Last updated on July 30th, 2024 at 07:41 pm
Title 18—Conservation of Power and Water Resources–Volume 1
M.c.f. = Thousand cubic feet. B.t.u. = British thermal units. ICC = Interstate Commerce Commission.
CHAPTER I—FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
SUBCHAPTER A—GENERAL RULES
PART 1—RULES OF GENERAL APPLICABILITY
Subpart A—Definitions and Rules of Construction
§ 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.
§ 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.
PART 1b—RULES RELATING TO INVESTIGATIONS
§ 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.
§ 1b.2 Scope.
This part applies to investigations conducted by the Commission but does not apply to adjudicative proceedings.
§ 1b.3 Scope of investigations.
The Commission may conduct investigations relating to any matter subject to its jurisdiction.
§ 1b.4 Types of investigations.
Investigations may be formal or preliminary, and public or private.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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 § 1b.20. A request for confidential treatment of information for purposes of Freedom of Information Act disclosure shall not, however, prevent disclosure for law enforcement purposes or when disclosure is otherwise found appropriate in the public interest and permitted by law.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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 § 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 § 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
PART 1c—PROHIBITION OF ENERGY MARKET MANIPULATION
§ 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.
§ 1c.2 Prohibition of electric energy market manipulation.
(a) It shall be unlawful for any entity, directly or indirectly, in connection with the purchase or sale of electric energy or the purchase or sale of transmission services subject to the jurisdiction of the Commission,
(1) To use or employ any device, scheme, or artifice to defraud,
(2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(3) To engage in any act, practice, or course of business that operates or would operate as a fraud or deceit upon any entity.
(b) Nothing in this section shall be construed to create a private right of action.
PART 2—GENERAL POLICY AND INTERPRETATIONS
Statements of General Policy and Interpretations of the Commission
§ 2.1 Initial notice; service; and information copies of formal documents.
(a) Whenever appropriate, publication of an initial notice or order in the
(1) It is the policy of the Commission to publish notice in the
(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.
(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 § 385.2008 of this chapter, unless otherwise directed.
(G) Consolidations and severance pursuant to § 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.
§ 2.1a Public suggestions, comments, proposals on substantial prospective regulatory issues and problems.
(a) The Commission by this policy statement explicitly encourages the public, including those persons subject to regulation by the Commission, to submit suggestions, comments, or proposals concerning substantial prospective regulatory policy issues and problems, the resolution of which will have a substantial impact upon those regulated by the Commission or others affected by the Commission’s activities. This policy is intended to serve as a means of advising the Commission on a timely basis of potential significant issues and problems which may come before it in the course of its activities and to permit the Commission an early opportunity to consider argument regarding policy questions and administrative reforms in a general context rather than in the course of individual proceedings.
(b) Upon receipt of suggestions, comments, or proposals pursuant to paragraph (a) of this section, the Commission shall review the matters raised and take whatever action is deemed necessary with respect to the filing, including, but not limited to, requesting further information from the filing party, the public, or the staff, or prescribing an informal public conference for initial discussion and consultation with the Commission, a Commissioner, or the Staff, concerning the matter(s) raised. In the absence of a notice of proposed rulemaking, any conferences or procedures undertaken pursuant to this section shall not be deemed by the Commission as meeting the requirements of the Administrative Procedure Act with respect to notice of rulemakings, but are to be utilized by the Commission as initial discussions for advice as a means of determining the need for Commission action, investigation or study prior to the issuance of a notice of proposed rulemaking to the extent required by the Administrative Procedure Act, 5 U.S.C. 553.
(c) [Reserved]
(d) A person may not invoke this policy as a means of advocating ex parte before the Commission a position in a proceeding pending at the Commission and any such filing will be rejected. Comments must relate to general conditions in industry or the public or policies or practices of the Commission which may need reform, review, or initial consideration by the Commission.
§ 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.
§ 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 and Alaska Native Claims Settlement Act (ANCSA) Corporations 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 with ANCSA Corporations in a similar manner, and will seek to address the effects of proposed projects on tribal rights and resources through consultation pursuant to the Commission’s trust responsibility, the Federal Power Act, the Natural Gas Act, the Public Utility Regulatory Policies Act, section 32 of the Public Utility Holding Company Act, the Interstate Commerce Act, the Outer Continental Shelf Lands Act, section 106 of the National Historic Preservation Act, and in the Commission’s environmental and decisional documents.
(d) As an independent regulatory agency, the Commission functions as a neutral, quasi-judicial body, rendering decisions on applications filed with it, and resolving issues among parties appearing before it, including Indian tribes. Therefore, the provisions of the Administrative Procedure Act and the Commission’s rules concerning off-the-record communications, as well as the nature of the Commission’s licensing and certificating processes and of the Commission’s review of jurisdictional rates, terms and conditions, place some limitations on the nature and type of consultation that the Commission may engage in with any party in a contested case. Nevertheless, the Commission will endeavor, to the extent authorized by law, to reduce procedural impediments to working directly and effectively with tribal governments.
(e) The Commission, in keeping with its trust responsibility, will assure that tribal concerns and interests are considered whenever the Commission’s actions or decisions have the potential to adversely affect Indian tribes, Indian trust resources, or treaty rights. The Commission will use the agency’s environmental and decisional documents to communicate how tribal input has been considered.
(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.
Statements of General Policy and Interpretations Under the Federal Power Act
§ 2.2 Transmission lines.
In a public statement dated March 7, 1941, the Commission announced its determination that transmission lines which are not primary lines transmitting power from the power house or appurtenant works of a project to the point of junction with the distribution system or with the interconnected primary transmission system as set forth in section 3(11) of the Act are not within the licensing authority of the Commission, and directed that future applications filed with it for such licenses be referred for appropriate action to the Federal department having supervision over the lands or waterways involved.
§ 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.
§ 2.7 Recreational development at licensed projects.
The Commission will evaluate the recreational resources of all projects under Federal license or applications therefor and seek, within its authority, the ultimate development of these resources, consistent with the needs of the area to the extent that such development is not inconsistent with the primary purpose of the project. Reasonable expenditures by a licensee for public recreational development pursuant to an approved plan, including the purchase of land, will be included as part of the project cost. The Commission will not object to licensees and operators of recreational facilities within the boundaries of a project charging reasonable fees to users of such facilities in order to help defray the cost of constructing, operating, and maintaining such facilities. The Commission expects the licensee to assume the following responsibilities:
(a) To acquire in fee and include within the project boundary enough land to assure optimum development of the recreational resources afforded by the project. To the extent consistent with the other objectives of the license, such lands to be acquired in fee for recreational purposes shall include the lands adjacent to the exterior margin of any project reservoir plus all other project lands specified in any approved recreational use plan for the project.
(b) To develop suitable public recreational facilities upon project lands and waters and to make provisions for adequate public access to such project facilities and waters and to include therein consideration of the needs of persons with disabilities in the design and construction of such project facilities and access.
(c) To encourage and cooperate with appropriate local, State, and Federal agencies and other interested entities in the determination of public recreation needs and to cooperate in the preparation of plans to meet these needs, including those for sport fishing and hunting.
(d) To encourage governmental agencies and private interests, such as operators of user-fee facilities, to assist in carrying out plans for recreation, including operation and adequate maintenance of recreational areas and facilities.
(e) To cooperate with local, State, and Federal Government agencies in planning, providing, operating, and maintaining facilities for recreational use of public lands administered by those agencies adjacent to the project area.
(f)(1) To comply with Federal, State and local regulations for health, sanitation, and public safety, and to cooperate with law enforcement authorities in the development of additional necessary regulations for such purposes.
(2) To provide either by itself or through arrangement with others for facilities to process adequately sewage, litter, and other wastes from recreation facilities including wastes from watercraft, at recreation facilities maintained and operated by the licensee or its concessionaires.
(g) To ensure public access and recreational use of project lands and waters without regard to race, color, sex, religious creed or national origin.
(h) To inform the public of the opportunities for recreation at licensed projects, as well as of rules governing the accessibility and use of recreational facilities.
§ 2.8 [Reserved]
§ 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.
§ 2.12 Calculation of taxes for property of public utilities and licensees constructed or acquired after January 1, 1970.
Pursuant to the provisions of section 441(a)(4)(A) of the Tax Reform Act of 1969, 83 Stat. 487, 625, public utilities and licensees regulated by the Commission under the Federal Power Act which have exercised the option provided by that section to change from flow through accounting will be permitted by the Commission, with respect to liberalized depreciation, to employ a normalization method for computing federal income taxes in their accounts and annual reports with respect to property constructed or acquired after January 1, 1970, to the extent with which such property increases the productive or operational capacity of the utility and is not a replacement of existing capacity. Such normalization will also be permitted for ratemaking purposes to the extent such rates are subject to the Commission’s ratemaking authority. As to balances in Account 282 of the Uniform System of Accounts, “Accumulated deferred income taxes—Other property,” it will remain the Commission’s policy to deduct such balances from rate base in rate proceedings.
§ 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 policies, 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.
§ 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
(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.
§ 2.17 Price discrimination and anticompetitive effect (price squeeze issue).
To implement compliance with the Supreme Court decision in F.P.C. v. Con-Way Corp., 426 U.S. 271 (1976), aff’g 510 F. 2d 1264 (D.C. Cir. 1975) and to expedite the consideration of price squeeze issues in wholesale electric rate proceedings, the Commission adopts the following procedures for raising price squeeze issues which are to be followed unless they are demonstrated in an individual case to be inadequate:
(a) Any wholesale customer, state commission or other interested person may file petitions to intervene alleging price discrimination and anticompetitive effects of the wholesale rates. In order to have the issue of price discrimination considered in the rate proceeding, the intervening customer or other interested person must support its allegation by a prima facie case. The elements of the prima facie case shall include at a minimum:
(1) Specification of the filing utility’s retail rate schedules with which the intervening wholesale customer is unable to compete due to purchased power costs;
(2) A showing that a competitive situation exists in that the wholesale customer competes in the same market as the filing utility;
(3) A showing that the retail rates are lower than the proposed wholesale rates for comparable service;
(4) The wholesale customer’s prospective rate for comparable retail service, i.e. the rate necessary to recover bulk power costs (at the proposed wholesale rate) and distribution costs;
(5) An indication of the reduction in the wholesale rate necessary to eliminate the price squeeze alleged.
(b) Where price squeeze is alleged, the Commission shall, in the order granting intervention, direct the Administrative Law Judge to convene a prehearing conference within 15 days from the date of the order for the purpose of hearing intervenors’ request for data required to present their case, including prima facie showing, on price squeeze issues.
(c) Within 30 days from the date of the conference the filing utility shall respond to the data requests authorized by the Administrative Law Judge.
(d) Within 30 days from the filing utility’s response, the intervenors shall file their case-in-chief on price squeeze issues, which shall include their prima facie case, unless filed previously.
(e) The burden of proof (i.e. the risk of nonpersuasion) to rebut the allegations of price squeeze and to justify the proposed rates are on the utility proposing the rates under section 205(e) of the Federal Power Act.
(f) In proceedings where price squeeze is an issue, the Secretary shall include the state commission, agency or body which is responsible for regulation of retail rates in the state affected in the service list maintained under § 385.2010(c) of this chapter.
§ 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.
§ 2.19 State and Federal comprehensive plans.
(a) In determining whether the proposed hydroelectric project is best adapted to a comprehensive plan under section (10)(a)(1) of the Federal Power Act for improving or developing a waterway, the Commission will consider the extent to which the project is consistent with a comprehensive plan (where one exists) for improving, developing, or conserving a waterway or waterways affected by the project that is prepared by:
(1) An agency established pursuant to Federal law that has the authority to prepare such a plan, or
(2) A state agency, of the state in which the facility is or will be located, authorized to conduct such planning pursuant to state law.
(b) The Commission will treat as a state or Federal comprehensive plan a plan that:
(1) Is a comprehensive study of one or more of the beneficial uses of a waterway or waterways;
(2) Includes a description of the standards applied, the data relied upon, and the methodology used in preparing the plan; and
(3) Is filed with the Secretary of the Commission.
§ 2.20 Good faith requests for transmission services and good faith responses by transmitting utilities.
(a) General Policy. (1) This Statement of Policy is adopted in furtherance of the goals of sections 211(a) and 213(a) of the Federal Power Act, as amended and added by the Energy Policy Act of 1992.
(2) Under section 211(a), the Commission may issue an order requiring a transmitting utility to provide transmission services (including any enlargement of transmission capacity necessary to provide such services) only if an applicant has made a request for transmission services to the transmitting utility that would be the subject of such order at least 60 days prior to its filing of an application for such order. The requirement in section 211(a) that an applicant make such a request will be met if such an applicant has, pursuant to section 213(a) of the FPA, made a good faith request to a transmitting utility to provide wholesale transmission services and requests specific rates and charges, and other terms and conditions.
(3) It is the Commission’s intention to apply the standards of this Statement of Policy when determining whether and when a valid “good faith” request for service was made.
(4) It is the Commission’s intention to encourage an open exchange of information that exhibits a reasonable degree of specificity and completeness between the party requesting transmission services and the transmitting utility.
(5) The Commission intends to apply this Statement of Policy so as to carry out Congress’ objective that, subject to appropriate terms and conditions and just and reasonable rates, in conformance with section 212 of the FPA, access to the electric transmission system for the purposes of wholesale transactions be more widely available.
(b) The Components of a good faith request. The Commission generally considers the following to constitute the minimum components of a good faith request for transmission services:
(1) The identity, address, telephone number, and facsimile number of the party requesting transmission services, and the same information, if different, for the party’s contact person or persons.
(2) A statement that the party requesting transmission services is, or will be upon commencement of service, an entity eligible to request transmission under sections 211(a) and 213(a) of the FPA.
(3) A statement that the request for transmission services is intended to satisfy the “request for transmission services” requirement under sections 211(a) and 213(a) of the FPA, and that the request is not a request for mandatory retail wheeling prohibited under section 212(h) of the FPA.
(4) The party requesting transmission services should specify the character and nature of the services requested. Some types of service may require more detailed information than others. Where point-to-point service is requested, the party requesting transmission services should specify the anticipated point(s) of receipt to the transmitting utility’s grid and the anticipated point(s) of delivery from the transmitting utility’s grid. Where a party requesting transmission services requests additional flexibility to schedule multiple resources to meet its needs (e.g., network service), the request for services should contain a description of the requested services in sufficient detail to permit the transmitting utility to model the additional services on its transmission system.
(5) The names of any other parties likely to provide transmission service to deliver electric energy to, and receive electric energy from, the transmitting utility’s grid in connection with the requested transmission services.
(6) The proposed dates for initiating and terminating the requested transmission services.
(7) The total amount of transmission capacity being requested.
(8) To the extent it is known or can be estimated, a description of the “expected transaction profile” including load factor data describing the hourly quantities of power and energy the party requesting transmission services would expect to deliver to the transmitting utility’s grid at relevant points of interconnection. In the event delivery is to multiple points within the transmitting utility’s electric control area, the requestor should describe, to the extent it is known or can be estimated, the expected load (over a given duration of time) at each such delivery point.
(9) Whether firm or non-firm service is being requested. Where a party requests non-firm service, it should specify the priority of service it is willing to accept, or the conditions under which it is willing to accept interruption or curtailment, if known.
(10) A statement as to whether the request is being made in response to a solicitation and a copy of the solicitation if publicly available. This will help the transmitting utility determine whether requests for transmission service are duplicative or mutually exclusive of requests filed by other parties.
(11) The proposed rates, terms and conditions for the requested transmission services as required by section 213(a). It is not necessary for the requestor to propose a specific numerical rate. Rather, a party requesting transmission services can fulfill the rates, terms and conditions requirement by specifying a rate methodology (e.g., embedded or incremental cost) or by referencing an existing formula rate, transmission tariff, or transmission contract. The validity of the good faith request will not depend on the rates proposed by the party requesting transmission services. This requirement is not intended to allow utilities to delay responses to requests for transmission services, or to deny requests for transmission services on the basis of an overly rigid or technical approach to the “rates, terms and conditions” element of the request.
(12) Any other information to facilitate the expeditious processing of its request. Such information will improve the negotiation process, reduce costs, and will improve chances to arrange the requested transmission without resorting to section 211 application procedures before the Commission.
(c) Components of a Reply to a Good Faith Request. The Commission generally considers the following to constitute the minimum components of a reply to a good faith request for transmission services under section 213(a):
(1) Unless the parties agree to a different time frame, the transmitting utility must acknowledge the request within 10 days of receipt. The acknowledgement must include a date by which a response will be sent to the party requesting transmission services and a statement of any fees associated with responding to the request (e.g., initial studies).
(2) The transmitting utility may ask the applicant to provide clarification of only the information needed to evaluate and process a “good faith” request. If the person requesting transmission services believes the transmitting utility is attempting to frustrate the process by making excessive requests for clarification, it may raise this issue if, and when, it files a request for a section 211 order with the Commission.
(3) The transmitting utility must respond to a request within 60 days of receipt or some other mutually agreed upon response date. If both parties agree to an alternative schedule, the agreement must be in writing and signed by both parties.
(4) If the transmitting utility determines that it can provide all the requested services from existing capacity, it should respond by offering the party requesting transmission services an executable service agreement that at a minimum contains the following information:
(i) A description of the proposed transmission rate and any other costs. It is not necessary for the proposed service agreement to contain a fully developed cost-of-service. However, the agreement should explain the basis for the charges for each component of service, including the unbundled components of any transmission rate as well as any other charges.
(ii) The proposed service agreement should explicitly describe all of the applicable terms and conditions of the transmission services provided under the agreement.
(iii) The transmitting utility should accompany the proposed service agreement with a clear statement of the time during which the offer to provide the transmission services will remain open. An open agreement offer may obligate the seller while imposing no 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).
§ 2.21 Regional Transmission Groups.
(a) General policy. The Commission encourages Regional Transmission Groups (RTGs) as a means of enabling the market for electric power to operate in a more competitive and efficient way. The Commission believes that RTGs can provide a means of coordinating regional planning of the transmission system and assuring that system capabilities are always adequate to meet system demands. RTG agreements that contain components that satisfy paragraphs (b) and (c) of this section generally will be considered to be just, reasonable, and not unduly discriminatory or preferential under the Federal Power Act (FPA). The Commission encourages RTG agreements that contain as much detail as possible in all of the components listed, particularly if the RTG participants will be seeking Commission deference to decisions reached under an RTG agreement.
(b) Organizational components. (1) An RTG agreement should provide for broad membership and, at a minimum, allow any entity that is subject to, or eligible to apply for, an order under section 211 of the FPA to be a member. An RTG agreement should encompass an area of sufficient size and contiguity to enable members to provide transmission services in a reliable, efficient, and competitive manner.
(2) An RTG agreement should provide a means of adequate consultation and coordination with relevant state regulatory, siting, and other authorities.
(3) An RTG agreement should include fair and nondiscriminatory governance and decision making procedures, including voting procedures.
(c) Other components. (1) An RTG agreement should impose on member transmitting utilities an obligation to provide transmission services for other members, including the obligation to enlarge facilities, on a basis that is consistent with sections 205, 206, 211, 212 and 213 of the FPA. To the extent practicable and known, the RTG agreement should specify the terms and conditions under which transmission services will be offered.
(2) An RTG agreement should require, at a minimum, the development of a coordinated transmission plan on a regional basis and the sharing of transmission planning information, with the goal of efficient use, expansion, and coordination of the interconnected electric system on a grid-wide basis. An RTG agreement should provide mechanisms to incorporate the transmission needs of non-members into regional plans. An RTG agreement should include as much detail as possible with regard to operational and planning procedures.
(3) An RTG agreement should include voluntary dispute resolution procedures that provide a fair alternative to resorting in the first instance to section 206 complaints or section 211 proceedings.
(4) An RTG agreement should include an exit provision for RTG members that leave the RTG, specifying the obligations of a departing member.
(d) Filing procedures. Any proposed RTG agreement that in any manner affects or relates to the transmission of electric energy in interstate commerce by a public utility, or rates or charges for such transmission, must be filed with the Commission. Any public utility member of a proposed RTG may file the RTG agreement with the Commission on behalf of the other public utility members under section 205 of the FPA.
§ 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.
The Commission will address and consider cumulative impact issues at original licensing and relicensing to the fullest extent possible consistent with the Commission’s statutory responsibility to avoid undue delay in the relicensing process and to avoid undue delay in the amelioration of individual project impacts at relicensing. To the extent, if any, that it is not possible to explore and address all cumulative impacts at relicensing, the Commission will reserve authority to examine and address such impacts after the new license has been issued, but will define that reserved authority as narrowly and with as much specificity as possible, particularly with respect to the purpose of reserving that authority. The Commission intends that such articles will describe, to the maximum extent possible, reasonably foreseeable future resource concerns that may warrant modifications of the licensed project. Before taking any action pursuant to such reserved authority, the Commission will publish notice of its proposed action and will provide an opportunity for hearing by the licensee and all interested parties. Hydropower licenses also contain standard “reopener” articles (see § 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.
§ 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.
§ 2.25 Ratemaking treatment of the cost of emissions allowances in coordination transactions.
(a) General Policy. This Statement of Policy is adopted in furtherance of the goals of Title IV of the Clean Air Act Amendments of 1990, Pub. L. 101-549, Title IV, 104 Stat. 2399, 2584 (1990).
(b) Costing Emissions Allowances in Coordination Sales. If a public utility’s coordination rate on file with the Commission provides for recovery of variable costs on an incremental basis, the Commission will allow recovery of the incremental costs of emissions allowances associated with a coordination sale. If a coordination rate does not reflect incremental costs, the public utility should propose alternative allowance costing methods or demonstrate that the coordination rate does not produce unreasonable results. The Commission finds that the cost to replace an allowance is an appropriate basis to establish the incremental cost.
(c) Use of Indices. The Commission will allow public utilities to determine emissions allowance costs on the basis of an index or combination of indices of the current price of emissions allowances, provided that the public utility affords purchasing utilities the option of providing emissions allowances. Public utilities should explain and justify any use of different incremental cost indices for pricing coordination sales and making dispatch decisions.
(d) Calculation of Amount of Emissions Allowances Associated With Coordination Transactions. Public utilities should explain the methods used to compute the amount of emissions allowances included in coordination transactions.
(e) Timing. (1) Public utilities should provide information to purchasing utilities regarding the timing of opportunities for purchasers to stipulate whether they will purchase or return emissions allowances. A public utility may require a purchasing utility to declare, no later than the beginning of the coordination transaction:
(i) Whether it will purchase or return emissions allowances; and
(ii) If it will return emissions allowances, the date on which those allowances will be returned.
(2) Public utilities may include in agreements with purchasing utilities non-discriminatory provisions for indemnification if the purchasing utility fails to provide emissions allowances by the date on which it declares that the allowances will be returned.
(f) Other Costing Methods Not Precluded. The ratemaking treatment of emissions allowance costs endorsed in this Policy Statement does not preclude other approaches proposed by individual utilities on a case-by-case basis.
§ 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.
Non-Mandatory Guidance on Smart Grid Standards
§ 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;
(c) WEQ-018, Specifications for Wholesale Standard Demand Response Signals (WEQ Version 003.2, Dec. 8, 2017);
(d) WEQ-019, Customer Energy Usage Information Communication (WEQ Version 003.1, Sep. 30, 2015); 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 website is at https://www.naesb.org/. Copies may also be obtained from the Federal Energy Regulatory Commission’s website, https://www.ferc.gov.
Statements of General Policy and Interpretations Under the Natural Gas Act
§ 2.51 [Reserved]
§ 2.52 Suspension of rate schedules.
The interpretation stated in § 2.4 applies as well to the suspension of rate schedules under section 4 of the Natural Gas Act.
§ 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 § 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.
(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 § 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 § 1b.22(a) of this chapter and the Landowner Helpline number.
(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]
§ 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.
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 § 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 §§ 260.1 and 260.2 of this chapter.
§ 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.
§ 2.69 [Reserved]
§ 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.
§ 2.78 Utilization and conservation of natural resources—natural gas.
(a)(1) The national interests in the development and utilization of natural gas resources throughout the United States will be served by recognition and implementation of the following priority-of-service categories for use during periods of curtailed deliveries by jurisdictional pipeline companies:
(i) Residential, small commercial (less than 50 Mcf on a peak day).
(ii) Large commercial requirements (50 Mcf or more on a peak day), firm industrial requirements for plant protection, feedstock and process needs, and pipeline customer storage injection requirements.
(iii) All industrial requirements not specified in paragraph (a)(1)(ii), (iv), (v), (vi), (vii), (viii), or (ix) of this section.
(iv) Firm industrial requirements for boiler fuel use at less than 3,000 Mcf per day, but more than 1,500 Mcf per day, where alternate fuel capabilities can meet such requirements.
(v) Firm industrial requirements for large volume (3,000 Mcf or more per day) boiler fuel use where alternate fuel capabilities can meet such requirements.
(vi) Interruptible requirements of more than 300 Mcf per day, but less than 1,500 Mcf per day, where alternate fuel capabilities can meet such requirements.
(vii) Interruptible requirements of intermediate volumes (from 1,500 Mcf per day through 3,000 Mcf per day), where alternate fuel capabilities can meet such requirements.
(viii) Interruptible requirements of more than 3,000 Mcf per day, but less than 10,000 Mcf per day, where alternate fuel capabilities can meet such requirements.
(ix) Interruptible requirements of more than 10,000 Mcf per day, where alternate fuel capabilities can meet such requirements.
(2) The priorities-of-deliveries set forth above will be applied to the deliveries of all jurisdictional pipeline companies during periods of curtailment on each company’s system; except, however, that, upon a finding of extraordinary circumstances after hearing initiated by a petition filed under § 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 § 385.1501 of this chapter. Those petitions shall use the priorities set forth in (paragraph (a)(1) of this section) above, the definitions contained in paragraph (b)(3) of this section and shall contain the following minimal information:
(1) The specific amount of natural gas deliveries requested on peak day and monthly basis, and the type of contract under which the deliveries would be made.
(2) The estimated duration of the relief requested.
(3) A breakdown of all natural gas requirements on peak day and monthly bases at the plant site by specific end-uses.
(4) The specific end-uses to which the natural gas requested will be utilized and should also reflect the scheduling within each particular end-use with and without the relief requested.
(5) The estimated peak day and monthly volumes of natural gas which would be available with and without the relief requested from all sources of supply for the period specified in the request.
(6) A description of existing alternate fuel capabilities on peak day and monthly bases broken down by end-uses as shown in paragraph (b)(3) of this section.
(7) For the alternate fuels shown in paragraph (b)(5) of this section, provide a description of the existing storage facilities and the amount of present fuel inventory, names and addresses of existing alternate fuel suppliers, and anticipated delivery schedules for the period for which relief is sought.
(8) The current price per million Btu for natural gas supplies and alternate fuels supplies.
(9) A description of efforts to secure natural gas and alternate fuels, including documentation of contacts with the Federal Energy Office and any state or local fuel allocation agencies or public utility commission.
(10) A description of all fuel conservation activities undertaken in the facility for which relief is sought.
(11) If petitioner is a local natural gas distributor, a description of the currently effective curtailment program and details regarding any flexibility which may be available by effectuating additional curtailment to its existing industrial customers. The distributor should also provide a breakdown of the estimated disposition of its natural gas estimated to be available by end-use priorities established in paragraph (a)(1) of this section for the period for which relief is sought.
(c) When used in paragraphs (a) and (b) of this section, the following terms will be defined as follows:
(1) Residential. Service to customers which consists of direct natural gas usage in a residential dwelling for space heating, air conditioning, cooking, water heating, and other residential uses.
(2) Commercial. Service to customers engaged primarily in the sale of goods or services including institutions and local, state, and federal government agencies for uses other than those involving manufacturing or electric power generation.
(3) Industrial. Service to customers engaged primarily in a process which creates or changes raw or unfinished materials into another form or product including the generation of electric power.
(4) Firm service. Service from schedules or contracts under which seller is expressly obligated to deliver specific volumes within a given time period and which anticipates no interruptions, but which may permit unexpected interruption in case the supply to higher priority customers is threatened.
(5) Interruptible service. Service from schedules or contracts under which seller is not expressly obligated to deliver specific volumes within a given time period, and which anticipates and permits interruption on short notice, or service under schedules or contracts which expressly or impliedly require installation of alternate fuel capability.
(6) Plant protection gas. Is defined as minimum volumes required to prevent physical harm to the plant facilities or danger to plant personnel when such protection cannot be afforded through the use of an alternate fuel. This includes the protection of such material 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.
Statement of General Policy To Implement Procedures for Compliance With the National Environmental Policy Act of 1969
§ 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.
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.
(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.
§ 2.104 Mechanisms for passthrough of pipeline take-or-pay buyout and buydown costs.
(a) General Policy. The Commission as a matter of policy will provide two distinct mechanisms for passthrough of take-or-pay buyout and buydown costs of interstate natural gas pipelines. The first is pursuant to existing Commission policy and practice. Under this method, pipelines may pass through prudently incurred take-or-pay buyout and buydown costs in their sales commodity rates. The second method is available to pipelines which agree to an equitable sharing of take-or-pay costs and which transport under part 284 of this chapter. Qualifying pipelines may utilize the alternative passthrough mechanisms described in this section. Where a pipeline agrees to absorb from 25 to 50 percent of take-or-pay buyout and buydown costs, the Commission will permit the pipeline to recover through a fixed charge an amount equal to (but not greater than) the amount absorbed. Any remaining costs up to 50 percent of total buyout and buydown costs may be recovered either through a commodity rate surcharge or a volumetric surcharge on total throughput.
(b) Cost allocation procedures. A pipeline’s volume-based surcharges must be based on the volumes which underlie its most recent Commission-approved rates. Fixed charges must be based on each customer’s cumulative deficiency in purchases in recent years (during which the current take-or-pay liabilities of the pipelines were incurred) measured in relation to that customer’s purchases during a representative period during which take-or-pay liabilities were not incurred. The allocation formula employed must incorporate the following guidelines:
(1) A representative base period must be selected. The base period must reflect a representative level of purchases by the pipeline’s firm customers during a period preceding the onset of changed conditions which resulted in reduced purchases and growth of the take-or-pay problem.
(2) Firm purchases by each customer during the base year under firm rate schedules or contracts for firm service must be determined.
(3) Firm sales purchase deficiency volumes for each subsequent year must be determined.
(4) A fixed charge based on each customer’s cumulative deficiencies as compared to total cumulative deficiencies must be derived. The filing pipeline will be free to select for rate calculation and filing purposes a reasonable amortization period for buyout and buydown costs being recovered through fixed charges or volumetric surcharges. The pipeline will be entitled to interest at the rate set forth in part 154 of this chapter on unamortized amounts.
(c) Implementing procedures. (1) Pipelines acting pursuant to this section may submit on or before December 31, 1990, a non-PGA rate filing under section 4(e) of the Natural Gas Act. Pipelines may include in their filings a fixed charge and a volumetric surcharge to recover buyout and buydown costs actually paid as of the date of filing plus similar costs which are known and measurable within the following nine months. Detailed support for the amounts claimed and for the calculation of customer surcharges must be provided. In addition, the pipeline must disclose and describe all consideration, both cash and noncash, given to producers in exchange for take-or-pay relief.
(2) In any filings made under this section, pipelines must include proposals for periodic (preferably annual) adjustments to customer surcharges, together with any necessary accounting procedures, designed to assure that revenues recovered by the pipeline remain in balance with buyout and buydown costs covered by the filing and actually incurred by the pipeline.
(d) Prudence. (1) The Commission will examine the issue of prudence if it is raised by a party in an individual proceeding. If it is raised, the pipeline will be required to demonstrate the prudence of take-or-pay buyout and buydown costs which it seeks to recover from its customers through both fixed and volume-based charges.
(2) The Commission intends to exercise its authority to the full extent permitted by the Natural Gas Act to approve take-or-pay settlements. The Commission intends to approve uncontested take-or-pay settlements which are consistent with this section and found to be in the public interest. The Commission will also, if it appears reasonable and permissible to do so, approve contested settlements as to all consenting parties and initiate separate hearings to establish the rates for opposing parties. Alternatively, the Commission will approve contested settlements on the merits if supported by substantial evidence in the record. In any case where hearings are held as to the prudence of take-or-pay buyout and buydown costs, the Commission will permit the pipeline the opportunity to recover all take-or-pay costs found to be prudent from the contesting parties on a proportional basis, even if the amount allowed is greater than the amounts initially sought to be recovered by the pipeline.
(e) Flowthrough by downstream pipelines. Downstream pipelines must flow through approved take-or-pay fixed charges based on the cumulative purchase deficiencies of their customers. Volumetrically-based surcharges must be flowed through on a volumetric basis. Customers of downstream pipelines have the right in connection with either PGA or general rate filings to challenge the purchasing practices of such pipelines. Remedies for purchasing practices found by the Commission to be imprudent will be determined on a case-by-case basis.
(f) Ongoing proceedings. Pipeline rate proceedings pending September 15, 1987 may be utilized as a forum for implementing the approved cost recovery mechanisms set forth in this section. Permission will be granted in cases where implementation of this policy in pending proceedings appears feasible, will not result in inordinate delay, or can be expected to result in unnecessary or cumulative rate filings with the Commission. In the event permission is granted, the presiding judge(s) will allow pipelines to supplement their filings to the extent necessary to assure compliance with the filing and data requirements set forth herein. The presiding judges shall also establish any procedures necessary to protect the rights of all parties. Any rates established pursuant to this section will be permitted to become effective only prospectively upon Commission approval.
(g) Scope. This section does not go beyond the Commission’s determination in the April 10, 1985, policy statement (Docket No. PL85-1-000) that take-or-pay buyout and buydown costs do not violate the pricing provision of the Natural Gas Policy Act of 1978 (NGPA). It is not intended to affect take-or-pay prepayments made by pipelines and included in account 165 and in their rate bases. Nor does it address the issue of whether take-or-pay prepayments to a producer for gas not taken and which cannot be made up violate the Title I pricing provisions of the NGPA. This policy statement applies only to buyout and buydown costs paid by pipelines that are transporting under part 284 of this chapter, under existing contracts, and is not intended to disturb in any way take-or-pay settlements previously entered into between pipelines and their producer suppliers.
§ 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.
Rules of General Applicability
§ 2.201 [Reserved]
Statement 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.
Recognizing the potential for an increasing number of intervenor complaints predicated on the fraud, abuse, or similar grounds exception to guaranteed passthrough, the Commission sets forth the elements of a cognizable claim under section 601(c)(2) which it expects to apply in cases in which fraud, abuse, or similar grounds is raised. The provisions of this policy statement do not establish a binding norm but instead provide general guidance. In particular cases, both the underlying validity of the policy and its application to particular facts may be challenged and are subject to further consideration. The procedure prescribed conforms with the NGPA’s general guarantee of passthrough by placing the burden of pleading the elements and proving the elements of a case on intervenors who would allege fraud, abuse, or similar grounds as a basis for denying passthrough of gas prices incurred by an interstate pipeline.
(a) In order for the issue of fraud, as that term is used in section 601(c) of the NGPA, to be considered in a proceeding, an intervenor or intervenors must file a complaint alleging that:
(1) The interstate pipeline, any first seller who sells natural gas to the interstate pipeline, or both acting together, have made a fraudulent misrepresentation or concealment; and
(2) Because of that fraudulent misrepresentation or concealment, the amount paid by the interstate pipeline to any first seller of natural gas was higher than it would have been absent the fraudulent conduct.
(b) In order for the issue of abuse, as that term is used in section 601(c) of the NGPA, to be considered in a proceeding, an intervenor or intervenors must file a complaint alleging that:
(1) The interstate pipeline, a first seller who sells to the interstate pipeline, or both acting together, have made a negligent misrepresentation or concealment, or other misrepresentation or concealment in disregard of a duty; and
(2) Because of that negligent misrepresentation or concealment, or other misrepresentation or concealment in disregard of a duty, the amount paid by the interstate pipeline to any first seller of natural gas was higher than it would have been absent the negligent misrepresentation or concealment, or other misrepresentation or concealment made in disregard of a duty.
(c) In order for the issue of similar grounds, as that term is used in section 601(c) of the NGPA, to be considered in a proceeding, an intervenor or intervenors must file a complaint alleging that:
(1) The interstate pipeline, any first seller who sells natural gas to the interstate pipeline, or both acting together, have made an innocent misrepresentation of fact; and
(2) Because of that innocent misrepresentation of facts, the amount paid by the interstate pipeline to any first seller of natural gas was higher than it would have been absent the innocent misrepresentation of fact.
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.
For purposes of deciding whether natural gas may be considered as waste as the primary energy source pursuant to § 292.204(b)(1)(i) of this chapter, the Commission will use the criteria described in paragraphs (a), (b) and (c) of this section.
(a) Category 1. Except as provided in paragraph (b) of this section, natural gas with a heating value of 300 Btu per standard cubic foot (scf) or below will be considered unmarketable.
(b) Category 2. In determining whether natural gas with a heating value above 300 Btu but not more than 800 Btu per scf and natural gas produced in the Moxa Arch area is unmarketable, the Commission will consider the following information:
(1) The percentages of the chemical components of the gas, the wellhead pressure, and the flow rate;
(2) Whether the applicant offered the gas to all potential buyers located within 20 miles of the wellhead under terms and conditions commensurate with those prevailing in the region and that such potential buyers refused to buy the gas; and
(3) A study, which may be submitted by an applicant, that evaluates the economics of upgrading the gas for sale and transporting the gas to a pipeline. The study should include estimates of the revenues which could be derived from the sale of the gas and the fixed and variable costs of upgrading.
(c) Category 3. In determining whether natural gas with a heating value above 800 Btu per scf is marketable, the Commission will consider the information included in paragraph (b) of this section and whether:
(1) The gas has actually been flared, vented to the atmosphere, or continuously injected into a non-producing zone for a period of one year, pursuant to legal authority; or
(2) The gas has been certified as waste, i.e., suitable for disposal, by an appropriate state authority.
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.
(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.
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 § 2.55(a)(1) or § 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:
| Item | Typical extra area (width/length) |
|---|---|
| Two lane road (bored) | 25-50 by 100 feet. |
| Four lane road (bored) | 50 by 100 feet. |
| Major river (wet cut) | 100 by 200 feet. |
| Intermediate stream (wet cut) | 50 by 100 feet. |
| Single railroad track | 25-50 by 100 feet. |
d. The auxiliary or replacement facility must be located within the permanent right-of-way or, in the case of nonlinear facilities, the cleared building site. In the case of pipelines this is assumed to be 50 feet wide and centered over the pipeline unless otherwise legally specified.
However, use of the above guidelines for work space size is constrained by the physical evidence in the area. Areas obviously not cleared during the 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 § 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.
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.—1972 Data (Docket No. R-478)
| Line No. | Particulars | Schedule No. | Line No. | (1)—Total 1 | (2)—Total excluding production taxes 2 | (3)—Gas only 3 | (4)—Lease separation 3 | (5)—No lease separation 3 | (6)—Total 4 | (7)—Percentage lease separation gas 5 | (8)—Allocated amount gas 6 |
|---|---|---|---|---|---|---|---|---|---|---|---|
| 2 | Direct and indirect lease costs and expenses | 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 |
| 2 | Taxes (except income and production) | 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 |
| 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 amortization | 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 |
| 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 field expense | 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 |
| 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 at 15 percent | 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 |
| 11 | Exploration and development costs and expenses | 1-A | 15 | 1,673,945,853 | 1,673,945,853 | 594,971,262 | |||||
| 12 | Return on exploration rate base at 15 percent | 1-A | 16 | 588,558,894 | 588,558,894 | 234,604,103 | |||||
| 13 | Regulatory commission expense including return | 1-A | 17 | 6,514,279 | 6,514,279 | 6,514,852 | |||||
| 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 costs and expenses | 1-A | 01 | 1,694,893,558 | 1,694,893,558 | 207,740,872 | |||||
| 20 | Taxes (except income and production) | 1-A | 02 | 210,335,720 | 210,335,720 | 39,323,377 | |||||
| 21 | Production taxes | 1-A | 03 | 479,424,297 | 124,478,624 | ||||||
| 22 | Other lease expenses | 1-A | 04 | 61,102,433 | 61,102,433 | 40,435,977 | |||||
| 23 | Book depletion | 7 (283,121,142) | 283,121,242 | 24,287,986 | 61,675,828 | 6,177,596 | 92,141,410 | 90.33 | 86,177,357 | ||
| 24 | Depreciation expense | 1-A | 05 | 7 (654,604,447) | 654,604,447 | 30,223,586 | 94,010,520 | 7,007,662 | 131,241,768 | 90.33 | 122,150,951 |
| 25 | Amortization of capitalized IDC | 7 (779,097,382) | 779,097,382 | 51,488,205 | 142,194,964 | 12,316,790 | 205,999,959 | 90.33 | 192,249,706 | ||
| 26 | Corporate general expense | 1-A | 06 | 278,845,909 | 278,845,909 | 39,843,838 | |||||
| 27 | Area, district, division and field expense | 1-A | 07 | 261,718,417 | 261,718,417 | 29,640,811 | |||||
| 28 | Miscellaneous lease revenues | 1-A | 09 | (12,203,136) | (12,203,136) | (4,163,842) | |||||
| 29 | Exploration and development costs and expenses | 1,673,945,853 | 1,673,945,853 | 594,971,262 | |||||||
| 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 less line 32) | 3,093,951,461 | 3,093,951,460 | 857,190,149 | |||||||
| 35 | |||||||||||
| 36 tax adjustment—add ( | |||||||||||
| 37 | Amortization of capitalized IDC | 779,097,282 | 779,097,382 | 192,249,706 | |||||||
| 38 | Estimated IDC capitalized in 1972 | 8 (1,470,935,857) | (1,470,935,857) | (362,967,445) | |||||||
| 39 | Interest expense (calculated) | 9 (243,846,540) | (243,846,540) | (60,587,136) | |||||||
| 40 | |||||||||||
| 41 | Taxable income | 2,158,266,445 | 2,158,266,445 | 625,891,274 | |||||||
| 42 | |||||||||||
| 43 | Federal income tax at 48 percent | 1,992,245,949 | 1,992,245,949 | 10 577,745,791 | |||||||
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.
PART 3 [RESERVED]
PART 3a—NATIONAL SECURITY INFORMATION
General
§ 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.
§ 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
§ 3a.11 Classification of official information.
(a) Security Classification Categories. Information or material which requires protection against unauthorized disclosure in the interest of the national defense or foreign relations of the United States (hereinafter collectively termed national security) is classified Top Secret, Secret or Confidential, depending upon the degree of its significance to national security. No other categories are to be used to identify official information or material requiring protection in the interest of national security, except as otherwise expressly provided by statute. These classification categories are defined as follows:
(1) Top Secret. Top Secret refers to national security information or material which requires the highest degree of protection. The test for assigning Top Secret classification is whether its unauthorized disclosure could reasonably be expected to cause exceptionally grave damage to the national security. Examples of exceptionally grave damage include armed hostilities against the United States or its allies; disruption of foreign relations vitally affecting the national security; the compromise of vital national defense plans or complex cryptologic and communications intelligence systems; the revelation of sensitive intelligence operations; and the disclosure of scientific or technological developments vital to national security. This classification is to be used with the utmost restraint.
(2) Secret. Secret refers to national security information or material which requires a substantial degree of protection. The test for assigning Secret classification shall be whether its unauthorized disclosure could reasonably be expected to cause serious damage to the national security. Examples of serious damage include disruption of foreign relations significantly affecting the national security; significant impairment of a program or policy directly related to the national security; revelation of significant military plans or intelligence operations; and compromise of significant scientific or technological developments relating to national security. The classification Secret shall be sparingly used.
(3) Confidential. Confidential refers to national security information or material which requires protection, but not to the degree described in paragraphs (a) (1) and (2) of this section. The test for assigning Confidential classification shall be whether its unauthorized disclosure could reasonably be expected to cause damage to the national security.
(b) Classified information will be assigned the lowest classification consistent with its proper protection. Documents will be classified according to their own content and not necessarily according to their relationship to other documents.
(c) The overall classification of a file or group of physically connected documents will be at least as high as that of the most highly classified document therein. When put together as a unit or complete file, the classification of the highest classified document contained therein will be marked on a cover sheet, file folder (front and back), or other similar covering, and on any transmittal letters, comments, or endorsements.
(d) Administrative Control Designations. These designations are not security classification designations, but are used to indicate a requirement to protect material from unauthorized disclosure. Material identified under the provisions of this subparagraph will be handled and protected in the same manner as material classified Confidential except that it will not be subject to the central control system described in § 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 § 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 § 3a.31(e).)
§ 3a.12 Authority to classify official information.
(a) The authority to classify information or material originally under E.O. 11652 is restricted to those offices within the executive branch which are concerned with matters of national security, and is limited to the minimum number absolutely required for efficient administration.
(b) The authority to classify information or material originally as Top Secret is to be exercised only by such officials as the President may designate in writing and by the heads of the following departments and agencies and such of their principal staff officials as the heads of these departments and agencies may designate in writing;
(c) The authority to classify information or material originally as Secret is exercised only by:
(1) Officials who have Top Secret classification authority under § 3a.11(b); and
(2) The heads of the following departments and agencies and such principal staff officials as they may designate in writing:
(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.
§ 3a.13 Classification responsibility and procedure.
(a) Each FERC official who has classifying authority (§ 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 (§ 3a.22(b)). It also shall show the office of origin, the date of preparation and classification and, to the extent practicable, be so marked as to indicate which portions are classified, at what level, and which portions are not classified in order to facilitate excerpting and other use. Material which merely contains references to classified materials, which references do not reveal classified information, shall not be classified.
(c) Material classified under this part shall indicate on its face the identity of the highest authority authorizing the classification. Where the individual who signs or otherwise authenticates a document or item has also authorized the classification, no further annotation as to his identity is required.
(d) Classified information or material furnished to the United States by a foreign government or international organization shall either retain its original classification or be assigned a U.S. classification. In either case, the classification shall assure a degree of protection equivalent to that required by the government or international organization which furnished the information or material.
(e) Whenever information or material classified by an authorized official is incorporated in another document or other material by any person other than the classifier, the previously assigned security classification category shall be reflected thereon together with the identity of the classifier.
(f) As a holder of classified information or material, the 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.
Declassification and Downgrading
§ 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.
§ 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.
(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 § 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
(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.
§ 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 § 3a.22(f), to:
(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 § 3a.22(g)(1). The Archivist shall notify the requester promptly of such determination and of his right to appeal the denial to the Interagency Classification Review Committee.
(e) For purposes of administrative determinations under paragraph (b), (c), or (d) of this section, the burden is on the 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.
Classification Markings and Special Notations
§ 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 § 3a.22(b).
(1) For marking documents which are subject to the General Declassification Schedule, the following stamp will be used:
(Top Secret, Secret, or Confidential) Classified by ____________. Subject to General Declassification Schedule of E.O. 11652, automatically downgraded at 2-year intervals and declassified on December 31, ____________ (insert year).
(2) For marking documents which are to be automatically declassified on a given event or date earlier than the General Declassification Schedule the following stamp will be used:
(Top Secret, Secret, or Confidential) Classified by ____________. Automatically declassified on ____________________ (effective date or event).
(3) For marking documents which are exempt from the General Declassification Schedule the following stamp will be used:
(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:
(2) If unclassified when separated from its classified enclosures or attachments:
(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 § 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:
(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.
(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:
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:
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.
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:
Access to Classified Materials
§ 3a.41 Access requirements.
(a) The Personnel Security Officer, on a continuing current basis, will certify to the Security Officer, the head of each bureau and office and each regional engineer, the names of officers and employees who have been granted a security clearance for access to classified material and the level of such clearance (Top Secret, Secret, Confidential). The Personnel Security Officer will maintain accurate and current listings of personnel who have been granted security clearances in accordance with the standards and criteria of Executive Orders 10450 and 10865 and as prescribed by this part.
(b) In addition to a security clearance, staff members must have a need for access to classified information or material in connection with the performance of duties. The determination for the need-to-know will be made by the official having responsibility for the classified information or material.
(c) When a staff member no longer requires access to classified information or material in connection with performance of official duties, the Personnel Security Officer will administratively withdraw the security clearance. Additionally, when a staff member no longer needs access to a particular security classification category, the security clearance will be adjusted to the classification category required. In both cases, this action will 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.
Security Officers
§ 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.
Storage and Custody of Classified Information
§ 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.
(d) GSA Optional Form 62, Safe or Cabinet Security Record, will be attached conspicuously to the outside of each container used to store classified information. The form is used to certify the opening and locking of a container, and the checking of a container at the end of each working day or whenever it is opened and locked during the day.
(e) Combinations of containers used to store classified materials will be assigned classifications equal to the highest category of classified information stored therein. Active combinations are subject to the safeguarding and receipting requirements of this instruction. Superseded combinations become declassified automatically and certificates of destruction therefore are unnecessary.
(f) Knowledge of or access to the combination of a container used for the storage of classified material will be given only to those appropriately cleared individuals who are authorized access to the information stored therein.
(g) Combinations of containers used to store classified material will be changed at least once a year. A combination will be changed also whenever anyone knowing or having access to it is transferred; when the combination has been subjected to compromise; when the security classification of the container is upgraded; and at any other time as may be deemed necessary. Combinations to locks on security containers will be changed only by individuals having a security clearance equal to the highest category of classified material stored therein. Changing lock combinations is a responsibility of OAO. (See FPC Special Instruction No. AM 2162.2, Periodic Change of Combination on Locks.)
(h) The individual who unlocks a container will indicate the date and time and initial entry on GSA Optional Form 62. At the close of each workday, or when the container is locked at earlier time, the individual locking the container will make the appropriate entry on GSA Optional Form 62. An individual other than the one who locked the container will check to insure that it is properly closed and locked and will make the appropriate entry on GSA Optional Form 62. When a container has not been opened during the day, the checker will enter the date and the notation “Not Opened” and make appropriate entry in the “Checked By” column.
(i) The red and white reversible “Closed-Open” cardboard sign will be used on all classified containers to indicate whether the container is open or locked.
(j) Typewriter ribbons used in the preparation of classified information will be safeguarded in the manner appropriate for the degree of classification involved. Cloth ribbons are considered insecure until both upper and lower lines have been cycled through the typewriter at least twice. Carbon paper or film ribbons are insecure at all times since the imprint thereon cannot be obliterated and such ribbon must be destroyed as classified waste. Insecure ribbons will not be left in typewriters overnight but will be stored in appropriate classified container.
Accountability For Classified Material
§ 3a.71 Accountability for classified material.
(a) The Office of Administrative Operations is the central control registry for the receipt and dispatch of classified material in the Washington office and maintains the accountability register of all classified material. In addition, each Regional Engineer will maintain an accountability register for classified material of which he has custody.
(b) With the exception of the Chairman, Vice Chairman, and Executive Director, no individual, bureau, or office is authorized to receive, open, or dispatch classified material other than the authorized personnel in OAO or the Regional Engineers. Classified material received by other than the OAO or Regional Engineers will be delivered promptly and unopened to the Security Officer or Regional Engineer in order that it may be brought under accountable control.
(c) Each classified document received by or originating in the 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:
(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.
Transmittal of Classified Material
§ 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 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 C(2), Appendix B, of the NSC Directive of May 17, 1972.
Data Index System
§ 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
Subpart A—General
§ 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.
§ 3b.2 Definitions.
In this part:
(a) Agency, as defined in 5 U.S.C. 551(1) as “* * * each authority of the Government of the United States, whether or not it is within or subject to review by another agency, * * *”, includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency [5 U.S.C. 552(e)];
(b) Individual means a citizen of the United States or an alien lawfully admitted for permanent residence;
(c) Maintain includes, maintain, collect, use, or disseminate;
(d) Record means any item, collection or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;
(e) System of records means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual;
(f) Statistical record means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by section 8 of title 13 of the United States Code;
(g) Routine use means, with respect to the disclosure of a record, the use of 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.
§ 3b.3 Notice requirements.
(a) The Commission will publish at least annually in the
(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
(c) The Commission will publish in the
(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
§ 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.
§ 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
§ 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 § 3b.3(a)(4) of this part, the Commission will identify in the
(1) Whether each item of information relates to the purposes, in law, for which the system is maintained;
(2) The adverse consequences, if any, of not collecting the information;
(3) Whether the need for the information could be met through the maintenance of the information in a non-individually identifiable form;
(4) Whether the information in the record is required to be collected on every individual who is the subject of a record in the system or whether a sampling procedure would suffice;
(5) The length of time it is necessary to retain the information;
(6) The financial cost of maintaining the record as compared to the adverse consequences of not maintaining it; and
(7) Whether the information, while generally relevant and necessary to accomplish a statutory purpose, is specifically relevant and necessary only in certain cases.
(b) All records which the Commission maintains in a system of records and which are used to make a determination about an individual will be maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination. Where practicable, in questionable instances, reverification of pertinent information with the individual to whom the record pertains may be appropriate. In pursuit of completeness in the collection of information, the Commission will limit its records to those elements of information which clearly bear on the determination for which the records are intended to be used, assuring that all elements necessary to the determination are present before the determination is made.
(c) Prior to disseminating any records in a system of records, the Commission will make reasonable efforts to assure that such records are as accurate, relevant, timely, and complete as appropriate for the purposes for which they are collected and/or maintained, except when they are disclosed to a member of the public under the Freedom of Information Act, 5 U.S.C. 552, as amended, or to another agency.
(d) No records of the Commission in a system of records shall describe how any individual exercises his First Amendment rights unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity. The exercise of these rights includes, but is not limited to, religious and political beliefs, freedom of speech and of the press, and freedom of assembly and petition. In determining whether or not a particular activity constitutes the exercise of a right guaranteed by the First Amendment, the Commission will apply the broadest reasonable interpretation.
§ 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
(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.
§ 3b.203 Rules of conduct.
(a) The Executive Director of the Commission has the overall administrative responsibility for implementing the provisions of the Privacy Act of 1974 and overseeing the conduct of all Commission employees with respect to the act.
(b) It is the responsibility of the Comptroller of the Commission, under the guidance of the Executive Director, to prepare the appropriate internal administrative procedures to assure that all persons involved in the design, development, or operation of any system of records, or in collecting, using, or disseminating any individual record, and who have access to any system of records, are informed of all rules and requirements of the Commission to protect the privacy of the individuals who are the subjects of the records, including the applicable provisions of the 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 § 3b.224; refusal to comply with an individual’s request of access to a record under § 3b.221; willful or intentional failure to maintain a record accurately pursuant to § 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.
§ 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
(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 §§ 3b.221, 3b.224, and 3b.225. Access to areas where records are stored will be limited to those persons whose official duties require work in such areas. Proper control of data, in any form, associated with the manual and computer-based record systems will be maintained at all times, including maintenance of an accounting of removal of the records from the storage area.
Subpart C—Rules for Disclosure of Records
§ 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 § 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.
§ 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 § 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 § 3b.222 of this part. No acknowledgment is required if access can be granted within the ten-day period.
(1) If access can be granted, the system manager will notify the individual, in writing, as to when, and whether access will be granted in person or by mail, so that access will be provided within twenty days of the receipt of the request (excluding Saturdays, Sundays, and legal public holidays). If the system manager is unable to provide access within twenty days of receipt of the request, he will inform the individual in writing as to the reasons therefor (for good cause shown), and when it is anticipated that access will be granted. If the expected date of access indicated in the written notification to the individual cannot be met, the system manager will advise the individual in writing of the delay, the reasons therefor (for good cause shown), and of a revised date when access will be granted. Such extensions will not exceed thirty days from receipt of the request (excluding Saturdays, Sundays, and legal public holidays).
(2) If access cannot be granted, the system manager will inform the individual, in writing, within twenty days of receipt of the request (excluding Saturdays, Sundays, and legal public holidays) of the refusal of his request; the reasons for the refusal; the right of the individual, within thirty days of receipt of the refusal, to request in writing a review of the refusal by the Chairman of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, or by an officer designated by the Chairman pursuant to § 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 § 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
(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.
§ 3b.222 Identification requirements.
The appropriate system manager specified for each system of records will require reasonable identification from individuals to assure that records in a system of records are disclosed to the proper person. Identification requirements will be consistent with the nature of the records being disclosed.
(a) Disclosure of records to the individual to whom the record pertains, or under whose name or some other identifying particular the record is filed, in person, requires that the individual show an identification card. Employee identification, a Medicare card, or a driver’s license are examples of acceptable identification. Documents incorporating a picture and signature of the individual are preferred.
(b) For records disclosed by mail, the system manager will require certain minimum identifying information: name, date of birth, or the system’s personal identifier if known to the individual. A comparison of the signatures of the requester and those in the record will be used to determine identity.
(c) If the system manager determines that the data in the record is so sensitive that unauthorized access could cause harm or embarrassment to the individual involved, a signed notarized statement asserting identity or some other reasonable means to verify identity will be required.
(d) If an individual can provide no suitable information or documents for identification, the system manager will require a signed statement from the individual asserting his identity and stipulating that the individual understands that knowingly or willfully seeking or obtaining access to records about an individual under false pretenses is a misdemeanor punishable by a fine of up to $5,000.
(e) The system manager will require an individual who wishes to be accompanied by another person when reviewing his records to furnish a signed written statement authorizing discussion of his records in the presence of the accompanying person.
(f) The appropriate identification requirements of this section may be required by a system manager from an individual to whom a record does not pertain who seeks access to the record pursuant to § 3b.225 of this part.
(g) No individual will be denied notification of maintenance of a record pursuant to § 3b.220 or access to a record pursuant to §§ 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.
§ 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.
§ 3b.224 Requests to amend records and disputes thereon.
(a) Upon written request, either in person or by mail, to the appropriate system manager specified for each system of records, any individual may amend records in a system of records pertaining to him and filed under his individual name or some other identifying particular. Such requests should contain identifying information needed to locate the record, a brief description of the item or items of information to be amended, and information in support of the request for amendment. The individual may obtain assistance in preparing his request to amend a record from the appropriate system manager.
(b) The system manager will provide a written acknowledgement of the receipt of a request to amend within ten days of receipt (excluding Saturdays, Sundays, and legal public holidays). Such an acknowledgement may, if necessary, request any additional information needed to make a determination which the individual may reasonably be expected to know, and verification of identity consistent with § 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 § 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 § 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 § 3b.201 of this part.
(e) The Chairman, or officer designated pursuant to paragraph (f) of this section, not later than thirty days (excluding Saturdays, Sundays, and legal public holidays) from the date of receipt of the individual’s request for review, will complete such review, unless, for good cause shown, the Chairman, or designated officer, extends the thirty-day period in a writing to the individual with reasons for the delay and the approximate date on which the review is expected to be completed. Such an extension will not exceed thirty-five days from receipt of the request for review (excluding Saturdays, Sundays, and legal public holidays). The Chairman, or designated officer, will make one of the following determinations:
(1) Make the correction in accordance with the individual’s request and proceed as in paragraph (c)(1) of this section; or
(2) Inform the individual in writing of:
(i) The refusal to amend the record in accordance with the request,
(ii) The reasons therefor, including any of the standards which were employed pursuant to paragraph (d) of this section in conducting the review;
(iii) The right of the individual to file with the Chairman, or designated officer, a concise written statement setting forth the reasons for his disagreement with the decision;
(iv) The fact that the statement of disagreement will be made available to anyone to whom the record is subsequently disclosed, together with the portion of the record which is disputed clearly noted, and, with, at the discretion of the Chairman, or designated officer, a brief statement by the Chairman, or designated officer, summarizing the reasons for refusing to amend the record;
(v) Where an accounting of the disclosure of the record was made pursuant to § 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 § 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.
§ 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 § 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 § 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.
(6) To the National Archives of the United States, pursuant to 44 U.S.C. 2103, as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for the evaluation by the Administrator of General Services or his designee to determine whether the record has such value;
(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality, or his delegated official, has made a written request to the appropriate system manager specifying the particular portion of the record desired and the law enforcement activity for which the record is being sought;
(8) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual (not necessarily the individual to whom the record pertains), if, upon disclosure, notification of such is sent to the last known address of the individual to whom the record pertains;
(9) To either House of Congress, or to any committee or subcommittee thereof, on a matter within its jurisdiction;
(10) To the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(c) When a record is disclosed under compulsory legal process and such process becomes a matter of public record, the system manager will make reasonable efforts to notify the individual to whom the record pertains. A notice will be sent to the individual’s last known address noted in the Commission’s files.
(d) The appropriate system manager shall notify all prior recipients of records, disclosure to whom an accounting was made pursuant to § 3b.226, of any amendments made to the records, including corrections, amendments and notations of dispute made pursuant to §§ 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 § 3b.220(d)].
(e) The content of the records disclosed under this section shall be maintained pursuant to the standards established in § 3b.201(c).
§ 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 § 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 § 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 § 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 § 3b.2(e) and no accounting will be maintained for disclosure of the accounting of disclosures.
§ 3b.227 Mailing lists.
An individual’s name and address maintained by the Commission will not be sold or rented for commercial or other solicitation purposes not related to the purposes for which the information was collected, unless such sale or rental is specifically authorized by law. This provision shall not be construed to require the withholding of names or addresses otherwise permitted to be made public, as pursuant to the Freedom of Information Act, 5 U.S.C. 552, as amended.
Subpart D—Rules for Exemptions
§ 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
(1) The name of the system of records;
(2) The specific provision or provisions of the Privacy Act of 1974, and the appropriate sections of this part promulgated pursuant thereto, from which the system is to be exempted; and
(3) The reasons for the exemption; and
(c) The system of records is exempted from one or more of the following provisions of the Privacy Act and the appropriate sections of this part promulgated pursuant thereto:
(1) 5 U.S.C. 552a(c)(3); 18 CFR 3b.226(c)—Making the accounting of disclosures available to the individual named in the record at his request;
(2) 5 U.S.C. 552a(d); 18 CFR 3b.221, 3b.224—Granting an individual the right of access to his records and permitting him to request amendment of such;
(3) 5 U.S.C. 552a(e)(1); 18 CFR 3b.201(a)—Requiring maintenance of relevant and necessary information in a system of records as required by statute or Executive order of the President;
(4) 5 U.S.C. 552a(e)(4)(G); 18 CFR 3b.3(a)(8)—Requiring a description of procedures for determining if a system contains a record on an individual in the public notice of the system of records;
(5) 5 U.S.C. 552a(e)(4)(H); 18 CFR 3b.3(a)(9)—Requiring a description of procedures for gaining access to and contesting the contents of a record in the public notice of the system of records;
(6) 5 U.S.C. 552a(e)(4)(I); 18 CFR 3b.3(a)(10)—Requiring a description of the categories of the sources of records in the public notice of the system of records; and
(7) 5 U.S.C. 552a(f); 18 CFR 3b.220-3b.224—Requiring agency rules for determining if an individual is the subject of a record, for handling requests for access, for granting requests for access, for amending records, and for fees.
PART 3c—STANDARDS OF CONDUCT
§ 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.
§ 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.
§ 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 § 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.
SUBCHAPTER B—REGULATIONS UNDER THE FEDERAL POWER ACT
PART 4—LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT COSTS
Subpart A—Determination of Cost of Projects Constructed Under License
§ 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 deletions 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)).
§ 4.3 Report on project cost.
(a) Scheduling an audit. When the original cost declaration letter, filed in accordance with § 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.
§ 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.
§ 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.
§ 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.
§ 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.
Subpart B—Determination of Fair Value of Constructed Projects, Under Section 23(a) of the Act
§ 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.
§ 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.
§ 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 public inspection at the time of service upon the licensee.
§ 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.
§ 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.
Subpart C—Determination of Cost of Constructed Projects not Subject to Section 23(a) of the Act
§ 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)).
§ 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.
§ 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 will be made available for public inspection at the time of service upon the licensee.
§ 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.
§ 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.
§ 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.
Subpart D—Application for Preliminary Permit, License or Exemption: General Provisions
§ 4.30 Applicability and definitions.
(a) (1) This subpart applies to applications for preliminary permit, license, or exemption from licensing.
(2) Any potential applicant for an original license for which prefiling consultation begins on or after July 23, 2005 and which wishes to develop and file its application pursuant to this part, must seek Commission authorization to do so pursuant to the provisions of part 5 of this chapter.
(b) For the purposes of this part—
(1)(i) Competing development application means any application for a license or exemption from licensing for a proposed water power project that would develop, conserve, and utilize, in whole or in part, the same or mutually exclusive water resources that would be developed, conserved, and utilized by a proposed water power project for which an initial preliminary permit or initial development application has been filed and is pending before the Commission.
(ii) Competing preliminary permit application means any application for a preliminary permit for a proposed water power project that would develop, conserve, and utilize, in whole or in part, the same or mutually exclusive water resources that would be developed, conserved and utilized by a proposed water power project for which an initial preliminary permit or initial development application has been filed and is pending before the Commission.
(2) Conduit means any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity. The term not primarily for the generation of electricity includes but is not limited to a conduit:
(i) Which was built for the distribution of water for agricultural, municipal, or industrial consumption and is operated for such a purpose; and
(ii) To which a hydroelectric facility has been or is proposed to be added.
(3) Construction of a dam, for the purposes of provisions governing application for exemption of a small conduit hydroelectric facility, means any construction, repair, reconstruction, or modification of a dam that creates a new impoundment or increases the normal maximum surface elevation or the normal maximum surface area of an existing impoundment.
(4)(i) Dam, for the purposes of provisions governing application for license 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 §§ 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
(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:
(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 § 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 40 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 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.
§ 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 and operate that project, or an option to obtain those interests, may apply for exemption of that project from licensing.
§ 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
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____.
(5) Contain the information and documents prescribed in the following sections of this chapter, according to the type of application:
(i) Preliminary permit: § 4.81;
(ii) License for a minor water power project and a major water power project 10 MW or less: § 4.61;
(iii) License for a major unconstructed project and a major modified project: § 4.41;
(iv) License for a major project—existing dam: § 4.51;
(v) License for a transmission line only: § 4.71;
(vi) Nonpower license for a licensed project: § 16.11;
(vii) Exemption of a small conduit hydroelectric facility: § 4.92;
(viii) Case-specific exemption of a small hydroelectric power project: § 4.107; or
(ix) License or exemption for a project located at a new dam or diversion where the applicant seeks PURPA benefits: § 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 § 4.38 or § 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 § 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 § 4.38. For each application filed following October 23, 2003, maps and drawings must conform to the requirements of § 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 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 § 4.38 of this part or § 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 § 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 its application copies of the statements made under § 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 § 4.35 and the applicant must:
(A) Repeat the pre-filing consultation process under § 4.38; and
(B) Satisfy all the requirements in § 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 § 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 § 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 § 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 § 4.38, or if the revisions are not timely submitted, the revised application will be rejected. Procedures for rejected applications are specified in paragraph (e)(2)(iii).
(2) Patently deficient applications. (i) If, within 90 days of its filing date, the Director of the Office of Energy Projects determines that an application patently fails to substantially comply with the requirements of paragraph (a), (b), and (c) of this section and of § 4.38 of this part or § 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 § 4.38 of this part or § 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 § 4.36 and the disposition of competing applications under § 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 § 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 § 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 § 388.113(c) of this chapter, to any person, the applicant shall omit the CEII from the information made available and insert the following in its place:
(i) A statement that CEII is being withheld;
(ii) A brief description of the omitted information that does not reveal any CEII; and
(iii) This statement: “Procedures for obtaining access to Critical Energy Infrastructure Information (CEII) may be found at 18 CFR 388.113. Requests for access to CEII should be made to the Commission’s CEII Coordinator.”
(2) The applicant, in determining whether information constitutes CEII, shall treat the information in a manner consistent with any filings that applicant has made with the Commission and shall to the extent practicable adhere to any previous determinations by the Commission or the CEII Coordinator involving the same or like information.
(3) The procedures contained in §§ 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.
§ 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 § 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 § 4.33(c)(2), § 4.94(d), or § 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 § 4.103 or § 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 § 4.36.
(d) Limitations on submission and acceptance of exemption applications—(1) Unexpired permit or license. (i) If there is an unexpired permit in effect for a project, the Commission will accept an application for exemption of that project from licensing only if the exemption applicant is the permittee. Upon acceptance for filing of the permittee’s application, the permit will be considered to have expired.
(ii) If there is an unexpired license in effect for a project, the Commission will accept an application for exemption of that project from licensing only if the exemption applicant is the licensee.
(2) Pending license applications. If an accepted license application for a project was submitted by a permittee before the preliminary permit expired, the Commission will not accept an application for exemption of that project from licensing submitted by a person other than the former permittee.
(3) Submitted by qualified exemption applicant. If the first accepted license application for a project was filed by a qualified exemption applicant, the applicant may request that its license application be treated initially as an application for exemption from licensing by so notifying the Commission in writing and, unless only rights to use or occupy Federal lands would be necessary to develop and operate the project, by submitting documentary evidence showing that the applicant holds the real property interests required under § 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 § 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.
§ 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 § 385.2010 of this chapter. If a party or interceder (as defined in § 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 § 385.2008 of this chapter. Late-filed fish and wildlife recommendations will not be subject to the requirements of paragraphs (e), (f)(1)(ii), and (f)(3) of this section, and late-filed terms and conditions or prescriptions will not be subject to the requirements of paragraphs (f)(1)(iv), (f)(1)(v), and (f)(2) of this section. Late-filed fish and wildlife recommendations, terms and conditions, or prescriptions will be considered by the Commission under section 10(a) of the Federal Power Act if such consideration would not delay or disrupt the proceeding.
(1) Agencies responsible for mandatory terms and conditions and presentations. Any agency responsible for mandatory terms and conditions or prescriptions for licenses or exemptions, pursuant to sections 4(e), 18, and 30(c) of the Federal Power Act and section 405(d) of the Public Utility Regulatory Policies Act of l978, as amended, must provide these terms and conditions or prescriptions in its initial comments filed with the Commission pursuant to paragraph (b) of this section. In those comments, the agency must specifically identify and explain the mandatory terms and conditions or prescriptions and their evidentiary and legal basis. In the case of an application prepared other than pursuant to part 5 of this chapter, if ongoing agency proceedings to determine the terms and conditions or prescriptions are not completed by the date specified, the agency must submit to the Commission by the due date:
(i) Preliminary terms and conditions or prescriptions and a schedule showing the status of the agency proceedings and when the terms and conditions or prescriptions are expected to become final; or
(ii) A statement waiving the agency’s right to file the terms and conditions or prescriptions or indicating the agency does not intend to file terms and conditions or prescriptions.
(2) Fish and Wildlife agencies and Indian tribes. All fish and wildlife agencies must set forth any recommended terms and conditions for the protection, mitigation of damages to, or enhancement of fish and wildlife, pursuant to the Fish and Wildlife Coordination Act and section 10(j) of the Federal Power Act, in their initial comments filed with the Commission by the date specified in paragraph (b) of this section. All Indian tribes must submit recommendations (including fish and wildlife recommendations) by the same date. In those comments, a fish and wildlife agency or Indian tribe must discuss its understanding of the resource issues presented by the proposed facilities and the evidentiary basis for the recommended terms and conditions.
(3) Other Government agencies and members of the public. Resource agencies, other governmental units, and members of the public must file their recommendations in their initial comments by the date specified in paragraph (b) of this section. The comments must clearly identify all recommendations and present their evidentiary basis.
(4) Submittal of modified recommendations, terms and conditions or prescriptions. (i) If the information and analysis (including reasonable alternatives) 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 § 4.35, an agency, Indian tribe or member of the public may modify the recommendations or terms and conditions or prescriptions it previously submitted to the Commission pursuant to paragraphs (b)(1), (b)(2), or (b)(3) of this section no later than the due date specified by the Commission for comments on the amendment.
(5)(i) With regard to certification requirements for a license applicant under section 401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act), an applicant shall file within 60 days from the date of issuance of the notice of ready for environmental analysis:
(A) A copy of the water quality certification;
(B) A copy of the request for certification, including proof of the date on which the certifying agency received the request; or
(C) Evidence of waiver of water quality certification as described in paragraph (b)(5)(ii) of this section.
(ii) In the case of an application process using the alternative procedures of paragraph 4.34(i), the filing requirement of paragraph (b)(5)(i) shall apply upon issuance of notice the Commission has accepted the application as provided for in paragraph 4.32(d) of this part.
(iii) A certifying agency is deemed to have waived the certification requirements of section 401(a)(1) of the Clean Water Act if the certifying agency has not denied or granted certification by one year after the date the certifying agency received a written request for certification. If a certifying agency denies certification, the applicant must file a copy of the denial within 30 days after the applicant received it.
(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 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.
(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 § 4.38 or § 16.8 of this chapter, or for the amendment of a license that is subject to the provisions of § 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
(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 § 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 § 5.5 of this chapter and Pre-Application Document required by § 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 § 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
(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 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 § 388.113(c) of this chapter, to any person, the applicant shall follow the procedures set out in § 4.32(k).
§ 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 § 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 § 4.32(c)(1).
(c) An application amended under paragraph (a) is a new filing for:
(1) The purpose of determining its timeliness under § 4.36 of this part;
(2) Disposing of competing applications under § 4.37; and
(3) Reissuing public notice of the application under § 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 § 4.32(e)(1);
(2) Any amendments made pursuant to § 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 § 4.37(c)(2) by a priority applicant to its proposed plans of development to make them as well adapted as the proposed plans of an applicant that is not a priority applicant;
(4) Any amendments made by a license or an exemption applicant to its proposed plans of development to satisfy requests of resource agencies or Indian tribes submitted after an applicant has consulted under § 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 § 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.
§ 4.36 Competing applications: deadlines for filing; notices of intent; comparisons of plans of development.
The public notice of an initial preliminary permit application or an initial development application shall prescribe the deadline for filing protests and motions to intervene in that proceeding (the prescribed intervention deadline).
(a) Deadlines for filing applications in competition with an initial preliminary permit application. (1) Any preliminary permit application or any development application not filed pursuant to a notice of intent must be submitted for filing in competition with an initial preliminary permit application not later than the prescribed intervention deadline.
(2) Any preliminary permit application filed pursuant to a notice of intent must be submitted for filing in competition with an initial preliminary permit application not later than 30 days after the prescribed intervention deadline.
(3) Any development application filed pursuant to a notice of intent must be submitted for filing in competition with an initial preliminary permit application not later than 120 days after the prescribed intervention deadline.
(b) Deadlines for filing applications in competition with an initial development application. (1) Any development application not filed pursuant to a notice of intent must be submitted for filing in competition with an initial development application not later than the prescribed intervention deadline.
(2) Any development application filed pursuant to a notice of intent must be submitted for filing in competition with an initial development application not later than 120 days after the prescribed intervention deadline.
(3) If the Commission has accepted an application for exemption of a project from licensing and the application has not yet been granted or denied, the applicant for exemption may submit a license application for the project if it is a qualified license applicant. The pending application for exemption from licensing will be considered withdrawn as of the date the Commission accepts the license application for filing. If a license application is accepted for filing under this provision, any qualified license applicant may submit a competing license application not later than the prescribed intervention deadline set for the license application.
(4) Any preliminary permit application must be submitted for filing in competition with an initial development application not later than the deadlines prescribed in paragraphs (a)(1) and (a)(2) for the submission of preliminary permit applications filed in competition with an initial preliminary permit application.
(c) Notices of intent. (1) Any notice of intent to file an application in competition with an initial preliminary permit or an initial development application must be submitted for filing not 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.
§ 4.37 Rules of preference among competing applications.
Except as provided in § 4.33(e), the Commission will select among competing applications on the following bases:
(a) If an accepted application for a preliminary permit and an accepted application for a license propose project works that would develop, conserve, and utilize, in whole or in part, the same water resources, and the applicant for a license has demonstrated its ability to carry out its plans, the Commission will favor the license applicant unless the permit applicant substantiates in its filed application that its plans are better adapted to develop, conserve, and utilize in the public interest the water resources of the region.
(b) If two or more applications for preliminary permits or two or more applications for licenses (not including applications for a new license under section 15 of the Federal Power Act) are filed by applicants for project works that would develop, conserve, and utilize, in whole or in part, the same water resources, and if none of the applicants is a preliminary permittee whose application for license was accepted for filing within the permit period, the Commission will select between or among the applicants on the following bases:
(1) If both or neither of two applicants are either a municipality or a state, the Commission will favor the applicant whose plans are better adapted to develop, conserve, and utilize in the public interest the water resources of the region, taking into consideration the ability of each applicant to carry out its plans.
(2) If both of two applicants are either a municipality or a state, or neither of them is a municipality or a state, and the plans of the applicants are equally well adapted to develop, conserve, and utilize in the public interest the water resources of the region, taking into consideration the ability of each applicant to carry out its plans, the Commission will favor the applicant with the earliest application acceptance date.
(3) If one of two applicants is a municipality or a state, and the other is not, and the plans of the municipality or a state are at least as well adapted to develop, conserve, and utilize in the public interest the water resources of the region, the Commission will favor the municipality or state.
(4) If one of two applicant is a municipality or a state, and the other is not, and the plans of the applicant who is not a municipality or a state are better adapted to develop, conserve, and utilize in the public interest the water resources of the region, the Commission will inform the municipality or state of the specific reasons why its plans are not as well adapted and afford a reasonable period of time for the municipality or state to render its plans at least as well adapted as the other plans. If the plans of the municipality or state are rendered at least as well adapted within the time allowed, the Commission will favor the municipality or state. If the plans are not rendered at least as well adapted within the time allowed, the Commission will favor the other applicant.
(c) If two or more applications for licenses are filed for project works which would develop, conserve, and utilize, in whole or in part, the same water resources, and one of the applicants was a preliminary permittee whose application was accepted for filing within the permit period (priority applicant), the Commission will select between or among the applicants on the following bases:
(1) If the plans of the priority applicant are at least as well adapted as the plans of each other applicant to develop, conserve, and utilize in the public interest the water resources of the region, taking into consideration the ability of each applicant to carry out its plans, the Commission will favor the priority applicant.
(2) If the plans of an applicant who is not a priority applicant are better adapted than the plans of the priority applicant to develop, conserve, and utilize in the public interest the water resources of the region, taking into consideration the ability of each applicant to carry out its plans, the Commission will inform the priority applicant of the specific reasons why its plans are not as well adapted and afford a reasonable period of time for the priority applicant to render its plans at least as well adapted as the other plans. If the plans of the priority applicant are rendered at least as well adapted within the time allowed, then the Commission will favor the priority applicant. If the plans of the priority applicant are not rendered as well adapted within the time allowed, the criteria specified in paragraph (b) will govern.
(3) The criteria specified in paragraph (b) will govern selection among applicants other than the priority applicant.
(d) With respect to a project for which an application for an exemption from licensing has been accepted for filing, the Commission will select among competing applications on the following bases:
(1) If an accepted application for a preliminary permit and an accepted application for exemption from licensing propose to develop mutually exclusive small hydroelectric power projects, the Commission will favor the applicant whose substantiated plans in the application received by the Commission are better adapted to develop, conserve, and utilize in the public interest the water resources of the region. If the substantiated plans are equally well adapted, the Commission will favor the application for exemption from licensing.
(2) If an application for a license and an application for exemption from licensing, or two or more applications for exemption from licensing are each accepted for filing and each proposes to develop a mutually exclusive project, the Commission will favor the applicant whose plans are better adapted to develop, conserve, and utilize in the public interest the water resources of the region. If the plans are equally well adapted, the Commission will favor the applicant with the earliest application acceptance date.
(e) A municipal applicant must provide evidence that the municipality is competent under applicable state and local laws to engage in the business of developing, transmitting, utilizing, or distributing power, or such applicant will be considered a non-municipal applicant for the purpose of determining the disposition of competing applications.
§ 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. § 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 § 5.5 and a pre-application document pursuant to the provisions of § 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 § 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 § 4.35(f)(1);
(iv) Amendment to an existing license that would increase the capacity of the project as defined in § 4.201(b); or
(v) Amendment to an existing license that would not increase the capacity of the project as defined in § 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 § 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 § 5.5 of this chapter and a pre-application document pursuant to § 5.6 of this chapter and, at the same time, provide a copy of the pre-application document to the entities specified in § 5.6(a) of this chapter.
(2) A potential applicant for an original license that commences pre-filing consultation under this part prior to July 23, 2005 or for an exemption must promptly contact each of the appropriate resource agencies, affected Indian tribes, and members of the public likely to be interested in the proceeding; provide them with a description of the proposed project and supporting information; and confer with them on project design, the impact of the proposed project (including a description of any existing facilities, their operation, and any proposed changes), reasonable hydropower alternatives, and what studies the applicant should conduct. The potential applicant must provide to the resource agencies, Indian tribes and the Commission the following information:
(i) Detailed maps showing project boundaries, if any, proper land descriptions of the entire project area by township, range, and section, as well as by state, county, river, river mile, and closest town, and also showing the specific location of all proposed project facilities, including roads, transmission lines, and any other appurtenant facilities;
(ii) A general engineering design of the proposed project, with a description of any proposed diversion of a stream through a canal or penstock;
(iii) A summary of the proposed operational mode of the project;
(iv) Identification of the environment to be affected, the significant resources present, and the applicant’s proposed environmental protection, mitigation, and enhancement plans, to the extent known at that time;
(v) Streamflow and water regime information, including drainage area, natural flow periodicity, monthly flow rates and durations, mean flow figures illustrating the mean daily streamflow curve for each month of the year at the point of diversion or impoundment, with location of the stream gauging station, the method used to generate the streamflow data provided, and copies of all records used to derive the flow data used in the applicant’s engineering calculations;
(vi) (A) A statement (with a copy to the Commission) of whether or not the applicant will seek benefits under section 210 of PURPA by satisfying the requirements for qualifying hydroelectric small power production facilities in § 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 § 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 § 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 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 § 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 § 4.32(e)(1) or (e)(2) of this part, merely because the application does not include a particular study or particular information if the Director had previously found, under paragraph (b)(6)(iv) of this section, that each study or information is unreasonable or unnecessary for an informed decision by the Commission on the merits of the application or use of the study methodology requested is not a generally accepted practice.
(7) The first stage of consultation ends when all participating agencies and Indian tribes provide the written comments required under paragraph (b)(5) of this section or 60 days after the joint meeting held under paragraph (b)(3) of this section, whichever occurs first, unless a resource agency or Indian tribe timely notifies the applicant and the Director of Energy Projects of its need for more time to provide written comments under paragraph (b)(5) of this section, in which case the first stage of consultation ends when all participating agencies and Indian tribes provide the written comments required under paragraph (b)(5) of this section or 120 days after the joint meeting held under paragraph (b)(5) of this section, whichever occurs first.
(c) Second stage of consultation. (1) Unless determined to be unnecessary by the Director pursuant to paragraph (b)(6) of this section, a potential applicant must diligently conduct all reasonable studies and obtain all reasonable information requested by resource agencies and Indian tribes under paragraph (b) of this section that are necessary for the Commission to make an informed decision regarding the merits of the application. These studies must be completed and the information obtained:
(i) Prior to filing the application, if the results:
(A) Would influence the financial (e.g., instream flow study) or technical feasibility of the project (e.g., study of potential mass soil movement); or
(B) Are needed to determine the design or location of project features, reasonable alternatives to the project, the impact of the project on important natural or cultural resources (e.g., resource surveys), or suitable mitigation or enhancement measures, or to minimize impact on significant resources (e.g., wild and scenic river, anadromous fish, endangered species, caribou migration routes);
(ii) After filing the application but before issuance of a license or exemption, if the applicant otherwise complied with the provisions of paragraph (b)(2) of this section and the study or information gathering would take longer to conduct and evaluate than the time between the conclusion of the first stage of consultation and the expiration of the applicant’s preliminary 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 § 4.32 (e)(1) or (e)(2) merely because the study or information gathering is not complete before the application is filed.
(4) A potential applicant must provide each resource agency and Indian tribe with:
(i) A copy of its draft application that:
(A) Indicates the type of application the potential applicant expects to file with the Commission; and
(B) Responds to any comments and recommendations made by any resource agency and Indian tribe either during the first stage of consultation or under paragraph (c)(2) of this section;
(ii) The results of all studies and information-gathering either requested by that resource agency or Indian tribe in the first stage of consultation (or under paragraph (c)(2) of this section if available) or which pertain to resources of interest to that resource agency or Indian tribe and which were identified by the potential applicant pursuant to paragraph (b)(2)(vii) of this section, including a discussion of the results and any proposed protection, mitigation, or enhancement measures; and
(iii) A written request for review and comment.
(5) A resource agency or Indian tribe will have 90 days from the date of the potential applicant’s letter transmitting the paragraph (c)(4) information to it to provide written comments on the information submitted by a potential applicant under paragraph (c)(4) of this section.
(6) If the written comments provided under paragraph (c)(5) of this section indicate that a resource agency or Indian tribe has a substantive disagreement with a potential applicant’s conclusions regarding resource impacts or its proposed protection, mitigation, or enhancement measures, the potential applicant will:
(i) Hold a joint meeting with the disagreeing resource agency or Indian tribe and other agencies with similar or related areas of interest, expertise, or responsibility not later than 60 days from the date of the written comments of the disagreeing agency or Indian tribe to discuss and to attempt to reach agreement on its plan for environmental protection, mitigation, or enhancement measures;
(ii) Consult with the disagreeing agency or Indian tribe and other agencies with similar or related areas of interest, expertise, or responsibility on the scheduling of the joint meeting; and
(iii) At least 15 days in advance of the meeting, provide the Commission with written notice of the time and place of the meeting and a written agenda of the issues to be discussed at the meeting.
(7) The potential applicant and any disagreeing resource agency or Indian tribe may conclude a joint meeting with a document embodying any agreement among them regarding environmental protection, mitigation, or enhancement measures and any issues that are unresolved.
(8) The potential applicant must describe all disagreements with a resource agency or Indian tribe on technical or environmental protection, mitigation, or enhancement measures in its application, including an explanation of the basis for the applicant’s disagreement with the resource agency or Indian tribe, and must include in its application any document developed pursuant to paragraph (c)(7) of this section.
(9) A potential applicant may file an application with the Commission if:
(i) It has complied with paragraph (c)(4) of this section and no resource agency or Indian tribe has responded with substantive disagreements by the deadline specified in paragraph (c)(5) of this section; or
(ii) It has complied with paragraph (c)(6) of this section and a resource agency or Indian tribe has responded with substantive disagreements.
(10) The second stage of consultation ends:
(i) Ninety days after the submittal of information pursuant to paragraph (c)(4) of this section in cases where no resource agency or Indian tribe has responded with substantive disagreements; or
(ii) At the conclusion of the last joint meeting held pursuant to paragraph (c)(6) of this section in cases where a resource agency or Indian tribe has responded with substantive disagreements.
(d) Third stage of consultation. (1) The third stage of consultation is initiated by the filing of an application for a license or exemption, accompanied by a transmittal letter certifying that at the same time copies of the application are being mailed to the resource agencies, Indian tribes, other government offices, and consulted members of the public specified in paragraph (d)(2) of this section.
(2) As soon as an applicant files such application documents with the Commission, or promptly after receipt in the case of documents described in paragraph (d)(2)(iii) of this section, as the Commission may direct the applicant must serve on every resource agency, Indian tribes, and member of the public consulted, and on other government offices copies of:
(i) Its application for a license or an exemption from licensing;
(ii) Any deficiency correction, revision, supplement, response to additional information request, or amendment to the application; and
(iii) Any written correspondence from the Commission requesting the correction of deficiencies or the submittal of additional information.
(e) Waiver of compliance with consultation requirements. (1) If a resource agency or Indian tribe waives in writing compliance with any requirement of this section, a potential applicant does not have to comply with that requirement as to that agency or tribe.
(2) If a resource agency or Indian tribe fails to timely comply with a provision regarding a requirement of this section, a potential applicant may proceed to the next sequential requirement of this section without waiting for the resource agency or Indian tribe to comply.
(3) The failure of a resource agency or Indian tribe to timely comply with a provision regarding a requirement of this section does not preclude its participation in subsequent stages of the consultation process.
(4) Following October 23, 2003, a potential license applicant engaged in pre-filing consultation under part 4 may during first stage consultation request to incorporate into pre-filing consultation any element of the integrated license application process provided for in part 5 of this chapter. Any such request must be accompanied by a:
(i) Specific description of how the element of the part 5 license application would fit into the pre-filing consultation process under this part; and
(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 § 2.l9 of this chapter and a description of any relevant resource agency or Indian tribe determination regarding the consistency of the project with any such comprehensive plan;
(7) A description of how the applicant’s proposal addresses the significant resource issues raised at the joint meeting held pursuant to paragraph (b)(3) of this section; and
(8) A list containing the name and address of every federal, state, and interstate resource agency and Indian tribe with which the applicant consulted pursuant to paragraph (a)(1) of this section.
(g) Public participation. (1) At least 14 days in advance of the joint meeting held pursuant to paragraph (b)(3) of this section, the potential applicant must publish notice, at least once, of the purpose, location, and timing of the joint meeting, in a daily or weekly newspaper published in each county in which the proposed project or any part thereof is situated. The notice shall include a summary of the major issues to be discussed at the joint meeting.
(2)(i) A potential applicant must make available to the public for inspection and reproduction the information specified in paragraph (b)(2) of this section from the date on which the notice required by paragraph (g)(1) of this section is first published until a final order is issued on any license application.
(ii) The provisions of § 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 § 388.113(c) of this chapter, to any person, the applicant shall follow the procedures set out in § 4.32(k).
§ 4.39 Specifications for maps and drawings.
(a) 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 § 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.
(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 §§ 388.112 and 388.113 of this chapter.
Subpart E—Application for License for Major Unconstructed Project and Major Modified Project
§ 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 10 megawatts, and any application for an initial or new license for a major modified project with a total installed capacity more than 10 megawatts. An applicant for license for any major unconstructed or major modified water power project that would have a total installed generating capacity of 10 megawatts or less must submit application under subpart G of this part (§§ 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 § 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.
§ 4.41 Contents of application.
Any application under this subpart must contain the following information in the form prescribed:
(a) Initial statement.
(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:
(3) The exact name, business address, and telephone number of the applicant are:
(4) The applicant is a (citizen of the United States, association of citizens of the United States, domestic corporation, municipality, or State, as appropriate) and (is/is not) claiming preference under section 7(a) of the Federal Power Act. See 16 U.S.C. 796.
(5)(i) The statutory or regulatory requirements of the state(s) in which the project would be located and that affect the project as proposed with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes, and with respect to the right to engage in the business of developing, transmitting, and distributing power and in any other business necessary to accomplish the purposes of the license under the Federal Power Act, are: [provide citation and brief identification of the nature of each requirement; if the applicant is a municipality, the applicant must submit copies of applicable state or local laws or a municipal charter or, if such laws or documents are not clear, any other appropriate legal authority, evidencing that the municipality is competent under such laws to engage in the business of developing, transmitting, utilizing, or distributing power.]
(ii) The steps which the applicant has taken, or plans to take, to comply with each of the laws cited above are: [provide brief description for each requirement]
(b) Exhibit A is a description of the project. If the project includes more than one dam with associated facilities, each dam and the associated component parts must be described together as a discrete development. The description for each development must contain:
(1) The physical composition, dimensions, and general configuration of any dams, spillways, penstocks, powerhouses, tailraces or other structures proposed to be included as part of the project;
(2) The normal maximum water surface area and normal maximum water surface elevation (mean sea level), gross storage capacity of any impoundments to be included as part of the project;
(3) The number, type and rated capacity of any proposed turbines or generators to be included as part of the project;
(4) The number, length, voltage and interconnections of any primary transmission lines proposed to be included a part of the project [See 16 U.S.C. 796(11)];
(5) The description of any additional mechanical, electrical, and transmission equipment appurtenant to the project; and
(6) All lands of the United States, including lands patented subject to the provisions of section 24 of the Act, 16 U.S.C. 818, that are enclosed within the project boundary described under paragraph (h) of this section (Exhibit G), identified and tabulated by legal subdivisions of a public land survey, by the best available legal description. The tabulation must show the total acreage of the lands of the United States within the project boundary.
(c) Exhibit B is a statement of project operation and resource utilization. If the project includes more than one dam with associated facilities, the information must be provided separately for each discrete development. The exhibit must contain:
(1) A description of each alternative site considered in selecting of the proposed site;
(2) A description of any alternative facility designs, processes, and operations that were considered.
(3) A statement as to whether operation of the power plant will be manual or automatic, an estimate of the annual plant factor, and a statement of how the project will be operated during adverse, mean, and high water years;
(4) An estimate of the dependable capacity and average annual energy production in kilowatt-hours (or mechanical equivalent), supported by the following data:
(i) The minimum, mean, and maximum recorded flows in cubic feet per second of the stream or other body of water at the powerplant intake or point of diversion, with a specification of any adjustment made for evaporation, leakage minimum flow releases (including duration of releases) or other reductions in available flow; monthly flow duration curves indicating the period of record and the gauging stations used in deriving the curves; and a specification of the critical streamflow used to determine the dependable capacity;
(ii) An area-capacity curve showing the gross storage capacity and usable storage capacity of the impoundment, with a rule curve showing the proposed operation of the impoundment and how the usable storage capacity is to be utilized;
(iii) The estimated minimum and maximum hydraulic capacity of the powerplant in terms of flow and efficiency (cubic feet per second at one-half, full and best gate), and the corresponding generator output in kilowatts;
(iv) A tailwater rating curve; and
(v) A curve showing powerplant capability versus head and specifying maximum, normal, and minimum heads;
(5) A statement of system and regional power needs and the manner in which the power generated at the project is to be utilized, including the amount of power to be used on-site, if any, supported by the following data:
(i) Load curves and tabular data, if appropriate;
(ii) Details of conservation and rate design programs and their historic and projected impacts on system loads; and
(iii) The amount of power to be sold and the identity of proposed purchaser(s); and
(6) A statement of the applicant’s plans for future development of the project or of any other existing or proposed water power project on the affected stream or other body of water, indicating the approximate location and estimated installed capacity of the proposed developments.
(d) Exhibit C is a proposed construction schedule for the project. The information required may be supplemented with a bar chart. The construction schedule must contain:
(1) The proposed commencement and completion dates of any new construction, modification, or repair of major project works;
(2) The proposed commencement date of first commercial operation of each new major facility and generating unit; and
(3) If any portion of the proposed project consists of previously constructed, unlicensed water power structures or facilities, a chronology of original completion dates of those structures or facilities specifying dates (approximate dates must be identified as such) of:
(i) Commencement and completion of construction or installation;
(ii) Commencement of first commercial operation; and
(iii) Any additions or modifications other than routine maintenance.
(e) Exhibit D is a statement of project costs and financing. The exhibit must contain:
(1) A statement of estimated costs of any new construction, modification, or repair, including:
(i) The cost of any land or water rights necessary to the development;
(ii) The total cost of all major project works;
(iii) Indirect construction costs such as costs of construction equipment, camps, and commissaries;
(iv) Interest during construction; and
(v) Overhead, construction, legal expenses, and contingencies;
(2) If any portion of the proposed project consists of previously constructed, unlicensed water power structures or facilities, a statement of the original cost of those structures or facilities specifying for each, to the extent possible, the actual or approximate total costs (approximate costs must be identified as such) of:
(i) Any land or water rights necessary to the existing project works;
(ii) All major project works; and
(iii) Any additions or modifications other than routine maintenance;
(3) If the applicant is a licensee applying for a new license, and is not a municipality or a state, an estimate of the amount which would be payable if the project were to be taken over pursuant to section 14 of the Federal Power Act, 16 U.S.C. 807, upon expiration of the license in effect including:
(i) Fair value;
(ii) Net investment; and
(iii) Severance damages;
(4) A statement of the estimated average annual cost of the total project as proposed, specifying any projected changes in the costs (life-cycle costs) over the estimated financing or licensing period if the applicant takes such changes into account, including:
(i) Cost of capital (equity and debt);
(ii) Local, state, and Federal taxes;
(iii) Depreciation or amortization,
(iv) Operation and maintenance expenses, including interim replacements, insurance, administrative and general expenses, and contingencies; and
(v) The estimated capital cost and estimated annual operation and maintenance expense of each proposed environmental measure;
(5) A statement of the estimated annual value of project power based on a showing of the contract price for sale of power or the estimated average annual cost of obtaining an equivalent amount of power (capacity and energy) from the lowest cost alternative source of power, specifying any projected changes in the costs (life-cycle costs) of power from that source over the estimated financing or licensing period if the applicant takes such changes into account;
(6) A statement describing other electric energy alternatives, such as gas, oil, coal and nuclear-fueled powerplants and other conventional and pumped storage hydroelectric plants;
(7) A statement and evaluation of the consequences of denial of the license application and a brief perspective of what future use would be made of the proposed site if the proposed project were not constructed;
(8) A statement specifying the sources and extent of financing and annual revenues available to the applicant to meet the costs identified in paragraphs (e) (1) and (4) of this section;
(9) An estimate of the cost to develop the license application; and
(10) The on-peak and off-peak values of project power, and the basis for estimating the values, for projects which are proposed to operate in a mode other than run-of-river.
(f) Exhibit E is an Environmental Report. Information provided in the report must be organized and referenced according to the itemized subparagraphs below. See § 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 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;
(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 § 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;
(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;
(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 § 4.39.
(9) Report on land use. The applicant must provide a report that describes the existing uses of the proposed project lands and adjacent property, and those land uses which would occur if the project is constructed. The report may reference the discussions of land uses in other sections of this exhibit. The report must be prepared following consultation with local and state zoning or land management authorities, and any Federal or state agency with managerial responsibility for the proposed project or abutting lands. The report must include:
(i) A description of existing land use in the proposed project area, including identification of wetlands, floodlands, prime or unique farmland as designated by the Natural Resources Conservation Service of the U.S. Department of Agriculture, the Special Area Management Plan of the Office of Coastal Zone Management, National Oceanic and Atmospheric Administration, and lands owned or subject to control by government agencies;
(ii) A description of the proposed land uses within and abutting the project boundary that would occur as a result of development and operation of the project; and
(iii) Aerial photographs, maps, drawings or other graphics sufficient to show the location, extent and nature of the land uses referred to in this section.
(10) Alternative locations, designs, and energy sources. The applicant must provide an environment assessment of the following:
(i) Alternative sites considered in arriving at the selection of the proposed project site;
(ii) Alternative facility designs, processes, and operations that were considered and the reasons for their rejection;
(iii) Alternative electrical energy sources, such as gas, oil, coal, and nuclear-fueled power plants, purchased power or diversity exchange, and other conventional and pumped-storage hydroelectric plants; and
(iv) The overall consequences if the license application is denied.
(11) List of literature. Exhibit E must include a list of all publications, reports, and other literature which were cited or otherwise utilized in the preparation of any part of the environmental report.
(g) Exhibit F consists of general design drawings of the principal project works described under paragraph (b) of this section (Exhibit A) and supporting information used as the basis of design. If the Exhibit F submitted with the application is preliminary in nature, applicant must so state in the application. The drawings must conform to the specifications of § 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 § 4.39. In addition, to the other components of Exhibit G, the Applicant must provide the project boundary data in a geo-referenced electronic format—such as ArcView shape files, GeoMedia files, MapInfo files, or any similar format. The electronic boundary data must be positionally accurate to ±40 feet, in order to comply with the National Map Accuracy Standards for maps at a 1:24,000 scale (the scale of USGS quadrangle maps). The electronic exhibit G data must include a text file describing the map projection used (i.e., UTM, State Plane, Decimal Degrees, etc.), the map datum (i.e., feet, meters, miles, etc.). Three sets of the maps must be submitted on compact disk or other appropriate electronic media. If more than one sheet is used for the paper maps, the sheets must be numbered consecutively, and each sheet must bear a small insert sketch showing the entire project and indicate that portion of the project depicted on that sheet. Each sheet must contain a minimum of three known reference points. The latitude and longitude coordinates, or state plane coordinates, of each reference point must be shown. If at any time after the application is filed there is any change in the project boundary, the applicant must submit, within 90 days following the completion of project construction, a final exhibit G showing the extent of such changes. The map must show:
(1) Location of the project and principal features. The map must show the location of the project as a whole with reference to the affected stream or other body of water and, if possible, to a nearby town or any other permanent monuments or objects, such as roads, transmission lines or other structures, that can be noted on the map and recognized in the field. The map must also show the relative locations and physical interrelationships of the principal project works and other features described under paragraph (b) of this section (Exhibit A).
(2) Project boundary. The map must show a project boundary enclosing all project works and other features described under paragraph (b) of this section (Exhibit A) that are to be licensed. If accurate survey information is not available at the time the application is filed, the applicant must so state, and a tentative boundary may be submitted. The boundary must enclose only those lands necessary for operation and maintenance of the project and for other project purposes, such as recreation, shoreline control, or protection of environmental resources (see paragraph (f) of this section (Exhibit E)). Existing residential, commercial, or other structures may be included within the boundary only to the extent that underlying lands are needed for project purposes (e.g., for flowage, public recreation, shoreline control, or protection of environmental resources). If the boundary is on land covered by a public survey, ties must be shown on the map at sufficient points to permit accurate platting of the position of the boundary relative to the lines of the public land survey. If the lands are not covered by a public land survey, the best available legal description of the position of the boundary must be provided, including distances and directions from fixed monuments or physical features. The boundary must be described as follows:
(i) Impoundments. (A) The boundary around a project impoundment must be described by one of the following:
(1) Contour lines, including the contour elevation (preferred method);
(2) Specified courses and distances (metes and bounds);
(3) If the project lands are covered by a public land survey, lines upon or parallel to the lines of the survey; or
(4) Any combination of the above methods.
(B) The boundary must be located no more than 200 feet (horizontal measurement) from the exterior margin of the reservoir, defined by the normal maximum surface elevation, except where deviations may be necessary in describing the boundary according to the above methods or where additional lands are necessary for project purposes, such as public recreation, shoreline control, or protection of environmental resources.
(ii) Continuous features. The boundary around linear (continuous) project features such as access roads, transmission lines, and conduits may be described by specified distances from center lines or offset lines of survey. The width of such corridors must not exceed 200 feet unless good cause is shown for a greater width. Several sections of a continuous feature may be shown on a single sheet with information showing the sequence of contiguous sections.
(iii) Noncontinuous features. (A) The boundary around noncontinuous project works such as dams, spillways, and powerhouses must be described by one of the following:
(1) Contour lines;
(2) Specified courses and distances;
(3) If the project lands are covered by a public land survey, lines upon or parallel to the lines of the survey; or
(4) Any combination of the above methods.
(B) The boundary must enclose only those lands that are necessary for safe and efficient operation and maintenance of the project or for other specified project purposes, such as public recreation or protection of environmental resources.
(3) Federal lands. Any public lands and reservations of the United States (Federal lands) [see 16 U.S.C. 796 (1) and (2)] that are within the project boundary, such as lands administered by the U.S. Forest Service, Bureau of Land Management, or National Park Service, or Indian tribal lands, and the boundaries of those Federal lands, must be identified as such on the map by:
(i) Legal subdivisions of a public land survey of the affected area (a protraction of identified township and section lines is sufficient for this purpose); and
(ii) The Federal agency, identified by symbol or legend, that maintains or manages each identified subdivision of the public land survey within the project boundary; or
(iii) In the absence of a public land survey, the location of the Federal lands according to the distances and directions from fixed monuments or physical features. When a Federal survey monument or a Federal bench mark will be destroyed or rendered unusable by the construction of project works, at least two permanent, marked witness monuments or bench marks must be established at accessible points. The maps show the location (and elevation, for bench marks) of the survey monument or bench mark which will be destroyed or rendered unusable, as well as of the witness monuments or bench marks. Connecting courses and distances from the witness monuments or bench marks to the original must also be shown.
(iv) The project location must include the most current information pertaining to affected Federal lands as described under § 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.
Subpart F—Application for License for Major Project—Existing Dam
§ 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 10 megawatts.
(2) This subpart does not apply to any major project—existing dam (see § 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 10 megawatts or less must submit application under subpart G of this part (§§ 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 § 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.
§ 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.
(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:
(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 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 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 § 4.38 for consultation requirements. The Environmental Report must contain the following information, commensurate with the scope of the proposed project:
(1) General description of the locale. The applicant must provide a general description of the environment of the project and its immediate vicinity. The description must include general information concerning climate, topography, wetlands, vegetative cover, land development, population size and density, the presence of any floodplain and the occurrence of flood events in the vicinity of the project, and any other factors important to an understanding of the setting.
(2) Report on water use and quality. The report must discuss the consumptive use of project waters and the impact of the project on water quality. The report must be prepared in consultation with the state and Federal agencies with responsibility for management of water quality in the affected stream or other body of water. Consultation must be documented by appending to the report a letter from each agency consulted that indicates the nature, extent, and results of the consultation. The report must include:
(i) A description (including specified volume over time) of existing and proposed uses of project waters for irrigation, domestic water supply, steam-electric plant, industrial, and other consumptive purposes;
(ii) A description of existing water quality in the project impoundment and downstream water affected by the project and the applicable water quality standards and stream segment classifications;
(iii) A description of any minimum flow releases specifying the rate of flow in cubic feet per second (cfs) and duration, changes in the design of project works or in project operation, or other measures recommended by the agencies consulted for the purposes of protecting or improving water quality, including measures to minimize the short-term impacts on water quality of any proposed new development of project works (for any dredging or filling, refer to 40 CFR part 230 and 33 CFR 320.3(f) and 323.3(e))
(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 § 4.39 regarding dimensions of full-sized prints, scale, and legibility);
(B) A description of operation and maintenance procedures for any existing or proposed measures or facilities;
(C) An implementation or construction schedule for any proposed measures or facilities, showing the intervals following issuance of a license when implementation of the measures or construction of the facilities would be commenced and completed;
(D) An estimate of the costs of construction, operation, and maintenance, of any proposed facilities, and of implementation of any proposed measures, including a statement of the sources and extent of financing; and
(E) A map or drawing that conforms to the size, scale, and legibility requirements of § 4.39 showing by the use of shading, cross-hatching, or other symbols the identity and location of any measures or facilities, and indicating whether each measure or facility is existing or proposed (the map or drawings in this exhibit may be consolidated).
(4) Report on historical and archeological resources. The report must discuss the historical and archeological resources in the project area and the impact of the project on those resources. The report must be prepared in consultation with the State Historic Preservation Officer and the National Park Service. Consultation must be documented by appending to the report a letter from each agency consulted that indicates the nature, extent, and results of the consultation. The report must contain:
(i) Identification of any sites either listed or determined to be eligible for inclusion in the National Register of Historic Places that are located in the project area, or that would be affected by operation of the project or by new development of project facilities (including facilities proposed in this exhibit);
(ii) A description of any measures recommended by the agencies consulted for the purpose of locating, identifying, and salvaging historical or archaeological resources that would be affected by operation of the project, or by new development of project facilities (including facilities proposed in this exhibit), together with a statement of what measures the applicant proposes to implement and an explanation of why the applicant rejects any measures recommended by an agency.
(iii) The following materials and information regarding the survey and salvage activities described under paragraph (f)(4)(ii) of this section:
(A) A schedule for the activities, showing the intervals following issuance of a license when the activities would be commenced and completed; and
(B) An estimate of the costs of the activities, including a statement of the sources and extent of financing.
(5) Report on recreational resources. The report must discuss existing and proposed recreational facilities and opportunities at the project. The report must be prepared in consultation with local, state, and regional recreation agencies and planning commissions, the National Park Service, and any other state or Federal agency with managerial authority over any part of the project lands. Consultation must be documented by appending to the report a letter from each agency consulted indicating the nature, extent, and results of the consultation. The report must contain:
(i) A description of any existing recreational facilities at the project, indicating whether the facilities are available for public use;
(ii) An estimate of existing and potential recreational use of the project area, in daytime and overnight visits;
(iii) A description of any measures or facilities recommended by the agencies consulted for the purpose of creating, preserving, or enhancing recreational opportunities at the project and in its vicinity (including opportunities for the handicapped), and for the purpose of ensuring the safety of the public in its use of project lands and waters;
(iv) A statement of the existing measures or facilities to be continued or maintained and the new measures or facilities proposed by the applicant for the purpose of creating, preserving, or enhancing recreational opportunities at the project and in its vicinity, and for the purpose of ensuring the safety of the public in its use of project lands and waters, including an explanation of why the applicant has rejected any measures or facilities recommended by an agency and described under paragraph (f)(5)(iii) of this section; and
(v) The following materials and information regarding the measures and facilities identified under paragraphs (f)(5) (i) and (iv) of this section:
(A) Identification of the entities responsible for implementing, constructing, operating, or maintaining any existing or proposed measures or facilities;
(B) A schedule showing the intervals following issuance of a license at which implementation of the measures or 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 § 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 § 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 § 4.41(g) of this chapter.
(h) Exhibit G. See § 4.41(h) of this chapter.
Subpart G—Application for License for Minor Water Power Projects and Major Water Power Projects 10 Megawatts or Less
§ 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 § 4.30(b)(17);
(2) Any major project—existing dam, as defined in § 4.30(b)(16), that has a total installed capacity of 10 MW or less; or
(3) Any major unconstructed project or major modified project, as defined in § 4.30(b)(15) and (14) respectively, that has a total installed capacity of 10 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 10 MW or less and request comment on the application. Copies of the application will be available for inspection through the Commission’s website, https://www.ferc.gov. 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.
§ 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 10 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.
(1) __________ (Name of Applicant) applies to the Federal Energy Regulatory Commission for __________ (license or new license, as appropriate) for the __________ (name of project) water power project, as described hereinafter. (Specify any previous FERC project number designation.)
(2) The location of the project is:
(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:
(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:
(9) Construction of the project is planned to start within ____ months, and is planned to be completed within ____ months, from the date of issuance of license.
(c) Exhibit A is a description of the project and the proposed mode of operation.
(1) The exhibit must include, in tabular form if possible, as appropriate:
(i) The number of generating units, including auxiliary units, the capacity of each unit, and provisions, if any, for future units;
(ii) The type of hydraulic turbine(s);
(iii) A description of how the plant is to be operated, manual or automatic, and whether the plant is to be used for peaking;
(iv) The estimated average annual generation in kilowatt-hours or mechanical energy equivalent;
(v) The estimated average head on the plant;
(vi) The reservoir surface area in acres and, if known, the net and gross storage capacity;
(vii) The estimated minimum and maximum hydraulic capacity of the plant (flow through the plant) in cubic feet per second and estimated average flow of the stream or water body at the plant or point of diversion; for projects with installed capacity of more than 1.5 megawatts, monthly flow duration curves and a description of the drainage area for the project site must be provided;
(viii) Sizes, capacities, and construction materials, as appropriate, of pipelines, ditches, flumes, canals, intake facilities, powerhouses, dams, transmission lines, and other appurtenances; and
(ix) The estimated cost of the project.
(x) The estimated capital costs and estimated annual operation and maintenance expense of each proposed environmental measure.
(2) State the purposes of project (for example, use of power output).
(3) An estimate of the cost to develop the license application; and
(4) The on-peak and off-peak values of project power, and the basis for estimating the values, for projects which are proposed to operate in a mode other than run-of-river.
(5) The estimated average annual increase or decrease in project generation, and the estimated average annual increase or decrease of the value of project power due to a change in project operations (i.e., minimum bypass flows, limiting reservoir fluctuations) for an application for a new license;
(6) The remaining undepreciated net investment, or book value of the project;
(7) The annual operation and maintenance expenses, including insurance, and administrative and general costs;
(8) A detailed single-line electrical diagram;
(9) A statement of measures taken or planned to ensure safe management, operation, and maintenance of the project.
(d) Exhibit E is an Environmental Report.
(1) For major unconstructed and major modified projects 10 MW or less. Any application must contain an Exhibit E conforming with the data and consultation requirements of § 4.41(f), 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 10 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 § 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 § 4.30(b)(14)).
(2) For minor projects and major projects at existing dams 10 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 10 MW or less must contain an Exhibit E under this paragraph (d)(2). See § 4.38 for consultation requirements. The Environmental Report must contain the following information:
(i) A description, including any maps or photographs which the applicant considers appropriate, of the environmental setting of the project, including vegetative cover, fish and wildlife resources, water quality and quantity, land and water uses, recreational uses, historical and archeological resources, and scenic and aesthetic resources. The report must include a discussion of endangered or threatened plant and animal species, any critical habitats, and any sites included in, or eligible for inclusion in, the National Register of Historic Places. The applicant may obtain assistance in the preparation of this information from state natural resources agencies, the state historic preservation officer, and from local offices of Federal natural resources agencies.
(ii) A description of the expected environmental impacts from proposed construction or development and the proposed operation of the power project, including any impacts from any proposed changes in the capacity and mode of operation of the project if it is already generating electric power, and an explanation of the specific measures proposed by the applicant, the agencies, and others to protect and enhance environmental resources and values and to mitigate adverse impacts of the project on such resources. The applicant must explain its reasons for not undertaking any measures proposed by any agency consulted.
(iii) A description of the steps taken by the applicant in consulting with Federal, state, and local agencies with expertise in environmental matters during the preparation of this exhibit prior to filing the application for license with the Commission. In this report, the applicant must:
(A) Indicate which agencies were consulted during the preparation of the environmental report and provide copies of letters or other documentation showing that the applicant consulted or attempted to consult with each of the relevant agencies (specifying each agency) before filing the application, including any terms or conditions of license that those agencies have determined are appropriate to prevent loss of, or damage to, natural resources; and
(B) List those agencies that were provided copies of the application as filed with the Commission, the date or dates provided, and copies of any letters that may be received from agencies commenting on the application.
(iv) Any additional information the applicant considers important.
(e) Exhibit F. See § 4.41(g) of this chapter.
(f) Exhibit G. See § 4.41(h) of this chapter.
Subpart H—Application for License for Transmission Line Only
§ 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.
§ 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.
(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:
(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 constructed and is proposed to be connected to a licensed water power project with an installed generating capacity of more than 10 MW—Exhibits A, B, C, D, E, F, and G under § 4.41;
(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 10 MW or less—Exhibits E, F, and G under § 4.61; 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 § 4.61 of this chapter.
Subpart I—Application for Preliminary Permit; Amendment and Cancellation of Preliminary Permit
§ 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.
§ 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:
(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:
(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 48 months].
(6) If there is any existing dam or other project facility, the applicant must provide the name and address of the owner of the dam and facility. If the dam is federally owned or operated, provide the name of the agency.
(b) Exhibit 1 must contain a description of the proposed project, specifying and including, to the extent possible:
(1) The number, physical composition, dimensions, general configuration and, where applicable, age and condition, of any dams, spillways, penstocks, powerhouses, tailraces, or other structures, whether existing or proposed, that would be part of the project;
(2) The estimated number, surface area, storage capacity, and normal maximum surface elevation (mean sea level) of any reservoirs, whether existing or proposed, that would be part of the project;
(3) The estimated number, length, voltage, interconnections, and, where applicable, age and condition, of any primary transmission lines whether existing or proposed, that would be part of the project [see 16 U.S.C. 796(11)];
(4) The total estimated average annual energy production and installed capacity (provide only one energy and capacity value), the hydraulic head for estimating capacity and energy output, and the estimated number, rated capacity, and, where applicable, the age and condition, of any turbines and generators, whether existing or proposed, that would be part of the project works;
(5) All lands of the United States that are enclosed within the proposed project boundary described under paragraph (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 § 385.207 of this chapter, upon a showing by the applicant that the field studies, tests, and other activities to be conducted under the permit would not adversely affect cultural resources or endangered species and would cause only minor alterations or disturbances of lands and waters, and that any land altered or disturbed would be adequately restored.
(4) Exhibit 2 must contain a statement of costs and financing, specifying and including, to the extent possible:
(i) The estimated costs of carrying out or preparing the studies, investigations, tests, surveys, maps, plans or specifications identified under paragraph (c) of this section;
(ii) The expected sources and extent of financing available to the applicant to carry out or prepare the studies, investigations, tests, surveys, maps, plans, or specifications identified under paragraph (c) of this section; and
(d) Exhibit 3 must include a map or series of maps, to be prepared on United States Geological Survey topographic quadrangle sheets or similar topographic maps of a State agency, if available. The maps need not conform to the precise specifications of § 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.
§ 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 eight 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 § 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 § 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 eight years) until the Commission acts on the application for an extension. The Commission will not accept extension requests that are filed less than 30 days prior to the termination of the permit.
(d) At the end of the extension period granted under paragraph (a) of this section, the Commission may issue an additional permit to the permittee if the Commission determines that there are extraordinary circumstances that warrant the issuance of the additional permit.
§ 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.
§ 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.
Subpart J—Exemption of Small Conduit Hydroelectric Facilities
§ 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 § 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.
§ 4.91 [Reserved]
§ 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 § 4.30(b)(30), or if the facility qualifies but for the discharge requirement of § 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 § 4.30(b)(30)(iv) filed pursuant to § 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 § 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:
[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: “§ 4.30(b)(30) of this subpart” or “§ 4.30(b)(30) of this subpart, except paragraph (b)(30)(iv)”], from certain provisions of Part I of the Federal Power Act.
[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)].
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 § 4.30(b)(30)(iv), add the following sentence: “This application is accompanied by a petition for waiver of § 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 § 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 § 4.41(h) of this chapter.
(e) Exhibit E. This exhibit is an Environmental Report. It must be prepared pursuant to § 4.38 and must include the following information, commensurate with the scope and environmental impact of the facility’s construction and operation:
(1) A description of the environmental setting in the vicinity of the facility, including vegetative cover, fish and wildlife resources, water quality and quantity, land and water uses, recreational use, socio-economic conditions, historical and archeological resources, and visual resources. The report must give special attention to endangered or threatened plant and animal species, critical habitats, and sites eligible for or included on the National Register of Historic Places. The applicant may obtain assistance in the preparation of this information from State natural resources agencies, the State historic preservation officer, and from local offices of Federal natural resources agencies.
(2) A description of the expected environmental impacts resulting from the continued operation of an existing small conduit hydroelectric facility, or from the construction and operation of a proposed small conduit hydroelectric facility, including a discussion of the specific measures proposed by the applicant and others to protect and enhance environmental resources and to mitigate adverse impacts of the facility on them.
(3) A description of alternative means of obtaining an amount of power equivalent to that provided by the proposed or existing facility.
(4) Any additional information the applicant considers important.
(f) Exhibit F. Exhibit F is a set of drawings showing the structures and equipment of the small conduit hydroelectric facility and must conform to the specifications of § 4.41(g) of this chapter.
§ 4.93 Action on exemption applications.
(a) An application for exemption that does not meet the eligibility requirements of § 4.30(b)(30)(iv) may be accepted, provided the application has been accompanied by a request for waiver under § 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 § 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 § 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.
§ 4.94 Standard terms and conditions of exemption.
Any exemption granted under § 4.93 for a small conduit hydroelectric facility is subject to the following standard terms and conditions:
(a) Article 1. The Commission reserves the right to conduct investigations under sections 4(g), 306, 307, and 311 of the Federal Power Act with respect to any acts, complaints, facts, conditions, practices, or other matters related to the construction, operation, or maintenance of the exempt facility. If any term or condition of the exemption is violated, the Commission may revoke the exemption, issue a suitable order under section 4(g) of the Federal Power Act, or take appropriate action for enforcement, forfeiture, or penalties under Part III of the Federal Power Act.
(b) Article 2. The construction, operation, and maintenance of the exempt project must comply with any terms and conditions that the United States Fish and Wildlife Service, the National Marine Fisheries Service, and any state fish and wildlife agencies have determined are appropriate to prevent loss of, or damage to, fish or wildlife resources or otherwise to carry out the purposes of the Fish and Wildlife Coordination Act, as specified in exhibit E of the application for exemption from licensing or in the comments submitted in response to the notice of exemption application.
(c) Article 3. The Commission may revoke this exemption if actual construction of any proposed generating facilities has not begun within two years or has not been completed within four years from the effective date of this exemption. If an exemption is revoked under this article, the Commission will not accept from the prior exemption holder a subsequent application for exemption from licensing or a notice of exemption from licensing for the same project within two years of the revocation.
(d) Article 4. 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.
§ 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 § 4.38, substituting for the information required under § 4.38(b)(1) information appropriate to the disposition and restoration of the project works and lands. The petition must set forth the exemption holder’s plans with respect to disposition and restoration of the project works and lands.
(2) If construction has begun, public notice of the petition will be given, and, at least 30 days thereafter, the Commission will act upon the petition.
(c) If no construction has begun, unless the Commission issues an order to the contrary, the exemption will remain in effect through the thirtieth day after the Commission issues a public notice of receipt of the petition. New applications involving the site of the surrendered exemption may be filed on the next business day.
(d) Exemptions may be surrendered only upon fulfillment by the exemption holder of such obligations under the exemption as the Commission may prescribe and, if construction has begun, upon such conditions with respect to the disposition of such project works and restoration of project lands as may be determined by the Commission and the Federal and state fish and wildlife agencies.
(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.
§ 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.
Subpart K—Exemption of Small Hydroelectric Power Projects of 10 Megawatts or Less
§ 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 § 4.30(b)(31).
§ 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 § 4.38, substituting for the information required under § 4.38(b)(1) information appropriate to the disposition and restoration of the project works and lands. The petition must set forth the exemption holder’s plans with respect to disposition and restoration of the project works and lands.
(2) If construction has begun, public notice of the petition will be given, and, at least 30 days thereafter, the Commission will act upon the petition. New applications involving the site may be filed on the next business day.
(c) If no construction had begun, unless the Commission issues an order to the contrary, the surrender will take effect at the close of the thirtieth day after the Commission issues a public notice of receipt of the petition. New applications involving the site may be filed on the next business day.
(d) Exemptions may be surrendered only upon fulfillment by the exemption holder of such obligations under the exemption as the Commission may prescribe and, if construction has begun, upon such conditions with respect to the disposition of such project works and restoration of project lands as may be determined by the Commission and the Federal and state fish and wildlife agencies.
(e) Where occupancy of 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.
§ 4.103 General provisions for case-specific exemption.
(a) Exemptible projects. Subject to the provisions in paragraph (b) of this section, § 4.31(c), and §§ 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 §§ 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 § 385.207 of this chapter for waiver of any specific provision of §§ 4.102 through 4.107. The Commission will grant a waiver only if consistent with section 408 of the Energy Security Act of 1980.
§ 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.
§ 4.105 Action on exemption applications.
(a) Exemption from provisions other than licensing. An application for exemption of a small hydroelectric power project from provisions of Part I of the Act other than the licensing requirement will be processed and considered as part of the related application for license or amendment of license.
(b)(1) Consultation. The Commission will circulate a notice of application for exemption from licensing to interested agencies and Indian tribes at the time the applicant is notified that the application is accepted for filing.
(2) Non-standard terms and conditions. In approving any application for exemption from licensing, the Commission may prescribe terms or conditions in addition to those set forth in § 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.
§ 4.106 Standard terms and conditions of case-specific exemption from licensing.
Any case-specific exemption from licensing granted for a small hydroelectric power project is subject to the following standard terms and conditions:
(a) Article 1. The Commission reserves the right to conduct investigations under sections 4(g), 306, 307, and 311 of the Federal Power Act with respect to any acts, complaints, facts, conditions, practices, or other matters related to the construction, operation, or maintenance of the exempt project. If any term or condition of the exemption is violated, the Commission may revoke the exemption, issue a suitable order under section 4(g) of the Federal Power Act, or take appropriate action for enforcement, forfeiture, or penalties under Part III of the Federal Power Act.
(b) Article 2. The construction, operation, and maintenance of the exempt project must comply with any terms and conditions that the United States Fish and Wildlife Service, the National Marine Fisheries Service, and any state fish and wildlife agencies have determined are appropriate to prevent loss of, or damage to, fish or wildlife resources or otherwise to carry out the purposes of the Fish and Wildlife Coordination Act, as specified in exhibit E of the application for exemption from licensing or in the comments submitted in response to the notice of exemption application.
(c) Article 3. The Commission may revoke this exemption if actual construction of any proposed generating facilities has not begun within two years or has not been completed within four years from the date on which this exemption was granted. If an exemption is revoked under this article, the Commission will not accept from the prior exemption holder a subsequent application for exemption from licensing for the same project within two years of the revocation.
(d) Article 4. This exemption is subject to the navigation servitude of the United States if the project is located on navigable waters of the United States.
(e) Article 5. This exemption does not confer any right to use or occupy any Federal lands that may be necessary for the development or operation of the project. Any right to use or occupy any Federal lands for those purposes must be obtained from the administering Federal land agencies. The Commission may accept a license application submitted by any qualified license applicant and revoke this exemption, if any necessary right to use or occupy Federal lands for those purposes has not been obtained within one year from the date on which this exemption was granted.
(f) Article 6. In order to best develop, conserve, and utilize in the public interest the water resources of the region, the Commission may require that the exempt facilities be modified in structure or operation or may revoke this exemption.
(g) Article 7. The Commission may revoke this exemption if, in the application process, material discrepancies, inaccuracies, or falsehoods were made by or on behalf of the applicant.
(h) Article 8. Any exempted small hydroelectric power project that utilizes a dam that is more than 33 feet in height above streambed, as defined in 18 CFR 12.31(c) of this chapter, impounds more than 2,000 acre-feet of water, or has a significant or high hazard potential, as defined in 33 CFR part 222, is subject to 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.
§ 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 § 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:
(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:
(3) The exact name and business address of each applicant are:
(4) The exact name and business address of each person authorized to act as agent for the applicant in this application are:
(5) [Name of applicant] is [specify, as appropriate: a citizen of the United States or other identified nation; an association of citizens of the United States or other identified nation; a municipality; a state; or a corporation incorporated under the laws of (specify the United States or the state or nation of incorporation, as appropriate).]
(c) Exhibit A. Exhibit A must describe the small hydroelectric power project and its proposed mode of operation. To the extent feasible, the information in this exhibit may be submitted in tabular form. The applicant must submit the following information:
(1) A brief description of any existing dam and impoundment proposed to be utilized by the small hydroelectric power project and any other existing or proposed project works and appurtenant facilities, including intake facilities, diversion structures, powerhouses, primary transmission lines, penstocks, pipelines, spillways, and other structures, and the sizes, capacities, and construction materials of those structures.
(2) The number of existing and proposed generating units at the project, including auxiliary units, the capacity of each unit, any provisions for future units, and a brief description of any plans for retirement or rehabilitation of existing generating units.
(3) The type of each hydraulic turbine of the small hydroelectric power project.
(4) A description of how the power plant is to be operated, that is, run-of-river or peaking.
(5) A graph showing a flow duration curve for the project. Identify stream gauge(s) and period of record used. If a synthetic record is utilized, provide details concerning its derivation. Furnish justification for selection of installed capacity if the hydraulic capacity of proposed generating unit(s) plus the minimum flow requirements, if not usable for power production, is less than the stream flow that is exceeded 25 percent of the time.
(6) Estimations of:
(i) The average annual generation in kilowatt-hours;
(ii) The average and design head of the power plant;
(iii) The hydraulic capacity of each turbine of the power plant (flow through the plant) in cubic feet per second;
(iv) The number of surface acres of the man-made or natural impoundment used, if any, at its normal maximum surface elevation and its net and gross storage capacities in acre-feet.
(7) The planned date for beginning and completing the proposed construction or development of generating facilities.
(8) A description of the nature and extent of any repair, reconstruction, or other modification of a dam that would occur in association with construction or development of the proposed small hydroelectric power project, including a statement of the normal maximum surface area and normal maximum surface elevation of any existing impoundment before and after construction.
(d) Exhibit G. Exhibit G is a map of the project and boundary and must conform to the specifications of § 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 § 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 § 4.41(g) of this chapter.
§ 4.108 Contents of application for exemption from provisions other than licensing.
An application for exemption of a small hydroelectric power project from provisions of Part I of the Act other than the licensing requirement need not be prepared according to any specific format, but must be included as an identified appendix to the related application for license or amendment of license. The application for exemption must list all sections or subsections of Part I of the Act for which exemption is requested.
Subpart L—Application for Amendment of License
§ 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.
§ 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.
(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 10 MW—Exhibits A, B, C, D, E, F, and G under § 4.41;
(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 § 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 10 MW or less, but more than 1.5 MW—Exhibits F and G under § 4.61, and Exhibit E under § 4.41;
(4) For amendment of a license for a water power project that, at the time the application for amendment is filed, has been constructed, and is proposed to have a total installed generating capacity of 10 MW or less—Exhibit E, F, and G under § 4.61; and
(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 10 MW—Exhibits A, B, C, D, E, F, and G under § 4.51.
(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 § 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.
§ 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.
Subpart M—Fees Under Section 30(e) of the Act
§ 4.300 Purpose, definitions, and applicability.
(a) Purpose. This subpart implements the amendments of section 30 of the Federal Power Act enacted by section 7(c) of the Electric Consumers Protection Act of 1986 (ECPA). It establishes procedures for reimbursing fish and wildlife agencies for costs incurred in connection with applications for an exemption from licensing and applications for licenses seeking benefits under section 210 of the Public Utility Regulatory Policies Act of 1978, as amended, for a project that would impound or divert the water of a natural watercourse by means of a new dam or diversion.
(b) Definitions. For the purposes of this subpart—
(1) Cost means an expenditure made by a fish and wildlife agency:
(i) On or after the effective date of this regulation for an application filed on or after the effective date of this regulation; and
(ii) Directly related to setting mandatory terms and conditions for a proposed project pursuant to section 30(c) of the Federal Power Act.
(2) Cost statement means a statement of the total costs for which a fish and wildlife agency requests reimbursement including an itemized schedule of costs including, but not limited to, costs of fieldwork and testing, contract costs, travel costs, personnel costs, and administrative and overhead costs.
(3) Mandatory terms and conditions means terms and conditions of a license or exemption that a fish and wildlife agency determines are appropriate to prevent loss of, or damage to, fish and wildlife resources pursuant to section 30(c) of the Federal Power Act.
(4) New dam or diversion license applicant means an applicant for a license for a project that would impound or divert the water of a natural watercourse by means of a new dam or diversion, as defined in section 210(k) of the Public Utility Regulatory Policies Act of 1978, as amended.
(5) PURPA benefits means benefits under section 210 of the Public Utility Regulatory Policies Act of 1978, as amended.
(6) Section 30(c) application means an application for an exemption from licensing or a new dam or diversion license application seeking PURPA benefits.
(c) Applicability. Except as provided in paragraph (d) of this section, this subpart applies to:
(1) Any application for exemption filed on or after the effective date of these regulations for costs incurred by fish and wildlife agencies after the effective date of these regulations;
(2) Any new dam or diversion license application seeking PURPA benefits filed on or after April 16, 1988;
(3) Any new dam or diversion license application seeking PURPA benefits filed after the effective date of this regulation, but before April 16, 1988, if the applicant fails to demonstrate in a monetary resources petition filed with the Commission pursuant to § 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.
§ 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 § 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 § 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 § 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.
§ 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 § 4.301(b).
(b) Amount. The fee required under paragraph (a) of this section must be in an amount equal to 50 percent of the most recent cost estimates provided by fish and wildlife agencies pursuant to § 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 § 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.
§ 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 § 4.32(c)(4) for a new dam or diversion license application seeking PURPA benefits, § 4.93(b) for an application for exemption of a small conduit hydroelectric facility, or § 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 § 4.302; and
(3)(i) The amount due, if the amount already paid by the applicant pursuant to § 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 § 4.302 is more than the total of all the cost statements.
(d) Within 45 days from the date of a bill issued under paragraph (b) of this section, a section 30(c) applicant must pay in full to the Commission any remaining amounts due on the cost statements regardless of whether any of these amounts are in dispute.
(e) Dispute procedures—(1) When to dispute. Any dispute regarding the reasonableness of any fish and wildlife agency cost statement must be made within 45 days from the date of a bill issued under paragraph (b) of this section.
(2) Assessment of disputed cost statements The burden of showing that an agency’s cost statement is unreasonable is on the applicant. However, a fish and wildlife agency must supply the disputing applicant and the Commission with the documentation necessary to support its cost statement. The Director of the Office of Energy Projects will determine the reasonableness of a disputed fish and wildlife agency cost statement. The Director’s decision will be in writing. The Director will notify the disputing applicant and the fish and wildlife agency of the decision by letter. Any decision of the Director may be appealed by either party pursuant to 18 CFR 385.1902. In deciding whether or not a disputed cost statement is reasonable, the Director will review the application, the disputed cost statement and any other documentation relating to the particular environmental problems associated with the disputing applicant’s proposed project. The Director will consider such factors as:
(i) The time the fish and wildlife agency spent reviewing the application;
(ii) The proportion of the cost statement to the time the fish and wildlife agency spent reviewing the application;
(iii) Whether the fish and wildlife agency’s expenditures conform to Federal expenditure guidelines for such items as travel, per diem, personnel, and contracting; and
(iv) Whether the studies conducted by the agency, if any, are duplicative, limited to the proposed project area, unnecessary to determine the impacts to or mitigation measures for the particular fish and wildlife resources affected by the proposed project, or otherwise unnecessary to set terms and conditions for the proposed project.
(3) Unreasonable cost statements. If the Director determines that a disputed fish and wildlife agency cost statement is unreasonable, the disputing applicant and the fish and wildlife agency will be afforded 45 days from the date of notification to attempt to reach an agreement regarding the reimbursable costs of the agency. If the disputing applicant and the fish and wildlife agency fail to reach an agreement on the disputed cost statement within 45 days from the date of notification, the Director will determine the costs that the agency should reasonably have incurred.
(f) Refunds. (1) If the amount paid by a section 30(c) applicant under § 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.
§ 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 § 4.303(c).
§ 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 § 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
§ 4.400 Applicability and purpose.
This part implements section 30(a) of the Federal Power Act, as amended, 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 § 4.30(b)(26), and thus, is not required to be licensed under Part I of the FPA.
§ 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, 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:
[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.
The location of the facility is:
The exact name and business address of the applicant(s) are:
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 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 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.
(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:
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
§ 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 § 4.30(b) of this chapter and § 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. § 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 § 5.5 and a pre-application document pursuant to the provisions of § 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.
§ 5.2 Document availability.
(a) Pre-application document. (1) From the date a potential license applicant files a notification of intent to seek a license pursuant to § 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.
§ 5.3 Process selection.
(a)(1) Notwithstanding any other provision of this part or of parts 4 and 16 of this chapter, a potential applicant for a new, subsequent, or original license may until July 23, 2005 elect to use the licensing procedures of this part or the licensing procedures of parts 4 and 16.
(2) Any potential license applicant that files its notification of intent pursuant to § 5.5 and pre-application document pursuant to § 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 § 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 § 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 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.
§ 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 § 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 § 16.6 of this chapter and, unless the Commission directs otherwise, the licensee must make available the Pre-Application Document provided for in § 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
(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 § 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.
§ 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.
(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 § 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.
§ 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 § 5.5, and before it files any application for an original, new, or subsequent license, a potential applicant for a license to be filed pursuant to this part or part 4 of this chapter and, as appropriate, part 16 of this chapter, must file with the 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 § 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 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 § 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 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:
(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
(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;
(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 § 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 § 292.202(p) of this chapter), and a request for the agencies’ view on that belief, if any.
§ 5.7 Tribal consultation.
A meeting shall be held no later than 30 days following filing of the notification of intent required by § 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.
§ 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 § 5.5, filing of the pre-application document pursuant to § 5.6, and filing of any request to use the traditional licensing process or alternative procedures, the Commission will issue a notice of commencement of proceeding and scoping document or of approval of a request to use the traditional licensing process or alternative procedures.
(b) Notice contents. The notice shall include:
(1) The decision of the Director of the Office of Energy Projects on any request to use the traditional licensing process or alternative procedures.
(2) If appropriate, a request by the Commission to initiate informal consultation under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402, section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920, or section 106 of the National Historic Preservation Act and implementing regulations at 36 CFR 800.2, and, if applicable, designation of the potential applicant as the Commission’s non-federal representative.
(3) If the potential license application is to be developed and filed pursuant to this part, notice of:
(i) The applicant’s intent to file a license application;
(ii) The filing of the pre-application document;
(iii) Commencement of the proceeding;
(iv) A request for comments on the pre-application document (including the proposed process plan and schedule);
(v) A statement that all communications to or from the Commission staff related to the merits of the potential application must be filed with the Commission;
(vi) The request for other Federal or state agencies or Indian tribes to be cooperating agencies for purposes of developing an environmental document;
(vii) The Commission’s intent with respect to preparation of an environmental impact statement; and
(viii) A public scoping meeting and site visit to be held within 30 days of the notice.
(c) Scoping Document 1. At the same time the Commission issues the notice provided for in paragraph (a) of this Section, the Commission staff will issue Scoping Document 1. Scoping Document 1 will include:
(1) An introductory section describing the purpose of the scoping document, the date and time of the scoping meeting, procedures for submitting written comments, and a request for information or study requests from state and Federal resource agencies, Indian tribes, non-governmental organizations, and individuals;
(2) Identification of the proposed action, including a description of the project’s location, facilities, and operation, and any proposed protection and enhancement measures, and other alternatives to the proposed action, including alternatives considered but eliminated from further study, and the no action alternative;
(3) Identification of resource issues to be analyzed in the environmental document, including those that would be cumulatively affected along with a description of the geographic and temporal scope of the cumulatively affected resources;
(4) A list of qualifying Federal and state comprehensive waterway plans;
(5) A list of qualifying tribal comprehensive waterway plans;
(6) A process plan and schedule and a draft outline of the environmental document; and
(7) A list of recipients.
(d) Scoping meeting and site visit. The purpose of the public meeting and site visit is to:
(1) Initiate issues scoping pursuant to the National Environmental Policy Act;
(2) Review and discuss existing conditions and resource management objectives;
(3) Review and discuss existing information and make preliminary identification of information and study needs;
(4) Review, discuss, and finalize the process plan and schedule for pre-filing activity that incorporates the time periods provided for in this part and, to the extent reasonably possible, maximizes coordination of Federal, state, and tribal permitting and certification processes, including consultation under section 7 of the Endangered Species 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
(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.
§ 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 § 5.8. Comments, including those by Commission staff, must be accompanied by any information gathering and study requests, and should include information and studies needed for consultation under section 7 of the Endangered Species Act and water quality certification under Section 401 of the Clean Water Act.
(b) Content of study request. Any information or study request must:
(1) Describe the goals and objectives of each study proposal and the information to be obtained;
(2) If applicable, explain the relevant resource management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied;
(3) If the requester is 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.
§ 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.
§ 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 § 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 § 5.15.
(d) The applicant’s proposed study plan must:
(1) Describe the goals and objectives of each study proposal and the information to be obtained;
(2) Address any known resource management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied;
(3) Describe existing information concerning the subject of the study proposal, and the need for additional information;
(4) Explain any nexus between project operations and effects (direct, indirect, and/or cumulative) on the resource to be studied;
(5) Explain how any proposed study methodology (including any preferred data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate field season(s) and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate, considers any known tribal interests;
(6) Describe considerations of level of effort and cost, as applicable.
(e) The potential applicant’s proposed study plan must be accompanied by a proposal for conducting a study plan meeting or meetings during the 90-day period provided for in § 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.
§ 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 § 5.9(b).
§ 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 § 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 § 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 § 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.
§ 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 § 5.9(b), and shall identify and provide contact information for the panel member designated by the disputing agency or Indian tribe, as discussed in paragraph (d) of this section.
(c) Studies and portions of study plans approved in the Study Plan Determination that are not the subject of a notice of dispute shall be deemed to be approved, and the potential applicant shall proceed with those studies or portions thereof.
(d) Within 20 days of a notice of study dispute, the Commission will convene one or more three-person Dispute Resolution Panels, as appropriate to the circumstances of each proceeding. Each such panel will consist of:
(1) A person from the Commission staff who is not otherwise involved in the proceeding, and who shall serve as the panel chair;
(2) One person designated by the Federal or state agency or Indian tribe that filed the notice of dispute who is not otherwise involved in the proceeding; and
(3) A third person selected by the other two panelists from a pre-established list of persons with expertise in the resource area. The two panelists shall make every reasonable effort to select the third panel member. If however no third panel member has been selected by the other two panelists within 15 days, an appropriate third panel member will be selected at random from the list of technical experts maintained by the Commission.
(e) If more than one agency or Indian tribe files a notice of dispute with respect to the decision in the preliminary determination on any information-gathering or study request, the disputing agencies or Indian tribes must select one person to represent their interests on the panel.
(f) The list of persons available to serve as a third panel member will be posted, as revised from time-to-time, on the hydroelectric page of the Commission’s Web site. A person on the list who is requested and willing to serve with respect to a specific dispute will be required to file with the Commission at that time a current statement of their qualifications, a statement that they have had no prior involvement with the proceeding in which the dispute has arisen, or other financial or other conflict of interest.
(g) All costs of the panel members representing the Commission staff and the agency or Indian tribe which filed the notice of dispute will be borne by the Commission or the agency or Indian tribe, as applicable. The third panel member will serve without compensation, except for certain allowable travel expenses as defined in 31 CFR part 301.
(h) To facilitate the delivery of information to the dispute resolution panel, the identity of the panel members and their addresses for personal service 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 § 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 § 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.
§ 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 § 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 § 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 § 5.9(b).
(f) Updated study report. Pursuant to the Commission-approved study plan and schedule provided for in § 5.13, or no later than two years after Commission approval of the study plan and schedule, whichever comes first, the potential applicant shall prepare and file with the Commission an updated study report describing its overall progress in implementing the study plan and schedule and the data collected, including an explanation of any variance from the study plan and schedule. The report must also include any modifications to ongoing studies or new studies proposed by the potential applicant. The review, comment, and disagreement resolution provisions of paragraphs (c)(2)-(7) of this section shall apply to the updated study report. Any proposal to modify an ongoing study must be accompanied by a showing of good cause why the proposal should be approved as set forth in paragraph (d) of this section. Any proposal for new information gathering or studies is subject to paragraph (e) of this section except that the proponent must demonstrate extraordinary circumstances warranting approval. The applicant must promptly proceed to complete any remaining undisputed information-gathering or studies under its proposed amendments to the study plan, if any, and must proceed to complete any information-gathering or studies that are the subject of a disagreement upon the Director’s resolution of the disagreement.
§ 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 § 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 § 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 § 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.
§ 5.17 Filing of application.
(a) Deadline—new or subsequent license application. An application for a new or subsequent license must be filed no later than 24 months before the existing license expires.
(b) Subsequent licenses. An applicant for a subsequent license must file its application under part I of the Federal Power Act. The provisions of section 7(a) of the Federal Power Act do not apply to licensing proceedings involving a subsequent license.
(c) Rejection or dismissal of application. If the Commission rejects or dismisses an application for a new or subsequent license filed under this part pursuant to the provisions of § 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 § 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 § 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 § 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 § 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 §§ 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.
§ 5.18 Application content.
(a) General content requirements. Each license application filed pursuant to this part must:
(1) Identify every person, citizen, association of citizens, domestic corporation, municipality, or state that has or intends to obtain and will maintain any proprietary right necessary to construct, operate, or maintain the project;
(2) Identify (providing names and mailing addresses):
(i) Every county in which any part of the project, and any Federal facilities that would be used by the project, would be located;
(ii) Every city, town, or similar local political subdivision:
(A) In which any part of the project, and any Federal facilities that would be used by the project, would be located; or
(B) That has a population of 5,000 or more people and is located within 15 miles of the project dam;
(iii) Every irrigation district, drainage district, or similar special purpose political subdivision:
(A) In which any part of the project, and any Federal facilities that would be used by the project, would be located; or
(B) That owns, operates, maintains, or uses any project facilities that would be used by the project;
(iv) Every other political subdivision in the general area of the project that there is reason to believe would likely be interested in, or affected by, the application; and
(v) All Indian tribes that may be affected by the project.
(3)(i) For a license (other than a license under section 15 of the Federal Power Act) state that the applicant has made, either at the time of or before filing the application, a good faith effort to give notification by certified mail of the filing of the application to:
(A) Every property owner of record of any interest in the property within the bounds of the project, or in the case of the project without a specific project boundary, each such owner of property which would underlie or be adjacent to any project works including any impoundments; and
(B) The entities identified in paragraph (a)(2) of this section, as well as any other Federal, state, municipal or other local government agencies that there is reason to believe would likely be interested in or affected by such application.
(ii) Such notification must contain the name, business address, and telephone number of the applicant and a copy of the Exhibit G contained in the application, and must state that a license application is being filed with the Commission.
(4)(i) As to any facts alleged in the application or other materials filed, be subscribed and verified under oath in the form set forth in paragraph (a)(3)(B) of this Section by the person filing, an officer thereof, or other person having knowledge of the matters set forth. If the subscription and verification is by anyone other than the person filing or an officer thereof, it must include a statement of the reasons therefor.
(ii) This application is executed in the:
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______.
(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 10 MW or less: § 4.61 of this chapter (General instructions, initial statement, and Exhibits A, F, and G);
(ii) License for a major unconstructed project and a major modified project: § 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: § 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: § 292.208 of this chapter.
(b) Exhibit E—Environmental Exhibit. The specifications for Exhibit E in §§ 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 § 5.6; follow the Commission’s “Preparing Environmental Assessments: Guidelines for Applicants, Contractors, and Staff,” as they may be updated from time-to-time; and meet the following format and content requirements:
(1) General description of the river basin. Describe the river system, including relevant tributaries; give measurements of the area of the basin and length of stream; identify the project’s river mile designation or other reference point; describe the topography and climate; and discuss major land uses and economic activities.
(2) Cumulative effects. List cumulatively affected resources based on the Commission’s Scoping Document, consultation, and study results. Discuss the geographic and temporal scope of analysis for those resources. Describe how resources are cumulatively affected and explain the choice of the geographic scope of analysis. Include a brief discussion of past, present, and future actions, and their effects on resources based on the new license term (30-50 years). Highlight the effect on the cumulatively affected resources from reasonably foreseeable future actions. Discuss past actions’ effects on the resource in the Affected Environment Section.
(3) Applicable laws. Include a discussion of the status of compliance with or consultation under the following laws, if applicable:
(i) Section 401 of the Clean Water Act. The applicant must file a request for a water quality certification (WQC), as required by Section 401 of the Clean Water Act no later than the deadline specified in § 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