[Title 18 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2018 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 18
Conservation of Power and Water Resources
________________________
Parts 1 to 399
Revised as of April 1, 2018
Containing a codification of documents of general
applicability and future effect
As of April 1, 2018
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 18:
Chapter I--Federal Energy Regulatory Commission,
Department of Energy 3
Finding Aids:
Table of CFR Titles and Chapters........................ 1259
Alphabetical List of Agencies Appearing in the CFR...... 1279
List of CFR Sections Affected........................... 1289
[[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.
----------------------------
[[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, 2018), 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
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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
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
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.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
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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 Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
For a legal interpretation or explanation of any regulation in this
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available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
April 1, 2018
[[Page ix]]
THIS TITLE
Title 18--Conservation of Power and Water Resources is composed of
two volumes. The first volume containing parts 1--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, 2018.
The OMB control numbers for the Federal Energy Regulatory
Commission, Department of Energy, appear in Sec. 389.101 of chapter I.
For this volume, Gabrielle E. Burns was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[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
Abbreviations Used in This Chapter:
M.c.f. = Thousand cubic feet. B.t.u. = British thermal units. ICC =
Interstate Commerce Commission.
[[Page 3]]
CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
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SUBCHAPTER A--GENERAL RULES
Part Page
1 Rules of general applicability.............. 9
1b Rules relating to investigations............ 9
1c Prohibition of energy market manipulation... 14
2 General policy and interpretations.......... 15
3 [Reserved]
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
5 Integrated license application process...... 142
6 Surrender or termination of license......... 175
8 Recreational opportunities and development
at licensed projects.................... 176
9 Transfer of license or lease of project
property................................ 177
11 Annual charges under Part I of the Federal
Power Act............................... 178
12 Safety of water power projects and project
works................................... 212
16 Procedures relating to takeover and
relicensing of licensed projects........ 225
20 Authorization of the issuance of securities
by licensees and companies subject to
sections 19 and 20 of the Federal Power
Act..................................... 247
24 Declaration of intention.................... 248
25 Application for vacation of withdrawal and
for determination permitting restoration
to entry................................ 248
32 Interconnection of facilities............... 250
33 Applications under Federal Power Act section
203..................................... 251
34 Application for authorization of the
issuance of securities or the assumption
of liabilities.......................... 265
[[Page 4]]
35 Filing of rate schedules and tariffs........ 268
36 Rules concerning applications for
transmission services under section 211
of the Federal Power Act................ 351
37 Open access same-time information systems... 352
38 Standards for public utility business
operations and communications........... 361
39 Rules concerning certification of the
Electric Reliability Organization; and
procedures for the establishment,
approval, and enforcement of electric
reliability standards................... 363
40 Mandatory reliability standards for the
bulk-power system....................... 372
41 Accounts, records, memoranda and disposition
of contested audit findings and proposed
remedies................................ 372
42 Long-term firm transmission rights in
organized electricity markets........... 375
45 Application for authority to hold
interlocking positions.................. 376
46 Public utility filing requirements and
filing requirements for persons holding
interlocking positions.................. 382
50 Applications for permits to site interstate
electric transmission facilities........ 385
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..................................... 395
104 Note [Reserved]............................. 526
125 Preservation of records of public utilities
and licensees........................... 526
SUBCHAPTER D--APPROVED FORMS, FEDERAL POWER ACT AND PUBLIC UTILITY
REGULATORY POLICIES ACT OF 1978
131 Forms....................................... 535
141 Statements and reports (schedules).......... 542
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.... 548
153 Applications for authorization to construct,
operate, or modify facilities used for
the export or import of natural gas..... 549
[[Page 5]]
154 Rate schedules and tariffs.................. 555
156 Applications for orders under section 7(a)
of the Natural Gas Act.................. 585
157 Applications for certificates of public
convenience and necessity and for orders
permitting and approving abandonment
under section 7 of the Natural Gas Act.. 592
158 Accounts, records, memoranda and disposition
of contested audit findings and proposed
remedies................................ 636
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....... 640
204 Note [Reserved]............................. 786
225 Preservation of records of natural gas
companies............................... 786
SUBCHAPTER G--APPROVED FORMS, NATURAL GAS ACT
250 Forms....................................... 794
260 Statements and reports (schedules).......... 796
SUBCHAPTER H--PROCEDURES GOVERNING DETERMINATIONS FOR TAX CREDIT
PURPOSES
270 Determination procedures.................... 803
SUBCHAPTER I--OTHER REGULATIONS UNDER THE NATURAL GAS POLICY ACT OF 1978
AND RELATED AUTHORITIES
280 General provisions applicable to Subchapter
I....................................... 815
281 Natural gas curtailment under the Natural
Gas Policy Act of 1978.................. 815
284 Certain sales and transportation of natural
gas under the Natural Gas Policy Act of
1978 and related authorities............ 827
286 Accounts, records, memoranda and disposition
of contested audit findings and proposed
remedies................................ 859
SUBCHAPTER J--REGULATIONS UNDER THE POWERPLANT AND INDUSTRIAL FUEL USE
ACT OF 1978
287 Rules generally applicable to powerplant and
industrial fuel use..................... 862
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......... 863
[[Page 6]]
292 Regulations under sections 201 and 210 of
the Public Utility Regulatory Policies
Act of 1978 with regard to small power
production and cogeneration............. 864
294 Procedures for shortages of electric energy
and capacity under section 206 of the
Public Utility Regulatory Policies Act
of 1978................................. 885
SUBCHAPTER L--REGULATIONS FOR FEDERAL POWER MARKETING ADMINISTRATIONS
300 Confirmation and approval of the rates of
Federal power marketing administrations. 888
301 Average system cost methodology for sales
from utilities to Bonneville Power
Administration under Northwest Power Act 894
SUBCHAPTERS M-O [RESERVED]
SUBCHAPTER P--REGULATIONS UNDER THE INTERSTATE COMMERCE ACT
340 Rate schedules and tariffs.................. 936
341 Oil pipeline tariffs: Oil pipeline companies
subject to section 6 of the Interstate
Commerce Act............................ 937
342 Oil pipeline rate methodologies and
procedures.............................. 943
343 Procedural rules applicable to oil pipeline
proceedings............................. 945
344 Filing quotations for U.S. Government
shipments at reduced rates.............. 947
346 Oil pipeline cost-of-service filing
requirements............................ 947
347 Oil pipeline depreciation studies........... 949
348 Oil pipeline applications for market power
determinations.......................... 950
349 Disposition of contested audit findings and
proposed remedies....................... 952
SUBCHAPTER Q--ACCOUNTS UNDER THE INTERSTATE COMMERCE ACT
351 Financial statements released by carriers... 955
352 Uniform systems of accounts prescribed for
oil pipeline companies subject to the
provisions of the Interstate Commerce
Act..................................... 955
SUBCHAPTER R--APPROVED FORMS, INTERSTATE COMMERCE ACT
356 Preservation of records for oil pipeline
companies............................... 996
[[Page 7]]
357 Annual special or periodic reports: Carriers
subject to part I of the Interstate
Commerce Act............................ 1000
SUBCHAPTER S--STANDARDS OF CONDUCT FOR TRANSMISSION PROVIDERS
358 Standards of conduct........................ 1003
SUBCHAPTER T [RESERVED]
SUBCHAPTER U--REGULATIONS UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT
OF 2005, FEDERAL POWER ACT AND NATURAL GAS ACT
366 Books and records........................... 1008
367 Uniform system of accounts for centralized
service companies subject to the
provisions of the Public Utility Holding
Company Act Of 2005, Federal Power Act
and Natural Gas Act..................... 1019
368 Preservation of records of holding companies
and service companies................... 1081
369 Statements and reports (schedules).......... 1088
SUBCHAPTER W--REVISED GENERAL RULES
375 The Commission.............................. 1090
376 Organization, mission, and functions;
operations during emergency conditions.. 1112
380 Regulations implementing the National
Environmental Policy Act................ 1119
381 Fees........................................ 1151
382 Annual charges.............................. 1156
SUBCHAPTER X--PROCEDURAL RULES
385 Rules of practice and procedure............. 1161
388 Information and requests.................... 1236
389 OMB control numbers for Commission
information collection requirements..... 1253
390 Electronic registration..................... 1255
391-399 [Reserved]
[[Page 9]]
SUBCHAPTER A_GENERAL RULES
PART 1_RULES OF GENERAL APPLICABILITY--Table of Contents
Subpart A_Definitions and Rules of Construction
Sec.
1.101 Definitions.
1.102 Words denoting number, gender and so forth.
Authority: Dept. of Energy Organization Act, 42 U.S.C. 7101-7352;
E.O. 12009, 3 CFR 142 (1978); Administrative Procedure Act, 5 U.S.C. Ch.
5.
Subpart A_Definitions and Rules of Construction
Sec. 1.101 Definitions.
The definitions set forth in this section apply for purposes of this
chapter, except as otherwise provided in this chapter:
(a) Commission means the Federal Energy Regulatory Commission.
(b) Chairman means the Chairman of the Commission.
(c) Commissioner and Member mean a member of the Commission.
(d) Secretary means the Secretary of the Commission.
(e) Executive Director means the Executive Director of the
Commission.
(f) General Counsel means the General Counsel of the Commission.
(g) DOE Act means the Department of Energy Organization Act.
(h) DOE means the Department of Energy.
(i) Administrative law judge means an officer appointed under
section 3105 of title 5 of the United States Code.
(j) Attorney means an attorney admitted to practice before the
Supreme Court of the United States or the highest court of any State,
territory of the United States, or the District of Columbia, or any
other person with the requisite qualifications to represent others, who
acts in a representative capacity for any participant before the
Commission.
(k) State Commission means the regulatory body of any State or
municipality having jurisdiction to regulate rates or charges for the
sale of electric energy or natural gas to consumers or for the
transportation of oil by pipeline within the State or municipality.
(l) Oath includes affirmation and sworn includes affirmed.
[Order 225, 47 FR 19022, May 3, 1982; 48 FR 786, Jan. 7, 1983]
Sec. 1.102 Words denoting number, gender and so forth.
In determining the meaning of any provision of this chapter, unless
the context indicates otherwise:
(a) The singular includes the plural;
(b) The plural includes the singular;
(c) The present tense includes the future tense; and
(d) Words of one gender include the other gender.
[Order 225, 47 FR 19022, May 3, 1982]
PART 1b_RULES RELATING TO INVESTIGATIONS--Table of Contents
Sec.
1b.1 Definitions.
1b.2 Scope.
1b.3 Scope of investigations.
1b.4 Types of investigations.
1b.5 Formal investigations.
1b.6 Preliminary investigations.
1b.7 Procedure after investigation.
1b.8 Requests for Commission investigations.
1b.9 Confidentiality of investigations.
1b.10 By whom conducted.
1b.11 Limitation on participation.
1b.12 Transcripts.
1b.13 Powers of persons conducting formal investigations.
1b.14 Subpoenas.
1b.15 Non-compliance with compulsory processes.
1b.16 Rights of witnesses.
1b.17 Appearance and practice before the Commission.
1b.18 Right to submit statements.
1b.19 Submissions.
1b.20 Request for confidential treatment.
1b.21 Enforcement hotline.
1b.22 Landowner Helpline.
Authority: 15 U.S.C. 717-717z, 3301-3432; 16 U.S.C. 792-828c, 2601-
2645; 42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988);
E.O. 12009, 3 CFR 1978 Comp., p. 142.
Source: 43 FR 27174, June 23, 1978, unless otherwise noted.
[[Page 10]]
Sec. 1b.1 Definitions.
For purposes of this part--
(a) Formal investigation means an investigation instituted by a
Commission Order of Investigation.
(b) Preliminary Investigation means an inquiry conducted by the
Commission or its staff, other than a formal investigation.
(c) Investigating officer means the individual(s) designated by the
Commission in an Order of Investigation as Officer(s) of the Commission.
(d) Enforcement Hotline is a forum in which to address quickly and
informally any matter within the Commission's jurisdiction concerning
natural gas pipelines, oil pipelines, electric utilities and
hydroelectric projects.
[43 FR 27174, June 23, 1978, as amended by Order 602, 64 FR 17097, Apr.
8, 1999]
Sec. 1b.2 Scope.
This part applies to investigations conducted by the Commission but
does not apply to adjudicative proceedings.
Sec. 1b.3 Scope of investigations.
The Commission may conduct investigations relating to any matter
subject to its jurisdiction.
Sec. 1b.4 Types of investigations.
Investigations may be formal or preliminary, and public or private.
Sec. 1b.5 Formal investigations.
The Commission may, in its discretion, initiate a formal
investigation by issuing an Order of Investigation. Orders of
Investigation will outline the basis for the investigation, the matters
to be investigated, the officer(s) designated to conduct the
investigation and their authority. The director of the office
responsible for the investigation may add or delete Investigating
Officers in the Order of Investigation.
Sec. 1b.6 Preliminary investigations.
The Commission or its staff may, in its discretion, initiate a
preliminary investigation. In such investigations, no process is issued
or testimony compelled. Where it appears from the preliminary
investigation that a formal investigation is appropriate, the staff will
so recommend to the Commission.
Sec. 1b.7 Procedure after investigation.
Where it appears that there has been or may be a violation of any of
the provisions of the acts administered by the Commission or the rules,
opinions or orders thereunder, the Commission may institute
administrative proceedings, initiate injunctive proceedings in the
courts, refer matters, where appropriate, to the other governmental
authorities, or take other appropriate action.
Sec. 1b.8 Requests for Commission investigations.
(a) Any individual, partnership, corporation, association,
organization, or other Federal or State governmental entity, may request
the Commission to institute an investigation.
(b) Requests for investigations should set forth the alleged
violation of law with supporting documentation and information as
completely as possible. No particular forms or formal procedures are
requested.
(c) It is the Commission's policy not to disclose the name of the
person or entity requesting an investigation except as required by law,
or where such disclosure will aid the investigation.
Sec. 1b.9 Confidentiality of investigations.
All information and documents obtained during the course of an
investigation, whether or not obtained pursuant to subpoena, and all
investigative proceedings shall be treated as nonpublic by the
Commission and its staff except to the extent that (a) the Commission
directs or authorizes the public disclosure of the investigation; (b)
the information or documents are made a matter of public record during
the course of an adjudicatory proceeding; or (c) disclosure is required
by the Freedom of Information Act, 5 U.S.C. 552. Procedures by which
persons submitting information to the Commission during the course of an
investigation may specifically seek confidential treatment of
information for purposes of Freedom of Information Act disclosure are
set forth in 18 CFR part 3b and Sec. 1b.20. A request for confidential
treatment of information for purposes of Freedom of Information Act
disclosure shall not, however, prevent disclosure for law enforcement
[[Page 11]]
purposes or when disclosure is otherwise found appropriate in the public
interest and permitted by law.
Sec. 1b.10 By whom conducted.
Formal Commission investigations are conducted by the Commission or
by an individual(s) designated and authorized in the Order of
Investigation. Investigating Officers are officers within the meaning of
the statutes administered by the Commission and are authorized to
perform the duties of their office in accordance with the laws of the
United States and the regulations of the Commission. Investigating
Officers shall have such duties as the Commission may specify in an
Order of Investigation.
Sec. 1b.11 Limitation on participation.
There are no parties, as that term is used in adjudicative
proceedings, in an investigation under this part and no person may
intervene or participate as a matter of right in any investigation under
this part.
[43 FR 27174, June 23, 1978, as amended by Order 756, 77 FR 4893, Feb.
1, 2012]
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.
[43 FR 27174, June 23, 1978, as amended by Order 225, 47 FR 19054, May
3, 1982; Order 756, 77 FR 4893, Feb. 1, 2012]
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
by 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.
[43 FR 27174, June 23, 1978, as amended by Order 756, 77 FR 4893, Feb.
1, 2012]
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.
[[Page 12]]
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 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]
[[Page 13]]
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 considers relevant regarding the matters under
investigation.
Sec. 1b.19 Submissions.
In the event the Investigating Officer determines to recommend to
the Commission that an entity be made the subject of a proceeding
governed by part 385 of this chapter, or that an entity be made a
defendant in a civil action to be brought by the Commission, the
Investigating Officer shall, unless extraordinary circumstances make
prompt Commission review necessary in order to prevent detriment to the
public interest or irreparable harm, notify the entity that the
Investigating Officer intends to make such a recommendation. Such notice
shall provide sufficient information and facts to enable the entity to
provide a response. Within 30 days of such notice, the entity may submit
to the Investigating Officer a non-public response, which may consist of
a statement of fact, argument, and/or memorandum of law, with such
supporting documentation as the entity chooses, showing why a proceeding
governed by part 385 of this chapter should not be instituted against
said entity, or why said entity should not be made a defendant in a
civil action brought by the Commission. If the response is submitted by
the due date, the Investigating Officer shall present it to the
Commission together with the Investigating Officer's recommendation. The
Commission will consider both the Investigating Officer's recommendation
and the entity's timely response in deciding whether to take further
action.
[Order 711, 73 FR 29433, May 21, 2008]
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.
[[Page 14]]
Sec. 1b.21 Enforcement hotline.
(a) The Hotline Staff may provide information to the public and give
informal staff opinions. The opinions given are not binding on the
General Counsel or the Commission.
(b) Except as provided for in paragraph (g) of this section, any
person may seek information or the informal resolution of a dispute by
calling or writing to the Hotline at the telephone number and address in
paragraph (f) of this section. The Hotline Staff will informally seek
information from the caller and any respondent, as appropriate. The
Hotline Staff will attempt to resolve disputes without litigation or
other formal proceedings. The Hotline Staff may not resolve matters that
are before the Commission in docketed proceedings.
(c) All information and documents obtained through the Hotline Staff
shall be treated as non-public by the Commission and its staff,
consistent with the provisions of section 1b.9 of this part.
(d) Calls to the Hotline may be made anonymously.
(e) Any person who contacts the Hotline is not precluded from filing
a formal action with the Commission if discussions assisted by Hotline
Staff are unsuccessful at resolving the matter. A caller may terminate
use of the Hotline procedure at any time.
(f) The Hotline may be reached by calling (202) 502-8390 or 1-888-
889-8030 (toll free), by e-mail at [email protected], or writing to:
Enforcement Hotline, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426.
[Order 602, 64 FR 17097, Apr. 8, 1999, as amended by Order 647, 69 FR
32438, June 10, 2004; Order 734, 75 FR 21505, Apr. 26, 2010; Order 821,
81 FR 5379, Feb. 2, 2016]
Sec. 1b.22 Landowner Helpline.
(a) Any person affected by either the construction or operation of a
certificated or authorized natural gas project under the Natural Gas Act
or by the construction or operation of a project under the Federal Power
Act may seek the informal resolution of a dispute by contacting the
Commission's Landowner Helpline. The Commission's Landowner Helpline may
be reached by calling toll-free at 1-877-337-2237, or by email at
[email protected], or writing to: Commission's Landowner Helpline,
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426.
(b) Any person who contacts the Landowner Helpline is not precluded
from filing a formal action with the Commission if discussions assisted
by the Landowner Helpline staff are unsuccessful at resolving the
matter. A caller may terminate the use of alternative dispute resolution
procedures at any time.
[Order 821, 81 FR 5379, Feb. 2, 2016]
PART 1c_PROHIBITION OF ENERGY MARKET MANIPULATION--Table of Contents
Sec.
1c.1 Prohibition of natural gas market manipulation.
1c.2 Prohibition of electric energy market manipulation.
Authority: 15 U.S.C. 717-717z; 16 U.S.C. 791-825r, 2601-2645; 42
U.S.C. 7101-7352.
Source: 71 FR 4258, Jan. 26, 2006, unless otherwise noted.
Sec. 1c.1 Prohibition of natural gas market manipulation.
(a) It shall be unlawful for any entity, directly or indirectly, in
connection with the purchase or sale of natural gas or the purchase or
sale of transportation services subject to the jurisdiction of the
Commission,
(1) To use or employ any device, scheme, or artifice to defraud,
(2) To make any untrue statement of a material fact or to omit to
state a material fact necessary in order to make the statements made, in
the light of the circumstances under which they were made, not
misleading, or
(3) To engage in any act, practice, or course of business that
operates or would operate as a fraud or deceit upon any entity.
(b) Nothing in this section shall be construed to create a private
right of action.
Sec. 1c.2 Prohibition of electric energy market manipulation.
(a) It shall be unlawful for any entity, directly or indirectly, in
connection
[[Page 15]]
with the purchase or sale of electric energy or the purchase or sale of
transmission services subject to the jurisdiction of the Commission,
(1) To use or employ any device, scheme, or artifice to defraud,
(2) To make any untrue statement of a material fact or to omit to
state a material fact necessary in order to make the statements made, in
the light of the circumstances under which they were made, not
misleading, or
(3) To engage in any act, practice, or course of business that
operates or would operate as a fraud or deceit upon any entity.
(b) Nothing in this section shall be construed to create a private
right of action.
PART 2_GENERAL POLICY AND INTERPRETATIONS--Table of Contents
Statements of General Policy and Interpretations of the Commission
Sec.
2.1 Initial notice; service; and information copies of formal documents.
2.1a Public suggestions, comments, proposals on substantial prospective
regulatory issues and problems.
2.1b Availability in contested cases of information acquired by staff
investigation.
2.1c Policy statement on consultation with Indian tribes in Commission
proceedings.
Statements of General Policy and Interpretations Under the Federal Power
Act
2.2 Transmission lines.
2.4 Suspension of rate schedules.
2.7 Recreational development at licensed projects.
2.8 [Reserved]
2.9 Conditions in preliminary permits and licenses--list of and
citations to ``P--'' and ``L--'' forms.
2.12 Calculation of taxes for property of public utilities and licensees
constructed or acquired after January 1, 1970.
2.13 Design and construction.
2.15 Specified reasonable rate of return.
2.17 Price discrimination and anticompetitive effect (price squeeze
issue).
2.18 Phased electric rate increase filings.
2.19 State and Federal comprehensive plans.
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.
Non-Mandatory Guidance on Smart Grid Standards
2.27 Availability of North American Energy Standards Board (NAESB) Smart
Grid Standards as non-mandatory guidance.
Statements of General Policy and Interpretations Under the Natural Gas
Act
2.51 [Reserved]
2.52 Suspension of rate schedules.
2.55 Auxiliary installations and replacement facilities.
2.57 Temporary certificates--pipeline companies.
2.60 Facilities and activities during an emergency--accounting treatment
of defense-related expenditures.
2.67 Calculation of taxes for property of pipeline companies constructed
or acquired after January 1, 1970.
2.69 [Reserved]
2.76 Regulatory treatment of payments made in lieu of take-or-pay
obligations.
2.78 Utilization and conservation of natural resources--natural gas.
Statement of General Policy To Implement Procedures for Compliance With
the National Environmental Policy Act of 1969
2.80 Detailed environmental statement.
Statement of General Policy To Implement the Economic Stabilization Act
of 1970, as Amended, and Executive Orders 11615 and 11627
2.100-2.102 [Reserved]
2.103 Statement of policy respecting take or pay provisions in gas
purchase contracts.
2.104 Mechanisms for passthrough of pipeline take-or-pay buyout and
buydown costs.
2.105 Gas supply charges.
Rules of General Applicability
2.201 [Reserved]
Statements of General Policy and Interpretations under the Natural Gas
Policy Act of 1978
2.300 Statement of policy concerning allegations of fraud, abuse, or
similar grounds under section 601(c) of the NGPA.
[[Page 16]]
Statement of Interpretation Under the Public Utility Regulatory Policies
Act of 1978
2.400 Statement of interpretation of waste concerning natural gas as the
primary energy source for qualifying small power production
facilities.
Statement of Penalty Reduction/Waiver Policy To Comply With the Small
Business Regulatory Enforcement Fairness Act of 1996
2.500 Penalty reduction/waiver policy for small entities.
Appendix A to Part 2--Guidance for Determining the Acceptable
Construction Area for Auxiliary and Replacement Facilities
Appendix B to Part 2 [Reserved]
Appendix C to Part 2--Nationwide Proceeding Computation of Federal
Income Tax Allowance Independent Producers, Pipeline
Affiliates and Pipeline Producers Continental U.S.
Authority: 5 U.S.C. 601; 15 U.S.C. 717-717z, 3301-3432; 16 U.S.C.
792-828c, 2601-2645; 42 U.S.C. 4321-4370h, 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 or e-mailing of individual copies shall be confined to that
which is required by law, by the Commission's rules and regulations, or
by other considerations deemed valid by the Secretary in specific
instances.
(1) It is the policy of the Commission to publish notice in the
Federal Register upon the institution of the following proceedings
before the Commission:
(i) Natural gas pipeline companies and public utility rate schedules
and tariffs. (A) Initial rate schedule filings and changes in rates
schedules proposed by public utilities and changes in rate schedules or
tariffs proposed by natural gas pipeline companies, including purchased
gas adjustment clauses.
(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.
[[Page 17]]
(B) Applications pursuant to sections 8 and 9 of the Natural Gas
Act.
(vi) Federal rates. (A) Application for confirmation and approval of
rate schedules for Federal hydroelectric projects.
(vii) Natural gas pipeline certificates, exportations, and
importations, Natural Gas Act. (A) Applications for exemption under
section 1(c).
(B) Applications for authorization to import and export gas under
section 3.
(C) Applications for orders directing physical connection of
facilities and sale of natural gas under section 7(a).
(D) Applications for permission and approval to abandon under
section 7(b).
(E) Applications for permanent certificates under section 7(c).
(F) [Reserved]
(G) Complaints against natural gas pipeline companies, filed by
individuals and companies, unless otherwise directed.
(viii)-(ix) [Reserved]
(x) Environmental statements. (A) Notice to be published pursuant to
Order series 415.
(xi) Miscellaneous, gas and electric. (A) Order instituting an
investigation in which hearings are fixed or in which an opportunity is
given for filing comments or petitions to intervene.
(B) Show cause order, in which hearings are fixed or in which an
opportunity is given for filing comments or petitions to intervene.
(C) Order or notice consolidating proceedings for hearing purposes
or severing a proceeding formerly consolidated for hearing purposes.
(D) Applications for declaratory order, disclaimers of jurisdiction,
or waiver of Commission regulations, unless otherwise directed.
(E) Requests for redesignation, unless otherwise directed.
(F) Requests for extension of time pursuant to Sec. 385.2008 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) Proposed penalties under section 31 of the Federal Power Act.
(L) Such other notices or orders as may be submitted by the
Secretary for publication.
(2) Otherwise directed, as referred to above, shall be interpreted
to mean notice given by the discretion of the Secretary.
(b) After notice has been given, the service of formal documents
issued in a proceeding shall be confined to the parties of record or
their attorneys, and the mailing or e-mailing of information copies
shall be confined to that which is required by the Commission's rules
and regulations, by courtesy in response to written requests for copies,
or by other considerations deemed valid by the Secretary in specific
instances.
(Secs. 308, 309; 49 Stat. 858; 16 U.S.C. 825g, 825h; secs. 15, 16; 52
Stat. 829, 830; 15 U.S.C. 717n, 717o)
[Order 211, 24 FR 1345, Feb. 21, 1959, as amended by Order 463, 37 FR
28054, Dec. 20, 1972; 38 FR 3192, Feb. 2, 1973; 44 FR 34941, June 18,
1979; 45 FR 21224, Apr. 1, 1980; Order 541, 57 FR 21733, May 22, 1992;
Order 603, 64 FR 26603, May 14, 1999; Order 2002, 68 FR 51115, Aug. 25,
2003; Order 737, 75 FR 43402, July 26, 2010; Order 756, 77 FR 4893, Feb.
1, 2012]
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
[[Page 18]]
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 547, 41 FR 15004, Apr. 9, 1976, as amended by Order 225, 47 FR
19054, May 3, 1982]
Sec. 2.1b Availability in contested cases of information acquired by
staff investigation.
Pursuant to the Commission's authority under the Natural Gas Act,
particularly subsection (b) of section 8 thereof, and under the Federal
Power Act, particularly subsection (b) of section 301 thereof, upon
request by a party to the proceedings, or as required in conjunction
with the presentation of a Commission staff case of staff's cross-
examination of any other presentation therein, all relevant information
acquired by Commission staff, including workpapers pursuant to any staff
investigation conducted under sections 8, 10, or 14 of the Natural Gas
Act, and sections 301, 304 or 307 of the Federal Power Act, shall,
without further order of the Commission, be free from the restraints of
said subsection (b) of section 8 of the Natural Gas Act, and subsection
(b) of section 301 of the Federal Power Act, regarding the divulgence of
information, with respect to any matter hereafter set for formal
hearing.
[58 FR 38292, July 16, 1993]
Sec. 2.1c Policy statement on consultation with Indian tribes in
Commission proceedings.
(a) The Commission recognizes the unique relationship between the
United States and Indian tribes as defined by treaties, statutes, and
judicial decisions. Indian tribes have various sovereign authorities,
including the power to make and enforce laws, administer justice, and
manage and control their lands and resources. Through several Executive
Orders and a Presidential Memorandum, departments and agencies of the
Executive Branch have been urged to consult with federally-recognized
Indian tribes in a manner that recognizes the government-to-government
relationship between these agencies and tribes. In essence, this means
that consultation should involve direct contact between agencies and
tribes and should recognize the status of the tribes as governmental
sovereigns.
(b) The Commission acknowledges that, as an independent agency of
the federal government, it has a trust responsibility to Indian tribes
and this historic relationship requires it to adhere to certain
fiduciary standards in its dealings with Indian tribes.
(c) The Commission will endeavor to work with Indian tribes on a
government-to-government basis, and will seek to address the effects of
proposed projects on tribal rights and resources through consultation
pursuant to the Commission's trust responsibility, the Federal Power
Act, the Natural Gas Act, the Public Utility Regulatory Policies Act,
section 32 of the Public Utility Holding Company Act, the Interstate
Commerce Act, the Outer Continental Shelf Lands Act, section
[[Page 19]]
106 of the National Historic Preservation Act, and in the Commission's
environmental and decisional documents.
(d) As an independent regulatory agency, the Commission functions as
a neutral, quasi-judicial body, rendering decisions on applications
filed with it, and resolving issues among parties appearing before it,
including Indian tribes. Therefore, the provisions of the Administrative
Procedure Act and the Commission's rules concerning off-the-record
communications, as well as the nature of the Commission's licensing and
certificating processes and of the Commission's review of jurisdictional
rates, terms and conditions, place some limitations on the nature and
type of consultation that the Commission may engage in with any party in
a contested case. Nevertheless, the Commission will endeavor, to the
extent authorized by law, to reduce procedural impediments to working
directly and effectively with tribal governments.
(e) The Commission, in keeping with its trust responsibility, will
assure that tribal concerns and interests are considered whenever the
Commission's actions or decisions have the potential to adversely affect
Indian tribes or Indian trust resources.
(f) The Commission will seek to engage tribes in high-level meetings
to discuss general matters of importance, such as those that uniquely
affect the tribes. Where appropriate, these meetings may be arranged for
particular tribes, by region, or in some proceedings involving
hydroelectric projects, by river basins.
(g) The Commission will strive to develop working relationships with
tribes and will seek to establish procedures to educate Commission staff
about tribal governments and cultures and to educate tribes about the
Commission's various statutory functions and programs. To assist in this
effort, the Commission is establishing the position of tribal liaison.
The tribal liaison will provide a point of contact and a resource for
tribes for any proceeding at the Commission.
(h) Concurrently with this policy statement, the Commission is
issuing certain new regulations regarding the licensing of hydroelectric
projects. In this connection, the Commission sets forth the following
additional policies for the hydroelectric licensing process.
(i) The Commission believes that the hydroelectric licensing process
will benefit by more direct and substantial consultation between the
Commission staff and Indian tribes. Because of the unique status of
Indian tribes in relation to the Federal government, the Commission will
endeavor to increase direct communications with tribal representatives
in appropriate circumstances, recognizing that different issues and
stages of a proceeding may call for different approaches, and there are
some limitations that must be observed.
(j) The Commission will seek to notify potentially-affected tribes
about upcoming hydroelectric licensing processes, to discuss the
consultation process and the importance of tribal participation, to
learn more about each tribe's culture, and to establish case-by-case
consultation procedures consistent with our ex parte rules.
(k) In evaluating a proposed hydroelectric project, the Commission
will consider any comprehensive plans prepared by Indian tribes or
inter-tribal organizations for improving, developing, or conserving a
waterway or waterways affected by a proposed project. The Commission
will treat as a comprehensive plan, a plan that:
(1) Is a comprehensive study of one or more of the beneficial uses
of a waterway or waterways;
(2) Includes a description of the standards applied, the data relied
upon, and the methodology used in preparing the plan; and
(3) Is filed with the Secretary of the Commission. See generally 18
CFR 2.19.
[Order 635, 68 FR 46455, Aug. 6, 2003]
Statements of General Policy and Interpretations Under the Federal Power
Act
Authority: Sections 2.2 through 2.13, issued under sec. 309, 49
Stat. 858; 16 U.S.C. 825h, unless otherwise noted.
Sec. 2.2 Transmission lines.
In a public statement dated March 7, 1941, the Commission announced
its determination that transmission lines
[[Page 20]]
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
part of the project cost. The Commission will not object to licensees
and operators of recreational facilities within the boundaries of a
project charging reasonable fees to users of such facilities in order to
help defray the cost of constructing, operating, and maintaining such
facilities. The Commission expects the licensee to assume the following
responsibilities:
(a) To acquire in fee and include within the project boundary enough
land to assure optimum development of the recreational resources
afforded by the project. To the extent consistent with the other
objectives of the license, such lands to be acquired in fee for
recreational purposes shall include the lands adjacent to the exterior
margin of any project reservoir plus all other project lands specified
in any approved recreational use plan for the project.
(b) To develop suitable public recreational facilities upon project
lands and waters and to make provisions for adequate public access to
such project facilities and waters and to include therein consideration
of the needs of persons with disabilities in the design and construction
of such project facilities and access.
[[Page 21]]
(c) To encourage and cooperate with appropriate local, State, and
Federal agencies and other interested entities in the determination of
public recreation needs and to cooperate in the preparation of plans to
meet these needs, including those for sport fishing and hunting.
(d) To encourage governmental agencies and private interests, such
as operators of user-fee facilities, to assist in carrying out plans for
recreation, including operation and adequate maintenance of recreational
areas and facilities.
(e) To cooperate with local, State, and Federal Government agencies
in planning, providing, operating, and maintaining facilities for
recreational use of public lands administered by those agencies adjacent
to the project area.
(f)(1) To comply with Federal, State and local regulations for
health, sanitation, and public safety, and to cooperate with law
enforcement authorities in the development of additional necessary
regulations for such purposes.
(2) To provide either by itself or through arrangement with others
for facilities to process adequately sewage, litter, and other wastes
from recreation facilities including wastes from watercraft, at
recreation facilities maintained and operated by the licensee or its
concessionaires.
(g) To ensure public access and recreational use of project lands
and waters without regard to race, color, sex, religious creed or
national origin.
(h) To inform the public of the opportunities for recreation at
licensed projects, as well as of rules governing the accessibility and
use of recreational facilities.
[Order 313, 30 FR 16198, Dec. 29, 1965, as amended by Order 375-B, 35 FR
6315, Apr. 18, 1970; Order 508, 39 FR 16338, May 8, 1974; Order 2002, 68
FR 51115, Aug. 25, 2003]
Sec. 2.8 [Reserved]
Sec. 2.9 Conditions in preliminary permits and licenses--list of and
citations to ``P--'' and ``L--'' forms.
(a) The Commission has approved several sets of standard conditions
for 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 on the Commission's Web site (www.ferc.gov/
industries/hydropower/gen-info/comp-admin/l-forms.asp).
(b) Forms currently in use may be obtained on the Commission's Web
site or from Federal Energy Regulatory Commission, Washington, DC 20426.
(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; Order 699,
72 FR 45323, Aug. 14, 2007; Order 737, 75 FR 43402, July 26, 2010; Order
756, 77 FR 4893, Feb. 1, 2012]
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
[[Page 22]]
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) 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.
(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; Order 737, 75 FR 43402, July 26, 2010; Order 756,
77 FR 4893, Feb. 1, 2012; 77 FR 8095, Feb. 14, 2012]
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
[[Page 23]]
its allegation by a prima facie case. The elements of the prima facie
case shall include at a minimum:
(1) Specification of the filing utility's retail rate schedules with
which the intervening wholesale customer is unable to compete due to
purchased power costs;
(2) A showing that a competitive situation exists in that the
wholesale customer competes in the same market as the filing utility;
(3) A showing that the retail rates are lower than the proposed
wholesale rates for comparable service;
(4) The wholesale customer's prospective rate for comparable retail
service, i.e. the rate necessary to recover bulk power costs (at the
proposed wholesale rate) and distribution costs;
(5) An indication of the reduction in the wholesale rate necessary
to eliminate the price squeeze alleged.
(b) Where price squeeze is alleged, the Commission shall, in the
order granting intervention, direct the Administrative Law Judge to
convene a prehearing conference within 15 days from the date of the
order for the purpose of hearing intervenors' request for data required
to present their case, including prima facie showing, on price squeeze
issues.
(c) Within 30 days from the date of the conference the filing
utility shall respond to the data requests authorized by the
Administrative Law Judge.
(d) Within 30 days from the filing utility's response, the
intervenors shall file their case-in-chief on price squeeze issues,
which shall include their prima facie case, unless filed previously.
(e) The burden of proof (i.e. the risk of nonpersuasion) to rebut
the allegations of price squeeze and to justify the proposed rates are
on the utility proposing the rates under section 205(e) of the Federal
Power Act.
(f) In proceedings where price squeeze is an issue, the Secretary
shall include the state commission, agency or body which is responsible
for regulation of retail rates in the state affected in the service list
maintained under Sec. 385.2010(c) of this chapter.
[Order 563, 42 FR 16132, Mar. 25, 1977, as amended by Order 225, 47 FR
19054, May 3, 1982]
Sec. 2.18 Phased electric rate increase filings.
(a) In general, when a public utility files a phased rate increase,
the Commission will determine the appropriate 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,
[[Page 24]]
and the methodology used in preparing the plan; and
(3) Is filed with the Secretary of the Commission.
[Order 481-A, 53 FR 15804, May 4, 1988]
Sec. 2.20 Good faith requests for transmission services and good
faith responses by transmitting utilities.
(a) General Policy. (1) This Statement of Policy is adopted in
furtherance of the goals of sections 211(a) and 213(a) of the Federal
Power Act, as amended and added by the Energy Policy Act of 1992.
(2) Under section 211(a), the Commission may issue an order
requiring a transmitting utility to provide transmission services
(including any enlargement of transmission capacity necessary to provide
such services) only if an applicant has made a request for transmission
services to the transmitting utility that would be the subject of such
order at least 60 days prior to its filing of an application for such
order. The requirement in section 211(a) that an applicant make such a
request will be met if such an applicant has, pursuant to section 213(a)
of the FPA, made a good faith request to a transmitting utility to
provide wholesale transmission services and requests specific rates and
charges, and other terms and conditions.
(3) It is the Commission's intention to apply the standards of this
Statement of Policy when determining whether and when a valid ``good
faith'' request for service was made.
(4) It is the Commission's intention to encourage an open exchange
of information that exhibits a reasonable degree of specificity and
completeness between the party requesting transmission services and the
transmitting utility.
(5) The Commission intends to apply this Statement of Policy so as
to carry out Congress' objective that, subject to appropriate terms and
conditions and just and reasonable rates, in conformance with section
212 of the FPA, access to the electric transmission system for the
purposes of wholesale transactions be more widely available.
(b) The Components of a good faith request. The Commission generally
considers the following to constitute the minimum components of a good
faith request for transmission services:
(1) The identity, address, telephone number, and facsimile number of
the party requesting transmission services, and the same information, if
different, 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
[[Page 25]]
quantities of power and energy the party requesting transmission
services would expect to deliver to the transmitting utility's grid at
relevant points of interconnection. In the event delivery is to multiple
points within the transmitting utility's electric control area, the
requestor should describe, to the extent it is known or can be
estimated, the expected load (over a given duration of time) at each
such delivery point.
(9) Whether firm or non-firm service is being requested. Where a
party requests non-firm service, it should specify the priority of
service it is willing to accept, or the conditions under which it is
willing to accept interruption or curtailment, if known.
(10) A statement as to whether the request is being made in response
to a solicitation and a copy of the solicitation if publicly available.
This will help the transmitting utility determine whether requests for
transmission service are duplicative or mutually exclusive of requests
filed by other parties.
(11) The proposed rates, terms and conditions for the requested
transmission services as required by section 213(a). It is not necessary
for the requestor to propose a specific numerical rate. Rather, a party
requesting transmission services can fulfill the rates, terms and
conditions requirement by specifying a rate methodology (e.g., embedded
or incremental cost) or by referencing an existing formula rate,
transmission tariff, or transmission contract. The validity of the good
faith request will not depend on the rates proposed by the party
requesting transmission services. This requirement is not intended to
allow utilities to delay responses to requests for transmission
services, or to deny requests for transmission services on the basis of
an overly rigid or technical approach to the ``rates, terms and
conditions'' element of the request.
(12) Any other information to facilitate the expeditious processing
of its request. Such information will improve the negotiation process,
reduce costs, and will improve chances to arrange the requested
transmission without resorting to section 211 application procedures
before the Commission.
(c) Components of a Reply to a Good Faith Request. The Commission
generally considers the following to constitute the minimum components
of a reply to a good faith request for transmission services under
section 213(a):
(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.
[[Page 26]]
(iii) The transmitting utility should accompany the proposed service
agreement with a clear statement of the time during which the offer to
provide the transmission services will remain open. An open agreement
offer may obligate the seller while imposing no countervailing
obligation on the purchaser, and an unexecuted contract potentially ties
up transmission facilities, thus jeopardizing the availability and price
for subsequent requests that would use the same facilities. However, at
a minimum, a transmitting utility should permit the party requesting
transmission services sufficient time to review service agreements and
coordinate multiple stages of joint transactions.
(5) If the transmitting utility determines that it must construct
additional facilities or modify existing facilities to provide all or
part of the requested services, it must:
(i) Identify the specific constraints and their duration that
prevent it from providing all the requested services and explain how
these constraints prevent it from providing all the requested services
or the desired level of firmness.
(ii) Provide to the applicant all studies, computer input and output
data, planning, operating and other documents, work papers, assumptions
and any other material that forms the basis for determining the
constraints.
(iii) Offer to the applicant an executable agreement under which the
applicant agrees to reimburse the transmitting utility for all costs of
performing any studies necessary to determine what changes to the
transmitting utility's grid are needed to overcome the constraint and
provide the requested services, their cost, and the estimated time to
complete them. At a minimum, the proposed agreement should contain the
following:
(A) An estimate of the cost of the study and the time required to
complete it, and
(B) A commitment to supply to the party requesting transmission
services all computer input and output data, planning, operating and
other documents, work papers, assumptions and any other material used to
perform the study.
(iv) If a transmitting utility determines that it can provide part
but not all of the requested services without building new facilities,
it should inform the applicant of any portion of 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.
[[Page 27]]
(2) An RTG agreement should provide a means of adequate consultation
and coordination with relevant state regulatory, siting, and other
authorities.
(3) An RTG agreement should include fair and nondiscriminatory
governance and decision making procedures, including voting procedures.
(c) Other components. (1) An RTG agreement should impose on member
transmitting utilities an obligation to provide transmission services
for other members, including the obligation to enlarge facilities, on a
basis that is consistent with sections 205, 206, 211, 212 and 213 of the
FPA. To the extent practicable and known, the RTG agreement should
specify the terms and conditions under which transmission services will
be offered.
(2) An RTG agreement should require, at a minimum, the development
of a coordinated transmission plan on a regional basis and the sharing
of transmission planning information, with the goal of efficient use,
expansion, and coordination of the interconnected electric system on a
grid-wide basis. An RTG agreement should provide mechanisms to
incorporate the transmission needs of non-members into regional plans.
An RTG agreement should include as much detail as possible with regard
to operational and planning procedures.
(3) An RTG agreement should include voluntary dispute resolution
procedures that provide a fair alternative to resorting in the first
instance to section 206 complaints or section 211 proceedings.
(4) An RTG agreement should include an exit provision for RTG
members that leave the RTG, specifying the obligations of a departing
member.
(d) Filing procedures. Any proposed RTG agreement that in any manner
affects or relates to the transmission of electric energy in interstate
commerce by a public utility, or rates or charges for such transmission,
must be filed with the Commission. Any public utility member of a
proposed RTG may file the RTG agreement with the Commission on behalf of
the other public utility members under section 205 of the FPA.
[58 FR 41632, Aug. 5, 1993]
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
[[Page 28]]
with the Commission's statutory responsibility to avoid undue delay in
the relicensing process and to avoid undue delay in the amelioration of
individual project impacts at relicensing. To the extent, if any, that
it is not possible to explore and address all cumulative impacts at
relicensing, the Commission will reserve authority to examine and
address such impacts after the new license has been issued, but will
define that reserved authority as narrowly and with as much specificity
as possible, particularly with respect to the purpose of reserving that
authority. The Commission intends that such articles will describe, to
the maximum extent possible, reasonably foreseeable future resource
concerns that may warrant modifications of the licensed project. Before
taking any action pursuant to such reserved authority, the Commission
will publish notice of its proposed action and will provide an
opportunity for hearing by the licensee and all interested parties.
Hydropower licenses also contain standard ``reopener'' articles (see
Sec. 2.9 of this part) which reserve authority to the Commission to
require, among other things, licensees of projects located in the same
river basin to mitigate the cumulative impacts of those projects on the
river basin. In light of the policy described above, the Commission will
use the standard ``reopener'' articles to explore and address cumulative
impacts only (except in extraordinary circumstances) where such impacts
were not known at the time of licensing or are the result of changed
circumstances. The Commission has authority under the Federal Power Act
to require licensees, during the term of the license, to develop and
provide data to the Commission on the cumulative impacts of licensed
projects located in the same river basin. In issuing both new and
original licenses, the Commission will coordinate the expiration dates
of the licenses to the maximum extent possible, to maximize future
consideration of cumulative impacts at the same time in contemporaneous
proceedings at relicensing. The Commission's intention is to consider to
the extent practicable cumulative impacts 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.
[[Page 29]]
(e) Timing. (1) Public utilities should provide information to
purchasing utilities regarding the timing of opportunities for
purchasers to stipulate whether they will purchase or return emissions
allowances. A public utility may require a purchasing utility to
declare, no later than the beginning of the coordination transaction:
(i) Whether it will purchase or return emissions allowances; and
(ii) If it will return emissions allowances, the date on which those
allowances will be returned.
(2) Public utilities may include in agreements with purchasing
utilities non-discriminatory provisions for indemnification if the
purchasing utility fails to provide emissions allowances by the date on
which it declares that the allowances will be returned.
(f) Other Costing Methods Not Precluded. The ratemaking treatment of
emissions allowance costs endorsed in this Policy Statement does not
preclude other approaches proposed by individual utilities on a case-by-
case basis.
[59 FR 65938, Dec. 22, 1994, as amended by Order 579, 60 FR 22261, May
5, 1995]
Sec. 2.26 Policies concerning review of applications under section
203.
(a) The Commission has adopted a Policy Statement on its policies
for reviewing transactions subject to section 203. That Policy Statement
can be found at 77 FERC ] 61,263 (1996). The Policy Statement is a
complete description of the relevant guidelines. Paragraphs (b)-(e) of
this section are only a brief summary of the Policy Statement.
(b) Factors Commission will generally consider. In determining
whether a proposed transaction subject to section 203 is consistent with
the public interest, the Commission will generally consider the
following factors; it may also consider other factors:
(1) The effect on competition;
(2) The effect on rates; and
(3) The effect on regulation.
(c) Effect on competition. Applicants should provide data adequate
to allow analysis under the Department of Justice/Federal Trade
Commission Merger Guidelines, as described in the Policy Statement and
Appendix A to the Policy Statement.
(d) Effect on rates. Applicants should propose mechanisms to protect
customers from costs due to the merger. If the proposal raises
substantial issues of relevant fact, the Commission may set this issue
for hearing.
(e) Effect on regulation. (1) Where the affected state commissions
have authority to act on the transaction, the Commission will not set
for hearing whether the transaction would impair effective regulation by
the state commissions. The application should state whether the state
commissions have this authority.
(2) Where the affected state commissions do not have authority to
act on the transaction, the Commission may set for hearing the issue of
whether the transaction would impair effective state regulation.
(f) Under section 203(a)(4) of the Federal Power Act (16 U.S.C.
824b), in reviewing a proposed transaction subject to section 203, the
Commission will also consider whether the proposed transaction will
result in cross-subsidization of a non-utility associate company or
pledge or encumbrance of utility assets for the benefit of an associate
company, unless that cross-subsidization, pledge, or encumbrance will be
consistent with the public interest.
[Order 592, 61 FR 68606, Dec. 30, 1996, as amended by Order 669-A, 71 FR
28443, May 16, 2006]
Non-Mandatory Guidance on Smart Grid Standards
Sec. 2.27 Availability of North American Energy Standards Board
(NAESB) Smart Grid Standards as non-mandatory guidance.
The Commission informationally lists the following NAESB Business
Practices Standards as non-mandatory guidance:
(a) WEQ-016, Specifications for Common Electricity Product and
Pricing Definition, WEQ Version 003, July 31, 2012;
(b) WEQ-017, Specifications for Common Schedule Communication
Mechanism for Energy Transactions, WEQ Version 003, July 31, 2012;
[[Page 30]]
(c) WEQ-018, Specifications for Wholesale Standard Demand Response
Signals, WEQ Version 003, July 31, 2012;
(d) WEQ-019, Customer Energy Usage Information Communication, WEQ
Version 003, July 31, 2012, as amended on March 21, 2013; and
(e) WEQ-020, Smart Grid Standards Data Element Table, WEQ Version
003, July 31, 2012.
(f) Copies of these standards may be obtained from the North
American Energy Standards Board, 801 Travis Street, Suite 1675, Houston,
TX 77002, Tel: (713) 356-0060. NAESB's Web site is at http://
www.naesb.org/. Copies may be inspected at the Federal Energy Regulatory
Commission, Public Reference and Files Maintenance Branch, 888 First
Street NE., Washington, DC 20426, Tel: (202) 502-8371, http://
www.ferc.gov.
[79 FR 56954, Sept. 24, 2014]
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 Auxiliary installations and replacement facilities.
For the purposes of section 7(c) of the Natural Gas Act, as amended,
the word facilities as used therein shall be interpreted to exclude:
(a) Auxiliary installations. (1) Installations (excluding gas
compressors) which are merely auxiliary or appurtenant to an authorized
or proposed transmission pipeline system and which are installations
only for the purpose of obtaining more efficient or more economical
operation of the authorized or proposed transmission facilities, such
as: Valves; drips; pig launchers/receivers; yard and station piping;
cathodic protection equipment; gas cleaning, cooling and dehydration
equipment; residual refining equipment; water pumping, treatment and
cooling equipment; electrical and communication equipment; and
buildings. The auxiliary installations must be located within the
existing or proposed certificated permanent right-of-way or authorized
facility site and must be constructed using the temporary work space
used to construct the existing or proposed facility (see Appendix A to
this Part 2 for guidelines on what is considered to be the appropriate
work area in this context).
(2) Advance notification. One of the following requirements will
apply to any specified auxiliary installation. If auxiliary facilities
are to be installed:
(i) On existing transmission facilities, then no notification is
required;
(ii) On, or at the same time as, certificated facilities which are
not yet in service (except those authorized under the automatic
procedures of part 157 of subpart F of this chapter), then a description
of the auxiliary facilities and their locations must be provided to the
Commission at least 30 days in advance of their installation; or
(iii) On, or at the same time as facilities that are proposed, then
the auxiliary facilities must be described in the environmental report
specified in Sec. 380.12 or in a supplemental filing while the
application is pending.
(3) Abandonment or replacement of auxiliary installations.
Authorization to abandon or replace auxiliary facilities that were or
could be installed under paragraph (a)(1) of this section is pre-granted
under section 7(b) of the Natural Gas Act, and no reporting is required,
provided that:
(i) All activities will be confined to areas, including temporary
work space, previously authorized by the Commission for the construction
and operation of facilities at that location;
(ii) All activities will comply with applicable conditions on
certificate authorizations for the construction and operation of
facilities at that location; and
(iii) The abandonment or replacement will have no adverse impact on
customers' certificated services.
[[Page 31]]
(b) Replacement of facilities. (1) Facilities which constitute the
replacement of existing facilities that have or will soon become
physically deteriorated or obsolete, to the extent that replacement is
deemed advisable, if:
(i) The replacement will not result in a reduction or abandonment of
service through the facilities;
(ii) The replacement facilities will have a substantially equivalent
designed delivery capacity, will be located in the same right-of-way or
on the same site as the facilities being replaced, and will be
constructed using the temporary work space used to construct the
existing facility (see Appendix A to Part 2 for guidelines on what is
considered to be the appropriate work area in this context);
(iii) Except as described in paragraph (b)(2) of this section, the
company files notification of such activity with the Commission at least
30 days prior to commencing construction.
(2) Advance notification not required. The advance notification
described in paragraph (b)(1)(iii) of this section is not required if:
(i) The cost of the replacement project does not exceed the cost
limit specified in Column 1 of Table I of Sec. 157.208(d) of this
chapter; or
(ii) U.S. Department of Transportation safety regulations require
that the replacement activity be performed immediately;
(3) Contents of the advance notification. The advance notification
described in paragraph (b)(1)(iii) of this section must include the
following information:
(i) A brief description of the facilities to be replaced (including
pipeline size and length, compression horsepower, design capacity, and
cost of construction);
(ii) Current U.S. Geological Survey 7.5-minute series topographic
maps showing the location of the facilities to be replaced; and
(iii) A description of the procedures to be used for erosion
control, revegetation and maintenance, and stream and wetland crossings.
(4) Annual report. On or before May 1 of each year, a company must
file (in accordance with filing procedures posted on the Commission's
Web site at http://www.ferc.gov.) 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) Landowner notification. (1)(i) No activity described in
paragraphs (a) and (b) of this section that involves ground disturbance
is authorized unless a company makes a good faith effort to notify in
writing each affected landowner, as noted in the most recent county/city
tax records as receiving the tax notice, whose property will be used and
subject to ground disturbance as a result of the proposed activity, at
least five days prior to commencing any activity under this section. A
landowner may waive the five-day prior notice requirement in writing, so
long as the notice has been provided. No landowner notice under this
section is required:
(A) If all ground disturbance will be confined entirely to areas
within the fence line of an existing above-ground site of facilities
operated by the company; or
(B) For activities done for safety, DOT compliance, or environmental
or unplanned maintenance reasons that are not foreseen and that require
immediate attention by the company.
(ii) The notification shall include at least:
(A) A brief description of the facilities to be constructed or
replaced and the effect the activity may have on the landowner's
property;
(B) The name and phone number of a company representative who is
knowledgeable about the project; and
(C) A description of the Commission's Landowner Helpline, which an
affected person may contact to seek an informal resolution of a dispute
as explained in Sec. 1b.22(a) of this chapter and the Landowner
Helpline number.
[[Page 32]]
(2) ``Affected landowners'' include owners of interests, as noted in
the most recent county/city tax records as receiving tax notice, in
properties (including properties subject to rights-of-way and easements
for facility sites, compressor stations, well sites, and all above-
ground facilities, and access roads, pipe and contractor yards, and
temporary work space) that will be directly affected by (i.e., used) and
subject to ground disturbance as a result of activity under this
section.
(d) [Reserved]
(Sec. 7, 52 Stat. 824; 15 U.S.C. 717f)
[Order 148, 14 FR 681, Feb. 16, 1949]
Editorial Note: For Federal Register citations affecting Sec. 2.55,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.fdsys.gov.
Sec. 2.57 Temporary certificates--pipeline companies.
The Federal Energy Regulatory Commission will exercise the emergency
powers set forth in the second proviso of section 7(c) of the Natural
Gas Act to authorize in appropriate cases, by issuance of temporary
certificates, comparatively minor enlargements or extensions of an
existing pipeline system. It will not be the policy of the Commission,
however, to proceed summarily, i.e., without notice or hearing, in cases
where the proposed construction is of major proportions. Pipeline
companies are accordingly urged to conduct their planning and to submit
their applications for authority sufficiently early so that compliance
with the requirements relating to issuance of permanent certificates of
public convenience and necessity (when those requirements are deemed
applicable by the Commission) will not cause undue delay in the
commencement of necessary construction.
(52 Stat. 824; 56 Stat. 83; 15 U.S.C. 717f)
[Gen. Policy 62-1, 26 FR 10098, Oct. 27, 1961, as amended by Order 737,
75 FR 43402, July 26, 2010]
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 Sec. Sec. 260.1 and 260.2 of this chapter.
(Secs. 3, 4, 15, 16, 301, 304, 308, and 309 (41 Stat. 1063-1066, 1068,
1072, 1075; 49 Stat. 838, 839, 840, 841, 854-856, 858-859; 82 Stat. 617;
16 U.S.C. 796, 797, 803, 808, 809, 816, 825, 825b, 825c, 825g, 825h,
826i), as amended, secs. 8, 10, and 16 (52 Stat. 825-826, 830; 15 U.S.C.
717g, 717i, 717o))
[Order 274, 28 FR 12866, Dec. 4, 1963, as amended by Order 567, 42 FR
30612, June 16, 1977]
[[Page 33]]
Sec. 2.67 Calculation of taxes for property of pipeline companies
constructed or acquired after January 1, 1970.
Pursuant to the provisions of section 441(a)(4)(A) of the Tax Reform
Act of 1969, 83 Stat. 487, 625, natural gas pipeline companies which
have exercised the option provided by that section to change from flow
through accounting will be permitted by the Commission, with respect to
liberalized depreciation, to employ a normalization method for computing
Federal income taxes in their accounts and annual reports with respect
to property constructed or acquired after January 1, 1970, to the extent
to which such property increases the productive or operational capacity
of the utility and is not a replacement of existing capacity. Such
normalization will also be permitted for ratemaking purposes. As to
balances in Account No. 282 of the Uniform System of Accounts,
``Accumulated deferred income taxes--Other property,'' it will remain
the Commission's policy to deduct such balances from the rate base of
natural gas pipeline companies in rate proceedings.
(Secs. 3, 4, 5, 8, 9, 10, 15, 16, 301, 304, 308, and 309 (41 Stat. 1063-
1066, 1068, 1072, 1075; 49 Stat. 838, 839, 840, 841, 854-856, 858-859;
52 Stat. 822, 823, 825, 826; 76 Stat. 72; 82 Stat. 617; 16 U.S.C. 796,
797, 803, 808, 809, 816, 825, 825b, 825c, 825g, 825h, 826i); as amended,
secs. 8, 10, and 16 (52 Stat. 825-826, 830; 15 U.S.C. 717c, 717d, 717g,
717h, 717i, 717o))
[Order 404, 35 FR 7964, May 23, 1970, as amended by Order 567, 42 FR
30612, June 16, 1977]
Sec. 2.69 [Reserved]
Sec. 2.76 Regulatory treatment of payments made in lieu of take-
or-pay obligations.
With respect to payments made to a first seller of natural gas as
consideration for waiving or revising any agreement for the first sale
of natural gas, as defined by section (2)(21) of the Natural Gas Policy
Act (NGPA), the Commission sets forth the following statement of general
policy and interpretation of law.
(a) Payments in consideration. A first seller of natural gas that
receives payments as consideration for amending or waiving the take-or-
pay or similar minimum payment provisions of a contract for the first
sale of natural gas is not in violation of section 504(a) of the NGPA.
(b) Recovery in rates. A pipeline that makes any payments referred
to under paragraph (a) of this section, to first sellers may file to
recover such costs in any section 4(e) rate filing other than a filing
to recover purchased gas costs.
(c) Case-specific review. A pipeline's method of recovering these
costs and how it should apportion them among customers will be addressed
on a case-by-case basis in the context of individual rate case filings.
(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
[[Page 34]]
priority-of-service categories for use during periods of curtailed
deliveries by jurisdictional pipeline companies:
(i) Residential, small commercial (less than 50 Mcf on a peak day).
(ii) Large commercial requirements (50 Mcf or more on a peak day),
firm industrial requirements for plant protection, feedstock and process
needs, and pipeline customer storage injection requirements.
(iii) All industrial requirements not specified in paragraph
(a)(1)(ii), (iv), (v), (vi), (vii), (viii), or (ix) of this section.
(iv) Firm industrial requirements for boiler fuel use at less than
3,000 Mcf per day, but more than 1,500 Mcf per day, where alternate fuel
capabilities can meet such requirements.
(v) Firm industrial requirements for large volume (3,000 Mcf or more
per day) boiler fuel use where alternate fuel capabilities can meet such
requirements.
(vi) Interruptible requirements of more than 300 Mcf per day, but
less than 1,500 Mcf per day, where alternate fuel capabilities can meet
such requirements.
(vii) Interruptible requirements of intermediate volumes (from 1,500
Mcf per day through 3,000 Mcf per day), where alternate fuel
capabilities can meet such requirements.
(viii) Interruptible requirements of more than 3,000 Mcf per day,
but less than 10,000 Mcf per day, where alternate fuel capabilities can
meet such requirements.
(ix) Interruptible requirements of more than 10,000 Mcf per day,
where alternate fuel capabilities can meet such requirements.
(2) The priorities-of-deliveries set forth above will be applied to
the deliveries of all jurisdictional pipeline companies during periods
of curtailment on each company's system; except, however, that, upon a
finding of extraordinary circumstances after hearing initiated by a
petition filed under Sec. 385.207 of this chapter, exceptions to those
priorities may be permitted.
(3) The above list of priorities requires the full curtailment of
the lower priority category volumes to be accomplished before
curtailment of any higher priority volumes is commenced. Additionally,
the above list requires both the direct and indirect customers of the
pipeline that use gas for similar purposes to be placed in the same
category of priority.
(4) The tariffs filed with this Commission should contain provisions
that will reflect sufficient flexibility to permit pipeline companies to
respond to emergency situations (including environmental emergencies)
during periods of curtailment where supplemental deliveries are required
to forestall irreparable injury to life or property.
(b) Request for relief from curtailment shall be filed under Sec.
385.1501 of this chapter. Those petitions shall use the priorities set
forth in (paragraph (a)(1) of this section) above, the definitions
contained in paragraph (b)(3) of this section and shall contain the
following minimal information:
(1) The specific amount of natural gas deliveries requested on peak
day and monthly basis, and the type of contract under which the
deliveries would be made.
(2) The estimated duration of the relief requested.
(3) A breakdown of all natural gas requirements on peak day and
monthly bases at the plant site by specific end-uses.
(4) The specific end-uses to which the natural gas requested will be
utilized and should also reflect the scheduling within each particular
end-use with and without the relief requested.
(5) The estimated peak day and monthly volumes of natural gas which
would be available with and without the relief requested from all
sources of supply for the period specified in the request.
(6) A description of existing alternate fuel capabilities on peak
day and monthly bases broken down by end-uses as shown in paragraph
(b)(3) of this section.
(7) For the alternate fuels shown in paragraph (b)(5) of this
section, provide a description of the existing storage facilities and
the amount of present fuel inventory, names and addresses of existing
alternate fuel suppliers, and anticipated delivery schedules for the
period for which relief is sought.
[[Page 35]]
(8) The current price per million Btu for natural gas supplies and
alternate fuels supplies.
(9) A description of efforts to secure natural gas and alternate
fuels, including documentation of contacts with the Federal Energy
Office and any state or local fuel allocation agencies or public utility
commission.
(10) A description of all fuel conservation activities undertaken in
the facility for which relief is sought.
(11) If petitioner is a local natural gas distributor, a description
of the currently effective curtailment program and details regarding any
flexibility which may be available by effectuating additional
curtailment to its existing industrial customers. The distributor should
also provide a breakdown of the estimated disposition of its natural gas
estimated to be available by end-use priorities established in paragraph
(a)(1) of this section for the period for which relief is sought.
(c) When used in paragraphs (a) and (b) of this section, the
following terms will be defined as follows:
(1) Residential. Service to customers which consists of direct
natural gas usage in a residential dwelling for space heating, air
conditioning, cooking, water heating, and other residential uses.
(2) Commercial. Service to customers engaged primarily in the sale
of goods or services including institutions and local, state, and
federal government agencies for uses other than those involving
manufacturing or electric power generation.
(3) Industrial. Service to customers engaged primarily in a process
which creates or changes raw or unfinished materials into another form
or product including the generation of electric power.
(4) Firm service. Service from schedules or contracts under which
seller is expressly obligated to deliver specific volumes within a given
time period and which anticipates no interruptions, but which may permit
unexpected interruption in case the supply to higher priority customers
is threatened.
(5) Interruptible service. Service from schedules or contracts under
which seller is not expressly obligated to deliver specific volumes
within a given time period, and which anticipates and permits
interruption on short notice, or service under schedules or contracts
which expressly or impliedly require installation of alternate fuel
capability.
(6) Plant protection gas. Is defined as minimum volumes required to
prevent physical harm to the plant facilities or danger to plant
personnel when such protection cannot be afforded through the use of an
alternate fuel. This includes the protection of such material 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]
[[Page 36]]
Statement of General Policy To Implement Procedures for Compliance With
the National Environmental Policy Act of 1969
Authority: Sections 2.80-2.82 issued under secs. 4, 10, 15, 307,
309, 311 and 312 (41 Stat. 1065, 1066, 1068, 1070; 46 Stat. 798, 49
Stat. 839, 840, 841, 942, 843, 844, 856, 857, 858, 859, 860, Stat. 501,
82 Stat. 617; 16 U.S.C. 797, 803, 808, 825f, 825h, 825j, 825k), and the
Natural Gas Act, particularly secs. 7 and 16 (52 Stat. 824, 825, 830, 56
Stat. 83, 84; 61 Stat. 459; 15 U.S.C. 717f, 717o), and the National
Environmental Policy Act of 1969, Pub. L. 91-190, approved January 1,
1970, particularly secs. 102 and 103 (83 Stat. 853, 854), unless
otherwise noted.
Sec. 2.80 Detailed environmental statement.
(a) It will be the general policy of the Federal Energy Regulatory
Commission to adopt and to adhere to the objectives and aims of the
National Environmental Policy Act of 1969 (NEPA) in its regulations
promulgated for statutes under the jurisdiction of the Commission,
including the Federal Power Act, the Natural Gas Act and the Natural Gas
Policy Act. The National Environmental Policy Act of 1969 requires,
among other things, all Federal agencies to include a detailed
environmental statement in every recommendation or report on proposals
for legislation and other major Federal actions significantly affecting
the quality of the human environment.
(b) Therefore, in compliance with the National Environmental Policy
Act of 1969, the Commission staff will make a detailed environmental
statement when the regulatory action taken by the Commission under the
statutes under the jurisdiction of the Commission will have a
significant environmental impact. The specific regulations implementing
NEPA are contained in part 380 of the Commission's regulations.
[Order 486, 52 FR 47910, Dec. 17, 1987]
Statement of General Policy To Implement the Economic Stabilization Act
of 1970, as Amended, and Executive Orders 11615 and 11627
Authority: Sections 2.90 through 2.102 issued under 84 Stat. 799, as
amended, 85 Stat. 38, unless otherwise noted.
Sec. Sec. 2.100-2.102 [Reserved]
Sec. 2.103 Statement of policy respecting take or pay provisions
in gas purchase contracts.
(a) Recognizing that take or pay contract obligations may be
shielding the prices of deregulated and other higher cost gas from
market constraints, the Commission sets forth its general policy
regarding prepayments for natural gas pursuant to take or pay provisions
in gas contracts and amendments thereto between producers and interstate
pipelines which become effective December 23, 1982. The provisions of
this policy statement do not establish a binding norm but instead
provide general guidance. In particular cases, both the underlying
validity of the policy and its application to particular facts may be
challenged and are subject to further consideration.
(b) With respect to gas purchase contracts entered into on or after
December 23, 1982, the Commission intends to apply a rebuttable
presumption in general rate cases that prepayments to producers will not
be given rate base treatment if the prepayments are made pursuant to
take or pay requirements in such gas purchase contracts or amendments
which exceed 75 percent of annual deliverability.
(Natural Gas Act, 15 U.S.C. 717-717w; Natural Gas Policy Act of 1978,
Pub. L. No. 95-621, 92 Stat. 3350, 15 U.S.C. 3301-3432)
[47 FR 57269, Dec. 23, 1982]
Sec. 2.104 Mechanisms for passthrough of pipeline take-or-pay buyout
and buydown costs.
(a) General Policy. The Commission as a matter of policy will
provide two distinct mechanisms for passthrough of take-or-pay buyout
and buydown costs of interstate natural gas pipelines. The first is
pursuant to existing Commission policy and practice. Under this method,
pipelines may pass through prudently incurred take-or-pay buyout and
buydown costs in their sales commodity rates. The second method is
available to pipelines which agree to an equitable sharing of take-or-
pay costs and which transport under part 284 of this chapter. Qualifying
pipelines may utilize the alternative passthrough mechanisms described
in this
[[Page 37]]
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 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
[[Page 38]]
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.
(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,
[[Page 39]]
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]
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
[[Page 40]]
that such potential buyers refused to buy the gas; and
(3) A study, which may be submitted by an applicant, that evaluates
the economics of upgrading the gas for sale and transporting the gas to
a pipeline. The study should include estimates of the revenues which
could be derived from the sale of the gas and the fixed and variable
costs of upgrading.
(c) Category 3. In determining whether natural gas with a heating
value above 800 Btu per scf is marketable, the Commission will consider
the information included in paragraph (b) of this section and whether:
(1) The gas has actually been flared, vented to the atmosphere, or
continuously injected into a non-producing zone for a period of one
year, pursuant to legal authority; or
(2) The gas has been certified as waste, i.e., suitable for
disposal, by an appropriate state authority.
[Order 471, 52 FR 19310, May 22, 1987]
Statement of Penalty Reduction/Waiver Policy To Comply With the Small
Business Regulatory Enforcement Fairness Act of 1996
Sec. 2.500 Penalty reduction/waiver policy for small entities.
(a) It is the policy of the Commission that any small entity is
eligible to be considered for a reduction or waiver of a civil penalty
if it has no history of previous violations, and the violations at issue
are not the product of willful or criminal conduct, have not caused loss
of life or injury to persons, damage to property or the environment or
endangered persons, property or the environment. An eligible small
entity will be granted a waiver if it can also demonstrate that it
performed timely remedial efforts, made a good faith effort to comply
with the law and did not obtain an economic benefit from the violations.
An eligible small entity that cannot meet the criteria for waiver of a
civil penalty may be eligible for consideration of a reduced penalty.
Upon the request of a small entity, the Commission will consider the
entity's ability to pay before assessing a civil penalty.
(b) Notwithstanding paragraph (a) of this section, the Commission
reserves the right to waive or reduce civil penalties in appropriate
individual circumstances where it determines that a waiver or reduction
is warranted by the public interest.
[Order 594, 62 FR 15830, Apr. 3, 1997]
Sec. Appendix A to Part 2--Guidance for Determining the Acceptable
Construction Area for Auxiliary and Replacement Facilities
These guidelines shall be followed to determine what area may be
used to construct the auxiliary or replacement facility. Specifically,
they address what areas, in addition to the permanent right-of-way, may
be used.
An auxiliary or replacement facility must be within the existing
right-of-way or facility site as specified by Sec. 2.55(a)(1) or Sec.
2.55(b)(1)(ii). Construction activities for the auxiliary or replacement
facility can extend outside the current permanent right-of-way if they
are within the temporary and permanent right-of-way and associated work
spaces authorized for the construction of the existing installation.
If documentation is not available on the location and width of the
temporary and permanent rights-of-way and associated work spaces that
were used to construct the existing facility, the company may use the
following guidance for the auxiliary installation or replacement,
provided the appropriate easements have been obtained:
a. Construction should be limited to no more than a 75-foot-wide
right-of-way including the existing permanent right-of-way for large
diameter pipeline (pipe greater than 12 inches in diameter) to carry out
routine construction. Pipeline 12 inches in diameter and smaller should
use no more than a 50-foot-wide right-of-way.
b. The temporary right-of-way (working side) should be on the same
side that was used in constructing the existing pipeline.
c. A reasonable amount of additional temporary work space on both
sides of roads and interstate highways, railroads, and significant
stream crossings and in side-slope areas is allowed. The size should be
dependent upon site-specific conditions. Typical work spaces are:
------------------------------------------------------------------------
Typical extra area (width/
Item length)
------------------------------------------------------------------------
Two lane road (bored)..................... 25-50 by 100 feet.
Four lane road (bored).................... 50 by 100 feet.
Major river (wet cut)..................... 100 by 200 feet.
Intermediate stream (wet cut)............. 50 by 100 feet.
Single railroad track..................... 25-50 by 100 feet.
------------------------------------------------------------------------
d. The auxiliary or replacement facility must be located within the
permanent right-of-way or, in the case of nonlinear facilities,
[[Page 41]]
the cleared building site. In the case of pipelines this is assumed to
be 50 feet wide and centered over the pipeline unless otherwise legally
specified.
However, use of the above guidelines for work space size is
constrained by the physical evidence in the area. Areas obviously not
cleared during the existing construction, as evidenced by stands of
mature trees, structures, or other features that exceed the age of the
facility being replaced, should not be used for construction of the
auxiliary or replacement facility.
If these guidelines cannot be met, the company should consult with
the Commission's staff to determine if the exemption afforded by Sec.
2.55 may be used. If the exemption may not be used, construction
authorization must be obtained pursuant to another regulation under the
Natural Gas Act.
[Order 790A, 79 FR 70068, Nov. 25, 2014]
Sec. Appendix B to Part 2 [Reserved]
[[Page 42]]
Appendix C to Part 2--Nationwide Proceeding Computation of Federal
Income Tax Allowance Independent Producers, Pipeline Affiliates and
Pipeline Producers Continental U.S.--1972 Data (Docket No. R-478)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(2)--Total (5)--No (7)--Percentage
Schedule Line excluding (3)--Gas (4)--Lease lease (6)--Total lease (8)--Allocated
Line No. Particulars No. No. (1)--Total \1\ production taxes only \3\ separation separation \4\ separation gas amount gas \6\
\2\ \3\ \3\ \5\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
production, exploration and development costs
2 Direct and indirect lease 1-A 01 1,694,893,558 1,694,893,558 57,287,938 $144,679,567 $19,763,791 $221,731,296 90.33 207,740,782
costs and expenses.
2 Taxes (except income and A-1 02 210,335,720 210,335,720 16,507,630 20,431,444 4,360,024 41,299,098 9.33 39,323,337
production).
4 Production taxes.............. 1-A 03 479,424,297 ................ 27,124,210 96,699,673 10,005,599 133,829,482 90.33 124,478,624
5 Other lease expenses.......... 1-A 04 61,102,433 61,102,433 17,527,077 24,988,900 336,427 42,852,404 90.33 40,435,977
6 Depletion, depreciation and 1-A 05 1,716,823,070 1,716,823,070 105,999,777 297,881,312 25,502,048 429,383,137 90.33 400,578,014
amortization.
7 Corporate general expense..... 1-A 06 278,845,909 278,845,909 13,611,337 25,077,796 3,579,728 42,268,861 90.33 39,843,838
8 Area, district, division and 1-A 07 261,718,417 26,178,417 7,207,320 21,758,604 2,778,944 31,744,868 90.33 29,640,811
field expense.
9 Miscellaneous lease revenues.. 1-A 09 (12,203,136) (12,203,136) (1,348,729) (2,768,788) (314,067) (4,431,584) 90.33 (4,163,842)
10 Return on production rate base 1-A 13 2,505,272,672 2,505,272,672 186,055,524 427,939,601 69,857,212 663,852,337 90.33 622,470,578
at 15 percent.
11 Exploration and development 1-A 15 1,673,945,853 1,673,945,853 ........... ............ ........... ............ ............... 594,971,262
costs and expenses.
12 Return on exploration rate 1-A 16 588,558,894 588,558,894 ........... ............ ........... ............ ............... 234,604,103
base at 15 percent.
13 Regulatory commission expense 1-A 17 6,514,279 6,514,279 ........... ............ ........... ............ ............... 6,514,852
including return.
==========================================================================================================================
14
15 Total computed revenue....... ........ ..... 9,465,231,966 8,985,807,669 ........... ............ ........... ............ ............... 2,336,439,376
16 (gross income)
--------------------------------------------------------------------------------------------------------------------------
17
18 revenue deductions
19 Direct and indirect lease 1-A 01 1,694,893,558 1,694,893,558 ........... ............ ........... ............ ............... 207,740,872
costs and expenses.
20 Taxes (except income and 1-A 02 210,335,720 210,335,720 ........... ............ ........... ............ ............... 39,323,377
production).
21 Production taxes.............. 1-A 03 479,424,297 ................ ........... ............ ........... ............ ............... 124,478,624
22 Other lease expenses.......... 1-A 04 61,102,433 61,102,433 ........... ............ ........... ............ ............... 40,435,977
23 Book depletion................ ........ ..... \7\ 283,121,242 24,287,986 61,675,828 6,177,596 92,141,410 90.33 86,177,357
(283,121,142)
24 Depreciation expense.......... 1-A 05 \7\ 654,604,447 30,223,586 94,010,520 7,007,662 131,241,768 90.33 122,150,951
(654,604,447)
25 Amortization of capitalized ........ ..... \7\ 779,097,382 51,488,205 142,194,964 12,316,790 205,999,959 90.33 192,249,706
IDC. (779,097,382)
26 Corporate general expense..... 1-A 06 278,845,909 278,845,909 ........... ............ ........... ............ ............... 39,843,838
[[Page 43]]
27 Area, district, division and 1-A 07 261,718,417 261,718,417 ........... ............ ........... ............ ............... 29,640,811
field expense.
28 Miscellaneous lease revenues.. 1-A 09 (12,203,136) (12,203,136) ........... ............ ........... ............ ............... (4,163,842)
29 Exploration and development ........ ..... 1,673,945,853 1,673,945,853 ........... ............ ........... ............ ............... 594,971,262
costs and expenses.
30 Regulatory commission expense. 4-A 01 6,384,384 6,394,384 ........... ............ ........... ............ ............... 6,394,384
---------------------------------------------------------------------------------------------------------------------------------
31
32 Total book expenses.......... ........ ..... 6,371,380,505 5,891,856,209 ........... ............ ........... ............ ............... 1,479,243,227
---------------------------------------------------------------------------------------------------------------------------------
33
34 Production net income (line 15 ........ ..... 3,093,951,461 3,093,951,460 ........... ............ ........... ............ ............... 857,190,149
less line 32).
---------------------------------------------------------------------------------------------------------------------------------
35
36 tax adjustment--add (deduct)
37 Amortization of capitalized ........ ..... 779,097,282 779,097,382 ........... ............ ........... ............ ............... 192,249,706
IDC.
38 Estimated IDC capitalized in ........ ..... \8\ (1,470,935,857) ........... ............ ........... ............ ............... (362,967,445)
1972. (1,470,935,857)
39 Interest expense (calculated). ........ ..... \9\ (243,846,540) ........... ............ ........... ............ ............... (60,587,136)
(243,846,540)
---------------------------------------------------------------------------------------------------------------------------------
40
41 Taxable income............... ........ ..... 2,158,266,445 2,158,266,445 ........... ............ ........... ............ ............... 625,891,274
---------------------------------------------------------------------------------------------------------------------------------
42
43 Federal income tax at 48 ........ ..... 1,992,245,949 1,992,245,949 ........... ............ ........... ............ ............... \10\
percent. 577,745,791
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Lines 1 thru 15, col. (1). From Notice issued Sept. 12, 1974, app. A, p. 12, col. (d).
\2\ Production taxes have been deleted from col. (1).
\3\ From notice issued Sept. 12, 1974, app. A, p. 12, cols. (g), (h), and (i).
\4\ Col. (3) plus col. (4) plus col. (5).
\5\ Calculated on a modified British thermal unit basis (1.5 to 1).
\6\ Col. (7) times col. (4), plus cols. (3) and (5).
\7\ See composites mailed to all parties on Feb. 13, 1974.
\8\ Calculated, 188.8 percent (A R64-1-2) times $779,097,382 equals $1,470,935,857.
\9\ Calculated 0.0146 (interest rate) times $16,701,817,818 (app. A, schedule 2-A, (d), line 11, p. 13) equals $243,846,540.
\10\ $577,745,791 divided by 9,508,369,001 equals 6.08 cents per thousand cubic feet.
[Opinion 749, 41 FR 3092, Jan. 21, 1976]
[[Page 44]]
PART 3 [RESERVED]
PART 3a_NATIONAL SECURITY INFORMATION--Table of Contents
General
Sec.
3a.1 Purpose.
3a.2 Authority.
Classification
3a.11 Classification of official information.
3a.12 Authority to classify official information.
3a.13 Classification responsibility and procedure.
Declassification and Downgrading
3a.21 Authority to downgrade and declassify.
3a.22 Declassification and downgrading.
3a.23 Review of classified material for declassification purposes.
Classification Markings and Special Notations
3a.31 Classification markings and special notations.
Access to Classified Materials
3a.41 Access requirements.
Security Officers
3a.51 Designation of security officers.
Storage and Custody of Classified Information
3a.61 Storage and custody of classified information.
Accountability for Classified Material
3a.71 Accountability for classified material.
Transmittal of Classified Material
3a.81 Transmittal of classified material.
Data Index System
3a.91 Data index system.
Authority: 15 U.S.C. 717o; 16 U.S.C. 825h.
Source: Order 470, 38 FR 5161, Feb. 26, 1973, unless otherwise
noted.
General
Sec. 3a.1 Purpose.
This part 3a describes the Federal Energy Regulatory 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.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
Sec. 3a.2 Authority.
Official information or material referred to as classified in this
part is expressly exempted from public disclosure by 5 U.S.C. 552(b)(1).
Wrongful disclosure thereof is recognized in the Federal Criminal Code
as providing a basis for prosecution. E.O. 11652, March 8, 1972 (37 FR
5209, March 10, 1972), identifies the information to be protected,
prescribes classification, downgrading, declassification, and
safeguarding procedures to be followed and establishes a monitoring
system to insure its effectiveness. National Security Council Directive
Governing the Classification, Downgrading, Declassification and
Safeguarding of National Security Information, May 17, 1972 (37 FR
10053, May 19, 1972), implements E.O. 11652.
Classification
Sec. 3a.11 Classification of official information.
(a) Security Classification Categories. Information or material
which requires protection against unauthorized disclosure in the
interest of the national defense or foreign relations of the United
States (hereinafter collectively termed national security) is classified
Top Secret, Secret or Confidential, depending upon the degree of its
significance to national security. No other categories are to be used to
identify official information or material requiring protection in the
interest of national security, except as otherwise expressly provided by
statute. These classification categories are defined as follows:
(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
[[Page 45]]
grave damage to the national security. Examples of exceptionally grave
damage include armed hostilities against the United States or its
allies; disruption of foreign relations vitally affecting the national
security; the compromise of vital national defense plans or complex
cryptologic and communications intelligence systems; the revelation of
sensitive intelligence operations; and the disclosure of scientific or
technological developments vital to national security. This
classification is to be used with the utmost restraint.
(2) Secret. Secret refers to national security information or
material which requires a substantial degree of protection. The test for
assigning Secret classification shall be whether its unauthorized
disclosure could reasonably be expected to cause serious damage to the
national security. Examples of serious damage include disruption of
foreign relations significantly affecting the national security;
significant impairment of a program or policy directly related to the
national security; revelation of significant military plans or
intelligence operations; and compromise of significant scientific or
technological developments relating to national security. The
classification Secret shall be sparingly used.
(3) Confidential. Confidential refers to national security
information or material which requires protection, but not to the degree
described in paragraphs (a) (1) and (2) of this section. The test for
assigning Confidential classification shall be whether its unauthorized
disclosure could reasonably be expected to cause damage to the national
security.
(b) Classified information will be assigned the lowest
classification consistent with its proper protection. Documents will be
classified according to their own content and not necessarily according
to their relationship to other documents.
(c) The overall classification of a file or group of physically
connected documents will be at least as high as that of the most highly
classified document therein. When put together as a unit or complete
file, the classification of the highest classified document contained
therein will be marked on a cover sheet, file folder (front and back),
or other similar covering, and on any transmittal letters, comments, or
endorsements.
(d) Administrative Control Designations. These designations are not
security classification designations, but are used to indicate a
requirement to protect material from unauthorized disclosure. Material
identified under the provisions of this subparagraph will be handled and
protected in the same manner as material classified Confidential except
that it will not be subject to the central control system described in
Sec. 3a.71. Administrative Control designations are:
(1) For Official Use Only. This designation is used to identify
information which does not require protection in the interest of
national security, but requires protection in accordance with statutory
requirements or in the public interest and which is exempt from public
disclosure under 5 U.S.C. 552(b) and Sec. 388.105(n) of this chapter.
(2) Limited Official Use. This administrative control designation is
used by the Department of State to identify nondefense information
requiring protection from unauthorized access. Material identified with
this notation must be limited to persons having a definite need to know
in order to fulfill their official responsibilities.
(e) A letter or other correspondence which transmits classified
material will be classified at a level at least as high as that of the
highest classified attachment or enclosure. This is necessary to
indicate immediately to persons who receive or handle a group of
documents the highest classification involved. If the transmittal
document does not contain classified information, or if the information
in it is classified lower than in an enclosure, the originator will
include a notation to that effect. (See Sec. 3a.31(e).)
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 225, 47 FR
19055, May 3, 1982]
Sec. 3a.12 Authority to classify official information.
(a) The authority to classify information or material originally
under E.O.
[[Page 46]]
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 Energy Regulatory 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 FERC 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.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
Sec. 3a.13 Classification responsibility and procedure.
(a) Each FERC 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 FERC or any of its officials or employees,
or to prevent for any other reason the release of information which does
not require protection in the interest of national security.
(b) Each classified document shall show on its face its
classification and whether it is subject to or exempt from the General
Declassification Schedule (Sec. 3a.22(b)). It also shall show the
office of origin, the date of preparation and classification and, to the
extent practicable, be so marked as to indicate which portions are
classified, at what level, and which portions are not classified in
order to facilitate excerpting and other use. Material which merely
contains references to classified materials, which references do not
reveal classified information, shall not be classified.
(c) Material classified under this part shall indicate on its face
the identity of the highest authority authorizing the classification.
Where the individual who signs or otherwise authenticates a document or
item has also authorized the classification, no further annotation as to
his identity is required.
[[Page 47]]
(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 FERC
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 FERC will so inform the
originator who is then required by the Executive order to reexamine the
classification.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
Declassification and Downgrading
Sec. 3a.21 Authority to downgrade and declassify.
(a) The authority to downgrade and declassify information or
material shall be exercised as follows:
(1) Information or material may be downgraded or declassified by the
official authorizing the original classification, by a successor or by a
supervisory official of either.
(2) Downgrading and declassification authority may also be exercised
by an official specifically authorized under regulations issued by the
head of the Department listed in sections 2 A and B of E.O. 11652, March
10, 1972.
(3) In the case of classified information or material transferred
pursuant to statute or Executive order in conjunction with a transfer of
function and not merely for storage purposes, the receiving department
or agency shall be deemed to be the originating department or agency for
all purposes under E.O. 11652, including downgrading and
declassification.
(4) In the case of classified information or material not officially
transferred under paragraph (a)(3) of this section, but originated in a
department or agency which has since ceased to exist, each department or
agency in possession shall be deemed to be the originating department or
agency for all purposes. Such information or material may be downgraded
and declassified after consulting with any other departments or agencies
having an interest in the subject matter.
(5) Classified information or material transferred to the General
Services Administration for accession to the Archives of the United
States shall be downgraded and declassified by the Archivist of the
United States in accordance with E.O. 11652, directives of the President
issued through the National Security Council, and pertinent regulations
of the departments and agencies.
Sec. 3a.22 Declassification and downgrading.
(a) When classified information of material no longer requires the
level of protection assigned to it, it shall be downgraded or
declassified in order to preserve the effectiveness and integrity of the
classification system. The Chairman, Vice Chairman, and Executive
Director exercise downgrading and declassification authority in the
FERC.
(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.
[[Page 48]]
(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 FERC 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 FERC 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 FERC provided:
(1) A department or agency or member of the public requests review;
(2) The request describes the record with sufficient particularity
to enable FERC to identify it; and
(3) The record can be obtained with a reasonable amount of effort.
(g) All classified information or material which is 30 years old or
more will be declassified under the following conditions:
(1) All information and material classified after June 1, 1972,
will, whether or not declassification has been requested, become
automatically declassified at the end of 30 full calendar years after
the date of its original classification except for such specifically
identified information or material which the Chairman personally
determines in writing to require continued protection because such
continued protection is essential to the national security, or
disclosure would place a person in immediate jeopardy. In such case, the
Chairman also will specify the period of continued classification.
(2) All information and material classified before June 1, 1972 and
more than 30 years old will be systematically reviewed for
declassification by the Archivist of the United States by the end of the
30th full calendar year following the year in which it was originated.
In his review, the Archivist will separate and keep protected only such
information or material as is specifically identified by the Chairman in
accordance with paragraph (g) (1) of this section. In such case, the
Chairman also will specify the period of continued classification.
(3) The Executive Director, acting for the Chairman, is assigned to
assist the Archivist of the United States in the exercise of his
responsibilities indicated in paragraph (g)(2) of this section. He will:
(i) Provide guidance and assistance to archival employees in
identifying and separating those materials originated in FERC which are
deemed to require continued classification; and
[[Page 49]]
(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.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
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 FERC, 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 Energy Regulatory Commission,
Washington, DC 20426.
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 FERC 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 FERC Review Committee and the notice of determination will advise
him of this right.
(c) The FERC Review Committee will establish procedures to review
and act within 30 days upon all applications and appeals regarding
requests for declassification. The chairman, acting through the
committee, is authorized to overrule previous determinations in whole or
in part when, in its judgment, continued protection is no longer
required. If the committee determines that continued classification is
required under the criteria of section 5(B) of E.O. 11652, it will
promptly so notify the requester and advise him that he may appeal the
denial to the Interagency Classification Review Committee.
(d) A request by a department or agency or a member of the public to
review for declassification documents more than 30 years old shall be
referred directly to the Archivist of the United States, and he shall
have the requested documents reviewed for declassification. If the
information or material requested has been transferred to the General
Services Administration for accession into the Archives, the Archivist
shall, together with the chairman, have the requested documents reviewed
for declassification. Classification shall be continued in either case
only when the chairman makes the personal determination indicated in
Sec. 3a.22(g)(1).
[[Page 50]]
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 FERC 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 FERC 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 FERC 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 FERC 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, FERC, a report quarterly to the Interagency Classification
Review Committee, NSC, of actions on classification review requests,
classification abuses, and unauthorized disclosures.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
Classification Markings and Special Notations
Sec. 3a.31 Classification markings and special notations.
(a) After the chairman, the vice chairman, or the executive director
determines that classified information is contained in an original
document or other item, the appropriate marking, i.e., Secret or
Confidential, will be applied as indicated herein. In addition, each
classified document will reflect its date of origin and the Bureau,
Office, or Regional Office responsible for its preparation and issuance,
and the identity of the highest authority authorizing the
classification. Where the individual who signs or otherwise
authenticates the document or other item has also authorized the
classification, no further annotation as to his identity is required.
Each classified document will also show on its face whether it is
subject to or exempt from the General Declassification Schedule
described in Sec. 3a.22(b).
(1) For marking documents which are subject to the General
Declassification Schedule, the following stamp will be used:
(Top Secret, Secret, or Confidential) Classified by ______. Subject
to General Declassification Schedule of E.O. 11652, automatically
downgraded at 2-year intervals and declassified on December 31, ______
(insert year).
(2) For marking documents which are to be automatically declassified
on a given event or date earlier than the General Declassification
Schedule the following stamp will be used:
(Top Secret, Secret, or Confidential) Classified by ______.
Automatically declassified on __________ (effective date or event).
[[Page 51]]
(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 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:
[[Page 52]]
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.
(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
[[Page 53]]
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
FERC 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.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
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 Energy Regulatory 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 FERC 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.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
Storage and Custody of Classified Information
Sec. 3a.61 Storage and custody of classified information.
(a) Unless specifically authorized by the Chairman or Executive
Director, classified information and materials within the Washington
office will be stored only in GSA-approved security containers in the
Office of Administrative Operations. Such containers will be of steel
construction with built-in, three-position, dial-type, manipulation-
proof, changeable combination locks.
(b) A custodian and one or more alternate custodians will be
assigned responsibility for the security of each container under his
jurisdiction in which classified information is stored. Such assignment
will be made a matter of record by executing GSA Optional Form 63,
Classified Container Registration, and affixing it to the container
concerned. Custodians will be responsible for assuring that combinations
are changed as required and that locking and checking functions are
accomplished daily in compliance with paragraphs (g) and (h) of this
section.
(c) GSA Optional Form 63 is a 3-sheet form, each sheet having a
specific purpose and disposition, as follows:
(1) Sheet 1 records the names, addresses, and home telephone numbers
of the custodian and alternate custodians. Sheet 1 is affixed to the
outside of the container.
(2) Sheet 2 records the combination of the container and is placed
inside Sheet 3, which is an envelope.
(3) Sheet 3, an envelope, is a carbon copy of Sheet 1. When the
container combination is recorded on Sheet 2, it is sealed inside Sheet
3 which is then forwarded to the FERC Top Secret Control Officer.
[[Page 54]]
(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.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
Accountability For Classified Material
Sec. 3a.71 Accountability for classified material.
(a) The Office of Administrative Operations is the central control
registry for the receipt and dispatch of classified material in the
Washington office and maintains the accountability register of all
classified material. In addition, each Regional Engineer will maintain
an accountability register for classified material of which he has
custody.
(b) With the exception of the Chairman, Vice Chairman, and Executive
Director, no individual, bureau, or office is authorized to receive,
open, or dispatch classified material other than the authorized
personnel in OAO or the Regional Engineers. Classified material received
by other than the OAO or Regional Engineers will be delivered promptly
and unopened to the Security Officer or Regional Engineer in order that
it may be brought under accountable control.
[[Page 55]]
(c) Each classified document received by or originating in the FERC
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 FERC. 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 FERC 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 FERC.
(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.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
Transmittal of Classified Material
Sec. 3a.81 Transmittal of classified material.
(a) A continuous receipting system, using copies of FERC Form 55,
will record all transfers of classified items between elements or
officials within
[[Page 56]]
the FERC. Receipts for transmittal of classified items from the central
registry to the first recipient will be acknowledged on copy number one
(original) of FERC 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 FERC
control registry system. Receipts for subsequent transmittals through
the FERC will be recorded on the remaining copies of FERC 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 FERC Label 19,
Top Secret Cover Sheet (yellow); FERC Label 20, Secret Cover Sheet
(red); FERC Label 21, Confidential Cover Sheet (blue), or FERC Label 22,
Official Use Only (Limited Official Use) green. In addition, the red
back sheet, FERC Label 23, will be used. With the exception of the FERC
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 FERC Washington offices or the Regional Offices will be
covered by FERC 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 FERC 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 FERC Washington offices or
the Regional offices will be by registered mail only. Transmittal
outside these specified areas will be as stated in paragraph
[[Page 57]]
C(2), Appendix B, of the NSC Directive of May 17, 1972.
[Order 470, 38 FR 5161, Feb. 26, 1973, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
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 Energy Regulatory 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.
[Order 536, 40 FR 44288, Sept. 25, 1975, as amended by Order 737, 75 FR
43402, July 26, 2010]
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
[[Page 58]]
education, financial transactions, medical history, and criminal or
employment history and that contains his name, or the identifying
number, symbol, or other identifying particular assigned to the
individual, such as a finger or voice print or a photograph;
(e) System of records means a group of any records under the control
of any agency from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual;
(f) Statistical record means a record in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or in part in making any determination about an
identifiable individual, except as provided by section 8 of title 13 of
the United States Code;
(g) Routine use means, with respect to the disclosure of a record,
the use of 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.
[[Page 59]]
Sec. 3b.4 Government contractors.
Systems of records operated by a contractor, pursuant to a contract,
on behalf of the Commission, which are designed to accomplish a
Commission function, are considered, for the purposes of this part, to
be maintained by the Commission. A contract covers any contract, written
or oral, subject to the Federal Procurement Regulations. The contractual
instrument will specify, to the extent consistent with the Commission's
authority to require it, that the systems of records be maintained in
accordance with the requirements of this part.
Sec. 3b.5 Legal guardians.
For the purposes of this part, the parent of any minor, or the legal
guardian of any individual who has been declared to be incompetent due
to physical or mental incapacity or age by a court of competent
jurisdiction, may act on behalf of the individual.
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
[[Page 60]]
assembly and petition. In determining whether or not a particular
activity constitutes the exercise of a right guaranteed by the First
Amendment, the Commission will apply the broadest reasonable
interpretation.
Sec. 3b.202 Collection of information from individuals concerned.
(a) Any information collected by the Commission for inclusion in a
system of records which may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs,
will, to the greatest extent practicable, be collected directly from the
subject individual (see paragraph (d) of this section).
(b) The Commission will inform each individual whom it asks to
supply information about himself, on the form which it uses to collect
the information, or on a separate sheet that can be easily retained by
the individual, in language which is explicit, informative, and easily
understood, and not 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
[[Page 61]]
1974 and overseeing the conduct of all Commission employees with respect
to the act.
(b) It is the responsibility of the Comptroller of the Commission,
under the guidance of the Executive Director, to prepare the appropriate
internal administrative procedures to assure that all persons involved
in the design, development, or operation of any system of records, or in
collecting, using, or disseminating any individual record, and who have
access to any system of records, are informed of all rules and
requirements of the Commission to protect the privacy of the individuals
who are the subjects of the records, including the applicable provisions
of the FERC Standards of Conduct for Employees, Special Government
Employees and Commissioners.
(c) The Director, Human Resources Division, 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.
[Order 536, 40 FR 44288, Sept. 25, 1975, as amended by Order 737, 75 FR
43402, July 26, 2010]
Sec. 3b.204 Safeguarding information in manual and computer-based
record systems.
(a) The administrative and physical controls to protect the
information in the manual and computer-based record systems from
unauthorized access or disclosure will be specified for each system in
the Federal Register. The system managers, who are responsible for
providing protection and accountability of such records at all times and
for insuring that the records are secured in proper containers whenever
they are not in use or under direct control of authorized persons, will
be identified for each system of records in the Federal Register.
(b) Whenever records in the manual or computer-based record systems,
including input and output documents, punched cards, and magnetic tapes
or disks, are not under the personal control of an authorized person,
they will be stored in lockable containers and/or in a secured room, or
in alternative storage systems which furnish an equivalent or greater
degree of physical security. In this regard, the Commission may refer to
security guidelines prepared by the General Services Administration, the
Department of Commerce (National Bureau of Standards), or other agencies
with appropriate knowledge and expertise.
(c) Access to and use of records will only be permitted to persons
pursuant to Sec. Sec. 3b.221, 3b.224, and 3b.225. Access to areas where
records are stored will be limited to those persons whose official
duties require work in such areas. Proper control of data, in any form,
associated with the manual and computer-based record systems will be
maintained at all times, including maintenance of an accounting of
removal of the records from the storage area.
[[Page 62]]
Subpart C_Rules for Disclosure of Records
Sec. 3b.220 Notification of maintenance of records to individuals
concerned.
(a) Upon written request, either in person or by mail, to the
appropriate system manager specified for each system of records, an
individual will be notified whether a system of records maintained by
the Commission and named by the individual contains a record or records
pertaining to him and filed under his individual name, or some other
identifying particular.
(b) The system manager may require appropriate identification
pursuant to Sec. 3b.222, and if necessary, may request from the
individual additional information needed to locate the record which the
individual should reasonably be expected to know, such as, but not
limited to, date of birth, place of birth, and a parent's first name.
(c) When practicable, the system manager will provide a written
acknowledgement of the inquiry within ten days of receipt of the inquiry
(excluding Saturdays, Sundays and legal public holidays) and
notification of 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
[[Page 63]]
the individual in writing as to the reasons therefor (for good cause
shown), and when it is anticipated that access will be granted. If the
expected date of access indicated in the written notification to the
individual cannot be met, the system manager will advise the individual
in writing of the delay, the reasons therefor (for good cause shown),
and of a revised date when access will be granted. Such extensions will
not exceed thirty days from receipt of the request (excluding Saturdays,
Sundays, and legal public holidays).
(2) If access cannot be granted, the system manager will inform the
individual, in writing, within twenty days of receipt of the request
(excluding Saturdays, Sundays, and legal public holidays) of the refusal
of his request; the reasons for the refusal; the right of the
individual, within thirty days of receipt of the refusal, to request in
writing a review of the refusal by the Chairman of the Federal Energy
Regulatory Commission, 888 First 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.
[Order 536, 40 FR 44288, Sept. 25, 1975, as amended by Order 737, 75 FR
43402, July 26, 2010]
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.
[[Page 64]]
(c) If the system manager determines that the data in the record is
so sensitive that unauthorized access could cause harm or embarrassment
to the individual involved, a signed notarized statement asserting
identity or some other reasonable means to verify identity will be
required.
(d) If an individual can provide no suitable information or
documents for identification, the system manager will require a signed
statement from the individual asserting his identity and stipulating
that the individual understands that knowingly or willfully seeking or
obtaining access to records about an individual under false pretenses is
a misdemeanor punishable by a fine of up to $5,000.
(e) The system manager will require an individual who wishes to be
accompanied by another person when reviewing his records to furnish a
signed written statement authorizing discussion of his records in the
presence of the accompanying person.
(f) The appropriate identification requirements of this section may
be required by a system manager from an individual to whom a record does
not pertain who seeks access to the record pursuant to Sec. 3b.225 of
this part.
(g) No individual will be denied notification of maintenance of a
record pursuant to Sec. 3b.220 or access to a record pursuant to
Sec. Sec. 3b.221 and 3b.224 for refusing to disclose a social security
number.
(h) No verification of identity will be required of individuals
seeking notification of or access to records which are otherwise
available to a member of the public under the Freedom of Information
Act, 5 U.S.C. 552, as amended.
Sec. 3b.223 Fees.
(a) Fees will be charged for the direct cost of duplication of
records in a system of records when copies are requested by the
individual seeking access to the records. Any person may obtain a copy
of the Commission's schedule of fees by telephone, by mail or by coming
in person to the office of the appropriate system manager who is
responsible for the protection and accountability of the desired record.
Requests for copies of requested records and payment therefor must be
made to the system manager. Fees will only be charged for costs of $2 or
more.
(b) Where practicable, self-service duplication of requested
documents may also be made on duplicating machines by the person
requesting the records, on a reimbursable basis to the system manager,
in the presence of the Commission representative having physical custody
of the record. Where data has been extracted from one of the
Commission's systems of records on magnetic tape or disks, or computer
files, copies of the records of these files may be secured on a
reimbursable basis upon written request to the appropriate system
manager. The fee will vary for each requirement, depending on size and
complexity.
(c) No fee will be charged in the following instances:
(1) When the system manager determines that he can grant access to
records only by providing a copy of the record through the mail because
he cannot provide reasonable means for the individual to have access in
person;
(2) For search and review of requested records to determine if they
fall within the disclosure requirements of this part; and
(3) When the system manager makes a copy of the record as a
necessary part of the process of making it available for review.
(d) Except for requests made by Government agencies, certification
of copies of any official Commission record shall be accompanied by a
fee of $2 per document.
Sec. 3b.224 Requests to amend records and disputes thereon.
(a) Upon written request, either in person or by mail, to the
appropriate system manager specified for each system of records, any
individual may amend records in a system of records pertaining to him
and filed under his individual name or some other identifying
particular. Such requests should contain identifying information needed
to locate the record, a brief description of the item or items of
information to be amended, and information in support of the request for
amendment. The individual may obtain assistance in preparing his request
to amend a
[[Page 65]]
record from the appropriate system manager.
(b) The system manager will provide a written acknowledgement of the
receipt of a request to amend within ten days of receipt (excluding
Saturdays, Sundays, and legal public holidays). Such an acknowledgement
may, if necessary, request any additional information needed to make a
determination which the individual may reasonably be expected to know,
and verification of identity consistent with Sec. 3b.222. The
acknowledgement will clearly describe the request and advise the
individual requesting the amendment when he may expect to be notified of
action taken on the request. No acknowledgement is required if the
request can be reviewed, processed, and the individual notified of
compliance or denial within the ten-day period.
(c) The system manager will complete the review and advise the
individual in writing of the results within twenty days of the receipt
of the request (excluding Saturdays, Sundays, and legal public
holidays). If the system manager is unable to complete the review within
twenty days of the receipt of the request, he will inform the individual
in writing as to the reasons therefor (for good cause shown) and when it
is anticipated that the review 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 Energy
Regulatory Commission, 888 First 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;
[[Page 66]]
(iii) The right of the individual to file with the Chairman, or
designated officer, a concise written statement setting forth the
reasons for his disagreement with the decision;
(iv) The fact that the statement of disagreement will be made
available to anyone to whom the record is subsequently disclosed,
together with the portion of the record which is disputed clearly noted,
and, with, at the discretion of the Chairman, or designated officer, a
brief statement by the Chairman, or designated officer, summarizing the
reasons for refusing to amend the record;
(v) Where an accounting of the disclosure of the record was made
pursuant to Sec. 3b.226 of this part, the fact that prior recipients of
the disputed record will be provided a copy of the individual's
statement of disagreement, with the portion of the record which is
disputed clearly noted, and, at the Chairman's or designated officer's
discretion, the statement summarizing the refusal to amend [see Sec.
3b.225(d)]; and
(vi) The individual's right to seek judicial review of the refusal
to amend.
(f) The Chairman may designate, in writing, another officer of the
Commission to act in his capacity for the purposes of this part. The
officer will be organizationally independent of or senior to the system
manager who made the initial determination and will conduct a review
independent of the initial determination.
[Order 536, 40 FR 44288, Sept. 25, 1975, as amended by Order 737, 75 FR
43402, July 26, 2010]
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
[[Page 67]]
the United States for a civil or criminal law enforcement activity if
the activity is authorized by law, and if the head of the agency or
instrumentality, or his delegated official, has made a written request
to the appropriate system manager specifying the particular portion of
the record desired and the law enforcement activity for which the record
is being sought;
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual (not necessarily the
individual to whom the record pertains), if, upon disclosure,
notification of such is sent to the last known address of the individual
to whom the record pertains;
(9) To either House of Congress, or to any committee or subcommittee
thereof, on a matter within its jurisdiction;
(10) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(c) When a record is disclosed under compulsory legal process and
such process becomes a matter of public record, the system manager will
make reasonable efforts to notify the individual to whom the record
pertains. A notice will be sent to the individual's last known address
noted in the Commission's files.
(d) The appropriate system manager shall notify all prior recipients
of records, disclosure to whom an accounting was made pursuant to Sec.
3b.226, of any amendments made to the records, including corrections,
amendments and notations of dispute made pursuant to Sec. Sec.
3b.224(c)(1) and 3b.224(e)(1) and (2)(v), within ten days of receipt of
the corrected information or notation of dispute (excluding Saturdays,
Sundays, and legal public holidays), except under unusual circumstances
[see circumstances described in Sec. 3b.220(d)].
(e) The content of the records disclosed under this section shall be
maintained pursuant to the standards established in Sec. 3b.201(c).
Sec. 3b.226 Accounting of disclosures.
(a) The appropriate system manager specified for each system of
records will keep an accurate written account of all disclosures of
records made to any person or to any other agency with the written
consent or at the written request of the individual to whom the record
pertains and pursuant to Sec. 3b.225(b)(3) through (11). The account
will include the following information:
(1) The date, nature, and purpose of each disclosure;
(2) The name and address of the person or agency to whom the
disclosure is made; and
(3) A reference to the justification or basis upon which the release
was made, including reference to any written document required as when
records are released for statistical or law enforcement purposes
pursuant to Sec. 3b.225(b) (5) and (7).
(b) Each system manager will retain the accounting made under
paragraph (a) of this section for at least five years from the date of
disclosure for which the accounting is made, or the life of the record,
which ever is longer.
(c) Except for disclosures made for law enforcement purposes
pursuant to Sec. 3b.225(b)(7), and unless the system of records has
been exempted from this provision pursuant to subpart D of this part,
each system manager will make the accounting made under paragraph (a) of
this section available to the individual named in the record at his
written request.
(d) The accounting of disclosures is not a system of records under
the definition in Sec. 3b.2(e) and no accounting will be maintained for
disclosure of the accounting of disclosures.
Sec. 3b.227 Mailing lists.
An individual's name and address maintained by the Commission will
not be sold or rented for commercial or other solicitation purposes not
related to the purposes for which the information was collected, unless
such sale or rental is specifically authorized by law. This provision
shall not be construed to require the withholding of names or addresses
otherwise permitted to be made public, as pursuant to the Freedom of
Information Act, 5 U.S.C. 552, as amended.
[[Page 68]]
Subpart D_Rules for Exemptions
Sec. 3b.250 Specific exemptions.
Any system of records maintained by the Commission may be exempt
from certain provisions of the Privacy Act of 1974, and the appropriate
sections of this part promulgated pursuant thereto, if the following
requirements are met:
(a) The system of records falls within one or more of the following
categories:
(1) Records subject to the provisions of 5 U.S.C. 552(b)(1) as
classified material;
(2) Investigatory material compiled for law enforcement purposes
[except to the extent that the system is more broadly exempt under 5
U.S.C. 552a(j)(2) covering records maintained by an agency whose
principal function pertains to the enforcement of criminal laws]
provided, however, that is such record is used as a basis for denying an
individual any right, privilege, or benefit to which the individual
would be entitled in the absence of that record, the individual must be
granted access to that record except to the extent that access would
reveal the identity of a confidential source who furnished the
information to the Government under an express promise that his identity
would be held in confidence, or, prior to September 27, 1975, under an
implied promise that his identity would be held in confidence;
(3) Records maintained to provide protective services to the
President of 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
[[Page 69]]
the public notice of the system of records;
(5) 5 U.S.C. 552a(e)(4)(H); 18 CFR 3b.3(a)(9)--Requiring a
description of procedures for gaining access to and contesting the
contents of a record in the public notice of the system of records;
(6) 5 U.S.C. 552a(e)(4)(I); 18 CFR 3b.3(a)(10)--Requiring a
description of the categories of the sources of records in the public
notice of the system of records; and
(7) 5 U.S.C. 552a(f); 18 CFR 3b.220-3b.224--Requiring agency rules
for determining if an individual is the subject of a record, for
handling requests for access, for granting requests for access, for
amending records, and for fees.
PART 3c_STANDARDS OF CONDUCT--Table of Contents
Sec.
3c.1 Cross-reference to employee ethical conduct standards and financial
disclosure regulations.
3c.2 Nonpublic information.
3c.3 Reporting fraud, waste, abuse, and corruption and cooperation with
official inquiries.
Authority: 15 U.S.C. 717g; 16 U.S.C. 825(b); 42 U.S.C. 7171, 7172.
Source: Order 589, 61 FR 43415, Aug. 23, 1996, unless otherwise
noted.
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 1264(d) (42 U.S.C. 16452(d)) of the Public Utility
Holding Company Act of 2005, 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.
[Order 589, 61 FR 43415, Aug. 23, 1996, as amended by Order 699, 72 FR
45323, Aug. 14, 2007]
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 10
Megawatts or Less
4.101 Applicability.
4.102 Surrender of exemption.
4.103 General provisions for case-specific exemption.
4.104 Amendment of exemption.
4.105 Action on exemption applications.
[[Page 71]]
4.106 Standard terms and conditions of case-specific exemption from
licensing.
4.107 Contents of application for exemption from licensing.
4.108 Contents of application for exemption from provisions other than
licensing.
Subpart L_Application for Amendment of License
4.200 Applicability.
4.201 Contents of application.
4.202 Alteration and extension of license.
Subpart M_Fees Under Section 30(e) of the Act
4.300 Purpose, definitions, and applicability.
4.301 Notice to fish and wildlife agencies and estimation of fees prior
to filing.
4.302 Fees at filing.
4.303 Post-filing procedures.
4.304 Payment.
4.305 Enforcement.
Subpart N_Notice of Intent To Construct Qualifying Conduit Hydropower
Facilities
4.400 Applicability and purpose.
4.401 Contents of notice of intent to construct a qualifying conduit
hydropower facility.
Authority: 16 U.S.C. 791a-825v, 2601-2645; 42 U.S.C. 7101-7352.
Source: Order 141, 12 FR 8485, Dec. 19, 1947, unless otherwise
noted.
Subpart A_Determination of Cost of Projects Constructed Under License
Sec. 4.1 Initial cost statement.
(a) Notification of Commission. When a project is constructed under
a license issued under the Federal Power Act, the licensee shall, within
one year after the original project is ready for service, file with the
Commission a letter, in quadruplicate, declaring that the original costs
have been booked in compliance with the Commission's Uniform System of
Accounts and the books of accounts are ready for audit.
(b) Licensee's books. The licensee's books of accounts for each
project shall be maintained in such a fashion that each year's
additions, betterments, and delections to the project may be readily
ascertained.
(c) Availability of information to the public. The information made
available to the Commission in accordance with this section must be
available to the public for inspection and copying when specifically
requested.
(d) Compliance with the Act. Compliance with the provisions of this
section satisfies the filing requirements of section 4(b) of the Federal
Power Act (16 U.S.C. 797(b)).
[Order 53, 44 FR 61948, Oct. 29, 1979]
Sec. 4.3 Report on project cost.
(a) Scheduling an audit. When the original cost declaration letter,
filed in accordance with Sec. 4.1 is received by the Commission, its
representative will schedule and conduct an audit of the books, cost
records, engineering reports, and other records supporting the project's
original cost. The audit may include an inspection of the project works.
(b) Project records. The cost records shall be supported by
memorandum accounts reflecting the indirect and overhead costs prior to
their spread to primary accounts as well as all the details of
allocations including formulas utilized to spread the indirect and
overhead costs to primary accounts.
(c) Report by Commission staff. Upon completion of the audit, a
report will be prepared for the Commission setting forth the audit
findings and recommendations with respect to the cost as claimed.
[Order 53, 44 FR 61948, Oct. 29, 1979]
Sec. 4.4 Service of report.
Copies of such report will be served 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; Order 737, 75 FR 43402, July 26, 2010]
[[Page 72]]
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 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 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
[[Page 73]]
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; Order 737, 75 FR 43402, July 26, 2010]
Sec. 4.13 Time for filing protest.
Thirty days after service thereof will be allowed to the licensee
within which to file a protest to such report.
Sec. 4.14 Hearing upon report.
(a) Public hearing. After the expiration of the time within which a
protest may be filed, a public hearing will be ordered in accordance
with subpart E of part 385 of this chapter.
(b) Commission determination. After the conclusion of the hearing,
the Commission will make a finding of fair value, accompanied by an
order which will be served upon the licensee and all parties to the
proceeding. One copy of the order shall be furnished to the Secretary of
the Treasury by the Commission.
(c) Adjustment to licensee's books. The licensee's books of account
for the project shall be adjusted to conform to the fair value of the
project as revised by the order of the Commission. These adjustments and
the project may be audited by Commission representatives, as scheduled.
[Order 53, 44 FR 61949, Oct. 29, 1979, as amended by Order 225, 47 FR
19056, May 3, 1982]
Subpart C_Determination of Cost of Constructed Projects not Subject to
Section 23(a) of the Act
Sec. 4.20 Initial statement.
(a) Notification of Commission. In all cases where licenses are
issued for projects already constructed, but which are not subject to
the provisions of section 23(a) of the Act (49 Stat. 846; 16 U.S.C.
816), the licensee shall, within 6 months after the date of issuance of
license, file with the Commission a letter, in quadruplicate.
(b) Contents of letter. The letter referred to in paragraph (a) of
this section shall contain a statement to the effect that an inventory
in detail of all property included under the license, as of the
effective date of such license, has been completed. The letter shall
also include a statement to the effect that actual legitimate original
cost, or if not known, the estimated original cost, and accrued
depreciation of the property, classified by prime accounts as prescribed
in the Commission's Uniform System of Accounts, have been established.
(c) Licensee's books. The licensee's books of account for each
project shall be maintained in such a fashion that each year's
additions, betterments, and deletions to the project may be readily
ascertained.
(d) Availability of information to the public. The information made
available to the Commission in accordance with this section must be
available for inspection and copying by the public when specifically
requested.
(e) Compliance with the Act. Compliance with the provisions of this
section satisfies the filing requirements of section 4(b) of the Federal
Power Act (16 U.S.C. 797(b)).
[Order 53, 44 FR 61949, Oct. 29, 1979]
Sec. 4.21 Reports.
Representatives of the Commission will inspect the project works,
engineering reports, and other records of the project, check the
inventory and estimated depreciation, make an audit of the books,
records, and accounts of the licensee relating to the property under
license, and prepare a report of their findings with respect to the
inventory, the original cost of the property, and the estimated accrued
depreciation thereon.
Sec. 4.22 Service of report.
Copies of such report will be served 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
[[Page 74]]
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; Order 737, 75 FR 43402, July 26, 2010]
Sec. 4.23 Time for filing protest.
Thirty days after service thereof will be allowed to such licensee
within which to file a protest to such reports. If no protest is filed
within the time allowed, the Commission will issue such order as may be
appropriate. If a protest is filed, a public hearing will be ordered in
accordance with subpart E of part 385 of this chapter.
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 225, 47 FR
19056, May 3, 1982]
Sec. 4.24 Determination of cost.
The Commission, after receipt of the reports, or after the
conclusion of the hearing if one is held, will determine the amounts to
be included in the electric plant accounts of the licensee as the cost
of the property and the accrued depreciation thereon.
Sec. 4.25 Findings.
(a) Commission determination. Final action by the Commission will be
in the form of an order served upon all parties to the proceeding. One
copy of the order shall be furnished to the Secretary of Treasury by the
Commission.
(b) Adjustment to licensee's books. The licensee's books of account
for the project shall be adjusted to conform to the actual legitimate
cost as revised by the order of the Commission. These adjustments and
the project may be audited by Commission representatives, as scheduled.
[Order 53, 44 FR 61949, Oct. 29, 1979]
Subpart D_Application for Preliminary Permit, License or Exemption:
General Provisions
Authority: Federal Power Act, as amended, 16 U.S.C. 792-828c;
Department of Energy Organization Act, 42 U.S.C. 7101-7352; E.O. 12009,
42 FR 46267; Public Utility Regulatory Policies Act of 1978, 16 U.S.C.
2601-2645; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.).
Sec. 4.30 Applicability and definitions.
(a) (1) This subpart applies to applications for preliminary permit,
license, or exemption from licensing.
(2) Any potential applicant for an original license for which
prefiling consultation begins on or after July 23, 2005 and which wishes
to develop and file its application pursuant to this part, must seek
Commission authorization to do so pursuant to the provisions of part 5
of this chapter.
(b) For the purposes of this part--
(1)(i) Competing development application means any application for a
license or exemption from licensing for a proposed water power project
that would develop, conserve, and utilize, in whole or in part, the same
or mutually exclusive water resources that would be developed,
conserved, and utilized by a proposed water power project for which an
initial preliminary permit or initial development application has been
filed and is pending before the Commission.
(ii) Competing preliminary permit application means any application
for a preliminary permit for a proposed water power project that would
develop, conserve, and utilize, in whole or in part, the same or
mutually exclusive water resources that would be developed, conserved
and utilized by a proposed water power project for which an initial
preliminary permit or initial development application has been filed and
is pending before the Commission.
(2) Conduit means any tunnel, canal, pipeline, aqueduct, flume,
ditch, or similar manmade water conveyance that is operated for the
distribution of water for agricultural, municipal, or industrial
consumption and not primarily for the generation of electricity. The
term not primarily for the generation of electricity includes but is not
limited to a conduit:
(i) Which was built for the distribution of water for agricultural,
municipal, or industrial consumption and is operated for such a purpose;
and
(ii) To which a hydroelectric facility has been or is proposed to be
added.
[[Page 75]]
(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 an application
for exemption of a small conduit hydroelectric facility or a notice of
intent to construct a qualifying conduit hydropower facility, means any
structure that impounds water.
(iii) Dam, for the purposes of provisions governing application for
exemption of a small hydroelectric power project, means any structure
for impounding water, including any diversion structure that is designed
to obstruct all or substantially all of the flow of a natural body of
water.
(5) Development application means any application for either a
license or exemption from licensing for a proposed water power project.
(6)(i) Existing dam, for the purposes of provisions governing
application for license of a major project--existing dam, means any dam
(as defined in paragraph (b)(4)(i) of this section) that has already
been constructed and which does not require any construction or
enlargement of impoundment structures other than repairs or
reconstruction.
(ii) Existing dam, for the purposes of provisions governing
application for exemption of a small hydroelectric power project, means
any dam, the construction of which was completed on or before July 22,
2005, 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 an
application for exemption of a small conduit hydroelectric facility or a
small hydroelectric power project, means any lands to which the United
States holds fee title.
(9)(i) Fish and wildlife agencies means the United States Fish and
Wildlife Service, the National Marine Fisheries Service, and the state
agency in charge of administrative management over fish and wildlife
resources of the state in which a proposed hydropower project is
located.
(ii) Fish and wildlife recommendation means any recommendation
designed to protect, mitigate damages to, or enhance any wild member of
the animal kingdom, including any migratory or nonmigratory mammal,
fish, bird, amphibian, reptile, mollusk, crustacean, or other
invertebrate, whether or not bred, hatched, or born in captivity, and
includes any egg or offspring thereof, related breeding or spawning
grounds, and habitat. A ``fish and wildlife recommendation'' includes a
request for a study which cannot be completed prior to licensing, but
does not include a request that the proposed project not be constructed
or operated, a request for additional pre-licensing studies or analysis
or, as the term is used in Sec. Sec. 4.34(e)(1) and 4.34(f)(3), a
recommendation for facilities, programs, or other measures to benefit
recreation or tourism.
(10) Indian tribe means, in reference to a proposal to apply for a
license or exemption for a hydropower project, an Indian tribe which is
recognized by treaty with the United States, by federal statute, or by
the U.S. Department of the Interior in its periodic listing of tribal
governments in the Federal Register in accordance with 25 CFR 83.6(b),
and whose legal rights as a tribe may be affected by the development and
operation of the hydropower project proposed (as where the operation of
the proposed project could interfere with the management and harvest of
anadromous fish or where the project works would be located within the
tribe's reservation).
[[Page 76]]
(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 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) Non-Federal lands, for the purposes of provisions governing
application for exemption of a small conduit hydroelectric facility or a
small hydroelectric power project, means any lands except lands to which
the United States holds fee title.
(21) Non-federally owned conduit, for the purposes of provisions
governing the notice of intent to construct qualifying conduit
hydropower facilities, means any conduit except a conduit to which the
United States holds fee title.
(22) Person means any individual and, as defined in section 3 of the
Federal Power Act, any corporation, municipality, or state.
(23) Project, for the purposes of provisions governing application
for exemption of a small hydroelectric power project, means:
[[Page 77]]
(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.
(24) 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.
(25) 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.
(26) Qualifying conduit hydropower facility, means a facility, not
including any dam or impoundment, that is not required to be licensed
under Part I of the FPA because it is determined to meet the following
criteria:
(i) Generates electric power using only the hydroelectric potential
of a non-federally owned conduit;
(ii) Has an installed capacity that does not exceed 5 megawatts
(MW); and,
(iii) Was not licensed or exempted from the licensing requirements
of Part I of the FPA on or before August 9, 2013.
(27) 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.
(28) 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.
(29) 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.
(30) 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 and the
transmission lines associated with the hydroelectric facility and which:
(i) Utilizes for electric power generation the hydroelectric
potential of a conduit;
(ii) Has an installed generating capacity that does not exceed 40
MW;
(iii) Is not an integral part of a dam;
(iv) 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
(v) 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.
(31) Small hydroelectric power project, means any project in which
capacity will be installed or increased after the date of application
under subpart K of this chapter, which will have a total installed
capacity of not more than 10 MW, and which:
(i) Would utilize for electric power generation the water power
potential of an existing dam that is not owned or
[[Page 78]]
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.
(32) 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]
Editorial Note: For Federal Register citations affecting Sec. 4.30,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.fdsys.gov.
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--(i) Only
federal lands involved. If only rights to use or occupy federal lands
would be necessary to develop and operate the proposed small conduit
hydroelectric facility, any citizen, association of citizens, domestic
corporation, municipality, or state may apply for exemption of a small
conduit hydroelectric facility from provisions of Part I of the Federal
Power Act, other than licensing provisions.
(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 conduit hydroelectric facility, any citizen, association
of citizens, domestic corporation, municipality, or state that has all
of the real property interests in the lands necessary to develop and
operate that project, or an option to obtain those interests, may apply
for exemption of a small conduit hydroelectric facility from provisions
of Part I of the Federal Power Act, other than licensing provisions.
(2) Exemption from licensing--(i) Only federal lands involved. If
only rights to use or occupy federal lands would be necessary to develop
and operate the proposed small conduit hydroelectric facility, any
citizen, association of citizens, domestic corporation, municipality, or
state may apply for exemption of that facility from licensing under Part
I of the Federal Power Act.
(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 conduit hydroelectric facility, any citizen, association
of citizens, domestic corporation, municipality, or state who has 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 citizen,
association of citizens, domestic corporation, municipality, or state
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 citizen, association of
citizens, domestic corporation, municipality, or state who has all of
the real property interests in non-Federal lands necessary to develop
[[Page 79]]
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, as amended by Order 800, 79 FR
59109, Oct. 1, 2014]
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 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) (4)(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__.
[[Page 80]]
/SEAL/ [if any]
________________________________________________________________________
(Notary Public, or other authorized official)
(5) Contain the information and documents prescribed in the
following sections of this chapter, according to the type of
application:
(i) Preliminary permit: Sec. 4.81;
(ii) License for a minor water power project and a major water power
project 5 MW or less: Sec. 4.61;
(iii) License for a major unconstructed project and a major modified
project: Sec. 4.41;
(iv) License for a major project--existing dam: Sec. 4.51;
(v) License for a transmission line only: Sec. 4.71;
(vi) Nonpower license for a licensed project: Sec. 16.11;
(vii) Exemption of a small conduit hydroelectric facility: Sec.
4.92;
(viii) Case-specific exemption of a small hydroelectric power
project: Sec. 4.107; or
(ix) License or exemption for a project located at a new dam or
diversion where the applicant seeks PURPA benefits: Sec. 292.208.
(b) (1) Each applicant for a preliminary permit, license, and
transfer or surrender of license and each petitioner for surrender of an
exemption must submit the application or petition to the Secretary of
the Commission in accordance with filing procedures posted on the
Commission's Web site at http://www.ferc.gov. The applicant or
petitioner must serve one copy of the application or petition on the
Director of the Commission's Regional Office for the appropriate region
and on each resource agency, Indian tribe, and member of the public
consulted pursuant to Sec. 4.38 or Sec. 16.8 of this chapter or part 5
of this chapter. In the case of an application for a preliminary permit,
the applicant must, if the Commission so directs, serve copies of the
application on the U.S. Department of the Interior and the U.S. Army
Corps of Engineers. The application may include reduced prints of maps
and drawings conforming to Sec. 4.39(d). The Commission may also ask
for the filing of full-sized prints in appropriate cases.
(2) Each applicant for exemption must submit the application to the
Secretary of the Commission in accordance with filing procedures posted
on the Commission's Web site at http://www.ferc.gov. 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. For each application filed following
October 23, 2003, maps and drawings must conform to the requirements of
Sec. 4.39.
(3)(i) An applicant must make information regarding its proposed
project reasonably available to the public for inspection and
reproduction, from the date on which the applicant files its application
for a license or exemption until the licensing or exemption proceeding
for the project is terminated by the Commission. This information
includes a copy of the complete application for license or exemption,
together with all exhibits, appendices and any amendments, and any
comments, pleadings, supplementary or additional information, or
correspondence filed by the applicant with the Commission in connection
with the application.
(ii) An applicant must delete from any information made available to
the public under this section, specific site or property locations the
disclosure of which would create a risk of harm, theft, or destruction
of archeological or Native American cultural resources or to the site at
which the sources are located, or would violate any federal law,
including the Archaeological Resources Protection Act of l979, 16 U.S.C.
470w-3, and the National Historic Preservation Act of 1966, 16 U.S.C.
470hh.
(4)(i) An applicant must make available the information specified in
paragraph (b)(3) of this section in a form that is readily accessible,
reviewable, and reproducible, at the same time as the information is
filed with the Commission or required by regulation to be made
available.
(ii) An applicant must make the information specified in paragraph
(b)(3) of this section available to the public for inspection:
(A) At its principal place of business or at any other location that
is more accessible to the public, provided that
[[Page 81]]
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 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 applicant for a license or exemption for a project with
a capacity of 80 megawatts or less must include in
[[Page 82]]
its application copies of the statements made under Sec.
4.38(b)(2)(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.
(1) Deficient applications. (i) An application that in the judgment
of the Director of the Office of Energy Projects does not conform to the
requirements of paragraphs (a), (b) and (c) of this section and of Sec.
4.38, may be considered deficient. An applicant having a deficient
application will be afforded additional time to correct deficiencies,
not to exceed 45 days from the date of notification in the case of an
application for a preliminary permit or exemption from licensing or 90
days from the date of notification in the case of an application for
license. Notification will be by letter or, in the case of minor
deficiencies, by telephone. Any notification will specify the
deficiencies to be corrected. Deficiencies must be corrected by
submitting the specified materials or information to the Secretary of
the Commission within the time specified in the notification of
deficiency in accordance with filing procedures posted on the
Commission's Web site at http://www.ferc.gov.
(ii) Upon submission of a conforming application, action will be
taken in accordance with paragraph (d) of this section.
(iii) If the revised application is found not to conform to the
requirements of paragraphs (a), (b) and (c) of this section and of Sec.
4.38, or if the revisions are not timely submitted, the revised
application will be rejected. Procedures for rejected applications are
specified in paragraph (e)(2)(iii).
(2) Patently deficient applications. (i) If, within 90 days of its
filing date, the Director of the Office of Energy
[[Page 83]]
Projects determines that an application patently fails to substantially
comply with the requirements of paragraph (a), (b), and (c) of this
section and of Sec. 4.38 of this part or Sec. 16.8 of this chapter, or
is for a project that is precluded by law, the application will be
rejected as patently deficient with the specification of the
deficiencies that render the application patently deficient.
(ii) If, after 90 days of its filing date, the Director of the
Office of Energy Projects determines that an application patently fails
to substantially comply with the requirements of paragraphs (a), (b),
and (c) of this section and of Sec. 4.38 of this part or Sec. 16.8 of
this chapter, or is for a project that is precluded by law:
(A) The application will be rejected by order of the Commission, if
the Commission determines it is patently deficient; or
(B) The application will be considered deficient under paragraph
(e)(1) of this section, if the Commission determines it is not patently
deficient.
(iii) Any application that is rejected may be resubmitted if the
deficiencies are corrected and if, in the case of a competing
application, the resubmittal is timely. The date the rejected
application is resubmitted will be considered the new filing date for
purposes of determining its timeliness under Sec. 4.36 and the
disposition of competing applications under Sec. 4.37.
(f) Any application will be considered accepted for filing as of the
application filing date if the Secretary receives all of the information
and documents necessary to conform to the requirements of paragraphs
(a), (b) and (c) of this section and of Sec. 4.38 within the time
prescribed by the Commission or its delegate under paragraph (e) of this
section.
(g) An applicant may be required to submit any additional
information or documents that the Commission or its designee considers
relevant for an informed decision on the application. The information or
documents must take the form, and must be submitted within the time,
that the Commission or its designee prescribes. An applicant may also be
required to provide within a specified time additional copies of the
complete application, or any of the additional information or documents
that are filed, to the Commission or to any person, agency, or other
entity that the Commission or its designee specifies. If an applicant
fails to provide timely additional information, documents, or copies of
submitted materials as required, the Commission or its designee may
dismiss the application, hold it in abeyance, or take other appropriate
action under this chapter or the Federal Power Act.
(h) A prospective applicant, prior to submitting its application for
filing, may seek advice from the Commission staff regarding the
sufficiency of the application. For this purpose, five copies of the
draft application should be submitted to the Director of the Division of
Hydropower Licensing. An applicant or prospective applicant may confer
with the Commission staff at any time regarding deficiencies or other
matters related to its application. All conferences are subject to the
requirements of Sec. 385.2201 of this chapter governing ex parte
communications. The opinions or advice of the staff will not bind the
Commission or any person delegated authority to act on its behalf.
(i) Intervention in any preliminary permit proceeding will not
constitute intervention in any subsequent licensing or exemption
proceeding.
(j) Any application, the effectiveness of which is conditioned upon
the future occurrence of any event or circumstance, will be rejected.
(k) Critical Energy Infrastructure Information. (1) If this section
requires an applicant to reveal Critical Energy Infrastructure
Information (CEII), as defined in Sec. 388.113(c) of this chapter, to
any person, the applicant shall omit the CEII from the information made
available and insert the following in its place:
(i) A statement that CEII is being withheld;
(ii) A brief description of the omitted information that does not
reveal any CEII; and
(iii) This statement: ``Procedures for obtaining access to Critical
Energy Infrastructure Information (CEII) may be found at 18 CFR 388.113.
Requests for
[[Page 84]]
access to CEII should be made to the Commission's CEII Coordinator.''
(2) The applicant, in determining whether information constitutes
CEII, shall treat the information in a manner consistent with any
filings that applicant has made with the Commission and shall to the
extent practicable adhere to any previous determinations by the
Commission or the CEII Coordinator involving the same or like
information.
(3) The procedures contained in Sec. Sec. 388.112 and 388.113 of
this chapter regarding designation of, and access to, CEII, shall apply
in the event of a challenge to a CEII designation or a request for
access to CEII. If it is determined that information is not CEII or that
a requester should be granted access to CEII, the applicant will be
directed to make the information available to the requester.
(4) Nothing in this section shall be construed to prohibit any
persons from voluntarily reaching arrangements or agreements calling for
the disclosure of CEII.
[Order 413, 50 FR 11678, Mar. 25, 1985]
Editorial Note: For Federal Register citations affecting Sec. 4.32,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.fdsys.gov.
Sec. 4.33 Limitations on submitting applications.
(a) Limitations on submission and acceptance of a preliminary permit
application. The Commission will not accept an application for a
preliminary permit for project works that:
(1) Would develop, conserve, and utilize, in whole or in part, the
same water resources that would be developed, conserved, and utilized by
a project for which there is an unexpired preliminary permit.
(2) Would interfere with a licensed project in a manner that, absent
the licensee's consent, would be precluded by Section 6 of the Federal
Power Act.
(3) Would develop, conserve, and utilize, in whole or in part, the
same water resources that would be developed, conserved, and utilized by
a project for which an initial development application has been filed
unless the preliminary permit application is filed not later than the
time allowed under Sec. 4.36(a) for the filing of applications in
competition against an initial application for a preliminary permit that
would develop, conserve, and utilize, in whole or in part, the same
resources.
(b) Limitations on submissions and acceptance of a license
application. The Commission will not accept an application for a license
or project works that would develop, conserve, or utilize, in whole or
part, the same water resources that would be developed, conserved, and
utilized by a project for which there is:
(1) An unexpired preliminary permit, unless the permittee has
submitted an application for license; or
(2) An unexpired license, except as provided for in Section 15 of
the Federal Power Act.
(c) Limitations on submission and acceptance of an application for a
license that would affect an exempted project. (1) Except as permitted
under Sec. 4.33(c)(2), Sec. 4.94(d), or Sec. 4.106 (c), (e) or (f),
the Commission will not accept an application for a license for project
works that are already exempted from licensing under this part.
(2) If a project is exempted from licensing pursuant to Sec. 4.103
or Sec. 4.109 and real property interests in any non-Federal lands
would be necessary to develop or operate the project, any person who is
both a qualified license applicant and has any of those real property
interests in non-Federal lands may submit a license application for that
project. If a license application is submitted under this clause, any
other qualified license applicant may submit a competing license
application in accordance with Sec. 4.36.
(d) Limitations on submission and acceptance of exemption
applications--(1) Unexpired permit or license. (i) If there is an
unexpired permit in effect for a project, the Commission will accept an
application for exemption of that project from licensing only if the
exemption applicant is the permittee. Upon acceptance for filing of the
permittee's application, the permit will be considered to have expired.
(ii) If there is an unexpired license in effect for a project, the
Commission
[[Page 85]]
will accept an application for exemption of that project from licensing
only if the exemption applicant is the licensee.
(2) Pending license applications. If an accepted license application
for a project was submitted by a permittee before the preliminary permit
expired, the Commission will not accept an application for exemption of
that project from licensing submitted by a person other than the former
permittee.
(3) Submitted by qualified exemption applicant. If the first
accepted license application for a project was filed by a qualified
exemption applicant, the applicant may request that its license
application be treated initially as an application for exemption from
licensing by so notifying the Commission in writing and, unless only
rights to use or occupy Federal lands would be necessary to develop and
operate the project, by submitting documentary evidence showing that the
applicant holds the real property interests required under Sec. 4.31.
Such notice and documentation must be submitted not later than the last
date for filing protests or motions to intervene prescribed in the
public notice issued for its license application under Sec. 4.32(d)(2).
(e) Priority of exemption applicant's earlier permit or license
application. Any accepted preliminary permit or license application
submitted by a person who later applies for exemption of the project
from licensing will retain its validity and priority under this subpart
until the preliminary permit or license application is withdrawn or the
project is exempted from licensing.
[Order 413, 50 FR 11680, Mar. 25, 1985, as amended by Order 499, 53 FR
27002, July 18, 1988; Order 2002, 68 FR 51116, Aug. 25, 2003; Order 699,
72 FR 45324, Aug. 14, 2007]
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
[[Page 86]]
of l978, as amended, must provide these terms and conditions or
prescriptions in its initial comments filed with the Commission pursuant
to paragraph (b) of this section. In those comments, the agency must
specifically identify and explain the mandatory terms and conditions or
prescriptions and their evidentiary and legal basis. In the case of an
application prepared other than pursuant to part 5 of this chapter, if
ongoing agency proceedings to determine the terms and conditions or
prescriptions are not completed by the date specified, the agency must
submit to the Commission by the due date:
(i) Preliminary terms and conditions or prescriptions and a schedule
showing the status of the agency proceedings and when the terms and
conditions or prescriptions are expected to become final; or
(ii) A statement waiving the agency's right to file the terms and
conditions or prescriptions or indicating the agency does not intend to
file terms and conditions or prescriptions.
(2) Fish and Wildlife agencies and Indian tribes. All fish and
wildlife agencies must set forth any recommended terms and conditions
for the protection, mitigation of damages to, or enhancement of fish and
wildlife, pursuant to the Fish and Wildlife Coordination Act and section
10(j) of the Federal Power Act, in their initial comments filed with the
Commission by the date specified in paragraph (b) of this section. All
Indian tribes must submit recommendations (including fish and wildlife
recommendations) by the same date. In those comments, a fish and
wildlife agency or Indian tribe must discuss its understanding of the
resource issues presented by the proposed facilities and the evidentiary
basis for the recommended terms and conditions.
(3) Other Government agencies and members of the public. Resource
agencies, other governmental units, and members of the public must file
their recommendations in their initial comments by the date specified in
paragraph (b) of this section. The comments must clearly identify all
recommendations and present their evidentiary basis.
(4) Submittal of modified recommendations, terms and conditions or
prescriptions. (i) If the information and analysis (including reasonable
alternatives) presented in a draft environmental document, issued for
comment by the Commission, indicate a need to modify the recommendations
or terms and conditions or prescriptions previously submitted to the
Commission pursuant to paragraphs (b)(1), (b)(2), or (b)(3) of this
section, the agency, Indian tribe, or member of the public must file
with the Commission any modified recommendations or terms and conditions
or prescriptions on the proposed project (and reasonable alternatives)
no later than the due date for comments on the draft environmental
impact statement. Modified recommendations or terms and conditions or
prescriptions must be clearly distinguished from comments on the draft
document.
(ii) If an applicant files an amendment to its application that
would materially change the project's proposed plans of development, as
provided in Sec. 4.35, an agency, Indian tribe or member of the public
may modify the recommendations or terms and conditions or prescriptions
it previously submitted to the Commission pursuant to paragraphs (b)(1),
(b)(2), or (b)(3) of this section no later than the due date specified
by the Commission for comments on the amendment.
(5)(i) With regard to certification requirements for a license
applicant under section 401(a)(1) of the Federal Water Pollution Control
Act (Clean Water Act), an applicant shall file within 60 days from the
date of issuance of the notice of ready for environmental analysis:
(A) A copy of the water quality certification;
(B) A copy of the request for certification, including proof of the
date on which the certifying agency received the request; or
(C) Evidence of waiver of water quality certification as described
in paragraph (b)(5)(ii) of this section.
(ii) In the case of an application process using the alternative
procedures of paragraph 4.34(i), the filing requirement of paragraph
(b)(5)(i) shall apply
[[Page 87]]
upon issuance of notice the Commission has accepted the application as
provided for in paragraph 4.32(d) of this part.
(iii) A certifying agency is deemed to have waived the certification
requirements of section 401(a)(1) of the Clean Water Act if the
certifying agency has not denied or granted certification by one year
after the date the certifying agency received a written request for
certification. If a certifying agency denies certification, the
applicant must file a copy of the denial within 30 days after the
applicant received it.
(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 Marine Fisheries Service, as appropriate, concerning the
impact of a hydropower proposal on endangered or threatened species and
their critical habitat.
(e) Consultation on recommended fish and wildlife conditions;
Section 10(j) process. (1) In connection with its environmental review
of an application for license, the Commission will analyze all terms and
conditions timely recommended by fish and wildlife agencies pursuant to
the Fish and Wildlife Coordination Act for the protection, mitigation of
damages to, and enhancement of fish and wildlife (including related
spawning grounds and habitat) affected by the development, operation,
and management of the proposed project. Submission of such
recommendations marks the beginning of the process under section 10(j)
of the Federal Power Act.
(2) The agency must specifically identify and explain the
recommendations and the relevant resource goals and objectives and their
evidentiary or legal basis. The Commission may seek clarification of any
recommendation from the appropriate fish and wildlife agency. If the
Commission's request for clarification is communicated in writing,
copies of the request will be sent by the Commission to all parties,
affected resource agencies, and Indian tribes, which may file a response
to the request for clarification within the time period specified by the
Commission. If the Commission believes any fish and wildlife
recommendation may be inconsistent with the Federal Power Act or other
applicable law, the Commission will make a preliminary determination of
inconsistency in the draft environmental document or, if none, the
environmental assessment. The preliminary determination, for any
recommendations believed to be inconsistent, shall include an
explanation why the Commission believes the recommendation is
inconsistent with the Federal Power Act or other applicable law,
including any supporting analysis and conclusions, and an explanation of
how the measures recommended in the environmental document would
adequately and equitably protect, mitigate damages to, and enhance, fish
and wildlife (including related spawning grounds and habitat) affected
by the development, operation, and management of the project.
(3) Any party, affected resource agency, or Indian tribe may file
comments in response to the preliminary determination of inconsistency,
including any modified recommendations, within the time frame allotted
for comments
[[Page 88]]
on the draft environmental document or, if none, the time frame for
comments on the environmental analysis. In this filing, the fish and
wildlife agency concerned may also request a meeting, telephone or video
conference, or other additional procedure to attempt to resolve any
preliminary determination of inconsistency.
(4) The Commission shall attempt, with the agencies, to reach a
mutually acceptable resolution of any such inconsistency, giving due
weight to the recommendations, expertise, and statutory responsibilities
of the fish and wildlife agency. If the Commission decides, or an
affected resource agency requests, the Commission will conduct a
meeting, telephone, or video conference, or other procedures to address
issues raised by its preliminary determination of inconsistency and
comments thereon. The Commission will give at least 15 days' advance
notice to each party, affected resource agency, or Indian tribe, which
may participate in the meeting or conference. Any meeting, conference,
or additional procedure to address these issues will be scheduled to
take place within 90 days of the date the Commission issues a
preliminary determination of inconsistency. The Commission will prepare
a written summary of any meeting held under this subsection to discuss
section 10(j) issues, including any proposed resolutions and supporting
analysis, and a copy of the summary will be sent to all parties,
affected resource agencies, and Indian tribes.
(5) The section 10(j) process ends when the Commission issues an
order granting or denying the license application in question. If, after
attempting to resolve inconsistencies between the fish and wildlife
recommendations of a fish and wildlife agency and the purposes and
requirements of the Federal Power Act or other applicable law, the
Commission does not adopt in whole or in part a fish and wildlife
recommendation of a fish and wildlife agency, the Commission will
publish the findings and statements required by section 10(j)(2) of the
Federal Power Act.
(f) Licenses and exemption conditions and required findings--(1)
License conditions. (i) All licenses shall be issued on the conditions
specified in section 10 of the Federal Power Act and such other
conditions as the Commission determines are lawful and in the public
interest.
(ii) Subject to paragraph (f)(3) of this section, fish and wildlife
conditions shall be based on recommendations timely received from the
fish and wildlife agencies pursuant to the Fish and Wildlife
Coordination Act.
(iii) The Commission will consider the timely recommendations of
resource agencies, other governmental units, and members of the public,
and the timely recommendations (including fish and wildlife
recommendations) of Indian tribes affected by the project.
(iv) Licenses for a project located within any Federal reservation
shall be issued only after the findings required by, and subject to any
conditions that may be timely received pursuant to, section 4(e) of the
Federal Power Act.
(v) The Commission will require the construction, maintenance, and
operation by a licensee at its own expense of such fishways as may be
timely prescribed by the Secretary of Commerce or the Secretary of the
Interior, as appropriate, pursuant to section 18 of the Federal Power
Act.
(2) Exemption conditions. Any exemption from licensing issued for
conduit facilities, as provided in section 30(b) of the Federal Power
Act, or for small hydroelectric power projects having a proposed
installed capacity of 10,000 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.
[[Page 89]]
(g) Application. The provisions of paragraphs (b) through (d) and
(f) of this section apply only to applications for license or exemption;
paragraph (e) applies only to applications for license.
(h) Unless otherwise provided by statute, regulation or order, all
filings in hydropower hearings, except those conducted by trial-type
procedures, shall conform to the requirements of subpart T of part 385
of this chapter.
(i) Alternative procedures. (1) An applicant may submit to the
Commission a request to approve the use of alternative procedures for
pre-filing consultation and the filing and processing of an application
for an original, new or subsequent hydropower license or exemption that
is subject to Sec. 4.38 or Sec. 16.8 of this chapter, or for the
amendment of a license that is subject to the provisions of Sec. 4.38.
(2) The goal of such alternative procedures shall be to:
(i) Combine into a single process the pre-filing consultation
process, the environmental review process under the National
Environmental Policy Act and administrative processes associated with
the Clean Water Act and other statutes;
(ii) Facilitate greater participation by and improve communication
among the potential applicant, resource agencies, Indian tribes, the
public and Commission staff in a flexible pre-filing consultation
process tailored to the circumstances of each case;
(iii) Allow for the preparation of a preliminary draft environmental
assessment by an applicant or its contractor or consultant, or of a
preliminary draft environmental impact statement by a contractor or
consultant chosen by the Commission and funded by the applicant;
(iv) Promote cooperative efforts by the potential applicant and
interested entities and encourage them to share information about
resource impacts and mitigation and enhancement proposals and to narrow
any areas of disagreement and reach agreement or settlement of the
issues raised by the hydropower proposal; and
(v) Facilitate an orderly and expeditious review of an agreement or
offer of settlement of an application for a hydropower license,
exemption or amendment to a license.
(3) A potential hydropower applicant requesting the use of
alternative procedures must:
(i) Demonstrate that a reasonable effort has been made to contact
all resource agencies, Indian tribes, citizens' groups, and others
affected by the applicant's proposal, and that a consensus exists that
the use of alternative procedures is appropriate under the
circumstances;
(ii) Submit a communications protocol, supported by interested
entities, governing how the applicant and other participants in the pre-
filing consultation process, including the Commission staff, may
communicate with each other regarding the merits of the applicant's
proposal and proposals and recommendations of interested entities; and
(iii) Serve a copy of the request on all affected resource agencies
and Indian tribes and on all entities contacted by the applicant that
have expressed an interest in the alternative pre-filing consultation
process.
(4) As appropriate under the circumstances of the case, the
alternative procedures should include provisions for:
(i) Distribution of an initial information package and conduct of an
initial information meeting open to the public;
(ii) The cooperative scoping of environmental issues (including
necessary scientific studies), the analysis of completed studies and any
further scoping; and
(iii) The preparation of a preliminary draft environmental
assessment or preliminary draft environmental impact statement and
related application.
(5)(i) If the potential applicant's request to use the alternative
procedures is filed prior to July 23, 2005, the Commission will give
public notice in the Federal Register inviting comment on the
applicant's request to use alternative procedures. The Commission will
consider any such comments in determining whether to grant or deny the
applicant's request to use alternative procedures. Such a decision will
not be subject to interlocutory rehearing or appeal.
[[Page 90]]
(ii) If the potential applicant's request to use the alternative
procedures is filed on or after July 23, 2005 and prior to the deadline
date for filing a notification of intent to seek a new or subsequent
license required by Sec. 5.5 of this chapter, the Commission will give
public notice and invite comments as provided for in paragraph (i)(5)(i)
of this section. Commission approval of the potential applicant's
request to use the alternative procedures prior to the deadline date for
filing of the notification of intent does not waive the potential
applicant's obligation to file the notification of intent required by
Sec. 5.5 of this chapter and Pre-Application Document required by Sec.
5.6 of this chapter.
(iii) If the potential applicant's request to use the alternative
procedures is filed on or after July 23, 2005 and is at the same time as
the notification of intent to seek a new or subsequent license required
by Sec. 5.5, the public notice and comment procedures of part 5 of this
chapter shall apply.
(6) If the Commission accepts the use of alternative procedures, the
following provisions will apply.
(i) To the extent feasible under the circumstances of the
proceeding, the Commission will give notice in the Federal Register and
the applicant will give notice, in a local newspaper of general
circulation in the county or counties in which the project is located,
of the initial information meeting and the scoping of environmental
issues. The applicant will also send notice of these stages to a mailing
list approved by the Commission.
(ii) Every six months, the applicant shall file with the Commission
a report summarizing the progress made in the pre-filing consultation
process and referencing the applicant's public file, where additional
information on that process can be obtained. Summaries or minutes of
meetings held in the process may be used to satisfy this filing
requirement. The applicant must also file with the Commission a copy of
its initial information package, each scoping document, and the
preliminary draft environmental review document. All filings with the
Commission under this section must include the number of copies required
by paragraph (h) of this section, and the applicant shall send a copy of
these filings to each participant that requests a copy.
(iii) At a suitable location, the applicant will maintain a public
file of all relevant documents, including scientific studies,
correspondence, and minutes or summaries of meetings, compiled during
the pre-filing consultation process. The Commission will maintain a
public file of the applicant's initial information package, scoping
documents, periodic reports on the pre-filing consultation process, and
the preliminary draft environmental review document.
(iv) An applicant authorized to use alternative procedures may
substitute a preliminary draft environmental review document and
additional material specified by the Commission instead of Exhibit E to
its application and need not supply additional documentation of the pre-
filing consultation process. The applicant will file with the Commission
the results of any studies conducted or other documentation as directed
by the Commission, either on its own motion or in response to a motion
by a party to the licensing or exemption proceeding.
(v) Pursuant to the procedures approved, the participants will set
reasonable deadlines requiring all resource agencies, Indian tribes,
citizens' groups, and interested persons to submit to the applicant
requests for scientific studies during the pre-filing consultation
process, and additional requests for studies may be made to the
Commission after the filing of the application only for good cause
shown.
(vi) During the pre-filing process the Commission may require the
filing of preliminary fish and wildlife recommendations, prescriptions,
mandatory conditions, and comments, to be submitted in final form after
the filing of the application; no notice that the application is ready
for environmental analysis need be given by the Commission after the
filing of an application pursuant to these procedures.
(vii) Any potential applicant, resource agency, Indian tribe,
citizens' group, or other entity participating in the alternative pre-
filing consultation process may file a request with the
[[Page 91]]
Commission to resolve a dispute concerning the alternative process
(including a dispute over required studies), but only after reasonable
efforts have been made to resolve the dispute with other participants in
the process. No such request shall be accepted for filing unless the
entity submitting it certifies that it has been served on all other
participants. The request must document what efforts have been made to
resolve the dispute.
(7) If the potential applicant or any resource agency, Indian tribe,
citizens' group, or other entity participating in the alternative pre-
filing consultation process can show that it has cooperated in the
process but a consensus supporting the use of the process no longer
exists and that continued use of the alternative process will not be
productive, the participant may petition the Commission for an order
directing the use by the potential applicant of appropriate procedures
to complete its application. No such request shall be accepted for
filing unless the entity submitting it certifies that it has been served
on all other participants. The request must recommend specific
procedures that are appropriate under the circumstances.
(8) The Commission may participate in the pre-filing consultation
process and assist in the integration of this process and the
environmental review process in any case, including appropriate cases
where the applicant, contractor, or consultant funded by the applicant
is not preparing a preliminary draft environmental assessment or
preliminary draft environmental impact statement, but where staff
assistance is available and could expedite the proceeding.
(9) If this section requires an applicant to reveal Critical Energy
Infrastructure Information (CEII), as defined by Sec. 388.113(c) of
this chapter, to any person, the applicant shall follow the procedures
set out in Sec. 4.32(k).
[Order 533, 56 FR 23148, May 20, 1991, as amended at 56 FR 61155, Dec.
2, 1991; Order 540, 57 FR 21737, May 22, 1992; Order 596, 62 FR 59810,
Nov. 5, 1997; Order 2002, 68 FR 51116, Aug. 25, 2003; Order 643, 68 FR
52094, Sept. 2, 2003; 68 FR 61742, Oct. 30, 2003; Order 756, 77 FR 4893,
Feb. 1, 2012; Order 800, 79 FR 59110, Oct. 1, 2014]
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
application was filed.
(b) Paragraph (a) of this section applies if an applicant:
(1) Amends its filed license or preliminary permit application in
order to change the status or identity of the applicant or to materially
amend the proposed plans of development; or
(2) Amends its filed application for exemption from licensing in
order to materially amend the proposed plans of development, or
(3) Amends its filed application in order to change its statement of
intent of whether or not it will seek benefits under section 210 of
PURPA, as originally filed under Sec. 4.32(c)(1).
(c) An application amended under paragraph (a) is a new filing for:
(1) The purpose of determining its timeliness under Sec. 4.36 of
this part;
(2) Disposing of competing applications under Sec. 4.37; and
(3) Reissuing public notice of the application under Sec.
4.32(d)(2).
(d) If an application is amended under paragraph (a) of this
section, the Commission will rescind any acceptance letter already
issued for the application.
(e) Exceptions. This section does not apply to:
(1) Any corrections of deficiencies made pursuant to Sec.
4.32(e)(1);
(2) Any amendments made pursuant to Sec. 4.37(b)(4) by a State or a
municipality to its proposed plans of development to make them as well
adapted as the proposed plans of an applicant that is not a state or a
municipality;
(3) Any amendments made pursuant to Sec. 4.37(c)(2) by a priority
applicant to its proposed plans of development to make them as well
adapted as the proposed plans of an applicant that is not a priority
applicant;
(4) Any amendments made by a license or an exemption applicant to
its
[[Page 92]]
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 of development to be
included within the project boundary.
(2) For purposes of this section, a material amendment to plans of
development proposed in an application for a preliminary permit means a
material change in the location of the powerhouse or the size and
elevation of the reservoir if the change would enlarge, reduce, or
relocate the area of the body of water that would lie between the
farthest reach of the proposed impoundment and the point of discharge
from the powerhouse.
(3) For purposes of this section, a change in the status of an
applicant means:
(i) The acquisition or loss of preference as a state or a
municipality under section 7(a) of the Federal Power Act; or
(ii) The loss of priority as a permittee under section 5 of the
Federal Power Act.
(4) For purposes of this section, a change in the identity of an
applicant means a change that either singly, or together with previous
amendments, causes a total substitution of all the original applicants
in a permit or a license application.
[Order 413, 50 FR 11680, Mar. 25, 1985, as amended by Order 499, 53 FR
27002, July 18, 1988; Order 533, 56 FR 23149, May 20, 1991; Order 2002,
68 FR 51115, Aug. 25, 2003; Order 756, 77 FR 4893, Feb. 1, 2012]
Sec. 4.36 Competing applications: deadlines for filing; notices
of intent; comparisons of plans of development.
The public notice of an initial preliminary permit application or an
initial development application shall prescribe the deadline for filing
protests and motions to intervene in that proceeding (the prescribed
intervention deadline).
(a) Deadlines for filing applications in competition with an initial
preliminary permit application. (1) Any preliminary permit application
or any development application not filed pursuant to a notice of intent
must be submitted for filing in competition with an initial preliminary
permit application not later than the prescribed intervention deadline.
(2) Any preliminary permit application filed pursuant to a notice of
intent must be submitted for filing in competition with an initial
preliminary permit application not later than 30 days after the
prescribed intervention deadline.
(3) Any development application filed pursuant to a notice of intent
must be
[[Page 93]]
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 analyses that the applicant deems appropriate to support its
proposed plans of development.
[Order 413, 50 FR 11680, Mar. 25, 1985; 50 FR 23947, June 7, 1985]
Sec. 4.37 Rules of preference among competing applications.
Except as provided in Sec. 4.33(e), the Commission will select
among competing applications on the following bases:
(a) If an accepted application for a preliminary permit and an
accepted application for a license propose project works that would
develop, conserve, and utilize, in whole or in part, the
[[Page 94]]
same water resources, and the applicant for a license has demonstrated
its ability to carry out its plans, the Commission will favor the
license applicant unless the permit applicant substantiates in its filed
application that its plans are better adapted to develop, conserve, and
utilize in the public interest the water resources of the region.
(b) If two or more applications for preliminary permits or two or
more applications for licenses (not including applications for a new
license under section 15 of the Federal Power Act) are filed by
applicants for project works that would develop, conserve, and utilize,
in whole or in part, the same water resources, and if none of the
applicants is a preliminary permittee whose application for license was
accepted for filing within the permit period, the Commission will select
between or among the applicants on the following bases:
(1) If both or neither of two applicants are either a municipality
or a state, the Commission will favor the applicant whose plans are
better adapted to develop, conserve, and utilize in the public interest
the water resources of the region, taking into consideration the ability
of each applicant to carry out its plans.
(2) If both of two applicants are either a municipality or a state,
or neither of them is a municipality or a state, and the plans of the
applicants are equally well adapted to develop, conserve, and utilize in
the public interest the water resources of the region, taking into
consideration the ability of each applicant to carry out its plans, the
Commission will favor the applicant with the earliest application
acceptance date.
(3) If one of two applicants is a municipality or a state, and the
other is not, and the plans of the municipality or a state are at least
as well adapted to develop, conserve, and utilize in the public interest
the water resources of the region, the Commission will favor the
municipality or state.
(4) If one of two applicant is a municipality or a state, and the
other is not, and the plans of the applicant who is not a municipality
or a state are better adapted to develop, conserve, and utilize in the
public interest the water resources of the region, the Commission will
inform the municipality or state of the specific reasons why its plans
are not as well adapted and afford a reasonable period of time for the
municipality or state to render its plans at least as well adapted as
the other plans. If the plans of the municipality or state are rendered
at least as well adapted within the time allowed, the Commission will
favor the municipality or state. If the plans are not rendered at least
as well adapted within the time allowed, the Commission will favor the
other applicant.
(c) If two or more applications for licenses are filed for project
works which would develop, conserve, and utilize, in whole or in part,
the same water resources, and one of the applicants was a preliminary
permittee whose application was accepted for filing within the permit
period (priority applicant), the Commission will select between or among
the applicants on the following bases:
(1) If the plans of the priority applicant are at least as well
adapted as the plans of each other applicant to develop, conserve, and
utilize in the public interest the water resources of the region, taking
into consideration the ability of each applicant to carry out its plans,
the Commission will favor the priority applicant.
(2) If the plans of an applicant who is not a priority applicant are
better adapted than the plans of the priority applicant to develop,
conserve, and utilize in the public interest the water resources of the
region, taking into consideration the ability of each applicant to carry
out its plans, the Commission will inform the priority applicant of the
specific reasons why its plans are not as well adapted and afford a
reasonable period of time for the priority applicant to render its plans
at least as well adapted as the other plans. If the plans of the
priority applicant are rendered at least as well adapted within the time
allowed, then the Commission will favor the priority applicant. If the
plans of the priority applicant are not rendered as well adapted within
the time allowed, the criteria specified in paragraph (b) will govern.
[[Page 95]]
(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, as amended by Order 2002, 68 FR
51117, Aug. 25, 2003]
Sec. 4.38 Consultation requirements.
(a) Requirement to consult. (1) Before it files any application for
an original license or an exemption from licensing that is described in
paragraph (a)(6) 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
federal lands or facilities utilized or occupied by the project, the
appropriate State fish and wildlife agencies, the appropriate State
water resource management agencies, the certifying agency under section
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act),
33 U.S.C. Sec. 1341(c)(1), and any Indian tribe that may be affected by
the proposed project.
(2) Each requirement in this section to contact or consult with
resource agencies or Indian tribes shall be construed to require as well
that the potential applicant contact or consult with members of the
public.
(3) If a potential applicant for an original license commences first
stage pre-filing consultation on or after July 23, 2005 it shall file a
notification of intent to file a license application pursuant to Sec.
5.5 and a pre-application document pursuant to the provisions of Sec.
5.6.
(4) The Director of the Office of Energy Projects will, upon
request, provide a list of known appropriate Federal, state, and
interstate resource agencies, Indian tribes, and local, regional, or
national non-governmental organizations likely to be interested in any
license application proceeding.
(5) An applicant for an exemption from licensing or an applicant for
a license seeking benefits under section 210 of the Public Utility
Regulatory Policies Act, as amended, for a project that would be located
at a new dam or diversion must, in addition to meeting the requirements
of this section, comply with the consultation requirements in Sec.
4.301.
(6) The pre-filing consultation requirements of this section apply
only to an application for:
(i) Original license;
(ii) Exemption;
(iii) Amendment to an application for original license or exemption
that materially amends the proposed plans of development as defined in
Sec. 4.35(f)(1);
[[Page 96]]
(iv) Amendment to an existing license that would increase the
capacity of the project as defined in Sec. 4.201(b); or
(v) Amendment to an existing license that would not increase the
capacity of the project as defined in Sec. 4.201(b), but that would
involve:
(A) The construction of a new dam or diversion in a location where
there is no existing dam or diversion;
(B) Any repair, modification, or reconstruction of an existing dam
that would result in a significant change in the normal maximum surface
area or elevation of an existing impoundment; or
(C) The addition of new water power turbines other than to replace
existing turbines.
(7) Before it files a non-capacity related amendment as defined in
Sec. 4.201(c), an applicant must consult with the resource agencies and
Indian tribes listed in paragraph (a)(1) of this section to the extent
that the proposed amendment would affect the interests of the agencies
or tribes. When consultation is necessary, the applicant must, at a
minimum, provide the resource agencies and Indian tribes with copies of
the draft application and allow them at least 60 days to comment on the
proposed amendment. The amendment as filed with the Commission must
summarize the consultation with the resource agencies and Indian tribes
on the proposed amendment, propose reasonable protection, mitigation, or
enhancement measures to respond to impacts identified as being caused by
the proposed amendment, and respond to any objections, recommendations,
or conditions submitted by the agencies or Indian tribes. Copies of all
written correspondence between the applicant, the agencies, and the
tribes must be attached to the application.
(8) This section does not apply to any application for a new
license, a nonpower license, a subsequent license, or surrender of a
license subject to sections 14 and 15 of the Federal Power Act.
(9) If a potential applicant has any doubt as to whether a
particular application or amendment would be subject to the pre-filing
consultation requirements of this section or if a waiver of the pre-
filing requirements would be appropriate, the applicant may file a
written request for clarification or waiver with the Director, Office of
Energy Projects.
(b) First stage of consultation. (1) A potential applicant for an
original license that commences pre-filing consultation on or after July
23, 2005 must, at the time it files its notification of intent to seek a
license pursuant to Sec. 5.5 of this chapter and a pre-application
document pursuant to Sec. 5.6 of this chapter and, at the same time,
provide a copy of the pre-application document to the entities specified
in Sec. 5.6(a) of this chapter.
(2) A potential applicant for an original license that commences
pre-filing consultation under this part prior to July 23, 2005 or for an
exemption must promptly contact each of the appropriate resource
agencies, affected Indian tribes, and members of the public likely to be
interested in the proceeding; provide them with a description of the
proposed project and supporting information; and confer with them on
project design, the impact of the proposed project (including a
description of any existing facilities, their operation, and any
proposed changes), reasonable hydropower alternatives, and what studies
the applicant should conduct. The potential applicant must provide to
the resource agencies, Indian tribes and the Commission the following
information:
(i) Detailed maps showing project boundaries, if any, proper land
descriptions of the entire project area by township, range, and section,
as well as by state, county, river, river mile, and closest town, and
also showing the specific location of all proposed project facilities,
including roads, transmission lines, and any other appurtenant
facilities;
(ii) A general engineering design of the proposed project, with a
description of any proposed diversion of a stream through a canal or
penstock;
(iii) A summary of the proposed operational mode of the project;
(iv) Identification of the environment to be affected, the
significant resources present, and the applicant's proposed
environmental protection, mitigation,
[[Page 97]]
and enhancement plans, to the extent known at that time;
(v) Streamflow and water regime information, including drainage
area, natural flow periodicity, monthly flow rates and durations, mean
flow figures illustrating the mean daily streamflow curve for each month
of the year at the point of diversion or impoundment, with location of
the stream gauging station, the method used to generate the streamflow
data provided, and copies of all records used to derive the flow data
used in the applicant's engineering calculations;
(vi) (A) A statement (with a copy to the Commission) of whether or
not the applicant will seek benefits under section 210 of PURPA by
satisfying the requirements for qualifying hydroelectric small power
production facilities in Sec. 292.203 of this chapter;
(B) If benefits under section 210 of PURPA are sought, a statement
on whether or not the applicant believes diversion (as that term is
defined in Sec. 292.202(p) of this chapter) and a request for the
agencies' view on that belief, if any;
(vii) Detailed descriptions of any proposed studies and the proposed
methodologies to be employed; and
(viii) Any statement required by Sec. 4.301(a) of this part.
(3) (i) A potential exemption applicant and a potential applicant
for an original license that commences pre-filing consultation;
(A) On or after July 23, 2005 pursuant to part 5 of this chapter and
receives approval from the Commission to use the license application
procedures of part 4 of this chapter; or
(B) Elects to commence pre-filing consultation under part 4 of this
chapter prior to July 23, 2005; must:
(1) Hold a joint meeting at a convenient place and time, including
an opportunity for a site visit, with all pertinent agencies, Indian
tribes, and members of the public to explain the applicant's proposal
and its potential environmental impact, to review the information
provided, and to discuss the data to be obtained and studies to be
conducted by the potential applicant as part of the consultation
process;
(2) Consult with the resource agencies, Indian tribes and members of
the public on the scheduling and agenda of the joint meeting; and
(3) No later than 15 days in advance of the joint meeting, provide
the Commission with written notice of the time and place of the meeting
and a written agenda of the issues to be discussed at the meeting.
(ii) The joint meeting must be held no earlier than 30 days, but no
later than 60 days, from, as applicable;
(A) The date of the Commission's approval of the potential
applicant's request to use the license application procedures of this
part pursuant to the provisions of part 5 of this chapter; or
(B) The date of the potential applicant's letter transmitting the
information required by paragraph (b)(2) of this section, in the case of
a potential exemption applicant or a potential license applicant that
commences pre-filing consultation under this part prior to July 23,
2005.
(4) Members of the public must be informed of and invited to attend
the joint meeting held pursuant to paragraph (b)(3) of this section by
means of the public notice provision published in accordance with
paragraph (g) of this section. Members of the public attending the
meeting are entitled to participate in the meeting and to express their
views regarding resource issues that should be addressed in any
application for license or exemption that may be filed by the potential
applicant. Attendance of the public at any site visit held pursuant to
paragraph (b)(3) of this section will be at the discretion of the
potential applicant. The potential applicant must make either audio
recordings or written transcripts of the joint meeting, and must
promptly provide copies of these recordings or transcripts to the
Commission and, upon request, to any resource agency, Indian tribe, or
member of the public.
(5) Not later than 60 days after the joint meeting held under
paragraph (b)(3) of this Section (unless extended within this time
period by a resource agency, Indian tribe, or members of the public for
an additional 60 days by sending written notice to the applicant and the
Director of the Office of Energy Projects within the first 60 day
[[Page 98]]
period, with an explanation of the basis for the extension), each
interested resource agency and Indian tribe must provide a potential
applicant with written comments:
(i) Identifying its determination of necessary studies to be
performed or the information to be provided by the potential applicant;
(ii) Identifying the basis for its determination;
(iii) Discussing its understanding of the resource issues and its
goals and objectives for these resources;
(iv) Explaining why each study methodology recommended by it is more
appropriate than any other available methodology alternatives, including
those identified by the potential applicant pursuant to paragraph
(b)(2)(vii) of this section;
(v) Documenting that the use of each study methodology recommended
by it is a generally accepted practice; and
(vi) Explaining how the studies and information requested will be
useful to the agency, Indian tribe, or member of the public in
furthering its resource goals and objectives that are affected by the
proposed project.
(6)(i) If a potential applicant and a resource agency or Indian
tribe disagree as to any matter arising during the first stage of
consultation or as to the need to conduct a study or gather information
referenced in paragraph (c)(2) of this section, the potential applicant
or resource agency or Indian tribe may refer the dispute in writing to
the Director of the Office of Energy Projects (Director) for resolution.
(ii) At the same time as the request for dispute resolution is
submitted to the Director, the entity referring the dispute must serve a
copy of its written request for resolution on the disagreeing party and
any affected resource agency or Indian tribe, which may submit to the
Director a written response to the referral within 15 days of the
referral's submittal to the Director.
(iii) Written referrals to the Director and written responses
thereto pursuant to paragraphs (b)(6)(i) or (b)(6)(ii) of this section
must be filed with the Commission in accordance with the Commission's
Rules of Practice and Procedure, and must indicate that they are for the
attention of the Director pursuant to Sec. 4.38(b)(6).
(iv) The Director will resolve the disputes by letter provided to
the potential applicant and all affected resource agencies and Indian
tribes.
(v) If a potential applicant does not refer a dispute regarding a
request for a potential applicant to obtain information or conduct
studies (other than a dispute regarding the information specified in
paragraph (b)(2) of this section), or a study to the Director under
paragraph (b)(6) of this section, or if a potential applicant disagrees
with the Director's resolution of a dispute regarding a request for
information (other than a dispute regarding the information specified in
paragraph (b)(2) of this section) or a study, and if the potential
applicant does not provide the requested information or conduct the
requested study, the potential applicant must fully explain the basis
for its disagreement in its application.
(vi) Filing and acceptance of an application will not be delayed,
and an application will not be considered deficient or patently
deficient pursuant to Sec. 4.32(e)(1) or (e)(2) of this part, merely
because the application does not include a particular study or
particular information if the Director had previously found, under
paragraph (b)(6)(iv) of this section, that each study or information is
unreasonable or unnecessary for an informed decision by the Commission
on the merits of the application or use of the study methodology
requested is not a generally accepted practice.
(7) The first stage of consultation ends when all participating
agencies and Indian tribes provide the written comments required under
paragraph (b)(5) of this section or 60 days after the joint meeting held
under paragraph (b)(3) of this section, whichever occurs first, unless a
resource agency or Indian tribe timely notifies the applicant and the
Director of Energy Projects of its need for more time to provide written
comments under paragraph (b)(5) of this section, in which case the first
stage of consultation ends when all participating agencies and Indian
tribes provide the written comments required under paragraph (b)(5) of
this section or 120 days after the joint
[[Page 99]]
meeting held under paragraph (b)(5) of this section, whichever occurs
first.
(c) Second stage of consultation. (1) Unless determined to be
unnecessary by the Director pursuant to paragraph (b)(6) of this
section, a potential applicant must diligently conduct all reasonable
studies and obtain all reasonable information requested by resource
agencies and Indian tribes under paragraph (b) of this section that are
necessary for the Commission to make an informed decision regarding the
merits of the application. These studies must be completed and the
information obtained:
(i) Prior to filing the application, if the results:
(A) Would influence the financial (e.g., instream flow study) or
technical feasibility of the project (e.g., study of potential mass soil
movement); or
(B) Are needed to determine the design or location of project
features, reasonable alternatives to the project, the impact of the
project on important natural or cultural resources (e.g., resource
surveys), or suitable mitigation or enhancement measures, or to minimize
impact on significant resources (e.g., wild and scenic river, anadromous
fish, endangered species, caribou migration routes);
(ii) After filing the application but before issuance of a license
or exemption, if the applicant otherwise complied with the provisions of
paragraph (b)(2) of this section and the study or information gathering
would take longer to conduct and evaluate than the time between the
conclusion of the first stage of consultation and the expiration of the
applicant's preliminary permit or the application filing deadline set by
the Commission;
(iii) After a new license or exemption is issued, if the studies can
be conducted or the information obtained only after construction or
operation of proposed facilities, would determine the success of
protection, mitigation, or enhancement measures (e.g., post-construction
monitoring studies), or would be used to refine project operation or
modify project facilities.
(2) If, after the end of the first stage of consultation as defined
in paragraph (b)(7) of this section, a resource agency or Indian tribe
requests that the potential applicant conduct a study or gather
information not previously identified and specifies the basis and
reasoning for its request, under paragraphs (b)(5) (i)-(vi) of this
section, the potential applicant must promptly initiate the study or
gather the information, unless the study or information is unreasonable
or unnecessary for an informed decision by the Commission on the merits
of the application or use of the methodology requested by a resource
agency or Indian tribe for conducting the study is not a generally
accepted practice. The applicant may refer any such request to the
Director of the Office of Energy Projects for dispute resolution under
the procedures set forth in paragraph (b)(6) of this section and need
not conduct prior to filing any study determined by the Director to be
unreasonable or unnecessary or to employ a methodology that is not
generally accepted.
(3)(i) The results of studies and information-gathering referenced
in paragraphs (c)(1)(ii) and (c)(2) of this section will be treated as
additional information; and
(ii) Filing and acceptance of an application will not be delayed and
an application will not be considered deficient or patently deficient
pursuant to Sec. 4.32 (e)(1) or (e)(2) merely because the study or
information gathering is not complete before the application is filed.
(4) A potential applicant must provide each resource agency and
Indian tribe with:
(i) A copy of its draft application that:
(A) Indicates the type of application the potential applicant
expects to file with the Commission; and
(B) Responds to any comments and recommendations made by any
resource agency and Indian tribe either during the first stage of
consultation or under paragraph (c)(2) of this section;
(ii) The results of all studies and information-gathering either
requested by that resource agency or Indian tribe in the first stage of
consultation (or under paragraph (c)(2) of this section if available) or
which pertain to resources of interest to that resource agency or Indian
tribe and which were identified by the potential applicant
[[Page 100]]
pursuant to paragraph (b)(2)(vii) of this section, including a
discussion of the results and any proposed protection, mitigation, or
enhancement measures; and
(iii) A written request for review and comment.
(5) A resource agency or Indian tribe will have 90 days from the
date of the potential applicant's letter transmitting the paragraph
(c)(4) information to it to provide written comments on the information
submitted by a potential applicant under paragraph (c)(4) of this
section.
(6) If the written comments provided under paragraph (c)(5) of this
section indicate that a resource agency or Indian tribe has a
substantive disagreement with a potential applicant's conclusions
regarding resource impacts or its proposed protection, mitigation, or
enhancement measures, the potential applicant will:
(i) Hold a joint meeting with the disagreeing resource agency or
Indian tribe and other agencies with similar or related areas of
interest, expertise, or responsibility not later than 60 days from the
date of the written comments of the disagreeing agency or Indian tribe
to discuss and to attempt to reach agreement on its plan for
environmental protection, mitigation, or enhancement measures;
(ii) Consult with the disagreeing agency or Indian tribe and other
agencies with similar or related areas of interest, expertise, or
responsibility on the scheduling of the joint meeting; and
(iii) At least 15 days in advance of the meeting, provide the
Commission with written notice of the time and place of the meeting and
a written agenda of the issues to be discussed at the meeting.
(7) The potential applicant and any disagreeing resource agency or
Indian tribe may conclude a joint meeting with a document embodying any
agreement among them regarding environmental protection, mitigation, or
enhancement measures and any issues that are unresolved.
(8) The potential applicant must describe all disagreements with a
resource agency or Indian tribe on technical or environmental
protection, mitigation, or enhancement measures in its application,
including an explanation of the basis for the applicant's disagreement
with the resource agency or Indian tribe, and must include in its
application any document developed pursuant to paragraph (c)(7) of this
section.
(9) A potential applicant may file an application with the
Commission if:
(i) It has complied with paragraph (c)(4) of this section and no
resource agency or Indian tribe has responded with substantive
disagreements by the deadline specified in paragraph (c)(5) of this
section; or
(ii) It has complied with paragraph (c)(6) of this section and a
resource agency or Indian tribe has responded with substantive
disagreements.
(10) The second stage of consultation ends:
(i) Ninety days after the submittal of information pursuant to
paragraph (c)(4) of this section in cases where no resource agency or
Indian tribe has responded with substantive disagreements; or
(ii) At the conclusion of the last joint meeting held pursuant to
paragraph (c)(6) of this section in cases where a resource agency or
Indian tribe has responded with substantive disagreements.
(d) Third stage of consultation. (1) The third stage of consultation
is initiated by the filing of an application for a license or exemption,
accompanied by a transmittal letter certifying that at the same time
copies of the application are being mailed to the resource agencies,
Indian tribes, other government offices, and consulted members of the
public specified in paragraph (d)(2) of this section.
(2) As soon as an applicant files such application documents with
the Commission, or promptly after receipt in the case of documents
described in paragraph (d)(2)(iii) of this section, as the Commission
may direct the applicant must serve on every resource agency, Indian
tribes, and member of the public consulted, and on other government
offices copies of:
(i) Its application for a license or an exemption from licensing;
[[Page 101]]
(ii) Any deficiency correction, revision, supplement, response to
additional information request, or amendment to the application; and
(iii) Any written correspondence from the Commission requesting the
correction of deficiencies or the submittal of additional information.
(e) Waiver of compliance with consultation requirements. (1) If a
resource agency or Indian tribe waives in writing compliance with any
requirement of this section, a potential applicant does not have to
comply with that requirement as to that agency or tribe.
(2) If a resource agency or Indian tribe fails to timely comply with
a provision regarding a requirement of this section, a potential
applicant may proceed to the next sequential requirement of this section
without waiting for the resource agency or Indian tribe to comply.
(3) The failure of a resource agency or Indian tribe to timely
comply with a provision regarding a requirement of this section does not
preclude its participation in subsequent stages of the consultation
process.
(4) Following October 23, 2003, a potential license applicant
engaged in pre-filing consultation under part 4 may during first stage
consultation request to incorporate into pre-filing consultation any
element of the integrated license application process provided for in
part 5 of this chapter. Any such request must be accompanied by a:
(i) Specific description of how the element of the part 5 license
application would fit into the pre-filing consultation process under
this part; and
(ii) Demonstration that the potential license applicant has made
every reasonable effort to contact all resource agencies, Indian tribes,
non-governmental organizations, and others affected by the applicant's
proposal, and that a consensus exists in favor of incorporating the
specific element of the part 5 process into the pre-filing consultation
under this part.
(f) Application requirements documenting consultation and any
disagreements with resource agencies. An applicant must show in Exhibit
E of its application that it has met the requirements of paragraphs (b)
through (d) and paragraphs (g) and (h) of this section, and must include
a summary of the consultation process and:
(1) Any resource agency's or Indian tribe's letters containing
comments, recommendations, and proposed terms and conditions;
(2) Any letters from the public containing comments and
recommendations;
(3) Notice of any remaining disagreement with a resource agency or
Indian tribe on:
(i) The need for a study or the manner in which a study should be
conducted and the applicant's reasons for disagreement, and
(ii) Information on any environmental protection, mitigation, or
enhancement measure, including the basis for the applicant's
disagreement with the resource agency or Indian tribe;
(4) Evidence of any waivers under paragraph (e) of this section;
(5) Evidence of all attempts to consult with a resource agency or
Indian tribe, copies of related documents showing the attempts, and
documents showing the conclusion of the second stage of consultation;
(6) An explanation of how and why the project would, would not, or
should not, comply with any relevant comprehensive plan as defined in
Sec. 2.l9 of this chapter and a description of any relevant resource
agency or Indian tribe determination regarding the consistency of the
project with any such comprehensive plan;
(7) A description of how the applicant's proposal addresses the
significant resource issues raised at the joint meeting held pursuant to
paragraph (b)(3) of this section; and
(8) A list containing the name and address of every federal, state,
and interstate resource agency and Indian tribe with which the applicant
consulted pursuant to paragraph (a)(1) of this section.
(g) Public participation. (1) At least 14 days in advance of the
joint meeting held pursuant to paragraph (b)(3) of this section, the
potential applicant must publish notice, at least once, of the purpose,
location, and timing of the joint meeting, in a daily or weekly
newspaper published in each county in
[[Page 102]]
which the proposed project or any part thereof is situated. The notice
shall include a summary of the major issues to be discussed at the joint
meeting.
(2)(i) A potential applicant must make available to the public for
inspection and reproduction the information specified in paragraph
(b)(2) of this section from the date on which the notice required by
paragraph (g)(1) of this section is first published until a final order
is issued on any license application.
(ii) The provisions of Sec. 4.32(b) will govern the form and manner
in which the information is to be made available for public inspection
and reproduction.
(iii) A potential applicant must make available to the public for
inspection at the joint meeting required by paragraph (b)(3) of this
section at least two copies of the information specified in paragraph
(b)(2) of this section.
(h) Critical Energy Infrastructure Information. If this section
requires an applicant to reveal Critical Energy Infrastructure
Information (CEII), as defined by Sec. 388.113(c) of this chapter, to
any person, the applicant shall follow the procedures set out in Sec.
4.32(k).
[Order 533, 56 FR 23153, May 20, 1991, as amended at 56 FR 61155, Dec.
2, 1991; Order 2002, 68 FR 51117, Aug. 25, 2003; Order 643, 68 FR 52094,
Sept. 2, 2003; 68 FR 61742, Oct. 30, 2003; Order 756, 77 FR 4894, Feb.
1, 2012; Order 800, 79 FR 59110, Oct. 1, 2014]
Sec. 4.39 Specifications for maps and drawings.
(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. Full-sized prints of maps and drawings
must be on sheets no smaller than 22 by 34 inches and no larger than 24
by 36 inches. A space five inches high by seven inches wide must be
provided in the lower right hand corner of each sheet. The upper half of
this space must bear the title, numerical and graphical scale, and other
pertinent information concerning the map or drawing. The lower half of
the space must be left clear. Exhibit G drawings must be stamped by a
registered land surveyor. If the drawing size specified in this
paragraph limits the scale of structural drawings (exhibit F drawings)
described in paragraph (c) of this section, a smaller scale may be used
for those drawings. Potential applicants or licensees may be required to
file maps or drawings in electronic format as directed by the
Commission.
(b) Each map must have a scale in full-sized prints no smaller than
one inch equals 0.5 miles for transmission lines, roads, and similar
linear features and no smaller than one inch equals 1,000 feet for other
project features, including the project boundary. Where maps at this
scale do not show sufficient detail, large scale maps may be required.
Each map must have:
(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. 4.32(d)], 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.
[[Page 103]]
(e) The maps and drawings showing project location information and
details of project structures must be filed in accordance with the
Commission's instructions on submission of privileged materials and
Critical Energy Infrastructure Information in Sec. Sec. 388.112 and
388.113 of this chapter.
[Order 54, 44 FR 61334, Oct. 25, 1979. Redesignated by Order 413, 50 FR
11678, Mar. 25, 1985; Order 2002, 68 FR 51119, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003; Order 756, 77 FR 4894, Feb. 1, 2012; Order 769, 77
FR 65474, Oct. 29, 2012; Order 798, 79 FR 42974, July 24, 2014; Order
800, 79 FR 59110, Oct. 1, 2014]
Subpart E_Application for License for Major Unconstructed Project and
Major Modified Project
Sec. 4.40 Applicability.
(a) Applicability. The provisions of this subpart apply to any
application for an initial license for a major unconstructed project
that would have a total installed capacity of more than 5 megawatts, and
any application for an initial or new license for a major modified
project with a total installed capacity more than 5 megawatts. An
applicant for license for any major unconstructed or major modified
water power project that would have a total installed generating
capacity of 5 megawatts or less must submit application under subpart G
(Sec. Sec. 4.60 and 4.61).
(b) Guidance from Commission staff. A prospective applicant for a
license for a major unconstructed project or major modified project may
seek advice from the Commission's Office of Energy Projects regarding
the applicability of this subpart to its project [see Sec. 4.32(h)],
including the determinations whether any proposed repair, modification
or reconstruction of an existing dam would result in a significant
change in the normal maximum surface elevation of an existing
impoundment, or whether any proposed change in existing project works or
operation would result in a significant environmental impact.
[Order 184, 46 FR 55936, Nov. 13, 1981, as amended by Order 413, 50 FR
11683, Mar. 25, 1985; Order 499, 53 FR 27002, July 18, 1988; Order 2002,
68 FR 51119, Aug. 25, 2003]
Sec. 4.41 Contents of application.
Any application under this subpart must contain the following
information in the form prescribed:
(a) Initial statement.
Before the Federal Energy Regulatory Commission
Application for License for Major Unconstructed Project or Major
Modified Project
(1) [Name of applicant] applies to the Federal Energy Regulatory
Commission for a [license or new license, as appropriate] for the [name
of project] water power project, as described in the attached exhibits.
[Specify any previous FERC project number designation.]
(2) The location of the proposed project is:
State or territory:_____________________________________________________
County:_________________________________________________________________
Township or nearby town:________________________________________________
Stream or other body of water:__________________________________________
(3) The exact name, business address, and telephone number of the
applicant are:
________________________________________________________________________
________________________________________________________________________
(4) The applicant is a (citizen of the United States, association of
citizens of the United States, domestic corporation, municipality, or
State, as appropriate) and (is/is not) claiming preference under section
7(a) of the Federal Power Act. See 16 U.S.C. 796.
(5)(i) The statutory or regulatory requirements of the state(s) in
which the project would be located and that affect the project as
proposed with respect to bed and banks and to the appropriation,
diversion, and use of water for power purposes, and with respect to the
right to engage in the business of developing, transmitting, and
distributing power and in any other business necessary to accomplish the
purposes of the license under the Federal Power Act, are: [provide
citation and brief identification of the nature of each requirement; if
the applicant is a municipality, the applicant must submit copies of
applicable state or local laws or a municipal charter or, if such laws
or documents are not clear, any other appropriate legal authority,
evidencing that the municipality is competent under such laws to engage
in the business of developing, transmitting, utilizing, or distributing
power.]
(ii) The steps which the applicant has taken, or plans to take, to
comply with each of the laws cited above are: [provide brief description
for each requirement]
(b) Exhibit A is a description of the project. If the project
includes more
[[Page 104]]
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;
(4) An estimate of the dependable capacity and average annual energy
production in kilowatt-hours (or mechanical equivalent), supported by
the following data:
(i) The minimum, mean, and maximum recorded flows in cubic feet per
second of the stream or other body of water at the powerplant intake or
point of diversion, with a specification of any adjustment made for
evaporation, leakage minimum flow releases (including duration of
releases) or other reductions in available flow; monthly flow duration
curves indicating the period of record and the gauging stations used in
deriving the curves; and a specification of the critical streamflow used
to determine the dependable capacity;
(ii) An area-capacity curve showing the gross storage capacity and
usable storage capacity of the impoundment, with a rule curve showing
the proposed operation of the impoundment and how the usable storage
capacity is to be utilized;
(iii) The estimated minimum and maximum hydraulic capacity of the
powerplant in terms of flow and efficiency (cubic feet per second at
one-half, full and best gate), and the corresponding generator output in
kilowatts;
(iv) A tailwater rating curve; and
(v) A curve showing powerplant capability versus head and specifying
maximum, normal, and minimum heads;
(5) A statement of system and regional power needs and the manner in
which the power generated at the project is to be utilized, including
the amount of power to be used on-site, if any, supported by the
following data:
(i) Load curves and tabular data, if appropriate;
(ii) Details of conservation and rate design programs and their
historic and projected impacts on system loads; and
(iii) The amount of power to be sold and the identity of proposed
purchaser(s); and
(6) A statement of the applicant's plans for future development of
the
[[Page 105]]
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 municipality or a state, an estimate of the amount which would
be payable if the project were to be taken over pursuant to section 14
of the Federal Power Act, 16 U.S.C. 807, upon expiration of the license
in effect including:
(i) Fair value;
(ii) Net investment; and
(iii) Severance damages;
(4) A statement of the estimated average annual cost of the total
project as proposed, specifying any projected changes in the costs
(life-cycle costs) over the estimated financing or licensing period if
the applicant takes such changes into account, including:
(i) Cost of capital (equity and debt);
(ii) Local, state, and Federal taxes;
(iii) Depreciation or amortization,
(iv) Operation and maintenance expenses, including interim
replacements, insurance, administrative and general expenses, and
contingencies; and
(v) The estimated capital cost and estimated annual operation and
maintenance expense of each proposed environmental measure;
(5) A statement of the estimated annual value of project power based
on a showing of the contract price for sale of power or the estimated
average annual cost of obtaining an equivalent amount of power (capacity
and energy) from the lowest cost alternative source of power, specifying
any projected changes in the costs (life-cycle costs) of power from that
source over the estimated financing or licensing period if the applicant
takes such changes into account;
(6) A statement describing other electric energy alternatives, such
as gas, oil, coal and nuclear-fueled powerplants and other conventional
and pumped storage hydroelectric plants;
(7) A statement and evaluation of the consequences of denial of the
license application and a brief perspective of what future use would be
made of the proposed site if the proposed project were not constructed;
[[Page 106]]
(8) A statement specifying the sources and extent of financing and
annual revenues available to the applicant to meet the costs identified
in paragraphs (e) (1) and (4) of this section;
(9) An estimate of the cost to develop the license application; and
(10) The on-peak and off-peak values of project power, and the basis
for estimating the values, for projects which are proposed to operate in
a mode other than run-of-river.
(f) Exhibit E is an Environmental Report. Information provided in
the report must be organized and referenced according to the itemized
subparagraphs below. See Sec. 4.38 for consultation requirements. The
Environmental Report must contain the following information,
commensurate with the scope of the project:
(1) General description of the locale. The applicant must provide a
general description of the environment of the proposed project area and
its immediate vicinity. The description must include location and
general information helpful to an understanding of the environmental
setting.
(2) Report on water use and quality. The report must discuss water
quality and flows and contain baseline data sufficient to determine the
normal and seasonal variability, the impacts expected during
construction and operation, and any mitigative, enhancement, and
protective measures proposed by the applicant. The report must be
prepared in consultation with the state and Federal agencies with
responsibility for management of water quality and quantity in the
affected stream or other body of water. The report must include:
(i) A description of existing instream flow uses of streams in the
project area that would be affected by construction and operation;
estimated quantities of water discharged from the proposed project for
power production; and any existing and proposed uses of project waters
for irrigation, domestic water supply, industrial and other purposes;
(ii) A description of the seasonal variation of existing water
quality for any stream, lake, or reservoir that would be affected by the
proposed project, including (as appropriate) measurements of:
significant ions, chlorophyll a, nutrients, specific conductance, pH,
total dissolved solids, total alkalinity, total hardness, dissolved
oxygen, bacteria, temperature, suspended sediments, turbidity and
vertical illumination;
(iii) A description of any existing lake or reservoir and any of the
proposed project reservoirs including surface area, volume, maximum
depth, mean depth, flushing rate, shoreline length, substrate
classification, and gradient for streams directly affected by the
proposed project;
(iv) A quantification of the anticipated impacts of the proposed
construction and operation of project facilities on water quality and
downstream flows, such as temperature, turbidity and nutrients;
(v) A description of measures recommended by Federal and state
agencies and the applicant for the purpose of protecting or improving
water quality and stream flows during project construction and
operation; an explanation of why the applicant has rejected any measures
recommended by an agency; and a description of the applicant's
alternative measures to protect or improve water quality stream flow;
(vi) A description of groundwater in the vicinity of the proposed
project, including water table and artesian conditions, the hydraulic
gradient, the degree to which groundwater and surface water are
hydraulically connected, aquifers and their use as water supply, and the
location of springs, wells, artesian flows and disappearing streams; a
description of anticipated impacts on groundwater and measures proposed
by the applicant and others for the mitigation of impacts on
groundwater; and
(3) Report on fish, wildlife, and botanical resources. The applicant
must provide a report that describes the fish, wildlife, and botanical
resources in the vicinity of the proposed project; expected impacts of
the project on these resources; and mitigation, enhancement, or
protection measures proposed by the applicant. The report must be
prepared in consultation with the state agency or agencies with
responsibility for these resources, the U.S. Fish and Wildlife Service,
the National Marine Fisheries Service (if the proposed
[[Page 107]]
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.
(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;
[[Page 108]]
(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 eight
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 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;
[[Page 109]]
(iii) A description showing the location of existing and potential
geological and soil hazards and problems, including earthquakes, faults,
seepage, subsidence, solution cavities, active and abandoned mines,
erosion, and mass soil movement, and an identification of any large
landslides or potentially unstable soil masses which could be aggravated
by reservoir fluctuation;
(iv) A description of the anticipated erosion, mass soil movement
and other impacts on the geological and soil resources due to
construction and operation of the proposed project; and
(v) A description of any proposed measures or facilities for the
mitigation of impacts on soils.
(7) Report on recreational resources. The applicant must prepare a
report containing a proposed recreation plan describing utilization,
design and development of project recreational facilities, and public
access to the project area. Development of the plan should include
consideration of the needs of the physically handicapped. Public and
private recreational facilities provided by others that would abut the
project should be noted in the report. The report must be prepared in
consultation with appropriate local, regional, state and Federal
recreation agencies and planning commissions, the National Park Service
of the U.S. Department of the Interior, and any other state or Federal
agency with managerial responsibility for any part of the project lands.
The report must contain:
(i) A description of any areas within or in the vicinity of the
proposed project boundary that are included in, or have been designated
for study for inclusion in:
(A) The National Wild and Scenic Rivers Systems (see 16 U.S.C.
1271);
(B) The National Trails System (see 16 U.S.C. 1241); or
(C) A wilderness area designated under the Wilderness Act (see 16
U.S.C. 1132);
(ii) A detailed description of existing recreational facilities
within the project vicinity, and the public recreational facilities
which are to be provided by the applicant at its sole cost or in
cooperation with others no later than 3 years from the date of first
commercial operation of the proposed project and those recreation
facilities planned for future development based on anticipated demand.
When public recreation facilities are to be provided by other entities,
the applicant and those entities should enter into an agreement on the
type of facilities to be provided and the method of operation. Copies of
agreements with cooperating entities are to be appended to the plan;
(iii) A provision for a shoreline buffer zone that must be within
the project boundary, above the normal maximum surface elevation of the
project reservoir, and of sufficient width to allow public access to
project lands and waters and to protect the scenic, public recreational,
cultural, and other environmental values of the reservoir shoreline;
(iv) Estimates of existing and future recreational use at the
project, in daytime and overnight visitation (recreation days), with a
description of the methodology used in developing these data;
(v) A development schedule and cost estimates of the construction,
operation, and maintenance of existing, initial, and future public
recreational facilities, including a statement of the source and extent
of financing for such facilities;
(vi) A description of any measures or facilities recommended by the
agencies consulted for the purpose of creating, preserving, or enhancing
recreational opportunities at the proposed project, and for the purpose
of ensuring the safety of the public in its use of project lands and
waters, including an explanation of why the applicant has rejected any
measures or facilities recommended by an agency; and
(vii) A drawing or drawings, one of which describes the entire
project area, clearly showing:
(A) The location of project lands, and the types and number of
existing recreational facilities and those proposed for initial
development, including access roads and trails, and facilities for
camping, picnicking, swimming, boat docking and launching, fishing and
hunting, as well as provisions for sanitation and waste disposal;
[[Page 110]]
(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 state zoning or land management authorities,
and any Federal or state agency with managerial responsibility for the
proposed project or abutting lands. The report must include:
(i) A description of existing land use in the proposed project area,
including identification of wetlands, floodlands, prime or unique
farmland as designated by the Natural Resources Conservation Service of
the U.S. Department of Agriculture, the Special Area Management Plan of
the Office of Coastal Zone Management, National Oceanic and Atmospheric
Administration, and lands owned or subject to control by government
agencies;
(ii) A description of the proposed land uses within and abutting the
project boundary that would occur as a result of development and
operation of the project; and
(iii) Aerial photographs, maps, drawings or other graphics
sufficient to show the location, extent and nature of the land uses
referred to in this section.
(10) Alternative locations, designs, and energy sources. The
applicant must provide an environment assessment of the following:
(i) Alternative sites considered in arriving at the selection of the
proposed project site;
(ii) Alternative facility designs, processes, and operations that
were considered and the reasons for their rejection;
(iii) Alternative electrical energy sources, such as gas, oil, coal,
and nuclear-fueled power plants, purchased power or diversity exchange,
and other conventional and pumped-storage hydroelectric plants; and
[[Page 111]]
(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.
(4) The applicant must submit two copies of the supporting design
report described in paragraph (g)(3) of this section at the time
preliminary and final design drawings are submitted to the Commission
for review. If the report contains preliminary drawings, it must be
designated a ``Preliminary Supporting Design Report.''
(h) Exhibit G is a map of the project that must conform to the
specifications of Sec. 4.39. In addition, to the other components of
Exhibit G, the Applicant must provide the project boundary data in a
geo-referenced electronic format--such as ArcView shape files, GeoMedia
files, MapInfo files, or any similar format. The electronic boundary
data must be positionally accurate to 40 feet, in
order to comply with the National Map Accuracy Standards for maps at a
1:24,000 scale (the scale of USGS quadrangle maps). The electronic
exhibit G data must include a text file describing the map projection
used (i.e., UTM, State Plane, Decimal Degrees, etc.), the map datum
(i.e., feet, meters, miles, etc.). Three sets of the maps must be
submitted on compact disk or other appropriate electronic media. If more
than one sheet is used for the paper maps, the sheets must be numbered
consecutively, and each sheet must bear a small insert sketch showing
the entire project and indicate that portion of the project depicted on
that sheet. Each sheet must contain a minimum of three known reference
points. The latitude and longitude coordinates, or state plane
coordinates, of each reference point must be shown. If at any time after
the application is filed there is any change in the project boundary,
the applicant
[[Page 112]]
must submit, within 90 days following the completion of project
construction, a final exhibit G showing the extent of such changes. The
map must show:
(1) Location of the project and principal features. The map must
show the location of the project as a whole with reference to the
affected stream or other body of water and, if possible, to a nearby
town or any other permanent monuments or objects, such as roads,
transmission lines or other structures, that can be noted on the map and
recognized in the field. The map must also show the relative locations
and physical interrelationships of the principal project works and other
features described under paragraph (b) of this section (Exhibit A).
(2) Project boundary. The map must show a project boundary enclosing
all project works and other features described under paragraph (b) of
this section (Exhibit A) that are to be licensed. If accurate survey
information is not available at the time the application is filed, the
applicant must so state, and a tentative boundary may be submitted. The
boundary must enclose only those lands necessary for operation and
maintenance of the project and for other project purposes, such as
recreation, shoreline control, or protection of environmental resources
(see paragraph (f) of this section (Exhibit E)). Existing residential,
commercial, or other structures may be included within the boundary only
to the extent that underlying lands are needed for project purposes
(e.g., for flowage, public recreation, shoreline control, or protection
of environmental resources). If the boundary is on land covered by a
public survey, ties must be shown on the map at sufficient points to
permit accurate platting of the position of the boundary relative to the
lines of the public land survey. If the lands are not covered by a
public land survey, the best available legal description of the position
of the boundary must be provided, including distances and directions
from fixed monuments or physical features. The boundary must be
described as follows:
(i) Impoundments. (A) The boundary around a project impoundment must
be described by one of the following:
(1) Contour lines, including the contour elevation (preferred
method);
(2) Specified courses and distances (metes and bounds);
(3) If the project lands are covered by a public land survey, lines
upon or parallel to the lines of the survey; or
(4) Any combination of the above methods.
(B) The boundary must be located no more than 200 feet (horizontal
measurement) from the exterior margin of the reservoir, defined by the
normal maximum surface elevation, except where deviations may be
necessary in describing the boundary according to the above methods or
where additional lands are necessary for project purposes, such as
public recreation, shoreline control, or protection of environmental
resources.
(ii) Continuous features. The boundary around linear (continuous)
project features such as access roads, transmission lines, and conduits
may be described by specified distances from center lines or offset
lines of survey. The width of such corridors must not exceed 200 feet
unless good cause is shown for a greater width. Several sections of a
continuous feature may be shown on a single sheet with information
showing the sequence of contiguous sections.
(iii) Noncontinuous features. (A) The boundary around noncontinuous
project works such as dams, spillways, and powerhouses must be described
by one of the following:
(1) Contour lines;
(2) Specified courses and distances;
(3) If the project lands are covered by a public land survey, lines
upon or parallel to the lines of the survey; or
(4) Any combination of the above methods.
(B) The boundary must enclose only those lands that are necessary
for safe and efficient operation and maintenance of the project or for
other specified project purposes, such as public recreation or
protection of environmental resources.
(3) Federal lands. Any public lands and reservations of the United
States (Federal lands) [see 16 U.S.C. 796 (1) and (2)] that are within
the project boundary, such as lands administered by the U.S. Forest
Service, Bureau of Land
[[Page 113]]
Management, or National Park Service, or Indian tribal lands, and the
boundaries of those Federal lands, must be identified as such on the map
by:
(i) Legal subdivisions of a public land survey of the affected area
(a protraction of identified township and section lines is sufficient
for this purpose); and
(ii) The Federal agency, identified by symbol or legend, that
maintains or manages each identified subdivision of the public land
survey within the project boundary; or
(iii) In the absence of a public land survey, the location of the
Federal lands according to the distances and directions from fixed
monuments or physical features. When a Federal survey monument or a
Federal bench mark will be destroyed or rendered unusable by the
construction of project works, at least two permanent, marked witness
monuments or bench marks must be established at accessible points. The
maps show the location (and elevation, for bench marks) of the survey
monument or bench mark which will be destroyed or rendered unusable, as
well as of the witness monuments or bench marks. Connecting courses and
distances from the witness monuments or bench marks to the original must
also be shown.
(iv) The project location must include the most current information
pertaining to affected Federal lands as described under Sec.
4.81(b)(5).
(4) Non-Federal lands. For those lands within the project boundary
not identified under paragraph (h)(3) of this section, the map must
identify by legal subdivision:
(i) Lands owned in fee by the applicant and lands that the applicant
plans to acquire in fee; and
(ii) Lands over which the applicant has acquired or plans to acquire
rights to occupancy and use other than fee title, including rights
acquired or to be acquired by easement or lease.
[Order 184, 46 FR 55936, Nov. 13, 1981; 48 FR 4459, Feb. 1, 1983, as
amended by Order 413, 50 FR 11684, Mar. 25, 1985; Order 464, 52 FR 5449,
Feb. 23, 1987; Order 540, 57 FR 21737, May 22, 1992; Order 2002, 68 FR
51119, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68 FR 63194, Nov. 7,
2003; 68 FR 69957, Dec. 16, 2003; Order 699, 72 FR 45324, Aug. 14, 2007]
Subpart F_Application for License for Major Project_Existing Dam
Authority: Federal Power Act, as amended (16 U.S.C. 792-828c);
Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601-2645);
Department of Energy Organization Act (42 U.S.C. 7101-7352); E.O. 12009,
42 FR 46267; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.).
Sec. 4.50 Applicability.
(a) Applicability. (1) Except as provided in paragraph (a)(2) of
this section, the provisions of this subpart apply to any application
for either an initial license or new license for a major project--
existing dam that is proposed to have a total installed capacity of more
than 5 megawatts.
(2) This subpart does not apply to any major project--existing dam
(see Sec. 4.40) that is proposed to entail or include:
(i) Any repair, modification or reconstruction of an existing dam
that would result in a significant change in the normal maximum surface
area or normal maximum surface elevation of an existing impoundment; or
(ii) Any new development or change in project operation that would
result in a significant environmental impact.
(3) An applicant for license for any major project--existing dam
that would have a total installed capacity of 5 megawatts or less must
submit application under subpart G (Sec. Sec. 4.60 and 4.61).
(b) Guidance from Commission staff. A prospective applicant for a
major license--existing dam may seek advice from the Commission staff
regarding the applicability of these sections to its project (see Sec.
4.32(h)), including the determinations whether any proposed repair or
reconstruction of an existing dam would result in a significant change
in the normal maximum surface area or the normal maximum surface
elevation of an existing impoundment, or whether any proposed new
development or change in project operation would result in a significant
environmental impact.
[Order 59, 44 FR 67651, Nov. 27, 1979, as amended by Order 184, 46 FR
55942, Nov. 13, 1981; Order 413, 50 FR 11684, Mar. 25, 1985; Order 499,
53 FR 27002, July 18, 1988]
[[Page 114]]
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, 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
[[Page 115]]
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; monthly flow duration
curves indicating the period of record and the gauging stations used in
deriving the curves; and a specification of the period of critical
streamflow used to determine the dependable capacity;
(ii) An area-capacity curve showing the gross storage capacity and
usable storage capacity of the impoundment, with a rule curve showing
the proposed operation of the impoundment and how the usable storage
capacity is to be utilized;
(iii) The estimated hydraulic capacity of the powerplant (minimum
and maximum flow through the powerplant) in cubic feet per second;
(iv) A tailwater rating curve; and
(v) A curve showing powerplant capability versus head and specifying
maximum, normal, and minimum heads;
(3) A statement, with load curves and tabular data, if necessary, of
the manner in which the power generated at the project is to be
utilized, including the amount of power to be used on-site, if any, the
amount of power to be sold, and the identity of any proposed purchasers;
and
(4) A statement of the applicant's plans, if any, for future
development of the project or of any other existing or proposed water
power project on the stream or other body of water, indicating the
approximate location and estimated installed capacity of the proposed
developments.
(d) Exhibit C is a construction history and proposed construction
schedule for the project. The construction history and schedules must
contain:
(1) If the application is for an initial license, a tabulated
chronology of construction for the existing projects structures and
facilities described under paragraph (b) of this section (Exhibit A),
specifying for each structure or facility, to the extent possible, the
actual or approximate dates (approximate dates must be identified as
such) of:
(i) Commencement and completion of construction or installation;
(ii) Commencement of commercial operation; and
(iii) Any additions or modifications other than routine maintenance;
and
(2) If any new development is proposed, a proposed schedule
describing the necessary work and specifying the intervals following
issuance of a license when the work would be commenced and completed.
(e) Exhibit D is a statement of costs and financing. The statement
must contain:
(1) If the application is for an initial license, a tabulated
statement providing the actual or approximate original cost (approximate
costs must be identified as such) of:
(i) Any land or water right necessary to the existing project; and
(ii) Each existing structure and facility described under paragraph
(b) of this section (Exhibit A).
(2) If the applicant is a licensee applying for a new license, and
is not a municipality or a state, an estimate of the amount which would
be payable if
[[Page 116]]
the project were to be taken over pursuant to section 14 of the Federal
Power Act upon expiration of the license in effect [see 16 U.S.C. 807],
including:
(i) Fair value;
(ii) Net investment; and
(iii) Severance damages.
(3) If the application includes proposals for any new development, a
statement of estimated costs, including:
(i) The cost of any land or water rights necessary to the new
development; and
(ii) The cost of the new development work, with a specification of:
(A) Total cost of each major item;
(B) Indirect construction costs such as costs of construction
equipment, camps, and commissaries;
(C) Interest during construction; and
(D) Overhead, construction, legal expenses, taxes, administrative
and general expenses, and contingencies.
(4) A statement of the estimated average annual cost of the total
project as proposed specifying any projected changes in the costs (life-
cycle costs) over the estimated financing or licensing period if the
applicant takes such changes into account, including:
(i) Cost of capital (equity and debt);
(ii) Local, state, and Federal taxes;
(iii) Depreciation and amortization;
(iv) Operation and maintenance expenses, including interim
replacements, insurance, administrative and general expenses, and
contingencies; and
(v) The estimated capital cost and estimated annual operation and
maintenance expense of each proposed environmental measure.
(5) A statement of the estimated annual value of project power,
based on a showing of the contract price for sale of power or the
estimated average annual cost of obtaining an equivalent amount of power
(capacity and energy) from the lowest cost alternative source,
specifying any projected changes in the cost of power from that source
over the estimated financing or licensing period if the applicant takes
such changes into account.
(6) A statement specifying the sources and extent of financing and
annual revenues available to the applicant to meet the costs identified
in paragraphs (e) (3) and (4) of this section.
(7) An estimate of the cost to develop the license application;
(8) The on-peak and off-peak values of project power, and the basis
for estimating the values, for projects which are proposed to operate in
a mode other than run-of-river; and
(9) The estimated average annual increase or decrease in project
generation, and the estimated average annual increase or decrease of the
value of project power, due to a change in project operations (i.e.,
minimum bypass flows; limits on reservoir fluctuations).
(f) Exhibit E is an Environmental Report. Information provided in
the report must be organized and referenced according to the itemized
subparagraphs below. See Sec. 4.38 for consultation requirements. The
Environmental Report must contain the following information,
commensurate with the scope of the proposed project:
(1) General description of the locale. The applicant must provide a
general description of the environment of the project and its immediate
vicinity. The description must include general information concerning
climate, topography, wetlands, vegetative cover, land development,
population size and density, the presence of any floodplain and the
occurrence of flood events in the vicinity of the project, and any other
factors important to an understanding of the setting.
(2) Report on water use and quality. The report must discuss the
consumptive use of project waters and the impact of the project on water
quality. The report must be prepared in consultation with the state and
Federal agencies with responsibility for management of water quality in
the affected stream or other body of water. Consultation must be
documented by appending to the report a letter from each agency
consulted that indicates the nature, extent, and results of the
consultation. The report must include:
(i) A description (including specified volume over time) of existing
and proposed uses of project waters for irrigation, domestic water
supply, steam-
[[Page 117]]
electric plant, industrial, and other consumptive purposes;
(ii) A description of existing water quality in the project
impoundment and downstream water affected by the project and the
applicable water quality standards and stream segment classifications;
(iii) A description of any minimum flow releases specifying the rate
of flow in cubic feet per second (cfs) and duration, changes in the
design of project works or in project operation, or other measures
recommended by the agencies consulted for the purposes of protecting or
improving water quality, including measures to minimize the short-term
impacts on water quality of any proposed new development of project
works (for any dredging or filling, refer to 40 CFR part 230 and 33 CFR
320.3(f) and 323.3(e)) \1\;
---------------------------------------------------------------------------
\1\ 33 CFR part 323 was revised at 47 FR 31810, July 22, 1982, and
Sec. 323.3(e) no longer exists.
---------------------------------------------------------------------------
(iv) A statement of the existing measures to be continued and new
measures proposed by the applicant for the purpose of protecting or
improving water quality, including an explanation of why the applicant
has rejected any measures recommended by an agency and described under
paragraph (f)(2)(iii) of this section.
(v) A description of the continuing impact on water quality of
continued 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,
[[Page 118]]
of any proposed facilities, and of implementation of any proposed
measures, including a statement of the sources and extent of financing;
and
(E) A map or drawing that conforms to the size, scale, and
legibility requirements of Sec. 4.39 showing by the use of shading,
cross-hatching, or other symbols the identity and location of any
measures or facilities, and indicating whether each measure or facility
is existing or proposed (the map or drawings in this exhibit may be
consolidated).
(4) Report on historical and archeological resources. The report
must discuss the historical and archeological resources in the project
area and the impact of the project on those resources. The report must
be prepared in consultation with the State Historic Preservation Officer
and the National Park Service. Consultation must be documented by
appending to the report a letter from each agency consulted that
indicates the nature, extent, and results of the consultation. The
report must contain:
(i) Identification of any sites either listed or determined to be
eligible for inclusion in the National Register of Historic Places that
are located in the project area, or that would be affected by operation
of the project or by new 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;
[[Page 119]]
(B) A schedule showing the intervals following issuance of a license
at which implementation of the measures or construction of the
facilities would be commenced and completed;
(C) An estimate of the costs of construction, operation, and
maintenance of any proposed facilities, including a statement of the
sources and extent of financing;
(D) A map or drawing that conforms to the size, scale, and
legibility requirements of Sec. 4.39 showing by the use of shading,
cross-hatching, or other symbols the identity and location of any
facilities, and indicating whether each facility is existing or proposed
(the maps or drawings in this exhibit may be consolidated); and
(vi) A description of any areas within or in the vicinity of the
proposed project boundary that are included in, or have been designated
for study for inclusion in, the National Wild and Scenic Rivers System,
or that have been designated as wilderness area, recommended for such
designation, or designated as a wilderness study area under the
Wilderness Act.
(6) Report on land management and aesthetics. The report must
discuss the management of land within the proposed project boundary,
including wetlands and floodplains, and the protection of the
recreational and scenic values of the project. The report must be
prepared following consultation with local and state zoning and land
management authorities and any Federal or state agency with managerial
authority over any part of the project lands. Consultation must be
documented by appending to the report a letter from each agency
consulted indicating the nature, extent, and results of the
consultation. The report must contain:
(i) A description of existing development and use of project lands
and all other lands abutting the project impoundment;
(ii) A description of the measures proposed by the applicant to
ensure that any proposed project works, rights-of-way, access roads, and
other topographic alterations blend, to the extent possible, with the
surrounding environment; (see, e.g., 44 F.P.C. 1496, et seq.);
(iii) A description of wetlands or floodplains within, or adjacent
to, the project boundary, any short-term or long-term impacts of the
project on those wetlands or floodplains, and any mitigative measures in
the construction or operation of the project that minimize any adverse
impacts on the wetlands or floodplains;
(iv) A statement, including an analysis of costs and other
constraints, of the applicant's ability to provide a buffer zone around
all or any part of the impoundment, for the purpose of ensuring public
access to project lands and waters and protecting the recreational and
aesthetic values of the impoundment and its shoreline;
(v) A description of the applicant's policy, if any, with regard to
permitting development of piers, docks, boat landings, bulkheads, and
other shoreline facilities on project lands and waters; and
(vi) Maps or drawings that conform to the size, scale and legibility
requirements of Sec. 4.39, or photographs, sufficient to show the
location and nature of the measures proposed under paragraph (f)(6)(ii)
of this section (maps or drawings in this exhibit may be consolidated).
(7) List of literature. The report must include a list of all
publications, reports, and other literature which were cited or
otherwise utilized in the preparation of any part of the environmental
report.
(g) Exhibit F. See Sec. 4.41(g) of this chapter.
(h) Exhibit G. See Sec. 4.41(h) of this chapter.
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 123, 46 FR
9029, Jan. 28, 1981; Order 183, 46 FR 55251, Nov. 9, 1981; Order 184, 46
FR 55942, Nov. 13, 1981; Order 413, 50 FR 11684, Mar. 25, 1985; Order
464, 52 FR 5449, Feb. 23, 1987; Order 540, 57 FR 21737, May 22, 1992;
Order 2002, 68 FR 51120, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]
[[Page 120]]
Subpart G_Application for License for Minor Water Power Projects and
Major Water Power Projects 5 Megawatts or Less
Sec. 4.60 Applicability and notice to agencies.
(a) Applicability. The provisions of this subpart apply to any
application for an initial license or a new license for:
(1) A minor water power project, as defined in Sec. 4.30(b)(17);
(2) Any major project--existing dam, as defined in Sec.
4.30(b)(16), that has a total installed capacity of 5 MW or less; or
(3) Any major unconstructed project or major modified project, as
defined in Sec. 4.30 (b) (15) and (14) respectively, that has a total
installed capacity of 5 MW or less.
(b) Notice to agencies. The Commission will supply interested
Federal, state, and local agencies with notice of any application for
license for a water power project 5 MW or less and request comment on
the application. Copies of the application will be available for
inspection at the Commission's Public Reference Room. The applicant
shall also furnish copies of the filed application to any Federal,
state, or local agency that so requests.
(c) Unless an applicant for a license for a minor water power
project requests in its application that the Commission apply the
following provisions of Part I of the Federal Power Act when it issues a
minor license for a project, the Commission, unless it determines it
would not be in the public interest to do so, will waive:
(1) Section 4(b), insofar as it requires a licensee to file a
statement showing the actual legitimate costs of construction of a
project;
(2) Section 4(e), insofar as it relates to approval by the Chief of
Engineers and the Secretary of the Army of plans affecting navigation;
(3) Section 6, insofar as it relates to the acceptance and
expression in the license of terms and conditions of the Federal Power
Act that are waived in the licensing order;
(4) Section 10(c), insofar as it relates to a licensee's maintenance
of depreciation reserves;
(5) Sections 10(d) and 10(f);
(6) Section 14, with the exception of the right of the United States
or any state or municipality to take over, maintain, and operate a
project through condemnation proceedings; and
(7) Sections 15, 16, 19, 20 and 22.
[Order 413, 50 FR 11685, Mar. 25, 1985, as amended by Order 513, 54 FR
23806, June 2, 1989; Order 2002, 68 FR 51120, Aug. 25, 2003]
Sec. 4.61 Contents of application.
(a) General instructions--(1) Entry upon land. No work may be
started on any proposed project works until the applicant receives a
signed license from the Commission. Acceptance of an application does
not authorize entry upon public lands or reservations of the United
States for any purpose. The applicant should determine whether any
additional Federal, state, or local permits are required.
(2) Exhibits F and G must be submitted on separate drawings.
Drawings for Exhibits F and G must have identifying title blocks and
bear the following certification: ``This drawing is a part of the
application for license made by the undersigned this _______ day of
_______, 19__.''
(3) Each application for a license for a water power project 5
megawatts or less must include the information requested in the initial
statement and lettered exhibits described by paragraphs (b) through (f)
of this section, and must be provided in the form specified. The
Commission reserves the right to require additional information, or
another filing procedure, if data provided indicate such action to be
appropriate.
(b) Initial statement.
Before the Federal Energy Regulatory Commission
Application for License for a [Minor Water Power Project, or Major Water
Power Project, 5 Megawatts or Less, as Appropriate]
(1) _____ (Name of Applicant) applies to the Federal Energy
Regulatory Commission for _____ (license or new license, as appropriate)
for the _____ (name of project) water power project, as described
[[Page 121]]
hereinafter. (Specify any previous FERC project number designation.)
(2) The location of the project is:
State or territory:_____________________________________________________
County:_________________________________________________________________
Township or nearby town:________________________________________________
Stream or other body of water:__________________________________________
(3) The exact name, address, and telephone number of the applicant
are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(4) The exact name, address, and telephone number of each person
authorized to act as agent for the applicant in this application, if
applicable, are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(5) The applicant is a ___ [citizen of the United States,
association of citizens of the United States, domestic corporation,
municipality, or State, as appropriate] and (is/is not) claiming
preference under section 7(a) of the Federal Power Act. See 16 U.S.C.
796.
(6)(i) The statutory or regulatory requirements of the state(s) in
which the project would be located that affect the project as proposed
with respect to bed and banks and the appropriation, diversion, and use
of water for power purposes, and with respect to the right to engage in
the business of developing, transmitting, and distributing power and in
any other business necessary to accomplish the purposes of the license
under the Federal Power Act, are: [provide citation and brief
identification of the nature of each requirement; if the applicant is a
municipality, the applicant must submit copies of applicable state or
local laws or a municipal charter or, if such laws or documents are not
clear, any other appropriate legal authority, evidencing that the
municipality is competent under such laws to engage in the business of
developing, transmitting, utilizing, or distributing power.]
(ii) The steps which the applicant has taken or plans to take to
comply with each of the laws cited above are: [provide brief description
for each requirement]
(7) Brief project description
(i) Proposed installed generating capacity ___ MW.
(ii) Check appropriate box:
[ballot] existing dam [ballot] unconstructed dam
[ballot] existing dam, major modified project (see Sec.
4.30(b)(14))
(8) Lands of the United States affected (shown on Exhibit G):
(Name) (Acres)
(i) National Forest................ ........................ .......
(ii) Indian Reservation............ ........................ .......
(iii) Public Lands Under ........................ .......
Jurisdiction of.
(iv) Other......................... ........................ .......
(v) Total U.S. Lands............... ........................ .......
(vi) Check appropriate box:
[ballot] Surveyed land [ballot] Unsurveyed land
(9) Construction of the project is planned to start within __
months, and is planned to be completed within __ months, from the date
of issuance of license.
(c) Exhibit A is a description of the project and the proposed mode
of operation.
(1) The exhibit must include, in tabular form if possible, as
appropriate:
(i) The number of generating units, including auxiliary units, the
capacity of each unit, and provisions, if any, for future units;
(ii) The type of hydraulic turbine(s);
(iii) A description of how the plant is to be operated, manual or
automatic, and whether the plant is to be used for peaking;
(iv) The estimated average annual generation in kilowatt-hours or
mechanical energy equivalent;
(v) The estimated average head on the plant;
(vi) The reservoir surface area in acres and, if known, the net and
gross storage capacity;
(vii) The estimated minimum and maximum hydraulic capacity of the
plant (flow through the plant) in cubic feet per second and estimated
average flow of the stream or water body at the plant or point of
diversion; for projects with installed capacity of more than 1.5
megawatts, monthly flow duration curves and a description of the
drainage area for the project site must be provided;
(viii) Sizes, capacities, and construction materials, as
appropriate, of pipelines, ditches, flumes, canals, intake facilities,
powerhouses, dams, transmission lines, and other appurtenances; and
(ix) The estimated cost of the project.
(x) The estimated capital costs and estimated annual operation and
maintenance expense of each proposed environmental measure.
(2) State the purposes of project (for example, use of power
output).
[[Page 122]]
(3) An estimate of the cost to develop the license application; and
(4) The on-peak and off-peak values of project power, and the basis
for estimating the values, for projects which are proposed to operate in
a mode other than run-of-river.
(5) The estimated average annual increase or decrease in project
generation, and the estimated average annual increase or decrease of the
value of project power due to a change in project operations (i.e.,
minimum bypass flows, limiting reservoir fluctuations) for an
application for a new license;
(6) The remaining undepreciated net investment, or book value of the
project;
(7) The annual operation and maintenance expenses, including
insurance, and administrative and general costs;
(8) A detailed single-line electrical diagram;
(9) A statement of measures taken or planned to ensure safe
management, operation, and maintenance of the project.
(d) Exhibit E is an Environmental Report.
(1) For major unconstructed and major modified projects 5 MW or
less. Any application must contain an Exhibit E conforming with the data
and consultation requirements of Sec. 4.41(f) of this chapter, if the
application is for license for a water power project which has or is
proposed to have a total installed generating capacity greater than 1.5
MW but not greater than 5 MW, and which:
(i) Would use the water power potential of a dam and impoundment
which, at the time of application, has not been constructed (see Sec.
4.30(b)(15)); or
(ii) Involves any repair, modification or reconstruction of an
existing dam that would result in a significant change in the normal
maximum surface area or elevation of an existing impoundment or involves
any change in existing project works or operations that would result in
a significant environmental impact (see Sec. 4.30(b)(14)).
(2) For minor projects and major projects at existing dams 5 MW or
less. An application for license for either a minor water power project
with a total proposed installed generating capacity of 1.5 MW or less or
a major project--existing dam with a proposed total installed capacity
of 5 MW or less must contain an Exhibit E under this subparagraph. See
Sec. 4.38 for consultation requirements. The Environmental Report must
contain the following information:
(i) A description, including any maps or photographs which the
applicant considers appropriate, of the environmental setting of the
project, including vegetative cover, fish and wildlife resources, water
quality and quantity, land and water uses, recreational uses, historical
and archeological resources, and scenic and aesthetic resources. The
report must include a discussion of endangered or threatened plant and
animal species, any critical habitats, and any sites included in, or
eligible for inclusion in, the National Register of Historic Places. The
applicant may obtain assistance in the preparation of this information
from state natural resources agencies, the state historic preservation
officer, and from local offices of Federal natural resources agencies.
(ii) A description of the expected environmental impacts from
proposed construction or development and the proposed operation of the
power project, including any impacts from any proposed changes in the
capacity and mode of operation of the project if it is already
generating electric power, and an explanation of the specific measures
proposed by the applicant, the agencies, and others to protect and
enhance environmental resources and values and to mitigate adverse
impacts of the project on such resources. The applicant must explain its
reasons for not undertaking any measures proposed by any agency
consulted.
(iii) A description of the steps taken by the applicant in
consulting with Federal, state, and local agencies with expertise in
environmental matters during the preparation of this exhibit prior to
filing the application for license with the Commission. In this report,
the applicant must:
(A) Indicate which agencies were consulted during the preparation of
the environmental report and provide copies of letters or other
documentation showing that the applicant consulted
[[Page 123]]
or attempted to consult with each of the relevant agencies (specifying
each agency) before filing the application, including any terms or
conditions of license that those agencies have determined are
appropriate to prevent loss of, or damage to, natural resources; and
(B) List those agencies that were provided copies of the application
as filed with the Commission, the date or dates provided, and copies of
any letters that may be received from agencies commenting on the
application.
(iv) Any additional information the applicant considers important.
(e) Exhibit F. See Sec. 4.41(g) of this chapter.
(f) Exhibit G. See Sec. 4.41(h) of this chapter.
[Order 185, 46 FR 55949, Nov. 13, 1981, as amended by Order 413, 50 FR
11685, Mar. 25, 1985; Order 464, 52 FR 5449, Feb. 23, 1987; Order 513,
54 FR 23806, June 2, 1989; Order 2002, 68 FR 51120, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003]
Subpart H_Application for License for Transmission Line Only
Sec. 4.70 Applicability.
This subpart applies to any application for license issued solely
for a transmission line that transmits power from a licensed water power
project to the point of junction with the distribution system or with
the interconnected primary transmission system.
[Order 184, 46 FR 55942, Nov. 13, 1981, as amended by Order 2002, 68 FR
51120, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]
Sec. 4.71 Contents of application.
An application for license for transmission line only must contain
the following information in the form specified.
(a) Initial statement.
Before the Federal Energy Regulation Commission
Application for License for Transmission Line Only
(1) [Name of applicant] applies to the Federal Energy Regulatory
Commission for a [license or new license, as appropriate] for the [name
of project] transmission line only, as described in the attached
exhibits, that is connected with FERC Project No. ___, for which a
license [was issued, or application was made, as appropriate] on the
_______ day of _______, 19__.
(2) The location of the transmission line would be:
State or territory:_____________________________________________________
County:_________________________________________________________________
Township or nearby town:________________________________________________
(3) The proposed use or market for the power to be transmitted.
(4) The exact name, business address, and telephone number of the
applicant are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(5) The applicant is a [citizen of the United States, association of
citizens of the United States, domestic corporation, municipality, or
State, as appropriate] and (is/is not) claiming preference under section
7(a) of the Federal Power Act. See 16 U.S.C. 796.
(6)(i) [For any applicant which, at the time of application for
license for transmission line only, is a non-licensee.] The statutory or
regulatory requirements of the state(s) in which the project would be
located and that affect the project as proposed with respect to bed and
banks and to the appropriation, diversion, and use of water for power
purposes, and with respect to the right to engage in the business of
developing, transmitting, and 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, 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
[[Page 124]]
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; Order 699, 72 FR 45324, Aug. 14, 2007]
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
[[Page 125]]
proposed, that would be part of the project;
(2) The estimated number, surface area, storage capacity, and normal
maximum surface elevation (mean sea level) of any reservoirs, whether
existing or proposed, that would be part of the project;
(3) The estimated number, length, voltage, interconnections, and,
where applicable, age and condition, of any primary transmission lines
whether existing or proposed, that would be part of the project [see 16
U.S.C. 796(11)];
(4) The total estimated average annual energy production and
installed capacity (provide only one energy and capacity value), the
hydraulic head for estimating capacity and energy output, and the
estimated number, rated capacity, and, where applicable, the age and
condition, of any turbines and generators, whether existing or proposed,
that would be part of the project works;
(5) All lands of the United States that are enclosed within the
proposed project boundary described under paragraph (d)(3)(i) of this
section, identified and tabulated on a separate sheet by legal
subdivisions of a public land survey of the affected area, if available.
If the project boundary includes lands of the United States, such lands
must be identified on a completed land description form (FERC Form 587),
provided by the Commission. The project location must identify any
Federal reservation, Federal tracts, and townships of the public land
surveys (or official protractions thereof if unsurveyed). A copy of the
form must also be sent to the Bureau of Land Management state office
where the project is located;
(6) Any other information demonstrating in what manner the proposed
project would develop, conserve, and utilize in the public interest the
water resources of the region.
(c) Exhibit 2 is a description of studies conducted or to be
conducted with respect to the proposed project, including field studies.
Exhibit 2 must supply the following information:
(1) General requirement. For any proposed project, a study plan
containing a description of:
(i) Any studies, investigations, tests, or surveys that are proposed
to be carried out, and any that have already taken place, for the
purposes of determining the technical, economic, and financial
feasibility of the proposed project, taking into consideration its
environmental impacts, and of preparing an application for a license for
the project; and
(ii) The approximate locations and nature of any new roads that
would be built for the purpose of conducting the studies; and
(2) Work plan for new dam construction. For any development within
the project that would entail new dam construction, a work plan and
schedule containing:
(i) A description, including the approximate location, of any field
study, test, or other activity that may alter or disturb lands or waters
in the vicinity of the proposed project, including floodplains and
wetlands; measures that would be taken to minimize any such disturbance;
and measures that would be taken to restore the altered or disturbed
areas; and
(ii) A proposed schedule (a chart or graph may be used), the total
duration of which does not exceed the proposed term of the permit,
showing the intervals at which the studies, investigations, tests, and
surveys, identified under this paragraph are proposed to be completed.
(iii) For purposes of this paragraph, new dam construction means any
dam construction the studies for which would require test pits, borings,
or other foundation exploration in the field.
(3) Waiver. The Commission may waive the requirements of paragraph
(c)(2) pursuant to Sec. 385.207 of this chapter, upon a showing by the
applicant that the field studies, tests, and other activities to be
conducted under the permit would not adversely affect cultural resources
or endangered species and would cause only minor alterations or
disturbances of lands and waters, and that any land altered or disturbed
would be adequately restored.
(4) Exhibit 2 must contain a statement of costs and financing,
specifying and including, to the extent possible:
(i) The estimated costs of carrying out or preparing the studies,
investigations, tests, surveys, maps, plans or
[[Page 126]]
specifications identified under paragraph (c) of this section;
(ii) The expected sources and extent of financing available to the
applicant to carry out or prepare the studies, investigations, tests,
surveys, maps, plans, or specifications identified under paragraph (c)
of this section; and
(d) Exhibit 3 must include a map or series of maps, to be prepared
on United States Geological Survey topographic quadrangle sheets or
similar topographic maps of a State agency, if available. The maps need
not conform to the precise specifications of Sec. 4.39 (a) and (b). If
the scale of any base map is not sufficient to show clearly and legibly
all of the information required by this paragraph, the maps submitted
must be enlarged to a scale that is adequate for that purpose. (If
Exhibit 3 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; Order 2002, 68 FR
51120, Aug. 25, 2003; Order 655, 70 FR 33828, June 10, 2005; Order 699,
72 FR 45324, Aug. 14, 2007; Order 756, 77 FR 4894, Feb. 1, 2012]
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 five 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), and (d).
(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 five years) until the Commission acts on the application for
an extension. The Commission will not accept extension
[[Page 127]]
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; Order 800, 79 FR 59110, Oct. 1, 2014]
Sec. 4.83 Cancellation and loss of priority.
(a) The Commission may cancel a preliminary permit after notice and
opportunity for hearing if the permittee fails to comply with the
specific terms and conditions of the permit. The Commission may also
cancel a permit for other good cause shown after notice and opportunity
for hearing. Cancellation of a permit will result in loss of the
permittee's priority of application for a license for the proposed
project.
(b) Failure of a permittee to file an acceptable application for a
license before the permit expires will result in loss of the permittee's
priority of application for a license for the proposed project.
[Order 413, 50 FR 11686, Mar. 25, 1985]
Sec. 4.84 Surrender of permit.
A permittee must submit a petition to the Commission before the
permittee may voluntarily surrender its permit. Unless the Commission
issues an order to the contrary, the permit will remain in effect
through the thirtieth day after the Commission issues a public notice of
receipt of the petition.
[Order 413, 50 FR 11686, Mar. 25, 1985]
Subpart J_Exemption of Small Conduit Hydroelectric Facilities
Sec. 4.90 Applicability and purpose.
This subpart implements section 30(b) 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)(30), 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 800, 79 FR 59110, Oct. 1, 2014]
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)(30), or if the facility qualifies but for the discharge
requirement of Sec. 4.30(b)(30)(iv), the introductory statement must
identify that fact and state that the application is accompanied by a
petition for waiver of Sec. 4.30(b)(30)(iv) filed pursuant to Sec.
385.207 of this chapter;
(2) Exhibits A, E, F, and G.
(3) If the project structures would use or occupy any lands other
than federal lands, 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)(30) of this
subpart'' or ``Sec. 4.30(b)(30) of this subpart, except paragraph
(b)(30)(iv)''], 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 are:
________________________________________________________________________
The exact name and business address of each person authorized to act as
agent for the applicant in this application are:
________________________________________________________________________
[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
[[Page 128]]
(specify the United States or the state of incorporation, 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)(30)(iv), add the following sentence: ``This application is
accompanied by a petition for waiver of Sec. 4.30(b)(30)(iv), submitted
pursuant to 18 CFR 385.207.'']
(c) Exhibit A. Exhibit A must describe the small conduit
hydroelectric facility and proposed mode of operation with appropriate
references to Exhibits F and G. To the extent feasible the information
in this exhibit may be submitted in tabular form. The following
information must be included:
(1) A brief description of any conduits and associated consumptive
water supply facilities, intake facilities, powerhouses, and any other
structures associated with the facility.
(2) The proximate natural sources of water that supply the related
conduit.
(3) The purposes for which the conduit is used.
(4) The number of generating units, including auxiliary units, the
capacity of each unit, and provisions, if any, for future units.
(5) The type of each hydraulic turbine.
(6) A description of how the plant is to be operated, manually or
automatically, and whether the plant is to be used for peaking.
(7) Estimations of:
(i) The average annual generation in kilowatt hours;
(ii) The average head of the plant;
(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)(30)(iv) 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 of the dam would occur for agricultural,
municipal, or industrial consumptive purposes even if hydroelectric
generating facilities were not installed.
(d) Exhibit G. Exhibit G is a map of the project and boundary and
must conform to the specifications of Sec. 4.41(h) of this chapter.
(e) Exhibit E. This exhibit is an Environmental Report. It must be
prepared pursuant to Sec. 4.38 and must include the following
information, commensurate with the scope and environmental impact of the
facility's construction and operation:
(1) A description of the environmental setting in the vicinity of
the facility, including vegetative cover, fish and wildlife resources,
water quality and quantity, land and water uses, recreational use,
socio-economic conditions, historical and archeological resources, and
visual resources. The report must give special attention to endangered
or threatened plant and animal species, critical habitats, and sites
eligible for or included on the National Register of Historic Places.
The applicant may obtain assistance in the preparation of this
information from State natural resources agencies, the State historic
preservation officer, and from local offices of Federal natural
resources agencies.
[[Page 129]]
(2) A description of the expected environmental impacts resulting
from the continued operation of an existing small conduit hydroelectric
facility, or from the construction and operation of a proposed small
conduit hydroelectric facility, including a discussion of the specific
measures proposed by the applicant and others to protect and enhance
environmental resources and to mitigate adverse impacts of the facility
on them.
(3) A description of alternative means of obtaining an amount of
power equivalent to that provided by the proposed or existing facility.
(4) Any additional information the applicant considers important.
(f) Exhibit F. Exhibit F is a set of drawings showing the structures
and equipment of the small conduit hydroelectric facility and must
conform to the specifications of Sec. 4.41(g) of this chapter.
[Order 76, 45 FR 28090, Apr. 28, 1980, as amended by Order 413, 50 FR
11686, Mar. 25, 1985; Order 533, 56 FR 23153, May 20, 1991; Order 2002,
68 FR 51121, Aug. 25, 2003; Order 699, 72 FR 45324, Aug. 14, 2007; Order
800, 79 FR 59110, Oct. 1, 2014]
Sec. 4.93 Action on exemption applications.
(a) An application for exemption that does not meet the eligibility
requirements of Sec. 4.30(b)(30)(iv) 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; Order 2002,
68 FR 51121, Aug. 25, 2003; Order 800, 79 FR 59110, Oct. 1, 2014]
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
[[Page 130]]
under section 4(g) of the Federal Power Act, or take appropriate action
for enforcement, forfeiture, or penalties under Part III of the Federal
Power Act.
(b) Article 2. The construction, operation, and maintenance of the
exempt project must comply with any terms and conditions that the United
States Fish and Wildlife Service, the National Marine Fisheries Service,
and any state fish and wildlife agencies have determined are appropriate
to prevent loss of, or damage to, fish or wildlife resources or
otherwise to carry out the purposes of the Fish and Wildlife
Coordination Act, as specified in exhibit E of the application for
exemption from licensing or in the comments submitted in response to the
notice of exemption application.
(c) Article 3. The Commission may revoke this exemption if actual
construction of any proposed generating facilities has not begun within
two years or has not been completed within four years from the effective
date of this exemption. If an exemption is revoked under this article,
the Commission will not accept from the prior exemption holder a
subsequent application for exemption from licensing or a notice of
exemption from licensing for the same project within two years of the
revocation.
(d) Article 4. 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.
(e) Article 5. 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.
(f) Article 6. 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.
(g) Article 7. 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; Order
800, 79 FR 59110, Oct. 1, 2014]
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
[[Page 131]]
be determined by the Commission and the Federal and state fish and
wildlife agencies.
(e) Where occupancy of federal 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
federal lands or reservations.
[Order 413, 50 FR 11687, Mar. 25, 1985, as amended by Order 800, 79 FR
59111, Oct. 1, 2014]
Sec. 4.96 Amendment of exemption.
(a) An exemption holder must construct and operate its project as
described in the exemption application approved by the Commission or its
delegate.
(b) If an exemption holder desires to change the design, location,
method of construction or operation of its project, it must first notify
the appropriate Federal and state fish and wildlife agencies and inform
them in writing of the changes it intends to implement. If these
agencies determine that the changes would not cause the project to
violate the terms and conditions imposed by the agencies, and if the
changes would not materially alter the design, location, method of
construction or operation of the project, the exemption holder may
implement the changes. If any of these agencies determines that the
changes would cause the project to violate the terms and conditions
imposed by the agencies, or if the changes would materially alter the
design, location, method of construction or the operation of the project
works, the exemption holder may not implement the changes without first
acquiring authorization from the Commission to amend its exemption, or
acquiring a license that authorizes the project, as changed.
(c) An application to amend an exemption may be filed only by the
holder of the exemption. An application to amend an exemption will be
governed by the Commission's regulations governing applications for
exemption. The Commission will not accept applications in competition
with an application to amend an exemption, unless the Director of the
Office of Energy Projects determines that it is in the public interest
to do so.
[Order 413, 50 FR 11687, Mar. 25, 1985, as amended by Order 699, 72 FR
45324, Aug. 14, 2007]
Subpart K_Exemption of Small Hydroelectric Power Projects of 10
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)(31).
(Energy Security Act of 1980, Pub. L. 96-294, 94 Stat. 611; Federal
Power Act, as amended (16 U.S.C. 792-828c); Public Utility Regulatory
Policies Act of 1978 (16 U.S.C. 2601-2645); and the Department of Energy
Organization Act (42 U.S.C. 7101-7352); E.O. 12009, 3 CFR 142 (1978))
[Order 202, 47 FR 4243, Jan. 29, 1982, as amended by Order 413, 50 FR
11687, Mar. 25, 1985; Order 482, 52 FR 39630, Oct. 23, 1987; Order 2002,
68 FR 51121, Aug. 25, 2003; Order 800, 79 FR 59111, Oct. 1, 2014]
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
[[Page 132]]
notice of receipt of the petition. New applications involving the site
may be filed on the next business day.
(d) Exemptions may be surrendered only upon fulfillment by the
exemption holder of such obligations under the exemption as the
Commission may prescribe and, if construction has begun, upon such
conditions with respect to the disposition of such project works and
restoration of project lands as may be determined by the Commission and
the Federal and state fish and wildlife agencies.
(e) Where occupancy of federal 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, as amended by Order 800, 79 FR
59111, Oct. 1, 2014]
Sec. 4.103 General provisions for case-specific exemption.
(a) Exemptible projects. Subject to the provisions in paragraph (b)
of this section, Sec. 4.31(c), and Sec. Sec. 4.105 and 4.106, the
Commission may exempt on a case-specific basis any small hydroelectric
power project from all or part of Part I of the Act, including licensing
requirements. Any applications for exemption for a project shall conform
to the requirements of Sec. Sec. 4.107 or 4.108, as applicable.
(b) Limitation for licensed water power project. The Commission will
not accept for filing an application for exemption from licensing for
any project that is only part of a licensed water power project.
(c) Waiver. In applying for case-specific exemption from licensing,
a qualified exemption applicant may petition under Sec. 385.207 of this
chapter for waiver of any specific provision of Sec. Sec. 4.102 through
4.107. The Commission will grant a waiver only if consistent with
section 408 of the Energy Security Act of 1980.
[Order 413, 50 FR 11688, Mar. 25, 1985, as amended by Order 503, 53 FR
36568, Sept. 21, 1988]
Sec. 4.104 Amendment of exemption.
(a) An exemption holder must construct and operate its project as
described in the exemption application approved by the Commission or its
delegate.
(b) If an exemption holder desires to change the design, location,
method of 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 Energy Projects determines that it is in the public interest
to do so.
[Order 413, 50 FR 11688, Mar. 25, 1985, as amended by Order 699, 72 FR
45324, Aug. 14, 2007]
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
[[Page 133]]
as part of the related application for license or amendment of license.
(b)(1) Consultation. The Commission will circulate a notice of
application for exemption from licensing to interested agencies and
Indian tribes at the time the applicant is notified that the application
is accepted for filing.
(2) Non-standard terms and conditions. In approving any application
for exemption from licensing, the Commission may prescribe terms or
conditions in addition to those set forth in Sec. 4.106 in order to:
(i) Protect the quality or quantity of the related water supply;
(ii) Otherwise protect life, health, or property;
(iii) Avoid or mitigate adverse environmental impact; or
(iv) Better conserve, develop, or utilize in the public interest the
water resources of the region.
(Energy Security Act of 1980, Pub. L. 96-294, 94 Stat. 611; Federal
Power Act, as amended (16 U.S.C. 792-828c); Public Utility Regulatory
Policies Act of 1978 (16 U.S.C. 2601-2645); and the Department of Energy
Organization Act (42 U.S.C. 7101-7352); E.O. 12009, 3 CFR 142 (1978))
[Order 106, 45 FR 76123, Nov. 18, 1980, as amended by Order 202, 47 FR
4246, Jan. 29, 1982; Order 413, 50 FR 11688, Mar. 25, 1985; Order 533,
56 FR 23154, May 20, 1991]
Sec. 4.106 Standard terms and conditions of case-specific exemption
from licensing.
Any case-specific exemption from licensing granted for a small
hydroelectric power project is subject to the following standard terms
and conditions:
(a) Article 1. The Commission reserves the right to conduct
investigations under sections 4(g), 306, 307, and 311 of the Federal
Power Act with respect to any acts, complaints, facts, conditions,
practices, or other matters related to the construction, operation, or
maintenance of the exempt project. If any term or condition of the
exemption is violated, the Commission may revoke the exemption, issue a
suitable order under section 4(g) of the Federal Power Act, or take
appropriate action for enforcement, forfeiture, or penalties under Part
III of the Federal Power Act.
(b) Article 2. The construction, operation, and maintenance of the
exempt project must comply with any terms and conditions that the United
States Fish and Wildlife Service, the National Marine Fisheries Service,
and any state fish and wildlife agencies have determined are appropriate
to prevent loss of, or damage to, fish or wildlife resources or
otherwise to carry out the 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.
[[Page 134]]
(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 part 12 of the Commission's
regulations, part 12 of this title (as they may be amended from time to
time).
(i) Article 9. 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; Order 756, 77 FR 4894, Feb. 1, 2012; Order 800, 79
FR 59111, Oct. 1, 2014]
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, 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 10
megawatts or less, from licensing under the Federal Power Act. [If
applicable: The project is currently licensed as FERC Project No. ____.]
(2) The location of the project is:
[State or territory]____________________________________________________
________________________________________________________________________
[County]________________________________________________________________
[Township or nearby town]_______________________________________________
________________________________________________________________________
[Stream or body of water]_______________________________________________
________________________________________________________________________
(3) The exact name and business address of each applicant are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(4) The exact name and business address of each person authorized to
act as agent for the applicant in this application are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(5) [Name of applicant] is [specify, as appropriate: a citizen of
the United States or other identified nation; an association of citizens
of the United States or other identified nation; a municipality; a
state; or a corporation incorporated under the laws of (specify the
United States or the state or nation of incorporation, as appropriate).]
(c) Exhibit A. Exhibit A must describe the small hydroelectric power
project and its proposed mode of operation. To the extent feasible, the
information in this exhibit may be submitted in tabular form. The
applicant must submit the following information:
(1) A brief description of any existing dam and impoundment proposed
to be utilized by the small hydroelectric power project and any other
existing or proposed project works and appurtenant facilities, including
intake facilities, diversion structures, powerhouses, primary
transmission lines, penstocks, pipelines, spillways, and other
structures, and the sizes, capacities, and construction materials of
those structures.
(2) The number of existing and proposed generating units at the
project, including auxiliary units, the capacity
[[Page 135]]
of each unit, any provisions for future units, and a brief description
of any plans for retirement or rehabilitation of existing generating
units.
(3) The type of each hydraulic turbine of the small hydroelectric
power project.
(4) A description of how the power plant is to be operated, that is,
run-of-river or peaking.
(5) A graph showing a flow duration curve for the project. Identify
stream gauge(s) and period of record used. If a synthetic record is
utilized, provide details concerning its derivation. Furnish
justification for selection of installed capacity if the hydraulic
capacity of proposed generating unit(s) plus the minimum flow
requirements, if not usable for power production, is less than the
stream flow that is exceeded 25 percent of the time.
(6) Estimations of:
(i) The average annual generation in kilowatt-hours;
(ii) The average and design head of the power plant;
(iii) The hydraulic capacity of each turbine of the power plant
(flow through the plant) in cubic feet per second;
(iv) The number of surface acres of the man-made or natural
impoundment used, if any, at its normal maximum surface elevation and
its net and gross storage capacities in acre-feet.
(7) The planned date for beginning and completing the proposed
construction or development of generating facilities.
(8) A description of the nature and extent of any repair,
reconstruction, or other modification of a dam that would occur in
association with construction or development of the proposed small
hydroelectric power project, including a statement of the normal maximum
surface area and normal maximum surface elevation of any existing
impoundment before and after construction.
(d) Exhibit G. Exhibit G is a map of the project and boundary and
must conform to the specifications of Sec. 4.41(h) of this chapter.
(e) Exhibit E. This exhibit is an environmental report that must
include the following information, commensurate with the scope and
environmental impact of the construction and operation of the small
hydroelectric power project. See Sec. 4.38 for consultation
requirements.
(1) A description of the environmental setting of the project,
including vegetative cover, fish and wildlife resources, water quality
and quantity, land and water uses, recreational uses, historical and
archeological resources, and scenic and aesthetic resources. The report
must list any endangered or threatened plant and animal species, any
critical habitats, and any sites eligible for or included on the
National Register of Historic Places. The applicant may obtain
assistance in the preparation of this information from state natural
resources agencies, the state historic preservation officer, and from
local offices of Federal natural resources agencies.
(2) A description of the expected environmental impacts from the
proposed construction or development and the proposed operation of the
small hydroelectric power project, including any impacts from any
proposed changes in the capacity and mode of operation of the project if
it is already generating electric power, and an explanation of the
specific measures proposed by the applicant, the agencies consulted, and
others to protect and enhance environmental resources and values and to
mitigate adverse impacts of the project on such resources.
(3) Any additional information the applicant considers important.
(f) Exhibit F. Exhibit F is a set of drawings showing the structures
and equipment of the small hydroelectric facility and must conform to
the specifications of Sec. 4.41(g) of this chapter.
[Order 106, 45 FR 76123, Nov. 18, 1980, as amended by Order 225, 47 FR
19056, May 3, 1982; Order 413, 50 FR 11689, Mar. 25, 1985; Order 494, 53
FR 15381, Apr. 29, 1988; Order 533, 56 FR 23154, May 20, 1991; Order
2002, 68 FR 51121, Aug. 25, 2003; Order 699, 72 FR 45324, Aug. 14, 2007;
Order 800, 79 FR 59111, Oct. 1, 2014]
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
[[Page 136]]
not be prepared according to any specific format, but must be included
as an identified appendix to the related application for license or
amendment of license. The application for exemption must list all
sections or subsections of Part I of the Act for which exemption is
requested.
[Order 106, 45 FR 76123, Nov. 18, 1980]
Subpart L_Application for Amendment of License
Sec. 4.200 Applicability.
This part applies to any application for amendment of a license, if
the applicant seeks to:
(a) Make a change in the physical features of the project or its
boundary, or make an addition, betterment, abandonment, or conversion,
of such character as to constitute an alteration of the license;
(b) Make a change in the plans for the project under license; or
(c) Extend the time fixed in the license for commencement or
completion of project works.
[Order 184, 46 FR 55943, Nov. 13, 1981, as amended by Order 2002, 68 FR
51121, Aug. 25, 2003]
Sec. 4.201 Contents of application.
An application for amendment of a license for a water power project
must contain the following information in the form specified.
(a) Initial statement.
Before the Federal Energy Regulatory Commission
Application for Amendment of License
(1) [Name of applicant] applies to the Federal Energy Regulatory
Commission for an amendment of license for the [name of project] water
power project.
(2) The exact name, business address, and telephone number of the
applicant are:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(3) The applicant is a [citizen of the United States, association of
citizens of the United States, domestic corporation, municipality, or
state, as appropriate, see 16 U.S.C. 796], licensee for the water power
project, designated as Project No. ___ in the records of the Federal
Energy Regulatory Commission, issued on the ______ day of _______, 19__.
(4) The amendments of license proposed and the reason(s) why the
proposed changes are necessary, are: [Give a statement or description]
(5)(i) The statutory or regulatory requirements of the state(s) in
which the project would be located that affect the project as proposed
with respect to bed and banks and to the appropriation, diversion, and
use of water for power purposes are: [provide citation and brief
identification of the nature of each requirement.]
(ii) The steps which the applicant has taken or plans to take to
comply with each of the laws cited above are: [provide brief description
for each law.]
(b) Required exhibits for capacity related amendments. Any
application to amend a license for a hydropower project that involves
additional capacity not previously authorized, and that would increase
the actual or proposed total installed capacity of the project, would
result in an increase in the maximum hydraulic capacity of the project
of 15 percent or more, and would result in an increase in the installed
name-plate capacity of 2 megawatts or more, must contain the following
exhibits, or revisions or additions to any exhibits on file,
commensurate with the scope of the licensed project:
(1) For amendment of a license for a water power project that, at
the time the application is filed, is not constructed and is proposed to
have a total installed generating capacity of more than 5 MW--Exhibits
A, B, C, D, E, F, and G under Sec. 4.41 of this chapter;
(2) For amendment of a license for a water power project that, at
the time the application is filed, is not constructed and is proposed to
have a total installed generating capacity of 1.5 MW or less--Exhibits
E, F, and G under Sec. 4.61 of this chapter;
(3) For amendment of a license for a water power project that, at
the time the application is filed, is not constructed and is proposed to
have a total installed generating capacity of 5 MW or less, but more
than 1.5 MW--Exhibits F and G under Sec. 4.61 of this chapter, and
Exhibit E under Sec. 4.41 of this chapter;
(4) For amendment of a license for a water power project that, at
the time the application for amendment is filed, has been constructed,
and is proposed
[[Page 137]]
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
amendment 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 of this chapter, after consultation with
the Commission's Division of Hydropower Compliance and Administration.
(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; Order 756, 77 FR 4894, Feb. 1, 2012]
Sec. 4.202 Alteration and extension of license.
(a) If it is determined that approval of the application for
amendment of license would constitute a significant alteration of
license pursuant to section 6 of the Act, 16 U.S.C. 799, public notice
of such application shall be given at least 30 days prior to action upon
the application.
(b) Any application for extension of time fixed in the license for
commencement or completion of construction of project works must be
filed with the Commission not less than three months prior to the date
or dates so fixed.
[Order 184, 46 FR 55943, Nov. 13, 1981]
Subpart M_Fees Under Section 30(e) of the Act
Source: Order 487, 52 FR 48404, Dec. 22, 1987, unless otherwise
noted.
Sec. 4.300 Purpose, definitions, and applicability.
(a) Purpose. This subpart implements the amendments of section 30 of
the Federal Power Act enacted by section 7(c) of the Electric Consumers
Protection Act of 1986 (ECPA). It establishes procedures for reimbursing
fish and wildlife agencies for costs incurred in connection with
applications for an exemption from licensing and applications for
licenses seeking benefits under section 210 of the Public Utility
Regulatory Policies Act of 1978, as amended, for a project that would
impound or divert the water of a natural watercourse by means of a new
dam or diversion.
(b) Definitions. For the purposes of this subpart--
(1) Cost means an expenditure made by a fish and wildlife agency:
(i) On or after the effective date of this regulation for an
application filed on or after the effective date of this regulation; and
(ii) Directly related to setting mandatory terms and conditions for
a proposed project pursuant to section 30(c) of the Federal Power Act.
(2) Cost statement means a statement of the total costs for which a
fish and wildlife agency requests reimbursement including an itemized
schedule of costs including, but not limited to, costs of fieldwork and
testing, contract costs, travel costs, personnel costs, and
administrative and overhead costs.
(3) Mandatory terms and conditions means terms and conditions of a
license or exemption that a fish and wildlife agency determines are
appropriate to prevent loss of, or damage to, fish and wildlife
resources pursuant to section 30(c) of the Federal Power Act.
[[Page 138]]
(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(c)(5), a fish and wildlife agency must provide a prospective
section 30(c) applicant with a reasonable estimate of the total costs
the agency anticipates it will incur to set mandatory terms and
conditions for the proposed project. An agency may provide an applicant
with an updated estimate as it deems necessary. If an agency believes
that its most recent estimate will be exceeded by more than 25 percent,
it must supply the prospective applicant or applicant with a new
estimate and submit a copy to the Commission.
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 756, 77 FR
4894, Feb. 1, 2012]
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
[[Page 139]]
fish and wildlife agencies pursuant to Sec. 4.301(b). In lieu of this
amount, an applicant may provide an unlimited term surety bond from a
company on the Department of Treasury's list of companies certified to
write surety bonds. Applicants bonded by a company whose certification
by the Department of the Treasury lapses must provide evidence of
purchase of another bond from a certified company. A bond must be for an
amount no less than 100 percent of the agencies' most recent cost
estimates pursuant to Sec. 4.301(b).
(c) Failure to file. The Commission will reject a section 30(c)
application if the applicant fails to comply with the provisions of
paragraphs (a) and (b) of this section.
Sec. 4.303 Post-filing procedures.
(a) Submission of cost statement--1) Accepted applications. Within
60 days after the last date for filing mandatory terms and conditions
pursuant to Sec. 4.32(c)(4) for a new dam or diversion license
application seeking PURPA benefits, Sec. 4.93(b) for an application for
exemption of a small conduit hydroelectric facility, or Sec.
4.105(b)(1) for an application for case-specific exemption of a small
hydroelectric power project, a fish and wildlife agency must file with
the Commission a cost statement of the reasonable costs the agency
incurred in setting mandatory terms and conditions for the proposed
project. An agency may request, in writing, along with any supporting
documentation an extension of this 60-day period.
(2) Rejected, withdrawn or dismissed applications. The Director of
the Office of Energy Projects (Director) will, by letter, notify each
fish and wildlife agency if a section 30(c) application is rejected,
withdrawn or dismissed. Within 60 days from the date of notification, a
fish and wildlife agency must file with the Commission a cost statement
of the reasonable costs the agency incurred prior to the date the
application was rejected, withdrawn, or dismissed. An agency may submit
a written request for an extension of this 60-day period along with any
supporting documentation.
(b) If an agency has not submitted a cost statement or extension
request within the time provided in paragraph (a)(2) of this section, it
waives its right to receive fees for that project pursuant to this
subpart.
(c) Billing. After the Commission receives a cost statement from all
fish and wildlife agencies as required by paragraph (a) of this section,
the Commission will bill the section 30(c) applicant. The bill will
show:
(1) The cost statement submitted to the Commission by each fish and
wildlife agency;
(2) Any amounts already paid by the applicant pursuant to Sec.
4.302; and
(3)(i) The amount due, if the amount already paid by the applicant
pursuant to Sec. 4.302 is less than the total of all the cost
statements; or
(ii) The amount to be refunded to the applicant, if the amount
already paid by the applicant pursuant to Sec. 4.302 is more than the
total of all the cost statements.
(d) Within 45 days from the date of a bill issued under paragraph
(b) of this section, a section 30(c) applicant must pay in full to the
Commission any remaining amounts due on the cost statements regardless
of whether any of these amounts are in dispute.
(e) Dispute procedures--(1) When to dispute. Any dispute regarding
the reasonableness of any fish and wildlife agency cost statement must
be made within 45 days from the date of a bill issued under paragraph
(b) of this section.
(2) Assessment of disputed cost statements The burden of showing
that an agency's cost statement is unreasonable is on the applicant.
However, a fish and wildlife agency must supply the disputing applicant
and the Commission with the documentation necessary to support its cost
statement. The Director of the Office of Energy Projects will determine
the reasonableness of a disputed fish and wildlife agency cost
statement. The Director's decision will be in writing. The Director will
notify the disputing applicant and the fish and wildlife agency of the
decision by letter. Any decision of the Director may be appealed by
either party pursuant to 18 CFR 385.1902. In deciding whether or not a
disputed cost statement is reasonable, the Director will review the
application, the disputed cost statement and any other
[[Page 140]]
documentation relating to the particular environmental problems
associated with the disputing applicant's proposed project. The Director
will consider such factors as:
(i) The time the fish and wildlife agency spent reviewing the
application;
(ii) The proportion of the cost statement to the time the fish and
wildlife agency spent reviewing the application;
(iii) Whether the fish and wildlife agency's expenditures conform to
Federal expenditure guidelines for such items as travel, per diem,
personnel, and contracting; and
(iv) Whether the studies conducted by the agency, if any, are
duplicative, limited to the proposed project area, unnecessary to
determine the impacts to or mitigation measures for the particular fish
and wildlife resources affected by the proposed project, or otherwise
unnecessary to set terms and conditions for the proposed project.
(3) Unreasonable cost statements. If the Director determines that a
disputed fish and wildlife agency cost statement is unreasonable, the
disputing applicant and the fish and wildlife agency will be afforded 45
days from the date of notification to attempt to reach an agreement
regarding the reimbursable costs of the agency. If the disputing
applicant and the fish and wildlife agency fail to reach an agreement on
the disputed cost statement within 45 days from the date of
notification, the Director will determine the costs that the agency
should reasonably have incurred.
(f) Refunds. (1) If the amount paid by a section 30(c) applicant
under Sec. 4.302 exceeds the total amount of the cost statements
submitted by fish and wildlife agencies under paragraph (a) of this
section, the Commission will notify the Treasury to refund the
difference to the applicant within 45 days from the date of the bill
issued to the applicant under paragraph (b) of this section.
(2) If the amount paid by a section 30(c) applicant exceeds the
amount determined to be reasonable by the Director pursuant to paragraph
(d)(2) of this section, the Commission will notify the Treasury to
refund the difference to the applicant within 45 days of the resolution
of all dispute proceedings.
[Order 487, 52 FR 48404, Dec. 22, 1987, as amended by Order 647, 69 FR
32438, June 10, 2004]
Sec. 4.304 Payment.
(a) A payment required under this subpart must be made by check
payable to the United States Treasury. The check must indicate that the
payment is for ECPA Fees.
(b) If a payment required under this subpart is not made within the
time period prescribed for making such payment, interest and penalty
charges will be assessed. Interest and penalty charges will be computed
in accordance with 31 U.S.C. 3717 and 4 CFR part 102.
(c) The Commission will not issue a license or exemption, unless the
applicant has made full payments of any fees due under Sec. 4.303(c).
Sec. 4.305 Enforcement.
(a) The Commission may take any appropriate action permitted by law
if a section 30(c) applicant does not make a payment required under this
subpart. The Commission will not be liable to any fish and wildlife
agency for failure to collect any amounts under this subpart.
(b) If the Commission is unable to collect the full amount due by a
section 30(c) applicant on behalf of more than one agency, the amount
the Commission does collect will be distributed to the agencies on a
pro-rata basis except if an agency's cost statement is greater than its
most recent estimate to the applicant under Sec. 4.301(b), then the
difference between the estimate and the cost statement will not be
reimbursed until any amounts owed to other agencies have been paid.
Subpart N_Notice of Intent To Construct Qualifying Conduit Hydropower
Facilities
Source: Order 800, 79 FR 59111, Oct. 1, 2014, unless otherwise
noted.
Sec. 4.400 Applicability and purpose.
This part implements section 30(a) of the Federal Power Act, as
amended by the Hydropower Regulatory Efficiency
[[Page 141]]
Act of 2013, and provides procedures for obtaining a determination from
the Commission that the facility to be constructed is a qualifying
conduit hydropower facility, as defined in Sec. 4.30(b)(26), and thus,
is not required to be licensed under Part I of the FPA.
Sec. 4.401 Contents of notice of intent to construct a qualifying
conduit hydropower facility.
(a) A notice of intent to construct a qualifying conduit hydropower
facility submitted under this subpart must contain the following:
(1) An introductory statement as described in paragraph (b) of this
section;
(2) A statement that the proposed project will use the hydroelectric
potential of a non-federally owned conduit as set forth in paragraph (c)
of this section;
(3) A statement that the proposed facility has not been licensed or
exempted from the licensing requirements of Part I of the FPA, on or
before August 9, 2013, the date of enactment of the Hydropower
Regulatory Efficiency Act, as set forth in in paragraph (d) of this
section;
(4) A description of the proposed facility as set forth in paragraph
(e) of this section;
(5) Project drawings as set forth in paragraph (f) of this section;
(6) If applicable, the preliminary permit project number for the
proposed facility; and,
(7) Verification as set forth in paragraph (g) of this section.
(b) Introductory statement. The introductory statement must be set
forth in the following format:
BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
NOTICE OF INTENT TO CONSTRUCT QUALIFYING CONDUIT HYDROPOWER FACILITY
[Name of applicant] applies to the Federal Energy Regulatory
Commission for a determination that the [facility name] is a qualifying
conduit hydropower facility, meeting the requirements of section 30(a)
of the Federal Power Act, as amended by section 4 of the Hydropower
Regulatory Efficiency Act of 2013.
The location of the facility is:
State or Territory:_____________________________________________________
County:_________________________________________________________________
Township or nearby town:________________________________________________
Water source:___________________________________________________________
The exact name and business address of the applicant(s) are:
Applicant's Name:_______________________________________________________
Address:________________________________________________________________
Telephone Number:_______________________________________________________
Email Address:__________________________________________________________
The exact name and business address of each person authorized to act
as an agent for the applicant(s) in this notice of intent are:
Name of Agent:__________________________________________________________
Address:________________________________________________________________
Telephone Number:_______________________________________________________
Email Address:__________________________________________________________
[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].
(c) Non-Federal Conduit Statement. The non-federal conduit statement
must be set forth in the following format:
The [facility name] will use the hydroelectric potential of a non-
federally owned conduit.
(d) Original facility statement. The original facility statement
must be set forth in the following format:
The [facility name] has not been licensed or exempted from the
licensing requirements of Part I of the FPA, on or before August 9,
2013, the date of enactment of the Hydropower Regulatory Efficiency Act.
(e) Description of proposed facility. Description of proposed
facility must include:
(1) A detailed description of any conduits and associated
consumptive water supply facilities, intake facilities, powerhouses, and
any other structures associated with the facility;
(2) The purposes for which the conduit is used;
(3) The number, type, generating capacity (kW or MW), and estimated
average annual generation (kWh or MWh) of the generating units and brief
description of any plans for future units; and,
(4) A description of the nature and extent of the dam that would
occur in association with construction of the
[[Page 142]]
proposed qualifying 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 of the dam would
occur for agricultural, municipal, or industrial consumptive purposes
even if the hydropower generating facilities were not installed.
(f) Drawings, maps, diagrams. Include a set of drawings/maps/
diagrams showing the structures and equipment of the hydropower facility
in relation to the existing conduit. Drawings of the facility must
include:
(1) A Plan View (overhead view) drawing of the proposed hydropower
facilities, which includes the following:
(i) The hydropower facilities, including all intake and discharge
pipes, and how those pipes connect to the conduit;
(ii) The portion of the conduit in proximity to the facilities on
which the hydropower facilities will be located;
(iii) The dimensions (e.g., length, width, diameter) of all
facilities, intakes, discharges, and conduits;
(iv) Identification of facilities as either existing or proposed;
(v) The flow direction labelled on all intakes, discharges, and
conduits; and,
(2) A Location Map showing the facilities and their relationship to
the nearest town, which includes the following:
(i) The powerhouse location labeled, and its latitude and longitude
identified; and,
(ii) The nearest town, if possible, or other permanent monuments or
objects, such as roads or other structures that can be easily noted on
the map and identified in the field.
(3) If a dam would be constructed in association with the facility,
a profile drawing showing the conduit, and not the dam, creates the
hydroelectric potential.
(g) Verification. Provide verification using either a sworn,
notarized statement set forth in paragraph (g)(1) of this section or an
unsworn statement set forth in paragraph (g)(2) of this section.
(1) As to any facts alleged in the notice of intent to construct or
other materials filed, be subscribed and verified under oath in the form
set forth below by the person filing, an officer thereof, or other
person having knowledge of the matters set forth. If the subscription
and verification is by anyone other than the person filing or an officer
thereof, it shall include a statement of the reasons therefor.
This (notice of intent to construct, 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 (notice
of intent to construct, etc.) are true to the best of (his or her)
knowledge or belief. The undersigned applicant(s) has (have) signed the
(notice of intent to construct, etc.) this _____day of ______, 20__.
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 ______, 20__.
/SEAL/[if any]
________________________________________________________________________
(Notary Public, or other authorized official)
(2) I declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct. Executed on
______[date].
________________________________________________________________________
(Signature)
PART 5_INTEGRATED LICENSE APPLICATION PROCESS--Table of Contents
Sec.
5.1 Applicability, definitions, and requirement to consult.
5.2 Document availability
5.3 Process selection.
5.4 Acceleration of a license expiration date.
5.5 Notification of intent.
5.6 Pre-application document.
5.7 Tribal consultation.
5.8 Notice of commencement of proceeding and scoping document, or of
approval to use traditional licensing process or alternative
procedures.
5.9 Comments and information or study requests.
[[Page 143]]
5.10 Scoping document 2.
5.11 Potential Applicant's proposed study plan and study plan meetings.
5.12 Comments on proposed study plan.
5.13 Revised study plan and study plan determination.
5.14 Formal study dispute resolution process.
5.15 Conduct of studies.
5.16 Preliminary licensing proposal.
5.17 Filing of application.
5.18 Application content.
5.19 Tendering notice and schedule.
5.20 Deficient applications.
5.21 Additional information.
5.22 Notice of acceptance and ready for environmental analysis.
5.23 Response to notice.
5.24 Applications not requiring a draft NEPA document.
5.25 Applications requiring a draft NEPA document.
5.26 Section 10(j) process.
5.27 Amendment of application.
5.28 Competing applications.
5.29 Other provisions.
5.30 Critical Energy Infrastructure Information.
5.31 Transition provision.
Authority: 16 U.S.C. 792-828c, 2601-2645; 42 U.S.C. 7101-7352.
Source: Order 2002, 68 FR 51121, Aug. 25, 2003, unless otherwise
noted.
Sec. 5.1 Applicability, definitions, and requirement to consult.
(a) This part applies to the filing and processing of an application
for an:
(1) Original license;
(2) New license for an existing project subject to Sections 14 and
15 of the Federal Power Act; or
(3) Subsequent license.
(b) Definitions. The definitions in Sec. 4.30(b) of this chapter
and Sec. 16.2 of this chapter apply to this chapter.
(c) Who may file. Any citizen, association of citizens, domestic
corporation, municipality, or state may develop and file a license
application under this part.
(d) Requirement to consult. (1) Before it files any application for
an original, new, or subsequent license under this part, a potential
applicant must consult with the relevant Federal, state, and interstate
resource agencies, including as appropriate the National Marine
Fisheries Service, the United States Fish and Wildlife Service, Bureau
of Indian Affairs, the National Park Service, the United States
Environmental Protection Agency, the Federal agency administering any
United States lands utilized or occupied by the project, the appropriate
state fish and wildlife agencies, the appropriate state water resource
management agencies, the certifying agency or Indian tribe under Section
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act),
33 U.S.C. 1341(c)(1)), the agency that administers the Coastal Zone
Management Act, 16 U.S.C. Sec. 1451-1465, any Indian tribe that may be
affected by the project, and members of the public. A potential license
applicant must file a notification of intent to file a license
application pursuant to Sec. 5.5 and a pre-application document
pursuant to the provisions of Sec. 5.6.
(2) The Director of the Office of Energy Projects will, upon
request, provide a list of known appropriate Federal, state, and
interstate resource agencies, Indian tribes, and local, regional, or
national non-governmental organizations likely to be interested in any
license application proceeding.
(e) Purpose. The purpose of the integrated licensing process
provided for in this part is to provide an efficient and timely
licensing process that continues to ensure appropriate resource
protections through better coordination of the Commission's processes
with those of Federal and state agencies and Indian tribes that have
authority to condition Commission licenses.
(f) Default process. Each potential original, new, or subsequent
license applicant must use the license application process provided for
in this part unless the potential applicant applies for and receives
authorization from the Commission under this part to use the licensing
process provided for in:
(1) 18 CFR part 4, Subparts D-H and, as applicable, part 16 (i.e.,
traditional process), pursuant to paragraph (c) of this section; or
(2) Section 4.34(i) of this chapter, Alternative procedures.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68
FR 69957, Dec. 16, 2003]
Sec. 5.2 Document availability.
(a) Pre-application document. (1) From the date a potential license
applicant files a notification of intent to seek a
[[Page 144]]
license pursuant to Sec. 5.5 until any related license application
proceeding is terminated by the Commission, the potential license
applicant must make reasonably available to the public for inspection at
its principal place of business or another location that is more
accessible to the public, the pre-application document and any materials
referenced therein. These materials must be available for inspection
during regular business hours in a form that is readily accessible,
reviewable, and reproducible.
(2) The materials specified in paragraph (a)(1) of this section must
be made available to the requester at the location specified in
paragraph (a)(1) of this section or through the mail, or otherwise.
Except as provided in paragraph (a)(3) of this section, copies of the
pre-application document and any materials referenced therein must be
made available at their reasonable cost of reproduction plus, if
applicable, postage.
(3) A potential licensee must make requested copies of the materials
specified in paragraph (a)(1) of this section available to the United
States Fish and Wildlife Service, the National Marine Fisheries Service,
the state agency responsible for fish and wildlife resources, any
affected Federal land managing agencies, and Indian tribes without
charge for the costs of reproduction or postage.
(b) License application. (1) From the date on which a license
application is filed under this part until the licensing proceeding for
the project is terminated by the Commission, the license applicant must
make reasonably available to the public for inspection at its principal
place of business or another location that is more accessible to the
public, a copy of the complete application for license, together with
all exhibits, appendices, and any amendments, pleadings, supplementary
or additional information, or correspondence filed by the applicant with
the Commission in connection with the application. These materials must
be available for inspection during regular business hours in a form that
is readily accessible, reviewable, and reproducible at the same time as
the information is filed with the Commission or required by regulation
to be made available.
(2) The applicant must provide a copy of the complete application
(as amended) to a public library or other convenient public office
located in each county in which the proposed project is located.
(3) The materials specified in paragraph (b)(1) of this section must
be made available to the requester at the location specified in
paragraph (b)(1) of this section or through the mail. Except as provided
in paragraph (b)(4) of this section, copies of the license application
and any materials referenced therein must be made available at their
reasonable cost of reproduction plus, if applicable, postage.
(4) A licensee applicant must make requested copies of the materials
specified in paragraph (b)(1) of this section available to the United
States Fish and Wildlife Service, the National Marine Fisheries Service,
and the state agency responsible for fish and wildlife resources, any
affected Federal land managing agencies, and Indian tribes without
charge for the costs of reproduction or postage.
(c) Confidentiality of cultural information. A potential applicant
must delete from any information made available to the public under
paragraphs (a) and (b) of this section, specific site or property
locations the disclosure of which would create a risk of harm, theft, or
destruction of archeological or native American cultural resources or of
the site at which the sources are located, or would violate any Federal
law, include the Archeological Resources Protection Act of 1979, 16
U.S.C. 470w-3, and the National Historic Preservation Act of 1966, 16
U.S.C. 470hh.
(d) Access. Anyone may file a petition with the Commission
requesting access to the information specified in paragraphs (a) or (b)
of this section if it believes that the potential applicant or applicant
is not making the information reasonably available for public inspection
or reproduction. The petition must describe in detail the basis for the
petitioner's belief.
Sec. 5.3 Process selection.
(a)(1) Notwithstanding any other provision of this part or of parts
4 and 16
[[Page 145]]
of this chapter, a potential applicant for a new, subsequent, or
original license may until July 23, 2005 elect to use the licensing
procedures of this part or the licensing procedures of parts 4 and 16.
(2) Any potential license applicant that files its notification of
intent pursuant to Sec. 5.5 and pre-application document pursuant to
Sec. 5.6 after July 23, 2005 must request authorization to use the
licensing procedures of parts 4 and 16, as provided for in paragraphs
(b)-(f) of this section.
(b) A potential license applicant may file with the Commission a
request to use the traditional licensing process or alternative
procedures pursuant to this Section with its notification of intent
pursuant to Sec. 5.5.
(c)(1)(i) An application for authorization to use the traditional
process must include justification for the request and any existing
written comments on the potential applicant's proposal and a response
thereto.
(ii) A potential applicant requesting authorization to use the
traditional process should address the following considerations:
(A) Likelihood of timely license issuance;
(B) Complexity of the resource issues;
(C) Level of anticipated controversy;
(D) Relative cost of the traditional process compared to the
integrated process;
(E) The amount of available information and potential for
significant disputes over studies; and
(F) Other factors believed by the applicant to be pertinent
(2) A potential applicant requesting the use of Sec. 4.34(i)
alternative procedures of this chapter must:
(i) Demonstrate that a reasonable effort has been made to contact
all agencies, Indian tribes, and others affected by the applicant's
request, and that a consensus exists that the use of alternative
procedures is appropriate under the circumstances;
(ii) Submit a communications protocol, supported by interested
entities, governing how the applicant and other participants in the pre-
filing consultation process, including the Commission staff, may
communicate with each other regarding the merits of the potential
applicant's proposal and proposals and recommendations of interested
entities; and
(iii) Provide a copy of the request to all affected resource
agencies and Indian tribes and to all entities contacted by the
applicant that have expressed an interest in the alternative pre-filing
consultation process.
(d)(1) The potential applicant must provide a copy of the request to
use the traditional process or alternative procedures to all affected
resource agencies, Indian tribes, and members of the public likely to be
interested in the proceeding. The request must state that comments on
the request to use the traditional process or alternative procedures, as
applicable, must be filed with the Commission within 30 days of the
filing date of the request and, if there is no project number, that
responses must reference the potential applicant's name and address.
(2) The potential applicant must also publish notice of the filing
of its notification of intent, of the pre-application document, and of
any request to use the traditional process or alternative procedures no
later than the filing date of the notification of intent in a daily or
weekly newspaper of general circulation in each county in which the
project is located. The notice must:
(i) Disclose the filing date of the request to use the traditional
process or alternative procedures, and the notification of intent and
pre-application document;
(ii) Briefly summarize these documents and the basis for the request
to use the traditional process or alternative procedures;
(iii) Include the potential applicant's name and address, and
telephone number, the type of facility proposed to be applied for, its
proposed location, the places where the pre-application document is
available for inspection and reproduction;
(iv) Include a statement that comments on the request to use the
traditional process or alternative procedures are due to the Commission
and the potential applicant no later than 30 days following the filing
date of that document and, if there is no project number, that responses
must reference
[[Page 146]]
the potential applicant's name and address;
(v) State that comments on any request to use the traditional
process should address, as appropriate to the circumstances of the
request, the:
(A) Likelihood of timely license issuance;
(B) Complexity of the resource issues;
(C) Level of anticipated controversy;
(D) Relative cost of the traditional process compared to the
integrated process; and
(E) The amount of available information and potential for
significant disputes over studies; and
(F) Other factors believed by the commenter to be pertinent; and
(vi) State that respondents must submit comments to the Secretary of
the Commission in accordance with filing procedures posted on the
Commission's Web site at http://www.ferc.gov.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003, as
amended by Order 737, 75 FR 43402, July 26, 2010]
Sec. 5.4 Acceleration of a license expiration date.
(a) Request for acceleration. (1) No later than five and one-half
years prior to expiration of an existing license, a licensee may file
with the Commission, in accordance with the formal filing requirements
in subpart T of part 385 of this chapter, a written request for
acceleration of the expiration date of its existing license, containing
the statements and information specified in Sec. 16.6(b) of this
chapter and a detailed explanation of the basis for the acceleration
request.
(2) If the Commission grants the request for acceleration pursuant
to paragraph (c) of this section, the Commission will deem the request
for acceleration to be a notice of intent under Sec. 16.6 of this
chapter and, unless the Commission directs otherwise, the licensee must
make available the Pre-Application Document provided for in Sec. 5.6 no
later than 90 days from the date that the Commission grants the request
for acceleration.
(b) Notice of request for acceleration. (1) Upon receipt of a
request for acceleration, the Commission will give notice of the
licensee's request and provide a 45-day period for comments by
interested persons by:
(i) Publishing notice in the Federal Register;
(ii) Publishing notice once in a daily or weekly newspaper published
in the county or counties in which the project or any part thereof or
the lands affected thereby are situated; and
(iii) Notifying appropriate Federal, state, and interstate resource
agencies and Indian tribes, and non-governmental organizations likely to
be interested, by electronic means if practical, otherwise by mail.
(2) The notice issued pursuant to paragraphs (b)(1)(A) and (B) and
the written notice given pursuant to paragraph (b)(1)(C) will be
considered as fulfilling the notice provisions of Sec. 16.6(d) of this
chapter should the Commission grant the acceleration request and will
include an explanation of the basis for the licensee's acceleration
request.
(c) Commission order. If the Commission determines it is in the
public interest, the Commission will issue an order accelerating the
expiration date of the license to not less than five years and 90 days
from the date of the Commission order.
[Order 2002, 68 FR 51121, Aug. 25, 2003, as amended by Order 653, 70 FR
8724, Feb. 23, 2005]
Sec. 5.5 Notification of intent.
(a) Notification of intent. A potential applicant for an original,
new, or subsequent license, must file a notification of its intent to do
so in the manner provided for in paragraphs (b) and (c) of this section.
(b) Requirement to notify. In order for a non-licensee to notify the
Commission that it intends to file an application for an original, new,
or subsequent license, or for an existing licensee to notify the
Commission whether or not it intends to file an application for a new or
subsequent license, a potential license applicant must file with the
Secretary of the Commission in accordance with filing procedures posted
on the Commission's Web site at http://www.ferc.gov, a letter that
contains the following information:
(1) The potential applicant or existing licensee's name and address.
(2) The project number, if any.
[[Page 147]]
(3) The license expiration date, if any.
(4) An unequivocal statement of the potential applicant's intention
to file an application for an original license, or, in the case of an
existing licensee, to file or not to file an application for a new or
subsequent license.
(5) The type of principal project works licensed, if any, such as
dam and reservoir, powerhouse, or transmission lines.
(6) The location of the project by state, county, and stream, and,
when appropriate, by city or nearby city.
(7) The installed plant capacity, if any.
(8) The names and mailing addresses of:
(i) Every county in which any part of the project is located, and in
which any Federal facility that is used or to be used by the project is
located;
(ii) Every city, town, or similar political subdivision;
(A) In which any part of the project is or is to be located and any
Federal facility that is or is to be used by the project is located, or
(B) That has a population of 5,000 or more people and is located
within 15 miles of the existing or proposed project dam;
(iii) Every irrigation district, drainage district, or similar
special purpose political subdivision:
(A) In which any part of the project is or is proposed to be located
and any Federal facility that is or is proposed to be used by the
project is located; or
(B) That owns, operates, maintains, or uses any project facility or
any Federal facility that is or is proposed to be used by the project;
(iv) Every other political subdivision in the general area of the
project or proposed project that there is reason to believe would be
likely to be interested in, or affected by, the notification; and
(v) Affected Indian tribes.
(c) Requirement to distribute. Before it files any application for
an original, new, or subsequent license, a potential license applicant
proposing to file a license application pursuant to this part or to
request to file a license application pursuant to part 4 of this chapter
and, as appropriate, part 16 of this chapter (i.e., the ``traditional
process''), including an application pursuant to Sec. 4.34(i)
alternative procedures of this chapter must distribute to appropriate
Federal, state, and interstate resource agencies, Indian tribes, local
governments, and members of the public likely to be interested in the
proceeding the notification of intent provided for in paragraph (a) of
this section.
(d) When to notify. An existing licensee or non-licensee potential
applicant must notify the Commission as required in paragraph (b) of
this section at least five years, but not more than five and one-half
years, before the existing license expires.
(e) Non-Federal representatives. A potential license applicant may
at the same time it files its notification of intent and distributes its
pre-application document, request to be designated as the Commission's
non-Federal representative for purposes of consultation under section 7
of the Endangered Species Act and the joint agency regulations
thereunder at 50 CFR part 402, Section 305(b) of the Magnuson-Stevens
Fishery Conservation and Management Act and the implementing regulations
at 50 CFR 600.920. A potential license applicant may at the same time
request authorization to initiate consultation under section 106 of the
National Historic Preservation Act and the implementing regulations at
36 CFR 800.2(c)(4).
(f) Procedural matters. The provisions of subpart F of part 16 of
this chapter apply to projects to which this part applies.
(g) Construction of regulations. The provisions of this part and
parts 4 and 16 shall be construed in a manner that best implements the
purposes of each part and gives full effect to applicable provisions of
the Federal Power Act.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 69957, Dec. 16, 2003, as
amended by Order 737, 75 FR 43402, July 26, 2010]
Sec. 5.6 Pre-application document.
(a) Pre-application document. (1) Simultaneously with the filing of
its notification of intent to seek a license as provided for in Sec.
5.5, and before it files any application for an original, new, or
subsequent license, a potential applicant for a license to be filed
pursuant
[[Page 148]]
to this part or part 4 of this chapter and, as appropriate, part 16 of
this chapter, must file with the Secretary of the Commission in
accordance with filing procedures posted on the Commission's Web site at
http://www.ferc.gov and distribute to the appropriate Federal, state,
and interstate resource agencies, Indian tribes, local governments, and
members of the public likely to be interested in the proceeding, the
pre-application document provided for in this section.
(2) The agencies referred to in paragraph (a)(1) of this section
include: Any state agency with responsibility for fish, wildlife, and
botanical resources, water quality, coastal zone management plan
consistency certification, shoreline management, and water resources;
the U.S. Fish and Wildlife Service; the National Marine Fisheries
Service; Environmental Protection Agency; State Historic Preservation
Officer; Tribal Historic Preservation Officer; National Park Service;
local, state, and regional recreation agencies and planning commissions;
local and state zoning agencies; and any other state or Federal agency
or Indian tribe with managerial authority over any part of project lands
and waters.
(b) Purpose of pre-application document. (1) The pre-application
document provides the Commission and the entities identified in
paragraph (a) of this section with existing information relevant to the
project proposal that is in the potential applicant's possession or that
the potential applicant can obtain with the exercise of due diligence.
This existing, relevant, and reasonably available information is
distributed to these entities to enable them to identify issues and
related information needs, develop study requests and study plans, and
prepare documents analyzing any license application that may be filed.
It is also a precursor to the environmental analysis section of the
Preliminary Licensing Proposal or draft license application provided for
in Sec. 5.16, Exhibit E of the final license application, and the
Commission's scoping document(s) and environmental impact statement or
environmental assessment under the National Environmental Policy Act
(NEPA).
(2) A potential applicant is not required to conduct studies in
order to generate information for inclusion in the pre-application
document. Rather, a potential applicant must exercise due diligence in
determining what information exists that is relevant to describing the
existing environment and potential impacts of the project proposal
(including cumulative impacts), obtaining that information if the
potential applicant does not already possess it, and describing or
summarizing it as provided for in paragraph (d) of this section. Due
diligence includes, but is not limited to, contacting appropriate
agencies and Indian tribes that may have relevant information and review
of Federal and state comprehensive plans filed with the Commission and
listed on the Commission's Web site at http://www.ferc.gov.
(c) Form and distribution protocol--(1) General requirements. As
specifically provided for in the content requirements of paragraph (d)
of this section, the pre-application document must describe the existing
and proposed (if any) project facilities and operations, provide
information on the existing environment, and existing data or studies
relevant to the existing environment, and any known and potential
impacts of the proposed project on the specified resources.
(2) Availability of source information and studies. The sources of
information on the existing environment and known or potential resource
impacts included in the descriptions and summaries must be referenced in
the relevant section of the document, and in an appendix to the
document. The information must be provided upon request to recipients of
the pre-application document. A potential applicant must provide the
requested information within 20 days from receipt of the request.
Potential applicants and requesters are strongly encouraged to use
electronic means or compacts disks to distribute studies and other forms
of information, but a potential applicant must, upon request, provide
the information in hard copy form. The potential applicant is also
strongly encouraged to include with the pre-application document any
written protocol for
[[Page 149]]
distribution consistent with this paragraph to which it has agreed with
agencies, Indian tribes, or other entities.
(d) Content requirements--(1) Process plan and schedule. The pre-
application document must include a plan and schedule for all pre-
application activity that incorporates the time frames for pre-filing
consultation, information gathering, and studies set forth in this part.
The plan and schedule must include a proposed location and date for the
scoping meeting and site visit required by Sec. 5.8(b)(3)(viii).
(2) Project location, facilities, and operations. The potential
applicant must include in the pre-application document:
(i) The exact name and business address, and telephone number of
each person authorized to act as agent for the applicant;
(ii) Detailed maps showing lands and waters within the project
boundary by township, range, and section, as well as by state, county,
river, river mile, and closest town, and also showing the specific
location of any Federal and tribal lands, and the location of proposed
project facilities, including roads, transmission lines, and any other
appurtenant facilities;
(iii) A detailed description of all existing and proposed project
facilities and components, including:
(A) The physical composition, dimensions, and general configuration
of any dams, spillways, penstocks, canals, powerhouses, tailraces, and
other structures proposed to be included as part of the project or
connected directly to it;
(B) The normal maximum water surface area and normal maximum water
surface elevation (mean sea level), gross storage capacity of any
impoundments;
(C) The number, type, and minimum and maximum hydraulic capacity and
installed (rated) capacity of any proposed turbines or generators to be
included as part of the project;
(D) The number, length, voltage, and interconnections of any primary
transmission lines proposed to be included as part of the project,
including a single-line diagram showing the transfer of electricity from
the project to the transmission grid or point of use; and
(E) An estimate of the dependable capacity, average annual, and
average monthly energy production in kilowatt hours (or mechanical
equivalent);
(iv) A description of the current (if applicable) and proposed
operation of the project, including any daily or seasonal ramping rates,
flushing flows, reservoir operations, and flood control operations.
(v) In the case of an existing licensed project;
(A) A complete description of the current license requirements;
i.e., the requirements of the original license as amended during the
license term;
(B) A summary of project generation and outflow records for the five
years preceding filing of the pre-application document;
(C) Current net investment; and
(D) A summary of the compliance history of the project, if
applicable, including a description of any recurring situations of non-
compliance.
(vi) A description of any new facilities or components to be
constructed, plans for future development or rehabilitation of the
project, and changes in project operation.
(3) Description of existing environment and resource impacts--(i)
General requirements. A potential applicant must, based on the existing,
relevant, and reasonably available information, include a discussion
with respect to each resource that includes:
(A) A description of the existing environment as required by
paragraphs (d)(3)(ii)-(xiii) of this section;
(B) Summaries (with references to sources of information or studies)
of existing data or studies regarding the resource;
(C) A description of any known or potential adverse impacts and
issues associated with the construction, operation or maintenance of the
proposed project, including continuing and cumulative impacts; and
(D) A description of any existing or proposed project facilities or
operations, and management activities undertaken for the purpose of
protecting, mitigating impacts to, or enhancing resources affected by
the project, including a statement of whether such measures are required
by the project license, or were undertaken for other
[[Page 150]]
reasons. The type and amount of the information included in the
discussion must be commensurate with the scope and level of resource
impacts caused or potentially caused by the proposed project. Potential
license applicants are encouraged to provide photographs or other visual
aids, as appropriate, to supplement text, charts, and graphs included in
the discussion.
(ii) Geology and soils. Descriptions and maps showing the existing
geology, topography, and soils of the proposed project and surrounding
area. Components of the description must include:
(A) A description of geological features, including bedrock
lithology, stratigraphy, structural features, glacial features,
unconsolidated deposits, and mineral resources at the project site;
(B) A description of the soils, including the types, occurrence,
physical and chemical characteristics, erodability and potential for
mass soil movement;
(C) A description of reservoir shorelines and streambanks,
including:
(1) Steepness, composition (bedrock and unconsolidated deposits),
and vegetative cover; and
(2) Existing erosion, mass soil movement, slumping, or other forms
of instability, including identification of project facilities or
operations that are known to or may cause these conditions.
(iii) Water resources. A description of the water resources of the
proposed project and surrounding area. This must address the quantity
and quality (chemical/physical parameters) of all waters affected by the
project, including but not limited to the project reservoir(s) and
tributaries thereto, bypassed reach, and tailrace. Components of the
description must include:
(A) Drainage area;
(B) The monthly minimum, mean, and maximum recorded flows in cubic
feet per second of the stream or other body of water at the powerplant
intake or point of diversion, specifying any adjustments made for
evaporation, leakage, minimum flow releases, or other reductions in
available flow;
(C) A monthly flow duration curve indicating the period of record
and the location of gauging station(s), including identification
number(s), used in deriving the curve; and a specification of the
critical streamflow used to determine the project's dependable capacity;
(D) Existing and proposed uses of project waters for irrigation,
domestic water supply, industrial and other purposes, including any
upstream or downstream requirements or constraints to accommodate those
purposes;
(E) Existing instream flow uses of streams in the project area that
would be affected by project construction and operation; information on
existing water rights and water rights applications potentially
affecting or affected by the project;
(F) Any federally-approved water quality standards applicable to
project waters;
(G) Seasonal variation of existing water quality data for any
stream, lake, or reservoir that would be affected by the proposed
project, including information on:
(1) Water temperature and dissolved oxygen, including seasonal
vertical profiles in the reservoir;
(2) Other physical and chemical parameters to include, as
appropriate for the project; total dissolved gas, pH, total hardness,
specific conductance, cholorphyll a, suspended sediment concentrations,
total nitrogen (mg/L as N), total phosphorus (mg/L as P), and fecal
coliform (E. Coli) concentrations;
(H) The following data with respect to any existing or proposed lake
or reservoir associated with the proposed project; surface area, volume,
maximum depth, mean depth, flushing rate, shoreline length, substrate
composition; and
(I) Gradient for downstream reaches directly affected by the
proposed project.
(iv) Fish and aquatic resources. A description of the fish and other
aquatic resources, including invasive species, in the project vicinity.
This section must discuss the existing fish and macroinvertebrate
communities, including the presence or absence of anadromous,
catadromous, or migratory fish, and any known or potential upstream or
downstream impacts of the project on the aquatic community. Components
of the description must include:
[[Page 151]]
(A) Identification of existing fish and aquatic communities;
(B) Identification of any essential fish habitat as defined under
the Magnuson-Stevens Fishery Conservation and Management Act and
established by the National Marine Fisheries Service; and
(C) Temporal and spacial distribution of fish and aquatic
communities and any associated trends with respect to:
(1) Species and life stage composition;
(2) Standing crop;
(3) Age and growth data;
(4) Spawning run timing; and
(5) The extent and location of spawning, rearing, feeding, and
wintering habitat.
(v) Wildlife and botanical resources. A description of the wildlife
and botanical resources, including invasive species, in the project
vicinity. Components of this description must include:
(A) Upland habitat(s) in the project vicinity, including the
project's transmission line corridor or right-of-way and a listing of
plant and animal species that use the habitat(s); and
(B) Temporal or spacial distribution of species considered important
because of their commercial, recreational, or cultural value.
(vi) Wetlands, riparian, and littoral habitat. A description of the
floodplain, wetlands, riparian habitats, and littoral in the project
vicinity. Components of this description must include:
(A) A list of plant and animal species, including invasive species,
that use the wetland, littoral, and riparian habitat;
(B) A map delineating the wetlands, riparian, and littoral habitat;
and
(C) Estimates of acreage for each type of wetland, riparian, or
littoral habitat, including variability in such availability as a
function of storage at a project that is not operated in run-of-river
mode.
(vii) Rare, threatened and endangered species. A description of any
listed rare, threatened and endangered, candidate, or special status
species that may be present in the project vicinity. Components of this
description must include:
(A) A list of Federal- and state-listed, or proposed to be listed,
threatened and endangered species known to be present in the project
vicinity;
(B) Identification of habitat requirements;
(C) References to any known biological opinion, status reports, or
recovery plan pertaining to a listed species;
(D) Extent and location of any federally-designated critical
habitat, or other habitat for listed species in the project area; and
(E) Temporal and spatial distribution of the listed species within
the project vicinity.
(viii) Recreation and land use. A description of the existing
recreational and land uses and opportunities within the project
boundary. The components of this description include:
(A) Text description illustrated by maps of existing recreational
facilities, type of activity supported, location, capacity, ownership
and management;
(B) Current recreational use of project lands and waters compared to
facility or resource capacity;
(C) Existing shoreline buffer zones within the project boundary;
(D) Current and future recreation needs identified in current State
Comprehensive Outdoor Recreation Plans, other applicable plans on file
with the Commission, or other relevant local, state, or regional
conservation and recreation plans;
(E) If the potential applicant is an existing licensee, its current
shoreline management plan or policy, if any, with regard to permitting
development of piers, boat docks and landings, bulkheads, and other
shoreline facilities on project lands and waters;
(F) A discussion of whether the project is located within or
adjacent to a:
(1) River segment that is designated as part of, or under study for
inclusion in, the National Wild and Scenic River System; or
(2) State-protected river segment;
(G) Whether any project lands are under study for inclusion in the
National Trails System or designated as, or under study for inclusion
as, a Wilderness Area.
(H) Any regionally or nationally important recreation areas in the
project vicinity;
(I) Non-recreational land use and management within the project
boundary; and
[[Page 152]]
(J) Recreational and non-recreational land use and management
adjacent to the project boundary.
(ix) Aesthetic resources. A description of the visual
characteristics of the lands and waters affected by the project.
Components of this description include a description of the dam, natural
water features, and other scenic attractions of the project and
surrounding vicinity. Potential applicants are encouraged to supplement
the text description with visual aids.
(x) Cultural resources. A description of the known cultural or
historical resources of the proposed project and surrounding area.
Components of this description include:
(A) Identification of any historic or archaeological site in the
proposed project vicinity, with particular emphasis on sites or
properties either listed in, or recommended by the State Historic
Preservation Officer or Tribal Historic Preservation Officer for
inclusion in, the National Register of Historic Places;
(B) Existing discovery measures, such as surveys, inventories, and
limited subsurface testing work, for the purpose of locating,
identifying, and assessing the significance of historic and
archaeological resources that have been undertaken within or adjacent to
the project boundary; and
(C) Identification of Indian tribes that may attach religious and
cultural significance to historic properties within the project boundary
or in the project vicinity; as well as available information on Indian
traditional cultural and religious properties, whether on or off of any
federally-recognized Indian reservation (A potential applicant must
delete from any information made available under this section specific
site or property locations, the disclosure of which would create a risk
of harm, theft, or destruction of archaeological or Native American
cultural resources or to the site at which the resources are located, or
would violate any Federal law, including the Archaeological Resources
Protection Act of 1979, 16 U.S.C. 470w-3, and the National Historic
Preservation Act of 1966, 16 U.S.C. 470hh).
(xi) Socio-economic resources. A general description of socio-
economic conditions in the vicinity of the project. Components of this
description include general land use patterns (e.g., urban,
agricultural, forested), population patterns, and sources of employment
in the project vicinity.
(xii) Tribal resources. A description of Indian tribes, tribal
lands, and interests that may be affected by the project Components of
this description include:
(A) Identification of information on resources specified in
paragraphs (d)(2)(ii)-(xi) of this section to the extent that existing
project construction and operation affecting those resources may impact
tribal cultural or economic interests, e.g., impacts of project-induced
soil erosion on tribal cultural sites; and
(B) Identification of impacts on Indian tribes of existing project
construction and operation that may affect tribal interests not
necessarily associated with resources specified in paragraphs
(d)(3)(ii)-(xi) of this Section, e.g., tribal fishing practices or
agreements between the Indian tribe and other entities other than the
potential applicant that have a connection to project construction and
operation.
(xiii) River basin description. A general description of the river
basin or sub-basin, as appropriate, in which the proposed project is
located, including information on:
(A) The area of the river basin or sub-basin and length of stream
reaches therein;
(B) Major land and water uses in the project area;
(C) All dams and diversion structures in the basin or sub-basin,
regardless of function; and
(D) Tributary rivers and streams, the resources of which are or may
be affected by project operations;
(4) Preliminary issues and studies list. Based on the resource
description and impacts discussion required by paragraph (d)(3) of this
section; the pre-application document must include with respect to each
resource area identified above, a list of:
(i) Issues pertaining to the identified resources;
(ii) Potential studies or information gathering requirements
associated with the identified issues;
[[Page 153]]
(iii) Relevant qualifying Federal and state or tribal comprehensive
waterway plans; and
(iv) Relevant resource management plans.
(5) Summary of contacts. An appendix summarizing contacts with
Federal, state, and interstate resource agencies, Indian tribes, non-
governmental organizations, or other members of the public made in
connection with preparing the pre-application document sufficient to
enable the Commission to determine if due diligence has been exercised
in obtaining relevant information.
(e) If applicable, the applicant must also provide a statement of
whether or not it will seek benefits under section 210 of the Public
Utility Regulatory Policies Act of 1978 (PURPA) by satisfying the
requirements for qualifying hydroelectric small power production
facilities in Sec. 292.203 of this chapter. If benefits under section
210 of PURPA are sought, a statement of whether or not the applicant
believes the project is located at a new dam or diversion (as that term
is defined in Sec. 292.202(p) of this chapter), and a request for the
agencies' view on that belief, if any.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 69957, Dec. 16, 2003, as
amended by Order 737, 75 FR 43402, July 26, 2010]
Sec. 5.7 Tribal consultation.
A meeting shall be held no later than 30 days following filing of
the notification of intent required by Sec. 5.5 between each Indian
tribe likely to be affected by the potential license application and the
Commission staff if the affected Indian tribe agrees to such meeting.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]
Sec. 5.8 Notice of commencement of proceeding and scoping document,
or of approval to use traditional licensing process or alternative
procedures.
(a) Notice. Within 60 days of the notification of intent required
under Sec. 5.5, filing of the pre-application document pursuant to
Sec. 5.6, and filing of any request to use the traditional licensing
process or alternative procedures, the Commission will issue a notice of
commencement of proceeding and scoping document or of approval of a
request to use the traditional licensing process or alternative
procedures.
(b) Notice contents. The notice shall include:
(1) The decision of the Director of the Office of Energy Projects on
any request to use the traditional licensing process or alternative
procedures.
(2) If appropriate, a request by the Commission to initiate informal
consultation under section 7 of the Endangered Species Act and the joint
agency regulations thereunder at 50 CFR part 402, section 305(b) of the
Magnuson-Stevens Fishery Conservation and Management Act and
implementing regulations at 50 CFR 600.920, or section 106 of the
National Historic Preservation Act and implementing regulations at 36
CFR 800.2, and, if applicable, designation of the potential applicant as
the Commission's non-federal representative.
(3) If the potential license application is to be developed and
filed pursuant to this part, notice of:
(i) The applicant's intent to file a license application;
(ii) The filing of the pre-application document;
(iii) Commencement of the proceeding;
(iv) A request for comments on the pre-application document
(including the proposed process plan and schedule);
(v) A statement that all communications to or from the Commission
staff related to the merits of the potential application must be filed
with the Commission;
(vi) The request for other Federal or state agencies or Indian
tribes to be cooperating agencies for purposes of developing an
environmental document;
(vii) The Commission's intent with respect to preparation of an
environmental impact statement; and
(viii) A public scoping meeting and site visit to be held within 30
days of the notice.
(c) Scoping Document 1. At the same time the Commission issues the
notice provided for in paragraph (a) of this Section, the Commission
staff will issue Scoping Document 1. Scoping Document 1 will include:
[[Page 154]]
(1) An introductory section describing the purpose of the scoping
document, the date and time of the scoping meeting, procedures for
submitting written comments, and a request for information or study
requests from state and Federal resource agencies, Indian tribes, non-
governmental organizations, and individuals;
(2) Identification of the proposed action, including a description
of the project's location, facilities, and operation, and any proposed
protection and enhancement measures, and other alternatives to the
proposed action, including alternatives considered but eliminated from
further study, and the no action alternative;
(3) Identification of resource issues to be analyzed in the
environmental document, including those that would be cumulatively
affected along with a description of the geographic and temporal scope
of the cumulatively affected resources;
(4) A list of qualifying Federal and state comprehensive waterway
plans;
(5) A list of qualifying tribal comprehensive waterway plans;
(6) A process plan and schedule and a draft outline of the
environmental document; and
(7) A list of recipients.
(d) Scoping meeting and site visit. The purpose of the public
meeting and site visit is to:
(1) Initiate issues scoping pursuant to the National Environmental
Policy Act;
(2) Review and discuss existing conditions and resource management
objectives;
(3) Review and discuss existing information and make preliminary
identification of information and study needs;
(4) Review, discuss, and finalize the process plan and schedule for
pre-filing activity that incorporates the time periods provided for in
this part and, to the extent reasonably possible, maximizes coordination
of Federal, state, and tribal permitting and certification processes,
including consultation under section 7 of the Endangered Species Act and
water quality certification or waiver thereof under section 401 of the
Clean Water Act; and
(5) Discuss the appropriateness of any Federal or state agency or
Indian tribe acting as a cooperating agency for development of an
environmental document pursuant to the National Environmental Policy
Act.
(e) Method of notice. The public notice provided for in this section
will be given by:
(1) Publishing notice in the Federal Register;
(2) Publishing notice in a daily or weekly newspaper published in
the county or counties in which the project or any part thereof or the
lands affected thereby are situated, and, as appropriate, tribal
newspapers;
(3) Notifying appropriate Federal, state, and interstate resource
agencies, state water quality and coastal zone management plan
consistency certification agencies, Indian tribes, and non-governmental
organizations, by electronic means if practical, otherwise by mail.
[Order 2002, 68 FR 51121, Aug. 25, 2003, as amended by Order 653, 70 FR
8724, Feb. 23, 2005]
Sec. 5.9 Comments and information or study requests.
(a) Comments and study requests. Comments on the pre-application
document and the Commission staff's Scoping Document 1 must be filed
with the Commission within 60 days following the Commission's notice of
consultation procedures issued pursuant to Sec. 5.8. Comments,
including those by Commission staff, must be accompanied by any
information gathering and study requests, and should include information
and studies needed for consultation under section 7 of the Endangered
Species Act and water quality certification under Section 401 of the
Clean Water Act.
(b) Content of study request. Any information or study request must:
(1) Describe the goals and objectives of each study proposal and the
information to be obtained;
(2) If applicable, explain the relevant resource management goals of
the agencies or Indian tribes with jurisdiction over the resource to be
studied;
[[Page 155]]
(3) If the requester is not a resource agency, explain any relevant
public interest considerations in regard to the proposed study;
(4) Describe existing information concerning the subject of the
study proposal, and the need for additional information;
(5) Explain any nexus between project operations and effects
(direct, indirect, and/or cumulative) on the resource to be studied, and
how the study results would inform the development of license
requirements;
(6) Explain how any proposed study methodology (including any
preferred data collection and analysis techniques, or objectively
quantified information, and a schedule including appropriate field
season(s) and the duration) is consistent with generally accepted
practice in the scientific community or, as appropriate, considers
relevant tribal values and knowledge; and
(7) Describe considerations of level of effort and cost, as
applicable, and why any proposed alternative studies would not be
sufficient to meet the stated information needs.
(c) Applicant seeking PURPA benefits; estimate of fees. If a
potential applicant has stated that it intends to seek PURPA benefits,
comments on the pre-application document by a fish and wildlife agency
must provide the potential applicant with a reasonable estimate of the
total costs the agency anticipates it will incur in order to set
mandatory terms and conditions for the proposed project. An agency may
provide a potential applicant with an updated estimate as it deems
necessary. If any agency believes that its most recent estimate will be
exceeded by more than 25 percent, it must supply the potential applicant
with a new estimate and submit a copy to the Commission.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68
FR 69957, Dec. 16, 2003, as amended by Order 699, 72 FR 45324, Aug. 14,
2007]
Sec. 5.10 Scoping Document 2.
Within 45 days following the deadline for filing of comments on
Scoping Document 1, the Commission staff shall, if necessary, issue
Scoping Document 2.
Sec. 5.11 Potential Applicant's proposed study plan and study plan
meetings.
(a) Within 45 days following the deadline for filing of comments on
the pre-application document, including information and study requests,
the potential applicant must file with the Commission a proposed study
plan.
(b) The potential applicant's proposed study plan must include with
respect to each proposed study:
(1) A detailed description of the study and the methodology to be
used;
(2) A schedule for conducting the study;
(3) Provisions for periodic progress reports, including the manner
and extent to which information will be shared; and sufficient time for
technical review of the analysis and results; and
(4) If the potential applicant does not adopt a requested study, an
explanation of why the request was not adopted, with reference to the
criteria set forth in Sec. 5.9(b).
(c) The potential applicant's proposed study plan must also include
provisions for the initial and updated study reports and meetings
provided for in Sec. 5.15.
(d) The applicant's proposed study plan must:
(1) Describe the goals and objectives of each study proposal and the
information to be obtained;
(2) Address any known resource management goals of the agencies or
Indian tribes with jurisdiction over the resource to be studied;
(3) Describe existing information concerning the subject of the
study proposal, and the need for additional information;
(4) Explain any nexus between project operations and effects
(direct, indirect, and/or cumulative) on the resource to be studied;
(5) Explain how any proposed study methodology (including any
preferred data collection and analysis techniques, or objectively
quantified information, and a schedule including appropriate field
season(s) and the duration) is consistent with generally accepted
practice in the scientific community or, as appropriate, considers any
known tribal interests;
[[Page 156]]
(6) Describe considerations of level of effort and cost, as
applicable.
(e) The potential applicant's proposed study plan must be
accompanied by a proposal for conducting a study plan meeting or
meetings during the 90-day period provided for in Sec. 5.12 for the
purpose of clarifying the potential applicant's proposed study plan and
any initial information gathering or study requests, and to resolve any
outstanding issues with respect to the proposed study plan. The initial
study plan meeting must be held no later than 30 days after the deadline
date for filing of the potential applicant's proposed study plan.
Sec. 5.12 Comments on proposed study plan.
Comments on the potential applicant's proposed study plan, including
any revised information or study requests, must be filed within 90 days
after the proposed study plan is filed. This filing must also include an
explanation of any study plan concerns and any accommodations reached
with the potential applicant regarding those concerns. Any proposed
modifications to the potential applicant's proposed study plan must
address the criteria in Sec. 5.9(b).
Sec. 5.13 Revised study plan and study plan determination.
(a) Within 30 days following the deadline for filing comments on the
potential applicant's proposed study plan, as provided for in Sec.
5.12, the potential applicant must file a revised study plan for
Commission approval. The revised study plan shall include the comments
on the proposed study plan and a description of the efforts made to
resolve differences over study requests. If the potential applicant does
not adopt a requested study, it must explain why the request was not
adopted, with reference to the criteria set forth in Sec. 5.9(b).
(b) Within 15 days following filing of the potential applicant's
revised study plan, participants may file comments thereon.
(c) Within 30 days following the date the potential applicant files
its revised study plan, the Director of Energy Projects will issue a
Study Plan Determination with regard to the potential applicant's study
plan, including any modifications determined to be necessary in light of
the record.
(d) If no notice of study dispute is filed pursuant to Sec. 5.14
within 20 days of the Study Plan Determination, the study plan as
approved in the Study Plan Determination shall be deemed to be approved
and the potential applicant shall proceed with the approved studies. If
a potential applicant fails to obtain or conduct a study as required by
Study Plan Determination, its license application may be considered
deficient.
Sec. 5.14 Formal study dispute resolution process.
(a) Within 20 days of the Study Plan Determination, any Federal
agency with authority to provide mandatory conditions on a license
pursuant to FPA Section 4(e), 16 U.S.C. 797(e), or to prescribe fishways
pursuant to FPA Section 18, 16 U.S.C. 811, or any agency or Indian tribe
with authority to issue a water quality certification for the project
license under section 401 of the Clean Water Act, 42 U.S.C. 1341, may
file a notice of study dispute with respect to studies pertaining
directly to the exercise of their authorities under sections 4(e) and 18
of the Federal Power Act or section 401 of the Clean Water Act.
(b) The notice of study dispute must explain how the disputing
agency's or Indian tribe's study request satisfies the criteria set
forth in Sec. 5.9(b), and shall identify and provide contact
information for the panel member designated by the disputing agency or
Indian tribe, as discussed in paragraph (d) of this section.
(c) Studies and portions of study plans approved in the Study Plan
Determination that are not the subject of a notice of dispute shall be
deemed to be approved, and the potential applicant shall proceed with
those studies or portions thereof.
(d) Within 20 days of a notice of study dispute, the Commission will
convene one or more three-person Dispute Resolution Panels, as
appropriate to the circumstances of each proceeding. Each such panel
will consist of:
[[Page 157]]
(1) A person from the Commission staff who is not otherwise involved
in the proceeding, and who shall serve as the panel chair;
(2) One person designated by the Federal or state agency or Indian
tribe that filed the notice of dispute who is not otherwise involved in
the proceeding; and
(3) A third person selected by the other two panelists from a pre-
established list of persons with expertise in the resource area. The two
panelists shall make every reasonable effort to select the third panel
member. If however no third panel member has been selected by the other
two panelists within 15 days, an appropriate third panel member will be
selected at random from the list of technical experts maintained by the
Commission.
(e) If more than one agency or Indian tribe files a notice of
dispute with respect to the decision in the preliminary determination on
any information-gathering or study request, the disputing agencies or
Indian tribes must select one person to represent their interests on the
panel.
(f) The list of persons available to serve as a third panel member
will be posted, as revised from time-to-time, on the hydroelectric page
of the Commission's Web site. A person on the list who is requested and
willing to serve with respect to a specific dispute will be required to
file with the Commission at that time a current statement of their
qualifications, a statement that they have had no prior involvement with
the proceeding in which the dispute has arisen, or other financial or
other conflict of interest.
(g) All costs of the panel members representing the Commission staff
and the agency or Indian tribe which filed the notice of dispute will be
borne by the Commission or the agency or Indian tribe, as applicable.
The third panel member will serve without compensation, except for
certain allowable travel expenses as defined in 31 CFR part 301.
(h) To facilitate the delivery of information to the dispute
resolution panel, the identity of the panel members and their addresses
for personal service with respect to a specific dispute resolution will
be posted on the hydroelectric page of the Commission's Web site.
(i) No later than 25 days following the notice of study dispute, the
potential applicant may file with the Commission and serve upon the
panel members comments and information regarding the dispute.
(j) Prior to engaging in deliberative meetings, the panel shall hold
a technical conference for the purpose of clarifying the matters in
dispute with reference to the study criteria. The technical conference
shall be chaired by the Commission staff member of the panel. It shall
be open to all participants, and the panel shall receive information
from the participants as it deems appropriate.
(k) No later than 50 days following the notice of study dispute, the
panel shall make and deliver to the Director of the Office of Energy
Projects a finding, with respect to each information or study request in
dispute, concerning the extent to which each criteria set forth in Sec.
5.9(b) is met or not met, and why, and make recommendations regarding
the disputed study request based on its findings. The panel's findings
and recommendations must be based on the record in the proceeding. The
panel shall file with its findings and recommendations all of the
materials received by the panel. Any recommendation for the potential
applicant to provide information or a study must include the technical
specifications, including data acquisition techniques and methodologies.
(l) No later than 70 days from the date of filing of the notice of
study dispute, the Director of the Office of Energy Projects will review
and consider the recommendations of the panel, and will issue a written
determination. The Director's determination will be made with reference
to the study criteria set forth in Sec. 5.9(b) and any applicable law
or Commission policies and practices, will take into account the
technical expertise of the panel, and will explain why any panel
recommendation was rejected, if applicable. The Director's determination
shall constitute an amendment to the approved study plan.
[[Page 158]]
Sec. 5.15 Conduct of studies.
(a) Implementation. The potential applicant must gather information
and conduct studies as provided for in the approved study plan and
schedule.
(b) Progress reports. The potential applicant must prepare and
provide to the participants the progress reports provided for in Sec.
5.11(b)(3). Upon request of any participant, the potential applicant
will provide documentation of study results.
(c) Initial study report. (1) Pursuant to the Commission-approved
study plan and schedule provided for in Sec. 5.13 or no later than one
year after Commission approval of the study plan, whichever comes first,
the potential applicant must prepare and file with the Commission an
initial study report describing its overall progress in implementing the
study plan and schedule and the data collected, including an explanation
of any variance from the study plan and schedule. The report must also
include any modifications to ongoing studies or new studies proposed by
the potential applicant.
(2) Within 15 days following the filing of the initial study report,
the potential applicant shall hold a meeting with the participants and
Commission staff to discuss the study results and the potential
applicant's and or other participant's proposals, if any, to modify the
study plan in light of the progress of the study plan and data
collected.
(3) Within 15 days following the meeting provided for in paragraph
(c)(2) of this section, the potential applicant shall file a meeting
summary, including any modifications to ongoing studies or new studies
proposed by the potential applicant.
(4) Any participant or the Commission staff may file a disagreement
concerning the applicant's meeting summary within 30 days, setting forth
the basis for the disagreement. This filing must also include any
modifications to ongoing studies or new studies proposed by the
Commission staff or other participant.
(5) Responses to any filings made pursuant to paragraph (c)(4) of
this section must be filed within 30 days.
(6) No later than 30 days following the due date for responses
provided for in paragraph (c)(5) of this section, the Director will
resolve the disagreement and amend the approved study plan as
appropriate.
(7) If no participant or the Commission staff files a disagreement
concerning the potential applicant's meeting summary and request to
amend the approved study plan within 30 days, any proposed amendment
shall be deemed to be approved.
(d) Criteria for modification of approved study. Any proposal to
modify an ongoing study pursuant to paragraphs (c)(1)-(4) of this
section must be accompanied by a showing of good cause why the proposal
should be approved, and must include, as appropriate to the facts of the
case, a demonstration that:
(1) Approved studies were not conducted as provided for in the
approved study plan; or
(2) The study was conducted under anomalous environmental conditions
or that environmental conditions have changed in a material way.
(e) Criteria for new study. Any proposal for new information
gathering or studies pursuant to paragraphs (c)(1)-(4) of this section
must be accompanied by a showing of good cause why the proposal should
be approved, and must include, as appropriate to the facts of the case,
a statement explaining:
(1) Any material changes in the law or regulations applicable to the
information request;
(2) Why the goals and objectives of any approved study could not be
met with the approved study methodology;
(3) Why the request was not made earlier;
(4) Significant changes in the project proposal or that significant
new information material to the study objectives has become available;
and
(5) Why the new study request satisfies the study criteria in Sec.
5.9(b).
(f) Updated study report. Pursuant to the Commission-approved study
plan and schedule provided for in Sec. 5.13, or no later than two years
after Commission approval of the study plan and schedule, whichever
comes first, the potential applicant shall prepare and file with the
Commission an updated study report describing its overall progress in
implementing the study
[[Page 159]]
plan and schedule and the data collected, including an explanation of
any variance from the study plan and schedule. The report must also
include any modifications to ongoing studies or new studies proposed by
the potential applicant. The review, comment, and disagreement
resolution provisions of paragraphs (c)(2)-(7) of this section shall
apply to the updated study report. Any proposal to modify an ongoing
study must be accompanied by a showing of good cause why the proposal
should be approved as set forth in paragraph (d) of this section. Any
proposal for new information gathering or studies is subject to
paragraph (e) of this section except that the proponent must demonstrate
extraordinary circumstances warranting approval. The applicant must
promptly proceed to complete any remaining undisputed information-
gathering or studies under its proposed amendments to the study plan, if
any, and must proceed to complete any information-gathering or studies
that are the subject of a disagreement upon the Director's resolution of
the disagreement.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]
Sec. 5.16 Preliminary licensing proposal.
(a) No later than 150 days prior to the deadline for filing a new or
subsequent license application, if applicable, the potential applicant
must file for comment a preliminary licensing proposal.
(b) The preliminary licensing proposal must:
(1) Clearly describe, as applicable, the existing and proposed
project facilities, including project lands and waters;
(2) Clearly describe, as applicable, the existing and proposed
project operation and maintenance plan, to include measures for
protection, mitigation, and enhancement measures with respect to each
resource affected by the project proposal; and
(3) Include the potential applicant's draft environmental analysis
by resource area of the continuing and incremental impacts, if any, of
its preliminary licensing proposal, including the results of its studies
conducted under the approved study plan.
(c) A potential applicant may elect to file a draft license
application which includes the contents of a license application
required by Sec. 5.18 instead of the Preliminary Licensing Proposal. A
potential applicant that elects to file a draft license application must
include notice of its intent to do so in the updated study report
required by Sec. 5.15(f).
(d) A potential applicant that has been designated as the
Commission's non-Federal representative may include a draft Biological
Assessment, draft Essential Fish Habitat Assessment, and draft Historic
Properties Management Plan with its Preliminary Licensing Proposal or
draft license application.
(e) Within 90 days of the date the potential applicant files the
Preliminary Licensing Proposal or draft license application,
participants and the Commission staff may file comments on the
Preliminary Licensing Proposal or draft application, which may include
recommendations on whether the Commission should prepare an
Environmental Assessment (with or without a draft Environmental
Assessment) or an Environmental Impact Statement. Any participant whose
comments request new information, studies, or other amendments to the
approved study plan must include a demonstration of extraordinary
circumstances, pursuant to the requirements of Sec. 5.15(f).
(f) A waiver of the requirement to file the Preliminary Licensing
Proposal or draft license application may be requested, based on a
consensus of the participants in favor of such waiver.
Sec. 5.17 Filing of application.
(a) Deadline--new or subsequent license application. An application
for a new or subsequent license must be filed no later than 24 months
before the existing license expires.
(b) Subsequent licenses. An applicant for a subsequent license must
file its application under part I of the Federal Power Act. The
provisions of section 7(a) of the Federal Power Act do not apply to
licensing proceedings involving a subsequent license.
(c) Rejection or dismissal of application. If the Commission rejects
or dismisses an application for a new or subsequent license filed under
this part pursuant
[[Page 160]]
to the provisions of Sec. 5.20, the application may not be refiled
after the new or subsequent license application filing deadline
specified in paragraph (a) of this section.
(d)(1) Filing and service. Each applicant for a license under this
part must submit the application to the Commission's Secretary for
filing pursuant to the requirements of subpart T of part 385 of this
chapter. The applicant must serve one copy of the application on the
Director of the Commission's Regional Office for the appropriate region
and on each resource agency, Indian tribe, or member of the public
consulted pursuant to this part.
(2) An applicant must publish notice twice of the filing of its
application, no later than 14 days after the filing date in a daily or
weekly newspaper of general circulation in each county in which the
project is located. The notice must disclose the filing date of the
application and briefly summarize it, including the applicant's name and
address, the type of facility applied for, its proposed location, and
the places where the information specified in Sec. 5.2(b) is available
for inspection and reproduction. The applicant must promptly provide the
Commission with proof of the publication of this notice.
(e) PURPA benefits. (1) Every application for a license for a
project with a capacity of 80 megawatts or less must include in its
application copies of the statements made under Sec. 4.38(b)(2)(vi).
(2) If an applicant reverses a statement of intent not to seek PURPA
benefits:
(i) Prior to the Commission issuing a license, the reversal of
intent will be treated as an amendment of the application under Sec.
4.35 of this chapter and the applicant must:
(A) Repeat the pre-filing consultation process under this part; and
(B) Satisfy all the requirements in Sec. 292.208 of this chapter;
or
(ii) After the Commission issues a license for the project, the
applicant is prohibited from obtaining PURPA benefits.
(f) Limitations on submitting applications. The provisions of
Sec. Sec. 4.33(b), (c), and (e) of this chapter apply to license
applications filed under this Section.
(g) Applicant notice. An applicant for a subsequent license that
proposes to expand an existing project to encompass additional lands
must include in its application a statement that the applicant has
notified, by certified mail, property owners on the additional lands to
be encompassed by the project and governmental agencies and subdivisions
likely to be interested in or affected by the proposed expansion.
[Order 2002, 68 FR 51121, Aug. 25, 2003, as amended by Order 756, 77 FR
4893, Feb. 1, 2012]
Sec. 5.18 Application content.
(a) General content requirements. Each license application filed
pursuant to this part must:
(1) Identify every person, citizen, association of citizens,
domestic corporation, municipality, or state that has or intends to
obtain and will maintain any proprietary right necessary to construct,
operate, or maintain the project;
(2) Identify (providing names and mailing addresses):
(i) Every county in which any part of the project, and any Federal
facilities that would be used by the project, would be located;
(ii) Every city, town, or similar local political subdivision:
(A) In which any part of the project, and any Federal facilities
that would be used by the project, would be located; or
(B) That has a population of 5,000 or more people and is located
within 15 miles of the project dam;
(iii) Every irrigation district, drainage district, or similar
special purpose political subdivision:
(A) In which any part of the project, and any Federal facilities
that would be used by the project, would be located; or
(B) That owns, operates, maintains, or uses any project facilities
that would be used by the project;
(iv) Every other political subdivision in the general area of the
project that there is reason to believe would likely be interested in,
or affected by, the application; and
(v) All Indian tribes that may be affected by the project.
[[Page 161]]
(3)(i) For a license (other than a license under section 15 of the
Federal Power Act) state that the applicant has made, either at the time
of or before filing the application, a good faith effort to give
notification by certified mail of the filing of the application to:
(A) Every property owner of record of any interest in the property
within the bounds of the project, or in the case of the project without
a specific project boundary, each such owner of property which would
underlie or be adjacent to any project works including any impoundments;
and
(B) The entities identified in paragraph (a)(2) of this section, as
well as any other Federal, state, municipal or other local government
agencies that there is reason to believe would likely be interested in
or affected by such application.
(ii) Such notification must contain the name, business address, and
telephone number of the applicant and a copy of the Exhibit G contained
in the application, and must state that a license application is being
filed with the Commission.
(4)(i) As to any facts alleged in the application or other materials
filed, be subscribed and verified under oath in the form set forth in
paragraph (a)(3)(B) of this Section by the person filing, an officer
thereof, or other person having knowledge of the matters set forth. If
the subscription and verification is by anyone other than the person
filing or an officer thereof, it must include a statement of the reasons
therefor.
(ii) This application is executed in the:
State of_______________________________________________________________
County of______________________________________________________________
By:____________________________________________________________________
(Name)_________________________________________________________________
(Address)______________________________________________________________
being duly sworn, depose(s) and say(s) that the contents of this
application are true to the best of (his or her) knowledge or belief.
The undersigned Applicant(s) has (have) signed the application this __
day of _________, 2___.
________________________________________________________________________
(Applicant(s))
By:____________________________________________________________________
Subscribed and sworn to before me, a [Notary Public, or title of
other official authorized by the state to notarize documents, as
appropriate] this __ day of __________, 2___.
/SEAL [if any]
(Notary Public, or other authorized official)
(5) Contain the information and documents prescribed in the
following Sections of this chapter, except as provided in paragraph (b)
of this Section, according to the type of application:
(i) License for a minor water power project and a major water power
project 5 MW or less: Sec. 4.61 (General instructions, initial
statement, and Exhibits A, F, and G);
(ii) License for a major unconstructed project and a major modified
project: Sec. 4.41 of this chapter (General instructions, initial
statement, Exhibits A, B, C, D, F, and G);
(iii) License for a major project--existing dam: Sec. 4.51 of this
chapter (General instructions, initial statement, Exhibits A, B, C, D,
F, and G); or
(iv) License for a project located at a new dam or diversion where
the applicant seeks PURPA benefits: Sec. 292.208 of this chapter.
(b) Exhibit E--Environmental Exhibit. The specifications for Exhibit
E in Sec. Sec. 4.41, 4.51, or 4.61 of this chapter shall not apply to
applications filed under this part. The Exhibit E included in any
license application filed under this part must address the resources
listed in the Pre-Application Document provided for in Sec. 5.6; follow
the Commission's ``Preparing Environmental Assessments: Guidelines for
Applicants, Contractors, and Staff,'' as they may be updated from time-
to-time; and meet the following format and content requirements:
(1) General description of the river basin. Describe the river
system, including relevant tributaries; give measurements of the area of
the basin and length of stream; identify the project's river mile
designation or other reference point; describe the topography and
climate; and discuss major land uses and economic activities.
(2) Cumulative effects. List cumulatively affected resources based
on the Commission's Scoping Document, consultation, and study results.
Discuss the geographic and temporal scope of analysis for those
resources. Describe
[[Page 162]]
how resources are cumulatively affected and explain the choice of the
geographic scope of analysis. Include a brief discussion of past,
present, and future actions, and their effects on resources based on the
new license term (30-50 years). Highlight the effect on the cumulatively
affected resources from reasonably foreseeable future actions. Discuss
past actions' effects on the resource in the Affected Environment
Section.
(3) Applicable laws. Include a discussion of the status of
compliance with or consultation under the following laws, if applicable:
(i) Section 401 of the Clean Water Act. The applicant must file a
request for a water quality certification (WQC), as required by Section
401 of the Clean Water Act no later than the deadline specified in Sec.
5.23(b). Potential applicants are encouraged to consult with the
certifying agency or tribe concerning information requirements as early
as possible.
(ii) Endangered Species Act (ESA). Briefly describe the process used
to address project effects on Federally listed or proposed species in
the project vicinity. Summarize any anticipated environmental effects on
these species and provide the status of the consultation process. If the
applicant is the Commission's non-Federal designee for informal
consultation under the ESA, the applicant's draft biological assessment
must be included.
(iii) Magnuson-Stevens Fishery Conservation and Management Act.
Document from the National Marine Fisheries Service (NMFS) and/or the
appropriate Regional Fishery Management Council any essential fish
habitat (EFH) that may be affected by the project. Briefly discuss each
managed species and life stage for which EFH was designated. Include, as
appropriate, the abundance, distribution, available habitat, and habitat
use by the managed species. If the project may affect EFH, prepare a
draft ``EFH Assessment'' of the impacts of the project. The draft EFH
Assessment should contain the information outlined in 50 CFR 600.920(e).
(iv) Coastal Zone Management Act (CZMA). Section 307(c)(3) of the
CZMA requires that all Federally licensed and permitted activities be
consistent with approved state Coastal Zone Management Programs. If the
project is located within a coastal zone boundary or if a project
affects a resource located in the boundaries of the designated coastal
zone, the applicant must certify that the project is consistent with the
state Coastal Zone Management Program. If the project is within or
affects a resource within the coastal zone, provide the date the
applicant sent the consistency certification information to the state
agency, the date the state agency received the certification, and the
date and action taken by the state agency (for example, the agency will
either agree or disagree with the consistency statement, waive it, or
ask for additional information). Describe any conditions placed on the
state agency's concurrence and assess the conditions in the appropriate
section of the license application. If the project is not in or would
not affect the coastal zone, state so and cite the coastal zone program
office's concurrence.
(v) National Historic Preservation Act (NHPA). Section 106 of NHPA
requires the Commission to take into account the effect of licensing a
hydropower project on any historic properties, and allow the Advisory
Council on Historic Preservation (Advisory Council) a reasonable
opportunity to comment on the proposed action. ``Historic Properties''
are defined as any district, site, building, structure, or object that
is included in or eligible for inclusion in the National Register of
Historic Places (NRHP). If there would be an adverse effect on historic
properties, the applicant may include a Historic Properties Management
Plan (HPMP) to avoid or mitigate the effects. The applicant must include
documentation of consultation with the Advisory Council, the State
Historic Preservation Officer, Tribal Historic Preservation Officer,
National Park Service, members of the public, and affected Indian
tribes, where applicable.
(vi) Pacific Northwest Power Planning and Conservation Act (Act). If
the project is not within the Columbia River Basin, this section shall
not be included. The Columbia River Basin Fish and Wildlife Program
(Program)
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developed under the Act directs agencies to consult with Federal and
state fish and wildlife agencies, appropriate Indian tribes, and the
Northwest Power Planning Council (Council) during the study, design,
construction, and operation of any hydroelectric development in the
basin. Section 12.1A of the Program outlines conditions that should be
provided for in any original or new license. The program also designates
certain river reaches as protected from development. The applicant must
document consultation with the Council, describe how the act applies to
the project, and how the proposal would or would not be consistent with
the program.
(vii) Wild and Scenic Rivers and Wilderness Acts. Include a
description of any areas within or in the vicinity of the proposed
project boundary that are included in, or have been designated for study
for inclusion in, the National Wild and Scenic Rivers System, or that
have been designated as wilderness area, recommended for such
designation, or designated as a wilderness study area under the
Wilderness Act.
(4) Project facilities and operation. Provide a description of the
project to include:
(i) Maps showing existing and proposed project facilities, lands,
and waters within the project boundary;
(ii) The configuration of any dams, spillways, penstocks, canals,
powerhouses, tailraces, and other structures;
(iii) The normal maximum water surface area and normal maximum water
surface elevation (mean sea level), gross storage capacity of any
impoundments;
(iv) The number, type, and minimum and maximum hydraulic capacity
and installed (rated) capacity of existing and proposed turbines or
generators to be included as part of the project;
(v) An estimate of the dependable capacity, and average annual
energy production in kilowatt hours (or mechanical equivalent);
(vi) A description of the current (if applicable) and proposed
operation of the project, including any daily or seasonal ramping rates,
flushing flows, reservoir operations, and flood control operations.
(5) Proposed action and action alternatives. (i) The environmental
document must explain the effects of the applicant's proposal on
resources. For each resource area addressed include:
(A) A discussion of the affected environment;
(B) A detailed analysis of the effects of the applicant's licensing
proposal and, if reasonably possible, any preliminary terms and
conditions filed with the Commission; and
(C) Any unavoidable adverse impacts.
(ii) The environmental document must contain, with respect to the
resources listed in the Pre-Application Document provided for in Sec.
5.6, and any other resources identified in the Commission's scoping
document prepared pursuant to the National Environmental Policy Act and
Sec. 5.8, the following information, commensurate with the scope of the
project:
(A) Affected environment. The applicant must provide a detailed
description of the affected environment or area(s) to be affected by the
proposed project by each resource area. This description must include
the information on the affected environment filed in the Pre-Application
Document provided for in Sec. 5.6, developed under the applicant's
approved study plan, and otherwise developed or obtained by the
applicant. This section must include a general description of socio-
economic conditions in the vicinity of the project including general
land use patterns (e.g., urban, agricultural, forested), population
patterns, and sources of employment in the project vicinity.
(B) Environmental analysis. The applicant must present the results
of its studies conducted under the approved study plan by resource area
and use the data generated by the studies to evaluate the beneficial and
adverse environmental effects of its proposed project. This section must
also include, if applicable, a description of any anticipated continuing
environmental impacts of continued operation of the project, and the
incremental impact of proposed new development of project works or
changes in project operation. This analysis must be based on the
information filed in the Pre-Application Document provided for in Sec.
5.6, developed under the applicant's approved study
[[Page 164]]
plan, and other appropriate information, and otherwise developed or
obtained by the Applicant.
(C) Proposed environmental measures. The applicant must provide, by
resource area, any proposed new environmental measures, including, but
not limited to, changes in the project design or operations, to address
the environmental effects identified above and its basis for proposing
the measures. The applicant must describe how each proposed measure
would protect or enhance the existing environment, including, where
possible, a non-monetary quantification of the anticipated environmental
benefits of the measure. This section must also include a statement of
existing measures to be continued for the purpose of protecting and
improving the environment and any proposed preliminary environmental
measures received from the consulted resource agencies, Indian tribes,
or the public. If an applicant does not adopt a preliminary
environmental measure proposed by a resource agency, Indian tribe, or
member of the public, it must include its reasons, based on project-
specific information.
(D) Unavoidable adverse impacts. Based on the environmental
analysis, discuss any adverse impacts that would occur despite the
recommended environmental measures. Discuss whether any such impacts are
short- or long-term, minor or major, cumulative or site-specific.
(E) Economic analysis. The economic analysis must include
annualized, current cost-based information. For a new or subsequent
license, the applicant must include the cost of operating and
maintaining the project under the existing license. For an original
license, the applicant must estimate the cost of constructing,
operating, and maintaining the proposed project. For either type of
license, the applicant should estimate the cost of each proposed
resource protection, mitigation, or enhancement measure and any specific
measure filed with the Commission by agencies, Indian tribes, or members
of the public when the application is filed. For an existing license,
the applicant's economic analysis must estimate the value of
developmental resources associated with the project under the current
license and the applicant's proposal. For an original license, the
applicant must estimate the value of the developmental resources for the
proposed project. As applicable, these developmental resources may
include power generation, water supply, irrigation, navigation, and
flood control. Where possible, the value of developmental resources must
be based on market prices. If a protection, mitigation, or enhancement
measure reduces the amount or value of the project's developmental
resources, the applicant must estimate the reduction.
(F) Consistency with comprehensive plans. Identify relevant
comprehensive plans and explain how and why the proposed project would,
would not, or should not comply with such plans and a description of any
relevant resource agency or Indian tribe determination regarding the
consistency of the project with any such comprehensive plan.
(G) Consultation Documentation. Include a list containing the name,
and address of every Federal, state, and interstate resource agency,
Indian tribe, or member of the public with which the applicant consulted
in preparation of the Environmental Document.
(H) Literature cited. Cite all materials referenced including final
study reports, journal articles, other books, agency plans, and local
government plans.
(iii) The applicant must also provide in the Environmental Document:
(A) Functional design drawings of any fish passage and collection
facilities or any other facilities necessary for implementation of
environmental measures, indicating whether the facilities depicted are
existing or proposed (these drawings must conform to the specifications
of Sec. 4.39 of this chapter regarding dimensions of full-sized prints,
scale, and legibility);
(B) A description of operation and maintenance procedures for any
existing or proposed measures or facilities;
(C) An implementation or construction schedule for any proposed
measures or facilities, showing the intervals following issuance of a
license when implementation of the measures or
[[Page 165]]
construction of the facilities would be commenced and completed;
(D) An estimate of the costs of construction, operation, and
maintenance, of any proposed facilities, and of implementation of any
proposed environmental measures.
(E) A map or drawing that conforms to the size, scale, and
legibility requirements of Sec. 4.39 of this chapter showing by the use
of shading, cross-hatching, or other symbols the identity and location
of any measures or facilities, and indicating whether each measure or
facility is existing or proposed (the map or drawings in this exhibit
may be consolidated).
(c) Exhibit H. The information required to be provided by this
paragraph (c) must be included in the application as a separate exhibit
labeled ``Exhibit H.''
(1) Information to be provided by an applicant for new license:
Filing requirements--(i) Information to be supplied by all applicants.
All Applicants for a new license under this part must file the following
information with the Commission:
(A) A discussion of the plans and ability of the applicant to
operate and maintain the project in a manner most likely to provide
efficient and reliable electric service, including efforts and plans to:
(1) Increase capacity or generation at the project;
(2) Coordinate the operation of the project with any upstream or
downstream water resource projects; and
(3) Coordinate the operation of the project with the applicant's or
other electrical systems to minimize the cost of production.
(B) A discussion of the need of the applicant over the short and
long term for the electricity generated by the project, including:
(1) The reasonable costs and reasonable availability of alternative
sources of power that would be needed by the applicant or its customers,
including wholesale customers, if the applicant is not granted a license
for the project;
(2) A discussion of the increase in fuel, capital, and any other
costs that would be incurred by the applicant or its customers to
purchase or generate power necessary to replace the output of the
licensed project, if the applicant is not granted a license for the
project;
(3) The effect of each alternative source of power on:
(i) The applicant's customers, including wholesale customers;
(ii) The applicant's operating and load characteristics; and
(iii) The communities served or to be served, including any
reallocation of costs associated with the transfer of a license from the
existing licensee.
(C) The following data showing need and the reasonable cost and
availability of alternative sources of power:
(1) The average annual cost of the power produced by the project,
including the basis for that calculation;
(2) The projected resources required by the applicant to meet the
applicant's capacity and energy requirements over the short and long
term including:
(i) Energy and capacity resources, including the contributions from
the applicant's generation, purchases, and load modification measures
(such as conservation, if considered as a resource), as separate
components of the total resources required;
(ii) A resource analysis, including a statement of system reserve
margins to be maintained for energy and capacity; and
(iii) If load management measures are not viewed as resources, the
effects of such measures on the projected capacity and energy
requirements indicated separately;
(iv) For alternative sources of power, including generation of
additional power at existing facilities, restarting deactivated units,
the purchase of power off-system, the construction or purchase and
operation of a new power plant, and load management measures such as
conservation: The total annual cost of each alternative source of power
to replace project power; the basis for the determination of projected
annual cost; and a discussion of the relative merits of each
alternative, including the issues of the period of availability and
dependability of purchased power, average life of alternatives, relative
equivalent availability of generating alternatives, and relative impacts
on the applicant's
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power system reliability and other system operating characteristics; and
the effect on the direct providers (and their immediate customers) of
alternate sources of power.
(D) If an applicant uses power for its own industrial facility and
related operations, the effect of obtaining or losing electricity from
the project on the operation and efficiency of such facility or related
operations, its workers, and the related community.
(E) If an applicant is an Indian tribe applying for a license for a
project located on the tribal reservation, a statement of the need of
such Indian tribe for electricity generated by the project to foster the
purposes of the reservation.
(F) A comparison of the impact on the operations and planning of the
applicant's transmission system of receiving or not receiving the
project license, including:
(1) An analysis of the effects of any resulting redistribution of
power flows on line loading (with respect to applicable thermal,
voltage, or stability limits), line losses, and necessary new
construction of transmission facilities or upgrading of existing
facilities, together with the cost impact of these effects;
(2) An analysis of the advantages that the applicant's transmission
system would provide in the distribution of the project's power; and
(3) Detailed single-line diagrams, including existing system
facilities identified by name and circuit number, that show system
transmission elements in relation to the project and other principal
interconnected system elements. Power flow and loss data that represent
system operating conditions may be appended if applicants believe such
data would be useful to show that the operating impacts described would
be beneficial.
(G) If the applicant has plans to modify existing project facilities
or operations, a statement of the need for, or usefulness of, the
modifications, including at least a reconnaissance-level study of the
effect and projected costs of the proposed plans and any alternate
plans, which in conjunction with other developments in the area would
conform with a comprehensive plan for improving or developing the
waterway and for other beneficial public uses as defined in Section
10(a)(1) of the Federal Power Act.
(H) If the applicant has no plans to modify existing project
facilities or operations, at least a reconnaissance-level study to show
that the project facilities or operations in conjunction with other
developments in the area would conform with a comprehensive plan for
improving or developing the waterway and for other beneficial public
uses as defined in Section 10(a)(1) of the Federal Power Act.
(I) A statement describing the applicant's financial and personnel
resources to meet its obligations under a new license, including
specific information to demonstrate that the applicant's personnel are
adequate in number and training to operate and maintain the project in
accordance with the provisions of the license.
(J) If an applicant proposes to expand the project to encompass
additional lands, a statement that the applicant has notified, by
certified mail, property owners on the additional lands to be
encompassed by the project and governmental agencies and subdivisions
likely to be interested in or affected by the proposed expansion.
(K) The applicant's electricity consumption efficiency improvement
program, as defined under Section 10(a)(2)(C) of the Federal Power Act,
including:
(1) A statement of the applicant's record of encouraging or
assisting its customers to conserve electricity and a description of its
plans and capabilities for promoting electricity conservation by its
customers; and
(2) A statement describing the compliance of the applicant's energy
conservation programs with any applicable regulatory requirements.
(L) The names and mailing addresses of every Indian tribe with land
on which any part of the proposed project would be located or which the
applicant reasonably believes would otherwise be affected by the
proposed project.
(ii) Information to be provided by an applicant licensee. An
existing licensee that applies for a new license must provide:
[[Page 167]]
(A) The information specified in paragraph (c)(1) of this section.
(B) A statement of measures taken or planned by the licensee to
ensure safe management, operation, and maintenance of the project,
including:
(1) A description of existing and planned operation of the project
during flood conditions;
(2) A discussion of any warning devices used to ensure downstream
public safety;
(3) A discussion of any proposed changes to the operation of the
project or downstream development that might affect the existing
Emergency Action Plan, as described in subpart C of part 12 of this
chapter, on file with the Commission;
(4) A description of existing and planned monitoring devices to
detect structural movement or stress, seepage, uplift, equipment
failure, or water conduit failure, including a description of the
maintenance and monitoring programs used or planned in conjunction with
the devices; and
(5) A discussion of the project's employee safety and public safety
record, including the number of lost-time accidents involving employees
and the record of injury or death to the public within the project
boundary.
(C) A description of the current operation of the project, including
any constraints that might affect the manner in which the project is
operated.
(D) A discussion of the history of the project and record of
programs to upgrade the operation and maintenance of the project.
(E) A summary of any generation lost at the project over the last
five years because of unscheduled outages, including the cause,
duration, and corrective action taken.
(F) A discussion of the licensee's record of compliance with the
terms and conditions of the existing license, including a list of all
incidents of noncompliance, their disposition, and any documentation
relating to each incident.
(G) A discussion of any actions taken by the existing licensee
related to the project which affect the public.
(H) A summary of the ownership and operating expenses that would be
reduced if the project license were transferred from the existing
licensee.
(I) A statement of annual fees paid under part I of the Federal
Power Act for the use of any Federal or Indian lands included within the
project boundary.
(iii) Information to be provided by an applicant who is not an
existing licensee. An applicant that is not an existing licensee must
provide:
(A) The information specified in paragraph (c)(1) of this section.
(B) A statement of the applicant's plans to manage, operate, and
maintain the project safely, including:
(1) A description of the differences between the operation and
maintenance procedures planned by the applicant and the operation and
maintenance procedures of the existing licensee;
(2) A discussion of any measures proposed by the applicant to
implement the existing licensee's Emergency Action Plan, as described in
subpart C of part 12 of this chapter, and any proposed changes;
(3) A description of the applicant's plans to continue safety
monitoring of existing project instrumentation and any proposed changes;
and
(4) A statement indicating whether or not the applicant is
requesting the licensee to provide transmission services under section
15(d) of the Federal Power Act.
(d) Consistency with comprehensive plans. An application for license
under this part must include an explanation of why the project would,
would not, or should not, comply with any relevant comprehensive plan as
defined in Sec. 2.19 of this chapter and a description of any relevant
resource agency or Indian tribe determination regarding the consistency
of the project with any such comprehensive plan.
(e) Response to information requests. An application for license
under this Section must respond to any requests for additional
information-gathering or studies filed with comments on its preliminary
licensing proposal or draft license application. If the license
applicant agrees to do the information-gathering or study, it must
provide the information or include a plan and schedule for doing so,
along with a schedule
[[Page 168]]
for completing any remaining work under the previously approved study
plan, as it may have been amended. If the applicant does not agree to
any additional information-gathering or study requests made in comments
on the draft license application, it must explain the basis for
declining to do so.
(f) Maps and drawings. All required maps and drawings must conform
to the specifications of Sec. 4.39 of this chapter.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68
FR 69957, Dec. 16, 2003; Order 699, 72 FR 45324, Aug. 14, 2007; Order
756, 77 FR 4894, Feb. 1, 2012]
Sec. 5.19 Tendering notice and schedule.
(a) Notice. Within 14 days of the filing date of any application for
a license developed pursuant to this part, the Commission will issue
public notice of the tendering for filing of the application. The
tendering notice will include a preliminary schedule for expeditious
processing of the application, including dates for:
(1) Issuance of the acceptance for filing and ready for
environmental analysis notice provided for in Sec. 5.22.
(2) Filing of recommendations, preliminary terms and conditions, and
fishway prescriptions;
(3) Issuance of a draft environmental assessment or environmental
impact statement, or an environmental assessment not preceded by a
draft.
(4) Filing of comments on the draft environmental assessment or
environmental impact statement, as applicable;
(5) Filing of modified recommendations, mandatory terms and
conditions, and fishway prescriptions in response to a draft NEPA
document or Environmental Analysis, if no draft NEPA document is issued;
(6) Issuance of a final NEPA document, if any;
(7) In the case of a new or subsequent license application, a
deadline for submission of final amendments, if any, to the application;
and
(8) Readiness of the application for Commission decision.
(b) Modifications to process plan and schedule. The tendering notice
shall also include any known modifications to the schedules developed
pursuant to Sec. 5.8 for completion of consultation under section 7 of
the Endangered Species Act and water quality certification under section
401 of the Clean Water Act.
(c) Method of notice. The public notice provided for in paragraphs
(a) and (b) of this Section will be given by:
(1) Publishing notice in the Federal Register; and
(2) Notifying appropriate Federal, state, and interstate resource
agencies, state water quality and coastal zone management plan
consistency certification agencies, Indian tribes, and non-governmental
organizations, by electronic means if practical, otherwise by mail.
(d) Resolution of pending information requests. Within 30 days of
the filing date of any application for a license developed pursuant to
this part, the Director of the Office of Energy Projects will issue an
order resolving any requests for additional information-gathering or
studies made in comments on the preliminary licensing proposal or draft
license application.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; 68
FR 69957, Dec. 16, 2003; Order 653, 70 FR 8724, Feb. 23, 2005]
Sec. 5.20 Deficient applications.
(a) Deficient applications. (1) If an applicant believes that its
application conforms adequately to the pre-filing consultation and
filing requirements of this part without containing certain required
materials or information, it must explain in detail why the material or
information is not being submitted and what steps were taken by the
applicant to provide the material or information.
(2) Within 30 days of the filing date of any application for a
license under this part, the Director of the Office of Energy Projects
will notify the applicant if, in the Director's judgment, the
application does not conform to the prefiling consultation and filing
requirements of this part, and is therefore considered deficient. An
applicant having a deficient application will be afforded additional
time to correct the deficiencies, not to exceed 90 days from the date of
notification. Notification will be by letter or, in the case of minor
deficiencies, by telephone. Any
[[Page 169]]
notification will specify the deficiencies to be corrected. Deficiencies
must be corrected by submitting an a filing pursuant to the requirements
of subpart T of part 385 of this chapter within the time specified in
the notification of deficiency.
(3) If the revised application is found not to conform to the
prefiling consultation and filing requirements of this part, or if the
revisions are not timely submitted, the revised application will be
rejected. Procedures for rejected applications are specified in
paragraph (b)(3) of this section.
(b) Patently deficient applications. (1) If, within 30 days of its
filing date, the Director of the Office of Energy Projects determines
that an application patently fails to substantially comply with the
prefiling consultation and filing requirements of this part, or is for a
project that is precluded by law, the application will be rejected as
patently deficient with the specification of the deficiencies that
render the application patently deficient.
(2) If, after 30 days following its filing date, the Director of the
Office of Energy Projects determines that an application patently fails
to comply with the prefiling consultation and filing requirements of
this part, or is for a project that is precluded by law:
(i) The application will be rejected by order of the Commission, if
the Commission determines that it is patently deficient; or
(ii) The application will be considered deficient under paragraph
(a)(2) of this Section, if the Commission determines that it is not
patently deficient.
(3) Any application for an original license that is rejected may be
submitted if the deficiencies are corrected and if, in the case of a
competing application, the resubmittal is timely. The date the rejected
application is resubmitted will be considered the new filing date for
purposes of determining its timeliness under Sec. 4.36 of this chapter
and the disposition of competing applications under Sec. 4.37 of this
chapter.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]
Sec. 5.21 Additional information.
An applicant may be required to submit any additional information or
documents that the Commission considers relevant for an informed
decision on the application. The information or documents must take the
form, and must be submitted within the time, that the Commission
prescribes. An applicant may also be required to provide within a
specified time additional copies of the complete application, or any of
the additional information or documents that are filed, to the
Commission or to any person, agency, Indian tribe or other entity that
the Commission specifies. If an applicant fails to provide timely
additional information, documents, or copies of submitted materials as
required, the Commission may dismiss the application, hold it in
abeyance, or take other appropriate action under this chapter or the
Federal Power Act.
Sec. 5.22 Notice of acceptance and ready for environmental analysis.
(a) When the Commission has determined that the application meets
the Commission's requirements as specified in Sec. Sec. 5.18 and 5.19,
the approved studies have been completed, any deficiencies in the
application have been cured, and no other additional information is
needed, it will issue public notice as required in the Federal Power
Act:
(1) Accepting the application for filing and specifying the date
upon which the application was accepted for filing (which will be the
application filing date if the Secretary receives all of the information
and documents necessary to conform to the requirements of Sec. Sec. 5.1
through 5.21, as applicable, within the time frame prescribed in Sec.
5.20 or Sec. 5.21);
(2) Finding that the application is ready for environmental
analysis;
(3) Requesting comments, protests, and interventions;
(4) Requesting recommendations, preliminary terms and conditions,
and preliminary fishway prescriptions, including all supporting
documentation; and
(5) Establishing the date for final amendments to applications for
new or subsequent licenses; and
(6) Updating the schedule issued with the tendering notice for
processing the application.
[[Page 170]]
(b) If the project affects lands of the United States, the
Commission will notify the appropriate Federal office of the application
and the specific lands affected, pursuant to Section 24 of the Federal
Power Act.
(c) For an application for a license seeking benefits under Section
210 of the Public Utility Regulatory Polices Act of 1978, as amended,
for a project that would be located at a new dam or diversion, the
Applicant must serve the public notice issued under paragraph (a)(1) of
this Section to interested agencies at the time the applicant is
notified that the application is accepted for filing.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]
Sec. 5.23 Response to notice.
(a) Comments and reply comments. Comments, protests, interventions,
recommendations, and preliminary terms and conditions or preliminary
fishway prescriptions must be filed no later than 60 days after the
notice of acceptance and ready for environmental analysis. All reply
comments must be filed within 105 days of that notice.
(b) Water quality certification. (1) With regard to certification
requirements for a license applicant under Section 401(a)(1) of the
Federal Water Pollution Control Act (Clean Water Act), the license
applicant must file no later than 60 days following the date of issuance
of the notice of acceptance and ready for environmental analysis provide
for in Sec. 5.22:
(i) A copy of the water quality certification;
(ii) A copy of the request for certification, including proof of the
date on which the certifying agency received the request; or
(iii) Evidence of waiver of water quality certification as described
in paragraph (b)(5)(2) of this Section.
(2) A certifying agency is deemed to have waived the certification
requirements of section 401(a)(1) of the Clean Water Act if the
certifying agency has not denied or granted certification by one year
after the date the certifying agency received a written request for
certification. If a certifying agency denies certification, the
applicant must file a copy of the denial within 30 days after the
applicant received it.
(3) Notwithstanding any other provision in 18 CFR part 4, subpart B,
any application to amend an existing license, and any application to
amend a pending application for a license, requires a new request for
water quality certification pursuant to Sec. 4.34(b)(5) of this chapter
if the amendment would have a material adverse impact on the water
quality in the discharge from the project or proposed project.
Sec. 5.24 Applications not requiring a draft NEPA document.
(a) If the Commission determines that a license application will be
processed with an environmental assessment rather than an environmental
impact statement and that a draft environmental assessment will not be
required, the Commission will issue the environmental assessment for
comment no later than 120 days from the date responses are due to the
notice of acceptance and ready for environmental analysis.
(b) Each environmental assessment issued pursuant to this paragraph
must include draft license articles, a preliminary determination of
consistency of each fish and wildlife agency recommendation made
pursuant to Federal Power Act section 10(j) with the purposes and
requirements of the Federal Power Act and other applicable law, as
provided for in Sec. 5.26, and any preliminary mandatory terms and
conditions and fishway prescriptions.
(c) Comments on an environmental assessment issued pursuant to
paragraph (a) of this section, including comments in response to the
Commission's preliminary determination with respect to fish and wildlife
agency recommendations and on preliminary mandatory terms and conditions
or fishway prescriptions, must be filed no later than 30 or 45 days
after issuance of the environmental assessment, as specified in the
notice accompanying issuance of the environmental assessment, as should
any revisions to supporting documentation.
(d) Modified mandatory prescriptions or terms and conditions must be
filed no later than 60 days following the date for filing of comments
provided for in
[[Page 171]]
paragraph (c) of this section, as specified in the notice accompanying
issuance of the environmental analysis.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]
Sec. 5.25 Applications requiring a draft NEPA document.
(a) If the Commission determines that a license application will be
processed with an environmental impact statement, or a draft and final
environmental assessment, the Commission will issue the draft
environmental impact statement or environmental assessment for comment
no later than 180 days from the date responses are due to the notice of
acceptance and ready for environmental analysis provided for in Sec.
5.22.
(b) Each draft environmental document will include for comment draft
license articles, a preliminary determination of the consistency of each
fish and wildlife agency recommendation made pursuant to section 10(j)
of the Federal Power Act with the purposes and requirements of the
Federal Power Act and other applicable law, as provided for in Sec.
5.26, and any preliminary mandatory terms and conditions and fishways
prescriptions.
(c) Comments on a draft environmental document issued pursuant to
paragraph (b) of this section, including comments in response to the
Commission's preliminary determination with respect to fish and wildlife
agency recommendations and on preliminary mandatory terms and conditions
or prescriptions must be filed no later than 30 or 60 days after
issuance of the draft environmental document, as specified in the notice
accompanying issuance of the draft environmental document.
(d) Modified mandatory prescriptions or terms and conditions must be
filed no later than 60 days following the date for filing of comments
provided for in paragraph (c) of this section.
(e) The Commission will issue a final environmental document within
90 days following the date for filing of modified mandatory
prescriptions or terms and conditions.
Sec. 5.26 Section 10(j) process.
(a) In connection with its environmental review of an application
for license, the Commission will analyze all terms and conditions timely
recommended by fish and wildlife agencies pursuant to the Fish and
Wildlife Coordination Act for the protection, mitigation of damages to,
and enhancement of fish and wildlife (including related spawning grounds
and habitat) affected by the development, operation, and management of
the proposed project. Submission of such recommendations marks the
beginning of the process under section 10(j) of the Federal Power Act.
(b) The agency must specifically identify and explain the
recommendations and the relevant resource goals and objectives and their
evidentiary or legal basis. The Commission may seek clarification of any
recommendation from the appropriate fish and wildlife agency. If the
Commission's request for clarification is communicated in writing,
copies of the request will be sent by the Commission to all parties,
affected resource agencies, and Indian tribes, which may file a response
to the request for clarification within the time period specified by the
Commission. If the Commission believes any fish and wildlife
recommendation may be inconsistent with the Federal Power Act or other
applicable law, the Commission will make a preliminary determination of
inconsistency in the draft environmental document or, if none, the
environmental assessment. The preliminary determination, for any
recommendations believed to be inconsistent, shall include an
explanation why the Commission believes the recommendation is
inconsistent with the Federal Power Act or other applicable law,
including any supporting analysis and conclusions and an explanation of
how the measures recommended in the environmental document would
adequately and equitably protect, mitigate damages to, and enhance, fish
and wildlife (including related spawning grounds and habitat) affected
by the development, operation, and management of the project.
(c) Any party, affected resource agency, or Indian tribe may file
comments
[[Page 172]]
in response to the preliminary determination of inconsistency, including
any modified recommendations, within the time frame allotted for
comments on the draft environmental document or, if none, the time frame
for comments on the environmental assessment. In this filing, the fish
and wildlife agency concerned may also request a meeting, telephone or
video conference, or other additional procedure to attempt to resolve
any preliminary determination of inconsistency.
(d) The Commission shall attempt, with the agencies, to reach a
mutually acceptable resolution of any such inconsistency, giving due
weight to the recommendations, expertise, and statutory responsibilities
of the fish and wildlife agency. If the Commission decides, or an
affected resource agency requests, the Commission will conduct a
meeting, telephone or video conference, or other procedures to address
issues raised by its preliminary determination of inconsistency and
comments thereon. The Commission will give at least 15 days' advance
notice to each party, affected resource agency, or Indian tribe, which
may participate in the meeting or conference. Any meeting, conference,
or additional procedure to address these issues will be scheduled to
take place within 90 days of the date the Commission issues a
preliminary determination of inconsistency. The Commission will prepare
a written summary of any meeting held under this paragraph to discuss
section 10(j) issues, including any proposed resolutions and supporting
analysis, and a copy of the summary will be sent to all parties,
affected resource agencies, and Indian tribes.
(e) The section 10(j) process ends when the Commission issues an
order granting or denying the license application in question. If, after
attempting to resolve inconsistencies between the fish and wildlife
recommendations of a fish and wildlife agency and the purposes and
requirements of the Federal Power Act or other applicable law, the
Commission does not adopt in whole or in part a fish and wildlife
recommendation of a fish and wildlife agency, the Commission will
publish the findings and statements required by section 10(j)(2) of the
Federal Power Act.
Sec. 5.27 Amendment of application.
(a) Procedures. If an Applicant files an amendment to its
application that would materially change the project's proposed plans of
development, as provided in Sec. 4.35 of this chapter, an agency,
Indian tribe, or member of the public may modify the recommendations or
terms and conditions or prescriptions it previously submitted to the
Commission pursuant to Sec. Sec. 5.20-5.26. Such modified
recommendations, terms and conditions, or prescriptions must be filed no
later than the due date specified by the Commission for comments on the
amendment.
(b) Date of acceptance. The date of acceptance of an amendment of
application for an original license filed under this part is governed by
the provisions of Sec. 4.35 of this chapter.
(c) New and subsequent licenses. The requirements of Sec. 4.35 of
this chapter do not apply to an application for a new or subsequent
license, except that the Commission will reissue a public notice of the
application in accordance with the provisions of Sec. 4.32(d)(2) of
this chapter if a material amendment, as that term is used in Sec.
4.35(f) of this chapter, is filed.
(d) Deadline. All amendments to an application for a new or
subsequent license, including the final amendment, must be filed with
the Commission and served on all competing applicants no later than the
date specified in the notice issued under Sec. 5.22.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]
Sec. 5.28 Competing applications.
(a) Site access for a competing applicant. The provisions of Sec.
16.5 of this chapter shall govern site access for a potential license
application to be filed in competition with an application for a new or
subsequent license by an existing licensee pursuant to this part, except
that references in Sec. 16.5 to the pre-filing consultation provisions
in parts 4 and 16 of this chapter shall be construed in a manner
compatible with the effective administration of this part.
(b) Competing applications. The provisions of Sec. 4.36 of this
chapter shall apply to competing applications for
[[Page 173]]
original, new, or subsequent licenses filed under this part.
(c) New or subsequent license applications--final amendments; better
adapted statement. Where two or more mutually exclusive competing
applications for new or subsequent license have been filed for the same
project, the final amendment date and deadlines for complying with
provisions of Sec. 4.36(d)(2) (ii) and (iii) of this chapter
established pursuant to the notice issued under Sec. 5.22 will be the
same for all such applications.
(d) Rules of preference among competing applicants. The Commission
will select among competing applications according to the provisions of
Sec. 4.37 of this chapter.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR 61743, Oct. 30, 2003]
Sec. 5.29 Other provisions.
(a) Filing requirement. Unless otherwise provided by statute,
regulation or order, all filings in hydropower hearings, except those
conducted by trial-type procedures, must conform to the requirements of
18 CFR part 385, subpart T of this chapter.
(b) Waiver of compliance with consultation requirements. (1) If an
agency, Indian tribe, or member of the public waives in writing
compliance with any consultation requirement of this part, an applicant
does not have to comply with the requirement as to that agency, Indian
tribe, or member of the public.
(2) If an agency, Indian tribe, member of the public fails to timely
comply with a provision regarding a requirement of this section, an
applicant may proceed to the next sequential requirement of this section
without waiting for the agency, Indian tribe, or member of the public.
(c) Requests for privileged or Critical Energy Infrastructure
Information treatment of pre-filing submission. If a potential Applicant
requests privileged or critical energy infrastructure information
treatment of any information submitted to the Commission during pre-
filing consultation (except for the information specified in Sec. 5.4),
the Commission will treat the request in accordance with the provisions
in Sec. 388.112 of this chapter until the date the application is filed
with the Commission.
(d) Conditional applications. Any application, the effectiveness of
which is conditioned upon the future occurrence of any event or
circumstance, will be rejected.
(e) Trial-type hearing. The Commission may order a trial-type
hearing on an application for a license under this part either upon its
own motion or the motion of any interested party of record. Any trial-
type hearing will be limited to the issues prescribed by order of the
Commission. In all other cases, the hearings will be conducted by notice
and comment procedures.
(f) Notice and comment hearings. (1) All comments and reply comments
and all other filings described in this part must be served on all
persons on the service list prepared by the Commission, in accordance
with the requirements of Sec. 385.2010 of this chapter. If a party
submits any written material to the Commission relating to the merits of
an issue that may affect the responsibility of particular resource
agency, the party must also serve a copy of the submission on that
resource agency.
(2) The Director of Energy Projects may waive or modify any of the
provisions of this part for good cause. A commenter or reply commenter
may obtain an extension of time from the Commission only upon a showing
of good cause or extraordinary circumstances in accordance with Sec.
385.2008 of this chapter.
(3) Late-filed recommendations by fish and wildlife agencies
pursuant to the Fish and Wildlife Coordination Act and section 10(j) of
the Federal Power Act for the protection, mitigation of damages to, and
enhancement of fish and wildlife affected by the development, operation,
and management of the proposed project and late-filed terms and
conditions or prescriptions filed pursuant to sections 4(e) and 18 of
the Federal Power Act, respectively, will be considered by Commission
under section 10(a) of the Federal Power Act if such consideration would
not delay or disrupt the proceeding.
(g) Settlement negotiations. (1) The Commission will consider, on a
case-by-case basis, requests for a short suspension of the procedural
schedule for
[[Page 174]]
the purpose of participants conducting settlement negotiations, where it
determines that the suspension will not adversely affect timely action
on a license application. In acting on such requests, the Commission
will consider, among other things:
(i) Whether requests for suspension of the procedural schedule have
previously been made or granted;
(ii) Whether the request is supported by a consensus of participants
in the proceeding and an explanation of objections to the request
expressed by any participant;
(iii) The likelihood that a settlement agreement will be filed
within the requested suspension period; and
(iv) Whether the requested suspension is likely to cause any new or
subsequent license to be issued after the expiration of the existing
license.
(2) The Commission reserves the right to terminate any suspension of
the procedural schedule if it concludes that insufficient progress is
being made toward the filing of a settlement agreement.
(h) License conditions and required findings. (1) All licenses shall
be issued on the conditions specified in Section 10 of the Federal Power
Act and such other conditions as the Commission determines are lawful
and in the public interest.
(2) Subject to paragraph (f)(3) of this section, fish and wildlife
conditions shall be based on recommendations timely received from the
fish and wildlife agencies pursuant to the Fish and Wildlife
Coordination Act.
(3) The Commission will consider the timely recommendations of
resource agencies, other governmental units, and members of the public,
and the timely recommendations (including fish and wildlife
recommendations) of Indian tribes affected by the project.
(4) Licenses for a project located within any Federal reservation
shall be issued only after the findings required by, and subject to any
conditions that may be timely filed pursuant to section 4(e) of the
Federal Power Act.
(5) The Commission will require the construction, maintenance, and
operation of such fishways as may be timely prescribed by the Secretary
of Commerce or the Secretary of the Interior, as appropriate, pursuant
to section 18 of the Federal Power Act.
(i) Standards and factors for issuing a new license. (1) In
determining whether a final proposal for a new license under section 15
of the Federal Power Act is best adapted to serve the public interest,
the Commission will consider the factors enumerated in sections 15(a)(2)
and (a)(3) of the Federal Power Act.
(2) If there are only insignificant differences between the final
applications of an existing licensee and a competing Applicant after
consideration of the factors enumerated in section 15(a)(2) of the
Federal Power Act, the Commission will determine which Applicant will
receive the license after considering:
(i) The existing licensee's record of compliance with the terms and
conditions of the existing license; and
(ii) The actions taken by the existing licensee related to the
project which affect the public.
(iii) An existing licensee that files an application for a new
license in conjunction with an entity or entities that are not currently
licensees of all or part of the project will not be considered an
existing licensee for the purpose of the insignificant differences
provision of section 15(a)(2) of the Federal Power Act.
(j) Fees under section 30(e) of the Federal Power Act. The
requirements of 18 CFR part 4, subpart M, of this chapter, fees under
section 30(e) of the Federal Power Act, apply to license applications
developed under this part.
[Order 2002, 68 FR 51121, Aug. 25, 2003, as amended by Order 769, 77 FR
65475, Oct. 29, 2012]
Sec. 5.30 Critical energy infrastructure information.
If any action required by this part requires a potential Applicant
or Applicant to reveal Critical Energy Infrastructure Information, as
defined by Sec. 388.113(c) of this chapter, to the public, the
Applicant must follow the procedures set out in Sec. 4.32(k) of this
chapter.
Sec. 5.31 Transition provision.
This part shall apply to license applications for which the deadline
for filing a notification of intent to seek a
[[Page 175]]
new or subsequent license, or for filing a notification of intent to
file an original license application, as required by Sec. 5.5 of this
part, is July 23, 2005 or later.
PART 6_SURRENDER OR TERMINATION OF LICENSE--Table of Contents
Sec.
6.1 Application for surrender.
6.2 Surrender of license.
6.3 Termination of license.
6.4 Termination by implied surrender.
6.5 Annual charges.
Authority: Secs. 6, 10(i), 13, 41 Stat. 1067, 1068, 1071, as
amended, sec. 309, 49 Stat. 858; 16 U.S.C. 799, 803(i), 806, 825h; Pub.
L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.), unless otherwise
noted.
Sec. 6.1 Application for surrender.
Every application for surrender of a license shall state the reason
therefor; and, except in the case of an application for surrender of a
license for a minor project, or for a transmission line only, shall be
executed by the licensee and filed in the same form and manner as the
application for license, and shall be accompanied by the license and all
amendments thereof. Public notice of such application shall be given at
least 30 days prior to action upon the application.
(Secs. 308 and 309; 49 Stat. 858, 859 (16 U.S.C. 825g, 825h))
[Order 570, 42 FR 40191, Aug. 9, 1977]
Cross References: For application for license, general provisions,
see Sec. Sec. 4.30 to 4.33, inclusive, of this chapter. For application
for license for proposed major project or minor part thereof, see
Sec. Sec. 4.40 to 4.41, inclusive, of this chapter. For application for
license for constructed major project or minor part thereof, see
Sec. Sec. 4.50 and 4.51 of this chapter.
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
[[Page 176]]
forth in the Commission's order with respect to such surrender or
termination.
[Order 175, 19 FR 5217, Aug. 18, 1954]
Cross Reference: For annual charges, see part 11 of this chapter.