[Title 18 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 1999 Edition]
[From the U.S. Government Printing Office]
18
Conservation of Power and Water Resources
[[Page i]]
PARTS 1 TO 399
Revised as of April 1, 1999
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF APRIL 1, 1999
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1999
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
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........ 959
Table of CFR Titles and Chapters........................ 961
Alphabetical List of Agencies Appearing in the CFR...... 979
List of CFR Sections Affected........................... 989
[[Page iv]]
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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.
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[[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, 1999), 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
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Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
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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, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, 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) 523-4534.
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), and Acts Requiring Publication
in the Federal Register (Table II). 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.
[[Page vii]]
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of 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
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For inquiries concerning CFR reference assistance, call 202-523-5227
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site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 1999.
[[Page ix]]
THIS TITLE
Title 18--Conservation of Power and Water Resources is composed of
four 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, 1999.
The OMB control numbers for the Federal Energy Regulatory
Commission, Department of Energy, appear in Sec. 389.101 of chapter I.
For this volume, Ruth Reedy Green was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
(This book contains parts 1 to 399)
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Part
chapter i--Federal Energy Regulatory Commission, Department
of Energy................................................. 1
Cross References: Applications and entries conflicting with lands
reserved or classified as power sites, or covered by power
applications: See Public Lands, Interior, 43 CFR subpart 2320.
Interstate Commerce Commission: See Transportation, 49 CFR chapter X.
Irrigation projects; electrification, Bureau of Indian Affairs,
Department of the Interior: See Indians, 25 CFR part 175
Regulations of the Bureau of Land Management relating to rights-of-way
for power, telephone, and telegraph purposes: See Public Lands,
Interior, 43 CFR Group 2800.
Rights-of-way over Indian lands: See Indians, 25 CFR parts 169, 170,
and 265.
Securities and Exchange Commission: See Commodity and Securities
Exchanges, 17 CFR chapter II.
Withdrawal of public lands: See Public Lands, Interior, 43 CFR Group
2300.
[[Page 3]]
CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
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SUBCHAPTER A--GENERAL RULES
Part Page
1 Rules of general applicability.............. 9
1b Rules relating to investigations............ 9
2 General policy and interpretations.......... 13
3 Organization; operation; information and
requests................................ 44
3a National security information............... 44
3b Collection, maintenance, use, and
dissemination of records of identifiable
personal information.................... 57
3c Standards of conduct........................ 69
SUBCHAPTER B--REGULATIONS UNDER THE FEDERAL POWER ACT
4 Licenses, permits, exemptions, and
determination of project costs.......... 70
6 Surrender or termination of license......... 142
8 Recreational opportunities and development
at licensed projects.................... 143
9 Transfer of license or lease of project
property................................ 144
11 Annual charges under Part I of the Federal
Power Act............................... 145
12 Safety of water power projects and project
works................................... 166
16 Procedures relating to takeover and
relicensing of licensed projects........ 179
20 Authorization of the issuance of securities
by licensees and companies subject to
sections 19 and 20 of the Federal Power
Act..................................... 201
24 Declaration of intention.................... 201
25 Application for vacation of withdrawal and
for determination permitting restoration
to entry................................ 202
32 Interconnection of facilities............... 204
33 Application for sale, lease, or other
disposition, merger or consolidation of
facilities, or for purchase or
acquisition of securities of a public
utility................................. 205
[[Page 4]]
34 Application for authorization of the
issuance of securities or the assumption
of liabilities.......................... 208
35 Filing of rate schedules.................... 211
36 Rules concerning applications for
transmission services under section 211
of the Federal Power Act................ 260
37 Open access same-time information systems
and standards of conduct for public
utilities............................... 261
41 Accounts, records, and memoranda............ 268
45 Application for authority to hold
interlocking positions.................. 270
46 Public utility filing requirements and
filing requirements for persons holding
interlocking positions.................. 275
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..................................... 279
104 Note [Reserved]
125 Preservation of records of public utilities
and licensees........................... 399
SUBCHAPTER D--APPROVED FORMS, FEDERAL POWER ACT AND PUBLIC UTILITY
REGULATORY POLICIES ACT OF 1978
131 Forms....................................... 411
141 Statements and reports (schedules).......... 420
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.... 424
153 Applications for authorization to construct,
operate, or modify facilities used for
the export or import of natural gas..... 425
154 Rate schedules and tariffs.................. 429
156 Applications for orders under section 7(a)
of the Natural Gas Act.................. 460
157 Applications for certificates of public
convenience and necessity and for orders
permitting and approving abandonment
under section 7 of the Natural Gas Act.. 466
158 Accounts, records, and memoranda............ 502
[[Page 5]]
161 Standards of conduct for interstate
pipelines with marketing affiliates..... 503
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....... 506
204 Note [Reserved]
225 Preservation of records of natural gas
companies............................... 647
SUBCHAPTER G--APPROVED FORMS, NATURAL GAS ACT
250 Forms....................................... 659
260 Statements and reports (schedules).......... 662
SUBCHAPTER H--FIRST SALE REGULATION UNDER THE NATURAL GAS POLICY ACT OF
1978 [RESERVED]
SUBCHAPTER I--OTHER REGULATIONS UNDER THE NATURAL GAS POLICY ACT OF 1978
AND RELATED AUTHORITIES
280 General provisions applicable to Subchapter
I....................................... 667
281 Natural gas curtailment under the Natural
Gas Policy Act of 1978.................. 667
284 Certain sales and transportation of natural
gas under the Natural Gas Policy Act of
1978 and related authorities............ 680
286 Administrative procedures................... 703
SUBCHAPTER J--REGULATIONS UNDER THE POWERPLANT AND INDUSTRIAL FUEL USE
ACT OF 1978
287 Rules generally applicable to powerplant and
industrial fuel use..................... 705
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......... 706
292 Regulations under sections 201 and 210 of
the Public Utility Regulatory Policies
Act of 1978 with regard to small power
production and cogeneration............. 707
[[Page 6]]
294 Procedures for shortages of electric energy
and capacity under section 206 of the
Public Utility Regulatory Policies Act
of 1978................................. 725
SUBCHAPTER L--REGULATIONS FOR FEDERAL POWER MARKETING ADMINISTRATIONS
300 Confirmation and approval of the rates of
Federal power marketing administrations. 727
301 Average system cost methodology for sales
from utilities to Bonneville Power
Administration under Northwest Power Act 733
SUBCHAPTER P--REGULATIONS UNDER THE INTERSTATE COMMERCE ACT
340 Rate schedules and tariffs.................. 744
341 Oil pipeline tariffs: Oil pipeline companies
subject to section 6 of the Interstate
Commerce Act............................ 745
342 Oil pipeline rate methodologies and
procedures.............................. 753
343 Procedural rules applicable to oil pipeline
proceedings............................. 755
344 Filing quotations for U.S. Government
shipments at reduced rates.............. 756
346 Oil pipeline cost-of-service filing
requirements............................ 757
347 Oil pipeline depreciation studies........... 758
348 Oil pipeline applications for market power
determinations.......................... 760
SUBCHAPTER Q--ACCOUNTS UNDER THE INTERSTATE COMMERCE ACT
351 Financial statements released by carriers... 763
352 Uniform systems of accounts prescribed for
oil pipeline companies subject to the
provisions of the Interstate Commerce
Act..................................... 763
SUBCHAPTER R--APPROVED FORMS, INTERSTATE COMMERCE ACT
356 Preservation of records..................... 800
[[Page 7]]
357 Annual special or periodic reports: Carriers
subject to part I of the Interstate
Commerce Act............................ 805
SUBCHAPTER S--VALUATION, INTERSTATE COMMERCE ACT
362 Uniform system of records and reports of
property changes........................ 806
SUBCHAPTER T--REGULATIONS UNDER SECTION 32 OF THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935
365 Filing requirements and ministerial
procedures for persons seeking exempt
wholesale generator status.............. 822
SUBCHAPTER W--REVISED GENERAL RULES
375 The Commission.............................. 825
376 Organization, mission, and functions;
operations during emergency conditions.. 844
380 Regulations implementing the National
Environmental Policy Act................ 847
381 Fees........................................ 859
382 Annual charges.............................. 865
SUBCHAPTER X--PROCEDURAL RULES
385 Rules of practice and procedure............. 870
388 Information and requests.................... 942
389 OMB control numbers for Commission
information collection requirements..... 953
390-399 [Reserved]
Abbreviations: The following abbreviations are used in this chapter:
M.c.f.=Thousand cubic feet. B.t.u.=British thermal units.
ICC=Interstate Commerce Commission.
[[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.
Authority: Natural Gas Act, 15 U.S.C. 717 et seq.; Federal Power
Act, 16 U.S.C. 792 et seq.; Interstate Commerce Act, 49 U.S.C. 1 et
seq.; Department of Energy Organization Act, Pub. L. 95-91; 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.
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 obained 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
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
[[Page 11]]
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 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
[[Page 12]]
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]
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
[[Page 13]]
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.
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.
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 Simplification of wholesale electric rate schedule filings.
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 14]]
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.
2.65 Applications for certificates of public convenience and necessity
for gas transmission facilities to be installed in the off-
shore southern Louisiana area.
2.67 Calculation of taxes for property of pipeline companies
constructed or acquired after January 1, 1970.
2.69 Guidelines to be followed by natural gas pipeline companies in the
planning, locating, clearing and maintenance of rights-of-way
and the construction of aboveground facilities.
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--2.101 [Reserved]
2.102 Policy respecting production-related activities performed by an
interstate pipeline.
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 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.
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
[[Page 15]]
schedules or tariffs proposed by natural gas pipeline companies,
including purchased gas adjustment clauses.
(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) Independent producers. (A) Orders suspending rates for
independent producers and initiating a hearing thereon.
(B) Filing of offers of settlement.
(C) Small producer applications and petitions for relief relating to
small producer matters.
(D) Petitions for special relief under the Commission's area rate
opinions.
(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.
[[Page 16]]
(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.
(J) Notices of conferences in docketed rulemaking proceedings.
(K) 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]
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
[[Page 17]]
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 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]
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 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
[[Page 18]]
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 physically handicapped individuals 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]
Sec. 2.8 Simplification of wholesale electric rate schedule filings.
(a) In making changes in rate schedules required to be on file with
the Commission, public utilities may find it advantageous to file
substitute sheets to reflect changes, in lieu of filing rate schedule
supplements.
(1) Identification--substitute sheets. (i) At the top right of the
page, the sheet number may be designated as ``------ Revised Sheet No.
------'', followed by ``Superseding ------ Sheet No. ------''. The first
of these blanks would show the number of the revision (i.e., first,
second, etc.) and the sheet number would be the same as the sheet
replaced. The third and fourth blanks would be filled according to the
numbering of the sheet replaced.
(ii) Sheets which are to be inserted between two consecutively
numbered sheets may be designated ``Original Sheet No. ------'', with
the blank space filled with the appropriate number and a letter to
indicate an insertion (i.e., between Sheet Nos. 1 and 2, Original Sheet
No. 1a).
(iii) Customer agreement, if required, may be indicated on the
bottom of the page, by the signature of the person authorized to agree
to the proposed change. The name and title of the person authorized to
file the substitute sheet may also be shown on the bottom of the page.
[[Page 19]]
(b) Whenever pursuant to Sec. 35.12 of this chapter an initial rate
schedule filing is to be made, or whenever pursuant to Sec. 35.13 of
this chapter a rate schedule is to be replaced in its entirety or
extensively revised (for example if a large number of the pages are to
be changed), public utilities may find it advantageous to use a
simplified format, such as the following:
(1) Format. A brief service agreement setting forth such items as
the name of the purchaser, service to be rendered, term of the
agreement, and signatures of the parties. Applicable points of delivery
and delivery voltages, applicable rates and charges and applicable terms
and conditions may be incorporated in the agreement by reference to
separate appendices attached thereto as follows:
(i) Appendix setting forth in detail delivery points, delivery
voltages and metering voltages.
(ii) Appendix containing a statement of the rates and charges, set
forth separately under appropriate headings such as: Demand charges,
energy charges, billing demand determinants, power factor clauses,
minimum bill provisions, etc.
(iii) Appendix containing terms and conditions, set forth separately
under appropriate headings such as: Services, facilities at the points
of connection, meter adjustments, continuity of service, liability, etc.
(2) Identification. (i) At the top right of the page, the sheet
number may be designated as ``Original Sheet No. ------''.
(ii) Sheets which are to be replaced or inserted may be designated
in the same manner suggested in paragraph (a)(1) of this section.
(Secs. 205, 206, 49 Stat. 851, 852; 16 U.S.C. 824d, 824e)
[Order 347, 32 FR 7494, May 20, 1967]
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 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
[[Page 20]]
(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).
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
[[Page 21]]
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 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;
[[Page 22]]
(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 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]
[[Page 23]]
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, 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
[[Page 24]]
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):
(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
[[Page 25]]
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 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
[[Page 26]]
and decisionmaking 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]
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.
[[Page 27]]
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 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,
[[Page 28]]
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 para. 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.
(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 merged entity would be part
of a registered public utility holding company, if applicants do not
commit in their application to abide by this Commission's policies with
regard to affiliate transactions, the Commission will set the issue for
a trial-type hearing.
(2) 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 commission.
The application should state whether the state commissions have this
authority.
(3) 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.
[Order 592, 61 FR 68606, Dec. 30, 1996]
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. Installations (excluding gas
compressors) which are merely auxiliary or appurtenant to an existing
transmission pipe line system and which are installed only for the
purpose of obtaining more efficient or more economical operation of
authorized transmission facilities, such as: valves; drips; yard and
station piping; cathodic protection equipment;
[[Page 29]]
gas cleaning, cooling and dehydration equipment; residual refining
equipment; water pumping, treatment and cooling equipment; electrical
and communication equipment; and buildings.
(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 as the facilities being replaced; and
(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) Reporting requirements. (i) One-time report. A company must file
(on electronic media pursuant to Sec. 385.2011 of this chapter,
accompanied by 7 paper copies) a one-time report with the Commission, by
December 9, 1992, that includes all of the information required in
paragraph (b)(3) of this section, for any replacement activity
authorized under paragraph (b)(1) of this section that cost more than
$6.2 million and was commenced between July 14, 1992 and November 9,
1992.
(ii) 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) [Reserved]
(d) Taps. Taps on existing transmission pipelines which are
installed solely for the purpose of enabling a purchaser or transporter
to take delivery of gas from an independent producer. An independent
producer means any person as defined in the Natural Gas Act who is
engaged in the production or gathering of natural gas and who sells
natural gas in interstate commerce for resale, but who is not engaged in
the transportation of natural gas (other than gathering) by pipeline in
interstate commerce.
(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]
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
[[Page 30]]
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 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 Secs. 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. 2.65 Applications for certificates of public convenience and necessity for gas transmission facilities to be installed in the off-shore southern Louisiana
area.
(a) It will be the general policy of the Commission to require that
applications for certificates of public convenience and necessity, filed
pursuant to section 7(c) of the Natural Gas Act, for the construction
and operation of pipeline facilities to be installed in the southern
Louisiana offshore area, be filed on or before September 1st of the year
immediately preceding the proposed installation. We direct our staff to
review these applications on both a joint and individual company basis
with a view toward the development of pipeline company gas exchange
procedures that will minimize cross-hauls and toward the promotion of
joint use arrangements that will assure the early full utilization of
large capacity facilities in the Outer-Continental Shelf area. To assist
this Commission staff effort, and to aid the Commission's disposition of
offshore certificate applications during our formal and statutory
hearing procedures, an applicant should include as a part of Exhibit Z
to its application, additional information which will:
(1) Detail with appropriate engineering and economic showings the
efforts it has made to utilize the existing and proposed offshore
facilities owned by other jurisdictional companies to transport
Applicant's gas;
(2) Demonstrate that it has consulted with other jurisdictional
entities with
[[Page 31]]
respect to the possibility of utilizing the proposed facilities to
transport gas to onshore installations for such entities;
(3) Utilize 30-inch (or larger if technologically possible) pipe for
its offshore main line facilities although upon good cause shown
Applicant may demonstrate in the alternative, the feasibility of a
smaller proposed line;
(4) Demonstrate that its proposed facilities will be utilized,
either by it individually or jointly with other pipeline companies, at a
minimum annual load factor of 60 percent of the annual capacity
available by the end of a 12-month period following the installation
thereof, unless a waiver is issued.
(b) It is the intention of the Commission to enforce the fourth
requirement by permitting offshore pipeline facilities, certificated
after the date of this order, to be included in Applicant's cost-of-
service in future rate proceedings at an average unit cost predicated
upon load factors of not less than 60 percent of the annual capacity
available.
(Sec. 7, 52 Stat. 824; 15 U.S.C. 717f)
[Order 363, 33 FR 8593, June 12, 1968]
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 Guidelines to be followed by natural gas pipeline companies in the planning, locating, clearing and maintenance of rights-of-way and the construction
of aboveground facilities.
(a) In the interest of preserving scenic, historic, wildlife and
recreational values, the construction and maintenance of facilities
authorized by certificates granted under section 7(c) of the Natural Gas
Act should be undertaken in a manner that will minimize adverse effects
on these values. Accordingly, the Commission believes that the planning,
locating, clearing and maintenance of rights-of-way and the construction
of aboveground facilities should, as a general practice, conform to the
guidelines set forth below. The National Environmental Policy Act of
1969, Pub. L. 91-190, 83 Stat. 852, title I, section 102 thereof,
directs agencies of the Federal Government to utilize a systematic,
interdisciplinary approach which will insure integrated use of the
natural and social sciences and the environmental design arts in
planning and in decision-making which may have an impact on man's
environment. Congress has declared as a national policy the critical
importance of restoring and maintaining environmental quality and
directed that all practicable means be used to create and maintain
conditions under which man and nature can exist in productive harmony,
and fulfill the social and economic requirements of present and future
generations of Americans. There is increasing need to fit the
construction of pipeline facilities into an overall plan for land
development and use in Federal, State, and regional land use planning
and development. While these
[[Page 32]]
guidelines would require greater advance planning and earlier filing of
applications than has been the past practice, it is clear that such
earlier planning and filing would generally result in minimizing the
time delay caused by considering location as part of an overall plan for
land development and use. To the extent landowners may have special
interests concerning the planning, locating, clearing and maintenance of
rights-of-way and the construction of aboveground facilities on their
property, those desires may be taken into account by natural gas
companies so long as the result is consistent with local laws relating
to land use. These guidelines do not affect an applicant's obligation to
comply with the applicable safety regulations of the Department of
Transportation, pursuant to the Natural Gas Pipeline Safety Act of 1968.
(1) Pipeline construction. (i) In locating proposed facilities,
consideration should be given to the utilization, enlargement or
extension of existing rights-of-way belonging to either applicant or
others, such as pipelines, electric powerlines, highways, and railroads.
(ii) Where practical, rights-of-way should avoid the national
historic places listed in the National Register of Historic Places and
natural landmarks listed in the National Register of Natural Landmarks
maintained by the Secretary of the Interior, and parks, scenic,
wildlife, and recreational lands, officially designated by duly
constituted public authorities. If rights-of-way must be routed through
such historic places, parks, wildlife, or scenic areas, they should be
located in areas or placed in a manner so as to be least visible from
areas of public view and so far as possible in a manner designed to
preserve the character of the area.
(iii) Rights-of-way should avoid heavily timbered areas and steep
slopes, where practical.
(iv) Right-of-way clearings should be kept to the minimum necessary
width to prevent interference of trees or other vegetation with the
construction of proposed transmission facilities.
(v) The method of clearing rights-of-way should take into account
matters of soil stability, protection of natural vegetation and the
protection of adjacent resources.
(vi) Trees and other vegetation cleared from rights-of-way in areas
of public view should be disposed of without undue delay. In all phases
of construction, including burning of debris, such measures shall be
taken for the prevention and control of fire and other hazards as are
required by applicable law and regulations. Tree stumps which are
adjacent to roads and other areas of public view should be cut close to
the ground or removed.
(vii) Trees and shrubs which are not cleared should not be
unnecessarily damaged during construction.
(viii) Efforts should be made to avoid clearance of rights-of-way to
the mineral soil, except in the ditch itself. Where this does occur in
scattered areas of the rights-of-way, the surface should be restored and
stabilized without undue delay.
(ix) Soil which has been excavated during construction and not used
should be evenly filled back onto the cleared area or removed from the
site. The soil should be graded to comport with terrain of the adjacent
land and vegetation planted and fertilized, where appropriate.
(x) Terraces and other erosion control devices should be constructed
where necessary to prevent soil erosion on slopes on which rights-of-way
are located.
(xi) Where rights-of-way cross streams and other bodies of water,
the banks should be stabilized to prevent erosion. Construction on
rights-of-way should be conducted in such manner as to keep to a minimum
damage to shorelines, recreational areas and fish and wildlife habitats.
(xii) Replacement of earth adjacent to water crossings should be at
slopes equal to or less than the normal angle of response for the soil
type involved and sandbagging, seeding, or other methods of soil
stabilization should be accomplished without undue delay.
(xiii) Blasting should not be done within or near stream channels
without prior consultation with Federal and State conservation
authorities having jurisdiction to determine what protective measures
should be taken to
[[Page 33]]
minimize damage to fish and other aquatic life.
(xiv) Any potholes, marshes or similar water areas drained to
facilitate construction should be reestablished to their preconstruction
water levels and flow characteristics following completion of
construction, if such reestablishment is consistent with landowner
wishes.
(xv) Cofferdam or other diversionary techniques to lay pipe across
streams should be used where necessary and practical to permit flow in
one part of the stream while construction work is being performed in
another part.
(xvi) Care should be taken to avoid oil spills and other types of
pollution while work is performed in streams and other bodies of water
and in their immediate drainage areas.
(xvii) Water used for pipeline testing taken from streams or other
bodies of water should be taken in such manner as to minimize harm to
the ecology, fish and wildlife resources, or aesthetic values of the
areas. When testing water is released, it should be done in such a
manner as not to cause erosion and siltation or damage to the ecology of
the area.
(xviii) Excess construction materials and other debris should be
removed from the right-of-way or otherwise suitably disposed of.
(xix) In wooded areas long views of cleared rights-of-way, visible
from highways and other areas of public view, should be avoided. The
rights-of-way alignment of these locations should be deflected before
entering and leaving highways and areas of public view where such
deflection is consistent with safe and sound engineering practice and
accomplishes the desired results.
(xx) Where practical, rights-of-way should not cross hills and other
high points at the crests, particularly where such crossing is in
forested areas and clearly visible from highways and other areas of
public view. When they must do so the alignment should be deflected near
the crests where such deflection is consistent with safe and sound
engineering practice and accomplishes the desired result of eliminating
the notch in the tree line at the crests.
(xxi) Where rights-of-way enter dense timber from a meadow or other
clearing and where such entrance is visible from highways and other
areas of public view, screen planting should be employed.
(xxii) Temporary roads used for construction should be designed for
proper drainage and built in such manner as to minimize soil erosion.
Upon abandonment, such roads should be stabilized without undue delay.
(2) Right-of-way maintenance. (i) Once a cover of vegetation has
been established on a right-of-way, it should be properly maintained.
(ii) Access roads and service roads should be maintained with proper
cover, water bars and the proper slope in order to minimize soil
erosion. They should be jointly used with other utilities and land
management agencies where practical.
(iii) When chemicals are used for weed control, they should be
applied at such time and in such manner as to minimize the impact of
temporary discoloration of the foliage. Care should be taken to assure
that chemicals used to control the growth of tree stumps do not damage
the vegetation or add to water or soil pollution.
(iv) During inspection of rights-of-way attention should be given to
locate gullies and fallen timber and to observe the condition of the
vegetation. The use of aircraft to inspect and maintain rights-of-way
should be encouraged.
(3) Construction of aboveground appurtenant facilities. (i) The
proposed exterior plans and location of compressor stations and other
aboveground facilities, including meter and regulator stations and
communication towers, should be made appropriately available to local
agencies which have jurisdiction.
(ii) Unobstrusive sites should be selected where practical for the
location of aboveground facilities.
(iii) Potential noise should be considered when the location for
compressor stations is being determined. Such facilities should be
located in areas where sound resonation would be minimal; consideration
should be given to the use of accoustical treatment as a further means
of noise abatement.
[[Page 34]]
(iv) The size of aboveground facilities should be kept to the
minimum feasible.
(v) The exterior of compressor stations and other aboveground
facilities, to the extent consistent with the functional needs and
economic feasibility of construction of such facilities, should not
unduly detract from the surroundings and other buildings in the area.
(vi) In areas adjacent to such aboveground facilities, trees and
shrubs should be planted, or other appropriate landscaping installed, in
order to enhance the appearance of such facilities, consistent with
operating needs.
(vii) Storage tanks should be placed below ground where technology
and economics make it feasible.
(viii) Yards and surrounding areas should be kept clean and free of
unused or discarded materials.
(ix) The design and operation of aboveground facilities should
conform to applicable air and water quality standards.
(Secs. 7(c), 7(e), 52 Stat. 825, 56 Stat. 83, 84; 15 U.S.C. 717(c),
717f(e); Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[Order 407, 35 FR 11389, July 16, 1970]
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.
(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
[[Page 35]]
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.
(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 plantsite 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.
[[Page 36]]
(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 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,
[[Page 37]]
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.
Secs. 2.100--2.101 [Reserved]
Sec. 2.102 Policy respecting production-related activities performed by an interstate pipeline.
(a) Policy. (1) If an interstate pipeline purchases natural gas in a
first sale, then in any proceeding brought under the Natural Gas Act to
determine the lawfulness of the rates and charges of such pipeline, a
production-related service provided by the pipeline with respect to the
purchase of such gas, or by another on behalf of the pipeline, shall be
deemed prudent, unless the terms of the gas sales contract governing the
pipeline's purchase of the gas expressly provide that the seller perform
the activity.
(2) Any production-related service not deemed prudent under
paragraph (a)(1) of this section, and the level of costs to perform any
production-related service, is not deemed imprudent. The prudence of
such service, or of the level of costs, is to be determined in an
appropriate pipeline rate or certificate proceeding brought under the
Natural Gas Act.
(b) Definitions. For purposes of this section the following
definitions apply:
(1) The terms first sale and interstate pipeline have the same
meaning as such terms have under the NGPA.
(2) The term production-related service has the same meaning as that
term has under Sec. 271.1104(c)(6) of this part.
[Order 94-A, 48 FR 5177, Feb. 3, 1983]
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
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
[[Page 38]]
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, 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
[[Page 39]]
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]
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.
[[Page 40]]
(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 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]
[[Page 41]]
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
continously 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 42]]
Appendix C--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 (7)--Percentage
Schedule Line excluding (3)--Gas (4)--Lease (5)--No lease lease (8)--Allocated
Line No. Particulars No. No. (1)--Total \1\ production taxes only \3\ separation \3\ separation \3\ (6)--Total \4\ separation gas amount gas \6\
\2\ \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 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
and field expense.
9 Miscellaneous lease 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)
revenues.
10 Return on production rate 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
base 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 1-A 17 6,514,279 6,514,279 ........... .............. .............. .............. ............... 6,514,852
expense including return.
=================================================================================================================================
14
15 Total computed ........ ..... 9,465,231,966 8,985,807,669 ........... .............. .............. .............. ............... 2,336,439,376
revenue.
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\ (283,121,142 283,121,242 24,287,986 61,675,828 6,177,596 92,141,410 90.33 86,177,357
)
24 Depreciation expense....... 1-A 05 \7\ (654,604,447 654,604,447 30,223,586 94,010,520 7,007,662 131,241,768 90.33 122,150,951
)
25 Amortization of capitalized ........ ..... \7\ (779,097,382 779,097,382 51,488,205 142,194,964 12,316,790 205,999,959 90.33 192,249,706
IDC. )
26 Corporate general expense.. 1-A 06 278,845,909 278,845,909 ........... .............. .............. .............. ............... 39,843,838
[[Page 43]]
27 Area, district, division 1-A 07 261,718,417 261,718,417 ........... .............. .............. .............. ............... 29,640,811
and field expense.
28 Miscellaneous lease 1-A 09 (12,203,136) (12,203,136) ........... .............. .............. .............. ............... (4,163,842)
revenues.
29 Exploration and development ........ ..... 1,673,945,853 1,673,945,853 ........... .............. .............. .............. ............... 594,971,262
costs and expenses.
30 Regulatory commission 4-A 01 6,384,384 6,394,384 ........... .............. .............. .............. ............... 6,394,384
expense.
----------------------------------------------------------------------------------------------------------------------------------------
31
32 Total book expenses.. ........ ..... 6,371,380,505 5,891,856,209 ........... .............. .............. .............. ............... 1,479,243,227
----------------------------------------------------------------------------------------------------------------------------------------
33
34 Production net income (line ........ ..... 3,093,951,461 3,093,951,460 ........... .............. .............. .............. ............... 857,190,149
15 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 ........ ..... \8\ (1,470,935,8 (1,470,935,857) ........... .............. .............. .............. ............... (362,967,445)
in 1972. 57)
39 Interest expense ........ ..... \9\ (243,846,540 (243,846,540) ........... .............. .............. .............. ............... (60,587,136)
(calculated). )
----------------------------------------------------------------------------------------------------------------------------------------
40
41 Taxable income....... ........ ..... 2,158,266,445 2,158,266,445 ........... .............. .............. .............. ............... 625,891,274
----------------------------------------------------------------------------------------------------------------------------------------
42
43 Federal income tax at ........ ..... 1,992,245,949 1,992,245,949 ........... .............. .............. .............. ............... \10\ 577,745,7
48 percent. 91
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\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 44]]
PART 3--ORGANIZATION; OPERATION; INFORMATION AND REQUESTS--Table of Contents
Authority: Department of Energy Organization Act, 42 U.S.C. 7101-
7352 (1982); E.O. 12009, 3 CFR 1978 Comp., p. 142 (1978); Administrative
Procedure Act, 5 U.S.C. 551-557 (1982); Natural Gas Act, 15 U.S.C. 717-
717z (1982); Federal Power Act, 16 U.S.C. 791a-828c (1982); Natural Gas
Policy Act, 15 U.S.C. 3301-3432 (1982); Public Utility Regulatory
Policies Act, 16 U.S.C. 2601-2645 (1982); Interstate Commerce Act, 49
U.S.C. 1-27 (1976); Freedom of Information Act, 5 U.S.C. 552 (1982) as
amended by Freedom of Information Reform Act of 1986.
Subpart A--Organization; Delegations of Authority
Sec. 3.4 Organization.
(a) The Oil Pipeline Board, responsible for carrying out the
Commission's functions under sections 4, 6(3), 6(6), 15(7), 19a, and
20(1), 20(2), 20(3), 20(4), 20(5), 20(11) of the Interstate Commerce
Act. Any reference to a Commission Division or a Review Board in the
Interstate Commerce Act or rules of practice shall be deemed to refer to
the full FERC for purposes of the operation of the Oil Pipeline Board
herein established the review of its actions.
[43 FR 6765, Feb. 16, 1978, and 45 FR 21224, Apr. 1, 1980, as amended by
Order 376, 49 FR 21704, May 23, 1984]
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,
[[Page 45]]
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:
(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
[[Page 46]]
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]
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
[[Page 47]]
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.
(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
[[Page 48]]
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 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
[[Page 49]]
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
(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
[[Page 50]]
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). 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
[[Page 51]]
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:
(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
[[Page 52]]
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.
(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.
[[Page 53]]
(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 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.
[[Page 54]]
(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.
(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
[[Page 55]]
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 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.
[[Page 56]]
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 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
[[Page 57]]
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.
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
[[Page 58]]
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 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
[[Page 59]]
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.
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,
[[Page 60]]
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 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.
[[Page 61]]
(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 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 Secs. 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
[[Page 62]]
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 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
[[Page 63]]
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 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.
[[Page 64]]
(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 pursuant to Sec. 3b.220 or access to a record pursuant to
Secs. 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).
[[Page 65]]
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 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
[[Page 66]]
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 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
[[Page 67]]
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 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
Secs. 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:
[[Page 68]]
(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 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
[[Page 69]]
(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.
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 70]]
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.
4.106 Standard terms and conditions of case-specific exemption from
licensing.
[[Page 71]]
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 sechedule 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 72]]
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]
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.
[[Page 73]]
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]
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
[[Page 74]]
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) This subpart applies to any application for preliminary permit,
license, or exemption from licensing.
(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 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
[[Page 75]]
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 Secs. 4.34(e)(2) 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 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
[[Page 76]]
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(c)(2) with respect to a small
hydroelectric power project for which exemption from licensing is
sought.
(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.
[[Page 77]]
(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]
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 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
[[Page 78]]
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 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
[[Page 79]]
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. 16.7;
(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 consulted pursuant to Sec. 4.38 or Sec. 16.8
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 Regional Office for the appropriate region and on each
resource agency consulted pursuant to Sec. 4.38. Maps and drawings need
not conform to the requirements of Sec. 4.39, but must be of sufficient
size, scale, and quality to permit each reading and understanding. The
originals (microfilm) of maps and drawings 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
[[Page 80]]
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 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
[[Page 81]]
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 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.
[[Page 82]]
(1) Deficient applications. (i) An application that in the judgment
of the Director of the Office of Hydropower Licensing 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 Hydropower Licensing
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 Hydropower Licensing 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 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
[[Page 83]]
application. For this purpose, five copies of the draft application
should be submitted to the Director of the Division of Project
Management. 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.
[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]
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 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 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 submission and acceptance of a license
application. The Commission will not accept an application for a license
for project works that 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, unless the permittee has submitted an application for license.
(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.
[[Page 84]]
(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]
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.
(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. If ongoing agency proceedings to determine the terms
and conditions or prescriptions
[[Page 85]]
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) presented in a draft environmental impact statement,
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 statement.
(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.
(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 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) Within 45 days of the filing of any fish and wildlife
recommendation, the Commission may seek clarification of it, unless this
deadline is extended by the Commission upon notice to the fish and
wildlife agency concerned. 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.
(3) The Commission will make a preliminary determination of
inconsistency of the fish and wildlife recommendation with the purposes
and requirements of the Federal Power Act or other applicable law. This
preliminary determination will be done in writing and shall include an
explanation of its basis, including appropriate references to the
environmental analysis conducted on the license application. A copy of
the environmental analysis will be provided with the determination, and
will be sent to all parties, affected resource agencies, and Indian
tribes.
(4) Any party, affected resource agency, or Indian tribe may file
comments in response to the preliminary determination of inconsistency
within 45 days of its issuance. 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.
(5) If the Commission decides to conduct any meeting, telephone or
video conference, or other procedure 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 75 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 10(j) issues, and a copy
of the summary will be sent to all parties, affected resource agencies,
and Indian tribes. If the Commission believes that any fish and wildlife
recommendation submitted by a fish and wildlife agency may be
inconsistent with the purposes and requirements of the Federal Power Act
or other applicable law, the Commission will attempt to resolve any such
inconsistency by appropriate means, giving due weight to the
recommendations, expertise, and statutory responsibilities of the fish
and wildlife agency.
(6) The section 10(j) process ends when the Commission issues an
order granting or denying the license application in question.
(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
[[Page 87]]
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 consist of an original and eight copies.
(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 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,
[[Page 88]]
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) 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 procdures. Such a decision will not be subject to
interlocutory rehearing or appeal.
(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 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 documention 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
[[Page 89]]
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) In all cases where the Commission has approved the use of
alternative pre-filing consultation procedures prior to December 5,
1997, during the pre-filing process the potential applicant need not
follow any additional requirements imposed by paragraph (i) of this
section, if in so doing the applicant would repeat any steps already
taken in the preparation of its application and supporting documentation
or act inconsistently with any written agreement signed before December
5, 1997 by the applicant and the other participants in the alternative
process.
[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]
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.
[[Page 90]]
(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
(iii) A change in the number of discrete units or 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]
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
[[Page 91]]
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 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
[[Page 92]]
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(f), 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 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 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
[[Page 93]]
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 the disposition of competing
applications.
[Order 413, 50 FR 11682, Mar. 25, 1985]
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) The Director of the Office of Hydropower Licensing or the
Regional Director responsible for the area in which the project is
located will, upon request, provide a list of known appropriate Federal,
state, and interstate resource agencies and Indian tribes.
(3) 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.
(4) The pre-filing consultation requirements of this section apply
only to an application for:
(i) Original license;
(ii) Exemption;
[[Page 94]]
(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.
(5) 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, and the
tribes must be attached to the application.
(6) 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.
(7) 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
Hydropower Licensing.
(b) First stage of consultation. (1) A potential applicant must
promptly contact each of the appropriate resource agencies and affected
Indian tribes; 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 a
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
[[Page 95]]
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 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;
(vii) Detailed descriptions of any proposed studies and the proposed
methodologies to be employed; and
(viii) Any statement required by Sec. 4.301(a).
(2) No earlier than 30 days, but no later than 60 days, from the
date of the potential applicant's letter transmitting the information to
the agencies and Indian tribes under paragraph (b)(1) of this section,
the potential applicant must:
(i) Hold a joint meeting at a convenient place and time, including
an opportunity for a site visit, with all pertinent agencies and Indian
tribes 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;
(ii) Consult with the resource agencies and Indian tribes on the
scheduling and agenda of the joint meeting; and
(iii) 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.
(3) Members of the public must be informed of and invited to attend
the joint meeting held pursuant to paragraph (b)(2)(i) of this section
by means of the public notice 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)(2)(i) 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 and Indian tribe.
(4) Not later than 60 days after the joint meeting held under
paragraph (b)(2) of this section (unless extended within this time
period by a resource agency or Indian tribe for an additional 60 days by
sending written notice to the applicant and the Director of OHL 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 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 other available methodology alternatives, including
those identified by the potential applicant pursuant to paragraph
(b)(1)(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 or Indian tribe in furthering its resource goals
and objectives that are affected by the proposed project.
(5)(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
[[Page 96]]
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 Hydropower Licensing
(Director) for resolution.
(ii) At the same time as the request for dispute resolution is
submitted to the Director, the entity referring the 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)(5)(i) or (b)(5)(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 pursuant to Sec. 4.38(b)(5).
(iv) The Director will resolve 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 information (other than a dispute regarding the information
specified in paragraph (b)(1) of this section) or a study to the
Director under paragraph (b)(5)(i) 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)(1) 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 Secs. 4.32 (e)(1) or (e)(2), merely because the
application does not include a particular study or particular
information if the Director had previously found, under paragraph
(b)(5)(iv) of this section, that such 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.
(6) The first stage of consultation ends when all participating
agencies and Indian tribes provide the written comments required under
paragraph (b)(4) of this section or 60 days after the joint meeting held
under paragraph (b)(2) of this section, whichever occurs first, unless a
resource agency or Indian tribe timely notifies the applicant and the
Director of OHL of its need for more time to provide written comments
under paragraph (b)(4) of this section, in which case the first stage of
consultation ends when all the participating agencies and Indian tribes
provide the written comments required under paragraph (b)(4) of this
section or 120 days after the joint meeting held under paragraph (b)(2)
of this section, whichever occurs first.
(c) Second stage of consultation. (1) Unless determined to be
unnecessary by the Director pursuant to paragraph (b)(5) 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);
[[Page 97]]
(ii) After filing the application but before issuance of a license
or exemption, if the applicant otherwise complied with the provisions of
paragraph (b)(1) 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 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)(6) 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)(4) (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 Hydropower Licensing for dispute resolution
under the procedures set forth in paragraph (b)(5) 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)(1)(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
[[Page 98]]
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
(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, and other government offices 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 and Indian
tribe 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.
(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)
[[Page 99]]
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)(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):
(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 (f)(7)(ii) of this section.
(ii) 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.
(iii) Notwithstanding any other provision in title 18, chapter I,
subpart B, any application to amend an existing license, and any
amendment to a pending application for a license, requires a new request
for water quality certification pursuant to paragraph (f)(7)(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.
(8) A description of how the applicant's proposal addresses the
significant resource issues raised at the joint meeting held pursuant to
paragraph (b)(2) of this section; and
(9) 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)(2) 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)(1) of this section from the date on which the notice required by
paragraph (g)(1) of this section is first published until the date of
the joint meeting required by paragraph (b)(2) of this section.
(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)(2) of this
section at least two copies of the information specified in paragraph
(b)(1) of this section.
[[Page 100]]
(h) Transition provisions. (1) The provisions of this section are
not applicable to applications filed before June 19, 1991.
(2) The provisions of paragraphs (a) and (b) of this section are not
applicable to potential applicants that complied with the provisions of
paragraphs (a) and (b)(1) of this section prior to June 19, 1991.
(3) The provisions of paragraph (c) of this section are not
applicable to potential applicants that complied with the provisions of
paragraph (b)(2) of this section prior to June 19, 1991.
(4)(i) Any applicant that files its application on or after June 19,
1991, and that complied with the provisions of paragraphs (a) and (b)(1)
of this section prior to June 19, 1991, must hold a public meeting,
within 90 days from June 19, 1991, at or near the site of the proposed
project, to generally explain the potential applicant's proposal for the
site and to obtain the views of the public regarding resource issues
that should be addressed in any application for license or exemption
that may be filed by the potential applicant. The public meeting must
include both day and evening sessions, and the potential applicant must
make either audio recordings or written transcripts of both sessions.
(ii)(A) At least 15 days in advance of the meeting, the potential
applicant must provide all affected resource agencies, Indian tribes,
and 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.
(B) At least 14 days in advance of the meeting, the potential
applicant must publish notice, at least once, of the purpose, location,
and timing of the meeting, in a daily or weekly newspaper published in
each county in which the proposed project or any part thereof is
situated.
(iii)(A) A potential applicant must make available to the public for
inspection and reproduction information comparable to that specified in
paragraph (b)(1) of this section from the date on which the notice
required by paragraph (h)(4)(ii) of this section is first published
until the date of the public meeting required by paragraph (h)(4)(i) of
this section.
(B) 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.
(C) A potential applicant must make available to the public for
inspection at both sessions of the public meeting required by paragraph
(h)(4)(i) of this section at least two copies of the information
specified in paragraph (h)(4)(iii)(A) of this section.
(D) A potential applicant must promptly provide copies of the audio
recordings or written transcripts of the sessions of the public meeting
to the Commission and, upon request, to any resource agency or Indian
tribe consulted.
(iv) Any applicant holding a public meeting pursuant to paragraph
(h)(4)(i) of this section must include in its filed application a
description of how the applicant's proposal addresses the significant
resource issues raised during the public meeting.
[Order 533, 56 FR 23153, May 20, 1991, as amended at 56 FR 61155, Dec.
2, 1991]
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:
(a) Each original map or drawing must consist of a print on silver
or gelatin 35mm microfilm mounted on Type D (3\1/4\' by 7\3/8\')
aperture cards. Two duplicates must be made of each original. 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 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. If the drawing
size specified in this paragraph limits the scale of drawings described
in paragraph (c) of this section, a smaller scale may be used for those
drawings.
(b) Each map must have a scale in full-sized prints no smaller than
one
[[Page 101]]
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. Where maps at these scales do not show sufficient
detail, larger scale maps may be required under Sec. 4.31(f). Each map
must show:
(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.
[Order 54, 44 FR 61334, Oct. 25, 1979. Redesignated by Order 413, 50 FR
11678, Mar. 25, 1985]
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
(Secs. 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 Division of Hydropower Licensing
regarding the applicability of 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]
Sec. 4.41 Contents of application.
Any application under this subpart must contain the following
information in the form prescribed:
(a) Initial statement.
[[Page 102]]
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.
(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;
[[Page 103]]
(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; a flow duration curve
indicating the period of record and the gauging stations used in
deriving the curve; 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 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;
(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
[[Page 104]]
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, and
(iv) Operation and maintenance expenses, including interim
replacements, insurance, administrative and general expenses, and
contingencies;
(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;
and
(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.
(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 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;
[[Page 105]]
(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 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.
[[Page 106]]
(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 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
[[Page 107]]
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 reservior 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
mitigtion 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:
(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 opertion 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
[[Page 108]]
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 reseroir 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 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
[[Page 109]]
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 Soil 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 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.
[[Page 110]]
(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. If more than one sheet is used, the sheets
must be numbered consecutively, and each sheet must bear a small insert
sketch showing the entire project and indicating that portion of the
project depicted on that sheet. If at any time after the application is
filed there is any change in the project boundary, the applicant must
submit, within a reasonable period 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 license 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
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;
[[Page 111]]
(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.
(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 to be required 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]
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 (Secs. 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
[[Page 112]]
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:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
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,
[[Page 113]]
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; a flow duration curve
indicating the period of record and the gauging stations used in
deriving the curve; 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 (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:
[[Page 114]]
(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 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, and
(iv) Operation and maintenance expenses, including interim
replacements, insurance, administrative and general expenses, and
contingencies.
(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.
(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
[[Page 115]]
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\;
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\1\ 33 CFR part 323 was revised at 47 FR 31810, July 22, 1982, and
Sec. 323.3(e) no longer exists.
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(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 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
[[Page 116]]
(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 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
[[Page 117]]
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 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 consists of general design drawings of the principal
project works described under paragraph (b) of this section (Exhibit A)
and supporting information used to demonstrate that existing project
structures are safe and adequate to fulfill their stated functions.
(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); and
(iii) Sections (side view).
(2) Supporting design report. The applicant must furnish, at a
minimum, the following supporting information to demonstrate that
existing structures are safe and adequate to fulfill their stated
functions, and must submit such infomation in a separate report at the
time the application is filed. The report must include:
[[Page 118]]
(i) A description of the physical condition or state of maintenance
and repair of any existing and proposed structures or equipment; and
(ii) Information relating to composition and competency of
foundations and other structures, gradation of filter and riprap
material, design strength and ultimate strength of concrete and steel,
stress and stability analysis, spillway rating curves, water levels, and
other appropriate data.
(3) The applicant must submit two copies of the supporting design
report as described in paragraph (g)(2) of this section at the time
general design drawings are submitted to the Commission for review.
(h) Exhibit G is a map of the project. The map must conform to the
specifications of Sec. 4.39. If more than one sheet is used, the sheets
must be numbered consecutively and each sheet must bear a small inset
sketch showing the entire project (or development) and indicating the
portion depicted on the sheet. 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 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 of the principal 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 license
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 protection of environmental resources). If the
boundary is on land covered by a public land 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 may
be described by any 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
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project works such as dams, spillways, and powerhouses may be described
by:
(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 (see 16 U.S.C. 796(1) and (2)) (Federal lands) that are within
the project boundary, e.g., lands adminstered by the U.S. Forest
Service, Bureau of Land Management, National Park Service, or Indian
tribal lands, and the boundaries of those Federal lands, must be
identified on the map:
(i) By legal subdivisions of a public land survey of the affected
area (a protraction of identified township and section lines is
sufficient for this purpose);
(ii) By the Federal agency, identified by symbol or legend if
desired, that maintains or manages each identified subdivision of the
public land survey within the project boundary; and
(iii) In the absence of a public land survey, by 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 must 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.
(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 required by easement or lease.
[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]
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 Division of Public Information. The
applicant shall also furnish copies of the filed application to any
Federal, state, or local agency that so requests.
(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
[[Page 120]]
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]
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
perference 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
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
[[Page 121]]
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:
existing dam {time} unconstructed dam
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:
{time} Surveyed land {time} 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 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, a flow duration
curve 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.
(2) State the purposes of project (for example, use of power
output).
(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 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
[[Page 122]]
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 consists of general drawings of the principal project
works. The drawings need not conform to the specifications of Sec. 4.39.
The exhibit must conform to the following requirements:
(1) The exhibit must consist of ink drawings, or drawings of similar
quality, on sheets no smaller than 8 and one-half inches by 11 inches,
drawn to a scale no smaller than 1 inch equals 50 feet for plans,
elevations, and profiles, and 1 inch equals 10 feet for sections. After
initial review of the application, an original and 2 copies of any
drawing must be submitted on 35mm microfilm, if requested by Commission
staff.
(2) The drawings must show a plan, elevation, profile, and section
of the dam structure and powerplant. Generating and auxiliary equipment
proposed must be clearly and simply depicted and described. A north
arrow must be included on the plan view.
(f) Exhibit G is a map of the project. The map need not conform to
the specifications of Sec. 4.39. The exhibit must instead conform to the
following requirements:
(1) The exhibit is a map or maps that show the location of all
project works and their location in relation to the stream or other
water body on which the project is located and to the nearest town or
any permanent monuments or objects, such as roads, transmission lines,
or other structures, that can be noted on the map and recognized in the
field. In the case of unsurveyed public land, or land that is not public
land, give the best legal description available. If surveyed land,
provide sections, subdivisions, range and township, and principal base
and meridian.
(2) The map must consist of ink drawings or drawings of similar
quality on sheets no smaller than 8 and one-half inches by 11 inches and
not larger than 24 inches by 36 inches, drawn to a scale no smaller than
one inch equals 1,000 feet. After review of the application, the
applicant must submit an original of the map(s), if requested by
Commission staff. Each original map must consist of a print on silver or
gelatin 35mm microfilm mounted on Type D (3\1/4\' x 7\3/8\') aperture
cards. Two duplicates of each original must also be submitted at that
time.
[[Page 123]]
(3)(i) If an application for a license for a minor water power
project that will not occupy any public lands or reservations of the
United States does not contain a statement that the applicant requests
the Commission to apply the provisions of Part I of the Federal Power
Act enumerated in Sec. 4.60(c), the applicant:
(A) Must provide a reasonably accurate description of the project
location and all project works and features; and
(B) Must identify, in Exhibit G of its application, the owners of
all lands necessary for the construction and operation of the project;
but
(C) Need not show a project boundary.
(ii) If an application for a license for a minor water power project
contains a statement that the applicant requests the Commission to apply
the provisions of Part I of the Federal Power Act enumerated in
Sec. 4.60(c), the applicant must show the project boundary on the map it
submits as Exhibit G to its application, as specified in
Sec. 4.41(h)(2).
(iii) If an application for a license for a minor water power
project proposes that the project would occupy any public lands or
reservations of the United States, the applicant must show the project
boundaries on public lands and reservations on the map it submits as
Exhibit G to its application, as specified in Sec. 4.41(h)(2).
(4) Water power projects not excepted by paragraph (f)(3) of this
section must include a project boundary as follows:
(i) The project boundary must enclose all project works, such as the
dam, reservoir, pipelines, access and other roads, powerplant, and
transmission lines. The boundary must be set at the minimum feasible
distance from project works necessary to allow operation and maintenance
of the project and control of the shoreline and reservoir. The project
boundary may be contour elevation lines, specified courses and
distances, or lines upon or parallel to public land survey lines.
(ii) The project boundary must be depicted on the map by use of
contour lines (preferred method), courses and distances, public land
survey, or lines parallel to the lines of the survey, or any combination
of those methods for reservoirs and impoundments, and the project
boundary around dams, spillways, and powerhouses; and must be depicted
by specified distances from a surveyed center line or offset lines of
survey for continuous features such as access roads, transmission lines,
pipelines, or canals. A tape-compass survey is acceptable for
determining courses and distances.
(iii) Federal lands. Any public lands and reservations of the United
States (see 16 U.S.C. 796 (1) and (2)) (Federal lands) that are within
the project boundary, e.g., lands administered by the U.S. Forest
Service, Bureau of Land Management, National Park Service, or Indian
tribal lands, and the boundaries of those Federal lands, must be
identified on the map:
(A) By legal subdivisions of a public land survey of the affected
area (a protraction of identified township and section lines is
sufficient for this purpose);
(B) By the Federal agency, identified by symbol or legend if
desired, that maintains or manages each identified subdivision of the
public land survey within the project boundary; and
(C) In the absence of a public land survey, by the location of the
Federal lands according to the distances and directions from fixed
monuments or physical features.
(iv) For clarity, use inset sketches to a larger scale than that
used for the overview map to show relationships of project works,
natural features, and property lines.
(v) Show one or more ties by distance and bearing from a definite,
identifiable point or points on project works or the project boundary to
established corners of the public land survey or other survey monuments,
if available.
(vi) If the project affects unsurveyed Federal lands, the
protraction of township and section lines must be shown. Such
protractions, whenever available, must be those recognized by the agency
of the United States having jurisdiction over the lands. On unsurveyed
lands, show ties by distance and bearing to fixed recognizable objects.
[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]
[[Page 124]]
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 or other hydroelectric project authorized by Congress to the
point of junction with the distribution system or with the
interconnected primary transmission system.
[Order 184, 46 FR 55942, Nov. 13, 1981]
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]
[[Page 125]]
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.
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;
[[Page 126]]
(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;
and
(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.
(d) Exhibit 3 must contain a statement of costs and financing,
specifying and including, to the extent possible:
(1) The estimated costs of carrying out or preparing the studies,
investigations, tests, surveys, maps, plans or specifications identified
under paragraph (c) of this section;
(2) 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
(3) A description of the proposed market for the power generated at
the project, including:
(i) The identity of the proposed purchaser(s) of the power, and any
information that is available concerning the revenues to be derived from
the sale of the power; or
(ii) If the applicant proposes to utilize the power output, the size
of the applicant's power system, system peak demand and annual energy
requirements, and the number of customers served by the applicant.
(e) Exhibit 4 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
[[Page 127]]
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 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]
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
[[Page 128]]
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]
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)(26), 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]
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)(26), the facility qualifies but for the discharge
requirement of Sec. 4.30(b)(26)(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)(26)(v), filed pursuant to
Sec. 385.207 of this chapter);
(2) Exhibits A, B, E, 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)(26) of this subpart''
or ``Sec. 4.30(b)(26) 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)(26)(v), add the following sentence: ``This application is
accompanied by a petition for waiver of Sec. 4.30(b)(26)(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 B 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.
[[Page 129]]
(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;
(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)(26)(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 B. Exhibit B is a general location map that must show
the following information:
(1) The physical structures of the small conduit hydroelectric
facility in relation to the conduit and any dam to which any of these
structures is attached;
(2) A proposed project boundary enclosing all project works to be
exempted from licensing; and
(3) The ownership of the parcels of land within the proposed
boundary for the small conduit hydroelectric facility.
(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.
[[Page 130]]
(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 G. Exhibit G is a set of drawings showing the structures
and equipment of the small conduit hydroelectric facility. The drawings
must include plan, elevation, profile, section views of the power plant,
and any other principal facility structure and of any dam to which a
facility structure is attached. Each drawing must be an ink drawing or a
drawing of similar quality on a sheet no smaller than eight and one-half
inches by eleven inches, with a scale no smaller than one inch equals 50
feet for plans and profiles and one inch equals 10 feet for sections.
Generating and auxiliary equipment must be clearly and simply depicted
and described. For purposes of this subpart, these drawing
specifications replace those required in Sec. 4.39 of the Commission's
regulations.
[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]
Sec. 4.93 Action on exemption applications.
(a) An application for exemption that does not meet the eligibility
requirements of Sec. 4.30(b)(26)(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.
(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]
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
[[Page 131]]
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, 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
[[Page 132]]
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]
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)(27).
(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]
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
[[Page 133]]
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 Secs. 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 Secs. 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 Secs. 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 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:
[[Page 134]]
(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 resouces 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 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:
[[Page 135]]
(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:
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 licensuing 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.
[[Page 136]]
(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 B. Exhibit B is a general location map, which may be
prepared on United States Geological Survey topographic quadrangle
sheets or similar topographic maps of a state agency, enlarged, if
necessary, to show clearly and legibly all of the information required
by this paragraph. The map must show the following information:
(1) The location of the existing and proposed physical structures of
the small hydroelectric power project, including any dam or diversion
structure, reservoir or impoundment, penstocks, pipelines, power plants,
access roads, transmission lines, and other important features.
(2) The relationship of the project structures to the stream or
other body of water on which the project is located and to the nearest
town or other permanent objects that can be readily recognized in the
field.
(3) A description of who owns or otherwise has real property
interests in any tract of land occupied by the small hydroelectric power
project or the structures to which it is directly connected.
(4) A proposed project boundary enclosing project works to be
exempted from licensing.
(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 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 G. Exhibit G is a set of drawings showing the structures
and equipment, that is, the proposed and
[[Page 137]]
existing project works, of the small hydroelectric power project. The
drawings must include plan, elevation, and section views of the power
plant, any existing dam or diversion structure, and any other principal
structure of the project.
[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]
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 on the license for commencement or
completion of project works.
[Order 184, 46 FR 55943, Nov. 13, 1981]
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 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
[[Page 138]]
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 determiend 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 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
[[Page 139]]
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 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
[[Page 140]]
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 Hydropower Licensing (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 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
[[Page 141]]
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 Hydropower Licensing 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.
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 Commision 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
[[Page 142]]
and the cost statement will not be reimbursed until any amounts owed to
other agencies have been paid.
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 Secs. 4.30 to 4.33, inclusive, of this chapter. For application for
license for proposed major project or minor part thereof, see Secs. 4.40
to 4.42, inclusive, of this chapter. For application for license for
constructed major project or minor part thereof, see Secs. 4.50 and 4.51
of this chapter. For forms for application for licenses, see Secs. 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
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
[[Page 143]]
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 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
[[Page 144]]
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]
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. 4.31 of this
chapter.
[Order 501, 39 FR 2267, Jan. 18, 1974]
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
[[Page 145]]
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. 4.31 of this chapter. Such application
and action thereon by the Commission will, in general, be subject to the
provisions of Secs. 9.1 through 9.3.
[Order 501, 39 FR 2267, Jan. 18, 1974]
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 1999
Authority: 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352.
[[Page 146]]
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.
(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
[[Page 147]]
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.
(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
[[Page 148]]
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]
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
[[Page 149]]
(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.
(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 Hydropower Licensing 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]
[[Page 150]]
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.
(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
[[Page 151]]
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 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: 51 FR 24318, July 3, 1986, unless otherwise noted.
[[Page 152]]
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.
(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
[[Page 153]]
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.
(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.
[[Page 154]]
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 dowstream project are
attributed to the headwater projects according to 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:
[[Page 155]]
[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 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
[[Page 156]]
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 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.
[[Page 157]]
(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.
(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
[[Page 158]]
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 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 1999
------------------------------------------------------------------------
State County Rate per acre
------------------------------------------------------------------------
Alabama........................ All Counties........... $24.53
Arkansas....................... All Counties........... 18.41
Arizona........................ Apache................. 6.12
Cochise................
Gila...................
Graham.................
La Paz.................
Mohave.................
Navajo.................
Pima...................
Yavapai................
Yuma...................
Coconino North of
Colorado River.
Coconino South of 24.53
Colorado River.
Greenlee...............
[[Page 159]]
Maricopa...............
Pinal..................
Santa Cruz.............
California..................... Imperial............... 12.27
Inyo...................
Lassen.................
Modoc..................
Riverside..............
San Bernardino.........
Siskiyou............... 18.41
Alameda................ 30.67
Alpine.................
Amador.................
Butte..................
Calaveras..............
Colusa.................
Contra Costa...........
Del Norte..............
El Dorado..............
Fresno.................
Glenn..................
Humboldt...............
Kern...................
Kings..................
Lake...................
Madera.................
Mariposa...............
Mendocino..............
Merced.................
Mono...................
Napa...................
Nevada.................
Placer.................
Plumas.................
Sacramento.............
San Benito.............
San Joaquin............
Santa Clara............
Shasta.................
Sierra.................
Solano.................
Sonoma.................
Stanislaus.............
Sutter.................
Tehama.................
Trinity................
Tulare.................
Tuolumne...............
Yolo...................
Yuba...................
Los Angeles............ 36.82
Marin..................
Monterey...............
Orange.................
San Diego..............
San Francisco..........
San Luis Obispo........
San Mateo..............
Santa Barbara..........
Santa Cruz.............
Ventura................
Colorado....................... Adams.................. 6.12
Arapahoe...............
Bent...................
Cheyenne...............
Crowley................
Elbert.................
El Paso................
Huerfano...............
Kiowa..................
Kit Carson.............
Lincoln................
[[Page 160]]
Logan..................
Moffat.................
Montezuma..............
Morgan.................
Pueblo.................
Sedgwick...............
Washington.............
Weld...................
Yuma...................
Baca................... 12.27
Dolores................
Garfield...............
Las Animas.............
Mesa...................
Montrose............... 12.27
Otero..................
Prowers................
Rio Blanco.............
Routt..................
San Miguel.............
Alamosa................ 24.53
Archuleta..............
Boulder................
Chaffee................
Clear Creek............
Conejos................
Costilla...............
Custer.................
Denver.................
Delta..................
Douglas................
Eagle..................
Fremont................
Gilpin.................
Grand..................
Gunnison...............
Hinsdale...............
Jackson................
Jefferson..............
Lake...................
La Plata...............
Larimer................
Mineral................
Ouray..................
Park...................
Pitkin.................
Rio Grande.............
Saguache...............
San Juan...............
Summit.................
Teller.................
Connecticut.................... All Counties........... 6.12
Florida........................ Baker.................. 36.82
Bay
Bradford
Calhoun
Clay
Columbia
Dixie
Duval
Escambia
Franklin
Gadsden
Gilchrist
Gulf
Hamilton
Holmes
Jackson
Jefferson
Lafayette
Leon
Liberty
[[Page 161]]
Madison
Nassau
Okaloossa
Santa Rosa
Suwannee
Tayor
Union
Wakulla
Walton
Washington
All Counties........... 61.34
Georgia........................ All Counties........... 36.82
Idaho.......................... Cassia................. 6.12
Gooding
Jerome
Lincoln
Minidoka
Oneida
Owyhee
Power
Twin Falls
Ada.................... 18.41
Adams
Bannock
Bear Lake
Benewah
Bingham
Blaine
Boise
Bonner
Bonneville
Boundary
Butte
Camas
Canyon
Caribou
Clark
Clearwater
Custer
Elmore
Franklin
Fremont
Gem
Idaho
Jefferson
Kootenai
Latah
Lemhi
Lewis
Madison
Nez Perce
Payette................ 18.41
Shoshone
Teton
Valley
Washington
Kansas......................... All Counties........... 6.12
Morton................. 12.27
Illinois....................... All counties........... 18.41
Indiana........................ All counties........... 30.67
Kentucky....................... All counties........... 18.41
Louisiana...................... All counties........... 36.82
Maine.......................... All counties........... 18.41
Michigan....................... Alger.................. 18.41
Baraga
Chippewa
Dickinson
Delta
Gogebic
Houghton
Iron
Keweenaw
[[Page 162]]
Luce
Mackinac
Marquette
Menominee
Ontonagon
Schoolcraft
All Counties........... 24.53
Minnesota...................... All counties........... 18.41
Mississippi.................... All counties........... 24.53
Missouri....................... All counties........... 18.41
Montana........................ Big Horn............... 6.12
Blaine
Carter
Cascade
Chouteau
Custer
Daniels
McCone
Meagher
Dawson
Fallon
Fergus
Garfield
Glacier................ 6.12
Golden Valley
Hill
Judith Basin
Liberty
Musselshell
Petroleum
Phillips
Pondera
Powder River
Prairie
Richland
Roosevelt
Rosebud
Sheridan
Teton
Toole
Treasure
Valley
Wheatland
Wibaux
Yellowstone
Beaverhead............. 18.41
Broadwater
Carbon
Deer Lodge
Flathead
Gallatin
Granite
Jefferson
Lake
Lewis & Clark
Lincoln
Madison
Mineral
Missoula
Park
Powell
Ravalli
Sanders
Silver Bow
Stillwater............. 18.41
Sweet Grass
Nebraska....................... All Counties........... 6.12
Nevada......................... Churchill.............. 3.06
Clark
Elko
Esmeralda
Eureka
[[Page 163]]
Humboldt
Lander
Lincoln
Lyon
Mineral
Nye
Pershing
Washoe
White Pine
Carson City............ 30.67
Douglas
Storey
New Hampshire.................. All Counties........... 18.41
New Mexico..................... Chaves................. 6.12
Curry
De Baca
Dona Ana
Eddy
Grant
Guadelupe
Harding................ 6.12
Hidalgo
Lea
Luna
McKinley
Otero
Quay
Roosevelt
San Juan
Socorro
Torrance
Rio Arriba............. 12.27
Sandoual
Union
Bernalillo............. 24.53
Catron
Cibola
Colfax
Lincoln
Los Alamos
Mora
San Miguel
Santa Fe
Sierra
Taos
Valencia
New York....................... All Counties........... 24.53
North Carolina................. All Counties........... 36.82
North Dakota................... All Counties........... 6.12
Ohio........................... All Counties........... 24.53
Oklahoma....................... All Other Counties..... 6.12
Beaver................. 12.27
Cimarron...............
Roger Mills............
Texas..................
Le Flore............... 18.41
Mc Curtain.............
Oregon......................... Harney................. 6.12
Lake...................
Malheur................
Baker.................. 12.27
Crook..................
Deschutes..............
Gilliam................
Grant..................
Jefferson..............
Klamath................
Morrow.................
Sherman................
Umatilla...............
Union..................
Wallowa................
[[Page 164]]
Wasco.................. 12.27
Wheeler................
Coos................... 18.41
Curry..................
Douglas................
Jackson................
Josephine..............
Benton................. 24.53
Clackamas..............
Clatsop................
Columbia...............
Hood River.............
lane...................
Lincoln................
Linn...................
Marion.................
Multnomah..............
Polk...................
Tillamock..............
Washington.............
Yamhill................
Pennsylvania................... All Counties........... 24.53
Puerto Rico.................... All.................... 36.82
South Dakota................... Butte.................. 18.41
Custer.................
Fall River.............
Lawrence...............
Mead................... 18.41
Pennington.............
All Other Counties..... 6.12
South Carolina................. All Counties........... 36.82
Tennessee...................... All Counties........... 24.53
Texas.......................... Culberson.............. 6.12
El Paso................
Hudspeth...............
All Other Counties..... 36.82
Utah........................... Beaver................. 6.12
Box Elder..............
Carbon.................
Duchesne...............
Emery..................
Garfield...............
Grand..................
Iron...................
Jaub...................
Kane...................
Millard................
San Juan...............
Tooele.................
Uintah.................
Wayne..................
Washington............. 12.27
Cache.................. 18.41
Daggett................
Davis..................
Morgan.................
Piute..................
Rich...................
Salt Lake..............
Sanpete................
Sevier.................
Summit.................
Utah...................
Wasatch................
Weber..................
Vermont........................ All Counties........... 24.53
Virginia....................... All Counties........... 24.53
Washington..................... Adams.................. 12.27
Asotin.................
Benton.................
Chelan.................
Columbia...............
[[Page 165]]
Douglas................
Franklin...............
Garfield...............
Grant..................
Kittitas...............
Klickitat..............
Lincoln................
Okanagan...............
Spokane................
Walla Walla............ 12.27
Whitman................
Yakima.................
Ferry.................. 18.41
Pend Oreille...........
Stevens................
Callam................. 24.53
Clark..................
Cowlitz................
Grays Harbor...........
Island.................
Jefferson..............
King...................
Kitsap.................
Lewis..................
Mason..................
Pacific................
Pierce.................
San Juan...............
Skagit.................
Skamania...............
Snohomish..............
Thurston...............
Wahkiakum..............
Whatcom................
West Virginia.................. All Counties........... 24.53
Wisconsin...................... All Counties........... 18.41
Wyoming........................ Albany................. 6.12
Campbell...............
Cargon.................
Converse...............
Goshen.................
Hot Springs............
Johnson................
Laramie................
Lincoln................
Natrona................
Niobrara...............
Platte.................
Sheridan...............
Sweetwater.............
Fremont................
Sublette...............
Uinta..................
Washakie...............
Big Horn............... 18.41
Crook..................
Park...................
Teton..................
Weston.................
All Other Zones................ ..................... 6.53
------------------------------------------------------------------------
[[Page 166]]
[63 FR 66004, Dec. 1, 1998]