies consulted for the purpose of creating, preserving, or enhancing 
recreational opportunities at the proposed project, and for the purpose 
of ensuring the safety of the public in its use of project lands and 
waters, including an explanation of why the applicant has rejected any 
measures or facilities recommended by an agency; and
    (vii) A drawing or drawings, one of which describes the entire 
project area, clearly showing:
    (A) The location of project lands, and the types and number of 
existing recreational facilities and those proposed for initial 
development, including access roads and trails, and facilities for 
camping, picnicking, swimming, boat docking and launching, fishing and 
hunting, as well as provisions for sanitation and waste disposal;
    (B) The location of project lands, and the type and number of 
recreational facilities planned for future development;
    (C) The location of all project lands reserved for recreational uses 
other than those included in paragraphs (f)(7)(vii) (A) and (B) of this 
section; and
    (D) The project boundary (excluding surveying details) of all areas 
designated for recreational development, sufficiently referenced to the 
appropriate Exhibit G drawings to show that all lands reserved for 
existing and future public recreational development and the shoreline 
buffer zone are included within the project boundary. Recreational 
cottages, mobile homes and year-round residences for private use are not 
to be considered as public recreational facilities, and the lands on 
which these private facilities are to be developed are not to be 
included within the proposed project boundary.
    (8) Report on aesthetic resources. The applicant must provide a 
report that describes the aesthetic resources of the proposed project 
area, the expected impacts of the project on these resources, and the 
mitigation, enhancement or protection measures proposed. The report must 
be prepared following consultation with Federal, state, and local 
agencies having managerial responsibility for any part of the proposed 
project lands or lands abutting those lands. The report must contain:
    (i) A description of the aesthetic character of lands and waters 
directly

[[Page 109]]

and indirectly affected by the proposed project facilities;
    (ii) A description of the anticipated impacts on aesthetic resources 
from construction activity and related equipment and material, and the 
subsequent presence of proposed project facilities in the landscape;
    (iii) A description of mitigative measures proposed by the 
applicant, including architectural design, landscaping, and other 
reasonable treatment to be given project works to preserve and enhance 
aesthetic and related resources during construction and operation of 
proposed project facilities; and
    (iv) Maps, drawings and photographs sufficient to provide an 
understanding of the information required under this paragraph. Maps or 
drawings may be consolidated with other maps or drawings required in 
this exhibit and must conform to the specifications of Sec. 4.39.
    (9) Report on land use. The applicant must provide a report that 
describes the existing uses of the proposed project lands and adjacent 
property, and those land uses which would occur if the project is 
constructed. The report may reference the discussions of land uses in 
other sections of this exhibit. The report must be prepared following 
consultation with local and state zoning or land management authorities, 
and any Federal or state agency with managerial responsibility for the 
proposed project or abutting lands. The report must include:
    (i) A description of existing land use in the proposed project area, 
including identification of wetlands, floodlands, prime or unique 
farmland as designated by the Natural Resources Conservation Service of 
the U.S. Department of Agriculture, the Special Area Management Plan of 
the Office of Coastal Zone Management, National Oceanic and Atmospheric 
Administration, and lands owned or subject to control by government 
agencies;
    (ii) A description of the proposed land uses within and abutting the 
project boundary that would occur as a result of development and 
operation of the project; and
    (iii) Aerial photographs, maps, drawings or other graphics 
sufficient to show the location, extent and nature of the land uses 
referred to in this section.
    (10) Alternative locations, designs, and energy sources. The 
applicant must provide an environment assessment of the following:
    (i) Alternative sites considered in arriving at the selection of the 
proposed project site;
    (ii) Alternative facility designs, processes, and operations that 
were considered and the reasons for their rejection;
    (iii) Alternative electrical energy sources, such as gas, oil, coal, 
and nuclear-fueled power plants, purchased power or diversity exchange, 
and other conventional and pumped-storage hydroelectric plants; and
    (iv) The overall consequences if the license application is denied.
    (11) List of literature. Exhibit E must include a list of all 
publications, reports, and other literature which were cited or 
otherwise utilized in the preparation of any part of the environmental 
report.
    (g) Exhibit F consists of general design drawings of the principal 
project works described under paragraph (b) of this section (Exhibit A) 
and supporting information used as the basis of design. If the Exhibit F 
submitted with the application is preliminary in nature, applicant must 
so state in the application. The drawings must conform to the 
specifications of Sec. 4.39.
    (1) The drawings must show all major project structures in 
sufficient detail to provide a full understanding of the project, 
including:
    (i) Plans (overhead view);
    (ii) Elevations (front view);
    (iii) Profiles (side view); and
    (iv) Sections.
    (2) The applicant may submit preliminary design drawings with the 
application. The final Exhibit F may be submitted during or after the 
licensing process and must show the precise plans and specifications for 
proposed structures. If the project is licensed on the basis of 
preliminary designs, the applicant must submit a final Exhibit F for 
Commission approval prior to commencement of any construction of the 
project.
    (3) Supporting design report. The applicant must furnish, at a 
minimum, the

[[Page 110]]

following supporting information to demonstrate that existing and 
proposed structures are safe and adequate to fulfill their stated 
functions and must submit such information in a separate report at the 
time the application is filed. The report must include:
    (i) An assessment of the suitability of the site and the reservoir 
rim stability based on geological and subsurface investigations, 
including investigations of soils and rock borings and tests for the 
evaluation of all foundations and construction materials sufficient to 
determine the location and type of dam structure suitable for the site;
    (ii) Copies of boring logs, geology reports and laboratory test 
reports;
    (iii) An identification of all borrow areas and quarry sites and an 
estimate of required quantities of suitable construction material;
    (iv) Stability and stress analyses for all major structures and 
critical abutment slopes under all probable loading conditions, 
including seismic and hydrostatic forces induced by water loads up to 
the Probable Maximum Flood as appropriate; and
    (v) The bases for determination of seismic loading and the Spillway 
Design Flood in sufficient detail to permit independent staff 
evaluation.
    (4) The applicant must submit two copies of the supporting design 
report described in paragraph (g)(3) of this section at the time 
preliminary and final design drawings are submitted to the Commission 
for review. If the report contains preliminary drawings, it must be 
designated a ``Preliminary Supporting Design Report.''
    (h) Exhibit G is a map of the project that must conform to the 
specifications of Sec. 4.39. In addition, to the other components of 
Exhibit G, the Applicant must provide the project boundary data in a 
geo-referenced electronic format--such as ArcView shape files, GeoMedia 
files, MapInfo files, or any similar format. The electronic boundary 
data must be positionally accurate to 40 feet, in 
order to comply with the National Map Accuracy Standards for maps at a 
1:24,000 scale (the scale of USGS quadrangle maps). The electronic 
exhibit G data must include a text file describing the map projection 
used (i.e., UTM, State Plane, Decimal Degrees, etc.), the map datum 
(i.e., feet, meters, miles, etc.). Three sets of the maps must be 
submitted on compact disk or other appropriate electronic media. If more 
than one sheet is used for the paper maps, the sheets must be numbered 
consecutively, and each sheet must bear a small insert sketch showing 
the entire project and indicate that portion of the project depicted on 
that sheet. Each sheet must contain a minimum of three known reference 
points. The latitude and longitude coordinates, or state plane 
coordinates, of each reference point must be shown. If at any time after 
the application is filed there is any change in the project boundary, 
the applicant must submit, within 90 days following the completion of 
project construction, a final exhibit G showing the extent of such 
changes. The map must show:
    (1) Location of the project and principal features. The map must 
show the location of the project as a whole with reference to the 
affected stream or other body of water and, if possible, to a nearby 
town or any other permanent monuments or objects, such as roads, 
transmission lines or other structures, that can be noted on the map and 
recognized in the field. The map must also show the relative locations 
and physical interrelationships of the principal project works and other 
features described under paragraph (b) of this section (Exhibit A).
    (2) Project boundary. The map must show a project boundary enclosing 
all project works and other features described under paragraph (b) of 
this section (Exhibit A) that are to be licensed. If accurate survey 
information is not available at the time the application is filed, the 
applicant must so state, and a tentative boundary may be submitted. The 
boundary must enclose only those lands necessary for operation and 
maintenance of the project and for other project purposes, such as 
recreation, shoreline control, or protection of environmental resources 
(see paragraph (f) of this section (Exhibit E)). Existing residential, 
commercial, or other structures may be included within the boundary only 
to the extent that underlying lands are needed for project purposes 
(e.g., for flowage, public recreation, shoreline control, or

[[Page 111]]

protection of environmental resources). If the boundary is on land 
covered by a public survey, ties must be shown on the map at sufficient 
points to permit accurate platting of the position of the boundary 
relative to the lines of the public land survey. If the lands are not 
covered by a public land survey, the best available legal description of 
the position of the boundary must be provided, including distances and 
directions from fixed monuments or physical features. The boundary must 
be described as follows:
    (i) Impoundments. (A) The boundary around a project impoundment must 
be described by one of the following:
    (1) Contour lines, including the contour elevation (preferred 
method);
    (2) Specified courses and distances (metes and bounds);
    (3) If the project lands are covered by a public land survey, lines 
upon or parallel to the lines of the survey; or
    (4) Any combination of the above methods.
    (B) The boundary must be located no more than 200 feet (horizontal 
measurement) from the exterior margin of the reservoir, defined by the 
normal maximum surface elevation, except where deviations may be 
necessary in describing the boundary according to the above methods or 
where additional lands are necessary for project purposes, such as 
public recreation, shoreline control, or protection of environmental 
resources.
    (ii) Continuous features. The boundary around linear (continuous) 
project features such as access roads, transmission lines, and conduits 
may be described by specified distances from center lines or offset 
lines of survey. The width of such corridors must not exceed 200 feet 
unless good cause is shown for a greater width. Several sections of a 
continuous feature may be shown on a single sheet with information 
showing the sequence of contiguous sections.
    (iii) Noncontinuous features. (A) The boundary around noncontinuous 
project works such as dams, spillways, and powerhouses must be described 
by one of the following:
    (1) Contour lines;
    (2) Specified courses and distances;
    (3) If the project lands are covered by a public land survey, lines 
upon or parallel to the lines of the survey; or
    (4) Any combination of the above methods.
    (B) The boundary must enclose only those lands that are necessary 
for safe and efficient operation and maintenance of the project or for 
other specified project purposes, such as public recreation or 
protection of environmental resources.
    (3) Federal lands. Any public lands and reservations of the United 
States (Federal lands) [see 16 U.S.C. 796 (1) and (2)] that are within 
the project boundary, such as lands administered by the U.S. Forest 
Service, Bureau of Land Management, or National Park Service, or Indian 
tribal lands, and the boundaries of those Federal lands, must be 
identified as such on the map by:
    (i) Legal subdivisions of a public land survey of the affected area 
(a protraction of identified township and section lines is sufficient 
for this purpose); and
    (ii) The Federal agency, identified by symbol or legend, that 
maintains or manages each identified subdivision of the public land 
survey within the project boundary; or
    (iii) In the absence of a public land survey, the location of the 
Federal lands according to the distances and directions from fixed 
monuments or physical features. When a Federal survey monument or a 
Federal bench mark will be destroyed or rendered unusable by the 
construction of project works, at least two permanent, marked witness 
monuments or bench marks must be established at accessible points. The 
maps show the location (and elevation, for bench marks) of the survey 
monument or bench mark which will be destroyed or rendered unusable, as 
well as of the witness monuments or bench marks. Connecting courses and 
distances from the witness monuments or bench marks to the original must 
also be shown.
    (iv) The project location must include the most current information 
pertaining to affected Federal lands as described under Sec. 
4.81(b)(5).

[[Page 112]]

    (4) Non-Federal lands. For those lands within the project boundary 
not identified under paragraph (h)(3) of this section, the map must 
identify by legal subdivision:
    (i) Lands owned in fee by the applicant and lands that the applicant 
plans to acquire in fee; and
    (ii) Lands over which the applicant has acquired or plans to acquire 
rights to occupancy and use other than fee title, including rights 
acquired or to be acquired by easement or lease.

[Order 184, 46 FR 55936, Nov. 13, 1981; 48 FR 4459, Feb. 1, 1983, as 
amended by Order 413, 50 FR 11684, Mar. 25, 1985; Order 464, 52 FR 5449, 
Feb. 23, 1987; Order 540, 57 FR 21737, May 22, 1992; Order 2002, 68 FR 
51119, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68 FR 63194, Nov. 7, 
2003; 68 FR 69957, Dec. 16, 2003]



    Subpart F_Application for License for Major Project_Existing Dam

    Authority: Federal Power Act, as amended (16 U.S.C. 792-828c); 
Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601-2645); 
Department of Energy Organization Act (42 U.S.C. 7101-7352); E.O. 12009, 
42 FR 46267; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.).



Sec. 4.50  Applicability.

    (a) Applicability. (1) Except as provided in paragraph (a)(2) of 
this section, the provisions of this subpart apply to any application 
for either an initial license or new license for a major project--
existing dam that is proposed to have a total installed capacity of more 
than 5 megawatts.
    (2) This subpart does not apply to any major project--existing dam 
(see Sec. 4.40) that is proposed to entail or include:
    (i) Any repair, modification or reconstruction of an existing dam 
that would result in a significant change in the normal maximum surface 
area or normal maximum surface elevation of an existing impoundment; or
    (ii) Any new development or change in project operation that would 
result in a significant environmental impact.
    (3) An applicant for license for any major project--existing dam 
that would have a total installed capacity of 5 megawatts or less must 
submit application under subpart G (Sec. Sec. 4.60 and 4.61).
    (b) Guidance from Commission staff. A prospective applicant for a 
major license--existing dam may seek advice from the Commission staff 
regarding the applicability of these sections to its project (see Sec. 
4.32(h)), including the determinations whether any proposed repair or 
reconstruction of an existing dam would result in a significant change 
in the normal maximum surface area or the normal maximum surface 
elevation of an existing impoundment, or whether any proposed new 
development or change in project operation would result in a significant 
environmental impact.

[Order 59, 44 FR 67651, Nov. 27, 1979, as amended by Order 184, 46 FR 
55942, Nov. 13, 1981; Order 413, 50 FR 11684, Mar. 25, 1985; Order 499, 
53 FR 27002, July 18, 1988]



Sec. 4.51  Contents of application.

    An application for license under this subpart must contain the 
following information in the form specified. As provided in paragraph 
(f) of this section, the appropriate Federal, state, and local resource 
agencies must be given the opportunity to comment on the proposed 
project, prior to filing of the application for license for major 
project--existing dam. Information from the consultation process must be 
included in this Exhibit E, as appropriate.
    (a) Initial statement.

             Before the Federal Energy Regulatory Commission

         Application for License for Major Project--Existing Dam

    (1) (Name of applicant) applies to the Federal Energy Regulatory 
Commission for a (license or new license, as appropriate) for the (name 
of project) water power project, as described in the attached exhibits. 
(Specify any previous FERC project number designation.)
    (2) The location of the project is:

State or territory:_____________________________________________________
County:_________________________________________________________________
Township or nearby town:________________________________________________
Stream or other body of water:__________________________________________

    (3) The exact name and business address of the applicant are:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________


[[Page 113]]

________________________________________________________________________
    The exact name and business address of each person authorized to act 
as agent for the applicant in this application are:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

    (4) The applicant is a [citizen of the United States, association of 
citizens of the United States, domestic corporation, municipality, or 
state, as appropriate] and (is/is not) claiming preference under section 
7(a) of the Federal Power Act. See 16 U.S.C. 796.
    (5)(i) The statutory or regulatory requirements of the state(s) in 
which the project would be located that affect the project as proposed, 
with respect to bed and banks and to the appropriation, diversion, and 
use of water for power purposes, and with respect to the right to engage 
in the business of developing, transmitting, and distributing power and 
in any other business necessary to accomplish the purposes of the 
license under the Federal Power Act, are: [Provide citation and brief 
identification of the nature of each requirement; if the applicant is a 
municipality, the applicant must submit copies of applicable state and 
local laws or a municipal charter, or, if such laws or documents are not 
clear, other appropriate legal authority, evidencing that the 
municipality is competent under such laws to engage in the business of 
developing, transmitting, utilizing, or distributing power.]
    (ii) The steps which the applicant has taken or plans to take to 
comply with each of the laws cited above are: (provide brief description 
for each law).
    (6) The applicant must provide the name and address of the owner of 
any existing project facilities. If the dam is federally owned or 
operated, provide the name of the agency.

    (b) Exhibit A is a description of the project. This exhibit need not 
include information on project works maintained and operated by the U.S. 
Army Corps of Engineers, the Bureau of Reclamation, or any other 
department or agency of the United States, except for any project works 
that are proposed to be altered or modified. If the project includes 
more than one dam with associated facilities, each dam and the 
associated component parts must be described together as a discrete 
development. The description for each development must contain:
    (1) The physical composition, dimensions, and general configuration 
of any dams, spillways, penstocks, powerhouses, tailraces, or other 
structures, whether existing or proposed, to be included as part of the 
project;
    (2) The normal maximum surface area and normal maximum surface 
elevation (mean sea level), gross storage capacity, and usable storage 
capacity of any impoundments to be included as part of the project;
    (3) The number, type, and rated capacity of any turbines or 
generators, whether existing or proposed, to be included as part of the 
project;
    (4) The number, length, voltage, and interconnections of any primary 
transmission lines, whether existing or proposed, to be included as part 
of the project (see 16 U.S.C. 796(11));
    (5) The specifications of any additional mechanical, electrical, and 
transmission equipment appurtenant to the project; and
    (6) All lands of the United States that are enclosed within the 
project boundary described under paragraph (h) of this section (Exhibit 
G), identified and tabulated by legal subdivisions of a public land 
survey of the affected area or, in the absence of a public land survey, 
by the best available legal description. The tabulation must show the 
total acreage of the lands of the United States within the project 
boundary.
    (c) Exhibit B is a statement of project operation and resource 
utilization. If the project includes more than one dam with associated 
facilities, the information must be provided separately for each such 
discrete development. The exhibit must contain:
    (1) A statement whether operation of the powerplant will be manual 
or automatic, an estimate of the annual plant factor, and a statement of 
how the project will be operated during adverse, mean, and high water 
years;
    (2) An estimate of the dependable capacity and average annual energy 
production in kilowatt-hours (or a mechanical equivalent), supported by 
the following data:
    (i) The minimum, mean, and maximum recorded flows in cubic feet per 
second of the stream or other body of water at the powerplant intake or 
point of diversion, with a specification of any adjustments made for 
evaporation, leakage, minimum flow releases (including duration of 
releases), or other reductions in available flow;

[[Page 114]]

monthly flow duration curves indicating the period of record and the 
gauging stations used in deriving the curves; and a specification of the 
period of critical streamflow used to determine the dependable capacity;
    (ii) An area-capacity curve showing the gross storage capacity and 
usable storage capacity of the impoundment, with a rule curve showing 
the proposed operation of the impoundment and how the usable storage 
capacity is to be utilized;
    (iii) The estimated hydraulic capacity of the powerplant (minimum 
and maximum flow through the powerplant) in cubic feet per second;
    (iv) A tailwater rating curve; and
    (v) A curve showing powerplant capability versus head and specifying 
maximum, normal, and minimum heads;
    (3) A statement, with load curves and tabular data, if necessary, of 
the manner in which the power generated at the project is to be 
utilized, including the amount of power to be used on-site, if any, the 
amount of power to be sold, and the identity of any proposed purchasers; 
and
    (4) A statement of the applicant's plans, if any, for future 
development of the project or of any other existing or proposed water 
power project on the stream or other body of water, indicating the 
approximate location and estimated installed capacity of the proposed 
developments.
    (d) Exhibit C is a construction history and proposed construction 
schedule for the project. The construction history and schedules must 
contain:
    (1) If the application is for an initial license, a tabulated 
chronology of construction for the existing projects structures and 
facilities described under paragraph (b) of this section (Exhibit A), 
specifying for each structure or facility, to the extent possible, the 
actual or approximate dates (approximate dates must be identified as 
such) of:
    (i) Commencement and completion of construction or installation;
    (ii) Commencement of commercial operation; and
    (iii) Any additions or modifications other than routine maintenance; 
and
    (2) If any new development is proposed, a proposed schedule 
describing the necessary work and specifying the intervals following 
issuance of a license when the work would be commenced and completed.
    (e) Exhibit D is a statement of costs and financing. The statement 
must contain:
    (1) If the application is for an initial license, a tabulated 
statement providing the actual or approximate original cost (approximate 
costs must be identified as such) of:
    (i) Any land or water right necessary to the existing project; and
    (ii) Each existing structure and facility described under paragraph 
(b) of this section (Exhibit A).
    (2) If the applicant is a licensee applying for a new license, and 
is not a municipality or a state, an estimate of the amount which would 
be payable if the project were to be taken over pursuant to section 14 
of the Federal Power Act upon expiration of the license in effect [see 
16 U.S.C. 807], including:
    (i) Fair value;
    (ii) Net investment; and
    (iii) Severance damages.
    (3) If the application includes proposals for any new development, a 
statement of estimated costs, including:
    (i) The cost of any land or water rights necessary to the new 
development; and
    (ii) The cost of the new development work, with a specification of:
    (A) Total cost of each major item;
    (B) Indirect construction costs such as costs of construction 
equipment, camps, and commissaries;
    (C) Interest during construction; and
    (D) Overhead, construction, legal expenses, taxes, administrative 
and general expenses, and contingencies.
    (4) A statement of the estimated average annual cost of the total 
project as proposed specifying any projected changes in the costs (life-
cycle costs) over the estimated financing or licensing period if the 
applicant takes such changes into account, including:
    (i) Cost of capital (equity and debt);
    (ii) Local, state, and Federal taxes;
    (iii) Depreciation and amortization;
    (iv) Operation and maintenance expenses, including interim 
replacements, insurance, administrative and

[[Page 115]]

general expenses, and contingencies; and
    (v) The estimated capital cost and estimated annual operation and 
maintenance expense of each proposed environmental measure.
    (5) A statement of the estimated annual value of project power, 
based on a showing of the contract price for sale of power or the 
estimated average annual cost of obtaining an equivalent amount of power 
(capacity and energy) from the lowest cost alternative source, 
specifying any projected changes in the cost of power from that source 
over the estimated financing or licensing period if the applicant takes 
such changes into account.
    (6) A statement specifying the sources and extent of financing and 
annual revenues available to the applicant to meet the costs identified 
in paragraphs (e) (3) and (4) of this section.
    (7) An estimate of the cost to develop the license application;
    (8) The on-peak and off-peak values of project power, and the basis 
for estimating the values, for projects which are proposed to operate in 
a mode other than run-of-river; and
    (9) The estimated average annual increase or decrease in project 
generation, and the estimated average annual increase or decrease of the 
value of project power, due to a change in project operations (i.e., 
minimum bypass flows; limits on reservoir fluctuations).
    (f) Exhibit E is an Environmental Report. Information provided in 
the report must be organized and referenced according to the itemized 
subparagraphs below. See Sec. 4.38 for consultation requirements. The 
Environmental Report must contain the following information, 
commensurate with the scope of the proposed project:
    (1) General description of the locale. The applicant must provide a 
general description of the environment of the project and its immediate 
vicinity. The description must include general information concerning 
climate, topography, wetlands, vegetative cover, land development, 
population size and density, the presence of any floodplain and the 
occurrence of flood events in the vicinity of the project, and any other 
factors important to an understanding of the setting.
    (2) Report on water use and quality. The report must discuss the 
consumptive use of project waters and the impact of the project on water 
quality. The report must be prepared in consultation with the state and 
Federal agencies with responsibility for management of water quality in 
the affected stream or other body of water. Consultation must be 
documented by appending to the report a letter from each agency 
consulted that indicates the nature, extent, and results of the 
consultation. The report must include:
    (i) A description (including specified volume over time) of existing 
and proposed uses of project waters for irrigation, domestic water 
supply, steam-electric plant, industrial, and other consumptive 
purposes;
    (ii) A description of existing water quality in the project 
impoundment and downstream water affected by the project and the 
applicable water quality standards and stream segment classifications;
    (iii) A description of any minimum flow releases specifying the rate 
of flow in cubic feet per second (cfs) and duration, changes in the 
design of project works or in project operation, or other measures 
recommended by the agencies consulted for the purposes of protecting or 
improving water quality, including measures to minimize the short-term 
impacts on water quality of any proposed new development of project 
works (for any dredging or filling, refer to 40 CFR part 230 and 33 CFR 
320.3(f) and 323.3(e)) \1\;
---------------------------------------------------------------------------

    \1\ 33 CFR part 323 was revised at 47 FR 31810, July 22, 1982, and 
Sec. 323.3(e) no longer exists.
---------------------------------------------------------------------------

    (iv) A statement of the existing measures to be continued and new 
measures proposed by the applicant for the purpose of protecting or 
improving water quality, including an explanation of why the applicant 
has rejected any measures recommended by an agency and described under 
paragraph (f)(2)(iii) of this section.
    (v) A description of the continuing impact on water quality of 
continued

[[Page 116]]

operation of the project and the incremental impact of proposed new 
development of project works or changes in project operation; and
    (3) Report on fish, wildlife, and botanical resources. The report 
must discuss fish, wildlife, and botanical resources in the vicinity of 
the project and the impact of the project on those resources. The report 
must be prepared in consultation with any state agency with 
responsibility for fish, wildlife, and botanical resources, the U.S. 
Fish and Wildlife Service, the National Marine Fisheries Service (if the 
project may affect anadromous fish resources subject to that agency's 
jurisdiction), and any other state or Federal agency with managerial 
authority over any part of the project lands. Consultation must be 
documented by appending to the report a letter from each agency 
consulted that indicates the nature, extent, and results of the 
consultation. The report must include:
    (i) A description of the fish, wildlife, and botanical resources of 
the project and its vicinity, and of downstream areas affected by the 
project, including identification of any species listed as threatened or 
endangered by the U.S. Fish and Wildlife Service (See 50 CFR 17.11 and 
17.12);
    (ii) A description of any measures or facilities recommended by the 
agencies consulted for the mitigation of impacts on fish, wildlife, and 
botanical resources, or for the protection or improvement of those 
resources;
    (iii) A statement of any existing measures or facilities to be 
continued or maintained and any measures or facilities proposed by the 
applicant for the mitigation of impacts on fish, wildlife, and botanical 
resources, or for the protection or improvement of such resources, 
including an explanation of why the applicant has rejected any measures 
or facilities recommended by an agency and described under paragraph 
(f)(3)(ii) of this section.
    (iv) A description of any anticipated continuing impact on fish, 
wildlife, and botanical resources of continued operation of the project, 
and the incremental impact of proposed new development of project works 
or changes in project operation; and
    (v) The following materials and information regarding the measures 
and facilities identified under paragraph (f)(3)(iii) of this section:
    (A) Functional design drawings of any fish passage and collection 
facilities, indicating whether the facilities depicted are existing or 
proposed (these drawings must conform to the specifications of Sec. 
4.39 regarding dimensions of full-sized prints, scale, and legibility);
    (B) A description of operation and maintenance procedures for any 
existing or proposed measures or facilities;
    (C) An implementation or construction schedule for any proposed 
measures or facilities, showing the intervals following issuance of a 
license when implementation of the measures or construction of the 
facilities would be commenced and completed;
    (D) An estimate of the costs of construction, operation, and 
maintenance, of any proposed facilities, and of implementation of any 
proposed measures, including a statement of the sources and extent of 
financing; and
    (E) A map or drawing that conforms to the size, scale, and 
legibility requirements of Sec. 4.39 showing by the use of shading, 
cross-hatching, or other symbols the identity and location of any 
measures or facilities, and indicating whether each measure or facility 
is existing or proposed (the map or drawings in this exhibit may be 
consolidated).
    (4) Report on historical and archeological resources. The report 
must discuss the historical and archeological resources in the project 
area and the impact of the project on those resources. The report must 
be prepared in consultation with the State Historic Preservation Officer 
and the National Park Service. Consultation must be documented by 
appending to the report a letter from each agency consulted that 
indicates the nature, extent, and results of the consultation. The 
report must contain:
    (i) Identification of any sites either listed or determined to be 
eligible for inclusion in the National Register of Historic Places that 
are located in the project area, or that would be affected by operation 
of the project or by new

[[Page 117]]

development of project facilities (including facilities proposed in this 
exhibit);
    (ii) A description of any measures recommended by the agencies 
consulted for the purpose of locating, identifying, and salvaging 
historical or archaeological resources that would be affected by 
operation of the project, or by new development of project facilities 
(including facilities proposed in this exhibit), together with a 
statement of what measures the applicant proposes to implement and an 
explanation of why the applicant rejects any measures recommended by an 
agency.
    (iii) The following materials and information regarding the survey 
and salvage activities described under paragraph (f)(4)(ii) of this 
section:
    (A) A schedule for the activities, showing the intervals following 
issuance of a license when the activities would be commenced and 
completed; and
    (B) An estimate of the costs of the activities, including a 
statement of the sources and extent of financing.
    (5) Report on recreational resources. The report must discuss 
existing and proposed recreational facilities and opportunities at the 
project. The report must be prepared in consultation with local, state, 
and regional recreation agencies and planning commissions, the National 
Park Service, and any other state or Federal agency with managerial 
authority over any part of the project lands. Consultation must be 
documented by appending to the report a letter from each agency 
consulted indicating the nature, extent, and results of the 
consultation. The report must contain:
    (i) A description of any existing recreational facilities at the 
project, indicating whether the facilities are available for public use;
    (ii) An estimate of existing and potential recreational use of the 
project area, in daytime and overnight visits;
    (iii) A description of any measures or facilities recommended by the 
agencies consulted for the purpose of creating, preserving, or enhancing 
recreational opportunities at the project and in its vicinity (including 
opportunities for the handicapped), and for the purpose of ensuring the 
safety of the public in its use of project lands and waters;
    (iv) A statement of the existing measures or facilities to be 
continued or maintained and the new measures or facilities proposed by 
the applicant for the purpose of creating, preserving, or enhancing 
recreational opportunities at the project and in its vicinity, and for 
the purpose of ensuring the safety of the public in its use of project 
lands and waters, including an explanation of why the applicant has 
rejected any measures or facilities recommended by an agency and 
described under paragraph (f)(5)(iii) of this section; and
    (v) The following materials and information regarding the measures 
and facilities identified under paragraphs (f)(5) (i) and (iv) of this 
section:
    (A) Identification of the entities responsible for implementing, 
constructing, operating, or maintaining any existing or proposed 
measures or facilities;
    (B) A schedule showing the intervals following issuance of a license 
at which implementation of the measures or construction of the 
facilities would be commenced and completed;
    (C) An estimate of the costs of construction, operation, and 
maintenance of any proposed facilities, including a statement of the 
sources and extent of financing;
    (D) A map or drawing that conforms to the size, scale, and 
legibility requirements of Sec. 4.39 showing by the use of shading, 
cross-hatching, or other symbols the identity and location of any 
facilities, and indicating whether each facility is existing or proposed 
(the maps or drawings in this exhibit may be consolidated); and
    (vi) A description of any areas within or in the vicinity of the 
proposed project boundary that are included in, or have been designated 
for study for inclusion in, the National Wild and Scenic Rivers System, 
or that have been designated as wilderness area, recommended for such 
designation, or designated as a wilderness study area under the 
Wilderness Act.
    (6) Report on land management and aesthetics. The report must 
discuss the

[[Page 118]]

management of land within the proposed project boundary, including 
wetlands and floodplains, and the protection of the recreational and 
scenic values of the project. The report must be prepared following 
consultation with local and state zoning and land management authorities 
and any Federal or state agency with managerial authority over any part 
of the project lands. Consultation must be documented by appending to 
the report a letter from each agency consulted indicating the nature, 
extent, and results of the consultation. The report must contain:
    (i) A description of existing development and use of project lands 
and all other lands abutting the project impoundment;
    (ii) A description of the measures proposed by the applicant to 
ensure that any proposed project works, rights-of-way, access roads, and 
other topographic alterations blend, to the extent possible, with the 
surrounding environment; (see, e.g., 44 F.P.C. 1496, et seq.);
    (iii) A description of wetlands or floodplains within, or adjacent 
to, the project boundary, any short-term or long-term impacts of the 
project on those wetlands or floodplains, and any mitigative measures in 
the construction or operation of the project that minimize any adverse 
impacts on the wetlands or floodplains;
    (iv) A statement, including an analysis of costs and other 
constraints, of the applicant's ability to provide a buffer zone around 
all or any part of the impoundment, for the purpose of ensuring public 
access to project lands and waters and protecting the recreational and 
aesthetic values of the impoundment and its shoreline;
    (v) A description of the applicant's policy, if any, with regard to 
permitting development of piers, docks, boat landings, bulkheads, and 
other shoreline facilities on project lands and waters; and
    (vi) Maps or drawings that conform to the size, scale and legibility 
requirements of Sec. 4.39, or photographs, sufficient to show the 
location and nature of the measures proposed under paragraph (f)(6)(ii) 
of this section (maps or drawings in this exhibit may be consolidated).
    (7) List of literature. The report must include a list of all 
publications, reports, and other literature which were cited or 
otherwise utilized in the preparation of any part of the environmental 
report.
    (g) Exhibit F. See Sec. 4.41(g) of this chapter.
    (h) Exhibit G. See Sec. 4.41(h) of this chapter.

[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 123, 46 FR 
9029, Jan. 28, 1981; Order 183, 46 FR 55251, Nov. 9, 1981; Order 184, 46 
FR 55942, Nov. 13, 1981; Order 413, 50 FR 11684, Mar. 25, 1985; Order 
464, 52 FR 5449, Feb. 23, 1987; Order 540, 57 FR 21737, May 22, 1992; 
Order 2002, 68 FR 51120, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]



  Subpart G_Application for License for Minor Water Power Projects and 
             Major Water Power Projects 5 Megawatts or Less



Sec. 4.60  Applicability and notice to agencies.

    (a) Applicability. The provisions of this subpart apply to any 
application for an initial license or a new license for:
    (1) A minor water power project, as defined in Sec. 4.30(b)(17);
    (2) Any major project--existing dam, as defined in Sec. 
4.30(b)(16), that has a total installed capacity of 5 MW or less; or
    (3) Any major unconstructed project or major modified project, as 
defined in Sec. 4.30 (b) (15) and (14) respectively, that has a total 
installed capacity of 5 MW or less.
    (b) Notice to agencies. The Commission will supply interested 
Federal, state, and local agencies with notice of any application for 
license for a water power project 5 MW or less and request comment on 
the application. Copies of the application will be available for 
inspection at the Commission's Public Reference Room. The applicant 
shall also furnish copies of the filed application to any Federal, 
state, or local agency that so requests.

[[Page 119]]

    (c) Unless an applicant for a license for a minor water power 
project requests in its application that the Commission apply the 
following provisions of Part I of the Federal Power Act when it issues a 
minor license for a project, the Commission, unless it determines it 
would not be in the public interest to do so, will waive:
    (1) Section 4(b), insofar as it requires a licensee to file a 
statement showing the actual legitimate costs of construction of a 
project;
    (2) Section 4(e), insofar as it relates to approval by the Chief of 
Engineers and the Secretary of the Army of plans affecting navigation;
    (3) Section 6, insofar as it relates to the acceptance and 
expression in the license of terms and conditions of the Federal Power 
Act that are waived in the licensing order;
    (4) Section 10(c), insofar as it relates to a licensee's maintenance 
of depreciation reserves;
    (5) Sections 10(d) and 10(f);
    (6) Section 14, with the exception of the right of the United States 
or any state or municipality to take over, maintain, and operate a 
project through condemnation proceedings; and
    (7) Sections 15, 16, 19, 20 and 22.

[Order 413, 50 FR 11685, Mar. 25, 1985, as amended by Order 513, 54 FR 
23806, June 2, 1989; Order 2002, 68 FR 51120, Aug. 25, 2003]



Sec. 4.61  Contents of application.

    (a) General instructions--(1) Entry upon land. No work may be 
started on any proposed project works until the applicant receives a 
signed license from the Commission. Acceptance of an application does 
not authorize entry upon public lands or reservations of the United 
States for any purpose. The applicant should determine whether any 
additional Federal, state, or local permits are required.
    (2) Exhibits F and G must be submitted on separate drawings. 
Drawings for Exhibits F and G must have identifying title blocks and 
bear the following certification: ``This drawing is a part of the 
application for license made by the undersigned this -------------- day 
of --------------, 19----.''
    (3) Each application for a license for a water power project 5 
megawatts or less must include the information requested in the initial 
statement and lettered exhibits described by paragraphs (b) through (f) 
of this section, and must be provided in the form specified. The 
Commission reserves the right to require additional information, or 
another filing procedure, if data provided indicate such action to be 
appropriate.
    (b) Initial statement.

             Before the Federal Energy Regulatory Commission

Application for License for a [Minor Water Power Project, or Major Water 
           Power Project, 5 Megawatts or Less, as Appropriate]

    (1) ---------- (Name of Applicant) applies to the Federal Energy 
Regulatory Commission for ---------- (license or new license, as 
appropriate) for the ---------- (name of project) water power project, 
as described hereinafter. (Specify any previous FERC project number 
designation.)
    (2) The location of the project is:
State or territory:_____________________________________________________
County:_________________________________________________________________
Township or nearby town:________________________________________________
Stream or other body of water:__________________________________________
    (3) The exact name, address, and telephone number of the applicant 
are:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (4) The exact name, address, and telephone number of each person 
authorized to act as agent for the applicant in this application, if 
applicable, are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (5) The applicant is a ------ [citizen of the United States, 
association of citizens of the United States, domestic corporation, 
municipality, or State, as appropriate] and (is/is not) claiming 
preference under section 7(a) of the Federal Power Act. See 16 U.S.C. 
796.
    (6)(i) The statutory or regulatory requirements of the state(s) in 
which the project would be located that affect the project as proposed 
with respect to bed and banks and the appropriation, diversion, and use 
of water for power purposes, and with respect to the right to engage in 
the business of developing, transmitting, and distributing power and in 
any other business necessary to accomplish the purposes of the license 
under the Federal Power Act, are: [provide citation and brief 
identification of the nature of each requirement; if the applicant is a 
municipality, the applicant must submit copies of applicable state or 
local laws or a municipal charter or, if such laws or documents are not

[[Page 120]]

clear, any other appropriate legal authority, evidencing that the 
municipality is competent under such laws to engage in the business of 
developing, transmitting, utilizing, or distributing power.]
    (ii) The steps which the applicant has taken or plans to take to 
comply with each of the laws cited above are: [provide brief description 
for each requirement]
    (7) Brief project description
    (i) Proposed installed generating capacity ------ MW.
    (ii) Check appropriate box:
    [ballot] existing dam [ballot] unconstructed dam
    [ballot] existing dam, major modified project (see Sec. 
4.30(b)(14))
    (8) Lands of the United States affected (shown on Exhibit G):

 
                                                (Name)           (Acres)
 
  (i) National Forest................  ........................  .......
  (ii) Indian Reservation............  ........................  .......
  (iii) Public Lands Under             ........................  .......
   Jurisdiction of.
  (iv) Other.........................  ........................  .......
  (v) Total U.S. Lands...............  ........................  .......
 

    (vi) Check appropriate box:
 [ballot] Surveyed land [ballot] Unsurveyed land
    (9) Construction of the project is planned to start within ---- 
months, and is planned to be completed within ---- months, from the date 
of issuance of license.

    (c) Exhibit A is a description of the project and the proposed mode 
of operation.
    (1) The exhibit must include, in tabular form if possible, as 
appropriate:
    (i) The number of generating units, including auxiliary units, the 
capacity of each unit, and provisions, if any, for future units;
    (ii) The type of hydraulic turbine(s);
    (iii) A description of how the plant is to be operated, manual or 
automatic, and whether the plant is to be used for peaking;
    (iv) The estimated average annual generation in kilowatt-hours or 
mechanical energy equivalent;
    (v) The estimated average head on the plant;
    (vi) The reservoir surface area in acres and, if known, the net and 
gross storage capacity;
    (vii) The estimated minimum and maximum hydraulic capacity of the 
plant (flow through the plant) in cubic feet per second and estimated 
average flow of the stream or water body at the plant or point of 
diversion; for projects with installed capacity of more than 1.5 
megawatts, monthly flow duration curves and a description of the 
drainage area for the project site must be provided;
    (viii) Sizes, capacities, and construction materials, as 
appropriate, of pipelines, ditches, flumes, canals, intake facilities, 
powerhouses, dams, transmission lines, and other appurtenances; and
    (ix) The estimated cost of the project.
    (x) The estimated capital costs and estimated annual operation and 
maintenance expense of each proposed environmental measure.
    (2) State the purposes of project (for example, use of power 
output).
    (3) An estimate of the cost to develop the license application; and
    (4) The on-peak and off-peak values of project power, and the basis 
for estimating the values, for projects which are proposed to operate in 
a mode other than run-of-river.
    (5) The estimated average annual increase or decrease in project 
generation, and the estimated average annual increase or decrease of the 
value of project power due to a change in project operations (i.e., 
minimum bypass flows, limiting reservoir fluctuations) for an 
application for a new license;
    (6) The remaining undepreciated net investment, or book value of the 
project;
    (7) The annual operation and maintenance expenses, including 
insurance, and administrative and general costs;
    (8) A detailed single-line electrical diagram;
    (9) A statement of measures taken or planned to ensure safe 
management, operation, and maintenance of the project.
    (d) Exhibit E is an Environmental Report.
    (1) For major unconstructed and major modified projects 5 MW or 
less. Any application must contain an Exhibit E conforming with the data 
and consultation requirements of Sec. 4.41(f) of this chapter, if the 
application is for license for a water power project which has or is 
proposed to have a total installed generating capacity greater

[[Page 121]]

than 1.5 MW but not greater than 5 MW, and which:
    (i) Would use the water power potential of a dam and impoundment 
which, at the time of application, has not been constructed (see Sec. 
4.30(b)(15)); or
    (ii) Involves any repair, modification or reconstruction of an 
existing dam that would result in a significant change in the normal 
maximum surface area or elevation of an existing impoundment or involves 
any change in existing project works or operations that would result in 
a significant environmental impact (see Sec. 4.30(b)(14)).
    (2) For minor projects and major projects at existing dams 5 MW or 
less. An application for license for either a minor water power project 
with a total proposed installed generating capacity of 1.5 MW or less or 
a major project--existing dam with a proposed total installed capacity 
of 5 MW or less must contain an Exhibit E under this subparagraph. See 
Sec. 4.38 for consultation requirements. The Environmental Report must 
contain the following information:
    (i) A description, including any maps or photographs which the 
applicant considers appropriate, of the environmental setting of the 
project, including vegetative cover, fish and wildlife resources, water 
quality and quantity, land and water uses, recreational uses, historical 
and archeological resources, and scenic and aesthetic resources. The 
report must include a discussion of endangered or threatened plant and 
animal species, any critical habitats, and any sites included in, or 
eligible for inclusion in, the National Register of Historic Places. The 
applicant may obtain assistance in the preparation of this information 
from state natural resources agencies, the state historic preservation 
officer, and from local offices of Federal natural resources agencies.
    (ii) A description of the expected environmental impacts from 
proposed construction or development and the proposed operation of the 
power project, including any impacts from any proposed changes in the 
capacity and mode of operation of the project if it is already 
generating electric power, and an explanation of the specific measures 
proposed by the applicant, the agencies, and others to protect and 
enhance environmental resources and values and to mitigate adverse 
impacts of the project on such resources. The applicant must explain its 
reasons for not undertaking any measures proposed by any agency 
consulted.
    (iii) A description of the steps taken by the applicant in 
consulting with Federal, state, and local agencies with expertise in 
environmental matters during the preparation of this exhibit prior to 
filing the application for license with the Commission. In this report, 
the applicant must:
    (A) Indicate which agencies were consulted during the preparation of 
the environmental report and provide copies of letters or other 
documentation showing that the applicant consulted or attempted to 
consult with each of the relevant agencies (specifying each agency) 
before filing the application, including any terms or conditions of 
license that those agencies have determined are appropriate to prevent 
loss of, or damage to, natural resources; and
    (B) List those agencies that were provided copies of the application 
as filed with the Commission, the date or dates provided, and copies of 
any letters that may be received from agencies commenting on the 
application.
    (iv) Any additional information the applicant considers important.
    (e) Exhibit F. See Sec. 4.41(g) of this chapter.
    (f) Exhibit G. See Sec. 4.41(h) of this chapter.

[Order 185, 46 FR 55949, Nov. 13, 1981, as amended by Order 413, 50 FR 
11685, Mar. 25, 1985; Order 464, 52 FR 5449, Feb. 23, 1987; Order 513, 
54 FR 23806, June 2, 1989; Order 2002, 68 FR 51120, Aug. 25, 2003; 68 FR 
61742, Oct. 30, 2003]



      Subpart H_Application for License for Transmission Line Only



Sec. 4.70  Applicability.

    This subpart applies to any application for license issued solely 
for a transmission line that transmits power from a licensed water power 
project to

[[Page 122]]

the point of junction with the distribution system or with the 
interconnected primary transmission system.

[Order 184, 46 FR 55942, Nov. 13, 1981, as amended by Order 2002, 68 FR 
51120, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]



Sec. 4.71  Contents of application.

    An application for license for transmission line only must contain 
the following information in the form specified.
    (a) Initial statement.

             Before the Federal Energy Regulation Commission

           Application for License for Transmission Line Only

    (1) [Name of applicant] applies to the Federal Energy Regulatory 
Commission for a [license or new license, as appropriate] for the [name 
of project] transmission line only, as described in the attached 
exhibits, that is connected with FERC Project No. ------, for which a 
license [was issued, or application was made, as appropriate] on the --
------------ day of --------------, 19----.
    (2) The location of the transmission line would be:
State or territory:_____________________________________________________
County:_________________________________________________________________
Township or nearby town:________________________________________________
    (3) The proposed use or market for the power to be transmitted.
    (4) The exact name, business address, and telephone number of the 
applicant are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (5) The applicant is a [citizen of the United States, association of 
citizens of the United States, domestic corporation, municipality, or 
State, as appropriate] and (is/is not) claiming preference under section 
7(a) of the Federal Power Act. See 16 U.S.C. 796.
    (6)(i) [For any applicant which, at the time of application for 
license for transmission line only, is a non-licensee.] The statutory or 
regulatory requirements of the state(s) in which the project would be 
located and that affect the project as proposed with respect to bed and 
banks and to the appropriation, diversion, and use of water for power 
purposes, and with respect to the right to engage in the business of 
developing, transmitting, and distribution power and in any other 
business necessary to accomplish the purposes of the license under the 
Federal Power Act, are: [provide citation and brief identification of 
the nature of each requirement; if the applicant is a municipality, the 
applicant must submit copies of applicable state or local laws or a 
municipal charter or, if such laws or documents are not clear, other 
appropriate legal authority, evidencing that the municipality is 
competent under such laws to engage in the business of developing, 
transmitting, utilizing, or distributing power.]
    (ii) [For any applicant which, at the time of application for 
license for transmission line only, is a licensee.] The statutory or 
regulatory requirements of the state(s) in which the transmission line 
would be located and that affect the project as proposed with respect to 
bed and banks and to the appropriation, diversion, and use of water for 
power purposes, are: [provide citations and brief identification of the 
nature of each requirement.]
    (iii) The steps which the applicant has taken or plans to take to 
comply with each of the laws cited above are: [provide brief 
descriptions for each law.]

    (b) Required exhibits. The application must contain the following 
exhibits, as appropriate:
    (1) For any transmission line that, at the time the application is 
filed, is not constructed and is proposed to be connected to a licensed 
water power project with an installed generating capacity of more than 5 
MW--Exhibits A, B, C, D, E, F, and G under Sec. 4.41 of this chapter;
    (2) For any transmission line that, at the time the application is 
filed, is not constructed and is proposed to be connected to a licensed 
water power project with an installed generating capacity of 5 MW or 
less--Exhibits E, F, and G under Sec. 4.61 of this chapter; and
    (3) For any transmission line that, at the time the application is 
filed, has been constructed and is proposed to be connected to any 
licensed water power project--Exhibits E, F, and G under Sec. 4.61 of 
this chapter.

[Order 184, 46 FR 55942, Nov. 13, 1981, as amended by Order 413, 50 FR 
11685, Mar. 25, 1985]



Subpart I_Application for Preliminary Permit; Amendment and Cancellation 
                          of Preliminary Permit

    Authority: Federal Power Act, as amended 16 U.S.C. 792-828c; 
Department of Energy Organization Act, 42 U.S.C. 7101-7352; E.O. 12009, 
42 FR 46267; Public Utility Regulatory Policies Act of 1978, 16 U.S.C. 
2601-2645, unless otherwise noted.

[[Page 123]]



Sec. 4.80  Applicability.

    Sections 4.80 through 4.83 pertain to preliminary permits under Part 
I of the Federal Power Act. The sole purpose of a preliminary permit is 
to secure priority of application for a license for a water power 
project under Part I of the Federal Power Act while the permittee 
obtains the data and performs the acts required to determine the 
feasibility of the project and to support an application for a license.

[Order 54, 44 FR 61336, Oct. 25, 1979, as amended by Order 413, 50 FR 
11685, Mar. 25, 1985]



Sec. 4.81  Contents of application.

    Each application for a preliminary permit must include the following 
initial statement and numbered exhibits containing the information and 
documents specified:
    (a) Initial statement:

             Before the Federal Energy Regulatory Commission

                   Application for Preliminary Permit

    (1) [Name of applicant] applies to the Federal Energy Regulatory 
Commission for a preliminary permit for the proposed [name of project] 
water power project, as described in the attached exhibits. This 
application is made in order that the applicant may secure and maintain 
priority of application for a license for the project under Part I of 
the Federal Power Act while obtaining the data and performing the acts 
required to determine the feasibility of the project and to support an 
application for a license.
    (2) The location of the proposed project is:

State or territory:_____________________________________________________
County:_________________________________________________________________
Township or nearby town:________________________________________________
Stream or other body of water:__________________________________________
________________________________________________________________________
    (3) The exact name, business address, and telephone number of the 
applicant are:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

    The exact name and business address of each person authorized to act 
as agent for the applicant in this application are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (4) [Name of applicant] is a [citizen, association, citizens, 
domestic corporation, municipality, or State, as appropriate] and (is/is 
not) claiming preference under section 7(a) of the Federal Power Act. 
[If the applicant is a municipality, the applicant must submit copies of 
applicable state or local laws or a municipal charter or, if such laws 
or documents are not clear, any other appropriate legal authority, 
evidencing that the municipality is competent under such laws to engage 
in the business of development, transmitting, utilizing, or distributing 
power].
    (5) The proposed term of the requested permit is [period not to 
exceed 36 months].
    (6) If there is any existing dam or other project facility, the 
applicant must provide the name and address of the owner of the dam and 
facility. If the dam is federally owned or operated, provide the name of 
the agency.

    (b) Exhibit 1 must contain a description of the proposed project, 
specifying and including, to the extent possible:
    (1) The number, physical composition, dimensions, general 
configuration and, where applicable, age and condition, of any dams, 
spillways, penstocks, powerhouses, tailraces, or other structures, 
whether existing or proposed, that would be part of the project;
    (2) The estimated number, surface area, storage capacity, and normal 
maximum surface elevation (mean sea level) of any reservoirs, whether 
existing or proposed, that would be part of the project;
    (3) The estimated number, length, voltage, interconnections, and, 
where applicable, age and condition, of any primary transmission lines 
whether existing or proposed, that would be part of the project [see 16 
U.S.C. 796(11)];
    (4) The total estimated average annual energy production and 
installed capacity (provide only one energy and capacity value), the 
hydraulic head for estimating capacity and energy output, and the 
estimated number, rated capacity, and, where applicable, the age and 
condition, of any turbines and generators, whether existing or proposed, 
that would be part of the project works;
    (5) All lands of the United States that are enclosed within the 
proposed project boundary described under paragraph (e)(3) of this 
section, identified and tabulated on a separate sheet by legal 
subdivisions of a public land survey of the affected area, if available. 
If the project boundary includes lands of the United States, such lands 
must be identified on a completed land description form, provided by the 
Commission.

[[Page 124]]

The project location must identify any Federal reservation, Federal 
tracts, and townships of the public land surveys (or official 
protractions thereof if unsurveyed). A copy of the form must also be 
sent to the Bureau of Land Management state office where the project is 
located;
    (6) Any other information demonstrating in what manner the proposed 
project would develop, conserve, and utilize in the public interest the 
water resources of the region.
    (c) Exhibit 2 is a description of studies conducted or to be 
conducted with respect to the proposed project, including field studies. 
Exhibit 2 must supply the following information:
    (1) General requirement. For any proposed project, a study plan 
containing a description of:
    (i) Any studies, investigations, tests, or surveys that are proposed 
to be carried out, and any that have already taken place, for the 
purposes of determining the technical, economic, and financial 
feasibility of the proposed project, taking into consideration its 
environmental impacts, and of preparing an application for a license for 
the project; and
    (ii) The approximate locations and nature of any new roads that 
would be built for the purpose of conducting the studies; and
    (2) Work plan for new dam construction. For any development within 
the project that would entail new dam construction, a work plan and 
schedule containing:
    (i) A description, including the approximate location, of any field 
study, test, or other activity that may alter or disturb lands or waters 
in the vicinity of the proposed project, including floodplains and 
wetlands; measures that would be taken to minimize any such disturbance; 
and measures that would be taken to restore the altered or disturbed 
areas; and
    (ii) A proposed schedule (a chart or graph may be used), the total 
duration of which does not exceed the proposed term of the permit, 
showing the intervals at which the studies, investigations, tests, and 
surveys, identified under this paragraph are proposed to be completed.
    (iii) For purposes of this paragraph, new dam construction means any 
dam construction the studies for which would require test pits, borings, 
or other foundation exploration in the field.
    (3) Waiver. The Commission may waive the requirements of paragraph 
(c)(2) pursuant to Sec. 385.207 of this chapter, upon a showing by the 
applicant that the field studies, tests, and other activities to be 
conducted under the permit would not adversely affect cultural resources 
or endangered species and would cause only minor alterations or 
disturbances of lands and waters, and that any land altered or disturbed 
would be adequately restored.
    (4) Exhibit 2 must contain a statement of costs and financing, 
specifying and including, to the extent possible:
    (i) The estimated costs of carrying out or preparing the studies, 
investigations, tests, surveys, maps, plans or specifications identified 
under paragraph (c) of this section;
    (ii) The expected sources and extent of financing available to the 
applicant to carry out or prepare the studies, investigations, tests, 
surveys, maps, plans, or specifications identified under paragraph (c) 
of this section; and
    (d) Exhibit 3 must include a map or series of maps, to be prepared 
on United States Geological Survey topographic quadrangle sheets or 
similar topographic maps of a State agency, if available. The maps need 
not conform to the precise specifications of Sec. 4.39 (a) and (b). If 
the scale of any base map is not sufficient to show clearly and legibly 
all of the information required by this paragraph, the maps submitted 
must be enlarged to a scale that is adequate for that purpose. (If 
Exhibit 4 comprises a series of maps, it must also include an index 
sheet showing, by outline, the parts of the entire project covered by 
each map of the series.) The maps must show:
    (1) The location of the project as a whole with reference to the 
affected stream or other body of water and, if possible, to a nearby 
town or any permanent monuments or objects that can be noted on the maps 
and recognized in the field;
    (2) The relative locations and physical interrelationships of the 
principal

[[Page 125]]

project features identified under paragraph (b) of this section;
    (3) A proposed boundary for the project, enclosing:
    (i) All principal project features identified under paragraph (b) of 
this section, including but not limited to any dam, reservoir, water 
conveyance facilities, powerplant, transmission lines, and other 
appurtenances; if the project is located at an existing Federal dam, the 
Federal dam and impoundment must be shown, but may not be included 
within the project boundary;
    (ii) Any non-Federal lands and any public lands or reservations of 
the United States [see 16 U.S.C. 796 (1) and (2)] necessary for the 
purposes of the project. To the extent that those public lands or 
reservations are covered by a public land survey, the project boundary 
must enclose each of and only the smallest legal subdivisions (quarter-
quarter section, lots, or other subdivisions, identified on the map by 
subdivision) that may be occupied in whole or in part by the project.
    (4) Areas within or in the vicinity of the proposed project boundary 
which are included in or have been designated for study for inclusion in 
the National Wild and Scenic Rivers System; and
    (5) Areas within the project boundary that, under the provisions of 
the Wilderness Act, have been:
    (i) Designated as wilderness area;
    (ii) Recommended for designation as wilderness area; or
    (iii) Designated as wilderness study area.

(Federal Power Act, as amended, 16 U.S.C. 792-828c (1976); Department of 
Energy Organization Act, 42 U.S.C. 7101-7352 (Supp. IV 1980); E.O. 
12009, 3 CFR part 142 (1978); 5 U.S.C. 553 (Supp. IV 1980))

[Order 54, 44 FR 61336, Oct. 25, 1979, as amended by Order 123, 46 FR 
9029, Jan. 28, 1981; 46 FR 11811, Feb. 11, 1981; Order 225, 47 FR 19056, 
May 3, 1982; Order 413, 50 FR 11685, Mar. 25, 1985; Order 2002, 68 FR 
51120, Aug. 25, 2003; Order 655, 70 FR 33828, June 10, 2005]



Sec. 4.82  Amendments.

    (a) Any permittee may file an application for amendment of its 
permit, including any extension of the term of the permit that would not 
cause the total term to exceed three years. (Transfer of a permit is 
prohibited by section 5 of the Federal Power Act.) Each application for 
amendment of a permit must conform to any relevant requirements of Sec. 
4.81 (b), (c), (d), and (e).
    (b) If an application for amendment of a preliminary permit requests 
any material change in the proposed project, public notice of the 
application will be issued as required in Sec. 4.32(d)(2)(i).
    (c) If an application to extend the term of a permit is submitted 
not less than 30 days prior to the termination of the permit, the permit 
term will be automatically extended (not to exceed a total term for the 
permit of three years) until the Commission acts on the application for 
an extension. The Commission will not accept extension requests that are 
filed less than 30 days prior to the termination of the permit.

[Order 413, 50 FR 11685, Mar. 25, 1985, as amended by Order 499, 53 FR 
27002, July 18, 1988]



Sec. 4.83  Cancellation and loss of priority.

    (a) The Commission may cancel a preliminary permit after notice and 
opportunity for hearing if the permittee fails to comply with the 
specific terms and conditions of the permit. The Commission may also 
cancel a permit for other good cause shown after notice and opportunity 
for hearing. Cancellation of a permit will result in loss of the 
permittee's priority of application for a license for the proposed 
project.
    (b) Failure of a permittee to file an acceptable application for a 
license before the permit expires will result in loss of the permittee's 
priority of application for a license for the proposed project.

[Order 413, 50 FR 11686, Mar. 25, 1985]



Sec. 4.84  Surrender of permit.

    A permittee must submit a petition to the Commission before the 
permittee may voluntarily surrender its permit. Unless the Commission 
issues an order to the contrary, the permit will remain in effect 
through the thirtieth day after the Commission issues a public notice of 
receipt of the petition.

[Order 413, 50 FR 11686, Mar. 25, 1985]

[[Page 126]]



      Subpart J_Exemption of Small Conduit Hydroelectric Facilities



Sec. 4.90  Applicability and purpose.

    This subpart implements section 30 of the Federal Power Act and 
provides procedures for obtaining an exemption for constructed or 
unconstructed small conduit hydroelectric facilities, as defined in 
Sec. 4.30(b)(28), from all or part of the requirements of Part I of the 
Federal Power Act, including licensing, and the regulations issued under 
Part I.

[Order 76, 45 FR 28090, Apr. 28, 1980, as amended by Order 413, 50 FR 
11686, Mar. 25, 1985; Order 2002, 68 FR 51121, Aug. 25, 2003]



Sec. 4.91  [Reserved]



Sec. 4.92  Contents of exemption application.

    (a) An application for exemption for this subpart must include:
    (1) An introductory statement, including a declaration that the 
facility for which application is made meets the requirements of Sec. 
4.30(b)(28), the facility qualifies but for the discharge requirement of 
Sec. 4.30(b)(28)(v), the introductory statement must identify that fact 
and state that the application is accompanied by a petition for waiver 
of Sec. 4.30(b)(28)(v), filed pursuant to Sec. 385.207 of this 
chapter);
    (2) Exhibits A, E, F, and G.
    (3) An appendix containing documentary evidence showing that the 
applicant has the real property interests required under Sec. 4.31(b); 
and
    (4) Identification of all Indian tribes that may be affected by the 
project.
    (b) Introductory Statement. The introductory statement must be set 
forth in the following format:

             Before the Federal Energy Regulatory Commission

   Application for Exemption for Small Conduit Hydroelectric Facility

    [Name of applicant] applies to the Federal Energy Regulatory 
Commission for an exemption for the [name of facility], a small conduit 
hydroelectric facility that meets the requirements of [insert the 
following language, as appropriate: ``Sec. 4.30(b)(28) of this 
subpart'' or ``Sec. 4.30(b)(28) of this subpart, except paragraph 
(b)(26)(v)''], from certain provisions of Part I of the Federal Power 
Act.

The location of the facility is:
State or Territory:_____________________________________________________

County:_________________________________________________________________

Township or nearby town:________________________________________________

The exact name and business address of each applicant is:

________________________________________________________________________

The exact name and business address of each person authorized to act as 
agent for the applicant in this application is:

________________________________________________________________________

    [Name of applicant] is [a citizen of the United States, an 
association of citizens of the United States, a municipality, State, or 
a corporation incorporated under the laws of (specify the United States 
or the state of incorporation, as appropriate), as appropriate].
    The provisions of Part I of the Federal Power Act for which 
exemption is requested are:
    [List here all sections or subsections for which exemption is 
requested.]
    [If the facility does not meet the requirement of Sec. 
4.30(b)(28)(v), add the following sentence: ``This application is 
accompanied by a petition for waiver of Sec. 4.30(b)(28)(v), submitted 
pursuant to 18 CFR 385.207.'']

    (c) Exhibit A. Exhibit A must describe the small conduit 
hydroelectric facility and proposed mode of operation with appropriate 
references to Exhibits F and G. To the extent feasible the information 
in this exhibit may be submitted in tabular form. The following 
information must be included:
    (1) A brief description of any conduits and associated consumptive 
water supply facilities, intake facilities, powerhouses, and any other 
structures associated with the facility.
    (2) The proximate natural sources of water that supply the related 
conduit.
    (3) The purposes for which the conduit is used.
    (4) The number of generating units, including auxiliary units, the 
capacity of each unit, and provisions, if any, for future units.
    (5) The type of each hydraulic turbine.
    (6) A description of how the plant is to be operated, manually or 
automatically, and whether the plant is to be used for peaking.
    (7) Estimations of:
    (i) The average annual generation in kilowatt hours;
    (ii) The average head of the plant;

[[Page 127]]

    (iii) The hydraulic capacity of the plant (flow through the plant) 
in cubic feet per second;
    (iv) The average flow of the conduit at the plant or point of 
diversion (using best available data and explaining the sources of the 
data and the method of calculation); and
    (v) The average amount of the flow described in paragraph (c)(7)(iv) 
of this section available for power generation.
    (8) The planned date for beginning construction of the facility.
    (9) If the hydroelectric facility discharges directly into a natural 
body of water and a petition for waiver of Sec. 4.30(b)(28)(v) has not 
been submitted, evidence that a quantity of water equal to or greater 
than the quantity discharged from the hydroelectric facility is 
withdrawn from that water body downstream into a conduit that is part of 
the same water supply system as the conduit on which the hydroelectric 
facility is located.
    (10) If the hydroelectric facility discharges directly to a point of 
agricultural, municipal, or industrial consumption, a description of the 
nature and location of that point of consumption.
    (11) A description of the nature and extent of any construction of a 
dam that would occur in association with construction of the proposed 
small conduit hydroelectric facility, including a statement of the 
normal maximum surface area and normal maximum surface elevation of any 
existing impoundment before and after that construction; and any 
evidence that the construction would occur for agricultural, municipal, 
or industrial consumptive purposes even if hydroelectric generating 
facilities were not installed.
    (d) Exhibit G. Exhibit G is a map of the project and boundary and 
must conform to the specifications of Sec. 4.41(h) of this chapter.
    (e) Exhibit E. This exhibit is an Environmental Report. It must be 
prepared pursuant to Sec. 4.38 and must include the following 
information, commensurate with the scope and environmental impact of the 
facility's construction and operation:
    (1) A description of the environmental setting in the vicinity of 
the facility, including vegetative cover, fish and wildlife resources, 
water quality and quantity, land and water uses, recreational use, 
socio-economic conditions, historical and archeological resources, and 
visual resources. The report must give special attention to endangered 
or threatened plant and animal species, critical habitats, and sites 
eligible for or included on the National Register of Historic Places. 
The applicant may obtain assistance in the preparation of this 
information from State natural resources agencies, the State historic 
preservation officer, and from local offices of Federal natural 
resources agencies.
    (2) A description of the expected environmental impacts resulting 
from the continued operation of an existing small conduit hydroelectric 
facility, or from the construction and operation of a proposed small 
conduit hydroelectric facility, including a discussion of the specific 
measures proposed by the applicant and others to protect and enhance 
environmental resources and to mitigate adverse impacts of the facility 
on them.
    (3) A description of alternative means of obtaining an amount of 
power equivalent to that provided by the proposed or existing facility.
    (4) Any additional information the applicant considers important.
    (f) Exhibit F. Exhibit F is a set of drawings showing the structures 
and equipment of the small conduit hydroelectric facility and must 
conform to the specifications of Sec. 4.41(g) of this chapter.

[Order 76, 45 FR 28090, Apr. 28, 1980, as amended by Order 413, 50 FR 
11686, Mar. 25, 1985; Order 533, 56 FR 23153, May 20, 1991; Order 2002, 
68 FR 51121, Aug. 25, 2003]



Sec. 4.93  Action on exemption applications.

    (a) An application for exemption that does not meet the eligibility 
requirements of Sec. 4.30(b)(28)(v) may be accepted, provided the 
application has been accompanied by a request for waiver under Sec. 
4.92(a)(1) and the waiver request has not been denied. Acceptance of an 
application that has been accompanied by a request for waiver under 
Sec. 4.92(a)(1) does not constitute a ruling on the waiver request, 
unless expressly stated in the acceptance.

[[Page 128]]

    (b) The Commission will circulate a notice of application for 
exemption to interested agencies and Indian tribes at the time the 
applicant is notified that the application is accepted for filing.
    (c) In granting an exemption the Commission may prescribe terms or 
conditions in addition to those set forth in Sec. 4.94, in order to:
    (1) Protect the quality or quantity of the related water supply for 
agricultural, municipal, or industrial consumption;
    (2) Otherwise protect life, health, or property;
    (3) Avoid or mitigate adverse environmental impact; or
    (4) Conserve, develop, or utilize in the public interest the water 
power resources of the region.
    (d) Conversion to license application. (1) If an application for 
exemption under this subpart is denied by the Commission, the applicant 
may convert the exemption application into an application for license 
for the hydroelectric project.
    (2) The applicant must provide the Commission with written 
notification, within 30 days after the date of issuance of the order 
denying exemption, that it intends to convert the exemption application 
into a license application. The applicant must submit to the Commission, 
no later than 90 days after the date of issuance of the order denying 
exemption, additional information that is necessary to conform the 
exemption application to the relevant regulations for a license 
application.
    (3) If all the information timely submitted is found sufficient, 
together with the application for exemption, to conform to the relevant 
regulations for a license application, the converted application will be 
considered accepted for filing as of the date that the exemption 
application was accepted for filing.

[Order 76, 45 FR 28090, Apr. 28, 1980, as amended by Order 413, 50 FR 
11687, Mar. 25, 1985; Order 533, 56 FR 23153, May 20, 1991; Order 2002, 
68 FR 51121, Aug. 25, 2003]



Sec. 4.94  Standard terms and conditions of exemption.

    Any exemption granted under Sec. 4.93 for a small conduit 
hydroelectric facility is subject to the following standard terms and 
conditions:
    (a) Article 1. The Commission reserves the right to conduct 
investigations under sections 4(g), 306, 307, and 311 of the Federal 
Power Act with respect to any acts, complaints, facts, conditions, 
practices, or other matters related to the construction, operation, or 
maintenance of the exempt facility. If any term or condition of the 
exemption is violated, the Commission may revoke the exemption, issue a 
suitable order under section 4(g) of the Federal Power Act, or take 
appropriate action for enforcement, forfeiture, or penalties under Part 
III of the Federal Power Act.
    (b) Article 2. The construction, operation, and maintenance of the 
exempt project must comply with any terms and conditions that the United 
States Fish and Wildlife Service, the National Marine Fisheries Service, 
and any state fish and wildlife agencies have determined are appropriate 
to prevent loss of, or damage to, fish or wildlife resources or 
otherwise to carry out the purposes of the Fish and Wildlife 
Coordination Act, as specified in exhibit E of the application for 
exemption from licensing or in the comments submitted in response to the 
notice of exemption application.
    (c) Article 3. The Commission may revoke this exemption if actual 
construction of any proposed generating facilities has not begun within 
two years or has not been completed within four years from the effective 
date of this exemption. If an exemption is revoked under this article, 
the Commission will not accept from the prior exemption holder a 
subsequent application for exemption from licensing or a notice of 
exemption from licensing for the same project within two years of the 
revocation.
    (d) Article 4. In order to best develop, conserve, and utilize in 
the public interest the water resources of the region, the Commission 
may require that the exempt facilities be modified in structure or 
operation or may revoke this exemption.
    (e) Article 5. The Commission may revoke this exemption if, in the 
application process, material discrepancies,

[[Page 129]]

inaccuracies, or falsehoods were made by or on behalf of the applicant.
    (f) Article 6. Before transferring any property interests in the 
exempt project, the exemption holder must inform the transferee of the 
terms and conditions of the exemption. Within 30 days of transferring 
the property interests, the exemption holder must inform the Commission 
of the identity and address of the transferee.

[Order 76, 45 FR 28090, Apr. 28, 1980, as amended by Order 413, 50 FR 
11687, Mar. 25, 1985; Order 413-A, 56 FR 31331, July 10, 1991]



Sec. 4.95  Surrender of exemption.

    (a) To voluntarily surrender its exemption, a holder of an exemption 
for a small conduit hydroelectric facility must file a petition with the 
Commission.
    (b)(1) If construction has begun, prior to filing a petition with 
the Commission, the exemption holder must consult with the fish and 
wildlife agencies in accordance with Sec. 4.38, substituting for the 
information required under Sec. 4.38(b)(1) information appropriate to 
the disposition and restoration of the project works and lands. The 
petition must set forth the exemption holder's plans with respect to 
disposition and restoration of the project works and lands.
    (2) If construction has begun, public notice of the petition will be 
given, and, at least 30 days thereafter, the Commission will act upon 
the petition.
    (c) If no construction has begun, unless the Commission issues an 
order to the contrary, the exemption will remain in effect through the 
thirtieth day after the Commission issues a public notice of receipt of 
the petition. New applications involving the site of the surrendered 
exemption may be filed on the next business day.
    (d) Exemptions may be surrendered only upon fulfillment by the 
exemption holder of such obligations under the exemption as the 
Commission may prescribe and, if construction has begun, upon such 
conditions with respect to the disposition of such project works and 
restoration of project lands as may be determined by the Commission and 
the Federal and state fish and wildlife agencies.

[Order 413, 50 FR 11687, Mar. 25, 1985]



Sec. 4.96  Amendment of exemption.

    (a) An exemption holder must construct and operate its project as 
described in the exemption application approved by the Commission or its 
delegate.
    (b) If an exemption holder desires to change the design, location, 
method of construction or operation of its project, it must first notify 
the appropriate Federal and state fish and wildlife agencies and inform 
them in writing of the changes it intends to implement. If these 
agencies determine that the changes would not cause the project to 
violate the terms and conditions imposed by the agencies, and if the 
changes would not materially alter the design, location, method of 
construction or operation of the project, the exemption holder may 
implement the changes. If any of these agencies determines that the 
changes would cause the project to violate the terms and conditions 
imposed by the agencies, or if the changes would materially alter the 
design, location, method of construction or the operation of the project 
works, the exemption holder may not implement the changes without first 
acquiring authorization from the Commission to amend its exemption, or 
acquiring a license that authorizes the project, as changed.
    (c) An application to amend an exemption may be filed only by the 
holder of the exemption. An application to amend an exemption will be 
governed by the Commission's regulations governing applications for 
exemption. The Commission will not accept applications in competition 
with an application to amend an exemption, unless the Director of the 
Office of Hydropower Licensing determines that it is in the public 
interest to do so.

[Order 413, 50 FR 11687, Mar. 25, 1985]

[[Page 130]]



Subpart K_Exemption of Small Hydroelectric Power Projects of 5 Megawatts 
                                 or Less



Sec. 4.101  Applicability.

    This subpart provides procedures for exemption on a case-specific 
basis from all or part of Part I of the Federal Power Act (Act), 
including licensing, for small hydroelectric power projects as defined 
in Sec. 4.30(b)(29).

(Energy Security Act of 1980, Pub. L. 96-294, 94 Stat. 611; Federal 
Power Act, as amended (16 U.S.C. 792-828c); Public Utility Regulatory 
Policies Act of 1978 (16 U.S.C. 2601-2645); and the Department of Energy 
Organization Act (42 U.S.C. 7101-7352); E.O. 12009, 3 CFR 142 (1978))

[Order 202, 47 FR 4243, Jan. 29, 1982, as amended by Order 413, 50 FR 
11687, Mar. 25, 1985; Order 482, 52 FR 39630, Oct. 23, 1987; Order 2002, 
68 FR 51121, Aug. 25, 2003]



Sec. 4.102  Surrender of exemption.

    (a) To voluntarily surrender its exemption, a holder of an exemption 
for a small hydroelectric power project must file a petition with the 
Commission.
    (b)(1) If construction has begun, prior to filing a petition with 
the Commission, the exemption holder must consult with the fish and 
wildlife agencies in accordance with Sec. 4.38, substituting for the 
information required under Sec. 4.38(b)(1) information appropriate to 
the disposition and restoration of the project works and lands. The 
petition must set forth the exemption holder's plans with respect to 
disposition and restoration of the project works and lands.
    (2) If construction has begun, public notice of the petition will be 
given, and, at least 30 days thereafter, the Commission will act upon 
the petition. New applications involving the site may be filed on the 
next business day.
    (c) If no construction had begun, unless the Commission issues an 
order to the contrary, the surrender will take effect at the close of 
the thirtieth day after the Commission issues a public notice of receipt 
of the petition. New applications involving the site may be filed on the 
next business day.
    (d) Exemptions may be surrendered only upon fulfillment by the 
exemption holder of such obligations under the exemption as the 
Commission may prescribe and, if construction has begun, upon such 
conditions with respect to the disposition of such project works and 
restoration of project lands as may be determined by the Commission and 
the Federal and state fish and wildlife agencies.
    (e) Where occupancy of United States lands or reservations has been 
permitted by a Federal agency having supervision over such lands, the 
exemption holder must concurrently notify that agency of the petition to 
surrender and of the steps that will be taken to restore the affected 
U.S. lands or reservations.

[Order 413, 50 FR 11688, Mar. 25, 1985]



Sec. 4.103  General provisions for case-specific exemption.

    (a) Exemptible projects. Subject to the provisions in paragraph (b) 
of this section, Sec. 4.31(c), and Sec. Sec. 4.105 and 4.106, the 
Commission may exempt on a case-specific basis any small hydroelectric 
power project from all or part of Part I of the Act, including licensing 
requirements. Any applications for exemption for a project shall conform 
to the requirements of Sec. Sec. 4.107 or 4.108, as applicable.
    (b) Limitation for licensed water power project. The Commission will 
not accept for filing an application for exemption from licensing for 
any project that is only part of a licensed water power project.
    (c) Waiver. In applying for case-specific exemption from licensing, 
a qualified exemption applicant may petition under Sec. 385.207 of this 
chapter for waiver of any specific provision of Sec. Sec. 4.102 through 
4.107. The Commission will grant a waiver only if consistent with 
section 408 of the Energy Security Act of 1980.

[Order 413, 50 FR 11688, Mar. 25, 1985, as amended by Order 503, 53 FR 
36568, Sept. 21, 1988]



Sec. 4.104  Amendment of exemption.

    (a) An exemption holder must construct and operate its project as 
described in the exemption application approved by the Commission or its 
delegate.
    (b) If an exemption holder desires to change the design, location, 
method of

[[Page 131]]

construction or operation of its project, it must first notify the 
appropriate Federal and state fish and wildlife agencies and inform them 
in writing of the changes it intends to implement. If these agencies 
determine that the changes would not cause the project to violate the 
terms and conditions imposed by the agencies, and if the changes would 
not materially alter the design, location, method of construction or 
operation of the project, the exemption holder may implement the 
changes. If any of these agencies determines that the changes would 
cause the project to violate the terms and conditions imposed by that 
agency, or if the changes would materially alter the design, location, 
method of construction or the operation of the project works, the 
exemption holder may not implement the changes without first acquiring 
authorization from the Commission to amend its exemption or acquiring a 
license for the project works that authorizes the project, as changed.
    (c) An application to amend an exemption may be filed only by the 
holder of an exemption. An application to amend an exemption will be 
governed by the Commission's regulations governing applications for 
exemption. The Commission will not accept applications in competition 
with an application to amend an exemption, unless the Director of the 
Office of Hydropower Licensing determines that it is in the public 
interest to do so.

[Order 413, 50 FR 11688, Mar. 25, 1985]



Sec. 4.105  Action on exemption applications.

    (a) Exemption from provisions other than licensing. An application 
for exemption of a small hydroelectric power project from provisions of 
Part I of the Act other than the licensing requirement will be processed 
and considered as part of the related application for license or 
amendment of license.
    (b)(1) Consultation. The Commission will circulate a notice of 
application for exemption from licensing to interested agencies and 
Indian tribes at the time the applicant is notified that the application 
is accepted for filing.
    (2) Non-standard terms and conditions. In approving any application 
for exemption from licensing, the Commission may prescribe terms or 
conditions in addition to those set forth in Sec. 4.106 in order to:
    (i) Protect the quality or quantity of the related water supply;
    (ii) Otherwise protect life, health, or property;
    (iii) Avoid or mitigate adverse environmental impact; or
    (iv) Better conserve, develop, or utilize in the public interest the 
water resources of the region.

(Energy Security Act of 1980, Pub. L. 96-294, 94 Stat. 611; Federal 
Power Act, as amended (16 U.S.C. 792-828c); Public Utility Regulatory 
Policies Act of 1978 (16 U.S.C. 2601-2645); and the Department of Energy 
Organization Act (42 U.S.C. 7101-7352); E.O. 12009, 3 CFR 142 (1978))

[Order 106, 45 FR 76123, Nov. 18, 1980, as amended by Order 202, 47 FR 
4246, Jan. 29, 1982; Order 413, 50 FR 11688, Mar. 25, 1985; Order 533, 
56 FR 23154, May 20, 1991]



Sec. 4.106  Standard terms and conditions of case-specific exemption 
from licensing.

    Any case-specific exemption from licensing granted for a small 
hydroelectric power project is subject to the following standard terms 
and conditions:
    (a) Article 1. The Commission reserves the right to conduct 
investigations under sections 4(g), 306, 307, and 311 of the Federal 
Power Act with respect to any acts, complaints, facts, conditions, 
practices, or other matters related to the construction, operation, or 
maintenance of the exempt project. If any term or condition of the 
exemption is violated, the Commission may revoke the exemption, issue a 
suitable order under section 4(g) of the Federal Power Act, or take 
appropriate action for enforcement, forfeiture, or penalties under Part 
III of the Federal Power Act.
    (b) Article 2. The construction, operation, and maintenance of the 
exempt project must comply with any terms and conditions that the United 
States Fish and Wildlife Service, the National Marine Fisheries Service, 
and any state fish and wildlife agencies have determined are appropriate 
to prevent loss of, or damage to, fish or wildlife resources or 
otherwise to carry out the

[[Page 132]]

purposes of the Fish and Wildlife Coordination Act, as specified in 
exhibit E of the application for exemption from licensing or in the 
comments submitted in response to the notice of exemption application.
    (c) Article 3. The Commission may revoke this exemption if actual 
construction of any proposed generating facilities has not begun within 
two years or has not been completed within four years from the date on 
which this exemption was granted. If an exemption is revoked under this 
article, the Commission will not accept from the prior exemption holder 
a subsequent application for exemption from licensing for the same 
project within two years of the revocation.
    (d) Article 4. This exemption is subject to the navigation servitude 
of the United States if the project is located on navigable waters of 
the United States.
    (e) Article 5. This exemption does not confer any right to use or 
occupy any Federal lands that may be necessary for the development or 
operation of the project. Any right to use or occupy any Federal lands 
for those purposes must be obtained from the administering Federal land 
agencies. The Commission may accept a license application submitted by 
any qualified license applicant and revoke this exemption, if any 
necessary right to use or occupy Federal lands for those purposes has 
not been obtained within one year from the date on which this exemption 
was granted.
    (f) Article 6. In order to best develop, conserve, and utilize in 
the public interest the water resources of the region, the Commission 
may require that the exempt facilities be modified in structure or 
operation or may revoke this exemption.
    (g) Article 7. The Commission may revoke this exemption if, in the 
application process, material discrepancies, inaccuracies, or falsehoods 
were made by or on behalf of the applicant.
    (h) Article 8. Any exempted small hydroelectric power project that 
utilizes a dam that is more than 33 feet in height above streambed, as 
defined in 18 CFR 12.31(c) of this chapter, impounds more than 2,000 
acre-feet of water, or has a significant or high hazard potential, as 
defined in 33 CFR part 222, is subject to the following provisions of 18 
CFR part 12, as it may be amended:
    (1) Section 12.4(b)(1) (i) and (ii), (b)(2) (i) and (iii), (b)(iv), 
and (b)(v);
    (2) Section 12.4(c);
    (3) Section 12.5;
    (4) Subpart C; and
    (5) Subpart D.

For the purposes of applying these provisions of 18 CFR part 12, the 
exempted project is deemed to be a licensed project development and the 
owner of the exempted project is deemed to be a licensee.
    (i) Before transferring any property interests in the exempt 
project, the exemption holder must inform the transferee of the terms 
and conditions of the exemption. Within 30 days of transferring the 
property interests, the exemption holder must inform the Commission of 
the identity and address of the transferee.

[Order 106, 45 FR 76123, Nov. 18, 1980; 45 FR 77420, Nov. 24, 1980, as 
amended by Order 202, 47 FR 4246, Jan. 29, 1982; Order 413, 50 FR 11688, 
Mar. 25, 1985; Order 482, 52 FR 39630, Oct. 23, 1987; Order 413-A, 56 FR 
31331, July 10, 1991]



Sec. 4.107  Contents of application for exemption from licensing.

    (a) General requirements. An application for exemption from 
licensing submitted under this subpart must contain the introductory 
statement, the exhibits described in this section, the fee prescribed in 
Sec. 381.601 of this chapter and, if the project structures would use 
or occupy any lands other than Federal lands, an appendix containing 
documentary evidence showing that applicant has the real property 
interests required under Sec. 4.31(c)(2)(ii). The applicant must 
identify in its application all Indian tribes that may be affected by 
the project.
    (b) Introductory statement. The application must include an 
introductory statement that conforms to the following format:

[[Page 133]]

             Before the Federal Energy Regulatory Commission

  Application for Exemption of Small Hydroelectric Power Project From 
                                Licensing

    (1) [Name of applicant] applies to the Federal Energy Regulatory 
Commission for an exemption for [name of project], a small hydroelectric 
power project that is proposed to have an installed capacity of 5 
megawatts or less, from licensing under the Federal Power Act. [If 
applicable: The project is currently licensed as FERC Project No. ---.]
    (2) The location of the project is:
[State or territory]____________________________________________________
________________________________________________________________________
[County]________________________________________________________________
[Township or nearby town]_______________________________________________
________________________________________________________________________
[Stream or body of water]_______________________________________________
________________________________________________________________________
    (3) The exact name and business address of each applicant are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (4) The exact name and business address of each person authorized to 
act as agent for the applicant in this application are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (5) [Name of applicant] is [specify, as appropriate: a citizen of 
the United States or other identified nation; an association of citizens 
of the United States or other identified nation; a municipality; a 
state; or a corporation incorporated under the laws of (specify the 
United States or the state or nation of incorporation, as appropriate).]

    (c) Exhibit A. Exhibit A must describe the small hydroelectric power 
project and its proposed mode of operation. To the extent feasible, the 
information in this exhibit may be submitted in tabular form. The 
applicant must submit the following information:
    (1) A brief description of any existing dam and impoundment proposed 
to be utilized by the small hydroelectric power project and any other 
existing or proposed project works and appurtenant facilities, including 
intake facilities, diversion structures, powerhouses, primary 
transmission lines, penstocks, pipelines, spillways, and other 
structures, and the sizes, capacities, and construction materials of 
those structures.
    (2) The number of existing and proposed generating units at the 
project, including auxiliary units, the capacity of each unit, any 
provisions for future units, and a brief description of any plans for 
retirement or rehabilitation of existing generating units.
    (3) The type of each hydraulic turbine of the small hydroelectric 
power project.
    (4) A description of how the power plant is to be operated, that is, 
run-of-river or peaking.
    (5) A graph showing a flow duration curve for the project. Identify 
stream gauge(s) and period of record used. If a synthetic record is 
utilized, provide details concerning its derivation. Furnish 
justification for selection of installed capacity if the hydraulic 
capacity of proposed generating unit(s) plus the minimum flow 
requirements, if not usable for power production, is less than the 
stream flow that is exceeded 25 percent of the time.
    (6) Estimations of:
    (i) The average annual generation in kilowatt-hours;
    (ii) The average and design head of the power plant;
    (iii) The hydraulic capacity of each turbine of the power plant 
(flow through the plant) in cubic feet per second;
    (iv) The number of surface acres of the man-made or natural 
impoundment used, if any, at its normal maximum surface elevation and 
its net and gross storage capacities in acre-feet.
    (7) The planned date for beginning and completing the proposed 
construction or development of generating facilities.
    (8) A description of the nature and extent of any repair, 
reconstruction, or other modification of a dam that would occur in 
association with construction or development of the proposed small 
hydroelectric power project, including a statement of the normal maximum 
surface area and normal maximum surface elevation of any existing 
impoundment before and after construction.
    (d) Exhibit G. Exhibit G is a map of the project and boundary and 
must conform to the specifications of Sec. 4.41(h) of this chapter.
    (e) Exhibit E. This exhibit is an environmental report that must 
include the following information, commensurate with the scope and 
environmental impact of the construction and operation of the small 
hydroelectric power

[[Page 134]]

project. See Sec. 4.38 for consultation requirements.
    (1) A description of the environmental setting of the project, 
including vegetative cover, fish and wildlife resources, water quality 
and quantity, land and water uses, recreational uses, historical and 
archeological resources, and scenic and aesthetic resources. The report 
must list any endangered or threatened plant and animal species, any 
critical habitats, and any sites eligible for or included on the 
National Register of Historic Places. The applicant may obtain 
assistance in the preparation of this information from state natural 
resources agencies, the state historic preservation officer, and from 
local offices of Federal natural resources agencies.
    (2) A description of the expected environmental impacts from the 
proposed construction or development and the proposed operation of the 
small hydroelectric power project, including any impacts from any 
proposed changes in the capacity and mode of operation of the project if 
it is already generating electric power, and an explanation of the 
specific measures proposed by the applicant, the agencies consulted, and 
others to protect and enhance environmental resources and values and to 
mitigate adverse impacts of the project on such resources.
    (3) Any additional information the applicant considers important.
    (f) Exhibit F. Exhibit F is a set of drawings showing the structures 
and equipment of the small hydroelectric facility and must conform to 
the specifications of Sec. 4.41(g) of this chapter.

[Order 106, 45 FR 76123, Nov. 18, 1980, as amended by Order 225, 47 FR 
19056, May 3, 1982; Order 413, 50 FR 11689, Mar. 25, 1985; Order 494, 53 
FR 15381, Apr. 29, 1988; Order 533, 56 FR 23154, May 20, 1991; Order 
2002, 68 FR 51121, Aug. 25, 2003]



Sec. 4.108  Contents of application for exemption from provisions other 
than licensing.

    An application for exemption of a small hydroelectric power project 
from provisions of Part I of the Act other than the licensing 
requirement need not be prepared according to any specific format, but 
must be included as an identified appendix to the related application 
for license or amendment of license. The application for exemption must 
list all sections or subsections of Part I of the Act for which 
exemption is requested.

[Order 106, 45 FR 76123, Nov. 18, 1980]



             Subpart L_Application for Amendment of License



Sec. 4.200  Applicability.

    This part applies to any application for amendment of a license, if 
the applicant seeks to:
    (a) Make a change in the physical features of the project or its 
boundary, or make an addition, betterment, abandonment, or conversion, 
of such character as to constitute an alteration of the license;
    (b) Make a change in the plans for the project under license; or
    (c) Extend the time fixed in the license for commencement or 
completion of project works.

[Order 184, 46 FR 55943, Nov. 13, 1981, as amended by Order 2002, 68 FR 
51121, Aug. 25, 2003]



Sec. 4.201  Contents of application.

    An application for amendment of a license for a water power project 
must contain the following information in the form specified.
    (a) Initial statement.

             Before the Federal Energy Regulatory Commission

                  Application for Amendment of License

    (1) [Name of applicant] applies to the Federal Energy Regulatory 
Commission for an amendment of license for the [name of project] water 
power project.
    (2) The exact name, business address, and telephone number of the 
applicant are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (3) The applicant is a [citizen of the United States, association of 
citizens of the United States, domestic corporation, municipality, or 
state, as appropriate, see 16 U.S.C. 796], licensee for the water power 
project, designated as Project No. ------ in the records of the Federal 
Energy Regulatory Commission, issued on the ------------ day of --------
------, 19----.
    (4) The amendments of license proposed and the reason(s) why the 
proposed changes

[[Page 135]]

are necessary, are: [Give a statement or description]
    (5)(i) The statutory or regulatory requirements of the state(s) in 
which the project would be located that affect the project as proposed 
with respect to bed and banks and to the appropriation, diversion, and 
use of water for power purposes are: [provide citation and brief 
identification of the nature of each requirement.]
    (ii) The steps which the applicant has taken or plans to take to 
comply with each of the laws cited above are: [provide brief description 
for each law.]

    (b) Required exhibits for capacity related amendments. Any 
application to amend a license for a hydropower project that involves 
additional capacity not previously authorized, and that would increase 
the actual or proposed total installed capacity of the project, would 
result in an increase in the maximum hydraulic capacity of the project 
of 15 percent or more, and would result in an increase in the installed 
name-plate capacity of 2 megawatts or more, must contain the following 
exhibits, or revisions or additions to any exhibits on file, 
commensurate with the scope of the licensed project:
    (1) For amendment of a license for a water power project that, at 
the time the application is filed, is not constructed and is proposed to 
have a total installed generating capacity of more than 5 MW--Exhibits 
A, B, C, D, E, F, and G under Sec. 4.41 of this chapter;
    (2) For amendment of a license for a water power project that, at 
the time the application is filed, is not constructed and is proposed to 
have a total installed generating capacity of 1.5 MW or less--Exhibits 
E, F, and G under Sec. 4.61 of this chapter;
    (3) For amendment of a license for a water power project that, at 
the time the application is filed, is not constructed and is proposed to 
have a total installed generating capacity of 5 MW or less, but more 
than 1.5 MW--Exhibits F and G under Sec. 4.61 of this chapter, and 
Exhibit E under Sec. 4.41 of this chapter;
    (4) For amendment of a license for a water power project that, at 
the time the application for amendment is filed, has been constructed, 
and is proposed to have a total installed generating capacity of 5 MW or 
less--Exhibit E, F and G under Sec. 4.61 of this chapter;
    (5) For amendment of a license for a water power project that, at 
the time the application is filed, has been constructed and is proposed 
to have a total installed generating capacity of more than 5 MW--
Exhibits A, B, C, D, E, F, and G under Sec. 4.51 of this chapter.
    (c) Required exhibits for non-capacity related amendments. Any 
application to amend a license for a water power project that would not 
be a capacity related amendment as described in paragraph (b) of this 
section must contain those exhibits that require revision in light of 
the nature of the proposed amendments.
    (d) Consultation and waiver. (1) If an applicant for license under 
this subpart believes that any exhibit required under paragraph (b) of 
this section is inappropriate with respect to the particular amendment 
of license sought by the applicant, a petition for waiver of the 
requirement to submit such exhibit may be submitted to the Commission 
under Sec. 385.207(c)(4) of this chapter, after consultation with the 
Commission's Division by Hydropower Licensing.
    (2) A licensee wishing to file an application for amendment of 
license under this section may seek advice from the Commission staff 
regarding which exhibits(s) must be submitted and whether the proposed 
amendment is consistent with the scope of the existing licensed project.

[Order 184, 46 FR 55943, Nov. 13, 1981, as amended by Order 225, 47 FR 
19056, May 3, 1982; 48 FR 4459, Feb. 1, 1983; 48 FR 16653, Apr. 19, 
1983; Order 413, 50 FR 11689, Mar. 25, 1985; Order 533, 56 FR 23154, May 
20, 1991]



Sec. 4.202  Alteration and extension of license.

    (a) If it is determined that approval of the application for 
amendment of license would constitute a significant alteration of 
license pursuant to section 6 of the Act, 16 U.S.C. 799, public notice 
of such application shall be given at least 30 days prior to action upon 
the application.
    (b) Any application for extension of time fixed in the license for 
commencement or completion of construction of project works must be 
filed with the Commission not less than three

[[Page 136]]

months prior to the date or dates so fixed.

[Order 184, 46 FR 55943, Nov. 13, 1981]



              Subpart M_Fees Under Section 30(e) of the Act

    Source: Order 487, 52 FR 48404, Dec. 22, 1987, unless otherwise 
noted.



Sec. 4.300  Purpose, definitions, and applicability.

    (a) Purpose. This subpart implements the amendments of section 30 of 
the Federal Power Act enacted by section 7(c) of the Electric Consumers 
Protection Act of 1986 (ECPA). It establishes procedures for reimbursing 
fish and wildlife agencies for costs incurred in connection with 
applications for an exemption from licensing and applications for 
licenses seeking benefits under section 210 of the Public Utility 
Regulatory Policies Act of 1978, as amended, for a project that would 
impound or divert the water of a natural watercourse by means of a new 
dam or diversion.
    (b) Definitions. For the purposes of this subpart--
    (1) Cost means an expenditure made by a fish and wildlife agency:
    (i) On or after the effective date of this regulation for an 
application filed on or after the effective date of this regulation; and
    (ii) Directly related to setting mandatory terms and conditions for 
a proposed project pursuant to section 30(c) of the Federal Power Act.
    (2) Cost statement means a statement of the total costs for which a 
fish and wildlife agency requests reimbursement including an itemized 
schedule of costs including, but not limited to, costs of fieldwork and 
testing, contract costs, travel costs, personnel costs, and 
administrative and overhead costs.
    (3) Mandatory terms and conditions means terms and conditions of a 
license or exemption that a fish and wildlife agency determines are 
appropriate to prevent loss of, or damage to, fish and wildlife 
resources pursuant to section 30(c) of the Federal Power Act.
    (4) New dam or diversion license applicant means an applicant for a 
license for a project that would impound or divert the water of a 
natural watercourse by means of a new dam or diversion, as defined in 
section 210(k) of the Public Utility Regulatory Policies Act of 1978, as 
amended.
    (5) PURPA benefits means benefits under section 210 of the Public 
Utility Regulatory Policies Act of 1978, as amended.
    (6) Section 30(c) application means an application for an exemption 
from licensing or a new dam or diversion license application seeking 
PURPA benefits.
    (c) Applicability. Except as provided in paragraph (d) of this 
section, this subpart applies to:
    (1) Any application for exemption filed on or after the effective 
date of these regulations for costs incurred by fish and wildlife 
agencies after the effective date of these regulations;
    (2) Any new dam or diversion license application seeking PURPA 
benefits filed on or after April 16, 1988;
    (3) Any new dam or diversion license application seeking PURPA 
benefits filed after the effective date of this regulation, but before 
April 16, 1988, if the applicant fails to demonstrate in a monetary 
resources petition filed with the Commission pursuant to Sec. 292.208 
of this chapter that, before October 16, 1986, it had committed 
substantial monetary resources directly related to the development of 
the proposed project and to the diligent and timely completion of all 
requirements of the Commission for filing an acceptable application; and
    (4) Any new dam or diversion license application seeking PURPA 
benefits filed after the effective date of this regulation, if the 
application is not accepted for filing before October 16, 1989.
    (d) Exceptions. (1) This subpart does not apply to any new dam or 
diversion license application seeking PURPA benefits if the moratorium 
described in section 8(e) of ECPA is in effect. The moratorium will end 
at the expiration of the first full session of Congress following the 
session during which the Commission reports to Congress on the results 
of the study required under section 8(d) of ECPA.
    (2) This subpart does not apply to any new dam or diversion license 
application seeking PURPA benefits for a

[[Page 137]]

project located at a Government dam, as defined in section 3(10) of the 
Federal Power Act, at which non-Federal hydroelectric development is 
permissible.



Sec. 4.301  Notice to fish and wildlife agencies and estimation of fees 
prior to filing.

    (a) Notice to agencies--(1) New dam or diversion license applicants. 
During the initial stage or pre-filing agency consultation under Sec. 
4.38(b)(1), a prospective new dam or diversion license applicant must 
inform each fish and wildlife agency consulted in writing with a copy to 
the Commission whether it will seek PURPA benefits.
    (2) Exemption applicants. During the initial stage of pre-filing 
agency consultation under Sec. 4.38(b)(1), a prospective exemption 
applicant must notify each fish and wildlife agency consulted that it 
will seek an exemption from licensing.
    (b) Estimate of fees. Within the comment period provided in Sec. 
4.38(b)(2)(iv), a fish and wildlife agency must provide a prospective 
section 30(c) applicant with a reasonable estimate of the total costs 
the agency anticipates it will incur to set mandatory terms and 
conditions for the proposed project. An agency may provide an applicant 
with an updated estimate as it deems necessary. If an agency believes 
that its most recent estimate will be exceeded by more than 25 percent, 
it must supply the prospective applicant or applicant with a new 
estimate and submit a copy to the Commission.



Sec. 4.302  Fees at filing.

    (a) Filing requirement. A section 30(c) application must be 
accompanied by a fee or a bond, together with copies of the most recent 
cost estimates provided by fish and wildlife agencies pursuant to Sec. 
4.301(b).
    (b) Amount. The fee required under paragraph (a) of this section 
must be in an amount equal to 50 percent of the most recent cost 
estimates provided by fish and wildlife agencies pursuant to Sec. 
4.301(b). In lieu of this amount, an applicant may provide an unlimited 
term surety bond from a company on the Department of Treasury's list of 
companies certified to write surety bonds. Applicants bonded by a 
company whose certification by the Department of the Treasury lapses 
must provide evidence of purchase of another bond from a certified 
company. A bond must be for an amount no less than 100 percent of the 
agencies' most recent cost estimates pursuant to Sec. 4.301(b).
    (c) Failure to file. The Commission will reject a section 30(c) 
application if the applicant fails to comply with the provisions of 
paragraphs (a) and (b) of this section.



Sec. 4.303  Post-filing procedures.

    (a) Submission of cost statement--1) Accepted applications. Within 
60 days after the last date for filing mandatory terms and conditions 
pursuant to Sec. 4.32(c)(4) for a new dam or diversion license 
application seeking PURPA benefits, Sec. 4.93(b) for an application for 
exemption of a small conduit hydroelectric facility, or Sec. 
4.105(b)(1) for an application for case-specific exemption of a small 
hydroelectric power project, a fish and wildlife agency must file with 
the Commission a cost statement of the reasonable costs the agency 
incurred in setting mandatory terms and conditions for the proposed 
project. An agency may request, in writing, along with any supporting 
documentation an extension of this 60-day period.
    (2) Rejected, withdrawn or dismissed applications. The Director of 
the Office of Energy Projects (Director) will, by letter, notify each 
fish and wildlife agency if a section 30(c) application is rejected, 
withdrawn or dismissed. Within 60 days from the date of notification, a 
fish and wildlife agency must file with the Commission a cost statement 
of the reasonable costs the agency incurred prior to the date the 
application was rejected, withdrawn, or dismissed. An agency may submit 
a written request for an extension of this 60-day period along with any 
supporting documentation.
    (b) If an agency has not submitted a cost statement or extension 
request within the time provided in paragraph (a)(2) of this section, it 
waives its right to receive fees for that project pursuant to this 
subpart.
    (c) Billing. After the Commission receives a cost statement from all 
fish and wildlife agencies as required by

[[Page 138]]

paragraph (a) of this section, the Commission will bill the section 
30(c) applicant. The bill will show:
    (1) The cost statement submitted to the Commission by each fish and 
wildlife agency;
    (2) Any amounts already paid by the applicant pursuant to Sec. 
4.302; and
    (3)(i) The amount due, if the amount already paid by the applicant 
pursuant to Sec. 4.302 is less than the total of all the cost 
statements; or
    (ii) The amount to be refunded to the applicant, if the amount 
already paid by the applicant pursuant to Sec. 4.302 is more than the 
total of all the cost statements.
    (d) Within 45 days from the date of a bill issued under paragraph 
(b) of this section, a section 30(c) applicant must pay in full to the 
Commission any remaining amounts due on the cost statements regardless 
of whether any of these amounts are in dispute.
    (e) Dispute procedures--(1) When to dispute. Any dispute regarding 
the reasonableness of any fish and wildlife agency cost statement must 
be made within 45 days from the date of a bill issued under paragraph 
(b) of this section.
    (2) Assessment of disputed cost statements The burden of showing 
that an agency's cost statement is unreasonable is on the applicant. 
However, a fish and wildlife agency must supply the disputing applicant 
and the Commission with the documentation necessary to support its cost 
statement. The Director of the Office of Energy Projects will determine 
the reasonableness of a disputed fish and wildlife agency cost 
statement. The Director's decision will be in writing. The Director will 
notify the disputing applicant and the fish and wildlife agency of the 
decision by letter. Any decision of the Director may be appealed by 
either party pursuant to 18 CFR 385.1902. In deciding whether or not a 
disputed cost statement is reasonable, the Director will review the 
application, the disputed cost statement and any other documentation 
relating to the particular environmental problems associated with the 
disputing applicant's proposed project. The Director will consider such 
factors as:
    (i) The time the fish and wildlife agency spent reviewing the 
application;
    (ii) The proportion of the cost statement to the time the fish and 
wildlife agency spent reviewing the application;
    (iii) Whether the fish and wildlife agency's expenditures conform to 
Federal expenditure guidelines for such items as travel, per diem, 
personnel, and contracting; and
    (iv) Whether the studies conducted by the agency, if any, are 
duplicative, limited to the proposed project area, unnecessary to 
determine the impacts to or mitigation measures for the particular fish 
and wildlife resources affected by the proposed project, or otherwise 
unnecessary to set terms and conditions for the proposed project.
    (3) Unreasonable cost statements. If the Director determines that a 
disputed fish and wildlife agency cost statement is unreasonable, the 
disputing applicant and the fish and wildlife agency will be afforded 45 
days from the date of notification to attempt to reach an agreement 
regarding the reimbursable costs of the agency. If the disputing 
applicant and the fish and wildlife agency fail to reach an agreement on 
the disputed cost statement within 45 days from the date of 
notification, the Director will determine the costs that the agency 
should reasonably have incurred.
    (f) Refunds. (1) If the amount paid by a section 30(c) applicant 
under Sec. 4.302 exceeds the total amount of the cost statements 
submitted by fish and wildlife agencies under paragraph (a) of this 
section, the Commission will notify the Treasury to refund the 
difference to the applicant within 45 days from the date of the bill 
issued to the applicant under paragraph (b) of this section.
    (2) If the amount paid by a section 30(c) applicant exceeds the 
amount determined to be reasonable by the Director pursuant to paragraph 
(d)(2) of this section, the Commission will notify the Treasury to 
refund the difference to the applicant within 45 days of the resolution 
of all dispute proceedings.

[Order 487, 52 FR 48404, Dec. 22, 1987, as amended by Order 647, 69 FR 
32438, June 10, 2004]

[[Page 139]]



Sec. 4.304  Payment.

    (a) A payment required under this subpart must be made by check 
payable to the United States Treasury. The check must indicate that the 
payment is for ECPA Fees.
    (b) If a payment required under this subpart is not made within the 
time period prescribed for making such payment, interest and penalty 
charges will be assessed. Interest and penalty charges will be computed 
in accordance with 31 U.S.C. 3717 and 4 CFR part 102.
    (c) The Commission will not issue a license or exemption, unless the 
applicant has made full payments of any fees due under Sec. 4.303(c).



Sec. 4.305  Enforcement.

    (a) The Commission may take any appropriate action permitted by law 
if a section 30(c) applicant does not make a payment required under this 
subpart. The Commission will not be liable to any fish and wildlife 
agency for failure to collect any amounts under this subpart.
    (b) If the Commission is unable to collect the full amount due by a 
section 30(c) applicant on behalf of more than one agency, the amount 
the Commission does collect will be distributed to the agencies on a 
pro-rata basis except if an agency's cost statement is greater than its 
most recent estimate to the applicant under Sec. 4.301(b), then the 
difference between the estimate and the cost statement will not be 
reimbursed until any amounts owed to other agencies have been paid.



PART 5_INTEGRATED LICENSE APPLICATION PROCESS--Table of Contents

Sec.
5.1 Applicability, definitions, and requirement to consult.
5.2 Document availability
5.3 Process selection.
5.4 Acceleration of a license expiration date.
5.5 Notification of intent.
5.6 Pre-application document.
5.7 Tribal consultation.
5.8 Notice of commencement of proceeding and scoping document, or of 
          approval to use traditional licensing process or alternative 
          procedures.
5.9 Comments and information or study requests.
5.10 Scoping document 2.
5.11 Potential Applicant's proposed study plan and study plan meetings.
5.12 Comments on proposed study plan.
5.13 Revised study plan and study plan determination.
5.14 Formal study dispute resolution process.
5.15 Conduct of studies.
5.16 Preliminary licensing proposal.
5.17 Filing of application.
5.18 Application content.
5.19 Tendering notice and schedule.
5.20 Deficient applications.
5.21 Additional information.
5.22 Notice of acceptance and ready for environmental analysis.
5.23 Response to notice.
5.24 Applications not requiring a draft NEPA document.
5.25 Applications requiring a draft NEPA document.
5.26 Section 10(j) process.
5.27 Amendment of application.
5.28 Competing applications.
5.29 Other provisions.
5.30 Critical Energy Infrastructure Information.
5.31 Transition provision.

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

    Source: Order 2002, 68 FR 51121, Aug. 25, 2003, unless otherwise 
noted.



Sec. 5.1  Applicability, definitions, and requirement to consult.

    (a) This part applies to the filing and processing of an application 
for an:
    (1) Original license;
    (2) New license for an existing project subject to Sections 14 and 
15 of the Federal Power Act; or
    (3) Subsequent license.
    (b) Definitions. The definitions in Sec. 4.30(b) of this chapter 
and Sec. 16.2 of this chapter apply to this chapter.
    (c) Who may file. Any citizen, association of citizens, domestic 
corporation, municipality, or state may develop and file a license 
application under this part.
    (d) Requirement to consult. (1) Before it files any application for 
an original, new, or subsequent license under this part, a potential 
applicant must consult with the relevant Federal, state, and interstate 
resource agencies, including as appropriate the National Marine 
Fisheries Service, the United States Fish and Wildlife Service, Bureau 
of Indian Affairs, the National

[[Page 140]]

Park Service, the United States Environmental Protection Agency, the 
Federal agency administering any United States lands utilized or 
occupied by the project, the appropriate state fish and wildlife 
agencies, the appropriate state water resource management agencies, the 
certifying agency or Indian tribe under Section 401(a)(1) of the Federal 
Water Pollution Control Act (Clean Water Act), 33 U.S.C. 1341(c)(1)), 
the agency that administers the Coastal Zone Management Act, 16 U.S.C. 
Sec. 1451-1465, any Indian tribe that may be affected by the project, 
and members of the public. A potential license applicant must file a 
notification of intent to file a license application pursuant to Sec. 
5.5 and a pre-application document pursuant to the provisions of Sec. 
5.6.
    (2) The Director of the Office of Energy Projects will, upon 
request, provide a list of known appropriate Federal, state, and 
interstate resource agencies, Indian tribes, and local, regional, or 
national non-governmental organizations likely to be interested in any 
license application proceeding.
    (e) Purpose. The purpose of the integrated licensing process 
provided for in this part is to provide an efficient and timely 
licensing process that continues to ensure appropriate resource 
protections through better coordination of the Commission's processes 
with those of Federal and state agencies and Indian tribes that have 
authority to condition Commission licenses.
    (f) Default process. Each potential original, new, or subsequent 
license applicant must use the license application process provided for 
in this part unless the potential applicant applies for and receives 
authorization from the Commission under this part to use the licensing 
process provided for in:
    (1) 18 CFR part 4, Subparts D-H and, as applicable, part 16 (i.e., 
traditional process), pursuant to paragraph (c) of this section; or
    (2) Section 4.34(i) of this chapter, Alternative procedures.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68 
FR 69957, Dec. 16, 2003]



Sec. 5.2  Document availability.

    (a) Pre-application document. (1) From the date a potential license 
applicant files a notification of intent to seek a license pursuant to 
Sec. 5.5 until any related license application proceeding is terminated 
by the Commission, the potential license applicant must make reasonably 
available to the public for inspection at its principal place of 
business or another location that is more accessible to the public, the 
pre-application document and any materials referenced therein. These 
materials must be available for inspection during regular business hours 
in a form that is readily accessible, reviewable, and reproducible.
    (2) The materials specified in paragraph (a)(1) of this section must 
be made available to the requester at the location specified in 
paragraph (a)(1) of this section or through the mail, or otherwise. 
Except as provided in paragraph (a)(3) of this section, copies of the 
pre-application document and any materials referenced therein must be 
made available at their reasonable cost of reproduction plus, if 
applicable, postage.
    (3) A potential licensee must make requested copies of the materials 
specified in paragraph (a)(1) of this section available to the United 
States Fish and Wildlife Service, the National Marine Fisheries Service, 
the state agency responsible for fish and wildlife resources, any 
affected Federal land managing agencies, and Indian tribes without 
charge for the costs of reproduction or postage.
    (b) License application. (1) From the date on which a license 
application is filed under this part until the licensing proceeding for 
the project is terminated by the Commission, the license applicant must 
make reasonably available to the public for inspection at its principal 
place of business or another location that is more accessible to the 
public, a copy of the complete application for license, together with 
all exhibits, appendices, and any amendments, pleadings, supplementary 
or additional information, or correspondence filed by the applicant with 
the Commission in connection with the application. These materials must 
be available for inspection during regular business hours in a form that 
is readily

[[Page 141]]

accessible, reviewable, and reproducible at the same time as the 
information is filed with the Commission or required by regulation to be 
made available.
    (2) The applicant must provide a copy of the complete application 
(as amended) to a public library or other convenient public office 
located in each county in which the proposed project is located.
    (3) The materials specified in paragraph (b)(1) of this section must 
be made available to the requester at the location specified in 
paragraph (b)(1) of this section or through the mail. Except as provided 
in paragraph (b)(4) of this section, copies of the license application 
and any materials referenced therein must be made available at their 
reasonable cost of reproduction plus, if applicable, postage.
    (4) A licensee applicant must make requested copies of the materials 
specified in paragraph (b)(1) of this section available to the United 
States Fish and Wildlife Service, the National Marine Fisheries Service, 
and the state agency responsible for fish and wildlife resources, any 
affected Federal land managing agencies, and Indian tribes without 
charge for the costs of reproduction or postage.
    (c) Confidentiality of cultural information. A potential applicant 
must delete from any information made available to the public under 
paragraphs (a) and (b) of this section, specific site or property 
locations the disclosure of which would create a risk of harm, theft, or 
destruction of archeological or native American cultural resources or of 
the site at which the sources are located, or would violate any Federal 
law, include the Archeological Resources Protection Act of 1979, 16 
U.S.C. 470w-3, and the National Historic Preservation Act of 1966, 16 
U.S.C. 470hh.
    (d) Access. Anyone may file a petition with the Commission 
requesting access to the information specified in paragraphs (a) or (b) 
of this section if it believes that the potential applicant or applicant 
is not making the information reasonably available for public inspection 
or reproduction. The petition must describe in detail the basis for the 
petitioner's belief.



Sec. 5.3  Process selection.

    (a)(1) Notwithstanding any other provision of this part or of parts 
4 and 16 of this chapter, a potential applicant for a new, subsequent, 
or original license may until July 23, 2005 elect to use the licensing 
procedures of this part or the licensing procedures of parts 4 and 16.
    (2) Any potential license applicant that files its notification of 
intent pursuant to Sec. 5.5 and pre-application document pursuant to 
Sec. 5.6 after July 23, 2005 must request authorization to use the 
licensing procedures of parts 4 and 16, as provided for in paragraphs 
(b)-(f) of this section.
    (b) A potential license applicant may file with the Commission a 
request to use the traditional licensing process or alternative 
procedures pursuant to this Section with its notification of intent 
pursuant to Sec. 5.5.
    (c)(1)(i) An application for authorization to use the traditional 
process must include justification for the request and any existing 
written comments on the potential applicant's proposal and a response 
thereto.
    (ii) A potential applicant requesting authorization to use the 
traditional process should address the following considerations:
    (A) Likelihood of timely license issuance;
    (B) Complexity of the resource issues;
    (C) Level of anticipated controversy;
    (D) Relative cost of the traditional process compared to the 
integrated process;
    (E) The amount of available information and potential for 
significant disputes over studies; and
    (F) Other factors believed by the applicant to be pertinent
    (2) A potential applicant requesting the use of Sec. 4.34(i) 
alternative procedures of this chapter must:
    (i) Demonstrate that a reasonable effort has been made to contact 
all agencies, Indian tribes, and others affected by the applicant's 
request, and that a consensus exists that the use of alternative 
procedures is appropriate under the circumstances;
    (ii) Submit a communications protocol, supported by interested 
entities, governing how the applicant and other

[[Page 142]]

participants in the pre-filing consultation process, including the 
Commission staff, may communicate with each other regarding the merits 
of the potential applicant's proposal and proposals and recommendations 
of interested entities; and
    (iii) Provide a copy of the request to all affected resource 
agencies and Indian tribes and to all entities contacted by the 
applicant that have expressed an interest in the alternative pre-filing 
consultation process.
    (d)(1) The potential applicant must provide a copy of the request to 
use the traditional process or alternative procedures to all affected 
resource agencies, Indian tribes, and members of the public likely to be 
interested in the proceeding. The request must state that comments on 
the request to use the traditional process or alternative procedures, as 
applicable, must be filed with the Commission within 30 days of the 
filing date of the request and, if there is no project number, that 
responses must reference the potential applicant's name and address.
    (2) The potential applicant must also publish notice of the filing 
of its notification of intent, of the pre-application document, and of 
any request to use the traditional process or alternative procedures no 
later than the filing date of the notification of intent in a daily or 
weekly newspaper of general circulation in each county in which the 
project is located. The notice must:
    (i) Disclose the filing date of the request to use the traditional 
process or alternative procedures, and the notification of intent and 
pre-application document;
    (ii) Briefly summarize these documents and the basis for the request 
to use the traditional process or alternative procedures;
    (iii) Include the potential applicant's name and address, and 
telephone number, the type of facility proposed to be applied for, its 
proposed location, the places where the pre-application document is 
available for inspection and reproduction;
    (iv) Include a statement that comments on the request to use the 
traditional process or alternative procedures are due to the Commission 
and the potential applicant no later than 30 days following the filing 
date of that document and, if there is no project number, that responses 
must reference the potential applicant's name and address;
    (v) State that comments on any request to use the traditional 
process should address, as appropriate to the circumstances of the 
request, the:
    (A) Likelihood of timely license issuance;
    (B) Complexity of the resource issues;
    (C) Level of anticipated controversy;
    (D) Relative cost of the traditional process compared to the 
integrated process; and
    (E) The amount of available information and potential for 
significant disputes over studies; and
    (F) Other factors believed by the commenter to be pertinent; and
    (vi) State that respondents must submit an electronic filing 
pursuant to Sec. 385.2003(c) or an original and eight copies of their 
comments to the Office of the Secretary, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426.
    (e) Requests to use the traditional process or alternative 
procedures shall be granted for good cause shown.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]



Sec. 5.4  Acceleration of a license expiration date.

    (a) Request for acceleration. (1) No later than five and one-half 
years prior to expiration of an existing license, a licensee may file 
with the Commission, in accordance with the formal filing requirements 
in subpart T of part 385 of this chapter, a written request for 
acceleration of the expiration date of its existing license, containing 
the statements and information specified in Sec. 16.6(b) of this 
chapter and a detailed explanation of the basis for the acceleration 
request.
    (2) If the Commission grants the request for acceleration pursuant 
to paragraph (c) of this section, the Commission will deem the request 
for acceleration to be a notice of intent under Sec. 16.6 of this 
chapter and, unless the Commission directs otherwise, the licensee must 
make available the Pre-Application Document provided for in Sec. 5.6 no 
later than 90 days from the date

[[Page 143]]

that the Commission grants the request for acceleration.
    (b) Notice of request for acceleration. (1) Upon receipt of a 
request for acceleration, the Commission will give notice of the 
licensee's request and provide a 45-day period for comments by 
interested persons by:
    (i) Publishing notice in the Federal Register;
    (ii) Publishing notice once in a daily or weekly newspaper published 
in the county or counties in which the project or any part thereof or 
the lands affected thereby are situated; and
    (iii) Notifying appropriate Federal, state, and interstate resource 
agencies and Indian tribes, and non-governmental organizations likely to 
be interested, by electronic means if practical, otherwise by mail.
    (2) The notice issued pursuant to paragraphs (b)(1)(A) and (B) and 
the written notice given pursuant to paragraph (b)(1)(C) will be 
considered as fulfilling the notice provisions of Sec. 16.6(d) of this 
chapter should the Commission grant the acceleration request and will 
include an explanation of the basis for the licensee's acceleration 
request.
    (c) Commission order. If the Commission determines it is in the 
public interest, the Commission will issue an order accelerating the 
expiration date of the license to not less than five years and 90 days 
from the date of the Commission order.

[Order 2002, 68 FR 51121, Aug. 25, 2003, as amended by Order 653, 70 FR 
8724, Feb. 23, 2005]



Sec. 5.5  Notification of intent.

    (a) Notification of intent. A potential applicant for an original, 
new, or subsequent license, must file a notification of its intent to do 
so in the manner provided for in paragraphs (b) and (c) of this section.
    (b) Requirement to notify. In order for a non-licensee to notify the 
Commission that it intends to file an application for an original, new, 
or subsequent license, or for an existing licensee to notify the 
Commission whether or not it intends to file an application for a new or 
subsequent license, a potential license applicant must file with the 
Commission pursuant to the requirements of subpart T of part 385 of this 
chapter an original and eight copies of a letter that contains the 
following information:
    (1) The potential applicant or existing licensee's name and address.
    (2) The project number, if any.
    (3) The license expiration date, if any.
    (4) An unequivocal statement of the potential applicant's intention 
to file an application for an original license, or, in the case of an 
existing licensee, to file or not to file an application for a new or 
subsequent license.
    (5) The type of principal project works licensed, if any, such as 
dam and reservoir, powerhouse, or transmission lines.
    (6) The location of the project by state, county, and stream, and, 
when appropriate, by city or nearby city.
    (7) The installed plant capacity, if any.
    (8) The names and mailing addresses of:
    (i) Every county in which any part of the project is located, and in 
which any Federal facility that is used or to be used by the project is 
located;
    (ii) Every city, town, or similar political subdivision;
    (A) In which any part of the project is or is to be located and any 
Federal facility that is or is to be used by the project is located, or
    (B) That has a population of 5,000 or more people and is located 
within 15 miles of the existing or proposed project dam;
    (iii) Every irrigation district, drainage district, or similar 
special purpose political subdivision:
    (A) In which any part of the project is or is proposed to be located 
and any Federal facility that is or is proposed to be used by the 
project is located; or
    (B) That owns, operates, maintains, or uses any project facility or 
any Federal facility that is or is proposed to be used by the project;
    (iv) Every other political subdivision in the general area of the 
project or proposed project that there is reason to believe would be 
likely to be interested in, or affected by, the notification; and
    (v) Affected Indian tribes.
    (c) Requirement to distribute. Before it files any application for 
an original, new, or subsequent license, a potential

[[Page 144]]

license applicant proposing to file a license application pursuant to 
this part or to request to file a license application pursuant to part 4 
of this chapter and, as appropriate, part 16 of this chapter (i.e., the 
``traditional process''), including an application pursuant to Sec. 
4.34(i) alternative procedures of this chapter must distribute to 
appropriate Federal, state, and interstate resource agencies, Indian 
tribes, local governments, and members of the public likely to be 
interested in the proceeding the notification of intent provided for in 
paragraph (a) of this section.
    (d) When to notify. An existing licensee or non-licensee potential 
applicant must notify the Commission as required in paragraph (b) of 
this section at least five years, but not more than five and one-half 
years, before the existing license expires.
    (e) Non-Federal representatives. A potential license applicant may 
at the same time it files its notification of intent and distributes its 
pre-application document, request to be designated as the Commission's 
non-Federal representative for purposes of consultation under section 7 
of the Endangered Species Act and the joint agency regulations 
thereunder at 50 CFR part 402, Section 305(b) of the Magnuson-Stevens 
Fishery Conservation and Management Act and the implementing regulations 
at 50 CFR 600.920. A potential license applicant may at the same time 
request authorization to initiate consultation under section 106 of the 
National Historic Preservation Act and the implementing regulations at 
36 CFR 800.2(c)(4).
    (f) Procedural matters. The provisions of subpart F of part 16 of 
this chapter apply to projects to which this part applies.
    (g) Construction of regulations. The provisions of this part and 
parts 4 and 16 shall be construed in a manner that best implements the 
purposes of each part and gives full effect to applicable provisions of 
the Federal Power Act.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 69957, Dec. 16, 2003]



Sec. 5.6  Pre-application document.

    (a) Pre-application document. (1) Simultaneously with the filing of 
its notification of intent to seek a license as provided for in Sec. 
5.5, and before it files any application for an original, new, or 
subsequent license, a potential applicant for a license to be filed 
pursuant to this part or part 4 of this chapter and, as appropriate, 
part 16 of this chapter, must file with the Commission an original and 
eight copies and distribute to the appropriate Federal, state, and 
interstate resource agencies, Indian tribes, local governments, and 
members of the public likely to be interested in the proceeding, the 
pre-application document provided for in this section.
    (2) The agencies referred to in paragraph (a)(1) of this section 
include: Any state agency with responsibility for fish, wildlife, and 
botanical resources, water quality, coastal zone management plan 
consistency certification, shoreline management, and water resources; 
the U.S. Fish and Wildlife Service; the National Marine Fisheries 
Service; Environmental Protection Agency; State Historic Preservation 
Officer; Tribal Historic Preservation Officer; National Park Service; 
local, state, and regional recreation agencies and planning commissions; 
local and state zoning agencies; and any other state or Federal agency 
or Indian tribe with managerial authority over any part of project lands 
and waters.
    (b) Purpose of pre-application document. (1) The pre-application 
document provides the Commission and the entities identified in 
paragraph (a) of this section with existing information relevant to the 
project proposal that is in the potential applicant's possession or that 
the potential applicant can obtain with the exercise of due diligence. 
This existing, relevant, and reasonably available information is 
distributed to these entities to enable them to identify issues and 
related information needs, develop study requests and study plans, and 
prepare documents analyzing any license application that may be filed. 
It is also a precursor to the environmental analysis section of the 
Preliminary Licensing Proposal or draft license application provided for 
in Sec. 5.16, Exhibit E of the final license application, and the 
Commission's

[[Page 145]]

scoping document(s) and environmental impact statement or environmental 
assessment under the National Environmental Policy Act (NEPA).
    (2) A potential applicant is not required to conduct studies in 
order to generate information for inclusion in the pre-application 
document. Rather, a potential applicant must exercise due diligence in 
determining what information exists that is relevant to describing the 
existing environment and potential impacts of the project proposal 
(including cumulative impacts), obtaining that information if the 
potential applicant does not already possess it, and describing or 
summarizing it as provided for in paragraph (d) of this section. Due 
diligence includes, but is not limited to, contacting appropriate 
agencies and Indian tribes that may have relevant information and review 
of Federal and state comprehensive plans filed with the Commission and 
listed on the Commission's Web site at http://www.ferc.gov.
    (c) Form and distribution protocol--(1) General requirements. As 
specifically provided for in the content requirements of paragraph (d) 
of this section, the pre-application document must describe the existing 
and proposed (if any) project facilities and operations, provide 
information on the existing environment, and existing data or studies 
relevant to the existing environment, and any known and potential 
impacts of the proposed project on the specified resources.
    (2) Availability of source information and studies. The sources of 
information on the existing environment and known or potential resource 
impacts included in the descriptions and summaries must be referenced in 
the relevant section of the document, and in an appendix to the 
document. The information must be provided upon request to recipients of 
the pre-application document. A potential applicant must provide the 
requested information within 20 days from receipt of the request. 
Potential applicants and requesters are strongly encouraged to use 
electronic means or compacts disks to distribute studies and other forms 
of information, but a potential applicant must, upon request, provide 
the information in hard copy form. The potential applicant is also 
strongly encouraged to include with the pre-application document any 
written protocol for distribution consistent with this paragraph to 
which it has agreed with agencies, Indian tribes, or other entities.
    (d) Content requirements--(1) Process plan and schedule. The pre-
application document must include a plan and schedule for all pre-
application activity that incorporates the time frames for pre-filing 
consultation, information gathering, and studies set forth in this part. 
The plan and schedule must include a proposed location and date for the 
scoping meeting and site visit required by Sec. 5.8(b)(3)(viii).
    (2) Project location, facilities, and operations. The potential 
applicant must include in the pre-application document:
    (i) The exact name and business address, and telephone number of 
each person authorized to act as agent for the applicant;
    (ii) Detailed maps showing lands and waters within the project 
boundary by township, range, and section, as well as by state, county, 
river, river mile, and closest town, and also showing the specific 
location of any Federal and tribal lands, and the location of proposed 
project facilities, including roads, transmission lines, and any other 
appurtenant facilities;
    (iii) A detailed description of all existing and proposed project 
facilities and components, including:
    (A) The physical composition, dimensions, and general configuration 
of any dams, spillways, penstocks, canals, powerhouses, tailraces, and 
other structures proposed to be included as part of the project or 
connected directly to it;
    (B) The normal maximum water surface area and normal maximum water 
surface elevation (mean sea level), gross storage capacity of any 
impoundments;
    (C) The number, type, and minimum and maximum hydraulic capacity and 
installed (rated) capacity of any proposed turbines or generators to be 
included as part of the project;
    (D) The number, length, voltage, and interconnections of any primary 
transmission lines proposed to be included as part of the project, 
including a single-line diagram showing the transfer

[[Page 146]]

of electricity from the project to the transmission grid or point of 
use; and
    (E) An estimate of the dependable capacity, average annual, and 
average monthly energy production in kilowatt hours (or mechanical 
equivalent);
    (iv) A description of the current (if applicable) and proposed 
operation of the project, including any daily or seasonal ramping rates, 
flushing flows, reservoir operations, and flood control operations.
    (v) In the case of an existing licensed project;
    (A) A complete description of the current license requirements; 
i.e., the requirements of the original license as amended during the 
license term;
    (B) A summary of project generation and outflow records for the five 
years preceding filing of the pre-application document;
    (C) Current net investment; and
    (D) A summary of the compliance history of the project, if 
applicable, including a description of any recurring situations of non-
compliance.
    (vi) A description of any new facilities or components to be 
constructed, plans for future development or rehabilitation of the 
project, and changes in project operation.
    (3) Description of existing environment and resource impacts--(i) 
General requirements. A potential applicant must, based on the existing, 
relevant, and reasonably available information, include a discussion 
with respect to each resource that includes:
    (A) A description of the existing environment as required by 
paragraphs (d)(3)(ii)-(xiii) of this section;
    (B) Summaries (with references to sources of information or studies) 
of existing data or studies regarding the resource;
    (C) A description of any known or potential adverse impacts and 
issues associated with the construction, operation or maintenance of the 
proposed project, including continuing and cumulative impacts; and
    (D) A description of any existing or proposed project facilities or 
operations, and management activities undertaken for the purpose of 
protecting, mitigating impacts to, or enhancing resources affected by 
the project, including a statement of whether such measures are required 
by the project license, or were undertaken for other reasons. The type 
and amount of the information included in the discussion must be 
commensurate with the scope and level of resource impacts caused or 
potentially caused by the proposed project. Potential license applicants 
are encouraged to provide photographs or other visual aids, as 
appropriate, to supplement text, charts, and graphs included in the 
discussion.
    (ii) Geology and soils. Descriptions and maps showing the existing 
geology, topography, and soils of the proposed project and surrounding 
area. Components of the description must include:
    (A) A description of geological features, including bedrock 
lithology, stratigraphy, structural features, glacial features, 
unconsolidated deposits, and mineral resources at the project site;
    (B) A description of the soils, including the types, occurrence, 
physical and chemical characteristics, erodability and potential for 
mass soil movement;
    (C) A description of reservoir shorelines and streambanks, 
including:
    (1) Steepness, composition (bedrock and unconsolidated deposits), 
and vegetative cover; and
    (2) Existing erosion, mass soil movement, slumping, or other forms 
of instability, including identification of project facilities or 
operations that are known to or may cause these conditions.
    (iii) Water resources. A description of the water resources of the 
proposed project and surrounding area. This must address the quantity 
and quality (chemical/physical parameters) of all waters affected by the 
project, including but not limited to the project reservoir(s) and 
tributaries thereto, bypassed reach, and tailrace. Components of the 
description must include:
    (A) Drainage area;
    (B) The monthly minimum, mean, and maximum recorded flows in cubic 
feet per second of the stream or other body of water at the powerplant 
intake or point of diversion, specifying any adjustments made for 
evaporation, leakage, minimum flow releases, or other reductions in 
available flow;
    (C) A monthly flow duration curve indicating the period of record 
and the

[[Page 147]]

location of gauging station(s), including identification number(s), used 
in deriving the curve; and a specification of the critical streamflow 
used to determine the project's dependable capacity;
    (D) Existing and proposed uses of project waters for irrigation, 
domestic water supply, industrial and other purposes, including any 
upstream or downstream requirements or constraints to accommodate those 
purposes;
    (E) Existing instream flow uses of streams in the project area that 
would be affected by project construction and operation; information on 
existing water rights and water rights applications potentially 
affecting or affected by the project;
    (F) Any federally-approved water quality standards applicable to 
project waters;
    (G) Seasonal variation of existing water quality data for any 
stream, lake, or reservoir that would be affected by the proposed 
project, including information on:
    (1) Water temperature and dissolved oxygen, including seasonal 
vertical profiles in the reservoir;
    (2) Other physical and chemical parameters to include, as 
appropriate for the project; total dissolved gas, pH, total hardness, 
specific conductance, cholorphyll a, suspended sediment concentrations, 
total nitrogen (mg/L as N), total phosphorus (mg/L as P), and fecal 
coliform (E. Coli) concentrations;
    (H) The following data with respect to any existing or proposed lake 
or reservoir associated with the proposed project; surface area, volume, 
maximum depth, mean depth, flushing rate, shoreline length, substrate 
composition; and
    (I) Gradient for downstream reaches directly affected by the 
proposed project.
    (iv) Fish and aquatic resources. A description of the fish and other 
aquatic resources, including invasive species, in the project vicinity. 
This section must discuss the existing fish and macroinvertebrate 
communities, including the presence or absence of anadromous, 
catadromous, or migratory fish, and any known or potential upstream or 
downstream impacts of the project on the aquatic community. Components 
of the description must include:
    (A) Identification of existing fish and aquatic communities;
    (B) Identification of any essential fish habitat as defined under 
the Magnuson-Stevens Fishery Conservation and Management Act and 
established by the National Marine Fisheries Service; and
    (C) Temporal and spacial distribution of fish and aquatic 
communities and any associated trends with respect to:
    (1) Species and life stage composition;
    (2) Standing crop;
    (3) Age and growth data;
    (4) Spawning run timing; and
    (5) The extent and location of spawning, rearing, feeding, and 
wintering habitat.
    (v) Wildlife and botanical resources. A description of the wildlife 
and botanical resources, including invasive species, in the project 
vicinity. Components of this description must include:
    (A) Upland habitat(s) in the project vicinity, including the 
project's transmission line corridor or right-of-way and a listing of 
plant and animal species that use the habitat(s); and
    (B) Temporal or spacial distribution of species considered important 
because of their commercial, recreational, or cultural value.
    (vi) Wetlands, riparian, and littoral habitat. A description of the 
floodplain, wetlands, riparian habitats, and littoral in the project 
vicinity. Components of this description must include:
    (A) A list of plant and animal species, including invasive species, 
that use the wetland, littoral, and riparian habitat;
    (B) A map delineating the wetlands, riparian, and littoral habitat; 
and
    (C) Estimates of acreage for each type of wetland, riparian, or 
littoral habitat, including variability in such availability as a 
function of storage at a project that is not operated in run-of-river 
mode.
    (vii) Rare, threatened and endangered species. A description of any 
listed rare, threatened and endangered, candidate, or special status 
species that may be present in the project vicinity. Components of this 
description must include:
    (A) A list of Federal- and state-listed, or proposed to be listed, 
threatened and

[[Page 148]]

endangered species known to be present in the project vicinity;
    (B) Identification of habitat requirements;
    (C) References to any known biological opinion, status reports, or 
recovery plan pertaining to a listed species;
    (D) Extent and location of any federally-designated critical 
habitat, or other habitat for listed species in the project area; and
    (E) Temporal and spatial distribution of the listed species within 
the project vicinity.
    (viii) Recreation and land use. A description of the existing 
recreational and land uses and opportunities within the project 
boundary. The components of this description include:
    (A) Text description illustrated by maps of existing recreational 
facilities, type of activity supported, location, capacity, ownership 
and management;
    (B) Current recreational use of project lands and waters compared to 
facility or resource capacity;
    (C) Existing shoreline buffer zones within the project boundary;
    (D) Current and future recreation needs identified in current State 
Comprehensive Outdoor Recreation Plans, other applicable plans on file 
with the Commission, or other relevant local, state, or regional 
conservation and recreation plans;
    (E) If the potential applicant is an existing licensee, its current 
shoreline management plan or policy, if any, with regard to permitting 
development of piers, boat docks and landings, bulkheads, and other 
shoreline facilities on project lands and waters;
    (F) A discussion of whether the project is located within or 
adjacent to a:
    (1) River segment that is designated as part of, or under study for 
inclusion in, the National Wild and Scenic River System; or
    (2) State-protected river segment;
    (G) Whether any project lands are under study for inclusion in the 
National Trails System or designated as, or under study for inclusion 
as, a Wilderness Area.
    (H) Any regionally or nationally important recreation areas in the 
project vicinity;
    (I) Non-recreational land use and management within the project 
boundary; and
    (J) Recreational and non-recreational land use and management 
adjacent to the project boundary.
    (ix) Aesthetic resources. A description of the visual 
characteristics of the lands and waters affected by the project. 
Components of this description include a description of the dam, natural 
water features, and other scenic attractions of the project and 
surrounding vicinity. Potential applicants are encouraged to supplement 
the text description with visual aids.
    (x) Cultural resources. A description of the known cultural or 
historical resources of the proposed project and surrounding area. 
Components of this description include:
    (A) Identification of any historic or archaeological site in the 
proposed project vicinity, with particular emphasis on sites or 
properties either listed in, or recommended by the State Historic 
Preservation Officer or Tribal Historic Preservation Officer for 
inclusion in, the National Register of Historic Places;
    (B) Existing discovery measures, such as surveys, inventories, and 
limited subsurface testing work, for the purpose of locating, 
identifying, and assessing the significance of historic and 
archaeological resources that have been undertaken within or adjacent to 
the project boundary; and
    (C) Identification of Indian tribes that may attach religious and 
cultural significance to historic properties within the project boundary 
or in the project vicinity; as well as available information on Indian 
traditional cultural and religious properties, whether on or off of any 
federally-recognized Indian reservation (A potential applicant must 
delete from any information made available under this section specific 
site or property locations, the disclosure of which would create a risk 
of harm, theft, or destruction of archaeological or Native American 
cultural resources or to the site at which the resources are located, or 
would violate any Federal law, including the Archaeological Resources 
Protection Act of 1979, 16 U.S.C. 470w-3, and the National

[[Page 149]]

Historic Preservation Act of 1966, 16 U.S.C. 470hh).
    (xi) Socio-economic resources. A general description of socio-
economic conditions in the vicinity of the project. Components of this 
description include general land use patterns (e.g., urban, 
agricultural, forested), population patterns, and sources of employment 
in the project vicinity.
    (xii) Tribal resources. A description of Indian tribes, tribal 
lands, and interests that may be affected by the project Components of 
this description include:
    (A) Identification of information on resources specified in 
paragraphs (d)(2)(ii)-(xi) of this section to the extent that existing 
project construction and operation affecting those resources may impact 
tribal cultural or economic interests, e.g., impacts of project-induced 
soil erosion on tribal cultural sites; and
    (B) Identification of impacts on Indian tribes of existing project 
construction and operation that may affect tribal interests not 
necessarily associated with resources specified in paragraphs 
(d)(3)(ii)-(xi) of this Section, e.g., tribal fishing practices or 
agreements between the Indian tribe and other entities other than the 
potential applicant that have a connection to project construction and 
operation.
    (xiii) River basin description. A general description of the river 
basin or sub-basin, as appropriate, in which the proposed project is 
located, including information on:
    (A) The area of the river basin or sub-basin and length of stream 
reaches therein;
    (B) Major land and water uses in the project area;
    (C) All dams and diversion structures in the basin or sub-basin, 
regardless of function; and
    (D) Tributary rivers and streams, the resources of which are or may 
be affected by project operations;
    (4) Preliminary issues and studies list. Based on the resource 
description and impacts discussion required by paragraph (d)(3) of this 
section; the pre-application document must include with respect to each 
resource area identified above, a list of:
    (i) Issues pertaining to the identified resources;
    (ii) Potential studies or information gathering requirements 
associated with the identified issues;
    (iii) Relevant qualifying Federal and state or tribal comprehensive 
waterway plans; and
    (iv) Relevant resource management plans.
    (5) Summary of contacts. An appendix summarizing contacts with 
Federal, state, and interstate resource agencies, Indian tribes, non-
governmental organizations, or other members of the public made in 
connection with preparing the pre-application document sufficient to 
enable the Commission to determine if due diligence has been exercised 
in obtaining relevant information.
    (e) If applicable, the applicant must also provide a statement of 
whether or not it will seek benefits under section 210 of the Public 
Utility Regulatory Policies Act of 1978 (PURPA) by satisfying the 
requirements for qualifying hydroelectric small power production 
facilities in Sec. 292.203 of this chapter. If benefits under section 
210 of PURPA are sought, a statement of whether or not the applicant 
believes the project is located at a new dam or diversion (as that term 
is defined in Sec. 292.202(p) of this chapter), and a request for the 
agencies' view on that belief, if any.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 69957, Dec. 16, 2003]



Sec. 5.7  Tribal consultation.

    A meeting shall be held no later than 30 days following filing of 
the notification of intent required by Sec. 5.5 between each Indian 
tribe likely to be affected by the potential license application and the 
Commission staff if the affected Indian tribe agrees to such meeting.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]



Sec. 5.8  Notice of commencement of proceeding and scoping document, 
or of approval to use traditional licensing process or alternative 
procedures.

    (a) Notice. Within 60 days of the notification of intent required 
under Sec. 5.5, filing of the pre-application document

[[Page 150]]

pursuant to Sec. 5.6, and filing of any request to use the traditional 
licensing process or alternative procedures, the Commission will issue a 
notice of commencement of proceeding and scoping document or of approval 
of a request to use the traditional licensing process or alternative 
procedures.
    (b) Notice contents. The notice shall include:
    (1) The decision of the Director of the Office of Energy Projects on 
any request to use the traditional licensing process or alternative 
procedures.
    (2) If appropriate, a request by the Commission to initiate informal 
consultation under section 7 of the Endangered Species Act and the joint 
agency regulations thereunder at 50 CFR part 402, section 305(b) of the 
Magnuson-Stevens Fishery Conservation and Management Act and 
implementing regulations at 50 CFR 600.920, or section 106 of the 
National Historic Preservation Act and implementing regulations at 36 
CFR 800.2, and, if applicable, designation of the potential applicant as 
the Commission's non-federal representative.
    (3) If the potential license application is to be developed and 
filed pursuant to this part, notice of:
    (i) The applicant's intent to file a license application;
    (ii) The filing of the pre-application document;
    (iii) Commencement of the proceeding;
    (iv) A request for comments on the pre-application document 
(including the proposed process plan and schedule);
    (v) A statement that all communications to or from the Commission 
staff related to the merits of the potential application must be filed 
with the Commission;
    (vi) The request for other Federal or state agencies or Indian 
tribes to be cooperating agencies for purposes of developing an 
environmental document;
    (vii) The Commission's intent with respect to preparation of an 
environmental impact statement; and
    (viii) A public scoping meeting and site visit to be held within 30 
days of the notice.
    (c) Scoping Document 1. At the same time the Commission issues the 
notice provided for in paragraph (a) of this Section, the Commission 
staff will issue Scoping Document 1. Scoping Document 1 will include:
    (1) An introductory section describing the purpose of the scoping 
document, the date and time of the scoping meeting, procedures for 
submitting written comments, and a request for information or study 
requests from state and Federal resource agencies, Indian tribes, non-
governmental organizations, and individuals;
    (2) Identification of the proposed action, including a description 
of the project's location, facilities, and operation, and any proposed 
protection and enhancement measures, and other alternatives to the 
proposed action, including alternatives considered but eliminated from 
further study, and the no action alternative;
    (3) Identification of resource issues to be analyzed in the 
environmental document, including those that would be cumulatively 
affected along with a description of the geographic and temporal scope 
of the cumulatively affected resources;
    (4) A list of qualifying Federal and state comprehensive waterway 
plans;
    (5) A list of qualifying tribal comprehensive waterway plans;
    (6) A process plan and schedule and a draft outline of the 
environmental document; and
    (7) A list of recipients.
    (d) Scoping meeting and site visit. The purpose of the public 
meeting and site visit is to:
    (1) Initiate issues scoping pursuant to the National Environmental 
Policy Act;
    (2) Review and discuss existing conditions and resource management 
objectives;
    (3) Review and discuss existing information and make preliminary 
identification of information and study needs;
    (4) Review, discuss, and finalize the process plan and schedule for 
pre-filing activity that incorporates the time periods provided for in 
this part and, to the extent reasonably possible, maximizes coordination 
of Federal, state, and tribal permitting and certification processes, 
including consultation under section 7 of the Endangered Species

[[Page 151]]

Act and water quality certification or waiver thereof under section 401 
of the Clean Water Act; and
    (5) Discuss the appropriateness of any Federal or state agency or 
Indian tribe acting as a cooperating agency for development of an 
environmental document pursuant to the National Environmental Policy 
Act.
    (e) Method of notice. The public notice provided for in this section 
will be given by:
    (1) Publishing notice in the Federal Register;
    (2) Publishing notice in a daily or weekly newspaper published in 
the county or counties in which the project or any part thereof or the 
lands affected thereby are situated, and, as appropriate, tribal 
newspapers;
    (3) Notifying appropriate Federal, state, and interstate resource 
agencies, state water quality and coastal zone management plan 
consistency certification agencies, Indian tribes, and non-governmental 
organizations, by electronic means if practical, otherwise by mail.

[Order 2002, 68 FR 51121, Aug. 25, 2003, as amended by Order 653, 70 FR 
8724, Feb. 23, 2005]



Sec. 5.9  Comments and information or study requests.

    (a) Comments and study requests. Comments on the pre-application 
document and the Commission staff's Scoping Document 1 must be filed 
with the Commission within 60 days following the Commission's notice of 
consultation procedures issued pursuant to Sec. 5.8. Comments, 
including those by Commission staff, must be accompanied by any 
information gathering and study requests, and should include information 
and studies needed for consultation under section 7 of the Endangered 
Species Act and water quality certification under Section 401 of the 
Clean Water Act.
    (b) Content of study request. Any information or study request must:
    (1) Describe the goals and objectives of each study proposal and the 
information to be obtained;
    (2) If applicable, explain the relevant resource management goals of 
the agencies or Indian tribes with jurisdiction over the resource to be 
studied;
    (3) If the requester is a not resource agency, explain any relevant 
public interest considerations in regard to the proposed study;
    (4) Describe existing information concerning the subject of the 
study proposal, and the need for additional information;
    (5) Explain any nexus between project operations and effects 
(direct, indirect, and/or cumulative) on the resource to be studied, and 
how the study results would inform the development of license 
requirements;
    (6) Explain how any proposed study methodology (including any 
preferred data collection and analysis techniques, or objectively 
quantified information, and a schedule including appropriate filed 
season(s) and the duration) is consistent with generally accepted 
practice in the scientific community or, as appropriate, considers 
relevant tribal values and knowledge; and
    (7) Describe considerations of level of effort and cost, as 
applicable, and why any proposed alternative studies would not be 
sufficient to meet the stated information needs.
    (c) Applicant seeking PURPA benefits; estimate of fees. If a 
potential applicant has stated that it intends to seek PURPA benefits, 
comments on the pre-application document by a fish and wildlife agency 
must provide the potential applicant with a reasonable estimate of the 
total costs the agency anticipates it will incur in order to set 
mandatory terms and conditions for the proposed project. An agency may 
provide a potential applicant with an updated estimate as it deems 
necessary. If any agency believes that its most recent estimate will be 
exceeded by more than 25 percent, it must supply the potential applicant 
with a new estimate and submit a copy to the Commission.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68 
FR 69957, Dec. 16, 2003]



Sec. 5.10  Scoping Document 2.

    Within 45 days following the deadline for filing of comments on 
Scoping Document 1, the Commission staff shall, if necessary, issue 
Scoping Document 2.

[[Page 152]]



Sec. 5.11  Potential Applicant's proposed study plan and study plan 
meetings.

    (a) Within 45 days following the deadline for filing of comments on 
the pre-application document, including information and study requests, 
the potential applicant must file with the Commission a proposed study 
plan.
    (b) The potential applicant's proposed study plan must include with 
respect to each proposed study:
    (1) A detailed description of the study and the methodology to be 
used;
    (2) A schedule for conducting the study;
    (3) Provisions for periodic progress reports, including the manner 
and extent to which information will be shared; and sufficient time for 
technical review of the analysis and results; and
    (4) If the potential applicant does not adopt a requested study, an 
explanation of why the request was not adopted, with reference to the 
criteria set forth in Sec. 5.9(b).
    (c) The potential applicant's proposed study plan must also include 
provisions for the initial and updated study reports and meetings 
provided for in Sec. 5.15.
    (d) The applicant's proposed study plan must:
    (1) Describe the goals and objectives of each study proposal and the 
information to be obtained;
    (2) Address any known resource management goals of the agencies or 
Indian tribes with jurisdiction over the resource to be studied;
    (3) Describe existing information concerning the subject of the 
study proposal, and the need for additional information;
    (4) Explain any nexus between project operations and effects 
(direct, indirect, and/or cumulative) on the resource to be studied;
    (5) Explain how any proposed study methodology (including any 
preferred data collection and analysis techniques, or objectively 
quantified information, and a schedule including appropriate field 
season(s) and the duration) is consistent with generally accepted 
practice in the scientific community or, as appropriate, considers any 
known tribal interests;
    (6) Describe considerations of level of effort and cost, as 
applicable.
    (e) The potential applicant's proposed study plan must be 
accompanied by a proposal for conducting a study plan meeting or 
meetings during the 90-day period provided for in Sec. 5.12 for the 
purpose of clarifying the potential applicant's proposed study plan and 
any initial information gathering or study requests, and to resolve any 
outstanding issues with respect to the proposed study plan. The initial 
study plan meeting must be held no later than 30 days after the deadline 
date for filing of the potential applicant's proposed study plan.



Sec. 5.12  Comments on proposed study plan.

    Comments on the potential applicant's proposed study plan, including 
any revised information or study requests, must be filed within 90 days 
after the proposed study plan is filed. This filing must also include an 
explanation of any study plan concerns and any accommodations reached 
with the potential applicant regarding those concerns. Any proposed 
modifications to the potential applicant's proposed study plan must 
address the criteria in Sec. 5.9(b).



Sec. 5.13  Revised study plan and study plan determination.

    (a) Within 30 days following the deadline for filing comments on the 
potential applicant's proposed study plan, as provided for in Sec. 
5.12, the potential applicant must file a revised study plan for 
Commission approval. The revised study plan shall include the comments 
on the proposed study plan and a description of the efforts made to 
resolve differences over study requests. If the potential applicant does 
not adopt a requested study, it must explain why the request was not 
adopted, with reference to the criteria set forth in Sec. 5.9(b).
    (b) Within 15 days following filing of the potential applicant's 
revised study plan, participants may file comments thereon.
    (c) Within 30 days following the date the potential applicant files 
its revised study plan, the Director of Energy

[[Page 153]]

Projects will issue a Study Plan Determination with regard to the 
potential applicant's study plan, including any modifications determined 
to be necessary in light of the record.
    (d) If no notice of study dispute is filed pursuant to Sec. 5.14 
within 20 days of the Study Plan Determination, the study plan as 
approved in the Study Plan Determination shall be deemed to be approved 
and the potential applicant shall proceed with the approved studies. If 
a potential applicant fails to obtain or conduct a study as required by 
Study Plan Determination, its license application may be considered 
deficient.



Sec. 5.14  Formal study dispute resolution process.

    (a) Within 20 days of the Study Plan Determination, any Federal 
agency with authority to provide mandatory conditions on a license 
pursuant to FPA Section 4(e), 16 U.S.C. 797(e), or to prescribe fishways 
pursuant to FPA Section 18, 16 U.S.C. 811, or any agency or Indian tribe 
with authority to issue a water quality certification for the project 
license under section 401 of the Clean Water Act, 42 U.S.C. 1341, may 
file a notice of study dispute with respect to studies pertaining 
directly to the exercise of their authorities under sections 4(e) and 18 
of the Federal Power Act or section 401 of the Clean Water Act.
    (b) The notice of study dispute must explain how the disputing 
agency's or Indian tribe's study request satisfies the criteria set 
forth in Sec. 5.9(b), and shall identify and provide contact 
information for the panel member designated by the disputing agency or 
Indian tribe, as discussed in paragraph (d) of this section.
    (c) Studies and portions of study plans approved in the Study Plan 
Determination that are not the subject of a notice of dispute shall be 
deemed to be approved, and the potential applicant shall proceed with 
those studies or portions thereof.
    (d) Within 20 days of a notice of study dispute, the Commission will 
convene one or more three-person Dispute Resolution Panels, as 
appropriate to the circumstances of each proceeding. Each such panel 
will consist of:
    (1) A person from the Commission staff who is not otherwise involved 
in the proceeding, and who shall serve as the panel chair;
    (2) One person designated by the Federal or state agency or Indian 
tribe that filed the notice of dispute who is not otherwise involved in 
the proceeding; and
    (3) A third person selected by the other two panelists from a pre-
established list of persons with expertise in the resource area. The two 
panelists shall make every reasonable effort to select the third panel 
member. If however no third panel member has been selected by the other 
two panelists within 15 days, an appropriate third panel member will be 
selected at random from the list of technical experts maintained by the 
Commission.
    (e) If more than one agency or Indian tribe files a notice of 
dispute with respect to the decision in the preliminary determination on 
any information-gathering or study request, the disputing agencies or 
Indian tribes must select one person to represent their interests on the 
panel.
    (f) The list of persons available to serve as a third panel member 
will be posted, as revised from time-to-time, on the hydroelectric page 
of the Commission's Web site. A person on the list who is requested and 
willing to serve with respect to a specific dispute will be required to 
file with the Commission at that time a current statement of their 
qualifications, a statement that they have had no prior involvement with 
the proceeding in which the dispute has arisen, or other financial or 
other conflict of interest.
    (g) All costs of the panel members representing the Commission staff 
and the agency or Indian tribe which filed the notice of dispute will be 
borne by the Commission or the agency or Indian tribe, as applicable. 
The third panel member will serve without compensation, except for 
certain allowable travel expenses as defined in 31 CFR part 301.
    (h) To facilitate the delivery of information to the dispute 
resolution panel, the identity of the panel members and their addresses 
for personal service

[[Page 154]]

with respect to a specific dispute resolution will be posted on the 
hydroelectric page of the Commission's Web site.
    (i) No later than 25 days following the notice of study dispute, the 
potential applicant may file with the Commission and serve upon the 
panel members comments and information regarding the dispute.
    (j) Prior to engaging in deliberative meetings, the panel shall hold 
a technical conference for the purpose of clarifying the matters in 
dispute with reference to the study criteria. The technical conference 
shall be chaired by the Commission staff member of the panel. It shall 
be open to all participants, and the panel shall receive information 
from the participants as it deems appropriate.
    (k) No later than 50 days following the notice of study dispute, the 
panel shall make and deliver to the Director of the Office of Energy 
Projects a finding, with respect to each information or study request in 
dispute, concerning the extent to which each criteria set forth in Sec. 
5.9(b) is met or not met, and why, and make recommendations regarding 
the disputed study request based on its findings. The panel's findings 
and recommendations must be based on the record in the proceeding. The 
panel shall file with its findings and recommendations all of the 
materials received by the panel. Any recommendation for the potential 
applicant to provide information or a study must include the technical 
specifications, including data acquisition techniques and methodologies.
    (l) No later than 70 days from the date of filing of the notice of 
study dispute, the Director of the Office of Energy Projects will review 
and consider the recommendations of the panel, and will issue a written 
determination. The Director's determination will be made with reference 
to the study criteria set forth in Sec. 5.9(b) and any applicable law 
or Commission policies and practices, will take into account the 
technical expertise of the panel, and will explain why any panel 
recommendation was rejected, if applicable. The Director's determination 
shall constitute an amendment to the approved study plan.



Sec. 5.15  Conduct of studies.

    (a) Implementation. The potential applicant must gather information 
and conduct studies as provided for in the approved study plan and 
schedule.
    (b) Progress reports. The potential applicant must prepare and 
provide to the participants the progress reports provided for in Sec. 
5.11(b)(3). Upon request of any participant, the potential applicant 
will provide documentation of study results.
    (c) Initial study report. (1) Pursuant to the Commission-approved 
study plan and schedule provided for in Sec. 5.13 or no later than one 
year after Commission approval of the study plan, whichever comes first, 
the potential applicant must prepare and file with the Commission an 
initial study report describing its overall progress in implementing the 
study plan and schedule and the data collected, including an explanation 
of any variance from the study plan and schedule. The report must also 
include any modifications to ongoing studies or new studies proposed by 
the potential applicant.
    (2) Within 15 days following the filing of the initial study report, 
the potential applicant shall hold a meeting with the participants and 
Commission staff to discuss the study results and the potential 
applicant's and or other participant's proposals, if any, to modify the 
study plan in light of the progress of the study plan and data 
collected.
    (3) Within 15 days following the meeting provided for in paragraph 
(c)(2) of this section, the potential applicant shall file a meeting 
summary, including any modifications to ongoing studies or new studies 
proposed by the potential applicant.
    (4) Any participant or the Commission staff may file a disagreement 
concerning the applicant's meeting summary within 30 days, setting forth 
the basis for the disagreement. This filing must also include any 
modifications to ongoing studies or new studies proposed by the 
Commission staff or other participant.
    (5) Responses to any filings made pursuant to paragraph (c)(4) of 
this section must be filed within 30 days.
    (6) No later than 30 days following the due date for responses 
provided for

[[Page 155]]

in paragraph (c)(5) of this section, the Director will resolve the 
disagreement and amend the approved study plan as appropriate.
    (7) If no participant or the Commission staff files a disagreement 
concerning the potential applicant's meeting summary and request to 
amend the approved study plan within 30 days, any proposed amendment 
shall be deemed to be approved.
    (d) Criteria for modification of approved study. Any proposal to 
modify an ongoing study pursuant to paragraphs (c)(1)-(4) of this 
section must be accompanied by a showing of good cause why the proposal 
should be approved, and must include, as appropriate to the facts of the 
case, a demonstration that:
    (1) Approved studies were not conducted as provided for in the 
approved study plan; or
    (2) The study was conducted under anomalous environmental conditions 
or that environmental conditions have changed in a material way.
    (e) Criteria for new study. Any proposal for new information 
gathering or studies pursuant to paragraphs (c)(1)-(4) of this section 
must be accompanied by a showing of good cause why the proposal should 
be approved, and must include, as appropriate to the facts of the case, 
a statement explaining:
    (1) Any material changes in the law or regulations applicable to the 
information request;
    (2) Why the goals and objectives of any approved study could not be 
met with the approved study methodology;
    (3) Why the request was not made earlier;
    (4) Significant changes in the project proposal or that significant 
new information material to the study objectives has become available; 
and
    (5) Why the new study request satisfies the study criteria in Sec. 
5.9(b).
    (f) Updated study report. Pursuant to the Commission-approved study 
plan and schedule provided for in Sec. 5.13, or no later than two years 
after Commission approval of the study plan and schedule, whichever 
comes first, the potential applicant shall prepare and file with the 
Commission an updated study report describing its overall progress in 
implementing the study plan and schedule and the data collected, 
including an explanation of any variance from the study plan and 
schedule. The report must also include any modifications to ongoing 
studies or new studies proposed by the potential applicant. The review, 
comment, and disagreement resolution provisions of paragraphs (c)(2)-(7) 
of this section shall apply to the updated study report. Any proposal to 
modify an ongoing study must be accompanied by a showing of good cause 
why the proposal should be approved as set forth in paragraph (d) of 
this section. Any proposal for new information gathering or studies is 
subject to paragraph (e) of this section except that the proponent must 
demonstrate extraordinary circumstances warranting approval. The 
applicant must promptly proceed to complete any remaining undisputed 
information-gathering or studies under its proposed amendments to the 
study plan, if any, and must proceed to complete any information-
gathering or studies that are the subject of a disagreement upon the 
Director's resolution of the disagreement.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]



Sec. 5.16  Preliminary licensing proposal.

    (a) No later than 150 days prior to the deadline for filing a new or 
subsequent license application, if applicable, the potential applicant 
must file for comment a preliminary licensing proposal.
    (b) The preliminary licensing proposal must:
    (1) Clearly describe, as applicable, the existing and proposed 
project facilities, including project lands and waters;
    (2) Clearly describe, as applicable, the existing and proposed 
project operation and maintenance plan, to include measures for 
protection, mitigation, and enhancement measures with respect to each 
resource affected by the project proposal; and
    (3) Include the potential applicant's draft environmental analysis 
by resource area of the continuing and incremental impacts, if any, of 
its preliminary licensing proposal, including the results of its studies 
conducted under the approved study plan.
    (c) A potential applicant may elect to file a draft license 
application which

[[Page 156]]

includes the contents of a license application required by Sec. 5.18 
instead of the Preliminary Licensing Proposal. A potential applicant 
that elects to file a draft license application must include notice of 
its intent to do so in the updated study report required by Sec. 
5.15(f).
    (d) A potential applicant that has been designated as the 
Commission's non-Federal representative may include a draft Biological 
Assessment, draft Essential Fish Habitat Assessment, and draft Historic 
Properties Management Plan with its Preliminary Licensing Proposal or 
draft license application.
    (e) Within 90 days of the date the potential applicant files the 
Preliminary Licensing Proposal or draft license application, 
participants and the Commission staff may file comments on the 
Preliminary Licensing Proposal or draft application, which may include 
recommendations on whether the Commission should prepare an 
Environmental Assessment (with or without a draft Environmental 
Assessment) or an Environmental Impact Statement. Any participant whose 
comments request new information, studies, or other amendments to the 
approved study plan must include a demonstration of extraordinary 
circumstances, pursuant to the requirements of Sec. 5.15(f).
    (f) A waiver of the requirement to file the Preliminary Licensing 
Proposal or draft license application may be requested, based on a 
consensus of the participants in favor of such waiver.



Sec. 5.17  Filing of application.

    (a) Deadline--new or subsequent license application. An application 
for a new or subsequent license must be filed no later than 24 months 
before the existing license expires.
    (b) Subsequent licenses. An applicant for a subsequent license must 
file its application under part I of the Federal Power Act. The 
provisions of section 7(a) of the Federal Power Act do not apply to 
licensing proceedings involving a subsequent license.
    (c) Rejection or dismissal of application. If the Commission rejects 
or dismisses an application for a new or subsequent license filed under 
this part pursuant to the provisions of Sec. 5.20, the application may 
not be refiled after the new or subsequent license application filing 
deadline specified in paragraph (a) of this section.
    (d)(1) Filing and service. Each applicant for a license under this 
part must submit the application to the Commission's Secretary for 
filing pursuant to the requirements of subpart T of part 385 of this 
chapter. The applicant must serve one copy of the application on the 
Director of the Commission's Regional Office for the appropriate region 
and on each resource agency, Indian tribe, or member of the public 
consulted pursuant to this part.
    (2) An applicant must publish notice twice of the filing of its 
application, no later than 14 days after the filing date in a daily or 
weekly newspaper of general circulation in each county in which the 
project is located. The notice must disclose the filing date of the 
application and briefly summarize it, including the applicant's name and 
address, the type of facility applied for, its proposed location, and 
the places where the information specified in Sec. 5.2(b) is available 
for inspection and reproduction. The applicant must promptly provide the 
Commission with proof of the publication of this notice.
    (e) PURPA benefits. (1) Every application for a license for a 
project with a capacity of 80 megawatts or less must include in its 
application copies of the statements made under Sec. 4.38(b)(1)(vi).
    (2) If an applicant reverses a statement of intent not to seek PURPA 
benefits:
    (i) Prior to the Commission issuing a license, the reversal of 
intent will be treated as an amendment of the application under Sec. 
4.35 of this chapter and the applicant must:
    (A) Repeat the pre-filing consultation process under this part; and
    (B) Satisfy all the requirements in Sec. 292.208 of this chapter; 
or
    (ii) After the Commission issues a license for the project, the 
applicant is prohibited from obtaining PURPA benefits.
    (f) Limitations on submitting applications. The provisions of 
Sec. Sec. 4.33(b), (c), and (e) of this chapter apply to license 
applications filed under this Section.
    (g) Applicant notice. An applicant for a subsequent license that 
proposes to

[[Page 157]]

expand an existing project to encompass additional lands must include in 
its application a statement that the applicant has notified, by 
certified mail, property owners on the additional lands to be 
encompassed by the project and governmental agencies and subdivisions 
likely to be interested in or affected by the proposed expansion.



Sec. 5.18  Application content.

    (a) General content requirements. Each license application filed 
pursuant to this part must:
    (1) Identify every person, citizen, association of citizens, 
domestic corporation, municipality, or state that has or intends to 
obtain and will maintain any proprietary right necessary to construct, 
operate, or maintain the project;
    (2) Identify (providing names and mailing addresses):
    (i) Every county in which any part of the project, and any Federal 
facilities that would be used by the project, would be located;
    (ii) Every city, town, or similar local political subdivision:
    (A) In which any part of the project, and any Federal facilities 
that would be used by the project, would be located; or
    (B) That has a population of 5,000 or more people and is located 
within 15 miles of the project dam;
    (iii) Every irrigation district, drainage district, or similar 
special purpose political subdivision:
    (A) In which any part of the project, and any Federal facilities 
that would be used by the project, would be located; or
    (B) That owns, operates, maintains, or uses any project facilities 
that would be used by the project;
    (iv) Every other political subdivision in the general area of the 
project that there is reason to believe would likely be interested in, 
or affected by, the application; and
    (v) All Indian tribes that may be affected by the project.
    (3)(i) For a license (other than a license under section 15 of the 
Federal Power Act) state that the applicant has made, either at the time 
of or before filing the application, a good faith effort to give 
notification by certified mail of the filing of the application to:
    (A) Every property owner of record of any interest in the property 
within the bounds of the project, or in the case of the project without 
a specific project boundary, each such owner of property which would 
underlie or be adjacent to any project works including any impoundments; 
and
    (B) The entities identified in paragraph (a)(2) of this section, as 
well as any other Federal, state, municipal or other local government 
agencies that there is reason to believe would likely be interested in 
or affected by such application.
    (ii) Such notification must contain the name, business address, and 
telephone number of the applicant and a copy of the Exhibit G contained 
in the application, and must state that a license application is being 
filed with the Commission.
    (4)(i) As to any facts alleged in the application or other materials 
filed, be subscribed and verified under oath in the form set forth in 
paragraph (a)(3)(B) of this Section by the person filing, an officer 
thereof, or other person having knowledge of the matters set forth. If 
the subscription and verification is by anyone other than the person 
filing or an officer thereof, it must include a statement of the reasons 
therefor.
    (ii) This application is executed in the:

 State of_______________________________________________________________
 County of______________________________________________________________
 By:____________________________________________________________________
 (Name)_________________________________________________________________
 (Address)______________________________________________________________

being duly sworn, depose(s) and say(s) that the contents of this 
application are true to the best of (his or her) knowledge or belief. 
The undersigned Applicant(s) has (have) signed the application this ---- 
day of ------------------, 2------.
________________________________________________________________________
(Applicant(s))
 By:____________________________________________________________________

    Subscribed and sworn to before me, a [Notary Public, or title of 
other official authorized by the state to notarize documents, as 
appropriate] this ---- day of --------------------, 2------.
/SEAL [if any]
(Notary Public, or other authorized official)


[[Page 158]]


    (5) Contain the information and documents prescribed in the 
following Sections of this chapter, except as provided in paragraph (b) 
of this Section, according to the type of application:
    (i) License for a minor water power project and a major water power 
project 5 MW or less: Sec. 4.61 (General instructions, initial 
statement, and Exhibits A, B, C, D, F, and G);
    (ii) License for a major unconstructed project and a major modified 
project: Sec. 4.41 of this chapter (General instructions, initial 
statement, Exhibits A, B, C, D, F, and G);
    (iii) License for a major project--existing dam: Sec. 4.51 of this 
chapter (General instructions, initial statement, Exhibits A, B, C, D, 
F, and G); or
    (iv) License for a project located at a new dam or diversion where 
the applicant seeks PURPA benefits: Sec. 292.208 of this chapter.
    (b) Exhibit E--Environmental Exhibit. The specifications for Exhibit 
E in Sec. Sec. 4.41, 4.51, or 4.61 of this chapter shall not apply to 
applications filed under this part. The Exhibit E included in any 
license application filed under this part must address the resources 
listed in the Pre-Application Document provided for in Sec. 5.6; follow 
the Commission's ``Preparing Environmental Assessments: Guidelines for 
Applicants, Contractors, and Staff,'' as they may be updated from time-
to-time; and meet the following format and content requirements:
    (1) General description of the river basin. Describe the river 
system, including relevant tributaries; give measurements of the area of 
the basin and length of stream; identify the project's river mile 
designation or other reference point; describe the topography and 
climate; and discuss major land uses and economic activities.
    (2) Cumulative effects. List cumulatively affected resources based 
on the Commission's Scoping Document, consultation, and study results. 
Discuss the geographic and temporal scope of analysis for those 
resources. Describe how resources are cumulatively affected and explain 
the choice of the geographic scope of analysis. Include a brief 
discussion of past, present, and future actions, and their effects on 
resources based on the new license term (30-50 years). Highlight the 
effect on the cumulatively affected resources from reasonably 
foreseeable future actions. Discuss past actions' effects on the 
resource in the Affected Environment Section.
    (3) Applicable laws. Include a discussion of the status of 
compliance with or consultation under the following laws, if applicable:
    (i) Section 401 of the Clean Water Act. The applicant must file a 
request for a water quality certification (WQC), as required by Section 
401 of the Clean Water Act no later than the deadline specified in Sec. 
5.23(b). Potential applicants are encouraged to consult with the 
certifying agency or tribe concerning information requirements as early 
as possible.
    (ii) Endangered Species Act (ESA). Briefly describe the process used 
to address project effects on Federally listed or proposed species in 
the project vicinity. Summarize any anticipated environmental effects on 
these species and provide the status of the consultation process. If the 
applicant is the Commission's non-Federal designee for informal 
consultation under the ESA, the applicant's draft biological assessment 
must be included.
    (iii) Magnuson-Stevens Fishery Conservation and Management Act. 
Document from the National Marine Fisheries Service (NMFS) and/or the 
appropriate Regional Fishery Management Council any essential fish 
habitat (EFH) that may be affected by the project. Briefly discuss each 
managed species and life stage for which EFH was designated. Include, as 
appropriate, the abundance, distribution, available habitat, and habitat 
use by the managed species. If the project may affect EFH, prepare a 
draft ``EFH Assessment'' of the impacts of the project. The draft EFH 
Assessment should contain the information outlined in 50 CFR 600.920(e).
    (iv) Coastal Zone Management Act (CZMA). Section 307(c)(3) of the 
CZMA requires that all Federally licensed and permitted activities be 
consistent with approved state Coastal Zone Management Programs. If the 
project is located within a coastal zone boundary

[[Page 159]]

or if a project affects a resource located in the boundaries of the 
designated coastal zone, the applicant must certify that the project is 
consistent with the state Coastal Zone Management Program. If the 
project is within or affects a resource within the coastal zone, provide 
the date the applicant sent the consistency certification information to 
the state agency, the date the state agency received the certification, 
and the date and action taken by the state agency (for example, the 
agency will either agree or disagree with the consistency statement, 
waive it, or ask for additional information). Describe any conditions 
placed on the state agency's concurrence and assess the conditions in 
the appropriate section of the license application. If the project is 
not in or would not affect the coastal zone, state so and cite the 
coastal zone program office's concurrence.
    (v) National Historic Preservation Act (NHPA). Section 106 of NHPA 
requires the Commission to take into account the effect of licensing a 
hydropower project on any historic properties, and allow the Advisory 
Council on Historic Preservation (Advisory Council) a reasonable 
opportunity to comment on the proposed action. ``Historic Properties'' 
are defined as any district, site, building, structure, or object that 
is included in or eligible for inclusion in the National Register of 
Historic Places (NRHP). If there would be an adverse effect on historic 
properties, the applicant may include a Historic Properties Management 
Plan (HPMP) to avoid or mitigate the effects. The applicant must include 
documentation of consultation with the Advisory Council, the State 
Historic Preservation Officer, Tribal Historic Preservation Officer, 
National Park Service, members of the public, and affected Indian 
tribes, where applicable.
    (vi) Pacific Northwest Power Planning and Conservation Act (Act). If 
the project is not within the Columbia River Basin, this section shall 
not be included. The Columbia River Basin Fish and Wildlife Program 
(Program) developed under the Act directs agencies to consult with 
Federal and state fish and wildlife agencies, appropriate Indian tribes, 
and the Northwest Power Planning Council (Council) during the study, 
design, construction, and operation of any hydroelectric development in 
the basin. Section 12.1A of the Program outlines conditions that should 
be provided for in any original or new license. The program also 
designates certain river reaches as protected from development. The 
applicant must document consultation with the Council, describe how the 
act applies to the project, and how the proposal would or would not be 
consistent with the program.
    (vii) Wild and Scenic Rivers and Wilderness Acts. Include a 
description of any areas within or in the vicinity of the proposed 
project boundary that are included in, or have been designated for study 
for inclusion in, the National Wild and Scenic Rivers System, or that 
have been designated as wilderness area, recommended for such 
designation, or designated as a wilderness study area under the 
Wilderness Act.
    (4) Project facilities and operation. Provide a description of the 
project to include:
    (i) Maps showing existing and proposed project facilities, lands, 
and waters within the project boundary;
    (ii) The configuration of any dams, spillways, penstocks, canals, 
powerhouses, tailraces, and other structures;
    (iii) The normal maximum water surface area and normal maximum water 
surface elevation (mean sea level), gross storage capacity of any 
impoundments;
    (iv) The number, type, and minimum and maximum hydraulic capacity 
and installed (rated) capacity of existing and proposed turbines or 
generators to be included as part of the project;
    (v) An estimate of the dependable capacity, and average annual 
energy production in kilowatt hours (or mechanical equivalent);
    (vi) A description of the current (if applicable) and proposed 
operation of the project, including any daily or seasonal ramping rates, 
flushing flows, reservoir operations, and flood control operations.
    (5) Proposed action and action alternatives. (i) The environmental 
document must explain the effects of the

[[Page 160]]

applicant's proposal on resources. For each resource area addressed 
include:
    (A) A discussion of the affected environment;
    (B) A detailed analysis of the effects of the applicant's licensing 
proposal and, if reasonably possible, any preliminary terms and 
conditions filed with the Commission; and
    (C) Any unavoidable adverse impacts.
    (ii) The environmental document must contain, with respect to the 
resources listed in the Pre-Application Document provided for in Sec. 
5.6, and any other resources identified in the Commission's scoping 
document prepared pursuant to the National Environmental Policy Act and 
Sec. 5.8, the following information, commensurate with the scope of the 
project:
    (A) Affected environment. The applicant must provide a detailed 
description of the affected environment or area(s) to be affected by the 
proposed project by each resource area. This description must include 
the information on the affected environment filed in the Pre-Application 
Document provided for in Sec. 5.6, developed under the applicant's 
approved study plan, and otherwise developed or obtained by the 
applicant. This section must include a general description of socio-
economic conditions in the vicinity of the project including general 
land use patterns (e.g., urban, agricultural, forested), population 
patterns, and sources of employment in the project vicinity.
    (B) Environmental analysis. The applicant must present the results 
of its studies conducted under the approved study plan by resource area 
and use the data generated by the studies to evaluate the beneficial and 
adverse environmental effects of its proposed project. This section must 
also include, if applicable, a description of any anticipated continuing 
environmental impacts of continued operation of the project, and the 
incremental impact of proposed new development of project works or 
changes in project operation. This analysis must be based on the 
information filed in the Pre-Application Document provided for in Sec. 
5.6, developed under the applicant's approved study plan, and other 
appropriate information, and otherwise developed or obtained by the 
Applicant.
    (C) Proposed environmental measures. The applicant must provide, by 
resource area, any proposed new environmental measures, including, but 
not limited to, changes in the project design or operations, to address 
the environmental effects identified above and its basis for proposing 
the measures. The applicant must describe how each proposed measure 
would protect or enhance the existing environment, including, where 
possible, a non-monetary quantification of the anticipated environmental 
benefits of the measure. This section must also include a statement of 
existing measures to be continued for the purpose of protecting and 
improving the environment and any proposed preliminary environmental 
measures received from the consulted resource agencies, Indian tribes, 
or the public. If an applicant does not adopt a preliminary 
environmental measure proposed by a resource agency, Indian tribe, or 
member of the public, it must include its reasons, based on project-
specific information.
    (D) Unavoidable adverse impacts. Based on the environmental 
analysis, discuss any adverse impacts that would occur despite the 
recommended environmental measures. Discuss whether any such impacts are 
short- or long-term, minor or major, cumulative or site-specific.
    (E) Economic analysis. The economic analysis must include 
annualized, current cost-based information. For a new or subsequent 
license, the applicant must include the cost of operating and 
maintaining the project under the existing license. For an original 
license, the applicant must estimate the cost of constructing, 
operating, and maintaining the proposed project. For either type of 
license, the applicant should estimate the cost of each proposed 
resource protection, mitigation, or enhancement measure and any specific 
measure filed with the Commission by agencies, Indian tribes, or members 
of the public when the application is filed. For an existing license, 
the applicant's economic analysis must estimate the value of 
developmental resources associated with the project under the current 
license and the applicant's proposal. For an original license, the 
applicant must estimate the value

[[Page 161]]

of the developmental resources for the proposed project. As applicable, 
these developmental resources may include power generation, water 
supply, irrigation, navigation, and flood control. Where possible, the 
value of developmental resources must be based on market prices. If a 
protection, mitigation, or enhancement measure reduces the amount or 
value of the project's developmental resources, the applicant must 
estimate the reduction.
    (F) Consistency with comprehensive plans. Identify relevant 
comprehensive plans and explain how and why the proposed project would, 
would not, or should not comply with such plans and a description of any 
relevant resource agency or Indian tribe determination regarding the 
consistency of the project with any such comprehensive plan.
    (G) Consultation Documentation. Include a list containing the name, 
and address of every Federal, state, and interstate resource agency, 
Indian tribe, or member of the public with which the applicant consulted 
in preparation of the Environmental Document.
    (H) Literature cited. Cite all materials referenced including final 
study reports, journal articles, other books, agency plans, and local 
government plans.
    (2) The applicant must also provide in the Environmental Document:
    (A) Functional design drawings of any fish passage and collection 
facilities or any other facilities necessary for implementation of 
environmental measures, indicating whether the facilities depicted are 
existing or proposed (these drawings must conform to the specifications 
of Sec. 4.39 of this chapter regarding dimensions of full-sized prints, 
scale, and legibility);
    (B) A description of operation and maintenance procedures for any 
existing or proposed measures or facilities;
    (C) An implementation or construction schedule for any proposed 
measures or facilities, showing the intervals following issuance of a 
license when implementation of the measures or construction of the 
facilities would be commenced and completed;
    (D) An estimate of the costs of construction, operation, and 
maintenance, of any proposed facilities, and of implementation of any 
proposed environmental measures.
    (E) A map or drawing that conforms to the size, scale, and 
legibility requirements of Sec. 4.39 of this chapter showing by the use 
of shading, cross-hatching, or other symbols the identity and location 
of any measures or facilities, and indicating whether each measure or 
facility is existing or proposed (the map or drawings in this exhibit 
may be consolidated).
    (c) Exhibit H. The information required to be provided by this 
paragraph (c) must be included in the application as a separate exhibit 
labeled ``Exhibit H.''
    (1) Information to be provided by an applicant for new license: 
Filing requirements--(i) Information to be supplied by all applicants. 
All Applicants for a new license under this part must file the following 
information with the Commission:
    (A) A discussion of the plans and ability of the applicant to 
operate and maintain the project in a manner most likely to provide 
efficient and reliable electric service, including efforts and plans to:
    (1) Increase capacity or generation at the project;
    (2) Coordinate the operation of the project with any upstream or 
downstream water resource projects; and
    (3) Coordinate the operation of the project with the applicant's or 
other electrical systems to minimize the cost of production.
    (B) A discussion of the need of the applicant over the short and 
long term for the electricity generated by the project, including:
    (1) The reasonable costs and reasonable availability of alternative 
sources of power that would be needed by the applicant or its customers, 
including wholesale customers, if the applicant is not granted a license 
for the project;
    (2) A discussion of the increase in fuel, capital, and any other 
costs that would be incurred by the applicant or its customers to 
purchase or generate power necessary to replace the output of the 
licensed project, if the applicant is not granted a license for the 
project;
    (3) The effect of each alternative source of power on:

[[Page 162]]

    (i) The applicant's customers, including wholesale customers;
    (ii) The applicant's operating and load characteristics; and
    (iii) The communities served or to be served, including any 
reallocation of costs associated with the transfer of a license from the 
existing licensee.
    (C) The following data showing need and the reasonable cost and 
availability of alternative sources of power:
    (1) The average annual cost of the power produced by the project, 
including the basis for that calculation;
    (2) The projected resources required by the applicant to meet the 
applicant's capacity and energy requirements over the short and long 
term including:
    (i) Energy and capacity resources, including the contributions from 
the applicant's generation, purchases, and load modification measures 
(such as conservation, if considered as a resource), as separate 
components of the total resources required;
    (ii) A resource analysis, including a statement of system reserve 
margins to be maintained for energy and capacity; and
    (iii) If load management measures are not viewed as resources, the 
effects of such measures on the projected capacity and energy 
requirements indicated separately;
    (iv) For alternative sources of power, including generation of 
additional power at existing facilities, restarting deactivated units, 
the purchase of power off-system, the construction or purchase and 
operation of a new power plant, and load management measures such as 
conservation: The total annual cost of each alternative source of power 
to replace project power; the basis for the determination of projected 
annual cost; and a discussion of the relative merits of each 
alternative, including the issues of the period of availability and 
dependability of purchased power, average life of alternatives, relative 
equivalent availability of generating alternatives, and relative impacts 
on the applicant's power system reliability and other system operating 
characteristics; and the effect on the direct providers (and their 
immediate customers) of alternate sources of power.
    (D) If an applicant uses power for its own industrial facility and 
related operations, the effect of obtaining or losing electricity from 
the project on the operation and efficiency of such facility or related 
operations, its workers, and the related community.
    (E) If an applicant is an Indian tribe applying for a license for a 
project located on the tribal reservation, a statement of the need of 
such Indian tribe for electricity generated by the project to foster the 
purposes of the reservation.
    (F) A comparison of the impact on the operations and planning of the 
applicant's transmission system of receiving or not receiving the 
project license, including:
    (1) An analysis of the effects of any resulting redistribution of 
power flows on line loading (with respect to applicable thermal, 
voltage, or stability limits), line losses, and necessary new 
construction of transmission facilities or upgrading of existing 
facilities, together with the cost impact of these effects;
    (2) An analysis of the advantages that the applicant's transmission 
system would provide in the distribution of the project's power; and
    (3) Detailed single-line diagrams, including existing system 
facilities identified by name and circuit number, that show system 
transmission elements in relation to the project and other principal 
interconnected system elements. Power flow and loss data that represent 
system operating conditions may be appended if applicants believe such 
data would be useful to show that the operating impacts described would 
be beneficial.
    (G) If the applicant has plans to modify existing project facilities 
or operations, a statement of the need for, or usefulness of, the 
modifications, including at least a reconnaissance-level study of the 
effect and projected costs of the proposed plans and any alternate 
plans, which in conjunction with other developments in the area would 
conform with a comprehensive plan for improving or developing the 
waterway and for other beneficial public uses as defined in Section 
10(a)(1) of the Federal Power Act.

[[Page 163]]

    (H) If the applicant has no plans to modify existing project 
facilities or operations, at least a reconnaissance-level study to show 
that the project facilities or operations in conjunction with other 
developments in the area would conform with a comprehensive plan for 
improving or developing the waterway and for other beneficial public 
uses as defined in Section 10(a)(1) of the Federal Power Act.
    (I) A statement describing the applicant's financial and personnel 
resources to meet its obligations under a new license, including 
specific information to demonstrate that the applicant's personnel are 
adequate in number and training to operate and maintain the project in 
accordance with the provisions of the license.
    (J) If an applicant proposes to expand the project to encompass 
additional lands, a statement that the applicant has notified, by 
certified mail, property owners on the additional lands to be 
encompassed by the project and governmental agencies and subdivisions 
likely to be interested in or affected by the proposed expansion.
    (K) The applicant's electricity consumption efficiency improvement 
program, as defined under Section 10(a)(2)(C) of the Federal Power Act, 
including:
    (1) A statement of the applicant's record of encouraging or 
assisting its customers to conserve electricity and a description of its 
plans and capabilities for promoting electricity conservation by its 
customers; and
    (2) A statement describing the compliance of the applicant's energy 
conservation programs with any applicable regulatory requirements.
    (L) The names and mailing addresses of every Indian tribe with land 
on which any part of the proposed project would be located or which the 
applicant reasonably believes would otherwise be affected by the 
proposed project.
    (ii) Information to be provided by an applicant licensee. An 
existing licensee that applies for a new license must provide:
    (A) The information specified in paragraph (c)(1) of this section.
    (B) A statement of measures taken or planned by the licensee to 
ensure safe management, operation, and maintenance of the project, 
including:
    (1) A description of existing and planned operation of the project 
during flood conditions;
    (2) A discussion of any warning devices used to ensure downstream 
public safety;
    (3) A discussion of any proposed changes to the operation of the 
project or downstream development that might affect the existing 
Emergency Action Plan, as described in subpart C of part 12 of this 
chapter, on file with the Commission;
    (4) A description of existing and planned monitoring devices to 
detect structural movement or stress, seepage, uplift, equipment 
failure, or water conduit failure, including a description of the 
maintenance and monitoring programs used or planned in conjunction with 
the devices; and
    (5) A discussion of the project's employee safety and public safety 
record, including the number of lost-time accidents involving employees 
and the record of injury or death to the public within the project 
boundary.
    (C) A description of the current operation of the project, including 
any constraints that might affect the manner in which the project is 
operated.
    (D) A discussion of the history of the project and record of 
programs to upgrade the operation and maintenance of the project.
    (E) A summary of any generation lost at the project over the last 
five years because of unscheduled outages, including the cause, 
duration, and corrective action taken.
    (F) A discussion of the licensee's record of compliance with the 
terms and conditions of the existing license, including a list of all 
incidents of noncompliance, their disposition, and any documentation 
relating to each incident.
    (G) A discussion of any actions taken by the existing licensee 
related to the project which affect the public.
    (H) A summary of the ownership and operating expenses that would be 
reduced if the project license were transferred from the existing 
licensee.
    (I) A statement of annual fees paid under part I of the Federal 
Power Act for the use of any Federal or Indian

[[Page 164]]

lands included within the project boundary.
    (iii) Information to be provided by an applicant who is not an 
existing licensee. An applicant that is not an existing licensee must 
provide:
    (A) The information specified in paragraph (c)(1) of this section.
    (B) A statement of the applicant's plans to manage, operate, and 
maintain the project safely, including:
    (1) A description of the differences between the operation and 
maintenance procedures planned by the applicant and the operation and 
maintenance procedures of the existing licensee;
    (2) A discussion of any measures proposed by the applicant to 
implement the existing licensee's Emergency Action Plan, as described in 
subpart C of part 12 of this chapter, and any proposed changes;
    (3) A description of the applicant's plans to continue safety 
monitoring of existing project instrumentation and any proposed changes; 
and
    (4) A statement indicating whether or not the applicant is 
requesting the licensee to provide transmission services under section 
15(d) of the Federal Power Act.
    (d) Consistency with comprehensive plans. An application for license 
under this part must include an explanation of why the project would, 
would not, or should not, comply with any relevant comprehensive plan as 
defined in Sec. 2.19 of this chapter and a description of any relevant 
resource agency or Indian tribe determination regarding the consistency 
of the project with any such comprehensive plan.
    (e) Response to information requests. An application for license 
under this Section must respond to any requests for additional 
information-gathering or studies filed with comments on its preliminary 
licensing proposal or draft license application. If the license 
applicant agrees to do the information-gathering or study, it must 
provide the information or include a plan and schedule for doing so, 
along with a schedule for completing any remaining work under the 
previously approved study plan, as it may have been amended. If the 
applicant does not agree to any additional information-gathering or 
study requests made in comments on the draft license application, it 
must explain the basis for declining to do so.
    (f) Maps and drawings. All required maps and drawings must conform 
to the specifications of Sec. 4.39 of this chapter.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68 
FR 69957, Dec. 16, 2003]



Sec. 5.19  Tendering notice and schedule.

    (a) Notice. Within 14 days of the filing date of any application for 
a license developed pursuant to this part, the Commission will issue 
public notice of the tendering for filing of the application. The 
tendering notice will include a preliminary schedule for expeditious 
processing of the application, including dates for:
    (1) Issuance of the acceptance for filing and ready for 
environmental analysis notice provided for in Sec. 5.22.
    (2) Filing of recommendations, preliminary terms and conditions, and 
fishway prescriptions;
    (3) Issuance of a draft environmental assessment or environmental 
impact statement, or an environmental assessment not preceded by a 
draft.
    (4) Filing of comments on the draft environmental assessment or 
environmental impact statement, as applicable;
    (5) Filing of modified recommendations, mandatory terms and 
conditions, and fishway prescriptions in response to a draft NEPA 
document or Environmental Analysis, if no draft NEPA document is issued;
    (6) Issuance of a final NEPA document, if any;
    (7) In the case of a new or subsequent license application, a 
deadline for submission of final amendments, if any, to the application; 
and
    (8) Readiness of the application for Commission decision.
    (b) Modifications to process plan and schedule. The tendering notice 
shall also include any known modifications to the schedules developed 
pursuant to Sec. 5.8 for completion of consultation under section 7 of 
the Endangered Species Act and water quality certification under section 
401 of the Clean Water Act.

[[Page 165]]

    (c) Method of notice. The public notice provided for in paragraphs 
(a) and (b) of this Section will be given by:
    (1) Publishing notice in the Federal Register; and
    (2) Notifying appropriate Federal, state, and interstate resource 
agencies, state water quality and coastal zone management plan 
consistency certification agencies, Indian tribes, and non-governmental 
organizations, by electronic means if practical, otherwise by mail.
    (d) Resolution of pending information requests. Within 30 days of 
the filing date of any application for a license developed pursuant to 
this part, the Director of the Office of Energy Projects will issue an 
order resolving any requests for additional information-gathering or 
studies made in comments on the preliminary licensing proposal or draft 
license application.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68 
FR 69957, Dec. 16, 2003; Order 653, 70 FR 8724, Feb. 23, 2005]



Sec. 5.20  Deficient applications.

    (a) Deficient applications. (1) If an applicant believes that its 
application conforms adequately to the pre-filing consultation and 
filing requirements of this part without containing certain required 
materials or information, it must explain in detail why the material or 
information is not being submitted and what steps were taken by the 
applicant to provide the material or information.
    (2) Within 30 days of the filing date of any application for a 
license under this part, the Director of the Office of Energy Projects 
will notify the applicant if, in the Director's judgment, the 
application does not conform to the prefiling consultation and filing 
requirements of this part, and is therefore considered deficient. An 
applicant having a deficient application will be afforded additional 
time to correct the deficiencies, not to exceed 90 days from the date of 
notification. Notification will be by letter or, in the case of minor 
deficiencies, by telephone. Any notification will specify the 
deficiencies to be corrected. Deficiencies must be corrected by 
submitting an a filing pursuant to the requirements of subpart T of part 
385 of this chapter within the time specified in the notification of 
deficiency.
    (3) If the revised application is found not to conform to the 
prefiling consultation and filing requirements of this part, or if the 
revisions are not timely submitted, the revised application will be 
rejected. Procedures for rejected applications are specified in 
paragraph (b)(3) of this section.
    (b) Patently deficient applications. (1) If, within 30 days of its 
filing date, the Director of the Office of Energy Projects determines 
that an application patently fails to substantially comply with the 
prefiling consultation and filing requirements of this part, or is for a 
project that is precluded by law, the application will be rejected as 
patently deficient with the specification of the deficiencies that 
render the application patently deficient.
    (2) If, after 30 days following its filing date, the Director of the 
Office of Energy Projects determines that an application patently fails 
to comply with the prefiling consultation and filing requirements of 
this part, or is for a project that is precluded by law:
    (i) The application will be rejected by order of the Commission, if 
the Commission determines that it is patently deficient; or
    (ii) The application will be considered deficient under paragraph 
(a)(2) of this Section, if the Commission determines that it is not 
patently deficient.
    (3) Any application for an original license that is rejected may be 
submitted if the deficiencies are corrected and if, in the case of a 
competing application, the resubmittal is timely. The date the rejected 
application is resubmitted will be considered the new filing date for 
purposes of determining its timeliness under Sec. 4.36 of this chapter 
and the disposition of competing applications under Sec. 4.37 of this 
chapter.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]



Sec. 5.21  Additional information.

    An applicant may be required to submit any additional information or 
documents that the Commission considers relevant for an informed 
decision on the application. The information or documents must take the 
form, and must be submitted within the time,

[[Page 166]]

that the Commission prescribes. An applicant may also be required to 
provide within a specified time additional copies of the complete 
application, or any of the additional information or documents that are 
filed, to the Commission or to any person, agency, Indian tribe or other 
entity that the Commission specifies. If an applicant fails to provide 
timely additional information, documents, or copies of submitted 
materials as required, the Commission may dismiss the application, hold 
it in abeyance, or take other appropriate action under this chapter or 
the Federal Power Act.



Sec. 5.22  Notice of acceptance and ready for environmental analysis.

    (a) When the Commission has determined that the application meets 
the Commission's requirements as specified in Sec. Sec. 5.18 and 5.19, 
the approved studies have been completed, any deficiencies in the 
application have been cured, and no other additional information is 
needed, it will issue public notice as required in the Federal Power 
Act:
    (1) Accepting the application for filing and specifying the date 
upon which the application was accepted for filing (which will be the 
application filing date if the Secretary receives all of the information 
and documents necessary to conform to the requirements of Sec. Sec. 5.1 
through 5.21, as applicable, within the time frame prescribed in Sec. 
5.20 or Sec. 5.21);
    (2) Finding that the application is ready for environmental 
analysis;
    (3) Requesting comments, protests, and interventions;
    (4) Requesting recommendations, preliminary terms and conditions, 
and preliminary fishway prescriptions, including all supporting 
documentation; and
    (5) Establishing the date for final amendments to applications for 
new or subsequent licenses; and
    (6) Updating the schedule issued with the tendering notice for 
processing the application.
    (b) If the project affects lands of the United States, the 
Commission will notify the appropriate Federal office of the application 
and the specific lands affected, pursuant to Section 24 of the Federal 
Power Act.
    (c) For an application for a license seeking benefits under Section 
210 of the Public Utility Regulatory Polices Act of 1978, as amended, 
for a project that would be located at a new dam or diversion, the 
Applicant must serve the public notice issued under paragraph (a)(1) of 
this Section to interested agencies at the time the applicant is 
notified that the application is accepted for filing.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]



Sec. 5.23  Response to notice.

    (a) Comments and reply comments. Comments, protests, interventions, 
recommendations, and preliminary terms and conditions or preliminary 
fishway prescriptions must be filed no later than 60 days after the 
notice of acceptance and ready for environmental analysis. All reply 
comments must be filed within 105 days of that notice.
    (b) Water quality certification. (1) With regard to certification 
requirements for a license applicant under Section 401(a)(1) of the 
Federal Water Pollution Control Act (Clean Water Act), the license 
applicant must file no later than 60 days following the date of issuance 
of the notice of acceptance and ready for environmental analysis provide 
for in Sec. 5.22:
    (i) A copy of the water quality certification;
    (ii) A copy of the request for certification, including proof of the 
date on which the certifying agency received the request; or
    (iii) Evidence of waiver of water quality certification as described 
in paragraph (b)(5)(2) of this Section.
    (2) A certifying agency is deemed to have waived the certification 
requirements of section 401(a)(1) of the Clean Water Act if the 
certifying agency has not denied or granted certification by one year 
after the date the certifying agency received a written request for 
certification. If a certifying agency denies certification, the 
applicant must file a copy of the denial within 30 days after the 
applicant received it.
    (3) Notwithstanding any other provision in 18 CFR part 4, subpart B, 
any application to amend an existing license, and any application to 
amend a

[[Page 167]]

pending application for a license, requires a new request for water 
quality certification pursuant to Sec. 4.34(b)(5) of this chapter if 
the amendment would have a material adverse impact on the water quality 
in the discharge from the project or proposed project.



Sec. 5.24  Applications not requiring a draft NEPA document.

    (a) If the Commission determines that a license application will be 
processed with an environmental assessment rather than an environmental 
impact statement and that a draft environmental assessment will not be 
required, the Commission will issue the environmental assessment for 
comment no later than 120 days from the date responses are due to the 
notice of acceptance and ready for environmental analysis.
    (b) Each environmental assessment issued pursuant to this paragraph 
must include draft license articles, a preliminary determination of 
consistency of each fish and wildlife agency recommendation made 
pursuant to Federal Power Act section 10(j) with the purposes and 
requirements of the Federal Power Act and other applicable law, as 
provided for in Sec. 5.26, and any preliminary mandatory terms and 
conditions and fishway prescriptions.
    (c) Comments on an environmental assessment issued pursuant to 
paragraph (a) of this section, including comments in response to the 
Commission's preliminary determination with respect to fish and wildlife 
agency recommendations and on preliminary mandatory terms and conditions 
or fishway prescriptions, must be filed no later than 30 or 45 days 
after issuance of the environmental assessment, as specified in the 
notice accompanying issuance of the environmental assessment, as should 
any revisions to supporting documentation.
    (d) Modified mandatory prescriptions or terms and conditions must be 
filed no later than 60 days following the date for filing of comments 
provided for in paragraph (c) of this section, as specified in the 
notice accompanying issuance of the environmental analysis.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]



Sec. 5.25  Applications requiring a draft NEPA document.

    (a) If the Commission determines that a license application will be 
processed with an environmental impact statement, or a draft and final 
environmental assessment, the Commission will issue the draft 
environmental impact statement or environmental assessment for comment 
no later than 180 days from the date responses are due to the notice of 
acceptance and ready for environmental analysis provided for in Sec. 
5.22.
    (b) Each draft environmental document will include for comment draft 
license articles, a preliminary determination of the consistency of each 
fish and wildlife agency recommendation made pursuant to section 10(j) 
of the Federal Power Act with the purposes and requirements of the 
Federal Power Act and other applicable law, as provided for in Sec. 
5.26, and any preliminary mandatory terms and conditions and fishways 
prescriptions.
    (c) Comments on a draft environmental document issued pursuant to 
paragraph (b) of this section, including comments in response to the 
Commission's preliminary determination with respect to fish and wildlife 
agency recommendations and on preliminary mandatory terms and conditions 
or prescriptions must be filed no later than 30 or 60 days after 
issuance of the draft environmental document, as specified in the notice 
accompanying issuance of the draft environmental document.
    (d) Modified mandatory prescriptions or terms and conditions must be 
filed no later than 60 days following the date for filing of comments 
provided for in paragraph (c) of this section.
    (e) The Commission will issue a final environmental document within 
90 days following the date for filing of modified mandatory 
prescriptions or terms and conditions.



Sec. 5.26  Section 10(j) process.

    (a) In connection with its environmental review of an application 
for license, the Commission will analyze all terms and conditions timely 
recommended by fish and wildlife agencies

[[Page 168]]

pursuant to the Fish and Wildlife Coordination Act for the protection, 
mitigation of damages to, and enhancement of fish and wildlife 
(including related spawning grounds and habitat) affected by the 
development, operation, and management of the proposed project. 
Submission of such recommendations marks the beginning of the process 
under section 10(j) of the Federal Power Act.
    (b) The agency must specifically identify and explain the 
recommendations and the relevant resource goals and objectives and their 
evidentiary or legal basis. The Commission may seek clarification of any 
recommendation from the appropriate fish and wildlife agency. If the 
Commission's request for clarification is communicated in writing, 
copies of the request will be sent by the Commission to all parties, 
affected resource agencies, and Indian tribes, which may file a response 
to the request for clarification within the time period specified by the 
Commission. If the Commission believes any fish and wildlife 
recommendation may be inconsistent with the Federal Power Act or other 
applicable law, the Commission will make a preliminary determination of 
inconsistency in the draft environmental document or, if none, the 
environmental assessment. The preliminary determination, for any 
recommendations believed to be inconsistent, shall include an 
explanation why the Commission believes the recommendation is 
inconsistent with the Federal Power Act or other applicable law, 
including any supporting analysis and conclusions and an explanation of 
how the measures recommended in the environmental document would 
adequately and equitably protect, mitigate damages to, and enhance, fish 
and wildlife (including related spawning grounds and habitat) affected 
by the development, operation, and management of the project.
    (c) Any party, affected resource agency, or Indian tribe may file 
comments in response to the preliminary determination of inconsistency, 
including any modified recommendations, within the time frame allotted 
for comments on the draft environmental document or, if none, the time 
frame for comments on the environmental assessment. In this filing, the 
fish and wildlife agency concerned may also request a meeting, telephone 
or video conference, or other additional procedure to attempt to resolve 
any preliminary determination of inconsistency.
    (d) The Commission shall attempt, with the agencies, to reach a 
mutually acceptable resolution of any such inconsistency, giving due 
weight to the recommendations, expertise, and statutory responsibilities 
of the fish and wildlife agency. If the Commission decides, or an 
affected resource agency requests, the Commission will conduct a 
meeting, telephone or video conference, or other procedures to address 
issues raised by its preliminary determination of inconsistency and 
comments thereon. The Commission will give at least 15 days' advance 
notice to each party, affected resource agency, or Indian tribe, which 
may participate in the meeting or conference. Any meeting, conference, 
or additional procedure to address these issues will be scheduled to 
take place within 90 days of the date the Commission issues a 
preliminary determination of inconsistency. The Commission will prepare 
a written summary of any meeting held under this paragraph to discuss 
section 10(j) issues, including any proposed resolutions and supporting 
analysis, and a copy of the summary will be sent to all parties, 
affected resource agencies, and Indian tribes.
    (e) The section 10(j) process ends when the Commission issues an 
order granting or denying the license application in question. If, after 
attempting to resolve inconsistencies between the fish and wildlife 
recommendations of a fish and wildlife agency and the purposes and 
requirements of the Federal Power Act or other applicable law, the 
Commission does not adopt in whole or in part a fish and wildlife 
recommendation of a fish and wildlife agency, the Commission will 
publish the findings and statements required by section 10(j)(2) of the 
Federal Power Act.



Sec. 5.27  Amendment of application.

    (a) Procedures. If an Applicant files an amendment to its 
application that would materially change the project's

[[Page 169]]

proposed plans of development, as provided in Sec. 4.35 of this 
chapter, an agency, Indian tribe, or member of the public may modify the 
recommendations or terms and conditions or prescriptions it previously 
submitted to the Commission pursuant to Sec. Sec. 5.20-5.26. Such 
modified recommendations, terms and conditions, or prescriptions must be 
filed no later than the due date specified by the Commission for 
comments on the amendment.
    (b) Date of acceptance. The date of acceptance of an amendment of 
application for an original license filed under this part is governed by 
the provisions of Sec. 4.35 of this chapter.
    (c) New and subsequent licenses. The requirements of Sec. 4.35 of 
this chapter do not apply to an application for a new or subsequent 
license, except that the Commission will reissue a public notice of the 
application in accordance with the provisions of Sec. 4.32(d)(2) of 
this chapter if a material amendment, as that term is used in Sec. 
4.35(f) of this chapter, is filed.
    (d) Deadline. All amendments to an application for a new or 
subsequent license, including the final amendment, must be filed with 
the Commission and served on all competing applicants no later than the 
date specified in the notice issued under Sec. 5.22.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]



Sec. 5.28  Competing applications.

    (a) Site access for a competing applicant. The provisions of Sec. 
16.5 of this chapter shall govern site access for a potential license 
application to be filed in competition with an application for a new or 
subsequent license by an existing licensee pursuant to this part, except 
that references in Sec. 16.5 to the pre-filing consultation provisions 
in parts 4 and 16 of this chapter shall be construed in a manner 
compatible with the effective administration of this part.
    (b) Competing applications. The provisions of Sec. 4.36 of this 
chapter shall apply to competing applications for original, new, or 
subsequent licenses filed under this part.
    (c) New or subsequent license applications--final amendments; better 
adapted statement. Where two or more mutually exclusive competing 
applications for new or subsequent license have been filed for the same 
project, the final amendment date and deadlines for complying with 
provisions of Sec. 4.36(d)(2) (ii) and (iii) of this chapter 
established pursuant to the notice issued under Sec. 5.22 will be the 
same for all such applications.
    (d) Rules of preference among competing applicants. The Commission 
will select among competing applications according to the provisions of 
Sec. 4.37 of this chapter.

[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]



Sec. 5.29  Other provisions.

    (a) Filing requirement. Unless otherwise provided by statute, 
regulation or order, all filings in hydropower hearings, except those 
conducted by trial-type procedures, must conform to the requirements of 
18 CFR part 385, subpart T of this chapter.
    (b) Waiver of compliance with consultation requirements. (1) If an 
agency, Indian tribe, or member of the public waives in writing 
compliance with any consultation requirement of this part, an applicant 
does not have to comply with the requirement as to that agency, Indian 
tribe, or member of the public.
    (2) If an agency, Indian tribe, member of the public fails to timely 
comply with a provision regarding a requirement of this section, an 
applicant may proceed to the next sequential requirement of this section 
without waiting for the agency, Indian tribe, or member of the public.
    (c) Requests for privileged treatment of pre-filing submission. If a 
potential Applicant requests privileged treatment of any information 
submitted to the Commission during pre-filing consultation (except for 
the information specified in Sec. 5.4), the Commission will treat the 
request in accordance with the provisions in Sec. 388.112 of this 
chapter until the date the application is filed with the Commission.
    (d) Conditional applications. Any application, the effectiveness of 
which is conditioned upon the future occurrence of any event or 
circumstance, will be rejected.

[[Page 170]]

    (e) Trial-type hearing. The Commission may order a trial-type 
hearing on an application for a license under this part either upon its 
own motion or the motion of any interested party of record. Any trial-
type hearing will be limited to the issues prescribed by order of the 
Commission. In all other cases, the hearings will be conducted by notice 
and comment procedures.
    (f) Notice and comment hearings. (1) All comments and reply comments 
and all other filings described in this part must be served on all 
persons on the service list prepared by the Commission, in accordance 
with the requirements of Sec. 385.2010 of this chapter. If a party 
submits any written material to the Commission relating to the merits of 
an issue that may affect the responsibility of particular resource 
agency, the party must also serve a copy of the submission on that 
resource agency.
    (2) The Director of Energy Projects may waive or modify any of the 
provisions of this part for good cause. A commenter or reply commenter 
may obtain an extension of time from the Commission only upon a showing 
of good cause or extraordinary circumstances in accordance with Sec. 
385.2008 of this chapter.
    (3) Late-filed recommendations by fish and wildlife agencies 
pursuant to the Fish and Wildlife Coordination Act and section 10(j) of 
the Federal Power Act for the protection, mitigation of damages to, and 
enhancement of fish and wildlife affected by the development, operation, 
and management of the proposed project and late-filed terms and 
conditions or prescriptions filed pursuant to sections 4(e) and 18 of 
the Federal Power Act, respectively, will be considered by Commission 
under section 10(a) of the Federal Power Act if such consideration would 
not delay or disrupt the proceeding.
    (g) Settlement negotiations. (1) The Commission will consider, on a 
case-by-case basis, requests for a short suspension of the procedural 
schedule for the purpose of participants conducting settlement 
negotiations, where it determines that the suspension will not adversely 
affect timely action on a license application. In acting on such 
requests, the Commission will consider, among other things:
    (i) Whether requests for suspension of the procedural schedule have 
previously been made or granted;
    (ii) Whether the request is supported by a consensus of participants 
in the proceeding and an explanation of objections to the request 
expressed by any participant;
    (iii) The likelihood that a settlement agreement will be filed 
within the requested suspension period; and
    (iv) Whether the requested suspension is likely to cause any new or 
subsequent license to be issued after the expiration of the existing 
license.
    (2) The Commission reserves the right to terminate any suspension of 
the procedural schedule if it concludes that insufficient progress is 
being made toward the filing of a settlement agreement.
    (h) License conditions and required findings. (1) All licenses shall 
be issued on the conditions specified in Section 10 of the Federal Power 
Act and such other conditions as the Commission determines are lawful 
and in the public interest.
    (2) Subject to paragraph (f)(3) of this section, fish and wildlife 
conditions shall be based on recommendations timely received from the 
fish and wildlife agencies pursuant to the Fish and Wildlife 
Coordination Act.
    (3) The Commission will consider the timely recommendations of 
resource agencies, other governmental units, and members of the public, 
and the timely recommendations (including fish and wildlife 
recommendations) of Indian tribes affected by the project.
    (4) Licenses for a project located within any Federal reservation 
shall be issued only after the findings required by, and subject to any 
conditions that may be timely filed pursuant to section 4(e) of the 
Federal Power Act.
    (5) The Commission will require the construction, maintenance, and 
operation of such fishways as may be timely prescribed by the Secretary 
of Commerce or the Secretary of the Interior, as appropriate, pursuant 
to section 18 of the Federal Power Act.
    (i) Standards and factors for issuing a new license. (1) In 
determining whether a final proposal for a new license under section 15 
of the Federal Power Act is

[[Page 171]]

best adapted to serve the public interest, the Commission will consider 
the factors enumerated in sections 15(a)(2) and (a)(3) of the Federal 
Power Act.
    (2) If there are only insignificant differences between the final 
applications of an existing licensee and a competing Applicant after 
consideration of the factors enumerated in section 15(a)(2) of the 
Federal Power Act, the Commission will determine which Applicant will 
receive the license after considering:
    (i) The existing licensee's record of compliance with the terms and 
conditions of the existing license; and
    (ii) The actions taken by the existing licensee related to the 
project which affect the public.
    (iii) An existing licensee that files an application for a new 
license in conjunction with an entity or entities that are not currently 
licensees of all or part of the project will not be considered an 
existing licensee for the purpose of the insignificant differences 
provision of section 15(a)(2) of the Federal Power Act.
    (j) Fees under section 30(e) of the Federal Power Act. The 
requirements of 18 CFR part 4, subpart M, of this chapter, fees under 
section 30(e) of the Federal Power Act, apply to license applications 
developed under this part.



Sec. 5.30  Critical energy infrastructure information.

    If any action required by this part requires a potential Applicant 
or Applicant to reveal Critical Energy Infrastructure Information, as 
defined by Sec. 388.113(c) of this chapter, to the public, the 
Applicant must follow the procedures set out in Sec. 4.32(k) of this 
chapter.



Sec. 5.31  Transition provision.

    This part shall apply to license applications for which the deadline 
for filing a notification of intent to seek a new or subsequent license, 
or for filing a notification of intent to file an original license 
application, as required by Sec. 5.5 of this part, is July 23, 2005 or 
later.



PART 6_SURRENDER OR TERMINATION OF LICENSE--Table of Contents

Sec.
6.1 Application for surrender.
6.2 Surrender of license.
6.3 Termination of license.
6.4 Termination by implied surrender.
6.5 Annual charges.

    Authority: Secs. 6, 10(i), 13, 41 Stat. 1067, 1068, 1071, as 
amended, sec. 309, 49 Stat. 858; 16 U.S.C. 799, 803(i), 806, 825h; Pub. 
L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.), unless otherwise 
noted.



Sec. 6.1  Application for surrender.

    Every application for surrender of a license shall state the reason 
therefor; and, except in the case of an application for surrender of a 
license for a minor project, or for a transmission line only, shall be 
executed by the licensee and filed in the same form and manner as the 
application for license, and shall be accompanied by the license and all 
amendments thereof. Public notice of such application shall be given at 
least 30 days prior to action upon the application.

(Secs. 308 and 309; 49 Stat. 858, 859 (16 U.S.C. 825g, 825h))

[Order No. 570, 42 FR 40191, Aug. 9, 1977]

    Cross References: For application for license, general provisions, 
see Sec. Sec. 4.30 to 4.33, inclusive, of this chapter. For application 
for license for proposed major project or minor part thereof, see 
Sec. Sec. 4.40 to 4.42, inclusive, of this chapter. For application for 
license for constructed major project or minor part thereof, see 
Sec. Sec. 4.50 and 4.51 of this chapter. For forms for application for 
licenses, see Sec. Sec. 131.2 to 131.6, inclusive, of this chapter.



Sec. 6.2  Surrender of license.

    Licenses may be surrendered only upon the fulfillment by the 
licensee of such obligations under the license as the Commission may 
prescribe, and, if the project works authorized under the license have 
been constructed in whole or in part, upon such conditions with respect 
to the disposition of such works as may be determined by the Commission. 
Where project works have been constructed on lands of the United States 
the licensee will be required to restore the lands to a condition 
satisfactory to the Department having supervision over such lands and

[[Page 172]]

annual charges will continue until such restoration has been 
satisfactorily completed.

[Order 175, 19 FR 5217, Aug. 18, 1954]



Sec. 6.3  Termination of license.

    Licenses may be terminated by written order of the Commission not 
less than 90 days after notice thereof shall have been mailed to the 
licensee by certified mail to the last address whereof the Commission 
has been notified by the licensee, if there is failure to commence 
actual construction of the project works within the time prescribed in 
the license, or as extended by the Commission. Upon like notice, the 
authority granted under a license with respect to any separable part of 
the project works may be terminated if there is failure to begin 
construction of such separable part within the time prescribed or as 
extended by the Commission.

(Administrative Procedure Act, 5 U.S.C. 551-557 (1976); Federal Power 
Act, as amended, 16 U.S.C. 291-628 (1976 & Supp. V 1981), Dept. of 
Energy Organization Act 42 U.S.C. 7101-7352 (Supp. V 1981); E.O. 12009, 
3 CFR 142 (1978))

[Order 141, 12 FR 8491, Dec. 19, 1947, as amended by Order 344, 48 FR 
49010, Oct. 24, 1983]



Sec. 6.4  Termination by implied surrender.

    If any licensee holding a license subject to the provisions of 
section 10(i) of the Act shall cause or suffer essential project 
property to be removed or destroyed, or become unfit for use, without 
replacement, or shall abandon, or shall discontinue good faith operation 
of the project for a period of three years, the Commission will deem it 
to be the intent of the licensee to surrender the license; and not less 
than 90 days after public notice may in its discretion terminate the 
license.

[Order 141, 12 FR 8491, Dec. 19, 1947]



Sec. 6.5  Annual charges.

    Annual charges arising under a license surrendered or terminated 
shall continue until the effective date set forth in the Commission's 
order with respect to such surrender or termination.

[Order 175, 19 FR 5217, Aug. 18, 1954]

    Cross Reference: For annual charges, see part 11 of this chapter.



PART 8_RECREATIONAL OPPORTUNITIES AND DEVELOPMENT AT LICENSED PROJECTS
--Table of Contents

Sec.
8.1 Publication of license conditions relating to recreation.
8.2 Posting of project lands as to recreational use and availability of 
          information.
8.3 Discrimination prohibited.
8.11 Information respecting use and development of public recreational 
          opportunities.

    Authority: 5 U.S.C. 551-557; 16 U.S.C. 791a-825r; 42 U.S.C. 7101-
7352.



Sec. 8.1  Publication of license conditions relating to recreation.

    Following the issuance or amendment of a license, the licensee shall 
make reasonable efforts to keep the public informed of the availability 
of project lands and waters for recreational purposes, and of the 
license conditions of interest to persons who may be interested in the 
recreational aspects of the project or who may wish to acquire lands in 
its vicinity. Such efforts shall include but not be limited to: the 
publication of notice in a local newspaper once each week for 4 weeks of 
the project's license conditions which relate to public access to and 
the use of the project waters and lands for recreational purposes, 
recreational plans, installation of recreation and fish and wildlife 
facilities, reservoir water surface elevations, minimum water releases 
or rates of change of water releases and such other conditions of 
general public interest as the Commission may designate in the order 
issuing or amending the license.

[Order 299, 30 FR 7313, June 3, 1965]



Sec. 8.2  Posting of project lands as to recreational use and 
availability of information.

    (a) Following the issuance or amendment of a license, the licensee 
shall post and shall maintain at all points of public access which are 
required by the license (or at such access points as are specifically 
designated for this purpose by the licensee) and at such other

[[Page 173]]

points as are subsequently prescribed by the Commission on its own 
motion or upon the recommendation of a public recreation agency 
operating in the area in which the project is located, a conspicuous 
sign giving the name of the project and the owner of the project, a 
statement that it is licensed by the Commission and the project number, 
directions to the areas of the project which are available for public 
recreation use, permissible times and activities, and other regulations 
regarding such use, and advising that further information may be 
obtained at local offices of the licensee in the vicinity of the 
project. In addition, the licensee shall post at such locations 
conspicuous notice that the recreation facilities are open to all 
members of the public without discrimination.
    (b) The licensee shall make available for inspection at its local 
offices in the vicinity of the project the recreation plan approved by 
the Commission and the entire license instrument, properly indexed for 
easy reference to the license conditions designated for publications in 
Sec. 8.1.

[Order 299, 30 FR 7313, June 3, 1965, as amended by Order 341, 32 FR 
6488, Apr. 27, 1967; 32 FR 11640, Aug. 11, 1967]



Sec. 8.3  Discrimination prohibited.

    Every licensee maintaining recreation facilities for the use of the 
public at a licensed project, or employing or permitting any other 
person to maintain such facilities, shall permit, or require such other 
person to permit, equal and unobstructed use of such facilities to all 
members of the public without regard to race, color, religious creed or 
national origin.

[Order 341, 32 FR 6488, Apr. 27, 1967]



Sec. 8.11  Information respecting use and development of public 
recreational opportunities.

    (a) Applicability. (1) Except as provided in paragraph (b) of this 
section, each licensee of a project under major or minor Commission 
license shall prepare with respect to each development within such 
project an original and two conformed copies of FERC Form No. 80 
prescribed by Sec. 141.14 of this chapter and submit them to a 
Commission Regional Office pursuant to the requirements in the General 
Information portion of the form.
    (2) FERC Form No. 80 is due on April 1, 1991, for data compiled 
during the calendar year ending December 31, 1990. Thereafter, FERC Form 
No. 80 is due on April 1 of every sixth year for data compiled during 
the previous calendar year.
    (3) The Form No. 80 shall be completed in its entirety for each 
initial filing of the report. Filings of Form No. 80 made subsequent to 
an initial filing of the report shall be completed only to the extent 
necessary to change, delete or add to the information supplied in a 
previously-filed form.
    (4) A copy of the Form No. 80 should be retained by the respondent 
licensee in its file.
    (b) Initial Form No. 80 filings. Each licensee of an unconstructed 
project shall file an initial Form No. 80 after such project has been in 
operation for a full calendar year prior to the filing deadline. Each 
licensee of an existing (constructed) project shall file an initial Form 
No. 80 after such project has been licensed for a full calendar year 
prior to the filing deadline.
    (c) Exemptions. A licensee who has filed a Form No. 80 may request 
an exemption from any further filing of the form for any development 
that has no existing or potential recreational use or only a minor 
existing or potential recreational use (as indicated by fewer than 100 
recreation days of use during the previous calendar year) by submitting 
a statement not later than 6 months prior to the due date for the next 
filing, stating that Form No. 80 has been filed previously for such 
development and setting out the basis for believing that the development 
has no existing or potential recreational use or a minor existing or 
potential recreational use.

(Approved by the Office of Management and Budget under control number 
1902-0106)

[46 FR 50059, Oct. 9, 1981, as amended by 49 FR 5073, Feb. 10, 1984; 
Order 419, 50 FR 20096, May 14, 1985; Order 540, 57 FR 21737, May 22, 
1992]

[[Page 174]]



PART 9_TRANSFER OF LICENSE OR LEASE OF PROJECT PROPERTY--Table of Contents

                   Application for Transfer of License

Sec.
9.1 Filing.
9.2 Contents of application.
9.3 Transfer.

                Application for Lease of Project Property

9.10 Filing.

    Authority: Sec. 8, 41 Stat. 1068, sec. 309, 49 Stat. 858; 16 U.S.C. 
801, 825h; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.)

    Cross Reference: For application for approval of transfer of 
license, see Sec. 131.20 of this chapter.

                   Application for Transfer of License



Sec. 9.1  Filing.

    Any licensee desiring to transfer a license or rights thereunder 
granted, and the person, association, corporation, State, or 
municipality desiring to acquire the same, shall jointly or severally 
file an application for approval of such transfer and acquisition. Such 
application shall be verified, shall conform to Sec. 131.20 of this 
chapter, and shall be filed in accordance with Sec. 4.32 of this 
chapter.

[Order 501, 39 FR 2267, Jan. 18, 1974, as amended by Order 2002, 68 FR 
51139, Aug. 25, 2003]



Sec. 9.2  Contents of application.

    Every application for approval of such transfer and acquisition by 
the proposed transferee shall set forth in appropriate detail the 
qualifications of the transferee to hold such license and to operate the 
property under license, which qualifications shall be the same as those 
required of applicants for license.

[Order 141, 12 FR 8491, Dec. 19, 1947]

    Cross References: For administrative rules relating to applicants 
for license, see part 385 of this chapter. For regulations as to 
licenses and permits, see part 4 of this chapter.



Sec. 9.3  Transfer.

    (a) Approval by the Commission of transfer of a license is 
contingent upon the transfer of title to the properties under license, 
delivery of all license instruments, and a showing that such transfer is 
in the public interest. The transferee shall be subject to all the 
conditions of the license and to all the provisions and conditions of 
the act, as though such transferee were the original licensee and shall 
be responsible for the payment of annual charges which accrue prior to 
the date of transfer.
    (b) When the Commission shall have approved the transfer of the 
license, its order of approval shall be forwarded to the transferee for 
acknowledgment of acceptance. Unless application for rehearing is filed, 
or unless the order is stayed by the Commission, the order shall become 
final thirty (30) days from date of issuance and the acknowledgment of 
acceptance shall be filed in triplicate with the Commission within sixty 
(60) days from date of issuance accompanied by a certified copy of the 
deed of conveyance or other instrument evidencing transfer of the 
property under license, together with evidence of the recording thereof.

[Order 175, 19 FR 5217, Aug. 18, 1954]

                Application for Lease of Project Property



Sec. 9.10  Filing.

    Any licensee desiring to lease the project property covered by a 
license or any part thereof, whereby the lessee is granted the exclusive 
occupancy, possession, or use of project works for purposes of 
generating, transmitting, or distributing power, and the person, 
association, or corporation, State, or municipality desiring to acquire 
such project property by lease, shall file as many copies of such 
proposed lease together with as many copies of the application as 
required in accordance with Sec. 4.32(b)(1) of this chapter. Such 
application and action thereon by the Commission will, in general, be 
subject to the provisions of Sec. Sec. 9.1 through 9.3.

[Order 501, 39 FR 2267, Jan. 18, 1974, as amended by Order 2002, 68 FR 
51139, Aug. 25, 2003]

[[Page 175]]



PART 11_ANNUAL CHARGES UNDER PART I OF THE FEDERAL POWER ACT--Table of 
Contents


 Subpart A_Charges for Costs of Administration, Use of Tribal Lands and 
           Other Government Lands, and Use of Government Dams

Sec.
11.1 Costs of administration.
11.2 Use of government lands.
11.3 Use of government dams, excluding pumped storage projects.
11.4 Use of government dams for pumped storage projects, and use of 
          tribal lands.
11.5 Exemption of minor projects.
11.6 Exemption of State and municipal licensees and exemptees.
11.7 Effective date.
11.8 Adjustment of annual charges.

                Subpart B_Charges for Headwater Benefits

11.10 General provision; waiver and exemption; definitions.
11.11 Energy gains method of determining headwater benefits charges.
11.12 Determination of section 10(f) costs.
11.13 Energy gains calculations.
11.14 Procedures for establishing charges without an energy gains 
          investigation.
11.15 Procedures for determining charges by energy gains investigation.
11.16 Filing requirements.
11.17 Procedures for payment of charges and costs.

                      Subpart C_General Procedures

11.20 Time for payment.
11.21 Penalties.

Appendix A to Part 11--Fee Schedule for FY 2006

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



 Subpart A_Charges for Costs of Administration, Use of Tribal Lands and 
           Other Government Lands, and Use of Government Dams



Sec. 11.1  Costs of administration.

    (a) Authority. Pursuant to section 10(e) of the Federal Power Act 
and section 3401 of the Omnibus Budget Reconciliation Act of 1986, the 
Commission will assess reasonable annual charges against licensees and 
exemptees to reimburse the United States for the costs of administration 
of the Commission's hydropower regulatory program.
    (b) Scope. The annual charges under this section will be charged to 
and allocated among:
    (1) All licensees of projects of more than 1.5 megawatts of 
installed capacity; and
    (2) All holders of exemptions under either section 30 of the Federal 
Power Act or sections 405 and 408 of the Public Utility Regulatory 
Policies Act of 1978, as amended by section 408 of the Energy Security 
Act of 1980, but only if the exemption was issued subsequent to April 
21, 1995 and is for a project of more than 1.5 megawatts of installed 
capacity.
    (3) If the exemption for a project of more than 1.5 megawatts of 
installed capacity was issued subsequent to April 21, 1995 but pursuant 
to an application filed prior to that date, the exemptee may credit 
against its annual charge any filing fee paid pursuant to Sec. 381.601 
of this chapter, which was removed effective April 21, 1995, 18 CFR 
381.601 (1994), until the total of all such credits equals the filing 
fee that was paid.
    (c) Licenses and exemptions other than State or municipal. For 
licensees and exemptees, other than State or municipal:
    (1) A determination shall be made for each fiscal year of the costs 
of administration of Part I of the Federal Power Act chargeable to such 
licensees or exemptees, from which shall be deducted any administrative 
costs that are stated in the license or exemption or fixed by the 
Commission in determining headwater benefit payments.
    (2) For each fiscal year the costs of administration determined 
under paragraph (c)(1) of this section will be assessed against such 
licenses or exemptee in the proportion that the annual charge factor for 
each such project bears to the total of the annual charge factors under 
all such outstanding licenses and exemptions.
    (3) The annual charge factor for each such project shall be found as 
follows:
    (i) For a conventional project the factor is its authorized 
installed capacity plus 112.5 times its annual energy output in millions 
of kilowatt-hours.

[[Page 176]]

    (ii) For a pure pumped storage project the factor is its authorized 
installed capacity.
    (iii) For a mixed conventional-pumped storage project the factor is 
its authorized installed capacity plus 112.5 times its gross annual 
energy output in millions of kilowatt-hours less 75 times the annual 
energy used for pumped storage pumping in million of kilowatt-hours.
    (iv) For purposes of determining their annual charges factor, 
projects that are operated pursuant to an exemption will be deemed to 
have an annual energy output of zero.
    (4) To enable the Commission to determine such charges annually, 
each licensee whose authorized installed capacity exceeds 1.5 megawatts 
must file with the Commission, on or before November 1 of each year, a 
statement under oath showing the gross amount of power generated (or 
produced by nonelectrical equipment) and the amount of power used for 
pumped storage pumping by the project during the preceding fiscal year, 
expressed in kilowatt hours. If any licensee does not report the gross 
energy output of its project within the time specified above, the 
Commission's staff will estimate the energy output and this estimate may 
be used in lieu of the filings required by this section made by such 
licensee after November 1.
    (5) For unconstructed projects, the assessments start on the date of 
commencement of project construction. For constructed projects, the 
assessments start on the effective date of the license or exemption, 
except for any new capacity authorized therein. The assessments for new 
authorized capacity start on the date of commencement of construction of 
such new capacity. In the event that construction commences during a 
fiscal year, the charges will be prorated based on the date on which 
construction commenced.
    (d) State and municipal licensees and exemptees. For State or 
municipal licensees and exemptees:
    (1) A determination shall be made for each fiscal year of the cost 
of administration under Part I of the Federal Power Act chargeable to 
such licensees and exemptees, from which shall be deducted any 
administrative costs that are stated in the license or exemption or that 
are fixed by the Commission in determining headwater benefit payments.
    (2) An exemption will be granted to a licensee or exemptee to the 
extent, if any, to which it may be entitled under section 10(e) of the 
Act provided the data is submitted as requested in paragraphs (d) (4) 
and (5) of this section.
    (3) For each fiscal year the total actual cost of administration as 
determined under paragraph (d)(1) of this section will be assessed 
against each such licensee or exemptee (except to the extent of the 
exemptions granted pursuant to paragraph (d)(2) of this section) in the 
proportion that the authorized installed capacity of each such project 
bears to the total such capacity under all such outstanding licenses or 
exemptions.
    (4) To enable the Commission to compute on the bill for annual 
charges the exemption to which State and municipal licensees and 
exemptees are entitled because of the use of power by the licensee or 
exemptee for State or municipal purposes, each such licensee or exemptee 
must file with the Commission, on or before November 1 of each year, a 
statement under oath showing the following information with respect to 
the power generated by the project and the disposition thereof during 
the preceding fiscal year, expressed in kilowatt-hours:
    (i) Gross amount of power generated by the project.
    (ii) Amount of power used for station purposes and lost in 
transmission, etc.
    (iii) Net amount of power available for sale or use by licensee or 
exemptee, classified as follows:
    (A) Used by licensee or exemptee.
    (B) Sold by licensee or exemptee.
    (5) When the power from a licensed or exempted project owned by a 
State or municipality enters into its electric system, making it 
impracticable to meet the requirements of this section with respect to 
the disposition of project power, such licensee or exemptee may, in lieu 
thereof, furnish similar information with respect to the disposition of 
the available power of the entire electric system of the licensee or 
exemptee.

[[Page 177]]

    (6) The assessments commence on the date of commencement of project 
operation. In the event that project operation commences during a fiscal 
year, the charges will be prorated based on the date on which operation 
commenced.
    (e) Transmission lines. For projects involving transmission lines 
only, the administrative charge will be stated in the license.
    (f) Maximum charge. No licensed or exempted project's annual charge 
may exceed a maximum charge established each year by the Commission to 
equal 2.0 percent of the adjusted Commission costs of administration of 
the hydropower regulatory program. For every project with an annual 
charge determined to be above the maximum charge, that project's annual 
charge will be set at the maximum charge, and any amount above the 
maximum charge will be reapportioned to the remaining projects. The 
reapportionment will be computed using the method outlined in paragraphs 
(c) and (d) of this section (but excluding any project whose annual 
charge is already set at the maximum amount). This procedure will be 
repeated until no project's annual charge exceeds the maximum charge.
    (g) Commission's costs. (1) With respect to costs incurred by the 
Commission, the assessment of annual charges will be based on an 
estimate of the costs of administration of Part I of the Federal Power 
Act that will be incurred during the fiscal year in which the annual 
charges are assessed. After the end of the fiscal year, the assessment 
will be recalculated based on the costs of administration that were 
actually incurred during that fiscal year; the actual costs will be 
compared to the estimated costs; and the difference between the actual 
and estimated costs will be carried over as an adjustment to the 
assessment for the subsequent fiscal year.
    (2) The issuance of bills based on the administrative costs incurred 
by the Commission during the year in which the bill is issued will 
commence in 1993. The annual charge for the administrative costs that 
were incurred in fiscal year 1992 will be billed in 1994. At the 
licensee's option, the charge may be paid in three equal annual 
installments in fiscal years 1994, 1995, and 1996, plus any accrued 
interest. If the licensee elects the three-year installment plan, the 
Commission will accrue interest (at the most recent yield of two-year 
Treasury securities) on the unpaid charges and add the accrued interest 
to the installments billed in fiscal years 1995 and 1996.
    (h) In making their annual reports to the Commission on their costs 
in administering Part I of the Federal Power Act, the United States Fish 
and Wildlife Service and the National Marine Fisheries Service are to 
deduct any amounts that were deposited into their Treasury accounts 
during that year as reimbursements for conducting studies and reviews 
pursuant to section 30(e) of the Federal Power Act.
    (i) Definition. As used in paragraphs (c) and (d) of this section, 
authorized installed capacity means the lesser of the ratings of the 
generator or turbine units. The rating of a generator is the product of 
the continuous-load capacity rating of the generator in kilovolt-amperes 
(kVA) and the system power factor in kW/kVA. If the licensee or exemptee 
does not know its power factor, a factor of 1.0 kW/kVA will be used. The 
rating of a turbine is the product of the turbine's capacity in 
horsepower (hp) at best gate (maximum efficiency point) opening under 
the manufacturer's rated head times a conversion factor of 0.75 kW/hp. 
If the generator or turbine installed has a rating different from that 
authorized in the license or exemption, or the installed generator is 
rewound or otherwise modified to change its rating, or the turbine is 
modified to change its rating, the licensee or exemptee must apply to 
the Commission to amend its authorized installed capacity to reflect the 
change.
    (j) Transition. For a license having the capacity of the project for 
annual charge purposes stated in horsepower, that capacity shall be 
deemed to be the capacity stated in kilowatts elsewhere in the license, 
including any amendments thereto.

[60 FR 15047, Mar. 22, 1995, as amended by Order 584, 60 FR 57925, Nov. 
24, 1995]

[[Page 178]]



Sec. 11.2  Use of government lands.

    (a) Reasonable annual charges for recompensing the United States for 
the use, occupancy, and enjoyment of its lands (other than lands 
adjoining or pertaining to Government dams or other structures owned by 
the United States Government) or its other property, will be fixed by 
the Commission. In fixing such charges the Commission may take into 
consideration such factors as commercial value, the most profitable use 
for which the lands or other property may be suited, the beneficial 
purpose for which said lands or other property have been or may be used, 
and such other factors as the Commission may deem pertinent.
    (b) Pending further order of the Commission and subject to 
adjustments as conditions may warrant, annual charges for the use of 
government lands will be payable in advance, and will be set on the 
basis of the schedule of rental fees for linear rights-of-way as set out 
in Appendix A of this part. Annual charges for transmission line rights-
of-way will be equal to the per-acre charges established by the above 
schedule. Annual charges for other project lands will be equal to twice 
the charges established by the schedule. The Commission, by its designee 
the Executive Director, will update its fees schedule to reflect changes 
in land values established by the Forest Service. The Executive Director 
will publish the updated fee schedule in the Federal Register.
    (c)(1) The annual land use charge payable for the nine month 
transition year of the implementation of this rule (1987) will be 
payable in three equal installments, with an installment included in the 
land use charges bills for 1988, 1989, and 1990.
    (2) The charge for one year will equal an amount as computed under 
the procedures outlined in this section, or twice the previous full 
normal year's bill (not including the installments described in 
paragraph (c)(1) of this section), whichever is less.
    (d) The minimum annual charge for use of Government lands under any 
license will be $25.
    (e) No licensee under a license issued prior to August 26, 1935, 
shall be required to pay annual charges in an amount greater than that 
prescribed in such license, except as may be otherwise provided in the 
license.

[Order 560, 42 FR 1229, Jan. 6, 1977; 42 FR 6366, Feb. 2, 1977. 
Redesignated at 51 FR 24318, July 3, 1986; Order No. 469, 52 FR 18209, 
May 14, 1987; 53 FR 44859, Nov. 7, 1988]



Sec. 11.3  Use of government dams, excluding pumped storage projects.

    (a) General rule. (1) Any licensee whose non-Federal project uses a 
Government dam or other structure for electric power generation and 
whose annual charges are not already specified in final form in the 
license must pay the United States an annual charge for the use of that 
dam or other structure as determined in accordance with this section. 
Payment of such annual charge is in addition to any reimbursement paid 
by a licensee for costs incurred by the United States as a direct result 
of the licensee's project development at such Government dam.
    (2) Any licensee that is obligated under the terms of a license 
issued on or before September 16, 1986 to pay specified annual charges 
for the use of a Government dam must continue to pay the annual charges 
prescribed in the project license pending any readjustment of the annual 
charge for the project made pursuant to section 10(e) of the Federal 
Power Act.
    (b) Graduated flat rates. Annual charges for the use of Government 
dams or other structures owned by the United States are 1 mill per 
kilowatt-hour for the first 40 gigawatt-hours of energy a project 
produces, 1\1/2\ mills per kilowatt-hour for over 40 up to and including 
80 gigawatt-hours, and 2 mills per kilowatt-hour for any energy the 
project produces over 80 gigawatt-hours.
    (c) Information reporting. (1) Except as provided in paragraph 
(c)(2) of this section, each licensee must file with the Commission, on 
or before November 1 of each year, a sworn statement showing the gross 
amount of energy generated during the preceding fiscal year and the 
amount of energy provided free of charge to the Government. The 
determination of the annual charge will be based on the gross energy 
production less the energy provided free of charge to the Government.

[[Page 179]]

    (2) A licensee who has filed these data under another section of 
part 11 or who has submitted identical data with FERC or the Energy 
Information Administration for the same fiscal year is not required to 
file the information described in paragraph (c)(1) of this section. 
Referenced filings should be identified by company name, date filed, 
docket or project number, and form, number.
    (d) Credits. A licensee may file a request with the Director of the 
Office of Energy Projects for a credit for contractual payments made for 
construction, operation, and maintenance of a Government dam at any time 
before 30 days after receiving a billing for annual charges determined 
under this section. The Director, or his designee, will grant such a 
credit only when the licensee demonstrates that a credit is reasonably 
justified. The Director, or his designee, shall consider, among other 
factors, the contractual arrangements between the licensee and the 
Federal agency which owns the dam and whether these arrangements reveal 
clearly that substantial payments are being made for power purposes, 
relevant legislation, and other equitable factors.

[Order 379, 49 FR 22778, June 1, 1984, as amended by Order 379-A, 49 FR 
33862, Aug. 27, 1984. Redesignated at 51 FR 24318, July 3, 1986; Order 
No. 469, 52 FR 18209, May 14, 1987; 52 FR 33802, Sept. 8, 1987; 53 FR 
44859, Nov. 7, 1988; Order 647, 69 FR 32438, June 10, 2004]



Sec. 11.4  Use of government dams for pumped storage projects, and use 
of tribal lands.

    (a) General Rule. The Commission will determine on a case-by-case 
basis under section 10(e) of the Federal Power Act the annual charges 
for any pumped storage project using a Government dam or other structure 
and for any project using tribal lands within Indian reservations.
    (b) Information reporting. (1) Except as provided in paragraph 
(b)(2) of this section a Licensee whose project includes pumped storage 
facilities must file with the Commission, on or before November 1 of 
each year, a sworn statement showing the gross amount of energy 
generated during the preceding fiscal year, and the amount of energy 
provided free of charge to the Government, and the amount of energy used 
for pumped storage pumping.
    (2) A licensee who has filed these data under another section of 
part 11 or who has submitted identical data with FERC or the Energy 
Information Administration for the same fiscal year is not required to 
file the information required in paragraph (b)(1) of this section. 
Referenced filings should be identified by company name, date filed, 
docket or project number, and form number.
    (c) Commencing in 1993, the annual charges for any project using 
tribal land within Indian reservations will be billed during the fiscal 
year in which the land is used, for the use of that land during that 
year.

[Order 379, 49 FR 22778, June 1, 1984. Redesignated at 51 FR 24318, July 
3, 1986; Order 469, 52 FR 18209, May 14, 1987; 52 FR 33802, Sept. 8, 
1987; Order 551, 58 FR 15770, Mar. 24, 1993]



Sec. 11.5  Exemption of minor projects.

    No exemption will be made from payment of annual charges for the use 
of Government dams or tribal lands within Indian reservations but 
licenses may be issued without charges other than for such use for the 
development, transmission, or distribution of power for domestic, 
mining, or other beneficial use in minor projects.

[Order 141, 12 FR 8492, Dec. 19, 1947. Redesignated by Order 379, 49 FR 
22778, June 1, 1984. Redesignated at 51 FR 24318, July 3, 1986]



Sec. 11.6  Exemption of State and municipal licensees and exemptees.

    (a) Bases for exemption. A State or municipal licensee or exemptee 
may claim total or partial exemption from the assessment of annual 
charges upon one or more of the following grounds:
    (1) The project was primarily designed to provide or improve 
navigation;
    (2) To the extent that power generated, transmitted, or distributed 
by the project was sold directly or indirectly to the public (ultimate 
consumer) without profit;
    (3) To the extent that power generated, transmitted, or distributed 
by the project was used by the licensee for State or municipal purposes.

[[Page 180]]

    (b) Projects primarily for navigation. No State or municipal 
licensee shall be entitled to exemption from the payment of annual 
charges on the ground that the project was primarily designed to provide 
or improve navigation unless the licensee establishes that fact from the 
actual conditions under which the project was constructed and was 
operated during the calendar year for which the charge is made.
    (c) State or municipal use. A State or municipal licensee shall be 
entitled to exemption from the payment of annual charges for the project 
to the extent that power generated, transmitted, or distributed by the 
project is used by the licensee itself for State or municipal purposes, 
such as lighting streets, highways, parks, public buildings, etc., for 
operating licensee's water or sewerage system, or in performing other 
public functions of the licensee.
    (d) Sales to public. No State or municipal licensee shall be 
entitled to exemption from the payment of annual charges on the ground 
that power generated, transmitted, or distributed by the project is sold 
to the public without profit, unless such licensee shall show:
    (1) That it maintains an accounting system which segregates the 
operations of the licensed project and reflects with reasonable accuracy 
the revenues and expenses of the project;
    (2) That an income statement, prepared in accordance with the 
Commission's Uniform System of Accounts, shows that the revenues from 
the sale of project power do not exceed the total amount of operating 
expenses, maintenance, depreciation, amortization, taxes, and interest 
on indebtedness, applicable to the project property. Periodic accruals 
or payments for redemption of the principal of bonds or other 
indebtedness may not be deducted in determining the net profit of the 
project.
    (e) Sales for resale. Notwithstanding compliance by a State or 
municipal licensee with the requirements of paragraph (d) of this 
section, it shall be subject to the payment of annual charges to the 
extent that electric power generated, transmitted, or distributed by the 
project is sold to another State, municipality, person, or corporation 
for resale, unless the licensee shall show that the power was sold to 
the ultimate consumer without profit. The matter of whether or not a 
profit was made is a question of fact to be established by the licensee.
    (f) Interchange of power. Notwithstanding compliance by a State or 
municipal licensee with the requirements of paragraph (d) of this 
section, it shall be subject to the payment of annual charges to the 
extent that power generated, transmitted, or distributed by the project 
was supplied under an interchange agreement to a State, municipality, 
person, or corporation for sale at a profit (which power was not offset 
by an equivalent amount of power received under such interchange 
agreement) unless the licensee shall show that the power was sold to 
ultimate consumers without profit.
    (g) Construction period. During the period when the licensed project 
is under construction and is not generating power, it will be considered 
as operating without profit within the meaning of this section, and 
licensee will be entitled to total exemption from the payment of annual 
charges, except as to those charges relating to the use of a Government 
dam or tribal lands within Indian reservations.
    (h) Optional showing. When the power from the licensed project 
enters into the electric power system of the State or municipal 
licensee, making it impracticable to meet the requirements set forth in 
this section with respect to the operations of the project only, such 
licensee may, in lieu thereof, furnish the same information with respect 
to the operations of said electric power system as a whole.
    (i) Application for exemption. Applications for exemption from 
payment of annual charges shall be signed by an authorized executive 
officer or chief accounting officer of the licensee or exemptee and 
verified under oath. An original and three copies of such application 
shall be filed with the Commission within the time allowed (by Sec. 
11.28) for the payment of the annual charges. If the licensee or 
exemptee, within the time allowed for the payment of the annual charges, 
files notice that it intends to file an application for exemption, an 
additional period of 30 days is

[[Page 181]]

allowed within which to complete and file the application for exemption. 
The filing of an application for exemption does not by itself alleviate 
the requirement to pay the annual charges, nor does it exonerate the 
licensee or exemptee from the assessment of penalties under Sec. 11.21. 
If a bill for annual charges becomes payable after an application for an 
exemption has been filed and while the application is still pending for 
decision, the bill may be paid under protest and subject to refund.

[Order 143, 13 FR 6681, Nov. 13, 1948. Redesignated and amended by Order 
379, 49 FR 22778, June 1, 1984. Redesignated at 51 FR 24318, July 3, 
1986; 60 FR 15048, Mar. 22, 1995]



Sec. 11.7  Effective date.

    All annual charges imposed under this subpart will be computed 
beginning on the effective date of the license unless some other date is 
fixed in the license.

[51 FR 24318, July 3, 1986]



Sec. 11.8  Adjustment of annual charges.

    All annual charges imposed under this subpart continue in effect as 
fixed unless changed as authorized by law.

[51 FR 24318, July 3, 1986]



                Subpart B_Charges for Headwater Benefits

    Source: Order 453, 51 FR 24318, July 3, 1986, unless otherwise 
noted.



Sec. 11.10  General provision; waiver and exemptions; definitions.

    (a) Headwater benefits charges. (1) The Commission will assess or 
approve charges under this subpart for direct benefits derived from 
headwater projects constructed by the United States, a licensee, or a 
pre-1920 permittee. Charges under this subpart will amount to an 
equitable part of the annual costs of interest, maintenance, and 
depreciation expenses of such headwater projects and the costs to the 
Commission of determining headwater benefits charges. Except as provided 
in paragraph (b) of this section, the owner of any non-Federal 
downstream project that receives headwater benefits must pay charges 
determined under this subpart.
    (2) Headwater benefits are the additional electric generation at a 
downstream project that results from regulation of the flow of the river 
by the headwater, or upstream, project, usually by increasing or 
decreasing the release of water from a storage reservoir.
    (b) Waiver and exemptions. The owner of a downstream project with 
installed generating capacity of 1.5 MW (2000 horsepower) or less or for 
which the Commission has granted an exemption from section 10(f) is not 
required to pay headwater benefits charges.
    (c) Definitions. For purposes of this subpart:
    (1) Energy gains means the difference between the number of 
kilowatt-hours of energy produced at a downstream project with the 
headwater project and that which would be produced without the headwater 
project.
    (2) Generation means gross generation of electricity at a 
hydroelectric project, including generation needed for station use or 
the equivalent for direct drive units, measured in kilowatt-hours. It 
does not include energy used for or derived from pumping in a pumped 
storage facility.
    (3) Headwater project costs means the total costs of an upstream 
project constructed by the United States, a licensee, or pre-1920 
permittee.
    (4) Separable cost means the difference between the cost of a 
multiple-function headwater project with and without any particular 
function.
    (5) Remaining benefits means the difference between the separable 
cost of a specific function in a multiple-function project and the 
lesser or:
    (i) The benefits of that function in the project, as determined by 
the responsible Federal agency at the time the project or function was 
authorized; or
    (ii) The cost of the most likely alternative single-function project 
providing the same benefits.
    (6) Joint-use cost means the difference between the total project 
cost and the total separable costs. Joint-use costs are allocated among 
the project functions according to each function's percentage of the 
total remaining benefits.

[[Page 182]]

    (7) Specific power cost means that portion of the headwater project 
costs that is directly attributable to the function of power generation 
at the headwater project, including, but not limited to, the cost of the 
electric generators, turbines, penstocks, and substation.
    (8) Joint-use power cost means the portion of the joint-use cost 
allocated to the power function of the project.
    (9) Section 10(f) costs means the annual interest, depreciation, and 
maintenance expense portion of the joint-use power cost, including costs 
of non-power functions required by statute to be paid by revenues from 
the power function.
    (10) Party means:
    (i) The owner of a non-Federal downstream hydroelectric project 
which is directly benefited by a headwater project constructed by the 
United States, a licensee, or a pre-1920 permittee;
    (ii) The owner of a headwater project constructed by the United 
States, a licensee, or a pre-1920 permittee;
    (iii) An operating agency of, or an agency marketing power from, a 
headwater project constructed by the United States; or
    (iv) Any party, as defined in Sec. 385.102(c) of this chapter.
    (11) Final charge means a charge assessed on an annual basis to 
recover section 10(f) costs and which represents the final determination 
of the charge for the period for which headwater benefits are assessed. 
Final charges may be established retroactively, to finalize an interim 
charge, or prospectively.
    (12) Interim charge means a charge assessed to recover section 10(f) 
costs for a specified period of headwater benefits pending determination 
of a final charge for that period.
    (13) Investment cost means the sum of:
    (i) Project construction costs, including cost of land, labor and 
materials, cost of pre- and post-authorization investigations, and cost 
of engineering, supervision, and administration during construction of 
the project; and
    (ii) Interest during construction.



Sec. 11.11  Energy gains method of determining headwater benefits 
charges.

    (a) Applicability. This section applies to any determination of 
headwater benefits charges, unless:
    (1) The Commission has approved headwater benefits charges pursuant 
to an existing coordination agreement among the parties;
    (2) The parties reach, and the Commission approves, a settlement 
with respect to headwater benefits charges, pursuant to Sec. 11.14(a) 
of this subpart; or
    (3) Charges may be assessed under Sec. 11.14(b).
    (b) General rule--(1) Summary. Except as provided in paragraph 
(b)(3) of this section, a headwater benefits charge for a downstream 
project is determined under this subpart by apportioning the section 
10(f) costs of the headwater project among the headwater project and all 
downstream projects that are not exempt from or waived from headwater 
benefits charges under Sec. 11.10(b) of this chapter, according to each 
project's share of the total energy benefits to those projects resulting 
from the headwater project.
    (2) Calculation; headwater benefits formula. The annual headwater 
benefits charge for a downstream project is derived by multiplying the 
section 10(f) cost by the ratio of the energy gains received by the 
downstream project to the sum of total energy gains received by all 
downstream projects (except those projects specified in Sec. 11.10(b) 
of this chapter) plus the energy generated at the headwater project that 
is assigned to the joint-use power cost, as follows:
[GRAPHIC] [TIFF OMITTED] TC14NO91.093

In which:

P=annual payment to be made for headwater benefits received by a 
downstream project,
Cp=annual section 10(f) cost of the headwater project,
En=annual energy gains received at a downstream project, or 
group of projects if owned by one entity,
Ed=annual energy gains received at all downstream projects 
(except those specified in Sec. 11.10(b) of this chapter), and
Ej=portion of the annual energy generated at the headwater 
project assigned to the joint-use power cost.


[[Page 183]]


    (3) If power generation is not a function of the headwater project, 
section 10(f) costs will be apportioned only among the downstream 
projects.
    (4) If the headwater project is constructed after the downstream 
project, liability for headwater benefits charges will accrue beginning 
on the day on which any energy losses at the downstream project due to 
filling the headwater reservoir have been offset by subsequent energy 
gains. If the headwater project is constructed prior to the downstream 
project, liability for headwater benefits charges will accrue beginning 
on the day on which benefits are first realized by the downstream 
project.
    (5) No final charge assessed by the Commission under this subpart 
may exceed 85 percent of the value of the energy gains. If a party 
demonstrates, within the time specified in Sec. 11.17(b)(3) for 
response to a preliminary assessment, that any final charge assessed 
under this subpart, not including the cost of the investigation assessed 
under Sec. 11.17(c), exceeds 85 percent of the value of the energy 
gains provided to the downstream project for the period for which the 
charge is assessed, the Commission will reduce the charge to not more 
than 85 percent of the value. For purposes of this paragraph, the value 
of the energy gains is the cost of obtaining an equivalent amount of 
electricity from the most likely alternative source during the period 
for which the charge is assessed.



Sec. 11.12  Determination of section 10(f) costs.

    (a) for non-Federal headwater projects. If the headwater project was 
constructed by a licensee or pre-1920 permittee and a party requests the 
Commission to determine charges, the Commission will determine on a 
case-by-case basis what portion of the annual interest, maintenance, and 
depreciation costs of the headwater project constitutes the section 
10(f) costs, for purposes of this subpart.
    (b) For Federal headwater projects. (1) If the headwater project was 
constructed or is operated by the United States, and the Commission has 
not approved a settlement between the downstream project owner and the 
headwater project owner, the section 10(f) cost will be determined by 
deriving, from information provided by the headwater project owner 
pursuant to Sec. 11.16 of this subpart, the joint-use power cost and 
the portion of the annual joint-use power cost that represents the 
interest, maintenance, and depreciation costs of the project.
    (2) If power is not an authorized function of the headwater project, 
the section 10(f) cost is the annual interest, maintenance, and 
depreciation portion of the headwater project costs designated as the 
joint-use power cost, derived by deeming a power function at the 
project. The value of the benefits assigned to the deemed power 
function, for purposes of determining the value of remaining benefits of 
the joint-use power cost, is the total value of downstream energy gains 
included in the headwater benefits formula.
    (3) For purposes of this paragraph, total value of downstream energy 
gains means the lesser of:
    (i) The cost of generating an equivalent amount of electricity at 
the most likely alternative facility at the time the headwater project 
became operational; or
    (ii) The incremental cost of installing electrical generation at the 
headwater project at the time the project became operational.



Sec. 11.13  Energy gains calculations.

    (a) Energy gains at a downstream project. (1) Energy gains at a 
downstream project are determined by simulating operation of the 
downstream project with and without the effects of the headwater 
project. Except for determinations which are not complex or in which 
headwater benefits are expected to be small, calculations will be made 
by application of the Headwater Benefits Energy Gains Model, as 
presented in The Headwater Benefits Energy Gains (HWBEG) Model 
Description and Users Manual, which is available for the National 
Technical Information Service, U.S. Department of Commerce, 5285 Port 
Royal Road, Springfield, VA 22161.
    (2) If more than one headwater project provide energy gains to a 
downstream project, the energy gains at the downstream project are 
attributed to the headwater projects according to

[[Page 184]]

the time sequence of commencement of operation in which each headwater 
project provided energy gains at the downstream project, by:
    (i) Crediting the headwater project that is first in time with the 
amount of energy gains that it provided to the downstream project prior 
to operation of the headwater project that is next in time; and
    (ii) Crediting any subsequent headwater project with the additional 
increment of energy gains provided by it to the downstream project.
    (3) Annual energy losses at a downstream project, or group of 
projects owned by the same entity, that are attributable to the 
headwater project will be subtracted from energy gains for the same 
annual period at the downstream project or group of projects. A net loss 
in one calendar year will be subtracted from net gains in subsequent 
years until no net loss remains.
    (b) Energy generated at the headwater project. (1) Except as 
provided in paragraphs (b)(2) and (b)(3) of this section, the portion of 
the total annual energy generation at the headwater project that is to 
be attributed to the joint-use power cost is derived by multiplying the 
total annual generation at the headwater project and the ratio of the 
project investment cost assigned to the joint-use power cost to the sum 
of the investment cost assigned to both the specific power cost and the 
joint-use power cost of the headwater project, as follows:
[GRAPHIC] [TIFF OMITTED] TC14NO91.112

In which:

Ej=annual energy generated at the headwater project to be 
attributed to the joint-use power cost,
E=total annual generation at the headwater project,
Cj=project investment costs assigned to the joint-use power 
cost, and
Cs=project investment costs assigned to specific power costs.

    (2) If the headwater project contains a pumped storage facility, 
calculation of the portion of the total annual energy generation at the 
headwater project that is attributable to the joint-use power cost will 
be determined on a case-by-case basis.
    (3) If no power is generated at the headwater project, the amount of 
energy attributable to the joint-use power cost under this section is 
the total of all downstream energy gains included in the headwater 
benefits formula.



Sec. 11.14  Procedures for establishing charges without an energy gains 
investigation.

    (a) Settlements. (1) Owners of downstream and headwater projects 
subject to this subpart may negotiate a settlement for headwater 
benefits charges. Settlements must be filed with the Commission for its 
approval, according to the provisions of Sec. 385.602.
    (2) If the headwater project is a Federal project, any settlement 
under this section must result in headwater benefits payments that 
approximate those that would result under the energy gains method.
    (b) Continuation of previous headwater benefits determinations. (1) 
For any downstream project being assessed headwater benefit charges on 
or before September 16, 1986, the Commission will continue to assess 
charges to that project on the same basis until changes occur in the 
river basin, including hydrology or project development, that affect 
headwater benefits.
    (2) Any procedures that apply to Sec. 11.17(b)(5) of this subpart 
will apply to any prospectively fixed charges that are continued under 
this paragraph.



Sec. 11.15  Procedures for determining charges by energy gains 
investigation.

    (a) Purpose of investigations; limitation. Except as permitted under 
Sec. 11.14, the Commission will conduct an investigation to obtain 
information for establishing headwater benefits charges under this 
subpart. The Commission will investigate and determine charges for a 
project downstream from a non-Federal headwater project only if the 
parties are unable to agree to a settlement and one of the parties 
requests the Commission to determine charges.
    (b) Notification. The Commission will notify each downstream project 
owner and each headwater project owner

[[Page 185]]

when it initiates an investigation under this section, and the period of 
project operations to be studied will be specified. An investigation 
will continue until a final charge has been established for all years 
studied in the investigation.
    (c) Jurisdictional objections. If any project owner wishes to object 
to the assessment of a headwater benefits charge on jurisdictional 
grounds, such objection must:
    (1) Be raised within 30 days after the notice of the investigation 
is issued; and
    (2) State in detail the grounds for its objection.
    (d) Investigations. (1) For any downstream project for which a final 
charge pursuant to an investigation has never been established, the 
Commission will conduct an initial investigation to determine a final 
charge.
    (2) The Commission may, for good cause shown by a party or on its 
own motion, initiate a new investigation of a river basin to determine 
whether, because of any change in the hydrology, project development, or 
other characteristics of the river basin that effects headwater 
benefits, it should:
    (i) Establish a new final charge to replace a final charge 
previously established under Sec. 11.17(b)(5); or
    (ii) Revise any variable of the headwater benefits formula that has 
become a constant in calculating a final charge.
    (3) Scope of investigations. (i) The Commission will establish a 
final charge pursuant to an investigation based on information available 
to the Commission through the annual data submission requirements of 
Sec. 11.16, if such information is adequate to establish a reasonably 
accurate final charge.
    (ii) If the information available to the Commission is not 
sufficient to provide a reasonably accurate calculation of the final 
charge, the Commission will request additional data and conduct any 
studies, including studies of the hydrology of the river basin and 
project operations, that it determines necessary to establish the 
charge.



Sec. 11.16  Filing requirements.

    (a) Applicability. (1) Any party subject to a headwater benefits 
determination under this subpart must supply project-specific data, in 
accordance with this section, by February 1 of each year for data from 
the preceding calendar year.
    (2) Within 30 days of notice of initiation of an investigation under 
Sec. 11.15, a party must supply project-specific data, in accordance 
with this section, for the years specified in the notice.
    (b) Data required from owner of the headwater project. The owner of 
any headwater project constructed by the United States, a licensee, or a 
pre-1920 permittee that is upstream from a non-Federal hydroelectric 
project must submit the following:
    (1) Name and location of the headwater project, including the name 
of the stream on which it is located.
    (2) The total nameplate rating of installed generating capacity of 
the project, expressed in kilowatts, with the portion of total capacity 
that represents pumped storage generating capacity separately 
designated.
    (3) A description of the total storage capacity of the reservoir and 
allocation of storage capacity to each of its functions, such as dead 
storage, power storage, irrigation storage, and flood control storage. 
Identification, by reservoir elevation, of the portion of the reservoir 
assigned to each of its respective storage functions.
    (4) An elevation-capacity curve, or a tabulation of reservoir pool 
elevations with corresponding reservoir storage capacities.
    (5) A copy of rule curves, coordination contracts, agreements, or 
other relevant data governing the release of water from the reservoir, 
including a separate statement of their effective dates.
    (6) A curve or tabulation showing actual reservoir pool elevations 
throughout the immediately preceding calendar year and for each year 
included in an investigation.
    (7) The total annual gross generation of the hydroelectric plant in 
kilowatt-hours, not including energy from pumped storage operation.
    (8) The total number of kilowatt-hours of energy produced from 
pumped storage operation.
    (9) The investigation costs attributed to the power generation 
function of the

[[Page 186]]

project as of the close of the calendar year or at a specified date 
during the year, categorized according to that portion that is 
attributed to the specific power costs, and that portion that is 
attributed to the joint-use power costs.
    (10) The portion of the joint-use power cost, and other costs 
required by law to be allocated to joint-use power cost, each item shown 
separately, that are attributable to the annual costs of interest, 
maintenance, and depreciation, identifying the annual interest rate and 
the method used to compute the depreciation charge, or the interest rate 
and period used to compute amortization if used in lieu of depreciation, 
including any differing interest rates used for major replacements or 
rehabilitation.
    (c) Data required from owners of downstream projects. The owner of 
any hydroelectric project which is downstream from a headwater project 
constructed by the United States, a licensee, or pre-1920 permittee must 
submit the following:
    (1) Name and location of the downstream project, including the name 
of the stream on which it is located.
    (2) Total nameplate rating of the installed generating capacity of 
the plant, expressed in kilowatts, with the portion of total capacity 
that represents pumped storage generating capacity separately 
designated.
    (3) Record of daily gross generation, not including energy used for 
pumped storage, and any unit outage which may have occurred.
    (4) The total number of kilowatt-hours of energy produced from 
pumped storage operation.
    (d) Abbreviated data submissions. (1) For those items in paragraphs 
(b) and (c) of this section in which data for the current period are the 
same as data furnished for a prior period, the data need not be 
resubmitted if the owner identifies the last period for which the data 
were reported.
    (2) The Commission will notify the project owner that certain data 
items in paragraphs (b) and (c) are no longer required to be submitted 
annually if:
    (i) A variable in the headwater benefits formula has become a 
constant; or
    (ii) A prospective final charge, as described in Sec. 11.17(b)(5), 
has been established.
    (e) Additional data. Owners of headwater projects or downstream 
projects must furnish any additional data required by the Commission 
staff under paragraph (a) of this section and may provide other data 
which they consider relevant.



Sec. 11.17  Procedures for payment of charges and costs.

    (a) Payment for benefits from a non-Federal headwater project. Any 
billing procedures and payments determined between a non-Federal 
headwater project owner and a downstream project owner will occur 
according to the agreement of those parties.
    (b) Charges and payment for benefits from a Federal headwater 
project--(1) Interim charges. (i) If the Commission has not established 
a final charge and an investigation is pending, the Commission will 
issue a downstream project owner a bill for the interim charge and costs 
and a staff report explaining the calculation of the interim charge.
    (ii) An interim charge will be a percentage of the estimate by the 
Commission staff of what the final charge will be, as follows:
    (A) 100 percent of the estimated final charge if the Commission 
previously has completed an investigation of the project for which it is 
assessed; or
    (B) 80 percent of the estimated final charge if the Commission has 
not completed an investigation of the project for which it is assessed.
    (iii) When a final charge is established for a period for which an 
interim charge was paid, the Commission will apply the amount paid to 
the final charge.
    (2) Preliminary assessment of a final charge. Unless the project 
owner was assessed a final charge in the previous year, the Commission 
will issue to the downstream project owner a preliminary assessment of 
any final charge when it is determined. A staff technical report 
explaining the basis of the assessment will be enclosed with the 
preliminary assessment. Copies of the preliminary assessment will be 
mailed to all parties.

[[Page 187]]

    (3) Opportunity to respond. After issuance of a preliminary 
assessment of a final charge, parties may respond in writing within 60 
days after the preliminary assessment.
    (4) Order and bill. (i) After the opportunity for written response 
by the parties to the preliminary assessment of a final charge, the 
Commission will issue to the downstream project owner an order 
establishing the final charge. Copies of the order will be mailed to all 
parties. A bill will be issued for the amount of the final charge and 
costs.
    (ii) If a final charge is not established prospectively under 
paragraph (b)(5) of this section, the Commission will issue an order and 
a bill for the final charge and costs each year until prospective final 
charges are established. After the Commission issues an order 
establishing a prospective final charge, a bill will be issued annually 
for the amount of the final charge and costs.
    (5) Prospective final charges. When the Commission determines that 
historical data, including the hydrology, development, and other 
characteristics of the river basin, demonstrate sufficient stability to 
project average energy gains and section 10(f) costs, the Commission 
will issue to the downstream project owner an order establishing the 
final charge from future years. Copies of the order will be mailed to 
all parties. The prospective final charge will remain in effect until a 
new investigation is initiated under Sec. 11.15(d)(2).
    (6) Payment under protest. Any payment of a final charge required by 
this section may be made under protest if a party is also appealing the 
final charge pursuant to Sec. 385.1902, or requesting rehearing. If 
payment is made under protest, that party will avoid any penalty for 
failure to pay under Sec. 11.21.
    (7) Accounting for payments pending appeal or rehearing. The 
Commission will retain any payment received for final charges from bills 
issued pursuant to this section in a special account. No disbursements 
to the U.S. Treasury will be made from the account until 31 days after 
the bill is issued. If an appeal under Sec. 385.1902 or a request for 
rehearing is filed by any party, no disbursements to the U.S. Treasury 
will be made until final disposition of the appeal or request for 
rehearing.
    (c) Charges for costs of determinations of headwater benefits 
charges. (1) Any owner of a downstream project that benefits from a 
Federal headwater project must pay to the United States the cost of 
making any investigation, study, or determination relating to the 
assessment of the relevant headwater benefits charge under this subpart.
    (2) If any owner of a headwater or downstream project requests that 
the Commission determine headwater benefits charges for benefits 
provided by non-Federal headwater projects, the headwater project owners 
must pay a pro rata share of 50 percent of the cost of making the 
investigation and determination, in proportion to the benefits provided 
by their projects, and the downstream project owners must pay a pro rata 
share of the remaining 50 percent in proportion to the energy gains 
received by their projects.
    (3) Any charge assessed under this paragraph is separate from and 
will be added to, any final or interim charge under this subpart.



                      Subpart C_General Procedures



Sec. 11.20  Time for payment.

    Annual charges must be paid no later than 45 days after rendition of 
a bill by the Commission. If the licensee or exemptee believes that the 
bill is incorrect, no later than 45 days after its rendition the 
licensee or exemptee may file an appeal of the bill with the Chief 
Financial Officer. No later than 30 days after the date of issuance of 
the Chief Financial Officer's decision on the appeal, the licensee or 
exemptee may file a request for rehearing of that decision pursuant to 
Sec. 385.713 of this chapter. In the event that a timely appeal to the 
Chief Financial Officer or a timely request to the Commission for 
rehearing is filed, the payment of the bill may be made under protest, 
and subject to refund pending the outcome of the appeal or rehearing.

[60 FR 15048, Mar. 22, 1995]



Sec. 11.21  Penalties.

    If any person fails to pay annual charges within the periods 
specified in Sec. 11.20, a penalty of 5 percent of the

[[Page 188]]

total delinquent amount will be assessed and added to the total charges 
for the first month or part of month in which payment is delinquent. An 
additional penalty of 3 percent for each full month thereafter will be 
assessed until the charges and penalties are satisfied in accordance 
with law. The Commission may, by order, waive any penalty imposed by 
this subsection, for good cause shown.

[51 FR 24318, July 3, 1986]

             Appendix A to Part 11--Fee Schedule for FY 2006

------------------------------------------------------------------------
                                                              (Fee/acre/
               State                         County              yr)
------------------------------------------------------------------------
ALABAMA............................  ALL COUNTIES..........       $28.10
ARKANSAS...........................  ALL COUNTIES..........        21.08
ARIZONA............................  COCHISE...............         7.01
                                     GILA..................
                                     GRAHAM................
                                     LA PAZ................
                                     MOHAVE................
                                     NAVAJO................
                                     PIMA..................
                                     YAVAPAI...............
                                     YUMA..................
                                     COCONINO (NORTH OF
                                      COLORADO R.).
                                     COCONINO (SOUTH OF            28.10
                                      COLORADO R.).
                                     GREENLEE..............
                                     MARICOPA..............
                                     PINAL.................
                                     SANTA CRUZ............
CALIFORNIA.........................  IMPERIAL..............        14.05
                                     INYO..................
                                     LASSEN................
                                     MODOC.................
                                     RIVERSIDE.............
                                     SAN BERNARDINO........
                                     SISKIYOU..............        21.08
                                     ALAMEDA...............        35.12
                                     ALPINE................
                                     AMADOR................
                                     BUTTE.................
                                     CALAVERAS.............
                                     COLUSA................
                                     CONTRA COSTA..........
                                     DEL NORTE.............
                                     EL DORADO.............        35.12
                                     FRESNO................
                                     GLENN.................
                                     HUMBOLDT..............
                                     KERN..................
                                     KINGS.................
                                     LAKE..................
                                     MADERA................
                                     MARIPOSA..............
                                     MENDICINO.............
                                     MERCED................
                                     MONO..................
                                     NAPA..................
                                     NEVADA................
                                     PLACER................
                                     PLUMAS................
                                     SACRAMENTO............
                                     SAN BENITO............
                                     SAN JOAQUIN...........
                                     SANTA CLARA...........
                                     SHASTA................
                                     SIERRA................
                                     SOLANO................
                                     SONOMA................
                                     STANISLAUS............
                                     SUTTER................
                                     TEHAMA................
                                     TRINITY...............
                                     TULARE KINGS..........
                                     TUOLUMNE..............
                                     YOLO..................
                                     YUBA..................
                                     LOS ANGELES...........        42.17
                                     MARIN.................
                                     MONTEREY..............
                                     ORANGE................
                                     SAN DIEGO.............
                                     SAN FRANCISCO.........
                                     SAN LUIS OBISPO.......
                                     SAN MATEO.............
                                     SANTA BARBARA.........
                                     SANTA CRUZ............
                                     VENTURA...............
COLORADO...........................  ADAMS.................         7.01
                                     ARAPAHOE..............
                                     BENT..................
                                     CHEYENNE..............
                                     CROWLEY...............
                                     ELBERT................
                                     EL PASO...............
                                     HUERFANO..............
                                     KIOWA.................
                                     KIT CARSON............
                                     LINCOLN...............
                                     LOGAN.................
                                     MOFFAT................
                                     MONTEZUMA.............
                                     MORGAN................
                                     PUEBLO................
                                     SEDGEWICK.............
                                     WASHINGTON............
                                     WELD..................
                                     YUMA..................
                                     BACA..................        14.05
                                     BROOMFIELD............
                                     DOLORES...............
                                     GARFIELD..............
                                     LAS ANIMAS............
                                     MESA..................
                                     MONTROSE..............
                                     OTERO.................
                                     PROWERS...............
                                     RIO BLANCO............
                                     ROUTT.................
                                     SAN MIGUEL............
                                     ALAMOSA...............        28.10
                                     ARCHULETA.............
                                     BOULDER...............
                                     CHAFFEE...............
                                     CLEAR CREEK...........
                                     CONEJOS...............
                                     COSTILLA..............
                                     CUSTER................
                                     DENVER................
                                     DELTA.................
                                     DOUGLAS...............
                                     EAGLE.................        28.10
                                     FREMONT...............
                                     GILPIN................
                                     GRAND.................
                                     GUNNISON..............
                                     HINSDALE..............

[[Page 189]]

 
                                     JACKSON...............
                                     JEFFERSON.............
                                     LAKE..................
                                     LA PLATA..............
                                     LARIMER...............
                                     MINERAL...............
                                     OURAY.................
                                     PARK..................
                                     PITKIN................
                                     RIO GRANDE............
                                     SAGUACHE..............
                                     SAN JUAN..............
                                     SUMMIT................
                                     TELLER................
CONNECTICUT........................  ALL COUNTIES..........         7.01
FLORIDA............................  BAKER.................        42.17
                                     BAY...................
                                     BRADFORD..............
                                     CALHOUN...............
                                     CLAY..................
                                     COLUMBIA..............
                                     DIXIE.................
                                     DUVAL.................
                                     ESCAMBIA..............
                                     FRANKLIN..............
                                     GADSDEN...............
                                     GILCHRIST.............
                                     GULF..................
                                     HAMILTON..............
                                     HOLMES................
                                     JACKSON...............
                                     JEFFERSON.............
                                     LAFAYETTE.............
                                     LEON..................
                                     LIBERTY...............
                                     MADISON...............
                                     NASSAU................
                                     OKALOOSA..............        42.17
                                     SANTA ROSA............
                                     SUWANNEE..............
                                     TAYLOR................
                                     UNION.................
                                     WAKULLA...............
                                     WALTON................
                                     WASHINGTON............
                                     ALL OTHER COUNTIES....        70.23
GEORGIA............................  ALL COUNTIES..........        42.17
IDAHO..............................  CASSIA................         7.01
                                     GOODING...............
                                     JEROME................
                                     LINCOLN...............
                                     MINIDOKA..............
                                     ONEIDA................
                                     OWYHEE................
                                     POWER.................
                                     TWIN FALLS............
                                     ADA...................        21.08
                                     ADAMS.................
                                     BANNOCK...............
                                     BEAR LAKE.............
                                     BENEWAH...............
                                     BINGHAM...............
                                     BLAINE................
                                     BOISE.................
                                     BONNER................
                                     BONNEVILLE............
                                     BOUNDARY..............
                                     BUTTE.................
                                     CAMAS.................
                                     CANYON................
                                     CARIBOU...............
                                     CLARK.................
                                     CLEARWATER............
                                     CUSTER................
                                     ELMORE................
                                     FRANKLIN..............
                                     FREMONT...............
                                     GEM...................
                                     IDAHO.................        21.08
                                     JEFFERSON.............
                                     KOOTENAI..............
                                     LATAH.................
                                     LEMHI.................
                                     LEWIS.................
                                     MADISON...............
                                     NEZ PERCE.............
                                     PAYETTE...............
                                     SHOSHONE..............
                                     TETON.................
                                     VALLEY................
                                     WASHINGTON............
ILLINOIS...........................  ALL COUNTIES..........        21.08
INDIANA............................  ALL COUNTIES..........        35.12
KANSAS.............................  MORTON................        14.05
                                     ALL OTHER COUNTIES....         7.01
KENTUCKY...........................  ALL COUNTIES..........        21.08
LOUISIANA..........................  ALL COUNTIES..........        42.17
MAINE..............................  ALL COUNTIES..........        21.08
MICHIGAN...........................  ALGER.................        21.08
                                     BARAGA................
                                     CHIPPEWA..............
                                     DELTA.................
                                     DICKINSON.............
                                     GOGEBIC...............
                                     HOUGHTON..............
                                     IRON..................
                                     KEWEENAW..............
                                     LUCE..................
                                     MACKING...............
                                     MARQUETTE.............
                                     MENOMINEE.............
                                     ONTONAGON.............
                                     SCHOOLCRAFT...........
                                     ALL OTHER COUNTIES....        28.10
MINNESOTA..........................  ALL COUNTIES..........        21.08
MISSISSIPPI........................  ALL COUNTIES..........        28.10
MISSOURI...........................  ALL COUNTIES..........        21.08
MONTANA............................  BIG HORN..............         7.01
                                     BLAINE................
                                     CARTER................
                                     CASCADE...............
                                     CHOUTEAU..............
                                     CUSTER................
                                     DANIELS...............
                                     MCCONE................
                                     MEAGHER...............
                                     DAWSON................
                                     FALLON................
                                     FERGUS................
                                     GARFIELD..............
                                     GLACIER...............
                                     GOLDEN VALLEY.........
                                     HILL..................
                                     JUDITH BASIN..........
                                     LIBERTY...............
                                     MUSSELSHELL...........
                                     PETROLEUM.............
                                     PHILLIPS..............
                                     PONDERA...............
                                     POWDER RIVER..........
                                     PRAIRIE...............
                                     RICHLAND..............
                                     ROOSEVELT.............
                                     ROSEBUD...............
                                     SHERIDAN..............

[[Page 190]]

 
                                     TETON.................
                                     TOOLE.................
                                     TREASURE..............
                                     VALLEY................
                                     WHEATLAND.............
                                     WIBAUX................
                                     YELLOWSTONE...........
                                     BEAVERHEAD............        21.08
                                     BROADWATER............
                                     CARBON................
                                     DEER LODGE............        21.08
                                     FLATHEAD..............
                                     GALLATIN..............
                                     GRANITE...............
                                     JEFFERSON.............
                                     LAKE..................
                                     LEWIS & CLARK.........
                                     LINCOLN...............
                                     MADISON...............
                                     MINERAL...............
                                     MISSOULA..............
                                     PARK..................
                                     POWELL................
                                     RAVALLI...............
                                     SANDERS...............
                                     SILVER BOW............
                                     STILLWATER............
                                     SWEET GRASS...........
NEBRASKA...........................  ALL COUNTIES..........         7.01
NEVADA.............................  CHURCHILL.............         3.51
                                     CLARK.................
                                     ELKO..................
                                     ESMERALDA.............
                                     EUREKA................
                                     HUMBOLDT..............
                                     LANDER................
                                     LINCOLN...............
                                     LYON..................
                                     MINERAL...............
                                     NYE...................
                                     PERSHING..............
                                     WASHOE................
                                     WHITE PINE............
                                     CARSON CITY...........        35.12
                                     DOUGLAS...............
                                     STORY.................
NEW HAMPSHIRE......................  ALL COUNTIES..........        21.08
NEW MEXICO.........................  CHAVES................         7.01
                                     CURRY.................
                                     DE BACA...............
                                     DONA ANA..............         7.01
                                     EDDY..................
                                     GRANT.................
                                     GUADALUPE.............
                                     HARDING...............
                                     HIDALGO...............
                                     LEA...................
                                     LUNA..................
                                     MCKINLEY..............
                                     OTERO.................
                                     QUAY..................
                                     ROOSEVELT.............
                                     SAN JUAN..............
                                     SOCORRO...............
                                     TORRENCE..............
                                     RIO ARRIBA............        14.05
                                     SANDOUAL..............
                                     UNION.................
                                     BERNALILLO............        28.10
                                     CATRON................
                                     CIBOLA................
                                     COLFAX................
                                     LINCOLN...............
                                     LOS ALAMOS............
                                     MORA..................
                                     SAN MIGUEL............
                                     SANTA FE..............
                                     SIERRA................
                                     TAOS..................
                                     VALENCIA..............
NEW YORK...........................  ALL COUNTIES..........        28.10
NORTH CAROLINA.....................  ALL COUNTIES..........        42.17
NORTH DAKOTA.......................  ALL COUNTIES..........         7.01
OHIO...............................  ALL COUNTIES..........        28.10
OKLAHOMA...........................  BEAVER................        14.05
                                     CIMARRON..............
                                     ROGER MILLS...........
                                     TEXAS.................
                                     LE FLORE..............        21.08
                                     MC CURTAIN............
                                     ALL OTHER COUNTIES....         7.01
OREGON.............................  HARNEY................         7.01
                                     LAKE..................
                                     MALHEUR...............
                                     BAKER.................        14.05
                                     CROOK.................
                                     DESCHUTES.............
                                     GILLIAM...............
                                     GRANT.................
                                     JEFFERSON.............
                                     KLAMATH...............
                                     MORROW................
                                     SHERMAN...............
                                     UMATILLA..............
                                     UNION.................
                                     WALLOWA...............
                                     WASCO.................
                                     WHEELER...............
                                     COOS..................        21.08
                                     CURRY.................
                                     DOUGLAS...............
                                     JACKSON...............
                                     JOSEPHINE.............
                                     BENTON................        28.10
                                     CLACKAMAS.............
                                     CLATSOP...............
                                     COLUMBIA..............
                                     HOOD RIVER............
                                     LANE..................
                                     LINCOLN...............
                                     LINN..................
                                     MARION................
                                     MULTNOMAH.............
                                     POLK..................
                                     TILLAMOOK.............
                                     WASHINGTON............
                                     YAMHILL...............
PENNSYLVANIA.......................  ALL COUNTIES..........        28.10
PUERTO RICO........................  ALL...................        42.17
SOUTH CAROLINA.....................  ALL COUNTIES..........        42.17
SOUTH DAKOTA.......................  BUTTE.................        21.08
                                     CUSTER................
                                     FALL RIVER............
                                     LAWRENCE..............
                                     MEAD..................
                                     PENNINGTON............
                                     ALL OTHER COUNTIES....         7.01
TENNESSEE..........................  ALL COUNTIES..........        28.10
TEXAS..............................  CULBERSON.............         7.01

[[Page 191]]

 
                                     EL PASO...............
                                     HUDSPETH..............
                                     ALL OTHER COUNTIES....        42.17
UTAH...............................  BEAVER................         7.01
                                     BOX ELDER.............
                                     CARBON................
                                     DUCHESNE..............
                                     EMERY.................
                                     GARFIELD..............
                                     GRAND.................
                                     IRON..................
                                     JUAB..................
                                     KANE..................
                                     MILLARD...............
                                     SAN JUAN..............
                                     TOOELE................
                                     UINTAH................
                                     WAYNE.................
                                     WASHINGTON............        14.05
                                     CACHE.................        21.08
                                     DAGGETT...............
                                     DAVIS.................
                                     MORGAN................
                                     PIUTE.................
                                     RICH..................        21.08
                                     SALT LAKE.............
                                     SANPETE...............
                                     SEVIER................
                                     SUMMIT................
                                     UTAH..................
                                     WASATCH...............
                                     WEBER.................
VERMONT............................  ALL COUNTIES..........        28.10
VIRGINIA...........................  ALL COUNTIES..........        28.10
WASHINGTON.........................  ADAMS.................        14.05
                                     ASOTIN................
                                     BENTON................
                                     CHELAN................
                                     COLUMBIA..............
                                     DOUGLAS...............
                                     FRANKLIN..............
                                     GARFIELD..............
                                     GRANT.................
                                     KITTITAS..............
                                     KLICKITAT.............
                                     LINCOLN...............
                                     OKANOGAN..............
                                     SPOKANE...............
                                     WALLA WALLA...........
                                     WHITMAN...............
                                     YAKIMA................
                                     FERRY.................        21.08
                                     PEND OREILLE..........
                                     STEVENS...............
                                     CLALLAM...............        28.10
                                     CLARK.................
                                     COWLITZ...............
                                     GRAYS HARBOR..........
                                     ISLAND................
                                     JEFFERSON.............
                                     KING..................
                                     KITSAP................
                                     LEWIS.................
                                     MASON.................
                                     PACIFIC...............        28.10
                                     PIERCE................
                                     SAN JUAN..............
                                     SKAGIT................
                                     SKAMANIA..............
                                     SNOHOMISH.............
                                     THURSTON..............
                                     WAHKIAKUM.............
                                     WHATCOM...............
WEST VIRGINIA......................  ALL COUNTIES..........        28.10
WISCONSIN..........................  ALL COUNTIES..........        21.08
WYOMING............................  ALBANY................         7.01
                                     CAMPBELL..............
                                     CARBON................
                                     CONVERSE..............
                                     GOSHEN................
                                     HOT SPRINGS...........
                                     JOHNSON...............
                                     LARAMIE...............
                                     LINCOLN...............
                                     NATRONA...............
                                     NIOBRARA..............
                                     PLATTE................
                                     SHERIDAN..............
                                     SWEETWATER............
                                     FREMONT...............
                                     SUBLETTE..............
                                     UINTA.................
                                     WASHAKIE..............
                                     BIG HORN..............        21.08
                                     CROOK.................
                                     PARK..................
                                     TETON.................
                                     WESTON................
ALL OTHER ZONES....................  ......................         5.92
------------------------------------------------------------------------


[71 FR 2864, Jan. 18, 2006]



PART 12_SAFETY OF WATER POWER PROJECTS AND PROJECT WORKS--Table of 
Contents

                      Subpart A_General Provisions

Sec.
12.1 Applicability.
12.2 Rules of construction.
12.3 Definitions.
12.4 Staff administrative responsibility and supervisory authority.
12.5 Responsibilities of licensee or applicant.

                      Subpart B_Reports and Records

12.10 Reporting safety-related incidents.
12.11 Reporting modifications of the project or project works.
12.12 Maintenance of records.
12.13 Verification form.

                    Subpart C_Emergency Action Plans

12.20 General requirements.
12.21 Exemptions.
12.22 Contents of emergency action plan.
12.23 Time for filing emergency action plan.
12.24 Review and updating of plans.
12.25 Posting and readiness.

[[Page 192]]

             Subpart D_Inspection by Independent Consultant

12.30 Applicability.
12.31 Definitions.
12.32 General inspection requirement.
12.33 Exemption.
12.34 Approval of independent consultant.
12.35 Specific inspection requirements.
12.36 Emergency corrective measures.
12.37 Report of the independent consultant.
12.38 Time for inspections and reports.
12.39 Taking corrective measures after the report.

        Subpart E_Other Responsibilities of Applicant or Licensee

12.40 Quality control programs.
12.41 Monitoring instruments.
12.42 Warning and safety devices.
12.43 Power and communication lines and gas pipelines.
12.44 Testing spillway gates.

    Authority: 16 U.S.C. 792-828c; 42 U.S.C. 7101-7352; E.O. 12009, 3 
CFR 142 (1978).

    Source: Order 122, 46 FR 9036, Jan. 28, 1981, unless otherwise 
noted.

    Editorial Note: Nomenclature changes to part 12 appear at 69 FR 
32438, June 10, 2004.



                      Subpart A_General Provisions



Sec. 12.1  Applicability.

    (a) Except as otherwise provided in this part or ordered by the 
Commission or its authorized representative, the provisions of this part 
apply to:
    (1) Any project licensed under Part I of the Federal Power Act;
    (2) Any unlicensed constructed project for which the Commission has 
determined that an application for license must be filed under Part I of 
the Act; and
    (3) Any project exempted from licensing under Part I of the Federal 
Power Act, pursuant to subparts J or K of part 4 of this chapter, to the 
extent that the Commission has conditioned the exemption on compliance 
with any particular provisions of this part.
    (b) The provisions of this part apply to a project that uses a 
Government dam only with respect to those project works, lands, and 
waters specifically licensed by the Commission.



Sec. 12.2  Rules of construction.

    (a) If any term, condition, article, or other provision in a project 
license is similar to any provision of this part, the licensee must 
comply with the relevant provision of this part, unless the Commission 
or the Director of the Office of Energy Projects Licensing determines 
that compliance with the relevant provision of the license will better 
protect life, health, or property.
    (b) A licensee may request from the Director of the Office of Energy 
Projects Licensing a ruling on the applicability to its actions of any 
provision of its license that is similar to a provision of this part. A 
ruling by the Director may be appealed under Sec. 385.207 of this 
chapter.

[Order 122, 46 FR 9036, Jan. 28, 1981, as amended by Order 225, 47 FR 
19056, May 3, 1982; 49 FR 29370, July 20, 1984]



Sec. 12.3  Definitions.

    (a) General rule. For purposes of this part, terms defined in 
section 3 of the Federal Power Act, 16 U.S.C. 796, have the same meaning 
as they have under the Act.
    (b) Definitions. The following definitions apply for the purposes of 
this part:
    (1) Applicant means any person, state, or municipality that has 
applied for a license for an unlicensed, constructed project and any 
owner of an unlicensed, constructed project for which the Commission has 
determined that an application for license must be filed.
    (2) Owner means any person, state, or municipality, or combination 
thereof, that has a real property interests in a water power project 
sufficient to operate and maintain the project works.
    (3) Authorized Commission representative means the Director of the 
Office of Energy Projects Licensing, the Director of the Division of 
Inspections, the Regional Engineer, or any other member of the 
Commission staff whom the Commission may specifically designate.
    (4) Condition affecting the safety of a project or project works 
means any condition, event, or action at the project which might 
compromise the safety, stability, or integrity of any project work or 
the ability of any project work to function safely for its intended 
purposes, including navigation, water power development, or other 
beneficial public uses; or which might otherwise

[[Page 193]]

adversely affect life, health, or property. Conditions affecting the 
safety of a project or project works include, but are not limited to:
    (i) Unscheduled rapid draw-down of impounded water;
    (ii) Failure of any facility that controls the release or storage of 
impounded water, such as a gate or a valve;
    (iii) Failure or unusual movement, subsidence, or settlement of any 
part of a project work;
    (iv) Unusual concrete deterioration or cracking, including 
development of new cracks or the lengthening or widening of existing 
cracks;
    (v) Piping, slides, or settlements of materials in any dam, 
abutment, dike, or embankment;
    (vi) Significant slides or settlements of materials in areas 
adjacent to reservoirs;
    (vii) Significant damage to slope protection;
    (viii) Unusual instrumentation readings;
    (ix) New seepage or leakage or significant gradual increase in pre-
existing seepage or leakage;
    (x) Sinkholes;
    (xi) Significant instances of vandalism or sabotage;
    (xii) Natural disasters, such as floods, earthquakes, or volcanic 
activity;
    (xiii) Any other signs of instability of any project work.
    (5) Constructed project means any project with an existing dam.
    (6) Dam means any structure for impounding or diverting water.
    (7) Development means that part of a project comprising an 
impoundment and its associated dams, forebays, water conveyance 
facilities, power plants, and other appurtenant facilities. A project 
may comprise one or more developments.
    (8) Modification means any activity, including repair or 
reconstruction, that in any way changes the physical features of the 
project from the state reflected in the plans or drawings or other 
documents filed with the Commission.
    (9) Project emergency means an impending or actual sudden release of 
water at the project caused by natural disaster, accident, or failure of 
project works.
    (10) Regional Engineer means the person in charge of the 
Commission's regional office for the region (Atlanta, Chicago, Portland, 
New York, or San Francisco) where a particular project is located.
    (11) Act means the Federal Power Act.

[Order 122, 46 FR 9036, Jan. 28, 1981, as amended at 49 FR 29370, July 
20, 1984; Order 647, 69 FR 32438, June 10, 2004]



Sec. 12.4  Staff administrative responsibility and supervisory authority.

    (a) Administrative responsibility. The Director of the Office of 
Energy Projects Licensing is responsible for administering the 
Commission's project safety program and reports directly to the Chairman 
of the Federal Energy Regulatory Commission.
    (b) Supervisory authority of the Regional Engineer or other 
authorized representative. (1) Any water power project and the 
construction, operation, maintenance, use, repair, or modification of 
any project works are subject to the inspection and the supervision of 
the Regional Engineer or any other authorized Commission representative 
for the purpose of:
    (i) Achieving or protecting the safety, stability, and integrity of 
the project works or the ability of any project work to function safely 
for its intended purposes, including navigation, water power 
development, or other beneficial public uses; or
    (ii) Otherwise protecting life, health, or property.
    (2) For the purposes set forth in paragraph (b)(1) of this section, 
a Regional Engineer or other authorized Commission representative may:
    (i) Test or inspect any water power project or project works or 
require that the applicant or licensee perform such tests or inspections 
or install monitoring instruments;
    (ii) Require an applicant or a licensee to submit reports or 
information, regarding:
    (A) The design, construction, operation, maintenance, use, repair, 
or modification of a water power project or project works; and

[[Page 194]]

    (B) Any condition affecting the safety of a project or project works 
or any death or injury that occurs at, or might be attributable to, the 
water power project;
    (iii) Require an applicant or a licensee to modify:
    (A) Any emergency action plan filed under subpart C of this part; or
    (B) Any plan of corrective measures, including related schedules, 
submitted after the report of an independent consultant pursuant to 
Sec. 12.37 or any other inspection report;
    (iv) Require an applicant or licensee to take any other action with 
respect to the design, construction, operation, maintenance, repair, 
use, or modification of the project or its works that is, in the 
judgment of the Regional Engineer or other authorized Commission 
representative, necessary or desirable.
    (v) Establish the time for an applicant or licensee to provide a 
schedule for or to perform any actions specified in this paragraph.
    (c) Appeal, stay, rescission, or amendment of order or directive. 
(1) Any order or directive issued under this section or under the 
provisions of subparts B through E of this part by a Regional Engineer 
or other authorized Commission representative may be appealed to the 
Commission under Sec. 385.207 of this chapter.
    (2) Any order or directive issued under this section by a Regional 
Engineer or other authorized Commission representative is immediately 
effective and remains in effect until:
    (i) The Regional Engineer or other authorized Commission 
representative who issued the order or directive rescinds or amends that 
order or directive or stays its effect; or
    (ii) The Commission stays the effect of the order or directive, or 
amends or rescinds the order or directive on appeal.
    (3) An appeal or motion for rescission, amendment, or stay of any 
order or directive issued under this section must contain a full 
explanation of why granting the appeal or the request for rescission or 
amendment of the order or directive, or for stay for the period 
requested, will not endanger life, health, or property.

[Order 122, 46 FR 9036, Jan. 28, 1981, as amended by Order 225, 47 FR 
19056, May 3, 1982; 49 FR 29370, July 20, 1984]



Sec. 12.5  Responsibilities of licensee or applicant.

    A licensee or applicant must use sound and prudent engineering 
practices in any action relating to the design, construction, operation, 
maintenance, use, repair, or modification of a water power project or 
project works.



                      Subpart B_Reports and Records



Sec. 12.10  Reporting safety-related incidents.

    (a) Conditions affecting the safety of a project or its works--1) 
Oral reports. An applicant or licensee must report by telephone to the 
Regional Engineer any condition affecting the safety of a project or 
projects works, as defined in Sec. 12.3(b)(4). The initial oral report 
must be made as soon as practicable after that condition is discovered, 
without unduly interfering with any necessary or appropriate emergency 
repair, alarm, or other emergency action procedure.
    (2) Written reports. Following the initial oral report required in 
paragraph (a)(1), the applicant or licensee must submit to the Regional 
Engineer a written report on the condition affecting the safety of the 
project or project works verified in accordance with Sec. 12.13. The 
written report must be submitted within the time specified by the 
Regional Engineer and must contain any information the Regional Engineer 
directs, including:
    (i) The causes of the condition;
    (ii) A description of any unusual occurrences or operating 
circumstances preceding the condition;
    (iii) An account of any measure taken to prevent worsening of the 
condition;
    (iv) A detailed description of any damage to project works and the 
status of any repair;
    (v) A detailed description of any personal injuries;
    (vi) A detailed description of the nature and extent of any private 
property damages; and

[[Page 195]]

    (vii) Any other relevant information requested by the Regional 
Engineer.
    (3) The level of detail required in any written report must be 
commensurate with the severity and complexity of the condition.
    (b) Deaths or serious injuries. (1) Promptly after becoming aware of 
any drowning or other accident resulting in death or serious injury that 
occurs at the project, the applicant or licensee must report that 
drowning or other accident to the Regional Engineer in writing, 
including a description of the cause and location of the accident.
    (2) The written report of any death or serious injury considered or 
alleged to be project related must also describe any remedial actions 
taken or proposed to avoid or reduce the chance of similar occurrences 
in the future and be verified in accordance with Sec. 12.13.
    (3) Accidents that are not project-related may be reported by 
providing a copy of a clipping from a newspaper article, if available.
    (4) For the purposes of this paragraph, project-related includes any 
deaths or serious injuries involving a dam, spillway, intake, or power 
line, or which take place at or immediately above or below a dam.



Sec. 12.11  Reporting modifications of the project or project works.

    (a) Reporting requirement. Regardless of whether a particular 
modification is permitted without specific prior Commission approval, an 
applicant or licensee must report any modification of the project or 
project works to the Regional Engineer in writing, verified in 
accordance with Sec. 12.13, at the time specified in paragraph (b) of 
this section.
    (b) Time of reporting. (1) Any modification that is an emergency 
measure taken in response to a condition affecting the safety of the 
project or project works must be submitted with the report of that 
condition required by Sec. 12.10(a)(2).
    (2) In all other instances, the modification must be reported at 
least 60 days before work on the modification begins.



Sec. 12.12  Maintenance of records.

    (a) Kinds of records--1) General rule. Except as provided in 
paragraph (a)(2) of this section, the applicant or licensee must 
maintain as permanent project records in addition to those required in 
part 125 of this chapter, the following information:
    (i) Engineering and geological data relating to design, 
construction, maintenance, repair, or modification of the project, 
including design memoranda and drawings, laboratory and other testing 
reports, geologic data (such as maps, sections, or logs of exploratory 
borings or trenches, foundation treatment, and excavation), plans and 
specifications, inspection and quality control reports, as built 
construction drawings, designers' operating criteria, photographs, and 
any other data necessary to demonstrate that construction, maintenance, 
repair, or modification of the project has been performed in accordance 
with plans and specifications;
    (ii) Instrumentation observations and data collected during 
construction, operation, or maintenance of the project, including 
continuously maintained tabular records and graphs illustrating the data 
collected pursuant to Sec. 12.41; and
    (iii) The operational and maintenance history of the project, 
including:
    (A) The dates, times, nature, and causes of any complete or partial 
unscheduled shut-down, suspension of project operations, or reservoir 
filling restrictions related to the safety of the project or project 
works; and
    (B) Any reports of project modifications, conditions affecting the 
safety of the project or project works, or deaths or serious injuries at 
the project.
    (2) Exception. The applicant or licensee is not required to maintain 
as permanent project records any information specified in paragraph 
(a)(1) of this section that was or reasonably would have been prepared 
before the applicant or licensee acquired control of the project and 
that the applicant or the licensee never acquired or reasonably could 
have acquired.
    (b) Location of records--1) Original records. The applicant or 
licensee must maintain the originals of all permanent project records at 
a central location, such as the project site or the

[[Page 196]]

main business office of the applicant or licensee, secure from damage 
from any conceivable failure of the project works and convenient for 
inspection. The applicant or licensee must keep the Regional Engineer 
advised of the location of the permanent project records.
    (2) Record copies. If the originals of the permanent project records 
are maintained at a central location other than the project site, the 
applicant or licensee must maintain at the project site copies of at 
least the project Exhibit G or L (design drawings), instrumentation 
data, and operational history that are necessary to the safe and 
efficient operation of the project.
    (3) In accordance with the provisions of part 125 of this chapter, 
the applicant or licensee may maintain original records, or record 
copies at the project site, in microform, if appropriate equipment is 
readily available to view the records.
    (c) Transfer of records. If the project is taken over by the United 
States at the end of a license term or the Commission issues a new 
license to a different licensee, the prior licensee must transfer the 
originals of all permanent project records to the custody of the 
administering Federal agency or department or to the new licensee.



Sec. 12.13  Verification form.

    If a document submitted in accordance with the provisions of this 
part must be verified, the form of verification attached to the document 
must be the following:

State of [ ],
County of [ ], ss:
    The undersigned, being first duly sworn, states that [he, she] has 
read the above document and knows the contents of it, and that all of 
the statements contained in that document are true and correct, to the 
best of [his, her] knowledge and belief.

________________________________________________________________________
[Name of person signing]

    Sworn to and subscribed before me this [day] of [month], [year].

[Seal]

________________________________________________________________________

[Signature of notary public or other state or local official authorized 
by law to notarize documents.]



                    Subpart C_Emergency Action Plans



Sec. 12.20  General requirements.

    (a) Unless provided with a written exemption pursuant to Sec. 
12.21, every applicant or licensee must develop and file with the 
Regional Engineer three copies of an emergency action plan and 
appendices, verified in accordance with Sec. 12.13.
    (b) The emergency action plan must be:
    (1) Developed in consultation and cooperation with appropriate 
Federal, state, and local agencies responsible for public health and 
safety; and
    (2) Designed to provide early warning to upstream and downstream 
inhabitants, property owners, operators of water-related facilities, 
recreational users, and other persons in the vicinity who might be 
affected by a project emergency as defined in Sec. 12.3(b)(9).



Sec. 12.21  Exemptions.

    (a) Grant of exemption. Except as provided in paragraph (b), if an 
applicant or licensee satisfactorily demonstrates that no reasonably 
foreseeable project emergency would endanger life, health, or property, 
the Regional Engineer may exempt the applicant or licensee from filing 
an emergency action plan.
    (b) No exemption. A licensee or applicant may not be exempted from 
the requirements of Sec. 12.22(c) for a radiological response plan.
    (c) Conditions of exemptions. (1) An applicant or licensee who 
receives an exemption from filing an emergency action plan has the 
continuing responsibility to review circumstances upstream and 
downstream from the project to determine if, as a result of changed 
circumstances, a project emergency might endanger life, health, or 
property.
    (2) Promptly after the applicant or licensee learns that, as a 
result of any change in circumstances, a project emergency might 
endanger life, health, or property, the applicant or licensee must 
inform the Regional Engineer of that changed condition without unduly 
delaying the preparation and implementation of the emergency action 
plan.

[[Page 197]]

    (3) Comprehensive review of the necessity for an emergency action 
plan must be conducted at least once each year.
    (d) Revocation of exemption. (1) The Regional Engineer may revoke an 
exemption granted under this section if it is determined that, as a 
result of any change in circumstances, a project emergency might 
endanger life, health, or property.
    (2) If an exemption is revoked, the applicant or licensee must file 
an emergency action plan within the time specified by the Regional 
Engineer.



Sec. 12.22  Contents of emergency action plan.

    (a) Contents--(1) The plan itself. An emergency action plan must 
conform with the guidelines established, and from time to time revised, 
by the Director of the Office of Energy Projects Licensing (available 
from the division of Inspections or the Regional Engineer) to provide:
    (i) Instructions to project operators and attendants and other 
responsible personnel about the actions they are to take during a 
project emergency;
    (ii) Detailed plans for notifying potentially affected persons, 
appropriate Federal, state, and local agencies, including public safety 
and law enforcement bodies, and medical units; and
    (iii) Procedures for controlling the flow of water, including 
actions to reduce in-flows to reservoirs, such as limiting outflows from 
upstream dams or control structures, and actions to reduce downstream 
flows, such as increasing or decreasing outflows from downstream dams or 
control structures, on the waterway on which the project is located or 
its tributaries.
    (2) Appendix to the plan. Each copy of the emergency action plan 
submitted to the Regional Engineer must be accompanied by an appendix 
conforming with the guidelines established by the Director of the Office 
of Energy Projects Licensing that contains:
    (i) Plans for training project operators, attendants, and other 
responsible personnel to respond properly during a project emergency, 
including instructions on the procedures to be followed throughout a 
project emergency and the manner in which the licensee will periodically 
review the knowledge and understanding that these personnel have of 
those procedures;
    (ii) A summary of the study used for determining the upstream and 
downstream areas that may be affected by sudden release of water, 
including a summary of all criteria and assumptions used in the study 
and, if required by the Regional Engineer, inundation maps; and
    (iii) Documentation of consultations with Federal, state, and local 
agencies, including public safety and law enforcement bodies, and 
medical units.
    (b) Special factors. The applicant or licensee must take into 
account in its emergency action plan the time of day, particularly hours 
of darkness, in establishing the proper actions and procedures for use 
during a project emergency.
    (c) Additional requirements for projects near nuclear power plants--
1) Radiological response plan. If the personnel operating any powerhouse 
or any spillway control facilities, such as gates or valves, of a 
project would be located within ten miles of a nuclear power plant 
reactor, the applicant or licensee must file, separately or as a 
supplement to any required emergency action plan, a radiological 
response plan that provides for emergency procedures to be taken if an 
accident or other incident results in the release of radioactive 
materials from the nuclear power plant reactor.
    (2) A radiological response plan must:
    (i) To the maximum extent practicable, include sufficient procedural 
safeguards to ensure that, during or following an accident or other 
incident involving the nearby nuclear power plant reactor, the project 
may be safely operated and, if evacuation is necessary, the project may 
be left unattended without danger to the safety of any project dam or to 
life, health, or safety upstream or downstream from the project; and
    (ii) Explain the provisions, developed after consultation with the 
direct purchasers of project power, for cessation, curtailment, or 
continuation of generation of electric power at the project during or 
following an accident or other incident involving the nearby nuclear 
power plant reactor.

[[Page 198]]

    (3) Time of filing radiological response plan. (i) For a constructed 
project with an otherwise acceptable emergency action plan on file, any 
radiological response plan required must be filed:
    (A) If an operating license for the nuclear power plant has been 
issued on or before March 1, 1981, not later than three months from 
March 1, 1981; or
    (B) In all other instances, not later than three months after the 
date an operating license for the nuclear power plant is issued.
    (ii) For any project not described in Sec. 12.22(c)(3)(i), any 
radiological response plan required must be filed contemporaneously with 
the emergency action plan or, if the project has been exempted from 
filing an emergency action plan, at the time the emergency action plan 
would otherwise have been required to be filed pursuant to Sec. 12.23.

[Order 122, 46 FR 9036, Jan. 28, 1981, as amended at 49 FR 29370, July 
20, 1984]



Sec. 12.23  Time for filing emergency action plan.

    (a) Unconstructed project. (1) Except as set forth in paragraph 
(a)(2), the emergency action plan for an unconstructed project must be 
filed no later than 60 days before the initial filling of the project 
reservoir begins.
    (2) Temporary impoundment during construction. (i) For any 
unconstructed project, if a temporary impoundment would be created 
during construction, such as through construction of temporary or 
permanent cofferdams or large sediment control structures, and an 
accident to or failure of the impounding structures might endanger 
construction workers or otherwise endanger public health or safety, a 
temporary construction emergency action plan must be filed no later than 
60 days before construction begins.
    (ii) No later than 60 days before the initial filling of a project 
reservoir begins at a project for which a temporary emergency action 
plan has been filed the applicant or licensee must file modifications to 
that plan or a new plan, taking into account the differences in 
circumstances between the construction and post-construction periods.
    (b) Unlicensed constructed project. (1) If the Commission has 
determined on or before March 1, 1981 that a license is required for an 
unlicensed constructed project, the emergency action plan for that 
project must be filed no later than:
    (i) Six months after March 1, 1981; or
    (ii) Any earlier date specified by the Commission or its authorized 
representative.
    (2) Except as set forth in paragraph (b)(1) of this section, the 
emergency action plan for an unlicensed constructed project must be 
filed no later than the earliest of:
    (i) Six months after the date that a license application is filed;
    (ii) Six months after the date that the Commission issues an order 
determining that licensing is required; or
    (iii) A date specified by the Commission or its authorized 
representative.
    (c) Licensed constructed project. If a licensed constructed project 
does not have an acceptable emergency action plan on file on March 1, 
1981 the emergency action plan must be filed no later than:
    (1) Six months after March 1, 1981; or
    (2) Any earlier date specified by the Commission or its authorized 
representative.
    (d) For good cause shown, the Regional Engineer may grant an 
extension of time for filing all or any part of an emergency action 
plan.



Sec. 12.24  Review and updating of plans.

    (a) The emergency action plan must be continually updated to reflect 
any changes in the names or titles of project operators and attendants 
and other personnel with specified responsibilities for actions in an 
emergency and any changes in names of persons to call, telephone 
numbers, radio call signals, or other information critical to providing 
notification to affected persons, Federal, state, and local agencies, 
and medical units.
    (b) An applicant or licensee has continuing responsibility to review 
the adequacy of the emergency action plan in light of any significant 
changes in upstream or downstream circumstances which might affect water 
flows or the location or extent of the areas, persons, or property that 
might be harmed in a project emergency.

[[Page 199]]

    (c) Promptly after an applicant or licensee learns of any change in 
circumstances described in paragraph (b) of this section, the applicant 
or licensee must:
    (1) Inform the Regional Engineer of that change in circumstances;
    (2) Consult and cooperate with appropriate Federal, state, and local 
agencies responsible for public health and safety to determine any 
advisable revisions to the emergency action plan; and
    (3) File with the Regional Engineer three copies of any revisions to 
the appropriate studies, maps, plans, procedures, or other information 
in the emergency action plan itself or its appendices that have changed 
as a result of that consultation.
    (d) An applicant or licensee must conduct a comprehensive review of 
the adequacy of the emergency action plan at least once each year.



Sec. 12.25  Posting and readiness.

    (a) A copy of the current emergency action plan itself must be 
posted in a prominent location readily accessible to the licensee's or 
applicant's operating personnel who are responsible for controlling 
water flows and for notifying public health and safety agencies and 
affected persons.
    (b) Each licensee or applicant must annually test the state of 
training and readiness of key licensee or applicant personnel 
responsible for responding properly during a project emergency to ensure 
that they know and understand the procedures to be followed throughout a 
project emergency.



             Subpart D_Inspection by Independent Consultant



Sec. 12.30  Applicability.

    This subpart applies to any licensed project development that has a 
dam:
    (a) That is more than 32.8 feet (10 meters) in height above 
streambed, as defined in Sec. 12.31(c);
    (b) That impounds an impoundment with a gross storage capacity of 
more than 2,000 acre-feet (2.5 million cubic meters); or
    (c) That has a high hazard potential and is determined by the 
Regional Engineer or other authorized Commission representative to 
require inspection by an independent consultant under this subpart.



Sec. 12.31  Definitions.

    For purposes of this subpart:
    (a) Independent consultant means any person who:
    (1) Is a licensed professional engineer;
    (2) Has at least 10 years experience and expertise in dam design and 
construction and in the investigation of the safety of existing dams; 
and
    (3) Is not, and has not been within two years before being retained 
to perform an inspection under this subpart, an employee of the licensee 
or its affiliates or an agent acting on behalf of the licensee or its 
affiliates.
    (b) Dam that has a high hazard potential means any dam whose 
failure, in the judgment of the Commission or its authorized 
representative, might endanger human life or cause significant property 
damage, or which meets the criteria for high hazard potential as defined 
by the Corps of Engineers in 33 CFR part 222.
    (c) Height above streambed means:
    (1) For a dam with a spillway, the vertical distance from the lowest 
elevation of the natural streambed at the downstream toe of the dam to 
the maximum water storage elevation possible without any discharge from 
the spillway. The maximum water storage elevation is:
    (i) For gated spillways, the elevation of the tops of the gates;
    (ii) For ungated spillways, the elevation of the spillway crest or 
the top of any flashboards, whichever is higher;
    (2) For a dam without a spillway, the vertical distance from the 
lowest elevation of the natural streambed at the downstream tow of the 
dam to the lowest point on the crest of the dam.
    (d) Gross storage capacity means the maximum possible volume of 
water impounded by a dam with zero spill, that is, without the discharge 
of water over the dam or a spillway.
    (e) The Director of the Office of Energy Projects Licensing may, for 
good cause shown, grant a waiver of the 10 year requirement in paragraph 
(a)(2) of this section. Any petition for waiver

[[Page 200]]

under this paragraph must be filed in accordance with Sec. 1.7(b) of 
this chapter.

[Order 122, 46 FR 9036, Jan. 28, 1981, as amended at 49 FR 29370, July 
20, 1984]



Sec. 12.32  General inspection requirement.

    In accordance with the procedures in Sec. 12.35, the project works 
of each development to which this subpart applies, excluding 
transmission and transformation facilities and generating equipment, 
must be periodically inspected and evaluated by or under the 
responsibility and direction of at least one independent consultant, who 
may be a member of a consulting firm, to identify any actual or 
potential deficiencies, whether in the condition of those project works 
or in the quality or adequacy of project maintenance, surveillance, or 
methods of operation, that might endanger public safety.



Sec. 12.33  Exemption.

    (a) Upon written request from the licensee, the Director of the 
Office of Energy Projects Licensing may grant an exemption from the 
requirements of this subpart in extraordinary circumstances that clearly 
establish good cause for exemption.
    (b) Good cause for exemption may include the finding that the 
development in question has no dam except dams that meet the criteria 
for low hazard potential as defined by the Corps of Engineers in 33 CFR 
part 222.

[Order 122, 46 FR 9036, Jan. 28, 1981, as amended at 49 FR 29370, July 
20, 1984]



Sec. 12.34  Approval of independent consultant.

    At least 60 days before the initiation of an inspection under this 
subpart, the licensee must submit to the Director of the Office of 
Energy Projects Licensing for approval, with a copy to the Regional 
Engineer, a detailed resume that (a) describes the experience of the 
independent consultant; and, (b) shows that the consultant is an 
independent consultant as defined in Sec. 12.31(a).

[Order 122, 46 FR 9036, Jan. 28, 1981, as amended at 49 FR 29370, July 
20, 1984]



Sec. 12.35  Specific inspection requirements.

    (a) Scope of inspection. The inspection by the independent 
consultant shall include:
    (1) Due consideration of all relevant reports on the safety of the 
development made by or written under the direction of Federal or state 
agencies, submitted under Commission regulations, or made by other 
consultants;
    (2) Physical field inspection of the project works and review and 
assessment of all relevant data concerning:
    (i) Settlement;
    (ii) Movement;
    (iii) Erosion;
    (iv) Seepage;
    (v) Leakage;
    (vi) Cracking;
    (vii) Deterioration;
    (viii) Seismicity;
    (ix) Internal stress and hydrostatic pressures in project structures 
or their foundations or abutments;
    (x) The functioning of foundation drains and relief wells;
    (xi) The stability of critical slopes adjacent to a reservoir or 
project works; and
    (xii) Regional and site geological conditions; and
    (3) Specific evaluation of:
    (i) The adequacy of spillways;
    (ii) The effects of overtopping of nonoverflow structures;
    (iii) The structural adequacy and stability of structures under all 
credible loading conditions;
    (iv) The relevant hydrological data accumulated since the project 
was constructed or last inspected under this subpart;
    (v) The history of the performance of the project works through 
analysis of data from monitoring instruments; and
    (vi) The quality and adequacy of maintenance, surveillance, and 
methods of project operations for the protection of public safety.
    (b) Evaluation of spillway adequacy. The adequacy of any spillway 
must be evaluated by considering hazard potential which would result 
from failure of the project works during flood flows.
    (1) If structural failure would present a hazard to human life or 
cause significant property damage, the independent consultant must 
evaluate the ability of

[[Page 201]]

project works to withstand the loading or overtopping which may occur 
from a flood up to the probable maximum flood or the capacity of 
spillways to prevent the reservoir from rising to an elevation that 
would endanger the project works.
    (2) If structural failure would not present a hazard to human life 
of cause significant property damage, spillway adequacy may be evaluated 
by means of a design flood of lesser magnitude than the probable maximum 
flood, if the report of the independent consultant pursuant to Sec. 
12.37 provides a detailed explanation of the bases for the finding that 
structural failure would not present a hazard to human life or cause 
significant property damage.



Sec. 12.36  Emergency corrective measures.

    If, in the course of an inspection, an independent consultant 
discovers any condition for which emergency corrective measures are 
advisable, the independent consultant must immediately notify the 
licensee and the licensee must report that condition to the Regional 
Engineer pursuant to Sec. 12.10(a) of this part.



Sec. 12.37  Report of the independent consultant.

    (a) General requirement. Following inspection of a project 
development as required under this subpart, the independent consultant 
must prepare a report and the licensee must file three copies of that 
report with the Regional Engineer. The report must conform to the 
provisions of this section and be satisfactory to the authorized 
Commission representative.
    (b) General information in the initial report. (1) The initial 
report filed under this subpart for any project development must 
contain:
    (i) A description of the project development;
    (ii) A map of the region indicating the location of the project 
development;
    (iii) Plans, elevations, and sections of the principal project 
works;
    (iv) A summary of the design assumptions, design analyses, spillway 
design flood, and the factors of safety used to evaluate the structural 
adequacy and stability of the project works; and
    (v) A summary of the geological conditions that may affect the 
safety of the project works.
    (2) To the extent that the information and analyses required in 
paragraph (b)(1) of this section, are contained in a report of an 
independent consultant prepared and filed in compliance with Commission 
regulations in effect before March 1, 1981 the information and analyses 
may be incorporated by specific reference into the first report prepared 
and filed under this subpart.
    (c) Information required for all reports. Any report of an 
independent consultant filed under this subpart must contain the 
information specified in this paragraph.
    (1) Monitoring information. The report must contain monitoring 
information that includes time-versus-reading graphs depicting data 
compiled from any existing critical or representative monitoring 
instruments that measure the behavior, movement, deflection, or loading 
of project works or from which the stability, performance, or 
functioning of the structures may be determined.
    (i) Any monitoring data plotted on graphs must be presented in a 
manner that will facilitate identification and analysis of trends. The 
data may be summarized to facilitate graphical representation.
    (ii) Plan and sectional drawings of project structures sufficient to 
show the location of all critical or representative existing monitoring 
instruments must be included. If these drawings have been included in a 
previous report prepared and filed by an independent consultant, they 
may be incorporated by specific reference to that earlier report.
    (2) Analyses. The report must:
    (i) Analyze the safety of the project works and the maintenance and 
methods of operation of the development fully in light of the 
independent consultant's reviews, field inspections, assessments, and 
evaluations described in Sec. 12.35;

[[Page 202]]

    (ii) Identify any changes in the information and analyses required 
by paragraph (b) of this section that have occurred since the last 
report by an independent consultant under this subpart and analyze the 
implications of those changes; and
    (iii) Analyze the adequacy of existing monitoring instruments, 
periodic observation programs, and other methods of monitoring project 
works and conditions effecting the safety of the project or project 
works with respect to the development.
    (3) Incorporation by reference. To the extent that conditions, 
assumptions, and available information have not changed since the last 
previous report by an independent consultant under this subpart, the 
analyses required under paragraphs (c)(2)(i) and (ii) of this section 
may be incorporated by specific reference to the last previous report.
    (4) Recommendations. Based on the independent consultant's field 
observations and evaluations of the project works and the maintenance, 
surveillance, and methods of operation of the development, the report 
must contain the independent consultant's recommendations on:
    (i) Any corrective measures necessary for the structures or for the 
maintance or surveillance procedures or methods of operation of the 
project works;
    (ii) A reasonable time to carry out each corrective measure; and
    (iii) Any new or additional monitoring instruments, periodic 
observations, or other methods of monitoring project works or conditions 
that may be required.
    (5) Dissenting views. If the inspection and report were conducted 
and prepared by more than one independent consultant, the report must 
clearly indicate any dissenting views concerning the analyses or 
recommendations of the report that might be held by any individual 
consultant.
    (6) List of participants. The report must identify all professional 
personnel who have participated in the inspection of the project or in 
preparation of the report and the independent consultant who directed 
those activities.
    (7) Statement of independence. The independent consultant must 
declare that all conclusions and recommendations in the report are made 
independently of the licensee, its employees, and its representatives.
    (8) Signature. The report must be signed by each independent 
consultant responsible for the report.



Sec. 12.38  Time for inspections and reports.

    (a) General rule. After the initial inspection and report under this 
subpart for a project development, a new inspection under this subpart 
must be completed and the report on it filed not later than five years 
from the date the last report on an inspection was to be filed under 
this subpart.
    (b) Initial inspection and report. (1) For any development that has 
a dam that is more than 32.8 feet (10 meters) in height above streambed 
or impounds an impoundment with a gross storage capacity of more than 
2,000 acre feet (2.5 million cubic meters), which development was 
constructed before the date of issuance of the order licensing or 
amending a license to include that development, the initial inspection 
under this subpart must be completed and the report on it filed not 
later than two years after the date of issuance of the order licensing 
the development or amending the license to include the development.
    (2) For any development that was constructed after the date of 
issuance of the order licensing or amending a license to include the 
development, the initial inspection under this subpart must be completed 
and the report on it filed not later than five years from the date of 
first commercial operation, or the date on which the impoundment first 
reaches its normal maximum surface elevation, whichever occurs first.
    (3) For any development not set forth in either subparagraph (b)(1) 
or (b)(2), the initial inspection under this subpart must be completed 
and the report on it filed by a date specified by the Regional Engineer. 
The filing date must not be more than two years after the date of 
notification that an inspection and report under this subpart are 
required.

[[Page 203]]

    (4) The last independent consultant's inspection and report made for 
a development before March 1, 1981 in compliance with the Commission's 
rules then in effect is deemed to fulfill the requirements for an 
initial inspection and report under this subpart for that development, 
except that the first report filed under this subpart for that 
development after March 1, 1981 must contain the information and 
analyses required by Sec. 12.37(b).
    (c) Extension of time. For good cause shown, the Regional Engineer 
may extend the time for filing an independent consultant's report under 
this subpart.



Sec. 12.39  Taking corrective measures after the report.

    (a) Corrective plan and schedule. (1) Not later than 60 days after 
the report of the independent consultant is filed with the Regional 
Engineer, the licensee must submit to the Regional Engineer three copies 
of a plan and schedule for designing and carrying out any corrective 
measures that the licensee proposes.
    (2) The plan and schedule may include any proposal, including taking 
no action, that the licensee considers a preferable alternative to any 
corrective measure recommended in the report of the independent 
consultant. Any proposed alternative must be accompanied by the 
licensee's complete justification and detailed analysis and evaluation 
in support of that alternative.
    (b) Carrying out the plan. The licensee must complete all corrective 
measures in accordance with the plan and schedule submitted to, and 
approved or modified by, the Regional Engineer.
    (c) Extension of time. For good cause shown, the Regional Engineer 
may extend the time for filing the plan and schedule required by this 
section.



        Subpart E_Other Responsibilities of Applicant or Licensee



Sec. 12.40  Quality control programs.

    (a) General rule. During any construction, repair, or modification 
of project works, including any corrective measures taken pursuant to 
Sec. 12.39 of this part, the applicant or licensee must maintain any 
quality control program that may be required by the Regional Engineer, 
commensurate with the scope of the work and meeting any requirements or 
standards set by the Regional Engineer. If a quality control program is 
required, the construction, repair, or modification may not begin until 
the Regional Engineer has approved the program.
    (b) If the construction, repair, or modification work is performed 
by a construction contractor, quality control inspection must be 
performed by the licensee, the design engineer, or an independent firm, 
other than the construction contractor, directly accountable to the 
licensee. This paragraph is not intended to prohibit additional quality 
control inspections by the construction contractor, or a firm 
accountable to the construction contractor, for the construction 
contractor's purposes.
    (c) If the construction, repair, or modification of project works is 
performed by the applicant's or licensee's own personnel, the applicant 
or licensee must provide for separation of authority within its 
organization to make certain that the personnel responsible for quality 
control inspection are, to the satisfaction of the Regional Engineer or 
other authorized Commission representative, independent from the 
personnel who are responsible for the construction, repair or 
modification.



Sec. 12.41  Monitoring instruments.

    (a) In designing a project, a licensee must make adequate provision 
for installing and maintaining appropriate monitoring instrumentation 
whenever any physical condition that might affect the stability of a 
project structure has been discovered or is anticipated. The 
instrumentation must be satisfactory to the Regional Engineer and may 
include, for example, instruments to monitor movement of joints, 
foundation or embankment deformation, seismic effects, hydrostatic pore 
pressures, structural cracking, or internal stresses on the structure.
    (b) If an applicant or licensee discovers any condition affecting 
the safety of the project or project works during the course of 
construction or operation, the applicant or licensee must

[[Page 204]]

install and maintain any monitoring devices and instruments that may be 
required by the Regional Engineer or other authorized Commission 
representative to monitor that condition.



Sec. 12.42  Warning and safety devices.

    To the satisfaction of, and within a time specified by, the Regional 
Engineer, an applicant or licensee must install, operate, and maintain 
any signs, lights, sirens, barriers, or other safety devices that may 
reasonably be necessary or desirable to warn the public of fluctuations 
in flow from the project or otherwise to protect the public in the use 
of project lands and waters.



Sec. 12.43  Power and communication lines and gas pipelines.

    (a) A licensee must take all reasonable precautions, and comply with 
all reasonable specifications that may be provided by the Regional 
Engineer, to ensure that any power or communication line or gas pipeline 
that is located over, under, or in project waters does not obstruct 
navigation for recreational or commercial purposes or otherwise endanger 
public safety.
    (b) Clearances between any power or communication line constructed 
after March 1, 1981 and any vessels using project waters must be at 
least sufficient to conform to any applicable requirements of the 
National Electrical Safety Code in effect at the time the power or 
communication line is constructed.
    (c) The Regional Engineer may require a licensee or applicant to 
provide signs at or near power or communication lines to advise the 
public of the clearances for any power or communication lines located 
over, under, or in project waters.



Sec. 12.44  Testing spillway gates.

    (a) General requirement. An applicant or licensee must make adequate 
provision, to the satisfaction of the Regional Engineer or other 
authorized Commission representative, to ensure that all spillway gates 
are operable at all times, particularly during adverse weather 
conditions.
    (b) Annual test. (1) At least once each year, each spillway gate at 
a project must be operated to spill water, either during regular project 
operation or on a test basis.
    (2) If an applicant or licensee does not operate each spillway gate 
on a test basis during the periodic inspection by the Commission staff, 
the applicant or licensee must submit to the Regional Engineer at least 
once each year a written statement, verified in accordance with Sec. 
12.13, that each spillway has been operated at least once during the 
twelve months preceding the inspection.
    (c) Load-test of standby power. (1) An applicant or licensee must 
load-test the standby emergency power for spillway gate operation at 
regular intervals, but not less than once during each year, and submit 
to the Regional Engineer, at least once each year, a written statement, 
verified in accordance with Sec. 12.13, describing the intervals at 
which the standby emergency power was load-tested during the year 
preceding the inspection.
    (2) The Commission staff may direct that a spillway gate be operated 
using standby emergency power during the periodic inspection.



PART 16_PROCEDURES RELATING TO TAKEOVER AND RELICENSING OF LICENSED 
PROJECTS--Table of Contents

                      Subpart A_General Provisions

Sec.
16.1 Applicability.
16.2 Definitions.
16.3 Public notice of projects under expiring licenses.
16.4 Acceleration of a license expiration date.
16.5 Site access for a competing applicant.

Subpart B_Applications for Projects Subject to Sections 14 and 15 of the 
                            Federal Power Act

16.6 Notification procedures under section 15 of the Federal Power Act.
16.7 Information to be made available to the public at the time of 
          notification of intent under section 15(b) of the Federal 
          Power Act.
16.8 Consultation requirements.
16.9 Applications for new licenses and nonpower licenses for projects 
          subject to sections 14 and 15 of the Federal Power Act.

[[Page 205]]

16.10 Information to be provided by an applicant for new license: Filing 
          requirements.
16.11 Nonpower licenses.
16.12 Application for exemption from licensing by a licensee whose 
          license is subject to sections 14 and 15 of the Federal Power 
          Act.
16.13 Standards and factors for issuing a new license.

Subpart C_Takeover Provisions for Projects Subject to Sections 14 and 15 
                        of the Federal Power Act

16.14 Departmental recommendation for takeover.
16.15 Commission recommendation to Congress.
16.16 Motion for stay by Federal department or agency.
16.17 Procedures upon Congressional authorization of takeover.

Subpart D_Annual Licenses for Projects Subject to Sections 14 and 15 of 
                          the Federal Power Act

16.18 Annual licenses for projects subject to sections 14 and 15 of the 
          Federal Power Act.

  Subpart E_Projects With Minor and Minor Part Licenses Not Subject to 
               Sections 14 and 15 of the Federal Power Act

16.19 Procedures for an existing licensee of a minor hydroelectric power 
          project or of a minor part of a hydroelectric power project 
          with a license not subject to sections 14 and 15 of the 
          Federal Power Act.
16.20 Applications for subsequent license for a project with an expiring 
          license not subject to sections 14 and 15 of the Federal Power 
          Act.
16.21 Operation of projects with a minor or minor part license not 
          subject to sections 14 and 15 of the Federal Power Act after 
          expiration of a license.
16.22 Application for an exemption by a licensee with a minor or minor 
          part license for a project not subject to sections 14 and 15 
          of the Federal Power Act.

                      Subpart F_Procedural Matters

16.23 Failure to file timely notices of intent.
16.24 Prohibitions against filing applications for new license, nonpower 
          license, exemption, or subsequent license.
16.25 Disposition of a project for which no timely application is filed 
          following a notice of intent to file.
16.26 Disposition of a project for which no timely application is filed 
          following a notice of intent not to file.

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

    Source: Order 513, 54 FR 23806, June 2, 1989, unless otherwise 
noted.



                      Subpart A_General Provisions



Sec. 16.1  Applicability.

    This part applies to the filing and processing of an application 
for:
    (a) A new license, a nonpower license, or an exemption from 
licensing for a hydroelectric project with an existing license subject 
to the provisions of sections 14 and 15 of the Federal Power Act.
    (b) A subsequent license or an exemption from licensing for a 
hydroelectric project with an existing minor license or minor part 
license not subject to the provisions of sections 14 and 15 of the 
Federal Power Act because those sections were waived pursuant to section 
10(i) of the Federal Power Act.
    (c) Any potential applicant for a new or subsequent license for 
which the deadline for the notice of intent required by Sec. 16.6 falls 
on or after July 23, 2005 and which wishes to develop and file its 
application pursuant to this part, must seek Commission authorization to 
do so pursuant to the provisions of part 5 of this chapter.

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 2002, 68 FR 
51139, Aug. 25, 2003]



Sec. 16.2  Definitions.

    For purposes of this part:
    (a) New license means a license, except an annual license, for a 
water power project that is issued under section 15(a) of the Federal 
Power Act after an original license expires.
    (b) New license application filing deadline, as provided in section 
15(c)(1) of the Federal Power Act, is the date 24 months before the 
expiration of an existing license.
    (c) Nonpower license means a license for a nonpower project issued 
under section 15(b) of the Federal Power Act.
    (d) Subsequent license means a license for a water power project 
issued under Part I of the Federal Power Act after a minor or minor part 
license that is not

[[Page 206]]

subject to sections 14 and 15 of the Federal Power Act expires.

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 513-A, 55 FR 
15, Jan. 2, 1990; Order 533, 56 FR 23154, May 20, 1991]



Sec. 16.3  Public notice of projects under expiring licenses.

    In addition to the notice of a licensee's intent to file or not to 
file an application for a new license provided in Sec. 16.6(d), the 
Commission will publish, in its annual report and annually in the 
Federal Register, a table showing the projects whose licenses will 
expire during the succeeding six years. The table will:
    (a) List the licenses according to their expiration dates; and
    (b) Contain the following information: license expiration date; 
licensee's name; project number; type of principal project works 
licensed, e.g., dam and reservoir, powerhouse, transmission lines; 
location by state, county, and stream; location by city or nearby city 
when appropriate; whether the existing license is subject to sections 14 
and 15 of the Federal Power Act; and plant installed capacity.



Sec. 16.4  Acceleration of a license expiration date.

    (a) Request for acceleration. (1) A licensee may file with the 
Commission, in accordance with the formal filing requirements in subpart 
T of part 385 of this chapter, a written request for acceleration of the 
expiration date of its existing license, containing the statements and 
information specified in Sec. 16.6(b) and a detailed explanation of the 
basis for the acceleration request.
    (2) If the Commission grants the request for acceleration pursuant 
to paragraph (c), the Commission will deem the request for acceleration 
to be a notice of intent under Sec. 16.6 and, unless the Commission 
directs otherwise, the licensee shall make available the information 
specified in Sec. 16.7 no later than 90 days from the date that the 
Commission grants the request for acceleration.
    (b) Notice of request for acceleration. (1) Upon receipt of a 
request for acceleration, the Commission will give notice of the 
licensee's request and provide a 45-day period for comments by 
interested persons by:
    (i) Publishing notice in the Federal Register;
    (ii) Publishing notice once in a daily or weekly newspaper published 
in the county or counties in which the project or any part thereof or 
the lands affected thereby are situated; and
    (iii) Notifying appropriate Federal, state, and interstate resource 
agencies and Indian tribes by mail.
    (2) The notice issued pursuant to paragraphs (1) (i) and (ii) and 
the written notice given pursuant to paragraph (1)(iii) will be 
considered as fulfilling the notice provisions of Sec. 16.6(d) should 
the Commission grant the acceleration request and will include an 
explanation of the basis for the licensee's acceleration request.
    (c) Commission order. If the Commission determines it is in the 
public interest, the Commission will issue an order accelerating the 
expiration date of the license to not less than five years and 90 days 
from the date of the Commission order.



Sec. 16.5  Site access for a competing applicant.

    (a) Access. If a potential applicant for a new license, subsequent 
license, or nonpower license for a project has complied with the first 
stage consultation provisions of Sec. 16.8(b)(1) and has notified the 
existing licensee in writing of the need for and extent of the access 
required, the existing licensee must allow the potential applicant to 
enter upon or into designated land, buildings, or other property in the 
project area at a reasonable time and under reasonable conditions, 
including, but not limited to, reasonable liability conditions, 
conditions for compensation to the existing licensee for all reasonable 
costs incurred in providing access, including energy generation lost as 
a result of modification of project operations that may be necessary to 
provide access, and in a manner that will not adversely affect the 
environment, for the purposes of:
    (1) Conducting a study or gathering information required by a 
resource agency under Sec. 16.8 or by the Commission pursuant to Sec. 
4.32 of this chapter;

[[Page 207]]

    (2) Conducting a study or gathering information not covered by 
paragraph (a)(1) but necessary to prepare an application for new 
license, subsequent license, or nonpower license; or
    (3) Holding a site visit for a resource agency under Sec. 16.8.
    (b)(1) Disputes. Except as specified by paragraph (b)(2), disputes 
regarding the timing and conditions of access for the purposes specified 
in paragraphs (a) (1), (2), or (3) of this section and the need for the 
studies or information specified in paragraph (a)(2) may be referred to 
the Director of the Office of Energy Projects for resolution in the 
manner specified in Sec. 16.8(b)(5) prior to the providing of access.
    (2) Disputes regarding the amount of compensation to be paid the 
existing licensee for access may be referred to the Director of the 
Office of Energy Projects for resolution in the manner specified in 
Sec. 16.8(b)(5) after the access has been provided.



Subpart B_Applications for Projects Subject to Sections 14 and 15 of the 
                            Federal Power Act



Sec. 16.6  Notification procedures under section 15 of the Federal Power 
Act.

    (a) Applicability. This section applies to a licensee of an existing 
project subject to sections 14 and 15 of the Federal Power Act.
    (b) Requirement to notify. In order to notify the Commission under 
section 15 of the Federal Power Act whether a licensee intends to file 
or not to file an application for new license, the licensee must file 
with the Commission an original and fourteen copies of a letter, that 
contains the following information:
    (1) The licensee's name and address.
    (2) The project number.
    (3) The license expiration date.
    (4) An unequivocal statement of the licensee's intention to file or 
not to file an application for a new license.
    (5) The type of principal project works licensed, such as dam and 
reservoir, powerhouse, or transmission lines.
    (6) Whether the application is for a power or nonpower license.
    (7) The location of the project by state, county and stream, and, 
when appropriate, by city or nearby city.
    (8) The installed plant capacity.
    (9) The location or locations of all the sites where the information 
required under Sec. 16.7 is available to the public.
    (10) The names and mailing addresses of:
    (i) Every county in which any part of the project is located, and in 
which any Federal facility that is used by the project is located;
    (ii) Every city, town, or similar local political subdivision:
    (A) In which any part of the project is located and any Federal 
facility that is used by the project is located, or
    (B) That has a population of 5,000 or more people and is located 
within 15 miles of the project dam,
    (iii) Every irrigation district, drainage district, or similar 
special purpose political subdivision:
    (A) In which any part of the project is located and any Federal 
facility that is used by the project is located, or
    (B) That owns, operates, maintains, or uses any project facility or 
any Federal facility that is used by the project;
    (iv) Every other political subdivision in the general area of the 
project that there is reason to believe would be likely to be interested 
in, or affected by, the notification;
    (v) Affected Indian tribes.
    (c) When to notify. (1) Except as provided in paragraph (c)(2) of 
this section, if a license expires on or after October 17, 1992, the 
licensee must notify the Commission as required in paragraph (b) of this 
section at least five years, but no more than five and one-half years, 
before the existing license expires.
    (2) The requirement in paragraph (c)(1) of this section does not 
apply if a licensee filed notice more than five and one-half years 
before its existing license expired and before the effective date of 
this rule.
    (d) Commission notice. Upon receipt of the notification required 
under paragraph (c) of this Section, the Commission will provide notice 
of the licensee's intent to file or not to file an application for a new 
license by:

[[Page 208]]

    (1) If the notification is filed prior to July 23, 2005;
    (i) Publishing notice in the Federal Register;
    (ii) Publishing notice once in a daily or weekly newspaper published 
in the county or counties in which the project or any part thereof or 
the lands affected thereby are situated; and
    (iii) Notifying the appropriate Federal and state resource agencies, 
state water quality and coastal zone management consistency certifying 
agencies, and Indian tribes, by electronic means if practical, otherwise 
by mail.
    (2) If the notification is filed on or after July 23, 2005, pursuant 
to the provisions of Sec. 5.8 of this chapter.

[Order 496, 53 FR 15810, May 4, 1988. Redesignated and amended by Order 
513, 54 FR 23807, June 2, 1989; Order 2002, 68 FR 51139, Aug. 25, 2003; 
Order 653, 70 FR 8724, Feb. 23, 2005]



Sec. 16.7  Information to be made available to the public at the time of 
notification of intent under section 15(b) of the Federal Power Act.

    (a) Applicability. This section applies to a licensee of an existing 
project subject to sections 14 and 15 of the Federal Power Act.
    (b) Requirement to make information available. A licensee must make 
the information specified in paragraph (d) of this section reasonably 
available to the public for inspection and reproduction, from the date 
on which the licensee notifies the Commission pursuant to Sec. 16.6(b) 
of this part until the date any relicensing proceeding for the project 
is terminated.
    (c) Requirement to supplement information. A licensee must 
supplement the information it is required to make available under the 
provisions of paragraph (d) with any additional information developed 
after the filing of a notice of intent.
    (d) Information to be made available. (1) A licensee for which the 
deadline for filing a notification of intent to seek a new or subsequent 
license is on or after July 23, 2005 must, at the time it files a 
notification of intent to seek a license pursuant to Sec. 5.5 of this 
chapter, provide a copy of the pre-application document required by 
Sec. 5.6 of this chapter to the entities specified in that paragraph.
    (2) A licensee for which the deadline for filing a notification of 
intent to seek a new or subsequent license is prior to July 23, 2005, 
and which elects to seek a license pursuant to this part must make the 
following information regarding its existing project reasonably 
available to the public as provided in paragraph (b) of this section:
    (i) The following construction and operation information:
    (A) The original license application and the order issuing the 
license and any subsequent license application and subsequent order 
issuing a license for the existing project, including
    (1) Approved Exhibit drawings, including as-built exhibits,
    (2) Any order issuing amendments or approving exhibits,
    (3) Any order issuing annual licenses for the existing project;
    (B) All data relevant to whether the project is and has been 
operated in accordance with the requirements of each license article, 
including minimum flow requirements, ramping rates, reservoir elevation 
limitations, and environmental monitoring data;
    (C) A compilation of project generation and respective outflow with 
time increments not to exceed one hour, unless use of another time 
increment can be justified, for the period beginning five years before 
the filing of a notice of intent;
    (D) Any public correspondence related to the existing project;
    (E) Any report on the total actual annual generation and annual 
operation and maintenance costs for the period beginning five years 
before the filing of a notice of intent;
    (F) Any reports on original project costs, current net investment, 
and available funds in the amortization reserve account;
    (G) A current and complete electrical single-line diagram of the 
project showing the transfer of electricity from the project to the area 
utility system or point of use; and
    (H) Any bill issued to the existing licensee for annual charges 
under Section 10(e) of the Federal Power Act.
    (ii) The following safety and structural adequacy information:

[[Page 209]]

    (A) The most recent emergency action plan for the project or a 
letter exempting the project from the emergency action plan requirement;
    (B) Any independent consultant's reports required by part 12 of this 
chapter and filed on or after January 1, 1981;
    (C) Any report on operation or maintenance problems, other than 
routine maintenance, occurring within the five years preceding the 
filing of a notice of intent or within the most recent five-year period 
for which data exists, and associated costs of such problems under the 
Commission's Uniform System of Accounts;
    (D) Any construction report for the existing project; and
    (E) Any public correspondence relating to the safety and structural 
adequacy of the existing project.
    (iii) The following fish and wildlife resources information:
    (A) Any report on the impact of the project's construction and 
operation on fish and wildlife resources;
    (B) Any existing report on any threatened or endangered species or 
critical habitat located in the project area, or affected by the 
existing project outside the project area;
    (C) Any fish and wildlife management plan related to the project 
area prepared by the existing licensee or any resource agency; and
    (D) Any public correspondence relating to the fish and wildlife 
resources within the project area.
    (iv) The following recreation and land use resources information:
    (A) Any report on past and current recreational uses of the project 
area;
    (B) Any map showing recreational facilities and areas reserved for 
future development in the project area, designated or proposed 
wilderness areas in the project area; Land and Water Conservation Fund 
lands in the project area, and designated or proposed Federal or state 
wild and scenic river corridors in the project area.
    (C) Any documentation listing the entity responsible for operating 
and maintaining any existing recreational facilities in the project 
area; and
    (D) Any public correspondence relating to recreation and land use 
resources within the project area.
    (v) The following cultural resources information:
    (A) Except as provided in paragraph (d)(2)(v)(B) of this section, a 
licensee must make available:
    (1) Any report concerning documented archeological resources 
identified in the project area;
    (2) Any report on past or present use of the project area and 
surrounding areas by Native Americans; and
    (3) Any public correspondence relating to cultural resources within 
the project area.
    (B) A licensee must delete from any information made available under 
paragraph (d)(2)(v)(A) of this section, specific site or property 
locations the disclosure of which would create a risk of harm, theft, or 
destruction of archeological or Native American cultural resources or to 
the site at which the resources are located, or would violate any 
Federal law, including the Archeological Resources Protection Act of 
1979, 16 U.S.C. 470w-3, and the National Historic Preservation Act of 
1966, 16 U.S.C. 470hh.
    (vi) The following energy conservation information under section 
10(a)(2)(C) of the Federal Power Act related to the licensee's efforts 
to conserve electricity or to encourage conservation by its customers 
including:
    (A) Any plan of the licensee;
    (B) Any public correspondence; and
    (C) Any other pertinent information relating to a conservation plan.
    (3)-(6) [Reserved]
    (7)(i) If paragraph (d) of this section requires an applicant to 
reveal Critical Energy Infrastructure Information (CEII), as defined in 
Sec. 388.113(c) of this chapter, to any person, the applicant shall 
omit the CEII from the information made available and insert the 
following in its place:
    (A) A statement that CEII is being withheld;
    (B) A brief description of the omitted information that does not 
reveal any CEII; and
    (C) This statement: ``Procedures for obtaining access to Critical 
Energy Infrastructure Information (CEII) may be found at 18 CFR 388.113. 
Requests for access to CEII should be made to the Commission's CEII 
Coordinator.''

[[Page 210]]

    (ii) The applicant, in determining whether information constitutes 
CEII, shall treat the information in a manner consistent with any 
filings that applicant has made with the Commission and shall to the 
extent practicable adhere to any previous determinations by the 
Commission or the CEII Coordinator involving the same or like 
information.
    (iii) The procedures contained in Sec. Sec. 388.112 and 388.113 of 
this chapter regarding designation of, and access to, CEII, shall apply 
in the event of a challenge to a CEII designation or a request for 
access to CEII. If it is determined that information is not CEII or that 
a requester should be granted access to CEII, the applicant will be 
directed to make the information available to the requester.
    (iv) Nothing in this section shall be construed to prohibit any 
persons from voluntarily reaching arrangements or agreements calling for 
the disclosure of CEII.
    (e) Form, place, and hours of availability, and cost of 
reproduction. (1) A licensee must make the information specified in 
paragraph (d) of this section, or the pre-application document, as 
applicable, available to the public for inspection:
    (i) At its principal place of business or at any other location or 
locations that are more accessible to the public, provided that all of 
the information is available in at least one location;
    (ii) During regular business hours; and
    (iii) In a form that is readily accessible, reviewable, and 
reproducible.
    (2) Except as provided in paragraph (d)(3) of this section, a 
licensee must make requested copies of the information specified in 
paragraph (c) of this section available either:
    (i) At its principal place of business or at any other location or 
locations that are more accessible to the public, after obtaining 
reimbursement for reasonable costs of reproduction; or
    (ii) Through the mail, after obtaining reimbursement for postage 
fees and reasonable costs of reproduction.
    (3) A licensee must make requested copies of the information 
specified in paragraph (d) of this section available to the United 
States Fish and Wildlife Service, the National Marine Fisheries Service, 
Indian tribes, and the state agency responsible for fish and wildlife 
resources without charge for the costs of reproduction or postage.
    (f) Unavailability of required information. Anyone may file a 
petition with the Commission requesting access to the information 
specified in paragraph (d) of this section if it believes that a 
licensee is not making the information reasonably available for public 
inspection or reproduction. The petition must describe in detail the 
basis for the petitioner's belief.
    (g) Public correspondence. A licensee may compile and make available 
in one file all the public correspondence required to be made available 
for inspection and reproduction by Sec. 16.7(d)(1)(iv), (d)(2)(v), 
(d)(3)(iv), (d)(4)(iv), and (d)(6)(ii).

[Order 496, 53 FR 15810, May 4, 1988. Redesignated by Order 513, 54 FR 
23807, June 2, 1989; Order 513-C, 55 FR 10768, Mar. 23, 1990; Order 
2002, 68 FR 51139, Aug. 25, 2003; Order 643, 68 FR 52095, Sept. 2, 2003]



Sec. 16.8  Consultation requirements.

    (a) Requirement to consult. (1) Before it files any application for 
a new license, a nonpower license, an exemption from licensing, or, 
pursuant to Sec. 16.25 or Sec. 16.26 of this part, a surrender of a 
project, a potential applicant must consult with the relevant Federal, 
State, and interstate resource agencies, including the National Marine 
Fisheries Service, the United States Fish and Wildlife Service, the 
National Park Service, the United States Environmental Protection 
Agency, the Federal agency administering any United States lands or 
facilities utilized or occupied by the project, the appropriate state 
fish and wildlife agencies, the appropriate State water resource 
management agencies, the certifying agency under section 401(a)(1) of 
the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. 
1341(c)(1), and any Indian tribe that may be affected by the project.
    (2) Each requirement in this section to contact or consult with 
resource agencies or Indian tribes shall require as well that the 
potential Applicant contact or consult with members of the public.

[[Page 211]]

    (3) If the potential applicant for a new or subsequent license 
commences first stages pre-filing consultation under this part on or 
after July 23, 2005, it must file a notification of intent to file a 
license application pursuant to Sec. 5.5 of this chapter and a pre-
application document pursuant to the provisions of Sec. 5.6 of this 
chapter.
    (4) The Director of the Office of Energy Projects will, upon 
request, provide a list of known appropriate Federal, state, and 
interstate resource agencies, and Indian tribes, and local, regional, or 
national non-governmental organizations likely to be interested in any 
license application proceeding.
    (5)(i) Before it files an amendment that would be considered as 
material under Sec. 4.35 of this part, to any application subject to 
this section, an applicant must consult with the resource agencies and 
Indian tribes listed in paragraph (a)(1) of this section and allow such 
agencies and tribes at least 60 days to comment on a draft of the 
proposed amendment and to submit recommendations and conditions to the 
applicant. The amendment as filed with the Commission must summarize the 
consultation with the resource agencies and Indian tribes on the 
proposed amendment and respond to any obligations, recommendations or 
conditions submitted by the agencies or Indian tribes.
    (ii) If an applicant has any doubt as to whether a particular 
amendment would be subject to the pre-filing consultation requirements 
of this section, the applicant may file a written request for 
clarification with the Director, Office of Energy Projects.
    (b) First stage of consultation. (1) A potential Applicant for a new 
or subsequent license must, at the time it files its notification of 
intent to seek a license pursuant to Sec. 5.5 of this chapter, provide 
a copy of the pre-application document required by Sec. 5.6 of this 
chapter to the entities specified in Sec. 5.6(a) of this chapter.
    (2) A potential applicant for a nonpower license or exemption or a 
potential applicant which elects to use the licensing procedures of 
Parts 4 or 16 of this chapter prior to July 23, 2005, must promptly 
contact each of the appropriate resource agencies, Indian tribes, and 
members of the public listed in paragraph (a)(1) of this section, and 
the Commission with the following information:
    (i) Detailed maps showing existing project boundaries, if any, 
proper land descriptions of the entire project area by township, range, 
and section, as well as by state, county, river, river mile, and closest 
town, and also showing the specific location of all existing and 
proposed project facilities, including roads, transmission lines, and 
any other appurtenant facilities;
    (ii) A general engineering design of the existing project and any 
proposed changes, with a description of any existing or proposed 
diversion of a stream through a canal or penstock;
    (iii) A summary of the existing operational mode of the project and 
any proposed changes;
    (iv) Identification of the environment affected or to be affected, 
the significant resources present and the applicant's existing and 
proposed environmental protection, mitigation, and enhancement plans, to 
the extent known at that time;
    (v) Streamflow and water regime information, including drainage 
area, natural flow periodicity, monthly flow rates and durations, mean 
flow figures illustrating the mean daily streamflow curve for each month 
of the year at the point of diversion or impoundment, with location of 
the stream gauging station, the method used to generate the streamflow 
data provided, and copies of all records used to derive the flow data 
used in the applicant's engineering calculations;
    (vi) Detailed descriptions of any proposed studies and the proposed 
methodologies to be employed; and
    (vii) Any statement required by Sec. 4.301(a) of this chapter.
    (3)(i) A potential applicant for an exemption, a new or subsequent 
license for which the deadline for filing a notification of intent to 
seek a license is prior to July 23, 2005 and which elects to commence 
pre-filing consultation under this part, or a new or subsequent license 
for which the deadline for filing a notification of intent to seek a 
license is on or after July 23, 2005 and which receives Commission 
approval to

[[Page 212]]

use the license application procedures of this part must:
    (A) Hold a joint meeting, including an opportunity for a site visit, 
with all pertinent agencies, Indian tribes and members of the public to 
review the information and to discuss the data and studies to be 
provided by the potential applicant as part of the consultation process; 
and
    (B) Consult with the resource agencies, Indian tribes and members of 
the public on the scheduling of the joint meeting; and provide each 
resource agency, Indian tribe, member of the public, and the Commission 
with written notice of the time and place of the joint meeting and a 
written agenda of the issues to be discussed at the meeting at least 15 
days in advance.
    (ii) The joint meeting must be held no earlier than 30 days, and no 
later than 60 days from, as applicable:
    (A) The date of the potential applicant's letter transmitting the 
information required by paragraph (b)(2) of this section, in the case of 
a potential exemption applicant or a potential license applicant that 
commences pre-filing consultation under this part prior to July 23, 
2005; or
    (B) The date of the Commission's approval of the potential license 
applicant's request to use the license application procedures of this 
part pursuant to the provisions of part 5, in the case of a potential 
license applicant for which the deadline for filing a notification of 
intent to seek a license is on or after July 23, 2005.
    (4) Members of the public are invited to attend the joint meeting 
held pursuant to paragraph (b)(3) of this section. Members of the public 
attending the meeting are entitled to participate fully in the meeting 
and to express their views regarding resource issues that should be 
addressed in any application for a new license that may be filed by the 
potential applicant. Attendance of the public at any site visit held 
pursuant to paragraph (b)(3) of this section shall be at the discretion 
of the potential applicant. The potential applicant must make either 
audio recordings or written transcripts of the joint meeting, and must 
upon request promptly provide copies of these recordings or transcripts 
to the Commission and any resource agency and Indian tribe.
    (5) Unless otherwise extended by the Director of Office of Energy 
Projects pursuant to paragraph (b)(6) of this section, not later than 60 
days after the joint meeting held under paragraph (b)(3) of this section 
each interested resource agency, and Indian tribe, and member of the 
public must provide a potential applicant with written comments:
    (i) Identifying its determination of necessary studies to be 
performed or information to be provided by the potential applicant;
    (ii) Identifying the basis for its determination;
    (iii) Discussing its understanding of the resource issues and its 
goals objectives for these resources;
    (iv) Explaining why each study methodology recommended by it is more 
appropriate than any other available methodology alternatives, including 
those identified by the potential applicant pursuant to paragraph 
(b)(2)(vi) of this section;
    (v) Documenting that the use of each study methodology recommended 
by it is a generally accepted practice; and
    (vi) Explaining how the studies and information requested will be 
useful to the agency, Indian tribe, or member of the public in 
furthering its resource goals and objectives.
    (6)(i) If a potential applicant and a resource agency, Indian tribe, 
or member of the public disagree as to any matter arising during the 
first stage of consultation or as to the need to conduct a study or 
gather information referenced in paragraph (c)(2) of this section, the 
potential applicant or resource agency, or Indian tribe, or member of 
the public may refer the dispute in writing to the Director of the 
Office of Energy Projects (Director) for resolution.
    (ii) The entity referring the dispute must serve a copy of its 
written request for resolution on the disagreeing party at the time the 
request is submitted to the Director. The disagreeing party may submit 
to the Director a written response to the referral within 15 days of the 
referral's submittal to the Director.

[[Page 213]]

    (iii) Written referrals to the Director and written responses 
thereto pursuant to paragraphs (b)(6)(i) or (b)(6)(ii) of this section 
must be filed with the Secretary of the Commission in accordance with 
the Commission's Rules of Practice and Procedure, and must indicate that 
they are for the attention of the Director of the Office of Energy 
Projects pursuant to Sec. 16.8(b)(6).
    (iv) The Director will resolve disputes by an order directing the 
potential applicant to gather such information or conduct such study or 
studies as, in the Director's view, is reasonable and necessary.
    (v) If a resource agency, Indian tribe, or member of the public 
fails to refer a dispute regarding a request for a potential applicant 
to obtain information or conduct studies (other than a dispute regarding 
the information specified in paragraph (b)(1) or (b)(2) of this section, 
as applicable), the Commission will not entertain the dispute following 
the filing of the license application.
    (vi) If a potential applicant fails to obtain information or conduct 
a study as required by the Director pursuant to paragraph (b)(6)(iv) of 
this section, its application will be considered deficient.
    (7) Unless otherwise extended by the Director pursuant to paragraph 
(b)(6) of this section, the first stage of consultation ends when all 
participating agencies, Indian tribes, and members of the public provide 
the written comments required under paragraph (b)(5) of this section or 
60 days after the joint meeting held under paragraph (b)(3) of this 
section, whichever occurs first.
    (c) Second stage of consultation. (1) Unless determined otherwise by 
the Director of the Office of Energy Projects pursuant to paragraph 
(b)(6) of this section, a potential applicant must complete all 
reasonable and necessary studies and obtain all reasonable and necessary 
information requested by resource agencies and Indian tribes under 
paragraph (b):
    (i) Prior to filing the application, if the results:
    (A) Would influence the financial (e.g., instream flow study) or 
technical feasibility of the project (e.g., study of potential mass soil 
movement); or
    (B) Are needed to determine the design or location of project 
features, reasonable alternatives to the project, the impact of the 
project on important natural or cultural resources (e.g., resource 
surveys), suitable mitigation or enhancement measures, or to minimize 
impact on significant resources (e.g., wild and scenic river, anadromous 
fish, endangered species, caribou migration routes);
    (ii) After filing the application but before license issuance, if 
the applicant complied with the provisions of paragraph (b)(1) or (b)(2) 
of this section, as applicable, no later than four years prior to the 
expiration date of the existing license and the results:
    (A) Would be those described in paragraphs (c)(1)(i) (A) or (B) of 
this section; and
    (B) Would take longer to conduct and evaluate than the time between 
the conclusion of the first stage of consultation and the new license 
application filing deadline.
    (iii) After a new license is issued, if the studies can be conducted 
or the information obtained only after construction or operation of 
proposed facilities, would determine the success of protection, 
mitigation, or enhancement measures (e.g., post-construction monitoring 
studies), or would be used to refine project operation or modify project 
facilities.
    (2) If, after the end of the first stage of consultation as defined 
in paragraph (b)(7) of this section, a resource agency, Indian tribe, or 
member of the public requests that the potential applicant conduct a 
study or gather information not previously identified and specifies the 
basis for its request, under paragraphs (b)(5)(i)-(vi) of this section, 
the potential applicant will promptly initiate the study or gather the 
information, unless the Director of the Office of Energy Projects 
determines under paragraph (b)(5) of this section either that the study 
or information is unreasonable or unnecessary or that use of the 
methodology requested by a resource agency or Indian tribe for 
conducting the study is not a generally accepted practice.
    (3) (i) The results of studies and information gathering referenced 
in paragraphs (c)(1)(ii) and (c)(2) of this

[[Page 214]]

section will be treated as additional information; and
    (ii) Filing and acceptance of an application will not be delayed and 
an application will not be considered deficient or patently deficient 
pursuant to Sec. 4.32 (e)(1) or (e)(2) of this chapter merely because 
the study or information gathering is not complete before the 
application is filed.
    (4) A potential applicant must provide each resource agency and 
Indian tribe with:
    (i) A copy of its draft application that:
    (A) Indicates the type of application the potential applicant 
expects to file with the Commission; and
    (B) Responds to any comments and recommendations made by any 
resource agency or Indian tribe either during the first stage of 
consultation or under paragraph (c)(2) of this section;
    (ii) The results of all studies and information gathering either 
requested by that resource agency or Indian tribe in the first stage of 
consultation (or under paragraph (c)(2) of this section if available) or 
which pertains to resources of interest to that resource agency or 
Indian tribe and which were identified by the potential applicant 
pursuant to paragraph (b)(2)(vi) of this section, including a discussion 
of the results and any proposed protection, mitigation, or enhancement 
measure; and
    (iii) A written request for review and comment.
    (5) A resource agency or Indian tribe will have 90 days from the 
date of the potential applicant's letter transmitting the paragraph 
(c)(4) of this section information to it to provide written comments on 
the information submitted by a potential applicant under paragraph 
(c)(4) of this section.
    (6) If the written comments provided under paragraph (c)(5) of this 
section indicate that a resource agency or Indian tribe has a 
substantive disagreement with a potential applicant's conclusions 
regarding resource impacts or its proposed protection, mitigation, or 
enhancement measures, the potential applicant will:
    (i) Hold at least one joint meeting with the disagreeing resource 
agency or Indian tribe and other agencies with similar or related areas 
of interest, expertise, or responsibility not later than 60 days from 
the date of the disagreeing agency's or Indian tribe's written comments 
to discuss and to attempt to reach agreement on its plan for 
environmental protection, mitigation, or enhancement measures; and
    (ii) Consult with the disagreeing agency or Indian tribe and other 
agencies with similar or related areas of interest, expertise, or 
responsibility on the scheduling of the joint meeting and provide the 
disagreeing resource agency or Indian tribe, other agencies with similar 
or related areas of interest, expertise, or responsibility, and the 
Commission with written notice of the time and place of each meeting and 
a written agenda of the issues to be discussed at the meeting at least 
15 days in advance.
    (7) The potential applicant and any disagreeing resource agency or 
Indian tribe may conclude a joint meeting with a document embodying any 
agreement among them regarding environmental protection, mitigation, or 
enhancement measures and any issues that are unresolved.
    (8) The potential applicant must describe all disagreements with a 
resource agency or Indian tribe on technical or environmental 
protection, mitigation, or enhancement measures in its application, 
including an explanation of the basis for the applicant's disagreement 
with the resource agency or Indian tribe, and must include in its 
application any document developed pursuant to paragraph (c)(7) of this 
section.
    (9) A potential applicant may file an application with the 
Commission if:
    (i) It has complied with paragraph (c)(4) of this section and no 
resource agency or Indian tribe has responded with substantive 
disagreements by the deadline specified in paragraph (c)(5) of this 
section; or
    (ii) It has complied with paragraph (c)(6) of this section if any 
resource agency or Indian tribe has responded with substantive 
disagreements.
    (10) The second stage of consultation ends:
    (i) Ninety days after the submittal of information pursuant to 
paragraph

[[Page 215]]

(c)(4) of this section in cases where no resource agency or Indian tribe 
has responded with substantive disagreements; or
    (ii) At the conclusion of the last joint meeting held pursuant to 
paragraph (c)(6) of this section in cases where a resource agency or 
Indian tribe has responded with substantive disagreements.
    (d) Third stage of consultation. (1) The third stage of consultation 
is initiated by the filing of an application for a new license, nonpower 
license, exemption from licensing, or surrender of license, accompanied 
by a transmittal letter certifying that at the same time copies of the 
application are being distributed to the resource agencies, Indian 
tribes, and other government offices specified in paragraph (d)(2) of 
this section and Sec. 16.10(f) of this part, if applicable.
    (2) As soon as an applicant files such application documents with 
the Commission, or promptly after receipt in the case of documents 
described in paragraph (d)(2)(iii) of this section, as the Commission 
may direct, the applicant must serve on every resource agency and Indian 
tribe consulted, on other government offices, and, in the case of 
applications for surrender or nonpower license, any state, municipal, 
interstate, or Federal agency which is authorized to assume regulatory 
supervision over the land, waterways, and facilities covered by the 
application for surrender or nonpower license, copies of:
    (i) Its application for a new license, a nonpower license, an 
exemption from licensing, or a surrender of the project;
    (ii) Any deficiency correction, revision, supplement, response to 
additional information request, or amendment to the application; and
    (iii) Any written correspondence from the Commission requesting the 
correction of deficiencies or the submittal of additional information.
    (e) Resource agency or Indian tribe waiver of compliance with 
consultation requirement. (1) If a resource agency or Indian tribe 
waives in writing compliance with any requirement of this section, a 
potential applicant does not have to comply with that requirement as to 
that agency or Indian tribe.
    (2) If a resource agency or Indian tribe fails to timely comply with 
a provision regarding a requirement of this section, a potential 
applicant may proceed to the next sequential requirement of this section 
without waiting for the resource agency or Indian tribe to comply.
    (3) The failure of a resource agency or Indian tribe to timely 
comply with a provision regarding a requirement of this section does not 
preclude its participation in subsequent stages of the consultation 
process.
    (4) Following July 23, 2003 a potential license applicant engaged in 
pre-filing consultation under this part may during first stage 
consultation request to incorporate into pre-filing consultation any 
element of the integrated license application process provided for in 
part 5 of this chapter. Any such request must be accompanied by a:
    (i) Specific description of how the element of the part 5 license 
application would fit into the pre-filing consultation process under 
this part; and
    (ii) Demonstration that the potential license applicant has made 
every reasonable effort to contact all resource agencies, Indian tribes, 
non-governmental organizations, and others affected by the potential 
applicant's proposal, and that a consensus exists in favor of 
incorporating the specific element of the part 5 process into the pre-
filing consultation under this part.
    (f) Application requirements documenting consultation and any 
disagreements with resource agencies or Indian tribes. An applicant must 
show in Exhibit E of its application that it has met the requirements of 
paragraphs (b) through (d) of this section, and Sec. 16.8(i), and must 
include:
    (1) Any resource agency's or Indian tribe's letters containing 
comments, recommendations, and proposed terms and conditions;
    (2) Any letters from the public containing comments and 
recommendations;
    (3) Notice of any remaining disagreement with a resource agency or 
Indian tribe on:
    (i) The need for a study or the manner in which a study should be 
conducted and the applicant's reasons for disagreement, and

[[Page 216]]

    (ii) Information on any environmental protection, mitigation, or 
enhancement measure, including the basis for the applicant's 
disagreement with the resource agency or Indian tribe.
    (4) Evidence of any waivers under paragraph (e) of this section;
    (5) Evidence of all attempts to consult with a resource agency or 
Indian tribe, copies of related documents showing the attempts, and 
documents showing the conclusion of the second stage of consultation;
    (6) An explanation of how and why the project would, would not, or 
should not, comply with any relevant comprehensive plan as defined in 
Sec. 2.19 of this chapter and a description of any relevant resource 
agency or Indian tribe determination regarding the consistency of the 
project with any such comprehensive plan;
    (7) A description of how the applicant's proposal addresses the 
significant resource issues raised by members of the public during the 
joint meeting held pursuant to paragraph (b)(2) of this section.
    (g) Requests for privileged treatment of pre-filing submission. If a 
potential applicant requests privileged treatment of any information 
submitted to the Commission during pre-filing consultation (except for 
the information specified in paragraph (b)(1) of this section), the 
Commission will treat the request in accordance with the provisions in 
Sec. 388.112 of this chapter until the date the application is filed 
with the Commission.
    (h) Other meetings. Prior to holding a meeting with a resource 
agency or Indian tribe, other than a joint meeting pursuant to paragraph 
(b)(3)(i) or (c)(6)(i) of this section, a potential applicant must 
provide the Commission and each resource agency or Indian tribe (with an 
area of interest, expertise, or responsibility similar or related to 
that of the resource agency or Indian tribe with which the potential 
applicant is to meet) with written notice of the time and place of each 
meeting and a written agenda of the issues to be discussed at the 
meeting at least 15 days in advance.
    (i) Public participation. (1) At least 14 days in advance of the 
joint meeting held pursuant to paragraph (b)(3), the potential applicant 
must publish notice, at least once, of the purpose, location, and timing 
of the joint meeting, in a daily or weekly newspaper published in the 
county or counties in which the existing project or any part thereof or 
the lands affected thereby are situated. The notice shall include a copy 
of the written agenda of the issues to be discussed at the joint meeting 
prepared pursuant to paragraph (b)(3)(ii) of this section.
    (2)(i) A potential applicant must make available to the public for 
inspection and reproduction the information specified in paragraph 
(b)(1) of this section from the date on which the notice required by 
paragraph (i)(1) of this section is first published until a final order 
is issued on the license application.
    (ii) The provisions of Sec. 16.7(e) shall govern the form and 
manner in which the information is to be made available for public 
inspection and reproduction.
    (iii) A potential applicant must make available to the public for 
inspection at the joint meeting required by paragraph (b)(3) of this 
section the information specified in paragraph (b)(2) of this section.
    (j) Critical Energy Infrastructure Information. If this section 
requires an applicant to reveal Critical Energy Infrastructure 
Information (CEII), as defined by Sec. 388.113(c) of this chapter, to 
any person, the applicant shall follow the procedures set out in Sec. 
16.7(d)(7).

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 513-A, 55 FR 
16, Jan. 2, 1990; Order 533, 56 FR 23154, May 20, 1991; 56 FR 61156, 
Dec. 2, 1991; Order 2002, 68 FR 51140, Aug. 25, 2003; Order 643, 68 FR 
52095, Sept. 2, 2003; 68 FR 61743, Oct. 30, 2003]



Sec. 16.9  Applications for new licenses and nonpower licenses for 
projects subject to sections 14 and 15 of the Federal Power Act.

    (a) Applicability. This section applies to an applicant for a new 
license or nonpower license for a project subject to sections 14 and 15 
of the Federal Power Act.
    (b) Filing requirement. (1) An applicant for a license under this 
section must file its application at least 24 months before the existing 
license expires.

[[Page 217]]

    (2) An application for a license under this section must meet the 
requirements of Sec. 4.32 (except that the Director of the Office of 
Energy Projects may provide more than 90 days in which to correct 
deficiencies in applications) and, as appropriate, Sec. Sec. 4.41, 
4.51, or 4.61 of this chapter.
    (3) The requirements of Sec. 4.35 of this chapter do not apply to 
an application under this section, except that the Commission will 
reissue a public notice of the application in accordance with the 
provisions of Sec. 16.9(d)(1) if an amendment described in Sec. 
4.35(f) of this chapter is filed.
    (4) If the Commission rejects or dismisses an application pursuant 
to the provisions of Sec. 4.32 of this chapter, the application may not 
be refiled after the new license application filing deadline specified 
in Sec. 16.9(b)(1).
    (c) Final amendments. All amendments to an application, including 
the final amendment, must be filed with the Commission and served on all 
competing applicants no later than the date specified in the notice 
issued under paragraph (d)(2).
    (d) Commission notice. (1) Upon acceptance of an application for a 
new license or a nonpower license, the Commission will give notice of 
the application and of the dates for comment, intervention, and protests 
by:
    (i) Publishing notice in the Federal Register;
    (ii) Publishing notice once every week for four weeks in a daily or 
weekly newspaper published in the county or counties in which the 
project or any part thereof or the lands affected thereby are situated; 
and
    (iii) Notifying appropriate Federal, state, and interstate resource 
agencies, Indian tribes, and non-governmental organizations, by 
electronic means if practical, otherwise by mail.
    (2) Within 60 days after the new license application filing 
deadline, the Commission will issue a notice on the processing deadlines 
established under Sec. 4.32 of this chapter, estimated dates for 
further processing deadlines under Sec. 4.32 of this chapter, deadlines 
for complying with the provisions of Sec. 4.36(d)(2) (ii) and (iii) of 
this chapter in cases where competing applications are filed, and the 
date for final amendments and will:
    (i) Publish the notice in the Federal Register;
    (ii) Provide the notice to appropriate Federal, state, and 
interstate resource agencies and Indian tribes, by electronic means if 
practical, otherwise by mail; and
    (iii) Serve the notice on all parties to the proceedings pursuant to 
Sec. 385.2010 of this chapter.
    (3) Where two or more mutually exclusive competing applications have 
been filed for the same project, the final amendment date and deadlines 
for complying with the provisions of Sec. 4.36(d)(2) (ii) and (iii) of 
this chapter established pursuant to the notice issued under paragraph 
(d)(2) of this section will be the same for all such applications.
    (4) The provisions of Sec. 4.36(d)(2)(i) of this chapter will not 
be applicable to applications filed pursuant to this section.

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 2002, 68 FR 
51142, Aug. 25, 2003; Order 653, 70 FR 8724, Feb. 23, 2005]



Sec. 16.10  Information to be provided by an applicant for new license: 
Filing requirements.

    (a) Information to be supplied by all applicants. All applicants for 
a new license under this part must file the following information with 
the Commission:
    (1) A discussion of the plans and ability of the applicant to 
operate and maintain the project in a manner most likely to provide 
efficient and reliable electric service, including efforts and plans to:
    (i) Increase capacity or generation at the project;
    (ii) Coordinate the operation of the project with any upstream or 
downstream water resource projects; and
    (iii) Coordinate the operation of the project with the applicant's 
or other electrical systems to minimize the cost of production.
    (2) A discussion of the need of the applicant over the short and 
long term for the electricity generated by the project, including:
    (i) The reasonable costs and reasonable availability of alternative 
sources

[[Page 218]]

of power that would be needed by the applicant or its customers, 
including wholesale customers, if the applicant is not granted a license 
for the project;
    (ii) A discussion of the increase in fuel, capital, and any other 
costs that would be incurred by the applicant or its customers to 
purchase or generate power necessary to replace the output of the 
licensed project, if the applicant is not granted a license for the 
project;
    (iii) The effect of each alternative source of power on:
    (A) The applicant's customers, including wholesale customers;
    (B) The applicant's operating and load characteristics; and
    (C) The communities served or to be served, including any 
reallocation of costs associated with the transfer of a license from the 
existing licensee.
    (3) The following data showing need and the reasonable cost and 
availability of alternative sources of power:
    (i) The average annual cost of the power produced by the project, 
including the basis for that calculation;
    (ii) The projected resources required by the applicant to meet the 
applicant's capacity and energy requirements over the short and long 
term including:
    (A) Energy and capacity resources, including the contributions from 
the applicant's generation, purchases, and load modification measures 
(such as conservation, if considered as a resource), as separate 
components of the total resources required;
    (B) A resource analysis, including a statement of system reserve 
margins to be maintained for energy and capacity; and
    (C) If load management measures are not viewed as resources, the 
effects of such measures on the projected capacity and energy 
requirements indicated separately;
    (iii) For alternative sources of power, including generation of 
additional power at existing facilities, restarting deactivated units, 
the purchase of power off-system, the construction or purchase and 
operation of a new power plant, and load management measures such as 
conservation:
    (A) The total annual cost of each alternative source of power to 
replace project power;
    (B) The basis for the determination of projected annual cost; and
    (C) A discussion of the relative merits of each alternative, 
including the issues of the period of availability and dependability of 
purchased power, average life of alternatives, relative equivalent 
availability of generating alternatives, and relative impacts on the 
applicant's power system reliability and other system operating 
characteristics; and
    (iv) The effect on the direct providers (and their immediate 
customers) of alternate sources of power.
    (4) If an applicant uses power for its own industrial facility and 
related operations, the effect of obtaining or losing electricity from 
the project on the operation and efficiency of such facility or related 
operations, its workers, and the related community.
    (5) If an applicant is an Indian tribe applying for a license for a 
project located on the tribal reservation, a statement of the need of 
such tribe for electricity generated by the project to foster the 
purposes of the reservation.
    (6) A comparison of the impact on the operations and planning of the 
applicant's transmission system of receiving or not receiving the 
project license, including:
    (i) An analysis of the effects of any resulting redistribution of 
power flows on line loading (with respect to applicable thermal, 
voltage, or stability limits), line losses, and necessary new 
construction of transmission facilities or upgrading of existing 
facilities, together with the cost impact of these effects;
    (ii) An analysis of the advantages that the applicant's transmission 
system would provide in the distribution of the project's power; and
    (iii) Detailed single-line diagrams, including existing system 
facilities identified by name and circuit number, that show system 
transmission elements in relation to the project and other principal 
interconnected system elements. Power flow and loss data that represent 
system operating conditions may be appended if applicants believe such 
data would be useful to show that the operating impacts described would 
be beneficial.

[[Page 219]]

    (7) If the applicant has plans to modify existing project facilities 
or operations, a statement of the need for, or usefulness of, the 
modifications, including at least a reconnaissance-level study of the 
effect and projected costs of the proposed plans and any alternate 
plans, which in conjunction with other developments in the area would 
conform with a comprehensive plan for improving or developing the 
waterway and for other beneficial public uses as defined in section 
10(a)(1) of the Federal Power Act.
    (8) If the applicant has no plans to modify existing project 
facilities or operations, at least a reconnaissance-level study to show 
that the project facilities or operations in conjunction with other 
developments in the area would conform with a comprehensive plan for 
improving or developing the waterway and for other beneficial public 
uses as defined in section 10(a)(1) of the Federal Power Act.
    (9) A statement describing the applicant's financial and personnel 
resources to meet its obligations under a new license, including 
specific information to demonstrate that the applicant's personnel are 
adequate in number and training to operate and maintain the project in 
accordance with the provisions of the license.
    (10) If an applicant proposes to expand the project to encompass 
additional lands, a statement that the applicant has notified, by 
certified mail, property owners on the additional lands to be 
encompassed by the project and governmental agencies and subdivisions 
likely to be interested in or affected by the proposed expansion.
    (11) The applicant's electricity consumption efficiency improvement 
program, as defined under section 10(a)(2)(C) of the Federal Power Act, 
including:
    (i) A statement of the applicant's record of encouraging or 
assisting its customers to conserve electricity and a description of its 
plans and capabilities for promoting electricity conservation by its 
customers; and
    (ii) A statement describing the compliance of the applicant's energy 
conservation programs with any applicable regulatory requirements.
    (12) The names and mailing addresses of every Indian tribe with land 
on which any part of the proposed project would be located or which the 
applicant reasonably believes would otherwise be affected by the 
proposed project.
    (b) Information to be provided by an applicant who is an existing 
licensee. An existing licensee that applies for a new license must 
provide:
    (1) The information specified in paragraph (a).
    (2) A statement of measures taken or planned by the licensee to 
ensure safe management, operation, and maintenance of the project, 
including:
    (i) A description of existing and planned operation of the project 
during flood conditions;
    (ii) A discussion of any warning devices used to ensure downstream 
public safety;
    (iii) A discussion of any proposed changes to the operation of the 
project or downstream development that might affect the existing 
Emergency Action Plan, as described in subpart C of part 12 of this 
chapter, on file with the Commission;
    (iv) A description of existing and planned monitoring devices to 
detect structural movement or stress, seepage, uplift, equipment 
failure, or water conduit failure, including a description of the 
maintenance and monitoring programs used or planned in conjunction with 
the devices; and
    (v) A discussion of the project's employee safety and public safety 
record, including the number of lost-time accidents involving employees 
and the record of injury or death to the public within the project 
boundary.
    (3) A description of the current operation of the project, including 
any constraints that might affect the manner in which the project is 
operated.
    (4) A discussion of the history of the project and record of 
programs to upgrade the operation and maintenance of the project.
    (5) A summary of any generation lost at the project over the last 
five years because of unscheduled outages, including the cause, 
duration, and corrective action taken.
    (6) A discussion of the licensee's record of compliance with the 
terms

[[Page 220]]

and conditions of the existing license, including a list of all 
incidents of noncompliance, their disposition, and any documentation 
relating to each incident.
    (7) A discussion of any actions taken by the existing licensee 
related to the project which affect the public.
    (8) A summary of the ownership and operating expenses that would be 
reduced if the project license were transferred from the existing 
licensee.
    (9) A statement of annual fees paid under Part I of the Federal 
Power Act for the use of any Federal or Indian lands included within the 
project boundary.
    (c) Information to be provided by an applicant who is not an 
existing licensee. An applicant that is not an existing licensee must 
provide:
    (1) The information specified in paragraph (a).
    (2) A statement of the applicant's plans to manage, operate, and 
maintain the project safely, including:
    (i) A description of the differences between the operation and 
maintenance procedures planned by the applicant and the operation and 
maintenance procedures of the existing licensee;
    (ii) A discussion of any measures proposed by the applicant to 
implement the existing licensee's Emergency Action Plan, as described in 
subpart C of part 12 of this chapter, and any proposed changes;
    (iii) A description of the applicant's plans to continue safety 
monitoring of existing project instrumentation and any proposed changes; 
and
    (iv) A statement indicating whether or not the applicant is 
requesting the licensee to provide transmission services under section 
15(d) of the Federal Power Act.
    (d) Inclusion in application. The information required to be 
provided by this section must be included in the application as a 
separate exhibit labeled ``Exhibit H.''

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 533, 56 FR 
23154, May 20, 1991; 56 FR 61156, Dec. 2, 1991; Order 2002, 68 FR 51142, 
Aug. 25, 2003]



Sec. 16.11  Nonpower licenses.

    (a) Information to be provided by all applicants for nonpower 
licenses. (1) An applicant for a nonpower license must provide the 
following information in its application:
    (i) The information required by Sec. Sec. 4.51 or 4.61 of this 
chapter, as appropriate;
    (ii) A description of the nonpower purpose for which the project is 
to be used;
    (iii) A showing of how the nonpower use conforms with a 
comprehensive plan for improving or developing the waterway and for 
other beneficial public uses as defined in section 10(a)(1) of the 
Federal Power Act;
    (iv) A statement of any impact that converting the project to 
nonpower use may have on the power supply of the system served by the 
project, including the additional cost of power if an alternative 
generating source is used to offset the loss of the project's 
generation;
    (v) A statement identifying the state, municipal, interstate, or 
Federal agency, which is authorized and willing to assume regulatory 
supervision over the land, waterways, and facilities to be included 
within the nonpower project;
    (vi) Copies of written communication and documentation of oral 
communication that the applicant may have had with any jurisdictional 
agency or governmental unit authorized and willing to assume regulatory 
control over the project and the point of time at which the agency or 
unit would assume regulatory control;
    (vii) A statement that demonstrates that the applicant has complied 
with the requirements of Sec. 16.8(d)(2);
    (viii) A proposal that shows the manner in which the applicant plans 
to remove or otherwise dispose of the project's power facilities;
    (ix) Any proposal to repair or rehabilitate any nonpower facilities;
    (x) A statement of the costs associated with removing the project's 
power facilities and with any necessary restoration and rehabilitation 
work; and
    (xi) A statement that demonstrates that the applicant has resources 
to ensure the integrity and safety of the remaining project facilities 
and to maintain the nonpower functions of the project until the 
governmental unit or agency assumes regulatory control over the project.
    (2) [Reserved]

[[Page 221]]

    (b) Termination of a proceeding for a nonpower license. The 
Commission may deny an application for a nonpower license and turn the 
project over to any agency that has jurisdiction over the land or 
reservations if:
    (1) An existing project is located on public lands or reservations 
of the United States;
    (2) Neither the existing licensee nor any other entity has filed an 
application for a new license for the project;
    (3) No one has filed a recommendation to take over the project 
pursuant to Sec. 16.14; and
    (4) The agency that has jurisdiction over the land or reservations 
demonstrates that it is able and willing to:
    (i) Accept immediate responsibility for the nonpower use of the 
project; and.
    (ii) Pay the existing licensee for its net investment in the project 
and any severance damages specified in section 14(a) of the Federal 
Power Act.
    (c) Termination of nonpower license. A nonpower license will be 
terminated by Commission order when the Commission determines that a 
state, municipal, interstate, or Federal agency has jurisdiction over, 
and is willing to assume regulatory responsibility for, the land, 
waterways, and facilities included within the nonpower license.

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 2002, 68 FR 
51142, Aug. 25, 2003]



Sec. 16.12  Application for exemption from licensing by a licensee whose 
license is subject to sections 14 and 15 of the Federal Power Act.

    (a) An existing licensee whose license is subject to sections 14 and 
15 of the Federal Power Act may apply for an exemption for the project.
    (b) An applicant for an exemption under paragraph (a) must meet the 
requirements of subpart K or subpart J of part 4 of this chapter, and 
Sec. Sec. 16.5, 16.6, 16.7, 16.8, 16.9(b) (1), (2) (except the 
requirement to comply with Sec. Sec. 4.41, 4.51, or 4.61 of this 
chapter), 16.9(c), 16.10(a), 16.10(b), 16.10(d), and 16.10(e).
    (c) The Commission will process an application by an existing 
licensee for an exemption for the project in accordance with Sec. Sec. 
16.9(b)(3), 16.9(b)(4), and 16.9(d).
    (d) If a license application is filed in competition with an 
application for exemption filed by the existing licensee, the Commission 
will decide among the competing applications in accordance with the 
standards of Sec. 16.13 and not in accordance with the provisions of 
Sec. 4.37(d)(2) of this chapter.



Sec. 16.13  Standards and factors for issuing a new license.

    (a) In determining whether a final proposal for a new license under 
section 15 of the Federal Power Act is best adapted to serve the public 
interest, the Commission will consider the factors enumerated in 
sections 15(a)(2) and (a)(3) of the Federal Power Act.
    (b) If there are only insignificant differences between the final 
applications of an existing licensee and a competing applicant after 
consideration of the factors enumerated in section 15(a)(2) of the 
Federal Power Act, the Commission will determine which applicant will 
receive the license after considering:
    (1) The existing licensee's record of compliance with the terms and 
conditions of the existing license; and
    (2) The actions taken by the existing licensee related to the 
project which affect the public.
    (c) An existing licensee that files an application for a new license 
in conjunction with an entity or entities that are not currently 
licensees of all or part of the project will not be considered an 
existing licensee for the purpose of the insignificant differences 
provision of section 15(a)(2) of the Federal Power Act.



Subpart C_Takeover Provisions for Projects Subject to Sections 14 and 15 
                        of the Federal Power Act



Sec. 16.14  Departmental recommendation for takeover.

    (a) A Federal department or agency may file a recommendation that 
the United States exercise its right to take over a hydroelectric power 
project with a license that is subject to sections 14 and 15 of the 
Federal Power Act. The recommendation must:
    (1) Be filed no earlier than five years before the license expires 
and no later

[[Page 222]]

than the end of the comment period specified by the Commission in:
    (i) A notice of application for a new license, a nonpower license, 
or an exemption for the project; or
    (ii) A notice of an amendment to an application for a new license, a 
nonpower license, or an exemption;
    (2) Be filed in accordance with the formal requirements for filings 
in subpart T of part 385 of the Commission's regulations and be served 
on each relevant Federal and state resource agency, all applicants for 
new license, nonpower license or exemption, and any other party to the 
proceeding;
    (3) Specify the project works that would be taken over by the United 
States;
    (4) Describe the proposed Federal operation of the project, 
including any plans for its redevelopment, and discuss the manner in 
which takeover would serve the public interest as fully as non-Federal 
development and operation;
    (5) State whether the agency intends to undertake the operation of 
the project; and
    (6) Include the information required by Sec. Sec. 4.41, 4.51, or 
4.61 of this chapter, as appropriate.
    (b) A department or agency that files a takeover recommendation 
becomes a party to the proceeding.
    (c) An applicant or potential applicant for a new license, a 
nonpower license, or an exemption that involves a takeover 
recommendation may file a reply to the recommendation, within 120 days 
from the date the takeover recommendation is filed with the Commission. 
The reply must be filed with the Commission in accordance with part 385 
of the Commission's regulations and a copy of such a reply must be 
served on the agency recommending the takeover and on any other party to 
the proceeding.



Sec. 16.15  Commission recommendation to Congress.

    Upon receipt of a recommendation from any Federal department or 
agency, a proposal of any party, or on the Commission's own motion, and 
after notice and opportunity for hearing, the Commission may determine 
that a project may be taken over by the United States, issue an order on 
its findings and recommendations, and forward a copy to Congress.



Sec. 16.16  Motion for stay by Federal department or agency.

    (a) Within 30 days of the date on which an order granting a new 
license or exemption is issued, a Federal department or agency that has 
filed a takeover recommendation under Sec. 16.14 may file a motion 
under Sec. 385.2010 of this chapter to request a stay of the effective 
date of the license or exemption order.
    (b)(1) If a Federal department or agency files a motion under 
paragraph (a), the Commission will stay the effective date of the order 
issuing the license or exemption for two years.
    (2) The stay issued under paragraph (b)(1) of this section may be 
terminated either:
    (i) Upon motion of the department or agency that requested the stay; 
or
    (ii) By action of Congress.
    (c) The Commission will notify Congress if:
    (1) An order granting a stay under paragraph (b)(1) of this section 
is issued;
    (2) Any license or exemption order becomes effective by reason of 
the termination of a stay; or
    (3) Any license or exemption order becomes effective by reason of 
the expiration of a stay.
    (d) The Commission's order granting the license or exemption will 
automatically become effective:
    (1) Thirty days after issuance, if no request for stay is filed, 
provided that no appeal or rehearing is filed;
    (2) When the period of the stay expires; or
    (3) When the stay is terminated under paragraph (b)(2) of this 
section.



Sec. 16.17  Procedures upon Congressional authorization of takeover.

    If Congress authorizes the takeover of a hydroelectric power project 
as provided under section 14 of the Federal Power Act:
    (a) The Commission or the Director of the Office of Energy Projects 
will notify the existing licensee in writing of the authorization at 
least two years before the takeover occurs; and

[[Page 223]]

    (b) The licensee must present any claim for compensation to the 
Commission:
    (1) Within six months of issuance of the notice of takeover; and
    (2) As provided in section 14 of the Federal Power Act.



Subpart D_Annual Licenses for Projects Subject to Sections 14 and 15 of 
                          the Federal Power Act



Sec. 16.18  Annual licenses for projects subject to sections 14 and 15 
of the Federal Power Act.

    (a) This section applies to projects with licenses subject to 
sections 14 and 15 of the Federal Power Act.
    (b) The Commission will issue an annual license to an existing 
licensee under the terms and conditions of the existing license upon 
expiration of its existing license to allow:
    (1) The licensee to continue to operate the project while the 
Commission reviews any applications for a new license, a nonpower 
license, an exemption, or a surrender;
    (2) The orderly removal of a project, if the United States does not 
take over a project and no new power or nonpower license or exemption 
will be issued; or
    (3) The orderly transfer of a project to:
    (i) The United States, if takeover is elected; or
    (ii) A new licensee, if a new power or nonpower license is issued to 
that licensee.
    (c) An annual license issued under this section will be considered 
renewed automatically without further order of the Commission, unless 
the Commission orders otherwise.
    (d) In issuing an annual license, the Commission may incorporate 
additional or revised interim conditions if necessary and practical to 
limit adverse impacts on the environment.

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 513-A, 55 FR 
18, Jan. 2, 1990; Order 540, 57 FR 21738, May 22, 1992]



  Subpart E_Projects With Minor and Minor Part Licenses Not Subject to 
               Sections 14 and 15 of the Federal Power Act



Sec. 16.19  Procedures for an existing licensee of a minor hydroelectric 
power project or of a minor part of a hydroelectric power project with a 
license not subject to sections 14 and 15 of the Federal Power Act.

    (a) Applicability. This section applies to an existing licensee of a 
minor hydroelectric power project or of a minor part of a hydroelectric 
power project that is not subject to sections 14 and 15 of the Federal 
Power Act.
    (b) Notification procedures. (1) An existing licensee with a minor 
license or a license for a minor part of a hydroelectric project must 
file a notice of intent pursuant to Sec. 16.6(b).
    (2) If the license of an existing licensee expires on or after 
October 17, 1994, the licensee must notify the Commission as required 
under Sec. 16.6(b) at least five years before the expiration of the 
existing license.
    (3) The Commission will give notice of a licensee's intent to file 
or not to file an application for a subsequent license in accordance 
with Sec. 16.6(d).
    (c) Requirement to make information available. (1) Except as 
provided in paragraph (c)(2) of this section, a licensee must make the 
information described in Sec. 16.7 available to the public for 
inspection and reproduction when it gives notice to the Commission under 
paragraph (b).
    (2) The requirement of paragraph (c)(1) of this section does not 
apply if an applicant filed an application for a subsequent license on 
or before [insert the effective date of the rule].

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 2002, 68 FR 
51142, Aug. 25, 2003]



Sec. 16.20  Applications for subsequent license for a project with an 
expiring license not subject to sections 14 and 15 of the Federal Power 
Act.

    (a) Applicability. This section applies to an application for 
subsequent license for a project with an expiring license that is not 
subject to sections 14 and 15 of the Federal Power Act.

[[Page 224]]

    (b) Licensing proceeding. (1) An applicant for a license for a 
project with an expiring license not subject to sections 14 and 15 of 
the Federal Power Act must file its application under Part I of the 
Federal Power Act.
    (2) The provisions of section 7(a) of the Federal Power Act do not 
apply to licensing proceedings involving an application described in 
paragraph (b)(1).
    (c) Requirement to file. An applicant must file an application for 
subsequent license at least 24 months before the expiration of the 
existing license.
    (d) Requirements for and processing of applications. An application 
for subsequent license must meet the requirements of, and will be 
processed in accordance with, Sec. Sec. 16.5, 16.8, 16.9(b)(2), 
16.9(b)(3), 16.9(b)(4), 16.9(c), and 16.9(d).
    (e) Applicant notice. An applicant for subsequent license or 
exemption that proposes to expand an existing project to encompass 
additional lands must include in its application a statement that the 
applicant has notified, by certified mail, property owners on the 
additional lands to be encompassed by the project and governmental 
agencies and subdivisions likely to be interested in or affected by the 
proposed expansion.

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 2002, 68 FR 
51142, Aug. 25, 2003]



Sec. 16.21  Operation of projects with a minor or minor part license 
not subject to sections 14 and 15 of the Federal Power Act after 
expiration of a license.

    (a) A licensee of a minor or minor part project not subject to 
sections 14 and 15 of the Federal Power Act that has filed an 
application for a subsequent license or exemption may continue to 
operate the project in accordance with the terms and conditions of the 
license after the minor or minor part license expires until the 
Commission acts on its application.
    (b) If the licensee of a minor or minor part project not subject to 
sections 14 and 15 of the Federal Power Act has not filed an application 
for a subsequent license or exemption, the Commission may issue an order 
requiring the licensee to continue to operate its project in accordance 
with the terms and conditions of the license until the Commission either 
acts on any applications for subsequent license timely filed by another 
entity or takes action pursuant to Sec. Sec. 16.25 or 16.26.



Sec. 16.22  Application for an exemption by a licensee with a minor 
or minor part license for a project not subject to sections 14 and 15 
of the Federal Power Act.

    (a) Applicability. This section applies to an existing licensee with 
a license for a project not subject to sections 14 and 15 of the Federal 
Power Act.
    (b) Information requirements. An applicant for an exemption must 
meet the requirements of, and will be processed in accordance with, 
subpart K or subpart J of part 4 of this chapter, and Sec. Sec. 16.5, 
16.8, 16.9(b)(2) (except the requirement to comply with Sec. Sec. 4.41, 
4.51, or 4.61 of this chapter), Sec. Sec. 16.9(b)(3), 16.9(b)(4), 
16.9(c), 16.9(d), and 16.20(c).
    (c) Standard of comparison. If an application for subsequent license 
is filed in competition with an application for exemption by an existing 
licensee, the Commission will decide among competing applications in 
accordance with the standards of Sec. 16.13 and not in accordance with 
the provisions of Sec. 4.37(d)(2) of this chapter.



                      Subpart F_Procedural Matters



Sec. 16.23  Failure to file timely notices of intent.

    (a) An existing licensee of a water power project with a license 
subject to sections 14 and 15 of the Federal Power Act that fails to 
file a notice of intent pursuant to Sec. 16.6(b) by the deadlines 
specified in Sec. l6.6(c) shall be deemed to have filed a notice of 
intent indicating that it does not intend to file an application for new 
license, nonpower license, or exemption.
    (b) An existing licensee of a water power project with a license not 
subject to sections 14 and 15 of the Federal Power Act that fails to 
file a notice of intent pursuant to Sec. 16.6(b) by the deadlines 
specified in Sec. 16.20(c) shall be deemed to have filed a notice of 
intent indicating that it does not intend to file an application for 
subsequent license or exemption.

[[Page 225]]



Sec. 16.24  Prohibitions against filing applications for new license, 
nonpower license, exemption, or subsequent license.

    (a) Licenses subject to sections 14 and 15 of the Federal Power Act. 
(1) An existing licensee with a license subject to sections 14 and 15 of 
the Federal Power Act that informs the Commission that it does not 
intend to file an application for new license, nonpower license, or 
exemption for a project, as required by Sec. 16.6, may not file an 
application for new license, nonpower license, or exemption for the 
project, either individually or in conjunction with an entity or 
entities that are not currently licensees of the project.
    (2) An existing licensee with a license subject to sections 14 and 
15 of the Federal Power Act that fails to file an application for new 
license, nonpower license, or exemption for a project at least 24 months 
before the expiration of the existing license for the project may not 
file an application for new license, nonpower license, or exemption for 
the project, either individually or in conjunction with an entity or 
entities that are not currently licensees of the project.
    (b) Licenses not subject to sections 14 and 15 of the Federal Power 
Act. (1) An existing licensee with a license not subject to sections 14 
and 15 of the Federal Power Act that informs the Commission that it does 
not intend to file an application for subsequent license or exemption 
for a project, as required by Sec. 16.6, may not file an application 
for subsequent license or exemption for the project, either individually 
or in conjunction with an entity or entities that are not currently 
licensees of the project.
    (2) An existing licensee with a license not subject to sections 14 
and 15 of the Federal Power Act that fails to file an application for 
subsequent license or exemption for a project by the deadlines specified 
in Sec. 16.20(c) may not file an application for subsequent license or 
exemption for the project, either individually or in conjunction with an 
entity or entities that are not currently licensees of the project.



Sec. 16.25  Disposition of a project for which no timely application is 
filed following a notice of intent to file.

    (a) If an existing licensee that indicates in the notice filed 
pursuant to Sec. 16.6 that it will file an application for new license, 
nonpower license, subsequent license, or an exemption does not file its 
application individually or in conjunction with an entity or entities 
that are not currently licensees of the project at least 24 months 
before its existing license expires in the case of licenses subject to 
sections 14 and 15 of the Federal Power Act, or by the deadlines 
specified in Sec. 16.20(c) in the case of licenses not subject to 
sections 14 and 15 of the Federal Power Act, and no other applicant 
files an application within the appropriate time or all pending 
applications filed before the applicable filing deadline are 
subsequently rejected or dismissed pursuant to Sec. 4.32 of this 
chapter, the Commission will publish in the Federal Register and once in 
a daily or weekly newspaper published in the county or counties in which 
the project or any part thereof or the lands affected thereby are 
situated, notice soliciting applications from potential applicants other 
than the existing licensee.
    (b) A potential applicant that files a notice of intent within 90 
days from the date of the public notice issued pursuant to paragraph 
(a):
    (1) May apply for a license under Part I of the Federal Power Act 
and part 4 of this chapter (except Sec. 4.38) within 18 months of the 
date on which it files its notice; and
    (2) Must comply with the requirements of Sec. 16.8 and, if the 
project would have a total installed capacity of over 2,000 horsepower, 
Sec. 16.10.
    (c) The existing licensee must file a schedule for the filing of a 
surrender application for the project, for the approval of the Director 
of the Office of Energy Projects, 90 days:
    (1) After the due date established for any notice of intent issued 
under paragraph (a), if no notices of intent were received; or
    (2) After the due date for any application filed under paragraph 
(b)(1), if no application has been filed.
    (d) Any application for surrender must be filed according to the 
approved

[[Page 226]]

schedule, must comply with the requirements of Sec. 16.8 and part 6 of 
this chapter, and must provide for disposition of any project facility.



Sec. 16.26  Disposition of a project for which no timely application is 
filed following a notice of intent not to file.

    (a) If an existing licensee indicates in the notice filed pursuant 
to Sec. 16.6 that it will not file an application for new license, 
nonpower license, subsequent license, or exemption and no other 
applicant files an application at least 24 months before the existing 
license expires in the case of licenses subject to sections 14 and 15 of 
the Federal Power Act, or by the deadlines specified in Sec. 16.20(c) 
in the case of licenses not subject to sections 14 and 15 of the Federal 
Power Act, the Director of the Office of Energy Projects will provide 
the existing licensee with written notice that no timely applications 
for the project have been filed.
    (b) The existing licensee, within 90 days from the date of the 
written notice provided in paragraph (a), must file a schedule for the 
filing of a surrender application for the project for the approval of 
the Director of the Office of Energy Projects.
    (c) Any application for surrender must be filed according to the 
approved schedule, must comply with the requirements of Sec. 16.8 and 
part 6 of this chapter, and must provide for disposition of any project 
facility.



PART 20_AUTHORIZATION OF THE ISSUANCE OF SECURITIES BY LICENSEES AND 
COMPANIES SUBJECT TO SECTIONS 19 AND 20 OF THE FEDERAL POWER ACT
--Table of Contents

Sec.
20.1 Applicability.
20.2 Regulation of issuance of securities.

    Authority: Secs. 3(16), 19, 20, 41 Stat. 1063, 1073; secs. 201, 309, 
49 Stat. 838, 858; 16 U.S.C. 796 (16), 812, 813, 825k.

    Source: Order 170, 19 FR 2013, Apr. 8, 1954, unless otherwise noted.



Sec. 20.1  Applicability.

    (a) Without special proceeding for regulation. Every security issue 
within the scope of the jurisdiction conferred upon the Commission by 
sections 19 and 20 of the Federal Power Act shall be subject to the 
provisions of Sec. 20.2, except a security issue by a person organized 
and operating in a State under the laws of which its security issues are 
regulated by a State commission, or by any one described in subsection 
201(f) of the act. No other security issue within the scope of sections 
19 and 20 shall be subject to Sec. 20.2 except as provided in paragraph 
(b) of this section.
    (b) Reservation of possibility of regulation in other cases. Not 
later than 10 days prior to any proposed security issuance which is 
within the scope of section 19 or section 20 of the act, but excepted by 
paragraph (a) of this section, any person or state entitled to do so 
under section 19 or section 20, may file a complaint or request in 
accordance with the applicable rules of the Commission, or the 
Commission upon its own motion may by order initiate a proceeding, 
raising the question whether issuance of such security should be 
subjected by Commission order to the provisions of Sec. 20.2. After 
notice of such filing or order, and until such request or complaint is 
denied or dismissed or the proceeding initiated by such order is 
terminated without subjecting the issuance of the security to the 
provisions of Sec. 20.2, the security in question shall not be issued 
except it be issued subject to and in compliance with Sec. 20.2.



Sec. 20.2  Regulation of issuance of securities.

    The licensee or other person issuing or proposing to issue any 
security subjected to this section by or pursuant to Sec. 20.1, shall 
be subject to and shall comply with the same requirements as the 
Commission would administer to it if it were a public utility issuing 
the security within the meaning and subject to the requirements of 
section 204 of the Act and part 34 of this subchapter.

    Cross Reference: For applications for authorization of the issuance 
of securities or the assumption of liabilities, see part 34 of this 
chapter.

[[Page 227]]



PART 24_DECLARATION OF INTENTION--Table of Contents

    Authority: 16 U.S.C. 791a-825r; 44 U.S.C. 3501 et seq.; 42 U.S.C. 
7101-7352.



Sec. 24.1  Filing.

    An original and eight conformed copies of each declaration of 
intention under the provisions of section 23(b) of the Act shall be 
filed. The declaration shall give the name and post office address of 
the person to whom correspondence in regard to it shall be addressed, 
and shall be accompanied by:
    (a) A brief description of the proposed project and its purposes, 
including such data as maximum height of the dams, a storage capacity 
curve of the reservoir or reservoirs showing the maximum, average, and 
minimum operating pool levels, the initial and ultimate installed 
capacity of the project, the rated horsepower and head on the turbines, 
and a curve of turbine discharge versus output at average and minimum 
operating heads.
    (b)(1) A general map (one tracing and three prints) of any 
convenient size and scale, showing the stream or streams to be utilized 
and the approximate location and the general plan of the project.
    (2) Also a detailed map of the proposed project area showing all 
Federal lands, and lands owned by States, if any, occupied by the 
project.
    (3) A profile of the river within the vicinity of the project 
showing the location of the proposed project and any existing 
improvements in the river.
    (4) A duration curve and hydrograph for the natural and proposed 
regulated flows at the dam site. Furnish references to the published 
stream flow records used and submit copies of any unpublished records 
used in preparation of these curves.
    (c) (1) A definite statement of the proposed method of utilizing 
storage or pondage seasonally, weekly and daily, during periods of low 
and normal flows after the plant is in operation and the system load has 
grown to the extent that the capacity of the plant is required to meet 
the load. For example, furnish:
    (i) Hydrographs covering a 10-day low water period showing the 
natural flow of the stream and the effect thereon caused by operations 
of the proposed power plant:
    (ii) Similar hydrographs covering a 10-day period during which the 
discharge of the stream approximates average recorded yearly flow, and
    (iii) Similar hydrographs covering a low water year using average 
monthly flows.
    (2) A system load curve, both daily and monthly, and the position on 
the load curve that the proposed project would have occupied had it been 
in operation.
    (3) A proposed annual rule of operation for the storage reservoir or 
reservoirs.

[Order 175, 19 FR 5217, Aug. 18, 1954, as amended by Order 260, 28 FR 
315, Jan. 11, 1963; Order 540, 57 FR 21738, May 22, 1992]



PART 25_APPLICATION FOR VACATION OF WITHDRAWAL AND FOR DETERMINATION 
PERMITTING RESTORATION TO ENTRY--Table of Contents

Sec.
25.1 Contents of application.
25.2 Hearings.



Sec. 25.1  Contents of application.

    Any application for vacation of a reservation effected by the filing 
of an application for preliminary permit or license, or for a 
determination under the provisions of section 24 of the Act permitting 
restoration for location, entry, or selection under the public lands 
laws, or such lands reserved or classified as power sites shall, unless 
the subject lands are National Forest Lands, be filed with the Bureau of 
Land Management, Department of the Interior, at the Bureau's office in 
Washington, DC or at the appropriate regional or field office of the 
Bureau. If the lands included in such application are National Forest 
Lands, the application shall be filed with the U.S. Forest Service, 
Department of Agriculture at the Forest Service's office in Washington, 
DC, or at the appropriate regional office of the U.S. Forest Service.

[[Page 228]]

Such application shall contain the following data: (a) Full name of 
applicant; (b) post-office address; (c) description of land by legal 
subdivisions, including section, township, range, meridian, county, 
State, and river basin (both main and tributary) in which the land is 
located; (d) public land act under which entry is intended to be made if 
land is restored to entry; (e) the use to which it is proposed to put 
the land, and a statement as to its suitability for the intended use.

(Secs. 24, 309, 41 Stat. 1075, as amended; 49 Stat. 858; 16 USC. 818, 
825h)

[Order 175, 19 FR 5218, Aug. 18, 1954, as amended by Order 346, 32 FR 
7495, May 20, 1967]

    Cross Reference: For entries subject to section 24 of the Federal 
Power Act, see also 43 CFR subpart 2320.



Sec. 25.2  Hearings.

    A hearing upon such an application may be ordered by the Commission 
in its discretion and shall be in accordance with the provisions of 
subpart E of part 385 of this chapter.
    Note1:
    On April 17, 1922, the Commission made the following general 
determination:
    (a) That where lands of the United States have heretofore been, or 
hereafter may be, reserved or classified as power sites, such 
reservation or classification being made solely because such lands are 
either occupied by power transmission lines or their occupancy and use 
for such purposes has been applied for or authorized under appropriate 
laws of the United States, and such lands have otherwise no value for 
power purposes, and are not occupied in trespass, the Commission 
determines that the value of such lands so reserved or classified, or so 
applied for or authorized, will not be injured or destroyed for the 
purposes of power development by location, entry, or selection under the 
public land laws, subject to the reservation of section 24 of the 
Federal Water Power Act (41 Stat. 1075; 16 U.S.C. 818).
    (b) That when notice is given to the Secretary of the Interior of 
reservations made under the provisions of section 24 of the Federal 
Water Power Act, such notice shall indicate what lands so reserved, if 
any, may, in accordance with the determination of the preceding 
paragraph, be declared open to location, entry, or selection, subject to 
the reservation of said section 24. Second Annual Report, page 128.
    Note2:
    On February 16, 1937, the Commission took the following action:
    Consent to Establishment of Grazing Districts, Issuance of Grazing 
Permits, and Leasing for Grazing Purposes Under the Act of June 28, 
1934, as Amended, Government Lands Reserved for Power Purposes
    Upon request under date of November 2, 1936, by the acting director, 
Division of Grazing, Department of the Interior, for consent of the 
Commission, pursuant to the act of June 28, 1934 (48 Stat. 1269), to the 
establishment of grazing districts and the issuance of grazing permits 
on lands of the United States withdrawn, classified, or otherwise 
reserved for power purposes, except in those instances where grazing 
will interfere with such purposes; and
    Upon request under date of December 7, 1936, by the Acting Secretary 
of the Interior for consent of the Commission, pursuant to the Act of 
June 28, 1934 (48 Stat. 1269), as amended by the Act of June 26, 1936 
(49 Stat. 1976), to the leasing under section 15 of said Act as amended, 
of isolated tracts of lands of the United States, withdrawn for power 
purposes:
    The Commission upon consideration of the matter finds and 
determines: That the establishment of grazing districts, the issuance of 
grazing permits, and the leasing for grazing purposes, under said Act as 
amended, of lands of the United States theretofore or thereafter 
withdrawn, classified or otherwise reserved for power purposes, but not 
including lands embraced within the project area of any power project 
theretofore licensed by the Commission or otherwise authorized by the 
United States, will not injure or destroy the value of such lands for 
the purposes of power development nor otherwise abridge the jurisdiction 
of the Commission; Provided, That such grazing districts shall be 
established and such permits and leases for grazing permits issued 
subject to the following conditions:
    (1) That the establishment of the grazing district or the issuance 
of the

[[Page 229]]

grazing permit or lease for grazing purposes shall in no wise diminish 
or affect the jurisdiction of the Commission at any time to issue 
permits or licenses pursuant to the provisions of the Federal Power Act 
(49 Stat. 838; 16 U.S.C., Sup., 791-819); and that the issuance by the 
Commission of a license shall immediately and automatically terminate 
such grazing district, permit, or lease for grazing purposes as to all 
lands within the project area described in such license;
    (2) That the establishment of the grazing district or the issuance 
of the grazing permit or lease for grazing purposes involving lands 
withdrawn for power purposes shall in no wise diminish or affect the 
jurisdiction of the Commission at any time to make further 
determinations that the value of any such lands for the purposes of 
power development will not be injured or destroyed by location entry or 
selection, as provided by section 24 of the Act and none of such lands 
shall be declared open, otherwise than as hereinbefore provided, to 
location, entry or selection except upon such further determination by 
the Commission; and any such further determination shall immediately and 
automatically terminate such grazing district, permit, or lease for 
grazing purposes as to any lands involved in such further determination.
    Now, therefore, the Commission consents to the establishment of such 
grazing districts and the issuance of grazing permits and leases for 
grazing purposes of lands of the United States reserved for power 
purposes subject to the conditions hereinabove set out;
    Provided, however, That this determination and consent shall be 
effective for lands embraced within grazing districts, as of the date of 
the establishment of such districts, and for isolated tracts of lands 
leased for grazing purposes, it shall be in effect when such leases are 
issued, provided that notice thereof is received by this Commission from 
the Bureau of Land Management, Department of the Interior, within 30 
days thereafter, such notice to include full legal description of the 
lands, withdrawn for power purposes which are involved.

(Secs. 24, 308, 39, 41 Stat. 1075, as amended, 40 Stat. 858; 16 U.S.C. 
818, 825g, 825h)

[Order 141, 12 FR 8493, Dec. 19, 1947, as amended by Order 225, 47 FR 
19056, May 3, 1982]

    Cross Reference: For regulations of the Bureau of Land Management, 
relating to grazing, see the Index to title 43 CFR part 4000-End.



PART 32_INTERCONNECTION OF FACILITIES--Table of Contents

    Application for an Order Directing the Establishment of Physical 
                        Connection of Facilities

Sec.
32.1 Contents of application; filing fee.
32.2 Required exhibits.
32.3 Other information.
32.4 Form and style; number of copies.

    Authority: Department of Energy Organization Act, 42 U.S.C. 7101-
7352 (1982); E.O. No. 12,009, 3 CFR 1978 Comp., p. 142; Independent 
Offices Appropriations Act, 31 U.S.C. 9701 (1982); Federal Power Act, 16 
U.S.C. 791a-825r (1988); Public Utility Regulatory Policies Act, 16 
U.S.C. 2601-2645 (1988).

    Source: Order 141, 12 FR 8494, Dec. 19, 1947, unless otherwise 
noted.

    Application for an Order Directing the Establishment of Physical 
                        Connection of Facilities



Sec. 32.1  Contents of application; filing fee.

    Every application under section 202(b) of the Act shall be 
accompanied by the fee prescribed in part 381 of this chapter and shall 
set forth the following information:
    (a) The exact legal name of the applicant and of all persons named 
as parties in the application.
    (b) The name, title, and post office address of the person to whom 
correspondence in regard to the application shall be addressed.
    (c) The person named in the application who is a public utility 
subject to the act.

[[Page 230]]

    (d) The State or States in which each electric utility named in the 
application operates, together with a brief description of the business 
of and territory, by counties and States, served by such utility.
    (e) Description of the proposed interconnection, showing proposed 
location, capacity and type of construction.
    (f) Reasons why the proposed connection, of facilities will be in 
the public interest.
    (g) What steps, if any, have been taken to secure voluntary 
interconnection under the provisions of section 202(a) of the Act.

[Order 141, 12 FR 8494, Dec. 19, 1947, as amended by Order 427, 36 FR 
5596, Mar. 25, 1971; Order 435, 50 FR 40357, Oct. 3, 1985]



Sec. 32.2  Required exhibits.

    There shall be filed with the application and as a part thereof the 
following exhibits:

    Exhibit A. Statement of the estimated capital cost of all facilities 
required to establish the connection, and the estimated annual cost of 
operating such facilities.
    Exhibit B. A general or key map on a scale not greater than 20 miles 
to the inch showing, in separate colors, the territory served by each 
utility, and the location of the facilities used for the generation and 
transmission of electric energy, indicating on said map the points 
between which connection may be established most economically.



Sec. 32.3  Other information.

    The Commission may require additional information when it appears to 
be pertinent in a particular case.



Sec. 32.4  Form and style; number of copies.

    An original and six conformed copies of an application under 
Sec. Sec. 32.1 to 32.4 must be filed.

[Order 342, 32 FR 6622, Apr. 29, 1967, as amended by Order 225, 47 FR 
19056, May 3, 1982]



PART 33_APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203--Table of 
Contents

Sec.
33.1 Applicability, definitions, and blanket authorizations.
33.2 Contents of application--general information requirements.
33.3 Additional information requirements for applications involving 
          horizontal competitive impacts.
33.4 Additional information requirements for applications involving 
          vertical competitive impacts.
33.5 Proposed accounting entries.
33.6 Form of notice.
33.7 Verification.
33.8 Number of copies.
33.9 Protective order.
33.10 Additional information.
33.11 Commission procedures for the consideration of applications under 
          section 203 of the FPA.

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 
7101-7352; Pub. L. No. 109-58, 119 Stat. 594.

    Source: Order 642, 65 FR 71014, Nov. 28, 2000, unless otherwise 
noted.



Sec. 33.1  Applicability, definitions, and blanket authorizations.

    (a) Applicability. (1) The requirements of this part will apply to 
any public utility seeking authorization under section 203 of the 
Federal Power Act to:
    (i) Sell, lease, or otherwise dispose of the whole of its facilities 
subject to the jurisdiction of the Commission, or any part thereof of a 
value in excess of $10 million;
    (ii) Merge or consolidate, directly or indirectly, such facilities 
or any part thereof with those of any other person, by any means 
whatsoever;
    (iii) Purchase, acquire, or take any security with a value in excess 
of $10 million of any other public utility; or
    (iv) Purchase, lease, or otherwise acquire an existing generation 
facility:
    (A) That has a value in excess of $10 million; and
    (B) That is used in whole or in part for wholesale sales in 
interstate commerce by a public utility.
    (2) The requirements of this part shall also apply to any holding 
company in a holding company system that includes a transmitting utility 
or an electric utility if such holding company seeks to purchase, 
acquire, or take any security with a value in excess of $10 million of, 
or, by any means whatsoever, directly or indirectly, merge or 
consolidate with, a transmitting utility, an electric utility company, 
or a holding company in a holding company system that includes a 
transmitting utility, or an electric

[[Page 231]]

utility company, with a value in excess of $10 million.
    (b) Definitions. For the purposes of this part, as used in section 
203 of the Federal Power Act (16 U.S.C. 824b)
    (1) Existing generation facility means a generation facility that is 
operational at or before the time the section 203 transaction is 
consummated. ``The time the transaction is consummated'' means the point 
in time when the transaction actually closes and control of the facility 
changes hands. ``Operational'' means a generation facility for which 
construction is complete (i.e., it is capable of producing power). The 
Commission will rebuttably presume that section 203(a) applies to the 
transfer of any existing generation facility unless the utility can 
demonstrate with substantial evidence that the generator is used 
exclusively for retail sales.
    (2) Non-utility associate company means any associate company in a 
holding company system other than a public utility or electric utility 
company that has wholesale or retail customers served under cost-based 
regulation.
    (3) Value when applied to:
    (i) Transmission facilities, generation facilities, transmitting 
utilities, electric utility companies, and holding companies, means the 
market value of the facilities or companies for transactions between 
non-affiliated companies; the Commission will rebuttably presume that 
the market value is the transaction price. For transactions between 
affiliated companies, value means original cost undepreciated, as 
defined in the Commission's Uniform System of Accounts prescribed for 
public utilities and licensees in part 101 of this chapter, or original 
book cost, as applicable;
    (ii) Wholesale contracts, means the market value for transactions 
between non-affiliated companies; the Commission will rebuttably presume 
that the market value is the transaction price. For transactions between 
affiliated companies, value means total expected nominal contract 
revenues over the remaining life of the contract; and
    (iii) Securities, means market value for transactions between non-
affiliated companies; the Commission will rebuttably presume that the 
market value is the agreed-upon transaction price. For transactions 
between affiliated companies, value means market value if the securities 
are widely traded, in which case the Commission will rebuttably presume 
that market value is the market price at which the securities are being 
traded at the time the transaction occurs; if the securities are not 
widely traded, market value is determined by:
    (A) Determining the value of the company that is the issuer of the 
equity securities based on the total undepreciated book value of the 
company's assets;
    (B) Determining the fraction of the securities at issue by dividing 
the number of equity securities involved in the transaction by the total 
number of outstanding equity securities for the company; and
    (C) Multiplying the value determined in paragraph (b)(3)(iii)(A) of 
this section by the value determined in paragraph (b)(3)(iii)(B) of this 
section (i.e., the value of the company multiplied by the fraction of 
the equity securities at issue).
    (4) The terms associate company, electric utility company, foreign 
utility company, holding company, and holding company system have the 
meaning given those terms in the Public Utility Holding Company Act of 
2005. The term holding company does not include: A State, any political 
subdivision of a State, or any agency, authority or instrumentality of a 
State or political subdivision of a State; or an electric power 
cooperative.
    (c) Blanket Authorizations. (1) Any holding company in a holding 
company system that includes a transmitting utility or an electric 
utility is granted a blanket authorization under section 203(a)(2) of 
the Federal Power Act to purchase, acquire, or take any security of:
    (i) A transmitting utility or company that owns, operates, or 
controls only facilities used solely for transmission in intrastate 
commerce and/or sales of electric energy in intrastate commerce;
    (ii) A transmitting utility or company that owns, operates, or 
controls

[[Page 232]]

only facilities used solely for local distribution and/or sales of 
electric energy at retail regulated by a state commission; or
    (iii) A transmitting utility or company if the transaction involves 
an internal corporate reorganization that does not present cross-
subsidization issues and does not involve a traditional public utility 
with captive customers.
    (2) Any holding company in a holding company system that includes a 
transmitting utility or an electric utility is granted a blanket 
authorization under section 203(a)(2) of the Federal Power Act to 
purchase, acquire, or take:
    (i) Any non-voting security (that does not convey sufficient veto 
rights over management actions so as to convey control) in a 
transmitting utility, an electric utility company, or a holding company 
in a holding company system that includes a transmitting utility or an 
electric utility company; or
    (ii) Any voting security in a transmitting utility, an electric 
utility company, or a holding company in a holding company system that 
includes a transmitting utility or an electric utility company if, after 
the acquisition, the holding company will own less than 10 percent of 
the outstanding voting securities; or
    (iii) Any security of a subsidiary company within the holding 
company system.
    (3) The blanket authorizations granted under paragraph (c)(2) of 
this section are subject to the conditions that the holding company 
shall not:
    (i) Borrow from any electric utility company subsidiary in 
connection with such acquisition; or
    (ii) Pledge or encumber the assets of any electric utility company 
subsidiary in connection with such acquisition;
    (4) A holding company granted blanket authorizations in section 
(c)(2) shall provide the Commission with the same information, on the 
same basis, that the holding company provides to the Securities and 
Exchange Commission in connection with any securities purchased, 
acquired or taken pursuant to this section.
    (5) Any holding company in a holding company system that includes a 
transmitting utility or an electric utility is granted a blanket 
authorization under section 203(a)(2) of the Federal Power Act to 
acquire a foreign utility company. However, if such holding company or 
any of its affiliates, its subsidiaries, or associate companies within 
the holding company system have captive customers in the United States, 
the authorization is conditioned on the holding company verifying by a 
duly authorized corporate official of the holding company that the 
proposed transaction:
    (i) Will not have any adverse effect on competition, rates, or 
regulation; and
    (ii) Will not result in, at the time of the transaction or in the 
future:
    (A) Any transfer of facilities between a traditional utility 
associate company with wholesale or retail customers served under cost-
based regulation and an associate company;
    (B) Any new issuance of securities by traditional utility associate 
companies with wholesale or retail customers served under cost-based 
regulation for the benefit of an associate company;
    (C) Any new pledge or encumbrance of assets of a traditional utility 
associate company with wholesale or retail customers served under cost-
based regulation for the benefit of an associate company; or
    (D) Any new affiliate contracts between non-utility associate 
companies and traditional utility associate companies with wholesale or 
retail customers served under cost-based regulation, other than non-
power goods and services agreements subject to review under sections 205 
and 206 of the Federal Power Act.
    (iii) A transaction by a holding company subject to the conditions 
in paragraphs (c)(5)(i) and (ii) of this section will be deemed approved 
only upon filing the information required in paragraphs (c)(5)(i) and 
(ii) of this section.

[Order 669, 71 FR 1374, Jan. 6, 2006]



Sec. 33.2  Contents of application--general information requirements.

    Each applicant must include in its application, in the manner and 
form and in the order indicated, the following general information with 
respect to the applicant and each entity

[[Page 233]]

whose jurisdictional facilities or securities are involved:
    (a) The exact name of the applicant and its principal business 
address.
    (b) The name and address of the person authorized to receive notices 
and communications regarding the application, including phone and fax 
numbers, and E-mail addresses.
    (c) A description of the applicant, including:
    (1) All business activities of the applicant, including 
authorizations by charter or regulatory approval (to be identified as 
Exhibit A to the application);
    (2) A list of all energy subsidiaries and energy affiliates, 
percentage ownership interest in such subsidiaries and affiliates, and a 
description of the primary business in which each energy subsidiary and 
affiliate is engaged (to be identified as Exhibit B to the application);
    (3) Organizational charts depicting the applicant's current and 
proposed post-transaction corporate structures (including any pending 
authorized but not implemented changes) indicating all parent companies, 
energy subsidiaries and energy affiliates unless the applicant 
demonstrates that the proposed transaction does not affect the corporate 
structure of any party to the transaction (to be identified as Exhibit C 
to the application);
    (4) A description of all joint ventures, strategic alliances, 
tolling arrangements or other business arrangements, including transfers 
of operational control of transmission facilities to Commission approved 
Regional Transmission Organizations, both current, and planned to occur 
within a year from the date of filing, to which the applicant or its 
parent companies, energy subsidiaries, and energy affiliates is a party, 
unless the applicant demonstrates that the proposed transaction does not 
affect any of its business interests (to be identified as Exhibit D to 
the application);
    (5) The identity of common officers or directors of parties to the 
proposed transaction (to be identified as Exhibit E to the application); 
and
    (6) A description and location of wholesale power sales customers 
and unbundled transmission services customers served by the applicant or 
its parent companies, subsidiaries, affiliates and associate companies 
(to be identified as Exhibit F to the application).
    (d) A description of jurisdictional facilities owned, operated, or 
controlled by the applicant or its parent companies, subsidiaries, 
affiliates, and associate companies (to be identified as Exhibit G to 
the application).
    (e) A narrative description of the proposed transaction for which 
Commission authorization is requested, including:
    (1) The identity of all parties involved in the transaction;
    (2) All jurisdictional facilities and securities associated with or 
affected by the transaction (to be identified as Exhibit H to the 
application);
    (3) The consideration for the transaction; and
    (4) The effect of the transaction on such jurisdictional facilities 
and securities.
    (f) All contracts related to the proposed transaction together with 
copies of all other written instruments entered into or proposed to be 
entered into by the parties to the transaction (to be identified as 
Exhibit I to the application).
    (g) A statement explaining the facts relied upon to demonstrate that 
the proposed transaction is consistent with the public interest. The 
applicant must include a general explanation of the effect of the 
transaction on competition, rates and regulation of the applicant by the 
Commission and state commissions with jurisdiction over any party to the 
transaction. The applicant should also file any other information it 
believes relevant to the Commission's consideration of the transaction. 
The applicant must supplement its application promptly to reflect in its 
analysis material changes that occur after the date a filing is made 
with the Commission, but before final Commission action. Such changes 
must be described and their effect on the analysis explained (to be 
identified as Exhibit J to the application).
    (h) If the proposed transaction involves physical property of any 
party, the applicant must provide a general or key map showing in 
different colors

[[Page 234]]

the properties of each party to the transaction (to be identified as 
Exhibit K to the application).
    (i) If the applicant is required to obtain licenses, orders, or 
other approvals from other regulatory bodies in connection with the 
proposed transaction, the applicant must identify the regulatory bodies 
and indicate the status of other regulatory actions, and provide a copy 
of each order of those regulatory bodies that relates to the proposed 
transaction (to be identified as Exhibit L to the application). If the 
regulatory bodies issue orders pertaining to the proposed transaction 
after the date of filing with the Commission, and before the date of 
final Commission action, the applicant must supplement its Commission 
application promptly with a copy of these orders.
    (j) An explanation, with appropriate evidentiary support for such 
explanation (to be identified as Exhibit M to the application):
    (1) Of how applicants are providing assurance that the proposed 
transaction will not result in cross-subsidization of a non-utility 
associate company or pledge or encumbrance of utility assets for the 
benefit of an associate company; or
    (2) If no such assurance can be provided, an explanation of how such 
cross-subsidization, pledge, or encumbrance will be consistent with the 
public interest.

[Order 642, 65 FR 71014, Nov. 28, 2000, as amended by Order 669, 71 FR 
1375, Jan. 6, 2006]



Sec. 33.3  Additional information requirements for applications 
involving horizontal competitive impacts.

    (a)(1) The applicant must file the horizontal Competitive Analysis 
Screen described in paragraphs (b) through (f) of this section if, as a 
result of the proposed transaction, a single corporate entity obtains 
ownership or control over the generating facilities of previously 
unaffiliated merging entities (for purposes of this section, merging 
entities means any party to the proposed transaction or its parent 
companies, energy subsidiaries or energy affiliates).
    (2) A horizontal Competitive Analysis Screen need not be filed if 
the applicant:
    (i) Affirmatively demonstrates that the merging entities do not 
currently conduct business in the same geographic markets or that the 
extent of the business transactions in the same geographic markets is de 
minimis; and
    (ii) No intervenor has alleged that one of the merging entities is a 
perceived potential competitor in the same geographic market as the 
other.
    (b) All data, assumptions, techniques and conclusions in the 
horizontal Competitive Analysis Screen must be accompanied by 
appropriate documentation and support.
    (1) If the applicant is unable to provide any specific data required 
in this section, it must identify and explain how the data requirement 
was satisfied and the suitability of the substitute data.
    (2) The applicant may provide other analyses for defining relevant 
markets (e.g. the Hypothetical Monopolist Test with or without the 
assumption of price discrimination) in addition to the delivered price 
test under the horizontal Competitive Analysis Screen.
    (3) The applicant may use a computer model to complete one or more 
steps in the horizontal Competitive Analysis Screen. The applicant must 
fully explain, justify and document any model used and provide 
descriptions of model formulation, mathematical specifications, solution 
algorithms, as well as the annotated model code in executable form, and 
specify the software needed to execute the model. The applicant must 
explain and document how inputs were developed, the assumptions 
underlying such inputs and any adjustments made to published data that 
are used as inputs. The applicant must also explain how it tested the 
predictive value of the model, for example, using historical data.
    (c) The horizontal Competitive Analysis Screen must be completed 
using the following steps:
    (1) Define relevant products. Identify and define all wholesale 
electricity products sold by the merging entities during the two years 
prior to the date of the application, including, but not limited to, 
non-firm energy, short-term

[[Page 235]]

capacity (or firm energy), long-term capacity (a contractual commitment 
of more than one year), and ancillary services (specifically spinning 
reserves, non-spinning reserves, and imbalance energy, identified and 
defined separately). Because demand and supply conditions for a product 
can vary substantially over the year, periods corresponding to those 
distinct conditions must be identified by load level, and analyzed as 
separate products.
    (2) Identify destination markets. Identify each wholesale power 
sales customer or set of customers (destination market) affected by the 
proposed transaction. Affected customers are, at a minimum, those 
entities directly interconnected to any of the merging entities and 
entities that have purchased electricity at wholesale from any of the 
merging entities during the two years prior to the date of the 
application. If the applicant does not identify an entity to whom the 
merging entities have sold electricity during the last two years as an 
affected customer, the applicant must provide a full explanation for 
each exclusion.
    (3) Identify potential suppliers. The applicant must identify 
potential suppliers to each destination market using the delivered price 
test described in paragraph (c)(4) of this section. A seller may be 
included in a geographic market to the extent that it can economically 
and physically deliver generation services to the destination market.
    (4) Perform delivered price test. For each destination market, the 
applicant must calculate the amount of relevant product a potential 
supplier could deliver to the destination market from owned or 
controlled capacity at a price, including applicable transmission 
prices, loss factors and ancillary services costs, that is no more than 
five (5) percent above the pre-transaction market clearing price in the 
destination market.
    (i) Supplier's presence. The applicant must measure each potential 
supplier's presence in the destination market in terms of generating 
capacity, using economic capacity and available economic capacity 
measures. Additional adjustments to supplier presence may be presented; 
applicants must support any such adjustment.
    (A) Economic capacity means the amount of generating capacity owned 
or controlled by a potential supplier with variable costs low enough 
that energy from such capacity could be economically delivered to the 
destination market. Prior to applying the delivered price test, the 
generating capacity meeting this definition must be adjusted by 
subtracting capacity committed under long-term firm sales contracts and 
adding capacity acquired under long-term firm purchase contracts (i.e., 
contracts with a remaining commitment of more than one year). The 
capacity associated with any such adjustments must be attributed to the 
party that has authority to decide when generating resources are 
available for operation. Other generating capacity may also be 
attributed to another supplier based on operational control criteria as 
deemed necessary, but the applicant must explain the reasons for doing 
so.
    (B) Available economic capacity means the amount of generating 
capacity meeting the definition of economic capacity less the amount of 
generating capacity needed to serve the potential supplier's native load 
commitments, as described in paragraph (d)(4)(i) of this section.
    (C) Available transmission capacity. Each potential supplier's 
economic capacity and available economic capacity (and any other measure 
used to determine the amount of relevant product that could be delivered 
to a destination market) must be adjusted to reflect available 
transmission capability to deliver each relevant product. The allocation 
to a potential supplier of limited capability of constrained 
transmission paths internal to the merging entities' systems or 
interconnecting the systems with other control areas must recognize both 
the transmission capability not subject to firm reservations by others 
and any firm transmission rights held by the potential supplier that are 
not committed to long-term transactions. For each such instance where 
limited transmission capability must be allocated among potential 
suppliers, the applicant must explain the method used and show the 
results of such allocation.

[[Page 236]]

    (D) Internal interface. If the proposed transaction would cause an 
interface that interconnects the transmission systems of the merging 
entities to become transmission facilities for which the merging 
entities would have a ``native load'' priority under their open access 
transmission tariff (i.e., where the merging entities may reserve 
existing transmission capacity needed for native load growth and network 
transmission customer load growth reasonable forecasted within the 
utility's current planning horizon), all of the unreserved capability of 
the interface must be allocated to the merging entities for purposes of 
the horizontal Competitive Analysis Screen, unless the applicant 
demonstrates one of the following:
    (1) The merging entities would not have adequate economic capacity 
to fully use such unreserved transmission capability;
    (2) The merging entities have committed a portion of the interface 
capability to third parties; or
    (3) Suppliers other than the merging entities have purchased a 
portion of the interface capability.
    (ii) [Reserved]
    (5) Calculate market concentration. The applicant must calculate the 
market share, both pre- and post-merger, for each potential supplier, 
the Herfindahl-Hirschman Index (HHI) statistic for the market, and the 
change in the HHI statistic. (The HHI statistic is a measure of market 
concentration and is a function of the number of firms in a market and 
their respective market shares. The HHI statistic is calculated by 
summing the squares of the individual market shares, expressed as 
percentages, of all potential suppliers to the destination market.) To 
make these calculations, the applicant must use the amounts of 
generating capacity (i.e., economic capacity and available economic 
capacity, and any other relevant measure) determined in paragraph 
(c)(4)(i) of this section, for each product in each destination market.
    (6) Provide historical transaction data. The applicant must provide 
historical trade data and historical transmission data to corroborate 
the results of the horizontal Competitive Analysis Screen. The data must 
cover the two-year period preceding the filing of the application. The 
applicant may adjust the results of the horizontal Competitive Analysis 
Screen, if supported by historical trade data or historical transmission 
service data. Any adjusted results must be shown separately, along with 
an explanation of all adjustments to the results of the horizontal 
Competitive Analysis Screen. The applicant must also provide an 
explanation of any significant differences between results obtained by 
the horizontal Competitive Analysis Screen and trade patterns in the 
last two years.
    (d) In support of the delivered price test required by paragraph 
(c)(4) of this section, the applicant must provide the following data 
and information used in calculating the economic capacity and available 
economic capacity that a potential supplier could deliver to a 
destination market. The transmission data required by paragraphs (d)(7) 
through (d)(9) of this section must be supplied for the merging 
entities' systems. The transmission data must also be supplied for other 
relevant systems, to the extent data are publicly available.
    (1) Generation capacity. For each generating plant or unit owned or 
controlled by each potential supplier, the applicant must provide:
    (i) Supplier name;
    (ii) Name of the plant or unit;
    (iii) Primary and secondary fuel-types;
    (iv) Nameplate capacity;
    (v) Summer and winter total capacity; and
    (vi) Summer and winter capacity adjusted to reflect planned and 
forced outages and other factors, such as fuel supply and environmental 
restrictions.
    (2) Variable cost. For each generating plant or unit owned or 
controlled by each potential supplier, the applicant must also provide 
variable cost components.
    (i) These cost components must include at a minimum:
    (A) Variable operation and maintenance, including both fuel and non-
fuel operation and maintenance; and
    (B) Environmental compliance.
    (ii) To the extent costs described in paragraph (d)(2)(i) of this 
section are allocated among units at the same

[[Page 237]]

plant, allocation methods must be fully described.
    (3) Long-term purchase and sales data. For each sale and purchase of 
capacity, the applicant must provide the following information:
    (i) Purchasing entity name;
    (ii) Selling entity name;
    (iii) Duration of the contract;
    (iv) Remaining contract term and any evergreen provisions;
    (v) Provisions regarding renewal of the contract;
    (vi) Priority or degree of interruptibility;
    (vii) FERC rate schedule number, if applicable;
    (viii) Quantity and price of capacity and/or energy purchased or 
sold under the contract; and
    (ix) Information on provisions of contracts which confer operational 
control over generation resources to the purchaser.
    (4) Native load commitments. (i) Native load commitments are 
commitments to serve wholesale and retail power customers on whose 
behalf the potential supplier, by statute, franchise, regulatory 
requirement, or contract, has undertaken an obligation to construct and 
operate its system to meet their reliable electricity needs.
    (ii) The applicant must provide supplier name and hourly native load 
commitments for the most recent two years. In addition, the applicant 
must provide this information for each load level, if load-
differentiated relevant products are analyzed.
    (iii) If data on native load commitments are not available, the 
applicant must fully explain and justify any estimates of these 
commitments.
    (5) Transmission and ancillary service prices, and loss factors. (i) 
The applicant must use in the horizontal Competitive Analysis Screen the 
maximum rates stated in the transmission providers' tariffs. If 
necessary, those rates should be converted to a dollars-per-megawatt 
hour basis and the conversion method explained.
    (ii) If a regional transmission pricing regime is in effect that 
departs from system-specific transmission rates, the horizontal 
Competitive Analysis Screen must reflect the regional pricing regime.
    (iii) The following data must be provided for each transmission 
system that would be used to deliver energy from each potential supplier 
to a destination market:
    (A) Supplier name;
    (B) Name of transmission system;
    (C) Firm point-to-point rate;
    (D) Non-firm point-to-point rate;
    (E) Scheduling, system control and dispatch rate;
    (F) Reactive power/voltage control rate;
    (G) Transmission loss factor; and
    (H) Estimated cost of supplying energy losses.
    (iv) The applicant may present additional alternative analysis using 
discount prices if the applicant can support it with evidence that 
discounting is and will be available.
    (6) Destination market price. The applicant must provide, for each 
relevant product and destination market, market prices for the most 
recent two years. The applicant may provide suitable proxies for market 
prices if actual market prices are unavailable. Estimated prices or 
price ranges must be supported and the data and approach used to 
estimate the prices must be included with the application. If the 
applicant relies on price ranges in the analysis, such ranges must be 
reconciled with any actual market prices that are supplied in the 
application. Applicants must demonstrate that the results of the 
analysis do not vary significantly in response to small variations in 
actual and/or estimated prices.
    (7) Transmission capability. (i) The applicant must provide 
simultaneous transfer capability data, if available, for each of the 
transmission paths, interfaces, or other facilities used by suppliers to 
deliver to the destination markets on an hourly basis for the most 
recent two years.
    (ii) Transmission capability data must include the following 
information:
    (A) Transmission path, interface, or facility name;
    (B) Total transfer capability (TTC); and
    (C) Firm available transmission capability (ATC).

[[Page 238]]

    (iii) Any estimated transmission capability must be supported and 
the data and approach used to make the estimates must be included with 
the application.
    (8) Transmission constraints. (i) For each existing transmission 
facility that affects supplies to the destination markets and that has 
been constrained during the most recent two years or is expected to be 
constrained within the planning horizon, the applicant must provide the 
following information:
    (A) Name of all paths, interfaces, or facilities affected by the 
constraint;
    (B) Locations of the constraint and all paths, interfaces, or 
facilities affected by the constraint;
    (C) Hours of the year when the transmission constraint is binding; 
and
    (D) The system conditions under which the constraint is binding.
    (ii) The applicant must include information regarding expected 
changes in loadings on transmission facilities due to the proposed 
transaction and the consequent effect on transfer capability.
    (iii) To the extent possible, the applicant must provide system maps 
showing the location of transmission facilities where binding 
constraints have been known or are expected to occur.
    (9) Firm transmission rights (Physical and Financial). For each 
potential supplier to a destination market that holds firm transmission 
rights necessary to directly or indirectly deliver energy to that 
market, or that holds transmission congestion contracts, the applicant 
must provide the following information:
    (i) Supplier name;
    (ii) Name of transmission path interface, or facility;
    (iii) The FERC rate schedule number, if applicable, under which 
transmission service is provided; and
    (iv) A description of the firm transmission rights held (including, 
at a minimum, quantity and remaining time the rights will be held, and 
any relevant time restrictions on transmission use, such as peak or off-
peak rights).
    (10) Summary table of potential suppliers' presence. (i) The 
applicant must provide a summary table with the following information 
for each potential supplier for each destination market:
    (A) Potential supplier name;
    (B) The potential supplier's total amount of economic capacity (not 
subject to transmission constraints); and
    (C) The potential supplier's amount of economic capacity from which 
energy can be delivered to the destination market (after adjusting for 
transmission availability).
    (ii) A similar table must be provided for available economic 
capacity, and for any other generating capacity measure used by the 
applicant.
    (11) Historical trade data. (i) The applicant must provide data 
identifying all of the merging entities' wholesale sales and purchases 
of electric energy for the most recent two years.
    (ii) The applicant must include the following information for each 
transition:
    (A) Type of transaction (such as non-firm, short-term firm, long-
term firm, peak, off-peak, etc.);
    (B) Name of purchaser;
    (C) Name of seller;
    (D) Date, duration and time period of the transaction;
    (E) Quantity of energy purchased or sold;
    (F) Energy charge per unit;
    (G) Megawatt hours purchased or sold;
    (H) Price; and
    (I) The delivery points used to effect the sale or purchase.
    (12) Historical transmission data. The applicant must provide 
information concerning any transmission service denials, interruptions 
and curtailments on the merging entities' systems, for the most recent 
two years, to the extent the information is available from OASIS data, 
including the following information:
    (i) Name of the customer denied, interrupted or curtailed;
    (ii) Type, quantity and duration of service at issue;
    (iii) The date and period of time involved;
    (iv) Reason given for the denial, interruption or curtailment;
    (v) The transmission path; and
    (vi) The reservations or other use anticipated on the affected 
transmission

[[Page 239]]

path at the time of the service denial, curtailment or interruption.
    (e) Mitigation. Any mitigation measures proposed by the applicant 
(including, for example, divestiture or participation in a regional 
transmission organization) which are intended to mitigate the adverse 
effect of the proposed transaction must, to the extent possible, be 
factored into the horizontal Competitive Analysis Screen as an 
additional post-transaction analysis. Any mitigation commitments that 
involve facilities (e.g., in connection with divestiture of generation) 
must identify the facilities affected by the commitment, along with a 
timetable for implementing the commitments.
    (f) Additional factors. If the applicant does not propose 
mitigation, the applicant must address:
    (1) The potential adverse competitive effects of the transaction.
    (2) The potential for entry in the market and the role that entry 
could play in mitigating adverse competitive effects of the transaction;
    (3) The efficiency gains that reasonably could not be achieved by 
other means; and
    (4) Whether, but for the transaction, one or more of the merging 
entities would be likely to fail, causing its assets to exit the market.

[65 FR 71014, Nov. 28, 2000; 65 FR 76005, Dec. 5, 2000]



Sec. 33.4  Additional information requirements for applications 
involving vertical competitive impacts.

    (a)(1) The applicant must file the vertical Competitive Analysis 
described in paragraphs (b) through (e) of this section if, as a result 
of the proposed transaction, a single corporate entity has ownership or 
control over one or more merging entities that provides inputs to 
electricity products and one or more merging entities that provides 
electric generation products (for purposes of this section, merging 
entities means any party to the proposed transaction or its parent 
companies, energy subsidiaries or energy affiliates).
    (2) A vertical Competitive Analysis need not be filed if the 
applicant can affirmatively demonstrate that:
    (i) The merging entities currently do not provide inputs to 
electricity products (i.e., upstream relevant products) and electricity 
products (i.e., downstream relevant products) in the same geographic 
markets or that the extent of the business transactions in the same 
geographic market is de minimis; and no intervenor has alleged that one 
of the merging entities is a perceived potential competitor in the same 
geographic market as the other.
    (ii) The extent of the upstream relevant products currently provided 
by the merging entities is used to produce a de minimis amount of the 
relevant downstream products in the relevant destination markets, as 
defined in paragraph (c)(2) of Sec. 33.3.
    (b) All data, assumptions, techniques and conclusions in the 
vertical Competitive Analysis must be accompanied by appropriate 
documentation and support.
    (c) The vertical Competitive Analysis must be completed using the 
following steps:
    (1) Define relevant products--(i) Downstream relevant products. The 
applicant must identify and define as downstream relevant products all 
products sold by merging entities in relevant downstream geographic 
markets, as outlined in paragraph (c)(1) of Sec. 33.3.
    (ii) Upstream relevant products. The applicant must identify and 
define as upstream relevant products all inputs to electricity products 
provided by upstream merging entities in the most recent two years.
    (2) Define geographic markets--(i) Downstream geographic markets. 
The applicant must identify all geographic markets in which it or any 
merging entities sell the downstream relevant products, as outlined in 
paragraphs (c)(2) and (c)(3) of Sec. 33.3.
    (ii) Upstream geographic markets The applicant must identify all 
geographic markets in which it or any merging entities provide the 
upstream relevant products.
    (3) Analyze competitive conditions--(i) Downstream geographic 
market. (A) The applicant must compute market share for each supplier in 
each relevant downstream geographic market and the HHI statistic for the 
downstream market. The applicant must provide a

[[Page 240]]

summary table with the following information for each relevant 
downstream geographic market:
    (1) The economic capacity of each downstream supplier (specify the 
amount of such capacity served by each upstream supplier);
    (2) The total amount of economic capacity in the downstream market 
served by each upstream supplier;
    (3) The market share of economic capacity served by each upstream 
supplier; and
    (4) The HHI statistic for the downstream market.
    (B) A similar table must be provided for available economic capacity 
and for any other measure used by the applicant.
    (ii) Upstream geographic market. The applicant must provide a 
summary table with the following information for each upstream relevant 
product in each relevant upstream geographic market:
    (A) The amount of relevant product provided by each upstream 
supplier;
    (B) The total amount of relevant product in the market;
    (C) The market share of each upstream supplier; and
    (D) The HHI statistic for the upstream market.
    (d) Mitigation. Any mitigation measures proposed by the applicant 
(including, for example, divestiture or participation in an Regional 
Transmission Organization) which are intended to mitigate the adverse 
effect of the proposed transaction must, to the extent possible, be 
factored into the vertical competitive analysis as an additional post-
transaction analysis. Any mitigation measures that involve facilities 
must identify the facilities affected by the commitment.
    (e) Additional factors. (1) If the applicant does not propose 
mitigation measures, the applicant must address:
    (i) The potential adverse competitive effects of the transaction.
    (ii) The potential for entry in the market and the role that entry 
could play in mitigating adverse competitive effects of the transaction;
    (iii) The efficiency gains that reasonably could not be achieved by 
other means; and
    (iv) Whether, but for the proposed transaction, one or more of the 
parties to the transaction would be likely to fail, causing its assets 
to exit the market.
    (2) The applicant must address each of the additional factors in the 
context of whether the proposed transaction is likely to present 
concerns about raising rivals' costs or anticompetitive coordination.



Sec. 33.5  Proposed accounting entries.

    If the applicant is required to maintain its books of account in 
accordance with the Commission's Uniform System of Accounts in part 101 
of this chapter, the applicant must present proposed accounting entries 
showing the effect of the transaction with sufficient detail to indicate 
the effects on all account balances (including amounts transferred on an 
interim basis), the effect on the income statement, and the effects on 
other relevant financial statements. The applicant must also explain how 
the amount of each entry was determined.



Sec. 33.6  Form of Notice.

    The applicant must include a form of notice of the application 
suitable for publication in the Federal Register in accordance with the 
specifications in Sec. 385.203(d) of this chapter. The form of notice 
shall be on electronic media as specified by the Secretary.

[Order 647, 69 FR 32438, June 10, 2004]



Sec. 33.7  Verification.

    The original application must be signed by a person or persons 
having authority with respect thereto and having knowledge of the 
matters therein set forth, and must be verified under oath.



Sec. 33.8  Number of copies.

    An original and eight copies of the application under this part must 
be submitted. If the applicant submits a public and a non-public version 
(containing information filed under a request for privileged treatment), 
the original and at least three of the eight copies must be of the non-
public version of the filing, pursuant to Sec. 388.112(b)(ii). If the 
applicant must

[[Page 241]]

submit information specified in paragraphs (b), (c), (d), (e) and (f) of 
Sec. 33.3 or paragraphs (b), (c), (d) and (e) of Sec. 33.4, the 
applicant must submit all such information in electronic format (e.g., 
on computer diskette or on CD) along with a printed description and 
summary. The electronic version must be submitted in accordance with 
Sec. 385.2011 of the Commission's regulations. The printed portion of 
the applicant's submission must include documentation for the electronic 
submission, including all file names and a summary of the data contained 
in each file. Each column (or data item) in each separate data table or 
chart must be clearly labeled in accordance with the requirements of 
Sec. 33.3 and Sec. 33.4. Any units of measurement associated with 
numeric entries must also be included.



Sec. 33.9  Protective order.

    If the applicant seeks to protect any portion of the application, or 
any attachment thereto, from public disclosure pursuant to Sec. 388.112 
of this chapter, the applicant must include with its request for 
privileged treatment a proposed protective order under which the parties 
to the proceeding will be able to review any of the data, information, 
analysis or other documentation relied upon by the applicant for which 
privileged treatment is sought.



Sec. 33.10  Additional information.

    The Director of the Office of Markets, Tariffs and Rates, or his 
designee, may, by letter, require the applicant to submit additional 
information as is needed for analysis of an application filed under this 
part.



Sec. 33.11  Commission procedures for the consideration of applications 
under section 203 of the FPA.

    (a) The Commission will act on a completed application for approval 
of a transaction (i.e., one that is consistent with the requirements of 
this part) not later than 180 days after the completed application is 
filed. If the Commission does not act within 180 days, such application 
shall be deemed granted unless the Commission finds, based on good 
cause, that further consideration is required to determine whether the 
proposed transaction meets the standards of section 203(a)(4) of the FPA 
and issues, by the 180th day, an order tolling the time for acting on 
the application for not more than 180 days, at the end of which 
additional period the Commission shall grant or deny the application.
    (b) The Commission will provide for the expeditious consideration of 
completed applications for the approval of transactions that are not 
contested, do not involve mergers, and are consistent with Commission 
precedent. The transactions that would generally warrant expedited 
review include:
    (1) A disposition of only transmission facilities, particularly 
those that both before and after the transaction remain under the 
functional control of a Commission-approved regional transmission 
organization or independent system operator; and
    (2) Transactions that do not require an Appendix A analysis.\1\
---------------------------------------------------------------------------

    \1\ Inquiry Concerning the Commission's Merger Policy Under the 
Federal Power Act: Policy Statement, Order No. 592, 61 FR 68,595 (Dec. 
30, 1996), FERC Stats. & Regs. ] 31,044 (1996), reconsideration denied, 
Order No. 592-A, 62 FR 33,340 (June 19, 1997), 79 FERC ] 61,321 (1997) 
(Merger Policy Statement).

[Order 669, 71 FR 1375, Jan. 6, 2006]



PART 34_APPLICATION FOR AUTHORIZATION OF THE ISSUANCE OF SECURITIES OR 
THE ASSUMPTION OF LIABILITIES--Table of Contents

Sec.
34.1 Applicability; definitions; exemptions in case of certain State 
          regulation, certain short-term issuances and certain 
          qualifying facilities.
34.2 Placement of securities.
34.3 Contents of application for issuance of securities.
34.4 Required exhibits.
34.5 Additional information.
34.6 Form and style.
34.7 Number of copies to be filed.
34.8 Verification.
34.9 Filing fee.
34.10 Reports.

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 
7101-7352.

    Source: Order 182, 46 FR 50514, Oct. 14, 1981, unless otherwise 
noted.

    Cross References: For rules of practice and procedure, see part 385 
of this chapter.

[[Page 242]]

For Approved Forms, Federal Power Act, see part 131 of this chapter.

    OMB Reference: ``FERC Filing No. 523'' is the identification number 
used by the Commission and the Office of Management and Budget to 
reference the filing requirements in part 34.



Sec. 34.1  Applicability; definitions; exemptions in case of certain 
State regulation, certain short-term issuances and certain qualifying 
facilities.

    (a) Applicability. This part applies to applications for 
authorization from the Commission to issue securities or assume an 
obligation or liability which are filed by:
    (1) Licensees and other entities pursuant to sections 19 and 20 of 
the Federal Power Act (41 Stat. 1073, 16 U.S.C. 812, 813) and part 20 of 
the Commission's regulations; and
    (2) Public utilities pursuant to section 204 of the Federal Power 
Act (49 Stat. 850, 16 U.S.C. 824c).
    (b) Definitions. For the purpose of this part:
    (1) The term utility means a licensee, public utility or other 
entity seeking authorization under sections 19, 20 or 204 of the Federal 
Power Act;
    (2) The term securities includes any note, stock, treasury stock, 
bond, or debenture or other evidence of interest in or indebtedness of a 
utility;
    (3) The term issuance or placement of securities means issuance or 
placement of securities, or assumption of obligation or liability; and
    (4) The term State means a State admitted to the Union, the District 
of Columbia, and any organized Territory of the United States.
    (c) Exemptions. (1) If an agency of the State in which the utility 
is organized and operating approves or authorizes, in writing, the 
issuance of securities prior to their issuance, the utility is exempt 
from the provisions of sections 19, 20 and 204 of the Federal Power Act 
and the regulations under this part, with respect to such securities.
    (2) This part does not apply to the issue or renewal of, or 
assumption of liability on, a note or draft maturing one year or less 
after the date of such issue, renewal, or assumption of liability, if 
the aggregate of such note or draft and all other then-outstanding notes 
and drafts of a maturity of one year or less on which the utility is 
primarily or secondarily liable, is not more than 5 percent of the par 
value of the other then-outstanding securities of the utility as of the 
date of issue or renewal of, or assumption of liability on, the note or 
draft. In the case of securities having no par value, the par value for 
the purpose of this part is the fair market value, as of the date of 
issue or renewal of, or assumption of liability on, the note or draft.
    (3) For certain qualifying facilities. Any cogeneration or small 
power production facility which is exempt from sections 19, 20 and 204 
of the Federal Power Act pursuant to Sec. 292.601 of this chapter shall 
be exempt from the provisions of this part.

[Order 182, 46 FR 50514, Oct. 14, 1981, as amended at 48 FR 9851, Mar. 
9, 1983; Order 575, 60 FR 4852, Jan. 25, 1995]



Sec. 34.2  Placement of securities.

    (a) Method of issuance. Upon obtaining authorization from the 
Commission, utilities may issue securities by either a competitive bid 
or negotiated placement, provided that:
    (1) Competitive bids are obtained from at least two prospective 
dealers, purchasers or underwriters; or
    (2) Negotiated offers are obtained from at least three prospective 
dealers, purchasers or underwriters; and
    (3) The utility:
    (i) Accepts the bid or offer that provides the utility with the 
lowest cost of money for securities with fixed or variable interest or 
dividend rates, or
    (ii) Accepts the bid or offer that provides the utility with the 
greatest net proceeds for securities with no specified interest or 
dividend rates, or
    (iii) The utility has filed for and obtained authorization from the 
Commission to accept bids or offers other than those specified in 
paragraphs (a)(3)(i) or (a)(3)(ii) of this section.
    (b) Exemptions. The provisions of paragraph (a) of this section do 
not apply where:
    (1) The securities are to be issued to existing holders of 
securities on a pro rata basis;
    (2) The utility receives an unsolicited offer to purchase the 
securities;

[[Page 243]]

    (3) The securities have a maturity of one year or less; or
    (4) The securities are to be issued in support of or to guarantee 
securities issued by governmental or quasi-governmental bodies for the 
benefit of the utility.
    (c) Prohibitions. No securities will be placed with any person who:
    (1) Has performed any service or accepted any fee or compensation 
with respect to the proposed issuance of securities prior to submission 
of bids or entry into negotiations for placement of such securities; or
    (2) Would be in violation of section 305(a) of the Federal Power Act 
with respect to the issuance.

[Order 575, 60 FR 4853, Jan. 25, 1995]



Sec. 34.3  Contents of application for issuance of securities.

    Each application to the Commission for authority to issue securities 
shall contain the information specified in this section. In lieu of 
filing the information required in paragraphs (e), (i) and (j) of this 
section, a specific reference may be made to the portion of the 
registration statement filed under Sec. 34.4(f), which includes the 
information required in these paragraphs.
    (a) The official name of the applicant and address of its principal 
business office.
    (b) The State in which the utility is incorporated, the date of 
incorporation, and each State in which it operates.
    (c) The name, address and telephone number of a person within the 
utility authorized to receive notices and communications with respect to 
the application.
    (d) The date by which Commission action is requested.
    (e) A full description of the securities proposed to be issued, 
including:
    (1) Type and nature of securities;
    (2) Amount of securities (par or stated value and number of units);
    (3) Interest or dividend rate, if any;
    (4) Dates of issuance and maturity;
    (5) Institutional rating of the securities--or if the securities are 
not rated, an explanation as to why they are not rated, and if the 
securities will be rated, an estimate of the rating; and
    (6) Any stock exchange on which the securities will be listed.
    (f) The purpose for which the securities for which application is 
made are to be issued:
    (1) If the purpose of such issuance is the construction, completion, 
extension, or improvement of facilities, describe in reasonable detail 
the construction program for which the funds were or are to be used.
    (2) If the purpose for such issuance is for the refunding of 
obligations, describe in detail the obligations to be refunded, 
including the character, principal amounts, applicable discount or 
premium, dates of issuance and maturity, and all other material facts 
concerning such obligations.
    (3) If the purpose for such issuance is for other than construction 
or refunding, explain such other purpose(s) in detail.
    (g) A statement as to whether or not any application with respect to 
the transaction or any part thereof is required to be filed with any 
State regulatory body.
    (h) A detailed statement of the facts relied upon by the applicant 
to show that the issuance:
    (1) Is for some lawful object, within the corporate purposes of the 
applicant and compatible with the public interest, is necessary or 
appropriate for or consistent with the proper performances by the 
applicant of service as a public utility and will not impair its ability 
to perform that service, and
    (2) Is reasonably necessary or appropriate for such purposes.
    (i) A detailed statement of the bond indenture(s) or other 
limitations on interest and dividend coverage, and the effects of such 
limitations on the issuance of additional debt or equity securities.
    (j) A brief summary of any rate changes which were made effective 
during the period for which financial statements are submitted or which 
became or will become effective after the period for which statements 
are submitted.
    (k) The applicant must include a form of notice of the application 
suitable for publication in the Federal Register in accordance with the 
specifications in Sec. 385.203(d) of this chapter.

[[Page 244]]

The form of notice shall be on electronic media as specified by the 
Secretary.

[Order 182, 46 FR 50514, Oct. 14, 1981, as amended by Order 390, 49 FR 
32505, Aug. 14, 1984; Order 575, 60 FR 4853, Jan. 25, 1995; Order 593, 
62 FR 1283, Jan. 9, 1997; Order 647, 69 FR 32438, June 10, 2004]



Sec. 34.4  Required exhibits.

    (a) Exhibit A. The applicant must file the statement of corporate 
purposes from its articles of incorporation.
    (b) Exhibit B. A copy of all resolutions of the applicant's 
directors authorizing the issuance of securities for which the 
application is made; and copies of the resolution of the stockholders 
approving such issuance if approval of the stockholders has been 
obtained.
    (c) Exhibit C. The Balance Sheet and attached notes for the most 
recent 12-month period for which financial statements have been 
published, provided that the 12-month period ended no more than 4 months 
prior to the date of the filing of the application, on both an actual 
basis and a pro forma basis in the form prescribed for the ``Comparative 
Balance Sheet'' of FERC Form No. 1, ``Annual Report for major electric 
utilities, licensees and others.'' Each adjustment made in determining 
the pro forma basis must be clearly identified.
    (d) Exhibit D. The Income Statement and attached notes for the most 
recent 12-month period for which financial statements have been 
published, provided that the 12-month period ended no more than 4 months 
prior to the date of the filing of the application, on both an actual 
basis and a pro forma basis in the form prescribed for the ``Statement 
of Income for the Year'' of FERC Form No. 1, ``Annual Report for major 
electric utilities, licensees and others.'' Each adjustment made in 
determining the pro forma basis must be clearly identified.
    (e) Exhibit E. A Statement of Cash Flows and Computation of Interest 
Coverage on an actual basis and a pro forma basis for the most recent 
12-month period for which financial statements have been published, 
provided that the 12-month period ended no more than 4 months prior to 
the date of the filing of the application. The Statement of Cash Flows 
must be in the form prescribed for the ``Statement of Cash Flows'' of 
the FERC Form No. 1, Annual Report for major electric utilities, 
licensees and others,'' followed by a computation of interest coverage, 
in the form of the following worksheet:

------------------------------------------------------------------------
                                                                  OMB
                                                                control
                                                     Actual    No. 1902-
  Federal Energy Regulatory Commission worksheet    for the    0043, pro
       for computation of interest coverage           year     forma for
                                                   ended mm-   the year
                                                     dd-yy     ended mm-
                                                                 dd-yy
------------------------------------------------------------------------
Net income
Add: Interest on Long-Term Debt, Interest on
 Short-Term Debt, Other Interest Expense, Total
 Interest Expense
  Federal and State Income Taxes
Income Before Interest and Income Taxes
 
         Computation of Interest Coverage
 
Income Before Interest and Income Taxes / Total
 Interest Expense = Interest Coverage
------------------------------------------------------------------------


    (f) Exhibit F. A copy of registration statement and exhibits which 
are filed with the Securities and Exchange Commission for the proposed 
security issuance.

[Order 182, 46 FR 50514, Oct. 14, 1981, as amended by Order 390, 49 FR 
32505, Aug. 14, 1984; Order 575, 60 FR 4853, Jan. 25, 1995; 60 FR 27882, 
May 26, 1995]



Sec. 34.5  Additional information.

    The Commission may, in its discretion, require the filing of 
additional information which appears necessary to reach a determination 
on any particular application.



Sec. 34.6  Form and style.

    Each application pursuant to this part 34 shall conform to the 
requirements of subpart T of part 385 of this chapter.

[Order 182, 46 FR 50514, Oct. 14, 1981, as amended by Order 225, 47 FR 
19056, May 3, 1982]



Sec. 34.7  Number of copies to be filed.

    Each applicant shall submit to this Commission an original and four 
copies

[[Page 245]]

of each application pursuant to this part 34.

    Effective Date Note: At 70 FR 35375, June 20, 2005, Sec. 34.7 was 
revised, effective at the time of the next e-filing release during the 
Commission's next fiscal year. For the convenience of the user, the 
revised text follows:

Sec. 34.7  Filing requirements.

    Each applicant shall submit to this Commission an electronic version 
of each application pursuant to this part 34. The electronic version 
shall be considered a ``qualified document'' in accordance with Sec. 
385.2003(c)(1) and (2) of this chapter. As a qualified document, no 
paper copy version of the filing is required unless there is a request 
for privileged or protected treatment or the document is combined with 
another document as provided in Sec. 385.2003(c)(3) or (4). Submit each 
application in electronic format in accordance with Sec. 385.2003.



Sec. 34.8  Verification.

    The original application shall be signed by an authorized 
representative of the applicant, who has knowledge of the matters set 
forth therein, and it shall be verified under oath.

    Effective Date Note: At 70 FR 35375, June 20, 2005, Sec. 34.8 was 
revised, effective at the time of the next e-filing release during the 
Commission's next fiscal year. For the convenience of the user, the 
revised text follows:

Sec. 34.8  Verification.

    An application verification shall be signed under oath by an 
authorized representative of the applicant, who has knowledge of the 
matters set forth therein and as provided in Sec. 385.2005 of this 
chapter, and retained at the applicant's business location until the 
relevant proceeding has been concluded.



Sec. 34.9  Filing fee.

    Each application shall be accompanied by a fee as prescribed in part 
381 of this chapter.

[Order 182, 46 FR 50514, Oct. 14, 1981, by Order 435, amended at 50 FR 
40357, Oct. 3, 1985]

    Effective Date Note: At 70 FR 35375, June 20, 2005, Sec. 34.9 was 
revised, effective at the time of the next e-filing release during the 
Commission's next fiscal year. For the convenience of the user, the 
revised text follows:

Sec. 34.9  Filing fee.

    Each application shall be accompanied by the submission of a filing 
fee if one is prescribed in part 381 of this chapter.



Sec. 34.10  Reports.

    The applicant must file reports under Sec. 131.43 and Sec. 131.50 
of this chapter no later than 30 days after the sale or placement of 
long-term debt or equity securities or the entry into guarantees or 
assumptions of liabilities pursuant to authority granted under this 
part.

[Order 575, 60 FR 4853, Jan. 25, 1995]



PART 35_FILING OF RATE SCHEDULES AND TARIFFS--Table of Contents

                          Subpart A_Application

Sec.
35.0 Filing fees.
35.1 Application; obligation to file rate schedules and tariffs.
35.2 Definitions.
35.3 Notice requirements.
35.4 Permission to become effective is not approval.
35.5 Rejection of material submitted for filing.
35.6 Submission for staff suggestions.
35.7 Number of copies to be supplied.
35.8 Protests and interventions by interested parties and form for 
          Federal Register notice.
35.9 Identification and numbering of tariffs and rate schedules 
          (including service agreements).
35.10 Form and style of rate schedules.
35.10a Forms of service agreements.
35.10b Electric Quarterly Reports.
35.11 Waiver of notice requirement.

            Subpart B_Documents To Be Submitted With a Filing

35.12 Filing of initial rate schedules.
35.13 Filing of changes in rate schedules.

                   Subpart C_Other Filing Requirements

35.14 Fuel cost and purchased economic power adjustment clauses.
35.15 Notices of cancellation or termination.
35.16 Notice of succession.
35.17 Changes relating to suspended rate schedules or parts thereof.
35.18 Asset retirement obligations.
35.19 Submission of information by reference.
35.19a Refund requirements under suspension orders.
35.21 Applicability to licensees and others subject to section 19 or 20 
          of the Federal Power Act.
35.22 Limits for percentage adders in rates for transmission services; 
          revision of rate schedules.

[[Page 246]]

35.23 General provisions.
35.24 Tax normalization for public utilities.
35.25 Construction work in progress.
35.26 Recovery of stranded costs by public utilities and transmitting 
          utilities.
35.27 Power sales at market-based rates.
35.28 Non-discriminatory open access transmission tariff.
35.29 Treatment of special assessments levied under the Atomic Energy 
          Act of 1954, as amended by Title XI of the Energy Policy Act 
          of 1992.

Subpart D_Procedures and Requirements for Public Utility Sales of Power 
      to Bonneville Power Administration Under Northwest Power Act

35.30 General provisions.
35.31 Commission review.

  Subpart E_Regulations Governing Nuclear Plant Decommissioning Trust 
                                  Funds

35.32 General provisions.
35.33 Specific provisions.

 Subpart F_Procedures and Requirements Regarding Regional Transmission 
                              Organizations

35.34 Regional Transmission Organizations.

   Subpart H_Wholesale Sales of Electric Energy at Market-Based Rates

35.36 Generally.
35.37 Market behavior rules.

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 
7101-7352.

    Source: Order 271, 28 FR 10573, Oct. 2, 1963, unless otherwise 
noted.



                          Subpart A_Application



Sec. 35.0  Filing fees.

    Every filing made under this part shall be accompanied by the fee 
described in part 381 of this chapter.

[Order 427, 36 FR 5597, Mar. 25, 1971, as amended by Order 435, 50 FR 
40357, Oct. 3, 1985]



Sec. 35.1  Application; obligation to file rate schedules and tariffs.

    (a) Every public utility shall file with the Commission and post, in 
conformity with the requirements of this part, full and complete rate 
schedules, as defined in Sec. 35.2(b), clearly and specifically setting 
forth all rates and charges for any transmission or sale of electric 
energy subject to the jurisdiction of this Commission, the 
classifications, practices, rules and regulations affecting such rates 
and charges and all contracts which in any manner affect or relate to 
such rates, charges, classifications, services, rules, regulations or 
practices, as required by section 205(c) of the Federal Power Act (49 
Stat. 851; 16 U.S.C. 824d(c)). Where two or more public utilities are 
parties to the same rate schedule, each public utility transmitting or 
selling electric energy subject to the jurisdiction of this Commission 
shall post and file such rate schedule, or the rate schedule may be 
filed by one such public utility and all other parties having an 
obligation to file may post and file a certificate of concurrence on the 
form indicated in Sec. 131.52 of this chapter: Provided, however, In 
cases where two or more public utilities are required to file rate 
schedules or certificates of concurrence such public utilities may 
authorize a designated representative to file upon behalf of all parties 
if upon written request such parties have been granted Commission 
authorization therefor.
    (b) A rate schedule applicable to a transmission or sale of electric 
energy, other than that which proposes to supersede, supplement, cancel 
or otherwise change the provisions of a rate schedule required to be on 
file with this Commission, shall be filed as an initial rate in 
accordance with Sec. 35.12.
    (c) A rate schedule applicable to a transmission or sale of electric 
energy which proposes to supersede, supplement, cancel or otherwise 
change any of the provisions of a rate schedule required to be on file 
with this Commission (such as providing for other or additional rates, 
charges, classifications or services, or rules, regulations, practices 
or contracts for a particular customer or customers) shall be filed as a 
change in rate in accordance with Sec. 35.13, except Notices of 
Cancellation or Termination which shall be filed as a change in 
accordance with Sec. 35.15.
    (d)(1) The provisions of this paragraph (d) shall apply to rate 
schedules tendered for filing on or after August 1, 1976, which are 
applicable to th