18 CFR 360.101 ACV Form No. 6 -- Inventory of Land and Rights-of-Way.
(a) The data to be reported on this form shall be typewritten and
double spaced. To facilitate identification use carrier property
primary account numbers when reporting noncarrier property. When the
form is used to report jointly owned or jointly used property enter on
Sheet No. 1, for each valuation section, an asterisk (*) on the
Property Owned by ------ and Property Used by ------ lines and, in the
body of the form, the identity of both the owning and the using carriers
and the percentage of their respective owning or using interest.
(b) The form shall be executed as follows:
(1) Enter the date assigned for the valuation of the property on the
line provided in the caption of the form.
(2) Carrier Property Noncarrier Property. Place an X in the
appropriate block to identify the property being reported.
(3) Report Filed by ------ . Property Owned by ------ . Property
Used by ------ . Enter appropriate identifications. Where jointly
owned or jointly used property is being reported, enter an asterisk (*)
on the Property Owned by ------ and Property Used by ------ line to
indicate that the identity of the owning and the using carriers is set
out in Sheet No. 1 of ACV Form No. 6 for the valuation section, as
directed in (a) above.
(4) State ------ . Val. Sec. ------ . Identify the state and
valuation section in which the property being reported is located.
(5) Sheet No. ------ of ------ Sheets. This line shall identify the
sheets relating to the valuation section only.
(6) Enter the appropriate account number in the Land or Rights-of-Way
block.
(7) Column 1. Enter the number of the land map assigned by the
carrier in accordance with 360.105(b)(6).
(8) Column 2. Indicate the number assigned to the parcel, or
parcels, on the map identified in column 1.
(9) Column 3. Indicate the date and the kind of instrument by which
title to, or interest in, each parcel was derived, such as deed,
quitclaim deed, condemnation, ordinance, lease, agreement, etc.
(10) Columns 4 and 5. Enter, respectively, the name of the grantor
and grantee cited in the instrument identified in column 3.
(11) Column 6. Enter in this column the area, either in square feet
or acres, of the parcel, or parcels, identified in column 2.
(12) Column 7. Enter, to the nearest dollar, the original cost of
the area reported in column 6. In the case of land which was acquired
by aid, gift, grant or donation record the cost, or the appraised value
where the cost cannot be determined, of land so acquired from private
parties only. Incidental costs and assessments for public improvements
shall be reported separately in column 7 and identified in column 13.
Incidental costs and assessments shall be allocated to the parcels
affected. If considerations other than cash were exchanged for land,
identify such considerations in column 13. Total column 7 for each
valuation section, including overhead.
(13) Column 8. Use this column for both land and rights-of-way.
Enter the year that the parcel, or parcels, of land, or the year that
the first trunk pipeline right-of-way, or portion thereof, was dedicated
to public use.
(14) Columns 9 and 10. Identify the termini of trunk pipeline
rights-of-way placed in public service during the year shown in column
8.
(15) Column 11. Enter, for the termini identified in columns 9 and
10, the line miles of trunk pipeline right-of-way.
(16) Column 12. Enter, to the nearest dollar, the total original
cost for the valuation section as a whole for either trunk or gathering
lines. Where rights-of-way were acquired by aid, gift, grant or
donation include in the total entered in column 12 the cost, or the
appraised value where the cost cannot be determined, of rights-of-way so
acquired from private parties only. Record overhead and show total. If
considerations other than cash were exchanged for rights-of-way identify
such considerations in column 13.
(17) Column 13. Include in this column the number of the
right-of-way map, or maps, depicting the trunk line, or lines,
identified by the termini shown in columns 9 and 10. Identify also in
this column land or rights-of-way included in the inventory which were
acquired by aid, gift, grant or donation from private parties, the cost
or appraised value of which is included in amounts reported in column 7
or column 12.
(18) In the case of jointly owned or jointly used property apply the
owning or using percentages, shown on Sheet No. 1 for the valuation
section, to the total shown in column 7 or in column 12, and identify
the results by each jointly owning or jointly using carrier.
(c) ACV Forms No. 6 prepared by agent operators for ''system''
property as a whole, together with related ACV Forms No. 6 showing the
proportionate share of the original cost of such property applicable to
each jointly owning or jointly using carrier, shall be filed with the
Commission for review.
(d) Following review by the Commission of ACV Forms No. 6 filed by
agent operators in accordance with paragraph (c) of this section, agent
operators will be supplied with photocopies of all such forms on which
corrections are made by the Commission. Agent operators shall then
provide each jointly owning or jointly using carrier with two copies of
its ''proportionate share'' ACV Forms No. 6, one to be retained and one
to be filed with the Commission.
(e) Following the review of ACV Forms No. 6 filed for wholly owned
or wholly used property, the Commission will provide each wholly owning
or wholly using carrier with photocopies of those forms on which changes
are made.
(32 FR 20475, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981)
18 CFR 360.102 ACV Form No. 7 -- Summary of Original Cost of
Inventory.
(a) ACV Form No. 7 shall be filed in typewritten form to report in
summary the original cost of the inventory of carrier and noncarrier
property. Include jointly owned and used property with wholly owned and
used property when preparing the form for owned and used property.
Report cost of organization and mobile property servicing more than one
state in the column captioned ''Unallocated.'' For uniformity in
reporting, report the cost of noncarrier property on the ACV Form No. 7
prepared for owned and used property. Enter the names of the States in
which property is located in the blank blocks provided in columns 2
through 9.
(b) Summarize, by primary account for carrier property and by the
account 34 categories shown on ACV Form No. 7 for Miscellaneous
physical property, the original cost totals, including the appropriate
percentage thereof for jointly owned or jointly used property, shown on
ACV Forms No. 5 and 6. Record the results in columns 2 through 10.
(c) Following the completion of paragraph (b) of this section,
crossfoot amounts reported in columns 2 through 10 and enter the results
in column 1. Produce the totals and grand totals indicated to be shown
on ACV Form No. 7 and crossfoot to balance.
(32 FR 20475, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981; 49 FR 44629, Nov. 8, 1984)
18 CFR 360.103 ACV Form No. 8 -- Cost Data for Equipment and Tanks.
(a) The purpose of this form is two-fold:
(1) To provide information pertaining to the cost of line pipe,
equipment and tanks included in the initial inventory of property
reported on ACV Form No. 5 which were purchased during the year as of
which an initial valuation will be found by the Commission or during the
two previous years. ACV Forms No. 8 reporting such information shall
be submitted with the data required to be filed in accordance with
360.2.
(2) To report the cost of line pipe, equipment and tanks purchased
through December 1 of each year following the filing of initial
inventory data, regardless of whether such property was placed in
service during the reporting period or not. ACV Forms No. 8 presenting
such data shall be filed with the Commission, in an original only, by
each carrier or agent, required to file reports of property changes
under the requirements of Revised Supplement No. 8 to Valuation Order
No. 3, Second Revised Issue. Such ACV Forms No. 8 shall be filed not
later than February 1 following the end of the reporting period.
(b) ACV Form No. 8 shall be prepared in typewritten form as follows:
(1) Enter an X in the ( ) Initial block when the form is prepared for
the purpose set out in paragraph (a)(1) above. Show the year of
purchase on the For the Year ---- line where the form is prepared for
the purpose stated in paragraph (a)(2) above.
(2) The Sheet No. ------ of ------ Sheets line shall be used to
identify the number of sheets used for each account reported.
(3) Enter the name of the carrier, or agent, filing the forms on the
Report Filed by ---------- line, and the name of the carrier or system
using, or which will use, the purchased property on the Property Used by
---------- line.
(4) Enter one of the following accounts, as appropriate, on the
Account No. ------ line: 104, 154, 108, 158, 111, or 161.
(5) For accounts 103 and 153 report, only, purchases of new pipe in
lots of 40,000 pounds or more. See paragraphs (6), (7), (9), (11), and
(12) below for further details concerning the reporting of line pipe.
For accounts 104 and 154 report, only, motor operated valves 12'' and
up; for accounts 108 and 158 report major units of pumping equipment
only, such as large engines, large centrifugal or reciprocating pumps,
electric motors over 250 horsepower, and speed increasers. Do not
report purchases of portable or miscellaneous units, or secondhand
equipment. For accounts 111 and 161 report tanks only. Exclude all
appurtenances except where they are included in the purchase price as a
standard fixture or fitting. See (6) below for further details
concerning the reporting of tanks.
(6) Except for line pipe enter in column 1 a complete description of
the property including, where applicable, the name of the manufacturer,
serial number, size, dimensions, capacity, model, type, material from
which manufactured, construction and special features, and all other
specifications which will clearly identify the property being reported.
Include in this column only those features which are included in the
unit price reported in column 4. It is imperative when reporting tanks
that the following be observed. The 1947 Period Guide Prices and Annual
and Period Indices lists certain features of tank construction the cost
of which is included in the prices per pound in place shown for the
tanks identified in that document. Where features, appurtenances or
accessories, other than those listed in the 1947 Period Guide Prices and
Annual and Period Indices are included in the unit price of the tanks
shown in Column 4, list each such item in column 1 showing its weight,
where appropriate, and the cost applicable thereto (estimated where
necessary) included in the unit price shown in column 4.
For line pipe enter in column 1 the name of the manufacturer, nominal
diameter, wall thickness, weight in pounds per lineal foot, kind (i.e.,
electric weld, seamless, butweld, etc.), type of end, and A.P.I. grade.
(7) Except for line pipe report in column 2, for forms prepared to
reflect the data referred to in paragraph (a)(1) above, the year in
which the property described in column 1 was purchased. Leave this
column blank when the form is prepared to report the data referred to in
paragraph (a)(2) above.
For line pipe show the month and date of each purchase.
(8) Signify in column 3 the number of units purchased.
(9) State in column 4 the price paid for each unit of property
reported in column 3 for equipment and tanks. Show ''in place'' unit
prices for tanks. For line pipe, if purchased f.o.b. mill, report the
unit price per one hundred lineal feet. Exclude from unit prices all
sales, use or other taxes required by lawful taxing authority to be
added to the total invoice cost of materials purchased.
(10) For equipment and tanks show the geographical location of the
point indicated in column 5. For line pipe purchased f.o.b.
destination report in column 5 the unit price per one hundred lineal
feet.
(11) Show the geographical locations of the points indicated in
columns 6 and 7.
(12) Except for line pipe enter in column 8 the net shipping weight
for each of the units reported in column 3. Where actual net weight
cannot be determined show estimated net weight and indicate that an
estimate was used.
For line pipe purchased f.o.b. mill show freight charges in cents per
hundred pounds.
(13) Where no purchases are made during the year covered by the
report, so state on a separate ACV Form No. 8 or by letter indicating
thereon the account in which there was no purchase activity.
(32 FR 20475, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981; 49 FR 44629, Nov. 8, 1984)
18 CFR 360.104 ACV Form No. 9 -- Cost Data for Pipeline Construction.
(a) This form will serve two purposes:
(1) It will report the cost of pipeline construction included in the
initial inventory of property reported on ACV Form No. 5 which was
constructed during the year as of which an initial valuation will be
found by the Commission, or during the two previous years. ACV Forms
No. 9 reporting this information shall be submitted with the data
required to be filed in accordance with 360.2.
(2) It will provide the cost of pipeline constructed through December
1 of each year following the filing of initial inventory data, including
the cost of pipeline constructed during the year and not placed in
service as of the end of the period covered by the report. ACV Forms
No. 9 reporting this data shall be filed with the Commission, in an
original only, by each carrier, or agent, required to file reports of
property changes under the requirements of Revised Supplement No. 8 to
Valuation Order No. 3, Second Revised Issue. Such ACV Forms No. 9
shall be filed not later than February 1 following the end of the
reporting year.
(b) The information to be recorded on ACV Form No. 9 shall be
reported separately by each contract, and shall include data pertaining
only to contracts completed. Report subcontracts separately only when
subcontract amounts are not included in amounts reported in column 11
for prime contracts. The form shall be executed in typewritten form as
follows:
(1) Enter an X in the Initial block when the form is prepared for
the purpose set out in (a)(1) above. Show the year of construction on
the For the Year ---- line when the form is used for the purpose stated
in (a)(2) above.
(2) The Sheet No. ---- of ---- Sheets line shall be used to identify
the number of sheets used for each account.
(3) Enter the name of the carrier, or agent, filing the form on the
Report Filed by ------ line and, on the Property Used by ------ line,
the name of the carrier or system using, or which will use, the pipeline
covered by the report.
(4) Enter account 105 or 155, as appropriate, on the Account No.
---- line.
(5) For forms prepared to show the information referred to in (a)(1)
above, report in column 1 the year in which the pipeline construction
was completed. Leave this column blank when the form is prepared to
report the data referred to in (a)(2) above.
(6) In column 2 show the name of the contractor, or subcontractor,
and the contract number or other identity.
(7) Enter in columns 3 and 4 the geographical location of the
terminal points of the pipeline constructed under the contract.
Identify all states through which the pipeline runs.
(8) Show in column 5 the linear feet of pipeline constructed between
the termini shown in columns 3 and 4.
(9) In columns 6 and 7 enter, respectively, the average depth and
width, in inches, of the trench in which the line pipe was placed.
(10) Provide in columns 8 and 9 the descriptive matter called for
pertaining to the line pipe used in the construction of the pipeline.
In recording pipe diameter in column 8 show the inside measurement for
pipe having diameters up to and including 12''; for pipe having
diameters in excess of 12'' show the outside measurement.
(11) Enter in column 10 the average number of miles it was required
to haul line pipe during construction from rail point, pipe yard or
other storage location to point of installation.
(12) Record in column 11 the amount of the contract covering the
construction referred to in the preceding columns. Where claims by
contractors for amounts in excess of the contract are in negotiation or
litigation provide details. Identify, also, duplicate or extra costs,
such as moving equipment, incurred by subsequent contractors as a result
of failure to perform under the original contract.
(13) Show in column 12 the total expenditures incurred by the
carrier, or carriers, incident to the construction over and above the
amount of the contract.
(14) Show in columns 13 through 17, to the nearest hundredth of a
cent, the cost per linear foot of performing the operations identified
in the captions of these columns. Record contract and carrier costs on
separate lines. Include as clearing and grubbing expenditures in the
amount reported in column 13 only those applicable to areas where it is
necessary to remove trees and heavy brush, and not for the entire
right-of-way. Include the cost of the following operations in the
amount reported in column 15: pilot road grading, hauling and stringing
pipe, ditching, laying pipe, backfilling, and inspecting and testing
pipe. Include in the amount reported in column 16 only those overhead
expenditures defined in 360.7. Include in the amount reported in column
17 all other pipeline construction costs not provided for in columns 13
through 16, such as damages, cathodic protection, pipe supports, line
markers, etc.
(15) Report in column 18 the total of amounts reported in columns 13
through 17. Total cost per linear foot reported separately in this
column, representing contract cost and carrier cost, when multiplied by
the linear feet reported in column 5 must agree with amounts reported in
columns 11 and 12, respectively.
(16) Immediately below the data entered in the columns of ACV Form
No. 9 in accordance with the above, provide the following information
in narrative form:
(i) Describe the method used in applying coating referred to in
column 14 and state whether it was applied at the factory, storage point
or trench site. Also describe the kind of coating including the number
and type of enamels, wraps, etc.
(ii) Describe the pipeline right-of-way terrain. Include in such
description whether the land in the area of construction is isolated,
hilly, mountainous, flat or swampy; whether forest or pasture land or
otherwise under cultivation; whether the soil is sandy, rocky, loamy,
etc.; and, when necessary, whether water crossings were submerged or
overhead, and the identity of the body of water crossed. State also
whether the construction area was congested, such as cities or towns,
etc.
(iii) Discuss any other conditions encountered during construction
which will aid in evaluating the cost data presented.
(c) If there was no pipeline construction during the year covered by
the report, so indicate on a separate ACV Form No. 9 showing the
accounts in which there was no such activity.
(32 FR 20475, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981)
18 CFR 360.105 Maps.
(a) Right-of-way maps shall be filed for each valuation section.
These maps, which shall be 17'' 11'' in size, shall be drawn to a
scale suitable for clearly identifying what is depicted on the maps. An
arrow shall be placed on each map showing the north bearing. The
following information shall be shown on each map:
(1) The general direction and approximate geographical location of
the line shall be shown, the latter by identifying the state and county,
and the city, village, town, township or section, or other geographical
identity, through which the line runs, or to which the line is adjacent.
(2) Pipe in the line shall be identified by manufacturer, kind,
diameter, weight in pounds per foot, and whether new or secondhand when
laid. Loops and parallel lines shall be identified, as shall crude and
products lines.
(3) All buildings including offices, pumping stations, and terminals
shall be shown; also, tanks and tank areas, bridges, radio and
microwave towers and telegraph and telephone lines where includible on
the map as drawn, casing locations, and equipment which is not housed in
or constituting a part of pumping stations or terminals, such as
isolated pumps or gate valves. Where available, carrier assigned
numbers or other identification shall be shown for this property
depicted on the map.
(4) The beginning and ending survey station numbers assigned to the
area depicted on the map shall be shown, as well as such intervening
survey station numbers as will establish the location of structures,
equipment, and tank and storage areas identified on the map. The
beginning and ending survey station numbers assigned to land maps shall
also be shown.
(5) Bodies of water shall be identified, and the land area through
which the line runs shall be described to indicate whether it is hilly,
mountainous or swampy, or in forest or pasture or otherwise under
cultivation, and whether it is loamy, sandy or rocky. Other physical
features of the terrain traversed by the pipeline shall be identified.
Railroads, highways, roads, trails, fences, transmission lines, etc.,
including those which cross the line, shall also be identified. The
beginning and ending survey station numbers shall be shown at the points
at which the pipeline crosses or intersects the above described physical
features.
(6) In most cases, it will be necessary to prepare a number of maps
for a single valuation section. Such multiple maps shall be
consecutively numbered beginning with number 1 for each valuation
section, and shall show the total number of maps prepared for the
valuation section, such as 1 of 10.
(7) There shall be shown in the bottom right-hand corner of each map,
in the following order, the name of the carrier or agent filing the map,
the state and valuation section identity, the map number, the beginning
and ending survey station numbers shown on the map, and the scale used.
Do not include survey station numbers assigned to land maps.
(8) There shall also be shown on each map for the line presented
thereon a pipeline footage summary by kind, construction, diameter and
weight in pounds per foot. When summarizing screw end pipe increase the
footage by 1 percent for screwage and show the total footage including
the screwage. Show, separately, the screwage included in the total
footage. Show crude and product footage separately. The summary shall
be also stated separately for new and second-hand pipe, these
classifications to be interpreted as being representative of the pipe
when installed.
(9) There shall also be presented on each map a summary of pipeline
construction items identified thereon such as casings, vents, pipe
supports, fences cut, drains cut, river weights, riprap, valve boxes,
danger signs, line markers, piling, concrete, etc.
(10) From the above summaries ACV Form No. 5, headed ''Map Summary
Totals,'' shall be prepared for each valuation section to total, by like
item, the items included on each map summary. In developing each item
total show the number of units of the item on each summary and the
number of the map on which the summary is shown. Item totals thus
developed must agree with those reported on ACV Forms No. 5 prepared in
accordance with 360.100.
(11) In those cases where items of property, such as telegraph and
telephone lines and microwave installations, are located a great
distance from the pipeline right-of-way such property may be shown on
one, or more, legible maps 17'' 11'' in size.
(b) Land maps, covering land purchased for right-of-way purposes and
land purchased to provide required areas for storage, structures and
equipment, shall be filed for each valuation section. These maps, which
shall be 17'' 11'' in size, shall be drawn to scale, not less than
100' equals 1'', and shall bear an arrow showing the north bearing. The
following information shall be shown on each map:
(1) The geographical location of the land shall be shown by
indicating the state and county, and the city, village, town, township
or section, or other geographical identity, in which the land is located
or to which the land is adjacent.
(2) The dimensions, expressed in linear feet, of each parcel of land
identified in column 2 of ACV Form No. 6 shall be shown, and shall bear
the number corresponding to that recorded in column 2 of ACV Form No.
6.
(3) Where known, the property lines and the names of the owners, and
the utility, of adjoining property shall be shown.
(4) There shall be shown, in outline, on maps covering land purchased
to provide required areas for storage, structures and equipment, the
location of such property on such land, as well as the location and
direction of discharge lines, only, for trunk lines, and the location
and direction of all gathering lines. The location and direction of all
trunk and gathering lines shall be shown, in outline, on maps covering
land purchased for right-of-way purposes.
(5) The beginning and ending survey station numbers assigned to the
land covered by the map shall be shown. These survey station numbers
shall agree with those shown on right-of-way maps in accordance with
paragraph (a)(4) of this section.
(6) Where it is necessary to prepare more than one map for a
valuation section, number such multiple maps consecutively, beginning
with number 1 for each valuation section, and show the total number of
maps prepared for the valuation section, such as 1 of 5. Where a single
map covers all the land within a give valuation section it shall be
numbered 1 of 1.
(7) There shall be shown in the bottom right-hand corner of each map,
in the following order, the name of the carrier or agent filing the map,
the state and valuation section identity, the map number, and the
beginning and ending survey station numbers shown on the map.
(c) Existing maps meeting the specifications enumerated in paragraphs
(a) and (b) of this section may be filed in lieu of preparing new ones.
(d) As directed in 360.106 selected items of property identified on
maps will be depicted in greater detail on plot plans, and 360.107
provides for describing more fully on sketches certain items of property
shown on plot plans or maps.
18 CFR 360.106 Plot plans.
(a) Plot plans, 17'' 11'' in size, and bearing an arrow to indicate
the north bearing, shall be filed to depict graphically, by schematic
drawing or diagram, the following property identified on maps:
(1) Accounts 105 and 155. Pipeline bridges.
(2) Accounts 106, 156, and 176. Buildings and station grounds.
(3) Accounts 111 and 161. Tanks and firewalls.
(4) Accounts 112 and 162. Loading racks, railroad tracks, docks and
dredged areas.
(5) Accounts 113, 163, and 183. Radio and microwave towers.
(b) Plot plans shall be consecutively numbered beginning with number
1 for each valuation section. Show the total number of plot plans
prepared for the valuation section, such as 1 of 4. There shall be
shown in the bottom right-hand corner of each plot plan, in the
following order, the name of the carrier or agent filing the plot plan,
the state and valuation section identity, the number of the map showing
the property depicted on the plot plan, the plot plan number, and the
beginning and ending survey station numbers applicable to the property
depicted on the plot plan.
18 CFR 360.107 Sketches.
(a) Sketches, 17'' 11'' in size, shall be filed to describe in
greater detail, as indicated below, the following items of property
which are depicted on plot plans or maps;
(1) Accounts 105 and 155. Profiles of river beds for all crossings,
including approaches, and floor plans and elevations for pipeline
bridges.
(2) Accounts 106, 156, and 176. Floor plans and elevations for
buildings.
(3) Accounts 110 and 160. Layout for station oil pipe and service
pipe.
(4) Accounts 112 and 162. Layout for delivery facility oil pipe, and
elevation and details for loading racks and docks.
(b) Sketches shall be consecutively numbered beginning with number 1
for each valuation section. Show the total number of sketches prepared
for the valuation section, such as 1 of 6. There shall be shown in the
bottom right-hand corner of each sketch, in the following order, the
name of the carrier or agent filing the sketch, and state and valuation
section identity, the number of the plot plan depicting the property
described on the sketch (indicate on profiles of river beds for accounts
105 and 155 and on sketches prepared for property reported under
accounts 110 and 160 the number of the map on which the property is
identified), the sketch number, and the beginning and ending survey
station numbers applicable to the property described on the sketch.
(32 FR 20475, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981; 49 FR 44629, Nov. 8, 1984)
18 CFR 360.108 Photographs.
(a) Representative photographs in sufficient quantity and of such
size and clarity as will adequately illustrate the property inventoried
shall be filed to provide the following:
(1) Where available, examples of both usual and unusual types of
pipeline construction in progress, including river crossings.
(2) Illustrations of right-of-way terrain.
(3) Pictures of property, excluding railroad tracks and dredged
areas, for which plot plans are prescribed in 360.106; equipment
reported under accounts 108 and 158; and instruments and gauges
reported under accounts 110 and 160, and 112 and 162.
(4) Pictures of building interiors, pumping stations and terminals.
(b) Photographs shall be mounted and assembled in looseleaf book form
on sheets 17'' 11''. A cardboard cover shall be provided on which
shall be recorded the name of the carrier or agent filing the
photographs.
(c) The identity of the subject matter shall be entered beneath each
photograph, followed by the geographical location of the property and
the State and valuation section number. Show next the map number for
photographs depicting pipeline construction and right-of-way terrain, or
the plot plan number for photographs of property for which plot plans
have been prescribed. Identify, last, for each photograph filed the
survey station number, or numbers, which will provide the location on
the related map of the property photographed.
18 CFR 360.109 Special notes.
The following supplemental information shall be presented in
narrative form on 17'' 11'' sheets:
(a) Provide, for each valuation section, a brief description of the
topography of the country traversed by the pipeline, and the general
direction, connecting points and termini of the line.
(b) The rainfall and climatic conditions, including any unusual
weather encountered during construction.
(c) The number and location of material yards used during
construction and the shortest distance to the line for each.
(d) Discuss, by valuation section, the character and depth of trench
excavations.
(e) Report the results of any soil surveys made.
(f) An estimate of the remaining life of each oil field served by the
pipeline.
(g) Describe any unusual conditions encountered during construction
including, especially, those resulting in either unusually high or
unusually low construction costs.
18 CFR 360.110 Identification of aids, gifts, grants or donations.
List, on a separate ACV Form No. 5, the State, valuation section and
sheet number on which aids, gifts, grants or donations from private
parties are reported on ACV Form No. 5 and on ACV Form No. 6 and by
account number the cost, or appraised value, thereof. If no property
was acquired by aid, gift, grant or donation enter the word ''None'' on
this report.
18 CFR 360.111 Reconciliations.
(a) Carrier property: Carriers shall prepare an analysis of the
difference between the original cost shown for ''Grand Total incl. land
and rights-of-way'' in column 1 of ACV Form No. 7, and the closing
balances in Account 30, Investment in carrier property (primary accounts
101 to 187 inclusive) and Account 40, Cost of organization, as of the
effective date of the initial inventory. This analysis shall be in such
form as to separately indicate, by subheadings, amounts included in the
closing balances of accounts 30 and 40 but not included in the original
cost shown for ''Grand Total Incl. land and rights-of-way'' in column 1
of ACV Form No. 7 and vice versa. The details of items shown under
each subheading shall be grouped under appropriate descriptive headings
according to the nature of the difference.
(b) Noncarrier property: Carriers shall also prepare an analysis of
the difference between the amount shown for ''Total account 34'' in
column 1 of ACV Form No. 7 and the closing balance in Account 34,
Miscellaneous physical property as of the effective date of the initial
inventory.
(c) The above reconciliations shall be presented on the ACV Form No.
5.
(49 FR 44629, Nov. 8, 1984)
18 CFR 360.112 Corporate history and development of fixed physical
property.
Report, on 17'' 11'' sheets, the following information for the
filing carrier and for each predecessor:
(a) Give name of corporation, company, or firm, date of
incorporation, and date of organization. If corporation, state whether
incorporated under general law or by special act. If incorporated under
general law, state where articles of incorporation were filed. If
incorporated by special act, give reference to the act.
(b) Describe the property, or portion of property, constructed by
each corporation, company, or firm, and show as to each such property,
or portion of property, as so constructed, the termini and mileage of
each trunk line, the total mileage of gathering lines, the dates of
construction, and the dates the property, or portion thereof, was
dedicated to public use.
(c) State length of time any such property, or portion of property,
was actually operated by any such corporation, company, or firm, giving,
in each instance, date of beginning and date of conclusion of such
operation.
(d) If any such corporation has gone out of existence, describe the
proceedings by virtue of which the dissolution took place. If any such
corporation is still in existence, state where its records are kept and
give name and address of person who has custody of them.
(e) State fully the chain of title by which the present corporation
acquired the property which it now owns or operates. In this connection
list all leases, reorganization proceedings and other instruments
bearing upon the corporate history.
18 CFR 360.112 PART 361 -- REGULATIONS GOVERNING THE REPORTING OF
PROPERTY CHANGES, PIPELINE CARRIERS
Sec.
361.1 Regulations prescribed.
361.2 Prescribed forms.
361.3 Preparation of forms.
361.4 Copies required.
361.5 Geographical identity of property changes.
361.6 Carrier and noncarrier property defined.
361.7 Reporting changes by class of carrier property.
361.8 Responsibility for filing forms.
361.9 Reporting period and filing date.
361.10 Out-of-service property.
361.11 Transfers between category of property.
361.12 Exceptions.
361.13 Reconciliations.
361.14 Valuation sections.
361.15 Corrections of additions or retirements previously reported.
361.16 Ancillary documents.
361.17 Assembling and numbering forms.
361.18 Location sketches.
361.19 Amendments and deviations.
361.100 Property changes other than land and rights-of-way.
361.101 Land and rights-of-way property changes.
361.102 Summary of original cost.
361.103 Summary of cost of reproduction new and cost of reproduction
new less depreciation.
361.200 Introduction.
361.201 Actions between common carriers affecting property
representing one or more complete valuation sections.
361.202 Actions between common carriers affecting property
representing less than a complete valuation section.
361.203 Actions between common carriers and individuals, firms,
corporations or others not common carriers.
361.204 Purchases and sales of jointly owned or jointly used agent
operated property.
361.205 Purchases and sales of jointly owned or jointly used nonagent
operated property.
361.300 List of forms.
Authority: Department of Energy Organization Act, 42 U.S.C.
7101-7352 (1982); Interstate Commerce Act, 49 U.S.C. 1-27 (1976); E.O.
12009, 3 CFR 142 (1978).
Source: 32 FR 20482, Dec. 20, 1967. Redesignated and amended by
Order 119, 46 FR 9051, Jan. 28, 1981, unless otherwise noted.
18 CFR 360.112 General
18 CFR 361.1 Regulations prescribed.
Each common carrier by pipeline subject to provisions of the
Interstate Commerce Act is required to comply with regulations in this
part in reporting property changes subsequent to the date fixed for the
basic inventory of its property. This does not supersede provisions of
Valuation Order No. 3 -- Second Revised Issue, effective January 1,
1919 (part 362 of this chapter) requiring all carriers to record and
report property changes. Those requirements are adapted by regulations
in this part to the terminology and property units peculiar to pipeline
carriers, as contemplated by the provisions of sec. 23 of Valuation
Order No. 3 -- Second Revised Issue ( 362.21 of this chapter).
18 CFR 361.2 Prescribed forms.
ACV Forms No. 1, 2, 3, and 4, as listed in 361.300, are used as
prescribed by this part.
18 CFR 361.3 Preparation of forms.
Detailed instructions concerning the information to be reported on
the forms are set out in 361.100 to 361.103, and 361.200 to 361.205.
18 CFR 361.4 Copies required.
The prescribed forms shall be filed with the Commission in an
original only and one copy shall be retained by carriers for examination
by Commission representatives. Copies of forms prepared by other than
filing carriers, appropriately amended by filing carriers to indicate
their identity and their designated valuation section numbers, may be
filed in lieu of originals.
18 CFR 361.5 Geographical identity of property changes.
Changes relating to property which is not normally moved from place
to place, or mobile property such as vehicles or other work equipment or
other property which services a particular valuation section on a
reasonably permanent basis, shall be identified with the valuation
section and State in which the property is physically located at the end
of the reporting period. Changes relating to mobile property servicing
more than one valuation section of a State shall be reported as
unallocated for the State in which such valuation sections are located.
If mobile property services more than one State, changes affecting same
shall be reported as unallocated for the carrier as a whole without
State identity.
18 CFR 361.6 Carrier and noncarrier property defined.
Carrier property is that which is used exclusively for common-carrier
purposes. Noncarrier property is that which is used exclusively for
purposes other than those of a common carrier. These definitions are to
be interpreted as disregarding incidental or immaterial use.
18 CFR 361.7 Reporting changes by class of carrier property.
Property changes shall be reported separately by use and ownership
category of carrier property. These are defined as follows:
(a) Class 1: Property owned by a common carrier and used for
common-carrier purposes. This class of property includes:
(1) Wholly owned and wholly used by the same carrier.
(2) Jointly owned and used by the same carriers.
(b) Class 2: Property owned by a common carrier but used by another
common carrier for common-carrier purposes. This class of property
includes:
(1) Wholly owned by one carrier but wholly used by another carrier.
(2) Wholly owned by one carrier but jointly used by other carriers.
(3) Jointly owned by carriers but wholly used by another carrier.
(4) Jointly owned by carriers but jointly used by other carriers.
(c) Class 3: Property used by a common carrier for common-carrier
purposes but owned by another common carrier. This class of property
includes:
(1) Wholly used by one carrier but wholly owned by another carrier.
(2) Wholly used by one carrier but jointly owned by other carriers.
(3) Jointly used by carriers but wholly owned by another carrier.
(4) Jointly used by carriers but jointly owned by other carriers.
(d) Class 4: Property used by a common carrier for common-carrier
purposes but owned by other than a common carrier. This class of
property includes:
(1) Wholly used by a carrier but wholly owned by a noncarrier.
(2) Wholly used by a carrier but jointly owned by noncarriers.
(3) Jointly used by carriers but wholly owned by a noncarrier.
(4) Jointly used by carriers but jointly owned by noncarriers.
(e) All possible ownership and use combinations have not been
included in the examples set out under the four classes of property
defined above. Questions concerning those omitted shall be submitted to
the Commission by carriers on an individual case basis.
(32 FR 20482, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981; 49 FR 44629, Nov. 8, 1984)
18 CFR 361.8 Responsibility for filing forms.
(a) Class 1 property: (1) ACV Forms No. 1, 2, 3, and 4 shall be
filed by the owning carrier.
(2) For agent operated jointly owned and used property, ACV Forms No.
1, 2 and 4 shall be prepared for the property as a whole by the agent
operator. In addition to preparing these ACV Forms No. 1, 2 and 4,
agent operators shall also prepare, for jointly owned and used property,
ACV Forms No. 1 and 2 showing the proportionate share of original cost
changes for the reporting period applicable to each jointly owning and
using carrier. Separate forms shall be prepared for each state and the
identity of the jointly owning and using carrier shall be entered on the
Report Filed by ---------- , Property Owned by ---------- , and Property
Used by -------- lines of the forms. The caption ''Proportionate Share
of the (Name of the system) Jointly Owned and Used'' shall be entered in
the body of the forms. Where acquisitions have occurred during the
reporting period, enter the caption ''Acquisitions'' in column 6 of ACV
Form No. 1, and in columns 6 and 13 of ACV Form No. 2. The affected
primary accounts shall then be listed in column 1 of ACV Form No. 1 and
in columns 1 and 11 of ACV Form No. 2. The valuation sections in which
property changes have occurred shall be set out under the appropriate
account numbers, and the original cost of additions and retirements
applicable thereto shall be entered in the Original Cost columns of ACV
Forms No. 1 and 2. Acquisitions, if any, shall be entered in the
columns so headed. Totals shall be shown in these columns for each
account.
(3) Agent operators shall also prepare for jointly owned and used
property ACV Form No. 4 showing the proportionate share of cost of
reproduction new and cost of reproduction new less depreciation, both
including overhead, as of the end of the reporting period, applicable to
each jointly owning and using carrier. A separate form shall be
prepared for each state and the identity of the jointly owning and using
carrier shall be entered on the Report Filed by ---------- , Property
Owned by ---------- , and Property Used by ---------- lines of the form.
The caption ''Proportionate Share of the (Name of the system) Jointly
Owned and Used'' shall be entered in the body of the form. The
valuation sections of the state shall be listed in column 9 of the form
and the related cost of reproduction new and cost of reproduction new
less depreciation shall be recorded in columns 21 and 22, respectively.
(4) Agent operators shall file the ACV Forms No. 1, 2 and 4,
prepared by them in accordance with the preceding paragraphs, with the
Commission where they will be reviewed and retained. Upon the
completion of this review agent operators will be so advised and will be
provided with photocopies of all ACV Forms No. 1, 2 and 4 on which
corrections are made by the Commission. Each jointly owning and using
carrier shall then be provided by agent operators with two copies of ACV
Forms No. 1, 2 and 4, other than those prepared for jointly owned and
used property as a whole, one to be retained by the recipient carrier
and the other to be filed with the Commission. Copies of ACV Forms No.
1, 2 and 4 prepared by agent operators for jointly owned and used
property as a whole may be made available to jointly owning and using
carriers by arrangement with agent operators.
(5) For nonagent operated jointly owned and used property, ACV Forms
No. 1, 2 and 4 shall be prepared by one of the jointly owning and using
carriers, and two copies of these forms shall be mailed by the carrier
preparing them to each jointly owning and using carrier. The recipient
carrier shall retain one copy of these forms and shall file the other
with the Commission.
(6) For both agent and nonagent operated jointly owned and used
property, the proportionate share of original cost changes reported on
ACV Forms No. 1 and 2 shall be included in amounts reported on ACV Form
No. 3, and the proportionate share of cost of reproduction new and cost
of reproduction new less depreciation shall be listed on the ACV Form
No. 4 summary.
(b) Class 2 and 3 property: (1) ACV Forms No. 1, 2, 3, and 4 shall
be filed by the owning carrier for class 2 property and by the using
carrier for class 3 property. ACV Forms No. 1, 2 and 4 may be prepared
by a wholly owning but not using carrier, or by a wholly using but not
owning carrier. Two copies of these forms shall be mailed by the
carrier preparing them to the wholly owning or to the wholly using
carrier, as appropriate.
(2) For agent operated jointly owned but not used property, or for
agent operated jointly used but not owned property, ACV Forms No. 1, 2
and 4 shall be prepared for the property as a whole by the agent
operator. In addition to preparing these ACV Forms No. 1, 2 and 4,
agent operators shall also prepare, for jointly owned but not used and
for jointly used but not owned property, ACV Forms No. 1 and 2 showing
the proportionate share of original cost changes for the reporting
period applicable to each jointly owning or jointly using carrier.
Separate forms shall be prepared for each state. For Class 2 property,
the identity of the jointly owning but not using carrier shall be
entered on the Report Filed by -------- and Property Owned by --------
lines, and the identity of the using carrier, or carriers, shall be
entered on the Property Used by -------- line. For Class 3 property,
the identity of the jointly using but not owning carrier shall be
entered on the Report Filed by -------- and Property Used by --------
lines, and the identity of the owning carrier, or carriers, shall be
entered on the Property Owned by -------- line. The caption
''Proportionate Share of the (Name of the system) Jointly Owned but not
Used, or Jointly Used but not Owned,'' as appropriate, shall be entered
in the body of the forms. Where acquisitions have occurred during the
reporting period, enter the caption ''Acquisitions'' in column 6 of ACV
Form No. 1, and in columns 6 and 13 of ACV Form No. 2. The affected
primary accounts shall then be listed in column 1 of ACV Form No. 1 and
in columns 1 and 11 of ACV Form No. 2. The valuation sections in which
property changes have occurred shall be set out under the appropriate
account numbers, and the original cost of additions and retirements
applicable thereto shall be entered in the Original Cost columns of ACV
Forms No. 1 and 2. Acquisitions, if any, shall be entered in the
columns so headed. Totals shall be shown in these columns for each
account.
(3) Agent operators shall also prepare for jointly owned but not
used, and for jointly used but not owned, property ACV Form No. 4
showing the proportionate share of cost of reproduction new and cost of
reproduction new less depreciation, both including overhead, as of the
end of the reporting period, applicable to each jointly owning but not
using, and jointly using but not owning carrier. A separate form shall
be prepared for each state. The lines Report Filed by ---------- ,
Property Owned by ---------- , and Property Used by ---------- shall be
filled in as directed in the preceding paragraph, and the caption
''Proportionate Share of the (Name of the system) Jointly Owned but not
Used,'' or ''Jointly Used but not Owned,'' as appropriate, shall be
entered in the body of the form. The valuation sections of the State
shall be listed in column 9 of the form and the related cost of
reproduction new and cost of reproduction new less depreciation shall be
reported in columns 21 and 22, respectively.
(4) Agent operators shall file the ACV Forms No. 1, 2 and 4,
prepared by them in accordance with the preceding paragraphs, with the
Commission where they will be reviewed and retained. Upon the
completion of this review agent operators will be so advised and will be
provided with photocopies of all ACV Forms No. 1, 2 and 4 on which
corrections are made by the Commission. Each jointly owning but not
using, and each jointly using but not owning carrier shall then be
provided by agent operators with two copies of ACV Forms No. 1, 2 and
4, other than those prepared for jointly owned but not used and jointly
used but not owned property as a whole, one to be retained by the
recipient carrier and the other to be filed with the Commission. Copies
of ACV Forms No. 1, 2 and 4 prepared by agent operators for jointly
owned but not used, or for jointly used but not owned property as a
whole may be made available to jointly owning or jointly using carriers
by arrangement with agent operators.
(5) For nonagent operated jointly owned but not used or jointly used
but not owned property, ACV Forms No. 1, 2 and 4 shall be prepared by
one of the jointly owning or jointly using carriers, and two copies of
these forms shall be mailed by the carrier preparing them to each
jointly owning or jointly using carrier. The recipient carrier shall
retain one copy of these forms and shall file the other with the
Commission.
(6) For both agent and nonagent operated jointly owned but not used,
or jointly used but not owned property, the proportionate share of
original cost changes reported on ACV Forms No. 1 and 2 shall be
included in amounts reported on ACV Form No. 3, and the proportionate
share of cost of reproduction new and cost of reproduction new less
depreciation shall be listed on the ACV Form No. 4 summary.
(c) Class 4 property: (1) ACV Forms No. 1, 2, 3, and 4 shall be
filed by the using carrier.
(2) For agent operated jointly used but not owned property, ACV Forms
No. 1, 2 and 4 shall be prepared for the property as a whole by the
agent operator. In addition to preparing these ACV Forms No. 1, 2 and
4, agent operators shall also prepare, for jointly used but not owned
property, ACV Forms No. 1 and 2 showing the proportionate share of
original cost changes for the reporting period applicable to each
jointly using carrier. Separate forms shall be prepared for each state.
The identity of the jointly using but not owning carrier shall be
entered on the Report Filed by ---------- and Property Used by
---------- lines of the forms, and the identity of the owner, or owners,
of the property shall be entered on the Property Owned by ----------
line of the form. The caption ''Proportionate Share of the (Name of the
system) Jointly Used but not Owned'' shall be entered in the body of the
forms. Where acquisitions have occurred during the reporting period,
enter the caption ''Acquisitions'' in column 6 of ACV Form No. 1, and
in columns 6 and 13 of ACV Form No. 2. The affected primary accounts
shall then be listed in column 1 of ACV Form No. 1 and in columns 1 and
11 of ACV Form No. 2. The valuation sections in which property changes
have occurred shall be set out under the appropriate account numbers,
and the original cost of additions and retirements applicable thereto
shall be entered in the Original Cost columns of ACV Forms No. 1 and 2.
Acquisitions, if any, shall be entered in the columns so headed.
Totals shall be shown in these columns for each account.
(3) Agent operators shall also prepare for jointly used but not owned
property ACV Form No. 4 showing the proportionate share of cost of
reproduction new and cost of reproduction new less depreciation, both
including overhead, as of the end of the reporting period, applicable to
each jointly using but not owning carrier. A separate form shall be
prepared for each state. The identity of the jointly using but not
owning carrier shall be entered on the Report Filed by ---------- and
Property Used by ---------- lines of the form, and the identity of the
owner, or owners, of the property shall be entered on the Property Owned
by ---------- line of the form. The caption ''Proportionate Share of
the (Name of the system) Jointly Used but not Owned'' shall be entered
in the body of the form. The valuation sections of the state shall be
listed in column 9 of the form and the related cost of reproduction new
and cost of reproduction new less depreciation shall be recorded in
columns 21 and 22, respectively.
(4) Agent operators shall file the ACV Forms No. 1, 2 and 4,
prepared by them in accordance with the preceding paragraphs, with the
Commission where they will be reviewed and retained. Upon the
completion of this review agent operators will be so advised and will be
provided with photocopies of all ACV Forms No. 1, 2 and 4 on which
corrections are made by the Commission. Each jointly using but not
owning carrier shall then be provided by agent operators with two copies
of ACV Forms No. 1, 2 and 4, other than those prepared for jointly used
but not owned property as a whole, one to be retained by the recipient
carrier and the other to be filed with the Commission. Copies of ACV
Forms No. 1, 2 and 4 prepared by agent operators for jointly used but
not owned property as a whole may be made available to jointly using but
not owning carriers by arrangement with agent operators.
(5) For nonagent operated jointly used but not owned property, ACV
Forms No. 1, 2 and 4 shall be prepared by one of the jointly using
carriers, and two copies of these forms shall be mailed by the carrier
preparing them to each jointly using carrier. The recipient carrier
shall retain one copy of these forms and shall file the other with the
Commission.
(6) For both agent and nonagent operated jointly used but not owned
property, the proportionate share of original cost changes reported on
ACV Forms No. 1 and 2 shall be included in amounts reported on ACV Form
No. 3, and the proportionate share of cost of reproduction new and cost
of reproduction new less depreciation shall be listed on the ACV Form
No. 4 summary.
(d) Forms filed with the Commission shall report all property changes
whether made by the owning or by the using carrier.
(e) To assure the prompt review and early return by the Commission of
the ACV Forms pertaining to agent operated property required by this
section to be mailed to the Commission, such forms shall be mailed as
soon after the close of the reporting year as practicable.
(f) A summary by class of property shall be filed by each carrier on
ACV Form No. 4, prepared in accordance with 361.103 (d) and (e).
18 CFR 361.9 Reporting period and filing date.
The forms shall be prepared as of December 31 of each year, shall be
filed with the Commission not later than the next succeeding September
30, and shall cover property changes occurring since the date of basic
inventory or since the date of the latest previously filed forms.
18 CFR 361.10 Out-of-service property.
Property temporarily out of service, and held under a definite plan
for pipeline operations within a reasonable period of time, shall not be
reported as a retirement or reported separately. Out-of-service
property not meeting these criteria shall be reported as a retirement.
18 CFR 361.11 Transfers between category of property.
Transfers between carrier and noncarrier property, between classes of
carrier property, or between primary accounts, shall be reported
separately as additions and retirements and shall be clearly identified
as such.
18 CFR 361.12 Exceptions.
Exceptions taken by the Commission to property transactions recorded
or reported on forms prescribed by this part, or by Valuation Order No.
3, or by Supplements or Revisions thereto, fall into two categories:
those evidenced by corrections made by the Commission on ACV Forms filed
by carriers; and those made the subject of a letter of exception.
Carriers will be provided with photocopies of ACV forms in the former
category, and such forms shall supersede and shall replace in the files
of carriers the related ACV forms originally filed. No further action
need be taken by carriers on exceptions in this category. Exceptions
made the subject of a letter of exception shall be processed on the
first ACV forms prepared following the receipt of such a letter, and
reference shall be made on the forms to the letter directing the action.
(32 FR 20482, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981; 49 FR 44630, Nov. 8, 1984)
18 CFR 361.13 Reconciliations.
(a) Carrier property. Carriers shall prepare and submit on ACV Form
No. 1 an analysis of the difference between the closing balance of
original cost shown in column 5 of ACV Form No. 3 for owned property
and the closing balance in Account 30, Investment in Carrier Property
(primary accounts 101 to 187, inclusive) and Account 40, Cost of
Organization at the end of the reporting period. This analysis shall be
in such form as to separately indicate by subheadings, amounts included
in Account 30 and 40 but not included in the closing balance of original
cost at the end of the reporting period, and amounts included in the
closing balance of original cost but not included in Accounts 30 and 40
at the end of the reporting period. The details of the items under each
subheading shall be grouped under appropriate descriptive headings
according to the nature of the difference.
(b) Noncarrier property. Carriers shall also prepare and submit on
ACV Form No. 1 a reconciliation statement showing an analysis of the
difference between the closing balance of original cost shown in column
5 of ACV Form No. 3 for owned property and the closing balance in
Account 34, Miscellaneous Physical Property at the end of the reporting
period.
(49 FR 44630, Nov. 8, 1984)
18 CFR 361.14 Valuation sections.
Valuation section identity shall be determined as of the date of
original valuation, or subsequent thereto when appropriate, subject to
the approval of the Commission.
18 CFR 361.15 Corrections of additions or retirements previously
reported.
In reporting corrections of additions or retirements previously
reported, the adjusting entry in the current report shall be shown as an
increase or as a decrease in the same column in which the original item
was reported.
18 CFR 361.16 Ancillary documents.
The following documents referred to in these regulations will be
supplied by the Valuation Branch, Office of Pipeline and Producer
Regulation:
1947 Period Guide Prices and Annual and Period Indices.
Schedule of Annual and Period Indices.
Pipeline Condition Percent Table.
Schedule of Element Codes and Guide Service Lives.
Table of Index Reciprocals.
Schedule of Ratios of Freight Rates to Delivered Prices of Pipe.
18 CFR 361.17 Assembling and numbering forms.
(a) To facilitate the review and processing of ACV forms they shall
be assembled in the following order prior to their being filed with the
Commission:
(1) ACV Form No. 1 bearing the carrier's certification and the
identity of the forms filed.
(2) ACV Form No. 1 containing the narrative statement pertaining to
significant changes which occurred during the reporting period.
(3) ACV Form(s) No. 1 presenting the Reconciliation Statement for
carrier property.
(4) ACV Form(s) No. 1 presenting the Reconciliation Statement for
noncarrier property.
(5) ACV Forms No. 3 followed by the ACV Form No. 4 summary. ACV
Forms No. 3 shall be arranged as follows:
(i) Class 1 property.
(ii) Class 2 property: Assemble alphabetically by lessee.
(iii) Class 3 and 4 property: Assemble alphabetically by lessor
without regard to class of property.
(6) ACV Forms No. 1, 2 and 4 prepared by the filing carrier and
those prepared by other than the filing carrier, covering property
changes for the reporting period, shall be grouped together by form
number in the above order. ACV Form No. 2 listing by state those
valuation sections in which there were no property changes for the
reporting period shall be placed ahead of the ACV Forms No. 2 reporting
property changes. Each group of forms thus assembled shall include all
classes of property in the following order:
(i) Class 1 property: For wholly owned and used property, assemble
forms alphabetically by state and under each state by gathering, trunk,
and general valuation sections grouped separately, with each group in
valuation section number order. Arrange forms so grouped by primary
account number. For jointly owned and used nonagent operated property,
assemble forms for each such property in the same order prescribed for
wholly owned and used property, and file alphabetically by jointly owned
and used property identity immediately following the forms for wholly
owned and used property for the corresponding state. For jointly owned
and used agent operated property, assemble forms alphabetically by state
and thereunder alphabetically by system, and file immediately following
the forms for jointly owned and used nonagent operated property for the
corresponding state.
(ii) Class 2 property: For wholly owned but not used, and jointly
owned but not used nonagent operated property, assemble forms
alphabetically by lessee and thereunder alphabetically by state, the
latter in the manner prescribed above for wholly owned and used Class 1
property. Interfile with these forms, alphabetically by lessee and
thereunder alphabetically by state, forms for jointly owned but not used
agent operated property.
(iii) Class 3 and 4 property: For wholly used but not owned, and
jointly used but not owned nonagent operated property, assemble forms
alphabetically by lessor, without regard to class of property, and
thereunder alphabetically by state, the latter as prescribed above for
wholly owned and used Class 1 property. Interfile with these forms
alphabetically by lessor, also without regard to class of property, and
thereunder alphabetically by state, forms for jointly used but not owned
agent operated property.
(b) ACV Forms assembled in accordance with the foregoing shall be
numbered consecutively beginning with ACV Form No. 1 referred to in
paragraph (a)(1) of this section and ending with the last ACV Form No.
4 assembled under paragraph (a)(6) of this section. These consecutive
numbers shall be shown in the top right-hand corner of the forms and
shall be in addition to the numbers prescribed to be entered on the
Sheet No. ------ of ------ Sheets line of the ACV forms.
18 CFR 361.18 Location sketches.
A sketch, or sketches, 17'' x 11'' in size, which need not be drawn
to scale, shall be submitted showing, by valuation section, the
approximate geographical location of trunk lines and pumping stations.
Trunk lines shall be identified by crude or product, and loop or
parallel lines shall be shown. The pumping station identity assigned by
the carrier shall be indicated and cities adjacent thereto shall be
shown. Indicate for gathering lines only the general areas served. It
will not be necessary to submit a separate sketch for each valuation
section. A single sketch for an entire state will suffice where a
carrier's pipelines and pumping stations are located in one state.
Where it can be produced legibly, a single sketch will also be
acceptable where a carrier operates in a number of contiguous states.
Following the initial submission of sketches it will be necessary
thereafter to submit corrected sketches only to reflect significant
changes such as added pumping stations, entry into a new field,
construction of parallel or loop trunk lines, or trunk line extensions
or connections.
18 CFR 361.19 Amendments and deviations.
Only those amendments to or deviations from the regulations
prescribed by this part as may be directed by the Commission are
authorized.
18 CFR 361.19 Forms Instructions
18 CFR 361.100 Property changes other than land and rights-of-way.
Instructions for the preparation of ACV Form No. 1 Statement of
Property Changes other than Land and Rights-of-Way.
(a) The data to be reported on this form should be typewritten.
However, the form may be prepared manually where such method will assure
legibility and permanency. Where the form is prepared manually,
required additional horizontal lines shall be provided at the time of
printing to aid in its preparation and to improve its legibility. A new
sheet shall be started for each primary account. When ACV Form No. 1
is used to report changes in noncarrier property, the primary account
numbers used for carrier property shall also be employed to facilitate
the identification of such changes. With the exception of column 1, all
entries on the form shall be double spaced. Additions and retirements
shall be reported on separate lines. If there have been no property
changes in a given valuation section for the reporting period, a form
shall be prepared for each such valuation section bearing the statement
''No Property Changes.'' When a major addition to, or a major
replacement of a portion of, a unit of existing property occurs, report
as a retirement the entire unit of property affected by the action and,
in the case of a major addition, report as an addition both the property
so retired and the addition made; in the case of a major replacement,
report as an addition both the property retired less the replaced
portion, and the replacing portion. For additions or retirements of
pipe for accounts 103, 153, 110, 160, 112 and 162 report both the gross
linear footage, and the related screwage included in such gross linear
footage. To facilitate the preparation and verification of the Pipeline
Footage Change Summary, segregate additions and retirements for the
above accounts for trunk lines by crude and product, and thereunder
separately by line, loops and other. Segregate, also, and report
separately additions and retirements for all gathering lines and, if
reported, service pipe. Except for service pipe, show both gross linear
footage and related screwage totals for additions and for retirements
for each of the above segregations.
(b) A single copy of the form shall be used to set forth the
following statement which shall be signed by a responsible officer of
the carrier preparing the reports:
The forms identified hereon have been carefully examined by the
undersigned who declares that they have been prepared in accordance with
regulations issued by the Federal Energy Regulatory Commission.
(Signature)
(Title)
(Date)
There shall also be set forth on this copy the identity and the
number of forms filed. Tho assure the receipt of such forms this
information shall be presented in such manner as to permit ready
verification. A single copy of the form shall also be used to present
in narrative form a summary of significant changes which occurred during
the reporting period. Record the statement ''No significant changes
during reporting period'' when appropriate.
(c) Sheet No. 1 of ACV Form No. 1 of each valuation section shall
be used to identify the primary accounts, by account number only, in
which property changes are reported for the valuation section. Footage
change totals reported for accounts 103, 153, 110, 160, 112 and 162 in
accordance with 361.100(a) shall also be summarized on this sheet as
follows:
This same sheet shall also set forth a statement of changes in
pipeline mileage occurring between the current and the next previously
filed statement. This information shall be presented in the following
form.
(d) When ACV Form No. 1 is used to report changes affecting jointly
owned or jointly used property enter on Sheet No. 1, for each valuation
section, an asterisk (*) on the Property Owned by ------ and Property
Used by ------ line and, in the body of the form, the identity of both
the owning and the using carriers and the percentage of their respective
owning or using interest.
(e) ACV Form No. 1 shall be executed as follows:
(1) Statement of Property Changes Form ------ To ------ . Indicate
the beginning and ending dates of the period covered by the report.
(2) Carrier Property Noncarrier Property. Place an X in the
appropriate block to identify the property being reported. Data shall
not be recorded in columns 4, 6, 8, 9, 10 and 12 of ACV Form No. 1 when
reporting property changes for noncarrier property.
(3) Report filed by ------ Property Owned by ------ Property Used by
------ . Enter appropriate identifications. Where jointly owned or
jointly used property is being reported, enter an asterisk (*) on the
Property Owned by ------ and Property Used by ------ line to indicate
that the identity of the owning and the using carriers is set out on
Sheet No. 1 for the valuation section, as directed in (d) above.
(4) State -------- Val. Sec. -------- Identify the state and
valuation section in which the property changes being reported occurred.
Enter the word ''Unallocated'' on the Val. Sec. -------- line for
mobile property servicing more than one valuation section of the state.
Enter the word ''Unallocated'' on the State -------- line for mobile
property servicing more than one state, leaving the Val. Sec. --------
line blank.
(5) Sheet No. ------ of ------ Sheets. Except when the form is used
as a summary or as otherwise directed, the use of this line shall be
restricted to identifying the sheets relating to the valuation section
indicated on the line above on the form. It shall not be used for the
consecutive numbering of all sheets constituting the complete carrier's
report of all property changes for the reporting period. When the form
is otherwise used this line shall identify the sheets so used.
(6) Columns 1 and 3. Property additions described in these columns
shall be expressed as prescribed in the 1947 Period Guide Prices and
Annual and Period Indices. When reporting significant additions, such
as additional pipeline construction, excluding loops, or newly
constructed buildings, file with related ACV Forms No. 1 right-of-way
maps and station plats for pipeline construction, and floor plan
sketches and pictures for buildings. Property retirements need not be
descriped in complete detail. A general description, including the
carrier's property number, will suffice. Include in column 1, however,
for retirements, the identity of the ACV Form No. 5, or B.V. Form 590
which reported, as a basic inventory item, the property being retired;
include also the the identity of the Statement of Property Changes which
reported, as an addition, the property being retired. When reporting
additions to existing property, such as an addition made to an existing
building or tank, indicate this same identity for the existing property
to which the addition was made. Report, also, the date of installation
of the existing property in column 1. Identify secondhand property and
station piping clearly as such in column 1, and indicate the applicable
freight rates for accounts 103, 105, 110, 112, 153, 155, 160 and 162.
Show in column 1 the computation of the factor and the quotient referred
to in (8) below.
(7) Column 2. Enter for both additions and retirements the year,
including the current year, the property was dedicated to public
service. This shall be construed as the year in which the property was
first placed in common-carrier service by a carrier, and this date shall
also govern when reporting carrier property transactions for each
successive owning or using common carrier. Record dates for additions,
only, for accounts 104 and 154. When the year of dedication to public
service differs from the year the property was actually installed
indicate, also, the latter year in column 1. This requirement shall
apply equally to property installed by previous owners. Where the
precise year cannot be determined enter the best estimate. When showing
these dates only the last two digits of the year need be shown. Thus,
1956 may be indicated by 56.
(8) Column 4. Enter applicable unit price from the 1947 Period Guide
Prices and Annual and Period Indices. Where period guide prices have
not been established enter appropriate annual index from this same
document, or the corresponding reciprocal from the Table of Index
Reciprocals. For retirements from accounts 104 and 154 enter factor,
determined by dividing cumulative cost of reproduction new by cumulative
original cost, both as of the end of the next previous reporting period.
For retirements of construction damages from accounts 105 and 155,
enter the quotient of cumulative cost of reproduction new divided by
related lineal feet of line pipe, both as of the end of the next
previous reporting period. All entries in this column shall be used as
multipliers.
(9) Columns 5 and 11. Enter the number of units applicable to the
property described in columns 1 and 3. Leave these columns blank where
the unit in column 3 is Lot.
(10) Column 6. Enter, to the nearest dollar, the product of column 5
times column 4. This will represent the cost of reproduction new at
1947 period prices. Entries shall not be made in this column for
overhead items.
(11) Columns 7 and 13. Enter in these columns, to the nearest
dollar, the original cost of each unit, or the aggregate cost of all
units, reported in related columns 5 and 11, or the original cost of
each lot reported in column 3. The term original cost shall be
interpreted to mean the actual cost of property to a carrier at the time
of its initial dedication to public use. Overhead items shall be stated
separately and shall be clearly defined and identified as such in column
1.
(12) Columns 8 and 9. The data to be entered in these columns shall
be taken from the Schedule of Element Codes and Guide Service Lives.
Where property is to be depreciated to a 50 percent minimum indicate an
asterisk (*) after the guide service life in column 9. Service life
shall not be shown in column 9 for accounts 104, 105, 154 and 155, nor
for element code 124 of accounts 111 and 161.
(13) Column 10. Enter applicable percent for additions or
retirements from the Pipeline Condition Percent Table. Indicate 100
percent when appropriate. Except as may be otherwise approved by the
Commission in individual cases, additions to existing property, such as
an addition to an existing building or tank shall follow the condition
percent of the property to which it is added. Condition percent for
accounts 104 and 105, and, 154 and 155, shall not be shown in this
column since the condition percent of these accounts follows the
condition percent of accounts 103 and 153, respectively. Omit condition
percent also for element code 124 of accounts 111 and 161, since the
condition percent for this element represents a composite of the
condition percents of the remaining tank elements of accounts 111 and
161.
(14) Column 12. Enter, to the nearest dollar, the product of column
11 times column 4. This will represent the cost of reproduction new at
1947 period prices. Entries shall not be made in this column for
overhead items.
(f) A total shall be shown on this form, at the end of each account,
for columns 6, 7, 12 and 13. The amount of property changes reported in
columns 6 and 12 shall then be summarized, by element code, and the
summaries entered in these columns below the total, with the appropriate
element code, service life, and weighted average condition percent being
shown in columns 8, 9 and 10, respectively. Caption this summary
''Distribution of columns 6 and 12.'' The total of amounts summarized by
code in columns 6 and 12 must agree with the totals shown at the end of
the account for these columns, and this summary shall serve as the
posting medium for entries to be made in columns 7, 8, 9 and 10 of ACV
Form No. 4.
(g) For jointly owned or jointly used property, the owning and the
using percentages set out on Sheet No. 1 for the valuation section
shall be applied to the totals prescribed in the preceding paragraph to
be shown at the end of each account for columns 7 and 13. The
percentages and resultant amounts shall be shown and identified by each
owning and each using carrier.
(h) ACV Form No. 1 reporting changes to jointly owned or jointly
used property representing less than a valuation section shall report
the complete property change. There shall then be indicated on the form
the identity of the participating carriers and their owning or using
percentage of interest. The appropriate percentage shall then be
applied to the totals prescribed to be shown at the end of each account
for columns 7 and 13, and by element code for columns 6 and 12. The
resultant amounts shall be shown and identified by each owning or using
carrier, and two copies of ACV Form No. 1 shall be mailed by the
carrier reporting the change to each participating carrier, one to be
retained and the other to accompany related forms filed with the
Commission. In the case of joint projects involving expenditures not
exceeding $5,000.00 each, expenditures representing the portion borne by
the carrier may be grouped for the entire valuation section and the
total reported as a lot. Joint projects involving expenditures
exceeding $5,000.00 each shall be described in complete detail,
including the total cost of the project, the identity and percentage of
participation, and the number of units, in column 1 of ACV Form No. 1
and the carrier's share of the expenditure reported in total in columns
6, 7, 12 or 13.
(i) See 361.201 to 361.205 for instructions covering purchase,
sale, merger, consolidation or reorganization actions.
(32 FR 20482, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981; 49 FR 44630, Nov. 8, 1984)
18 CFR 361.101 Land and rights-of-way property changes.
Instructions for the preparation of ACV Form No. 2 -- Statement of
Land and Rights-of-Way Property Changes.
(a) The data to be reported on this form shall be typewritten. When
ACV Form No. 2 is used to report changes in noncarrier property, the
primary account numbers used for carrier property shall also be employed
to facilitate the identification of such changes. If there have been no
property changes in a given valuation section for the reporting period,
it will not be necessary to prepare ACV Form No. 2 for such valuation
sections. Prepare, instead, a single copy of the form listing thereon
by state the valuation sections in which there were no property changes
for the reporting period. All classes of property shall be included on
this copy. When the form is used to report changes affecting jointly
owned or jointly used property enter on Sheet No. 1, for each valuation
section, an asterisk (*) on the Property Owned by ------ and Property
Used by ------ lines and, in the body of the form, the identity of both
the owning and the using carriers and the percentage of their respective
owning or using interest.
(b) Instructions set out in 361.100(h) pertaining to the manner of
preparing ACV Form No. 1 covering changes in jointly owned or jointly
used property representing less than a valuation section, or when used
to report joint projects, shall also apply in the preparation of ACV
Form No. 2.
(c) Maps, prepared in accordance with the specifications set out in
Valuation Order No. 26, showing land additions and retirements, shall
be filed with ACV Form No. 2 for both carrier and noncarrier property.
Land additions and retirements shall also be indicated on carriers'
copies of maps. Maps will not be required to be filed where an entire
parcel, previously reported, is retired.
(d) In reporting land acquisitions having an original cost of $500.00
or less per individual acquisition, group such acquisitions by county
and report original cost and related areas by county total, and identify
the county in column 17. It will not be necessary to file maps for
acquisitions so reported. Undeveloped land having an original cost of
$500.00 or less per lease, leased to a carrier or to a noncarrier, or
leased from a carrier, shall not be reported. Undeveloped land leased
from a noncarrier having an annual rental of $500.00 or less shall not
be reported. When reporting undeveloped land leased from a noncarrier
having an annual rental in excess of $500.00 omit original cost.
Regardless of the original cost or annual rental amount, land shall be
reported where the property leased includes improvements. Exclude,
however, original cost when reporting such land leased from a
noncarrier. See paragraph (f) of this section for instructions
governing the treatment to be accorded leased land for agent or nonagent
operated jointly owned or jointly used property. Portions of land owned
and no longer used for common-carrier purposes, and having an original
cost of $500.00 or less per portion, shall be regarded as incidental and
immaterial with respect to its noncarrier category, and such portions
shall not be transferred to noncarrier property.
(e) ACV Form No. 2 shall be executed as follows:
(1) From -------- To -------- . Indicate the beginning and ending
dates of the period covered by the report.
(2) Carrier Property Noncarrier Property. Place an X in the
appropriate block to identify the property being reported.
(3) Report Filed by -------- Property Owned by -------- Property Used
by -------- . Enter appropriate identifications. Where jointly owned
or jointly used property is being reported, enter an asterisk (*) on the
Property Owned by -------- and Property Used by -------- line to
indicate that the identity of the owning and the using carriers is set
out on Sheet No. 1 of ACV Form No. 2 for the valuation section, as
directed in (a) above.
(4) State -------- Val. Sec. -------- . Identify the state and
valuation section in which the property changes being reported occurred.
(5) Sheet No. ------ of ------ Sheets. This line shall identify the
sheets relating to the valuation section, only, indicated on the line
above on the form.
(6) Column 1. Enter the number of the land map assigned by the
carrier.
(7) Column 2. Indicate the number assigned to the parcel, or
parcels, on the map identified in column 1.
(8) Column 3. Indicate the date and the kind of instrument by which
title to, or interest in, each parcel was derived, such as deed,
quitclaim deed, condemnation, ordinance, lease, agreement, grant,
donation, etc. In the case of land retirements requiring the execution
of a new instrument, identify such instrument in this column.
(9) Columns 4 and 5. Enter, respectively, the name of the grantor
and grantee cited in the instrument identified in column 3.
(10) Columns 6 and 8. Enter in these columns, respectively, the
area, either in square feet or acres, of the land added or retired.
(11) Columns 7 and 9. Enter to the nearest dollar in these columns,
respectively, the original cost of additions or retirements for the
areas reported in columns 6 and 8. Incidental costs and assessments for
public improvements shall be reported separately and shall be identified
in column 17. Incidental costs and assessments shall be allocated to
the parcels affected. If the considerations involved are other than
cash identify such considerations in column 17. Enter valuation section
totals for these columns.
(12) Column 10. Use this column for both land and rights-of-way.
Enter the year that the parcel of land, or the year that the first trunk
pipeline rights-of-way for the valuation section, or portion thereof,
was dedicated to public service. Record this information for both
additions and retirements.
(13) Columns 11 and 12. Identify the termini of the valuation
section, or portion thereof, of trunk pipeline rights-of-way added or
retired.
(14) Columns 13 and 15. Enter in these columns, for the termini
identified in columns 11 and 12, the line miles of trunk pipeline
rights-of-way added or retired.
(15) Columns 14 and 16. Enter to the nearest dollar in these
columns, respectively, the total original cost for the valuation section
as a whole of additions or retirements. If the considerations involved
are other than cash identify such considerations in column 17.
(16) Column 17. Use this column to record information relevant to
both land and rights-of-way not otherwise provided for on the form such
as, in the case of land or rights-of-way acquired, a statement of the
specific use to which such property has been put; or, in the case of
land or rights-of-way retired, transferred or relinquished from carrier
use, the disposition thereof, such as sales, transfers to noncarrier,
reversions, etc. Record also in this column the dollar amount of land
or rights-of-way sales.
(f) For jointly owned or jointly used agent or nonagent operated
property, record the total original cost of each land change in column
17 of ACV Form No. 2, indicate the owning or using percentages set out
on Sheet No. 1 for the valuation section, apply same to the total
original cost recorded in this column and show, also in column 17, the
resultant amounts representing each jointly owning or jointly using
carrier's proportionate share of the change. For land changes other
than those reporting the lease of undeveloped land to a carrier or to a
noncarrier, or from a carrier, enter the total original cost also in
column 7 or column 9, as appropriate. For land changes reporting the
lease of undeveloped land add those proportionate shares appearing in
column 17 which exceed $500.00 and enter the total in column 7 or column
9, as appropriate. In conformance with the provisions of paragraph (d)
of this section, only those proportionate shares appearing in column 17
having an original cost in excess of $500.00 shall be included on ACV
Forms No. 2 prepared by agent operators in accordance with 361.8,
showing the proportionate share of original cost changes applicable to
each jointly owning or jointly using carrier; also, jointly owning or
jointly using carriers of nonagent operated property shall include only
those proportionate shares shown in column 17 having an original cost in
excess of $500.00 when preparing their ACV Forms No. 3. In the case of
rights-of-way changes affecting jointly owned or jointly used agent or
nonagent operated property, the owning or the using percentages
appearing on Sheet No. 1 for the valuation section shall be applied to
the total original cost recorded for the valuation section as a whole in
column 14 or column 16 in accordance with paragraph (e)(15) of this
section. The percentages and resultant amounts shall be shown and
identified by each jointly owning or jointly using carrier.
(g) See 361.201 to 361.205 for instructions covering purchase,
sale, merger, consolidation or reorganization actions.
(32 FR 20482, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981)
18 CFR 361.102 Summary of original cost.
Instructions for the preparation of ACV Form No. 3 -- Summary of
Changes in Original Cost and Total Original Cost at Close of Period.
(a) This form includes two identical sections of five columns each
for reporting, by primary account and by the noncarrier property
categories indicated, the information cited in the title of the form,
for the carrier as a whole and for each state and Unallocated. A blank
block appears at the top of each section of the form to provide this
latter identity. The information required for the carrier as a whole
shall be entered in the first section of Sheet No. 1 and this section
shall be headed ''As a Whole'' in the blank block provided. The
information required for the first State to be reported shall be entered
in the remaining section of Sheet No. 1 of the form, and this section
shall bear the name of the State being reported in the blank block
provided. The sections of all such additional sheets as may be required
shall be used to report the remaining States, and Unallocated, and these
sections shall also be appropriately identified in the blank blocks.
Record States alphabetically, with Unallocated last in these blank
blocks. When the form has been completed, the total of all amounts
entered in similarly numbered columns in the state and Unallocated
sections shall be balanced, by primary account and by noncarrier
property category, with amounts entered in the corresponding columns of
the ''As a Whole'' section. All totals and grand totals indicated to be
shown on ACV Form No. 3 shall be crossfooted by individual state and
Unallocated sections, which shall then be crossfooted to balance with
amounts shown in the ''As a Whole'' section. Since this form will not
be prepared by class of property for noncarrier property, for uniformity
in reporting, record the data for all noncarrier property on ACV Form
No. 3 prepared for class 1 property.
(b) The data reported on ACV Form No. 3 shall be typewritten and the
form shall be executed as follows:
(1) Summary of Changes in Original Cost From -------- To -------- ,
and Total Original Cost at Close of Period. Indicate the beginning and
ending dates of the period covered by the report.
(2) Sheet No. ------ of ------ Sheets. This line shall identify the
number of sheets constituting the Summary and the individual sheets
thereof.
(3) Report Filed by -------- Property Owned by -------- Property Used
by -------- . Enter appropriate identifications.
(4) Accounts. The primary accounts and the noncarrier property
categories designated in this column shall identify the applicable
amounts stated in columns 1 through 5 of both sections of the form.
(5) Column 1. Enter the amounts appearing in column 5 of the form
for the previous reporting period.
(6) Column 2. Each state and Unallocated. Record, by primary
account and by noncarrier property category, for all valuation sections,
the total of acquisitions recorded on ACV Forms No. 1 and 2 prepared in
accordance with 361.8(a), (b) and (c); 361.201(b) (2) and (3);
361.202(b)(1); 361.203(b); and 361.205(a).
(7) Columns 3 and 4. Each state and Unallocated. Record, by primary
account and by noncarrier property category, for all valuation sections,
the total of additions and retirements recorded on ACV Forms No. 1 and
2 for the reporting period, exclusive of those acquisitions referred to
in (6) above.
(8) Column 5. Each state and Unallocated. This column is the
product of column 1 plus columns 2 and 3 minus column 4.
(9) Columns 2, 3, 4 and 5. As a whole. The amounts to be entered in
these columns shall represent the total of amounts entered in similarly
numbered columns of the state and Unallocated sections.
(32 FR 20482, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981)
18 CFR 361.103 Summary of cost of reproduction new and cost of
reproduction new less depreciation.
Instructions for the preparation of ACV Form No. 4 -- Summary of
Cost of Reproduction New and Cost of Reproduction New Less Depreciation.
(a) The data to be reported on this form should be typewritten.
However, the form may be prepared manually where such method will assure
legibility and permanency. Where the form is prepared manually,
required additional horizontal lines shall be provided at the time of
printing to aid in its preparation and to improve its legibility. All
entries on the form shall be double spaced. Because of changing
condition percents and current period indices, it will be necessary to
prepare and file this form even though there were no additions or
retirements during the reporting period. When the form is used to
report changes affecting jointly owned or jointly used property enter on
Sheet No. 1, for each valuation section, an asterisk (*) on the
Property Owned by -------- and Property Used by -------- line and, in
the body of the form, the identity of both the owning and the using
carriers and the percentage of their respective owning or using
interest.
(b) ACV Form No. 4 shall be executed as follows:
(1) For the Year ------ . Indicate the calendar year covered by the
report.
(2) Report Filed by -------- Property Owned by -------- Property Used
by -------- . Enter appropriate identifications. Where jointly owned
or jointly used property is being reported, enter an asterisk (*) on the
Property Owned by -------- and Property Used by -------- line to
indicate that the identity of the owning and the using carriers is set
out on Sheet No. 1 of ACV Form No. 4 for the valuation section, as
directed in (a) above.
(3) State -------- Val. Sec. -------- Identify the state and
valuation section in which the property changes being reported occurred.
Enter the word ''Unallocated'' in the Val. Sec. -------- line for
mobile property servicing more than one valuation section of the state.
Enter the word ''Unallocated'' on the State -------- line for mobile
property servicing more than one state, leaving the Val. Sec. --------
line blank.
(4) Sheet No. ------ of ------ Sheets. Except where the form is
used as a summary, the use of this line shall be restricted to
identifying the sheets relating to the valuation section indicated on
the line above on the form. It shall not be used for the consecutive
numbering of all sheets constituting the complete carrier's report of
all property changes for the reporting period. When the form is used as
a summary this line shall identify the sheets so used.
(5) Freight on Pipe. Rate ------ percent. Enter the appropriate
rate and percentage from the Schedule of Ratios of Freight Rates to
Delivered Prices of Pipe.
(6) Columns 1, 2, 3, 4 and 5. Enter in these columns, respectively,
the same information appearing in columns 1, 2, 3, 11 and 12 of the form
for the next previous reporting period. Omit service life and condition
percent in columns 3 and 5 for accounts 104, 105, 154, and 155, and for
element code 124 of accounts 111 and 161. Where property changes occur
during the current reporting period and no entries appear in columns 11
and 12 for the next previous reporting period, enter account number,
element code, and service life in columns 1, 2 and 3, respectively, from
ACV Form No. 1.
(7) Column 6. Enter the applicable current year condition percent
for each element code from the Condition Percent Table. Omit condition
percent for accounts 104, 105, 154 and 155, and for element code 124 of
accounts 111 and 161.
(8) Columns 7, 8, 9 and 10. The data to be entered in these columns
are those set out in columns 6, 10 and 12 under ''Distribution of
columns 6 and 12'' which appears as the end of each account on ACV Form
No. 1 for which property changes are reported. Since this distribution
will report no condition percent for accounts 104, 105, 154 and 155, or
for element code 124 of accounts 111 and 161, none will be shown in
columns 8 and 10.
(9) Column 11. The amount to be entered in this column is produced
as follows: Column 4 plus column 7, minus column 9 Enter account totals
in this column.
(10) Column 12.
(i) This condition percent is arrived at by dividing the product of:
Column 4 times column 6, plus column 7 times column 8, minus column 9
times column 10, by the amount in column 11.
(ii) In the case of element codes 2, 4, 6 and 8, for accounts 103 and
153 the percentage of cost new shall also be shown in this column. This
percentage is determined by multiplying the salvage factor percent (to
be shown as SF -- in parentheses in column (3)) by the difference
between the condition percent and 100 percent, and adding the result to
the condition percent. Entries in this column shall be shown, for
example, as 70/76, the condition percent being 70 and the percentage of
cost new being 76.
(iii) A weighted condition percent shall also be developed from the
element codes of accounts 103 and 153 which shall be used for
conditioning accounts 104 and 105, and 154 and 155, respectively. This
weighted condition percent shall be developed as follows: Multiply the
amount for each element code in column 11 by the related condition
percent (not the percentage of cost new) in column 12. Add the products
and divide the resultant sum by the total for account 103 or 153
appearing in column 11. This weighted condition percent shall be shown
in parenthesis in this column opposite the total for these accounts.
This condition percent shall be entered in this column for the element
codes of accounts 104, 105, 154 and 155, and shall be used to condition
amounts in column 11 for these elements. It shall not be used to
condition accounts 103 or 153.
(iv) A weighted condition percent shall also be developed from the
tank element codes of accounts 111 or 161, which shall be used for
conditioning element code 124 of these accounts. This weighted
condition percent shall be developed by multiplying the amount for each
tank element code in column 11 by the related condition percent in
column 12, adding the products and dividing the resultant sum by the
total of the tank elements for account 111 or 161 appearing in column
11. This condition percent shall be entered in this column for element
code 124, and shall be used to condition the amount in column 11 for
this element.
(11) Column 13. This is the product of column 11 times column 12.
For elements 2, 4, 6 and 8 of accounts 103 and 153 use the percentage of
cost new instead of condition percent. Where a current period index
(Column 14) is common to all elements of an account, the total of the
account, only, shall be entered in this column. Enter also in
parentheses in this column for element codes 2, 4, 6 and 8 for accounts
103 and 153, the appropriate salvage factor (SF-) as shown in the
Schedule of Element Codes and Guide Service Lives. Indicate account
totals in this column.
(12) Column 14. Enter the current year period index from the
Schedule of Annual and Period Indices. Since the amounts reported in
columns 11 and 13 for accounts 103 and 153 include freight, for which a
separate period index is established, it will be necessary to develop a
weighted index for amounts in columns 11 and 13 for accounts 103 and
153. This weighted index shall be arrived at by multiplying the Freight
on Pipe %, shown in the upper right hand portion of the form, by the
current year period index for freight on pipe, and adding to this the
product of 100 percent less the freight on pipe percent, times the
current year period index for line pipe. Enter the weighted index
computed for account 103 and for account 153 in this column, opposite
the totals shown for these accounts in column 13 and, above the index,
the factors used in computing it.
(13) Columns 15 and 16. Enter, respectively, the products of column
11 times column 14, and column 13 times column 14.
(14) Enter valuation section totals for columns 4, 7, 9, 11 (these
columns must crossfoot), 13, 15 and 16.
(15) Entries will be made on ACV Form No. 4 in columns 17 through 22
as follows for the valuation section as a whole only:
(i) Columns 17, 18, 19 and 20. Enter the percentages approved for
the carrier for each valuation section.
(ii) Columns 21 and 22. Add 100 to each of the percentages in
columns 17 through 20, and multiply columns 17 times 18 times 19 times
20. Apply the product to the totals in columns 15 and 16 and enter the
results in columns 21 and 22, respectively.
(c) For jointly owned or jointly used property, the owning and the
using percentages, set out on Sheet No. 1 of ACV Form No. 4 for the
valuation section, shall be applied to each of the totals appearing in
columns 21 and 22. The resultant amounts shall be shown and identified
by each owning and each using carrier.
(d) ACV Form No. 4 shall be used to produce summaries of the
following categories of property:
(1) Owned and Used Summary. List wholly owned and wholly used
property followed by jointly owned and used property. When listing
jointly owned and used property identify the system of which it is a
part, or other joint tenant or tenants.
(2) Owned but Not Used Summary. List property, whether wholly or
jointly owned, leased to carriers and identify lessees.
(3) Used but Not Owned Summary. List property, whether wholly or
jointly used, leased from carriers followed by property leased from
noncarriers. Identify lessors.
(e) Execute the ''For the Year,'' ''Report Filed by -------- ,'' and
''Sheet No. ------ of ------ Sheets'' captions in the heading of the
form and prepare the summaries, double spaced, as follows:
(1) Enter the following headings on the first line of the body of the
form:
Column 7. Val. Sec.
Column 9. Line.
Column 11. Loops.
Column 13. Other.
Column 15. Total Trunk.
Column 16. All Gathering.
(2) Identify the summary being produced. Use the summary titles
referred to in (d) above.
(3) On the next line, in column 11, indicate the state being
summarized.
(4) Enter on successive lines for each valuation section:
(i) Columns 7, 9, 11, 13, 15 and 16. List, from Sheet No. 1 of ACV
Form No. 1, the valuation section number and the appropriate mileages
recorded in the At End of Period column of the Pipeline Mileage
Statement. Add the suffix ''Prod.'' to product valuation section
numbers. For jointly owned and used, and jointly owned but not used or
jointly used but not owned property, record the total mileage for the
valuation section and enter an asterisk (*) in column 6.
(ii) Columns 21 and 22. List, from ACV Form No. 4, the totals in
these columns appearing at the end of each valuation section. Enter the
proportionate share, only, for jointly owned and used, and for jointly
owned but not used or jointly used but not owned property.
(iii) Include in the above listing, and identify as ''Unallocated''
in column 7, ACV Forms No. 4 for mobile property servicing more than
one valuation section.
(iv) Where two or more valuation sections are listed in a single
state for a given lessee or lessor, indicate a state total for each in
columns 21 and 22 only.
(v) For jointly owned and used property identify, beginning in column
1, the system of which it is a part, or other joint tenant or tenants.
For owned but not used property, and property used but not owned,
identify, also beginning in column 1, lessees and lessors, respectively.
(5) Indicate the subheading ''State Totals'' in column 4 and enter
the totals of columns 21 and 22 only.
(6) Repeat (3), (4) and (5) above until all states have been
summarized.
(7) Following the development of state totals enter, on the next
line, the caption ''Unallocated'' in column 11 and, on the same line,
record in columns 21 and 22 the totals appearing in these columns on ACV
Form No. 4 for mobile property servicing more than one state.
(8) Enter the identification ''As a Whole Totals'' in column 4 on the
next line and, on the same line, record, in columns 21 and 22 only, the
grand summary of state and unallocated totals produced in accordance
with (5), (6) and (7) above.
(9) When as a whole totals have been developed for each summary
enter, on the next succeeding lines, the terms ''Total Owned,'' and
''Total Used.'' Record, in columns 21 and 22, opposite the former term,
the totals of amounts appearing in these columns for the owned and used,
and owned but not used summaries; record opposite the latter term, in
columns 21 and 22, the totals of amounts in these columns for the owned
and used, and used but not owned summaries.
(10) Enter an asterisk (*) on the last line followed by the phrase
''Undivided joint mileage.''
(f) See 361.201 to 361.205 for instructions covering purchase,
sale, merger, consolidation or reorganization actions.
(32 FR 20482, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981)
18 CFR 361.103 Instructions Covering the Proc- essing of Purchase, Sale, Merger, Consolidation or Reorganization Actions
18 CFR 361.200 Introduction.
(a) ACV Forms No. 1, 2, 3 and 4, and B. V. Form No. 588-R and
related Subschedules prescribed by Supplement No. 8 to Valuation Order
No. 3, Second Revised Issue, shall be used as outlined in this section
to document actions in the captioned category. The term ''acquiring
carrier,'' as used in this section, refers to the carrier gaining title
to property; ''releasing carrier'' refers to the carrier relinquishing
title.
(b) Where purchase, sale, merger, consolidation or reorganization
actions are between common carriers, the original cost of property to
the releasing carrier as of the date of the action shall be used to
record such actions. If such actions are between common carriers and
individuals, firms, corporations, or others not common carriers, the
purchase price paid by acquiring common carriers shall be used to record
property acquisitions, and the original cost of property as of the date
of the action shall be used to record property releases.
(c) Cost of organization, either added or retired in connection with
purchase, sale, merger, consolidation or reorganization actions, shall
be reported on ACV Form No. 1 under accounts 116, 166 or 186 as
appropriate.
(d) In identifying actions being reported, as directed in 361.201
to 361.205, include vendor or vendee identity in cases of significant
sales or purchases.
18 CFR 361.201 Actions between common carriers affecting property
representing one or more complete valuation sections.
(a) The releasing carrier shall:
(1) Prepare ACV Forms No. 1 and 2 covering changes occurring between
the date of the latest previously filed statements of property changes
and the date of the action.
(2) Prepare a separate ACV Form No. 1, by valuation section,
identifying thereon the action being reported, showing the balances of
original cost and cost of reproduction new remaining after giving effect
to the property changes reported in accordance with paragraph (a)(1) of
this section. Identify the primary accounts affected in column 1, enter
the appropriate element codes in column 8, and record related cost of
reproduction new balances in column 12. Using the same primary account
identity, enter related original cost balances in column 13.
(3) Prepare a separate ACV Form No. 2, by valuation section,
identifying thereon the action being reported, showing the balances of
original cost remaining after giving effect to the property changes
reported on ACV Form No. 2 prepared in accordance with paragraph (a)(1)
of this section. Identify the primary accounts affected in column 1 and
enter the balances in column 9 for land accounts, and in column 16 for
rights-of-way accounts.
(4) Prepare ACV Form No. 4 through column 11, as directed in
361.103, and include in column 9 amounts reported in column 12 of ACV
Forms No. 1 prepared in accordance with paragraph (a)(2) of this
section. This will reduce the balance in column 11 of ACV Form No. 4
to zero.
(5) Provide the acquiring carrier with:
(i) A copy of its December 31, 1947, or later, basic inventory,
showing units and costs, of the property affected by the action.
(ii) A copy of all its ACV Forms No. 1 and 2 and B.V. Forms No.
588-R and related Subschedules, and covering all property changes
through the effective date of the action.
(iii) A copy of its ACV Forms No. 4 referred to in paragraph (a)(4)
of this section showing zero balance in column 11.
(b) Following the close of the reporting period the acquiring carrier
shall:
(1) Prepare ACV Forms No. 1 and 2 covering changes for the period
from the date of the action to December 31, of the reporting year,
including additional organization expenditures.
(2) Prepare a separate ACV Form No. 1, by valuation section,
identifying thereon the action being reported. List the primary
accounts affected in column 1 and record as acquisitions in column 7 the
retirements reported in column 13 of ACV Forms No. 1 prepared by the
releasing carrier in accordance with paragraph (a)(2) of this section,
and provided the acquiring carrier in accordance with paragraph (a)(5)
of this section. Exclude cost of organization reported by the releasing
carrier.
(3) Prepare a separate ACV Form No. 2, by valuation section,
identifying thereon the action being reported. List the primary
accounts affected in column 1 and record as acquisitions in column 7 for
land accounts, and in column 14 for rights-of-way accounts, the
retirements reported in columns 9 and 16 of ACV Forms No. 2 prepared by
the releasing carrier in accordance with paragraph (a)(3) of this
section, and provided the acquiring carrier in accordance with paragraph
(a)(5) of this section.
(4) Prepare ACV Form No. 4 to cover the entire reporting year,
identifying same to indicate that it includes changes applicable to both
the releasing and the acquiring carrier. To accomplish this, copy in
the corresponding columns of this form the data appearing in columns 1,
2, 3, 4 and 5 of ACV Form No. 4 received from the releasing carrier in
accordance with paragraph (a)(5) of this section. Consolidate, by
element, the amounts of cost of reproduction new property changes
appearing in columns 6 and 12 of the copy of ACV Form No. 1 received
from the releasing carrier covering current year changes to the date of
the action, and the ACV Form No. 1 prepared by the acquiring carrier
covering current year changes from the date of the action to the end of
the reporting year. Record these consolidated changes in columns 7 and
9 of ACV Form No. 4 and complete the form as directed in 361.103.
(5) Prepare for the carrier as a whole, a separate ACV Form No. 1
identifying differences between amounts covering acquisitions recorded
in account 30, Investment in Carrier Property, and related original cost
amounts recorded on ACV Forms No. 1 and 2.
(32 FR 20482, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981; 49 FR 44630, Nov. 8, 1984)
18 CFR 361.202 Actions between common carriers affecting property
representing less than a complete valuation section.
(a) The releasing carrier shall:
(1) Identify the action and report same, by account, as a retirement
on separate ACV Forms No. 1 and 2, including complete description,
units, costs, etc., immediately following the recording of regular
property changes for the reporting year.
(2) Provide the acquiring carrier with a copy of the ACV Forms No. 1
and 2 referred to in paragraph (a)(1) of this section.
(b) The acquiring carrier shall:
(1) Identify the action and report same by account, as an acquisition
on ACV Forms No. 1 and 2, including complete description, units, costs,
etc., immediately following the recording of regular property changes
for the reporting year. ACV Forms No. 1 and 2 received from the
releasing carrier in accordance with paragraph (a)(2) of this section
shall serve as the posting media for recording these data.
(2) Prepare, for the carrier as a whole, a separate ACV Form No. 1
identifying differences between amounts covering acquisitions recorded
in account 30, Investment in Carrier Property, and related original cost
amounts recorded on ACV Forms No. 1 and 2.
(32 FR 20482, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981; 49 FR 44630, Nov. 8, 1984)
18 CFR 361.203 Actions between common carriers and individuals, firms,
corporations or others not common carriers.
(a) The releasing carrier shall record the action as a retirement in
the same manner as outlined in 361.202(a)(1), except that it will not
be necessary to prepare separate ACV Forms No. 1 and 2.
(b) The acquiring carrier shall record the action as an acquisition
in the same manner as outlined in 361.202(b)(1), except that if the
property represents a valuation section or more separate ACV Forms No.
1 and 2 shall be prepared, the date of the acquisition shall be the year
in which the property is dedicated to public service by the acquiring
carrier and the source medium shall be the inventory of the property
acquired. This inventory shall state the manner in which it was
determined and shall identify the installation dates of the property
included therein. Where accurate installation dates cannot be
determined the best possible estimate shall be used.
(c) The acquiring carrier shall also prepare, for the carrier as a
whole, a separate ACV Form No. 1 identifying differences between
amounts covering acquisitions recorded in account 30, Investment in
Carrier Property, and related purchase price amounts recorded on ACV
Forms No. 1 and 2.
(32 FR 20482, Dec. 20, 1967. Redesignated and amended by Order 119,
46 FR 9051, Jan. 28, 1981; 49 FR 44630, Nov. 8, 1984)
18 CFR 361.204 Purchases and sales of jointly owned or jointly used
agent operated property.
In cases of purchase and sale actions affecting agent operated
jointly owned or jointly used property the agent operator shall:
(a) Prepare a summary on ACV Forms No. 1 and 2 for each valuation
section, identifying the action being reported, listing thereon by
primary account the total addition and retirements, each shown
separately, from the date of the latest previously filed statements of
property changes to the date of the action. Indicate the appropriate
owning or using percentage in effect prior to the date of the action for
each jointly owning or jointly using carrier and apply same to the
additions and retirements and record the resultant amounts.
(b) Prepare ACV Forms No. 1 and 2 for each valuation section,
identifying the action being reported, and showing thereon the following
information by primary account:
(1) The balance of original cost at the end of the latest previous
reporting period.
(2) The total of additions and retirements reported in accordance
with (a) of this section.
(3) The balance of original cost as of the date of the action after
giving effect to paragraph (b)(2) of this section.
(c) Apply to the balance developed under paragraph (b)(3) of this
section, the percentage representing the relationship between the
original cost of the portion of the valuation section involved in the
action and the total original cost of the valuation section. Identify
the result by each releasing and acquiring jointly owning or jointly
using carrier.
(d) Include amounts developed under paragraphs (a) and (c) of this
section in totals reported on ACV Forms No. 1 and 2 prepared in
accordance with 361.8 (a), (b) and (c) reporting the carrier's
proportionate share of jointly owned or jointly used agent operated
property.
(e) Include ACV Forms No. 1 and 2 prepared in accordance with
paragraphs (a), (b) and (c) of this section with forms filed with the
Commission.
18 CFR 361.205 Purchases and sales of jointly owned or jointly used
nonagent operated property.
(a) The ACV Forms No. 1 and 2 referred to in 361.204 (a), (b) and
(c) shall be prepared by the carrier having responsibility for preparing
the ACV forms for the jointly owned or jointly used property.
(b) Two copies of the ACV Forms No. 1 and 2 referred to in paragraph
(a) of this section shall be mailed to each jointly owning or jointly
using carrier, one to be retained, the other to be included with reports
filed with the Commission.
18 CFR 361.205 Forms
18 CFR 361.300 List of forms.
ACV Form No. 1 -- Statement of Property Changes other than Land and
Rights-of-Way.
ACV Form No. 2 -- Statement of Land and Rights-of-Way Property
Changes.
ACV Form No. 3 -- Summary of Changes in Original Cost and Total
Original Cost at Close of Period.
ACV Form No. 4 -- Summary of Cost of Reproduction New and Cost of
Reproduction New Less Depreciation.
18 CFR 361.300 PART 362 -- UNIFORM SYSTEM OF RECORDS AND REPORTS OF
PROPERTY CHANGES
Sec.
362.1 Uniform system for recording and reporting changes in physical
property.
362.2 General.
362.3 Records to be established.
362.4 Reports to be prepared.
362.5 Effective date of records; sources of entries.
362.6 Classification of property changes.
362.7 Recording of quantities.
362.8 Reporting changes participated in by other carriers.
362.9 Data required for newly built roads, branch lines contructed,
or extensions of existing lines.
362.10 Aids, gifts, grants and donations.
362.11 Property acquired through purchase, merger or consolidation.
362.12 Reporting cost of property sold and cost of property acquired.
362.13 Units, quantities and descriptions, statement.
362.14 Reports to be attested.
362.15 Authorities for expenditures.
362.16 Detailed estimate sheet.
362.17 Register of authorities for expenditures.
362.18 Completion reports.
362.19 Record of property changes.
362.20 Statement of property units added and retired and their costs.
362.21 Records and reports prescribed applicable to all carriers.
362.101 Form of report.
362.102 Property added.
362.103 Cost of property added.
362.104 Property retired.
362.105 Retirement quantities.
362.106 Costs applicable to property retired other than land.
362.107 Land for transportation purposes.
362.108 Costs applicable to land retired.
362.109 Property transferred from carrier use to noncarrier
classification and vice versa.
362.110 Jointly owned or jointly constructed property.
362.111 Changes made in or to property of other common carriers.
362.112 Changes in use of property.
362.113 Reconciliation with investment accounts.
362.114 Roads acquired through purchase, merger, consolidation, or
reorganization.
362.115 Reconstruction of road acquired through purchase, merger,
consolidation, or reorganization.
362.116 General expenditures (Accounts 71 to 77, inclusive).
362.117 Other changes.
362.118 Subschedules.
362.119 Division of road accounts.
362.120 Mass property.
362.121 Structural property.
362.122 Manner of reporting changes in mass property.
362.123 Manner of reporting changes in structural property.
362.124 Structural property additions and betterments.
362.125 Structural property; major renewals.
362.126 Valuation sections.
362.127 Mileage changes.
362.128 Separations by sheets or subschedules.
362.129 Modifications of items and units.
362.130 Inventory groups.
362.131 Equipment acquired.
362.132 Additions and betterments to and retirements of units.
362.133 Subschedule M.
362.200 List of units for use of carriers in the preparation of
Completion Reports and the Record of Property Changes.
362.300 List of forms.
Authority: Sec. 12, 24 Stat. 383, 37 Stat. 701; 49 U.S.C. 12,
19a.
Source: Order 119, 46 FR 9052, Jan. 28, 1981, unless otherwise
noted.
Note: In 362.0 to 362.300 the numbers to the right of the decimal
point corresponds with the respective section numbers in regulations and
instructions to govern the recording and reporting of all extensions and
improvements or other physical property of every common carrier.
Valuation Order 3, second revised issue. Interstate Commerce
Commission, effective January 1, 1919.
Cross Reference: For uniform system of records and reports of
property changes, pipe line carriers, see Part 361 of this chapter.
18 CFR 361.300 Regulations and Instructions
18 CFR 362.1 Uniform system for recording and reporting changes in
physical property.
(a) The regulations and instructions to govern the recording and
reporting of changes in physical property of every common carrier
subject to the provisions of the act to regulate commerce, which are set
out in printed form to be hereafter known as Second Revised Issue are
hereby prescribed for the use of the aforesaid carriers in the keeping
of their records and in the preparation of reports of changes in
physical property required by the Commission to be filed with it in
accordance with section 19a of the Interstate Commerce Act; each and
every such carrier and each and every receiver or operating trustee of
any such carrier is hereby required to keep its records and to prepare
and furnish to the Commission reports of changes in physical property in
conformity therewith.
(b) Each and every carrier of the class hereinbefore described and
referred to, and each and every receiver or operating trustee of any
such carrier, whose property has been inventoried as of June 30, 1916,
or as of June 30 of any previous year, shall be, and is hereby required
to file with the Commission on forms like B. V. Form No. 589, as soon
as the same can be prepared, showing separately for each valuation
section within each State, Territory, and the District of Columbia,
annual reports for the years ending June 30 of each year, up to and
including the year ending June 30, 1917, and separately a report for the
6 months ending December 31, 1917. Those carriers whose property was
inventoried as of June 30, 1917, shall file reports for the 6 months
ending December 31, 1917. Thereafter the reports shall be made annually
for the year ending December 31. Beginning with the year ending
December 31, 1919, the reports shall be made within 60 days from the
close of the year. Each and every such carrier, and each and every
receiver, or operating trustee of such carrier, be and is hereby
required, within 90 days from the date prescribed by the Commission, to
file on B. V. Forms No. 588 a statement of the property added since
the inventory or since the date of any such previous list, and its cost,
and a statement of the property retired or released since the inventory
or since the date of any such previous list, and its cost, to December
31, 1927, or to such other date or dates as may be indicated, in
accordance with the list of property units attached to Revised
Supplement No. 4, to Valuation Order No. 3, Second Revised Issue (
362.200), and the detailed instructions relating to the preparation of
Forms No. 588.
(c) (Reserved)
(d) Other reports shall be prepared and filed as called for by the
instructions: Provided, That each and every carrier of the class
described and referred to in this part and each and every receiver or
operating trustee of any such carrier, shall be, and is hereby, required
to keep, subsequent to December 31, 1918, the system of records provided
in this part, in the manner prescribed in this part, so that reports on
the forms and in accordance with the regulations and instructions
provided in this part and prescribed can be prepared therefrom.
(e) Each and every carrier of the class described and referred to in
this part, and each and every receiver or operating trustee of any such
carrier, whose property has been inventoried as of June 30, 1918, or as
of June 30 of any previous year, shall be, and is hereby, required, as
rapidly as the work can be accomplished, to make up in accordance with
''Exhibit E'' ( 362.300) a record of property changes occurring between
the date of inventory and December 31, 1918; the record to be made
separately for each year ending June 30, up to and including the year
ending June 30, 1917. The period from June 30, 1917, to December 31,
1917, should be shown separately. The period from December 31, 1917, to
December 31, 1918, should be for the year for all carriers affected,
except carriers whose property has been inventoried as of June 30, 1918.
The last-named carriers shall prepare the record for the 6 months
ending December 31, 1918. Thereafter the record shall be made up for
the year ending December 31.
Note: The date for filing B. V. Form 588 and B.V. Form 589 reports,
required by 362.1 were modified by orders of Apr. 7, 1941, and July 8,
1941; 6 FR 1915, 3478. The order of July 8, 1941, reads in part:
''Carriers are given to October 1, 1941, instead of June 30, 1941, in
which to file B. V. Form 589 reports covering such periods, including
1940, for which they have not filed the B. V. Form 588 reports. For
years subsequent to 1940 the returns upon B. V. Form 589 will be due on
June 1 of the succeeding year provided returns upon B. V. Form 588 will
not be filed by December 31. Reports upon B. V. Form 588 for 1941 and
for any prior year not covered by such reports shall be filed by
December 31, 1942, instead of by June 1, 1942, and beginning with the
year 1942. B. V. Form 588 shall be filed annually by December 31, of
the following year.''
(Order 119, 46 FR 9052, Jan. 28, 1981; 46 FR 21155, Apr. 9, 1981)
18 CFR 362.2 General.
That the Commission may be enabled to comply with that portion of
section 19a of the act to regulate commerce reading:
Upon completion of the original valuations herein provided for, the
Commission shall thereafter keep itself informed of all new
construction, extensions, improvements, retirements, or other changes in
the condition, quantity, use, and classification of the property of all
common carriers as to which original valuations have been made, and of
the cost of all additions and betterments thereto and of all changes in
the investment therein, and may keep itself informed of current changes
in costs and values of railroad properties, in order that it may have
available at all times the information deemed by it to be necessary to
enable it to revise and correct its previous inventories,
classifications, and values of the properties; and when deemed
necessary, may revise, correct, and supplement any of its inventories
and valuations.
A uniform system of records, which shall be established by carriers,
is here prescribed. In these records it is intended that carriers shall
record the extensions, improvements, or other changes that are made in
their physical property after the date fixed by the Commission for the
inventory of that property. For convenience, the extensions,
improvements, or other changes in physical property are hereinafter
referred to, individually and collectively, as property changes. From
the records prescribed certain reports hereinafter indicated shall be
prepared by carriers and filed with the Commission.
(46 FR 21155, Apr. 9, 1981)
18 CFR 362.3 Records to be established.
(a) The records which compose the system that shall be established
are here listed:
(1) Authority for Expenditure, ''Exhibit A.''
(2) Detailed Estimate Sheet to supplement the Authority for
Expenditure, ''Exhibit A-1.''
(3) Register of Authorities for Expenditures, ''Exhibit B.''
(4) Roadway Completion Report, ''Exhibit C.''
(5) Continuation Sheet to supplement the Roadway Completion Report,
''Exhibit C-1.''
(6) Semiannual Completion Report of Changes in Equipment, ''Exhibit
D.''
(7) Record of Property Changes, ''Exhibit E.''
(b) The forms of the records numbered (1) to (6), inclusive, here
prescribed, are shown by the exhibit lettered ''A'' to ''D'' ( 362.300).
These forms indicate the minimum information required for the
Commission's purposes. Any or all of the records above specified may be
varied as to the order and arrangement of the data required to be shown,
and additional data may be shown at the option of the carrier, provided
the minimum information required by these forms and instructions is
shown upon the modified forms which carriers elect to use. The seventh
record, styled Record of Property Changes, sample sheet of which is
marked Exhibit ''E'' ( 362.300) and made a part of the instructions in
this part, may be varied to suit the convenience of carriers: Provided,
The minimum information required by this form and instructions is shown
upon the modified form which carriers elect to use: And provided
further, That such modified form, Exhibit ''E'' ( 362.300), shall not be
adopted by the carrier until and unless approved by the Commission.
With respect to size of forms, Numbers (1) to (7), inclusive, may be
varied to suit the convenience of the carriers.
(Order 119, 46 FR 9052, Jan. 28, 1981; 46 FR 21155, Apr. 9, 1981)
18 CFR 362.4 Reports to be prepared.
(a) The reports to be prepared by carriers from these records and
filed with the Commission are here listed:
Statements compiled as of June 30 and December 31 of each year,
listing the Roadway Completion Reports that have been prepared during
the six months ending upon those dates, B. V. Form No. 586.
Statements compiled as of June 30 and December 31 of each year,
listing the Equipment Completion Reports that have been prepared during
the six months ending upon those dates, B. V. Form No. 587.
Statements of property units added and retired and their costs, to be
prepared and filed at such times as the Commission may from time to time
direct after the property is inventoried or after the date as of which
any such previous lists are prepared and filed B. V. Form No. 588.
Annual statements of charges and credits to the investment account
for property brought into, or retired from, operation, to be prepared as
of December 31 of each year, B. V. Form No. 589.
(b) The forms and dimensions of these reports shall be as prescribed
and indicated by the samples shown hereafter.
18 CFR 362.5 Effective date of records; sources of entries.
(a) Carriers shall establish and begin using as of January 1, 1919,
that part of the system here prescribed, which is embraced in the
records marked exhibits ''A'' to ''D'' ( 362.300).
(b) The Record of Property Changes, marked exhibit ''E,'' ( 362.300)
shall be established, and the entries in it shall begin, as of July 1
next succeeding the date fixed by the Commission for the inventory of
the property. The entries for the period prior to January 1, 1919,
shall be taken from the available records. The source or sources from
which the entries have been transcribed shall be shown with
particularity for each entry.
18 CFR 362.6 Classification of property changes.
The property changes recorded in the records here prescribed shall be
classified in conformity with the accounting regulations prescribed by
the Commission.
Cross Reference: For record of property changes, see 362.19.
18 CFR 362.7 Recording of quantities.
The actual quantities only of material and property installed during
the course of a property change shall be recorded in the records here
prescribed. If payments to contractors or others in settlement of
losses or claims have been based upon other than the actual quantities
installed, the amounts paid shall be entered in the appropriate accounts
in the records here prescribed, but the constructive quantities upon
which such payments have been computed shall be excluded from these
records.
18 CFR 362.8 Reporting changes participated in by other carriers.
Where one carrier assumes the cost of a change upon another carrier's
property, or where one or more carriers participate with the owner in
the cost of a change in the latter's property, the full detail of the
property units involved and their costs shall be recorded in but one set
of records and they shall be the records of the carrier to which the
property in which the change has been made was originally inventoried by
the Commission.
18 CFR 362.9 Data required for newly built roads, branch lines
constructed, or extensions of existing lines.
(a) There shall be filed with the Commission such maps, profiles,
plans, diagrams, or other data for newly built roads as will show the
nature and extent of their property and its location. Upon request of
the Commission, such roads shall also file an inventory of their
property. The valuation section references to be given such newly built
roads shall be assigned under advice of the Commission.
(b) Maps, profiles, plans, diagrams, or other data relating to branch
lines built, or to extensions of existing lines shall be filed with the
Commission. Valuation section references which shall be a continuation
in consecutive, numerical order of those previously assigned to the
other owned property within the State shall be given to such branch
lines and extensions.
(c) When so directed, carriers shall file with the Commission such
maps, profiles, plans, diagrams, or other data relating to betterments,
improvements, conversions, or retirements of property, as will show the
general character and extent of those changes.
18 CFR 362.10 Aids, gifts, grants, and donations.
The nature, amount, extent, and value of any aid, gift, grant of
right of way, or donation made by the Government of the United States or
by any State, county, or municipal government or by individuals,
associations, or corporations, to any common carrier in connection with
property changes in its property shall be recorded in the records,
prescribed in this part of the carrier that was the recipient of such
aid.
18 CFR 362.11 Property acquired through purchase, merger or
consolidation.
(a) If a common carrier, by purchase, or through merger or
consolidation, acquires part or all of the physical property of another
common carrier, the vendor shall issue an Authority for Expenditure and
prepare a Completion Report to record its release of the property. The
vendee shall issue an Authority for Expenditure and prepare a Completion
Report to record its acquisition of the property.
(b) If the transaction involves all of the property devoted to common
carrier purposes by the vendor, and that property has been inventoried
by the Commission, or if the part transferred consists of one or more
valuation sections in entirety, the entries under the heading ''Property
Retired'' in the vendor's Completion Report shall consist of a list of
the valuation sections that comprise the property released, arranged by
States and with the valuation section termini shown. A copy of the
Record of Property Changes recording the changes that have been made in
the property during the interval between the date it was inventoried and
the date it is transferred to the vendee, shall be prepared by the
vendor and given to the vendee at the time the transfer is effected.
The record thus secured by the vendee shall be perpetuated and used to
record the changes which it makes in the property subsequent to its
acquisition. As reference the vendee shall use its own valuation
section number or numbers and also refer to the previous owner and its
valuation section number or numbers. The vendee shall list in its
Completion Report, under the heading ''Property Units Added,'' the
valuation sections that comprise the property acquired; the list shall
be so arranged, described, and referenced as to correspond with the
vendor's list. If new valuation section references are assigned by the
vendee to the property acquired, they also shall be shown.
(c) If all, or part, of the property transferred consists of a
portion only of a valuation section, an inventory of the portion
transferred that is less than a valuation section shall be taken and the
Completion Reports of both the vendor and vendee shall enumerate the
property units and quantities determined in that inventory, and their
costs whenever possible.
(d) If a common carrier acquires railway property from individuals,
firms, corporations, or others, that were not common carriers, the
vendee shall inventory the property acquired and shall embody the
inventory in the appropriate Completion Report.
18 CFR 362.12 Reporting cost of property sold and cost of property
acquired.
The Completion Report of the vendor shall show the cost to the vendor
of the property released. The Completion Report of the vendee shall
show the cost to the vendee of the property acquired. If, in accordance
with prescribed accounting regulations, the vendee is required to record
the purchase price of property acquired, such cost shall be distributed
equitably among the primary accounts applicable to such property.
18 CFR 362.13 Units, quantities and descriptions, statement.
The unit designations, the quantities and descriptions recorded in
the Completion Reports and in the Record of Property Changes shall be
stated so far as possible in the terms of the inventory taken by this
Commission.
18 CFR 362.14 Reports to be attested.
The reports here prescribed to be filed with the Commission shall be
attested under oath by the official under whose direction they were
prepared.
18 CFR 362.15 Authorities for expenditures.
(a) Carriers shall issue an Authority for Expenditure for each change
in their property. In so far as possible these Authorities shall be
issued in advance of making the property changes. Those covering
involuntary retirements of property, or changes effected under stress of
emergency, may be issued as and when the changes are made.
(b) The Authorities issued for roadway and structural changes shall
not overlap valuation section limits. Each Authority issued shall
describe the change authorized and its location. A blanket Authority
may be issued for minor changes upon a valuation section and for such
changes as affect an entire valuation section. Changes in the form of
additions, improvements, or retirements, made in connection with a
general maintenance program upon a valuation section, may also be
authorized under blanket Authority.
(c) Roadway changes shall be authorized separately from equipment
changes, except when a railway property, in whole or in part, is
acquired in which is included the acquisition of equipment.
(d) The Authorities that are issued for equipment changes shall be
drawn separately for the classes indicated by the Commission's
classification of investment in road and equipment.
(e) In case the Authorities for Expenditure are issued by other than
the company that owns the property in which the change is to be made,
the pertinent facts of the circumstance shall be stated. Before
issuance each Authority shall be referenced by a registered number with
the name of the State and the number of the valuation section suffixed.
Those issued for changes in equipment shall bear merely the suffix
''Eq.''
(f) A form of Authority for Expenditure is shown by the exhibit
marked ''A.'' ( 362.300)
18 CFR 362.16 Detailed estimate sheet.
Whenever it is desired to make an extended statement of the estimated
cost of any property change, a detailed estimate sheet to supplement the
Authority for Expenditure shall be used. A suggested form for this
purpose is marked exhibit ''A-1.'' ( 362.300)
18 CFR 362.17 Register of authorities for expenditures.
Each carrier shall establish a register in which to record in
consecutive, numerical order with the appropriate State and valuation
section references, the Authorities for Expenditures issued. The
registered number, with the State and valuation section references
suffixed (or in the case of equipment merely the suffix ''Eq.'') shall
become the identifying reference of the change authorized and shall
thereafter be so used. A suggested form of Register is marked exhibit
''B,'' ( 362.300) which is shown hereafter.
18 CFR 362.18 Completion reports.
(a) As each change affecting roadway property is turned over to, or
retired from, operation, and as common carrier property is transferred
from one owner to another, a Completion Report shall be prepared to
record the details of each such change. As illustrative of desirable
forms for this purpose, reference is made to the exhibits contained in
this part marked ''C'' and ''C-1'' ( 362.300). Each Roadway Completion
Report shall show:
Reference to the authority for expenditure.
The significant facts of ownership and operation.
The location of the property change.
A description of the property change.
By whom the costs involved are borne.
An enumeration by primary accounts of units added.
Aggregate cost but not cost per unit unless work was done by contract
at a price per unit, in which case unit contract price shall be given.
Aggregate cost of property added and retired shall be distributed by
constituent parts or items of property under each primary account.
Cost of effecting property retirements shall be distributed by
primary accounts.
Descriptive detail of the property units retired and their costs, and
of any valuation sections, in whole or in part, released and their
costs.
Classification of the property changes and of the costs involved,
among the appropriate accounts.
(b) For changes in equipment, completion reports that will show by
classes the minimum information indicated by the exhibit contained in
this part marked ''D'' ( 362.300) shall be prepared as of June 30 and
December 31, of each year, beginning June 30, 1919. These reports shall
show:
Reference to the authority for expenditure.
The significant facts of ownership and operation.
The number, name, or other designation of the unit or series of units
to which the change is applicable.
Description of the equipment to which the change is applicable.
Number of units affected by the change.
Description of the change.
Date of change.
Cost of change.
Distribution to the appropriate accounts of the cost of the change.
(c) If completion reports are prepared by other than the carrier that
owns the property in which the change has been made, the pertinent facts
of the circumstance shall be stated.
(d) Where roadway or structural changes are effected under contract
and paid for in a lump sum, a list of the units involved in the change,
if not obtainable otherwise, shall be secured by an inventory of the
property change. The amount paid under the contract shall be
distributed to the accounts to which the property is classified in the
inventory.
(e) If portions of an authorized change are turned over to operation
before completion of the project as a whole, ''Progressive'' completion
reports, referenced as such and numbered, shall be prepared to record
the portions of the change that have been brought into operation. The
report that records the conclusion of the authorized change shall be
designated as the ''final'' completion report.
(f) From the completion reports described, transcripts shall be made
to the record of property changes, as hereinafter indicated.
(g) Completion reports covering property changes that were in
progress on the date of valuation, portions of which changes had been
turned over to operation and included in the inventory of this
Commission, shall be divided into two parts -- the first part to show
the property turned over to operation and inventoried as of the date of
valuation and its costs, the second part to show the property units
subsequently installed and their costs. The quantities and costs
included in the second part only shall be transcribed to the Record of
Property Changes.
18 CFR 362.19 Record of property changes.
(a) As of July 1 next succeeding the date fixed by the Commission for
inventory of the property, carriers shall establish for each valuation
section a Record of Property Changes, the form of which is shown by the
exhibit contained in this part marked ''E'' ( 362.300) to which shall be
transcribed from the Completion Reports, a record of the changes which
affect the property embraced in each valuation section. The record
shall be established according to owners of the property in which the
change is made and shall be arranged by those primary accounts of the
classification prescribed by this Commission for investment in road and
equipment that are applicable to each valuation section.
(b) For equipment, the Record of Property Changes shall be
established according to owners of the property in which the change is
made and in conformity with those primary accounts of the aforementioned
classification which are applicable to that class of property.
Equipment shall be grouped according to the regional assignment to which
it is allocated.
(c) Each transcript to the record shall show reference to the
appropriate Authority for Expenditure. In the case of installations of
property, the date that such property was turned over to operation shall
be shown. In the case of retirement of property, the date that such
property was withdrawn from the service shall be shown. The amounts
transcribed as the cost of property installed shall be those only that
affect the investment in road and equipment. Those costs in the
completion Report that are distributed to other than the investment in
road and equipment shall be omitted from the Record of Property Changes.
The costs inserted for additional property or improvements shall be
stated separately from the cost of property that has been retired.
Under the appropriate headings descriptive of property units, there
shall be shown separately the units added and the units retired. The
entries for retired units shall be in red or otherwise clearly
indicated.
(d) The headings inserted in the Record of Property Changes
descriptive of property units, shall be stated so far as possible in the
terms of the Commission's inventory of the property. As new types of
property units are introduced, appropriate descriptive headings shall be
inserted.
(e) In aggregating the items entered in the Record of Property
Changes the total inserted under each primary account shall be so
arranged as to show separately the property additions and their costs,
from the property retirements and their costs, for the period for which
the total is being stated. Nowhere in the record shall use be made of
net figures or amounts in recording property changes.
(f) The Record of Property Changes shall contain no entries for the
inventoried portions of property changes that were under way on the date
fixed by this Commission as of which the property was to be valued.
Cross Reference: For classification of property changes, see 362.6.
18 CFR 362.20 Statement of property units added and retired and their
costs.
Upon forms like the one marked ''B. V. Form No. 588,'' ( 362.300)
carriers shall prepare and file with this Commission, when directed,
statements that shall show for each valuation section and for equipment:
(a) A list of property added since the inventory or since the date of
any such previous list and its cost; (b) a list of property retired or
released since the inventory or since the date of any such previous list
and its cost. The property listed shall be stated in the terms of the
inventory and shall be so arranged and classified as to correspond with
the inventory. Provision shall be made under each account for inserting
descriptions of any new types of property or units that may have been
introduced since the inventory. The entries to be inserted in the
columns headed ''Property Added'' and ''Property Retired'' shall be
taken from the Record of Property Changes and shall correspond with the
data there recorded. The amounts representing the costs inserted under
the heading ''Property Added'' shall be those only that affect the
investment in road and equipment.
Cross References: For property added, see 362.102. For property
retired, see 362.104. For retirement quantities and costs applicable to
property retired other than land, see 362.105, 362.106. For costs
applicable to land retired, see 362.108.
18 CFR 362.21 Records and reports prescribed applicable to all
carriers.
The forms of the records and reports prescribed in this part are
those applicable to steam roads only, and the instructions governing the
use of those records and reports have been expressed in terms that are
likewise applicable to steam roads only. Nevertheless, the records and
reports prescribed and the instructions governing them, after suitable
modification to adapt them to the varying terminology and arrangement of
the accounting classifications prescribed by the Commission, shall apply
with equal force to all common carriers that are subject to the act to
regulate commerce.
18 CFR 362.21 Forms and Reports
18 CFR 362.101 Form of report.
Upon forms like B. V. Form 588 Revised ( 362.300), size 11 by 17
inches the carrier shall file with the Commission, statements that will
show for each valuation section and for equipment:
(a) A list of property added since the inventory or since the date of
any such previous list and its cost.
(b) A list of property retired or released since the inventory or
since the date of any such previous list and its cost.
Note: Effective with forms prepared and filed to report property
changes made during the year 1957, the requirements for filing forms B.
V. 588-R in duplicate was canceled, the original only being required to
be filed as above.
18 CFR 362.102 Property added.
Property added shall be reported, together with its cost, separately
from property retired and shall be reported by actual ''in place''
quantities in terms of the units shown in the ''List of Units to be used
in connection with valuation order No. 3. Second Revised Issue,'' with
descriptive detail to conform with that therein prescribed, or as
modified by 362.129 of the instructions in this part.
Cross Reference: For statement of property units added and
retired and their costs, see 362.20.
18 CFR 362.103 Cost of property added.
(a) The amounts reported as the cost of property added shall be only
those that affect the investment in road and equipment except as
hereafter provided with respect to lands, miscellaneous physical
property, and cost of road acquired through purchase, merger,
consolidation or reorganization, and reconstruction of road so acquired.
(b) The cost reported need be only the total cost of each structure
as defined in 362.121, the total cost for each mass account as defined
in 362.120 of the instructions, or as prescribed by the subschedules.
(c) Except that when changes are reported under the unit designation
''lot,'' the cost applicable to such unit shall be also reported.
(d) The costs to be reported for betterments shall be computed in
accordance with the rules in the effective accounting regulations. With
respect to costs to be reported for track changes in connection with
betterments applied, the costs to be reported for account 9, Rails,
shall be the cost of the excess in weight of heavier rails laid in
replacement of lighter rails; for account 10. Other track material,
the excess cost of heavier or improved track material; and for account
11, Ballast, the excess cost of improved ballast. (Added by order of
April 17, 1976.)
(e) A supplemental Form No. 588-R shall be filed for account 9,
Rails, account 10, Other track material, and account 11, Ballast,
bringing the property costs, as shown in the valuation records of the
Commission, into conformity with the costs recorded in the books of
account pursuant to revised Instruction 2-19 of the accounting
regulations. Carriers which recorded costs as shown in valuation
records in their books of account at time of reorganizations shall file
a supplemental Form 588-R for the period subsequent to the
reorganization.
Cross Reference: For statement of property units added and retired
and their costs, see 362.20. For subschedules, see 362.118.
18 CFR 362.104 Property retired.
Property retired shall be reported separately from property added,
and shall also be reported in terms of the units shown in the ''List of
Units'' ( 362.200(c)) previously referred to, with descriptive details
to conform with those therein prescribed, except however, property
included in the basic valuation reports and subsequently retired may be
stated in terms of the units shown therein. The retirement of a
complete structure individualized in the basic reports need be described
only to the extent necessary to permit ready identification of such
structure in the basic reports.
18 CFR 362.105 Retirement quantities.
(a) In reporting retirements of property which was included in the
final valuation reports of the Commission the quantities thereof shall
agree with the quantities included in the final Engineering Report. If
loss and waste is included in the reported quantities, a note to that
effect shall be made.
(b) In reporting retirements of property which was not included in
the final valuation reports of the Commission, but subsequently included
in the records and reports prepared in compliance with valuation order
No. 3, the quantities shall conform with the record covering the
installation of such property.
18 CFR 362.106 Costs applicable to property retired other than land.
(a) The costs to be reported applicable to property retired other
than land shall be:
(1) In column 12, the cost of reproduction new for property included
in the basic valuation report, for equipment report also the original
cost in column 11.
(2) In column 11, the cost included in the records and reports
prescribed by valuation order No.3 for property installed since date of
basic valuation.
(b) (Reserved)
(c) In determining the cost of property retired from service when it
is impracticable because of the relatively large number and small size
of units of any kind to determine the specific cost thereof, average
costs may be used.
(d) When changes are reported under the unit designation ''lot,'' the
cost applicable to such unit shall be also reported.
18 CFR 362.107 Land for transportation purposes.
(a) Changes in lands owned or used for the purposes of a common
carrier including acquisitions of lands or rights and lands retired,
sold, or otherwise transferred, shall be reported on B. V. Form No.
588, subschedule ''L,'' ( 361.300) attached hereto and made a part
hereof. This subschedule shall be filed in duplicate with one copy
carbon backed. In the preparation of subschedule ''L'' there shall be
shown in column 15 under the caption ''Remarks'' for lands acquired a
statement of the specific use to which such lands have been put and for
lands retired or transferred from carrier use the disposition thereof,
such as sales, transfers to noncarrier, reversions, etc. Such lands
shall be designated by the map number and parcel number shown therefor
in the basic Land Report if included therein.
(b) Assessments for public improvements applicable to lands owned or
used for common-carrier purposes shall be reported on subschedule ''L''
in total for each valuation section and by years.
(c) Incidental land cost need not be reported in detail; only the
lump-sum cost applicable to each parcel need be shown.
18 CFR 362.108 Costs applicable to land retired.
The costs to be reported under the heading ''Property Retired'' for
items of land shall be, the cost at the date of dedication to public
use, and separately, the amount entered in the investment account to
record therein the retirement.
18 CFR 362.109 Property transferred from carrier use to noncarrier
classification and vice versa.
In reporting changes in carrier property, transfers from noncarrier
to carrier use shall be considered additions and transfers from carrier
use to noncarrier classification shall be considered retirements and
conversely when reporting for noncarrier property.
18 CFR 362.110 Jointly owned or jointly constructed property.
Changes in jointly owned or jointly constructed property shall be
reported separately from other property. The total quantities and total
costs shall be reported. The total cost shall be shown in the
description column and a statement of the names of the owning or
participating companies, individuals or political subdivisions with the
amounts or proportions owned and contributed by each. The cost to be
entered under the heading ''Property Added'' shall be the portion of the
total cost borne by the company for which the report is made plus the
cost of property relinquished and retired from service as a direct
result of the arrangement less the salvage recovered therefrom, and less
the depreciation accrued on the property. The net amount is part of the
total cost of the property to the carrier.
18 CFR 362.111 Changes made in or to property of other common carriers.
Where one carrier assumes the cost of a change upon another carrier's
property or where one or more carriers participate with the owner in the
cost of a change in the latter's property, the full details of the
property units involved and their cost shall be reported separately from
other property changes and the facts as to ownership and use shall be
stated.
18 CFR 362.112 Changes in use of property.
(a) Changes in use of carrier property, through leases from or to
common carriers, shall be reported in sufficient particularity to permit
identification of the property by ownership and physical characteristics
in the basic valuation report or other valuation records.
(b) Changes in the use of property through leases from individuals,
firms, corporations, or others not common carriers that are in effect at
the date of the report shall be appropriately reported.
18 CFR 362.113 Reconciliation with investment accounts.
The carrier shall prepare and file with reports on B. V. Form 588 (
362.300) a general analysis of the difference between the charges and
credits in Columns 5, 11, and 12 of that form and the increases or
decreases in the investment account during the reporting period. The
detail of items forming such difference shall be grouped under
appropriate descriptive headings according to the nature of the
difference.
18 CFR 362.114 Roads acquired through purchase, merger, consolidation,
or reorganization.
(a) Pursuant to sections 10 and 11 of order No. 3 ( 362.11, 362.12)
the changes made in the property during the interval between the date it
was inventoried to the former owner and the date transferred to the
vendee shall be reported separately from the changes made in such
property subsequent to its acquisition. In addition to such changes
there shall be reported separately a statement of the property acquired
together with the money outlay for constructing and improving such
property, which statement shall include the amounts representing the
difference between the cost of acquisition and such money outlay in the
convenience account styled ''Difference between the price paid for
property acquired and the money outlay for construction and improvement
of that property,'' and also a statement describing the manner in which
the money outlays were ascertained and the basis of distribution among
the primary accounts that are applicable to the property.
(b) If the property has been acquired from individuals, firms,
corporations or others that were not common carriers the statement shall
show in addition to the foregoing the manner in which an inventory of
the property was determined.
18 CFR 362.115 Reconstruction of road acquired through purchase,
merger, consolidation, or reorganization.
(a) Property changes incident to reconstruction of road acquired
shall be reported separately from all other property changes. The units
installed and their costs and the units retired and their costs shall be
allocated on such report to the primary accounts applicable to the
property and under each such account they shall be subdivided to show:
(1) Property added in replacement of like property and the
retirements in connection therewith.
(2) Property added in betterment of existing property together with
retirements in connection therewith.
(b) With the exception of the foregoing subdivision, the reporting of
the units and cost for the property added and property retired shall
conform to the general rules set forth in this part for other additions
and retirements.
Cross Reference: For rules concurring additions and betterments to
and retirements of units, see 362.132.
18 CFR 362.116 General expenditures (Accounts 71 to 77, inclusive).
When items of general expenditures have been included in a particular
road and equipment account as a part of the cost of any specific
property such amount shall be separately stated under each primary
account on the form and indication shall be given as to the general
nature of the items.
18 CFR 362.117 Other changes.
The foregoing rules in this part relate to the manner of reporting
property changes, the cost of which affects the investment in road and
equipment account. The rules relating to the manner of reporting
changes in miscellaneous physical property are shown in the special
instructions in 362.21 of this chapter. If there have been other
changes which affect the condition and value of the property, such
changes shall be reported separately, with their costs, from those the
cost of which affects the investment in road and equipment account, but
in conformity with the general rules given in this part and an
explanation made of the accounting performed in connection with such
changes.
18 CFR 362.118 Subschedules.
Subschedules are provided by the instructions in this part for
reporting changes in land equipment and miscellaneous physical property.
Other subschedules may be used for reporting the foregoing and other
classes of property provided that they are first approved by the
Commission as to form and method of preparation. When subschedules are
used, total charges and credits for each primary account shall be shown
upon B. V. Form No. 588 ( 362.300) with appropriate reference to the
subschedules. Subschedules shall be filed in duplicate with one copy
carbon backed.
18 CFR 362.119 Division of road accounts.
For the purpose of conveniently indicating the treatment to be
accorded different classes of property General Account I, Road (except
land), will be considered as containing two distinct classes of
property; namely, ''mass property'' and ''structural property.'' By
mass property is meant property of like kind and characteristics, the
quantities of which may be considered collectively and reported as a
single item. By structural property is meant property which from its
nature must be individualized and reported separately from property of
like kind and characteristics.
18 CFR 362.120 Mass property.
This class of property shall be construed generally to include the
following:
(a) All items in Account 3, Grading.
(b) All items in Account 6, Bridges, trestles, and culverts and
Account 7. Elevated structures, except as required to be individualized
and with respect to which instructions are contained in the ''List of
Units'' under this account.
(c) All items in Accounts 8, Tie; 9, Rails; 10, Other track
material; 11, Ballast; 12, Track laying and surfacing.
(d) All items in Account 13, Fences, snowsheds, and signs.
(e) All items in Account 26, Communication systems, except equipment
of dispatcher or large relay offices.
(f) All items in Account 27, Signals and interlockers, except
interlocking plants.
(g) All items in Account 37, Roadway machines; Account 38, Roadway
small tools; and paving in Account 39, Public improvements --
Construction.
18 CFR 362.121 Structural property.
This class of property shall be construed generally to include the
following:
(a) Under Account 5, Tunnels and subways, each tunnel or subway.
(b) Under Account 6, Bridges, trestles, and culverts; Account 7,
Elevated structures; and Account 39, Public improvements --
Construction, each bridge or other structure required by the
instructions in the ''List of Units'' under Account 6, to be treated
individually.
(c) Under Account 16, Station and office buildings, and Account 17,
Roadway buildings, each building except those of minor importance which
conform in size and character to an established standard of
construction.
(d) Under Account 18, Water stations, each water station or
water-treating plant.
(e) Under Account 19, Fuel stations, each fuel station.
(f) Under Account 20, Shops and engine houses, each shop building,
engine house, turntable, cinder pit, or gas production plant, each
plant.
(g) Under Account 21, Grain elevators, and Account 22, Storage
warehouses, each building.
(h) Under Account 23, Wharves and docks, and Account 23, Coal and ore
wharves, each wharf, dock, or pier.
(i) (Reserved)
(j) Under Account 26, Communication systems, each dispatcher or
larger relay office.
(k) Under Account 27, Signals and interlockers, each interlocking
plant.
(l) (Reserved)
(m) Under Account 29, Power plants each building, including power
substation buildings.
(n) Under Account 31, Power-transmission systems, each shop plant or
each power system, including each power-distribution system, power-line
poles and fixtures system, and underground conduits system.
(o) Under Account 35, Miscellaneous structures, important structures
as may be appropriate.
(p) Under Account 44, Ship machinery and Account 45, Power-plant
machinery, each separate plant.
18 CFR 362.122 Manner of reporting changes in mass property.
Mass property shall be listed in total by units for all years to
cover the complete period subsequent to valuation date or since the date
of any such previous list, unless specific instructions to the contrary
are given, and the weighted average date (year) of installation shall be
shown for each item except for clearing, grubbing, grading, or items in
Account 12.
18 CFR 362.123 Manner of reporting changes in structural property.
(a) Each bridge, building, structure, plant, or facility referred to
in 362.121 as ''structural property'' shall be reported separately from
every other bridge, building, structure, plant, or facility, and the
accessories attached thereto, or forming a part thereof, such as
furniture, fixtures, equipment, and appurtenances shall be grouped
therewith and reported in appropriate units with descriptive detail as
indicated in the ''List of Units'' 362.200(c).
(b) Structural property shall be reported in such a manner as to show
date of installation of new facilities, date (year) of additions and
betterments made to existing facilities, and date of retirements
facilities or parts thereof.
18 CFR 362.124 Structural property additions and betterments.
(a) In reporting additions and betterments to and retirements from
structural property all changes affecting a given bridge, building,
structure, plant, or facility shall be grouped under a common
description of such facility or an appropriate reference to the same by
page and item number of the Engineering Report. Each change shall be
separately recorded thereunder in terms of the units and descriptions
prescribed in the ''List of Units'' ( 362.200(c)) and the date (year) of
each change shall be noted.
(b) In reporting retirements of units designated as structural
property to which additions and betterments have been added since
valuation date, the net cost of such additions and betterments shall be
stated separately from the costs attaching to the unit as existing on
valuation date or as installed subsequently thereto.
18 CFR 362.125 Structural property; major renewals.
When an important building or structure has been retired and replaced
due to the renewal of its major portion, the retirement entry shall show
all parts of the structure, including those left in place for reuse;
the addition shall include such reused parts, in order that the units
reported installed shall embrace all those in the facility as restored
to service. Reused units and quantities must be separately stated on
the report.
18 CFR 362.126 Valuation sections.
(a) Reports shall be prepared separately for each valuation section
shown in the basic engineering report and for those since established.
(b) Appropriate combinations of present valuation sections should be
made within practical limitations, to promote facility and economy,
subject to the approval of the Commission.
(c) Roadway machines and other similar items may be reported
''Unallocated'' subject to the approval of the Commission.
18 CFR 362.127 Mileage changes.
Report shall be made of all changes in track mileage divided to show
separately first main track, second main track, third main track, fourth
main track, etc., and yard tracks and sidings.
18 CFR 362.128 Separations by sheets or subschedules.
The following accounts or groups of accounts should be reported on a
single sheet or series of sheets; Accounts 1 and 71 to 77, inclusive;
2, 2 1/2 (reproducible), and 39 (assessments); 2 1/2 (nonreproducible),
3, and 5; 6 and 7; 8 to 13, inclusive, and 39 (construction); 16, 17,
and 35; 18 and 19; 20 to 22, inclusive; 23 and 24; 26; 27; 29;
31; 40 to 43, inclusive; and, 44 and 45.
18 CFR 362.129 Modifications of items and units.
Modification in the items, units, forms, and manner of reporting may
be made only with the approval of the Commission.
18 CFR 362.130 Inventory groups.
(a) The instructions pertaining to the equipment accounts are based
on the group plan of recording and reporting changes in such property.
(b) This plan contemplates the establishment of groups of cars,
locomotives, etc., hereinafter referred to as ''inventory groups.'' A
group once established should remain unaltered except to the extent of
additions and betterments to individual units and the retirement of
units. An inventory group for property included in the final
Engineering Report shall be the group established by the Commission as
indicated in the final Engineering Report. For equipment acquired since
valuation date each class or series of like units built under uniform
plans and specifications shall constitute a new inventory group except
that subdivisions may be made for convenience in accounting where a
series is constructed at different plants or under varying unit contract
costs.
18 CFR 362.131 Equipment acquired.
(a) Each inventory group established for equipment shall be reported
separately from every other such group on B. V. Form No. 588-R or with
the descriptive detail outlined in the List of Units. Freight charges
shall be separately reported with the place built, f.o.b. point and also
the setting-up point for locomotives and receiving point for cars. The
name of the vendor shall be reported for equipment purchased second
hand.
(b) For rebuilt or converted units constituting a new inventory group
reference shall be made to the orginal group.
18 CFR 362.132 Additions and betterments to and retirements of units.
The changes which occur in each established inventory group such as
additions, betterments, and retirements made since valuation date or
since the group was established shall be reported on B. V. Form No.
588-R or subschedule B. There shall be recorded and reported the data
indicated by the captions on the subschedule in summary form for each
year the current status of each group, as a whole, with respect to the
number of units at the end of the year and the changes during the year.
There shall be reported in column K a description of major additions and
betterments applied during the year or period. (See 362.129.) Symbols
may be used to describe such additions and betterments.
18 CFR 362.133 Subschedule M.
(a) On B. V. Form No. 588, subschedule M ( 362.300) there shall be
reported the changes in the physical property that is owned and ''held
for purposes other than those of a common carrier,'' including the
additions to, and improvements of such property during the period and
the sales, transfers, abandonments, or other dispositions made of such
property or any part of it during the same interval.
(b) The information reported shall be as prescribed by subschedule M
and shall be grouped as may be appropriate under the following headings
that shall be inserted upon the form:
(1) Unimproved noncarrier lands.
(2) Improved noncarrier lands.
(3) Noncarrier improvements upon land which is classified as devoted
to common-carrier purposes.
(4) Noncarrier improvements upon lands belonging to others.
(5) Assessments for public improvements applicable to noncarrier
lands shall be reported by lump sums for each year.
18 CFR 362.200 List of units for use of carriers in the preparation of
Completion Reports and the Record of Property Changes.
(a) Order of Commission. (1) Valuation Order No. 3 Second Revised
Issue, prescribing the regulations and instructions to govern the
recording and reporting of all extensions and improvements or other
changes in physical property of every common carrier subject to the
Interstate Commerce Act, provides in section 17, ( 362.18) that such
carrier shall record on Completion Reports the details of each change
affecting roadway property and equipment turned over to, or retired
from, operation and of common carrier property, transferred from one
owner to another; section 18, ( 362.19) provides that such carriers all
establish a Record of Property Changes to which shall be transcribed
from the Completion Reports a record of the changes which affect the
property embraced in each valuation section.
(2) Supplement No. 5 to Valuation Order No. 3, Second Revised
Issue, provides that carriers shall report to the Commission on B. V.
Form 588 ( 362.300) the changes that have been made in the physical
property since the date fixed for the basic inventory of the property or
since the date of any such previous report.
(3) For the purpose of establishing a uniform manner of recording and
reporting such details: It is ordered, That:
(i) Each and every such carrier and each and every such receiver or
operating trustee of any such carrier, be, and is hereby required, to
record such changes in property subsequent to December 31, 1932, in
accordance with the list of property units attached hereto and made a
part hereof.
(ii) Each and every carrier of the class described and referred to
herein and each and every receiver or operating trustee of any such
carrier whose Completion Reports, Record of Property Changes, or reports
on B. V. Form 588 ( 362.300), have not been prepared for a given year
or period as of the effective date of this order may prepare such
records and reports in accordance with this list of property units.
(b) Explanation. (1) The units referred to herein are those
prescribed for use of carriers in the preparation of Completion Reports,
and also for the Record of Property Changes, and B. V. Form 588-R (
362.300) except as otherwise noted.
(2) The items and units listed are to be considered as merely
representative and not as excluding from any account necessary analogous
items which are omitted from the list. Where additional units are
desired in a given account, appropriate designations may be selected,
preferably from the lists in other accounts.
(3) If type symbol designations are used as descriptive of the
character and size of items, complete and detail description of what
comprises each type shall be prepared, shall be filed with and be
subject to the approval of the Commission.
(4) In the following list of units, the phrases shown in the
parentheses after each item are indicative of the descriptive
information required and the subdivision by classes for each item.
(5) All fixed property must be reported by definite location. Where
necessary to supplement descriptions, reference to available plans and
specifications should be shown on Completion Report.
(6) Materials salvaged from property retired when reused shall be
designated as ''second hand.'' Parts of a structure left in place and
reused in connection with property retired and replaced shall be
designated as ''reused.''
(c) List of units by account numbers.
Account 1. Engineering (No units are required for this account.)
Account 2. Land for Transportation Purposes
Account 3. Grading
See accounts 6 and 26.
Account 5. Tunnels and Subways
Account 6. Bridges, Trestles, and Culverts
Account 7. Elevated Structures
See account 6.
Account 8. Ties
Account 9. Rails
Account 10. Other Track Material
Account 11. Ballast
Account 12. Tracklaying and Surfacing
Account 13. Fences, Snowsheds, and Signs
Account 16. Station and Office Buildings
Account 17. Roadway Buildings
Account 18. Water Stations
Account 19. Fuel Stations
Account 20. Shops and Engine Houses
Account 21. Grain Elevators
Account 22. Storage Warehouses
Account 23. Wharves and Docks
Account 24. Coal and Ore Wharves
Account 26. Communications Systems
Account 27. Signals and Interlockers
Account 29. Power Plants
Account 31. Power-Transmission Systems
Account 35. Miscellaneous Structures
Account 37. Roadway Machines
Account 38. Roadway Small Tools
Account 39. Public Improvements; Construction
Account 40. Revenues and Operating Expenses During Construction
Account 42. Reconstruction of Road Property Acquired
Account 43. Other Expenditures; Road
Account 44. Shop Machinery
Account 45. Power-Plant Machinery
Account 51. Steam Locomotives
Account 52. Other Locomotives
Account 53. Freight-Train Cars
Account 54. Passenger-Train Cars
Account 56. Floating Equipment
Account 57. Work Equipment
Account 58. Miscellaneous Equipment
Accounts 71, 72, 73, 74, 75, 76, 77.
Note: Under these accounts there shall be recorded descriptive
details which shall clearly set forth the character and the nature of
the items and in such particulars as to distinguish as between payments
for service, for supplies consumed, and for inventoriable property.
With respect to items falling within the last-named class appropriate
unit designations shall be selected from the items shown under other
accounts.
When items of general expenditures have been included in any road or
equipment accounts as part of the cost of any specific property, such
items shall be separately stated and the nature appropriately described.
18 CFR 362.300 List of forms.
Exhibit A -- Authority for Expenditure.
Exhibit A-1 -- Detailed Estimate.
Exhibit B -- Register of Authorities for Expenditure.
Exhibit C -- Roadway Completion Report.
Exhibit C-1 -- Roadway Completion Report.
Exhibit D -- Completion Report of Changes made in equipment for six
months.
Exhibit E -- Record of Property Changes.
B. V. Form No. 586 -- Report of roadway completion reports covering
changes for six months.
B. V. Form No. 587 -- List of equipment completion reports covering
changes for six months.
B. V. Form 588, Subschedule B (revised) -- Equipment changes.
B. V. Form 588, Subschedule L (revised) -- Statement showing changes
in lands owned or used for the purpose of a common carrier.
B. V. Form 588, Subschedule M (revised) -- Statement showing changes
in physical property of owning company held for purposes other than
those of a common carrer.
B. V. Form 588, Subschedule N (revised) -- Statement showing changes
in leases.
B. V. Form 588-R -- Statement showing property changes for a certain
period.
B. V. Form No. 589 -- Annual statement of charges and credits to the
investment account for property brought into or retired from operation
in a State.
18 CFR 362.300 SUBCHAPTER T -- REGULATIONS UNDER SECTION 32 OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
18 CFR 362.300 PART 365 -- FILING REQUIREMENTS AND MINISTERIAL
PROCEDURES FOR PERSONS SEEKING EXEMPT WHOLESALE GENERATOR STATUS
Sec.
365.1 Purpose.
365.2 Definitions.
365.3 Contents of application and procedure for filing.
365.4 Effect of filing.
365.5 Commission action.
365.6 Notification of Commission action to the Securities and
Exchange Commission.
365.7 Procedure for notifying Commission of material change in facts.
Authority: Pub. L. 102-486, 106 Stat. 2776 (15 U.S.C. 79).
Source: Order 550, 58 FR 8906, Feb. 18, 1993, unless otherwise
noted.
18 CFR 365.1 Purpose.
The purpose of part 365 is to implement section 32 of the Public
Utility Holding Company Act of 1935, as added by section 711 of the
Energy Policy Act of 1992.
18 CFR 365.2 Definitions.
(a) For the purpose of this part terms will have the same meaning as
defined in the Public Utility Holding Company Act of 1935, as amended by
the Energy Policy Act of 1992, except as provided in paragraph (b) of
this section.
(b) For the purpose of this part:
(1) Commission means the Federal Energy Regulatory Commission; and
(2) Receipt of an application means the date that the Commission
receives the application and the applicable filing fee, if any; and
(3) Affected State commission means the State commission of each
state in which a generating facility owned and/or operated by the
applicant is located; each State commission regulating the retail rates
of an electric utility that will purchase power from the applicant, if
known at the time of application; and, each State commission regulating
a retail utility that is affiliated with the applicant.
18 CFR 365.3 Contents of application and procedure for filing.
(a) A person seeking status as an exempt wholesale generator
(applicant) must file with the Commission, and serve on the Securities
and Exchange Commission and any affected State commission, the
following:
(1) A sworn statement, by a representative legally authorized to bind
the applicant, attesting to any facts or representations presented to
demonstrate eligibility for EWG status, including:
(i) A representation that the applicant is engaged directly, or
indirectly through one or more affiliates, and exclusively in the
business of owning or operating, or both owning and operating, all or
part of one or more eligible facilities and selling electric energy at
wholesale; and
(ii) Any exceptions for foreign sales of power at retail.
(2) A brief description of the facility or facilities which are or
will be eligible facilities owned and/or operated by the applicant
including:
(i) The related transmission interconnection components;
(ii) Any lease arrangements involving the facilities and public
utility companies; and
(iii) Any electric utility company that is an affiliate company or
associate company of the applicant.
(b) If a rate or charge for, or in connection with, the construction
of a facility described in paragraph (a)(2) of this section, or for
electric energy produced by a facility described in paragraph (a)(2) of
this section (other than any portion of a rate or charge which
represents recovery of the cost of a wholesale rate or charge), was in
effect under the laws of any State on October 24, 1992, or if any
portion of a facility described in paragraph (a)(2) of this section is
owned or operated by an electric utility company that is an affiliate or
associate company of the applicant, the applicant must also file a copy
of a specific determination from every State commission having
jurisdiction over any such rate or charge, or if the rate or charge is a
rate or charge of an affiliate of a registered holding company, a
specific determination from every State commission having jurisdiction
over the retail rates and charges of the affiliates of the registered
holding company, that allowing the facility to be an eligible facility:
(1) Will benefit consumers,
(2) Is in the public interest, and
(3) Does not violate State law.
(c) Applications for exempt wholesale generator status must also
include a copy of a notice of the application suitable for publication
in the Federal Register. The notice must state the applicant's name,
the date of the application, and a brief description of the applicant
and the facility or facilities which are or will be eligible facilities
owned and/or operated by the applicant. The applicant must also submit
a copy of its notice on a 3 1/2'' diskette in ASCII format. Each
diskette must be clearly marked with the name of the applicant and the
words ''notice of filing.'' The notice must be in the following form:
(Name of Applicant)
Docket No. EG-
On (date application was filed), (name and address of applicant)
filed with the Federal Energy Regulatory Commission an application for
determination of exempt wholesale generator status pursuant to part 365
of the Commission's regulations.
(Brief description of the applicant and the facility or facilities
which are or will be eligible facilities owned and/or operated by the
applicant, including reference and citation to any applicable State
commission determinations.)
Any person desiring to be heard concerning the application for exempt
wholesale generator status should file a motion to intervene or comments
with the Federal Energy Regulatory Commission, 825 North Capitol Street,
NE., Washington, DC 20426, in accordance with 385.211 and 385.214 of
the Commission's Rules of Practice and Procedure. The Commission will
limit its consideration of comments to those that concern the adequacy
or accuracy of the application. All such motions and comments should be
filed on or before XXXX and must be served on the applicant. Any person
wishing to become a party must file a motion to intervene. Copies of
this filing are on file with the Commission and are available for public
inspection.
18 CFR 365.4 Effect of Filing.
A person applying in good faith for a Commission determination of
exempt wholesale generator status will be deemed to be an exempt
wholesale generator from the date of receipt of the application until
the date of Commission action pursuant to 365.5.
18 CFR 365.5 Commission action.
If the Commission has not issued an order granting or denying an
application within 60 days of receipt of the application, the
application will be deemed to have been granted.
18 CFR 365.6 Notification of Commission action to the Securities and
Exchange Commission.
The Secretary of the Commission will notify the Securities and
Exchange Commission whenever a person is determined to be an exempt
wholesale generator.
18 CFR 365.7 Procedure for notifying Commission of material change in
facts.
If there is any material change in facts that may effect an EWG's
eligibility for EWG status under section 32 of the Public Utility
Holding Company Act of 1935, the EWG must within 60 days: apply for a
new determination of EWG status; file a written explanation of why the
material change in facts does not affect the EWG's status; or notify
the Commission that it no longer seeks to maintain EWG status.
18 CFR 365.7 SUBCHAPTER W -- REVISED GENERAL RULES
18 CFR 365.7 PART 375 -- THE COMMISSION
18 CFR 365.7 Subpart A -- General Provisions
Sec.
375.101 The Commission.
375.102 Custody and authentication of Commission records.
375.103 Official seal.
375.104 Transfer of proceedings from other agencies to the
Commission.
375.105 Filings.
18 CFR 365.7 Subpart B -- Procedures Under the Government in the
Sunshine Act
375.201 Purpose.
375.202 Definitions and limitations on definitions.
375.203 Open meetings.
375.204 Notice of meetings.
375.205 Closed meetings.
375.206 Procedures to close meetings.
18 CFR 365.7 Subpart C -- Delegations
375.301 Purpose and subdelegations.
375.302 Delegations to the Secretary.
375.303 Delegations to the Chief Accountant.
375.304 Delegations to the Chief Administrative Law Judge.
375.305 Delegations to the Solicitor.
375.306 Delegations to the Oil Pipeline Board.
375.307 Delegation to the Director of the Office of Pipelines and
Producer Regulation.
375.308 Delegations to the Director of the Office of Electric Power
Regulation.
375.309 Delegations to the General Counsel.
375.310 (Reserved)
375.311 Delegations during emergency conditions.
375.312 Delegations to the Director of the Division of Public
Information.
375.313 Delegations to the Executive Director.
375.314 Delegations to the Director of the Office of Hydropower
Licensing.
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-828r, 791a note, 2601-2645; 42 U.S.C. 7101-7532.
Source: 45 FR 21217, Apr. 1, 1980, unless otherwise noted.
18 CFR 365.7 Subpart A -- General Provisions
18 CFR 375.101 The Commission.
(a) Establishment. The Federal Energy Regulatory Commission is an
independent regulatory commission within the Department of Energy
established by section 401 of the DOE Act.
(b) Offices. The principal office of the Commission is at 825 North
Capitol Street, NE., Washington, D.C. 20426. Regional offices are
maintained at Atlanta, Ga., Chicago, Ill., Fort Worth, Texas, New York,
N.Y., and San Francisco, Calif.
(c) Hours. Unless the Chairman otherwise directs, the offices of the
Commission are open each day, except Saturdays, Sundays, and Holidays,
from 8:30 a.m. to 5:00 p.m.
(d) Sessions. The Commission may meet and exercise its powers at any
place in the United States. The time and place of meetings of the
Commission are announced in advance as provided in 375.204.
(e) Quorum. A quorum for the transaction of business consists of at
least three members present.
(f) Action by Commissioners or representatives. The Commission may,
by one or more of its members or by such agents as it may designate,
conduct any hearing, or other inquiry necessary or appropriate to its
functions, except that nothing in this paragraph supercedes the
provisions of section 556, of Title 5, United States Code relating to
Administrative Law Judges.
18 CFR 375.102 Custody and authentication of Commission records.
(a) Custody of official records. (1) The Secretary shall have
custody of the Commission's seal, the minutes of all action taken by the
Commission, the transcripts, electronic recordings, or minutes of
meetings closed to public observation, its rules and regulations, and
its administrative orders.
(2) The Executive Director shall have custody of records of the
Commission except records designated in paragraph (a)(1) of this
section.
(b) Authentication of Commission action. All orders and other
actions of the Commission shall be authenticated or signed by the
Secretary or the Secretary's designee.
18 CFR 375.103 Official seal.
The Commission hereby prescribes as its official seal, judicial
notice of which shall be taken pursuant to section 401(e) of the DOE
Act, the imprint illustrated below and described as follows:
A circle, the outside border of which shall consist of two concentric
circles enclosing the words ''Department of Energy'' and ''Federal
Energy Regulatory Commission.'' Within the inner circle shall appear a
stylized eagle with head facing to its right. Its body shall be in the
shape of a tapered shield, widest at the top, consisting of nine
vertical stripes. The top of the shield contains five equally-spaced
light color stars representing the five members of the Commission
appointed by the President under Title IV of the DOE Act. Identical
stylized wings appear on either side of the shield, each incorporating
twenty stylized feathers protruding from a solid color wing-like shape.
Below the eagle shall appear five squares, arranged in a horizontal
line. Each of these squares shall contain a circle representing an area
of the Commission's responsibility. The first square at the left of the
line shall include a stylized representation of a pipeline; the second
square shall represent a hydroelectric power facility; the third, and
center square, shall represent a natural gas flame; the fourth square
shall represent a drilling rig; the fifth square shall represent a
stylized lightning bolt.
18 CFR 375.104 Transfer of proceedings from other agencies to the
Commission.
(a) Transfer of pending proceedings. Pursuant to the authorization
provided in section 705(b)(2), and the provisions of section 705(b)(1)
of the DOE Act, all proceedings and applications pending at the time
such Act took effect, before any department, agency, commission, or
component thereof, the functions of which have been transferred to the
Commission by the Act, have been transferred in accordance with the
joint regulations issued by the Commission and the Secretary of Energy
on October 1, 1977. Those joint regulations appear as an appendix to
this section.
(b) Substitution of Commission for other agencies in court
proceedings. Pursuant to section 705(e) of the DOE Act, the Commission
authorizes the Solicitor of the Commission to file the appropriate
pleadings to substitute the Commission for the Interstate Commerce
Commission or the Federal Power Commission as necessary in any pending
court litigation, responsibility for which is transferred to the
Commission.
1000.1 Transfer of proceedings.
(a) Scope. This part establishes the transfer of proceedings pending
with regard to those functions of various agencies which have been
consolidated in the Department of Energy and identifies those
proceedings which are transferred into the jurisdiction of the Secretary
and those which are transferred into the jurisdiction of the Federal
Energy Regulatory Commission.
(b) Proceedings transferred to the Secretary. The following
proceedings are transferred to the Secretary:
(1) All Notices of Proposed Rulemaking, pending and outstanding,
which have been proposed by the Department of Energy;
(2) All Notices of Inquiry which have been issued by the Department
of Energy;
(3) All Requests for Interpretations which have been filed pursuant
to 10 CFR part 205, subpart F, and on which no interpretation has been
issued, with the Office of General Counsel of the Department of Energy;
(4) All Applications for Exception Relief which have been filed
pursuant to 10 CFR part 205, subpart D, and on which no final decision
and order has been issued, with the Office of Exceptions and Appeals of
the Department of Energy;
(5) All petitions for special redress, relief or other extraordinary
assistance which have been filed pursuant to 10 CFR part 205, subpart R,
and on which no order has been issued, with the Office of Private
Grievances and Redress of the Department of Energy;
(6) All appeals from Remedial Orders, Exception Decisions and Orders,
Interpretations issued by the Office of General Counsel, and other
agency orders which have been filed pursuant to 10 CFR part 205, subpart
H, and on which no order has been issued prior to October 1, 1977, with
the Office of Exceptions and Appeals of the Department of Energy;
(7) All applications for modification or rescission of any DOE order
or interpretation which have been filed pursuant to 10 CFR part 205,
subpart J, and on which no order has been issued prior to October 1,
1977, with the Office of Exceptions and Appeals of the Federal Energy
Administration;
Note: For a document relating to procedures for natural gas import
and export proceedings see 42 FR 61856, Dec. 7, 1977.
(8) All applications for temporary stays and stays which have been
filed pursuant to 10 CFR part 205, subpart I, and on which no order has
been issued, with the Office of Exceptions and Appeals of the Department
of Energy;
(9) All applications which have been filed with the Office of
Regulatory Programs of the Department of Energy and on which no final
order has been issued;
(10) All investigations which have been instituted and have not been
resolved by the Office of Compliance of the Department of Energy;
(11) All Notices of Probable Violation which have been issued prior
to October 1, 1977, by the Office of Compliance of Department of Energy;
(12) All Notices of Proposed Disallowance which have been issued
prior to October 1, 1977, by the Office of Compliance of Department of
Energy;
(13) All Prohibition Orders which have been issued pursuant to 10 CFR
part 303 and as to which no Notice of Effectiveness has been issued;
(14) From the Department of the Interior:
(i) The tentative power rate adjustments for the Central Valley
Project, California, proposed on September 12, 1977 (42 FR 46619,
September 16, 1977).
(15) From the Interstate Commerce Commission:
(i) Ex Parte No. 308 (Sub-No. 1) -- Investigation of Common Carrier
Pipelines.
(16) From the Federal Power Commission:
(i) Cases:
(A) Northwest Pipeline Corporation, Docket No. CP75-340.
(B) Midwestern Gas Transmission Co., Docket NO. CP77-458, et al.
(C) St. Lawrence Gas Company, Docket No. G-17500.
(D) U.S.D.I. Bonneville Power Administration, Docket No. E-9563.
(E) U.S.D.I. Southwestern Power Administration, Docket No. E-7201.
(F) U.S.D.I. Southeastern Power Administration, Docket No. E-6957.
(G) Tenneco InterAmerica, Inc., Docket No. CP77-561.
(ii) Applications:
(A) Maine Public Service Co., Docket No. E-6751, (ERA Docket No.
IE-78-1).
(B) Northern States Power Co., Docket No. E-9589, (ERA Docket No.
IE-78-2).
(C) Arizona Public Service Co., Docket No. IT-5331, (ERA Docket No.
IE-78-3).
(D) Niagara Mohawk Power Corp., Docket No. E-7022, (ERA Docket No.
IE-77-6).
(E) Maine Public Service Co., Docket No. IT-6027, (ERA Docket No.
PP-12).
(F) Boise Cascade, Docket No. E-7765, (ERA Docket No. PP-52).
(G) Bonneville Power Administration, Docket No. IT-5959, (ERA Docket
No. PP-10).
(H) EPR -- Oregon (Geothermal Steam Leases).
(I) EPR -- Utah (Geothermal Steam Leases).
(J) EPR -- Idaho (Geothermal Steam Leases).
(K) EPR -- Oregon (Geothermal Steam Leases).
(L) EPR -- Idaho (Geothermal Steam Leases).
(iii) Rulemakings:
(A) Implementation of sections 382(b) and 382(c) of the Energy Policy
and Conservation Act of 1971. Docket No. RM77-3.
(B) Naw Form Nos:
151, Docket No. RM76-19.
153, Docket No. RM76-27.
154, Docket No. RM36-33.
156, Docket No. RM76-32.
157, Docket No. RM76-21.
158, Docket No. RM76-31.
159, Docket No. RM76-23.
160, Docket No. RM76-20.
161, Docket No. RM76-26.
162, Docket No. RM76-34.
155, Docket No. RM76-28.
163, Docket No. RM76-30.
164, Docket No. RM76-25.
(C) Procedures for the Filing of Federal Rate Schedules Docket No.
RM77-9.
(iv) Project withdrawals and power site revocations:
(A) Project 1021, 1226, 1606, and 1772 -- (Wyoming) -- U.S. Forest
Service (Applicant).
(B) Project Nos. 1021, 1226, 1606, and 1772 -- (Wyoming) -- U.S.
Forest Service (Applicant).
(C) Project Nos. 220 and 691 -- (Wyoming) -- Cliff Gold Mining Co.
(Applicant for P-691) The Colowyo Gold Mining Co. (Applicant for
P-220).
(D) Project No. 1203 -- (Wyoming) -- F. D. Foster (Applicant).
(E) Project No. 1241 -- (Wyoming) -- F. B. Hommel (Applicant).
(F) Project No. 847 -- (Oregon) -- H. L. Vorse (Applicant).
(G) Project No. 907 -- (Colorado) -- S. B. Collins (Applicant).
(H) Project No. 941 -- (Colorado) -- Marian Mining Company
(Applicant).
(I) Project Nos. 347 and 418 -- (Colorado) -- Jones Brothers
(Applicant for P-347) Frank Gay et al. (Applicant for P-418).
(J) Project Nos. 373, 521, 937, 1024, 1415, 1546, 1547, and 1025 --
( ) -- U.S. Forest (Applicant).
(K) Project No. 163 -- (Colorado) -- James F. Meyser and Edward E.
Drach (Applicants).
(L) Project Nos. 385, 445, 506, 519, 1220, 1296, 1418, 1519, 1576,
1615, 1616, 1618, 1678, 1682, and 1750 -- (Colorado) -- U.S. Forest
Service (Applicant).
(M) DA-117 -- (Alaska) -- Bureau of Land Management (Applicant).
(N) Project No. 114 -- (Alaska) -- Elizabeth H. Graff et al.
(Applicant).
(O) DA-222 -- (Washington) -- Bureau of Land Management (Applicant).
(P) DA-562 -- (Oregon) -- U.S. Geological Survey (Applicant).
(Q) DA-601 -- (Idaho) -- Bureau of Land Management (Applicant).
(R) DA-509 -- (Colorado) -- Fed. Highway Admin. (Applicant).
(S) DA-616 -- (Idaho) -- U.S. Forest Service (Applicant).
(T) DA-1 -- (South Carolina) -- U.S. Forest Service (Applicant).
(U) DA-1116 -- (California) -- U.S. Geological Survey (Applicant).
(V) DA-154 -- (Arizona) -- U.S. Geological Survey (Applicant).
(W) DA-1098 -- (California) -- Merced Irrigation District
(Applicant).
(c) Proceedings transferred to the Commission. There are hereby
transferred to the jurisdiction of the Federal Energy Regulatory
Commission the following proceedings:
(1) From the Interstate Commerce Commission:
(i) Ex Parte No. 308 -- Valuation of Common Carrier Pipelines.
(ii) I&S 9164 -- Trans Alaska Pipeline System -- Rate Filings
(including I&S 9164 (Sub-No. 1), NOR 36611, NOR 36611 (Sub-No. 1). NOR
36611 (Sub-No. 2), NOR 36611 (Sub-No. 3), NOR 36611 (Sub-No. 4)).
(iii) I&S 9089 -- General Increase, December 1975, Williams Pipeline
Company.
(iv) I&S 9128 -- Anhydrous Ammonia, Gulf Central Pipeline Company.
(v) NOR 35533 (Sub-No. 3) -- Petroleum Products, Southwest & Midwest
Williams Pipeline.
(vi) NOR 35794 -- Northville Dock Pipeline Corp. et al.
(vii) NOR 35895 -- Inexco Oil Company v. Belle Fourche Pipeline Co.
et al.
(viii) NOR 36217 -- Department of Defense v. Interstate Storage &
Pipeline Corp.
(ix) NOR 36423 -- Petroleum Products Southwest to Midwest Points.
(x) NOR 36520 -- Williams Pipeline Company -- Petroleum Products
Midwest.
(xi) NOR 36553 -- Kerr-McGee Refining Corporation v. Texoma Pipeline
Co.
(xii) Suspension Docket 67124 -- Williams Pipeline Co. -- General
Increase.
(xiii) Valuation Docket 1423 -- Williams Pipeline Company (1971-1974
inclusive).
(2) To remain with the Commission until forwarding to the Secretary:
The following proceedings will continue in effect under the
jurisdiction of the Commission until the timely filing of all briefs on
and opposing exceptions to the initial decision of the presiding
Administrative Law Judge, at which time the Commission shall forward the
record of the proceeding to the Secretary for decision on those matters
within his jurisdiction:
(i) El Paso Eastern Co., et al., Docket No. CP 77-330, et al.
(ii) Tenneco Atlantic Pipeline Co., et al., Docket No. CP 77-100, et
al.
(iii) Distrigas of Massachusetts Corp., et al., Docket No. CP
70-196, et al.
(iv) Distrigas of Massachusetts Corp., et al., Docket No. CP 77-216,
et al.
(v) Eascogas LNG, Inc., et al., Docket No. CP 73-47, et al.
(vi) Pacific Indonesia LNG Co., et al., Docket No. CP74-160, et al.,
(except as provided in paragraph (c)(3) of this section).
(3) The Amendment to Application of Western LNG Terminal Associates,
filed on November 11, 1977, in Pacific Indonesia LNG Co., et al., FPC
Docket No. CP74-160, et al., ERA Docket No. 77-001-LNG, is transferred
to the jurisdiction of the Commission until timely filing of all briefs
on and opposing exceptions to the Initial Decision of the presiding
Administrative Law Judge on that Amendment, at which time the Commission
shall forward a copy of the record of that proceeding to the Secretary
of Energy for decision on those matters within his jurisdiction. (If
the Commission waives the preparation of an initial decision, the
Commission will forward a copy of the record after completion of the
hearing, or after the timely filing of any briefs submitted to the
Commission, whichever occurs later.)
(d) Residual clause. All proceedings (other than proceedings
described in paragraphs (b) and (c) of this section) pending with regard
to any function of the Department of Energy, the Department of Energy,
Department of the Interior, the Department of Commerce, the Department
of Housing and Urban Development, the Department of Navy, and the Naval
Reactor and Military Applications Programs which is transferred to the
Department of Energy (DOE) by the DOE Organization Act, will be
conducted by the Secretary. All proceedings (other than proceedings
described in paragraphs (b) and (c) of this section) before the Federal
Power Commission or Interstate Commerce Commission will be conducted by
the Federal Energy Regulatory Commission.
(Department of Energy Organization Act, Pub. L. 95-91; EO 12009, 42
FR 46267)
(42 FR 55534, Oct. 17, 1977, as amended at 43 FR 21434, May 18, 1978;
43 FR 21658, May 19, 1978)
18 CFR 375.105 Filings.
(a) Filings in pending proceedings. All filings in proceedings
referred to in 375.104 shall be made with the Secretary.
(b) Filings in connection with functions transferred to the
Commission. All persons required to file periodic or other reports with
any agency or commission whose functions are transferred under such Act
to the Commission shall file such reports which relate to those
transferred functions with the Secretary. The Commission hereby
continues in effect all previously-approved forms for making periodic or
other reports.
(c) Where to make filings. All filings of documents with the
Commission shall be made with the Secretary. The address for filings to
be made with the Secretary is: Secretary, Federal Energy Regulatory
Commission, 825 N. Capitol St., NE., Washington, DC 20426. Where a
document to be filed with the Secretary is hand-delivered, it shall be
submitted to Room 3110, 825 North Capitol Street, NE., Washington, DC
20426. Documents received after regular business hours are deemed to
have been filed on the next regular business day.
18 CFR 375.105 Subpart B -- Procedures Under the Government in the Sunshine Act
18 CFR 375.201 Purpose.
The purpose of this subpart is to set forth the Commission procedures
for conduct of its official business in accordance with the provisions
of 5 U.S.C. 552b. The Commission may waive the provisions set forth in
this subpart to the extent authorized by law.
18 CFR 375.202 Definitions and limitations on definitions.
(a) Definitions. For purposes of this subpart:
(1) Meeting means the deliberations of at least a quorum of the
Commission where such deliberations determine or result in the joint
conduct of official Commission business, except that such term does not
include deliberations to determine whether to conduct a closed meeting.
(2) Portion of a meeting means the consideration during a meeting of
a particular topic or item separately identified in the notice of
Commission meeting described in 375.204.
(3) Open when used in the context of a Commission meeting or a
portion thereof, means the public may attend and observe the
deliberations of the Commission during such meeting or portion of a
meeting consistent with the provisions of 375.203.
(4) Closed when used in the context of a Commission meeting or a
portion thereof, means that the public may not attend or observe the
deliberations of the Commission during such meeting or portion of such
meeting.
(b) Limitations on other definitions in this chapter. For purposes
of this subpart:
(1) Transcripts, minutes and electronic recordings of Commission
meetings (whether or not prepared at the direction of the Commission)
are not part of the ''formal record'' as defined in 388.101(c) of this
chapter; and
(2) Transcripts, minutes and electronic recordings of Commission
meetings (whether or not prepared at the direction of the Commission)
are not part of the ''public record'' of the Commission as defined in
388.105(b)) of this chapter.
(45 FR 21217, Apr. 1, 1980, as amended by Order 225, 47 FR 19058, May
3, 1982)
18 CFR 375.203 Open meetings.
(a) General rule. Except as provided in 375.206, meetings of the
Commission will be open meetings.
(b) Public participation in open meetings. (1) Members of the public
are invited to listen and observe at open meetings.
(2)(i) Subject to the provisions of paragraphs (b)(2) (ii), (iii),
and (iv) of this section, members of the public may record discussions
at Commission meetings by means of electronic or other devices
(including tape recorders, stenotype, stenomask, or shorthand). The
photographing of Commission meetings by still or movie camera, or by
video taping without lighting aids, is permitted.
(ii) Due to the limited space of the Commission meeting room, use of
recording or photographic equipment which would require the user to move
about the room during the meeting is not allowed. Recording and
photographic equipment may be set up and used only in the public areas
of the Commission meeting room as designated by the Commission.
(iii) Except for portable equipment which is used at an individual's
seat in the audience, equipment must be in place and ready to use prior
to the start of the meeting or set up during a recess of the meeting.
Such equipment may be removed only at the conclusion of the meeting or
during a recess. A pre-arranged recess for the set up or removal of
equipment may be requested through the Commission's Director of the
Division of Public Information.
(iv) No microphones may be placed on the tables used by the
Commissioners and Staff.
(c) Physical arrangements. The Secretary shall be responsible for
seeing that ample space, sufficient visibility, and adequate acoustics
are provided for public observation of open meetings.
18 CFR 375.204 Notice of meetings.
(a) Public announcements of meetings -- (1) General rule. Except to
the extent that information described in 375.205(a) (involving closed
meetings) is exempt from disclosure, the Secretary shall announce at
least one week before each Commission meeting, the time, place, and
subject matter of the meeting, whether it is an open meeting or closed
meeting, and the name and telephone number of the official designated by
the Commission to respond to requests for information about the meeting.
(2) Abbreviated notice. If the Commission determines by a majority
of its members by a recorded vote that Commission business requires that
a Commission meeting be called with less than one week's notice as
prescribed in paragraph (a)(1) of this section, the Secretary shall make
public announcements of the time, place, and subject matter of such
meeting and whether open or closed to the public, at the earliest
practicable time.
(3) Change in the time or place. If there is a change in time or
place of a meeting following the public announcement prescribed in
paragraph (a)(1) or (2) of this section the Secretary shall publicly
announce such change at the earliest practicable time.
(4) Change in the subject matter or the determination to open or
close a meeting. The subject matter of a meeting, or the determination
of the Commission to open or close a meeting or a portion of a meeting,
may be changed following the public announcement prescribed in paragraph
(a) (1) or (2) of this section only if:
(i) The Commission determines by a recorded vote by a majority of the
membership that Commission business so requires and that no earlier
announcement of the change is possible; and
(ii) The Secretary publicly announces such change and the vote of
each member upon such change at the earliest practicable time.
(b) Stricken items. Notwithstanding the provisions of paragraph (a)
of this section, individual items that have been announced for
consideration at Commission meetings may be deleted without vote or
notice.
(c) Definitions. For the purpose of this section, earliest
practicable time, means as soon as practicable, which should in few, if
any, instances be later than the commencement of the meeting or portion
of the meeting in question.
(d) Informing public of meeting announcements. (1) The Secretary
shall use reasonable means to assure that the public is fully informed
of the public announcements required by this section. For example, such
announcements may be posted on the Commission's public notice boards,
published in official Commission publications, or sent to the persons on
a mailing list maintained for those who want to receive such material.
(2) Immediately following each public announcement required by this
section, notice of the time, place, and subject matter of a meeting,
whether the meeting is open or closed, any change in a preceding
announcement, and the name and telephone number of the official
designated by the Commission to respond to requests for information
about the meeting shall also be submitted by the Secretary for
publication in the Federal Register.
(e) Issuance of list of Commission actions. Following each
Commission meeting, the Secretary shall issue a list of Commission
actions taken which shall become effective as of the date of issuance of
the related order (or date designated therein) or other document, which
the Secretary shall issue in due course, in the manner prescribed by the
Commission.
18 CFR 375.205 Closed meetings.
(a) Meetings will be closed to public observation where the
Commission properly determines, according to the procedures set forth in
375.206, that such meeting or portion of the meeting or disclosure of
information to be considered at the meeting is likely to:
(1) Disclose matters that are (i) specifically authorized under
criteria established by an Executive order to be kept secret in the
interests of national defense or foreign policy and are (ii) in fact
properly classified pursuant to such Executive order;
(2) Relate solely to the internal personnel rules and practices of
the Commission;
(3) Disclose matters specifically exempted from disclosure by statute
(other than 5 U.S.C. 552): Provided, That such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Disclose the trade secrets and commerical or financial
information obtained from a person and privileged or confidential, which
may include geological or geophysical information and data, including
maps, concerning wells;
(5) Involve accusing any person of a crime, or formally censuring any
person;
(6) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy, including
personnel and medical files and similar files;
(7) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would:
(i) Interfere with enforcement proceedings;
(ii) Deprive a person of a right to a fair trial or an impartial
adjudication;
(iii) Constitute an unwarranted invasion of personal privacy;
(iv) Disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source;
(v) Disclose investigative techniques and procedures, or;
(vi) Endanger the life or physical safety of law enforcement
personnel.
(8) Disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of an agency responsible for the regulation or supervision of
financial institutions;
(9) Disclose information the premature disclosure of which would be:
(i) In the case of an agency which regulates currencies, securities,
commodities, or financial institutions, likely to:
(A) Lead to significant financial speculation in currencies,
securities, or commodities, or
(B) Significantly endanger the stability of any financial
institution; or
(ii) Likely to frustrate significantly implementation of a proposed
Commission action, except that paragraph (a)(9)(i) of this section shall
not apply where the Commission has already disclosed to the public the
content or nature of such proposed action, or where the Commission is
required by law to make such disclosure on its own initiative prior to
taking final agency action on such proposal; or
(10) Specifically concern the Commission's issuance of a subpoena, or
the Commission's participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitration,
or the initiation, conduct, or disposition by the Commission of a
particular case:
(i) Of formal Commission adjudication pursuant to the procedures in 5
U.S.C. 554; or
(ii) Otherwise involving a determination on the record after
opportunity for a hearing.
(b) Commission meetings shall not be closed pursuant to paragraph (a)
of this section when the Commission finds that the public interest
requires that they be open.
18 CFR 375.206 Procedures to close meetings.
(a) General rule. A meeting or a portion of a meeting may be closed
only when the Commission votes by a majority of the membership to close
the meeting. A separate vote shall be taken with respect to each
Commission meeting or portion of a meeting which is proposed to be
closed to the public or with respect to any information which is
proposed to be withheld. A single vote may be taken with respect to a
series of meetings, a portion or portions of which are proposed to be
closed to the public, or with respect to any information concerning such
series of meetings, so long as each meeting in such series involves the
same particular matters and is scheduled to be held no more than thirty
days after the initial meeting in such series. The vote of each
Commission member participating in such vote shall be recorded and no
proxies shall be allowed.
(b) Request for closed meeting. Whenever any person whose interests
may be directly affected by a meeting or a portion of a meeting requests
that the Commission close such portion to the public for any of the
reasons referred to in paragraph (a) (5), (6), or (7) of 375.205, the
Commission, upon request of any one of its members, shall vote by
recorded vote whether to close such meeting.
(c) Release of vote. Within one day of any vote taken pursuant to
paragraph (a) or (b) of this section, the Secretary of the Commission
shall make publicly available a written copy of such vote reflecting the
vote of each member. If a portion of a meeting is to be closed to the
public, the Secretary shall, within one day of the vote taken pursuant
to paragraph (a) or (b) of this section, make publicly available a full
written explanation of the Commission's action closing the portion
together with a list of all persons expected to attend the meeting and
their affiliation. The information required by this paragraph shall be
disclosed except to the extent that it is exempt from disclosure under
the provisions of 375.205(a).
(d) Certification. Prior to a determination that a meeting should be
closed pursuant to paragraph (a) or (b) of this section, the General
Counsel of the Commission shall publicly certify that, in his opinion,
the meeting may be closed to the public and shall state each relevant
exemptive provision. A copy of such certification, together with a
statement from the presiding officer of the meeting setting forth the
time and place of the meeting, and the persons present, shall be
retained by the Secretary of the Commission as part of the transcript,
recording, or minutes required by paragraph (e) of this section.
(e) Transcripts, recordings, minutes. (1) The Secretary shall
maintain a complete transcript or electronic recording adequate to
record fully the proceedings of each meeting, or portion of a meeting,
closed to the public, except that in the case of a meeting, or portion
of a meeting, closed to the public pursuant to 375.205(a)(8), (9)(i),
or (10), the Secretary shall maintain either a transcript or recording,
or a set of minutes. Any such minutes shall fully and clearly describe
all matters discussed and shall provide a full and accurate summary of
any actions taken, and the reasons therefor, including a description of
each of the views expressed on any item and the record of any rollcall
vote (reflecting the vote of each member on the question). All agenda
documents considered in connection with any Commission action shall be
identified in such minutes.
(2) The Secretary shall maintain a complete verbatim copy of the
transcript, a complete copy of the minutes, or a complete electronic
recording of each meeting, or portion of a meeting, closed to the
public, for a period of at least two years after such meeting, or until
one year after the conclusion of any Commission proceeding with respect
to which the meeting or portion was held, whichever occurs later.
(f) Public availability of transcripts, records, minutes. (1) Within
a reasonable time after the adjournment of a meeting closed to the
public, the Commission shall make available to the public, in the
Division of Public Information of the Commission, Washington, DC, the
transcript, electronic recording, or minutes of the discussion of any
item on the agenda, or of any item of the testimony of any witness
received at the meeing, except for such item or items of such discussion
or testimony as the Director of Public Information determines may be
withheld under 375.204. Copies of such transcript, or minutes, or a
transcription of such recording shall be furnished to any person at the
actual cost of duplication or transcription.
(2) The determination of the Director of the Division of Public
Information to withhold information pursuant to paragraph (f)(1) of this
section may be appealed to the General Counsel or the General Counsel's
designee, in accordance with 388.107 of this chapter.
(45 FR 21217, Apr. 1, 1980, as amended at 52 FR 7825, Mar. 13, 1987)
18 CFR 375.206 Subpart C -- Delegations
18 CFR 375.301 Purpose and subdelegations.
(a) The purpose of this subpart is to set forth the authorities that
the Commission has delegated to staff officials. Any action by a staff
official under the authority of this subpart may be appealed to the
Commission in accordance with 385.1902 of this chapter.
(b) Where the Commission, in delegating functions to specified
Commission officials, permits an official to further delegate those
functions to a designee of such official, designee shall mean the deputy
of such offical, the head of a division, or a comparable official as
designated by the official to whom the direct delegation is made.
(c) For purposes of Subpart C, uncontested and in uncontested cases
mean that no motion to intervene, or notice of intervention, in
opposition to the pending matter made under 385.214 (intervention) has
been received by the Commission.
(Order 112, 45 FR 79025, Nov. 28, 1980, as amended by Order 225, 47
FR 19058, May 3, 1982; Order 492, 53 FR 16062, May 5, 1988)
18 CFR 375.302 Delegations to the Secretary.
The Commission authorizes the Secretary, or the Secretary's designee
to:
(a) Sign official general correspondence on behalf of the Commission,
except as otherwise provided in this section.
(b) Except as provided in 385.213 of this chapter, prescribe, for
good cause, a different time than that required by the Commission's
Rules of Practice and Procedure for filing by public utilities,
licensees, natural gas companies, and other persons of answers to
complaints, petitions, motions, and other documents. Absent a waiver,
no answers will be required to be filed by a party within less than ten
days after the date of service of the document.
(c) Schedule hearings and issue notices thereof.
(d) Accept for filing notices of intervention and petitions to
intervene by commissions and agencies of the States and the Federal
government.
(e) Pass upon motions to intervene before a presiding administrative
law judge is designated. If a presiding administrative law judge has
been designated, the provisions of 385.504(b)(12) of this chapter are
controlling.
(f) Deny motions for extensions of time (other than motions made
while a proceeding is pending before a presiding officer as defined in
385.102(e)), except that such motions may be granted in accordance with
385.2008 of this chapter.
(g) Reject any documents filed later than the time prescribed by an
order or rule of the Commission, except that such documents may be
accepted in accordance with 385.2008 of this chapter.
(h) Reject any documents filed that do not meet the requirements of
the Commission's rules which govern matters of form, except that such
documents may be accepted in accordance with 385.2001 of this chapter
for good cause shown.
(i) Waive requirements of the Commission's rules which govern matters
of form, when consistent with the public interest in a particular case.
(j) Pass upon, in contested proceedings, questions of extending time
for electric public utilities, licensees, natural gas companies, and
other persons to file required reports, data, and information and to do
other acts required to be done at or within a specific time by any rule,
regulation, license, permit, certificate, or order of the Commission.
(k) Accept service of process on behalf of the Commission.
(l) Accept for filing bonds or agreements and undertakings submitted
in rate suspension proceedings.
(m) Issue notices or orders instituting procedures to be followed
concerning contested audit issues under parts 41 or 158 of this chapter
either when the utility:
(1) Initially notifies the Commission that it requests disposition of
a contested issue pursuant to 41.7 or 158.7 of this chapter; or
(2) Requests disposition of a contested issue pursuant to the
shortened procedures provided in 41.3 or 158.3 of this chapter.
(n) Publish notice of land withdrawals under section 24 of the
Federal Power Act.
(o) Issue notices of applications filed under the Federal Power Act
and the Natural Gas Act, fixing the time for filing comments, protests
or petitions to intervene and schedule hearings on such applications
when appropriate or required by law.
(p) Accept for filing amendments to agreements and contracts or rate
schedules submitted in compliance with Commission orders accepting
offers of rate settlements if such filings are in satisfactory
compliance with such orders.
(q) Grant authorizations, pursuant to the provisions of 35.1(a) of
this chapter for a designated representative to post and file rate
schedules of public utilities which are parties to the same rate
schedule.
(r) Redesignate proceedings, licenses, certificates, rate schedules,
and other authorizations and filing to reflect changes in the names of
persons and municipalities subject to or invoking Commission
jurisdiction under the Federal Power Act or the Natural Gas Act, where
no substantive changes in ownership, corporate structure or domicile, or
jurisdictional operation are involved.
(s) Change the appropriate hydroelectric project license article upon
application by the licensee to reflect the specified reasonable rate of
return as provided in 2.15 of this chapter.
(43 FR 36435, Aug. 17, 1978. Redesignated and amended at 45 FR 21224,
21225, Apr. 1, 1980; Order 112, 45 FR 79025, Nov. 28, 1980; Order 147,
46 FR 29702, June 3, 1981; Order 224, 47 FR 17809, Apr. 26, 1982;
Order 225, 47 FR 19058, May 3, 1982; Order 492, 53 FR 16062, May 5,
1988)
18 CFR 375.303 Delegations to the Chief Accountant.
The Commission authorizes the Chief Accountant, or the Chief
Accountant's designee to:
(a) Issue interpretations of the Uniform Systems of Accounts for
public utilities, licensees, and natural gas companies.
(b) Pass upon any proposed accounting matters submitted by or on
behalf of public utilities, licensees and natural gas companies, that
require Commission approval under the Uniform System of Accounts, except
that if the proposed accounting matters involve unusually large
transactions or unique or controversial features, the Chief Accountant
shall present the matters to the Commission for consideration.
(c) Pass upon applications to increase the size or to combine
property units of public utilities, licensees and natural gas companies.
(d) Sign all correspondence on behalf of the Commission:
(1) Relating to Annual Report Nos. 1, 1F, 2, 2A, and P; and,
(2) With State regulatory commissions and agencies relating to
accounting and auditing matters.
(e) Pass upon any uncontested application for authorization to issue
securities or to assume obligations and liabilities, filed by public
utilities and licensees pursuant to part 34 of this chapter.
(f) Pass upon actual legitimate original cost and depreciation
thereon and the net investment in jurisdictional companies and revisions
thereof, and sign audit reports resulting from the examination of the
books and records of jurisdictional companies,
(1) If the company agrees with the audit report, or
(2) If the company does not agree with the audit report, provided
that notification of the opportunity for a hearing under Section 301(a)
of the Federal Power Act or Section 8(a) of the Natural Gas Act
accompanies the audit report.
(g) Deny or grant, in whole or in part, petitions for waiver of the
fees prescribed in 381.301, 381.506, 381.507, and 381.508 of this
chapter in accordance with 381.106(b) of this chapter.
(h) Pass upon and approve requests by state and federal agencies to
review staff audit working papers if the company agrees to the release
of the audit working papers provided:
(1) The papers are examined at the Commission; and
(2) The requester
(i) Only makes general notes concerning the contents of the audit
working papers,
(ii) Does not make copies of the audit working papers, and
(iii) Does not remove the audit working papers from the area
designated by the Chief Accountant.
(i) With regard to billing errors noted as a result of Commission
staff's examination of automatic adjustment tariffs approved by the
Commission, approve corrective measures, including recomputation of
billing and refunds, to the extent the company agrees.
(43 FR 36435, Aug. 17, 1978, as amended by Order 38, 44 FR 46452,
Aug. 8, 1979. Redesignated and amended at 45 FR 21224, 21225, Apr. 1,
1980; Order 112, 45 FR 79025, Nov. 28, 1980; Order 147, 46 FR 29702,
June 3, 1981; Order 224, 47 FR 17809, Apr. 26, 1982; Order 435, 50 FR
40358, Oct. 3, 1985; Order 492, 53 FR 16062, May 5, 1988)
18 CFR 375.304 Delegations to the Chief Administrative Law Judge.
(a) The Commission authorizes the Chief Administrative Law Judge and
the Administrative Law Judge designated by the Chief Administrative Law
Judge to exercise the power granted to a Presiding Officer by part 385,
particularly 385.504 of this chapter.
(b) The Commission authorizes the Chief Administrative Law Judge to
(1) For those proceedings pending under subpart E of part 385 of this
chapter:
(i) Consolidate for hearing two or more proceedings on any or all
issues,
(ii) Sever two or more proceedings or issues in a proceeding,
(iii) Designate and substitute presiding officers, and
(iv) Extend any close or record date ordered by the Commission in a
proceeding for good cause.
(2) For proceedings under subparts I and J of part 385 of this
chapter, designate presiding officers who will have all the authorities
and duties vested in presiding officers by those rules and other
applicable rules in conducting proceedings pursuant to sections 503(c)
and 504(b)(1) of the Department of Energy Organization Act, 42 U.S.C.
7193(c) and 7194(b)(1) (1982).
(3) Deny or grant, in whole or in part, petitions for waivers of fees
prescribed in 381.303 and 381.304 of this chapter in accordance with
381.106 of this chapter.
(Order 492, 53 FR 16063, May 5, 1988)
18 CFR 375.305 Delegations to the Solicitor.
The Commission authorizes the Solicitor, or the Solicitor's designee
to:
(a) File with the appropriate court of the United States a certified
list of the materials comprising the record of any proceeding which
involves the Commission;
(b) Retain appropriate materials; and
(c) Deliver such materials to the court as required.
(43 FR 36435, Aug. 17, 1978. Redesignated and amended at 45 FR 21224,
21225, Apr. 1, 1980; Order 112, 45 FR 79025, Nov. 28, 1980)
18 CFR 375.306 Delegations to the Oil Pipeline Board.
The Commission authorizes the Oil Pipeline Board to:
(a) Act on all matters arising out of section 15(7) of the Interstate
Commerce Act, 49 U.S.C. 15(7), including but not limited to the
authority (i) initially to dispose of these matters, by declining to
suspend a rate or a classification, rule or practice and ordering an
investigation; (ii) to suspend and institute investigations into rates,
fares, charges, and practices; and (iii) prior to the submission of
evidence, to discontinue any proceeding when the proposed rate,
classification, rule or practice has been cancelled.
(b) Issue valuation reports pursuant to section 19(a) of the
Interstate Commerce Act, 49 U.S.C. 19a, in matters which do not involve
taking testimony at a public hearing or the submission of evidence by
opposing parties in the form of affidavits.
(c) Act on matters arising under section 4 of the Interstate Commerce
Act, 49 U.S.C. 4, except proceedings made the subject for formal
hearing, or matters arising from general increase proceedings.
(d) Grant special permission or other permissible waivers of rules
regarding tariffs or schedules under section 6(3) of the Interstate
Commerce Act, 49 U.S.C. 6(3), including authorization for the
cancellation of suspended tariffs or schedules that have not involved
taking testimony at a public hearing or the submission of evidence by
opposing parties in the form of affidavits.
(e) Act on matters arising under section 6(6) of the Interstate
Commerce Act, 49 U.S.C. 6(6), related to the prescription of regulations
concerning the form and manner in which tariffs required to be filed
shall be published, filed, and posted, including the institution of
rulemaking proceedings for the purpose of prescribing new or changed
regulations, except matters involving taking testimony at a public
hearing or the submission of evidence by opposing parties in the form of
affidavits.
(f) Act on matters arising under sections 20(1), 20(2), 20(3), 20(4)
and 20(5) of the Interstate Commerce Act, 49 U.S.C. 20 (1), (2), (3),
(4), (5), including prescription of a uniform system of accounts, rates
of depreciation for property, and forms for accounts, records, and
memoranda kept by oil pipeline carriers.
(g) Act on matters arising under section 20(11) of the Interstate
Commerce Act, 49 U.S.C. 20(11), insofar as they relate to applications
for authorization to establish released rates and ratings that have not
involved taking testimony at a public hearing or the submission of
evidence by opposing parties in the form of affidavits.
(h) Determine whether the investigation of suspended tariff schedules
should be set for oral hearing before an Administrative Law Judge or
handled under the modified procedure as described at Rules 1404 through
1414.
(i) Certify to the full FERC any matter which the Oil Pipeline Board
believes should be passed upon by the Commission.
(j) Deny or accept, in whole or part, petitions for waiver of annual
charges prescribed in 382.203 of this chapter in accordance with the
standard set forth in 382.105 of this chapter.
(43 FR 6765, Feb. 16, 1978. Redesignated and amended at 45 FR 21224,
21225, Apr. 1, 1980; Order 376, 49 FR 21704, May 23, 1984; Order 472,
52 FR 21292, June 5, 1987)
18 CFR 375.307 Delegation to the Director of the Office of Pipelines
and Producer Regulation.
The Commission authorizes the Director of the Office of Pipeline and
Producer Regulation or the Director's designee to:
(a) Take appropriate action on the following types of uncontested
applications for authorizations and uncontested amendments to
applications and authorizations and impose appropriate conditions:
(1) Applications or amendments requesting authorization for the
construction or acquisition and operation of facilities that have a
construction or acquisition cost of less than $5,000,000;
(2) Abbreviated applications and amendments thereto, pursuant to
157.7 (b), (c), (d), (e), and (g) of this chapter, including requests
for waiver of single project and annual cost limits as prescribed in
157.7(b)(1), (c) (d), and (g) of this chapter;
(3) Applications by a pipeline for the abandonment of pipeline gas
purchase facilities with a construction cost of less than $1,000,000 or
for the deletion of delivery points. This authority shall be exercised
only if the producer servicing the jurisdictional pipeline has received
Commission approval to abandon service to the pipeline or if the
producer servicing the jurisdictional pipeline has demonstrated that the
gas involved is not subject to section 7(b) of the Natural Gas Act by
operation of section 601(a)(1) (A) or (B) of the Natural Gas Policy Act
of 1978;
(4) Applications to abandon pipeline or producer facilities or
services (other than budget applications) involving a specific customer
or customers, if such customer or customers have agreed to the
abandonment;
(5) Applications for temporary and permanent certificates (and for
amendments thereto) for the transportation, exchange or storage of
natural gas, provided that the estimated cost of construction of the
certificate applicant's related facility is less than $5,000,000 as
provided in 375.307(a)(3) of this chapter;
(6) Blanket certificate applications by interstate pipelines and
local distribution companies served by interstate pipelines filed
pursuant to 284.221 and 284.224 of this chapter;
(7) Applications for temporary certificates pursuant to 157.17 of
this chapter;
(8) Applications for temporary and permanent certificates of public
convenience and necessity by independent producers pursuant to 157.23,
157.28, and 157.40 of this chapter;
(9) Applications to take the following actions pursuant to section
7(c) of the Natural Gas Act, if such applications provide that the sales
volumes remain within total existing contract demand and certificate
levels:
(i) Change delivery points for existing sales customers,
(ii) Add new delivery points for existing sales customers, and
(iii) Change volumes of gas to be delivered from one to another of an
existing sales customer's delivery points;
(10) Petitions to amend certificates to conform to actual
construction;
(11) Applications and amendments requesting authorizations filed
pursuant to section 7(c) of the Natural Gas Act for new or additional
service to right-of-way grantors either directly or through a
distributor, where partial consideration for the granting of the
right-or-way was the receipt of gas service pursuant to section 7(c) of
the Natural Gas Act;
(12) Applications for blanket certificates of public convenience and
necessity pursuant to subpart F of part 157 of this chapter, including
waiver of project cost limitations on 157.208 and 157.215 of this
chapter, and the convening of informal conferences during the 30-day
reconciliation period pursuant to the procedures in 157.205(f) of this
chapter;
(13) (Reserved)
(14) Applications pertaining to approval of changes in customer names
where there is no change in rate schedule, rate or other incident of
service;
(15) Applications for approval of customers rate schedule shifts;
(16) Applications filed under section 1(c) of the Natural Gas Act and
part 152 of this chapter, for declaration of exemption from the
provisions of the Natural Gas Act and certificates held by the
applicant;
(17) Certificates and related rate schedules of an independent
producer, to the extent the service is no longer subject to Commission
jurisdiction under the Natural Gas Act including:
(i) Vacating the order previously issued granting a certificate of
public convenience and necessity; and
(ii) Cancelling the prior acceptance of, and permitting withdrawal
of, the related rate schedule upon request of the filing party or if the
certificate or application is currently being or has been previously
withdrawn; and
(18) Offers of settlement in the Independent Oil and Gas Association
of West Virginia proceedings in Docket Nos. RI74-188 and RI75-21, that
are substantially similar to settlements previously approved by the
Commissions therein.
(b) Act upon filings for all initial rate schedules, rate schedule
changes and notices of changes in rates submitted by gas companies and
impose such appropriate conditions to the following extent, in
uncontested cases:
(1) Accept a tariff or rate schedule filing, except a major pipeline
rate increase under 154.303(e) and 154.63(a)(2) of this chapter, and
under section 4(e) of the Natural Gas Act, if it complies with all
applicable statutory requirements, and with all applicable Commission
rules, regulations, and orders for which a waiver has not been granted,
or if a waiver has been granted by the Commission, if it complies with
the terms of such waiver.
(2) Reject a tariff or rate schedule filing, if it patently fails to
comply with applicable statutory requirements and with all applicable
Commission rules, regulations and orders for which a waiver has not been
granted;
(3) Advise the filing party of any actions taken under paragraphs
(b)(1) or (b)(2) of this section and designate rate schedules, rate
schedules changes, and notices of changes in rates, and the effective
date thereof;
(4) Accept rate filings of jurisdictional natural gas companies which
involve replacement and rollover contracts; and
(5) Accept statements of eligibility filed under 2.56(p) of this
chapter by producers of natural gas, as defined in 154.91 and 157.40
of this chapter.
(c) Take the following actions under the Natural Gas Policy Act of
1978:
(1) Compute, for each month, pursuant to section 101(b)(6) of the
Natural Gas Policy Act of 1978, the maximum lawful prices prescribed
under Title I of the act and the monthly equivalent of the annual
inflation adjustment factor for each such month, and publish as soon as
possible thereafter such prices and such factor for such month in the
Federal Register;
(2) Notify jurisdictional agencies within 45 days after the date on
which the Commission receives notice pursuant to 274.104 of this
chapter of a well category determination by a jurisdictional agency that
the notice is incomplete, in accordance with 275.202(b)(2) of this
chapter; and
(3) Pass upon an uncontested request for extension of time to file a
report for an extension of authorization to sell natural gas under
section 311(b) of the Natural Gas Policy Act of 1978 when such report
must be filed pursuant to 284.148(c) of this chapter. If such report
for which an extension of time has been granted by the Director under
this paragraph is filed late, the Director will notify the one making
such filing that there will be 90 days for Commission consideration of
extension of authorization requested by the report, after which time an
extension of authorization is deemed granted if the Commission has not
acted.
(d) Take appropriate action on the following:
(1) Any notice of intervention or petition to intervene, filed in an
uncontested application or an uncontested rate schedule proceeding;
(2) An uncontested request from one holding an authorization, granted
pursuant to the Director's delegated authority, to vacate all or part of
such authorization;
(3) Petitions to permit after an initial 60-day period one additional
60-day period of exemption pursuant to 284.264(b) of this chapter where
the application or extension arrives at the Commission later than 45
days after the commencement of the initial period of exemption; and
(4) Applications for extensions of time to file required reports,
data, and information and to perform other acts required at or within a
specific time by any rule, regulation, license, permit, certificate, or
order by the Commission.
(e) Undertake the following actions:
(1) Compute, for each calendar year, the project limits specified in
Table I of 157.208 and Table II of 157.215(a) of this chapter,
adjusted for inflation, and publish such limits as soon as possible
thereafter in the Federal Register;
(2) Issue reports for public information purposes. Any report issued
without Commission approval must:
(i) Be of a noncontroversial nature, and
(ii) Contain the statement, ''This report does not necessarily
reflect the view of the Commission,'' in bold face type on the cover;
(3) Initiate an annual survey of the impact of winter gas supply
(Omnibus Report);
(4) Issue and sign deficiency letters regarding natural gas
applications;
(5) Accept for filing, data and reports required by Commission
orders, or presiding officers' initial decisions upon which the
Commission has taken no further action, if such filings are in
compliance with such orders or decisions and, when appropriate, notify
the filing party of such acceptance;
(6) Reject requests which patently fail to comply with the provisions
of 157.205(b) of this chapter; and
(7) Grant any producer's uncontested application for abandonment, in
accordance with 2.77 of this chapter.
(f) Take appropriate action on requests or petitions for waivers of:
(1) Any action incidental to the exercise of delegated authority,
including waiver of notice as provided in section 4(d) of the Natural
Gas Act, provided the request conforms to the requirements of 385.2001
of this chapter;
(2) Filing requirements for statements and reports under part 260 of
this chapter;
(3) Fees prescribed in 381.201. 381.202, 381.203, 381.204, 381.205,
381.206, 381.207, 381.208, 381.209, 381.401, 381.402, 381.403, and
381.404 of this chapter in accordance with 381.106(d) of this chapter;
and
(4) Annual charges prescribed in 382.202 of this chapter in
accordance with the standard set forth in 382.106 of this chapter.
(5) The Commission's purchased gas adjustment regulations ( 154.301
through 154.310), as necessary, in order to rule on out-of-cycle
purchased gas adjustment filings.
(Order 492, 53 FR 16063, May 5, 1988, as amended by Order 542, 57 FR
21894, May 26, 1992; Order 546, 57 FR 55087, Nov. 24, 1992)
18 CFR 375.308 Delegations to the Director of the Office of Electric
Power Regulation.
The Commission authorizes the Director of the Office of Electric
Power Regulation or the Director's designee to:
(a) Take the following actions with respect to rates, rate schedules,
and rate filings:
(1) Accept for filing all uncontested initial rate schedules and
uncontested rate schedule changes submitted by public utilities,
including changes which would result in rate increases; waive the
requirement of statutory notice for good cause shown; advise the filing
party of such acceptances; and designate rate schedules and the
effective dates thereof;
(2) Approve uncontested rates and rate schedules filed by the
Secretary of Energy, or his designee, for power developed at projects
owned and operated by the Federal government and for services provided
by Federal power marketing agencies;
(3) Reject a rate filing, unless accompanied by a request for waiver
in conformity with 385.2001 of this chapter, if it fails patently to
comply with applicable statutory requirements or Commission rules,
regulations, and orders.
(b) Take appropriate action on uncontested applications for:
(1) The sale or lease or other disposition of facilities,
consolidation of facilities, and acquisition of securities of public
utilities under section 203 of the Federal Power Act;
(2) Interlocking positions under section 305(b) of the Federal Power
Act;
(3) Exemptions pursuant to 290.601 of this chapter, extensions
pursuant to 290.602 of this chapter, and withdrawals of exemptions and
extensions pursuant to 290.603 of this chapter;
(4) Certification of the qualifying status for small power production
and cogeneration facilities under 292.207 of this chapter; and
(5) The extension of time for public utilities to file required
reports, data, and information and to do other acts required to be done
within a specific time period by any rule, regulation, or order of the
commission.
(c) Take appropriate action on:
(1) Notices of intervention or petitions to intervene in an
uncontested rate schedule proceeding;
(2) Requests for authorization for a designated representative to
post and file rate schedules of public utilities which are parties to
the same rate schedule; and
(3) Filings relating to uncontested nonexempt qualifying small power
production facilities, including action on requests for waivers of the
Commission's regulations under the Federal Power Act and related
authorizations consistent with Massachusetts Refusetech, Inc., 31 FERC
61, 048 (1985), and the orders cited therein without limitation as to
whether qualifying status is by Commission certification or notice of
qualifying status, provided that in the case of a notice of qualifying
status, any waiver is granted on condition that the filing party has
correctly noticed the facility as a qualifying facility.
(d) Undertake the following actions:
(1) Redesignate proceedings, rate schedules, and other authorizations
and filings to reflect changes in the names of persons and
municipalities subject to invoking Commission jurisdiction under the
Federal Power Act, where no substantive changes in ownership, corporate
structure or domicile, or jurisdictional operation are involved;
(2) Issue deficiency letters regarding electric rate schedule
filings, refund reports, corporate applications for the sale, lease or
disposition of property, consolidation of facilities, acquisition of
securities of public utilities and applications to hold interlocking
positions;
(3) With respect to amendments to agreements, contracts, and rate
schedules (including approved rate settlements), and data and reports
submitted by public utilities pursuant to Commission opinions, orders,
decisions or other actions or presiding officers' initial decisions:
(i) Accept for filing any amendment, contract, rate schedule, data
and reports which are in compliance and, when appropriate, notify the
filing party of such acceptance; or
(ii) Reject for filing any amendment, contract, rate schedule, data,
and reports which are not in compliance or not required and, when
appropriate, notify the filing party of such rejection; and
(4) Adopt final allocations of costs for Federal multiple-purpose
reservoir projects for which the Commission has statutory
responsibility, and review and comment on cost allocations prepared by
others.
(e) Take appropriate action on requests or petitions for waivers of:
(1) Filing requirements for matters which are the subject of
delegated authority, provided the request conforms to the requirement of
385.2001 of this chapter;
(2) Fees prescribed in 381.502, 381.505, 381.509, 381.510, 381.511,
and 381.512 of this chapter in accordance with 381.106(b) of this
chapter;
(3) The requirements of subpart C of part 292 of this chapter
governing cogeneration and small power production facilities made by any
state regulatory authority or nonregulated electric utility pursuant to
292.403 of this chapter; and
(4) Annual charges prescribed in 382.201 of this chapter in
accordance with the standard set forth in 382.105 of this chapter.
(Order 492, 53 FR 16064, May 5, 1988; 53 FR 21992, June 13, 1988)
18 CFR 375.309 Delegations to the General Counsel.
The Commission authorizes the General Counsel or the General
Counsel's designee to:
(a) Designate officers empowered to administer oaths and
affirmations, subpoena witnesses, compel their attendance and testimony,
take evidence, compel the filing of special reports and interrogatories,
gather information, and require the production of any books, papers,
correspondence, memoranda, contracts, agreements, or other records, in
the course of formal investigations conducted by the Office of the
General Counsel to the extent the Commission's order of investigation
expressly provides for the exercise of such investigative powers.
(b) Grant or deny requests of persons pursuant to 1b.12 of this
chapter to procure copies of the transcripts of their testimony taken
during non-public investigations conducted by the Office of the General
Counsel.
(c) Terminate any informal non-public investigation conducted by the
Office of the General Counsel.
(d) Terminate the authority of officers to administer oaths and
affirmations, subpoena witnesses, compel their attendance and testimony,
take evidence, compel the filing of special reports and interrogatories,
gather information, and require the production of any books, papers,
correspondence, memoranda, contracts, agreements or other records in the
course of formal investigations conducted by the Office of the General
Counsel.
(e) Designate presiding officers for proceedings under 385.1110, who
will have all the authorities and duties vested in presiding officers by
that section and other applicable rules in conducting proceedings
pursuant to section 502(c) of the Natural Gas Policy Act of 1978, 15
U.S.C. 3301-3432 (1982).
(f) Deny or grant, in whole or in part, petitions for waivers of fees
prescribed in 381.305 of this chapter in accordance with 381.106 of
this chapter.
(Order No. 38, 44 FR 46453, Aug. 8, 1979. Redesignated and amended at
45 FR 21224, 21225, Apr. 1, 1980; Order 112, 45 FR 79025, Nov. 28,
1980; Order 224, 47 FR 17810, Apr. 24, 1982; Order 225, 47 FR 19058,
May 3, 1982; Order 396, 49 FR 36829, Sept. 20, 1984; Order 417, 50 FR
15731, Apr. 22, 1985; Order 421, 50 FR 21427, May 24, 1985; 50 FR
47532, Nov. 19, 1985; Order 494, 53 FR 15382, Apr. 29, 1988)
18 CFR 375.310 Delegations to the Director of the Office of Economic
Policy.
The Commission authorizes the Director of the Office of Economic
Policy, or the Director's designee, to issue quarterly updates of the
benchmark rate of return on common equity for the jurisdictional
operations of public utilities under part 37 of this chapter.
(Order 492, 53 FR 16065, May 5, 1988)
18 CFR 375.311 Delegations during emergency conditions.
For delegations of Commission authority during emergency conditions,
see subpart B of part 376 of this chapter.
18 CFR 375.312 Delegations to the Director of the Division of Public
Information.
The Commission authorizes the Director of the Division of Public
Information to waive or reduce fees in accordance with 3.8 of this
chapter.
(Order 233, 47 FR 23150, May 22, 1982)
18 CFR 375.313 Delegations to the Executive Director.
The Commission authorizes the Executive Director or the Executive
Director's designee to:
(a) Prescribe the updated fees for part 381 of this chapter in
accordance with 381.104 of this chapter.
(b) Prescribe the updated fees for part 381 of this chapter in
accordance with 388.109(b)(2) of this chapter.
(c) Deny or grant, in whole or in part, petitions for waiver of fees
prescribed in 381.302 of this chapter in accordance with 381.106(b) of
this chapter.
(d) Deny or grant, in whole or in part, petitions for exemption from
fees prescribed in part 381 of this chapter in accordance with 381.108
of this chapter.
(e) Determine the annual charges for administrative costs, for use of
United States lands, and for use of Government dams or other structures.
(f) Grant or deny waiver of penalty charges for late payment of
annual charges.
(g) Give credit for overpayment of annual charges.
(h) Deny or grant, in whole or in part, petitions for exemption from
annual charges under 11.6 of this chapter for state and municipal
licensees.
(Order 395, 49 FR 35356, Sept. 7, 1984, as amended by Order 488, 53
FR 1472, Jan. 20, 1988; Order 492, 53 FR 16065, May 5, 1988)
18 CFR 375.314 Delegations to the Director of the Office of Hydropower
Licensing.
The Commission authorizes the Director of the Office of Hydropower
Licensing or the Director's designee to:
(a) Take appropriate action on uncontested applications and on
applications for which the only motion or notice of intervention is
filed by a competing preliminary permit or exemption applicant that does
not propose and substantiate materially different plans to develop,
conserve, and utilize the water resources of the region for the
following:
(1) Licenses (including original, new, and transmission line
licenses) under part I of the Federal Power Act;
(2) Exemptions from all or part of the licensing requirements of part
I of the Federal Power Act; and
(3) Preliminary permits for proposed projects.
(b) Take appropriate action on uncontested applications for:
(1) Amendments (including changes in the use or disposal of water
power project lands or waters or in the boundaries of water power
projects) to licenses (including original, new, and transmission line
licenses) under part I of the Federal Power Act, exemptions from all or
part of the requirements of part I of the Federal Power Act, and
preliminary permits; and
(2) Surrenders of licenses (including original and new), exemptions,
and preliminary permits.
(c) Take appropriate action on the following:
(1) Determinations or vacations with respect to lands of the United
States reserved from entry, location, or other disposal under section 24
of the Federal Power Act;
(2) Transfer of a license under section 8 of the Federal Power Act;
(3) Applications for the surrender of transmission line licenses
pursuant to part 6 of this chapter;
(4) Motions filed by licensees, permittees, exemptees, applicants,
and others requesting an extension of time to file required submittals,
reports, data, and information and to do other acts required to be done
at or within a specific time period by any rule, regulation, license,
exemption, permit, notice, letter, or order of the Commission in
accordance with 385.2008 of this chapter;
(5) Declarations of intent and petitions for declaratory orders
concerning the Commission's jurisdiction over a hydropower project under
the Federal Power Act;
(6) New or revised exhibits, studies, plans, reports, maps, drawings,
or specifications, or other such filings made voluntarily or in response
to a term or condition in a preliminary permit, license, or exemption
issued for a hydropower project, or in response to the requirements of
an order of the Commission or presiding officer's initial decision
concerning a hydropower project;
(7) Requests by applicants to withdraw, pursuant to 385.216 of this
chapter, any pleadings under part I of the Federal Power Act and any
pleadings related to exemptions from all or part of part I of the
Federal Power Act;
(8) Requests by licensees for exemption from:
(i) The requirement of filing FERC Form No. 80, Licensed Projects
Recreation, under 8.11 of this chapter; and
(ii) The fees prescribed in 381.302(a) of this chapter in accordance
with 381.302(c) of this chaper and the fees in 381.601 of this
chapter, in accordance with 381.106 of this chapter;
(9) Requests for waivers incidental to the exercise of delegated
authority provided the request conforms to the requirements of 385.2001
of this chapter;
(10) Proposals for the development of water resources projects
submitted by other agencies of the Federal government for Commission
review or comment. The Director shall direct comments, when necessary,
to the sponsoring agency on matters including, but not limited to, the
need for, and appropriate size of, any hydroelectric power installation
proposed by any other agency of the Federal government;
(11) The reasonableness of disputed agency cost statements pursuant
to 4.303(d) of this chapter.
(d) Issue an order pursuant to section 5 of the Federal Power Act to
cancel a preliminary permit if the permittee fails to comply with the
specific terms and conditions of the permit; provided:
(1) The Director gives notice to the permittee of probable
cancellation no less than 30 days prior to the issuance of the
cancellation order, and
(2) The permittee does not oppose the issuance of the cancellation
order.
(e) Issue an order to revoke an exemption of a small conduit
hydroelectric facility from the licensing provisions of part I of the
Federal Power Act granted pursuant to 4.93 of this chapter, or an
exemption of a small hydroelectric power project from the licensing
provisions of part I of the Federal Power Act granted pursuant to 4.105
of this chapter if the exemption holder fails to begin or complete
actual construction of the exempted facility or project within the time
specified in the order granting the exemption or in Commission
regulations at 4.94(c) or 4.106(c) of this chapter, provided:
(1) The Director gives notice to the exemption holder by certified
mail of probable revocation no less than 30 days prior to the issuance
of the revocation order, and
(2) The holder of the exemption does not oppose the issuance of the
revocation order.
(f) Issue an order pursuant to section 13 of the Federal Power Act to
terminate a license granted under part I of the Federal Power Act if the
licensee fails to commence actual construction of the project works
within the time prescribed in the license, provided:
(1) The Director gives notice by certified mail to the licensee of
probable termination no less than 90 days prior to the issuance of the
termination order, and
(2) The licensee does not oppose the issuance of the termination
order.
(g) Require licensees and applicants for water power projects to make
repairs to project works, take any related actions for the purpose of
maintaining the safety and adequacy of such works, make or modify
emergency action plans, have inspections by independent consultants, and
perform other actions necessary to comply with part 12 of this chapter
or otherwise protect human life, health, property, or the environment.
(h) For any unlicensed or unexempted hydropower project, take the
following actions:
(1) Conduct investigations to ascertain the Commission's
jurisdiction,
(2) Make preliminary jurisdictional determinations, and
(3) If a project has been preliminarily determined to require a
license, issue notification of the Commission's jurisdiction; require
the filing of a license application; and require that actions necessary
to comply with part 12 of this chapter or otherwise protect human life,
health, property, or the environment are taken.
(i) Take appropriate action on uncontested settlements among
non-Federal parties involving headwater benefits.
(j) Dismiss applications for licenses and approve the withdrawal of
applications for hydropower project licenses, in instances where no
petition for or notice of intervention contending that licensing is
required under part I of the Federal Power Act has been filed and the
Director determines that licensing is not required by such Part I.
(k) Reject or dismiss an application filed under Part I of the
Federal Power Act or an application for an exemption from some or all of
the requirements of Part I of the Federal Power Act if:
(1) An application is patently deficient under 4.32(d)(2)(i);
(2) A revised application
(i) Does not conform to the requirements of 4.32(a), 4.32(b), or
4.38, under 4.32(d)(1) or
(ii) If revisions to an application are not timely submitted under
4.32(d)(1); or
(3) The applicant fails to provide timely additional information,
documents, or copies of submitted materials under 4.32(f).
(l) Redesignate proceedings, licenses, and other authorizations and
filings to reflect changes in the names of persons and municipalities
subject to or invoking Commission jurisdiction under the Federal Power
Act, where no substantive changes in ownership, corporate structure or
domicile, or jurisdictional operation are involved.
(m) Determine payments for headwater benefits from the operation of
Federal reservoir projects.
(n) Determine whether to allow a credit against annual charges for
the use of government dams or other structures billed to licensees each
year for contractual payments for the construction, operation, and
maintenance of a Federal dam.
(o) Prepare and issue comments on general water policy and planning
issues for the use of the Director of the Water Resources Council or the
Assistant Secretaries of the Department of Energy.
(p) Prepare and transmit letters concerning power site lands to the
Bureau of Land Management and the U.S. Geological Survey; respond to
routine requests for information and any non-docketed correspondence;
prepare and transmit letters requesting comments or additional
information on applications for hydropower project licenses, preliminary
permits, exemptions, amendments of licenses, permits, or exemptions, and
other similar matters from Federal, state, and local agencies, from
applicants, and from other appropriate persons; and prepare and
transmit letters regarding whether transmission lines are works of a
hydropower project and are required to be licensed.
(q) Reject an application or other filing under Section 405 of the
Public Utility Regulatory Policies Act of 1978, unless accompanied by a
request for waiver in conformity with 385.2001 of this chapter, if it
fails patently to comply with applicable statutory requirements or
Commission rules, regulations, and orders.
(r) Pass upon petitions filed under 292.210 and 292.211 of this
chapter.
(s) Make any preliminary determination of inconsistency between a
fish and wildlife agency's fish and wildlife recommendation and
applicable law, and conduct through staff whatever consultation with the
agency that is necessary or appropriate in order to attempt to resolve
any inconsistency, under section 10(j) of the Federal Power Act, and to
take such related actions as are required under that section.
(t) Waive the pre-filing consultation requirements in 4.38 and 16.8
of this title whenever the Director, in his discretion, determines that
an emergency so requires, or that the potential benefit of expeditiously
considering a proposed improvement in safety, environmental protection,
efficiency, or capacity outweighs the potential benefit of requiring
completion of the consultation process prior to the filing of an
application.
(Order 492, 53 FR 16065, May 5, 1988; 53 FR 21992, June 13, 1988;
Order 499, 53 FR 27005, July 18, 1988; Order 533, 56 FR 23154, May 20,
1991)
18 CFR 375.314 PART 376 -- ORGANIZATION, MISSION, AND FUNCTIONS; OPERATIONS DURING EMERGENCY CONDITIONS
18 CFR 375.314 Subpart A -- Organization, Mission, and Functions
Sec.
376.101 Purpose.
376.102 Organization.
376.103 Mission.
376.104 Functions.
376.105 Chairman.
18 CFR 375.314 Subpart B -- Commission Operation During Emergency
Conditions
376.201 Emergency condition defined.
376.202 Authority to move Commission offices.
376.203 Mailing address of Commission during emergency conditions.
376.204 Delegation of Commission's authority during emergency
conditions.
376.205 Delegation of Chairman's authority during emergency
conditions.
376.206 Delegation of functions of certain Commission staff members.
376.207 Personnel and fiscal functions.
376.208 Effect upon existing Commission requirements.
Authority: Dept. of Energy Organization Act, (42 U.S.C. 7101-7352);
E.O. 12009, 3 CFR 142 (1978); Administrative Procedure Act, (5 U.S.C.
553 (1977)).
Source: 45 FR 21222, Apr. 1, 1980, unless otherwise noted.
18 CFR 375.314 Subpart A -- Organization, Mission, and Functions
18 CFR 376.101 Purpose.
This subpart sets forth the organization, mission and functions of
the Commission, and its offices and divisions.
18 CFR 376.102 Organization.
The Commission is established as an independent regulatory Commission
within the DOE by the DOE Act. The Commission is composed of five
members appointed by the President, by and with the advice and consent
of the Senate. One of the members is designated by the President as the
Chairman. To carry out its mission and functions, the Chairman has
organized the Commission into a number of major offices, some of which
are further organized into divisions and lower units. The organization
of the Commission staff structure may be obtained from the Division of
Public Information.
18 CFR 376.103 Mission.
The Commission is responsible for developing, managing, and directing
energy regulatory programs and activities assigned to it by statute,
executive orders, or by the Secretary, DOE. The Chairman serves as the
chief executive officer of the Commission and is responsible for the
conduct of all Commission executive and administrative functions. In
carrying out its mission, the Commission and its employees are not
subject to the supervision or direction of any other official of DOE.
18 CFR 376.104 Functions.
The functions of the Commission include:
(a) All functions vested in the Commission under the DOE Act;
(b) All functions delegated to the Commission by the Secretary of
Energy in accordance with the DOE Act; and
(c) All functions vested in the Commission by statute.
18 CFR 376.105 Chairman.
(a) Administrative head of agency. The Chairman is the
administrative head of the Commission.
(b) Administrative responsibilities. The Chairman is responsible on
behalf of the Commission for the executive and administrative operation
of the Commission, including functions of the Commission with respect to
--
(1) The appointment and employment of Administrative Law Judges in
accordance with the provisions of Title 5, United States Code.
(2) The selection, appointment, and fixing of the compensation of
such personnel as he deems necessary, including an Executive Director.
(3) The supervision of personnel employed by or assigned to the
Commission, except that each Commissioner may select and supervise
personnel for his personal staff.
(4) The distribution of business among personnel and among
administrative units of the Commission.
(5) The procurement of services of experts and consultants in
accordance with section 3109 of Title 5, United States Code.
18 CFR 376.105 Subpart B -- Commission Operation During Emergency Conditions
18 CFR 376.201 Emergency condition defined.
For purposes of this subpart, emergency conditions (a) shall commence
(1) at the time of an armed attack upon the United States, or its
territories or possessions;
(2) At the time the Commission is officially notified of the
likelihood or imminence of such an attack; or
(3) At a time specified by the authority of the President; and
(b) Shall continue until the Commission is officially notified of the
end of such conditions.
18 CFR 376.202 Authority to move Commission offices.
The Commission may provide for removal of its headquarters to any
location in the United States for the duration of emergency conditions.
Consistent with directives of the Chairman, the Commission officer or
employee in charge of a regional office of the Commission may move such
office to a new location in the United States for the duration of
emergency conditions.
18 CFR 376.203 Mailing address of Commission during emergency
conditions.
The Chairman may direct that during the continuance of emergency
conditions, communications, filings, reports, or other submittals to the
Commission shall be addressed to the Federal Energy Regulatory
Commission, Official Mail and Messenger Service, United States Postal
Service to such or other address as the Commission may designate.
18 CFR 376.204 Delegation of Commission's authority during emergency
conditions.
(a) Delegation of authority to one or two Commissioners. During
emergency conditions, the Commission shall function as usual, if a
quorum of the Commission is available and capable of acting. If by
reason of such conditions a quorum of the Commission is not available
and capable of acting, all functions of the Commission are delegated to
the Commissioner or Commissioners who are available and capable of
acting.
(b) Delegation of authority to Commission staff. (1) When, by reason
of emergency conditions, there is no Commissioner available and capable
of acting, the functions of the Commission are delegated to the first
five members of the Commission staff on the list set forth in paragraph
(b)(2) of this section who are available and capable of acting.
(2) The list referred to paragraph (b)(1) of this section is:
(i) Executive Director;
(ii) Director, Office of Electric Power Regulation;
(iii) Director, Office of Pipeline and Producer Regulation;
(iv) General Counsel;
(v) Executive Assistant to the Chairman;
(vi) Deputy Director, Office of Electric Power Regulation;
(vii) Deputy Director, Office of Pipeline and Producer Regulation;
(viii) Deputy General Counsel;
(ix) Solicitor;
(x) Assistant Director and Division heads, Office of Electric Power
Regulation; Assistant Director and Division heads, Office of Pipeline
and Producer Regulation, and Assistant General Counsel; in order of
seniority;
(xi) Remaining Commission staff members, in order of seniority;
(3) For purposes of paragraph (b)(2) of this section order of
seniority shall be based on the highest grade and longest period of
service in that grade but without regard to the particular office or
Division to which assigned.
(c) Reconsideration of staff action taken under delegations. Action
taken pursuant to the delegations provided for in this section shall be
subject to reconsideration by the Commission, acting with a quorum,
within thirty days after the date upon which public notice is given that
a quorum of the Commission has been reconstituted and is functioning.
18 CFR 376.205 Delegation of Chairman's authority during emergency
conditions.
When, by reason of emergency conditions, the Chairman is not
available and capable of acting, his functions are delegated to the
Commissioner available and capable of acting and who is designated by
the President. Until such time as the President designates, or if no
such Commissioner is designated, such functions are delegated to the
Commissioner designated by the Chairman as Acting Chairman, but if such
Acting Chairman is not available and capable of acting such functions
are delegated to the Commissioner who is available and capable of acting
and who has the longest tenure as a member of the Commission. If there
is no Commissioner available and capable of acting, such functions are
delegated to the person on the Commission staff who is available and
capable of acting and who is highest on the list set forth in
376.204(b)(2).
18 CFR 376.206 Delegation of functions of certain Commission staff
members.
When, by reason of emergency conditions, the Secretary, Executive
Director, Director of any Office or Division, or officer in charge of a
regional office, is not available and capable of carrying out his
functions, such functions are delegated to staff members designated by
the Chairman to perform such functions. If no staff member so
designated is available and capable of carrying out his functions, such
functions are delegated to the next subordinate employee in the Office
or Division of the highest grade and longest period of service in that
grade.
18 CFR 376.207 Personnel and fiscal functions.
Subject to modifications or revocation by authority of the Executive
Director, during the continuation of emergency conditions authority to
effect temporary appointments of such additional officers and employees,
to classify and allocate positions to their proper grades, to issue
travel orders, and to effect emergency purchases of supplies, equipment
and services shall be exercised by the respective Directors of Offices
and officials in charge of regional offices, their deputies, or staff in
line of succession, as may be required for the discharge of the lawful
duties of such organization.
18 CFR 376.208 Effect upon existing Commission requirements.
All outstanding Commission orders, rules and regulations shall remain
in force and effect during the continuance of emergency conditions,
except to the extent modified in accordance with authority exercised
under this subpart.
18 CFR 376.208 PART 380 -- REGULATIONS IMPLEMENTING THE NATIONAL
ENVIRONMENTAL POLICY ACT
Sec.
380.1 Purpose.
380.2 Definitions and terminology.
380.3 Environmental information to be supplied by an applicant.
380.4 Projects or actions categorically excluded.
380.5 Actions that require an environmental assessment.
380.6 Actions that require an environmental impact statement.
380.7 Format of an environmental impact statement.
380.8 Preparation of environmental documents.
380.9 Public availability of NEPA documents and public notice of NEPA
related hearings and public meetings.
380.10 Participation in Commission proceedings.
380.11 Environmental decisionmaking.
380.12 Requirements for preparing environmental reports for
certificate applications under the Natural Gas Act.
380.13 Erosion control, revegetation, and maintenance plan.
380.14 Stream and wetland construction and mitigation procedures.
Appendix A -- Guidelines for the Preparation of Environmental Reports
for Applications Under the Natural Gas Act, as Specified in 380.3 of
the Commission's Regulations
Authority: National Environmental Policy Act of 1969, 42 U.S.C.
4321-4370a (1982); Department of Energy Organization Act, 42 U.S.C.
7101-7352 (1982); E.O. 12009, 3 CFR 1978 Comp., p. 142.
Source: Order 486, 52 FR 47910, Dec. 17, 1987, unless otherwise
noted.
18 CFR 380.1 Purpose.
The regulations in this part implement the Federal Energy Regulatory
Commission's procedures under the National Environmental Policy Act of
1969. These regulations supplement the regulations of the Council on
Environmental Quality, 40 CFR parts 1500 through 1508 (1986). The
Commission will comply with the regulations of the Council on
Environmental Quality except where those regulations are inconsistent
with the statutory requirements of the Commission.
18 CFR 380.2 Definitions and terminology.
For purposes of this part --
(a) Categorical exclusion means a category of actions described in
380.4, which do not individually or cumulatively have a significant
effect on the human environment and which the Commission has found to
have no such effect and for which, therefore, neither an environmental
assessment nor an environmental impact statement is required. The
Commission may decide to prepare environmental assessments for the
reasons stated in 380.4(b).
(b) Commission means the Federal Energy Regulatory Commission.
(c) Council means the Council on Environmental Quality.
(d) Environmental assessment means a concise public document for
which the Commission is responsible that serves to:
(1) Briefly provide sufficient evidence and analysis for determining
whether to prepare an environmental impact statement or a finding of no
significant impact.
(2) Aid the Commission's compliance with NEPA when no environmental
impact statement is necessary.
(3) Facilitate preparation of a statement when one is necessary.
Environmental assessments must include brief discussions of the need for
the proposal, of alternatives as required by section 102(2)(E) of NEPA,
of the environmental impacts of the proposed action and alternatives,
and a listing of agencies and persons consulted.
(e) Environmental impact statement (EIS) means a detailed written
statement as required by section 102(2)(C) of NEPA. DEIS means a draft
EIS and FEIS means a final EIS.
(f) Environmental report or ER means that part of an application
submitted to the Commission by an applicant for authorization of a
proposed action which includes information concerning the environment,
the applicant's analysis of the environmental impact of the action, or
alternatives to the action required by this or other applicable statutes
or regulations.
(g) Finding of no significant impact (FONSI) means a document by the
Commission briefly presenting the reason why an action, not otherwise
excluded by 380.4, will not have a significant effect on the human
environment and for which an environmental impact statement therefore
will not be prepared. It must include the environmental assessment or a
summary of it and must note other environmental documents related to it.
If the assessment is included, the FONSI need not repeat any of the
discussion in the assessment but may incorporate it by reference.
18 CFR 380.3 Environmental information to be supplied by an applicant.
(a) An applicant must submit information as follows:
(1) For any proposed action identified in 380.5 and 380.6, and
environmental report with the proposal as prescribed in paragraph (c) of
this section.
(2) For any proposal not identified in paragraph (a)(1) of this
section, any environmental information that the Commission may determine
is necessary for compliance with these regulations, the regulations of
the Council, NEPA and other Federal laws such as the Endangered Species
Act, the National Historic Preservation Act or the Coastal Zone
Management Act.
(b) An applicant must also:
(1) Provide all necessary or relevant information to the Commission;
(2) Conduct any studies that the Commission staff considers necessary
or relevant to determine the impact of the proposal on the human
environment and natural resources;
(3) Consult with appropriate Federal, regional, State, and local
agencies during the planning stages of the proposed action to ensure
that all potential environmental impacts are identified. (The specific
requirements for consultation on hydropower projects are contained in
4.38 and 16.8 of this chapter and in section 4(a) of the Electric
Consumers Protection Act, Pub. L. No. 99-495, 100 Stat. 1243, 1246
(1986));
(4) Submit applications for all Federal and State approvals as early
as possible in the planning process; and
(5) Notify the Commission staff of all other Federal actions required
for completion of the proposed action so that the staff may coordinate
with other interested Federal agencies.
(c) Content of an applicant's environmental report for specific
proposals -- (1) Hydropower projects. The information required for
specfic project applications under part 4 or 16 of this chapter.
(2) Natural gas projects. (i) For any application filed under the
Natural Gas Act for any proposed action identified in 380.5 or 380.6,
except for prior notice filings under 157.208, as described in
380.5(b), the information identified in Appendix A of this part.
(ii) For prior notice filings under 157.208, the report described by
157.208(c)(11) of this chapter.
(iii) For any application subject to 380.3(c)(2)(i), the applicant
may file a draft environmental assessment based 157.14 (a)(6-a) and
(a)(6-b) of this chapter, in conformance with the staff's guidelines for
preparation of such a document. An applicant may submit a draft
environmental assessment only if it has previously attended prefiling
meetings at which it has discussed with the Commission staff the
environmental study plan to be used by the applicant or its contractor
to prepare the draft environmental assessment.
(Order 486, 52 FR 47910, Dec. 17, 1987, as amended by Order 533, 56
FR 23155, May 20, 1991)
18 CFR 380.4 Projects or actions categorically excluded.
(a) General rule. Except as stated in paragraph (b) of this section,
neither an environmental assessment nor an environmental impact
statement will be prepared for the following projects or actions:
(1) Procedural, ministerial, or internal administrative and
management actions, programs, or decisions, including procurement,
contracting, personnel actions, correction or clarification of filings
or orders, and acceptance, rejection and dismissal of filings;
(2)(i) Reports or recommendations on legislation not initiated by the
Commission, and
(ii) Proposals for legislation and promulgation of rules that are
clarifying, corrective, or procedural, or that do not substantially
change the effect of legislation or regulations being amended;
(3) Compliance and review actions, including investigations
(jurisdictional or otherwise), conferences, hearings, notices of
probable violation, show cause orders, and adjustments under section
502(c) of the Natural Gas Policy Act of 1978 (NGPA);
(4) Review of grants or denials by the Department of Energy (DOE) of
any adjustment request, and review of contested remedial orders issued
by DOE;
(5) Information gathering, analysis, and dissemination;
(6) Conceptual or feasibility studies;
(7) Actions concerning the reservation and classification of United
States lands as water power sites and other actions under section 24 of
the Federal Power Act;
(8) Transfers of water power project licenses and transfers of
exemptions under Part I of the Federal Power Act and Part 9 of this
chapter;
(9) Issuance of preliminary permits for water power projects under
Part I of the Federal Power Act and Part 4 of this chapter;
(10) Withdrawals of applications for certificates under the Natural
Gas Act, or for water power project preliminary permits, exemptions, or
licenses under Part I of the Federal Power Act and Part 4 of this
chapter;
(11) Actions concerning annual charges or headwater benefits, charges
for water power projects under Parts 11 and 13 of this chapter and
establishment of fees to be paid by an applicant for a license or
exemption required to meet the terms and conditions of section 30(c) of
the Federal Power Act;
(12) Approval for water power projects under Part I of the Federal
Power Act, of ''as built'' or revised drawings or exhibits that propose
no changes to project works or operations or that reflect changes that
have previously been approved or required by the Commission;
(13) Surrender and amendment of preliminary permits, and surrender of
water power licenses and exemptions where no project works exist or
ground disturbing activity has occurred and amendments to water power
licenses and exemptions that do not require ground disturbing activity
or changes to project works or operation;
(14) Exemptions for small conduit hydroelectric facilities as defined
in 4.30(b)(26) of this chapter under Part I of the Federal Power Act
and Part 4 of this chapter;
(15) Electric rate filings submitted by public utilities under
sections 205 and 206 of the Federal Power Act, the establishment of just
and reasonable rates, and confirmation, approval, and disapproval of
rate filings submitted by Federal power marketing agencies under the
Pacific Northwest Electric Power Planning and Conservation Act, the
Department of Energy Organization Act, and DOE Delegation Order No.
0204-108.
(16) Approval of actions under sections 4(b), 203, 204, 301, 304, and
305 of the Federal Power Act relating to issuance and purchase of
securities, acquisition or disposition of property, merger, interlocking
directorates, jurisdictional determinations and accounting orders;
(17) Approval of electrical interconnections and wheeling under
sections 202(b), 210, 211, and 212 of the Federal Power Act, that would
not entail:
(i) Construction of a new substation or expansion of the boundaries
of an existing substation;
(ii) Construction of any transmission line that operates at more than
115 kilovolts (KV) and occupies more than ten miles of an existing
right-of-way; or
(iii) Construction of any transmission line more than one mile long
if located on a new right-of-way;
(18) Approval of changes in land rights for water power projects
under Part I of the Federal Power Act and Part 4 of this chapter, if no
construction or change in land use is either proposed or known by the
Commission to be contemplated for the land affected;
(19) Approval of proposals under Part I of the Federal Power Act and
Part 4 of this chapter to authorize use of water power project lands or
waters for gas or electric utility distribution lines, radial
(sub-transmission) lines, communications lines and cables, storm drains,
sewer lines not discharging into project waters, water mains, piers,
landings, boat docks, or similar structures and facilities, landscaping
or embankments, bulkheads, retaining walls, or similar shoreline erosion
control structures;
(20) Action on applications for exemption under section 1(c) of the
Natural Gas Act;
(21) Approvals of blanket certificate applications and prior notice
filings under 157.204 and 157.209 through 157.218 of this chapter;
(22) Approvals of blanket certificate applications under 284.221
through 284.224 of this chapter;
(23) Producers' applications for the sale of gas filed under 157.23
through 157.29 of this chapter;
(24) Approval under section 7 of the Natural Gas Act of taps, meters,
and regulating facilities located completely within an existing natural
gas pipeline right-of-way or compressor station if company records show
the land use of the vicinity has not changed since the original
facilities were installed, and no significant nonjurisdictional
facilities would be constructed in association with construction of the
interconnection facilities;
(25) Review of natural gas rate filings, including any curtailment
plans other than those specified in 380.5(b)(5), and establishment of
rates for transportation and sale of natural gas under sections 4 and 5
of the Natural Gas Act and sections 311 and 401 through 404 of the
Natural Gas Policy Act of 1978;
(26) Review of approval of oil pipeline rate filings under Parts 340
and 341 of this chapter;
(27) Sale, exchange, and transportation of natural gas under sections
4, 5 and 7 of the Natural Gas Act that requires no construction of
facilities;
(28) Abandonment in place of a minor natural gas pipeline (short
segments of buried pipe of 6-inch inside diameter or less), or
abandonment by removal of minor surface facilities such as metering
stations, valves, and tops under section 7 of the Natural Gas Act so
long as appropriate erosion control and site restoration takes place;
(29) Abandonment of service under any gas supply contract pursuant to
section 7 of the Natural Gas Act;
(30) Approval of filing made in compliance with the requirements of a
certificate for a natural gas project under section 7 of the Natural Gas
Act or a preliminary permit, exemption, license, or license amendment
order for a water power project under Part I of the Federal Power Act;
(b) Exceptions to categorical exclusions. (1) In accordance with 40
CFR 1508.4, the Commission and its staff will independently evaluate
environmental information supplied in an application and in comments by
the public. Where circumstances indicate that an action may be a major
Federal action significantly affecting the quality of the human
environment, the Commission:
(i) May require an environmental report or other additional
environmental information, and
(ii) Will prepare an environmental assessment or an environmental
impact statement.
(2) Such circumstances may exist when the action may have an effect
on one of the following:
(i) Indian lands;
(ii) Wilderness areas;
(iii) Wild and scenic rivers;
(iv) Wetlands;
(v) Units of the National Park System, National Refuges, or National
Fish Hatcheries;
(vi) Anadromous fish or endangered species; or
(vii) Where the environmental effects are uncertain.
However, the existence of one or more of the above will not
automatically require the submission of an environmental report or the
preparation of an environmental assessment or an environmental impact
statement.
(Order 486, 52 FR 47910, Dec. 17, 1987, as amended at 53 FR 8177,
Mar. 14, 1988; Order 486-B, 53 FR 26437, July 13, 1988; 54 FR 48740,
Nov. 27, 1989)
18 CFR 380.5 Actions that require an environmental assessment.
(a) An environmental assessment will normally be prepared first for
the actions identified in this section. Depending on the outcome of the
environmental assessment, the Commission may or may not prepare an
environmental impact statement. However, depending on the location or
scope of the proposed action, or the resources affected, the Commission
may in specific circumstances proceed directly to prepare an
environmental impact statement.
(b) The projects subject to an environmental assessment are as
follows:
(1) Except as identified in 380.4, 380.6 and 2.55 of this chapter,
authorization for the site of new gas import/export facilities under DOE
Delegation No. 0204-112 and authorization under section 7 of the
Natural Gas Act for the construction, replacement, or abandonment of
compression, processing, or interconnecting facilities, onshore and
offshore pipelines, metering facilities, LNG peak-shaving facilities, or
other facilities necessary for the sale, exchange, storage, or
transportation of natural gas;
(2) Prior notice filings under 157.208 of this chapter for the
rearrangement of any facility specified in 157.202 (b)(3) and (6) of
this chapter or the acquisition, construction, or operation of any
eligible facility as specified in 157.202 (b)(2) and (3) of this
chapter;
(3) Abandonment or reduction of natural gas service under section 7
of the Natural Gas Act unless excluded under 380.4 (a)(21), (28) or
(29);
(4) Except as identified in 380.6, conversion of existing depleted
oil or natural gas fields to underground storage fields under section 7
of the Natural Gas Act.
(5) New natural gas curtailment plans, or any amendment to an
existing curtailment plan under section 4 of the Natural Gas Act and
sections 401 through 404 of the Natural Gas Policy Act of 1978 that has
a major effect on an entire pipeline system;
(6) Licenses under Part I of the Federal Power Act and part 4 of this
chapter for construction of any water power project -- existing dam;
(7) Exemptions under section 405 of the Public Utility Regulatory
Policies Act of 1978, as amended, and 4.30(b)(27) and 4.101-4.106 of
this chapter for small hydroelectric power projects of 5 MW or less;
(8) Licenses for additional project works at licensed projects under
Part I of the Federal Power Act whether or not these are styled license
amendments or original licenses;
(9) Licenses under Part I of the Federal Power Act and part 4 of this
chapter for transmission lines only;
(10) Applications for new licenses under section 15 of the Federal
Power Act;
(11) Approval of electric interconnections and wheeling under
sections 202(b), 210, 211, and 212 of the Federal Power Act, unless
excluded under 380.4(a)(17); and
(12) Regulations or proposals for legislation not excluded under
380.4(a)(2).
(13) Surrender of water power licenses and exemptions where project
works exist or ground disturbing activity has occurred and amendments to
water power licenses and exemptions that require ground disturbing
activity or changes to project works or operations.
(Order 486, 52 FR 47910, Dec. 17, 1987; Order 486, 53 FR 4817, Feb.
17, 1988; 53 FR 8177, Mar. 14, 1988; Order 486-B, 53 FR 26437, July
13, 1988)
18 CFR 380.6 Actions that require an environmental impact statement.
(a) Except as provided in paragraph (b) of this section, an
environmental impact statement will normally be prepared first for the
following projects:
(1) Authorization under sections 3 or 7 of the Natural Gas Act and
DOE Delegation Order No. 0204-112 for the siting, construction, and
operation of jurisdictional liquefied natural gas import/export
facilities used wholly or in part to liquefy, store, or regasify
liquefied natural gas transported by water;
(2) Certificate applications under section 7 of the Natural Gas Act
to develop an underground natural gas storage facility except where
depleted oil or natural gas producing fields are used;
(3) Major pipeline construction projects under section 7 of the
Natural Gas Act using right-of-way in which there is no existing natural
gas pipeline; and
(4) Licenses under Part I of the Federal Power Act and Part 4 of this
chapter for construction of any unconstructed water power project.
(b) If the Commission believes that a proposed action identified in
paragraph (a) of this section may not be a major Federal action
significantly affecting the quality of the human environment, an
environmental assessment, rather than an environmental impact statement,
will be prepared first. Depending on the outcome of the environmental
assessment, an environmental impact statement may or may not be
prepared.
(c) An environmental impact statement will not be required if an
environmental assessment indicates that a proposal has adverse
environmental affects and the proposal is not approved.
(Order 486, 52 FR 47910, Dec. 17, 1987, as amended at 53 FR 8177,
Mar. 14, 1988; Order 486-B, 53 FR 26437, July 13, 1988)
18 CFR 380.7 Format of an environmental impact statement.
In addition to the requirements for an environmental impact statement
prescribed in 40 CFR 1502.10 of the regulations of the Council, an
environmental impact statement prepared by the Commission will include a
section on the literature cited in the environmental impact statement
and a staff conclusion section. The staff conclusion section will
include summaries of:
(a) The significant environmental impacts of the proposed action;
(b) Any alternative to the proposed action that would have a less
severe environmental impact or impacts and the action preferred by the
staff;
(c) Any mitigation measures proposed by the applicant, as well as
additional mitigation measures that might be more effective;
(d) Any significant environmental impacts of the proposed action that
cannot be mitigated; and
(e) References to any pending, completed, or recommended studies that
might provide baseline data or additional data on the proposed action.
18 CFR 380.8 Preparation of environmental documents.
The preparation of environmental documents, as defined in 1508.10 of
the regulations of the Council, on hydroelectric projects, is the
responsibility of the Commission's Office of Hydropower Licensing, 400
First Street NW., Washington, DC 20426, (202) 376-9171. The preparation
of environmental documents on natural gas projects is the responsibility
of the Commission's Office of Pipeline and Producer Regulation, (202)
357-8500, 825 North Capitol Street NW., Washington, DC 20426. Persons
interested in status reports or information on environmental impact
statements or other elements of the NEPA process, including the studies
or other information the Commission may require on these projects, can
contact these sections.
18 CFR 380.9 Public availability of NEPA documents and public notice of
NEPA related hearings and public meetings.
(a)(1) The Commission will comply with the requirements of 40 CFR
1506.6 of the regulations of the Council for public involvement in NEPA.
(2) If an action has effects of primarily local concern, the
Commission may give additional notice in a Commission order.
(b) The Commission will make environmental impact statements,
environmental assessments, the comments received, and any underlaying
documents available to the public pursuant to the provisions of the
Freedom of Information Act (5 U.S.C. 552 (1982)). The exclusion in the
Freedom of Information Act for interagency memoranda is not applicable
where such memoranda transmit comments of Federal agencies on the
environmental impact of the proposed action. Such materials will be
made available to the public at the Commission's Public Reference Room
at 825 North Capitol Street NW, room 1000, Washington, DC 20426 at a fee
and in the manner described in Part 388 of this chapter. A copy of an
environmental impact statement or environmental assessment for
hydroelectric projects may also be made available for inspection at the
Commission's regional office for the region where the proposed action is
located.
(Order 486, 52 FR 47910, Dec. 17, 1987)
18 CFR 380.10 Participation in Commission proceedings.
(a) Intervention proceedings involving a party or parties -- (1)
Motion to intervene. (i) In addition to submitting comments on the NEPA
process and NEPA related documents, any person may file a motion to
intervene in a Commission proceeding dealing with environmental issues
under the terms of 385.214 of this chapter. Any person who files a
motion to intervene on the basis of a draft environmental impact
statement will be deemed to have filed a timely motion, in accordance
with 385.214, as long as the motion is filed within the comment period
for the draft environmental impact statement.
(ii) Any person that is granted intervention after petitioning
becomes a party to the proceeding and accepts the record as developed by
the parties as of the time that intervention is granted.
(2)(i) Issues not set for trial-type hearing. An intervenor who
takes a position on any environmental issue that has not yet been set
for hearing must file a timely motion with the Secretary containing an
analysis of its position on such issue and specifying any differences
with the position of Commission staff or an applicant upon which the
intervenor wishes to be heard at a hearing.
(ii) Issues set for trial-type hearing. (A) Any intervenor that
takes a position on an environmental issue set for hearing may offer
evidence for the record in support of such position and otherwise
participate in accordance with the Commission's Rules of Practice and
Procedure. Any intervenor must specify any differences from the staff's
and the applicant's positions.
(B) To be considered, any facts or opinions on an environmental issue
set for hearing must be admitted into evidence and made part of the
record of the proceeding.
(b) Rulemaking proceedings. Any person may file comments on any
environmental issue in a rulemaking proceeding.
18 CFR 380.11 Environmental decisionmaking.
(a) Decision points. For the actions which require an environmental
assessment or environmental impact statement, environmental
considerations will be addressed at appropriate major decision points.
(1) In proceedings involving a party or parties and not set for
trial-type hearing, major decision points are the approval or denial of
proposals by the Commission or its designees.
(2) In matters set for trial-type hearing, the major decision points
are the initial decision of an administrative law judge or the decision
of the Commission.
(3) In a rulemaking proceeding, the major decision points are the
Notice of Proposed Rulemaking and the Final Rule.
(b) Environmental documents as part of the record. The Commission
will include environmental assessments, findings of no significant
impact, or environmental impact statements, and any supplements in the
record of the proceeding.
(c) Application denials. Notwithstanding any provision in this Part,
the Commission may dismiss or deny an application without performing an
environmental impact statement or without undertaking environmental
analysis.
18 CFR 380.11 Pt. 380, App. A
These guidelines:
(1) Identify the kinds of information to be supplied by applicants to
assist Federal Power Commission staff in an independent assessment of
major Federal actions significantly affecting the quality of the human
environment;
(2) Pertain to actions under part 380, chapter I, title 18, Code of
Federal Regulations;
(3) Provide the basis for the preparation of environmental reports
being prepared pursuant to part 380 by applicants for the construction
of pipeline facilities under the jurisdiction of the Commission; and
(4) Provide an insight into the rationale and scope of environmental
reports to assure a balanced interdisciplinary analysis of actions
significantly affecting the quality of the human environment.
It is the general policy of the Federal Power Commission to expect
applicants to take the following actions in carrying out their
environmental evaluation responsibilities:
(5) Consult with the appropriate Federal, regional, State, and local
entities during the preliminary planning stages of the proposed action
to assure that all environmental factors are identified;
(6) Conduct any studies which are necessary to determine the impact
of the proposed action on the human and natural resources and the
measures which may be necessary to protect the values of the affected
area. These analyses of impacts upon living and nonliving elements
which make up the environment shall be to the depth necessary for a
valid assessment of the impacts;
(7) Utilize a sufficiently imaginative, comprehensive,
interdisciplinary approach -- utilizing a broad physical, biological,
and social overview -- during the development of the plans for a
project, including the selection of its site, design, and methods of
construction, operation/maintenance, and abandonment; and
(8) These guidelines have been prepared to relate to a wide range of
possible actions that could come before the Commission for
consideration. The applicant is expected to make the detail of the
environmental report commensurate with the complexity of the possible
environmental impact of the proposed action. It is important to
recognize that there is some duplication in the information requested.
Often a section asks for an evaluation from a different viewpoint rather
than absolutely new information. Upon review of the applicant's
environmental report, staff may request additional informaiton.
1. Description of proposed action. -- Provide, as an introductory
paragraph, a brief description of the action under application. Then
describe fully its:
1.1 Purpose. -- Describe the primary purpose of the proposed action
and such secondary purposes as water supply, navigation, flood control,
low flow augmentation, recreation, fish, and wildlife. Describe how
these purposes, both primary and secondary, fit into existing and future
utility systems or aid in meeting system reliability or regional and
national needs. List the increases in productivity and values for each
purpose described, e.g., power capacity in kW and generation in
kWh/year, navigation in tonnage, recreation in visitor days, water use
in ft3/s and af.
1.2 Location. -- Describe the geographical location of the action as
related to other similar programs or developments in the same river
basin. Locate the proposed action with respect to State boundaries,
counties and major cities and, if necessary, by more specific
geographical identification such as township and range; provide a map
or maps of the area and such other graphic materials as are needed to
locate the action.
1.3 Land requirements. -- Locate and indicate the area and use of
lands to be utilized by the proposed action and any measures, other than
construction procedures, involved in its use, including clearing, borrow
and spoil areas, rip-rap, settling ponds or basins, relocation or
development of roads, recreation and wildlife management programs,
drilling of wells for water supply or aquifer recharge, and reserving
project lands for future uses. Describe the length and width of all
existing, joint, or new rights-of-way required by the proposed action
and any land treatment programs proposed thereon, including activities
on ''adjacent'' lands.
1.4 Proposed facilities. -- Provide dimensions where pertinent.
1.4.1 Project works. -- Describe and locate on functional drawings
the project works proposed for construction, including dams, dikes,
reservoirs, spillways, powerhouses, switchyards and transmission
facilities, water intakes and outlets and conduits, navigation works,
visitor centers and other public use facilities, fish ladders, fish
hatcheries, and fish protective facilities. Provide dimensions,
elevations, data on geological foundations, and other technical data as
necessary to give functional design characteristics for safety and
adequacy.
1.4.2 Reservoir. -- Describe the reservoir and its outlet works
giving dimensions in capacity, elevations, area, depth; thermal
stratification if present or anticipated; currents, mixing actions, and
flow-through of inflowing waters as related to water densities; and
locate any water intake structures by elevations and in relation to the
occurence of a reservoir thermocline.
1.4.3 Tailwater features. -- Using a profile drawing, show
elevations of the turbine or pump runners, maximum and minimum
tailwaters, and of any tailrace excavations.
1.4.4 Transmission facilities. -- Describe any transmission lines,
rights-of-way, and substations existing or planned for future
development, not included as part of the action under application but
considered a necessary adjunct thereto.
1.5 Construction procedures. -- Describe procedures to be taken
prior to or during construction of project works such as the relocation
of homes and commercial and industrial facilities, clearing, preparation
of any diversion works, surveying, land acquisition and environmental
planning. Provide a schedule of construction of major project works and
how this will meet future power needs and avoid such limiting factors as
floods, severe climatic conditions, or migrations of fish. Include
schedules for needed relocations or development of transportation and
other public use facilities and methods of maintaining service during
these activities. Indicate the source of the work forces, numbers
involved, and their housing needs in the area.
1.6 Operational and maintenance procedures. -- Describe the proposed
operational modes and the reasons therefor. Show how the water
resources of the area are to be utilized (provide usable reservoir
storage capacities for respective purposes, area-capacity curves,
hydrology data, drawdowns, and flow duration curves applicable to
project operation during dry, average, and wet years). Include a
discussion of the quantity and quality of water flows as they enter,
pass through the project, and are released to maintain the downstream
aquatic habitat; and of any diversions of water for other uses
including municipal or industrial uses, or fish ladders or hatcheries.
For pumped storage projects describe the daily, weekly, and seasonal
exchanges of waters between upper and lower reservoirs and the water
currents and temperature changes produced by this pseudo-tidal action.
Include also a discussion of any pollutants (and their sources) which
would be discharged as a result of the proposed action. Describe
maintenance of proposed project works under normal conditions; include
types of expected maintenance, and how system or area needs will be met
during shutdown for maintenance. Describe capacity of project works to
withstand both usual and unusual, but possible, natural phenomena and
accidents (e.g., earthquakes, floods, hurricanes or tornadoes, slides);
describe any related geological or structural problems, and measures to
be taken to minimize problems arising from malfunctions and accidents.
1.7 Future plans. -- Describe plans or potential for future
expansion of facilities including land use and the compatibility of
these plans with the proposed action.
2. Description of the existing environment. -- Provide an overall
description of existing conditions for resources which might be affected
directly and indirectly by the proposed action; include a discussion of
such pertinent topics as:
2.1 Land features and uses. -- Identify present uses and describe
the characteristics of the land area.
2.1.1 Land uses. -- Describe the extent of present uses, as in
agriculture, business, industry, recreation, residence, wildlife, and
other uses, including the potential for development; locate major
nearby transportation corridors, including roads, highways, ship
channels, and aviation traffic patterns; locate transmission facilities
on or near the lands affected by the proposed action and their placement
(underground, surface, or overhead).
2.1.2 Topography, physiography, and geology. -- Provide a detailed
description of the topographic, physiographic, and geologic features
within the area of the proposed action. Includes U.S. Geological
Survey Topographic Maps, aerial photographs, and other such graphic
material.
2.1.3 Soils. -- Describe the physical and chemical characteristics of
the soils. Sufficient detail should be given to allow interpretation of
the nature of and fertility of the soil and stability of slopes.
2.1.4 Geological hazards. -- Indicate the probability of occurrence
of geological hazards in the area, such as earthquakes, slumping,
landslides, subsidence, permafrost, and erosion.
2.2 Species and ecosystems. -- Identify those species and ecosystems
that will be affected by the proposed action.
2.2.1 Species. -- List in general categories, by common and
scientific names, the plant and wildlife species found in the area of
the proposed action and indicate those having commercial and
recreational importance.
2.2.2 Communities and associations. -- Describe the dominant plant
and wildlife communities and associations located within the area of the
proposed action. Provide an estimate of the population densities of
major species. If data are not available for the immediate area of the
proposed action, data from comparable areas may be used.
2.2.3 Unique and other biotic resources. -- Describe unique
ecosystems or communities, rare or endangered species, and other biotic
resources that may have special importance in the area of the proposed
action. Describe any areas of critical environmental concern, e.g.,
wetlands and estuaries. Summarize findings of any studies conducted
thereon.
2.3 Socioeconomic considerations. -- If the proposed action could
have a significant socioeconomic effect on the local area, discuss the
socioeconomic future, including population and industrial growth, of the
area without the implementation of the proposed action; describe the
economic development in the vicinity of the proposed action,
particularly the local tax base and per capita income; and identify
trends in economic development and/or land use of the area, both from a
historical and prospective viewpoint. Describe the population densities
of both the immediate and generalized area. Include distances from the
site of the proposed action to nearby residences, cities, and urban
areas and list their populations. Indicate the number and type of
residences, farms, businesses, and industries that will be directly
affected and those requiring relocation if the proposed action occurs.
2.4 Air and water environments. -- Describe the prevailing climate
and the quality of the air (including noise) and water environments of
the area. Estimate the quality and availability of surface water
resources in the proposed project area.
2.4.1 Climate. -- Describe the historic climatic conditions that
prevail in the vicinity of the proposed action; extremes and means of
monthly temperatures, precipitation, and wind speed and direction. In
addition, indicate the frequency of temperature inversions, fog, smog,
icing, and destructive storms such as hurricanes and tornadoes.
2.4.2 Hydrology and hydrography. -- Describe surface waters, fresh,
brackish, or saline, in the vicinity of the proposed action and discuss
drainage basins, physical and chemical characteristics, water use, water
supplies, and circulation. Describe the ground water situation, water
uses and sources, acquifer systems, and flow characteristics.
2.4.3 Air, noise, and water quality monitoring. -- Provide data on
the existing quality of the air and water, indicate the distance(s) from
the proposed action site to monitoring stations and the mean and maximum
audible noise and radio interference levels at the site boundaries.
2.5 Unique features. -- Describe unique or unusual features of the
area, including historical, archeological, and scenic sites and values.
3. Environmental impact of the proposed action. -- Describe all
known or expected significant environmental effects and changes, both
beneficial and adverse, which will take place should the action be
carried out. Include the impacts caused by (a) construction, (b)
operation, including maintenance, breakdown, and malfunctions, and (c)
termination of activities, including abandonment. Include both direct
and primary indirect changes in the existing environment in the
immediate area and throughout the sphere of influence of the proposed
action. 1006
3.1 Construction.
3.1.1 Land features and uses. -- Assess the impact on present or
future land use, including commercial use, mineral resources,
recreational areas, public health and safety, and the aesthetic value of
the land and its features. Describe any temporary restriction on land
use due to construction activities. State the effect of construction
related activities upon local traffic patterns, including roads,
highways, ship channels, and aviation patterns.
3.1.2 Species and ecosystems. -- Assess the impact of construction
on the terrestrial and aquatic species and habitats in the area,
including clearing, excavation, and impoundment. Discuss the
possibility of a major alteration to the ecosystem and any potential
loss of an endangered species.
3.1.3 Socioeconomic considerations. -- Discuss the effect on local
socioeconomic development in relation to labor, housing, local industry,
and public services. Discuss the need for relocations of families and
businesses. Describe the beneficial effects, both direct and indirect,
of the action on the human environment, such as benefits resulting from
the services and products, and other results of the action (include tax
benefits to local and State governments, growth in local tax base from
new business and housing development and payrolls). Describe the impact
on human elements, including the need for increased public services
(schools, health facilities, police and fire protection, housing, waste
disposal, markets, transportation, communication, energy supplies, and
recreational facilities and uses in the proposed project area, including
any changes which will occur in recreational use and potential of the
local area or region) due to the proposed action; provisions for public
access to and use of project lands and waters, including the impacts
these uses will have on the area; project lands reserved for future
recreation development and the types of facilities which will be or
which may need to be provided thereon and how the incremental uses of
these lands will affect the area, including the effects of any increased
recreational use on the land and water resources and on the public
service facilities which presently exist or which would need to be
developed to provide for public needs. Discuss the impact of the
proposed action on national and local historic and archeological sites,
any existing scenic, and cultural values;
3.1.4 Air and water environment. -- Estimate the qualitative and
quantitative effects on air, noise, and water quality, including
sedimentation, and whether regulatory standards in effect for the area
will be complied with.
3.1.5 Waste Disposal. -- Discuss the impact of disposal of all waste
material such as spoils, vegetation, and construction materials.
3.2 Operation and maintenance.
3.2.1 Land features and uses. -- Outline restrictions on existing
and potential land use in the vicinity of the proposed action, including
mineral and water resources. State the effect of operation related
activities upon local traffic patterns including roads, highways, ship
channels, and aviation patterns, and the possible need of new
facilities.
3.2.2 Species and ecosystems. -- Assess the impact of operation upon
terrestrial and aquatic species and habitats, including the importance
of plant and animal species having economic or aesthetic value to man
that would be affected by the action; provide pertinent information on
animal migrations, foods, and reproduction in relation to the impacts;
and describe any ecosystem imbalances that would be caused by the action
and the possibility of major alteration to an ecosystem or the loss of
an endangered species. Assess any effects of this action which would be
cumulative to those of other similar, existing projects or proposed
actions.
3.2.3 Socioeconomic considerations. -- Discuss the effect on the
local socioeconomic development in relation to labor, housing and
population growth trends, relocation, local industry and industrial
growth, and public service. Describe the beneficial effects, both
direct and indirect, of the action on the human environment such as
economic benefits resulting from the services and products, energy, and
other results of the action (include tax benefits to local and State
governments, growth in local tax base from new business and housing
developments, and payrolls). Describe impacts on human elements,
including any need for increased public service (schools, police and
fire protection, housing, waste disposal, markets, transportation,
communication and recreational facilities). Indicate the extent to
which maintenance of the area is dependent upon new sources of energy or
the use of such vital resources as water.
3.2.4 Air and water environment. -- Assess the impact on present air
quality. Assess the impact on present noise levels due to
project-related noises. Assess the impact on present water quality,
including sedimentation, due to reservoir operations, downstream water
releases, power peaking operations, location of outlet works, and
sanitary, waste, and process effluents.
3.2.5 Solid wastes. -- Describe any impacts from accumulation of
solid wastes and byproducts that will be produced.
3.2.6 Use of resources. -- Quantify the resources necessary for
operational uses; e.g., water (human needs and processes), energy
requirements, raw products, and specialized needs. Assess the impact of
obtaining and using these resources.
3.2.7 Maintenance. -- Discuss the impact of maintenance programs,
such as subsequent clearing or treatment of rights-of-way. Discuss the
potential impact of major breakdowns and shutdowns of the facilities and
how service will be maintained during shutdowns.
3.2.8 Accidents and catastrophes. -- Describe any impacts resulting
from accidents and natural catastrophes, which might occur, and provide
an analysis of the capability of the area to absorb predicted impacts.
3.3 Termination and abandonment. -- Discuss the impact on land use
and aesthetics of the termination and/or abandonment of facilities
resulting from the proposed action.
4. Measures to enhance the environment or to avoid or mitigate
adverse environmental effects. -- Identify all measures which will be
undertaken to enhance the environment or eliminate, avoid, mitigate,
protect, or compensate for adverse and detrimental aspects of the
proposed action, as described under part 3, above, including engineering
planning and design, design criteria, contract specifications, selection
of materials, construction techniques, monitoring programs during
construction and operation, environmental tradeoffs, research and
development, and restoration measures which will be taken routinely or
as the need arises.
4.1 Preventative measures and monitoring. -- Discuss provisions for
pre- and post-monitoring of significant environmental impacts of the
proposed action. Include programs for monitoring changes in operational
phases. Describe proposed measures for detecting and modifying noise
levels, monitoring air and water quality, inventorying key species in
food chains, and detecting induced changes in the weather. Describe
measures, including equipment, training procedures, and vector2007
control measures, to be taken for protecting the health and welfare of
workers and the public at the project during its construction,
operation, and maintenance, including structures to exclude people from
hazardous areas or to protect them during changes in operations;
include sanitary and solid and liquid waste disposal facilities for
workers and the public during construction and operation. Discuss
measures to be undertaken to minimize problems arising from malfunctions
and accidents (with estimates of probability of occurrence). Identify
standard procedures for protecting services and environmental values
during maintenance and breakdowns. Discuss proposed and alternative
construction timetables to prevent significant environmental impacts and
plans for implementation of changes whenever necessary to reduce
environmental impact.
4.2 Environmental restoration and enhancement. -- Discuss all
measures to be taken to restore and enhance the environment, including
measures for restoration, replacement, or protection of flora and fauna
and of scenic, historic, archeological, and other natural values,
describe measures to facilitate animal migrations and movements to
protect their life processes (e.g., spawning and rearing of fish);
describe programs for landscaping and horticultural practices; describe
selection and use of any chemicals needed during construction,
operation, and maintenance so as to prevent their entry into waters in
the area; discuss programs to assist displaced families and businesses
in their relocation; describe provisions for public access to, and use
of, lands and waters in the area of the proposed action; and discuss
the preparation of lands prior to and following their use.
5. Unavoidable adverse environmental effects. -- Discuss all
significant environmental effects which cannot be avoided by measures
outlined in section 4 above.
5.1 Human resources impacted. -- Indicate those human resources and
values which will sustain significant, unavoidable adverse effects and
discuss whether the impact will be transitory, a one-time but lasting
effect, repetitive, continual, incremental, or synergistic to other
effects and whether secondary adverse consequences will follow. Focus
on the displacement of people by the proposed action and its local,
economic, and aesthetic implications; on human health and safety; and
on aesthetic and cultural values and standards of living which will be
sacrificed or endangered. Where possible provide quantitative
evaluations of these effects.
5.2 Uses preempted and unavoidable changes. -- Discuss all
significant, unavoidable environmental impacts on the land and its
present use, caused by inundation, clearing, excavation, and fills;
losses to wildlife habitat, forests, unique ecosystems, minerals, and
farmlands; effects on fish habitat and migrations; on relocation of
populations and manmade facilities, such as homes, roads, highways, and
trails; on historical, recreational, archeological, and aesthetic
values or scenic areas.
5.3 Loss of environmental quality. -- Discuss any significant,
unavoidable adverse changes in the air, including dust and emissions to
the air, and noise levels; impacts resulting from solid wastes and
their disposal; effects on the water resources of the area, including
consumptive uses.
6. Relationship between local short-term uses of man's environment
and the maintenance and enhancement of long-term productivity. --
Compare the benefits to be derived from the immediate or short-term use
of the environment, with and without the proposed action, and the
long-term consequences of the proposed action. 3008 Actions which
diminish the diversity of beneficial uses of the environment or preempt
the options for future uses or needs require detailed analysis, to
assure that shortsighted decisions are not made which may commit future
generations to undesirable courses of actions.
6.1 Short-term uses. -- Assess the local short-term uses of man's
environment in terms of the proposed action's benefit to man, land use,
alterations to the ecosystem, use of resources, and public health and
safety.
6.2 Long-term productivity. -- Discuss any cumulative long-term
effects which may be caused by the proposed action in terms of land use,
alterations to the ecosystem, use of resources and public health and
safety.
7. Irreversible and irretrievable commitments of resources. --
Discuss, and quantify when possible, any irrevocable commitments of
resources which would be involved in the implementation of the proposed
action.
7.1 Land features and uses. -- Discuss any permanent changes in land
features and/or land use.
7.2 Endangered species and ecosystems. -- Assess the possibility of
eliminating any endangered species or the loss or alteration of an
ecosystem.
7.3 Socioeconomic considerations. -- Discuss probable indirect
actions (e.g., new highway system or waste water treatment facilities,
housing developments, etc.) made economically feasible by the
implementation of the proposed action that would likely be triggered and
would irrevocably commit other resources under our free enterprise
system. Identify the destruction of any historical, archeological, or
scenic areas.
7.4 Resources lost or uses preempted. -- Analyzed the extent to
which the proposed action would curtail the range of beneficial uses of
the environment. Determine whether, considering presently known
technology, the proposed use of resources or any resource extraction
method would contaminate other associated resources or foreclose their
usage.
7.5 Finite resources. -- Indicate the irreversible and/or
irretrievable resources that would be committed as a result of the
proposed action, such as fossil fuels, and construction materials.
8. Alternatives to the proposed action. -- Discuss the systematic
procedure used to arrive at the proposed action, starting with the
broadest, feasible objectives of the action and progressively narrowing
the alternatives to a specific action at a specific site or
right-of-way. This systematic procedure should include the decision
criteria used, the information weighed, and an explanation of the
conclusion at each decision point. The decision criteria must show how
environmental benefits/costs, even if not quantifiable, are weighed
against economic benefits/costs and technology and procedural
constraints. All realistic alternatives must be discussed even though
they may not be within the jurisdiction of the Commission or the
responsibilities and capabilities of the applicant. Modification of the
proposed action may be among the alternatives. Describe the timeliness
and the environmental consequences of each alternative discussed.
8.1 Objective. -- Explain the need for any proposed new energy
supply.
8.2 Energy alternatives. -- Discuss the potential for accomplishing
the proposed objectives through energy conservation and the potential
for using realistic energy alternatives, such as natural and artificial
gas, oil, and coal. Also discuss realistic electric energy
alternatives, such as gas, oil, coal, and nuclear-fueled powerplants,
and other conventional and pumped storage hydroelectric plants. Provide
an analysis of environmental benefits and costs.
8.3 Sites and locations. -- Discuss considerations given to
alternative sites and locations. Include a description of each site, a
summary of environmental factors of each site, the reasons for
rejection, and an analysis of environmental benefits and costs.
8.4 Designs, processes, and operations. -- Describe alternative
facility designs, processes (e.g., handling of waste water and solid
wastes), and/or operations that were considered and discuss the
environmental consequences of each, the reasons for rejection, and an
analysis of environmental benefits and costs.
8.5 No action. -- Discuss the alternative of no action with an
evaluation of the consequences of this option on a national, regional,
State, or local level, as appropriate. Present a brief perspective of
what future use the proposed site (area) may assume if the proposed
facilities are not constructed and summarize the environmental benefits
and costs.
9. Permits and compliance with other regulations and codes.
9.1 Permits. -- Identify all necessary Federal, regional, State and
local permits, licenses, and certificates needed before the proposed
action can be completed, such as permits needed from State and local
agencies for construction and waste discharges. Describe steps which
have been taken to secure these permits and any additional efforts still
required.
9.1.1 Authorities consulted. -- List all authorities consulted for
obtaining permits, licenses, and certificates, including zoning
approvals needed to comply with applicable statutes and regulations.
9.1.2 Dates of approval. -- Give dates of consultations and of any
approvals received.
9.2 Compliance with health and safety regulations and codes. --
Identify all Federal, regional, State, and local safety and health
regulations and codes which must be complied with in the construction,
maintenance, and operation of the proposed project. Also identify other
health and safety standards and codes that will be complied with, such
as underwriter codes and voluntary industry codes.
9.2.1 Authorities consulted. -- List all authorities and
professional organizations consulted in identifying pertinent
regulations and codes.
9.2.2 Procedures to be followed. -- Describe any specific procedures
or actions that will be taken to assure compliance with each such
regulation and code.
9.3 Compliance with other regulations and codes. -- Identify all
other Federal, regional, State and local regulations and codes which
must be complied with in the construction, maintenance, and operation of
the proposed project.
9.3.1 Authorities consulted. -- List all authorities and
professional organizations consulted in identifying pertinent
regulations and codes.
9.3.2 Procedures to be followed. -- Explained the specific
procedures or actions that will be taken to assure compliance with each
such regulation and code.
10. Source of information.
10.1 Public hearings. -- Describe any public hearings or meetings
held, summarize the general tenor of public comments with the
proportions of proponents to those in dissent, and include any public
records resulting from these meetings. Include a description of the
manner in which the public was informed of the time and place of the
hearings. Fully discuss efforts made for seeking constructive inputs
from affected people and how their concerns were accommodated.
10.2 Other sources. -- Identify all other sources of information
utilized in the preparation of the environmental report, including:
10.2.1 Meetings with governmental and other entities. -- List
meetings held with Federal, regional, State, and local planning,
commerce, regulatory, environmental and conservation entities, the
subjects discussed (e.g., recreation, fish, wildlife, aesthetics, other
natural resources, and values of the area, and economic development),
and any environmental conclusions reached as a result of the meeting.
10.2.2 Studies conducted. -- Identify the studies conducted,
including those by consultants, the general nature and major findings of
those studies, and the title and availability of any reports thereon.
10.2.3 Consultants. -- Give the names, addresses, and professional
vitae of all consultants who contributed to the environmental report.
10.2.4 Bibliography. -- Provide a bibliography of the books, other
publications, reports, documents, maps, and aerial photographs consulted
for background information, including county land use and other planning
reports. Indicate by some method, as by asterisks or numbers, those
biblographic references specifically cited in the environmental report.
10.3 Provide copies of supportive reports. -- Supply at least a
single copy of all technical reports prepared in conjunction with the
preparation of the environmental report, such as model, heat budget,
plankton, fish, and benthic sampling studies.
(Federal Power Act, as amended, 16 U.S.C. 792-828c; Public Utility
Regulatory Policies Act of 1978, as amended 16 U.S.C. 2601-2645; Dept.
of Energy Organization Act, 42 U.S.C. 7101-7352; E.O. 12009, 3 CFR part
142 (1979); 5 U.S.C. 553)
(Order 415-C, 38 FR 15949, June 19, 1973. Redesignated by Order 486,
52 FR 47910, Dec. 17, 1987, and amended by Order 486, 52 FR 47914, Dec.
17, 1987)
0061Changes in the Environment Throughout the Sphere of Influence of
Proposed Action. -- Direct and indirect effects are those effects which
can be discerned as occurring primarily because the proposed action
would occur. For example: (1) The impact of a borrow pit would be
evaluated to the extent that it would be developed or expanded but the
manufacture of conventional trucks to work the pit would not; (2) the
impact of construction workers moving into the area would be evaluated
but not the impact of their leaving present homes. However, the impact
of their subsequent leaving this place must be considered.
0072Carriers (e.g., ticks, mosquitoes, and rodents) of diseases.
0083Duration of Impacts -- Short-term impacts and benefits generally
are those which occur during the development and operation of a project.
Long-term productivity related to an effect that remains many years
(sometimes permanently) after the cause. As examples, strip mining
without restoration and land inundation by reservoirs have obvious
long-term effects.
18 CFR 380.11 PART 381 -- FEES
18 CFR 380.11 Subpart A -- General Provisions
Sec.
381.101 Purpose.
381.102 Definitions.
381.103 Filings.
381.104 Annual adjustment of fees.
381.105 Method of payment.
381.106 Waivers.
381.107 Direct billing.
381.108 Exemptions.
381.109 Refunds.
381.110 Fees for substantial amendments.
18 CFR 380.11 Subpart B -- Fees Applicable to the Natural Gas Act and
Related Authorities
381.207 Pipeline certificate applications.
18 CFR 380.11 Subpart C -- Fees Applicable to General Activities
381.302 Petition for issuance of a declaratory order (except under
Part I of the Federal Power Act).
381.303 Review of a Department of Energy remedial order.
381.304 Review of Department of Energy denial of adjustment.
18 CFR 380.11 Subpart D -- Fees Applicable to the Natural Gas Policy
Act of 1978
381.402 Review of jurisdictional agency determinations.
381.403 Petitions for rate approval pursuant to section
284.123(b)(2).
381.404 Initial or extension reports for Title III transactions.
18 CFR 380.11 Subpart E -- Fees Applicable to Certain Matters Under
Parts II and III of the Federal Power Act and the Public Utility
Regulatory Policies Act
381.501 Applicability.
381.505 Certification of qualifying status as a small power
production facility or cogeneration facility.
18 CFR 380.11 Subpart F -- Fees Applicable to the Public Utility
Regulatory Policies Act of 1978.
381.601 5 Megawatt exemption application.
18 CFR 380.11 Subpart G -- Fees Applicable to the Interstate Commerce Act and Related Authorities (Reserved)
18 CFR 380.11 Subpart H -- Fees Applicable to the Public Utility
Holding Company Act of 1935.
381.801 Applications for exempt wholesale generator status.
Authority: 15 U.S.C. 717-717w; 16 U.S.C. 791-828c, 2601-2645; 31
U.S.C. 9701; 42 U.S.C. 7101-7352; and 49 U.S.C. 1-27.
Source: Order 360, 49 FR 5081, Feb. 10, 1984, unless otherwise
noted.
18 CFR 380.11 Subpart A -- General Provisions
18 CFR 381.101 Purpose.
The purpose of this part is to set forth the fees charged by the
Commission for services and benefits provided by the Commission.
18 CFR 381.102 Definitions.
For purposes of this part, the following definitions apply.
(a) Person means any person, group, association, organization,
partnership, corporation, or business, except those authorized to engage
in the transaction of official business for the United States
Government.
(b) Work year cost means the ratio of the Commission's budgeted
expenses during any given fiscal year to the authorized staff level for
that fiscal year.
(c) Work-month means the amount of work represented by one employee's
devotion of 100 percent of his or her time for one month.
(d) Filing means any application, tariff or rate filing,
intervention, complaint, petition, request, or motion submitted to the
Commission in connection with any of the services or benefits for which
a fee is established in this part.
18 CFR 381.103 Filings.
(a) Submittal of fees. Except as provided in 274.201(e) and
381.106, a fee in the amount set forth in this part shall accompany each
filing for which a fee has been established.
(b) Deficiencies. (1) Any filing that is not accompanied by either
the fee established for that filing or a petition for waiver in
accordance with 381.106(b) is deficient.
(2) The Secretary will inform any person submitting a deficient
filing that:
(i) Such filing will be rejected unless the appropriate fee is
submitted within a time specified by the Secretary;
(ii) The Commission will not process any filing that is deficient
under this paragraph; and
(iii) The date of filing is the date on which the Commission receives
the appropriate fee.
(3) This provision does not preclude a determination that a filing is
deficient for any other reason.
(c) Choice of two or more fees. If a filing for one service or
benefit may be considered as falling within two or more categories or
services for which a fee is established, that filing must be accompanied
by the higher or highest of the applicable fees.
(Order 360, 49 FR 5081, Feb. 10, 1984, as amended by Order 394, 49 FR
35365, Sept. 7, 1984)
18 CFR 381.104 Annual adjustment of fees.
(a) Update and publication. The Commission, by its designee the
Executive Director, will update its fees each fiscal year according to
the formula in paragraph (c) of this section. The Executive Director
will publish the fees in the Federal Register.
(b) Payment of updated fees. Any person who submits a filing for
which a fee is established in this part must pay the currently effective
fee unless a waiver is granted.
(c) Formula. (1) Except as provided in paragraph (c)(2) of this
section, the formula for determining each fee is the workmonths
dedicated to the given fee category for the six fiscal years 1987
through 1992 or all years prior to FY 93 for which data are available
divided by the number of actual completions in the six fiscal years 1987
through 1992 or all years prior to FY 93 for which data are available
multiplied by the average monthly employee cost in the most recent
fiscal year for which data are available.
(2) With respect to the fees charged to pipelines filing pursuant to
381.207(a), the fee for the first year will be $1,000. The formula for
the fee in future years will be the workmonths from the immediately
prior year divided by the number of actual completions in that year
multiplied by the average monthly employee cost in the most recent
fiscal year for which data are available. With the addition of future
years, the formula for 381.207(a) fees will be updated to include that
year as part of the base period.
(d) Effective date of fee. Any fee updated under this section is
effective on the thirtieth day after publication in the Federal Register
of the revised sections in this part, unless otherwise specified in the
Federal Register notice.
(Order 360, 49 FR 5081, Feb. 10, 1984, as amended by Order 494, 53 FR
15382, Apr. 29, 1988; Order 521, 55 FR 12171, Apr. 2, 1990; 58 FR
2975, Jan. 7, 1993)
18 CFR 381.105 Method of payment.
Fee payment shall be made by check or money order payable to the
Treasurer of the United States. The check should state the nature of
the filing and the docket number where applicable so that the fee
category for which the check is being submitted is clearly identifiable.
18 CFR 381.106 Waivers.
(a) Filing of petition. If an applicant is suffering from severe
economic hardship at the time of filing an application which makes the
applicant economically unable to pay the appropriate fee for the
application, rate change, tariff, petition, request or other filing
requiring a fee, the applicant may submit an original and two copies of
a petition for waiver with the application in lieu of the applicable
fee. The petition for waiver must include evidence, such as a financial
statement, clearly showing either that the applicant does not have the
money to pay all or part of the fee, or that if the applicant does pay
the fee, the applicant will be placed in financial distress or
emergency.
(b) Decision on petition. The Commission or its designee will
analyze each petition to determine whether the applicant has met the
standards for waiver and then will notify the applicant of its grant or
denial, in whole or in part. If the petition is denied, the applicant
will have 30 days from the date of notification of the denial to submit
the appropriate fee to the Commission.
(Order 360, 49 FR 5081, Feb. 10, 1984, as amended by Order 395, 49 FR
35356, Sept. 7, 1984)
18 CFR 381.107 Direct billing.
(a) Applicability. If a filing presents an issue of fact, law,
policy, procedural difficulty, or technical complexity that requires an
extraordinary amount of expense to process, the Commission may institute
a direct billing procedure for the direct and indirect costs of
processing that filing. The Commission will make a direct billing
determination under this paragraph not later than one year after
receiving a complete filing from an applicant.
(b) Procedures. (1) Direct billing will not be instituted with
respect to any filing until the person who submitted the filing is
notified that direct billing will be applied to the filing in lieu of
the fees established under this part.
(2) Any fee submitted with the filing will be applied, as a credit,
to the amount billed directly for processing costs. The Secretary will
thereafter periodically bill the person who submitted the filing for the
actual direct and indirect costs of processing the filing.
(3) If the Commission institutes a direct billing for the costs of a
hearing and reduces the fee to the applicant to less than full cost
recovery due to the presence of intervenors, the Commission will
consider, on a case-by-case basis, direct billing the intervenors for
all or part of the reduced portion.
(Order 360, 49 FR 5081, Feb. 10, 1984, as amended by Order 433, 50 FR
40346, Oct. 3, 1985; 58 FR 2975, Jan. 7, 1993)
18 CFR 381.108 Exemptions.
(a) Filing of petition. States, municipalities and anyone who is
engaged in the official business of the Federal Government are exempt
from the fees required by this part and may file a petition for
exemption in lieu of the applicable fee.
(b) Decision on petition. A petitioner may claim this exemption by
filing an original and two copies of a petition for exemption that
includes evidence that the petitioner is a State or municipality, or is
engaged in the official business of the Federal Government. The
Commission or its designee will analyze each petition to determine
whether the petition has met the standards for exemption and will notify
the petitioner whether it is granted or denied. If the petition is
denied, the person will have thirty days from the date of notification
of the denial to submit the appropriate fee to the Commission.
(Order 395, 49 FR 35356, Sept. 7, 1984)
18 CFR 381.109 Refunds.
Fees established under this part may be refunded only if the related
filing is withdrawn within fifteen (15) days of the date of filing or,
if applicable, before the filing is noticed in the Federal Register or,
if the fee is inappropriately paid for a filing for which no fee is
established. Fees paid in excess of the fees established under this
part may be refunded to the extent of the amount paid in excess. To
obtain a refund, the applicant must file a motion requesting refund with
the Commission.
(Order 433, 50 FR 40346, Oct. 3, 1985, as amended by Order 433-A, 51
FR 43607, Dec. 3, 1986)
18 CFR 381.110 Fees for substantial amendments.
Fees established under this part for any filing will also be charged,
as appropriate, for any substantial amendment to a pending filing. An
amendment is considered substantial if it changes the character, nature,
or the magnitude of the proposed activity or rate in the pending filing.
For purposes of this section, an application for a temporary
certificate is not considered to be an amendment to a pending
certificate application.
(Order 433-A, 51 FR 43607, Dec. 3, 1986)
18 CFR 381.110 Subpart B -- Fees Applicable to the Natural Gas Act and Related Authorities
18 CFR 381.207 Pipeline certificate applications.
(a) Definition. For purposes of this section, ''pipeline certificate
application'' means any application for authorization or exemption, any
substantial amendment to such an application, and any application, other
than an application for a temporary certificate, for authorization to
amend an outstanding authorization or exemption, by any person, made
pursuant to section 7(c) of the Natural Gas Act filed in accordance with
284.224 of this chapter.
(b) Fee. Unless the Commission orders direct billing under 381.107
or otherwise, the fee established for a blanket certificate application
is $1,000. The fee filed under this paragraph must be submitted in
accordance with 284.224 of this chapter.
(c) Effective date. Any pipeline certificate application filed with
the Commission prior to November 4, 1985, is subject to the fees
established by part 159 of this chapter to the extent that part 159
applies to such an application.
(Order 433, 50 FR 40346, Oct. 3, 1985, as amended by Order 433-A, 51
FR 43607, Dec. 3, 1986; 52 FR 10367, Apr. 1, 1987; 53 FR 15384, Apr.
29, 1988; 54 FR 12901, Mar. 29, 1989; 55 FR 13901, Apr. 13, 1990; 56
FR 15497, Apr. 17, 1991; 58 FR 2975, Jan. 7, 1993)
18 CFR 381.207 Subpart C -- Fees Applicable to General Activities
Source: Order 395, 49 FR 35356, Sept. 7, 1984, unless otherwise
noted.
18 CFR 381.302 Petition for issuance of a declaratory order (except
under Part I of the Federal Power Act.)
(a) Except as provided in paragraph (b) of this section, the fee
established for filing a petition for issuance of a declaratory order
under 385.207 of this chapter is $7,720. The fee must be submitted in
accordance with subpart A of this part.
(b) No fee is necessary to file a petition for issuance of a
declaratory order that solely concerns the investigation, issuance,
transfer, renewal, revocation, and enforcement of licenses and permits
for the construction, operation, and maintenance of dams, water
conduits, reservoirs, powerhouses, transmission lines, or other works
for the development and improvement of navigation and for the
development and utilization of power across, along, from, or in
navigable waters under Part I of the Federal Power Act.
(c) A person claiming the exemption provided in paragraph (b) of this
section must file an original and two copies of a petition for exemption
in lieu of a fee along with its petition for issuance of a declaratory
order. The petition for exemption should summarize the issues raised in
the petition for issuance of a declaratory order and explain why the
exemption is applicable. The Commission or its designee will analyze
each petition to determine whether the petition has met the standards
for exemption and will notify the applicant whether it is granted or
denied. If the petition is denied, the petitioner will have thirty days
from the date of notification of the denial to submit the appropriate
fee to the Commission.
(Order 395, 49 FR 35356, Sept. 7, 1984, as amended at 52 FR 10367,
Apr. 1, 1987; 53 FR 15382, Apr. 29, 1988; 54 FR 12901, Mar. 29, 1989;
55 FR 13901, Apr. 13, 1990; 56 FR 15497, Apr. 17, 1991; 57 FR 15225,
Apr. 27, 1992)
18 CFR 381.303 Review of a Department of Energy remedial order.
(a) Except as provided in 381.303(b), the fee established for an
answer to a Department of Energy remedial order under Subpart I of the
Commission's Rules of Practice and Procedure, 18 CFR part 385, subpart I
(1983), is $13,400. The fee must be submitted in accordance with
subpart A of this part.
(b) If the amount in controversy is below $30,000, then the fee to
file a petition for review of a DOE remedial order is reduced as
follows:
(c) In order to qualify for the fees in paragraph (b) of this
section, the check must be accompanied by an affidavit by the petitioner
that states the amount in controversy.
(Order 395, 49 FR 35356, Sept. 7, 1984, as amended at 49 FR 44275,
Nov. 6, 1984; 52 FR 10367, Apr. 1, 1987; 53 FR 15384, Apr. 29, 1988;
54 FR 12901, Mar. 29, 1989; 55 FR 13901, Apr. 13, 1990; 56 FR 15497,
Apr. 17, 1991; 57 FR 15225, Apr. 27, 1992)
18 CFR 381.304 Review of Department of Energy denial of adjustment.
(a) Except as provided in 381.304(b), the fee established for filing
a petition for review of a Department of Energy denial of an adjustment
request under subpart J of the Commission's Rules of Practice and
Procedure, 18 CFR part 385, subpart J (1983), is $5,760. The fee must
be submitted in accordance with subpart A of this part.
(b) If the amount in controversy is below $30,000, then the fee to
file a petition for review of a DOE denial of an adjustment is reduced
as follows:
(c) In order to qualify for the fees in paragraph (b) of this
section, the check must be accompanied by an affidavit by the petitioner
that states the amount in controversy.
(Order 395, 49 FR 35356, Sept. 7, 1984, as amended at 49 FR 44275,
Nov. 6, 1984; 52 FR 10367, Apr. 1, 1987; 53 FR 15384, Apr. 29, 1988;
54 FR 12901, Mar. 29, 1989; 55 FR 13901, Apr. 13, 1990)
18 CFR 381.305 Interpretations by the Office of the General Counsel.
(a) Except as provided in paragraph (b) of this section, the fee
established for a written interpretation by the Office of the General
Counsel of any statute or implementing regulation under the jurisdiction
of the Commission is $2,310. The fee must be submitted in accordance
with subpart A of this part and 385.1901 or 388.104 of this chapter.
(b) No fee is necessary to file a request for a written
interpretation by the Office of the General Counsel that solely concerns
matters under Part I of the Federal Power Act.
(c) A person claiming the exemption provided in paragraph (b) of this
section must file an original and two copies of a petition for exemption
in lieu of a fee along with the request for a written interpretation.
The petition for exemption should summarize the issues raised in the
request for a legal opinion and explain why the exemption is applicable.
The Commission or its designee will analyze each petition to determine
whether the petition has met the standards for exemption and will notify
the applicant whether it is granted or denied. If the petition is
denied, the applicant will have 30 days from the date of notification of
the denial to submit the appropriate fee to the Commission.
(Order 494, 53 FR 15382, Apr. 29, 1988, as amended at 54 FR 12901,
Mar. 29, 1989; 55 FR 13901, Apr. 13, 1990; 56 FR 15497, Apr. 17, 1991;
57 FR 15226, Apr. 27, 1992)
18 CFR 381.305 Subpart D -- Fees Applicable to the Natural Gas Policy
Act of 1978
Source: Order 394, 49 FR 35365, Sept. 7, 1984, unless otherwise
noted.
18 CFR 381.402 Review of jurisdictional agency determinations.
The fee established for review of a jurisdictional agency
determination is $85. The fee must be submitted in accordance with
subpart A of this part and 274.201(e) of this chapter.
(Order 494, 53 FR 15382, Apr. 29, 1988, as amended at 54 FR 12901,
Mar. 29, 1989; 56 FR 15497, Apr. 17, 1991)
18 CFR 381.403 Petitions for rate approval pursuant to 284.123(b)(2).
The fee established for a petition for rate approval pursuant to
284.123(b)(2) is $4,320. Such fee must be submitted in accordance with
subpart A of this part and 284.123(b)(2).
(Order 394, 49 FR 35365, Sept. 7, 1984, as amended at 52 FR 10367,
Apr. 1, 1987; 53 FR 15384, Apr. 29, 1988; 54 FR 12901, Mar. 29, 1989;
55 FR 13901, Apr. 13, 1990; 56 FR 15497, Apr. 17, 1991; 57 FR 15226,
Apr. 27, 1992)
18 CFR 381.404 Initial or extension reports for Title III transactions.
The fee established for an initial or extension report is $120. The
fee must be submitted in accordance with subpart A of this part and
284.126(c), 284.148(e), and 284.165(d).
(58 FR 2975, Jan. 7, 1993)
18 CFR 381.404 Subpart E -- Fees Applicable to Certain Matters Under
Parts II and III of the Federal Power Act and the Public Utility
Regulatory Policies Act
Source: Order 435, 50 FR 40358, Oct. 3, 1985, unless otherwise
noted.
18 CFR 381.501 Applicability.
The fees set forth in this subpart apply to filings submitted on or
after November 4, 1985.
18 CFR 381.505 Certification of qualifying status as a small power
production facility or cogeneration facility.
(a) Unless the Commission orders direct billing under 381.107 of
this chapter or otherwise, the fee established for an application for
Commission certification as a qualifying small power production
facility, as defined in section 3(17) of the Federal Power Act, is
$9,100 and the fee established for an application for Commission
certification as a qualifying cogeneration facility, as defined in
section 3(18) of the Federal Power Act, is $10,540.
(b) The fee filed under this section must be submitted in accordance
with subpart A of this part and 292.207(b)(2) of this chapter.
(Order 494, 53 FR 15382, Apr. 29, 1988, as amended at 54 FR 12901,
Mar. 29, 1989; 55 FR 13901, Apr. 13, 1990; 56 FR 15497, Apr. 17, 1991;
57 FR 15226, Apr. 27, 1992)
18 CFR 381.505 Subpart F -- Fees Applicable to the Public Utility Regulatory Policies Act of 1978
18 CFR 381.601 5 Megawatt exemption application.
The fee established for a 5 Megawatt exemption application under
section 405 of the Public Utility Regulatory Policies Act of 1978 and
part 4, subpart K of this chapter is $20,650. The fee must be submitted
in accordance with subpart A of this part.
(Order 494, 53 FR 15383, Apr. 29, 1988, as amended at 54 FR 12901,
Mar. 29, 1989; 55 FR 13901, Apr. 13, 1990; 56 FR 15498, Apr. 17, 1991;
57 FR 15226, Apr. 27, 1992)
18 CFR 381.601 Subpart G -- Fees Applicable to the Interstate Commerce Act and Related Authorities (Reserved)
18 CFR 381.601 SUBPART H -- FEES APPLICABLE TO THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
18 CFR 381.801 Applications for exempt wholesale generator status.
The fee established for applications for exempt wholesale generator
status under section 32 of the Public Utility Holding Company Act of
1935 and subchapter T, part 365 of this chapter, applicable to
applicants who will not become public utilities as defined in section
201(e) of the Federal Power Act upon the sale of electric energy at
wholesale, is $1,000. The fee must be submitted in accordance with
subpart A of this part.
(Order 550, 58 FR 8907, Feb. 18, 1993)
18 CFR 381.801 PART 382 -- ANNUAL CHARGES
18 CFR 381.801 Subpart A -- General Provisions
Sec.
382.101 Purpose.
382.102 Definitions.
382.103 Payment.
382.104 Enforcement.
382.105 Waiver.
382.106 Accounting for annual charges paid under part 382.
18 CFR 381.801 Subpart B -- Annual Charges
382.201 Annual charges under Parts II and III of the Federal Power
Act and related statutes.
382.202 Annual charges under the Natural Gas Act and Natural Gas
Policy Act of 1978 and related statutes.
382.203 Annual charges under the Interstate Commerce Act.
Authority: Sec. 3401, Pub. L. 99-509, 100 Stat. 1890-1891; 42
U.S.C. 7101-7352; E.O. 12009, 3 CFR, 1978 Comp., p. 142; 5 U.S.C.
551-557; 15 U.S.C. 717-717w; 16 U.S.C. 791a-828c; 15 U.S.C.
3301-3432; 16 U.S.C. 2601-2645; 49 U.S.C. 1-27.
Source: Order 472, 52 FR 21292, June 5, 1987, unless otherwise
noted.
18 CFR 381.801 Subpart A -- General Provisions
18 CFR 382.101 Purpose.
The purpose of this part is to establish procedures for calculating
and assessing annual charges to reimburse the United States for all of
the costs incurred by the Commission, other than costs incurred in
administering Part I of the Federal Power Act and costs recovered
through the Commission's filing fees.
18 CFR 382.102 Definitions.
For the purpose of this part:
(a) Natural gas pipeline company means any person:
(1) Engaged in natural gas sales for resale or natural gas
transportation subject to the jurisdiction of the Commission under the
Natural Gas Act whose sales for resale and transportation exceed 200,000
Mcf at 14.73 psi (60 F) in any of the three calendar years immediately
preceding the fiscal year for which the Commission is assessing annual
charges; and
(2) Not engaged solely in ''first sales'' of natural gas as that term
is defined in section 2(21) of the Natural Gas Policy Act of 1978; and
(3) To whom the Commission has not issued a Natural Gas Act Section
7(f) declaration; and
(4) Not holding a limited jurisdiction certificate.
(b) Public utility means any person who owns or operates facilities
subject to the jurisdiction of the Commission under Parts II and III of
the Federal Power Act, and who has rate schedule(s) on file with the
Commission and who is not a ''qualifying small power producer'' or a
''qualifying cogenerator'', as those terms are defined in section 3 of
the Federal Power Act, or the United States or a state, or any political
subdivision of the United States or a state, or any agency, authority,
or instrumentality of the United States, a state, political subdivision
of the United States, or political subdivision of a state.
(c) Oil pipeline company means any person engaged in the
transportation of crude oil and petroleum products subject to the
Commission's jurisdiction under the Interstate Commerce Act.
(d) Natural gas regulatory program is the Commission's regulation of
the natural gas industry under the Natural Gas Act; Natural Gas Policy
Act of 1978; Alaska Natural Gas Transportation Act; Public Utility
Regulatory Policies Act; Department of Energy Organization Act; Outer
Continental Shelf Lands Act; Energy Security Act; Regulatory
Flexibility Act; Crude Oil Windfall Profit Tax Act; National
Environmental Policy Act; National Historic Preservation Act.
(e) Electric regulatory program is the Commission's regulation of the
electric industry under Parts II and III of the Federal Power Act;
Public Utility Regulatory Policies Act; Powerplant and Industrial Fuel
Use Act; Department of Energy Organization Act; Energy Security Act;
Regulatory Flexibility Act; Pacific Northwest Electric Power Planning
and Conservation Act; Flood Control and River and Harbor Acts;
Bonneville Project Act; Federal Columbia River Transmission Act;
Reclamation Project Act; Nuclear Waste Policy Act; National
Environmental Policy Act; and the Public Utility Holding Company Act.
(f) Oil regulatory program is the Commission's regulation of the oil
pipeline industry under the Interstate Commerce Act; Department of
Energy Organization Act; Regulatory Flexibility Act; Outer Continental
Shelf Lands Act; and the Crude Oil Windfall Profit Tax Act.
(g) Person means an individual, partnership, corporation,
association, joint stock company, public trust, or organized group of
persons, whether incorporated or not.
(h) Adjusted sales for resale activities means the portion of the
Commission's electric regulatory program devoted to the regulation of
sales for resale.
(i) Adjusted sales for resale are the jurisdictional sales of energy
under contracts that do not anticipate service interruptions Such energy
must be available to a resale customer at all times during the period
covered by a commitment, even under adverse conditions. Transactions to
include under this reporting category are firm power sales supplying the
full requirements or partial requirements of a customer, and sales of
energy from unit or system capacity of a long-term duration (five years
or more) under contracts that do not anticipate service interruptions
when capacity is operationally available. These transactions include
long-term sales of capacity and energy and long-term firm transmission
service.
(j) Adjusted transmission delivered are jurisdictional energy
transactions not included in the above ''Adjusted sales for resale''
category, involving power transmitted for another party over the
transmission facilities of the utility providing service.
(k) Adjusted exchange delivered are jurisdictional energy
transactions not included in either the above ''Adjusted sales for
resale'' category or the above ''Adjusted transmission delivered''
category.
(l) Adjusted coordination sales activities means the portion of the
Commission's electric regulatory program consisting of the regulation of
all jurisdictional sales of energy except adjusted sales for resale
activities.
(m) Adjusted sales for resale kilowatt-hours means the number of
kilowatt-hours of electrical energy (1) sold under contracts that do not
anticipate service interruptions, (2) reported as adjusted sales for
resale under section 382.201(b)(4) of this part, and (3) the rates,
charges, terms and conditions of which are regulated by the Commission.
(n) Adjusted coordination sales megawatt-hours means the number of
megawatt-hours of electrical energy that are: (1) Not adjusted sales
for resale megawatt-hours; (2) reported as adjusted exchange delivered
or adjusted transmission delivered under 382.201(b)(4); and (3) the
rates, charges, terms and conditions of which are regulated by the
Commission.
(o) Operating revenues means the monies: (1) Received by an oil
pipeline company for providing interstate common carrier services
regulated by the Commission, and (2) included in FERC Account No. 200,
210, or 220 in FERC Annual Report Form No. 6, page 301, lines 1, 2 and
3, column d, under part 352 of the Commission's regulations.
(p) Fiscal year means the twelve-month period that begins on the
first day of October and ends on the last day of September.
(q) Preceding calendar year means the twelve-month period that begins
on the first day of January and ends the last day of December and
immediately precedes the end of the fiscal year for which the Commission
is assessing annual charges.
(r) Adjusted costs of administration means the difference between the
estimated costs of administering a regulatory program for each fiscal
year adjusted to reflect any overcollection or undercollection of cost
attributable to that regulatory program in the annual charge assessment
for the preceding fiscal year, and the estimated amount of filing fees
collected during that fiscal year under the provisions of parts 346 and
381 of the Commission's regulations for activities that relate to that
regulatory program.
(s) Power Marketing Agencies means the Bonneville Power
Administration, the Alaska Power Administration, the Southeastern Power
Administration, the Southwestern Power Administration, and the Western
Area Power Administration.
(Order 472, 52 FR 21292, June 5, 1987, as amended by Order 472-B, 52
FR 36022, Sept. 25, 1987; Order 529, 55 FR 47321, Nov. 13, 1990)
18 CFR 382.103 Payment.
(a) Annual charges assessed under this part must be paid within 45
days of the issuance of the bill by the Commission, unless a petition
for waiver has been filed under 382.105 of this part.
(b) Payment must be made by check, draft, or money order, payable to
the United States Treasury.
(c) If payment is not made within 45 days of issuance of a bill,
interest will be assessed. Interest will be computed in accordance with
154.67(c)(2)(iii) of this chapter, from the date on which the bill
becomes delinquent.
18 CFR 382.104 Enforcement.
The Commission may refuse to process any petition, application, or
other filing submitted by or on the behalf of any person that does not
pay the annual charge assessed when due, or may take any other
appropriate action permitted by law.
18 CFR 382.105 Waiver.
(a) Filing of petition. Any annual charges bill recipient may submit
a petition for waiver of the regulations in this part. An original and
two copies of a petition for waiver must include evidence, such as a
financial statement, clearly showing either that the petitioner does not
have the money to pay all or part of the annual charge, or, if the
petitioner does pay the annual charge, that the petitioner will be
placed in financial distress or emergency. Petitions for waiver must be
filed with the Office of the Secretary of the Commission within 15 days
of issuance of the bill.
(b) Decision on petition. The Commission or its designee will review
the petition for waiver and then will notify the applicant of its grant
or denial, in whole or in part. If the petition is denied in whole or
in part, the annual charge becomes due 30 days from the date of
notification of the denial.
18 CFR 382.106 Accounting for annual charges paid under part 382.
(a) Any natural gas pipeline company subject to the provisions of
this part must account for annual charges paid by charging the account
to Account No. 928, Regulatory Commission Expenses, of the Commission's
Uniform System of Accounts.
(b) Any public utility subject to the provisions of this part must
account for annual charges paid by charging the amount to Account No.
928, Regulatory Commission Expenses, of the Commission's Uniform System
Accounts.
(c) Any oil pipeline company subject to the provisions of this part
must account for annual charges paid by charging the amount to Account
No. 510, Supplies and Expenses, of the Commission's Uniform System of
Accounts.
(Order 472, 52 FR 21292, June 5, 1987, as amended by Order 472-B, 52
FR 36022, Sept. 25, 1987)
18 CFR 382.106 Subpart B -- Annual Charges
18 CFR 382.201 Annual charges under Parts II and III of the Federal
Power Act and related statutes.
(a) Determination of costs to be assessed against public utilities.
The adjusted costs of administration of the electric regulatory program,
excluding the costs of regulating the Power Marketing Agencies, will be
apportioned between adjusted sales for resale activities and adjusted
coordination sales activities in proportion to the total staff time
dedicated to each. The amount apportioned to adjusted sales for resale
activities will constitute ''adjusted sales for resale costs,'' and the
amount apportioned to adjusted coordination sales activities will
constitute ''adjusted coordination sales costs.''
(b) Determination of annual charges to be assessed against public
utilities.
(1) The adjusted sales for resale costs determined under paragraph
(a) of this section will be assessed against each public utility based
on the proportion of the adjusted sales for resale megawatt-hours of
each public utility in the immediately preceding reporting year (either
a calendar year or fiscal year, depending on which accounting convention
is used by the public utility to be charged) to the sum of the adjusted
sales for resale megawatt-hours in the immediately preceding reporting
year of all public utilities being assessed annual charges.
(2) The adjusted coordination sales costs determined under paragraph
(a) of this section will be assessed against each public utility based
on the proportion of the adjusted coordination sales megawatt-hours of
each public utility in the immediately preceding reporting year (either
a calendar year or fiscal year, depending on which accounting convention
is used by the public utility to be charged) to the sum of the adjusted
coordination sales megawatt-hours in the immediately preceding reporting
year of all public utilities being assessed annual charges.
(3) The annual charges assessed against each public utility will be
the sum of the amounts determined in paragraphs (b)(1) and (b)(2) of
this section.
(4) Reporting requirement. (i) For purposes of computing annual
charges, a public utility, as defined in 382.102(b) of this part,
subject to the provisions of this part, must submit under oath to the
Office of the Secretary of the Commission, by June 13, 1987, and by
April 30 of each year thereafter, an original and conformed copies of
the following information (designated as FERC Reporting Requirement No.
582):
(A) The total annual adjusted sales for resale megawatt-hours, as
defined in 382.102(m); and
(B) The total annual adjusted coordination sales megawatt-hours, as
defined in 382.102(n).
(ii) The data required in paragraphs (b)(4)(i) (A) and (B) of this
section will be derived from information reported to the Commission
annually in the FERC Form Nos. 1 and 1-F. For purposes of computing
annual charges, the definitions in 382.102(i)-(1) will be used in
conjunction with the following worksheet to determine data reported in
paragraphs (b)(4)(i) (A) and (B) of this section. A copy of the
completed worksheet must be submitted as part of the Commission's Annual
Charges reporting requirement (FERC Reporting Requirement No. 582).
(c) Determination of annual charges to be assessed against power
marketing agencies. The adjusted costs of administration of the
electric regulatory program as it applies to power marketing agencies
will be assessed against each power marketing agency based on the
proportion of the megawatt-hours of sales of each power marketing agency
in the immediately preceding fiscal year to the sum of the
megawatt-hours of sales in the immediately preceding fiscal year of all
power marketing agencies being assessed annual charges.
(Order 472, 52 FR 21292, June 5, 1987, as amended by Order 529, 55 FR
47321, Nov. 13, 1990; 56 FR 1912, Jan. 18, 1991; Order 529, 56 FR
63408, Dec. 4, 1991)
18 CFR 382.202 Annual charges under the Natural Gas Act and Natural Gas
Policy Act of 1978 and related statutes.
The adjusted costs of administration of the natural gas regulatory
program will be assessed against each natural gas pipeline company based
on the proportion of the total gas subject to Commission regulation
which was sold and transported by each company in the immediately
preceding calendar year to the sum of the gas subject to the Commission
regulation which was sold and transported in the immediately preceding
calendar year by all natural gas pipeline companies being assessed
annual charges.
(Order 472-B, 52 FR 36022, Sept. 25, 1987)
18 CFR 382.203 Annual charges under the Interstate Commerce Act.
(a) The adjusted costs of administration of the oil regulatory
program will be assessed against each oil pipeline company based on the
proportion of the total operation revenues of each oil pipeline company
for the immediately preceding calendar year to the sum of the operating
revenues for the immediately preceding calendar year of all oil pipeline
companies being assessed annual charges.
(b) No oil pipeline company's annual charge may exceed a maximum
charge established each year by the Commission to equal 6.339 percent of
the adjusted costs of administration of the oil regulatory program. The
maximum charge will be rounded to the nearest $1000. For every company
with an annual charge determined to be above the maximum charge, that
company's annual charge will be set at the maximum charge, and any
amount above the maximum charge will be reapportioned to the remaining
companies. The reapportionment will be computed using the method
outlined in paragraph (a) of this section (but excluding any company
whose annual charge is already set at the maximum amount). This
procedure will be repeated until no company's annual charge exceeds the
maximum charge.
18 CFR 382.203 SUBCHAPTER X -- PROCEDURAL RULES
18 CFR 382.203 Pt. 385
18 CFR 382.203 PART 385 -- RULES OF PRACTICE AND PROCEDURE
18 CFR 382.203 Subpart A -- Applicability and Definitions
Sec.
385.101 Applicability (Rule 101).
385.102 Definitions (Rule 102).
385.103 References to rules (Rule 103).
385.104 Rule of construction (Rule 104).
18 CFR 382.203 Subpart B -- Pleadings, Tariff and Rate Filings, Notices
of Tariff or Rate Examination, Orders To Show Cause, Intervention, and
Summary Dispositon
385.201 Applicability (Rule 201).
385.202 Types of pleadings (Rule 202).
385.203 Content of pleadings and tariff or rate filings (Rule 203).
385.204 Applications (Rule 204).
385.205 Tariff or rate filings (Rule 205).
385.206 Complaints (Rule 206).
385.207 Petitions (Rule 207).
385.208 Notices of protests to tentative oil pipeline valuations
(Rule 208).
385.209 Notices of tariff or rate examination and orders to show
cause (Rule 209).
385.210 Method of notice; dates established in notice (Rule 210).
385.211 Protests other than under Rule 208 (Rule 211).
385.212 Motions (Rule 212).
385.213 Answers (Rule 213).
385.214 Intervention (Rule 214).
385.215 Amendment of pleadings and tariff or rate filings (Rule 215).
385.216 Withdrawal of pleadings (Rule 216).
385.217 Summary disposition (Rule 217).
18 CFR 382.203 Subpart C -- (Reserved)
18 CFR 382.203 Subpart D -- Discovery Procedures for Matters Set for
Hearing Under Subpart E
385.401 Applicability (Rule 401).
385.402 Scope of discovery (Rule 402).
385.403 Methods of discovery; general provisions (Rule 403).
385.404 Depositions during proceedings (Rule 404).
385.405 Use of depositions (Rule 405).
385.406 Data requests, interrogatories, and requests for production
of documents or things (Rule 406).
385.407 Inspection of documents and other property (Rule 407).
385.408 Admissions (Rule 408).
385.409 Subpoenas (Rule 409).
385.410 Objections to discovery, motions to quash or to compel, and
protective orders (Rule 410).
385.411 Sanctions (Rule 411).
18 CFR 382.203 Subpart E -- Hearings
385.501 Applicability (Rule 501).
385.502 Initiation of a hearing (Rule 502).
385.503 Consolidation, severance and extension of close-of-record
date by Chief Administrative Law Judge (Rule 503).
385.504 Duties and powers of presiding officers (Rule 504).
385.505 Right of participants to present evidence (Rule 505).
385.506 Examination of witnesses during hearing (Rule 506).
385.507 Prepared written testimony (Rule 507).
385.508 Exhibits (Rule 508).
385.509 Admissibility of evidence (Rule 509).
385.510 Miscellaneous provisions (Rule 510).
18 CFR 382.203 Subpart F -- Conferences, Settlements, and Stipulations
385.601 Conferences (Rule 601).
385.602 Submission of settlement offers (Rule 602).
385.603 Settlement of negotiations before a settlement judge (Rule
603).
18 CFR 382.203 Subpart G -- Decisions
385.701 Applicability (Rule 701).
385.702 Definitions (Rule 702).
385.703 Contents of decisions (Rule 703).
385.704 Rights of participants before initial decision (Rule 704).
385.705 Additional powers of presiding officer with respect to briefs
(Rule 705).
385.706 Initial and reply briefs before initial decision (Rule 706).
385.707 Oral argument before initial decision (Rule 707).
385.708 Initial decisions by presiding officer (Rule 708).
385.709 Other types of decisions (Rule 709).
385.710 Waiver of the initial decision (Rule 710).
385.711 Exceptions and briefs on and opposing exceptions after
initial or revised initial decision (Rule 711).
385.712 Commission review of initial and revised initial decisions in
the absence of exceptions (Rule 712).
385.713 Request for rehearing (Rule 713).
385.714 Certified questions (Rule 714).
385.715 Interlocutory appeals to the Commission from rulings of
presiding officers (Rule 715).
385.716 Reopening (Rule 716).
385.717 Reconsideration of initial decision (Rule 717).
18 CFR 382.203 Subpart H -- Shortened Procedures
385.801 Waiver of hearing (Rule 801).
385.802 Noncontested proceedings (Rule 802).
18 CFR 382.203 Subpart I -- Commission Review of Remedial Orders
385.901 Scope (Rule 901).
385.902 Definitions (Rule 902).
385.903 Request for nondisclosure of information (Rule 903).
385.904 Commencement of proceeding (Rule 904).
385.905 Stay of contested order (Rule 905).
385.906 Pleadings (Rule 906).
385.907 New facts and issues (Rule 907).
385.908 Discovery (Rule 908).
385.909 Hearing (Rule 909).
385.910 Conduct of the hearing (Rule 910).
385.911 Burden of proof (Rule 911).
385.912 Proposed findings of fact, conclusions of law, and comments
(Rule 912).
385.913 Proposed order (Rule 913).
385.914 Commission action (Rule 914).
385.915 Ex parte communications (Rule 915).
385.916 Withdrawal of petition for review (Rule 916).
385.917 Sanctions (Rule 917).
18 CFR 382.203 Subpart J -- Commission Review of Adjustment Request
Denials
385.1001 Scope (Rule 1001).
385.1002 Definitions (Rule 1002).
385.1003 Request for nondisclosure of information (Rule 1003).
385.1004 Commencement of proceedings (Rule 1004).
385.1005 Replies (Rule 1005).
385.1006 Request for hearing (Rule 1006).
385.1007 Presiding officer (Rule 1007).
385.1008 Hearings (Rule 1008).
385.1009 Proof (Rule 1009).
385.1010 Certification of the record (Rule 1010).
385.1011 Final order (Rule 1011).
385.1012 Ex parte communications (Rule 1012).
385.1013 Attachments to pleadings (Rule 1013).
18 CFR 382.203 Subpart K -- Petitions for Adjustments Under the NGPA
385.1101 Applicability (Rule 1101).
385.1102 Definitions (Rule 1102).
385.1103 Commencement of proceeding (Rule 1103).
385.1104 Initial petition (Rule 1104).
385.1105 Intervention (Rule 1105).
385.1106 Other filings (Rule 1106).
385.1107 Evaluations (Rule 1107).
385.1108 Criteria (Rule 1108).
385.1109 Orders (Rule 1109).
385.1110 Review of initial decision and order for adjustment (Rule
1110).
385.1111 Conferences (Rule 1111).
385.1112 Requests for confidential treatment (Rule 1112).
385.1113 Interim relief (Rule 1113).
385.1114 Motions (Rule 1114).
385.1115 Procedural rulings (Rule 1115).
385.1116 Appeals (Rule 1116).
385.1117 Petition for adjustment treated as request for
interpretation (Rule 1117).
18 CFR 382.203 Subpart L (Reserved)
18 CFR 382.203 Subpart M -- Cooperative Procedure with State
Commissions
385.1301 Policy (Rule 1301).
385.1302 Notice (Rule 1302).
385.1303 Conferences (Rule 1303).
385.1304 Procedure governing matters referred to a board (Rule 1304).
385.1305 Joint and concurrent hearings (Rule 1305).
385.1306 Intervention by State commissions (Rule 1306).
18 CFR 382.203 Subpart N -- Oil Pipeline Proceedings
385.1401 Applicability (Rule 1401).
385.1402 Subscriber lists (Rule 1402).
385.1403 Dates for filing protests and interventions (Rule 1403).
385.1404 Petitions seeking institution of rulemaking proceedings
(Rule 1404).
385.1405 Modified procedure, how initiated (Rule 1405).
385.1406 Modified procedure; effect of order (Rule 1406).
385.1407 Modified procedure; intervention (Rule 1407).
385.1408 Modified procedure; joint pleadings (Rule 1408).
385.1409 Modified procedure; content of pleadings (Rule 1409).
385.1410 Modified procedure; verification (Rule 1410).
385.1411 Modified procedure; when pleadings filed and served (Rule
1411).
385.1412 Modified procedure; copies of pleadings (Rule 1412).
385.1413 Modified procedure; hearings (Rule 1413).
385.1414 Modified procedure; subsequent procedure (Rule 1414).
385.1415 Rule applicable to ex parte communications during oil
pipeline proceedings (Rule 1415).
18 CFR 382.203 Subpart O -- Procedures for the Assessment of Civil
Penalties Under Section 31 of the Federal Power Act
Sec.
385.1501 Scope (Rule 1501).
385.1502 Persons subject to civil penalties (Rule 1502).
385.1503 Actions subjecting persons to civil penalties (Rule 1503).
385.1504 Maximum civil penalty (Rule 1504).
385.1505 Determination of proposed penalty amount (Rule 1505).
385.1506 Notice of proposed penalty (Rule 1506).
385.1507 Election of procedures and answer (Rule 1507).
385.1508 Commission administrative procedures (Rule 1508).
385.1509 District court procedures (Rule 1509).
385.1510 Modification of civil penalty (Rule 1510).
385.1511 Collection of civil penalties (Rule 1511).
18 CFR 382.203 Subparts P -- R (Reserved)
18 CFR 382.203 Subpart S -- Miscellaneous
385.1901 Interpretations and interpretive rules under NGPA (Rule
1901).
385.1902 Appeals from action of staff (Rule 1902).
385.1903 Notice in rulemaking proceedings (Rule 1903).
385.1904 Copies of transcripts (Rule 1904).
385.1907 Reports of compliance (Rule 1907).
18 CFR 382.203 Subpart T -- Formal Requirements for Filings in
Proceedings Before the Commission
385.2001 Filings (Rule 2001).
385.2002 Caption of filings (Rule 2002).
385.2003 Specifications (Rule 2003).
385.2004 Original and copies of filings (Rule 2004).
385.2005 Subscription and verification (Rule 2005).
385.2006 Docket system (Rule 2006).
385.2007 Time (Rule 2007).
385.2008 Extensions of time (Rule 2008).
385.2009 Notice (Rule 2009).
385.2010 Service (Rule 2010).
18 CFR 382.203 Subpart U -- Appearance and Practice Before the
Commission
385.2101 Appearances (Rule 2101).
385.2102 Suspension (Rule 2102).
385.2103 Appearance of former employees (Rule 2103).
18 CFR 382.203 Subpart V -- Ex Parte Communications: Separation of
Functions
385.2201 Ex parte communications (Rule 2201).
385.2202 Separation of functions of staff (Rule 2202).
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 792-825r, 2601-2605; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; 49
U.S.C. 1-27.
Source: Order 225, 47 FR 19022, May 3, 1982, unless otherwise noted.
18 CFR 382.203 Subpart A -- Applicability and Definitions
18 CFR 385.101 Applicability (Rule 101).
(a) General rules. Except as provided in paragraph (b) of this
section, this part applies to:
(1) Any filing or proceeding under this chapter; and
(2) Any oil pipeline filing or proceeding under this chapter or 49
CFR Chapter X and replaces the Interstate Commerce Commission General
Rules of Practice (49 CFR part 1100) with respect to any oil pipeline
filing or proceeding.
(b) Exceptions. (1) This part does not apply to investigations under
part 1b of this chapter.
(2) If any provision of this part is inconsistent with any provision
of another part of this chapter, the provision of this part is
inapplicable and the provision of the other part governs to the extent
of the inconsistency.
(3) If any provision of this part is inconsistent with any provision
of 49 CFR Chapter X that is not otherwise replaced by this part or
Commission rule or order, the provision of this part is inapplicable and
the provision of 49 CFR Chapter X governs to the extent of the
inconsistency.
(4) With respect to any oil pipeline filing a proceeding:
(i) The modified procedures set forth in Rules 1404 through 1414 will
apply; and
(ii) The ex parte rules set forth in Rule 1415 apply in lieu of rule
2201.
(c) Transitional provisions. (1) This part applies to any filing
submitted on or after and to any proceeding pending on or initiated
after, August 26, 1982.
(2) A decisional authority may, in the interest of justice:
(i) Apply the appropriate provisions of the prior Rules of Practice
and Procedure (18 CFR part 1) to any filing submitted after, or to any
proceeding or part of a proceeding pending on August 26, 1982;
(ii) Apply the provisions of this part to any filing submitted, or
any proceeding or part of a proceeding initiated, after April 28, 1982
but before August 26, 1982.
(d) (Reserved)
(e) Waiver. To the extent permitted by law, the Commission may, for
good cause, waive any provision of this part or prescribe any
alternative procedures that it determines to be appropriate.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 376, 49 FR
21705, May 23, 1984)
18 CFR 385.102 Definitions (Rule 102).
For purposes of this part --
(a) Decisional authority means the Commission or Commission employee,
including the Oil Pipeline Board, that, at the time for decision on a
question, has authority or responsibility under this chapter or 49 CFR
Chapter X to decide that particular question.
(b) Participant means:
(1) Any party; or
(2) Any employee of the Commission assigned to present the position
of the Commission staff in a proceeding before the Commission.
(c) Party means, with respect to a proceeding:
(1) A person filing any application, petition, tariff or rate filing,
complaint, or any protest under section 19a(i) of the Interstate
Commerce Act (49 U.S.C. 19a(i));
(2) Any respondent to a proceeding; or
(3) Any person whose intervention in a proceeding is effective under
Rule 214.
(d) Person means an individual, partnership, corporation,
association, joint stock company, public trust, an organized group of
persons, whether incorporated or not, a receiver or trustee of the
foregoing, a municipality, including a city, county, or any other
political subdivision of a State, a State, the District of Columbia, any
territory of the United States or any agency of any of the foregoing,
any agency, authority, or instrumentality of the United States (other
than the Commission), or any corporation which is owned directly or
indirectly by the United States, or any officer, agent, or employee of
any of the foregoing acting as such in the course of his or her official
duty. The term also includes a foreign government or any agency,
authority, or instrumentality thereof.
(e) Presiding officer means:
(1) With respect to any proceeding set for hearing under subpart E of
this part, one or more Members of the Commission, or any administrative
law judge, designated to preside at such hearing, or, if no Commissioner
or administrative law judge is designated, the Chief Administrative Law
Judge; or
(2) With respect to any proceeding not set for hearing under subpart
E, any employee, including the Oil Pipeline Board, designated by rule or
order to conduct the proceeding.
(f) Respondent means any person:
(1) To whom an order to show cause or notice of tariff or rate
examination is issued by the Commission;
(2) Against whom a complaint is directed; or
(3) Designated as a respondent by the Commission or by the terms of
this chapter.
18 CFR 385.103 Reference to rules (Rule 103).
This part cross-references its sections according to rule number, as
indicated by the section titles. Any filing with the Commission may
refer to any section of this part by rule number; for example, ''Rule
103.''
18 CFR 385.104 Rule of construction (Rule 104).
To the extent that the text of a rule is inconsistent with its
caption, the text of the rule controls.
(Order 376, 49 FR 21705, May 23, 1984)
18 CFR 385.104 Subpart B -- Pleadings, Tariff and Rate Filings, Notices of Tariff or Rate Examination, Orders To Show Cause, Intervention, and Summary Disposition
18 CFR 385.201 Applicability (Rule 201).
This subpart applies to any pleading, tariff or rate filing, notice
of tariff or rate examination, order to show cause, intervention, or
summary disposition.
18 CFR 385.202 Types of pleadings (Rule 202).
Pleadings include any application, complaint, petition, protest,
notice of protest, answer, motion, and any amendment or withdrawal of a
pleading. Pleadings do not include comments on rulemakings or comments
on offers of settlement.
18 CFR 385.203 Content of pleadings and tariff or rate filings (Rule
203).
(a) Requirements for a pleading or a tariff or rate filing. Each
pleading and each tariff or rate filing must include, as appropriate:
(1) If known, the reference numbers, docket numbers, or other
identifying symbols of any relevant tariff, rate, schedule, contract,
application, rule, or similar matter or material;
(2) The name of each participant for whom the filing is made or, if
the filing is made for a group of participants, the name of the group,
provided that the name of each member of the group is set forth in a
previously filed document which is identified in the filing being made;
(3) The specific authorization or relief sought;
(4) The tariff or rate sheets;
(5) The name and address of each person against whom the complaint is
directed;
(6) The relevant facts, if not set forth in a previously filed
document which is identified in the filing being made;
(7) The position taken by the participant filing any pleading, to the
extent known when the pleading is filed, and the basis in fact and law
for such position;
(8) Subscription or verification, if required;
(9) A certificate of service under Rule 2010(h), if service is
required;
(10) The name, address, and telephone number of an individual who,
with respect to any matter contained in the filing, represents the
person for whom filing is made; and
(11) Any additional information required to be included by statute,
rule, or order.
(b) Requirement for any initial pleading or tariff or rate filing.
The initial pleading or tariff or rate filing submitted by a participant
or a person seeking to become a party must conform to the requirements
of paragraph (a) of this section and must include:
(1) The exact name of the person for whom the filing is made;
(2) The location of that person's principal place of business; and
(3) The name, address, and telephone number of at least one, but not
more than two, persons upon whom service is to be made and to whom
communications are to be addressed in the proceeding.
(c) Combined filings. If two or more pleadings, or one or more
pleadings and a tariff or rate filing are included as items in a single
filing each such item must be separately designated and must conform to
the requirements which would be applicable to it if filed separately.
18 CFR 385.204 Applications (Rule 204).
Any person seeking a license, permit, certification, or similar
authorization or permission, must file an application to obtain that
authorization or permission.
18 CFR 385.205 Tariff or rate filings (Rule 205).
A person must make a tariff or rate filing in order to establish or
change any specific rate, rate schedule, tariff, tariff schedule, fare,
charge, or term or condition of service, or any classification,
contract, practice, or any related regulation established by and for the
applicant.
18 CFR 385.206 Complaints (Rule 206).
(a) General rule. Any person may file a complaint seeking Commission
action against any other person alleged to be in contravention or
violation of any statute, rule, order, or other law administered by the
Commission, or for any other alleged wrong over which the Commission may
have jurisdiction.
(b) Answers. Unless otherwise ordered by the Commission, any
respondent to a complaint must file an answer with the Commission.
(c) Satisfaction. (1) If the respondent to a complaint satisfies
such complaint, in whole or in part, either before or after an answer is
filed, the complainant and the respondent must sign and file:
(i) A statement setting forth when and how the complaint was
satisfied; and
(ii) A motion for dismissal of, or an amendment to, the complaint
based on the satisfaction.
(2) The decisional authority may order the submission of additional
information before acting on a motion for dismissal or an amendment
under paragraph (c)(1)(ii) of this section.
18 CFR 385.207 Petitions (Rule 207).
(a) General rule. A person must file a petition when seeking:
(1) Relief under subpart I, J, or K of this part;
(2) A declaratory order or rule to terminate a controversy or remove
uncertainty;
(3) Action on appeal from a staff action, other than a decision or
ruling of a presiding officer, under Rule 1902;
(4) A rule of general applicability; or
(5) Any other action which is in the discretion of the Commission and
for which this chapter prescribes no other form of pleading.
(b) Declarations of intent under the Federal Power Act. For purposes
of this part, a declaration of intent under section 23(b) of the Federal
Power Act is treated as a petition for a declaratory order.
(c) Except as provided in 381.302(b), each petition for issuance of
a declaratory order must be accompanied by the fee prescribed in
381.302(a).
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 395, 49 FR
35357, Sept. 7, 1984)
18 CFR 385.208 Notices of protest to tentative oil pipeline valuations
(Rule 208).
(a) General rule. Any person objecting to a tentative valuation of
any oil pipeline under section 19a of the Interstate Commerce Act (49
U.S.C. 19a(i)) must file a notice of protest, as prescribed under that
section.
(b) Effect. A notice of protest has the effect prescribed in section
19a of the Interstate Commerce Act (49 U.S.C. 19a).
(c) Service. A notice of protest must be served by the protestant on
the oil pipeline company whose tentative valuation is protested.
18 CFR 385.209 Notices of tariff or rate examination and orders to show
cause (Rule 209).
(a) Issuance. (1) If the Commission seeks to determine the validity
of any rate, rate schedule, tariff, tariff schedule, fare, charge, or
term or condition of service, or any classification, contract, practice,
or any related regulation established by and for the applicant which is
demanded, observed, charged, or collected, the Commission will initiate
a proceeding by issuing a notice of tariff or rate examination.
(2) The Commission may initiate a proceeding against a person by
issuing an order to show cause.
(b) Contents. A notice of examination or an order to show cause will
contain a statement of the matters about which the Commission is
inquiring, and a statement of the authority under which the Commission
is acting. The statement is tentative and sets forth issues to be
considered by the Commission.
(c) Answers. A person who is ordered to show cause must answer in
accordance with Rule 213.
18 CFR 385.210 Method of notice; dates established in notice (Rule
210).
(a) Method. When the Secretary gives notice of tariff or rate
filings, applications, petitions, notices of tariff or rate
examinations, and orders to show cause, the Secretary will give such
notice in accordance with Rule 2009.
(b) Dates for filing interventions and protests. A notice given
under this section will establish the dates for filing interventions and
protests. Only those filings made within the time prescribed in the
notice will be considered timely.
18 CFR 385.211 Protests other than under Rule 208 (Rule 211).
(a) General rule. (1) Any person may file a protest to object to any
application, complaint, petition, order to show cause, notice of tariff
or rate examination, or tariff or rate filing.
(2) The filing of a protest does not make the protestant a party to
the proceeding. The protestant must intervene under Rule 214 to become
a party.
(3) Subject to paragraph (a)(4) of this section, the Commission will
consider protests in determining further appropriate action. Protests
will be placed in the public file associated with the proceeding.
(4) If a proceeding is set for hearing under subpart E of this part,
the protest is not part of the record upon which the decision is made.
(b) Service. (1) Any protest directed against a person in a
proceeding must be served by the protestant on the person against whom
the protest is directed.
(2) The Secretary may waive any procedural requirement of this
subpart applicable to protests. If the requirement of service under
this paragraph is waived, the Secretary will place the protest in the
public file and may send a copy thereof to any person against whom the
protest is directed.
18 CFR 385.212 Motions (Rule 212).
(a) General rule. A motion may be filed:
(1) At any time, unless otherwise provided;
(2) By a participant or a person who has filed a timely motion to
intervene which has not been denied;
(3) In any proceeding except an informal rulemaking proceeding.
(b) Written and oral motions. Any motion must be filed in writing,
except that the presiding officer may permit an oral motion to be made
on the record during a hearing or conference.
(c) Contents. A motion must contain a clear and concise statement
of:
(1) The facts and law which support the motion; and
(2) The specific relief or ruling requested.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 225-A, 47
FR 35956, Aug. 18, 1982; Order 376, 49 FR 21705, May 23, 1984)
18 CFR 385.213 Answers (Rule 213).
(a) Required or permitted. (1) Any respondent to a complaint or
order to show cause must make an answer, unless the Commission orders
otherwise.
(2) An answer may not be made to a protest, an answer, a motion for
oral argument, or a request for rehearing, unless otherwise ordered by
the decisional authority. A presiding officer may prohibit an answer to
a motion for interlocutory appeal. If an answer is not otherwise
permitted under this paragraph, no responsive pleading may be made.
(3) An answer may be made to any pleading, if not prohibited under
paragraph (a)(2) of this section.
(4) An answer to a notice of tariff or rate examination must be made
in accordance with the provisions of such notice.
(b) Written or oral answers. Any answer must be in writing, except
that the presiding officer may permit an oral answer to a motion made on
the record during a hearing conducted under subpart E or during a
conference.
(c) Contents. (1) An answer must contain a clear and concise
statement of:
(i) Any disputed factual allegations; and
(ii) Any law upon which the answer relies.
(2) When an answer is made in response to a complaint, an order to
show cause, or an amendment to such pleading, the answerer must, to the
extent practicable:
(i) Admit or deny, specifically and in detail, each material
allegation of the pleading answered; and
(ii) Set forth every defense relied on.
(3) General denials of facts referred to in any order to show cause,
unsupported by the specific facts upon which the respondent relies, do
not comply with paragraph (a)(1) of this section and may be a basis for
summary disposition under Rule 217, unless otherwise required by
statute.
(d) Time limitations. (1) Any answer to a motion or to an amendment
to a motion must be made within 15 days after the motion or amendment is
filed, unless otherwise ordered.
(2) Any answer to a pleading or amendment to a pleading, other than
an answer to a motion under paragraph (d)(1) of this section must be
made:
(i) If notice of the pleading or amendment is published in the
Federal Register, not later than 30 days after such publication, unless
otherwise ordered; or
(ii) If notice of the pleading or amendment is not published in the
Federal Register, not later than 30 days after the filing of the
pleading or amendment, unless otherwise ordered.
(e) Failure to answer. (1) Any person failing to answer a complaint
may be considered in default, and all relevant facts stated in such
complaint may be deemed admitted.
(2) Failure to answer an order to show cause will be treated as a
general denial to which paragraph (c)(3) of this section applies.
(Order 225, 47 FR 19022, May 3, 1982; 48 FR 786, Jan. 7, 1983, as
amended by Order 376, 49 FR 21705, May 23, 1984)
18 CFR 385.214 Intervention (Rule 214).
(a) Filing. (1) The Secretary of Energy is a party to any proceeding
upon filing a notice of intervention in that proceeding. If the
Secretary's notice is not filed within the period prescribed under Rule
210(b), the notice must state the position of the Secretary on the
issues in the proceeding.
(2) Any State Commission is a party to any proceeding upon filing a
notice of intervention in that proceeding, if the notice is filed within
the period established under Rule 210(b). If the period for filing
notice has expired, a State Commission must comply with the rules for
motions to intervene applicable to any person under paragraph (a)(3) of
this section including the content requirements of paragraph (b) of this
section.
(3) Any person, other than the Secretary of Energy or a State
Commission, seeking to become a party must file a motion to intervene.
(b) Contents of motion. (1) Any motion to intervene must state, to
the extent known, the position taken by the movant and the basis in fact
and law for that position.
(2) A motion to intervene must also state the movant's interest in
sufficient factual detail to demonstrate that:
(i) The movant has a right to participate which is expressly
conferred by statute or by Commission rule, order, or other action;
(ii) The movant has or represents an interest which may be directly
affected by the outcome of the proceeeding, including any interest as a:
(A) Consumer,
(B) Customer,
(C) Competitor, or
(D) Security holder of a party; or
(iii) The movant's participation is in the public interest.
(3) If a motion to intervene is filed after the end of any time
period established under Rule 210, such a motion must, in addition to
complying with paragraph (b)(1) of this section, show good cause why the
time limitation should be waived.
(c) Grant of party status. (1) If no answer in opposition to a
timely motion to intervene is filed within 15 days after the motion to
intervene is filed, the movant becomes a party at the end of the 15 day
period.
(2) If an answer in opposition to a timely motion to intervene is
filed not later than 15 days after the motion to intervene is filed or,
if the motion is not timely, the movant becomes a party only when the
motion is expressly granted.
(d) Grant of late intervention. (1) In acting on any motion to
intervene filed after the period prescribed under Rule 210, the
decisional authority may consider whether:
(i) The movant had good cause for failing to file the motion within
the time prescribed;
(ii) Any disruption of the proceeding might result from permitting
intervention;
(iii) The movant's interest is not adequately represented by other
parties in the proceeding;
(iv) Any prejudice to, or additional burdens upon, the existing
parties might result from permitting the intervention; and
(v) The motion conforms to the requirements of paragraph (b) of this
section.
(2) Except as otherwise ordered, a grant of an untimely motion to
intervene must not be a basis for delaying or deferring any procedural
schedule established prior to the grant of that motion.
(3) (i) The decisional authority may impose limitations on the
participation of a late intervener to avoid delay and prejudice to the
other participants.
(ii) Except as otherwise ordered, a late intervener must accept the
record of the proceeding as the record was developed prior to the late
intervention.
(4) If the presiding officer orally grants a motion for late
intervention, the officer will promptly issue a written order confirming
the oral order.
(Order 225, 47 FR 19022, May 3, 1982; 48 FR 746, Jan. 7, 1983;
Order 376, 49 FR 21705, May 23, 1984)
18 CFR 385.215 Amendment of pleadings and tariff or rate filings (Rule
215).
(a) General rules. (1) Any participant, or any person who has filed
a timely motion to intervene which has not been denied, may seek to
modify its pleading by filing an amendment which conforms to the
requirements applicable to the pleading to be amended.
(2) A tariff or rate filing may not be amended, except as allowed by
statute. The procedures provided in this section do not apply to
amendment of tariff or rate filings.
(3) (i) If a written amendment is filed in a proceeding, or part of a
proceeding, that is not set for hearing under subpart E, the amendment
becomes effective as an amendment on the date filed.
(ii) If a written amendment is filed in a proceeding, or part of a
proceeding, which is set for hearing under subpart E, that amendment is
effective on the date filed only if the amendment is filed more than
five days before the earlier of either the first prehearing conference
or the first day of evidentiary hearings.
(iii) If, in a proceeding, or part of a proceeding, that is set for
hearing under subpart E, a written amendment is filed after the time for
filing provided under paragraph (a)(3)(ii) of this section, or if an
oral amendment is made to a presiding officer during a hearing or
conference, the amendment becomes effective as an amendment only as
provided under paragraph (d) of this section.
(b) Answers. Any participant, or any person who has filed a timely
motion to intervene which has not been denied, may answer a written or
oral amendment in accordance with Rule 213.
(c) Motion opposing an amendment. Any participant, or any person who
has filed a timely motion to intervene which has not been denied, may
file a motion opposing the acceptance of any amendment, other than an
amendment under paragraph (a)(3)(i) of this section, not later than 15
days after the filing of the amendment.
(d) Acceptance of amendments. (1) An amendment becomes effective as
an amendment at the end of 15 days from the date of filing, if no motion
in opposition to the acceptance of an amendment under paragraph
(a)(3)(iii) of this section is filed within the 15 day period.
(2) If a motion in opposition to the acceptance of an amendment is
filed within 15 days after the filing of the amendment, the amendment
becomes effective as an amendment on the twentieth day after the filing
of the amendment, except to the extent that the decisional authority,
before such date, issues an order rejecting the amendment, wholly or in
part, for good cause.
(e) Directed amendments. A decisional authority, on motion or
otherwise, may direct any participant, or any person seeking to be a
party, to file a written amendment to amplify, clarify, or technically
correct a pleading.
18 CFR 385.216 Withdrawal of pleadings (Rule 216).
(a) Filing. Any participant, or any person who has filed a timely
motion to intervene which has not been denied, may seek to withdraw a
pleading by filing a notice of withdrawal.
(b) Action on withdrawals. (1) The withdrawal of any pleading is
effective at the end of 15 days from the date of filing of a notice of
withdrawal, if no motion in opposition to the notice of withdrawal is
filed within that period and the decisional authority does not issue an
order disallowing the withdrawal within that period. The decisional
authority may disallow, for a good cause, all or part of a withdrawal.
(2) If a motion in opposition to a notice of withdrawal is filed
within the 15 day period, the withdrawal is not effective until the
decisional authority issues an order accepting the withdrawal.
(c) Conditional withdrawal. In order to prevent prejudice to other
participants, a decisional authority may, on motion or otherwise,
condition the withdrawal of any pleading upon a requirement that the
withdrawing party leave material in the record or otherwise make
material available to other participants.
18 CFR 385.217 Summary disposition (Rule 217).
(a) Applicability. This section applies to:
(1) Any proceeding, or any part of a proceeding, while the Commission
is the decisional authority; and
(2) Any proceeding, or part of a proceeding, which is set for hearing
under subpart E.
(b) General rule. If the decisional authority determines that there
is no genuine issue of fact material to the decision of a proceeding or
part of a proceeding, the decisional authority may summarily dispose of
all or part of the proceeding.
(c) Procedures. (1) Any participant may make a motion for summary
disposition of all or part of a proceeding.
(2) If a decisional authority, other than the Commission, is
considering summary disposition of a proceeding, or part of a
proceeding, in the absence of a motion for summary disposition by a
participant, the decisional authority will grant the participants an
opportunity to comment on the proposed disposition prior to any summary
disposition, unless, for good cause shown, the decisional authority
provides otherwise.
(3) If, prior to setting a matter for hearing, the Commission is
considering summary disposition of a proceeding or part of a proceeding
in the absence of a motion for summary disposition by any participant
and the Commission determines that notice and comment on summary
disposition are practicable and necessary, the Commission may notify the
participants and afford them an opportunity to comment on any proposed
summary disposition.
(d) Disposition. (1)(i) If a decisional authority, other than the
Commission, summarily disposes of an entire proceeding, the decisional
authority will issue an initial decision for the entire proceeding.
(ii) Except as provided under paragraph (d)(1)(iii) of this section,
a decisional authority, other than the Commission, which summarily
disposes of part of a proceeding may:
(A) Issue a partial initial decision; or
(B) Postpone issuing an initial decision on the summarily disposed
part and combine it with the initial decision on the entire proceeding
or other appropriate part of the proceeding.
(iii) If the decisional authority, other than the Commission,
summarily disposes of part of a proceeding and such disposition requires
the filing of new tariff or rate schedule sheets, the decisional
authority will issue an initial decision on that part of the proceeding.
(2) Any initial decision issued under paragraph (d)(1) of this
section is considered an initial decision issued under subpart G of this
part, except that the following rules do not apply: Rule 704 (rights of
participants before initial decision), Rule 705 (discretion of presiding
officer before initial decision), Rule 706 (initial and reply briefs
before initial decision), Rule 707 (oral argument before initial
decision), and Rule 709 (other types of decisions).
(Order 225, 47 FR 19022, May 3, 1982; Order 225-A, 47 FR 35956, Aug.
18, 1982)
18 CFR 385.217 Subpart C -- (Reserved)
18 CFR 385.217 Subpart D -- Discovery Procedures for Matters Set for
Hearing Under Subpart E
Source: 52 FR 6966, Mar. 6, 1987, unless otherwise noted.
18 CFR 385.401 Applicability (Rule 401).
(a) General rule. Except as provided in paragraph (b) of this
section, this subpart applies to discovery in proceedings set for
hearing under subpart E of this part, and to such other proceedings as
the Commission may order.
(b) Exceptions. Unless otherwise ordered by the Commission, this
subpart does not apply to:
(1) Requests for information under the Freedom of Information Act, 5
U.S.C. 552, governed by Part 388 of this chapter; or,
(2) Requests by the Commission or its staff who are not participants
in a proceeding set for hearing under subpart E of this part to obtain
information, reports, or data from persons subject to the Commission's
regulatory jurisdiction; or
(3) Investigations conducted pursuant to Part 1b of this chapter.
18 CFR 385.402 Scope of discovery (Rule 402).
(a) General. Unless otherwise provided under paragraphs (b) and (c)
of this section or ordered by the presiding officer under Rule 410(c),
participants may obtain discovery of any matter, not privileged, that is
relevant to the subject matter of the pending proceeding, including the
existence, description, nature, custody, condition, and location of any
books, documents, or other tangible things, and the identity and
location of persons having any knowledge of any discoverable matter. It
is not ground for objection that the information sought will be
inadmissible in the Commission proceeding if the information sought
appears reasonably calculated to lead to the discovery of admissible
evidence.
(b) Material prepared for litigation. A participant may not obtain
discovery of material prepared in anticipation of litigation by another
participant, unless that participant demonstrates a substantial need for
the material and that substantially equivalent material cannot be
obtained by other means without undue hardship. In ordering any such
discovery, the presiding officer will prevent disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney.
(c) Expert testimony. Unless otherwise restricted by the presiding
officer under Rule 410(c), a participant may discover any facts known or
opinions held by an expert concerning any relevant matters, not
privileged. Such discovery will be permitted only if:
(1) The expert is expected to be a witness at hearing; or
(2) The expert is relied on by another expert who is expected to be a
witness at hearing, and the participant seeking discovery shows a
compelling need for the information and it cannot practicably be
obtained by other means.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 466-A, 52
FR 35909, Sept. 24, 1987)
18 CFR 385.403 Methods of discovery; general provisions (Rule 403).
(a) Discovery methods. Participants may obtain discovery by data
requests, written interrogatories, and requests for production of
documents or things (Rule 406), depositions by oral examination (Rule
404), requests for inspection of documents and other property (Rule
407), and requests for admission (Rule 408).
(b) Discovery conferences. (1) The presiding officer may direct the
participants in a proceeding or their representatives to appear for one
or more conferences, either separately or as part of any other
prehearing conference in the proceeding under Rule 601(a), for the
purpose of scheduling discovery, identifying discovery issues, and
resolving discovery disputes. Except as provided in paragraph (b)(2) of
this section, the presiding officer, upon the conclusion of a
conference, will issue an order stating any and all decisions made and
agreements reached during the conference.
(2) The Chief Administrative Law Judge may, upon a showing of
extraordinary circumstances, waive the requirement to issue an order
under paragraph (b)(1) of this section.
(c) Identification and certification of preparer. Each response to
discovery under this subpart must:
(1) Identify the preparer or person under whose direct supervision
the response was prepared; and
(2) Be under oath or, for representatives of a public or private
corporation or a partnership or association or a governmental agency, be
accompanied by a signed certification of the preparer or person
supervising the preparation of the response on behalf of the entity that
the response is true and accurate to the best of that person's
knowledge, information, and belief formed after a reasonable inquiry.
(d) Supplementation of responses. (1) Except as otherwise provided
by this paragraph, a participant that has responded to a request for
discovery with a response that was complete when made is not under a
continuing duty to supplement that response to include information later
acquired.
(2) A participant must make timely amendment to any prior response if
the participant obtains information upon the basis of which the
participant knows that the response was incorrect when made, or though
correct when made is now incorrect in any material respect.
(3) A participant may be required to supplement a response by order
of the presiding officer or by agreement of all participants.
(4) A participant may request supplementation of prior responses, if
such request is permitted under the procedural schedule.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 466-A, 52
FR 35909, Sept. 24, 1987)
18 CFR 385.404 Depositions during proceedings (Rule 404).
(a) In general. (1) A participant may obtain the attendance for a
deposition by oral examination of any other participant, an employee or
agent of that participant, or a person retained by that participant as a
potential witness, by providing a notice of intent to depose.
(2) Any participant may obtain the attendance of a nonparticipant for
a deposition by oral examination by obtaining a subpoena, in accordance
with Rule 409. For purposes of this rule, a Commission decisional
employee, as defined in Rule 2201(a), is a nonparticipant.
(b) Notice. (1) A participant seeking to take a deposition under
this section must provide to all other participants written notice
reasonably in advance of the deposition. The notice must be filed with
the Commission and served on all participants. An original must be
served on each person whose deposition is sought.
(2) A notice of intent under this section must:
(i) State the time and place at which the deposition will be taken,
the name and address of each person to be examined, and the subject
matter of the deposition; and
(ii) If known at the time that the deposition is noticed that its
purpose is to preserve testimony, state that the deponent will be unable
to testify at the hearing.
(3)(i) A notice of intent under this section or a subpoena under Rule
409 may name as the deponent a public or private corporation or a
partnership or association or a governmental agency, and describe with
reasonable particularity the matters on which examination is requested.
Such organization must, in response, designate one or more officers,
directors, or managing agents, or other persons to testify on its
behalf, and set forth, for each person designated, the matters on which
that person will testify.
(ii) A subpoena must advise any organization that is named as a
deponent but is not a participant that it has a duty to designate a
person to testify. Any person designated under this section must
testify on matters known by, or reasonably available to, the
organization.
(c) Taking of deposition. (1) Each deponent must swear to or affirm
the truth of the testimony given before any testimony is taken.
(2) Any participant may examine and cross-examine a deponent.
(3) Any objection made during the examination must be noted by the
officer taking the deposition. After the objection is noted, the
deponent must answer the question, unless a claim of privilege is
asserted or the presiding officer rules otherwise.
(4) The deposition must be transcribed verbatim.
(d) Nonstenographic means of recording; telephonic depositions.
Testimony at a deposition may be recorded by means other than
stenography if all participants so stipulate or if the presiding
officer, upon motion, so orders. Such stipulation or order shall
designate the person before whom the deposition. will be taken, and the
manner in which the deposition will be preserved, filed, and certified.
Depositions may also be taken by telephone, if all participants so
stipulate or the presiding officer, upon motion, orders.
(e) Officer taking deposition. Depositions must be taken before an
officer authorized to administer oaths or affirmations by the laws of
the United States or of the place where the deposition is held. A
deposition may not be taken before an officer who is a relative or
employee or attorney of any of the participants, or is financially or in
any other way interested in the action.
(f) Submission to deponent. (1) Unless examination is waived by the
deponent, the transcription of the deposition must be submitted to the
deponent for examination.
(2) If the deponent requests any changes in form or substance, the
officer must enter the changes on the deposition transcript with a
statement of the witness' reasons for the changes. The deponent must
sign the deposition within 30 days after submittal to the deponent,
unless the participants by stipulation waive the signing or the deponent
cannot or will not sign. By signing the deposition the deponent
certifies that the transcript is a true record of the testimony given.
(3) The officer who took the deposition must sign any deposition not
signed by the deponent in accordance with this section and must state on
the record that the signature is waived or that the deponent cannot or
will not sign, accompanied by any reason given for a deponent's refusal
to sign. If the officer complies with this paragraph, a deposition that
is unsigned by the deponent may be used as though signed, unless the
presiding officer rules otherwise.
(g) Certification and copies. (1) The officer must certify on the
transcript of the deposition that the deponent swore to or affirmed the
truth of the testimony given and the deposition transcript is a true
record of the testimony given by the deponent. The officer must provide
the participant conducting the deposition with a copy of the
transcription.
(2) Documents and things produced for inspection during the
examination of the witness will, upon the request of a participant, be
marked for identification and annexed to the deposition and the officer
will certify the document or thing as the original offered during the
deposition, or as a true and correct copy of the original offered.
(3) Copies of the transcript of a deposition may be purchased from
the reporting service that made the transcription, subject to
protections established by the presiding officer.
18 CFR 385.405 Use of depositions (Rule 405).
(a) In general. During a hearing, the hearing of a motion, or an
interlocutory proceeding under Rule 715, any part or all of a deposition
taken pursuant to Rule 404, so far as admissible as though the witness
were then present and testifying, may be used against any participant
who was present or represented at the taking of the deposition or who
had reasonable notice thereof, in accordance with any of the provisions
of this section.
(1) If the deponent is a witness at a hearing, any participant may
use the deposition of that witness at the time of the witness'
examination to contradict, impeach, or complete the testimony of that
witness.
(2) The deposition of a participant or of any person who, at the time
of taking the deposition, was an officer, director, or managing agent of
a participant, or a person designated under Rule 404(b)(3) to testify on
behalf of a participant may be used by another participant for any
purpose.
(3) The deposition of any witness, whether or not a participant, may
be used by a participant for any purpose, if the presiding officer finds
that:
(i) The witness is dead;
(ii) The witness is unable to attend or testify because of age,
illness, infirmity or imprisonment;
(iii) The participant offering the deposition is unable after the
exercise of due diligence to procure the attendance of the witness by
subpoena; or
(iv) Exceptional circumstances make it necessary in the interest of
fairness with due regard to the importance of presenting the witness in
open hearing, to allow use of the deposition.
(4) If only part of a deposition is offered in evidence by a
participant, a participant may require the introduction of any other
part which ought, in fairness, to be considered with the part
introduced, and any adverse participant may introduce any other part.
(b) Objections to admissibility. No part of a deposition will
constitute a part of the record in the proceeding, unless received in
evidence by the Commission or presiding officer. Subject to paragraph
(c) of this section, a participant may object to receiving into evidence
all or part of any deposition for any reason that the evidence would be
excluded if the deponent were present and testifying.
(c) Effect of errors and irregularities in depositions. (1) Any
objection to the taking of a deposition based on errors or
irregularities in notice of the deposition is waived, unless written
objection is promptly served on the participant giving the notice.
(2) Any objection to the taking of a deposition based on the
disqualification of the officer before whom it is to be taken is waived,
unless the objection is made before the deposition begins or as soon
thereafter as the disqualification becomes known or could be discovered
with reasonable diligence.
(3) Any objection to the competency of the witness or the competency,
relevancy, or materiality of testimony is not waived by failure to make
the objection before or during the taking of the deposition, unless the
basis for the objection might have been removed if the objection had
been presented at the taking of the deposition.
(4) Any objection to errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in the form of the
questions and answers, in the oath or affirmation, or in the conduct of
participants, and errors of any kind that might be obviated, removed or
cured if presented at the deposition, is waived unless objection is made
at the taking of the deposition.
(5) Any objection based on errors or irregularities in the manner in
which the testimony is transcribed or the deposition is prepared,
signed, certified, endorsed, or otherwise dealt with by the officer is
waived, unless the objection is made with reasonable promptness after
the defect is, or with due diligence should have been, ascertained.
18 CFR 385.406 Data requests, interrogatories, and requests for
production of documents or things (Rule 406).
(a) Availability. Any participant may serve upon any other
participant a written request to supply information, such as responses
to data requests and interrogatories, or copies of documents.
(b) Procedures. (1) A request under this section must identify with
specificity the information or material sought and will specify a
reasonable time within which the matter sought must be furnished.
(2) Unless provided otherwise by the presiding officer, copies of any
discovery request must be served upon the presiding officer and on all
participants to the proceeding.
(3) Each discovery request must be answered separately and fully in
writing.
(4) Responses to discovery requests are required to be served only on
the participant requesting the information, Commission trial staff, and
any other participant that specifically requests service. The presiding
officer may direct that a copy of any responses be furnished to the
presiding officer. Responses must be served within the time limit
specified in the request or otherwise provided by the presiding officer.
(5) If the matter sought is not furnished, the responding participant
must provide, in accordance with Rule 410, written explanation of the
specific grounds for the failure to furnish it.
18 CFR 385.407 Inspection of documents and other property (Rule 407).
(a) Availability. On request, the presiding officer may order any
other participant to:
(1) Permit inspection and copying of any designated documents
(including writings, drawings, graphs, charts, photographs, sound
recordings, computer tapes or other compilations of data from which
information can be obtained) that are not privileged and that are in the
possession, custody, or control of the participant to whom the order is
directed;
(2) Permit inspection, copying or photographing, testing, or sampling
of any tangible thing that is not privileged and that is in the
possession, custody, or control of the participant to whom the order is
directed; and
(3) Permit entry upon or into designated land, buildings, or other
property in the possession, custody, or control of the participant to
whom the order is directed for the purpose of inspecting, measuring,
surveying, or photographing the property or any activity or operation
that is not privileged and that is conducted in or upon the property.
(b) Procedures. A request for inspection of documents or property
under this section must describe with reasonable particularity the
documents or other property to which access is sought. The request must
also specify a reasonable time, place, and manner of making the
inspection.
18 CFR 385.408 Admissions (Rule 408).
(a) General rule. A participant may serve upon any other participant
a written request for admission of the genuineness of any document or
the truth of any matter of fact. The request must be served upon all
participants.
(b) Procedures. (1) Any request for admission of the genuineness of
a document must be accompanied by a legible copy of the document, unless
it was previously furnished, is in the possession of the recipient of
the request, or is readily available for inspection and copying.
(2) The truth of specified matters of fact or the genuineness of the
documents described in a request are deemed admitted unless, within 20
days after service of the request or any longer period designated in the
request, the participant that receives the request serves upon the
requesting participant a written answer or objection addressed to the
matters in the request.
(3) An answer must specifically admit or deny the truth of the
matters in the request or set forth in detail the reasons why the
answering participant cannot admit or deny the truth of each matter. A
denial of the truthfulness of the requested admission must fairly
discuss the substance of the requested admission and, when good faith
requires that a participant qualify the answer or deny only a part of
the matter of which an admission is requested, the participant must
specify that which is true and qualify or deny the remainder. The
answer must be served on all participants.
(c) Effect of admission. Any admission made by a participant under
this section is for the purpose of the pending proceeding only, is not
an admission for any other purpose, and may not be used against the
participant in any other proceeding. Any matter admitted under this
rule is conclusively established unless the presiding officer, on
motion, permits withdrawal or amendment of the admission. The presiding
officer may permit withdrawal or amendment of an admission, if the
presiding officer finds that the presentation of the merits of the
proceeding will be promoted and the participant who obtained the
admission has failed to satisfy the presiding officer that withdrawal or
amendment of the admission will prejudice that participant in
maintaining his position in the proceeding.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 466-A, 52
FR 35909, Sept. 24, 1987)
18 CFR 385.409 Subpoenas (Rule 409).
(a) Issuance. On request, the presiding officer may issue a subpoena
for the attendance of a witness at a deposition or hearing or for the
production of documents. A request for a subpoena must be served on all
participants.
(b) Service and return. A subpoena issued under this section must be
served by personal service, substituted service, registered mail, or
certified mail. A subpoena may be served by the marshal, by his deputy,
or by any other person who is not a party or an employee of a party and
is at least 18 years of age. If personal service is made by any person
other than a United States marshal or deputy marshal, return of service
must be accompanied by an affidavit to the Secretary or the presiding
officer and must state the time and manner of service of the subpoena.
(c) Fees. Fees paid to subpoenaed persons will be in accordance with
Rule 510(e).
(d) Objections. Objections to subpoenas must be made in accordance
with Rule 410.
18 CFR 385.410 Objections to discovery, motions to quash or to compel,
and protective orders (Rule 410).
(a) Objection to discovery -- (1) Notice of objections or motion to
quash. A participant, or a recipient of a subpoena, who does not intend
to comply with a discovery request must notify in writing the
participant seeking discovery within a reasonable time in advance of the
date on which a response or other action in conformance with the
discovery request is due. A recipient of a subpoena may either provide
a notice of objection or file a motion to quash.
(2) Objections to production of documents.
(i) Unless an objection to discovery under this section is based on
the ground that production would impose an undue burden, the objecting
participant must provide the participant seeking discovery with a
schedule of items withheld and a statement of:
(A) The character and specific subject matter of each item; and
(B) The specific objection asserted for each item.
(ii) If an objection under this section is based on the ground that
production of the requested material would impose an undue burden, the
objecting participant must provide the participant seeking discovery
with a description of the approximate number of documents that would
have to be produced and a summary of the information contained in such
documents.
(3) Objections to other discovery requests.
If the discovery to which objection is made is not a request for
documents, the objection must clearly state the grounds on which the
participant bases its objection.
(4) Objections to compile or process information. The fact that
information has not been compiled or processed in the form requested is
not a basis for objection unless the objection presents grounds for
limiting discovery under paragraph (c) of this section.
(b) Motions to compel. Any participant seeking discovery may file a
motion to compel discovery, if:
(1) A participant to whom a data request is made or upon whom an
interrogatory is served under Rule 406 fails or refuses to make a full,
complete, and accurate response;
(2) A person named in a notice of intent to take a deposition or a
subpoena fails or refuses to appear for the deposition;
(3) An organization named in a notice of intent to take a deposition
fails or refuses to designate one or more persons to testify on its
behalf under Rule 404(b)(3);
(4) A deponent fails or refuses to answer fully, completely, and
accurately a question propounded or to sign the transcript of the
testimony as required by Rule 404(f)(2);
(5) A participant upon whom a request for admissions is served fails
or refuses to respond to the request in accordance with Rule 408(b); or
(6) A participant upon whom an order to produce or to permit
inspection or entry is served under Rule 407 fails or refuses to comply
with that order.
(c) Orders limiting discovery. A presiding officer may, by order,
deny or limit discovery or restrict public disclosure of discoverable
matter in order to:
(1) Protect a participant or other person from undue annoyance,
burden, harassment or oppression;
(2) Prevent undue delay in the proceeding;
(3) Preserve a privilege of a participant, person, or governmental
agency;
(4) Prevent a participant from requiring another participant to
provide information which is readily available to the requesting
participant from other sources with a reasonable expenditure of effort
given the requesting participant's position and resources;
(5) Prevent unreasonably cumulative or duplicative discovery
requests; or
(6) Provide a means by which confidential matters may be made
available to participants so as to prevent public disclosure. Material
submitted under a protective order may nevertheless be subject to
Freedom of Information Act requests and review.
(d) Privilege -- (1) In general (i) In the absence of controlling
Commission precedent, privileges will be determined in accordance with
decisions of the Federal courts with due consideration to the
Commission's need to obtain information necessary to discharge its
regulatory responsibilities.
(ii) A presiding officer may not quash a subpoena or otherwise deny
or limit discovery on the ground of privilege unless the presiding
officer expressly finds that the privilege claimed is applicable. If a
presiding officer finds that a qualified privilege has been established,
the participant seeking discovery must make a showing sufficient to
warrant discovery despite the qualified privilege.
(iii) A presiding officer may issue a protective order under Rule
410(c) to deny or limit discovery in order to preserve a privilege of a
participant, person, or governmental agency.
(2) Of the Commission. (i) If discovery under this subpart would
require the production of Commission information, documents, or other
matter that might fall within a privilege, the Commission trial staff
must identify in writing the applicable privilege along with the matters
claimed to be privileged or the individuals from whom privileged
information is sought, to the presiding officer and the parties.
(ii) If the presiding officer determines that the privilege claimed
for the Commission is applicable, the Commission information, documents,
or other matter may not be produced. If the presiding officer
determines that no privilege is applicable, that a privilege is waived,
or that a qualified privilege is overcome, the presiding officer will
certify the matter to the Commission in accordance with Rule 714.
Certification to the Commission under this paragraph must describe the
material to be disclosed and the reasons which, in the presiding
officer's view, justify disclosure. The information will not be
disclosed unless the Commission affirmatively orders the material
disclosed.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 466-A, 52
FR 35910, Sept. 24, 1987)
18 CFR 385.411 Sanctions (Rule 411).
(a) Disobedience of order compelling discovery. If a participant or
any other person fails to obey an order compelling discovery, the
presiding officer may, after notice to the participant or person and an
opportunity to be heard, take one or more of the following actions, but
may not dismiss or otherwise terminate the proceeding:
(1) Certify the matter to the Commission with a recommendation for
dismissal or termination of the proceeding, termination of that
participant's right to participate in the proceeding, institution of
civil action, or any other sanction available to the Commission by law;
(2) Order that the matters to which the order compelling discovery
relates are taken as established for the purposes of the proceeding in
accordance with the position of the participant obtaining the order;
(3) Order that a participant be precluded from supporting or opposing
such positions or introducing such matters in evidence as the presiding
officer designates;
(4) Order that all or part of any pleading by a participant be struck
or that the proceeding or a phase of the proceeding be stayed until the
order compelling discovery is obeyed; and
(5) Recommend to the Commission that it take action under Rule 2102
against a representative of the participant if the presiding officer
believes that the representative has engaged in unethical or improper
professional conduct.
(b) Against representative of a participant. If the person
disobeying an order compelling discovery is an agent, officer, employee,
attorney, partner, or director of a participant, the presiding officer
may take any of the actions described in paragraph (a) against that
participant.
18 CFR 385.411 Subpart E -- Hearings
18 CFR 385.501 Applicability (Rule 501).
This subpart applies to any proceeding, or part of a proceeding, that
the Commission or the Secretary under delegated authority sets for a
hearing to be conducted in accordance with this subpart.
(Order 492, 53 FR 16067, May 5, 1988)
18 CFR 385.502 Initiation of hearing (Rule 502).
(a) Notice or order initiating hearing. A hearing under this subpart
will be initiated by:
(1) Order of the Commission;
(2) Notice by the Secretary at the direction of the Commission or
under delegated authority; or
(3) Order of the Oil Pipeline Board.
(b) Contents of notice or order initiating hearing. Any order or
notice under paragraph (a) of this section will set forth:
(1) The authority and jurisdiction under which the hearing is to be
held;
(2) The nature of the proceeding;
(3) The final date for the filing of interventions, if the dates were
not fixed by an earlier notice;
(4) The presiding officer, if designated at that time; and
(5) The date, time, and location of the hearing or prehearing
conference, if known; and
(6) Any other appropriate matter.
(c) Consolidation, severance, and phasing. Any notice or order under
this section may direct consolidation of proceedings, phasing of a
proceeding, or severance of proceedings or issues in a proceeding.
(Order 225, 47 FR 19022, May 3, 1982, as amended at Order 492, 53 FR
16067, May 5, 1988)
18 CFR 385.503 Consolidation, severance and extension of
close-of-record date by Chief Administrative Law Judge (Rule 503).
(a) The Chief Administrative Law Judge may, on motion or otherwise,
order proceedings pending under this subpart consolidated for hearing on
any or all matters in issue in such proceedings or order the severance
of proceedings or issues in a proceeding. Such order may be appealed to
the Commission pursuant to rule 715.
(b) If the Commission orders that the presiding officer close the
record in any proceeding by a specific date, the Chief Administrative
Law Judge may, upon motion or otherwise, extend the close-of-record date
for good cause. This staff action may be appealed to the Commission
only under Rule 1902.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 376, 49 FR
21705, May 23, 1984; Order 437, 50 FR 48183, Nov. 22, 1985)
18 CFR 385.504 Duties and powers of presiding officers (Rule 504).
(a) Duties. (1) It shall be the duty of the presiding officer to
conduct a fair and impartial hearing and to determine the matter justly
under the law.
(2) The presiding officer will cause all appearances during a hearing
to be entered on the record with a notation in whose behalf each
appearance is made.
(3) The presiding officer will establish the order of presentation of
the cases of all participants in the hearing.
(4) The presiding officer will assure that the taking of evidence and
subsequent matters proceed with all reasonable diligence and with the
least delay practicable.
(5) The presiding officer will prepare and certify an initial
decision or a revised initial decision, whichever is appropriate, to the
Commission as provided in Subpart G of this part.
(b) Powers. Except as otherwise ordered by the Commission or
provided by law, the presiding officer may:
(1) Schedule and otherwise regulate the course of the hearing;
(2) Recess, reconvene, postpone, or adjourn the hearing;
(3) Administer oaths;
(4) Rule on and receive evidence;
(5) Cause Discovery to be conducted;
(6) Exercise powers granted a presiding officer under Subpart D;
(7) Hold conferences of the participants, as provided in Subpart F of
this part;
(8) Rule on, and dispose of, procedural matters, including oral or
written motions;
(9) Summarily dispose of a proceeding or part of a proceeding, as
provided in Rule 217;
(10) Certify a question to the Commission, as provided in Rule 714;
(11) Permit or deny appeal of an interlocutory ruling, as provided in
Rule 715;
(12) Rule on motions to intervene, as provided in Rule 214;
(13) Separate any issue or group of issues from other issues in a
proceeding and treat such issue or group of issues as a separate phase
of the proceeding;
(14) Maintain order, as follows:
(i) Ensure that any disregard by any person of rulings on matters of
order and procedure is noted on the record or, if appropriate, is made
the subject of a special written report to the Commission;
(ii) In the event any person engages in disrespectful, disorderly, or
contumacious language or conduct in connection with the hearing, recess
the hearing for such time as necessary to regain order;
(iii) Request that the Commission take appropriate action, including
removal from the proceeding, against a participant or counsel, if
necessary to maintain order.
(15) Modify any time period, if such modification is in the interest
of justice and will result in no undue prejudice to any participant;
(16) Limit the number of expert witnessess who may testify on any
issue, consistent with the rule against repetitious testimony in Rule
509(a);
(17) Limit the number of persons, other than staff, representing a
similar interest who may examine witnesses or make or argue motions or
objections;
(18) Require; or authorize the admission of, further evidence upon
any issue at any time before the close of the evidentiary record;
(19) Rule on motions for reconsideration of an initial decision as
provided in Rule 717;
(20) Take any other action necessary or appropriate to the discharge
of the duties of a presiding officer, consistent with applicable law and
policy.
(c) Disqualification. (1) A presiding officer may withdraw from a
proceeding, if that officer believes himself or herself disqualified.
(2) The Commission may, for good cause, order the removal of any
presiding officer from a proceeding, on motion filed with the Commission
or otherwise.
(Order 225, 47 FR 19022, May 3, 1982; 48 FR 786, Jan. 7, 1983, as
amended by Order 375, 49 FR 21315, May 21, 1984; Order 466, 52 FR 6970,
Mar. 6, 1987)
18 CFR 385.505 Right of participants to present evidence (Rule 505).
Consistent with the provisions of this part, a participant has the
right to present such evidence, including rebuttal evidence, to make
such objections and arguments, and to conduct such cross-examination, as
may be necessary to assure true and full disclosure of the facts.
18 CFR 385.506 Examination of witnesses during hearing (Rule 506).
(a) Prepared written direct and rebuttal testimony. Unless the
presiding officer orders such testimony to be presented orally, direct
and rebuttal testimony of a witness in a hearing must be prepared and
submitted in written form, as required by Rule 507. Any witness
submitting written testimony must be available for cross-examination, as
provided in this subpart.
(b) Oral testimony during hearing. Oral examination of a witness in
a hearing must be conducted under oath and in the presence of the
presiding officer, with opportunity for all participants to question the
witness to the extent consistent with Rules 504(b)(17), 505, and 509(a).
18 CFR 385.507 Prepared written testimony (Rule 507).
(a) Offered as an exhibit. The prepared written testimony of any
witness must be offered as an exhibit. The presiding officer will allow
a reasonable period of time for the preparation of such written
testimony.
(b) Time for filing. Any prepared written testimony must be filed
and served within the time provided by the presiding officer, in no case
later than 10 days before the session of the hearing at which such
exhibit is offered, unless a shorter period is permitted under paragraph
(c) of this section.
(c) Late-filed testimony. (1) If all participants in attendance at
the hearing agree, the 10-day requirement for filing any written
testimony under paragraph (b) of this section is waived.
(2) The presiding officer may permit the introduction of any prepared
written testimony without compliance with paragraph (b) of this section,
if the presiding officer determines that the introduction of the
testimony:
(i) Is necessary for a full disclosure of the facts or is warranted
by any other showing of good cause; and
(ii) Would not be unduly prejudicial to any participant.
(3) If any written testimony is served and filed within the 10 day
period provided in paragraph (b) of this section, the presiding officer
will provide the participants in attendance with a reasonable
opportunity to inspect the testimony.
(d) Form; authentication. Prepared written testimony must have line
numbers inserted in the left-hand margin of each page and must be
authenticated by an affidavit of the witness.
18 CFR 385.508 Exhibits (Rule 508).
(a) General rules. (1) Except as provided in paragraphs (b) through
(e) of this section, any material offered in evidence, other than oral
testimony, must be offered in the form of an exhibit.
(2) Any participant who seeks to have an exhibit admitted into
evidence must provide one copy of the exhibit to the presiding officer
and two copies to the reporter, not later than the time that the exhibit
is marked for identification.
(3) The presiding officer will cause each exhibit offered by a
participant to be marked for identification.
(b) Designation and treatment of matter sought to be admitted. (1)
If a document offered as an exhibit contains material not offered as
evidence, the participant offering the exhibit must:
(i) Plainly designate the matter offered as evidence; and
(ii) Segregate and exclude the material not offered in evidence, to
the extent practicable.
(2) If, in a document offered as an exhibit, material not offered in
evidence is so extensive as to unnecessarily encumber the record, the
material offered in evidence will be marked for identification. The
remainder of the document will be considered not to have been offered in
evidence.
(3) Copies of any document offered as an exhibit under paragraph
(b)(2) of this section must be delivered to the other participants
appearing at the hearing by the participant offering the exhibit in
evidence. The participants will be offered an opportunity to inspect
the entire document and to offer as an exhibit in evidence, in like
manner, any other portions of the document.
(c) Public document items by reference. If all or part of a public
document is offered in evidence and the participant offering the
document shows that all or the pertinent part of the document, is
reasonably available to the public, the document need not be produced or
marked for identification but may be offered in evidence as a public
document by identifying all or the relevent part of the document to be
offered.
(d) Official notice of facts. (1) A presiding officer may take
official notice of any matter that may be judicially noticed by the
courts of the United States, or of any matter about which the
Commission, by reason of its functions, is expert.
(2) The presiding officer must afford any participant, making a
timely request, an opportunity to show the contrary of an officially
noticed fact.
(3) Any participant requesting official notice of facts after the
conclusion of the hearing must set forth reasons to justify the failure
to request official notice prior to the close of the hearing.
(e) Stipulations. (1) Participants in a proceeding may stipulate to
any relevant matters of fact or the authenticity of any relevant
documents.
(2) A stipulation may be received in evidence at the hearing and, if
received in evidence, the stipulation is binding on the stipulating
participants with respect to any matter stipulated.
(3) A stipulation may be written or made orally at the hearing.
18 CFR 385.509 Admissibility of evidence (Rule 509).
(a) General standard. The presiding officer should exclude from
evidence any irrelevant, immaterial, or unduly repetitious material.
The presiding officer may also exclude from evidence any other material
which the presiding officer determines is not of the kind which would
affect reasonable and fair-minded persons in the conduct of their daily
affairs.
(b) Ruling on evidence. (1) The presiding officer will rule on the
admissibility of any evidence offered.
(2) If any participant objects to the admission or exclusion of
evidence, the participant must state briefly the grounds for the
objection.
(3) The presiding officer will not permit formal exceptions to any
ruling on evidence. This prohibition against formal exceptions does not
preclude a participant from raising, as an issue, the validity of any
ruling on evidence later in the proceeding, consistent with Rule 711.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 225-A, 47
FR 35956, Aug. 18, 1982)
18 CFR 385.510 Miscellaneous provisions (Rule 510).
(a) Transcript. (1) Any statement made at a hearing session will be
transcribed in a verbatim report, with nothing omitted except as
directed by the presiding officer on the record. A statement at a
hearing may not occur off-the-record, except as otherwise directed by
the presiding officer.
(2) After the closing of a record, changes in the transcript are not
permitted, except as provided in paragraph (b) of this section.
(b) Transcript corrections. (1) Any correction in the transcript of
a hearing may be made only if the correction conforms the transcript to
the evidence presented at the hearing and to the truth.
(2) A transcript correction may be incorporated in the record, in
accordance with a ruling of the presiding officer, if:
(i) Agreed to by all participants and approved by the presiding
officer; or
(ii) The presiding officer requests submittal of transcript
corrections and rules on the corrections submitted.
(3) Transcript corrections may be made at any time during the hearing
or after the close of evidence, as the presiding officer determines
appropriate, but only if the correction is made not less than 10 days
before the time for filing final briefs.
(c) Close of evidentiary record. The presiding officer will
designate the time at which the evidentiary record is closed. Evidence
may not be added to the evidentiary record after the record is closed,
unless the record is reopened under Rule 716.
(d) Copies of exhibits and motions to participants. Except as
otherwise provided in this subpart, copies of exhibits and motions will
be provided at the hearing to any participants who have not been
provided copies.
(e) Fees of subpoenaed witnesses. (1) Any witnesses subpoenaed by
the Commission must be paid the same fees and mileage provided for
similar services in the district courts of the United States.
(2) Any fees and mileage paid to a subpoenaed witness under paragraph
(e)(1) of this section will be paid by the Commission, unless the
witness is subpoenaed at the instance of a party.
(3) If the witness is subpoenaed at the instance of a party, any fees
and mileage paid to the witness under paragraph (e)(1) of this section
must be paid by the party. The Commission, before issuing any subpoena
at the instance of the party, may require the party to deposit an amount
adequate to cover the witness probable fees and mileage under paragraph
(e)(1) of this section. The deposit will be refunded when the party
pays the witness in full.
(f) Offers of proof. (1) Any offer of proof made in connection with
a ruling of the presiding officer rejecting or excluding proffered oral
testimony must consist of a statement of the substance of the evidence
which the participant claims would be adduced by the testimony.
(2) If any excluded evidence is in the form of an exhibit or is a
public document, a copy of such exhibit will constitute the offer of
proof or the public document will be specified for identification.
18 CFR 385.510 Subpart F -- Conferences, Settlements, and Stipulations
18 CFR 385.601 Conferences (Rule 601).
(a) Convening. The Commission or the decisional authority, upon
motion or otherwise, may convene a conference of the participants in a
proceeding at any time for any purpose related to the conduct or
disposition of the proceeding, including submission and consideration of
offers of settlement.
(b) General requirements. (1) The participants in a proceeding must
be given due notice of the time and place of a conference under
paragraph (a) of this section and of the matters to be addressed at the
conference. Participants attending the conference must be prepared to
discuss the matters to be addressed at the conference, unless there is
good cause for a failure to be prepared.
(2) Any person appearing at the conference in a representative
capacity must be authorized to act on behalf of that person's principal
with respect to matters to be addressed at the conference.
(3) If any party fails to attend the conference such failure will
constitute a waiver of all objections to any order or ruling arising out
of, or any agreement reached at, the conference.
(c) Powers of decisional authority at conference. (1) The decisional
authority, before which the conference is held or to which the
conference reports, may dispose, during a conference, of any procedural
matter on which the decisional authority is authorized to rule and which
may appropriately and usefully be disposed of at that time.
(2) If, in a proceeding set for hearing under subpart E, the
presiding officer determines that the proceeding would be substantially
expedited by distribution of proposed exhibits, including written
prepared testimony and other documents, reasonably in advance of the
hearing session, the presiding officer may, with due regard for the
convenience of the participants, direct advance distribution of the
exhibits by a prescribed date. The presiding officer may also direct
the preparation and distribution of any briefs and other documents which
the presiding officer determines will substantially expedite the
proceeding.
18 CFR 385.602 Submission of settlement offers (Rule 602).
(a) Applicability. This section applies to written offers of
settlement filed in any proceeding pending before the Commission or set
for hearing under subpart E. For purposes of this section, the term
''offer of settlement'' includes any written proposal to modify an offer
of settlement.
(b) Submission of offer. (1) Any participant in a proceeding may
submit an offer of settlement at any time.
(2) An offer of settlement must be filed with the Secretary. The
Secretary will transmit the offer to:
(i) The presiding officer, if the offer is filed after a hearing has
been ordered under subpart E of this part and before the presiding
officer certifies the record to the Commission; or
(ii) The Commission.
(c) Contents of offer. (1) An offer of settlement must include:
(i) The settlement offer;
(ii) A separate explanatory statement;
(iii) Copies of, or references to, any document, testimony, or
exhibit, including record citations if there is a record, and any other
matters that the offerer considers relevant to the offer of settlement;
and
(2) If an offer of settlement pertains to a tariff or rate filing,
the offer must include any proposed change in a form suitable for
inclusion in the filed rate schedules or tariffs, and a number of copies
sufficient to satisfy the filing requirements applicable to tariff or
rate filings of the type at issue in the proceeding.
(d) Service. (1) A participant offering settlement under this
section must serve a copy of the offer of settlement:
(i) On every participant in accordance with Rule 2010;
(ii) On any person required by the Commission's rules to be served
with the pleading or tariff or rate schedule filing, with respect to
which the proceeding was initiated.
(2) The participant serving the offer of settlement must notify any
person or participant served under paragraph (d)(1) of this section of
the date on which comments on the settlement are due under paragraph (f)
of this section.
(e) Use of non-approved offers of settlement as evidence. (1) An
offer of settlement that is not approved by the Commission, and any
comment on that offer, is not admissible in evidence against any
participant who objects to its admission.
(2) Any discussion of the parties with respect to an offer of
settlement that is not approved by the Commission is not subject to
discovery or admissible in evidence.
(f) Comments. (1) A comment on an offer of settlement must be filed
with the Secretary who will transmit the comment to the Commission, if
the offer of settlement was transmitted to the Commission, or to the
presiding officer in any other case.
(2) A comment on an offer of settlement may be filed not later than
20 days after the filing of the offer of settlement and reply comments
may be filed not later than 30 days after the filing of the offer,
unless otherwise provided by the Commission or the presiding officer.
(3) Any failure to file a comment constitutes a waiver of all
objections to the offer of settlement.
(g) Uncontested offers of settlement. (1) If comments on an offer
are transmitted to the presiding officer and the presiding officer finds
that the offer is not contested by any participant, the presiding
officer will certify to the Commission the offer of settlement, a
statement that the offer of settlement is uncontested, and any hearing
record or pleadings which relate to the offer of settlement.
(2) If comments on an offer of settlement are transmitted to the
Commission, the Commission will determine whether the offer is
uncontested.
(3) An uncontested offer of settlement may be approved by the
Commission upon a finding that the settlement appears to be fair and
reasonable and in the public interest.
(h) Contested offers of settlement. (1) (i) If the Commission
determines that any offer of settlement is contested in whole or in
part, by any party, the Commission may decide the merits of the
contested settlement issues, if the record contains substantial evidence
upon which to base a reasoned decision or the Commission determines
there is no genuine issue of material fact.
(ii) If the Commission finds that the record lacks substantial
evidence or that the contested issues can not be severed from the offer
of settlement, the Commission will:
(A) Establish procedures for the purpose of receiving additional
evidence before a presiding officer upon which a decision on the
contested issues may reasonably be based; or
(B) Take other action which the Commission determines to be
appropriate.
(iii) If contested issues are severable, the uncontested portions may
be severed and decided in accordance with paragraph (g) of this section.
(2)(i) If any comment on an offer of settlement is transmitted to the
presiding officer and the presiding officer determines that the offer is
contested, whole or in part, by any participant, the presiding officer
may certify all or part of the offer to the Commission. If any offer or
part of an offer is contested by a party, the offer may be certified to
the Commission only if paragraph (h)(2)(ii) or (iii) of this section
applies.
(ii) Any offer of settlement or part of any offer may be certified to
the Commission if the presiding officer determines that there is no
genuine issue of material fact. Any certification by the presiding
officer must contain the determination that there is no genuine issue of
material fact and any hearing record or pleadings which relate to the
offer or part of the offer being certified.
(iii) Any offer of settlement or part of any offer may be certified
to the Commission, if:
(A) The parties concur on a motion for omission of the initial
decision as provided in Rule 710;
(B) The presiding officer determines that the record contains
substantial evidence from which the Commission may reach a reasoned
decision on the merits of the contested issues; and
(C) The parties have an opportunity to avail themselves of their
rights with respect to the presentation of evidence and
cross-examination of opposing witnesses.
(iv) If any contested issues are severable, the uncontested portions
of the settlement may be certified immediately by the presiding officer
to the Commission for decision, as provided in paragraph (g) of this
section.
(i) Reservation of rights. Any procedural right that a participant
has in the absence of an offer of settlement is not affected by
Commission disapproval, or approval subject to condition, of the
uncontested portion of the offer of settlement.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 541, 57 FR
21734, May 22, 1992)
18 CFR 385.603 Settlement negotiations before a settlement judge (Rule
603).
(a) Applicability. This section applies to any proceeding set for
hearing under Subpart E of this part and to any other proceeding in
which the Commission has ordered the appointment of a settlement judge.
(b) Definition. For purposes of this section, settlement judge means
the administrative law judge appointed by the Chief Administrative Law
Judge to conduct settlement negotiations under this section.
(c) Requests for appointment of settlement judges. (1) Any
participant may file a motion requesting the appointment of a settlement
judge with the presiding officer, or, if there is no presiding officer
for the proceeding, with the Commission.
(2) A presiding officer may request the Chief Administrative Law
Judge to appoint a settlement judge.
(3) A motion under paragraph (c)(1) of this section may be acted upon
at any time, and the time limitations on answers in Rule 213(d) do not
apply.
(4) Any answer or objection filed after a motion has been acted upon
will not be considered.
(d) Commission order directing appointment of settlement judge. The
Commission may, on motion or otherwise, order the Chief Administrative
Law Judge to appoint a settlement judge.
(e) Appointment of settlement judge by Chief Administrative Law
Judge. The Chief Administrative Law Judge may appoint a settlement
judge for any proceeding, if requested by the presiding officer under
paragraph (c)(2) of this section or if the presiding officer concurs in
a motion made under paragraph (c)(1) of this section.
(f) Order appointing settlement judge. The Chief Administrative Law
Judge will appoint a settlement judge by an order, which specifies
whether, and to what extent, the proceeding is suspended pending
termination of settlement negotiations conducted in accordance with this
section. The order may confine the scope of any settlement negotiations
to specified issues.
(g) Powers and duties of settlement judge. (1) A settlement judge
will convene and preside over conferences and settlement negotiations
between the participants and assess the practicalities of a potential
settlement.
(2)(i) A settlement judge will report to the Chief Administrative Law
Judge or the Commission, as appropriate, describing the status of the
settlement negotiations and evaluating settlement prospects.
(ii) In any such report, the settlement judge may recommend the
termination or continuation of settlement negotiations conducted under
this section.
(iii) The first report by the settlement judge will be made not later
than 30 days after the appointment of the settlement judge. The
Commission or the Chief Administrative Law Judge may order additional
reports at any time.
(h) Termination of settlement negotiations before a settlement judge.
Unless an order of the Commission directing the appointment of a
settlement judge provides otherwise, settlement negotiations conducted
under this section will terminate upon the order of the Chief
Administrative Law Judge issued after consultation with the settlement
judge.
(i) Non-reviewability. Any decision concerning the appointment of a
settlement judge or the termination of any settlement negotiations is
not subject to review by, appeal to, or rehearing by the presiding
officer, Chief Administrative Law Judge, or the Commission.
(j) Multiple settlement negotiations. If settlement negotiations are
terminated under paragraph (h) of this section, the Chief Administrative
Law Judge may subsequently appoint a settlement judge in the same
proceeding to conduct settlement negotiations in accordance with this
section.
18 CFR 385.603 Subpart G -- Decisions
18 CFR 385.701 Applicability (Rule 701).
This subpart applies to decisions in proceedings set for hearing
under subpart E of this part, including any decision on a certified
question, interlocutory appeal, or reopening, and to any decision on
rehearing, except that:
(a) The provisions of this subpart, other than those relating to
rehearing or reopening, do not apply to consideration of an offer of
settlement; and
(b) This subpart applies to summary disposition only to the extent
provided in Rule 217.
18 CFR 385.702 Definitions (Rule 702).
For purposes of this subpart:
(a) Initial decision means any decision rendered by a presiding
officer in accordance with Rule 708;
(b) Revised initial decision means any initial decision as revised by
a presiding officer in accordance with Rule 717;
(c) Final decision means any decision referred to in Rule 713.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 375, 49 FR
21315, May 21, 1984)
18 CFR 385.703 Contents of decisions (Rule 703).
Any decision in a proceeding is part of the record of that proceeding
and will contain:
(a) A ruling on each exception presented and any finding or
conclusion, with supporting reasons, on any material issue of fact, law,
or discretion presented on the record; and
(b) The appropriate rule, order, sanction, relief, or a denial of any
rule, order, motion, or relief.
18 CFR 385.704 Rights of participants before initial decision (Rule
704).
After testimony is taken in a proceeding, or phase of a proceeding,
the presiding officer will afford every participant an opportunity to:
(a) Submit written initial briefs in accordance with Rule 706, except
that the presiding officer may provide an opportunity for oral argument
in lieu of, or in addition to, initial briefs; and
(b) Submit written reply briefs in accordance with Rule 706, except
that the presiding officer may:
(1) Provide an opportunity for oral reply argument in lieu of, or in
addition to, reply briefs; or
(2) For good cause, deny opportunity for reply or limit the issues
which may be addressed in any reply.
18 CFR 385.705 Additional powers of presiding officer with respect to
briefs (Rule 705).
(a) Limitations on briefs. A presiding officer, with due regard to
the nature of the proceeding, may limit the length of any brief to be
filed under Rule 706.
(b) Additional briefs and other filings. If appropriate, the
presiding officer may permit or require briefs or other filings in
addition to those provided for in Rule 706.
18 CFR 385.706 Initial and reply briefs before initial decision (Rule
706).
(a) When filed. The presiding officer will prescribe a time for
filing initial or reply briefs and for service of such briefs, giving
due regard to the nature of the proceeding, the extent of the record,
and the number and complexity of the issues. Unless the presiding
officer otherwise orders, the time prescribed in a proceeding for filing
briefs will be the same for all initial briefs and the same for all
reply briefs.
(b) Contents. (1) An initial brief filed with the presiding officer
must include:
(i) A concise statement of the case;
(ii) A separate section containing proposed findings and conclusions,
unless waived by the presiding officer;
(iii) Arguments in support of the participant's position; and
(iv) Any other matter requird by the presiding officer.
(2)(i) A reply brief filed with the presiding officer must be limited
to a response to any arguments and issues raised in the initial briefs.
(ii) The presiding officer may impose limits on the reply brief in
addition to any prescribed under paragraph (b)(2)(i) of this section.
(c) Form. (1) An exhibit admitted in evidence or marked for
identification in the record may not be reproduced in the brief, but may
be reproduced, within reasonable limits, in an appendix to the brief.
Any pertinent analysis of an exhibit may be included in a brief.
(2) If a brief exceeds 20 pages, the brief must be accompanied by a
table of contents and of points made, including page references, and an
alphabetical list of citations, with page references.
(d) Record. All initial and reply briefs will accompany the record
and be available to the Commission and the presiding officer for
consideration in deciding the case.
18 CFR 385.707 Oral argument before initial decision (Rule 707).
(a) Procedure. The presiding officer will designate the order of any
oral argument to be held, set a time limit on each argument, and make
any other procedural rulings.
(b) Scope. (1) If oral argument is held without an initial brief,
each participant must be given the opportunity to present orally the
information required or permitted to be included in initial briefs under
Rule 706(b).
(2) If oral argument is held in addition to an initial or reply
brief, oral argument may be limited to issues considered by the
presiding officer to be appropriate issues for oral argument.
(c) Inclusion of transcript of oral argument. All oral arguments
will be transcribed and included in the record and will be available to
the Commission and the presiding officer in deciding the case.
18 CFR 385.708 Initial decisions by presiding officers (Rule 708).
(a) Applicability. This section applies to any proceeding in which a
presiding officer, other than the Commission, presided over the
reception of the evidence.
(b) General rule. (1) Except as otherwise ordered by the Commission
or provided in paragraph (b)(2) of this section, the presiding officer
will prepare a written initial decision and, if appropriate under Rule
717, a written revised initial decision.
(2)(i) If time and circumstances require, the presiding officer may
issue an order stating that an oral initial or oral revised initial
decision will be issued.
(ii) An oral decision is considered served upon all participants when
the decision is issued orally on the record. Promptly after service of
the oral decision, the presiding officer will prepare the oral initial
decision contained in the transcript in the format of a written initial
decision.
(3) Any initial decision or, if appropriate under Rule 717, any
revised initial decision prepared under paragraph (b)(1) or (b)(2) of
this section will be certified to the Commission by the presiding
officer with a copy of the record in the proceeding.
(4) Not later than 35 days after the certification of an initial or
revised initial decision, as appropriate, under paragraph (b)(3) of this
section, the presiding officer, after notifying the participants and
receiving no objection from them, may make technical corrections to the
initial or revised initial decision.
(c) Initial and revised initial decision prepared and certified by
presiding officer. (1) The presiding officer who presides over the
reception of evidence will prepare and certify the initial decision, if
any, or, if appropriate, the revised initial decision unless the officer
is unavailable or the Commission provides otherwise in accordance with 5
U.S.C. 557(b).
(2) If the presiding officer who presided over the reception of
evidence becomes unavailable, the Chief Administrative Law Judge may
issue an order designating another qualified presiding officer to
prepare and certify the initial or revised initial decision.
(d) Finality of initial and revised initial decision. For purposes
of requests for rehearing under Rule 713, an initial decision or, if
appropriate under Rule 717, a revised initial decision becomes a final
Commission decision 10 days after exceptions are due under Rule 711
unless:
(1) Exceptions are timely filed under Rule 711; or
(2) The Commission issues an order staying the effectiveness of the
decision pending review under Rule 712.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 375, 49 FR
21315, May 21, 1984)
18 CFR 385.709 Other types of decisions (Rule 709).
In lieu of an initial decision under Rule 708, the Commission may
order any type of decision as provided by 5 U.S.C. 557(b), or permit
waiver of the initial decision as provided by Rule 710.
18 CFR 385.710 Waiver of the initial decision (Rule 710).
(a) General rule. Any participant may file a motion requesting the
Commission to issue a final decision without any initial decision. If
all participants join in the motion, the motion is granted, unless the
Commission denies the motion within 10 days after the date of filing of
the motion or, in the case of an oral motion under paragraph (c)(2) of
this section, within 10 days after the motion is transmitted to the
Commission. If all participants do not join in the motion, the motion
is denied unless the Commission grants the motion within 30 days of
filing of the motion or, in the case of an oral motion under paragraph
(c)(2) of this section, within 30 days after the motion is transmitted
to the Commission.
(b) Content. Any motion to waive the initial decision filed with the
Commission must specify:
(1) Whether any participant waives any procedural right;
(2) Whether all participants concur in the request to waive the
initial decision;
(3) The reasons that waiver of the initial decision is in the
interest of parties and the public interest;
(4) Whether any participant desires an opportunity for filing briefs;
and
(5) Whether any participant desires an opportunity for oral argument
before the presiding officer, the Commission, or an individual
Commissioner.
(c) How and when made. (1) Any written motion under this section may
be filed at any time, but not later than the fifth day following the
close of the hearing conducted under subpart E of this part.
(2) An oral motion under this section may be made during a hearing
session, in which case the presiding officer will transmit to the
Commission the relevant portions of the transcript of the hearing in
which the motion was made.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 376, 49 FR
21705, May 23, 1984)
18 CFR 385.711 Exceptions and briefs on and opposing exceptions after
initial or revised initial decision (Rule 711).
(a) Exceptions. (1)(i) In proceedings not subject to Rule 717, any
participant may file with the Commission exceptions to the initial
decision in a brief on exceptions not later than 30 days after service
of the initial decision.
(ii) Not later than 20 days after the latest date for filing a brief
on exceptions, any participant may file a brief opposing exceptions in
response to a brief on exceptions.
(iii) A participant may file, within the time set for filing briefs
opposing exceptions, a brief on exceptions solely for the purpose of
incorporating by reference one or more numbered exceptions contained in
the brief of another participant. A brief filed under this clause need
not comply with the requirements set forth in paragraph (b) of this
section.
(2) A brief on exceptions or a brief opposing exceptions may not
exceed 100 pages, unless the Chief Administrative Law Judge, upon
motion, changes the page limitation.
(3) The Secretary may extend, on motion or upon direction of the
Commission, the time limits for any brief on or opposing exceptions. No
additional briefs are permitted, unless specifically ordered by the
Commission.
(4) A participant may not attach to, or incorporate by reference in,
any brief on exceptions or brief opposing exceptions any portion of an
initial or reply brief filed in the proceeding.
(b) Nature of briefs on exceptions and of briefs opposing exceptions.
(1) Any brief on exceptions and any brief opposing exceptions must
include:
(i) If the brief exceeds 10 pages in length, a separate summary of
the brief not longer than five pages; and
(ii) A presentation of the participant's position and arguments in
support of that position, including references to the pages of the
record or exhibits containing evidence and arguments in support of that
position.
(2) Any brief on exceptions must include, in addition to matters
required by paragraph (b)(1) of this section:
(i) A short statement of the case;
(ii) A list of numbered exceptions, including a specification of each
error of fact or law asserted; and
(iii) A concise discussion of the policy considerations that may
warrant full Commission review and opinion.
(3) A brief opposing exceptions must include, in addition to matters
required by paragraph (b)(1) of this section:
(i) A list of exceptions opposed, by number; and
(ii) A rebuttal of policy considerations claimed to warrant
Commission review.
(c) Oral argument. (1) Any participant filing a brief on exceptions
or brief opposing exceptions may request, by written motion, oral
argument before the Commission or an individual Commissioner.
(2) A motion under paragraph (c)(1) of this section must be filed
within the time limit for filing briefs opposing exceptions.
(3) No answer may be made to a motion under paragraph (c)(1) and, to
that extent, Rule 213(a)(3) is inapplicable to a motion for oral
argument.
(4) A motion under paragraph (c)(1) of this section may be granted at
the discretion of the Commission. If the motion is granted, any oral
argument will be limited, unless otherwise specified, to matters
properly raised by the briefs.
(d) Failure to take exceptions results in waiver -- (1) Complete
waiver. If a participant does not file a brief on exceptions within the
time permitted under this section, any objection to the initial decision
by the participant is waived.
(2) Partial waiver. If a participant does not object to a part of an
initial decision in a brief on exceptions, any objections by the
participant to that part of the initial decision are waived.
(3) Effect of waiver. Unless otherwise ordered by the Commission for
good cause shown, a participant who has waived objections under
paragraph (d)(1) or (d)(2) of this section to all or part of an initial
decision may not raise such objections before the Commission in oral
argument or on rehearing.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 375, 49 FR
21316, May 21, 1984)
18 CFR 385.712 Commission review of initial and revised initial
decisions in the absence of exceptions (Rule 712).
(a) General rule. If no briefs on exceptions to an initial or
revised initial decision are filed within the time established by rule
or order under Rule 711, the Commission may, within 10 days after the
expiration of such time, issue an order staying the effectiveness of the
decision pending Commission review.
(b) Briefs and argument. When the Commission reviews a decision
under this section, the Commission may require that participants file
briefs or present oral arguments on any issue.
(c) Effect of review. After completing review under this section,
the Commission will issue a decision which is final for purposes of
rehearing under Rule 713.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 375, 49 FR
21316, May 21, 1984)
18 CFR 385.713 Request for rehearing (Rule 713).
(a) Applicability. (1) This section applies to any request for
rehearing of a final Commission decision or other final order, if
rehearing is provided for by statute, rule, or order.
(2) For the purposes of rehearing under this section, a final
decision in any proceeding set for hearing under subpart E of this part
includes any Commission decision:
(i) On exceptions taken by participants to an initial decision or, if
appropriate under Rules 717 and 711, to a revised initial decision;
(ii) When the Commission presides at the reception of the evidence;
(iii) If the initial decision procedure has been waived by consent of
the participants in accordance with Rule 710;
(iv) On review of an initial or revised initial decision without
exceptions under Rule 712; and
(v) On any other action designated as a final decision by the
Commission for purposes of rehearing.
(3) For the purposes of rehearing under this section, any initial
decision under Rule 709 or any revised initial decision under Rule 717
is a final Commission decision after the time provided for Commission
review under Rule 712, if there are no exceptions filed to the decision
and no review of the decision is initiated under Rule 712.
(b) Time for filing; who may file. A request for rehearing by a
party must be filed not later than 30 days after issuance of any final
decision or other final order in a proceeding.
(c) Content of request. Any request for rehearing must:
(1) State concisely the alleged error in the final decision or final
order;
(2) Conform to the requirements in Rule 203(a) which are applicable
to pleadings; and
(3) Set forth the matters relied upon by the party requesting
rehearing, if rehearing is sought based on matters not available for
consideration by the Commission at the time of the final decision or
final order.
(d) Answers. (1) The Commission will not permit answers to requests
for rehearing.
(2) The Commission may afford parties an opportunity to file briefs
or present oral argument on one or more issues presented by a request
for rehearing.
(e) Request is not a stay. Unless othewise ordered by the
Commission, the filing of a request for rehearing does not stay the
Commission decision or order.
(f) Commission action on rehearing. Unless the Commission acts upon
a request for rehearing within 30 days after the request is filed, the
request is denied.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 375, 49 FR
21316, May 21, 1984)
18 CFR 385.714 Certified questions (Rule 714).
(a) General rule. During any proceeding, a presiding officer may
certify or, if the Commission so directs, will certify, to the
Commission for consideration and disposition any question arising in the
proceeding, including any question of law, policy, or procedure.
(b) Notice. A presiding officer will notify the participants of the
certification of any question to the Commission and of the date of any
certification. Any such notification may be given orally during the
hearing session or by order.
(c) Presiding officer's memorandum; views of the participants. (1)
A presiding officer should solicit, to the extent practicable, the oral
or written views of the participants on any question certified under
this section.
(2) The presiding officer must prepare a memorandum which sets forth
the relevant issues, discusses all the views of participants, and
recommends a disposition of the issues.
(3) The presiding officer must append to any question certified under
this section the written views submitted by the participants, the
transcript pages containing oral views, and the memorandum of the
presiding officer.
(d) Return of certified question to presiding officer. If the
Commission does not act on any certified question within 30 days after
receipt of the certification under paragraph (a) of this section, the
question is deemed returned to the presiding officer for decision in
accordance with the other provisions of this subpart.
(e) Certification not suspension. Unless otherwise directed by the
Commission or the presiding officer, certification under this section
does not suspend the proceeding.
18 CFR 385.715 Interlocutory appeals to the Commission from rulings of
presiding officers (Rule 715).
(a) General rule. A participant may not appeal to the Commission any
ruling of a presiding officer during a proceeding, unless the presiding
officer under paragraph (b) of this section, or the motions
Commissioner, under paragraph (c) of this section, finds extraordinary
circumstances which make prompt Commission review of the contested
ruling necessary to prevent detriment to the public interest or
irreparable harm to any person.
(b) Motion to the presiding officer to permit appeal. (1) Any
participant in a proceeding may, during the proceeding, move that the
presiding officer permit appeal to the Commission from a ruling of the
presiding officer. The motion must be made within 15 days of the ruling
of the presiding officer and must state why prompt Commission review is
necessary under the standards of paragraph (a) of this section
(2) Upon receipt of a motion to permit appeal under subparagraph
(a)(1) of this section, the presiding officer will determine, according
to the standards of paragraph (a) of this section, whether to permit
appeal of the ruling to the Commission. The presiding officer need not
consider any answer to this motion.
(3) Any motion to permit appeal to the Commission of an order issued
under Rule 604, or appeal of a ruling under paragraph (a) or (b) of Rule
905, must be granted by the presiding officer.
(4) A presiding officer must issue an order, orally or in writing,
containing the determination made under paragraph (b)(2) of this
section, including the date of the action taken.
(5) If the presiding officer permits appeal, the presiding officer
will transmit to the Commission:
(i) A memorandum which sets forth the relevant issues and an
explanation of the rulings on the issues; and
(ii) the participant's motion under paragraph (b)(1) of this section
and any answer permitted to the motion.
(6) If the presiding officer does not issue an order under paragraph
(b)(1) of this section within 15 days after the motion is filed under
paragraph (b)(1) of this section, the motion is denied.
(c) Appeal of a presiding officer's denial of motion to permit
appeal. (1) If a motion to permit appeal is denied by the presiding
officer, the participant who made the motion may appeal the denial to
the Commissioner who is designated Motions Commissioner, in accordance
with this paragraph. For purposes of this section, ''Motions
Commissioner'' means the Chairman or a member of the Commission
designated by the Chairman to rule on motions to permit interlocutory
appeal. Any person filing an appeal under this paragraph must serve a
separate copy of the appeal on the Motions Commissioner by Express Mail
or by hand delivery.
(2) A participant must submit an appeal under this paragraph not
later than 7 days after the motion to permit appeal under paragraph (b)
of this section is denied. The appeal must state why prompt Commission
review is necessary under the standards set forth in paragraph (c)(5) of
this section. The appeal must be labeled in accordance with
385.2002(b) of this chapter.
(3) A participant who appeals under this paragraph must file with the
appeal a copy of the written order denying the motion or, if the denial
was issued orally, the relevant portions of the transcript.
(4) The Motions Commissioner may, in considering an appeal under this
paragraph, order the presiding officer or any participant in the
proceeding to provide additional information.
(5) The Motions Commissioner will permit an appeal to the Commission
under this paragraph only if the Motions Commissioner finds
extraordinary circumstances which make prompt Commission review of the
contested ruling necessary to prevent detriment to the public interest
or to prevent irreparable harm to a person. If the Motions Commissioner
makes no determination within 7 days after filing the appeal under this
paragraph or within the time the Motions Commissioner otherwise provides
to receive and consider information under this paragraph, the appeal to
the Commission under paragraph (b) of this section will not be
permitted.
(6) If appeal under paragraph (b) of this section is not permitted,
the contested ruling of the presiding officer will be reviewed in the
ordinary course of the proceeding as if the appeal had not been made.
(7) If the Motions Commissioner permits an appeal to the Commission,
the Secretary will issue an order containing that decision.
(d) Commission action. Unless the Commission acts upon an appeal
permitted by a presiding officer under paragraph (b) of this section, or
by the Motions Commissioner under paragraph (c) of this section, within
15 days after the date on which the presiding officer or Motions
Commissioner permits appeal, the ruling of the presiding officer will be
reviewed in the ordinary course of the proceeding as if the appeal had
not been made.
(e) Appeal not to suspend proceeding. Any decision by a presiding
officer to permit appeal under paragraph (b) of this section or by the
Motions Commissioner to permit an appeal under paragraph (c) of this
section will not suspend the proceeding, unless otherwise ordered by the
presiding officer or the Motions Commissioner.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 376, 49 FR
21705, May 23, 1984; Order 402, 49 FR 39539, Oct. 9, 1984)
18 CFR 385.716 Reopening (Rule 716).
(a) General rule. To the extent permitted by law, the presiding
officer or the Commission may, for good cause under paragraph (c) of
this section, reopen the evidentiary record in a proceeding for the
purpose of taking additional evidence.
(b) By motion. (1) Any participant may file a motion to reopen the
record.
(2) Any motion to reopen must set forth clearly the facts sought to
be proven and the reasons claimed to constitute grounds for reopening.
(3) A participant who does not file an answer to any motion to reopen
will be deemed to have waived any objection to the motion provided that
no other participant has raised the same objection.
(c) By action of the presiding officer or the Commission. If the
presiding officer or the Commission, as appropriate, has reason to
believe that reopening of a proceeding is warranted by any changes in
conditions of fact or of law or by the public interest, the record in
the proceeding may be reopened by the presiding officer before the
initial or revised initial decision is served or by the Commission after
the initial decision or, if appropriate, the revised initial decision is
served.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 375, 49 FR
21316, May 21, 1984)
18 CFR 385.717 Reconsideration of initial decision (Rule 717).
(a) Scope. This section governs the filing, disposition, and effects
of motions for reconsideration of initial decisions in wholesale
electric rate cases designated according to this section.
(b) Designation of proceedings subject to this section. (1) The
Commission or the Chief Administrative Law Judge may designate any
wholesale electric rate case, or phase thereof, to be subject to the
procedures established in this section.
(2) Any designation of a proceeding, or phase thereof, as subject to
the procedures established in this section will be included in either:
(i) The notice or order issued under Rule 502 initiating the hearing;
(ii) The Chief Administrative Law Judge's designation of a presiding
officer for the hearing; or
(iii) An order issued by the Chief Administrative Law Judge in any
case pending, at the time the rule becomes effective, before a presiding
officer and prior to the rendering of an initial decision by the
presiding officer in that case.
(c) Filing of motions for reconsideration and replies. Within 30
days after service of an initial decision, a participant may file with
the presiding officer a motion for reconsideration of the initial
decision. Any other participants may file a reply to the motion within
20 days after the last date for filing a motion for reconsideration. No
other pleading may be filed with respect to the motion or any reply to
the motion except by leave of the presiding officer.
(d) Disposition of motion for reconsideration. Unless otherwise
authorized by the Chief Administrative Law Judge for exceptional
circumstances, the presiding officer will issue a revised initial
decision or a denial of the motion for reconsideration, in whole or in
part, within 30 days from the last day allowed for filing replies to the
motion for reconsideration. If a revised initial decision is issued,
the presiding officer shall specifically indicate those portions of the
original initial decisions, if any, which are to be treated as part of
the revised initial decision.
(e) Effect of motions for reconsideration. (1) A participant shall
file a motion for reconsideration of an initial decision or a reply to a
motion for reconsideration in accordance with this section before filing
exceptions to the initial or revised initial decision.
(2) A participant who files a motion for reconsideration or a reply
to a motion for reconsideration of an initial decision in accordance
with this section should not include in that participant's exceptions to
the initial or revised initial decision, or any brief or reply brief
thereon, any issue that was omitted from that participant's motion for
reconsideration or reply to a motion for reconsideration except where
the revised initial decision contains new findings.
(f) Time limits. (1) If a motion for reconsideration of the initial
decision or a reply to that motion is filed under this section by a
participant, that participant may file with the Commission exceptions to
the revised initial decision or, if the motion for reconsideration is
wholly denied, to the initial decision in a brief on exceptions not
later than 20 days after service of the presiding officer's disposition
of the motion for reconsideration.
(2) Subject to the restrictions in paragraph (e)(2) and not later
than 10 days after the latest date for filing a brief on exceptions
under paragraph (f)(1), any participant may file a brief opposing
exceptions in response to a brief on exceptions.
(3) The time limits in Rule 711(a)(1) (i) and (ii) do not apply to
participants subject to the procedures in this section.
(g) Expiration date. This rule will be in effect until May 21, 1986.
(Order 375, 49 FR 21316, May 21, 1984)
18 CFR 385.717 Subpart H -- Shortened Procedures
18 CFR 385.801 Waiver of hearing (Rule 801).
In any proceeding in which the Commission is authorized to act after
opportunity for hearing, if the parties waive hearing, such opportunity
will be deemed to have been afforded by service or publication in the
Federal Register of notice of the application or other initial pleading,
request, or other filing, such notice fixing a reasonable period of time
within which any person desiring to be heard may file a protest or
petition. Upon the expiration of such period of time, in the absence of
a request for hearing, the Commission may forthwith dispose of the
matter upon the basis of the pleadings and other submittals and the
studies and recommendations of the staff. A party not requesting oral
hearing in its pleadings will be deemed to have waived a hearing for the
purpose of such disposition, but will not be bound by such a waiver for
the purposes of any request for rehearing with respect to an order so
entered.
18 CFR 385.802 Noncontested proceedings (Rule 802).
Noncontested proceedings. In any proceeding required by statute to
be set for hearing, the Commission, when it appears to be in the public
interest and to be in the interest of the parties to grant the relief or
authority requested in the initial pleading, and to omit the
intermediate decision procedure, may, after a hearing during which no
opposition or contest develops, forthwith dispose of the proceedings
upon consideration of the pleadings and other evidence filed and
incorporated in the record: Provided, (a) The applicant or other
initial pleader requests that the intermediate decision procedure be
omitted and waives oral hearing and opportunity for filing exceptions to
the decision of the Commission; and (b) no issue of substance is raised
by any request to be heard, protest or petition filed subsequent to
publication in the Federal Register of the notice of the filing of an
intial pleading and notice or order fixing of hearing, which notice or
order will state that the Commission considers the proceeding a proper
one for disposition under the provisions of this subpart. Requests for
the procedure provided by this subpart may be contained in the initial
pleading or subsequent request in writing to the Commission. The
decision of the Commission in such proceeding after noncontested
hearing, will be final, subject to reconsideration by the Commission
upon request for rehearing as provided by statute.
18 CFR 385.802 Subpart I -- Commission Review of Remedial Orders
18 CFR 385.901 Scope (Rule 901).
(a) Proceedings to which applicable. The provisions of this subpart
apply to proceedings of the Commission held in accordance with section
503(c) of the Department of Energy Organization Act (42 U.S.C. 7193(c))
to review orders issued by the Secretary of Energy pursuant to section
503(a) of the Department of Energy Organization Act (42 U.S.C. 7193(c)),
and initiated by notices of probable violation, proposed remedial
orders, or other formal administrative initiating documents issued on or
after October 1, 1977, which are contested by the recipient.
(b) Relationship to other rules. (1) Where a provision of this
subpart is inconsistent with a provision in any other subpart of this
part, the provision in this subpart controls.
(2) subpart F of this part, except Rule 601, does not apply to
proceedings under this subpart.
18 CFR 385.902 Definitions (Rule 902).
For purposes of this subpart:
(a) Contested order means the remedial order, interim remedial order
for immediate compliance or order of disallowance being contested in
proceeding pursuant to this subpart;
(b) Interim remedial order for immediate compliance means an interim
remedial order for immediate compliance issued pursuant to 10 CFR
205.199D (interim remedial order of immediate compliance);
(c) Order of disallowance means an order of disallowance issued
pursuant to 10 CFR 205.199E (disallowance);
(d) Participant means, as appropriate, the Secretary, the petitioner,
and intervenors;
(e) Petitioner means a person who has received a remedial order,
interim remedial order for immediate compliance, or order of
disallowance who notifies the Secretary that he intends to contest the
order;
(f) Remedial order means a remedial order issued pursuant to 10 CFR
205.199B (remedial orders);
(g) Secretary means the Secretary of Energy or his delegate.
18 CFR 385.903 Request for nondisclosure of information (Rule 903).
(a) For purposes of this section, nondisclosure means nondisclosure
except as to the participants in the proceeding under conditions
provided in paragraphs (d) and (e) of this section.
(b) If any person filing under this subpart claims that some or all
of the information contained in a document is exempt from the mandatory
public disclosure requirements of the Freedom of Information Act (5
U.S.C. 552), is information referred to in section 1905 of title 18 of
the United States Code (18 U.S.C. 1905) (disclosure of confidential
information), or is otherwise exempt by law from public disclosure, the
person:
(1) Must request the presiding officer not to disclose such
information, except to the participants in the proceeding under the
conditions provided in paragraphs (d) and (e) of this section, which
request the person must serve upon the participants in the proceeding;
(2) Must file, together with the document, a second copy of the
document from which has been deleted the information for which the
person requests nondisclosure and must indicate in the original document
that the original document is exempt, or contains information which is
exempt, from disclosure;
(3) Must include a statement specifying why the information is
privileged or confidential, if the information for which nondisclosure
is requested is claimed to come within the exception in 5 U.S.C.
552(b)(4) for trade secrets and commercial or financial information;
(4) Must include a statement specifying the justification for
nondisclosure, if the information for which nondisclosure is requested
is not within the exception in 5 U.S.C. 552(b)(4).
(c) If the person filing a document does not submit a second copy of
the document from which the appropriate information has been deleted,
the presiding officer may assume that there is no objection to public
disclosure of the document in its entirety.
(d) If information is submitted in accordance with paragraph (b) of
this section, the information will not be disclosed except as provided
in the Freedom of Information Act, in accordance with part 388 of this
subchapter and upon request in accordance with paragraph (e) of this
section, to participants in the proceeding under the restrictions that
the participants may not use or disclose the information except in the
context of the proceeding conducted pursuant to this subpart and that
the participants must return all copies of the information at the
conclusion of the proceeding to the person who submitted the information
under paragraph (b) of this section.
(e) At any time, a participant may request the presiding officer to
direct a person submitting information under paragraph (b) of this
section to provide that information to the participant requesting the
information under this paragraph. The presiding officer will so direct
if the participant requesting the information agrees:
(1) Not to use or disclose the information except in the context of
the proceeding conducted pursuant to this subpart; and
(2) To return all copies of the information, at the conclusion of the
proceeding, to the person submitting the information under paragraph (b)
of this section.
(f) At any time, a participant may request the presiding officer to
direct that the complete record of prior proceedings, including
information determined by the Secretary to be exempt from disclosure, be
made available to that participant by the Secretary. The presiding
officer will so direct if the participant requesting the complete record
agrees:
(1) Not to use or disclose the information determined to be exempt
except in the context of the proceeding conducted pursuant to this
subpart, and
(2) To return all copies of the information determined to be exempt
to the presiding officer at the conclusion of the proceeding.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 416, 50 FR
15733, Apr. 22, 1985)
18 CFR 385.904 Commencement of proceeding (Rule 904).
(a) Except as provided in paragraph (b) of this section, the
proceeding pursuant to this subpart will be commenced by filing with the
Secretary of the Commission either an answer by a petitioner pursuant to
Rule 906(b)(1), or a written notice by the Secretary that a petitioner
has filed a notice of intent to contest an order reviewable under this
subpart, whichever is filed first. The Secretary must file written
notice that a petitioner has filed a notice of intent to contest an
order reviewable under this subpart within 15 days of the Secretary's
receipt of such notice of intent. When the Secretary files the written
notice, the Secretary must serve a copy of the contested order upon
other participants in the prior proceedings and upon persons denied
intervention in the prior proceedings, and must certify to the
Commission that such service has been made, stating the names and
addresses of persons served.
(b) The proceeding pursuant to this subpart with respect to an
interim remedial order for immediate compliance will be commenced by a
petitioner's filing with the Secretary of the Commission, for the
Commission, and serving on other participants in the prior proceedings,
if any, a notice of petition for review of an interim remedial order for
immediate compliance pursuant to 10 CFR 205.199D(i)(1) (interim remedial
order of immediate compliance). The Commission will defer consideration
of the merits of the order until a final remedial order is issued by the
Secretary.
(c) Upon commencement of a proceeding, the Commission or its designee
will designate a presiding officer for the proceeding, and the
Commission or its designee will notify participants in the prior
proceedings and persons denied intervention in the prior proceedings of
such designation.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 416-A, 50
FR 36053, Sept. 5, 1985)
18 CFR 385.905 Stay of contested order (Rule 905).
(a) Upon commencement of a proceeding, the contested order will be
automatically stayed pending review pursuant to this subpart unless and
until, upon request of the Secretary or other participant, the presiding
officer finds that the public interest requires immediate compliance
with the contested order.
(b) The Secretary or other participants may at any time prior to the
hearing under Rule 909 (Hearing), if requested; or, if there is no
hearing, within 30 days of the commencement of the proceeding under Rule
904 (Commencement of proceeding); file a petition requesting that the
contested order not be stayed, or that the stay be lifted, and setting
forth the legal and factual basis for the request.
(c) The presiding officer may request a written statement of the
views of participants regarding whether the contested order should be
stayed or continue to be stayed and may convene an expedited hearing or
conference on a petition under paragraph (b) of this section.
(d) The presiding officer may grant the petition requesting immediate
compliance where he finds that the public interest so requires and will
notify the participants of the determination.
(e) If the presiding officer does not grant the petition under
paragraph (b) of this section within 10 days after it is filed, the
petition is denied. Prior to the expiration of the 10-day period the
presiding officer may extend the period for decision for up to 7 days.
At the end of the extension, the petition, if not granted, is denied.
(f) If the petition under paragraph (b) of this section is denied,
the presiding officer will notify the participants of such denial.
(g) A grant or denial of petition under paragraphs (b) or (c) of this
section may be appealed, within 10 days after the grant or denial, to
the Commission in accordance with Rule 715 (relating to interlocutory
appeals). The contested order will remain stayed pending the
Commission's disposition of the appeal.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 416, 50 FR
15733, Apr. 22, 1985; Order 416-A, 50 FR 36054, Sept. 5, 1985)
18 CFR 385.906 Pleadings (Rule 906).
(a) By the Secretary. (1) Within 20 days after the commencement of a
proceeding, the Secretary:
(i) Will file with the Secretary for the presiding officer a copy of
the contested order; and
(ii) May, in addition, elect to file a statement setting forth the
factual elements of the alleged violation, which statement the Secretary
will serve on all participants in the proceeding.
(2) If the petitioner requests permission to raise new facts or
issues pursuant to Rule 907(a) (new facts and issues), the Secretary may
file, within 10 days after the filing of the petitioner's answer, a
reply responding to the petitioner's request to raise new facts or
issues. In the reply, the Secretary may also request the permission of
the presiding officer to raise new facts or issues under the criteria
set forth in Rule 907(b) (new facts and issues) and to conduct discovery
relating to the new facts or issues he may raise pursuant to Rule 907(b)
(new facts and issues). Failure by the Secretary to request permission
to raise new facts or issues or to conduct discovery in this reply
constitutes a waiver of the opportunity to do so at a later time in the
proceeding.
(3) The Secretary will file with the Secretary of the Commission, for
the presiding officer, and serve upon other participants in the
proceedings, a brief in support of the affirmative case, which will set
forth:
(i) The elements of the alleged violation, including references to
the authorities upon which the Secretary relies, including but not
limited to regulations, rulings, interpretations and decisions on
appeals and exceptions issued by the Department or its predecessor
agencies and precedents established by the Commission; and
(ii) A complete statement of the factual and legal basis of the
contested order.
(4) The Secretary's brief will be filed according to the following
time period appropriate to the particular proceeding:
(i) If no participant (including persons requesting intervention) has
requested permission to raise new facts or issues or to conduct
discovery pursuant to paragraphs (a)(2), (b)(2), (c)(7), and (c)(8) of
this section, within 20 days after the filing of the petitioner's answer
under paragraph (b)(1) of this section;
(ii) If the presiding officer has determined, under Rule 908(d)
(discovery) that no discovery shall be permitted, within 20 days after
the presiding officer's determination under such rule;
(iii) If discovery is permitted under Rule 908(d) (discovery) within
20 days after the conclusion of the time period set for discovery under
such rule;
(b) By the petitioner. (1) Within 15 days after petitioner gives
written notice to the Office of Hearings and Appeals of the Department
of Energy pursuant to 10 CFR 205.199C(b) that petitioner wishes to
appeal the remedial order, the petitioner must file with the Secretary
of the Commission, for the presiding officer, and serve upon the
Secretary and other participants in the proceedings, an answer to the
contested order admitting or denying each of the Secretary's findings in
the contested order and setting forth affirmative defenses, if any.
Each answer filed with the Secretary of the Commission by the
petitioner, in accordance with this paragraph, must be accompanied by
the fee prescribed by 381.303 of this chapter.
(2) In the answer, the petitioner may:
(i) Contest any part of the record;
(ii) Request permission to raise new facts or issues not raised in
the prior proceedings if the new facts or issues meet the criteria set
forth in Rule 907(a) (new facts and issues); and
(iii) Request permission to conduct discovery, subject to criteria
provided in Rule 908(a) (discovery). Failure by the petitioner to
contest the record or to request permission to raise new facts or issues
or to conduct discovery in this answer constitutes a waiver of the
opportunity to do so at a later time in the proceeding.
(3) Within 15 days after filing of the Secretary's brief under
paragraph (a)(3) of this section, the petitioner shall file with the
Secretary of the Commission, for the presiding officer, and serve upon
other participants in the proceeding, a brief stating fully the
objections to the contested order, including references to the
authorities upon which the petitioner relies, including but not limited
to regulations, rulings, interpretations, and decisions on appeals and
exceptions issued by the Department or its predecessor agencies and
precedents established by the Commission.
(c) By interveners. (1) A person qualifying under paragraph (c)(2)
of this section, may request the presiding officer to permit
intervention in the proceeding under this subpart in accordance with the
procedures described in this paragraph.
(2) A motion to intervene may be filed by any person claiming:
(i) An interest which may be directly affected and which is not
adequately protected by existing parties and as to which the persons
requesting intervention may be bound by the Commissions action in the
proceeding; or
(ii) Any other interest of such nature that participation by the
person requesting intervention may be in the public interest.
(3) A motion to intervene must set forth clearly and concisely the
facts from which the nature of the requester's alleged right or interest
can be determined, the grounds of the proposed intervention, and the
position of the intervener in the proceeding, so as fully and completely
to advise the participants and the presiding officer as to the specific
issues of fact or law to be raised or controverted, by admitting,
denying, or otherwise answering, specifically and in detail, each
material allegation of fact or law raised or controverted, including
references to the authorities upon which the requester relies,
including, but not limited to, regulations, rulings, interpretations,
and decisions on appeals and exceptions issued by the Department or its
predecessor agencies and precedents established by the Commission.
(4) Motions to intervene may be filed with the Secretary of the
Commission, for the presiding officer, within 20 days after the
commencement of the proceeding under Rule 904 (commencement of
proceedings) unless, in extraordinary circumstances and for good cause
shown, the presiding officer authorizes a late filing. A person
requesting intervention must serve the motion to intervene on the
participants in the proceeding at the same time the request is filed
with the Secretary of the Commission.
(5) A participant in the proceedings may file an answer to a motion
to intervene. Failure to object constitutes a waiver of any objection
to the granting of such request. If made, answers must be filed within
15 days after the filing of the request to intervene.
(6) After expiration of the time for filing answers to requests to
intervene or default thereof, as provided in paragraph (c)(5) of this
section, the presiding officer will grant or deny such request, in whole
or in part, or may, if found to be appropriate, authorize limited
participation. The presiding officer will serve the determination on a
motion to intervene upon the participants in the proceeding and upon the
person requesting intervention. A person wholly or partially denied
intervention may take an interlocutory appeal of the order denying
intervention, under Rule 715 (interlocutory appeals to the Commission
from rulings of presiding officers), and will be considered a
''participant'' (as that term is defined in Rule 102(b) (definitions))
for the limited purpose of permitting that person to file an
interlocutory appeal under Rule 715 (interlocutory appeals to the
Commission from rulings of presiding officers) contesting denial, in
whole or in part, of that person's motion to intervene.
(7) A person filing a motion to intervene, may request therein the
permission of the presiding officer to raise new facts or issues not
raised in the prior proceedings on the contested order, if the new facts
or issues meet the criteria set forth in Rule 903(c) (request for
nondisclosure of information). Failure by the person requesting
permission to intervene to request permission to raise new facts or
issues in the motion to intervene constitutes a waiver of the
opportunity to do so at a later time in the proceeding.
(8) A person filing a motion to intervene may request the permission
of the presiding officer to conduct discovery, subject to the conditions
set forth in Rule 908(c) (discovery). Failure by the person requesting
permission to intervene to request permission to conduct discovery in
the motion to intervene constitutes a waiver of the opportunity to do so
at a later time in the proceeding.
(d) Attachments of pleadings. (1) Each party will file, as an
appendix to each pleading which cites documents in the record developed
in the prior proceedings on the remedial order, one copy of each such
document in its entirety and, if any such document contains information
exempt from public disclosure pursuant to Rule 903, a second copy of
such document with such information deleted. The top of the first page
of each such document will contain the word ''PUBLIC'' or ''NONPUBLIC,''
to indicate whether it contains such exempt information.
(2) One copy of each version shall be served on counsel for the
petitioner and/or the Secretary, and one copy of the PUBLIC version
shall be served on counsel for each other participant separately
represented unless the conditions of Rule 903 are met, in which
situation such counsel shall be served with copies of both versions.
(3) In compiling their appendices, the parties will include only
documents specifically cited and relied upon in their pleadings. They
will have regard for the fact that the Secretary's entire administrative
record is always available to the Commission and will not include
irrelevant or duplicative documents in the appendices.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 395, 49 FR
35357, Sept. 7, 1984; Order 416, 50 FR 15733, Apr. 22, 1985; Order
416-A, 50 FR 36054, Sept. 5, 1985)
18 CFR 385.907 New facts and issues (Rule 907).
(a) Raised by the petitioner. In the answer, as provided in Rule
906(b)(2)(ii) (new facts and issues) the petitioner may request
permission of the presiding officer to raise new facts or issues not
raised in prior proceedings on the contested order that:
(1)(i) Are facts or issues that were not known and could not, with
the exercise of due care, have been known to the petitioner at the time
they would otherwise have been raised during the prior proceedings;
(ii) Are facts or issues that the petitioner was unable to raise at
the time they could have been raised during the prior proceedings
because of unduly restrictive time limits imposed by the Secretary; or
(iii) Are facts or issues that the petitioner was not permitted to
raise in the prior proceedings due to erroneous adverse procedural
rulings; and
(2) Are necessary for a full and true disclosure of the facts.
(b) Raised by the Secretary. In the reply under Rule 906(a)(2)
(pleadings), the Secretary may request permission of the presiding
officer to raise new facts or issues not raised in prior proceedings on
the contested order that:
(1) Are necessary to support the Secretary's case as a result of new
facts or issues raised by the petitioner under Rule 906(b)(2)(ii)
(pleadings) and this section; and
(2) Are necessary for a full and true disclosure of the facts.
(c) Raised by interveners. In the motion to intervene under Rule
906(c)(3) (pleadings) and this section, an intervener may request
permission of the presiding officer to raise new facts or issues not
raised in prior proceedings on the contested order that:
(1) If the intervener did not participate in the prior proceeding,
meet the criteria of paragraphs (a)(1) and (a)(2) of this section; or
(2) If the intervener participated in the prior proceedings, are:
(i)(A) Facts or issues that were not known and could not, with the
exercise of due care, have been known to the intervener at the time they
would otherwise have been raised during the prior proceedings;
(B) Facts or issues that the intervener was unable to raise at the
time they could have been raised during the prior proceedings because of
unduly restrictive time limits imposed by the Secretary; or
(C) Facts or issues that the intervener was not permitted to raise in
the prior proceedings due to erroneous adverse procedural rulings; and
(ii) Are necessary for a full and true disclosure of the facts.
(d) Determination by the presiding officer. The presiding officer
will determine whether to grant or deny, in whole or in part, the
requests of the participants to raise new facts or issues and will serve
those determinations on the participants in the proceeding.
18 CFR 385.908 Discovery (Rule 908).
(a) By petitioner. In the answer under Rule 906(b)(2) (pleadings),
the petitioner may request permission of the presiding officer to
conduct discovery, where such discovery:
(1) Relates to new facts or issues raised in accordance with Rule
907(a) (new facts and issues); or
(2)(i) Was not permitted in the prior proceedings on the contested
order due to erroneous adverse procedural rulings; and
(ii) Is necessary for a full and true disclosure of the facts.
(b) By the Secretary. In the reply under Rule 906(a)(2) (pleadings),
the Secretary may request permission of the presiding officer to conduct
discovery where such discovery relates to new facts or issues raised in
accordance with Rule 907(b) (new facts and issues).
(c) By interveners. In a motion to intervene under Rule 906(c)(8)
(pleadings) an intervener may request permission of the presiding
officer to conduct discovery where such discovery:
(1) Relates to new facts or issues raised in accordance with Rule
907(c) (new facts and issues); or
(2) If the intervener participated in the prior proceedings,
(i) Such discovery was not permitted in prior proceedings on the
contested order due to erroneous adverse procedural rulings; and
(ii) Such discovery is necessary for a full and true disclosure of
the facts.
(d) Determinations by the presiding officer. The presiding officer
will determine whether to grant or deny, in whole or in part, the
requests of the participants for discovery and will set a time limit
within which discovery must be conducted.
(e) Interrogatories. In addition to discovery devices applicable to
this subpart under other subparts of this part, participants may conduct
discovery by means of written interrogatories under conditions
determined by the presiding officer.
18 CFR 385.909 Hearing (Rule 909).
(a) Participant may file, within 20 days after the commencement of
the proceeding under Rule 904 (Commencement of proceeding), a request
for a hearing or a motion for the opportunity for cross-examination
including the reasons why cross-examination is necessary for a full and
true disclosure of the facts.
(b) If a participant has filed a request for a hearing, the presiding
officer will grant the request for a hearing. The hearing will include
an opportunity for the submission of oral or documentary evidence and
oral arguments.
(c) The presiding officer may at any time, convene a hearing.
(d) As soon as practicable after receiving a request for hearing
under paragraph (a) of this section or after determination that a
hearing will be held under paragraph (c) of this section, the presiding
officer will give notice to the participants of the time and place of
the hearing.
(e) The presiding officer will determine the issues to be resolved in
the proceeding, may specify the time available for oral argument, and
will give notice thereof to the participants. The presiding officer may
require additional information from the participants, and may convene a
prehearing conference for the purpose of determining the issues or the
nature of the proceeding to be held.
(f) If at any time prior to the certification of the record by the
presiding officer under Rule 913 (Certification of the record), with or
without a motion of a participant, the presiding officer determines that
it is necessary for a full and true disclosure of the facts, the
presiding officer may order that the participants be afforded the
opportunity for cross-examination on any facts or issues raised in the
proceeding.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 416, 50 FR
15733, Apr. 22, 1985; Order 416-A, 50 FR 36054, Sept. 5, 1985 )
18 CFR 385.910 Conduct of the hearing (Rule 910).
The presiding officer is responsible for conduct of the hearing,
including the order of procedure.
18 CFR 385.911 Burden of proof (Rule 911).
(a) The Secretary has the burden of going forward and must sustain
the burden of proof with respect to disputed elements of affirmative
case of the Secretary.
(b) The Commission order will be based on a preponderance of the
evidence.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 416, 50 FR
15733, Apr. 22, 1985)
18 CFR 385.912 Proposed findings of fact, conclusions of law, and
comments (Rule 912).
(a) Within 10 days after the conclusion of the hearing, or, if no
hearing is held, within 20 days after the filing of the petitioner's
brief under Rule 906(b)(3) (pleadings), a participant may file with the
Secretary of the Commission for the presiding officer, and serve upon
the other participants proposed findings of fact and conclusions of law,
comments in support thereof and any objections with respect to
procedural rulings of the presiding officer.
(b) Within 10 days after the filing of proposed findings of fact and
conclusions of law under paragraph (a) of this section, a participant
may file, and must serve on other participants, a reply thereto.
18 CFR 385.913 Proposed order (Rule 913).
(a) After the conclusion of the hearing and after the filings under
Rule 912 (a) and (b), (proposed findings of fact, conclusions of law,
and comments) the presiding officer will issue a decision and proposed
order based on findings of fact affirming, modifying, or vacating the
contested order or directing other appropriate relief. The proposed
order will be based on the entire record before the presiding officer,
including the record of prior proceedings certified by the Secretary.
(b) Participants may file with the Secretary of the Commission,
within 15 days of issuance of the proposed order of the presiding
officer, written comments on the presiding officer's decision and
proposed order.
(c) Participants may file with the Secretary of the Commission,
within seven days of the end of comment period prescribed in paragraph
(b) of this section, reply comments limited to a response to any
arguments and issues raised in the written comment.
(d) The presiding officer will certify and file with the Secretary of
the Commission a copy of the record in the proceedings and copies of the
written and reply comments filed pursuant to paragraphs (b) and (c) of
this section. The presiding officer will also submit to the Commission
a revised proposed order.
(e) Unless otherwise ordered by the Chief Administrative Law Judge,
written comments and reply comments must be limited to 15 pages,
doublespaced.
(Order 495, 53 FR 16408, May 9, 1988)
18 CFR 385.914 Commission action (Rule 914).
The Commission will upon consideration of the entire record, issue a
final order affirming, modifying, or vacating the contested order or
directing other appropriate relief. The Commission will serve the final
order on the participants.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 416, 50 FR
15733, Apr. 22, 1985)
18 CFR 385.915 Ex parte communications (Rule 915).
The provisions of Rule 2201 (ex parte communications) apply to
proceedings pursuant to this subpart, commencing at the time the
Secretary issues a proposed remedial order under 10 CFR 205.192, an
interim remedial order for immediate compliance under 10 CFR 205.199D,
or a proposed order of disallowance under 10 CFR 205.199E, as if
proceedings were contested on-the-record proceedings pending before the
Commission.
18 CFR 385.916 Withdrawal of petition for review (Rule 916).
(a) At any time, including after a hearing has been held or convened,
the petitioner may submit to the presiding officer, and serve on other
participants in the proceeding, a withdrawal of the petition for review
of the contested order. The presiding officer will thereupon issue, and
serve the participants, an order terminating the proceeding conducted
pursuant to this subpart, which order will be effective 10 days after
issuance.
(b) Termination of the proceeding under paragraph (a) of this
section, may be appealed to the Commission, within 10 days after
issuance of the termination order, except that if the Commission does
not act on an appeal within 30 days, it is deemed denied. The
termination order is stayed pending the appeal. If the Commission
rescinds the termination order, the proceeding will continue in
accordance with this subpart.
18 CFR 385.917 Sanctions (Rule 917).
Whenever it appears to the Commission that a person is engaged or
about to engage in any act or practice which constitutes or will
constitute a violation of rule, regulation, or order, made or imposed by
the Commission or the presiding officer under this subpart, it may bring
an action in the proper court of the United Statas to enjoin that act or
practice and to enforce compliance with the order, and upon a proper
showing, a permanent or temporary injunction or decree or restraining
order will be granted without bond. The Commission may transmit such
evidence as may be available concerning that act or practice to the
Attorney General, who may institute the necessary criminal proceedings.
18 CFR 385.917 Subpart J -- Commission Review of Adjustment Request Denials
18 CFR 385.1001 Scope (Rule 1001).
(a) Applicability. This subpart applies to proceedings of the
Commission held in accordance with section 504(b) of the Department of
Energy Organization Act, 42 U.S.C. 719(b), to review orders issued by
the Secretary of Energy pursuant to section 504(a) of the Department of
Energy Organization Act denying, in whole or in part, requests for
adjustments.
(b) Relationship to other rules. When a provision of this subpart is
inconsistent with a provision of any other subpart of this part, the
former provision controls.
18 CFR 385.1002 Definitions (Rule 1002).
For purposes of this subpart:
(a) Commission includes an officer or employee designated as
presiding officer in a proceeding under this subpart.
(b) Petitioner means a person who is aggrieved or adversely affected
by a contested order, as defined in this section, and who requests a
review, pursuant to this subpart, by the Commission of the denial by the
Secretary.
(c) Secretary means the Secretary of Energy or his delegate.
(d) Contested order means the decision or order issued by the
Secretary denying, in whole or in part, a request for adjustment.
(e) Participant means, as appropriate, the petitioner, the Secretary,
or an intervener.
18 CFR 385.1003 Request for nondisclosure of information (Rule 1003).
(a) For purposes of this section, nondisclosure means nondisclosure
except to the participants in the proceedings and under the conditions
as provided in paragraph (e) of this section.
(b) If an person filing under this subpart claims that some or all of
the information contained in a document 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, the person:
(1) Will request the presiding officer not to disclose such
information, except to the participants in the proceedings and under the
conditions as provided in paragraph (e) of this section, which request
the person must serve upon the participants in the proceedings;
(2) Will file, together with the document, a second copy of the
document from which has been deleted the information for which the
person requests nondisclosure and must indicate in the original document
that the original document is confidential or contains confidential
information;
(3) If the information is claimed to come within the exception in 5
U.S.C. 552(b)(4), for trade secrets and commercial or financial
information, it must include a statement specifying why the information
is privileged or confidential;
(4) If the information for which nondisclosure is requested is not
within the exception in 5 U.S.C. 552(b)(4), it must include a statement
specifying the justification for nondisclosure.
(c) If the person filing a document does not submit a second copy of
the document from which the appropriate information has been deleted,
the presiding officer may assume that there is no objection to public
disclosure of the document in its entirety.
(d) If information is submitted in accordance with paragraph (b) of
this section, the information will not be disclosed except as provided
in the Freedom of Information Act, in accordance with Part 388 of this
subchapter and upon request in accordance with paragraph (e) of this
section, to participants in the proceeding under the restrictions that
the participants may not use or disclose the information except in the
context of the proceeding couducted pursuant to this subpart and that
the participants must return all copies of the information at the
conclusion of the proceeding to the person who submitted the information
under paragraph (b) of this section.
(e) At any time, a participant may request the presiding officer to
direct a person submitting information under paragraph (b) of this
section to provide that information to the participant requesting the
information under this paragraph. The presiding officer will so direct
if the participant requesting the information agrees:
(1) Not to use or disclose the information except in the context of
the proceeding conducted pursuant to this subpart; and
(2) To return all copies of the information, at the conclusion of the
proceeding, to the person submitting the information under paragraph (b)
of this section.
(f) At any time, a participant may request the presiding officer to
direct that the complete record of prior proceedings, including
information determined by the Secretary to be exempt from disclosure, be
made available to that participant. The presiding officer will so
direct if the participant requesting the complete record agrees:
(1) Not to use or disclose the information determined to be exempt
except in the context of the proceeding conducted pursuant to this
subpart, and
(2) To return all copies of the information determined to be exempt
to the presiding officer at the conclusion of the proceeding.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 422, 50 FR
21600, May 28, 1985)
18 CFR 385.1004 Commencement of proceedings (Rule 1004).
(a) A petitioner commences proceedings, pursuant to this subpart, by
filing with the Commission and serving upon the Secretary and any other
participants in prior proceedings on the contested order a petition for
review, which must contain:
(1) A copy of the decision or order denying, in whole or in part,
request for adjustment (the contested order); and
(2) A complete statement of the petitioner's objections factual or
legal to the contested order, including references to all authorities
upon which the petitioner relies including but not limited to
regulations, rulings, interpretations, and decisions on exceptions and
appeals issued by the Department or its predecessor agencies and
precedents established by the Commission.
(b) A petition for review must be filed within 30 days of issuance by
the Secretary of the order to be contested pursuant to this subpart.
(c) Each petition for review filed with the Secretary of the
Commission must be accompanied by the fee prescribed by 381.304 of this
chapter.
(d) Upon receiving a petition for review and the fee required by
paragraph (c), of this section, the Commission or its designee will
designate a presiding officer for the proceedings.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 395, 49 FR
35357, Sept. 7, 1984)
18 CFR 385.1005 Replies (Rule 1005).
(a) By the Secretary. Within 20 days of service of the petition for
review, the Secretary will file with the Commission and serve on the
petitioners and the other participants in prior proceedings on the
contested order, a reply to the petition for review stating fully his or
her position supported by arguments to the petition for review.
(b) By other participants. A person who participated in prior
proceedings on the contested order may be a participant in the
proceedings pursuant to this subpart and may make filings and submittals
as determined by the presiding officer.
(c) By interveners. A person who was denied the opportunity to
participate in prior proceedings on the contested order or who is
aggrieved or adversely affected by the contested order may move to
intervene in accordance with Rule 214 (intervention). In order that the
motion be granted, the movant must show, as appropriate, that denial of
participation in prior proceedings was wrongful or why he or she is
aggrieved or adversely affected by the contested order. If the
presiding officer grants the motion, the person submitting the motion to
intervene may make filings and submittals as determined by the presiding
officer.
(d) A participant may request interim relief in a proceeding pursuant
to this subpart.
(e) The presiding officer may require such other filings by the
participants as he or she deems necessary in the conduct of the
proceedings.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 422, 50 FR
21600, May 28, 1985)
18 CFR 385.1006 Request for hearing (Rule 1006).
A participant may file with the Commission and serve on the other
participants a request for hearing, which will be deemed granted. Such
request must be filed concurrently with participant's first pleading.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 422, 50 FR
21600, May 28, 1985)
18 CFR 385.1007 Presiding officer (Rule 1007).
(a) The presiding officer will determine the issues to be resolved in
the proceeding and will give notice thereof to the participants. The
presiding officer may require additional information from the
participants and convene a prehearing conference for the purpose of
determining the issues to be considered at a hearing, if one is to be
held. The presiding officer may also specify the time available for
oral argument and determine the nature of the hearing to be held.
(b) The presiding officer may determine, upon request by a
participant, whether to permit the participant to raise new facts or
issues not raised in prior proceedings on the contested order. Such a
request may be granted if the facts or issues are facts or issues that:
(1)(i) Were not known and could not, with the exercise of due care,
have been known to the participant at the time they could have been
raised in prior proceedings; or
(ii) Are facts or issues that the participant was not permitted to
raise in prior proceedings on the contested order due to an adverse
procedural ruling alleged to be erroneous; and
(2) Are necessary for a full and true disclosure of the facts.
(c) The petitioner must file a request to raise new facts or issues
simultaneously with its petition for review. The Secretary must file
such a request simultaneously with its reply to the petition for review.
A third party must make such a request by the filing deadline set by
the presiding officer.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 422, 50 FR
21600, May 28, 1985)
18 CFR 385.1008 Hearings (Rule 1008).
As soon as practicable, after receiving any request for hearing and
all the pleadings under Rules 1004 (commencement of proceedings) and
1005 (replies), the presiding officer will give notice to the
participants as to the time and place of the hearing.
18 CFR 385.1009 Proof (Rule 1009).
(a) A participant seeking relief from the Secretary's denial of a
request for adjustment has the burden of demonstrating the participant's
entitlement to the relief sought.
(b) Relief will be granted under this subpart if a participant
demonstrates, by a preponderance of the evidence, that such relief is
warranted.
18 CFR 385.1010 Certification of the record (Rule 1010).
The presiding officer will certify and file with the Office of the
Secretary of the Commission, for the Commission, a copy of the record in
the proceeding.
(Order 422, 50 FR 21600, May 28, 1985)
18 CFR 385.1011 Final order (Rule 1011).
The Commission will issue a final order, affirming, modifying or
vacating the contested order or directing other appropriate relief.
18 CFR 385.1012 Ex parte communications (Rule 1012).
The provisions of Rule 2201 (ex parte communications) apply to
proceedings pursuant to this subpart, commencing at the time a
petitioner files a petition for review under Rule 1004 (commencement of
proceedings), as if such proceedings were contested on-the-record
proceedings pending before the Commission.
18 CFR 385.1013 Attachments to pleadings (Rule 1013).
(a) Each party will file, as an appendix to each pleading which cites
documents in the record developed in the prior proceedings on the
adjustment request, one copy of each such document in its entirety and,
if such document contains information exempt from public disclosure
pursuant to rule 1003, a second copy of such document with such
information deleted. The top of the first page of each such document
will contain the word ''PUBLIC'' or ''NON-PUBLIC,'' to indicate whether
it contains exempt information.
(b) One copy of the PUBLIC and NON-PUBLIC versions must be served on
counsel for the petitioner and/or the Secretary, and one copy of the
PUBLIC version must be served on counsel for each other participant
separately represented unless the conditions of Rule 1003 are met, in
which situation such counsel must be served with copies of both
versions.
(c) In compiling appendices, the parties will include only documents
specifically cited and relied upon in their pleadings. In light of the
fact that the Commission always has access to the Secretary's entire
administrative record, the parties must not include irrelevant or
repetitive documents in the appendices.
(Order 422, 50 FR 21601, May 28, 1985)
18 CFR 385.1013 Subpart K -- Petitions for Adjustments Under the NGPA
18 CFR 385.1101 Applicability (Rule 1101).
(a) Proceedings to which applicable. Except as provided in paragraph
(b) of this section, this subpart applies to proceedings of the
Commission held in accordance with section 502(c) of the NGPA to provide
for adjustments of:
(1) Commission rules, and
(2) Commission orders having the applicability and effect of a rule
as defined in section 551(4) of title 5 of the United States Code (5
U.S.C. 551(4)) and issued under the NGPA, except orders issued under
sections 301, 302, and 303 of the NGPA.
(b) This subpart does not apply to:
(1) Proceedings wherein the Commission by order grants an adjustment
on its own motion or;
(2) Proceedings for which the Commission by order waives the
provision of this subpart.
(c) Relationship to other rules. (1) Where a provision of this
subpart is inconsistent with a provision in another subpart of this
part, the former provision controls.
(2) When provisions of other subparts of this part require Commission
action, such provisions as applied under this subpart shall be deemed to
require staff action. This subpart does not require a hearing to which
subpart E applies.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 478, 52 FR
28467, July 30, 1987)
18 CFR 385.1102 Definitions (Rule 1102).
For purposes of this subpart:
(a) Adjustment means an order issued by Staff under Rule 1109
(orders):
(1) Granting relief from an order or rule issued by the Commission
under the NGPA,
(i) Including exceptions, exemptions, modification, and recisions of
rules and orders have the effect of rule as defined in section 551 of
title 5 of the United States Code (5 U.S.C. 551(4)) and issued under the
NGPA; but
(ii) Excluding requests for just and reasonable rates under sections
104, 106, and 109 of the NGPA; and
(2) Granting an exemption, in whole or in part, for incrementally
priced industrial boiler fuel facilities from section 201 of the NGPA,
under the authority of section 206(d) of the NGPA and 282.206
(industrial boiler fuel facilities exemption);
(b) Petitioner means a person who files a petition for adjustment
under paragraph (c) of this section;
(c) Petition means a petition for adjustment filed under Rule 1103
(commencement of adjustment proceedings);
(d) NGPA means the Natural Gas Policy Act of 1978;
(e) Party means, with respect to a particular petition for
adjustment, the person making the petition, and intervener, or a person
who has moved to intervene but whose motion has not been granted or
denied under Rule 1105(b) (intervention in adjustment proceedings).
(f) Staff means the Director of the Office of Producer and Pipeline
Regulation, or a person who is designated by the Director and who is an
employee of the Commission.
18 CFR 385.1103 Commencement of proceeding (Rule 1103).
A person commences a proceeding for an adjustment by filing a
petition for adjustment with the Commission.
18 CFR 385.1104 Initial petition (Rule 1104).
(a) Content. (1) The petition must contain:
(i) A full and complete statement of the relevant facts, including
the documentary support pertaining to the circumstances, act or
transaction that is the subject of the petition;
(ii) A complete statement of the business reasons why the relief
should be granted and the business consequences that will result if the
relief is denied; and
(iii) A statement specifying how the denial of relief will cause the
applicant to suffer special hardship, inequity, or unfair distribution
of burdens.
(2) The petition must contain a complete statement of the legal basis
of the relief requested including citations to authorities relied upon
to support the petition.
(3) The petition must specify the exact nature of the relief sought.
(4) The certificate of service required under Rule 2010(h)
(certificate of service) must indicate the names and addresses of all
persons served.
(5) The petition must include a proposed notice of the adjustment
proceeding which must state the petitioner's name, the rule or order
under the NGPA of which an adjustment is sought, the date of the
petition, and a brief summary of the relief requested. The proposed
notice must be in the following form:
(Name of Petitioner)
Docket No.
On (date petition was filed), (name of petitioner) filed with the
Federal Energy Regulatory Commission a petition for an adjustment under
the rule or order under the NGPA of which an adjustment is sought,
wherein (name of petitioner) sought (relief requested).
The procedures applicable to the conduct of this adjustment
proceeding are found in Subpart K of the Commission's Rules of Practice
and Procedure.
Any person desiring to participate in this adjustment proceeding must
file a motion to intervene in accordance with the provisions of such
subpart K. All motions to intervene must be filed within 15 days after
publication of this notice in the Federal Register.
(6) The petition must be accompanied by the fee prescribed in
381.401 of this chapter or by a petition for waiver pursuant to 381.106
of this chapter.
(b) Service. (1) The petitioner must serve a copy of the petition,
or a copy from which confidential information has been deleted in
accordance with Rule 1112 (requests for confidential treatment) on each
person who is reasonably ascertainable by the petitioner as a person who
may suffer direct and measurable economic impact if the relief is
granted.
(2) Notwithstanding paragraph (b)(1) of this section, if a petitioner
determines that compliance with such paragraph of this section would be
impracticable, the petitioner must:
(i) Comply with the requirements of such paragraph with regard to
those persons whom it is reasonable and practicable to serve; and
(ii) Include with the petition a description of the persons or class
or classes of persons to whom notice was not sent.
(3) Staff may require the petitioner to provide alternate or
additional service and will cause notice of the application to be
published in the Federal Register.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 394, 49 FR
35365, Sept. 7, 1984)
18 CFR 385.1105 Intervention (Rule 1105).
(a) A motion to intervene in an adjustment proceeding, in conformity
with Rule 214 (intervention) must be filed within 15 days after
publication in the Federal Register of notice of the petition for
adjustment.
(b) A motion to intervene is granted unless it is denied by staff
within 75 days after the day on which it was filed.
18 CFR 385.1106 Other filings (Rule 1106).
(a) Interveners. Responses to the petition must be filed at the time
the motion to intervene is filed.
(b) Petitioner. The petitioner may respond to filings of another
party within 15 days after service of such filings. Amended pleadings
may be filed under Rule 215 (amendments) if the petitioner discovers
facts unavailable at the time the initial petition was filed, or if such
pleadings are requested or permitted by Staff under Rule 1107
(evaluations).
18 CFR 385.1107 Evaluations (Rule 1107).
(a) Staff will consider the filings made in connection with the
petition for adjustment. Staff may also consider information received
under paragraph (b) of this section. If Staff obtains information under
paragraphs (b)(1) or (b)(3) of this section and relies upon such
information, the petitioner will be advised of such information and will
be given 15 days to respond to such information.
(b)(1) Staff may initiate an investigation of any statement in a
petition and use in its evaluation any relevant fact obtained in such an
investigation.
(2) Staff may request additional information from the petitioner.
(3) Staff may solicit and accept submissions from interveners or
third persons relevant to the petition.
(4) Staff may consider information obtained in informal conferences
held under Rule 1111 (adjustment conferences).
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 24-C, 50 FR
21596, May 28, 1985)
18 CFR 385.1108 Criteria (Rule 1108).
(a) Staff will grant a petition where there are sufficient facts to
make a determination on the merits and where Staff determines that an
adjustment is necessary to prevent or alleviate:
(1) Special hardship;
(2) Inequity; or
(3) An unfair distribution of burdens.
(b) When there are not sufficient facts to make a determination on
the merits, the Staff may dismiss the petition without prejudice;
except, that when Staff has requested additional material information
under Rule 1107 (adjustment evaluations) of this section and the
petitioner has failed to provide the requested information, Staff may
deny the petition if the requested information was reasonably available
to the petitioner.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 24-C, 50 FR
21596, May 28, 1985)
18 CFR 385.1109 Orders (Rule 1109).
(a) Staff will issue a decision and an order granting or denying the
petition in whole or in part. The order will articulate the basis for
the decision, noting any dispute with the factual assertions of the
petitioner.
(b) In addition to service otherwise required under this subpart,
Staff will serve the decision and order on the persons who sought and
were denied an opportunity to participate in the proceeding under this
subpart.
(c) If Staff fails to issue an order granting or denying the petition
for adjustment within the determination period, the petitioner may treat
the application as having been denied and may, within 30 days after the
close of the determination period, request review thereof as prescribed
in Rule 1110(a) (review of denials). For purposes of this paragraph,
''determination period'' means the 150 days commencing with the filing
of the petition, unless Staff for good cause extends such period.
(d) An order of Staff issued under paragraph (a) of this section
granting an adjustment, in whole or in part, is final 30 days after it
is issued, unless, during such 30-day period:
(1) A petition for review is filed under Subpart J of this subchapter
in accordance with Rule 1110(a) (review of denials) in which case the
order is final when the review process under Subpart J has been
completed; or
(2) The Commission directs that the order be reviewed under subpart J
in accordance with Rule 1110(b), in which case the order is final when
the review process under subpart J has been completed unless the
Commission expressly states that the order shall be effective pending
review proceeding.
18 CFR 385.1110 Review of initial decision and order for adjustment
(Rule 1110).
(a) General rule. (1) Within 30 days after the issuance by Staff of
an order granting or denying, in whole or in part, a petition for
adjustment relief under this subpart, a person may file a petition for
Commission review of that order in accordance with Subpart J of this
subchapter, if the person:
(i) Is aggrieved or adversely affected by that order; and
(ii) Participated, or sought and was denied an opportunity to
participate, in the proceeding under this subpart.
(2) Except as otherwise provided in this paragraph, the provisions of
subpart J other than Rule 1013 (attachments to pleadings) shall apply to
Commission review of both grants and denials of adjustment petitions
under this subpart.
(i) Contested order in subpart J means the order issued by Staff
granting or denying, in whole or in part, a petition for adjustment
under this subpart.
(ii) ''Staff'' is substituted for ''Secretary'' in subpart J. With
respect to review of an order denying a petition for adjustment under
this subpart, Staff may participate in the proceeding in the same manner
prescribed for the Secretary in Rule 1005 (replies in reviews of
adjustment denials). With respect to review of an order granting a
petition for adjustment under this subpart, Staff may not participate in
the proceeding except to the extent necessary to file the list
identifying the documents in the record as prescribed in paragraph
(a)(2)(iii). With respect to review of an order granting in part and
denying in part a petition for adjustment under this subpart, Staff may
participate as prescribed in Rule 1005(a)(1) (replies), only if a
petition for review has been filed which specifically seeks review of
the portion of the order denying the petition for adjustment.
(iii) Within 15 days of service of the petition for review, Staff
must file with the Commission a list identifying each document in the
record developed in the prior proceedings on the contested order, who
filed the document, and the date it was filed.
(3) A motion to intervene under Rule 1005(c) (interventions in
adjustment proceedings) may be filed only by a person who sought and was
denied an opportunity to participate, in the proceeding under this
section. A person who did not file a motion to intervene in the Staff
proceeding may file a motion for late intervention under Rule 214(d)
(grant of late intervention).
(4) There is no exhaustion of administrative remedies until a request
for review is filed under Subpart J in accordance with this section and
the review process under subpart J is completed by the issuance of an
order granting or denying, in whole or in part, the relief requested.
(b) Review initiated by the Commission. Within 30 days after the
issuance by Staff of an order granting, in whole or in part, a petition
for adjustment relief under this subpart, the Commission may direct that
the order be reviewed in a proceeding which, insofor as practicable,
will conform to proceedings under subpart J. The order directing such
review will specify the manner in which such proceeding will be
conducted and the extent to which subpart J apply.
(c) Separation of functions. Any person who participated in the
proceeding to review the grant or denial of that adjustment under this
Rule as a witness or counsel may not advise the Commission concerning
the review of the grant or denial of that adjustment.
(Order 225, 47 FR 19022, May 3, 1982; 48 FR 786, Jan. 7, 1983, as
amended by Order 24-C, 50 FR 21596, May 28, 1985)
18 CFR 385.1111 Conferences (Rule 1111).
Staff may direct that a conference be convened. The conference will
be conducted by Staff in accordance with procedures Staff determines
will most expeditiously further the purpose of the conference. A
conference will be convened only after actual notice of the time, place
and nature of the conference is provided to the parties. All parties
may attend the conference. However, if a party wishes to present
confidential information at the conference, Staff may exclude the other
parties from that part of the conference when the confidential
information is presented.
18 CFR 385.1112 Requests for confidential treatment (Rule 1112).
(a) If a person filing a document under this subpart claims that some
or all of the information contained in a document is exempt from the
mandatory disclosure requirements of the Freedom of Information Act, or
is otherwise exempt by law from public disclosure, that person may
request confidential treatment of such information. At the time request
is made for confidential treatment, the person must submit a copy of the
document which contains the confidential information and two copies of
the document which exclude the information for which confidential
treatment is requested. The request for confidential treatment must
describe the information deleted and specify the grounds for the claim
for confidential treatment. The service requirements of Rule 2010
(service) are deemed satisfied if a copy of the document with the
confidential information deleted is served.
(b) If a determination to disclose the information is made under part
388 (public information and requests), the person who has requested
confidential treatment will be given notice thereof and will be afforded
no less than 10 days to respond to such determination before the
information is disclosed.
18 CFR 385.1113 Interim relief (Rule 1113).
(a) The petitioner may at any time file a request for interim relief
in a proceeding under this subpart, setting forth the legal and factual
basis for the request. Service of such request must comply with the
service requirements set forth in Rule 1104(b) (initial petition of
adjustment request) and must be made on each person described in such
rule as well as on any other party to the proceeding.
(b) The grounds for granting interim relief are:
(1)(i) A showing that irreparable injury will result in the event the
interim relief is denied; and
(ii) A showing that denial of the interim relief requested will
result in a more immediate special hardship or inequity to the person
requesting the interim relief than the consequences that would result to
other persons if the interim relief were granted; or
(2) A showing that it will be in the public interest to grant the
interim relief.
(c) A party may within 10 days after the filing of the request for
interim relief file a reply to the request for interim relief.
(d) Staff may request a written statement of the views of a party
regarding whether the interim relief should be granted and may convene
an expedited conference on the request for interim relief.
(e) If Staff has not granted the request for interim relief within 30
days after it is filed, the request is denied.
(f)(1) Subject to paragraph (f)(2) of this section, Staff will issue
an order granting or denying the request for interim relief and will
notify the parties. Any grant of interim relief is subject to further
modification in the order issued under Rule 1109 (orders).
(2) The Commission may, on its own motion, at any time revoke,
modify, rescind, stay or take any other appropriate action concerning
the order granting interim relief.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 24-C, 50 FR
21596, May 28, 1985)
18 CFR 385.1114 Motions (Rule 1114).
A party may file a motion at any time. Motions must set forth the
ruling or relief requested and must state the grounds therefor and the
statutory or other authority relied upon. Staff will rule on all
motions.
18 CFR 385.1115 Procedural rulings (Rule 1115).
Staff may make any procedural rule or provide any procedural relief.
18 CFR 385.1116 Appeals (Rule 1116).
All actions under this subpart are taken by Staff, except with
respect to requests for public information under part 388. Except as
provided in Rule 1110 (review of initial adjustment decision) of this
section, there are no appeals to the Commission from Staff action taken
under this section.
18 CFR 385.1117 Petition for adjustment treated as request for
interpretation (Rule 1117).
(a) Staff may, if appropriate, treat a petition filed under Rule 1103
(petition for adjustment) as a request for an interpretation under
section 502(c) of the NGPA, or rule or order issued under that Act.
(b) If the Staff exercises its discretion under paragraph (a) of this
section to treat a petition for adjustment as a request for an
interpretation, then:
(1) Staff will notify the parties to the proceeding that the petition
is being treated as a request for an interpretation under Rule 1901;
and
(2) The time limits in this section are stayed pending issuance of
the interpretation.
(c) After the interpretation is issued, if the petitioner wishes to
reinstate the adjustment proceeding, the petitioner may do so by
notifying the Commission in writing that the petition should be
reinstated.
18 CFR 385.1117 Subpart L -- (Reserved)
18 CFR 385.1117 Subpart M -- Cooperative Procedure with State Commissions
18 CFR 385.1301 Policy (Rule 1301).
(a) The Federal Power and Natural Gas Acts, sections 209 and 17,
respectively, authorize cooperation between the Federal Energy
Regulatory Commission and the State commissions of the several States in
the administration of said Acts, which include authorization for:
(1) Reference of any matter arising in the administration of these
Acts to a board to be composed of a member or members from a State or
States affected, or to be affected, by the particular matters pending
before the Commission;
(2) Conferences with State commissions regarding the relationship
between rate structures, costs, accounts, charges, practices,
classifications, and regulations of public utilities or natural gas
companies subject to the jurisdiction of such State commissions and of
the Commission; and
(3) Joint hearings with State commissions in connection with any
matter with respect to which the Commission is authorized to act.
(b) The matters that should be the subject of a conference referred
to a board, or heard at a joint hearing of State commissions and the
Commission, obviously, cannot be determined in advance. It is
understood, therefore, that the Commission or any State commission will
freely suggest cooperation with respect to any proceeding or matter
affecting any public utility or natural gas company subject to the
jurisdiction of the Commission and of a State commission, and concerning
which it is believed that cooperation will be in the public interest.
18 CFR 385.1302 Notice (Rule 1302).
(a) By Commission. (1) Whenever there is instituted before the
Commission any proceeding under either the Federal Power Act or the
Natural Gas Act, the State commission or commissions of the State or
States affected thereby will be given notice thereof immediately by the
Commission. As deemed necessary for an understanding of the subject
matter, each such notice will be supplemented by copies of applications,
complaints, petitions, or orders instituting proceedings. Each such
notice given to a State commission will request that the Commission be
notified within a reasonable time whether the proceeding is deemed one
that should be considered under the cooperative provisions of this
subpart, and, if so, to advise the Commission as to the nature of its
interest in the matter, and further, to specify whether it desires a
conference, the creation of a board, or a joint or concurrent hearing,
as defined in this subpart and the reasons for such request.
(2) Any commission suggesting some form of such cooperative procedure
should also state whether there is pending, or will be pending before
it, a proceeding in which a concurrent hearing might appropriately be
held and whether its proposal is for such hearing covering such
proceeding and the proceeding pending before the Commission.
(3) A State commission recommending to the Commission reference of a
proceeding to a board, under either the Federal Power Act or the Natural
Gas Act, should state with fullness the reasons which led it to believe
that such reference is desirable and in the public interest.
(4) Upon the receipt from a State commission of a communication
suggesting cooperation, the Commission will consider the same, and may
confer with the commission making the request and with other interested
commissions, if any, in such manner as may be most suitable, and, if
cooperation in the manner proposed, or in any other manner, appears to
be practicable and desirable, will so advise each interested State
commission, and will invite it to participate therein.
(b) By State commission. (1) Each State commission should, in like
manner, notify the Commission of any proceeding instituted before it the
subject matter of which is also subject to the jurisdiction of the
Commission, or in which it believes the Commission is interested. Such
notice should be supplemented by copies of applications, petitions,
complaints, or orders instituting proceedings which may be necessary to
an understanding of the subject matter. Such notice should include the
suggestions which the State commission may wish to make concerning
cooperative procedure.
(2) Upon receipt of such notice, the Commission will consider the
same and will promptly notify the State commission whether or not in its
opinion cooperation in the manner proposed, or in any other manner,
appears to be practicable and desirable. The Commission is free to
propose cooperative procedures whether or not such proposal of
cooperation has been made by the State commission first giving notice of
the proceeding.
(c) Commission or State commissions to invite participation in
cooperative procedure. In the event that cooperation in a particular
proceeding has been determined upon, the Commission or a State
commission before which the proceeding is pending will so advise each
interested State commission and will invite it to take part therein.
18 CFR 385.1303 Conferences (Rule 1303).
Inasmuch as experience has proved that informal conferences are the
means most often used to enable commissions to work together to promote
good regulation, affording means whereby common understandings may be
reached, and the imposition of inconsistent or conflicting regulations
upon companies subject to both Federal and State control may be avoided
and means whereby State commissions may secure the assistance in State
regulatory work which sections 209 and 17, respectively, of the Federal
Power and Natural Gas Acts authorize the Commission to extend, any
commission, Federal or State, should always feel free to suggest a
conference to another commisison, concerning any matter of regulation
subject to the jurisdiction of either, with respect to which it is
believed that a cooperative conference may be in the public interest.
The commission desiring a conference upon any such matter should notify
other interested commissions without delay, and thereupon the Commission
or a State commission, as may be agreed, will promptly arrange for a
conference in which all interested commissions will be invited to be
represented.
18 CFR 385.1304 Procedure governing matters referred to a board (Rule
1304).
(a) It is believed that the statutory provisions of sections 209 and
17, respectively, of the Federal Power and Natural Gas Acts, for the
reference of a proceeding to a board constituted as therein provided,
were designed for use in unusual cases, and as a means of relief to the
Commission when it might find itself unable to hear and determine cases
before it, in the usual course, without undue delay.
(b) Whenever the Commission, either upon its own motion or upon the
suggestion of a State commission or at the request of any interested
party, determines that it is desirable to refer a matter arising in the
administration either of the Natural Gas Act or Part II of the Federal
Power Act, to a board to be composed of a member or members from the
State or States affected or to be affected by such matter, the procedure
will be as follows: The Commission will send a request to each
interested State commission to nominate a specified number of members to
serve on such board. Whenever more than one State is involved, the
representation of each State concerned shall be equal, unless one or
more of the States affected chooses to waive such right of equal
representation. The Commission will specify the functions to be
performed by such board in each instance. When the member or members of
any board have been nominated and appointed in accordance with the
provisions of either section 209 of the Federal Power Act or section 17
of the Natural Gas Act, the Commission will issue an order referring the
particular matter to such board, and such order will fix the time and
place of hearing, define the ''force and effect'' which an action of the
board will have, the manner in which the proceedings will be conducted,
and specify the allowances to be made for the expense of the members of
the board. As far as applicable, the rules of practice and procedure as
from time to time adopted or prescribed by the Commission will govern
such board. The board will have authority to adjourn the hearing from
day to day, subpoena witnesses, rule on the relevancy, competency, and
materiality of evidence, and will, after hearing all interested parties,
submit its report to the Commission.
18 CFR 385.1305 Joint and concurrent hearings (Rule 1305).
(a) The term ''joint hearing'' used in sections 209 and 17,
respectively, of the Federal Power and Natural Gas Acts is understood to
cover any hearing in which members of the Commission and members of one
or more State commissions may sit together in a proceeding pending
before one such commission, whether or not a proceeding or proceedings
involving similar or corresponding issues be pending before any other
commission.
(b) Two different types of proceedings have been called ''joint
hearings''. One is that type of proceeding where members of one or more
State commissions sit with members of the Commission for information or
in an advisory capacity. The State commissioners in such case do not
develop a record for their respective commissions and may not, at their
own discretion, make a recommendation to the Commission. The other type
of joint hearing is often referred to as a ''concurrent hearing''.
Under this procedure the Commission and one or more State commissions
sit together to hear and jointly make a record upon a matter over which
all of the participating commissions have jurisdiction and
responsibility for action.
(c) The Commission or any State commission or commissions should feel
free to suggest or request a joint or concurrent hearing at any time.
It is believed that the concurrent hearing is the type of cooperative
hearing which is likely to be most useful and effective.
(d) Whenever a concurrent hearing has been agreed upon by the
Commission and one or more State commissions, the procedure will be:
(1) Each commission will designate the representative or
representatives of such commission to sit at such concurrent hearing,
and will designate the representative who will be the presiding officer
for such commission.
(2) It will be understood that participation in such concurrent
hearing will in no way affect the complete control by each commission of
the proceeding before it. It will be understood, also, that
participation in either a joint or concurrent hearing will in no way
preclude any commission from causing to be presented in any such case
pertinent evidence with respect to matters in issue.
(3) The representative designated by the Commission will be the
presiding officer to announce rulings with respect to which there is no
disagreement; and such rulings will be considered concurrent rulings.
However, the presiding officer for any commission which does not concur
in any ruling may announce a divergent ruling and such divergent ruling,
whether with respect to the admissibility of evidence or any other
matter, will be considered the ruling for his or her commission.
(4) The record of the concurrent hearing will be the record of each
commission participating, except that, if divergent rulings are made,
the rulings will be reported so as to separate and distinguish clearly
the record of the respective participating commissions and the evidence
admitted in each record, in accordance with the rulings of the
respective commissions. If, in any proceeding, the ruling of one
presiding officer has the effect of admitting any voluminous exhibit or
testimony which is excluded by the ruling of another presiding officer,
the taking of such evidence, whenever possible, will be deferred until
after the completion of the proceedings which can be conducted under
concurrent rulings. When such testimony is taken, the transcript of
such evidence will be made available to the participating commissions,
if desired.
(5) In all respects concerning which there is no divergence of
ruling, the hearing will be conducted in accordance with the rules of
practice and procedure prescribed by the Commission, subject to the
express understanding that each participating State commission will
control its own record and make its own rulings as to the admissibility
of evidence and as to other matters affecting its proceedings, and will
make its own separate final decision or order therein.
(e) Before either the Commission or a participating State commission
will enter any order or orders in a concurrent proceeding, opportunity
will be afforded for conference between the Commission and the State
commissions participating.
(f) Whenever a joint hearing other than a concurrent hearing is
agreed upon, the commissioners which take part therein will agree upon
the procedure to be followed in such hearing in advance of the opening
of the same. With respect to any concurrent hearing, a special
agreement may be made by the commissions taking part therein for a
procedure or action differing from that outlined in this plan.
(g) Cooperation between two or more commissions in a concurrent
hearing will preclude either from taking the position of an advocate or
a litigant. If a commission wishes to take such a position, it will not
be a cooperating participant in that proceeding. In such situatin the
appropriate method of procedure will be intervention under Rule 214.
18 CFR 385.1306 Intervention by State commissions (Rule 1306).
Any interested State commission may intervene in any proceeding
before the Federal Energy Regulatory Commission, as provided in Rule
214.
18 CFR 385.1306 Subpart N -- Oil Pipeline Proceedings
Authority: Administrative Procedure Act, 5 U.S.C. 551-557;
Department of Energy Organization Act, 42 U.S.C. 7101-7352, E.O.
12,009, 3 CFR 142 (1978); Interstate Commerce Act, 49 U.S.C. 1, et seq.
Source: Sections 385.1404 through 385.1415 issued under Order 276,
at 49 FR 21705, May 23, 1984, unless otherwise noted.
18 CFR 385.1401 Applicability (Rule 1401).
(a) This subpart applies to oil pipeline proceedings.
(b) If any provision of this subpart is inconsistent with any
provision of another subpart of this part, the provision of this subpart
governs and the provision of the other subpart is inapplicable to the
extent of the inconsistency.
(Order 312, 48 FR 29479, June 27, 1983)
18 CFR 385.1402 Subscriber lists (Rule 1402).
(a) Not later than December 31 of each year, an oil pipeline must
request, in writing, each of its subscribers and each person who has
been served under any of its tariffs during the preceding twelve months
to notify the pipeline as to whether the subscriber or person wishes to
be included on the subscriber list for any of the oil pipeline's
integrated pipeline systems.
(b) The oil pipeline must immediately add to the specified subscriber
list any subscriber or person which responds in writing within 30 days
of receipt of the oil pipeline request and which indicates in that
response that it wishes to be included on the specified list.
(Order 312, 48 FR 29479, June 27, 1983)
18 CFR 385.1403 Dates for filing protests and interventions (Rule
1403).
A protest or intervention to an oil pipeline tariff filing must be
filed with the Commission:
(a) 12 days before the proposed effective date of the tariff filing,
if the tariff filing requires a 30-day notice, or
(b) 5 days before the proposed effective date of the tariff filing,
if the tariff filing requires a 10-day notice.
(Order 312, 48 FR 29479, June 27, 1983)
18 CFR 385.1404 Petitions seeking institution of rulemaking proceedings
(Rule 1404).
Any person may file a petition requesting the Commission to institute
a proceeding for the purpose of issuing statements, rules, or
regulations of general applicability and significance designed to
implement or interpret law, or to formulate general policy for future
effect. No reply to such a petition may be filed. Whether a proceeding
shall be instituted as requested is within the discretion of the
Commission and the ruling on the petition will be final. In the event a
rulemaking proceeding is instituted by the Commission, the procedure to
be employed for the taking of evidence or the receipt of views and
comments will be designated by Commission order.
18 CFR 385.1405 Modified procedure, how initiated (Rule 1405).
The Commission may, in its discretion, order that a proceeding be
heard under modified procedure if it appears that substantially all
important issues of material fact may be resolved by means of written
materials and that the efficient dispositon of the proceeding can be
made without oral hearing.
(a) Commission's initiative or by request. Modified procedure will
be ordered in a proceeding upon the Commission's initiative or upon its
approval of a request filed by any party that the modified procedure
shall be observed.
(b) Order directing modified procedure. An order directing modified
procedure will list the names and addresses of the persons who at that
time are parties to the proceeding, and direct that they comply with the
modified procedure rules. As used in Rules 1409, 1411, and 1413 the
term ''complainant'' shall comprehend the party having the initial duty
to establish the truth of the claim or to justify the relief or
authorization sought, and the term ''defendant'' shall comprehend the
party controverting the truth of the claim or opposing the relief or
authorization sought.
18 CFR 385.1406 Modified procedure; effect of order (Rule 1406).
(a) Relief from answer rule. Issuance of an order directing modified
procedure shall relieve defendant from the obligation of answering as
provided in Rule 213.
(b) Default where failure to comply. If within any time period
provided in the modified procedure rules a party fails to file a
pleading required by those rules, or otherwise fails to comply
therewith, such party shall be deemed to be in default and to have
waived any further hearing. Thereafter the proceeding may be disposed
of without further notice to the defaulting party, and without other
formal proceedings as to such party.
18 CFR 385.1407 Modified procedure; intervention (Rule 1407).
Persons permitted to intervene under modified procedure shall file
and serve pleadings in conformity with the provisions of Rule 1409
below.
18 CFR 385.1408 Modified procedure; joint pleadings (Rule 1408).
Parties having common interests, to the extent practicable, shall
arrange for joint preparation of pleadings filed under modified
procedure.
18 CFR 385.1409 Modified procedure; content of pleadings (Rule 1409).
(a) Generally. A statement filed under the modified procedure after
that procedure has been directed shall state separately the facts and
arguments and include the exhibits upon which the party relies. Only
facts contained in the verified statement of facts can be used in
argument. If, pursuant to Rule 1406(a), no answer has been filed,
defendant's statement must admit or deny specifically and in detail each
material allegation of the complaint. In addition, defendant's
statement and complainant's statement in reply shall specify those
statement of facts and arguments of the opposite party to which
exception is taken, and include a statement of the facts and arguments
in support of such exception. Complainant's statement of reply shall be
confined to rebuttal of the defendant's statement.
(b) Exhibit identification. An exhibit which is part of any pleading
filed under modified procedure shall serially be numbered and bear the
notation, properly filled out, in the upper right hand corner:
''Complainant (Defendant) Exhibit
No.
Witness
(c) Damages. If an award of damages is sought, the paid freight
bills or properly certified copies thereof should accompany the original
of complainant's statement when there are not more than 10 shipments,
but otherwise the documents should be retained.
18 CFR 385.1410 Modified procedure; verification (Rule 1410).
The facts asserted in any pleading filed under modified procedure
must be sworn to by persons having knowledge thereof, which latter fact
must affirmatively appear in the affidavit. Except under unusual
circumstances, such persons should be those who would appear as
witnesses orally to substantiate the facts asserted should hearing
become necessary. The original of any pleading filed under modified
procedure must show the signature, capacity, and impression seal, if
any, of the person administering the oath, and the date thereof.
18 CFR 385.1411 Modified procedure; when pleadings filed and served
(Rule 1411).
Within 20 days from the date of service of an order requiring
modified procedure, complainant shall serve upon the other parties a
statement of all the evidence upon which it relies. Within 30 days
thereafter defendant shall serve its statement. Within 20 days
thereafter complainant shall serve its statement in reply. No further
reply may be made by any party except by permission of the Commission.
18 CFR 385.1412 Modified procedure; copies of pleadings (Rule 1412).
The original and six copies of any statement made pursuant to Rule
1411 shall be filed with the Commission. Subsequent pleadings are
subject to Rule 1414.
18 CFR 385.1413 Modified procedure; hearings (Rule 1413).
(a) Request for cross examination or other hearing. If cross
examination of any witness is desired, the name of the witness and the
subject matter of the desired cross examination shall, together with any
other request for oral hearing, including the basis therefor, be stated
at the end of defendant's statement or complainant's statement in reply
as the case may be. Unless material facts are in dispute, oral hearing
will not be held for the sole purpose of cross examination.
(b) Hearing issues limited. The order setting the proceeding for
oral hearing, if hearing is deemed necessary, will specify the matters
upon which the parties are not in agreement and respecting which oral
evidence is to be introduced.
18 CFR 385.1414 Modified procedure; subsequent procedure (Rule 1414).
Procedure subsequent to that provided in the modified procedure rules
shall be the same as that in proceedings not handled under modified
procedure.
18 CFR 385.1415 Rule applicable to ex parte communications during oil
pipeline proceedings (Rule 1415).
(a) Ex parte communications. (1) No person who is a party to, or
counsel or agent of a party, or who intercedes in, any on-the-record
proceeding, shall submit any ex parte communication concerning the
merits of the proceeding to any member of the Commission, hearing
officer, or employee of the Commission participating or who may
reasonably be expected to participate in the decision in such
proceeding.
(2) No member of the Commission, hearing officer, or employee of the
Commission participating or who may reasonably be expected to
participate in the decision in such proceeding shall invite or knowingly
entertain any prohibited ex parte communication, or make any such
communication to any party to, or counsel or agent of a party, or any
other person who he has reason to know may transmit such communication
to a party or party's agent.
(b) The prohibitions of paragraph 1 apply from the time an
on-the-record proceeding is noticed for oral hearing or the taking of
evidence by modified procedure, at such time as the person responsible
for the communication has knowledge that the proceeding will be so
noticed, or from such earlier time as the Commission may fix by rule or
order in the particular case.
(c) For the purposes hereof:
(1) On-the-record proceeding means a proceeding described in sections
556-557 of the Administrative Procedure Act (5 U.S.C. 556-557) or a
proceeding required by the Constitution, by statute, by Commission rule,
or by order in the particular case, to be decided solely upon the record
made in a Commission hearing.
(2) Person who intercedes in any proceeding means any individual
outside the Commission (whether public or private life), partnership,
corporation, or association, other than a party or an agent of a party,
who volunteers a communication which he may be expected to know may
advance or adversely affect the interest of a particular party or any
party's agent.
(3) Ex parte communication concering the merits includes both oral
and written communications, but the following classes of ex parte
communication shall not be prohibited:
(i) Any oral or written communication which all the parties to the
proceeding agree, or which the Commission or the hearing officer
formally rules, may be made on an ex parte basis.
(ii) Any oral or written communication of facts or contentions with
general significance for an industry subject to regulation if the
communicator cannot reasonably be expected to know that the facts or
contentions are material to a substantive issue in a pending
on-the-record proceeding in which he is interested.
(iii) Any communication by means of any news medium which in the
ordinary course of business of the publisher is intended to inform the
general public, members of the organization involved, or subscribers to
such publications with respect to pending on-the-record proceedings.
(iv) Any employee of the Commission participating in the decision
includes members of the Oil Pipeline Board, Commissioners and their
personal assistants, and any staff acting as a participant, as defined
in Rule 385.102(b) in oil pipeline proceedings.
(d) Any member of the Commission, hearing officer, or employee of the
Commission, participating or who reasonably may be expected to
participate in the decision, who personally receives a written
communication which he believes is prohibited at the time received,
shall promptly transmit the written communication, or a written summary
of the substance of an oral communication, together with a written
statement of the circumstances under which the communication was made,
if not apparent from the communication itself, to the Secretary of the
Commission, who shall place any material so received in the
correspondence section of the public docket of the proceeding. Any such
person who receives a communication and who is not certain whether such
communication is a prohibited ex parte communication may request, and
shall be given promptly, a ruling on the question from the Commission's
General Counsel. The Chairman of the Commission shall be notified
promptly of all reports of ex parte communications, or requests for
rulings on possible ex parte communications, transmitted to the
Secretary or the General Counsel. He may require that any such
communication be placed in the correspondence section of the docket if
he concludes that the dictates of fairness require that it be made
public, even if it is not prohibited communication, and he may direct
the taking of such other or further action as may be appropriate under
all circumstances.
(e) The Commission may censure, or suspend or revoke the privilege to
practice before the agency, of any person who knowingly and willfully
makes or solicits the making of a prohibited ex parte communication.
(f) To the extent permitted by law, the relief or benefit sought by a
party to a proceeding may be denied if the party, or an agent of the
party, knowingly and willfully violates the foregoing prohibitions or
requirements.
18 CFR 385.1415 Subpart O -- Procedures for the Assessment of Civil Penalties Under Section 31 of the Federal Power Act
18 CFR 385.1501 Scope (Rule 1501).
The rules in this subpart apply to and govern proceedings for the
assessment of civil penalties pursuant to section 31 of the Federal
Power Act, 16 U.S.C. 823b.
18 CFR 385.1502 Persons subject to civil penalties (Rule 1502).
(a) Any licensee or permittee under the Federal Power Act, or
exemptee from any requirement of Part I of the Federal Power Act, may be
subject to civil penalties; and
(b) Any person who must have a license under, or exemption from, the
Federal Power Act, but does not, may be subject to civil penalties.
18 CFR 385.1503 Actions subjecting persons to civil penalties (Rule
1503).
(a) The actions that subject persons to civil penalties are
violations of:
(1) Any rule or regulation issued under Part I of the Federal Power
Act;
(2) Any term or condition of a license or permit issued under Part I
of the Federal Power Act or an exemption issued from any provision of
Part I of the Federal Power Act;
(3) Any compliance order issued under section 31(a) of the Federal
Power Act; or
(4) Any requirement of Part I of the Federal Power Act.
(b) Only actions occurring on or after October 16, 1986, may subject
a person to civil penalties.
18 CFR 385.1504 Maximum civil penalty (Rule 1504).
(a) Except as provided in paragraph (b) of this section, the
Commission may assess a civil penalty of up to $10,000 for each day that
the violation continues.
(b) No civil penalty may be assessed where a license or exemption is
ordered revoked.
18 CFR 385.1505 Determination of proposed penalty amount (Rule 1505).
(a) In determining the amount of a proposed penalty, the Commission
will consider the nature and seriousness of the violation, and the
efforts of the licensee, exemptee, permittee or one who should possess
appropriate authority but does not, to remedy the violation in a timely
manner.
(b) In making its determination under paragraph (a), the Commission
will consider the following factors:
(1) Whether the person had actual knowledge of the violation;
(2) Whether the person had constructive knowledge of the violation
deemed to be possessed by a reasonable individual acting under similar
circumstances;
(3) Whether the person has a history of previous violations;
(4) Whether the violation caused loss of life or injury to persons;
(5) Whether economic benefits were derived because of the violation;
(6) Whether the violation caused damage to property or the
environment;
(7) Whether the violation endangered persons, property or the
environment;
(8) Whether there were timely remedial efforts;
(9) Whether there were untimely remedial efforts;
(10) Whether there were no remedial efforts; and
(11) Whether there are any other pertinent considerations.
18 CFR 385.1506 Notice of proposed penalty (Rule 1506).
(a) Before issuing an order assessing a civil penalty under this
subpart against any person, the Commission will provide to the person
notice of the proposed penalty.
(b) The notice of proposed penalty will:
(1) Include the amount of the proposed penalty;
(2) Include a statement of the material facts constituting the
alleged violation; and
(3)(i) Inform the person of the opportunity to elect in writing
within 30 days of receipt of the notice to have the procedures of Rule
1509 (in lieu of those of Rule 1508) apply with respect to the
assessment, or,
(ii) If a final compliance order is issued under section 31(a) of the
Federal Power Act, no notice of election will be provided for a
violation of, or a failure or refusal to comply with, the final order.
18 CFR 385.1507 Election of procedures and answer (Rule 1507).
(a) If the respondent receiving the notice of proposed penalty wishes
to have the procedures of Rule 1509 apply, then the respondent must file
with the Commission, within 30 days of receipt of the notice, a
notification of the election in accordance with subpart T, part 385 of
this chapter. The notification may include an answer setting forth
factual or legal reasons why the proposed assessment order should not be
issued, should be reduced in amount, or should otherwise be modified.
If a person fails to file an answer within the 30-day time limit, all
material facts stated in the Commission's notice will be deemed
admitted.
(b) Any election to have the procedures of Rule 1509 apply may not be
revoked after the 30-day election period in paragraph (a) of this
section, without the consent of the Commission.
18 CFR 385.1508 Commission administrative procedures (Rule 1508).
(a) If the respondent is not entitled to an election pursuant to Rule
1506(b)(3)(ii) or does not timely elect to have the procedures of Rule
1509 apply, the Commission will commence a proceeding in accordance with
the provisions of subpart E of this chapter.
(b) The Commission's Rules of Practice and Procedure in part 385 of
this chapter will apply, as appropriate, to any evidentiary proceeding
to assess a civil penalty.
(c) An assessment order under this section shall include the
administrative law judge's findings and the basis for such assessment.
18 CFR 385.1509 District court procedures (Rule 1509).
(a) After receipt of the notification of election to apply the
provisions of this section pursuant to Rule 1507, the Commission will
promptly assess the penalty it deems appropriate, in accordance with
Rule 1505.
(b) If the civil penalty is not paid within 60 calendar days after
the assessment order is issued under paragraph (a) of this section, the
General Counsel, unless otherwise directed by the Commission, will
institute an action in the appropriate United States District Court for
an order affirming the assessment of the civil penalty.
18 CFR 385.1510 Modification of civil penalty (Rule 1510).
(a) The Commission may compromise, modify, or remit, with or without
conditions, any civil penalty (with leave of court if necessary).
(b) In exercising its authority under paragraph (a) of this section,
the Commission may consider the nature and seriousness of the violation,
and the efforts of the licensee, exemptee, permittee, or one who should
possess appropriate authority but does not, to remedy the violation in a
timely manner.
(c) The Commission's authority to compromise, modify or remit a civil
penalty may be exercised at any time prior to a final decision by the
United States Court of Appeals if Rule 1508 procedures are utilized, or
prior to a final decision by the United States District Court if Rule
1509 procedures are utilized.
18 CFR 385.1511 Collection of civil penalties (Rule 1511).
If any person fails to pay a civil penalty assessment, the Commission
will seek to recover the amount of the penalty plus interest in any
appropriate District Court of the United States. Interest will begin to
accrue on the date the Commission issues a final order under Rule 1508
or the date on which the appropriate District Court enters final
judgment in favor of the Commission under Rule 1509.
(Order 502, 53 FR 32039, Aug. 23, 1988)
18 CFR 385.1511 Subparts P -- R (Reserved)
18 CFR 385.1511 Subpart S -- Miscellaneous
18 CFR 385.1901 Interpretations and interpretative rules under the NGPA
(Rule 1901).
(a) Purpose and applicability -- (1) Purpose. The purpose of this
section is to provide procedures by which:
(i) A person may seek a written interpretation from the General
Counsel construing a provision of the NGPA, or clarifying a rule issued
by the Commission under the NGPA; and
(ii) The Commission may publish an interpretative rule that will have
general applicability and effect.
(2) Applicability. (i) This section applies to requests under
section 502(c) of the NGPA for interpretations of the NGPA or of rules
or of orders, having the applicability and effect of a rule as defined
in 5 U.S.C. 551(4), issued under the NGPA. It does not apply to orders
issued under sections 301, 302, and 303 of the NGPA.
(ii) This section applies to requests for interpretations to
prospective, existing or completed facts, acts, or transactions.
Interpretations based on hypothetical facts, acts, or transactions will
not be considered.
(b) Definitions. For the purpose of this section, the following
definitions apply.
(1) Direct participant means any person or legal entity who is, or
plans to be an actual party in the act, transaction, or circumstance
presented, and who has an immediate or direct financial interest in the
act, transaction, or circumstance.
(2) Interpretation means a written statement of the General Counsel
which applies a particular rule to a particular set of facts, acts,
circumstances or transactions. In the discretion of General Counsel,
the interpretation may contain a detailed factual and legal analysis, a
summary of the facts or the law, or both, or it may be a conclusory
statement.
(3) Interpretative rule means an offical interpretative statement of
general applicability issued by the Commission and published in the
Federal Register that applies the NGPA or rules issued thereunder to a
specific set of facts, acts, circumstances and transactions.
(4) NGPA means the Natural Gas Policy Act of 1978.
(5) Request means a request for an interpretation.
(6) Rule means a rule or an order having the effect of a rule as
defined in 5 U.S.C. 551(4).
(c) Persons who may request an interpretation -- (1) Any person who
is or will be a direct participant in an act, transaction, or
circumstance affected by the NGPA or a rule issued by the Commission
under the NGPA may file with the Office of the General Counsel a request
for an interpretation.
(2) Requests for interpretations must be addressed to the Office of
the General Counsel as follows:
Federal Energy Regulatory Commission, Interpretations Section, Office
of the General Counsel, Suite 8000, 825 North Capitol Street, NE.,
Washington, D.C. 20426.
(3) Requests for interpretation under this paragraph need not be
filed with the Secretary.
(d) Content of request -- (1) Facts. A request for interpretation
must contain a full and complete statement of the relevant and material
facts pertaining to the act, transaction, or circumstance that is the
subject of the request for interpretation. When the request pertains to
only one step of a larger integrated transaction, the facts,
circumstances, and other relevant information pertaining to the entire
transaction must be included in the request.
(2) Statement of the question. The request must clearly designate
the section of the statute, regulation, rule, or part thereof which the
person making the request seeks to have interpreted and must set forth
clearly and concisely the question for which an interpretation is
sought. The request may also set forth a proposed answer to the
question.
(3) Analysis. If the request proposes a particular answer:
(i) The request must set forth a legal analysis in support of the
proposed answer and cite relevant authorities in support thereof.
(ii) The request must set forth the legal and business consequences
which will flow from the proposed answer.
(4) Factual statements. (i) The request must be accompanied by a
statement that to the best of the applicant's personal information,
knowledge, and belief there is no untrue statement of a material or
relevant fact and there is no omission of a material or relevant fact
made in the request.
(ii) Any untrue statement or omission of a material or relevant fact
upon which the Office of the General Counsel relied in a request for an
interpretation is deemed to be a statement or entry under secton 1001 of
Title 18, United States Code.
(5) Notification of other parties. (i) A person submitting a request
must specify each person who is a direct participant in the
circumstance, act or transaction; must notify them in writing of the
request for an interpretation; and must send them a copy of such
request. Such notification and the addresses of the persons notified
must be included in a request to the General Counsel.
(ii) Each person notified pursuant to paragraph (d)(5)(i) of this
section may submit information regarding any fact provided in the
request of which it has personal knowledge, if such fact is different
from the facts presented by the applicant. Such fact must be presented
to the Office of the General Counsel as set forth in paragraph (d)(4) of
this section.
(6) The request must be accompanied by the fee prescribed in 381.405
of this chapter or by a petition for waiver pursuant to 381.106 of this
chapter.
(e) Additional information. The General Counsel may request
additional information, documentation or legal analysis in connection
with any request for any interpretation.
(f) Referral of information. Information submitted in a request for
interpretation may be used by the Commission or its Staff in their
official capacity. Any information received will be placed in a public
file in the Commission's Office of Public Information.
(g) The interpretation -- (1) Except as provided in paragraph (g)(2)
of this section, the General Counsel will provide a copy of his or her
written interpretation of the NGPA or rule as applied to the act,
transaction, or circumstance presented upon the person who made the
request for the interpretation and upon persons named in the request as
direct participants in the act, transaction, or circumstance.
(2) The General Counsel may determine not to issue an interpretation,
in which case the person who made the request and direct participants as
specified in the request will be notified in writing of the decision not
to issue an interpretation, and the reason for the decision.
(3) Only those persons to whom an interpretation is specifically
addressed and other persons who are named in the request, who have been
informed by the applicant for an interpretation of the pendency of the
request and who are direct participants in the act, transaction or
circumstance presented, may rely upon it. The effectiveness of an
interpretation depends entirely on the accuracy of the facts presented
to the General Counsel. If a material or relevant fact has been
misrepresented or omitted or if any material or relevant fact changes
after an interpretation is issued or if the action taken differs from
the facts presented in the request, the interpretation may not be relied
upon by any person.
(4) An interpretation may be rescinded or modified prospectively at
any time. A rescission or modification is effected by notifying persons
entitled to rely on the interpretation at the address contained in the
original request.
(5) Any interpretation based on the NGPA or a rule issued thereunder
in effect at the time of issuance may be relied upon only to the extent
such law or rule remains in effect.
(6) Except as provided in paragraphs (g)(3), (g)(4) and (g)(5) of
this section, the Staff will not recommend any action to the Commission
which is inconsistent with the position espoused in the interpretation.
The interpretation of the General Counsel is not the interpretation of
the Commission. An interpretation provided by the General Counsel is
given without prejudice to the Commission's authority to consider the
same or like question and to issue a declaratory order to take other
action which has the effect of rescinding, revoking, or modifying the
interpretation of the General Counsel.
(h) Appeal. There is no appeal to the Commission of an
interpretation.
(i) Interpretative rules. Upon the petition of any person or upon
its own motion, the Commission may publish in the Federal Register an
interpretative rule regarding any question arising under the NGPA or a
rule promulgated thereunder. Any person is entitled to rely upon an
interpretative rule.
(j) Applications for adjustments treated as requests for
interpretations. Except for the notification provisions of paragraph
(d)(5) of this section, the provisions of this section apply to any
petition for an adjustment which is deemed a request for an
interpretation under Rule 1117. Notice to all parties to an adjustment
proceeding under subpart K of this part that is deemed to be a request
for an interpretation will be given under Rule 1117(d)(1).
(Order 225, 47 FR 19022, May 3, 1982; Order 376, 49 FR 21704, May
23, 1984, as amended by Order 394, 49 FR 35366, Sept. 7, 1984)
18 CFR 385.1902 Appeals from action of staff (Rule 1902).
(a) Any staff action (other than a decision or ruling of presiding
officer, as defined in Rule 102(e)(1), made in a proceeding set for
hearing under subpart E of this part, or a decision of the Oil Pipeline
Board under 375.306 of this chapter) taken pursuant to authority
delegated to the staff by the Commission is a final agency action that
is subject to a request for rehearing under Rule 713 (request for
rehearing).
(b) Orders issued by the Oil Pipeline Board pursuant to 375.306 of
this chapter are subject to the procedural rules in section 17 of the
Interstate Commerce Act, 49 U.S.C. 17. Interested parties may file
exceptions to Oil Pipeline Board orders no later than 20 days after the
service of such orders. If no exceptions are filed within this 20-day
period, interested parties may file requests for rehearing pursuant to
Rule 713 no later than 50 days after service of the Oil Pipeline Board's
order. Interested parties may also file requests for rehearing,
pursuant to Rule 713, of orders issued by the Commission on exceptions
to Oil Pipeline Board orders. The filing of exceptions is not a
prerequisite to filing a request for rehearing. The filing of either
exceptions or a request for rehearing (but not both) is a prerequisite
to filing a petition for review in the court of appeals of any order
issued by the Oil Pipeline Board. The filing of a request for rehearing
is not a prerequisite to the filing of a petition for review in the
court of appeals of any order issued by the Commission pursuant to the
Interstate Commerce Act.
(c) All appeals of staff action that were timely filed prior to
December 3, 1990 and that had not been acted upon by the Commission on
their substantive merits are deemed to be timely filed requests for
rehearing of final agency action. All notices issued by the Commission
prior to December 3, 1990 stating the Commission's intent to act on
appeals of staff action such that they are not deemed denied by the
expiration of a 30-day period after the filing of the appeal, are deemed
to be orders granting rehearing of final agency action for the sole
purpose of further consideration, unless the Commission issued an order
on the substantive merits of the appeal prior to December 3, 1990. No
later than January 2, 1991, persons who had timely filed appeals of
staff action prior to December 3, 1990 which were pending before the
Commission on that date may file additional pleadings to update or
supplement those appeals.
(Order 530, 55 FR 50682, Dec. 10, 1990)
18 CFR 385.1903 Notice in rulemaking proceedings (Rule 1903).
Before the adoption of rule of general applicability or the
commencement of hearing on such a proposed rulemaking, the Commission
will cause general notice to be given by publication in the Federal
Register, such notice to be published therein not less than 15 days
prior to the date fixed for the consideration of the adoption of a
proposed rule or rules or for the commencement of the hearing, if any,
on the proposed rulemaking, except where a shorter period is reasonable
and good cause exists therefor; Provided however, That:
(a) When the Commission, for good cause, finds it impracticable,
unnecessary, or contrary to the public interest to give such notice, it
may proceed with the adoption of rules without notice by incorporating
therein a finding to such effect and a concise statement of the reasons
therefor;
(b) Except when notice or hearing is required by statute, the
Commission may issue at any time rules of organization, procedure or
practice, or interpretative rules, or statements of policy, without
notice or public proceedings; and
(c) This section is not to be construed as applicable to the extent
that there may be involved any military, naval, or foreign affairs
function of the United States, or any matter relating to the
Commission's management or personnel, or to United States property,
loans, grants, benefits, or contracts.
18 CFR 385.1904 Copies of transcripts (Rule 1904).
The Commission will cause to be made a stenographic record of public
hearings and such copies of the transcript thereof as it requires for
its own purposes. Participants desiring copies of such transcript may
obtain the same from the official reporter upon payment of the fees
fixed therefor.
18 CFR 385.1907 Reports of compliance (Rule 1907).
When any licensee, permittee, or any other person subject to the
jurisdiction of the Commission is required to do or perform any act by
Commission order, permit, or license provision, there must be filed with
the Commission within 30 days following the date when such requirement
became effective, a notice, under oath, stating that such requirement
has been met or complied with; Provided, however, That the Commission,
by rule or order, or by making specific provision therefor in a license
or permit, may provide otherwise for the giving of such notice of
compliance. Five conformed copies of such notice must be filed in lieu
of the fourteen conformed copies required by Rule 2004 (copies of
filings).
18 CFR 385.1907 Subpart T -- Formal Requirements for Filings in Proceedings Before the Commission
18 CFR 385.2001 Filings (Rule 2001).
(a) Filings with the Commission. (1) Except as otherwise provided in
this chapter, any document required to be filed with the Commission must
comply with Rules 2001 to 2005 and must be submitted to the Secretary
by:
(i) Mailing the document to the Secretary, Federal Energy Regulatory
Commission, 825 North Capitol Street, NE., Washington, DC 20426; or
(ii) Hand delivering the document to Room 3110, 825 North Capitol
Street, NE., Washington, DC.
(2) Any document is considered filed on the date stamped by the
Secretary, unless the document is subsequently rejected. Any document
received after regular business hours is considered filed on the next
regular business day.
(b) Rejection. (1) If any filing does not comply with any applicable
statute, rule, or order, the filing may be rejected, unless the filing
is accompanied by a motion requesting a waiver of the applicable
requirement of a rule or order and the motion is granted.
(2) If any filing is rejected, the document is deemed not to have
been filed with the Commission.
(3) The Secretary, or the office director to whom the filing has been
referred, will return a copy of any document rejected under paragraph
(b)(1) of this section, with an indication of the deficiencies in the
filing and the reasons for rejection.
(4) If a filing does not comply with any applicable requirement, all
or part of the filing may be stricken. Any failure to reject a filing
which is not in compliance with an applicable statute, rule, or order
does not waive any obligation to comply with the requirements of this
chapter.
18 CFR 385.2002 Caption of filings (Rule 2002).
A filing must begin with a caption that sets forth:
(a) The docket designation, if any;
(b) The words ''INTERLOCUTORY APPEAL'' underneath the docket
designation if the filing is an appeal under Rule 715(c) of a presiding
officer's denial of a motion for an interlocutory appeal;
(c) The title of the proceeding if a proceeding has been initiated;
(d) A heading which describes the filing; and
(e) The name of the participant for whom the filing is made, or a
shortened designation for the participant.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 402, 49 FR
39539, Oct. 9, 1984)
18 CFR 385.2003 Specifications (Rule 2003).
(a) Paper. (1) Any filing with the Commission must be:
(i) Typewritten, printed, or reproduced, with each copy clearly
legible; and
(ii) On letter-size unglazed paper which is 8 to 8 1/2 inches wide
and 10 1/2 to 11 inches long.
(2) Any log, graph, map, drawing, or chart submitted as part of a
filing will be accepted on paper larger than provided in paragraph
(a)(1) of this section, if it cannot be provided legibly on letter-size
paper.
(b) Format. Any filing with the Commission must:
(1) Have double-spaced print with left margins not less than 1 1/2
inch wide, except that any tariff or rate filing may be single-spaced;
(2) Indent and single-space any quotation which exceeds 50 words;
(3) Be bound or stapled at the left side only, if the filing exceeds
one page; and
(4) Be printed in not less than 10 point type with double-leaded text
and single-leaded quotations, if the filing is printed.
(c) Citation form. Any filing with the Commission should comply with
the rules of citation, except Rule 1.1, set forth in the most current
edition of A Uniform System of Citation, published by The Harvard Law
Review Association.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 289, 48 FR
17068, Apr. 21, 1983)
18 CFR 385.2004 Original and copies of filings (Rule 2004).
Any person filing under this chapter must provide an original of the
filing and fourteen exact copies, unless otherwise required by statute,
rule, or order.
18 CFR 385.2005 Subscription and verification (Rule 2005).
(a) Subscription. (1) Any filing with the Commission must be signed.
(2) The signature on a filing constitutes a certificate that:
(i) The signer has read the filing signed and knows its contents;
(ii) The contents are true as stated, to the best knowledge and
belief of the signer; and
(iii) The signer possesses full power and authority to sign the
filing.
(3) A filing must be signed by:
(i) The person on behalf of whom the filing is made;
(ii) Any officer of the corporation, trust, association, or other
organized group, on behalf of which the filing is made;
(iii) Any officer, agent, or employee of the governmental authority,
agency, or instrumentality on behalf of which the filing is made; or
(iv) A representative qualified to practice before the Commission
under Rule 2101 who possesses authority to sign.
(4) The signer of any filing may be required to submit evidence of
authority to sign the filing.
(b) Verification. (1) The facts alleged in any filing need not be
verified, unless verification is required by statute, rule, or order.
(2) If verification of any filing is required, the verification must
be under oath by a person having knowledge of the matters set forth in
the filing. If any vertification is made by a person other than the
signer, a statement must be attached to the verification explaining why
a person other than the signer provides verification.
18 CFR 385.2006 Docket system (Rule 2006).
(a) The Secretary will maintain a system for docketing proceedings.
(b) Any public information in any docket is available for inspection
and copying by the public during the office hours of the Commission, to
the extent that such availability is consistent with the proper
discharge of the Commission's duties and in conformity with Part 388 of
this chapter.
(Order 226, 47 FR 19022, May 3, 1982; 48 FR 786, Jan. 7, 1983)
18 CFR 385.2007 Time (Rule 2007).
(a) Computation. (1) Except as otherwise required by law, any period
of time prescribed or allowed by statute or Commission rule or order is
computed to exclude the day of the act or event from which the time
period begins to run.
(2) The last day of any time period is included in the time period,
unless it is a Saturday, Sunday, part-day holiday that affects the
Commission, or legal public holiday as designated in section 6103 of
title 5, U.S. Code, in which case the period does not end until the
close of the Commission business of the next day which is not a
Saturday, Sunday, part-day holiday that affects the Commission, or legal
public holiday.
(b) Date of issuance of Commission rules or orders. (1) Any
Commission rule or order is deemed issued when the Secretary does the
earliest of the following:
(i) Posts a full-text copy in the Division of Public Information;
(ii) Mails or delivers copies of the order to the parties; or
(iii) Makes such copies public.
(2) Any date of issuance specified in a rule or order need not be the
date on which the rule or order is adopted by the Commission.
(c) Effective date of Commission rules or orders. (1) Unless
otherwise ordered by the Commission, rules or orders are effective on
the date of issuance.
(2) Any initial or revised initial decision issued by a presiding
officer is effective when the initial or revised initial decision is
final under Rule 708(d).
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 375, 49 FR
21316, May 21, 1984; Order 376, 49 FR 21707, May 23, 1984)
18 CFR 385.2008 Extensions of time (Rule 2008).
(a) Except as otherwise provided by law, the time by which any person
is required or allowed to act under any statute, rule, or order may be
extended by the decisional authority for good cause, upon a motion made
before the expiration of the period prescribed or previously extended.
(b) If any motion for extension of time is made after the expiration
of a specified time period, the decisional authority may permit
performance of the act required or allowed, if the movant shows
extraordinary circumstances sufficient to justify the failure to act in
a timely manner.
18 CFR 385.2009 Notice (Rule 2009).
Unless actual notice is given or unless newspaper notice is given as
required by law, notice by the Commission is provided by the Secretary
only by publication in the Federal Register. Actual notice is usually
given by service under Rule 2010.
18 CFR 385.2010 Service (Rule 2010).
(a) By participants. (1) Any participant filing a document in a
proceeding must serve a copy of the document on:
(i) Each person whose name is on the official service list, or
applicable restricted service list, for the proceeding or phase of the
proceeding; and
(ii) Any other person required to be served under Commission rule or
order or under law.
(2) If any person receives a rejection letter or deficiency letter
from the Commission, the person must serve a copy of the letter on any
person previously served copies of the rejected or deficient filing.
(b) By the Secretary. The Secretary will serve, as appropriate:
(1) A copy of any complaint on any person against whom the complaint
is directed;
(2) A copy of any notice of tariff or rate examination or order to
show cause, on any person to whom the notice or order is issued;
(3) A copy of any rule or any order by a decisional authority in a
proceeding on any person included on the official service list, or
applicable restricted service list, for the proceeding or phase of the
proceeding.
(c) Official service list. (1) The official service list for any
proceeding will contain:
(i) The names and addresses of any person designated for service in
the initial pleading, other than a protest, or in the tariff or rate
filing which is filed by any participant; and
(ii) The name of counsel for the staff of the Commission.
(2) Any designation of a person for service may be changed by filing
a written notice with the Commission and serving the notice on each
person whose name is included on the official service list.
(d) Restricted service list. (1) For purposes of eliminating
unnecessary expense or improving administrative efficiency, the
Secretary, an office director, or the presiding officer may establish,
by order, a restricted service list for an entire proceeding, a phase of
a proceeding, one or more issues in a proceeding, or one or more cases
in a consolidated proceeding.
(2) Any restricted service list will contain the names of each person
on the official service list, or the person's representative, who, in
the judgment of the decisional authority establishing the list, is an
active participant with respect to the proceeding or consolidated
proceeding, any phase of the proceeding, or any issue in the proceeding,
for which the list is established.
(3) Any restricted service list is maintained in the same manner as,
and in addition to, the official service list under paragraph (c) of
this section.
(4) Before any restricted service list is established, each person
included on the official service list will be given notice of any
proposal to establish a restricted service list and an opportunity to
show why that person should also be included on the restricted service
list or why a restricted service list should not be established.
(5) Any designation of a person for service on a restricted service
list may be changed by filing written notice with the Commission and
serving that notice on each person whose name is on the applicable
restricted service list.
(e) Interveners. (1) If any motion to intervene or any notice of
intervention is filed within time period prescribed for that motion or
notice, the name and address of any person designated for service in the
motion or notice are placed on the official service list or any
applicable restricted service list. Any person placed on the official
service list under this paragraph is entitled to service in accordance
with this section. If a motion to intervene is denied, the name and
address of each person designated for service pursuant to that motion
will be removed from the official service list.
(2) If a motion to intervene is not filed within the period
prescribed for that motion, the name and address of any person
designated for service in the motion are placed on the official service
list, or any applicable restricted service list, only after the motion
is granted. Any person who files a late motion to intervene will be
served only the documents that are filed after the motion is granted.
(f) Methods of service. Service of any document must be made:
(1) By United States mail, first-class or better; or
(2) By delivery in a manner that, and to a place where, the person on
whom service is required may reasonably be expected to obtain actual and
timely receipt.
(g) Timing of service. (1) Service is made under this section when
the document served is deposited in the mail or is delivered in another
manner.
(2) Service of any document must be made not later than the date of
the filing of the document.
(h) Certification. (1) At the time any document required to be
served is filed with the Commission, the original of a certificate of
service must be attached to the document and a copy of the certificate
must be attached to each copy of the document filed with the Commission.
(2) The certificate of service must conform to the following format:
I hereby certify that I have this day served the foregoing document
upon each person designated on the official service list (or the
restricted service list, if applicable) compiled by the Secretary in
this proceeding.
Dated at this
day of , 19 .
--
Name
--
(if applicable)
Address
-- --
Telephone No.
18 CFR 385.2011 Procedures for filing on electronic media.
(a) FERC Forms subject to the procedures provided in this section
include:
(1) FERC Form No. 2, Annual report for major natural gas companies.
(2) FERC Form No. 2-A, Annual report for nonmajor natural gas
companies.
(3) FERC Form No. 8, Underground gas storage report.
(4) FERC Form No. 11, Natural gas pipeline monthly statement.
(5) FERC Form No. 14, Annual report for importers and exporters of
natural gas.
(6) FERC Form No. 15, Annual report of gas supply for certain
natural gas pipelines.
(7) FERC Form No. 16, Report of gas supply and requirements.
(b) These procedures also apply to:
(1) Volumes 1 and 1A filings pursuant to 154.63 and 154.303(e) of
this chapter.
(2) Volumes 1 and 1A tariff sheets filed pursuant to the requirements
in Parts 154, 157 and 284 of this chapter.
(3) Certificate and abandonment applications filed under Subparts A,
E and F of Part 157 of this chapter,
(4) Blanket certificate applications filed under Subpart G of Part
284 of this chapter.
(c) What to file. (1) Except as provided in paragraph (e) of this
section, any filing of a schedule or an update described in paragraphs
(a) or (b) of this section must be submitted on electronic media.
(2) Electronic media suitable for Commission filings are listed in
the instructions for each form and filings. Additionally, lists of
suitable electronic media are available upon request from the
Commission.
(3) The electronic medium must be accompanied by the traditional
prescribed number of paper copies.
(4) The formats for the electronic filing and the paper copy can be
obtained at the Federal Energy Regulatory Commission, Division of Public
Information, 825 North Capitol Street, NE., Washington, DC 20426.
(5) The subscription required by 385.2005(a) must state that the
paper copies contain the same information as contained on the electronic
media, that the signer knows the contents of the paper copies and
electronic media, and that the contents as stated in the copies and on
the electronic media are true to the best knowledge and belief of the
signer.
(d) Where to file. (1) The electronic media, the paper copies and
accompanying cover letter must be submitted to: Office of the
Secretary, Federal Energy Regulatory Commission, 825 North Capitol
Street, NE., Washington, DC 20426. Hand deliveries of the electronic
media, the paper copies and accompanying cover letter may be made to:
Office of the Secretary, Federal Energy Regulatory Commission, Room
3110, 825 North Capitol Street, NE., Washington, DC 20426.
(2) EDI data submissions must be made as indicated in the electronic
filing instructions and formats for the particular form or filing, and
the paper copies and accompanying cover letter must be submitted to:
Office of the Secretary, Federal Energy Regulatory Commission, room
3110, 825 North Capitol Street, NE, Washington, DC 20426.
(e) Waiver -- (1) Filing of petition. If a natural gas company does
not have and is unable to acquire the computer capability to file the
information required to be filed on electronic media, the company may
request waiver from the requirements of this part, by filing an original
and two copies of a petition. The natural gas company may renew the
waiver if the company can continue to show that it does not have and is
unable to acquire the computer capability for electronic filing.
(2) Standard for waiver. The petition for waiver must show that the
natural gas company does not have the computer capability to file the
information required under this section on electronic media and that
acquisition of the capability would cause the company severe economic
hardship. This waiver may be granted for up to one year.
(3) Timing. The petition for waiver must be filed by the date on
which the information in the manner affected by the petition is required
to be initially filed.
(4) Decision on petition. The Commission or its designee will review
a petition for waiver and notify the applicant of its grant or denial.
Once the petition is decided, the natural gas company will have 30 days
from the date of notification of the decision to submit any information,
in the manner specified by the Commission in the decision on the waiver
petition, that was required to be filed while the petition was pending.
(53 FR 15032, Apr. 27, 1988, as amended at Order 493-C, 54 FR 21199,
May 17, 1989; Order 493-D, 58 FR 7987, Feb. 11, 1993)
18 CFR 385.2012 Petitions for review of Commission Orders (Rule 2012).
When a petition for review of an order issued by the Commission is
filed in a United States Court of Appeals, a copy of the petition which
has been stamped by the court with the date of filing must be mailed or
hand delivered to the Office of the Secretary, Federal Energy Regulatory
Commission, 825 North Capitol Street NE., Washington, DC 20426. If
within ten days after issuance of the Commission order, the Office of
the Secretary has physically received court-stamped copies of petitions
for review of the same order, which petitions have been filed in two or
more U.S. Courts of Appeals, the Commission will forward copies of those
petitions to the Judicial Panel on Multidistrict Litigation pursuant to
28 U.S.C. 2112(a).
(Order 504, 53 FR 37546, Sept. 27, 1988)
18 CFR 385.2012 Subpart U -- Appearance and Practice Before the Commission
18 CFR 385.2101 Appearances (Rule 2101).
(a) A participant may appear in a proceeding in person or by an
attorney or other qualified representative. An individual may appear in
his or her own behalf, a member of a partnership may represent the
partnership, a bona-fide officer of a corporation, trust, association or
organized group may represent the corporation, trust, association or
group, and an officer or employee of a State commisssion, of a
department or political subdivision of a State or other governmental
authority, may represent the State commission or the department or
political subdivision of the State or other governmental authority, in
any proceeding.
(b) A person compelled to appear or voluntarily testifying or making
a statement before the Commission or the presiding officer, may be
accompanied, represented, and advised by an attorney or other qualified
representative.
(c) A person appearing before the Commission or the presiding officer
must conform to the standards of ethical conduct required of
practitioners before the Courts of the United States, and where
applicable, to the requirements of Section 12(i) of the Public Utility
Holding Company Act of 1935 (15 U.S.C. 791(i)).
18 CFR 385.2102 Suspension (Rule 2102).
(a) After a hearing the Commission may disqualify and deny,
temporarily or permanently, the privilege of appearing or practicing
before it in any way to a person who is found:
(1) Not to possess the requisite qualifications to represent others,
or
(2) To have engaged in unethical or improper professional conduct, or
(3) Otherwise to be not qualified.
(b) Contumacious conduct in a hearing before the Commission or a
presiding officer will be grounds for exclusion of any person from such
hearing and for summary suspension for the duration of the hearing by
the Commission or the presiding officer.
18 CFR 385.2103 Appearance of former employees (Rule 2103).
(a) No person having served as a member, officer, expert,
administrative law judge, attorney, accountant, engineer, or other
employee of the Commission may practice before or act as attorney,
expert witness, or representative in connection with any proceeding or
matter before the Commission which such person has handled,
investigated, advised, or participated in the consideration of while in
the service of the Commission.
(b) No person having been so employed may within 1 year after his or
her employment has ceased, practice before or act as attorney, expert
witness, or representative in connection with any proceeding or matter
before the Commission which was under the official responsibility of
such person, as defined in 18 U.S.C. 202, while in the service of the
Commission.
(c) Nothing in paragraphs (a) and (b) of this section prevents a
former member, officer, expert, administrative law judge, attorney,
accountant, engineer, or other employee of the Commission with
outstanding scientific or technological qualifications from practicing
before or acting as an attorney or representative in connection with a
particular matter in a scientific or technological field if the Chairman
of the Commission makes a certification in writing, published in the
Federal Register, that the national interest would be served by such
action or representation.
18 CFR 385.2103 Subpart V -- Ex Parte Communications; Separation of Functions
18 CFR 385.2201 Ex parte communications (Rule 2201).
In order to avoid all possibilities of prejudice, real or apparent,
to the public interest and persons involved in proceedings pending
before the Commission:
(a) Except as permitted in paragraph (b) of this section, no person
who is a party to, or his or her counsel, agent, or other person acting
on his or her behalf, and no interceder in, any on-the-record
proceedings, shall submit ex parte, off-the-record communications to any
member of the Commission or of his or her personal staff, to the
administrative law judge, or to any other employee of the Commission,
regarding any matter pending before the Commission in any contested
on-the-record proceeding, and no Commissioner, member of his or her
personal staff, Administrative Law Judge, or any other employee of the
Commission, shall request or entertain any such ex parte, off-the-record
communications. For the purposes of this section, the term ''ex parte
communication'' means an oral or written communication relative to the
merits of an on-the-record proceeding pending before the Commission
which is not on the public record and with respect to which reasonable
prior notice to the parties is not given, but it shall not include
requests for status reports on any matter or proceeding covered by this
section; the term ''decisional employee'' means a commissioner or
member of his or her personal staff, an administrative law judge, or any
other employee of the Commission who is or may be reasonably expected to
be involved in the decisional process of the proceeding; the term
''contested on-the-record proceedings'' means a proceeding required by
statute, constitution, published Commission rule or regulation or order
in a particular case, to be decided on the basis of the record of a
Commission hearing, and in which a protest or a petition or notice to
intervene in opposition to requested Commission action has been filed;
the term ''interceder'' shall include any individual outside the
Commission, whether in private or public life, partnership, corporation,
association, or other agency, other than a party or an agent of a party,
who volunteers a communication.
(b) The prohibitions contained in paragraph (a) of this section do
not apply to a communication:
(1) From an interceder who is a local, State, or Federal agency which
has no official interest in and whose official duties are not affected
by the outcome of the on-the-record proceedings before the Commission to
which the communication relates;
(2) From an interceder relating to matters of procedure only;
(3) From a party to, or his or her counsel, agent, or other person
acting on his or her behalf, in an on-the-record proceeding, if the
communication relates to matters of procedure only and is directed to
the Secretary of the Commission, staff counsel, or any other employee in
the presence of or with the prior approval of staff counsel;
(4) From any person when otherwise authorized by law;
(5) When the communication is between the staff counsel assigned to
the proceeding or, in the presence of or after coordination with such
staff counsel, any other employee of the Commission (except a decisional
employee) and any party or counsel to any party or parties to the
proceeding or, in the presence of or after coordination with such
counsel or party, and agent of any such party: Provided, That any
employee of the Commission who may reasonably be expected to participate
in the decisional process may waive such participation by entering a
staff appearance in the proceeding: Provided further, That
non-unanimous settlement offers shall thereafter be served on the
participants in the proceeding prior to the submission of such offers to
the Commission;
(6) Which the participants agree may be made on an ex parte basis;
(7) Related to routine safety, construction, and operational
inspections of project works by the Commission staff not undertaken to
investigate or study a matter pending in issue before the Commission in
any on-the-record proceeding;
(8) Related to routine field audits of the accounts or any books or
records of a company subject to the Commission's accounting requirements
not undertaken to investigate or study a matter pending in issue before
the Commission in any on-the-record proceeding;
(9) Which relates solely to a request for supplemental information or
data necessary for an understanding of factual materials contained in
documents filed with the Commission in a proceeding covered by this
section and which is made in the presence of or after coordination with
counsel, except a communication with a decisional employee, in the
absence of waiver of participation;
(10) The Commission may, by rule or order, modify any provision of
this subpart, or Rule 1415, as it applies to all or part of a
proceeding, to the extent permitted by law. The prohibitions of
paragraph (a) of this section do not apply to oil pipeline proceedings
which are governed by Rule 1415.
(c) All written communications prohibited by paragraph (a) of this
section, sworn statements reciting the substance of all such oral
communications, and all written responses and sworn statements reciting
the substance of all oral responses to such prohibited communications
must be delivered to the Secretary of the Commission who will place the
communication in public files associated with the case, but separate
from the material upon which the Commission can rely in reaching its
decision. The Secretary will serve such communications upon parties to
the proceeding. The Secretary will also serve a copy of the sworn
statement to the communicator and allow him or her a reasonable
opportunity to file a response.
(d) A Commissioner, member of his or her immediate staff,
administrative law judge, or any other employee of the Commission who
receives an oral offer of any communication prohibited by paragraph (a)
of this section shall decline to listen to such communication and shall
explain that the matter is pending for determination. If unsuccessful
in preventing such communication, the recipient thereof shall advise the
communicator that he or she will not consider the communication. The
recipient shall prepare a sworn statement setting forth the substance of
the communication and the circumstances thereof within 48 hours and
deliver the statement to the Secretary of the Commission for compliance
with the procedures established in paragraph (c) of this section.
(e) Requests for an opportunity to rebut, on the record, any facts or
contentions contained in an ex parte communication which the Secretary
has associated with the record may be filed in writing with the
Commission. The Commission will grant such requests only where it
determines that the dictates of fairness so require. Where the
communication contains assertions of fact not a part of the record and
of which the Commission cannot take official notice, the Commission in
lieu of receiving rebuttal material normally will direct that the
alleged factual assertion on any proposed rebuttal be disregarded in
arriving at a decision. Nor will the Commission normally permit any
rebuttal of ex parte endorsements or oppositions by civic or other
organizations by the submission of counter endorsements or oppositions.
(f) Upon receipt of a communication knowingly made in violation of
paragraph (a) of this section, the Commission, administrative law judge,
or other employee presiding at the hearing may require, to the extent
consistent with the interests of justice and the policy of underlying
statutes, the communicator to show cause why his or her claim or
interest in the proceeding should not be dismissed, denied, disregarded,
or otherwise adversely affected on account of such violation.
(g) The prohibitions contained in this section shall apply from the
time at which a proceeding is noticed for hearing or the person
responsible for such communication has knowledge that it will be noticed
for hearing or at the time at which a protest or a motion or notice to
intervene in opposition to requested Commission action has been filed,
whichever occurs first.
(Order 225, 47 FR 19022, May 3, 1982, as amended by Order 376, 49 FR
21707, May 23, 1984)
18 CFR 385.2202 Separation of functions of staff (Rule 2202).
In any proceeding in which a Commission adjudication is made after
hearing, no officer, employee, or agent assigned to work upon the
investigation or trial of the proceeding or to assist in the trial
thereof, in that or any factually related proceeding, shall participate
or advise as to the findings, conclusion or decision, except as a
witness or counsel in public proceedings.
18 CFR 385.2202 PART 388 -- INFORMATION AND REQUESTS
Sec.
388.101 Scope.
388.102 Notice of proceedings.
388.103 Notice and publication of decisions, rules, statements of
policy, organization and operations.
388.104 Informal advice from Commission staff.
388.105 Procedures for press, television, radio, and photographic
coverage.
388.106 Requests for Commission records available in the Public
Reference Room.
388.107 Commission records exempt from public disclosure.
388.108 Requests for Commission records not available through the
Public Reference Room (FOIA requests).
388.109 Fees for record requests.
388.110 Procedure for appeal of denial of requests for Commission
records not publicly available or not available through the Public
Reference Room and denial of requests for fee waiver or reduction.
388.111 Procedures in event of subpoena.
388.112 Requests for privileged treatment of documents submitted to
the Commission.
Authority: Freedom of Information Act, 5 U.S.C. 552 (1982), as
amended by Freedom of Information Reform Act of 1986; Administrative
Procedure Act, 5 U.S.C. 551-557 (1982); 5 U.S.C. 301-305 (1982);
Department of Energy Organization Act, 42 U.S.C. 7101-7352 (1982).
Source: Order 488, 53 FR 1473, Jan. 20, 1988, unless otherwise
noted.
18 CFR 388.101 Scope.
This part prescribes the rules governing public notice of
proceedings, publication of decisions, requests for informal advice from
Commission staff, procedures for press, television, radio and
photographic coverage, requests for Commission records, requests for
confidential treatment of documents submitted to the Commission,
procedures for responding to subpoenas seeking documents or testimony
from Commission employees or former employees, fees for various requests
for documents, and requests for reduction or waiver of these fees.
18 CFR 388.102 Notice of proceedings.
(a) Public sessions of the Commission for taking evidence or hearing
argument; public conferences and hearings before a presiding officer;
and public conferences or hearings in substantive rulemaking
proceedings, will not be held except upon notice.
(b) Notice of applications, complaints, and petitions, is governed by
Rule 2009 (notice) in part 385 of this chapter. Notice of applications
for certificates of public convenience and necessity under section 7 of
the Natural Gas Act is governed by 157.9 of this chapter (notice of
application). Notice of public sessions and proceedings and of meetings
of the Commission is governed by Rule 2009 (notice) in part 385 of this
chapter. Notice of hearings and of initiation or pendency of rulemaking
proceedings is governed by Rule 1903 (notice in rulemaking proceedings)
in part 385 of this chapter. Notice of application under Part I of the
Federal Power Act for preliminary permits and licenses is governed by
4.31 and 4.81 of this chapter (acceptance or rejection and contents).
Notice of proposed alterations or surrenders of license under section 6
of the Federal Power Act may be given by filing and publication in the
Federal Register as stated in Rule 1903 (notice in rulemaking
proceedings) in part 385 of this chapter, and where deemed desirable by
the Commission, by local newspaper advertisement. Notice of rates
charged and changes therein is governed by the filing requirements of
subchapters B and E of this chapter (regulations under the Federal Power
Act and regulations under the Natural Gas Act). Other notice required
by statute, rule, regulation, or order, or deemed desirable, may be
given by filing and publication in the Federal Register as governed by
Rule 1903 in part 385 of this chapter (notice in rulemaking proceedings)
or by service as governed by Rule 2010 (service) in part 385 of this
chapter.
18 CFR 388.103 Notice and publication of decisions, rules, statements
of policy, organization and operations.
Service of intermediate and final decisions upon parties to the
proceedings is governed by Rule 2010 (service) in part 385 of this
chapter. Descriptions of the Commission's organization, its methods of
operation, statements of policy and interpretations, procedural and
substantive rules, and amendments thereto will be filed with and
published in the Federal Register. Commission opinions together with
accompanying orders, Commission orders, and intermediate decisions will
be released to the press and made available to the public promptly.
Copies of Commission opinions, orders in the nature of opinions,
rulemakings and selected procedural orders, and intermediate decisions
which have become final are published in the Federal Energy Guidelines
and upon payment of applicable charges, may be obtained from: Commerce
Clearing House, Inc. 4025 West Peterson Avenue, Chicago, Illinois
60646. Attention: Order Department.
18 CFR 388.104 Informal advice from Commission staff.
(a) The Commission staff provides informal advice and assistance to
the general public and to prospective applicants for licenses,
certificates, and other Commission authorizations. Opinions expressed
by the staff do not represent the official views of the Commission, but
are designed to aid the public and facilitate the accomplishment of the
Commission's functions. Inquiries may be directed to the chief of the
appropriate office or division.
(b) Any inquiry directed to the Chief Accountant that requires a
written response must be accompanied by the fee prescribed in 381.301
of this chapter.
(c) A request directed to the Office of the General Counsel for a
legal interpretation of any statute or implementing regulation under the
jurisdiction of the Commission must be accompanied by the fee prescribed
in 381.305 of this chapter.
(53 FR 15383, Apr. 29, 1988)
18 CFR 388.105 Procedures for press, television, radio, and
photographic coverage.
(a) The Commission issues news releases on major applications,
decisions, opinions, orders, rulemakings, new publications, major
personnel changes, and other matters of general public interest.
Releases are issued by and available to the media from the Office of
External Affairs. Releases may be obtained by the public through the
Public Reference Room.
(b) Press, television, radio and photographic coverage of Commission
proceedings is permitted as follows:
(1) Press tables are located in each hearing room, and all sessions
of hearings are open to the press, subject to standards of conduct
applicable to all others present;
(2) Television, movie and still cameras, and recording equipment are
permitted in hearing rooms prior to the opening of a hearing or oral
arguments, and during recesses, upon prior arrangement with the
Commission or presiding administrative law judge. All equipment must be
removed from the room before hearings or oral arguments begin or resume;
(3) Television, movie and still cameras, and recording equipment may
not be used while hearings and oral arguments before administrative law
judges are in progress;
(4) Television and press cameras and recording equipment may be used
at Commission press conferences under prior arrangement with the Office
of External Affairs, provided their use does not interfere with the
orderly conduct of the press conference;
(5) Regulations pertaining to the use of television, movie and still
cameras, and recording equipment in in connection with the Commission's
open public meetings under the Government in the Sunshine Act are found
in 375.203 of this chapter.
18 CFR 388.106 Requests for Commission records available in the Public
Reference Room.
(a) A Public Reference Room is maintained at the Commission's
headquarters and is open during regular business hours as provided in
375.101(c) of this chapter. Documents may be obtained in person or in
writing from the Public Reference Room by reasonably describing the
records sought.
(b) The public records of the Commission that are available for
inspection and copying upon request in the Public Reference Room
include:
(1) Applications, declarations, complaints, petitions, and other
papers seeking Commission action;
(2) Financial, statistical, and other reports to the Commission,
power system statements of claimed cost of licensed projects, original
cost and reclassification studies, proposed accounting entries,
certificates of notification (under section 204(e) of the Federal Power
Act), rates or rate schedules and related data and concurrences, and
other filings and submittals to the Commission in compliance with the
requirements of any statute, executive order, or Commission rule,
regulation, order, license, or permit;
(3) Answers, replies, responses, objections, protests, motions,
stipulations, exceptions, other pleadings, notices, certificates, proofs
of service, transcripts of oral arguments, and briefs in any matter of
proceeding;
(4) Exhibits, attachments and appendices to, amendments and
corrections of, supplements to, or transmittals or withdrawals of any of
the foregoing;
(5) All parts of the formal record in any matter or proceeding set
for formal or statutory hearing, and any Commission correspondence
related thereto;
(6) Presiding officer actions, correspondence, and memoranda to or
from others, with the exception of internal communications within the
Office of Administrative Law Judges:
(7) Commission orders, notices, findings, opinions, determinations,
and other actions in a matter or proceeding;
(8) Commission correspondence relating to any furnishing of data or
information, except to or by another branch, department, or agency of
the Government;
(9) Commission correspondence with respect to the furnishing of data,
information, comments, or recommendations to or by another branch,
department, or agency of the Government where furnished to satisfy a
specific requirement of a statute or where made public by that branch,
department or agency;
(10) Staff reports on statements of claimed cost by licensees when
such reports have been served on the licensee;
(11) Commission correspondence on interpretation of the Uniform
System of Accounts and letters on such interpretation signed by the
Chief Accountant and sent to persons outside the Commission;
(12) Commission correspondence on the interpretation or applicability
of any statute, rule, regulation, order, license, or permit issued or
administered by the Commision, and letters of opinion on that subject
signed by the General Counsel and sent to persons outside the
Commission;
(13) Copies of the filings, certifications, pleadings, records,
briefs, orders, judgments, decrees, and mandates in court proceedings to
which the Commission is a party and the correspondence with the courts
or clerks of court;
(14) The Commission's Directives System;
(15) The Commission's opinions, decisions, orders and rulemakings;
(16) Reports, decisions, maps, and other information on electric
power and natural gas industries;
(17) Subject index of major Commission actions;
(18) Annual report to Congress in which the Commission's operations
during a past fiscal year are described; and
(19) Commission correspondence relating to the foregoing.
(c) For purposes of this section,
(1) Commission correspondence includes written communications and
enclosures received from others outside the staff and intended for the
Commission or sent to others outside the staff and signed by the
Chairman, a Commissioner, the Secretary, the Executive Director, or
other authorized official, except those which are personal.
(2) Formal record includes:
(i) Filings and submittals in a matter or proceeding,
(ii) Any notice or Commission order initiating the matter or
proceeding, and
(iii) If a hearing is held, the designation of the presiding officer,
transcript of hearing, exhibits received in evidence, exhibits offered
but not received in evidence, offers of proof, motions, stipulations,
subpoenas, proofs or service, references to the Commission, and
determinations made by the Commission thereon, certifications to the
Commission, and anything else upon which action of the presiding officer
or the Commission may be based.
The formal record does not include proposed testimony or exhibits not
offered or received in evidence.
(3) Matter or proceeding means the Commission's elucidation of the
relevant facts and applicable law, consideration thereof, and action
thereupon with respect to a particular subject within the Commission's
jurisdiction, initiated by a filing or submittal or a Commission notice
or order.
18 CFR 388.107 Commission records exempt from public disclosure.
The following records are exempt from disclosure.
(a)(1) Records specifically authorized under criteria established by
an Executive order to be kept secret in the interest of natural defense
or foreign policy, and
(2) Those records are in fact properly classified pursuant to such
Executive order;
(b) Records related solely to the internal personnel rules and
practices of an agency;
(c) Records specifically exempted from disclosure by statute,
provided that such statute:
(1) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(2) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(d) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(e) Interagency or intraagency memoranda or letters which would not
be available by law to a party other than an agency in litigation with
the agency;
(f) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(g) Records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records
or information:
(1) Could reasonably be expected to interfere with enforcement
proceedings,
(2) Would deprive a person of a right to a fair trial or an impartial
adjudication,
(3) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(4) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source,
(5) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(6) Could reasonably be expected to endanger the life or physical
safety of any individual;
(h) Geological and geophysical information and data, including maps,
concerning wells.
18 CFR 388.108 Requests for Commission records not available through
the Public Reference Room (FOIA requests).
(a)(1) Except as provided in paragraph (a)(2), of this section, a
person may request access to Commission records that are not available
through the Public Reference Room by using the following procedures:
(i) The request must be in writing, addressed to the Director of
Public Affairs, and clearly marked ''Freedom of Information Act
Request.''
(ii) The request must include:
(A) A statement by the requester of a willingness to pay a reasonable
fee or fees not to exceed a specific amount, or
(B) A request for waiver or reduction or fees.
(iii) The request must identify the category of the request,
consistent with the definitions provided in 388.109(b) (1).
(2) A request that fails to provide the identification required in
paragraph (a)(1)(iii) of this section will not be processed until the
Director of Public Affairs can ascertain the requester's category.
(3) A request for records received by the Commission not addressed
and marked as indicated will be so addressed and marked by Commission
personnel as soon as it is properly identified, and forwarded
immediately to the Director of Public Affairs.
(4) Requests made pursuant to this section will be considered to be
received upon actual receipt and, if necessary, categorization by the
Director of Public Affairs.
(b)(1) Except as provided in paragraph (b)(2) of this section, within
10 working days after receipt of the request, the Director of Public
Affairs will determine whether to comply with the request for agency
records and will notify the person making the request of the
determination and the reasons for a decision to deny the request, and of
the right of the requester to appeal any adverse determination in
writing to the General Counsel or General Counsel's designee.
(2) Pursuant to 388.110, the time limit for an initial determination
may be extended by up to 10 working days.
(c) The procedure for appeal of denial of a request for Commission
records is set forth in 388.110.
18 CFR 388.109 Fees for record requests.
(a) Fees for records available through the Public Reference Room. --
(1) General rule. The fee for finding and duplicating records available
in the Commission's Public Reference Room will vary depending on the
size and complexity of the request. A schedule of fees for such
services is prescribed annually. A person can obtain a copy of the
schedule of fees in person or by mail from the Public Reference Room.
Copies of documents also may be made on self-service duplicating
machines located in the Public Reference Room. In addition, copies of
data extracted from the Commission's files through electronic media are
available on a reimbursable basis, upon written request to the Public
Reference Room.
(2) Stenographic reports of Commission hearings are made by a private
contractor. Interested persons may obtain copies of public hearing
transcripts from the contractor at prices set in the contract, or
through the search and duplication service noted above. Copies of the
contract are available for public inspection in the Public Reference
Room.
(3) Copies of transcripts, electronic recordings, or minutes of
Commission meetings closed to public observation containing material
nonexempt pursuant to 375.206(f) of this chapter are also available at
the actual cost of duplication or transcription.
(4) The public may purchase hard copies of certain documents from the
Commission's Records Information Management System (RIMS). The fee is
15 cents per page. There will be no charge for requests consisting of
10 or fewer pages.
(5) Except for requests for certification by Government agencies,
certification of copies of official Commission records must be
accompanied by a fee of $5.00 per document. Inquiries and orders may be
made to the Public Reference Room in person or by mail.
(b) Fees for records not available through the Public Reference Room
(FOIA requests). The cost of duplication of records not available in
the Public Reference Room will depend on the number of documents
requested, the time necessary to locate the documents requested, and the
category of the persons requesting the records. The procedures for
appeal of requests for fee waiver or reduction are set forth in
388.110.
(1) Definitions. For the purpose of paragraph (b) of this section:
(i) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers commercial,
trade, or profit interests as these phrases are commonly known or have
been interpreted by the courts in the context of the Freedom of
Information Act;
(ii) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program of scholarly research;
(iii) Noncommercial scientific institution refers to an institution
that is not operated on a commercial basis and which is operated solely
for the purpose of conducting scientific research the results of which
are not intended to promote any particular product or industry;
(iv) Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that
is about current events or that would be of current interest to the
public. Examples of news media entities include television or radio
stations broadcasting to the public at large, and publishers of
periodicals (but only in those instances when the periodicals can
qualify as disseminations of ''news'') who make their products available
for purchase or subscription by the general public. These examples are
not intended to be all-inclusive. Moreover, as traditional methods of
news delivery evolve (e.g., electronic dissemination of newspapers
through telecommunications services), such alternative media may be
included in this category. A freelance journalist may be regarded as
working for a news organization if the journalist can demonstrate a
solid basis for expecting publication through that organization, even
though the journalist is not actually employed by the news organization.
A publication contract would be the clearest proof, but the Commission
may also look to the past publication record of a requester in making
this determination.
(2) Fees. (i) If documents are requested for commercial use, the
Commission will charge the employee's hourly pay rate plus 16 percent
for benefits for document search time and for document review time, and
15 cents per page for duplication. Commercial use requests are not
entitled to two hours of free seach time or 100 free pages of
reproduction of documents.
(ii) If documents are not sought for commercial use and the request
is made by an educational or noncommerical scientific institution, whose
purpose is scholarly or scientific research, or a representative of the
news media, the Commission will charge 15 cents per page for
duplication. There is no charge for the first 100 pages.
(iii) For a request not described in paragraphs (b)(2) (i) or (ii) of
this section the Commission will charge the employee's hourly pay rate
plus 16 percent for benefits for document search time and document
review time, and 15 cents per page for duplication. There is no charge
for the first 100 pages of reproduction and the first two hours of
search time will be furnished without charge.
(iv) If documents are mailed, requesters will be charged postage
based on the current postage rate.
(v) The Commission, or its designee, may establish minimum fees below
which no charges will be collected, if it determines that the costs of
routine collection and processing of the fees are likely to equal or
exceed the amount of the fees. If total fees assessed by Commission
staff for a Freedom of Information Act request are less than the
appropriate threshold, the Commission may not charge the requesters.
(vi) Payment of fees must be by check or money order made payable to
the U.S. Treasury.
(vii) Requesters may not file multiple requests at the same time,
each seeking portions of a document or documents, solely in order to
avoid payment of fees. When the Commission reasonably believes that a
requester, or a group of requesters acting in concert, is attempting to
break a request down into a series of requests for the purpose of
evading assessment of fees, the Commission may aggregate any such
requests and charge the requester accordingly. The Commission will not
aggregate multiple requests on unrelated subjects from a requester.
(3) Fees for unsuccessful search. The Commission may assess charges
for time spent searching, even if it fails to locate the records, or if
records located are determined to be exempt from disclosure. If the
Commission estimates that search charges are likely to exceed $25, it
will notify the requester of the estimated amount of search fees, unless
the requester has indicated in advance willingness to pay fees as high
as those anticipated. The requester can meet with Commission personnel
with the object of reformulating the request to meet his or her needs at
a lower cost.
(4) Interest -- notice and rate. The Commission will assess interest
charges on an unpaid bill starting on the 31st day following the day on
which the billing was sent. Interest will be at the rate prescribed in
31 U.S.C. 3717 and will accrue from the date of the billing.
(5) Advance payments. The Commission will require a requester to
make an advance payment, i.e., payment before work is commenced or
continued on a request, if:
(i) The Commission estimates or determines that allowable charges
that a requester may be required to pay are likely to exceed $250. The
Commission will notify the requester of the estimated cost and either
require satisfactory assurance of full payment where the requester has a
history of prompt payment of fees, or require advance payment of the
charges if a requester has no history of payment; or
(ii) A requester has previously failed to pay a fee charged in a
timely fashion, the Commission will require the requester to pay the
full amount owed plus any applicable interest, and to make an advance
payment of the full amount of the estimated fee before the Commission
will begin the process a new request or a pending request from that
requester.
(iii) When the Commission requires advance payment under this
paragraph, the administrative time limits prescribed in this part will
begin only after the Commission has received the fee payments described
above.
(6) Fee reduction or waiver. (i) Any fee described in paragraph (b)
of this section may be reduced or waived if the requester demonstrates
that disclosure of the information sought is:
(A) In the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government, and
(B) Not primarily in the commercial interest of the requester.
(ii) The Commission will consider the following criteria to determine
the public interest standard:
(A) Whether the subject of the requested records concerns the
operations or activities of the government;
(B) Whether the disclosure is likely to contribute to an
understanding of government operations or activities;
(C) Whether disclosure of the requested information will contribute
to public understanding; and
(D) Whether the disclosure is likely to contribute significantly to
public understanding of government operations or facilities.
(iii) The Commission will consider the following criteria to
determine the commercial interest of the requester:
(A) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and, if so
(B) Whether the magnitude of the identified commercial interest of
the requester is sufficiently large, in comparison with the public
interest in disclosure, that disclosure is primarily in the commercial
interest of the requester.
(iv) This request for fee reduction or waiver must accompany the
initial request for records and will be decided under the same
procedures used for record requests.
(7) Debt collection. The Commission will use the authorities
mandated in the Debt Collection Act of 1982, 31 U.S.C. 3711, 3716-3719
(1982), including disclosure to consumer reporting agencies and use of
collection agencies, where appropriate, to encourage payment of
outstanding unpaid FOIA invoices.
(8) Annual adjustment of fees. -- (i) Update and publication. The
Commission, by its designee, the Executive Director, will update the
fees established in this section each fiscal year. The Executive
Director will publish the fees in the Federal Register.
(ii) Payment of updated fees. The fee applicable to a particular
Freedom of Information Act request will be the fee in effect on the date
that the request is received.
18 CFR 388.110 Procedure for appeal of denial of requests for
Commission records not publicly available or not available through the
Public Reference Room and denial of requests for fee waiver or
reduction.
(a)(1) A person whose request for records or request for fee waiver
or reduction is denied in whole or part may appeal that determination to
the General Counsel or General Counsel's designee within 45 days of the
determination. Appeals filed pursuant to this section must be in
writing, addressed to the General Counsel of the Commission, and clearly
marked ''Freedom of Information Act Appeal.'' Such an appeal received by
the Commission not addressed and marked as indicated in this paragraph
will be so addressed and marked by Commission personnel as soon as it is
properly identified and then will be forwarded to the General Counsel.
Appeals taken pursuant to this paragraph will be considered to be
received upon actual receipt by the General Counsel.
(2) The General Counsel or the General Counsel's designee will make a
determination with respect to any appeal within 20 working days after
the receipt of such appeal. If, on appeal, the denial of the request
for records or fee reduction is in whole or in part upheld, the General
Counsel or the General Counsel's designee will notify the person making
such request of the provisions for judicial review of that
determination.
(b) In unusual circumstances, the time limits prescribed for making
the initial determination pursuant to 388.108 and for deciding an
appeal pursuant to this section may be extended by up to 10 working
days, by the Secretary who will send written notice to the requester
setting forth the reasons for such extension and the date on which a
determination or appeal is expected to be dispatched. Unusual
circumstances means:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the requests;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(3) The need for consultation, which will be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
18 CFR 388.111 Procedures in event of subpoena.
(a)(1) The procedures specified in this section will apply to all
subpoenas directed to Commission employees that relate in any way to the
employees' official duties. These procedures will also apply to
subpoenas directed to former Commission employees if the subpoenas seek
nonpublic materials or information acquired during Commission
employment. The provisions of paragraph (c) of this section will also
apply to subpoenas directed to the Commission.
(2) For purposes of this section,
(i) Employees, except where otherwise specified, includes ''special
government employees'' and other Commission employees; and
(ii) Nonpublic includes any material or information which is exempt
from availability for public inspection and copying;
(iii) Special government employees includes consultants and other
employees as defined by section 202 of Title 18 of the United States
Code.
(iv) Subpoena means any compulsory process in a case or matter,
including a case or matter to which the Commission is not a party;
(b) Any employee who is served with a subpoena must promptly advise
the General Counsel of the Commission of the service of the subpoena,
the nature of the documents or information sought, and all relevant
facts and circumstances. Any former employee who is served with a
subpoena that concerns nonpublic information shall promptly advise the
General Counsel of the Commission of the service of the subpoena, the
nature of the documents or information sought, and all relevant facts
and circumstances.
(c) A party causing a subpoena to be issued to the Commission or any
employee or former employee of the Commission must furnish a statement
to the General Counsel of the Commission. This statement must set forth
the party's interest in the case or matter, the relevance of the desired
testimony or documents, and a discussion of whether the desired
testimony or documents are reasonably available from other sources. If
testimony is desired, the statement must also contain a general summary
of the testimony and a discussion of whether Commission records could be
produced and used in lieu of testimony. Any authorization for testimony
will be limited to the scope of the demand as summarized in such
statement.
(d) Commission records or information which are not part of the
public record will be produced only upon authorization by the
Commission.
(e) The Commission or its designee will consider and act upon
subpoenas under this section with due regard for statutory restrictions,
the Commission's Rules of Practice and Procedure, and the public
interest, taking into account factors such as applicable privileges
including the deliberative process privilege; the need to conserve the
time of employees for conducting official business; the need to avoid
spending the time and money of the United States for private purposes;
the need to maintain impartiality between private litigants in cases
where a substantial government interest is not involved; and the
established legal standards for determining whether justification exists
for the disclosure of confidential information and records.
(f) The Commission authorizes the General Counsel or the General
Counsel's designee to make determinations under this section.
18 CFR 388.112 Requests for privileged treatment of documents submitted
to the Commission.
(a) Scope. Any person submitting a document to the Commission may
request privileged treatment by claiming that some or all of the
information contained in a particular document is exempt from the
mandatory public disclosure requirements of the Freedom of Information
Act, 5 U.S.C. 552, and should otherwise be withheld from public
disclosure.
(b) Procedures. A person claiming that information is privileged
under (a) of this section must file:
(1) For documents submitted in hard copy,
(i) A written statement requesting privileged treatment for some or
all of the information in a document, and the justification for
nondisclosure of the information;
(ii) The original document, boldly indicating on the front page
''Contains Privileged Information -- Do Not Release'' and identifying
within the document the information for which the privileged treatment
is sought;
(iii) Fourteen copies of the document without the information for
which privileged treatment is sought, and with a statement indicating
that information has been removed for privileged treatment;
(iv) The name, title, address, telephone number, and telecopy
information of the person or persons to be contacted regarding the
request for privileged treatment of documents submitted to the
Commission.
(2) For documents submitted on electronic media,
(i) A written statement requesting privileged treatment for some or
all of the information on the electronic media, and the justification
for nondisclosure of the information;
(ii) One copy of a complete filing on the electronic media marked
''Contains Privileged Information -- Do Not Release'' and identifying on
the electornic media only the information for which the privileged
treatment is sought with one paper copy also marked ''Contains
Privileged Information -- Do Not Release'';
(iii) One copy of the electronic media without the information for
which privileged treatment is sought and with a statement that
information has been removed for privileged treatment with fourteen
paper copies without the information for which privileged treatment is
sought; and
(iv) The name, title, address, telephone number and telecopy
information of the person or persons to be contacted regarding the
request for privileged treatment of documents submitted to the
Commission.
(c) Effect of privilege claim. -- (1) For documents filed with the
Commission. (i) The Secretary of the Commission will place documents
for which privileged treatment is sought in accordance with paragraph
(b)(2) of this section in a nonpublic file, while the request for
privileged treatment is pending. By placing documents in a nonpublic
file, the Commission is not making a determination on any claim for
privilege. The Commission retains the right to make determinations with
regard to any claim of privilege, and the discretion to release
information as necessary to carry out its jurisdictional
responsibilities.
(ii) The Secretary of the Commission will place the request for
privileged treatment described in paragraph (b)(1) of this section and a
copy of the original document described in paragraph (b)(3) of this
section in a public file, while the request for privilege treatment is
pending.
(2) For documents submitted to Commission staff. The notification
procedures of paragraphs (d) (e) and (f) of this section will be
followed by staff before making a document public.
(d) Notification of request and opportunity to comment. When a FOIA
requester seeks a document for which privilege is claimed, the
Commission official who will decide whether to make the document public
will notify the person who submitted the document and give the person an
opportunity (at least five days) in which to comment in writing on the
request. A copy of this notice will be sent to the FOIA requester.
(e) Notification before release. Notice of a decision by the
Director of the Division of Public Affairs, the Chairman of the
Commission, the General Counsel or General Counsel's designee, a
presiding officer in a proceeding under part 385 of this chapter, or any
other appropriate official to deny a claim of privilege, in whole or in
part, will be given to any person claiming that information is
privileged no less than five days before public disclosure. The notice
will briefly explain why the person's objections to disclosure are not
sustained by the Commission. A copy of this notice will be sent to the
FOIA requester.
(f) Notification of suit in Federal courts. When a FOIA requester
brings suit to compel disclosure of confidential commercial information,
the Commission will notify the person who submitted documents containing
confidential commercial information of the suit.
(53 FR 15032, Apr. 27, 1988, as amended at Order 448-A, 54 FR 47761,
Nov. 17, 1989)
18 CFR 388.112 PART 389 -- OMB CONTROL NUMBERS FOR COMMISSION
INFORMATION COLLECTION REQUIREMENTS
Authority: 44 U.S.C. 3501-3520.
18 CFR 389.101 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
(a) Purpose. This part collects and displays control numbers
assigned to information collection requirements of the Commission by the
Office of Management and Budget (OMB) pursuant to the Paperwork
Reduction Act of 1980. This part fulfills the requirements of section
3507(f) of the Paperwork Reduction Act, which requires that agencies
display a current control number assigned by the Director of OMB for
each agency information collection requirement.
(b) Display.
(49 FR 12692, Mar. 30, 1984)
Editorial Note: For Federal Register citations affecting 389.101,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
18 CFR 389.101 PARTS 390-399 -- (RESERVED)
18 CFR 389.101 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Chap.
18 CFR 389.101 Table of CFR Titles and Chapters
18 CFR 389.101 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
18 CFR 389.101 Title 2 -- (Reserved)
18 CFR 389.101 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
18 CFR 389.101 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
18 CFR 389.101 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Counsel (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
18 CFR 389.101 Title 6 (Reserved)
18 CFR 389.101 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
XLII Rural Development Administration, Department of Agriculture
(Part 4284 )
18 CFR 389.101 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
18 CFR 389.101 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
18 CFR 389.101 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
18 CFR 389.101 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
18 CFR 389.101 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Thrift Depositor Protection Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
18 CFR 389.101 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
18 CFR 389.101 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
18 CFR 389.101 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
18 CFR 389.101 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
18 CFR 389.101 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
18 CFR 389.101 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
18 CFR 389.101 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
18 CFR 389.101 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
18 CFR 389.101 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
III Office of National Drug Control Policy (Parts 1400 -- 1499)
18 CFR 389.101 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
18 CFR 389.101 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
18 CFR 389.101 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
18 CFR 389.101 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
18 CFR 389.101 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
18 CFR 389.101 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
18 CFR 389.101 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
18 CFR 389.101 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200 -- 1299)
XII Federal Mediation and Conciliation Service (Parts 1400 -- 1499)
XIV Equal Employment Opportunity Commission (Parts 1600 -- 1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
18 CFR 389.101 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
18 CFR 389.101 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
18 CFR 389.101 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200 -- 1299)
XVI Selective Service System (Parts 1600 -- 1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
XXIX Presidential Commission on the Assignment of Women in the Armed
Forces (Part 2900)
18 CFR 389.101 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
18 CFR 389.101 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
18 CFR 389.101 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
18 CFR 389.101 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900 -- 999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
18 CFR 389.101 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400 -- 499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
18 CFR 389.101 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
18 CFR 389.101 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
18 CFR 389.101 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
18 CFR 389.101 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
18 CFR 389.101 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
18 CFR 389.101 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
18 CFR 389.101 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
18 CFR 389.101 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services
(Parts 200 -- 299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Administration for Children and Families, Department of Health
and Human Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Administration for Children and
Families Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Administration for Children and
Families, Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (Parts
2200 -- 2299)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400 --
2499)
XXV Commission on National and Community Service (Parts 2500 -- 2506)
18 CFR 389.101 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
18 CFR 389.101 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
18 CFR 389.101 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
20 Nuclear Regulatory Commission (Parts 2000 -- 2099)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900 -- 9999)
18 CFR 389.101 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Federal Transit Administration, Department of Transportation
(Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
18 CFR 389.101 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
18 CFR 389.101 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Tables of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies
Appearing in the CFR
18 CFR 389.101 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on National and Community Service 45, XXV
Committee for Purchase from People who are Blind or Severely Disabled
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 12, VI
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National and Community Service, Commission on 45, XXV
National Credit Union Administration 12, VII
National Drug Control Policy, Office of 21, III
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I; 48, XX
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Office of National Drug Control Policy 21, III
Office of Navajo and Hopi Indian Relocation 25, IV
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Commission on the Assignment of Women in the Armed
Forces 32, XXIX
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Depositor Protection Oversight Board 12, XV
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Administration 15, XII
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
18 CFR 389.101 18 CFR (4-1-93 Edition)
18 CFR 389.101 List of CFR Sections Affected
18 CFR 389.101 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963 and 1964-1972, and 1973-1985'' published in seven
separate volumes.
18 CFR 389.101 1986
18 CFR
51 FR
Page
Chapter I
282 Order 3583,
6736, 10614, 15762, 19327, 23534, 27406, 30634, 34200, 39520, 42995,
47222
282.203 Petition denied 22068
282.209 Petition denied 22068
284 Authority citation revised 9186
Petitions denied 11566, 11569
284.10 (a)(1) amended 6399
284.106 (f) revised 44284
284.126 (f) revised 44284
284.221 (b)(1) amended 43607
284.223 (e) revised 44284
284.225 Added 22221
Effective date deferred 27018
Petitions denied 27529
Petition granted 28331
(a) amended; (d) revised 46819
284.226 Added 46819
284.244 Introductory text amended 43607
284.261 -- 284.271 (Subpart I) Added; eff. 6-2-86 9187
(Subpart I) Addition effective date changed 11717
292 Rehearing denied 8486
292.204 Petitions denied 2355
292.207 Petitions denied 2355
357 Authority citation revised 35509
357.3 Added 35509
375 Rehearing denied 44049
375.314 Introductory text and (q) introductory text republished;
(q)(1) and (y) revised 24322
Technical correction 25362
Rehearing granted 30478
381.104 Fee schedule 4310
381.109 Amended 43607
381.110 Revised 43607
381.201 Amended 4311
381.202 Amended 4311
381.203 Amended 4311
381.204 Amended 4311
381.205 Amended 4311
381.207 (b) amended 4311
(a) introductory text, (1), and (2) and (b) amended 43607
381.208 Amended 4311
381.209 (b) amended 4311
381.302 (a) amended 4311
381.303 (a) amended 4311
381.304 (a) amended 4311
381.401 Amended 4311
381.403 Amended 4311
381.404 Amended 4311
Corrected 8488
381.405 Amended 4311
381.502 (b) amended 4311
(a) revised 35352
381.503 (b) amended 4311
(a) revised 35352
381.504 (b) amended 4311
381.505 Amended 4311
381.506 Amended 4311
381.507 Amended 4311
381.508 Amended 4311
381.509 Amended 4311
381.510 Amended 4311
389.101 (b) table amended (OMB numbers) 8804
11717, 25999, 32784
18 CFR 389.101 1987
18 CFR
52 FR
Page
Chapter I
282 Order 3114,
5950, 10221, 15715, 19856
Removed 28467
284 Authority citation revised 28467
Rehearing denied 29659
Rehearing granted in part 39630
284.2 Rehearing granted 47914
284.8 (f) added; interim 30352
(f) addition eff. 9-15-87 35539
(f)(6) amended 35540
Rehearing granted 36919
Seminars 37284
Response time extended 39507
(f)(1)(ii), (2), (3), (4) introductory text, and (6) revised 39632
(f)(4)(ii) amended; (f) (8) through (11) added 48992
284.9 (f) added; interim 30353
(f) addition eff. 9-15-87 35539
(f)(6) amended 35540
Rehearing granted 36919, 47914
Seminars 37284
Response time extended 39507
(f)(1)(ii), (2), (3), (4) introductory text, and (6) revised 39632
(f)(4)(ii) amended; (f) (8) through (11) added 48993
284.10 Suspended 27799
Suspension removed; heading and (a) revised; (c) and (d) removed;
(e) and (f) redesignated as (c) and (d); new (c) heading, (2), and
(3)(ii), and (d) (1) and (2) revised; interim (effective date pending)
30354
Rehearing granted 31029,
36919, 47914
Suspension removal and amendments at 52 FR 30354 eff. 11-1-87 35540
Seminars 37284
Response time extended 39507
Suspension removal eff. 1-1-88 39633
284.224 (e)(3) removed; (e) (4), (5), and (6) redesignated as (e)
(3), (4), and (5) 28467
284.225 Rehearing granted 5533
Revised 21678
284.226 Revised 21679
292 Authority citation revised 5280,
28467
292.203 (a) introductory text revised; (c) added; interim 5280
Confirmed 9161
(b) revised 28467
292.205 (c) removed; (d) redesignated as (c) and revised 28467
292.208 Added; interim 5280
Confirmed 9161
292.209 Added; interim 5280
Confirmed 9161
292.501 -- 292.503 (Subpart E) Removed 28467
300.1 (a) revised 20709
300.14 Added 20709
300.21 (c)(2) revised 20709
375 Authority citation revised 5281,
18562, 21292, 43889
375.206 (f)(2) revised 7825
375.306 (j) added 21292
Clarification 23650
Technical correction 24153
Petitions granted 28463
Rehearing granted in part 36013
Rehearing granted 44859
375.307 (a)(18) added 18562
(w) added 21292
Clarification 23650
Technical correction 24153
Petitions granted 28463
(l) removed; (m) through (w) redesignated as (l) through (v) 28467
Rehearing granted in part 36013
(b)(1) amended 43889
Rehearing granted 44859
Effective date suspended 48407
375.308 (v) added 21292
Clarification 23650
Technical correction 24153
Petitions granted 28463
Rehearing granted in part 36013
Rehearing granted 44859
375.314 (hh) added; interim 5281
(ff) added 48406
380 Added (Appendix A redesignated from Part 2 Appendix B and heading
revised) 47910
381 Authority citation revised 10367, 28467
381.201 Amended 10367
381.202 Amended 10367
381.204 Amended 10367
381.205 Amended 10367
Revised 43889
Effective date suspended 48407
381.207 (b) amended 10367
381.208 Amended 10367
381.209 (b) amended 10367
381.302 (a) amended 10367
381.303 (a) amended 10367
381.304 (a) amended 10367
381.401 Amended 10367
Revised 28467
381.402 Amended 10367
381.403 Amended 10367
381.405 Amended 10367
381.505 Amended 10367
381.506 Amended 10367
381.507 Amended 10367
381.508 Amended 10367
381.509 Amended 10367
381.510 Amended 10367
382 Added 21292
Clarification 23650
Technical correction 24153
Petitions granted 28463
Rehearing granted in part 36013
382.102 (a) and (o) revised 36022
Rehearing granted 44859
382.106 (a) revised 36022
Rehearing granted 44859
382.202 Revised 36022
Rehearing granted 44859
385 Authority citation revised 28467, 35909
385.401 -- 385.411 (Subpart D) Added; eff. 4-6-87 6966
Petitions for rehearing granted 16844
385.402 (a) revised 35909
385.403 (b) revised 35909
385.408 (a) and (b)(3) revised 35909
385.410 (c)(6) revised 35910
385.504 (b)(6) revised; eff. 4-6-87 6970
385.604 Removed; eff. 4-6-87 6970
385.1101 (a) revised 28467
385.1905 Removed; eff. 4-6-87 6970
385.1906 Removed; eff. 4-6-87 6970
388.107 (a)(1) amended; (b) revised 7825
388.110 Added 780
389.101 (b) table amended (OMB numbers) 2514,
9161, 18228,24994, 31990, 37931, 43191, 45171, 45823
Rehearing granted 30659
Rehearing denied 39907
18 CFR 389.101 1988
18 CFR
53 FR
Page
Chapter I
284 Interpretative rule 14922
Rehearing granted 20835
Programs availability 30047
Record formats revised 35312, 44004
Software availability 45758
Authority citation revised 50938
284.7 (d)(5)(ii) revised 22163
Rehearing granted 29654
FERC Form No. 592 corrected 34277
Filing time extended 36273
284.8 Hearing 7893
(f)(4)(ii), (9) introductory text, (10)(i) introductory text and (ii)
amended 8440
284.8 Hearing transcript and question availability 15198
Rehearing denied 16859
284.9 Hearing 7893
(f)(4)(ii), (9) introductory text, and (10)(i) introductory text and
(ii) amended 8440
284.9 Hearing transcript and question availability 15198
Rehearing denied 16859
284.10 Hearing 7893
284.10 Rehearing denied 16859
284.221 (b)(1) introductory text revised 15031
Rehearing granted and effective date suspended 16058
Eff. 8-1-88 19283
(b)(1) introductory text amended 30032,
49653
Implementation conference 32891
284.301 -- 284.306 (Subpart K) Added 50938
292 Authority citation revised 15381,
27002, 40724
292.202 (p), (q), and (r) added 27002
Rehearing granted 36272
292.203 (c) revised 27002
Rehearing granted 36272
292.207 (b)(2) revised 15381
292.208 Redesignated as 292.209 and revised; new 292.208 added 27003
Rehearing granted 36272
292.209 Redesignated as 292.210 and revised; new 292.209
redesignated from 292.208 and revised 27003
Rehearing granted 36272
292.210 Redesignated from 292.209 and revised 27003
Rehearing granted 36272
292.211 Added 27004
Rehearing granted 36272
(g)(3)(i) revised 40725
357.2 FERC Form No. 6 amended 40875
375 Rehearing granted 867
Authority citation revised 1472
375 Authority citation revised 15381, 16062
375.301 (c) amended 16062
375.302 (b) and (e) revised; (g), (h) and (q) through (t)
redesignated as (f), (g) and (p) through (s); new (f) and (g) revised;
new (h) and (m) added 16062
375.303 (f) and (g) revised; (h) and (i) added 16062
375.304 Revised 16063
375.306 Rehearing granted 1748
375.307 Rehearing granted 867, 1748
Technical conference 2826
375.307 Revised 16063
375.308 Rehearing granted 1748
375.308 (m) revised 15382
Revised 16064
(e)(2) correctly revised 21992
375.309 (f) revised 15382
375.310 Added 16065
375.313 (b) revised 1472
375.313 (e) through (h) added 16065
375.314 (gg) revised 15382
Revised 16065
(c)(8)(ii) correctly revised 21992
(r) added 27005
380 Rehearing granted 3584
Authority citation revised 8177
380.4 (a)(15) revised; (a)(31) added 8177
380.4 (a)(31) removed 26437
380.5 (a) correctly designated 4817
(b)(1) revised 8177
380.5 (b)(1) revised 26437
380.6 (a)(1) revised 8177
380.6 (a)(1) revised 26437
381 Rehearing granted 867
Authority citation revised 1472
381 Rehearing denied 24057
381.104 (c) revised 15382
381.201 Amended 15384
381.202 Amended 15384
381.203 Amended 15384
381.204 Amended 15384
Revised; interim 44185
381.205 Rehearing granted 867
Technical conference 2826
381.205 (a), (b), (c), and (d) amended 15384
Revised; interim 44186
381.207 (b) amended 15384
381.208 Revised 15382
(b) correctly revised 21993
381.209 (b) amended 15384
381.301 Revised 1473
381.301 Amended 15384
381.302 (a) revised 15382
381.303 (a) amended 15384
381.304 (a) amended 15384
381.305 Added 15382
382 Rehearing granted 1748
388 Revised 1473
389.101 (b) table amended (OMB numbers) 1751,
2225, 3364
(b) table OMB numbers confirmed 2593, 7354
Technical correction 5156
18 CFR 389.101 1989
18 CFR
54 FR
Page
Chapter I
284 Software availability 602, 8301
Implementation conference; record formats amended 809
Rehearing granted 5219
Record formats revisions and corrections 8729
284 Record formats revised 13670, 21200, 25107
Print software availability; record formats revised 37303
Authority citation revised 52394
284.8 Regulation at 52 FR 30352 confirmed; (f)(1) introductory text
and (4)(ii) revised 52394
284.9 Regulation at 52 FR 30353 confirmed; (f)(1) introductory text
and (4)(ii) revised 52394
284.10 (d)(1) revised; (d)(2) amended 52395
284.302 (b) revised 8313
284.304 (a) introductory text and (b)(1) amended; (a)(4) revised
8313
284.305 (a) and (d)(2) revised; (f) removed 8313
294 Heading revised 41087
294.101 Note removed 41087
357.2 FERC Form No. 6 amended (OMB number) 8529
380.4 (b) correctly republished 48741
381.201 Amended; eff. 4-28-89 12901
381.202 Amended; eff. 4-28-89 12901
381.203 Amended; eff. 4-28-89 12901
381.204 Revised 5427
(a) and (b) amended; eff. 4-28-89 12901
381.205 Revised 5427
(a) (1) through (4) and (b) (1) through (4) amended; eff. 4-28-89
12901
381.207 (b) amended; eff. 4-28-89 12901
381.208 (b) amended; eff. 4-28-89 12901
381.209 (b) amended; eff. 4-28-89 12901
381.301 Amended; eff. 4-28-89 12901
381.302 (a) amended; eff. 4-28-89 12901
381.303 (a) amended; eff. 4-28-89 12901
381.304 (a) amended; eff. 4-28-89 12901
381.305 (a) amended; eff. 4-28-89 12901
381.401 Amended; eff. 4-28-89 12901
381.402 Amended; eff. 4-28-89 12901
381.403 Amended; eff. 4-28-89 12901
381.404 Amended; eff. 4-28-89 12901
381.502 (a) amended; eff. 4-28-89 12901
381.505 (a) amended; eff. 4-28-89 12901
381.506 Amended; eff. 4-28-89 12901
381.507 Amended; eff. 4-28-89 12901
381.508 Amended; eff. 4-28-89 12901
381.509 Amended; eff. 4-28-89 12901
381.510 Amended; eff. 4-28-89 12901
381.601 Amended; eff. 4-28-89 12901
385 Software availability 602, 8301
Implementation conference; record formats amended 809
Record formats revisions and corrections 8729
385 Record formats revised 13670, 21200, 25107
Print software availability; record formats revised 37303
385.2011 (b) (1) and (2) revised 21199
388 Software availability 602, 8301
Implementation conference; record formats amended 809
Record formats revisions and corrections 8729
388 Record formats revised 13670, 21200, 25107
Print software availability; record formats revised 37303
388.112 (c)(1)(i) amended 47761
18 CFR 389.101 1990
18 CFR
55 FR
Page
Chapter I
284 Authority citation revised 6631
Record formats revised 1174
Rehearing denial and clarification 47457
Rehearing clarification and petition for stay 47463
284.7 (a) and (b)(1) amended 12169
284.8 (f)(4)(ii)(C) amended 6631
(a)(1), (b), (d), and (e) amended 12169
284.9 (a)(1), (b), and (e) amended 12169
(f)(4)(ii)(C) amended 6631
284.11 Amended 12169
Revised; interim 33015
284.13 (a) introductory text amended 12169
284.102 (a) introductory text revised; (d) and (e) added; interim
33011
(e) revised 40829
284.223 (b), (d), and (f) revised; (h) added; interim 33011
(h)(1)(ii) revised 40830
284.241 -- 284.246 (Subpart H) Removed 12169
284.262 (a)(2) amended 12169
381 Authority citation revised 12171, 25092
381.104 (c) revised; interim 12171
Regulation at 55 FR 12171 confirmed 25093
381.201 Amended 13901
381.202 Amended 13901
381.203 Amended 13901
381.204 (a) and (b) amended 13901
381.205 (a)(1) through (4) and (b)(1) through (4) amended 13901
381.207 (b) amended 13901
381.208 (a) amended 13901
381.209 (b) amended 13901
381.301 Amended 13901
381.302 (a) amended 13901
381.303 (a) amended 13901
381.304 (a) amended 13901
381.305 (a) amended 13901
381.401 Amended 13901
381.403 Amended 13901
381.404 Amended 13901
381.502 (a) amended 13901
Revised 42002
381.505 (a) amended 13901
381.506 Amended 13901
381.507 Amended 13901
381.508 Amended 13901
381.509 Amended 13901
381.510 Amended 13901
381.601 Amended 13901
382 Authority citation revised 47321
382.102 (k) and (n) revised 47321
382.201 (b)(1) and (2), (4)(i)(A), (B), and (ii) revised 47321
385 Record formats revised 1174
Authority citation revised 50682
385.1902 Revised 50682
388 Record formats revised 1174
389 Authority citation revised 34708
389.101 (b) table amended; OMB numbers; interim 34708, 34709
18 CFR 389.101 1991
18 CFR
56 FR
Page
Chapter I
284 Authority citation revised 14851
Rehearing denied 30692
Technical correction 56544
Technical conference 57255, 63648, 65990
284.3 (c) revised 52397
Regulation at 56 FR 52397 effective date delayed 58845
284.8 (f) removed 14851
284.9 (f) removed 14851
284.11 (a) amended; (b) revised 52397
Regulation at 56 FR 52397 effective date delayed 58845
284.102 (d) and (e) revised 50245
284.122 (a) introductory text revised; (d) and (e) added 50245
284.221 (d) suspended in part 6964
284.223 (b) and (c) are removed; (d) through (h) redesignated as (b)
through (f); (a) and new (d)(1)(vi) revised; (d)(2), (3) and (4) added
50245
284.227 Added 50246
375 Authority citation revised 23154, 52397
Technical correction 56544
Technical conference 57255, 65990
375.307 (a)(1), (4), (5) and (6) amended; (e)(1) revised; (e)(8)
through (11) added 52397
Regulation at 56 FR 52397 effective date delayed 58845
375.314 (s) and (t) added 23154
380 Authority citation revised 23154, 52397
Technical correction 56544
Technical conference 57255, 63648, 65990
380.3 (b)(3) and (c)(1) amended 23155
(c)(2) revised 52398
Regulation at 56 FR 52398 effective date delayed 58845
380.4 (a)(21) and (27) revised; (a)(31) through (37) added 52398
Regulation at 56 FR 52398 effective date delayed 58845
380.5 (b)(2) removed; (b)(3) through (13) redesignated as (b)(2)
through (12); new (b)(2) and (3) revised 52398
Regulation at 56 FR 52398 effective date delayed 58845
380.6 (a)(3) amended 52398
Regulation at 56 FR 52398 effective date delayed 58845
380.9 (b) amended 52398
Regulation at 56 FR 52398 effective date delayed 58845
380.12 Added 52398
Regulation at 56 FR 52398 effective date delayed 58845
380.13 Added 52404
Regulation at 56 FR 52404 effective date delayed 58845
380.14 Added 52407
Regulation at 56 FR 52407 effective date delayed 58845
380 Appendix A removed 52409
Removal at 56 FR 52409 effective date delayed 58845
381 Authority citation revised 3033, 15497
Rehearing denied 58498
381.201 Amended 15497
381.202 Amended 15497
381.203 Amended 15497
381.204 (a) and (b) amended 15497
381.205 (a)(1) through (4) and (b)(1) through (4) amended 15497
381.207 (b) amended 15497
381.208 (a) amended 15497
381.209 (b) amended 15497
381.301 Amended 15497
381.302 (a) amended 15497
381.303 (a) amended 15497
381.305 (a) amended 15497
381.401 Amended 15497
381.402 Amended 15497
381.403 Amended 15497
381.404 Amended 15497
381.502 (g) added 3033
381.505 Amended 15497
381.506 Amended 15497
381.507 Amended 15497
381.508 Amended 15498
381.509 Amended 15498
381.510 Amended 15498
381.601 Amended 15498
382 Authority citation revised 63408
382.201 (c) correctly revised 1912
(b)(4)(ii) amended 63408
385.1902 Rehearing denied 4719
18 CFR 389.101 1992
18 CFR
57 FR
Page
Chapter I
281 Authority citation revised 21894
281.101 -- 281.111 (Subpart A) Removed 21894
284 Authority citation revised 36217, 46495, 46501, 57959
Order on rehearing 38590
Order denying rehearing 57911
Technical conference; questions 794
284.1 (a) revised; (c) added 13315
284.8 (a)(1) and (d) revised; (a)(4) and (b)(2) through (5) added;
(b) amended 13315
284.9 (a)(1) revised; (b) amended; (b)(2) through (5) added 13315
284.11 Revised 46495
284.12 Amended 13315
284.14 Added 13315
(b)(3)(iii) redesignated as (b)(3)(v); new (b)(3)(iii) and (iv)
added; (e) revised 36217
284.106 (a) introductory text, (c) introductory text and (d)
introductory text amended; (g) added 13317
284.122 (d)(2) amended 46501
284.126 (a), (c), (d) and (g) added 13317
284.221 (d) revised 13317
(d)(2) introductory text and (ii) amended 36217
284.223 (d)(1) introductory text, (3) introductory text and (4)
introductory text amended; (d)(5) added 13318
284.227 (a) revised 46501
284.241 -- 284.243 (Subpart H) Added 13318
284.242 Amended 36217
284.243 (c) and (d) revised; (h) added 36217
284.281 -- 284.288 (Subpart J) Added 13318
284.282 (d) added 36218
284.284 (e) added 36218
284.401 -- 284.402 (Subpart L) Added 57959
290 Authority citation revised 53991
290.102 Revised 53991
290.103 Introductory text, (a), (b) and (c)(1) revised; (c)(2)
removed; (c)(3) redesignated as (c)(2) and revised 53991
290.104 Removed 53991
290.105 Removed 53991
290.201 -- 290.205 (Subpart B) Removed 53991
290.301 -- 290.308 (Subpart C) Removed 53991
290.401 -- 290.406 (Subpart D) Removed 53991
290.501 -- 290.502 (Subpart E) Removed 53991
290.601 -- 290.603 (Subpart F) Removed 53991
290.701 (Subpart G) Removed 53991
290 Appendix A Revised 53991
292 Authority citation revised 21734
Rehearing denied 59289
292.203 (c)(1) amended; (c)(2) removed 21734
292.401 Removed; new 292.401 redesignated from 292.402 21734
292.402 Redesignated as 292.401; new 292.402 redesignated from
292.403 21734
292.403 Redesignated as 292.402 21734
300 Authority citation revised 21734
Rehearing denied 59289
300.10 (d)(2), (4), (f)(2)(i) and (vi) removed; (d)(3), (5), (6) and
(f)(2)(ii) through (v) redesignated as (d)(2) through (4) and (f)(2)(i)
through (iv) 21734
375 Authority citation revised 21894
Technical conference; questions 794
375.307 (a)(13) removed 21894
(f)(5) added 55087
380 Technical conference; questions 794
381 Authority citation revised 15225
381.201 Amended 15225
381.202 Amended 15225
381.203 Amended 15225
381.204 (a) and (b) amended 15225
381.205 (a)(1) through (4) and (b)(1) through (4) amended 15225
381.207 (b) amended 15225
381.208 (a) amended 15225
381.209 (b) amended 15225
381.301 Amended 15225
381.302 (a) amended 15225
381.303 (a) amended 15225
381.305 (a) amended 15226
381.401 Amended 15226
381.403 Amended 15226
381.404 Amended 15226
381.502 (c)(2)(i), (ii), (d)(2)(i), (ii), (e)(2)(i), (ii), (f)(2)(i)
and (ii) amended 15226
381.505 (a) amended 15226
381.507 Amended 15226
381.508 Amended 15226
381.509 Amended 15226
381.510 Amended 15226
381.601 Amended 15226
385 Authority citation revised 21734
Rehearing denied 59289
385.602 (c)(1)(iv) removed 21734
18 CFR 389.101 1993
18 CFR
58 FR
Page
Chapter I
284 Clarification 5595
Rehearing denied 15087
284.3 Regulation at 56 FR 52397 withdrawn 15418
284.11 Regulation at 56 FR 52397 withdrawn 15418
346 Removed 2975
365 (Subchapter T) Added 8906
365 Technical correction 11886
375.307 Regulation at 56 FR 52397 withdrawn 15418
380 Authority citation regulation at 56 FR 52409 withdrawn 15418
380.3 Regulation at 56 FR 52398 withdrawn 15418
380.4 Regulation at 56 FR 52398 withdrawn 15418
380.5 Regulation at 56 FR 52398 withdrawn 15418
380.6 Regulation at 56 FR 52398 withdrawn 15418
380.9 Regulation at 56 FR 52398 withdrawn 15418
380.12 Regulation at 56 FR 52398 withdrawn 15418
380.13 Regulation at 56 FR 52404 withdrawn 15418
380.14 Regulation at 56 FR 52407 withdrawn 15418
380 App. A regulation at 56 FR 52407 withdrawn 15418
381 Authority citation revised 2975
Rehearing denied 7488
Technical correction 11886
381.104 (c) revised 2975
381.107 (a) revised 2975
381.201 Removed 2975
381.202 Removed 2975
381.203 Removed 2975
381.204 Removed 2975
381.205 Removed 2975
381.206 Removed 2975
381.207 (a) and (b) revised 2975
381.208 Removed 2975
381.209 Removed 2975
381.301 Removed 2975
381.401 Removed 2975
381.404 Revised 2975
381.405 Removed 2975
381.502 Removed 2975
381.503 Removed 2975
381.504 Removed 2975
381.506 Removed 2975
381.507 Removed 2975
381.508 Removed 2975
381.509 Removed 2975
381.510 Removed 2975
381.511 Removed 2975
381.512 Removed 2975
381.801 (Subpart H) Added 8907
385 Authority citation revised 7987
385.2011 (d)(1) designation and (d)(2) added 7987
18
Conservation of Power and Water Resources
PARTS 280 TO 399
Revised as of April 1, 1993
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF APRIL 1, 1993
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
Washington, DC 20402-9328
18 CFR 389.101 Table of Contents
Page
Explanation v
Title 18:
Chapter I -- Federal Energy Regulatory Commission, Department of
Energy (Continued)
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
18 CFR 389.101 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 1993), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-512-1557). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
April 1, 1993.
18 CFR 389.101 THIS TITLE
Title 18 -- Conservation of Power and Water Resources is composed of
four volumes. The first three volumes, parts 1 to 149, parts 150 to
279, and parts 280 to 399 contain chapter I, the current regulations of
the Federal Energy Regulatory Commission, Department of Energy. The
fourth volume, containing part 400 to end, includes all current
regulations issued by the Delaware River Basin Commission, the Water
Resources Council, the Susquehanna River Basin Commission, and the
Tennessee Valley Authority as of April 1, 1993.
The OMB control numbers for the Federal Energy Regulatory Commission,
Department of Energy, appear in 389.101 of chapter I. For the
convenience of the user, 389.101 is reprinted in the Finding Aids
section of the first and second volumes.
For this volume, S. Meyer was Chief Editor. The Code of Federal
Regulation publication program is under the direction of Richard L.
Claypoole, assisted by Alomha S. Morris.
18 CFR 0.0 18 CFR Ch. III (4-1-93 Edition)
18 CFR 0.0 Delaware River Basin Commission
18 CFR 0.0 Title 18 -- Conservation of Power and Water Resources
18 CFR 0.0 (This book contains part 400 to End)
Part
chapter iii -- Delaware River Basin Commission 401
chapter vi -- Water Resources Council 701
chapter viii -- Susquehanna River Basin Commission 801
chapter xiii -- Tennessee Valley Authority 1300
Cross References: Applications and entries conflicting with lands
reserved or classified as power sites, or covered by power applications:
See Public Lands, Interior, 43 CFR part 2300, subpart 2320.
Interstate Commerce Commission: See Transportation, 49 CFR chapter
X.
Irrigation projects; electrification, Bureau of Indian Affairs,
Department of the Interior: See Indians, 25 CFR parts 175 -- 177.
Regulations of the Bureau of Land Management relating to
rights-of-way for power, telephone, and telegraph purposes: See Public
Lands, Interior, 43 CFR part 2800.
Rights-of-way over Indian lands: See Indians, 25 CFR parts 169, 170,
and 265.
Securities and Exchange Commission: See Commodity and Securities
Exchanges, 17 CFR chapter II.
Withdrawal of public lands: See Public Lands, Interior, 43 CFR part
2300.
18 CFR 0.0 18 CFR Ch. III (4-1-93 Edition)
18 CFR 0.0 Delaware River Basin Commission
18 CFR 0.0 CHAPTER III -- DELAWARE RIVER BASIN
18 CFR 0.0 COMMISSION
18 CFR 0.0 SUBCHAPTER A -- ADMINISTRATIVE MANUAL
Part
Page
401 Rules of practice and procedure
410 Basin regulations; water code and administrative manual -- Part
III water quality regulations
415 Basin regulations -- flood plain regulations
420 Basin regulations -- water supply charges
18 CFR 0.0
18 CFR 0.0 SUBCHAPTER B -- SPECIAL REGULATIONS
430 Ground water protection area: Pennsylvania
18 CFR 0.0
18 CFR 0.0 18 CFR Ch. III (4-1-93 Edition)
18 CFR 0.0 Delaware River Basin Commission
18 CFR 0.0 SUBCHAPTER A -- ADMINISTRATIVE MANUAL
18 CFR 0.0 PART 401 -- RULES OF PRACTICE AND PROCEDURE
Sec.
401.0 Introduction.
18 CFR 0.0 Subpart A -- Comprehensive Plan
401.1 Scope.
401.2 Concept of the Plan.
401.3 Other agencies.
401.4 Amendments and revisions.
401.5 Review of proposal.
401.6 Further action.
401.7 Public projects under Article 11 of the Compact.
401.8 Custody and availability.
18 CFR 0.0 Subpart B -- Water Resources Program
401.21 Scope.
401.22 Concept of the Program.
401.23 Procedure.
401.24 Preparation and adoption.
401.25 Alternatives for public projects.
401.26 Inventory of other projects.
18 CFR 0.0 Subpart C -- Project Review Under Section 3.8 of the
Compact
401.31 Scope.
401.32 Concept of 3.8.
401.33 Administrative agreements.
401.34 Submission of project required.
401.35 Classification of projects for review under section 3.8 of the
Compact.
401.36 Water pollution control projects -- regional requirements.
401.37 Siting studies for major electric generation projects.
401.38 Water supply projects -- conservation requirements.
401.39 Sequence of approval.
401.40 Form of referral by State or Federal agency.
401.41 Form of submission of projects not requiring prior approval by
State or Federal agencies.
401.42 Preliminary action; informal conference; emergencies.
401.43 Hearings.
401.44 Objections.
401.45 Limitation of approval.
401.46 Certificate of compliance.
18 CFR 0.0 Subpart D -- Preparation and Processing of Environmental
Impact Statements
401.51 Scope.
401.52 Actions requiring an environmental report.
401.53 Applicant's environmental report.
401.54 Environmental assessment.
401.55 Negative declaration.
401.56 Actions requiring an environmental impact statement.
401.57 Lead agency.
401.58 Early notice.
401.59 Pre-draft consultation with appropriate agencies.
401.60 Draft environmental impact statement.
401.61 Processing the draft environmental impact statement.
401.62 Final environmental impact statement.
401.63 Public availability of statements.
401.64 Earliest date for Commission action.
401.65 Emergency circumstances.
401.66 Adequacy of draft and final environmental impact statements.
401.67 Procedure for commenting upon environmental impact statements.
18 CFR 0.0 Subpart E -- Review in Water Quality Cases
401.71 Scope.
401.72 Notice and request for hearing.
401.73 Form of request.
401.74 Report.
401.75 Form and contents of report.
401.76 Protection of trade secrets; confidential information.
401.77 Failure to furnish report.
401.78 Informal conference.
401.79 Consolidation of hearings.
18 CFR 0.0 Subpart F -- Conduct of Hearings
401.81 Hearings generally.
401.82 Hearing officer.
401.83 Hearing procedure.
401.84 Staff and other expert testimony.
401.85 Record of proceedings.
401.86 Assessment of costs.
401.87 Findings and report.
401.88 Action by the Commission.
18 CFR 0.0 Subpart G -- Penalties and Settlements in Lieu of Penalties
401.91 Scope of subpart.
401.92 Notice to possible violators.
401.93 The record for decision-making.
401.94 Adjudicatory hearings.
401.95 Assessment of a penalty.
401.96 Factors to be applied in fixing penalty amount.
401.97 Enforcement of penalties.
401.98 Settlement by agreement in lieu of penalty.
401.99 Suspension or modification of penalty.
18 CFR 0.0 Subpart H -- Public Access to Records and Information
401.101 Policy on disclosure of Commission records.
401.102 Partial disclosure of records.
401.103 Request for existing records.
401.104 Preparation of new records.
401.105 Indexes of certain records.
401.106 FOIA Officer.
401.107 Permanent file of requests for Commission records.
401.108 Filing a request for records.
401.109 Time limitations.
401.110 Fees.
401.111 Waiver of fees.
401.112 Exempt information.
401.113 Segregable materials.
401.114 Data and information previously disclosed to the public.
401.115 Directionary disclosure by the Executive Director.
401.116 Disclosure to consultants, advisory committees, State and
local government officials, and other special government employees.
401.117 Disclosure to other Federal government departments and
agencies.
401.118 Disclosure in administrative or court proceedings.
401.119 Disclosure to Congress.
18 CFR 0.0 Subpart I -- General Provisions
401.121 Definitions.
401.122 Supplementary details.
401.123 Waiver of rules.
401.124 Construction.
Authority: Delaware River Basin Compact (75 Stat. 688), unless
otherwise noted.
Source: 39 FR 25474, July 11, 1974, unless otherwise noted.
18 CFR 401.0 Introduction.
(a) The regulations in this part govern the process whereby the
Commission will include projects in the Comprehensive Plan and extend
them into an annual Water Resources Program. Also set forth herein are
the procedures and definitions that the Commission will use in screening
projects proposed by others to test their compatibility with the
Comprehensive Plan. An interrelationship among these three requirements
is apparent in the Delaware River Basin Compact.
(b) Article 13 of the Compact calls for the adoption of the
Comprehensive Plan and Water Resources Program. These documents are
defined as follows:
(1) Comprehensive Plan. A plan that includes all public and private
projects and facilities which are required in the judgment of the
Commission for optimum planning, development, conservation, use,
management, and control of the water resources of the Delaware Basin to
meet present and future needs. The Comprehensive Plan is dynamic and
will be periodically revised.
(2) Water Resources Program. An annual presentation, based upon the
Comprehensive Plan, of the quantity and quality of water resources needs
of the area to be served during the ensuing six years or for such
reasonably foreseeable period as the Commission may determine, balanced
by existing and proposed projects required to satisfy such needs,
including all public and private projects to be anticipated, together
with a separate statement of the projects proposed to be undertaken by
the Commission during such period.
(c) To protect the integrity of the Comprehensive Plan and avoid
conflicts of jurisdiction, the Compact provides generally, in Article
11, for cooperative planning of all public projects, and more
specifically, in section 3.8 of the Compact, confers certain regulatory
authority upon the Commission. Section 3.8 provides for a review of
water resources projects to determine two matters: First, whether the
project will have ''a substantial effect on the water resources of the
basin;'' and secondly, whether a project having such an effect would
''substantially impair or conflict with the Comprehensive Plan.'' The
basic concept is thus both comprehensive and integrated planning and
development.
(d) A project may enter the Comprehensive Plan in the discretion of
the Commission whenever the project is ready for such action, both on
its own merits and in relation to other projects which are part of the
Plan. Subpart A of this part develops the concept of the Comprehensive
Plan and the procedure to be followed for inclusion of new projects or
modification of existing ones. The Water Resources Program represents a
selection of projects by the Commission taken from the Comprehensive
Plan. These are projects which the Commission recommends for action
during the ensuing six-year period. Procedures that the Commission will
follow in developing the Water Resources Program are contained in
Subpart B of this part.
(e) The regulatory power of the Commission under section 3.8 of the
Compact extends to all public and private projects. However, since the
Compact also provides for cooperative planning of public projects
(Article 11), a special procedure to accelerate Commission approval of
such projects is provided as part of the process of adoption of a Water
Resources Program. As set forth in Subpart C of this part, the sponsor
of a public project has a choice of routes for Commission approval:
Where advance approval is necessary or desirable, the sponsor may secure
approval through the process of project inclusion in the Water Resources
Program; and this is an opportunity that will be available at a
specified time each year. Where the sponsor may for any reason prefer
the alternate course, the public project may be submitted for review
under section 3.8 of the Compact. In brief, approval of a public
project as ready for action within the Water Resources Program will have
the effect of approval for purposes of section 3.8, but omission of a
project from the Water Resources Program still leaves the door open for
the project sponsor to proceed under section 3.8. Finally, under the
regulations in this part private projects are required to proceed under
section 3.8.
18 CFR 401.0 Subpart A -- Comprehensive Plan
18 CFR 401.1 Scope.
This subpart shall govern the submission, consideration and inclusion
of projects into the Comprehensive Plan.
18 CFR 401.2 Concept of the Plan.
(a) The Comprehensive Plan, as required in section 13.1 of the
Compact, will provide for the immediate and long-range development and
use of the water resources of the basin. The Plan will include all
public and private projects and facilities which are required, in the
judgment of the Commission, for the optimum planning, development,
conservation, use, management and control of the water resources of the
basin, in light of present and foreseeable future needs. It will
consist of statements of policy, criteria and standards, as well as the
principal physical projects, objectives and programs that will be
involved in the development of the river basin.
(b) The Plan will be a body of documents expressing a systematic set
of policies and programs for the future, and the means for carrying them
out. It will be expressed through narrative text, maps, charts,
schedules, budgets and other means.
(c) From time to time specific projects and facilities and programs
may be incorporated, deleted, or modified to reflect changing
conditions, research results and new technology. At any given time the
degree of detail describing particular projects will vary depending upon
the state of their development.
18 CFR 401.3 Other agencies.
For the purposes of avoiding conflicts of jurisdiction and of giving
full effect to the Commission as a regional agency of the signatory
parties to the Compact, Federal, State and local agencies shall follow
the requirements of Article 11 of the Compact.
Note: As to Federal agencies, the Compact provides: ''No
expenditure or commitment shall be made for or on account of the
construction, acquisition or operation of any project or facility nor
shall it be deemed authorized, unless it shall have first been included
by the Commission in the Comprehensive Plan.''
As to State and local agencies, the Compact provides: ''No
expenditure or commitment shall be made for or on account of the
construction, acquisition or operation of any project or facility unless
it shall have first been included by the Commission in the Comprehensive
Plan.''
As to Federal, State and local agencies, the Compact provides: ''The
planning of all projects related to powers delegated to the Commission
by this Compact shall be undertaken in consultation with the Commission
* * *'' Each * * * ''agency otherwise authorized by law to plan, design,
construct, operate or maintain any project or facility in or for the
basin shall continue to have, exercise and discharge such authority
except as specifically provided by this section.''
18 CFR 401.4 Amendments and revisions.
The Comprehensive Plan will be open, upon application of any
interested party, for review and inclusion of new projects and for
deletion or alteration of previously included projects. To this end,
the Commission will receive and consider proposals for changes and
additions to the Comprehensive Plan which may be submitted by any agency
of the signatory parties, or any interested person, organization or
group. Any such proposal shall be submitted in such form as may be
required by the Executive Director to facilitate consideration by the
Commission and shall include at least the following information:
(a) Purpose or purposes, including quantitative measures of physical
benefits anticipated from the proposal.
(b) Approximate location, dimensions (if a structural project) and
land area required.
(c) Draft or description of a proposed standard, policy or other
non-structural measure.
(d) Forecast of the cost (if structural) or effect on the utilization
of water resources (if a non-structural measure).
(e) Relation to other parts of the existing Comprehensive Plan.
(f) A description of the construction procedures to be followed in
excavating, backfilling, retention of sediment, reseeding and
landscaping, all with particular reference to minimizing soil erosion
and sedimentation in the stream.
18 CFR 401.5 Review of proposal.
Following staff study, examination and review of each proposal, the
Commission will take such action on the proposal as may be appropriate,
and will hold such public hearings thereon as are required by the
Compact.
18 CFR 401.6 Further action.
The Commission will review the Comprehensive Plan in its entirety at
least once every six years from the date of the initial adoption of the
Comprehensive Plan (Phase I, March 28, 1962). The amendments, additions
and deletions will be compiled and the Plan as so revised will be
republished annually.
18 CFR 401.7 Public projects under Article 11 of the Compact.
(a) After a project of any Federal, State or local agency has been
included in the Comprehensive Plan, no further action will be required
by the Commission or by the agency to satisfy the requirements of
Article 11 of the Compact, except as the Comprehensive Plan may be
amended or revised pursuant to the Compact and these regulations. Any
project which is changed substantially from the project as described in
the Comprehensive Plan will be deemed to be a new and different project
for the purposes of Article 11 of the Compact. Whenever a change is
made the sponsor shall advise the Executive Director who will determine
whether the change is deemed substantial within the meaning of the
regulations in this part.
(b) Any project not having a substantial effect on the water
resources of the basin, as defined in Subpart C of this part, may
proceed without reference to Article 11 of the Compact.
18 CFR 401.8 Custody and availability.
The Comprehensive Plan shall be and remain in the custody of the
Executive Director. The Plan, including all maps, charts, descriptions
and supporting data shall be and remain a public record open to
examination during the regular business hours of the Commission, under
such safeguards as the Executive Director may determine to be necessary
to preserve and protect the Plan against loss, damage or destruction.
Copies of the Comprehensive Plan or any part or parts thereof shall be
made available by the Executive Director for public sale at a price
covering the cost of production and distribution.
18 CFR 401.8 Subpart B -- Water Resources Program
18 CFR 401.21 Scope.
This subpart shall govern the submission, consideration and inclusion
of projects into the Water Resources Program.
18 CFR 401.22 Concept of the Program.
The Water Resources Program, as defined and described in section 13.2
of the Compact, will be a reasonably detailed amplification of that part
of the Comprehensive Plan which the Commission recommends for action
within the ensuing six-year period. That part of the Program consisting
of a presentation of the water resources needs of the basin will be
revised only at such intervals as may be indicated to reflect new
findings and conclusions, based upon the Commission's continuing
planning programs.
18 CFR 401.23 Procedure.
Each project included in the Water Resources Program shall have been
previously included in the Comprehensive Plan, except that a project may
be added to both the Plan and the Program by concurrent action of the
Commission. The project's sponsor shall furnish the following
information prior to the inclusion of the project in the Water Resources
Program:
(a) The Comprehensive Plan data brought up-to-date for the period of
the Water Resources Program.
(b) Specific location and dimension of a structural project, and
specific language of a standard, policy or other non-structural
proposal.
(c) The plan of operation of a structural project.
(d) The specific effects of a non-structural project.
(e) Sufficient data to indicate a workable financial plan under which
the project will be carried out.
(f) A timetable for implementation.
18 CFR 401.24 Preparation and adoption.
The Water Resources Program will be prepared and considered by the
Commission for adoption annually. Projects required to satisfy the
basin needs during the period covered by the Program may be classified
as follows:
(a) ''A'' list. This shall include public projects which require no
further review, and inclusion in such list shall be deemed to be
approved for the purposes of section 3.8 of the Compact.
(b) ''B'' list. This shall include public projects not included in
the ''A'' list and privately sponsored projects which are proposed or
anticipated by the Commission.
18 CFR 401.25 Alternatives for public projects.
Any publc project which has been included in the Comprehensive Plan
but is not on the ''A'' list of the current Water Resources Program, at
the option of the sponsor, may be submitted for review and approval
under section 3.8 of the Compact in accordance with Subpart C of this
part.
18 CFR 401.26 Inventory of other projects.
Each Water Resources Program will include, for information purposes
only, an inventory of projects approved during the previous year
pursuant to section 3.8 of the Compact but which are not part of the
Comprehensive Plan or Water Resources Program.
18 CFR 401.26 Subpart C -- Project Review Under Section 3.8 of the Compact
18 CFR 401.31 Scope.
This subpart shall govern the submission and review of projects under
section 3.8 of the Delaware River Basin Compact.
18 CFR 401.32 Concept of 3.8.
Section 3.8 is intended to protect and preserve the integrity of the
Comprehensive Plan. This section of the Compact provides:
No project having a substantial effect on the water resources of the
basin shall hereafter be undertaken by any person, corporation or
governmental authority unless it shall have been first submitted to and
approved by the Commission, subject to the provisions of sections 3.3
and 3.5. The Commission shall approve a project whenever it finds and
determines that such project would not substantially impair or conflict
with the Comprehensive Plan and may modify and approve as modified, or
may disapprove any such project whenever it finds and determines that
the project would substantially impair or conflict with such Plan. The
Commission shall provide by regulation for the procedure of submission,
review and consideration of projects, and for its determinations
pursuant to this section. Any determination of the Commission hereunder
shall be subject to judicial review in any court of competent
jurisdiction.
18 CFR 401.33 Administrative agreements.
The Executive Director is authorized and directed to enter into
cooperative Administrative Agreements with Federal and State regulatory
agencies concerned with the review of projects under Federal or State
law as follows:
(a) To facilitate the submission and review of applications and the
determinations required under section 3.8 of the Compact.
(b) To avoid unnecessary duplication of staff functions and hearings
required by law.
(c) For such other and different purposes as he may deem feasible and
advantageous for the administration of the Compact or any other law.
(d) Provided that any such Administrative Agreement shall be
effective solely for purposes of intergovernmental cooperation and the
failure of any applicant to comply with the provisions of any such
agreement shall not prejudice his application or the consideration
thereof.
18 CFR 401.34 Submission of project required.
Any project which may have a substantial effect on the water
resources of the basin, except as provided in paragraph (d) of this
section, shall be submitted to the Commission for a determination as to
whether the project will have a substantial effect on the water
resources of the basin and, if so, whether the project impairs or
conflicts with the Comprehensive Plan, as follows:
(a) Where the project is subject to review by a State or Federal
agency which has entered into an Administrative Agreement with the
Commission, such project will be referred to the Commission in
accordance with the terms of the Administrative Agreement, and
appropriate instructions will be prepared and issued by the Executive
Director for guidance of project sponsors and applicants.
(b) Where no other State or Federal agency has jurisdiction to review
and approve a project, or no Administrative Agreement is in force, the
project sponsor shall apply directly to the Commission.
(c) Any project proposal which may have a substantial effect on the
water resources of the basin may be received and reviewed by the staff
informally in conference with the project sponsor during the preliminary
planning phase to assist the sponsor to develop the project in
accordance with the Commission's requirements.
(d) Whenever a project sponsored by one of the signatory parties, or
by any agency, political subdivision or public corporation thereof, has
been included in the Water Resources Program in the ''A'' list
classification, the project, to the extent of such inclusion and as
described in the Program, shall be deemed approval for the purposes of
section 3.8 of the Compact.
(e) Whenever a project is subject to review and approval by the
Commission under this section, there shall be no substantial
construction activity thereon, including related preparation of land,
unless and until the project has been approved by the Commission:
Provided, however, That this prohibition shall not apply to the drilling
of wells for purposes of obtaining geohydrologic data, nor to in-plant
control and pretreatment facilities for pollution abatement.
18 CFR 401.35 Classification of projects for review under section 3.8
of the Compact.
(a) Except as the Executive Director may specially direct by notice
to the project owner or sponsor, or as a State or Federal agency may
refer under paragraph (c) of this section, a project in any of the
following classifications will be deemed not to have a substantial
effect on the water resources of the basin and is not required to be
submitted under section 3.8 of the compact:
(1) The construction of new impoundments or the enlargement or
removal of existing impoundments, for whatever purpose, when the storage
capacity is less than 100 million gallons.
(2) A withdrawal from ground water for any purpose when the daily
average gross withdrawal during any calendar month does not exceed
100,000 gallons.
(3) A withdrawal from impoundments or running streams for any purpose
when the daily average gross withdrawal during any calendar month does
not exceed 100,000 gallons.
(4) The construction of new municipal sewage treatment facilities or
alteration or addition to existing municipal sewage treatment facilities
when the design capacity of such facilities is less than a daily average
rate of 10,000 gallons per day in the drainage area to Outstanding Basin
Waters and Significant Resource Waters or less than 50,000 gallons per
day elsewhere in the Basin; and all local sewage collector systems and
improvements discharging into authorized trunk sewage systems.
(5) The construction of new facilities or alteration or addition to
existing facilities for the direct discharge to surface or ground waters
of industrial wastewater having design capacity of less than 10,000
gallons per day in the drainage area to Outstanding Basin Waters and
Significant Resource Waters or less than 50,000 gallons per day
elsewhere in the Basin; except where such wastewater contains toxic
concentrations of waste materials.
(6) A change in land cover on major ground water infiltration areas
when the amount of land that would be altered is less than three square
miles.
(7) Deepening, widening, cleaning or dredging existing stream beds or
relocating any channel, and the placement of fill or construction of
dikes, on streams within the basin except the Delaware River and tidal
portions of tributaries thereto, and streams draining more than one
state.
(8) Periodic maintenance dredging.
(9) Encroachments on streams within the basin caused by:
(i) Floating docks and anchorages and buoys and navigational aids.
(ii) Temporary construction such as causeways, cofferdams and
falsework required to facilitate construction on permanent structures.
(10) Bridges and highways unless they would pass in or across an
existing or proposed reservoir or recreation project areas shown in the
Comprehensive Plan.
(11) Liquid petroleum products pipelines and appurtenances designed
to operate under pressures less than 150 psi; local electric
distribution lines and appurtenances; local communication lines and
appurtenances; local natural and manufactured gas distribution lines
and appurtenances; local water distribution lines and appurtenances;
and local sanitary sewer mains, unless such lines would involve
significant disturbance of ground cover affecting water resources.
(12) Electric transmission or bulk power system lines and
appurtenances; major trunk communication lines and appurtenances;
natural and manufactured gas transmission lines and appurtenances;
major water transmission lines and appurtenances, unless they would pass
in, on, under or across an existing or proposed reservoir or recreation
project area as shown in the Comprehensive Plan, unless such lines would
involve significant disturbance of ground cover affecting water
resources.
(13) Liquid petroleum products pipelines and appurtenances designed
to operate under pressures of more than 150 psi, unless they would pass
in, on, under or across an existing or proposed reservoir or recreation
project area as shown in the Comprehensive Plan, or in, on, under or
across any stream within the basin, unless such lines would involve
significant disturbance of ground cover affecting water resources.
(14) Landfill projects limited to disposal of solid inert wastes such
as earth, rock, gravel, concrete, asphalt paving fragments, glass,
plaster, plasterboard, rubber products, steel mill slag, clay, clay
products, plastics, asbestos shingles, and similar materials, unless
such projects are located on flood plains delineated by the Commission
or a signatory State.
(15) Landfill projects which may contain organic or liquid wastes
that have a substantial effect on water resources of the Basin, unless,
no state-level review and permit system is in effect; broad regional
consequences are anticipated; or the standards or criteria used in
state-level review are not adequate to protect the waters of the Basin
for the purposes prescribed in the Comprehensive Plan.
(16) Draining, filling, or otherwise altering marshes or wetlands
when the area affected is less than 25 acres: Provided, however, That
areas less than 25 acres shall be subject to Commission review and
action (i) where neither a State nor a Federal level review and permit
system is in effect, and the Executive Director determines that a
project is of major regional or interstate significance requiring action
by the Commission, or (ii) when a Commissioner or the Executive Director
determines that the final action of a State or Federal permitting agency
may not adequately reflect the Commission's policy as to wetlands of the
basin. In the case of a project affecting less than 25 acres for which
there has been issued a State or Federal permit, a determination to
undertake review and action by the Commission shall be made no later
than 30 days following notification of the Commission of such permit
action. The Executive Director, with the approval of the chairman, may
at any time within the 30-day period inform any permit- holder,
signatory party, or other interested party that the Commission will
decline to undertake review and action concerning any such project.
(17) The diversion or transfer of water from the Delaware River Basin
(exportation) whenever the design capacity is less than a daily average
rate of 100,000 gallons.
(18) The diversion or transfer of water into the Delaware River Basin
(importation) whenever the design capacity is less than a daily average
rate of 100,000 gallons except when the imported water is wastewater.
(19) The diversion or transfer of wastewater into the Delaware River
Basin (importation) whenever the design capacity is less than a daily
average rate of 50,000 gallons.
(b) All other projects which have or may have a substantial effect on
the water resources of the basin shall be submitted to the Commission in
accordance with the regulations in this part for determination as to
whether the project will have a substantial effect on the water
resources of the basin and, if so, whether the project impairs or
conflicts with the Comprehensive Plan. Among these are projects
involving the following (except as provided in paragraph (a) of this
section):
(1) Impoundment of water.
(2) Withdrawal of ground water.
(3) Withdrawal of water from impoundment or streams.
(4) Diversion of water into or out of the basin.
(5) Deepening or widening of existing stream beds, channels,
anchorages, harbors or turning basins, or the construction of new or
enlarged channels, anchorages, harbors or turning basins, or the
dredging of the bed of any stream or lake and disposal of the dredged
spoil, when the nature or location of the project would affect the
quantity or quality of ground or surface waters, or fish and wildlife
habitat.
(6) Discharge of pollutants into waters of the basin.
(7) Facilities designed to intercept and transport sewage to a common
point of discharge; and pipelines and electric power and communication
lines.
(8) Facilities for the direct discharge to surface or ground waters
of industrial wastewater.
(9) Projects that substantially encroach upon the stream or upon the
100-year flood plain of the Delaware River or its tributaries.
(10) Change in land cover on major groundwater infiltration areas.
(11) Hydroelectric power projects, including pumped storage projects.
(12) Projects or facilities of Federal, State and local agencies such
as highways, buildings and other public works and improvements,
affecting the water and related land resources of the basin.
(13) Draining, filling or otherwise altering marshes or wetlands.
(14) Regional wastewater treatment plans developed pursuant to the
Federal Water Pollution Control Act.
(15) Landfills and solid waste disposal facilities affecting the
water resources of the Basin.
(16) State and local standards of flood plain regulation.
(17) Electric generating or cogenerating facilities designed to
consumptively use in excess of 100,000 gallons per day of water during
any 30-day period.
(c) Whenever a State or Federal agency determines that a project
falling within an excluded classification (as defined in paragraph (a)
of this section) may have a substantial effect on the water resources of
the basin, such project may be referred by the State or Federal agency
to the Commission for action under the regulations in this part.
(d) Except as otherwise provided by 401.40 the sponsor shall submit
an application for review and approval of a project included under
paragraph (b) of this section through the appropriate agency of a
signatory party. Such agency will transmit the application or a summary
thereof to the Executive Director, pursuant to Administrative Agreement,
together with available supporting materials filed in accordance with
the practice of the agency of the signatory party. The Executive
Director will thereupon determine for the Commission whether or not the
proposed project could have a substantial effect upon the water
resources of the basin within the meaning of the Compact and the Rules
of Practice and Procedure. In making such determination the Executive
Director shall be guided by his findings as to the following factors:
(1) The impact of the project on environmentally sensitive land areas
or species of plant or animal life.
(2) The potential of the project and its distribution or collection
systems to induce significant changes in numbers, distribution or
character of population or economic activity.
(3) The magnitude of proposed water withdrawal or waste discharge in
relation to minimum streamflow, aquifer yield or water quality.
(4) The size of the project and distribution or collection system and
areal extent and duration of its environmental impact.
(5) The effect of the project on public health, safety or general
welfare, and historic and cultural properties.
(6) The effect of the project on surface or groundwaters in another
state.
(7) The effect of the project on transfers of water into or out of
the basin or from one sub-basin to another.
(8) The cost of the project and nature and magnitude of resources
required for its implementation.
(9) The effect of the project on flood flows and storm water runoff.
(10) Any other facts which in a particular case may be relevant to
the protection of the integrity of the Comprehensive Plan.
(11) The impact of the project on aquatic life including fisheries.
(e) Projects determined by the Executive Director to have a
substantial effect will be subject to approval by the Commission
pursuant to section 3.8 and Article 11 of the Compact (to the extent
applicable). Projects determined by the Executive Director not to have
a substantial effect on the water resources of the basin will not be
subject to further review or action by the Commission. The Executive
Director shall notify the sponsor of the project, the agency of the
signatory party reviewing the project, and the governing body of the
municipality, and the planning board of the county in which the project
is located of his initial determination on the question of substantial
effect. Notice to such interested parties shall be given by certified
mail, return receipt requested. The Executive Director shall also
notify by regular mail all members of the Commission and of the Federal
Field Committee. He shall also cause to be published in a newspaper of
general circulation in that municipality, at least once, a notice of
such determination. If no objection is made to the Executive Director's
initial determination, it shall become final ten days after publication
as above. Any interested party objecting to the determination may,
within ten days of the newspaper publication, object to such
determination and appeal to the Executive Director by letter for
reconsideration. Following such reconsideration, if requested, the
Executive Director shall serve notice upon the agency of the signatory
party, the applicant and each such objector of his final determination.
Any such party may appeal such final determination to the Commission by
notice in writing served upon the Executive Director within 14 days
after the service of the Executive Director's decision upon
reconsideration. The Commission will determine such appeal at a regular
meeting thereafter.
(39 FR 25474, July 11, 1974, as amended at 42 FR 15311, Mar. 21,
1977; 43 FR 38816, Aug. 31, 1978; 55 FR 52168, Dec. 20, 1990; 56 FR
30502, July 3, 1991; 56 FR 37954, Aug. 9, 1991; 57 FR 60470, Dec. 21,
1992; 57 FR 59908, Dec. 17, 1992)
18 CFR 401.36 Water pollution control projects -- regional
requirements.
(a) The use of regional solutions to water pollution problems, with
the least number of separate treatment plants which may be efficient in
the particular circumstance, is required whenever feasible. Each waste
treatment project shall be submitted to the Commission not later than
the completion of preliminary engineering for review of its compliance
with this and other requirements of the Comprehensive Plan.
(b) In reviewing a project for compliance with this section, the
Commission will consider the following matters, comparing regional
versus separate treatment systems:
(1) Construction costs and economies of various scales of
development.
(2) Operating costs and economies of various scales of operation.
(3) Capability of handling industrial wastes with and without
pretreatment.
(4) Capability to assimilate high peak flows and temporary shock
loads or emergency conditions.
(5) Space and facilities for sludge disposal.
(6) Personnel skills required and their availability for operation
and supervision.
(7) Capacity to absorb growth, and the relative times required to
place a separate and a regional system in operation.
(8) Desirability of the site selection alternatives for the treatment
plant in view of considerations of efficiency of land use, potential
service area and relative transmission distances.
(9) The effect for a reasonable distance downstream on the quality of
the receiving waters.
(10) Effectiveness of the proposal in identifying all sources of
pollution and in achieving a coordinated, comprehensive and orderly plan
for abatement of pollution in the region.
(c) A preliminary engineering report shall accompany each application
and shall include factual findings and conclusions with respect to
paragraphs (b)(1) through (8) of this section.
(d) For the purpose of the regulations in this part, a ''region'' is
defined to mean one or more drainage areas or parts thereof. A
''regional solution'' is one which is based upon a feasibility study of
the region for which a single system of sewage collection and treatment
would be physically and economically feasible.
18 CFR 401.37 Siting studies for major electric generation projects.
(a) An application under section 3.8 of the Compact for approval of
an electric generating project with a design capacity of 100,000 KW or
more shall include as part of the application: (1) A master siting
study, (2) a site selection analysis for the project, and (3) the
environmental statement otherwise required.
(b)(1) The master siting study shall describe in general terms all
existing major electric generating projects of the applicant and of
other public utilities using the water resources of the basin, and all
such projects proposed or planned for the ensuing 15-year period. The
master siting study shall describe particularly the impact of each
proposed project on the water resources and related land resources of
the basin. It shall include, with as much detail as is available, a
description of the five-mile reach of any stream within which each
proposed project is or will be located, the concept, capacity and fuel
source of each project, the quantity and method of heat and moisture
dissipation, the water resource requirements and water-related
ecological effects of each proposed project in the study.
(2) The master siting study will be reviewed by the Commission in
relation to the Comprehensive Plan, may be employed as an input to the
Comprehensive Plan, and may be considered, in whole or in part, for
inclusion in the Plan. A master siting study may be amended from time
to time to reflect changing power demands, technology and water resource
conditions. The Commission will act in relation to a master siting
study or amendment thereof only after public hearing.
(c) The site selection analysis shall demonstrate the relationship of
the proposed project, and its specific location, to the master siting
study. Prior to submitting the site selection analysis, the applicant
shall circulate it for comment among other interested public utilities,
the Federal and State governmental agencies having jurisdiction over the
siting of electric generating stations in the State in which the project
is located, regional or county planning commissions having jurisdiction
in the project area, and such major water users as the Commission shall
designate, and such comments shall be appended to and submitted together
with the application. Prior to acting on the application, the
Commission will make the site selection analysis available for public
review and comment.
(d) The Commission will review each application for a major electric
generating project with reference to the doctrine of equitable
apportionment, including such priority of uses as will recognize
alternative water resources and sites for electric generating projects,
the increasing demands on the water resources of the basin and the
optimum beneficial use of the water resources of the basin.
(e) The Commission will not act upon an application for approval
under section 3.8 of the Compact to initiate a partial or preliminary
phase of an electric generating project which is subject to the
regulations in this part unless the application conforms to requirements
of paragraph (a) of this section.
18 CFR 401.38 Water supply projects -- conservation requirements.
Maximum feasible efficiency in the use of water is required on the
part of water users throughout the basin. Effective September 1, 1981
applications under section 3.8 of the Compact for new water withdrawals
subject to review by the Commission shall include and describe water
conserving practices and technology designed to minimize the use of
water by municipal, industrial and agricultural users, as provided in
this section.
(a) Applications for approval of new withdrawals from surface or
ground water sources submitted by a municipality, public authority or
private water works corporation whose total average withdrawals exceed
one million gallons per day shall include or be in reference to a
program prepared by the applicant consisting of the following elements:
(1) Periodic monitoring of water distribution and use, and
establishment of a systematic leak detection and control program;
(2) Use of the best practicable water conserving devices and
procedures by all classes of users in new construction or installations,
and provision of information to all classes of existing users concerning
the availability of water conserving devices and procedures;
(3) A contingency plan including use priorities and emergency
conservation measures to be instituted in the event of a drought or
other water shortage condition. Contingency plans of public authorities
or private water works corporations shall be prepared in cooperation
with, and made available to, all municipalities in the area affected by
the contingency plan, and shall be coordinated with any applicable
statewide water shortage contingency plans.
(b) Programs prepared pursuant to paragraph (a) of this section shall
be subject to any applicable limitations of public utility regulations
of the signatory party in which the project is located.
(c) Applications for approval of new industrial or commercial water
withdrawals from surface or ground water sources in excess of an average
of one million gallons per day shall contain (1) a report of the water
conserving procedures and technology considered by the applicant, and
the extent to which they will be applied in the development of the
project; and (2) a contingency plan including emergency conservation
measures to be instituted in the event of a drought or other water
shortage. The report and contingency plan estimate the impact of the
water conservation measures upon consumptive and non-consumptive water
use by the applicant.
(d) Applications for approval of new agricultural irrigation water
withdrawals from surface or ground water sources in excess of one
million gallons per day shall include a statement of the operating
procedure or equipment to be used by the applicant to achieve the most
efficient method of application of water and to avoid waste.
(e) Reports, programs and contingency plans required under this
section shall be submitted by the applicant as part of the permit
application to the state agency having jurisdiction over the project, or
directly to the Commission in those cases where the project is not
subject to the jurisdiction of a state agency. State agencies having
jurisdiction over a project that is subject to the provisions of this
section shall determine the adequacy and completeness of the applicant's
compliance with these requirements and shall advise the Commission of
their findings and conclusions.
(46 FR 25439, May 7, 1981)
18 CFR 401.39 Sequence of approval.
A project will be considered by the Commission under section 3.8 of
the Compact either before or after any other State or Federal review, in
accordance with the provisions of the Administrative Agreement
applicable to such project.
(39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7,
1981)
18 CFR 401.40 Form of referral by State or Federal agency.
Upon approval by any State or Federal agency of any project
reviewable by the Commission under this part, if the project has not
prior thereto been reviewed and approved by the Commission, such agency
shall refer the project for review under section 3.8 of the Compact in
such form and manner as shall be provided by Administrative Agreement.
(39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7,
1981)
18 CFR 401.41 Form of submission of projects not requiring prior
approval by State or Federal agencies.
Where a project does not require approval by any other State or
Federal agency, or where such approval is required but an Administrative
Agreement is not in force, the project shall be submitted directly to
the Commission for review and determination of compatibility with the
Comprehensive Plan, in such form of application, with such supporting
documentation, as the Executive Director may reasonably require for the
administration of the provisions of the Compact. These shall include
without limitation thereto:
(a) Exhibits to accompany application. The application shall be
accompanied by the following exhibits:
(1) Abstract of proceedings authorizing project, where applicable.
(2) General map showing specific location and dimension of a
structural project, or specific language of a standard or policy in the
case of a non-structural proposal.
(3) Section of the United States Geological Survey topographic map
showing the territory and watershed affected.
(4) Maps, drawings, specifications and profiles of any proposed
structures, or a description of the specific effects of a non-structural
project.
(5) Written report of the applicant's engineer showing the proposed
plan of operation of a structural project.
(6) Map of any lands to be acquired or occupied.
(7) Estimate of the cost of completing the proposed project, and
sufficient data to indicate a workable financial plan under which the
project will be carried out.
(8) A description of the construction procedures to be followed in
excavating, backfilling, retention of sediment, reseeding and
landscaping, all with particular reference to minimizing soil erosion
and sedimentation in the stream.
(b) Letter of transmittal. The application shall be accompanied by a
letter of transmittal in which the applicant shall include a list of all
enclosures, the names and addresses to which communications may be
directed to the applicant, and the names and addreses of the applicant's
engineer and counsel, if any.
(c) Number of copies. Unless otherwise ordered by the Commission,
two copies of the application and accompanying papers shall be filed.
If any application is contested, the Commission may require additional
copies of the application and all accompanying papers to be furnished by
the applicant. In such cases, certified copies or photographic prints
or reproductions may be used.
(39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7,
1981)
18 CFR 401.42 Preliminary action; informal conference; emergencies.
(a) Whenever the Executive Director shall deem necessary, or upon
request of the applicant, an informal conference may be scheduled to
explain, supplement or review an application.
(b) The appropriate agency of a signatory party shall perform a
technical review for the Commission, in accordance with Administrative
Agreement, of each project finally determined to have a substantial
effect on the water resources of the basin; except that the Commission
staff will perform the technical review: (1) Whenever the agency of the
signatory party is itself the sponsor, or (2) whenever the agency of the
signatory party does not have the necessary regulatory jurisdiction, or
(3) upon request of the agency of the signatory party; and (4) as to
those projects which are subject to an environmental assessment or
environmental impact statement under these Rules of Practice and
Procedure and the National Environmental Policy Act.
(c) Upon completion of its technical review, the agency of the
signatory party shall, in accordance with Administrative Agreement,
prepare and file with the Executive Director an action report with
respect to the project. The Executive Director shall prepare a
memorandum of comment stating his concurrence or nonconcurrence with the
findings and recommendations of the action report. The report,
memorandum, and a proposed docket decision with reference thereto shall
be placed before the Commission by the Executive Director at its next
regular meeting. Whenever time permits, a copy of the proposed docket
decision shall be furnished to the applicant, and the applicant shall be
given an opportunity to comment thereon and to consent to the conditions
stated therein, before action by the Commission. The Commission will
act upon the project in accordance with Section 3.8 and Article 11 of
the Compact (to the extent applicable).
(d) In the event of an emergency requiring immediate action to
protect the public interest or to avoid substantial and irreparable
injury to any private person or property, and the circumstances do not
permit a review, hearing and determination in the regular course of the
regulations in this part, the Executive Director with the approval of
the chairman of the Commission may issue an emergency certificate
authorizing an applicant to take such action as the Executive Director
may deem necessary and proper in the circumstances, pending review,
hearing and determination by the Commission as otherwise required in
this part.
(39 FR 25474, July 11, 1974, as amended at 42 FR 15311, Mar. 21,
1977. Redesignated at 46 FR 25439, May 7, 1981)
18 CFR 401.43 Hearings.
(a) The Executive Director may, and whenever any substantial
objection is filed pursuant to this section shall, cause a hearing to be
scheduled upon an application received under 401.41. He may, and at the
request of the applicant shall, cause a hearing to be scheduled as to
any application referred under 401.40. Notice of the intention of the
Commission to act upon an application received pursuant to 401.41, or
upon a request for a hearing with regard to an application received
pursuant to 401.40, shall be published by the Executive Director in one
or more newspapers of general circulation in the area affected, at least
once a week for two successive weeks, which publications shall not be
less than seven nor more than 21 days prior to the date on which action
is proposed to be taken. Such notice shall direct any person objecting
to the application to file his objection with the Commission not later
than two days before the scheduled date of action. If the Executive
Director determines that any filed objection is substantial, he shall
defer consideration by the Commission, furnish a copy of each such
objection to the applicant, and schedule a hearing on the application to
be held not less than ten nor more than 30 days after the last day for
filing objections. Notice of the hearing shall be served forthwith by
certified mail upon the applicant and each person filing a substantial
objection. Proof of such publication and of service of notice shall be
filed with the Commission on or before the date for which the hearing is
scheduled.
(b) The application and supporting documents, maps and data, as filed
or amended shall be open to inspection by any interested person prior to
the hearing.
(39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7,
1981)
18 CFR 401.44 Objections.
Every objection filed pursuant to 401.43 shall be in writing and
shall particularly specify the ground thereof. Amendments to the
objections may be permitted by the Commission. All objections and
supporting documents shall be filed in duplicate in such form as the
Executive Director may prescribe. No person may be heard in opposition
to an application except on objections so filed. Such objections shall
be heard and determined under the procedure prescribed by Subpart F,
Hearings.
(39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7,
1981)
18 CFR 401.45 Limitation of approval.
Approval by the Commission under this part shall expire three years
from the date of Commission action unless prior thereto the sponsor has
expended substantial funds (in relation to the cost of the project) in
reliance upon such approval. An approval may be extended or renewed by
the Commission upon application.
(39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7,
1981)
18 CFR 401.46 Certificate of compliance.
The Executive Director, upon application duly made to him, and after
appropriate inspection and such other proof as may be required, may
certify to any applicant that the applicant has duly complied with the
requirements of any action or determination by the Commission pursuant
to this part. The Executive Director may make such certification
whenever he finds and determines that there has been sufficient
compliance to satisfy the purposes and objectives of the Commission's
action or determination notwithstanding the existence of any technical
variation or omission in the work done. All such certifications shall
be reported to the Commission at its next meeting thereafter.
(39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7,
1981)
18 CFR 401.46 Subpart D -- Preparation and Processing of Environmental Impact Statements
18 CFR 401.51 Scope.
(a) Purpose. The National Environmental Policy Act of 1969
implemented by Executive Order 11514, mandates that all Federal
agencies, to the fullest extent possible, direct their policies, plans
and programs so as to meet national environmental goals. Section 105 of
the Act provides that ''The policies and goals set forth in this Act are
supplementary to those set forth in existing authorizations of Federal
agencies.'' Section 102(2)(C) of the Act and the Council on
Environmental Quality's Guidelines of April 23, 1971, (36 FR 7724)
require that all Federal agencies prepare environmental statements on
all major Federal actions significantly affecting the quality of the
human environment. The objective of the Act is to build into the agency
decision-making process, beginning at the earliest possible point, an
appropriate and careful consideration of the environmental aspects of
proposed actions and to assist agencies in implementing the policies as
well as the letter of the Act.
(b) Policy. The Delaware River Basin Commission will, in
consultation with other appropriate Federal, State and local agencies
and the public, assess the environmental impacts of any proposed action
concurrent with initial technical and economic studies in order that
adverse effects will be avoided, and environmental quality will be
maintained, restored or enhanced, to the fullest extent practicable. In
particular, alternative actions that will minimize adverse impacts will
be explored and both the long and short-range implications to man, his
physical and social surroundings, and to nature, will be evaluated in
order to avoid, to the fullest extent practicable, undesirable
consequences as they relate to the quality of the human environment.
This assessment shall take place as early as possible and in all cases
prior to any decision that may significantly affect the environment and,
where required, a draft environmental impact statement will be prepared
and circulated in accordance with the regulations in this part.
(c) Definitions. Action is a resolution by the Commission approving,
disapproving, modifying or otherwise disposing of a project, program,
legislation or any part thereof.
Applicant is proposed action's sponsor, including the Commission when
it sponsors an action.
Environment for the purposes of the regulations in this part is the
major natural, man-made or affected environment as implied by the
National Environmental Policy Act of 1969.
Environmental assessment is an analysis by the Commission prior to
the preparation of an environmental impact statement, of an applicant's
environmental report or of a Commission-sponsored action to determine
whether the action proposed will have a significant effect involving the
quality of the human environment.
Environmental impact statement is a document prepared by the
Commission which identifies and analyzes in detail the environmental
impacts of a major action by the Commission having significant effects
involving the quality of the human environment.
Environmental report is a document to be submitted by applicants
proposing an action which requires an environmental assessment.
Negative declaration is a determination by the Executive Director,
based upon an environmental assessment, that a proposed action will not
require an environmental impact statement.
Notice of intent is an announcement to other Federal, State and local
agencies and to the public that the Commission will be preparing an
environmental impact statement for a given action.
Responsible official is the Executive Director or his designee of the
Delaware River Basin Commission.
Significant effect is that degree of impact upon the quality of the
human environment determined by the Commission or the Executive Director
as sufficient to justify an environmental impact statement.
18 CFR 401.52 Actions requiring an environmental report.
The applicant for any action within the following classifications
shall submit not later than the completion of preliminary engineering or
feasibility studies, an environmental report.
(a) All action required by the regulations in this part to include an
environmental impact statement.
(b) Major actions the Commission may wish to initiate.
(c) Action to include in the Commission's Comprehensive Plan the
following:
(1) Major policy or regulations significantly affecting the quality
of the human environment.
(2) Master plans including a sequence of the contemplated projects
which together may have a significant effect upon the quality of the
human environment.
(d) When requested by the Executive Director based upon an
environmental review of the action.
18 CFR 401.53 Applicant's environmental report.
Upon receipt of the report, the Executive Director shall prepare an
environmental assessment of the action. Additional information,
studies, maps, etc., may be requested from the applicant. The
environmental assessment will be the basis for the determination of the
need for an environmental impact statement. A supplemental guideline
covering the substantive contents of an environmental report will be
made available to all applicants. In brief, an environmental report
will include the following:
(a) A description of the proposed action, including the
decision-making process, discussing alternatives to illustrate why the
proposed action was chosen.
(b) A description of the existing environmental setting without the
proposed action.
(c) The probable anticipated environmental impact primary and
secondary, including both beneficial and unavoidable adverse effects
from the proposed action and the basis for the conclusion. Resources
irreversibly and irretrievably committed should be identified.
(d) All reasonable alternatives to the proposed action that have been
considered including that of no action.
(e) An evaluation of environmental benefits, costs and risks,
including short-term uses versus long-term productivity, weighing the
proposed action and the alternatives considered against the quality of
the human environment.
(f) Any other information, data, maps, charts, etc., which may be
requested by the Commission for use in their analysis of the proposed
action.
18 CFR 401.54 Environmental assessment.
An environmental review will be made for those actions requiring an
environmental report. The assessment is made to identify and evaluate
the expected and potential environmental impacts of the action and the
alternatives considered. The assessment will determine whether
significant impact upon the environment can be anticipated from the
proposed action. The results of an environmental assessment will be
either the preparation of the environmental impact statement or a
negative declaration. The contents of an environmental assessment will
include the following:
(a) Description of the project.
(b) Analysis of significant impacts.
(c) Summation of any objections.
(d) Agencies consulted and their concerns, if any, including
interested State, regional, county and local agencies. The
Environmental Protection Agency will be consulted in all instances.
(e) Conclusions.
18 CFR 401.55 Negative declaration.
(a) A negative declaration may be issued by the Executive Director
prior to taking any official action on a project which, as a result of
an environmental assessment ( 401.54), has been determined will not
cause significant environmental impacts. The assessment will become a
part of the project's records and be available for public inspection.
(b) Prior to the issuance of a negative declartion, the Executive
Director shall publish notice of his intent to do so unless good cause
to proceed with an environmental impact statement is submitted in
writing by any interested person or agency within 15 days from the date
of the notice publication.
(c) The negative declaration will include the environmental
assessment, copies of any relevant correspondence and the official
determination by the Executive Director that the proposed action is not
a major action significantly affecting the quality of the human
environment.
(d) Once a negative declaration has been made, the proposed project
may immediately proceed to Commission action.
(e) When a negative declaration has been made for a proposed action
ordinarily requiring the preparation of an environmental impact
statement under the provisions of 401.56, the declaration, complete
with the environmental assessment, will be made available to the public.
18 CFR 401.56 Actions requiring an environmental impact statement.
The list of general classifications which require an environmental
impact statement is based upon the reviewable projects activity of the
Commission. These actions have been identified by an analysis of
environmental impacts typically associated with the principal types of
Commission action. Where an environmental impact statement is prepared
for a master plan or program having a chain of contemplated projects,
subsequent statements on major components will be required only where
significant impacts were not adequately evaluated in the overview
statement relating to the total plan or program. Inclusion of the
action in the Comprehensive Plan prior to January 1, 1970, does not
exempt the action from an environmental impact statement. Actions
identified as requiring an environmental impact statement include the
following:
(a) Any project, plan, regulation or policy identified via the
process of an environmental assessment as having significant effect upon
the quality of the human environment.
(b) Major large-scale programs or master plans involving a sequence
of contemplated projects including new towns, watershed programs,
wastewater and water supply plans and recreation plans.
(c) Impoundments.
(d) Diversions.
(e) Fossil-fueled electric generating stations.
(f) Liquid petroleum products pipelines.
(g) Draining or filling or otherwise altering marshes or wetlands.
(h) Substantial encroachments upon a stream or upon the 100-year
flood plain of the Delaware River or its tributaries.
(i) Any other action which the Executive Director, in his discretion,
determines is a major action which may have a significant effect upon
the quality of human environment and/or environmental impact which is
substantially controversial.
18 CFR 401.57 Lead agency.
The Executive Director shall review the proposed action with other
Federal agencies to determine whether DRBC should be lead agency for the
preparation of the environmental impact statement. Cooperative and/or
joint agency efforts will be taken whenever practicable. When any
action requiring an environmental impact statement under the regulations
in this part is also required to have an environmental impact statement
by regulations of another Federal agency, the Executive Director will
consult with such agency and establish appropriate lead agency
arrangements that will meet the requirements of the National
Environmental Policy Act and the revised (June 1973) Council on
Environmental Quality Guidelines, to avoid duplication. If another
Federal agency, in its role as lead agency, has determined that, after
an environmental assessment, any project listed in the regulations in
this part does not require an environmental impact statement, the
Executive Director shall request from the lead agency a letter to that
effect and after a review of the project may exempt the project from
this section.
18 CFR 401.58 Early notice.
Once the determination has been made that a project requires an
environmental impact statement, a public announcement, hereinafter
called Notice of Intent, shall be issued to the Council on Environmental
Quality, appropriate Federal, State and municipal agencies, and be
publicly posted in the Commission headquarters. The Notice of Intent
shall also be sent to citizens and citizens organizations identified as
having an interest in the project. The Notice of Intent shall define
the Commission as lead agency and request comments which may be helpful
in the preparation of the draft statement. A current list of
administrative actions for which environmental impact statements is
being prepared and will be available for public inspection upon request.
18 CFR 401.59 Pre-draft consultation with appropriate agencies.
(a) Consultation with Federal agencies. When the Commission is
considering an action requiring an environmental impact statement, it
will, prior to the preparation of the draft statement, consult with
Federal agencies having jurisdiction over reasonable alternatives to the
proposed action or jurisdiction by law or special expertise with respect
to the environmental impacts of the proposed action and reasonable
alternatives.
(b) Consultation with State and local agencies. In every case in
which implementation of the proposed action or its reasonable
alternatives would require exercise of authority by a State or local
agency, that agency will be consulted prior to the preparation of the
draft statement. Use will be made of the State and local A-95
clearinghouses.
18 CFR 401.60 Draft environmental impact statement.
The Executive Director shall prepare a substantive draft
environmental impact statement as soon as practicable after the decision
that the statement is necessary. Where a plan or program has been
developed, the relationship between the plan and the subsequent projects
or phases encompassed by it shall be evaluated to determine the
preferable and most meaningful point in time for preparing a statement.
Where practicable the statement will be drafted for the total program at
the completion of the overall planning stage. Individual actions
included in the plan will not require separate statements except where
significant change has occurred. A supplemental statement will be
issued covering only that change. The discussion of alternatives to the
proposed action and their impact on the environment will accompany the
proposed action through the Commission's entire review process.
Generally the content of an environmental impact statement will include
the following: (Substantive description of the content is available in
supplemental guidelines upon request).
(a) Summary.
(b) Description of the proposed action, statement of its purpose and
its components in detail commensurate for an assessment of potential
environmental impact.
(c) A succinct description of the environmental setting without the
proposed action.
(d) The relationship of the proposed action to water and land use
plans, policies and controls for the affected area.
(e) The probable impact of the proposed action on the environment,
beneficial and adverse, including secondary or indirect, as well as
primary or direct, consequences.
(f) Any probable adverse environmental effects which cannot be
avoided, summarizing those effects discussed in paragraph (e) of this
section that are adverse and unavoidable.
(g) All reasonable alternatives to the proposed action that have been
considered including that of no action, with an objective evaluation of
the environmental impacts from each.
(h) An evaluation of the proposed action in relation to short-term
use of man's environment and the maintenance and enhancement of
long-term productivity.
(i) Any irreversible and irretrievable commitments of resources that
would be involved in the proposed action should it be implemented.
(j) An indication of other interests and considerations of Federal
policy thought to offset the adverse environmental effects of the
proposed action.
(k) When determined by the Executive Director as necessary, an
evaluation of environmental benefits, costs and risks of the proposed
action compared to the alternatives considered against the quality of
the human environment.
18 CFR 401.61 Processing the draft environmental impact statement.
(a) The Executive Director shall distribute ten copies of the draft
environmental impact statement and two completed National Technical
Information Service (NTIS) accession notice cards to the Council on
Environmental Quality.
(b) The Executive Director shall announce to other agencies and the
general public via the Federal Register and in accordance with other
chapters and sections of the Administrative Manual, both the
availability of the draft environmental impact statement and the date of
a public hearing on environmental factors which will be held not less
than 15 days after the draft environmental impact statement has been
made available to the public.
(c) Concurrent with the announcement of availability, the Executive
Director shall provide copies of the draft environmental impact
statement to the Environmental Protection Agency and to appropriate
field offices of reviewing Federal agencies that have special expertise
or jurisdiction by law with respect to any impacts involved as listed in
Appendix II of the Council on Environmental Quality's guidelines. At
the same time, copies shall also be provided to the appropriate State
and local agencies and to interested organizations and persons.
(d) All comments made upon the draft environmental impact statement
should be submitted to DRBC within 45 days after the date of publication
in the Federal Register announcing the availability of the draft.
Extensions of review time will be at the discretion of the Executive
Director.
18 CFR 401.62 Final environmental impact statement.
Following receipt of comments on the draft environmental impact
statement and public hearing, the Executive Director shall prepare a
final environmental impact statement responding to written and/or
recorded suggestions, criticisms and comments raised through the review
of the draft statement. Distribution will be to the Council on
Environmental Quality, the Environmental Protection Agency and those who
respond to the draft statement and to written requests.
18 CFR 401.63 Public availability of statements.
All draft and final environmental impact statements, including
comments received thereon, shall be available for public examination as
per the Freedom of Information Act in the Commission's offices and such
other offices as the Executive Director may designate.
18 CFR 401.64 Earliest date for Commission action.
As directed by the Commission, the Executive Director will forward
the final environmental impact statement to the Council on Environmental
Quality. The Commission will act upon a project that is subject to the
requirements of this section not less than 90 days after a draft
environmental impact statement has been released for public comment and
not less than 30 days (which may run concurrently within the 90 days)
after the final environmental impact statement has been received by the
Council on Environmental Quality. The Commission will include or refer
to the environmental assessment or the environmental impact statement,
and will make specific findings and conclusions with respect to the
environmental effects of the project.
18 CFR 401.65 Emergency circumstances.
In the event of emergency circumstances those projects requiring an
environmental impact statement as provided for in 401.42, the Executive
Director will consult with the Council on Environmental Quality with
respect to waiver, suspension or deferment of the requirements of this
subpart before any action is taken.
18 CFR 401.66 Adequacy of draft and final environmental impact
statements.
The draft and final environmental impact statements will represent
the Commission's independent evaluation of the environmental impacts of
the action and the appropriate alternatives to the proposed action.
Redraft statements will be prepared if, prior to the submission of a
final statement to the Council on Environmental Quality, the original
draft is inadequate because significant information relevant to the
total action was omitted from the original draft or only came to light
after circulation of the original draft. All redraft statements shall
be circulated for comment in the same manner as original draft
environmental impact statements.
18 CFR 401.67 Procedure for commenting upon environmental impact
statements.
(a) Comments prepared on draft environmental impact statements
authored by other agencies will be based upon the relationship of the
action proposed to the Commission's Comprehensive Plan.
(b) Comments will be organized consistent with the structure of the
draft statement and will be as specific, substantive and factual as
possible.
(c) Five copies of all comments made thereon will be furnished to the
Council on Environmental Quality.
18 CFR 401.67 Subpart E -- Review in Water Quality Cases
18 CFR 401.71 Scope.
This subpart shall apply to the review, hearing and decision of
objections and issues arising as a result of administrative actions and
decisions taken or rendered under the Basin Regulations.
18 CFR 401.72 Notice and request for hearing.
The Executive Director shall serve notice of an action or decision by
him under the Basin Regulations by personal service or certified mail,
return receipt requested. The affected discharger shall be entitled
(and the notice of action or decision shall so state) to show cause at a
Commission hearing why such action or decision should not take effect.
A request for such a hearing shall be filed with the Secretary of the
Commission not more than 20 days after service of the Executive
Director's determination. Failure to file such a request within the
time limited shall be deemed to be an acceptance of the Executive
Director's determination and a waiver of any further hearing.
18 CFR 401.73 Form of request.
A request for a hearing may be informal but shall indicate the name
of the individual and the address to which an acknowledgment may be
directed. It may be stated in such detail as the objector may elect.
The request shall be deemed filed only upon receipt by the Commission.
18 CFR 401.74 Report.
Whenever the Executive Director determines that the request for a
hearing is insufficient to identify the nature and scope of the
objection, or that one or more issues may be resolved, reduced or
identified by such action, he may require the objector to prepare and
submit to the Commission, within such reasonable time (not less than 20
days) as he may specify, a technical report of the facts relating to the
objection prior to the scheduling of the hearing. The report shall be
required by notice in writing served upon the objector by certified
mail, return receipt requested, addressed to the person or entity filing
the request for hearing at the place indicated in the request.
18 CFR 401.75 Form and contents of report.
(a) Generally. A request for a report under this subpart may require
such information and the answers to such questions as may be reasonably
pertinent to the subject of the action or determination under
consideration.
(b) Waste loading. In cases involving objections to an allocation of
the assimilative capacity of a stream, the report shall be signed and
verified by a technically qualified person having personal knowledge of
the facts stated therein, and shall include such of the following items
as the Executive Director may require:
(1) A specification with particularity of the ground or grounds for
the objection; and failure to specify a ground for objection prior to
the hearing shall foreclose the objector from thereafter asserting such
a ground at the hearing;
(2) A description of industrial processing and waste treatment
operational characteristics in such detail as to permit an evaluation of
the character, kind and quantity of the discharges, both treated and
untreated, including the physical, chemical and biological properties of
any liquid, gaseous, solid, radioactive, or other substance composing
the discharge in whole or in part;
(3) The thermal characteristics of the discharges and the level of
heat in flow;
(4) Information in sufficient detail to permit evaluation in depth of
any inplant control or recovery process for which credit is claimed;
(5) An analysis of all the parameters that may have an effect on the
strength of the waste or impinge upon the water quality criteria set
forth in the Basin Regulations, including a determination of the rate of
biochemical oxygen demand and the projection of a first-stage
carbonaceous oxygen demand;
(6) Measurements of the waste as closely as possible to the processes
where the wastes are produced, with the sample composited either
continually or at frequent intervals (one-half hour or, where permitted
by the Executive Director, one hour periods), so as to represent
adequately the strength and volume of waste that is discharged; and
(7) Such other and additional specific technical data as the
Executive Director may reasonably consider necessary and useful for the
proper determination of a wasteload allocation.
18 CFR 401.76 Protection of trade secrets; confidential information.
No person shall be required in such report to divulge trade secrets
or secret processes. All information disclosed to any Commissioner,
agent or employee of the Commission in any report required by these
Rules shall be confidential for the purposes of section 1905 of Title 18
of the United States Code which provides:
Whoever, being an officer or employee of the United States or of any
department or agency thereof, publishes, divulges, discloses, or makes
known in any manner or to any extent not authorized by law any
information coming to him in the course of his employment or official
duties or by reason of any examination or investigation made by, or
return, report or record made to or filed with, such department or
agency or officer or employee thereof, which information concerns or
relates to the trade secrets, processes, operations, style of work, or
apparatus, or to the identity, confidential statistical data, amount or
source of any income, profits, losses, or expenditures of any person,
firm, partnership, corporation or association, or permits any income
return or copy thereof to be seen or examined by any persons except as
provided by law; shall be fined not more than $1,000 or imprisoned not
more than one year, or both; and shall be removed from office or
employment. June 25, 1948. C.645, 62 Stat. 791.
18 CFR 401.77 Failure to furnish report.
The Executive Director may, upon five days' notice to the objector,
dismiss the request for a hearing as to any objector who fails to file a
complete report within such time as shall be prescribed in the
Director's notice.
18 CFR 401.78 Informal conference.
Whenever the Executive Director deems it appropriate, he may cause an
informal conference to be scheduled between an objector and such member
of the Commission staff as he may designate. The purpose of such a
conference shall be to resolve or narrow the ground or grounds of the
objections.
18 CFR 401.79 Consolidation of hearings.
Following such informal conferences as may be held, to the extent
that the same or similar grounds for objections are raised by one or
more objectors, the Executive Director may in his discretion and with
the consent of the objectors, cause a consolidated hearing to be
scheduled at which two or more objectors asserting that ground may be
heard.
18 CFR 401.79 Subpart F -- Conduct of Hearings
18 CFR 401.81 Hearings generally.
(a) Scope of subpart. This subpart shall apply to hearings required
for the purposes of Subparts C and D of this part and, to the extent
applicable, to the conduct of administrative hearings for which no other
provision is made by statute or regulation.
(b) Timely request. Any person aggrived by any action or decision of
the Executive Director taken under any Basin Regulation shall be
entitled, upon timely filing of a request therefor, to a hearing in
accordance with these regulations.
(c) Optional joint hearings. Whenever designated by a department,
agency or instrumentality of a signatory party, and within any
limitations prescribed by the designation, a hearing officer designated
pursuant to this subpart may serve as a hearing officer, examiner or
agent pursuant to such additional designation. The hearing officer may
conduct joint hearings for the Commission and for such other department,
agency or instrumentality. Pursuant to the additional designation, a
hearing officer shall cause to be filed with the department, agency or
instrumentality making the designation, a certified copy of the
transcript of the evidence taken before him and, if requested, of his
findings and recommendations. Neither the hearing officer nor the
Delaware River Basin Commission shall have or exercise any power or duty
as a result of such additional designation to decide the merits of any
matter arising under the separate laws of a signatory party (other than
the Delaware River Basin Compact).
(d) Schedule. The Executive Director shall cause the schedule for
each hearing to be listed in advance upon a ''hearing docket'' which
shall be posted in public view at the office of the Commission.
18 CFR 401.82 Hearing officer.
(a) Generally. Hearings shall be conducted by one or more members of
the Commission, by the Executive Director, or by such other hearing
officer as the chairman may designate, except as provided in paragraph
(b) of this section.
(b) Wasteload allocation cases. In cases involving the allocation of
the assimilative capacity of a stream:
(1) The Executive Director shall appoint a hearing board of at least
two persons. One of them shall be nominated by the water pollution
control agency of the state in which discharge originates, and he shall
be chairman. The board shall have and exercise the powers and duties of
a hearing officer;
(2) A quorum of the board for purposes of the hearing shall consist
of two members; and
(3) Questions of practice or procedure during the hearing shall be
determined by the chairman.
18 CFR 401.83 Hearing procedure.
(a) The hearing officer shall have the power to rule upon offers of
proof and the admissibility of evidence, to regulate the course of the
hearings, and to hold conferences for the settlement or simplification
of issues.
(b) The hearing officer shall cause each witness to be sworn or to
make affirmation.
(c) Any party to a hearing shall have the right to present evidence
and to examine and cross-examine witnesses.
(d) When necessary, in order to prevent undue prolongation of the
hearing, the hearing officer may limit the number of times any witness
may testify, the repetitious examination or cross-examination of
witnesses, or the extent of corroborative or cumulative testimony.
(e) The hearing officer shall exclude irrelevant, immaterial or
unduly repetitious evidence, but the parties shall not be bound by
technical rules of evidence, and all relevant evidence of reasonably
probative value may be received.
(f) Any person entitled to be heard may appear and be heard in person
or be represented by an attorney at law or, if the applicant is a
corporation, by its corporate officer, an authorized employee, or by an
attorney at law.
(g) Briefs and oral argument may be required by the hearing officer
and shall be permitted upon request made prior to the close of the
hearing by any party. They shall be part of the record unless otherwise
ordered by the hearing officer.
18 CFR 401.84 Staff and other expert testimony.
(a) The Executive Director shall arrange for the presentation of
testimony by the Commission's technical staff and other experts, as he
may deem necessary or desirable, to incorporate in the record or support
the administrative action, determination or decision which is the
subject of the hearing.
(b) A party to the hearing may submit the testimony of an expert
witness, to be made part of the record, whether or not the expert is
present, provided that such testimony has been reduced to writing,
sworn, and copies thereof distributed to all parties appearing at the
hearing. Such testimony, however, shall not be admitted whenever the
expert is not present and available for cross-examination at the hearing
unless the testimony shall have been made available to all parties of
record at least five days prior to the hearing and all parties have
waived the right of cross-examination.
18 CFR 401.85 Record of proceedings.
A record of the proceedings and evidence at each hearing shall be
made by a qualified stenographer designated by the Executive Director.
Where demanded by the applicant, objector, or any other person who is a
party to these proceedings, or where deemed necessary by the hearing
officer, the testimony shall be transcribed. In those instances where a
transcript of proceedings is made, two copies shall be delivered to the
Commission. The applicant, objector, or other person who desires copies
shall obtain them from the stenographer at such price as may be agreed
upon by the stenographer and the person desiring the transcript.
18 CFR 401.86 Assessment of costs.
(a) Whenever an adjudicatory hearing is required, the costs thereof,
as herein defined, shall be assessed by the hearing officer to the
applicant. For the purposes of this section costs include all
incremental costs incurred by the Commission, including, but not limited
to, hearing examiner and expert consultants reasonably necessary in the
matter, stenographic record, rental of the hall and other related
expenses.
(b) Upon the scheduling of a matter for adjudicatory hearing, the
Secretary shall furnish to the applicant a reasonable estimate of the
costs to be incurred under this section. The applicant may be required
to furnish security for such costs either by cash deposit or by a surety
bond of a corporate surety authorized to do business in a signatory
state.
(42 FR 15310, Mar. 21, 1977)
18 CFR 401.87 Findings and report.
The hearing officer shall prepare a report of his findings and
recommendations. In the case of an objection to a wasteload allocation,
the hearing officer shall make specific findings of a recommended
allocation of carbonaceous oxygen demand, which may increase, reduce or
confirm the Executive Director's determination. The report shall be
served by personal service or certified mail (return receipt requested)
upon each party to the hearing or its counsel unless all parties have
waived service of the report. The applicant and any objector may file
objections to the report within 20 days after the service upon him of a
copy of the report. A brief shall be filed together with any
objections. The report of the hearing officer together with objections
and briefs shall be promptly submitted to the Commission. The
Commission may require or permit oral argument upon such submission
prior to its decision.
(39 FR 25474, July 11, 1974. Redesignated at 42 FR 15310, Mar. 21,
1977)
18 CFR 401.88 Action by the Commission.
The Commission will act upon the findings and recommendations of the
hearing officer pursuant to law. The determination of the Commission
will be in writing and shall be filed together with any transcript of
the hearing, report of the hearing officer, objections, thereto, and all
plans, maps, exhibits and other papers, records or documents relating to
the hearing. Subject to the provisions of section 2-4.6, all such
records, papers and documents may be examined by any person at the
office of the Commission, and shall not be removed therefrom except
temporarily upon the written order of the Secretary after the filing of
a receipt therefor in form prescribed by the Secretary. Copies of any
such records and papers may be made in the office of the Commission by
any person, subject to such reasonable safeguards for the protection of
the records as the Executive Director may require.
(39 FR 25474, July 11, 1974. Redesignated at 42 FR 15310, Mar. 21,
1977)
18 CFR 401.88 Subpart G -- Penalties and Settlements in Lieu of
Penalties
Source: 52 FR 37602, Oct. 8, 1987, unless otherwise noted.
18 CFR 401.91 Scope of subpart.
This subpart shall be applicable where the Commission shall have
information indicating that a person has violated or attempted to
violate any provision of the Commission's Compact or any of its rules,
regulations or orders (hereafter referred to as possible violator). For
the purposes of this subpart, person shall include person, partnership,
corporation, business association, governmental agency or authority.
18 CFR 401.92 Notice to possible violators.
Upon direction of the Commission the Executive Director shall, and in
all other instances, the Executive Director may require a possible
violator to show cause before the Commission why a penalty should not be
assessed in accordance with the provisions of these rules and section
14.17 of the Compact. The notice to the possible violator shall:
(a) Set forth the date on which the possible violator shall respond;
and
(b) Set forth any information to be submitted or produced by the
possible violator.
18 CFR 401.93 The record for decision-making.
(a) Written submission. In addition to the information required by
the Commission, any possible violator shall be entitled to submit in
writing any other information that it desires to make available to the
Commission before it shall act. The Executive Director may require
documents to be certified or otherwise authenticated and statements to
be verified. The Commission may also receive written submissions from
any other persons as to whether a violation has occurred and the adverse
consequences resulting from a violation of the Commission's Compact or
its rules, regulations and orders.
(b) Presentation to the Commission. At the date set in the Notice,
the possible violator shall have the opportunity to supplement its
written presentation before the Commission by any oral statement it
wishes to present and shall be prepared to respond to any questions from
the Commission or its staff or to the statements submitted by persons
affected by the possible violation.
18 CFR 401.94 Adjudicatory hearings.
(a) An adjudicatory hearing, which may be in lieu of or in addition
to proceedings pursuant to 401.93 at which testimony may be presented
and documents received shall not be scheduled unless:
(1) The Executive Director determines that a hearing is required to
have an adequate record for the Commission; or
(2) The Commission directs that such a hearing be held.
(b) If an adjudicatory hearing is scheduled, the possible violator
shall be given at least 14 days written notice of the hearing date
unless waived by consent. Notice of such a hearing may be given to the
general public and the press in the manner provided in section 14.4(b)
of the Compact but may be waived by the Executive Director.
(c) Except to the extent inconsistent with the provisions of this
subpart adjudicatory hearings shall be conducted in accordance with the
provisions of 491.83 through 401.88 (including 401.86 et seq.).
18 CFR 401.95 Assessment of a penalty.
The Executive Director may recommend to the Commission the amount of
the penalty to be imposed. Such a recommendation shall be in writing
and shall set forth the basis for the penalty amount proposed. Based
upon the record submitted to the Commission, the Commission shall decide
whether a violation has occurred that justifies the imposition of a
penalty pursuant to 14.17 of the Compact. If it is found that such a
violation has occurred, the Commission shall determine the amount of the
penalty to be paid.
18 CFR 401.96 Factors to be applied in fixing penalty amount.
(a) Consideration shall be given to the following factors in deciding
the amount of any penalty or any settlement in lieu of penalty:
(1) Previous violation, if any, of the Commission's Compact and
regulations;
(2) Whether the violation was unintentional or willful and
deliberate;
(3) Whether the violation caused adverse environmental consequences
and the extent of any harm;
(4) The costs incurred by the Commission or any signatory party
relating to the failure to comply with the Commission's Compact and
regulations;
(5) The extent to which the violator has cooperated with the
Commission in correcting the violation and remediating any adverse
consequences or harm that resulted therefrom; and
(6) Whether the failure to comply with the Commission's Compact and
regulations was economically beneficial to the violator.
(b) The Commission retains the right to waive any penalty or reduce
the amount of the penalty should it determine that, after consideration
of the factors in paragraph (a) of this section, extenuating
circumstances justify such action.
18 CFR 401.97 Enforcement of penalties.
Any penalty imposed by the Commission shall be paid within 30 days or
such further time period as shall be fixed by the Commission. The
Executive Director and Commission counsel are authorized to take such
action as may be necessary to assure enforcement of this subpart. If a
proceeding before a court becomes necessary, the action of the
Commission in determining a penalty amount shall constitute the penalty
amount recommended by the Commission to be fixed by the court pursuant
to 14.17 of the Compact.
18 CFR 401.98 Settlement by agreement in lieu of penalty.
A possible violator may request settlement of a penalty proceeding by
agreement. If the Executive Director determines that settlement by
agreement in lieu of a penalty is in the best interest of the
Commission, he may submit to the Commission a proposed settlement
agreement in lieu of a penalty. No settlement will be considered by the
Commission unless the possible violator has indicated to the Commission
acceptance of the terms of the agreement and the intention to comply
with all requirements of the settlement agreement including payment of
any settlement amount within the time period provided. If the
Commission determines not to approve a settlement agreement, the
Commission may proceed with a penalty action in accordance with this
subpart.
18 CFR 401.99 Suspension or modification of penalty.
The Commission may postpone the imposition of a penalty or provide
for reconsideration of the penalty amount imposed pending correction of
the condition that gave rise to the violation or pending a satisfactory
resolution of any adverse consequences that resulted from the violation.
18 CFR 401.99 Subpart H -- Public Access to Records and Information
Authority: Pub. L. 93-502, as amended.
Source: 40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975,
unless otherwise noted. Redesignated at 52 FR 37602, Oct. 8, 1987.
18 CFR 401.101 Policy on disclosure of Commission records.
The Commission will make the fullest possible disclosure of records
to the public, consistent with the rights of individuals to privacy, the
property rights of persons in trade secrets and confidential commercial
or financial information, and the need for the Commission to promote
frank internal policy deliberations and to pursue its regulatory
activities without disruption.
18 CFR 401.102 Partial disclosure of records.
If a record contains both disclosable and nondisclosable information,
the nondisclosable information will be deleted and the remaining record
will be disclosed unless the two are so inextricably intertwined that it
is not feasible to separate them or release of the disclosable
information would compromise or impinge upon the nondisclosable portion
of the record.
18 CFR 401.103 Request for existing records.
(a) Any written request to the Commission for existing records not
prepared for routine distribution to the public shall be deemed to be a
request for records pursuant to the Freedom of Information Act, whether
or not the Freedom of Information Act is mentioned in the request, and
shall be governed by the provisions of this part.
(b) Records or documents prepared by the Commission for routine
public distribution, e.g., pamphlets, speeches, public information and
educational materials, shall be furnished free of charge upon request as
long as the supply lasts. The provisions of this part shall not be
applicable to such requests.
(c) All existing Commission records are subject to routine
destruction according to standard record retention schedules.
18 CFR 401.104 Preparation of new records.
The Freedom of Information Act and the provisions of this part apply
only to existing records that are reasonably described in a request
filed with the Commission pursuant to the procedures herein established.
The Commission shall not be required to prepare new records in order to
respond to a request for information.
18 CFR 401.105 Indexes of certain records.
(a) Indexes shall be maintained, and revised at least quarterly, for
the following Commission records:
(1) Final opinions and orders made in the adjudication of cases.
(2) Statements of policy and interpretation adopted by the Commission
and still in force and not published in the Federal Register or official
minutes of Commission meetings.
(3) Administrative staff manuals and instructions to staff that
affect members of the public.
(b) A copy of each such index is available at cost of duplication
from the FOIA Officer.
18 CFR 401.106 FOIA Officer.
The Executive Director shall designate a Commission employee as the
FOIA Officer. The FOIA Officer shall be responsible for Commission
compliance with the Freedom of Information Act and these regulations.
All requests for agency records shall be sent in writing to:
FOIA Officer
Delaware River Basin Commission
P.O. Box 360
Trenton, N.J. 08603
18 CFR 401.107 Permanent file of requests for Commission records.
The Commission shall maintain a permanent file of all requests for
Commission records and all responses thereto, incuding a list of all
records furnished in response to a request. This file is available for
public review during working hours.
18 CFR 401.108 Filing a request for records.
(a) All requests for Commission records shall be filed in writing
delivered to the FOIA Officer, or by mailing it to the Commission. The
Commission will supply forms for written requests.
(b) A request for Commission records shall reasonably describe the
records being sought, in a way that they can be identified and located.
A request should include all pertinent details that will help identify
the records sought. A person requesting disclosure of records shall be
permitted an opportunity to review them without the necessity for
copying them where the records involved contain only disclosable data
and information.
(1) If the description is insufficient to locate the records
requested, the FOIA Officer will so notify the person making the request
and indicate the additional information needed to identify the records
requested.
(2) Every reasonable effort shall be made by the staff to assist in
the identification and location of the records sought.
(3) In any situation in which it is determined that a request for
voluminous records would unduly burden and interfere with the operations
of the Commission, the person making the request will be asked to be
more specific and to narrow the request, and to agree on an orderly
procedure for the production of the requested records.
(c) Upon receipt of a request for records, the FOIA Officer shall
enter it in a public log (which entry may consist of a copy of the
request). The log shall state the date and time received, the name and
address of the person making the request, the nature of the records
requested, the action taken on the request, the date of the
determination letter sent pursuant to 401.99(b), the date(s) any
records are subsequently furnished, the number of staff-hours and grade
levels of persons who spent time responding to the request, and the
payment requested and received.
(d) A denial of a request for records, in whole or in part, shall be
signed by the FOIA Officer. The name and title or position of each
person who participated in the denial of a request for records shall be
set forth in a letter denying the request. This requirement may be met
by attaching a list of such individuals to the letter.
18 CFR 401.109 Time limitations.
(a) All time limitations established pursuant to this section shall
begin as of the time at which a request for records is logged in by the
FOIA Officer pursuant to 401.98(c). An oral request for records shall
not begin any time requirement. A written request for records sent
elsewhere within the Commission shall not begin any time requirement
until it is redirected to the FOIA Officer and is logged in accordance
with 401.98(c). A request that is expected to involve fees in excess of
$50 will not be deemed received until the requester is promptly notified
and agrees to bear the cost or has so indicated on his request.
(b) Within ten (10) working days (excepting Saturdays, Sundays, and
legal public holidays) after a request for records is logged by the FOIA
Officer, the record shall be furnished or a letter shall be sent to the
person making the request determining whether, or the extent to which,
the Commission will comply with the request, and, if any records are
denied, the reasons therefor.
(1) If all of the records requested have been located and a final
determination has been made with respect to disclosure of all of the
records requested, the letter shall so state.
(2) If all of the records have not been located or a final
determination has not yet been made with respect to disclosure of all of
the records requested, the letter shall state the extent to which the
records involved shall be disclosed pursuant to the rules established in
this part.
(3) In the following unusual circumstances, the time for sending this
letter may be extended by the Executive Director for up to an additional
ten (10) working days by written notice to the person making the request
setting forth the reasons for such extension and the time within which a
determination is expected to be dispatched:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
Commission's Headquarters.
(ii) The need to search for, collect and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request.
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
Commission having substantial subject-matter interest therein.
(c) If any record is denied, the letter shall state the right of the
person requesting such records to appeal any adverse determination to
the Executive Director of the Commission. Such an appeal shall be filed
within thirty (30) days from receipt of the FOIA Officer's determination
denying the requested information (where the entire request has been
denied), or from the receipt of any information made available pursuant
to the request (where the request has been denied in part). Within
twenty (20) working days (excepting Saturdays, Sundays, and legal public
holidays) after receipt of any appeal, or any authorized extension, the
Executive Director or his designee shall make a determination and notify
the appellant of his determination. If the appeal is decided in favor
of the appellant the requested information shall be promptly supplied as
provided in this part. If on appeal the denial of the request for
records is upheld in whole or in part, the appellant shall be entitled
to appeal to the Commission at its next regular meeting. In the event
that the Commission confirms the Executive Director's denial the
appellant shall be notified of the provisions for judicial review.
(d) If the request for records will result in a fee of more than $25,
determination letter under 401.99 shall specify or estimate the fee
involved and may require prepayment, as well as payment of any amount
not yet received as a result of any previous request, before the records
are made available. If the fee is less than $25, prepayment shall not
be required unless payment has not yet been received for records
disclosed as a result of a previous request.
(e) Whenever possible, the determination letter required under
401.99(b), relating to a request for records that involves a fee of less
than $25.00, shall be accompanied by the requested records. Where this
is not possible, the records shall be forwarded as soon as possible
thereafter. For requests for records involving a fee of more than
$25.00, the records shall be forwarded as soon as possible after receipt
of payment.
18 CFR 401.110 Fees.
(a) Unless waived in accordance with the provisions of 401.101, the
following fees shall be imposed for disclosure of any record pursuant to
this part.
(1) Copying of records. Fifteen cents per copy of each page.
(2) Clerical searches. $1 for each one-quarter hour spent by
clerical personnel searching for and producing a requested record,
including time spent copying any record.
(3) Nonclerical searches. $1.80 for each one-quarter hour spent by
professional or managerial personnel searching for and producing a
requested record, including time spent copying any record.
(4) Forwarding material to destination. Postage, insurance, and
special fees will be charged on an actual cost basis.
(b) No charge shall be made for the time spent in resolving legal or
policy issues or in examining records for the purpose of deleting
nondisclosable portions thereof.
(c) Payment shall be made by check or money order payable to
''Delaware River Basin Commission'' and shall be sent to the FOIA
Officer.
18 CFR 401.111 Waiver of fees.
(a) No fee shall be charged for disclosure of records pursuant to
this part where:
(1) The records are requested by a congressional committee or
subcommittee or the General Accounting Office.
(2) The records are requested by an agency of a signatory party.
(3) The records are requested by a court of competent jurisdiction.
(4) The records are requested by a state or local government having
jurisdiction thereof.
(b) No fee shall be charged if a record requested is not found or for
any record that is totally exempt from disclosure.
18 CFR 401.112 Exempt information.
The following materials and information covered by this part shall be
exempt from disclosure; that is, information that is:
(a) Related solely to the internal personnel matters of the
Commission;
(b) Specifically exempted from disclosure by statute;
(c) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential. (For purposes of this
section a trade secret may consist of any formula, pattern, device, or
compilation of information which is used in one's business and which
gives him an opportunity to obtain an advantage over competitors who do
not know or use it. Commercial or financial information that is
privileged or confidential means valuable data or information which is
used in one's business and is of a type customarily held in strict
confidence or regarded as privileged and not disclosed to any member of
the public by the person to whom it belongs.)
(d) Inter-agency or intra-agency memorandums or letters other than
purely factual compilations, which would not be available by law to a
party other than an agency in litigation with the Commission;
(e) Personnel and medical files and similar files and disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(f) Investigatory records compiled for law enforcement purposes, but
only to the extent that the production of such records would (1)
interfere with enforcement proceedings, (2) deprive a person of a right
to a fair trial or an impartial adjudication, (3) constitute an
unwarranted invasion of personal privacy, (4) disclose the identity of a
confidential source, (5) disclose investigative techniques and
procedures, or (6) endanger the life or physical safety of law
enforcement personnel.
18 CFR 401.113 Segregable materials.
Any reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which
are exempt under this part, except as provided in 401.92.
18 CFR 401.114 Data and information previously disclosed to the public.
Any Commission record that is otherwise exempt from public disclosure
pursuant to this part is available for public disclosure to the extent
that it contains data or information that have previously been disclosed
in a lawful manner to any member of the public, other than an employee
or consultant or pursuant to other commercial arrangements with
appropriate safeguards for secrecy.
18 CFR 401.115 Discretionary disclosure by the Executive Director.
(a) The Executive Director may, in his discretion, disclose part or
all of any Commission record that is otherwise exempt from disclosure
pursuant to this part. The Executive Director shall exercise his
discretion to disclose such records whenever he determines that such
disclosure is in the public interest, will promote the objectives of the
Commission, and is consistent with the rights of individuals to privacy,
the property rights of persons in trade secrets, and the need for the
Commission to promote frank internal policy deliberations and to pursue
its regulatory activities without disruption.
(b) Discretionary disclosure of a record pursuant to this section
shall invoke the requirement that the record shall be disclosed to any
person who requests it pursuant to 401.98, but shall not set a
precedent for discretionary disclosure of any similar or related record
and shall not obligate the Executive Director to exercise his discretion
to disclose any other record that is exempt from disclosure.
18 CFR 401.116 Disclosure to consultants, advisory committees, State
and local government officials, and other special government employees.
Data and information otherwise exempt from public disclosure may be
disclosed to Commission consultants, advisory committees, state and
local government officials, and other special government employees for
use only in their work in cooperation with the Commission. Such persons
are thereafter subject to the same restrictions with respect to the
disclosure of such data and information as any other Commission
employee.
18 CFR 401.117 Disclosure to other Federal government departments and
agencies.
Any Commission record otherwise exempt from public disclosure may be
disclosed to other Federal Government departments and agencies, except
that trade secrets may be disclosed only to a department or agency that
has concurrent jurisdiction over the matter and separate legal authority
to obtain the specific information involved. Any disclosure under this
section shall be pursuant to an agreement that the record shall not be
further disclosed by the other department or agency except with the
written permission of the Commission.
18 CFR 401.118 Disclosure in administrative or court proceedings.
Data and information otherwise exempt from public disclosure may be
revealed in Commission administrative or court proceedings where the
data or information are relevant. The Commission will request that the
data or information be held in camera and that any other appropriate
measures be taken to reduce disclosure to the minimum necessary under
the circumstances.
18 CFR 401.119 Disclosure to Congress.
All records of the Commission shall be disclosed to Congress upon an
authorized request.
18 CFR 401.119 Subpart I -- General Provisions
Source: 40 FR 14059, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975,
unless otherwise noted. Redesignated at 52 FR 37602, Oct. 8, 1987.
18 CFR 401.121 Definitions.
For the purposes of this part, except as the context may otherwise
require:
(a) All words and phrases which are defined by section 1.2 of the
Compact shall have the same meaning herein.
(b) Words and phrases which are defined by part I of the
Administrative Manual (section 1-3) shall have the same meaning for the
purposes of this Part 401.
(c) Application shall mean a request for action by the Commission in
any written form, including without limitation thereto, a letter,
referral by any agency of a signatory party, or an official form
prescribed by the Commission; provided that whenever an official form
of application has been duly required, an application shall not be
deemed to be pending before the Commission until such time as such form,
together with the information required thereby, has been completed and
filed.
(d) Applicant shall mean any sponsor or other person who has
submitted an application to the Commission.
(e) Sponsor shall mean any person authorized to initiate, construct
or administer a project.
18 CFR 401.122 Supplementary details.
Forms, procedures and supplementary information, to effectuate these
regulations, may be provided or required by the Executive Director as to
any hearing, project or class of projects.
18 CFR 401.123 Waiver of rules.
The Commission may, for good cause shown, waive rules or require
additional information in any case.
18 CFR 401.124 Construction.
This part is promulgated pursuant to section 14.2 of the Compact and
shall be construed and applied subject to all of the terms and
conditions of the Compact and of the provisions of section 15.1 of Pub.
L. 87-328, 75 Stat. 688.
18 CFR 401.124 PART 410 -- BASIN REGULATIONS; WATER CODE AND
ADMINISTRATIVE MANUAL -- PART III WATER QUALITY REGULATIONS
Authority: Delaware River Basin Compact, 75 Stat. 688.
18 CFR 410.1 Basin regulations -- Water Code and Administrative Manual
-- Part III Water Quality Regulations.
(a) The Water Code of the Delaware River Basin is a codification of
regulations of the Delaware River Basin Commission concerning the
policies and standards applicable to public and private water projects
and programs within the Delaware River Basin. Article I of the water
code sets forth general policies of the Commission. Article II concerns
the conservation, development and utilization of Delaware River Basin
water resources. Article III sets forth the water quality standards and
guidelines for the Delaware River Basin. The Commission's
Administrative Manual -- Part III, Water Quality Regulations, apply to
all waste dischargers, public and private, using the waters of the
Delaware River Basin. The regulations contained within the Water Code
and within the Administrative Manual -- Part III Water Quality
Regulations of the Delaware River Basin Commission are hereby
incorporated in and made a part of this Part 410 and include all
amendments to the Water Code and the Administrative Manual -- Part III
Water Quality Regulations adopted through May 28, 1986.
(b) The Water Code and the Administrative Manual -- Part III and the
regulations contained therein and information about them may be obtained
from the Delaware River Basin Commission, P.O. Box 7360, West Trenton,
New Jersey 08628.
(c) The regulations may be amended from time to time by the
Commission after due notice and public hearing. An official file of
changes will be kept for public inspection in the offices of the
Commission.
(51 FR 20960, June 10, 1986)
18 CFR 410.1 PART 415 -- BASIN REGULATIONS -- FLOOD PLAIN REGULATIONS
Sec.
415.1 Short title.
415.2 Definitions.
415.3 Purpose and findings.
415.20 Class I projects.
415.21 Class II projects.
415.30 Regulations generally.
415.31 Prohibited uses.
415.32 Permitted uses generally.
415.33 Uses by special permit.
415.40 Administrative agency.
415.41 Special permits.
415.42 Technical standards.
415.43 Mapped and unmapped delineations.
415.50 General conditions.
415.51 Prior non-confirming structures.
415.52 Violations.
Authority: Pub. L. 87-328 (75 Stat. 688).
Source: 42 FR 13541, Mar. 11, 1977, unless otherwise noted.
18 CFR 410.1 Generally
18 CFR 415.1 Short title.
This part shall be known and may be cited as the ''Flood Plain
Regulations.''
18 CFR 415.2 Definitions.
For the purposes of this part, except as otherwise required by the
context:
Project means the same word as defined by section 1.2(g) of the
Delaware River Basin Compact.
Floodway means the channel of the watercourse and those portions of
the adjoining flood plains which are reasonably required to carry and
discharge the regulatory flood. For this purpose the limit of the
floodway shall be established by allowing not more than a one-foot rise
of the water surface elevation of the regulatory flood as a result of
encroachment. Wherever practical, equal conveyance reduction from each
side of the flood plain shall be used. (See Figure 1.)
Insert illus. 2A
Flood fringe means that portion of the flood hazard area outside the
floodway.
Flood hazard area means the area inundated by the regulatory flood.
Flood plain means the area adjoining the channel of a stream which
has been or hereafter may be covered by flood water.
Floodproofing means any combination of structural and nonstructural
additions, changes, or adjustments to properties and structures which
reduce or eliminate flood damage to lands, water and sanitary
facilities, structures, and contents of buildings.
Flood protection elevation means one foot above the elevation of the
flood that has a one percent chance of occurring in any one year. (The
100-year flood).
Major tributary means the mainstem of the following streams:
Brandywine Creek, Brodhead Creek, Big Bushkill Creek, Lackawaxen,
Lehigh, Schuylkill, Neshaminy.
Brandywine Creek, Christina.
East Branch, Mongaup, Neversink, West Branch.
Assunpink, Musconetcong, Paulins Kill, Rancocas, Pequest.
Official flood plain map means a map showing the flood plain area of
a community prepared pursuant to the National Flood Insurance Act, or a
map recognized by the Executive Director as meeting equivalent hydraulic
or engineering criteria.
Regulatory flood means the flood which has a one percent chance of
occurring in any one year. (The 100-year flood.)
Structure means any assembly of material above or below the surface
of land or water, including but not limited to, buildings, dams, fills,
levees, bulkheads, dikes, jetties, embankments, causeways, culverts,
roads, railroads and bridges.
18 CFR 415.3 Purpose and findings.
(a) The Commission hereby finds and determines that the use of flood
plains is affected with a public interest due to:
(1) The danger to life and property due to increased flood heights or
velocities caused by encroachments.
(2) The danger that materials may be swept onto other lands or
downstream to the injury of others.
(3) The requirements of a facility for a waterfront location.
(b) In order to protect the public interest, the following principles
and goals have been determined:
(1) The overall goal is prudent land use within the physical and
environmental constraints of the site.
(2) The principle of equal and uniform treatment shall apply to all
flood plain users who are similarly situated.
(3) Flood plain use shall not result in nuisance to other properties.
(4) Flood plain use shall not threaten public safety, health and
general welfare.
(5) Future land uses in private flood plains shall not result in
public expense to protect the property and associated public services
from flood damage.
(6) All future public and private flood plain users shall bear the
full direct and indirect costs attributable to their use and actions.
(7) Restrictions on flood plain use, and flood hazard information
shall be widely publicized.
(8) Land and water use regulations of responsible units of government
shall not impair or conflict with the flood plain use standards duly
adopted for the basin, except as provided for in 415.42(a) of this
part.
(9) Plans for land and water use adopted by responsible agencies
shall not impair or conflict with these flood plain use standards.
(10) No action of any unit of government shall impair or conflict
with these flood plain use standards.
18 CFR 415.3 Types of Projects and Jurisdiction
18 CFR 415.20 Class I projects.
Projects described in paragraphs (a) and (b) of this section shall be
subject to review by the Commission under standards provided by this
section and in accordance with the provisions of 415.30 through 415.33
of this part, as follows:
(a) All projects subject to review by the Commission under section
3.8 of the Compact and the regulations thereunder.
(b) State and local standards of flood plain regulation.
18 CFR 415.21 Class II projects.
Class II projects, subject to review in accordance with 415.40
through 415.43 of this part, include all projects other than Class I
projects, in non-tidal areas of the basin, which involve either:
(a) A development of land, either residential or non-residential
within a flood hazard area which:
(1) Includes one or more structures covering a total land area in
excess of 50,000 square feet; or
(2) Contains in excess of 25 residential building lots or 25 dwelling
units as part of an integrated development plan whether or not such
development is included in a single application; or
(b) A development of land in the flood hazard area to mine,
manufacture, process, store or dispose of materials which, if flooded,
would pollute the waters of the basin or threaten damage to off-site
areas, including, without limitation thereto, materials which are
poisonous, radioactive, biologically undesirable or floatable.
18 CFR 415.21 Standards
18 CFR 415.30 Regulations generally.
The uses of land within a flood hazard area shall be subject to
regulation within one of the following categories:
(a) Prohibited uses;
(b) Permitted uses generally;
(c) Uses by special permit.
18 CFR 415.31 Prohibited uses.
(a) Within the floodway, except as permitted by special permit, the
following uses are prohibited:
(1) Erection of any structure for occupancy at any time by humans or
animals.
(2) Placing, or depositing, or dumping any spoil, fill or solid
waste.
(3) Stockpiling or disposal of pesticides, domestic or industrial
waste, radioactive materials, petroleum products or hazardous material
which, if flooded, would pollute the waters of the basin.
(4) The storage of equipment or of buoyant materials, except for
purposes of public safety.
(b) Within the flood fringe, except as permitted by special permit,
the following uses are prohibited:
(1) Stockpiling or disposal of pesticides, domestic or industrial
waste, radioactive materials, petroleum products or hazardous material
which, if flooded, would pollute the waters of the basin.
(2) Any use which will adversely affect the capacity of channels or
floodways of any tributary to the main stream, drainage ditch, or any
other drainage facility.
18 CFR 415.32 Permitted uses generally.
(a) Within the floodway, the following uses are permitted to the
extent that they do not require structures, fill or storage of materials
or permanently installed equipment, and do not adversely affect the
capacity of the floodway:
(1) Agricultural uses such as general farming, livestock, and dairy
farming, horticulture, truck farming, sod farming, forestry, wild crop
harvesting, and normal operating practices associated therewith.
(2) Industrial-commercial uses such as loading areas, parking areas
and airport landing strips.
(3) Private and public recreational uses such as golf courses,
driving ranges, archery ranges, picnic grounds, boat launching ramps,
swimming areas, parks, wildlife and nature preserves, game farms,
shooting preserves, target ranges, trap and skeet ranges, hunting and
fishing areas, hiking and horseback riding trails.
(4) Uses such as lawns, gardens, parking areas and play areas.
(b) Within the flood fringe, the following uses are permitted:
(1) Any use permitted in the floodway.
(2) Residences and other structures constructed so that the first
floor, including basement, is above the Flood Protection Elevation.
When fill is used the finished fill elevation shall be no lower than the
Flood Protection Elevation for the particular area and shall extend at
least 15 feet beyond the limits of any structure or building erected
thereon.
18 CFR 415.33 Uses by special permit.
(a) Within the floodway the following uses by special permit may be
authorized under the standards hereinafter provided:
(1) Uses or structures accessory to open space use.
(2) Circuses, carnivals and similar transient enterprises.
(3) Drive-in theaters, signs and billboards.
(4) Extraction of sand, gravel and other non-toxic materials.
(5) Marinas, boat liveries, docks, piers, wharves and water control
structures.
(6) Fish hatcheries.
(7) Railroads, streets, bridges, utility transmission lines and
pipelines.
(b) Within the flood fringe the following uses by special permit may
be authorized under standards hereinafter provided:
(1) Non-residential uses generally. Structures other than residence
shall ordinarily be elevated as herein provided but may in special
circumstances be otherwise flood proofed to a point above the Flood
Protection Elevation.
(2) Commercial uses. Commercial structures shall be elevated so that
no first floor or basement floor is below the Flood Protection
Elevation; or such structures may be flood proofed to the Flood
Protection Elevation. Accessory land uses, such as yards, railroad
tracks and parking lots may be at lower elevations. However, a permit
for such facilities to be used by the general public shall not be
granted in the absence of a flood warning system, if the area is
inundated to a depth greater than two feet or subject to flood
velocities greater than four feet per second upon the occurrence of the
Regulatory Flood.
(3) Manufacturing and industrial uses. Manufacturing and industrial
buildings, structures, and appurtenant works shall be elevated so that
no first floor or basement floor is below the Flood Protection
Elevation; or such structures may be flood proofed to the Flood
Protection Elevation. Measures shall be taken to minimize flood water
interference with normal plant operations especially for streams having
protracted flood durations. Certain accessory land uses as yards and
parking lots may have lesser protection subject to the flood warning
requirements set out in 2 above.
(4) Utilities, railroad tracks, streets and bridges. Public utility
facilities, roads, railroad tracks and bridges shall be designed to
minimize increases in flood elevations and shall be compatible with
local comprehensive flood plain development plans to the extent
applicable. Protection to the Flood Protection Elevation shall be
provided where failure or interruption of these public facilities would
result in danger to the public health or safety, or where such
facilities are essential to the orderly functioning of the area. Where
failure or interruption of service would not endanger life or health, a
lesser degree of protection may be provided for minor or auxiliary
roads, railroads or utilities.
(5) Water supply and waste treatment. No new construction, addition
or modification of a water supply or waste treatment facility shall be
permitted unless the lowest operating floor of such facility is above
the Flood Protection Elevation, or the facility is flood proofed
according to plans approved by the Commission, nor unless emergency
plans and procedures for action to be taken in the event of flooding are
prepared. Plans shall be filed with the Delaware River Basin Commission
and the concerned state or states. The emergency plans and procedures
shall provide for measures to prevent introduction of any pollutant or
toxic material into the flood water or the introduction of flood waters
into potable supplies.
18 CFR 415.33 Administration
18 CFR 415.40 Administrative agency.
(a) Class I projects as defined by 415.20 of this part shall be
subject to review and approval by the Commission.
(b) Class II projects as defined by 415.21 shall be subject to
review and approval by a duly empowered state or local agency; and if
there be no such state or local agency at any time on and after January
1, 1978, and only during such time, the Commission may review any such
project which has been identified by the Executive Director as having
special flood hazards, and: (1) Is located along the mainstem Delaware
River or a major tributary thereof, or (2) an agency of a signatory
party requests such review.
18 CFR 415.41 Special permits.
A special permit may be granted, or granted on stated conditions,
provided:
(a) There is a clear balance in favor of the public interest in terms
of the following environmental criteria:
(1) The importance of a facility to the community.
(2) The availability of alternative locations not subject to flooding
for the proposed use.
(3) The compatibility of the proposed use with existing development
and development anticipated in the foreseeable future.
(4) The relationship of the proposed use to any applicable
comprehensive plan or flood plain management program for the area.
(5) The safety of access to the property in times of flood for
ordinary and emergency vehicles.
(6) The expected heights, velocity, duration, rate of rise and
sediment transport of the flood water expected at the site.
(7) The degree to which the proposed activity would alter natural
water flow or water temperature.
(8) The degree to which archaeological or historic sites and
structures, endangered or rare species of animals or plants, high
quality wildlife habitats, scarce vegetation types, and other
irreplaceable land types would be degraded or destroyed.
(9) The degree to which the natural, scenic and aesthetic values at
the proposed activity site could be retained.
(b) The project shall not:
(1) Endanger human life.
(2) Have high flood damage potential.
(3) Obstruct flood flows nor increase flood heights or velocities
unduly whether acting alone or in combination with other uses.
(4) Degrade significantly the water carrying capacity of any
delineated floodway or channel.
(5) Increase significantly the rate of local runoff, erosion, or
sedimentation.
(6) Degrade significantly the quality of surface water or the quality
or quantity of ground water.
(7) Be susceptible to flotation.
(8) Have service facilities installed below the elevation of the
regulatory flood without being adequately flood proofed.
18 CFR 415.42 Technical standards.
(a) Standards used by state and local governments shall conform in
principle to Commission standards but may vary in detail provided that
resulting flood plain use will not be less restrictive than would result
from the application of Commission standards. The Commission will
review proposed state and local flood plain regulations to determine
their compliance with Commission standards.
(b) Because of the variety and diversity of presently recognized
hydrologic procedures, no one procedure or method is prescribed for
determining the peak flow in cubic feet per second for the 100-year
storm (Q 100) on which profiles for the delineation of flood hazard
areas are based. The following may be used:
(1) A uniform Technique for Determining Flood Flow Frequencies --
Bulletin No. 15 -- Water Resources Council, December 1967.
(2) Basin-Wide Program for Flood Plain Delineation -- Delaware River
Basin Commission -- Anderson-Nichols & Co., Inc., June 1973.
(3) Magnitude and Frequency of Floods in New Jersey with Effects of
Urbanization -- Special Report 38 U.S.G.S. -- New Jersey Department of
Environmental Protection, 1974.
(4) Guidelines for Determining Flood Flow Frequency -- Bulletin No.
17 -- Water Resources Council, March 1976.
State and local agencies may use methods resulting in Q 100s which
are in reasonable agreement with those of the Commission. Any
significant difference shall be reviewed with and subject to approval by
the Executive Director.
(c) Methods and procedures shall be uniform, so far as practicable,
within sub-basins which have a major effect on the larger basins of
which they are a part. To assist in achieving this objective the
Commission staff will periodically provide to the various interested
governmental agencies and others Q 100 data as developed by the Delaware
River Basin Commission Hydrology Coordinating Committee for key
locations in the Delaware River Basin. These will be based on a Log
Pearson Type 3 analysis of data from the U.S.G.S. gaging stations using
station skew, regional skew, or weighted skew, depending on the scope of
data at each station.
18 CFR 415.43 Mapped and unmapped delineations.
(a) Whenever an official flood plain map providing the pertinent
information is available with respect to a given project, the map shall
be used for the delineation of the flood hazard area, floodway, flood
fringe and determination of flood protection elevation.
(b) Whenever an official flood plain map providing the required
information is not available with respect to a given project, the
administrative agency shall require the project landowner to submit
details concerning the proposed uses as needed to determine the floodway
and flood fringe limits at the proposed site, including: cross-sections
of the stream channel and overbanks, stream profile, and factors
involved in determining obstructions to flow. From the data submitted,
soil surveys, historic flood maps, high water marks and other empirical
data, the applicant, subject to verification by the administrative
agency, shall calculate flood hazard areas, and establish the flood
protection elevation for the particular site.
(c) Pending the preparation and completion of flood plain mapping, a
''general flood plain'' area shall be prescribed by the administrative
agency to delineate for public guidance the areal limits of site
locations which are required to be submitted for review under this
regulation.
18 CFR 415.43 Enforcement
18 CFR 415.50 General conditions.
On and after January 1, 1978, where: (a) The flood hazard at the
site is clear, present and significant, or the local government having
jurisdiction has special flood hazard areas identified pursuant to the
National Flood Insurance Act; and (b) the site is not subject to an
approved state or municipal regulatory system having the same or similar
effect on the flood hazard as this regulation, the Commission may
condition its approval on any local governmental project under section
3.8 of the Compact upon the adoption and enforcement of flood plain
regulations, approved hereunder, by the state or local government having
jurisdiction.
18 CFR 415.51 Prior non-conforming structures.
A structure which was lawful before the adoption of this regulation
but which is not in conformity with the provisions hereof, shall be
subject to the following conditions (to be enforced by the appropriate
authority as to Class I and Class II projects, respectively, under
415.40 through 415.43 of this part):
(a) A non-conforming structure in the floodway may not be expanded,
except that it may be modified, altered or repaired to incorporate flood
proofing measures provided such measures do not raise the level of the
100-year flood.
(b) A non-conforming structure in the floodway which is destroyed or
damaged by any means, including a flood, to the extent of 50 percent or
more of its market value at that time may not be restored, repaired,
reconstructed or improved except in conformity with the provisions of
these regulations.
18 CFR 415.52 Violations.
Any violation of this regulation shall be subject to penalties
imposed by the Compact.
18 CFR 415.52 PART 420 -- BASIN REGULATIONS -- WATER SUPPLY CHARGES
Sec.
420.1 Definitions.
420.21 Policy.
420.22 Prohibition; sanctions.
420.23 Exempt uses under the Compact.
420.24 Effective date of rates.
420.31 Certificate of entitlement.
420.32 Measurement and billing of water taken.
420.33 Payment of bills.
420.41 Schedule of water charges.
420.42 Contracts; minimum charge.
420.43 Exempt use.
420.44 Cooling water.
420.45 Historical use.
420.51 Hydroelectric power plant water use charges.
Authority: Pub. L. 87-328 (75 Stat. 688).
Source: 42 FR 13544, Mar. 11, 1977, unless otherwise noted.
18 CFR 415.52 General
18 CFR 420.1 Definitions.
For the purposes of this Part 420, except as otherwise required by
the context:
Person means any person, corporation, partnership, association,
trust, or other entity, public or private.
Water user means any person who uses, takes, withdraws or diverts
surface waters within the Delaware River Basin.
Executive Director means the Executive Director of the Delaware River
Basin Commission.
Consumptive use means the water lost due to transpiration from
vegetation in the building of plant tissue, incorporated into products
during their manufacture, lost to the atmosphere from cooling devices,
evaporated from water surfaces, exported from the Delaware River Basin,
or any other water use for which the water withdrawn is not returned to
the surface waters of the basin undiminished in quantity.
18 CFR 420.1 Water Supply Policy
18 CFR 420.21 Policy.
The provisions of this Part 420 implement Commission Resolution No.
71-4 (Comprehensive Plan) relating to water supply charges.
18 CFR 420.22 Prohibition; sanctions.
Any person, firm, corporation or other entity, including a public
corporation, body or agency, who shall use, withdraw or divert surface
waters of the basin, shall pay such charges therefor as may be required
by this resolution. Any violation of this resolution shall be subject
to penalty as prescribed under Article 14.17 of the Compact. The
Commission may also recover the value (according to the established
water pricing schedules of the Commission) of any such use, withdrawal
or diversion, and invoke the jurisdiction of the courts to enjoin any
further use, withdrawal or diversion, unless all charges under this
resolution are paid in full when due.
18 CFR 420.23 Exempt uses under the Compact.
(a) Section 15.1(b) of the Delaware River Basin Compact provides that
''no provision of section 3.7 of the Compact shall be deemed to
authorize the Commission to impose any charge for water withdrawals or
diversions from the basin if such withdrawals or diversions could
lawfully have been made without charge on the effective date of the
Compact; * * *'' In compliance with this provision: There shall be no
charge for water withdrawn or diverted in quantities not exceeding the
legal entitlement of the user, determined as of October 27, 1961. Each
water user may submit proof satisfactory to the Commission of the
factors constituting legal entitlement, as defined in paragraph (b)
thereof. In the absence of such proof of these conditions as of October
27, 1961, the quantity of water exempt from charge to each user will be
the legal entitlement of the user determined as of March 31, 1971.
(b) For the purposes of paragraph (a) of this section:
(1) ''Legal entitlement'' means the quantity or volume of water
expressed in million gallons per month determined by the lesser of the
following conditions:
(i) A valid and subsisting permit, issued under the authority of one
of the signatory parties, if such permit was required as of October 27,
1961, or thereafter;
(ii) Physical capability as required for such taking; or
(iii) The total allocable flow without augmentation by the
Commission, using a seven-day, ten-year, low-flow criterion measured at
the point of withdrawal or diversion.
(2) ''Physical capability'' means the capacity of pumps, water lines
and appurtenances installed and operable, determined according to sound
engineering principles. The physical capability specifically includes
plant facilities actually using water, but excludes facilities which may
have been installed in anticipation of future plant expansion not yet
realized.
(c) Whenever adequate records of legal entitlement for agricultural
irrigation purposes are not available to the Commission, such legal
entitlement shall be measured by the maximum number of acres under
irrigation by the water user at any time during the year ending March
31, 1971, allowing one acre-foot of surface water annually per acre
irrigated.
(d) Notwithstanding the provisions of paragraphs (a), (b) and (c) of
this section , there shall be no charge for water made available from
storage where: (1) The cost of the storage facility has or will be
otherwise paid for by the user, (2) such storage controls a drainage
area, and (3) the use does not exceed the yield of such storage without
augmentation from other surface water of the basin.
18 CFR 420.24 Effective date of rates.
Rates and charges shall apply to all water users not exempt hereunder
on and after the date of the first impoundment of water for water supply
purposes at the Beltzville Reservoir (February 8, 1971), or the
effective date hereof, whichever is later.
18 CFR 420.24 Entitlement; Measurement; Billing
18 CFR 420.31 Certificate of entitlement.
(a) The Executive Director will issue to each known water user a
certificate of entitlement within 30 days after the effective date of
these regulations subject to the provisions of paragraph (b). In
addition, any other water user may apply for a certificate of
entitlement at any time. A preliminary notice of entitlement shall be
issued to each user. Such entitlement shall become final and take
effect, unless the user shall file with the Commission, within 20 days
after the service of the notice of entitlement, a request for hearing by
the Commission. At such hearing the water user may show cause why the
proposed entitlement shall not take effect.
(b) The Executive Director shall schedule a hearing to be held not
less than ten days after receipt of a request for a hearing by the
Commission. Hearings shall be conducted and the results thereof subject
to review in accordance with Article 5 of the Commission's rules of
practice and procedure.
(c) A final certificate of entitlement will be issued either upon
expiration of the time to request a hearing, where there has been no
request, or in accordance with the determination of a hearing where one
is held.
(d) A certificate of entitlement is not transferable, except as
provided in paragraphs (e) and (f) of this section.
(e) Whenever ownership or possession of land in agricultural use is
transferred, a certificate of entitlement with respect to such land
shall be deemed to run with the land, so long as the water use continues
to be for agricultural irrigation. Upon any such land transfer, the
Executive Director will reissue a certificate of entitlement to the new
user.
(f) A certificate of entitlement may be transferred in connection
with a corporate reorganization within any of the following categories:
(1) Whenever property is transferred to a corporation by one or more
persons solely in exchange for stock or securities of the same
corporation, provided that immediately after the exchange the same
person or persons are in control of the transferee corporation, that is,
they own 80 percent of the voting stock and 80 percent of all other
stock of the corporation.
(2) Whenever the transfer is an incident of a statutory merger or
consolidation pursuant to the corporation laws of any state, the
District of Columbia or the United States.
(3) Whenever the transfer is included in a transfer by a corporate
holder of a certificate of entitlement of all or a part of its assets to
another corporation if immediately after the transfer, the transferor or
one or more of its stockholders, or any combination thereof, are in
control of the corporation to which the assets are transferred, and such
transfer is in exchange solely for stocks or securities of the
transferee corporation as a party to a reorganization within the meaning
of section 354 or section 361 of the Internal Revenue Code.
(4) Where such transfer is required merely as a result of a change of
the name, identity, form or place of organization of a corporate holder
of a certificate of entitlement.
18 CFR 420.32 Measurement and billing of water taken.
(a) The quantity and volume of waters used by each person shall be
determined by meters, or other methods approved by the Commission,
installed, maintained and read by or on behalf of the taker. Meters or
other methods of measurement shall be subject to approval and inspection
by the Commission as to installation, maintenance and reading.
(b) Each user of surface water who is not exceeding the quantity
specified in his ''certificate of entitlement'' shall annually, on or
before January 31, file with the Commission, on a form to be prescribed
by the Executive Director, a report of the user's physical capability,
as defined, permit limitations, and the volume of water used during the
preceding year.
(c) Each user of surface water who is taking a quantity of water
greater than the amount specified in his ''certificate of entitlement''
shall report his usage to the Commission on or before April 30, July 31,
October 31 and January 31, of each year covering the next preceding
calendar quarter, respectively, on forms to be prescribed by the
Executive Director. The amount due for water usage in excess of the
legal entitlement for each of the first three quarters of a calendar
year shall be computed and paid by the user, together with the report.
(d) The Commission will render a statement of the net amount due
based on the fourth quarter report, including a negative or positive
adjustment, so that the net total billing and payment for four quarters
will equal the total water used during the four quarters less the user's
legal entitlement, if any.
18 CFR 420.33 Payment of bills.
The amount due for each quarter shall bear interest at the rate of 1
percent per month for each day it is unpaid beginning 30 days after the
due date of the quarterly report for the first three quarters and 30
days after the bill is rendered for the fourth quarter.
18 CFR 420.33 Charges; Exemptions
18 CFR 420.41 Schedule of water charges.
The Commission will from time to time, after public notice and
hearing, make, amend and revise a schedule of water charges. Until
changed, the charge for water shall be as follows:
(a) Six cents per thousand gallons for consumptive use; and
(b) Six-tenths of a mill per thousand gallons for nonconsumptive use.
(42 FR 13544, Mar. 11, 1977, as amended at 43 FR 56655, Dec. 4, 1978)
18 CFR 420.42 Contracts; minimum charge.
Subject to the exclusions for certificates of entitlement and exempt
uses, the Executive Director may require contracts for any taking, use,
withdrawal or diversion of waters of the basin. Each contract shall
provide for a minimum annual payment in accordance with an estimated
annual demand schedule, regardless of use, withdrawal or diversion. The
failure of any person to execute a contract under this section shall not
affect the application of other requirements of this resolution.
18 CFR 420.43 Exempt use.
The following uses shall be exempt from charge:
(a) Non-consumptive uses of less than 1,000 gallons during any day,
and less than 100,000 gallons during any quarter.
(b) Ballast water used for shipping purposes.
(c) Water taken, withdrawn or diverted from streams tributary to the
river master's gauging station at Montague.
(d) Water taken, withdrawn or diverted below R.M. 38 (the mouth of
the Cohansey River) and such proportion of waters taken, diverted or
withdrawn above R.M. 38 and below R.M. 92.4 (the mouth of the Schuylkill
River) as the Executive Director may determine, on the basis of
hydrologic studies, would have no discernible effect upon the
maintenance of the salt front below the mouth of the Schuylkill River.
18 CFR 420.44 Cooling water.
Water used exclusively for cooling purposes which is returned to the
stream in compliance with the effluent requirements of applicable water
quality standards, shall be charged at the non-consumptive use rate
except that losses due to in-stream evaporation caused by cooling uses
will be charged as consumptive use.
18 CFR 420.45 Historical use.
A person who or which could not for any reason use, take, withdraw or
divert waters of the basin from the place in question on March 31, 1971,
shall not be entitled to a certificate of entitlement.
18 CFR 420.45 Hydroelectric Power Water Use Charges
18 CFR 420.51 Hydroelectric power plant water use charges.
(a) Annual base charges. Owners of conventional run-of-river
hydroelectric power plants that benefit from water storage facilities
owned or partially owned by the Commission shall pay an annual base
charge to the Commission. The amount of the base annual charge shall be
one dollar per kilowatt of installed capacity.
(b) Annual variable charges. In addition to the base charge
established in (a) of this section, annual charges based on power
generated at each facility will be assessed as follows:
(1) Owners of hydroelectric power plants that benefit from increased
hydraulic head available to the hydroelectric project as a result of
investments by the Commission shall be charged one mill per
kilowatt-hour of energy produced.
(2) Owners of hydroelectric power plants that derive additional
benefits from increased flows available to the hydroelectric project
that would not have been available without the Commission-sponsored
project shall be charged one-half mill per kilowatt-hour of energy
produced. No charges for increased flows will be required when charges
for increased hydraulic head are in effect.
(3) Charges for the use of any facilities such as pipe conduits,
outlet works, and so on, installed in, on or near a Commission-sponsored
project that benefit the hydroelectric project in any way will be
determined on a case-by-case basis as approved by the Commission.
(c) Credits. The owner of any hydroelectric generating facility
shall receive a credit against the current year water use fee otherwise
payable to the Commission for any amount which the Commission receives
from the U.S. Army Corps of Engineers or from the Federal Energy
Regulatory Commission for each calendar year.
(d) Exemptions. No payment will be required when hydroelectric power
facility water use charges would amount to less than $25 per year.
Retroactive charges will not be assessed for facilities which have
already obtained Commission approval pursuant to Section 3.8 of the
Delaware River Basin Compact. All hydroelectric generating projects
that do not benefit from storage owned or partially owned by the
Commission are exempt from these Commission water charges.
(e) Payment of bills. The amount due each year shall bear interest
at the rate of 1% per month for each day it is unpaid beginning 30 days
after the due date. Payments are due within 30 days of the end of each
calendar year. Annual base charges will be prorated for periods less
than a year.
(53 FR 45260, Nov. 9, 1988)
18 CFR 420.51 SUBCHAPTER B -- SPECIAL REGULATIONS
18 CFR 420.51 PART 430 -- GROUND WATER PROTECTION AREA: PENNSYLVANIA
Sec.
430.1 Policy.
430.3 Purpose.
430.5 Definitions.
430.7 Determination of protected areas and restriction on water use.
430.9 Comprehensive plan policies.
430.11 Advance notice of exploratory drilling.
430.13 Protected area permits for new withdrawals.
430.15 Conservation requirements.
430.17 Registration of existing withdrawals.
430.19 Ground water withdrawal metering, recording, and reporting.
430.21 Protection of existing users.
430.23 Technical determinations and procedures.
430.25 Other permit requirements.
430.27 Emergencies.
430.29 Appeals.
430.31 Sanctions: Civil and criminal.
430.33 Duration.
430.35 Amendments.
Authority: Pub. L. 87-328 (75 Stat. 688).
Source: 46 FR 24, Jan. 2, 1981, unless otherwise noted.
18 CFR 430.1 Policy.
The provisions of this part implement Commission Resolutions 80-18
and 80-27 relating to ground water protection in southeastern
Pennsylvania.
18 CFR 430.3 Purpose.
The purpose of this regulation is to protect the ground water
resources in the Triassic lowland and adjacent area of southeastern
Pennsylvania and the public interest in those resources. In particular
this regulation is to:
(a) Assure the effective management of water withdrawals to avoid
depletion of natural stream flows and ground waters and to protect the
quality of such water.
(b) Assure that ground water withdrawals are undertaken consistent
with the policies stated in the Comprehensive Plan.
(c) Protect the just and equitable interests and rights of present
and future lawful users of water resources, giving due regard to the
need to balance and reconcile alternative and conflicting uses in view
of present and threatened shortages of water of the quality required to
serve such uses.
(d) Provide a mechanism for the acquisition of additional information
necessary to more accurately plan and manage water resources.
(e) Encourage all water users to adopt and implement reasonable water
conservation measures and practices, to assure efficient use of limited
water supplies.
18 CFR 430.5 Definitions.
For purposes of this regulation, except as otherwise required by the
context:
Aquifer means waterbearing formation that contains sufficient ground
water to be important as a source of supply.
Comprehensive Plan means the plans, policies and programs adopted as
part of the Comprehensive Plan of the Delaware Basin in accordance with
section 3.2 and Article 13 of the Delaware River Basin Compact.
Ground water means all water beneath the surface of the ground.
Ground water basin means a subsurface structure having the character
of a basin with respect to the collection, retention and outflow of
water.
Ground water protected area means the areas declared and delineated
by the Commission to be a ground water protected area pursuant to
Article 10 of the Delaware River Basin Compact and this regulation.
Ground water recharge means the addition of water to an aquifer by
infiltration of precipitation through the soil, infilitration from
surface streams, lakes or reservoirs, flow of ground water from another
aquifer, or pumpage of water into the aquifer through wells.
Project means the same word as defined by section 1.2(g) of the
Delaware River Basin Compact.
Protected area permit means a permit to divert or withdraw ground
water within the ground water protected area for domestic, municipal,
agricultural or industrial uses, granted pursuant to section 10.3 of the
Delaware River Basin Compact and this regulation.
18 CFR 430.7 Determination of protected areas and restriction on water
use.
In consideration of the foregoing facts and for the purposes cited
above:
(a) The Commission hereby determines and delineates the following
area to be a protected area within the meaning and for the purpose of
Article 10 of the Delaware River Basin Compact:
The ''Southeastern Pennsylvania Ground Water Protected Area'' shall
consist of those portions of the following listed counties and political
subdivision located within the Delaware Basin:
(b) The Commission hereby determines that within the Southeastern
Pennsylvania Ground Water Protected Area demands upon available ground
water supplies have developed or threaten to develop to such a degree as
to create a water shortage or to impair or conflict with the
requirements or effectuation of the Comprehensive Plan. Accordingly, no
person, firm, corporation or other entity within the area shall withdraw
ground water for any purpose at a rate exceeding 10,000 gallons per day,
except as prescribed by this regulation.
18 CFR 430.9 Comprehensive plan policies.
The water resources within the Southeastern Pennsylvania Ground Water
Protected Area shall be managed consistent with the Comprehensive Plan
policies. For purposes of this ground water protected area, section
2.20.4 of the Water Code of the Delaware River Basin shall be applied
using the following definition of the term ''withdrawal limits'':
(a) Withdrawal limits. Except as may be otherwise determined by the
Commission to be in the public interest, withdrawals from the
underground waters of the basin shall be limited to the maximum draft of
all withdrawals from a ground water basin, aquifer, or aquifer system
that can be sustained without rendering supplies unreliable, causing
long-term progressive lowering of ground water levels, water quality
degradation, permanent loss of storage capacity, or substantial impact
on low flows of perennial streams.
18 CFR 430.11 Advance notice of exploratory drilling.
The Commission encourages consultation with any project sponsor who
is considering development of a new or expanded ground water withdrawal
that is being planned for any purpose when the daily average withdrawal
during any calendar month exceeds 10,000 gallons to insure proper
implementation of this regulation and to reduce the possibility of
investment in new ground water development facilities which may not be
approved hereunder. Such consultation should occur early in the
planning stage of a new project and prior to initiation of exploratory
drilling.
(a) Any person, firm corporation or other entity planning a new or
expanded ground water withdrawal that may be operated at a daily average
withdrawal duing any calendar month in excess of 10,000 gallons shall
notify the Executive Director not less than 30 days prior to initiation
of exploratory drilling. Such notice shall be in writing and shall
specify the location of proposed new facility, the anticipated rate of
withdrawal, and the general purpose of the proposed water use. The
notice shall also state the location of existing wells within the radius
set forth in 430.21(a).
(b) Whenever the Executive Director shall deem necessary, or upon
request of a party proposing a new or expanded withdrawal of ground
water, an informal conference may be scheduled to review the nature of
the proposed withdrawal, the applicability of the Commission's standards
relating to ground water, and the requirements of a protected area
permit under this regulation.
18 CFR 430.13 Protected area permits for new withdrawals.
Any person, firm, corporation or other entity who proposes to develop
a new ground water withdrawal or expand an existing ground water
withdrawal for any purpose within the Southeastern Pennsylvania Ground
Water Protected Area shall be required to obtain a protected area permit
under this regulation if the proposed new or increased rate of
withdrawal from a well or group of wells operated as a system average
more than 10,000 gallons per day over a 30-day period. Whenever the
Executive Director, upon investigation or upon a reference from a state
or federal agency, determines that a new or increased withdrawal from a
group of wells within the protected area, whether or not such wells are
operated as a system, may have a substantial effect on the water
resources of the basin or is likely to have a significant adverse effect
on other water uses within the protected area, the Commission may direct
a notice to the owners or sponsors of such wells, and require such
owners or sponsors to apply for and obtain a protected area permit under
this regulation.
(a) Applications for a protected area permit shall be submitted to
the Commission on forms approved by the Executive Director. Each
application shall be accompanied by the following information:
(1) A map indicating the location of existing wells and perennial
streams.
(2) A written report prepared by a hydrogeologist describing the
expected effects of the proposed withdrawal on existing wells, flows of
perennial streams and the long-term lowering of ground water levels.
(3) A log showing the nature of subsurface material encountered
during the construction and installation of the exploratory or
production well(s).
(4) The detailed results of extended pump tests, of not less than 48
hours duration, and records of observations during such pump tests from
representative monitoring wells.
(b) Applications for a protected area permits whose daily average
withdrawal during any calendar month is in excess of 10,000 gallons
shall be accompanied by an application fee of $100. Government agencies
shall be exempt from such application fee.
(c) If the application for a protected area permit is for a daily
average withdrawal during any calendar month in excess of 100,000
gallons, it shall be accompanied by such other information or exhibits
required by Article 3 of the Commission's Rules of Practice and
Procedure. In such cases, only the application fee required by the
Rules will be assessed.
(d) To qualify for approval of a protected area permit, the owner or
sponsor of the proposed withdrawal shall demonstrate that:
(1) The proposed withdrawal is consistent with the Commission's
Comprehensive Plan and the policies and purposes of these regulations.
(2) Opportunities to satisy water requirements on a timely basis from
existing available supplies and facilities have been explored and found
infeasible.
(3) The proposed withdrawal, in conjunction with other withdrawals in
the applicable ground water basin, will not exceed withdrawal limits of
a ground water basin, aquifer or aquifer system.
(4) The proposed withdrawal will not significantly impair or reduce
the flow of perennial streams in the area.
(5) Existing ground and surface water withdrawals will not be
adversely impacted, or will be otherwise assured of adequate supplies in
accordance with the requirements of 430.19 of this part.
(6) The proposed withdrawal will not cause substantial, permanent
adverse impact to the overlying environment.
(7) The owner or sponsor has adopted and will implement conservation
and management programs as required by 430.15 of this part.
(e) Ground water withdrawals for space heating or cooling purposes
that are less than 100,000 gallons per day shall be exempt from
obtaining a protected area permit provided that the water withdrawn is
returned locally, and to the same ground water basin and aquifer system
from which it is withdrawn, undiminished in quantity and quality (except
temperature). Ground water withdrawals for space heating or cooling
that are subsequently used for commercial or industrial water supply
purposes are subject to Commission withdrawal and wastewater discharge
regulations. Ground water withdrawals exempted pursuant to this
subsection shall be subject to the registration requirements of 430.17.
(f) All ground water withdrawal projects exempted by subsection ''e''
above shall be constructed in conformance with accepted industry
practice and as a minimum shall comply with the following standards:
(1) All wells shall be drilled by a Pennsylvania licensed well
driller and a Water Well Inventory Report shall be completed and filed
with the Pennsylvania Department of Environmental Resources (PADER);
(2) No wells shall be located within a 100-year floodway;
(3) All wells shall have top of casing extended a minimum of one foot
above the 100-year flood elevation;
(4) All wells shall have the casing protruding a minimum of six
inches above the immediate surrounding grade;
(5) The area around all wells or well pits shall be constructed
and/or graded to prevent the entrance of surface waters;
(6) All wells shall be accessible for inspection and shall have an
access hole for water level measurements;
(7) In order to protect against significant leaks of refrigerant, all
ground water heat pump systems shall be equipped with an automatic
shutdown device that senses abnormally low or abnormally high
refrigerant pressures;
(8) Any drilled well holes that are abandoned shall be sealed with a
minimum of ten feet of cement grout. Additional seals may be required
to separate different water-bearing zones.
(g) Protected area permits shall be approved or disapproved by the
Executive Director with the concurrence of the Pennsylvania member of
the Commission or his alternate.
(46 FR 24, Jan. 2, 1981, as amended at 50 FR 5973, Feb. 13, 1985)
18 CFR 430.15 Conservation requirements.
The following conservation requirements shall apply to all existing,
new or expanded ground water withdrawals for municipal, public,
industrial or commercial water supply whose cumulative daily average
withdrawal from one or more wells during any calendar month exceeds
10,000 gallons.
(a) Each person, firm, corporation or other entity withdrawing ground
water within the Southeastern Pennsylvania Ground Water Protected Area
for purposes of municipal or public water supply shall comply with the
following conservation requirements:
(1) Water connections shall be metered, and water charges collected
shall be based on metered usage.
(2) A water conservation program shall be initiated and diligently
pursued within the service area of the municipal or public water supply.
Such program shall include a program for leakage control providing for
the monitoring, prevention and repair of significant leakage, and the
provision of customer information relating to water-saving devices.
(3) Interconnections with adjacent water systems shall be considered
to assure more reliable supplies of water during emergencies.
(4) A drought emergency plan specifying actions which would be taken
to reduce demand and assure supplies to priority uses in the event of
drought conditions shall be prepared in cooperation with the
municipalities in the service area. The plan shall be filed with the
Commission.
(b) Each person, firm, corporation or other entity withdrawing ground
water within the Southeastern Pennsylvania Ground Water Protected Area
for purposes of industrial or commercial water supply shall comply with
the following conservation requirements:
(1) Opportunities for water conservation shall be investigated and
all feasible conservation measures shall be implemented at the earliest
practicable time.
(2) Water uses shall be monitored, and a systematic process shall be
adopted and implemented to provide for the detection and expeditious
correction of leakage.
(3) A drought emergency plan specifying the actions to be taken to
reduce demand in the event of drought conditions shall be prepared and
filed with the Commission.
(c) Permits issued pursuant to these regulations shall be conditioned
upon compliance with the requirements of this section.
18 CFR 430.17 Registration of existing withdrawals.
(a) Existing users of ground water within the Southeastern
Pennsylvania Ground Water Protected Area whose lawful use commenced
prior to the effective date of this regulation, whose cumulative monthly
average daily withdrawal from one or more wells exceeds 10,000 gallons
and whose withdrawal has not previously been approved by DRBC, pursuant
to section 3.8 of the Compact, shall, prior to July 1, 1981, register
their use with the Pennsylvania Department of Environmental Resources
acting as agent for the Commission. Registration is required as a
condition for such existing users being eligible for the protection
afforded by this regulation. Such registration shall include
withdrawals from quarries that are not fed by surface streams.
(b) Registrations shall be filed on forms approved by the Executive
Director of the Commission. Each registrant shall provide, without
limitation thereto, the following:
(1) A description of the location, size and depth of each well and
the pump facilities installed therein.
(2) The estimated quantity of water withdrawn from each well, or
related group of wells, during each month of 1980.
(3) The purposes for which the water is withdrawn, its place of use,
and the approximate quantity of water used for each purpose.
(4) The location and method of wastewater disposal and discharge.
(5) A registration fee of $5 for each well.
18 CFR 430.19 Ground water withdrawal metering, recording, and
reporting.
(a) Each person, firm, corporation, or other entity whose cumulative
daily average withdrawal of ground water from a well or group of wells
operated as a system exceeds 10,000 gallons per day during any 30-day
period shall meter or measure and record their withdrawals and report
such withdrawals to the Pennsylvania Department of Environmental
Resources. Withdrawals shall be measured by means of an automatic
continuous recording device, flow meter, or other method, and shall be
measured to within five percent of actual flow. Meters or other methods
of measurement shall be subject to approval and inspection by the
Pennsylvania Department of Environmental Resources as to type, method,
installation, maintenance, calibration, reading, and accuracy.
Withdrawals shall at a minimum be recorded on a daily basis for public
water supply use and on a biweekly basis for all other water uses, and
reported as monthly totals annually. More frequent recording or
reporting may be required by the Pennsylvania Department of
Environmental Resources or the Commission.
(b) The following water uses and operations are exempt from the
metering or measurement requirements of paragraph (a): Agricultural
irrigation; snowmaking; dewatering incidental to mining and quarrying;
dewatering incidental to construction; and space heating or cooling
uses that are exempt from permit requirements in 430.13. Except for
space heating and cooling uses described herein, persons engaged in such
exempt withdrawals in excess of 10,000 gallons per day during any 30-day
period shall record the pumping rates and the dates and elapsed hours of
operation of any well or pump used to withdraw ground water, and report
such information as required in paragraph (a). Space heating and
cooling uses that are exempt from permit requirements in 430.13 shall
also be exempt from the requirement for recording and reporting.
(c) Pursuant to section 11.5 of the Compact, the Pennsylvania
Department of Environmental Resources shall administer and enforce a
program for metering, recording, and reporting ground-water withdrawals
in accordance with this regulation.
(Delaware River Basin Compact, 75 Stat. 688)
(51 FR 25031, July 10, 1986)
18 CFR 430.21 Protection of existing users.
(a) Protected area permits issued under this regulation for new or
expanded withdrawals of ground water shall include conditions to protect
the owners of existing wells in accordance with the provisions of this
section.
(b) Any person, firm, corporation or other entity who commences a new
or expanded withdrawal of ground water that is subject to the
requirement of a protected area permit under this regulation shall
provide mitigating measures if the withdrawal significantly affects or
interferes with any existing well. Mitigation measures may consist of:
(1) Providing an alternative water supply, of adequate quantity and
quality, to the effected well owner(s);
(2) Providing financial compensation to the affected well owner(s)
sufficient to cover the costs of acquiring an alternative water supply
of adequate quantity and quality; or
(3) Such other measures as the Commission shall determine to be just
and equitable under the circumstances present in the case of any
individual application.
(46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986)
18 CFR 430.23 Technical determinations and procedures.
(a) The radius to be considered in assessing the potential impact of
a proposed new or expanded ground water withdrawal, as required by
430.11 and 430.13 of this part shall be as follows:
(b) Ground water withdrawal limits, as defined in section 2.20.4 of
the Water Code of the Delaware River Basis and 430.9 of this part,
shall be calculated on the basis of the average recharge rate to the
basin, aquifer, or aquifer system during repetition of a period which
includes the worst recorded drought.
(c) The requirement of paragraph (a) or (b) of this section may be
modified or waived by the Executive Director or the Commission if an
applicant adopts and implements a program for coordinated use of ground
and surface water, and the applicant demonstrates that operation of the
coordinated program will be consistent with the policies contained in
the Comprehensive Plan and the purposes of these regulations.
(46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986)
18 CFR 430.25 Other permit requirements.
(a) Except to the extent provided in these regulations, registration
of existing ground and surface water withdrawals and the issuance of
withdrawal permits hereunder shall not create any private or proprietary
rights in the water of the basin and the Commission reserves the right
to amend, alter, or repeal these regulations and to amend, alter or
rescind any actions taken hereunder in order to insure the proper
control, use and management of the water resources of the basin.
(b) Neither the obligation to obtain a protected area permit under
this regulation, nor the receipt thereof, shall relieve the sponsor of a
new or expanded ground water withdrawal project of the obligation to
obtain any other applicable permits required by Federal, state or local
government agencies.
(c) A new or expanded ground water withdrawal subject to the
requirement of a protected area permit under this regulation shall not
require any further approval by the Commission if the daily average
withdrawal during any calendar month is less than 100,000 gallons. If
the new or expanded withdrawal exceeds a daily average of 100,000
gallons during any calendar month, the project shall be subject to
review and approval by the commission pursuant to section 3.8 of the
Delaware River Basin Compact, and the requirement of a protected area
permit for such a project shall be in addition to other requirements of
the Commission and its Rules of Practice and Procedure.
(46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986)
18 CFR 430.27 Emergencies.
In the event of an emergency requiring immediate action to protect
the public health and safety or to avoid substantial and irreparable
injury to any private person or property, and the circumstances do not
permit full review and determination in accordance with these
regulations, the Executive Director, with the concurrence of the
Pennsylvania member of the Commission or his alternate, may issue an
emergency permit authorizing an applicant to take such action relating
to these regulations as the Executive Director may deem necessary and
proper. In such cases, the applicant shall be fully responsible for
protecting existing ground water users, as prescribed in 430.19 of this
part. The Executive Director shall report at the next meeting of the
Commission on the nature of the emergency and any action taken under
this section.
(47 FR 21776, May 20, 1982. Redesignated at 51 FR 25031, July 10,
1986)
18 CFR 430.29 Appeals.
Any person aggrieved by any action or decision of the Executive
Director taken under these regulations shall be entitled upon timely
filing of a request therefor, to a hearing in accordance with Article 6
of the Commission'a Rules of Practice and Procedure.
(46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986)
18 CFR 430.31 Sanctions: Civil and criminal.
(a) Any person, association, corporation, public or private entity
who or which violates or attempts or conspires to violate any provision
of this regulation, or any order, regulation or permit issued in
furtherance thereof, shall be punishable as provided in section 14.17 of
the Compact.
(b) General Counsel of the Commission may, in his discretion, request
the appropriate law enforcement officers of the Commonwealth of
Pennsylvania to prosecute any or all violations of this regulation in
accordance with the Compact and the laws of the Commonwealth, and for
recovery of the fines fixed by section 14.17 of the Compact, in the name
and on behalf of the Commission. The Commonwealth of Pennsylvania and
its law enforcement officers are hereby requested pursuant to sections
10.1 and 11.5 of the Compact, to provide such technical, professional
and administrative services as may be required for such enforcement.
(c) In addition to such penal sanctions as may be imposed pursuant to
this section, any violation of this regulation shall be subject to such
civil remedies by injunction and otherwise as provided by law.
(46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986)
18 CFR 430.33 Duration.
The delineation and declaration of the Southeastern Pennsylvania
Ground Water Protected Area made pursuant to this regulation, and the
requirements established hereby, shall continue until terminated by
specific action of the Commission.
(46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986)
18 CFR 430.35 Amendments.
Upon request by any interested party, or on its own motion, the
Commission may consider amendment of this regulation, and modify the
geographic boundaries of the protected area, in accordance with Article
10 of the Compact.
(46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986)
18 CFR 430.35 18 CFR Ch. VI (4-1-93 Edition)
18 CFR 430.35 Water Resources Council
18 CFR 430.35 CHAPTER VI -- WATER RESOURCES COUNCIL
Part
Page
701 Council organization
704 Plan formulation standards and procedures
705 Nondiscrimination in federally-assisted programs -- effectuation
of Title VI of the Civil Rights Act of 1964
706 Employee responsibilities and conduct
707 Compliance with the National Environmental Policy Act (NEPA)
708 Upper Mississippi River Basin Commission: Public participation
in Upper Mississippi River System Master Plan
725 Implementation of Executive Orders 11988, Floodplain Management
and 11990, Protection of Wetlands
740 State water management planning program
18 CFR 430.35
18 CFR 430.35 18 CFR Ch. VI (4-1-93 Edition)
18 CFR 430.35 Water Resources Council
18 CFR 430.35 PART 701 -- COUNCIL ORGANIZATION
18 CFR 430.35 Subpart A -- Introduction
Sec.
701.1 General.
701.2 Creation and basic authority.
701.3 Purpose of the Water Resources Council.
701.4 Functions.
701.5 Organization pattern.
701.6 Location of office.
18 CFR 430.35 Subpart B -- Headquarters Organization
701.51 The Council.
701.52 Definitions.
701.53 Council decisions by Members.
701.54 Interagency Liaison Committee.
701.55 Associate Members.
701.56 Observers.
701.57 Official decisions of the Council.
701.58 Task forces.
701.59 Advisory committees.
701.60 Procedures for revision of rules and regulations.
701.71 The Chairman.
701.76 The Water Resources Council Staff.
701.77 Director -- duties and responsibilities.
701.78 Director -- delegation of authorities.
701.79 Selection policy for professional personnel.
18 CFR 430.35 Subpart C -- Field Organization
701.100 Field Directors.
701.101 Field committees.
701.102 Existing committees.
18 CFR 430.35 Subpart D -- Availability of Information
701.200 Statement of policy.
701.201 Availability of records and informational materials.
701.202 Procedure for requests for information.
701.203 Schedule of fees.
701.204 Time limits for WRC initial determinations regarding requests
for information.
701.205 Time limit for requester to appeal an initial adverse
determination.
701.206 Time limits for WRC final determinations regarding requests
for information appealed by the requester from an initial adverse
determination.
701.207 Extension of time limits for WRC initial and final
determinations.
701.208 WRC petition for judicial extension of time.
701.209 River basin commissions and field committees.
18 CFR 430.35 Subpart E -- Protection of Privacy
701.300 Purpose and scope.
701.301 Definitions.
701.302 Procedures for notification of existence of records
pertaining to individuals.
701.303 Conditions of disclosure.
701.304 Procedures for identification of individuals making requests.
701.305 Procedures for requests for access to or disclosure of
records pertaining to individuals.
701.306 Special procedure: Medical records.
701.307 Requests for correction or amendment to record.
701.308 Council review of request for correction or amendment of
record.
701.309 Appeal of initial adverse determination.
701.310 Disclosure of record to person other than the individual to
whom it pertains.
701.311 Accounting for disclosures.
701.312 Fees.
701.313 Penalties.
701.314 Exemptions.
Authority: Sec. 402, Pub. L. 89-80; 79 Stat. 244, as amended (42
U.S.C. 1962-1962d-5), unless otherwise noted.
18 CFR 430.35 Subpart A -- Introduction
Source: 43 FR 25944, June 15, 1978, unless otherwise noted.
18 CFR 701.1 General.
This part describes the organization established by the Water
Resources Council in discharging its duties and responsibilities. The
organization is designed to assure that Council Members will meet at
least quarterly and consider and decide major matters before the
Council. It provides that the Director can take action when necessary
and appropriate; provided, that in the preparation of agenda items for
the Council meetings, the Director shall consult with the Interagency
Liaison Committee. It also provides that the Council Members shall be
continuously advised of the significant actions of the Council staff.
Council Members expect to participate personally in the work of the
Council.
18 CFR 701.2 Creation and basic authority.
The Water Resources Council was established by the Water Resources
Planning Act of 1965 (Pub. L. 89-80, 79 Stat. 244, as amended (42 U.S.C.
1962-1962d-5)). The rules and regulations of this part are promulgated
by authority of section 402 of the Act (42 U.S.C. 1962d-1).
(41 FR 20548, May 19, 1976)
18 CFR 701.3 Purpose of the Water Resources Council.
It is the purpose of the Water Resources Council to effectuate the
policy of the United States in the Water Resources Planning Act
(hereinafter the Act) to encourage the conservation, development, and
utilization of water and related land resources of the United States on
a comprehensive and coordinated basis by the Federal Government, States,
localities, and private enterprise with the cooperation of all affected
Federal agencies, States, local governments, individuals, corporations,
business enterprises, and others concerned, within the limitations set
forth in section 3 of the Act (42 U.S.C. 1962-1).
18 CFR 701.4 Functions.
The functions of the Water Resources Council are:
(a) To maintain a continuing study and prepare periodically an
assessment of the adequacy of supplies of water necessary to meet the
water requirements in each water resource region in the United States
and of the national interest therein.
(b) To maintain a continuing study of the relation of regional or
river basin plans and programs to the requirements of larger regions of
the Nation.
(c) To appraise the adequacy of administrative and statutory means
for coordination and implementation of the water and related land
resources policies and programs of the several Federal agencies and to
make recommendations to the President with respect to Federal policies
and programs.
(d) To establish, after consultation with appropriate interested
Federal and non-Federal entities, and with approval of the President,
principles, standards, and procedures for Federal participation in the
preparation of comprehensive regional or river basin plans and for the
formulation and evaluation of Federal water and related land resources
projects, including primary direct navigation benefits as defined by
section 7a, Pub. L. 89-670.
(e) To coordinate schedules, budgets, and programs of Federal
agencies in comprehensive interagency regional or river basin planning.
(f) To carry out its responsibilities under Title II of the Act with
regard to the creation, operation, and termination of Federal-State
river basin commissions.
(g) To receive plans or revisions thereof submitted by river basin
commissions in accordance with section 204(3) of the Act (42 U.S.C.
1962b(3)), and to review and transmit them, together with its
recommendations, to the President in accordance with section 104 of the
Act (42 U.S.C. 1962a-3).
(h) To assist the States financially in developing and participating
in the development of comprehensive water and related land resources
plans in accordance with Title III of the Act.
(i) To perform such other functions as the Council may be authorized
by law, executive orders, regulations, or other appropriate instructions
to perform.
(j) To take such actions as are necessary and proper to implement the
Act and to carry out the functions enumerated herein.
18 CFR 701.5 Organization pattern.
(a) The Office of the Water Resources Council is composed of the
Water Resources Council, the Chairman of the Water Resources Council,
the Water Resources Council Staff headed by a Director, and Field
Organizations within its jurisdiction.
(b) The Water Resources Council consists of the following Members:
The Secretary of Agriculture; the Secretary of the Army; the Secretary
of Commerce; the Secretary of Energy; the Secretary of Housing and
Urban Development; the Secretary of the Interior; the Secretary of
Transportation; and the Administrator of the Environmental Protection
Agency.
(c) The Chairman of the Council is designated by the President.
(d) The Water Resources Council staff is employed, assigned duties
and responsibilities, and supervised by the Director.
(e) The Council Members shall establish an Interagency Liaison
Committee. Task forces may be established and assigned duties by the
Director with the concurrence of the Members, and/or action of the
Council. Any Council Member may provide each task force with whatever
representation he or she deems necessary.
(f) Field organizations are established by or operate under the
Council and include field committees formerly under the Inter-Agency
Committee on Water Resources and the offices of the Chairmen of
Federal-State River Basin Commissions established under Title II of the
Act.
18 CFR 701.6 Location of office.
The Headquarters is located in the Washington, D.C. area.
18 CFR 701.6 Subpart B -- Headquarters Organization
Source: 43 FR 25945, June 15, 1978, unless otherwise noted.
18 CFR 701.51 The Council.
Decisions of the Council are made as hereinafter described in
701.53 and 701.54.
18 CFR 701.52 Definitions.
As used in this part the term Member means the Secretary of
Agriculture, the Secretary of the Army, the Secretary of Commerce, the
Secretary of Energy, the Secretary of Housing and Urban Development, the
Secretary of the Interior, the Secretary of Transportation, and the
Administrator of the Environmental Protection Agency, or Alternate
appointed in accordance with 701.53(a) when the alternate is acting for
one of the above-named.
18 CFR 701.53 Council decisions by Members.
Council decisions by Members may be made by direct vote at Council
meetings or by a written communication which may provide for either a
written or telephone response. Written communications shall state the
time limit for voting on issues which they contain; however, extensions
of time may be granted by the Director or Chairman when it is deemed
necessary. Issues raised at Council meetings shall be decided by
majority vote of Members present and voting. Issues identified in
written communications must receive approval of all Members. If an
action item does not receive approval of all Members, it will be
considered as an agenda item at the next Council meeting. For purposes
of this section, approval of all Members shall be defined as approval
without a negative vote within the time limit for voting provided within
each action memorandum. Decisions affecting the authority or
responsibility of a Member, within the meaning of section 3(b) of the
Act, (42 U.S.C. 1962-1(b)), can be made only with that Member's
concurrence.
(a) Each of the Members in 701.5(b) shall designate in writing to
the Chairman, with a copy to the Director, those individuals who may act
as their Alternates in fulfilling the duties as a Member. Each Member
shall designate one Alternate and one second Alternate to represent the
Member on the Council.
(b) A quorum for the transaction of business at Council meetings
shall consist of five or more Members and a majority shall consist of at
least four votes.
(c) Each Member has equal responsibility and authority in all
decisions and actions of the Council. Each Member may place an item on
a meeting agenda or, acting through the Director, circulate in writing
an item for Council action. Each Member, as well as each Associate
Member and each Observer, shall have full access to all information
relating to the performance of his duties and responsibilities.
(d) No vote shall be taken at Council meetings until each Member and
Associate Member present has had full opportunity to express his views.
(e) Members shall meet regularly at least quarterly, upon the call of
the Chairman, or when requested by a majority of Members.
(f) Matters specifically reserved for Council decision by Members
are:
(1) Actions requiring Presidential action or approval.
(2) Approval of Annual Budget requests and the Annual Operating
Program of the Office of the Water Resources Council.
(3) Decisions involving substantial policy issues.
(4) Delegations of authority.
(5) Determination that testimony taken or evidence received shall be
taken under oath.
(6) Issuance of invitations to become Associate Members or Observers.
(7) Appointment and termination of the appointment of the Director.
(43 FR 25945, June 15, 1978, as amended at 45 FR 24460, Apr. 10,
1980)
18 CFR 701.54 Interagency Liaison Committee.
There is established within the Council an Interagency Liaison
Committee (hereafter referred to as ILC).
(a) The ILC shall be composed of one representative for each Member,
Associate Member, and Observer. Additional agency representatives may
participate in the ILC meeting whenever necessary.
(b) The chairmanship of the ILC shall rotate quarterly among the
Members' representatives. Secretarial assistance shall be the
responsibility of the ILC Chairman.
(c) The function of the ILC will be to provide a forum for discussion
of agenda items prior to Council meetings to advise the Director of the
Members' views on such agenda items, and with the Director, to develop
the final agenda. It shall be the duty of the Director or his
representative to brief the ILC on each agenda item at these meetings.
(d) The ILC may meet at other times upon the call of the Chairman or
Director, to consider other items.
(e) Draft agenda items shall be submitted to ILC representatives at
least 30 days prior to the Council meeting. The ILC shall meet at least
20 days prior to the Council meeting. Final Council agenda material
shall be submitted to the Members at least 7 days prior to the Council
meeting.
(f) All ILC meetings will be open except when privileged information
is discussed. At such meetings only representatives of Members shall be
present.
(43 FR 25945, June 15, 1978, as amended at 45 FR 58834, Sept. 5,
1980)
18 CFR 701.55 Associate Members.
(a) The Chairman, with concurrence of the Council, may invite the
heads of other Federal agencies having authorities and responsibilites
relating to the work of the Council to become Associate Members.
Associate Members, on the same terms and conditions as Members, may
designate persons, in accordance with the same procedure identified in
701.53(a), to serve for them as Associate Members.
(b) Associate Members may participate with Members in consideration
of all matters relating to their areas of responsibility, except that
their concurrence on a decision of the Council is not required.
18 CFR 701.56 Observers.
(a) Chairmen and Vice-Chairmen of River Basin Commissions established
under Title II of the Act shall be Observers.
(b) The Chairman, with the concurrence of the Council, may invite the
heads of offices or other officials of the Executive Office of the
President or other Federal agencies to become Observers.
(c) Observers may designate persons to attend Council meetings of
Members. Observers will be furnished agenda and other materials on the
same basis as Associate Members.
18 CFR 701.57 Official decisions of the Council.
Official decisions of the Council shall be of record. Such decisions
shall be recorded in accepted minutes of duly called regular or special
meetings or set forth in resolutions, memoranda, or other documents
approved by Members. Decisions which would affect the authority and
responsibilities of heads of other Federal agencies, including Associate
Members, within the meaning of section 3(b) of the Act, shall only be
made during a regular or special meeting of Members and recorded in the
minutes thereof.
18 CFR 701.58 Task forces.
The Director with Council concurrence or the Council may establish
task forces from time to time to aid in the preparation of issues for
presentation to the Council.
(a) Any Member, Associate Member, or Observer may provide
representation on each task force.
(b) The Director or the Council may designate the chairman of each
task force.
(c) For each task force, the Director or the Council shall set forth
the purpose and specific functions of each task force and their
termination dates in establishing such task forces. Such charter
documents shall also identify the relationship of each task force to
functions of the Council.
(d) Each duly constituted task force will be provided administrative
and secretarial support by the Water Resources Council Staff to the
extent possible, directly or through arrangements with other Federal
agencies.
18 CFR 701.59 Advisory committees.
The Council may establish standing and ad hoc advisory committees.
The establishment, operation, and termination of such committees shall
be in accordance with the Federal Advisory Committee Act (Pub. L.
92-463) and other pertinent law and directives.
18 CFR 701.60 Procedures for revision of rules and regulations.
Revisions proposed by the Water Resources Council Members to the
Principles and Standards Manual of Procedures promulgated as rules and
regulations by the Water Resources Council are to be submitted in
writing by one or more Members of the Water Resouces Council to the
Director, Water Resources Council, to be handled as an action item in
accordance with 701.53. Proposed revisons adopted by the Council in
accordance with 701.53 will be published in the Federal Register as
proposed interim, or final changes. Proposed or interim changes shall
be subject to a minimum 60-day public comment period; after the comment
period, the Water Resources Council will publich notice that the
revision is final as written or as changed to reflect comment or is
revoked. Final changes will not be subject to a public comment period
following publication in the Federal Register and will become effective
when published or at specified data.
(44 FR 72584, Dec. 14, 1979)
18 CFR 701.71 The Chairman.
(a) The Chairman shall preside at Council Meetings of Members.
(b) The Chairman is the official spokesman of the Council and
represents it in its relations with the Congress, the States, Federal
agencies, persons, or the public. He shall from time to time report, on
behalf of the Council, to the President. He shall keep the Council
apprised of his actions under this section.
(c) The Chairman shall request the heads of other Federal agencies to
participate with the Council when matters affecting their
responsibilities are considered by the Council.
(d) In the case of absence, disability, or vacancy, the acting
Chairman shall be, in order of precedence, as designated (1) by the
President (2) by the Chairman from among the Members, or (3) by the
Council from among the Members.
18 CFR 701.76 The Water Resources Council Staff.
The Water Resources Council Staff (hereinafter the Staff) serves the
Council and the Chairman in the performance of their functions and in
the exercise of their authorities in accordance with the Act, the rules
and regulations and other decisions of the Council, and all other laws,
rules, regulations, and orders applicable to the Water Resources
Council, and will be organized in accordance with a structure approved
by the Council.
18 CFR 701.77 Director -- duties and responsibilities.
The Director shall serve as the principal executive officer for the
Council and as the head of the staff, and shall see to the faithful
execution of the policies, programs, and decisions of the Council;
report thereon to the Council from time to time or as the Council may
direct; administer the office and staff of the Council within the
limits of the Annual Budget and the Annual Operating Program related
thereto; make recommendations to the Council and the Chairman relating
to the performance of their functions and the exercise of their
authorities; and facilitate the work of the Council and the Chairman.
His duties and responsibilities include, but are not limited to, the
following:
(a) Acting for the Chairman, represents the Council in its relations
with the Congress, States, Federal agencies, persons, or the public
under the general supervision and direction of the Council.
(b) Establishes the line of succession as Acting Director among the
other officers of the Council below the Deputy Director.
(c) Directs the Staff in its service to the Council and the Chairman
in the performance of their functions and in the exercise of their
authorities. The Director is responsible to the council for the
organization of the Staff, employment and discharge of personnel,
training and personnel development program, assignment of duties and
responsibilities, and the conduct of its work.
(d) Insures that the quality of the work of the Staff in its studies,
reports, and in other assignments is high that the professional
integrity of its personnel is respected, and that its overall
perspective and independence of judgment with regard to water and
related land resources matters is approximately maintained within the
context of the inter-agency, intergovernmental, and other staff
collaboration that is both necessary and desirable in the fulfillment of
the purpose of the Council as set forth in 701.3.
(e) Prepares and recommends reports on legislation, Executive orders,
and other documents requested of the Council.
(f) Prepares and recommends an Annual Budget request in accordance
with policies, rules, and regulations applicable thereto. During its
consideration by the Office of Management and Budget the President and
the Congress, the Director shall seek acceptance of the proposed Annual
Budget by every appropriate means. On behalf of the Council, he is
authorized in his descretion to make appeals and agree to adjustments.
However, to the extent that time and circumstances permit, he shall
consult with and obtain the approval of the Council on all substantial
appeals and adjustments.
(g) Prepares and recommends the Annual Operating Program to carry out
the work of the Council, within the appropriations provided by the
Congress and allowances approved by the Office of Management and Budget.
(h) Prepares and recommends proposed rules and regulations, including
proposed delegations of authority, for carrying out the provisions of
the Act, or other provisions of law which are administered by the
Council.
(i) Prepares and recommends reports and materials for public
information that are explanatory of the work and accomplishments of the
Council.
(j) Appoints staff representatives to each task force established
pursuant to 701.58.
(k) Establishes and enforces administrative rules and regulations
pertaining to the Staff consistent with applicable laws, Executive
Orders, Budget Circulars, and other regulations and orders.
18 CFR 701.78 Director -- delegation of authorities.
(a) Under the authority of section 403 of the Act (42 U.S.C.
1962d-2), the Director is delegated authority to:
(1) Hold hearings, sit and act at such times and places, take such
testimony, receive such evidence, and print or otherwise reproduce and
distribute so much of its proceedings and reprints thereon as he may
deem advisable.
(2) Acquire, furnish, and equip such office space as is necessary.
(3) Use the U.S. mails in the same manner and upon the same
conditions as other departments and agencies of the United States.
(4) Employ and fix compensation of all personnel as the Director
deems advisable in accordance with the civil service laws and the
Classification Act of 1949, as amended; assign duties and
responsibilities among such personnel and supervise personnel so
employed.
(5) Procure services as authorized by section 15 of the Act of August
2, 1946 (5 U.S.C. 3109), at rates not in excess of the daily equivalent
of the rate prescribed for grade GS-18 under section 5332 of Title 5 of
the United States Code in the case of individual experts or consultants.
(6) Purchase, hire, operate, and maintain passenger motor vehicles.
(7) Utilize and expend such funds as are deemed advisable for proper
administration of the authorities delegated herein. However, contract
and individual modifications there of in excess of $100,000 or which
involve significant policy decisions shall be submitted to the Council
for approval before execution.
(8) Request any Federal department or agency (i) to furnish to the
Council such information as may be necessary for carrying out its
functions and as may be available to or procurable by such department or
agency, and (ii) to detail personnel to temporary duty with the Council
on a reimbursable basis.
(9) Make available for public inspection during ordinary office hours
all appropriate records and papers of the Council.
(10) Compute and certify for payment funds to the States in
accordance with standards and formula approved by the Council, and
perform related functions of the Council contained in section 305 of the
Act.
(11) Serve as a duly authorized representative of the Chairman of the
Council for the purpose of audit and examination of any pertinent books,
documents, papers, and records of the recipient of a grant under Title
III of the Act, and recommend to the Chairman the appointment of further
representatives as may be necessary for such function.
(12) Review, for compliance, State programs approved under Title III;
conduct full inquiries as the Council may direct; and recommend for
Council decision such withholding or reinstatement of payments as is
appropriate and authorized by section 304 of the Act.
(13) Serve as the ''responsible agency official'' under Part 705 of
these rules and regulations.
(b) The authorities delegated in this section may be redelegated by
the Director to the extent determined by him to be necessary and
desirable for proper administration.
18 CFR 701.79 Selection policy for professional personnel.
In the selection for employment of the professional staff as a whole,
the Director shall be guided by the following criteria:
(a) Outstanding character and competence -- both personal and
professional.
(b) Spread and balance of training and experience in the several
relevant professions -- ecology; economics; economic geography;
engineering; fish and wildlife biology; forestry; hydrology;
irrigation; landscape architecture; law; political science;
recreation; sanitary engineering; soil conservation; urban and other
land planning; etc.
(c) Diversity of prior identification and experience, both planning
and operating in Washington and in the field; including personnel with
prior identification and experience with Federal, State, or local
government, private enterprise, or university teaching and research.
18 CFR 701.79 Subpart C -- Field Organization
Source: 39 FR 20590, June 12, 1974, unless otherwise noted.
18 CFR 701.100 Field Directors.
The Council may employ as professional staff Field Directors who
shall be designated as chairmen of committees or groups established by
the Council to develop and prepare regional or river basin assessments
or plans. Such Field Directors shall perform their official functions
at locations established by the Council.
18 CFR 701.101 Field committees.
The Council may establish or continue already established regional
committees to carry out assigned functions at field level.
18 CFR 701.102 Existing committees.
Field Committees operating under the Water Resources Council
(formerly under the Inter-Agency Committee on Water Resources) are as
follows:
Pacific Southwest Inter-Agency Committee
Arkansas-White-Red Inter-Agency Committee
Southeast Basins Inter-Agency Committee
18 CFR 701.102 Subpart D -- Availability of Information
Authority: 5 U.S.C. 552 as amended by Pub. L. 93-502, 88 Stat.
1561; 42 U.S.C. 1962d-1.
Source: 40 FR 7253, Feb. 19, 1975, unless otherwise noted.
18 CFR 701.200 Statement of policy.
Water Resources Council records and informational materials are
available to the fullest extent possible consistent with 5 U.S.C.
section 552, as amended, and will be promptly furnished to any member of
the public.
18 CFR 701.201 Availability of records and informational materials.
(a) Except for records and materials exempted from disclosure
pursuant to paragraph (b) of this section, any person may inspect and
copy any document in the possession and custody of the Water Resources
Council in accordance with the procedure provided in 701.202.
(b) The provisions of 5 U.S.C. section 552 which require that
agencies make their records available for public inspection and copying
do not apply to matters which are:
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and (ii) are in fact properly classified pursuant to such
Executive order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Investigatory records compiled for law enforcement purposes but
only to the extent that the production of such records would (i)
interfere with enforcement proceedings, (ii) deprive a person of a right
to a fair trial or an impartial adjudication, (iii) constitute an
unwarranted invasion of personal privacy, (iv) disclose the identity of
a confidential source and, in the case of a record compiled by a
criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, confidential information furnished only by
the confidential source, (v) disclose investigative techniques and
procedures, or (vi) endanger the life or physical safety of law
enforcement personnel;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
Any reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which
are exempt under this subsection.
18 CFR 701.202 Procedure for requests for information.
(a) A member of the public who requests records or materials from the
Water Resources Council must provide a reasonable description of the
records or materials sought so that such records or materials may be
located without undue search or inquiry.
(b) Requests which reasonably describe the records or materials
sought should be directed to the Public Information Officer, Water
Resources Council, Suite 800, 2120 L Street NW., Washington, D.C.
20037.
(c) To insure that requests for information are processed as
expeditiously as possible, all Freedom of Information Act (FOIA)
requests should be clearly identified by the requester as such on the
envelope and in the letter.
(d) Records or materials will be available for inspection and copying
in person during normal business hours or by mail.
(e) Requests for records which originate in or concern matters which
originate in another department or agency may be forwarded to the
department or agency primarily concerned and the requester so notified.
18 CFR 701.203 Schedule of fees.
(a) The Public Information Officer will to the extent practicable,
encourage the widest possible distribution of information by permitting
requests for inspection or copies of records or materials to be met
without cost to the person making the request.
(b) Fees will be charged in the case of requests which are determined
by the Public Information Officer to involve a burden on staff or
facilities significantly in excess of that normally accepted by the
Council in handling routine requests for information.
(c) In all instances where the Public Information Officer determines
that a request for information can be considered as primarily benefiting
the general public (despite a 701.203 determination of burden), such
request shall be met either without cost wherever practicable or at a
reduced cost to the requester. Any such reduction shall be determined
by the Public Information Officer on the basis of the balance between
the benefit to the general public and the cost to the Water Resources
Council.
(d) Fees shall be limited to recovery of only direct costs of search
and duplication but in no event shall the fee for search and duplication
exceed $2.50 per half hour, nor shall the fee for copying exceed $0.25
per page (maximum per page dimension of 8 14 inches).
(e) Unless a request for information specifically states that
whatever cost is involved will be acceptable, or acceptable up to a
specified limit that covers anticipated costs, a request that is
expected to involve an assessed fee in excess of $50.00 will not be
deemed to have been received until the requester is advised promptly
upon physical receipt of the request of the anticipated cost and agrees
to bear it.
(f) When anticipated fees exceed $50.00, a deposit for 25% of the
amount must be made within 10 days of the notice to the requester of the
initial determination.
(g) The Council reserves the right to limit the number of copies of
any document that will be provided to any one person.
18 CFR 701.204 Time limits for WRC initial determinations regarding
requests for information.
(a) An initial determination to grant or deny each request for
information will be made within ten (10) working days of receipt of such
request.
(b) The requester shall be notified immediately of the initial
determination and the reasons therefor.
(c) The Public Information Officer will make initial determinations
to grant requests for information.
(1) In those instances where the initial determination by the Public
Information Officer is to grant the request and the information is
immediately supplied such action will serve as both notice of
determination and compliance with the request.
(2) In those instances where the initial determination by the Public
Information Officer is to grant the request, but the information is not
immediately available, the Public Information Officer will send
immediate notice of the determination to comply, and the approximate
date the information will be forwarded.
(d) The Public Information Officer will make initial determination to
deny the requests only with the concurrence of the General Counsel. The
requester shall be notified immediately of the initial adverse
determination, the reasons therefor, and the right to appeal the initial
adverse determination to the Director.
18 CFR 701.205 Time limit for requester to appeal an initial adverse
determination.
(a) The requester shall have thirty (30) calendar days to file with
the Director an appeal from an initial adverse determination. The
appeal must be in writing.
(b) The thirty (30) day period of appeal shall run from receipt of
the initial adverse determination (in cases of denials of an entire
request) and from receipt of any records being made available pursuant
to the initial adverse determination (in cases of partial denials).
18 CFR 701.206 Time limit for WRC final determinations regarding
requests for information appealed by the requester from an initial
adverse determination.
The Director shall make a final determination with respect to any
appeal within twenty (20) working days after receipt of such appeal. If
the initial adverse determination is in whole or in part upheld by the
Director, the requester shall be notified of the final adverse
determination and the provisions for judicial review of that
determination as stated in the Freedom of Information Act, as amended
(see 5 U.S.C. 552(a)(4) et seq.; as amended by Pub. L. 93-502).
18 CFR 701.207 Extension of time limits for WRC initial and final
determinations.
(a) In unusual circumstances, as specified in this section, the time
limits prescribed in either 701.203 or 701.204 may be extended by
written notice from the responsible WRC official (i.e., the Public
Information Officer in instances of initial requests and the Director in
instances of appeals) to the requester setting forth the reasons for
such extension and the date on which a determination is expected to be
dispatched. No such notice shall specify a date that would result in an
extension for more than ten (10) working days, and in no event shall the
total extended time exceed ten (10) working days with respect to a
particular request.
(b) As used in this section, ''unusual circumstances'' means, but
only to the extent reasonably necessary to the proper processing of the
particular request:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
18 CFR 701.208 WRC petition for judicial extension of time.
The provisions of 701.206 notwithstanding, the Director may petition
for judicial extension of time when exceptional circumstances warrant
such action.
18 CFR 701.209 River basin commissions and field committees.
(a) River basin commissions established pursuant to Title II of the
Water Resources Planning Act are encouraged to establish, pursuant to
section 205(c) of that Act, procedures for public availability of
information that are consistent with 5 U.S.C. 552, as amended, and this
subpart.
(b) Field committees will be governed by the procedures adopted by
the lead Federal agency to implement 5 U.S.C. 552, as amended; except
that if the lead agency of a field committee is a non-Federal entity,
the standards of this subpart shall apply.
(c) Requests for documents and informational materials may be made to
the chairmen of the field committees and river basin commissions at the
following addresses.
(1) River Basin Commissions:
Great Lakes Basin Commission, P.O. Box 999, Ann Arbor, Michigan
48106;
New England River Basins Commission, 55 Court Street, Boston,
Massachusetts 02108;
Ohio River Basin Commission, 36 East 4th Street, Suite 208-220,
Cincinnati, Ohio 45202;
Pacific Northwest River Basins Commission, P.O. Box 908, Vancouver,
Washington 98660;
Upper Mississippi River Basin Commission, Federal Office Building,
Room 510, Fort Snelling, Twin Cities, Minnesota 55111;
Missouri River Basin Commission, 10050 Regency Circle, Suite 403
Omaha, Nebraska 68114.
(2) Field Committees:
Arkansas-White-Red Inter-Agency Committee, Room 4030, Federal
Building, Albuquerque, New Mexico 87101;
Pacific Southwest Inter-Agency Committee, 630 Sansome Street, Room
1216, San Francisco, California 94111;
Southeast Basins Inter-Agency Committee, 402 New Walton Building,
Atlanta, Georgia 30303.
(40 FR 7253, Feb. 19, 1975, as amended at 40 FR 10668, Mar. 7, 1975)
18 CFR 701.209 Subpart E -- Protection of Privacy
Authority: Sec. 402, Water Resources Planning Act of 1965 (Sec.
402, Pub. L. 89-80; 79 Stat. 254, as amended (42 U.S.C. 1962d-1)) and
the Privacy Act of 1974 (Pub. L. 93-579; 88 Stat. 1896 (5 U.S.C.
552a)).
Source: 40 FR 45676, Oct. 2, 1975, unless otherwise noted.
18 CFR 701.300 Purpose and scope.
(a) The purpose of this subpart is to set forth rules to inform the
public about information maintained by the U.S. Water Resources Council
relating to identifiable individuals and to inform those individuals how
they may gain access to and correct or amend information about
themselves.
(b) The regulations in this subpart implement the requirements of the
Privacy Act of 1974 (Pub. L. 93-579; 88 Stat. 1896 (5 U.S.C. 552a)).
(c) The regulations in this subpart apply only to records disclosed
or requested under the Privacy Act of 1974, and not requests for
information made pursuant to the Freedom of Information Act, as amended
(5 U.S.C. 552, as amended by Pub. L. 93-502).
18 CFR 701.301 Definitions.
For the purposes of this subpart, unless otherwise required by the
context:
(a) Council means the U.S. Water Resources Council;
(b) Individual means a citizen of the United States or an alien
lawfully admitted for permanent resident;
(c) Maintain means maintain, collect, use or disseminate;
(d) Record means any item, collection, or grouping of information
about an individual that is maintained by the Council, including, but
not limited to, his education, financial transactions, medical history
and criminal or employment history, and that contains his name, or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph;
(e) Adverse determination means a decision by the proper Council
official to deny, in whole or in part, a request from an individual for
a correction or amendment of a record concerning the individual and
maintained by the Council; and
(f) Record system means system of records as defined in the Act,
i.e., a group of any records under the control of the Council from which
information is retrieved by the name of the individual or by some
identifying particular assigned to the individual.
18 CFR 701.302 Procedures for notification of existence of records
pertaining to individuals.
(a) The systems of records, as defined in the Privacy Act of 1974,
maintained by the Council are listed annually in the Federal Register as
required by that Act. Any individual may request the Council to inform
him or her whether a particular record system named by the individual
contains a record pertaining to him or her. The request may be made in
person during business hours or in writing at the location and to the
person specified in the notice describing that record system.
(b) An individual who believes that the Council maintains records
pertaining to him or her but who cannot determine which records system
contains those records, may request assistance by mail or in person at
the Division of Program Coordination and Management, 2120 L Street, NW.,
Washington, D.C. 20037, during business hours (8:00 a.m. through 4:30
p.m., Monday through Friday, excluding legal holidays).
(c) The Council will attempt to respond to a request as to whether a
record exists within 10 working days from the time it receives the
request or to inform the requestor of the need for additional time or
additional information within 10 working days. If a request is complied
with within 10 working days, no separate acknowledgment will be made.
(40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8343, Feb. 26, 1976)
18 CFR 701.303 Conditions of disclosure.
(a) Subject to the conditions of paragraphs (b) and (c) of this
section, the Council will not disclose any record which is contained in
a system of records, by any means of communication to any person who is
not an individual to whom the record pertains.
(b) Upon written request or with prior written consent of the
individual to whom the record pertains, the Council may disclose any
such record to any person or other agency.
(c) In the absence of a written consent from the individual to whom
the record pertains, the Council may disclose any such record provided
such disclosure is:
(1) To those officers and employees of the Council who have a need
for the record in the performance of their duties;
(2) Required under the Freedom of Information Act (5 U.S.C. 552);
(3) For a routine use compatible with the purpose for which it was
collected;
(4) To the Bureau of Census for purposes of planning or carrying out
a census or survey or related activity under the provisions of Title 13
of the United States Code;
(5) To a recipient who has provided the Council with adequate advance
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(6) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value;
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity authorized by law: Provided,
The head of the agency or instrumentality has made a prior written
request to the Assistant Director Program Coordination and Management
specifying the particular record and the law enforcement activity for
which it is sought;
(8) To a person pursuant to a showing of compelling circumstance
affecting the health or safety of an individual: Provided, That upon
such disclosure notification is transmitted to the last known address of
such individual (and see 701.306);
(9) To either House of Congress, and to the extent of a matter within
its jurisdiction, any committee or subcommittee, or joint committee of
Congress;
(10) To the Comptroller General, or any of his authorized
representatives in the course of the performance of the duties of the
GAO; or
(11) Under an order of a court of competent jurisdiction.
18 CFR 701.304 Procedures for identification of individuals making
requests.
(a) Each individual requesting the disclosure of a record or copy of
a record will furnish the following information with his or her request:
(1) The name of the record system containing the record;
(2) Proof as described in paragraph (b) of this section that he or
she is the individual to whom the requested record relates; and
(3) Any other information required by the notice describing the
record system.
(b) Proof of identity as required by paragraph (a)(2) of this section
will be provided as described in paragraph (b)(1) and (2) of this
section. Requests made by an agent, parent, or guardian will include
the authorization described in 701.310(a) and (b).
(1) Requests made in writing will include a statement, signed by the
individual and properly notarized, that he or she appeared before a
notary public and submitted proof of identification in the form of a
drivers license, birth certificate, passport or other identification
acceptable to the notary public. In any case in which, because of the
extreme sensitivity of the record sought to be seen or copied, the
agency determines that the identification is not adequate, it may
request the individual to submit additional proof of identification.
(2) If the request is made in person, the requester will submit proof
of identification similar to that described in paragraph (b)(1) of this
section, acceptable to the Council.
(41 FR 8343, Feb. 26, 1976)
18 CFR 701.305 Procedures for requests for access to or disclosure of
records pertaining to individuals.
(a) After being informed by the Council that a system of records
contains a record pertaining to him or her, an individual may request
the Council for access to or disclosure of that record to him or her in
the manner described in this section. Each such request of a record or
a copy of it will be made at the place specified in the notice
describing that system of records, either in writing or in person.
Requests may be made by agents, parents, or guardians of individuals as
described in 701.310(a) and (b).
(b) The request for access to or disclosure of a record should
specifically identify the systems of records involved.
(c) The Council will attempt to affirm or deny a request within 10
working days from the time it receives the request or to inform the
requester of the need for additional time, additional information,
identification, or the tendering of fees (as specified in 701.312),
within 10 working days; except that if the request for access was not
preceded by a notification request as provided in 701.302, then the
10-day period will not begin until after such time as it has been
determined that the record exists. If a request is complied with within
10 working days, no separate acknowledgement will be made.
(41 FR 8343, Feb. 26, 1976)
18 CFR 701.306 Special procedure: Medical records.
(a) An individual requesting disclosure of a record which contains
medical or psychological information may name a medical doctor or other
person to act as his agent as described in 701.310(a). Records
containing medical or psychological information may be disclosed to that
agent rather than to the individual at the individual's request.
(b) If the individual has not named a medical doctor as agent, the
Council may determine, after consultation with a medical doctor, that
disclosure of the information would have an adverse effect on the
requester. The Council may then disclose that information to a medical
doctor specified by the individual, rather than to that individual,
either in person or by mail.
(40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8343, Feb. 26, 1976)
18 CFR 701.307 Request for correction or amendment to record.
(a) Any individual who has reviewed a record pertaining to him that
was furnished to him under this subpart, may request the agency to
correct or amend all or any part of that record.
(b) Each individual requesting a correction or amendment will send
the request to the agency official who furnished the record to him.
(c) Each request for a correction or amendment of a record will
contain the following information:
(1) The name of the individual requesting the correction or
amendment;
(2) The name of the system of records in which the record sought to
be corrected or amended is maintained;
(3) The location of that record in the system of records;
(4) A copy of the record sought to be corrected or amended or a
description of that record;
(5) A statement of the material in the record requested to be
corrected or amended;
(6) A statement of the specific wording of the correction or
amendment sought; and
(7) A statement of the basis for the requested correction or
amendment, including any material that the individual can furnish to
substantiate the reasons for the correction or amendment sought.
18 CFR 701.308 Council review of request for correction or amendment of
record.
(a) Not later than 10 days (excluding Saturdays, Sundays, and legal
holidays) after the receipt of the request for the correction or
amendment of a record under 701.307, the Council will acknowledge
receipt of the request and inform the individual whether further
information is required before the correction or amendment can be
considered.
(b) The Council will promptly review the request and either make the
requested correction or amendment or notify the individual of the
initial adverse determination, including in the notification the reasons
for the adverse determination and the appeal procedure provided by
701.309.
(c) The Assistant Director, Program Coordination and Management, or
his designee, will, after consulting with the General Counsel, or his
designee, have the primary authority to make an initial adverse
determination.
(d) The Council will make each requested correction or amendment to a
record if that correction or amendment will correct anything that is not
accurate, relevant, timely, or complete, within the record.
(e) If the requested correction or amendment to a record is agreed to
by the Council, the Council will, within 30 working days: (1) Advise
the individual; (2) correct the record accordingly; and (3) where an
accounting of disclosures had been made (as provided in 701.311),
advise all previous recipients (including the individual) of the record
of the fact that the correction was made and the substance of the
correction.
(40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8343, Feb. 26, 1976)
18 CFR 701.309 Appeal of initial adverse determination.
(a) Any individual whose request for a correction or amendment,
requested by him, to a record has been denied, in whole or in part, may
appeal that decision to the Director of the Council.
(b) The appeal will be in writing and will:
(1) Name the individual making the appeal;
(2) Identify the record sought to be amended;
(3) Name the record system in which that record is contained;
(4) Contain a short statement describing the amendment sought; and
(5) State the name and location of the Council official who made the
initial adverse determination.
(c) Not later than 30 days (excluding Saturdays, Sundays, and legal
holidays) after the date on which the Council received the appeal, the
Director will complete his review of the appeal and make a final
decision thereon. However, for good cause shown, the Director may
extend that 30 day period by not more than an additional 30 working
days. If the Director so extends the period, he will promptly notify
the individual requesting the review that the extension has been made
and the reasons therefor.
(d) After review of an appeal request, the agency will send a written
notice to the requester containing the following information:
(1) The decision and, if the denial is upheld, the reasons for the
decision; and
(2) The specific civil remedies available to the requester as per
section 2(g) of Pub. L. 93-579, as well as notice that additional
remedies may be appropriate and available to enable the full exercise of
the requester's rights at law.
(3) The right to file with the Council a concise statement setting
forth the requester's reasons for disagreement with the Council's
refusal to correct or amend the record.
(40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8344, Feb. 26, 1976)
18 CFR 701.310 Disclosure of record to person other than the individual
to whom it pertains.
(a) Any individual who desires to have a record covered by this
subpart disclosed to or mailed to a person other than that individual
may authorize that person to act as his agent for that specific purpose.
The authorization will be in writing, signed by the individual, and
will be notarized. The agent will submit with the authorization proof
of the individual's identity as required by 701.304(b).
(b) The parent of any minor individual or the legal guardian of any
individual who has been declared by a court of competent jurisdiction to
be incompetent due to physical or mental incapacity or age, may act on
behalf of that individual in any matter covered by this subpart. A
parent or guardian who desires to act on behalf of such an individual
will present suitable evidence of parentage or guardianship, by birth
certificate, certified copy of a court order, or similar documents, and
proof of the individual's identity in a form that complies with
701.304(b).
(c) An individual to whom a record is to be disclosed in person
pursuant to this subpart, may have a person of his own choosing
accompany the individual when the record is disclosed.
18 CFR 701.311 Accounting for disclosures.
(a) Maintenance of an accounting. (1) Where a record is disclosed to
any person, or to another agency, under any of the provisions of
701.303 except 701.303(c)(1) and (2), an accounting will be made.
(2) The accounting will record (i) the date, nature, and purpose of
each disclosure of a record to any person or to another agency and (ii)
the name and address of the person or agency to whom the disclosure was
made.
(3) Accountings prepared under this section will be maintained for at
least five years or the life of the record, whichever is longer, after
the disclosure for which the accounting is made.
(b) Access to accounting. (1) Except for accounting of disclosures
made under 701.303(c)(1) and (2), accountings of all disclosures of a
record will be made available to the individual to whom the record
relates at his or her request.
(2) An individual desiring access to accountings of disclosures of a
record pertaining to him or her will submit his request by following the
procedures of 701.305.
(c) Notification of disclosure. When a record is disclosed pursuant
to 701.303(c)(11) as the result of the order of a court of competent
jurisdiction, reasonable efforts will be made to notify the individual
to whom the record pertains as soon as the order becomes a matter of
public record.
(41 FR 8344, Feb. 26, 1976)
18 CFR 701.312 Fees.
(a) The Council will not charge an individual for the costs of making
a search for a record or the costs of reviewing the record. When the
Council makes a copy of a record as a necessary part of the process of
disclosing the record to an individual, the Council will not charge the
individual for the cost of making that copy.
(b) If an individual requests the Council to furnish him with a copy
of the record (when a copy has not otherwise been made as a necessary
part of the process of disclosing the record to the individual), the
Council will charge a maximum fee of $0.25 per page (maximum per page
dimension of 8 14 inches) to the extent that the request exceeds $5.00
in cost to the Council. Requests not exceeding $5.00 in cost to the
Council will be met without cost to the requester.
(40 FR 45676, Oct. 2, 1975. Redesignated at 41 FR 8344, Feb. 26,
1976)
18 CFR 701.313 Penalties.
Title 18 U.S.C. 1001, Crimes and Criminal Procedures, makes it a
criminal offense, subject to a maximum fine of $10,000 or imprisonment
for not more than 5 years or both, to knowingly and willfully make or
cause to be made any false or fraudulent statements or representations
in any matter within the jurisdiction of any agency of the United
States. Section 552a(i)(3) of the Privacy Act (5 U.S.C. 552a(i)(3))
makes it a misdemeanor, subject to a maximum fine of $5,000, to
knowingly and willfully request or obtain any record concerning an
individual under false pretenses. Section 552a(i)(1) and (2) of the
Privacy Act (5 U.S.C. 552a(i)(1) and (2) provide penalties for
violations by agency employees of the Privacy Act or regulations
established thereunder.
(40 FR 45676, Oct. 2, 1975. Redesignated at 41 FR 8344, Feb. 26,
1976)
18 CFR 701.314 Exemptions.
No Council records system or systems are exempted from the provisions
of 5 U.S.C. 552a as permitted under certain conditions by 5 U.S.C.
552a(j) and (k).
(40 FR 45676, Oct. 2, 1975. Redesignated at 41 FR 8344, Feb. 26,
1976)
18 CFR 701.314 PART 704 -- PLAN FORMULATION STANDARDS AND PROCEDURES
18 CFR 701.314 Subparts A-D -- (Reserved)
18 CFR 701.314 Subpart E -- Standards for Plan Formulation and
Evaluation
Authority: Sec. 402, 79 Stat. 254; 42 U.S.C. 1962d-1.
18 CFR 704.39 Discount rate.
(a) The interest rate to be used in plan formulation and evaluation
for discounting future benefits and computing costs, or otherwise
converting benefits and costs to a common time basis, shall be based
upon the average yield during the preceding fiscal year on
interest-bearing marketable securities of the United States which, at
the time the computation is made, have terms of 15 years or more
remaining to maturity: Provided, however, That in no event shall the
rate be raised or lowered more than one-quarter of 1 percent for any
year. The average yield shall be computed as the average during the
fiscal year of the daily bid prices. Where the average rate so computed
is not a multiple of one-eighth of 1 percent, the rate of interest shall
be the multiple of one-eighth of 1 percent nearest to such average rate.
(b) The computation shall be made as of July 1 of each year, and the
rate thus computed shall be used during the succeeding 12 months. The
Executive Director shall annually request the Secretary of the Treasury
to inform the Water Resources Council of the rate thus computed.
(c) Subject to the provisions of paragraphs (d) and (e) of this
section, the provisions of paragraphs (a) and (b) of this section shall
apply to all Federal and federally assisted water and related land
resources project evaluation reports submitted to the Congress, or
approved administratively, after the close of the second session of the
90th Congress.
(d) Where construction of a project has been authorized prior to the
close of the second session of the 90th Congress, and the appropriate
State or local governmental agency or agencies have given prior to
December 31, 1969, satisfactory assurances to pay the required
non-Federal share of project costs, the discount rate to be used in the
computation of benefits and costs for such project shall be the rate in
effect immediately prior to the effective date of this section, and that
rate shall continue to be used for such project until construction has
been completed, unless the Congress otherwise decides.
(e) Notwithstanding the provisions of paragraphs (a) and (b) of this
section, the discount rate to be used in plan formulation and evaluation
during the remainder of the fiscal year 1969 shall be 4 5/8 percent
except as provided by paragraph (d) of this section.
(f) Section V. G. 2 of the interagency agreement dated May 15, 1962,
approved by the President on May 15, 1962, entitled ''Policies,
Standards, and Procedures in the Formulation, Evaluation, and Review of
Plans for Use and Development of Water and Related Land Resources,'' and
published on May 29, 1962, as Senate Document No. 97, 87th Congress, 2d
Session, is superseded by the provisions of this section.
(33 FR 19170, Dec. 24, 1968)
18 CFR 704.39 PART 705 -- NONDISCRIMINATION IN FEDERALLY ASSISTED
PROGRAMS -- EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Sec.
705.1 Purpose.
705.2 Definitions.
705.3 Application of this part.
705.4 Discrimination prohibited.
705.5 Assurance required.
705.6 Compliance information.
705.7 Conduct of investigations.
705.8 Procedure for effecting compliance.
705.9 Hearings.
705.10 Decisions and notices.
705.11 Judicial review.
705.12 Effect on other regulations.
Authority: Sec. 602 of Pub. L. 88-352, 78 Stat. 252, (42 U.S.C.
2000 d -- 1), and sec. 402 of Pub. L. 89-80, 79 Stat. 254, (42 U.S.C.
1962 d -- 1).
Source: 39 FR 41521, Nov. 29, 1974, unless otherwise noted.
18 CFR 705.1 Purpose.
The purpose of this subpart is to implement the provisions of Title
VI of the Civil Rights Act of 1964, 78 Stat. 252 (hereafter referred to
as the ''Act''), to the end that no person in the United States shall,
on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or otherwise be subjected
to discrimination under any program or activity receiving Federal
financial assistance from the Water Resources Council.
18 CFR 705.2 Definitions.
As used in this part:
(a) Applicant means one who submits an application, request, or plan
required to be approved by the Water Resources Council, or by a primary
recipient, as a condition to eligibility for Federal financial
assistance, and the term application means such an application, request,
or plan.
(b) Facility includes all or any part of structures, equipment, or
other real or personal property or interests therein, and the provision
of facilities includes the construction, expansion, renovation,
remodeling, alteration or acquisition of facilities.
(c) Federal financial assistance includes:
(1) Grants and loans of Federal funds;
(2) The grant or donation of Federal property and interests in
property;
(3) The detail of Federal personnel;
(4) The sale and lease of, and the permission to use (on other than a
casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient; and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
(d) Primary recipient means any recipient that is authorized or
required to extend Federal financial assistance to another recipient for
the purpose of carrying out a program.
(e) Program includes any program, project, or activity for the
provision of services, financial aid, or other benefits to individuals
(including education or training, health, welfare, rehabilitation,
housing, or other services, whether provided through employees of the
recipient of Federal financial assistance or provided by others through
contracts or other arrangements with the recipient, and including work
opportunities), or for the provision of facilities for furnishing
services, financial aid or other benefits to individuals. The services,
financial aid, or other benefits provided under a program receiving
Federal financial assistance shall be deemed to include any services,
financial aid, or other benefits provided with the aid of Federal
financial assistance or the aid of any non-Federal funds, property, or
other resources required to be expended or made available for the
program to meet matching requirements or other conditions which must be
met in order to receive the Federal financial assistance, and to include
any services, financial aid, or other benefits provided in or through a
facility provided with the aid of Federal financial assistance or such
non-Federal resources.
(f) Recipient may mean any State, territory, possession, the District
of Columbia, or Puerto Rico, or any political subdivision thereof, or
instrumentality thereof, any public or private agency, institution, or
organization, or other entity, or any individual, in any State,
territory, possession, the District of Columbia, or Puerto Rico, to whom
Federal financial assistance is extended, directly or through another
recipient, for any program, including any successor, assignee, or
transferee thereof, but such term does not include any ultimate
beneficiary under any such program.
(g) Responsible agency official means the Director of the Water
Resources Council or his designee.
18 CFR 705.3 Application of this part.
This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Water Resources
Council. It applies to money paid, property transferred, or other
Federal financial assistance extended under any such program after the
date of this part pursuant to an application whether approved before or
after such date. This part does not apply to (a) any Federal financial
assistance by way of insurance or guaranty contracts, or (b) any
employment practice except to the extent described in 705.4(c).
18 CFR 705.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the grounds of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under, any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program to which this part applies may not directly or through
contractual or other arrangements, on the grounds of race, color, or
national origin:
(i) Deny a person any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to a person
which is different, or is provided in a different manner, from that
provided to others under the program;
(iii) Subject a person to segregation or separate treatment in any
matter related to his receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict a person in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving any service, financial aid, or
other benefit under the program;
(v) Treat a person differently from others in determining whether he
satisfies any admission, enrollment, quota, eligibility, membership, or
other requirement or condition which persons must meet in order to be
provided any service, financial aid, or other benefit provided under the
program; or
(vi) Deny a person an opportunity to participate in the program
through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program.
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial aid,
or other benefits, or facilities which will be provided under any such
program, or the class of persons to whom, or the situations in which,
such services, financial aid, other benefits, or facilties will be
provided under any such program, or the class of persons to be afforded
an opprotunity to participate in any such program, may not, directly or
through contractual or other arrangements, utilize criteria or methods
of administration which have the effect of subjecting persons to
discrimination because of their race, color, or national origin, or have
the effect of defeating or substantially impairing accomplishment of the
objectives of the program with respect to individuals of a particular
race, color, or national origin.
(3) As used in this section, the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
include any service, financial aid, or other benefit provided in or
through a facility provided with the aid of Federal financial
assistance.
(4) The enumeration of specific forms of prohibited discrimination in
this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(5) This part does not prohibit the consideration of race, color, or
national origin if the purpose and effect are to remove or overcome the
consequences of practices or impediments which have restricted the
availability of, or participation in, the program or activity receiving
Federal financial assistance, on the grounds of race, color, or national
origin. When previous discriminatory practice or usage tends, on the
grounds of race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program or activity to which this part applies,
the applicant or recipient has an obligation to take reasonable action
to remove or overcome the consequences of the prior discriminatory
practice or usage, and to accomplish the purposes of the Act.
(c) Employment practices. (1) Where a primary objective of a program
of Federal financial assistance to which this part applies is to provide
employment, a recipient or other party subject to this part shall not,
directly or through contractual or other arrangements, subject a person
to discrimination on the grounds of race, color, or national origin in
its employment practices under such program (including recruitment or
recruitment advertising, hiring, firing, upgrading, promotion, demotion,
transfer, layoff, termination, rates of pay or other forms of
compensation or benefits, selection for training or apprenticeship, use
of facilities, and treatment of employees). Such recipient shall take
affirmative action to insure that applicants are employed, and employees
are treated during employment, without regard to their race, color, or
national origin. The requirements applicable to construction employment
under any such program shall be those specified in or pursuant to Part
III of Executive Order 11246 or any Executive Order which supersedes it.
(2) Where a primary objective of the Federal financial assistance is
not to provide employment, but discrimination on the grounds of race,
color, or national origin in the employment practices of the recipient
or other persons subject to the regulation tends, on the grounds of
race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program to which this regulation applies, the
provisions of paragraph (c)(1) of this section shall apply to the
employment practice of the recipient or other persons subject to the
regulation, to the extent necessary to assure equality of opportunity
to, and nondiscriminatory treatment of, beneficiaries.
(d) Location of facilities. A recipient may not make a selection of
a site or location of a facility if the purpose of that selection, or
its effect when made, is to exclude individuals from participation in,
to deny them the benefits of, or to subject them to discrimination under
any program or activity to which this rule applies, on the grounds of
race, color, or national origin; or if the purpose is to, or its effect
when made will, substantially impair the accomplishment of the
objectives of this part.
18 CFR 705.5 Assurance required.
(a) General. Every application for Federal financial assistance to
carry out a program to which this part applies, and every application
for Federal financial assistance to provide a facility shall, as a
condition to its approval and the extension of any Federal financial
assistance pursuant to the application, contain or be accompanied by an
assurance that the program will be conducted or the facility operated in
compliance with all requirements imposed by or pursuant to this part.
In the case of an application for Federal financial assistance to
provide real property or structures thereon, or personal property or
equipment of any kind, such assurance shall obligate the recipient, or,
in the case of a subsequent transfer, the transferee, for the period
during which the property is used for a purpose for which the Federal
financial assistance is extended or for any other purpose involving the
provisions of similar services or benefits. In all other cases, such
assurance shall obligate the recipient for the period during which
Federal financial assistance is extended pursuant to the application.
The responsible agency official shall specify the form of the foregoing
assurances for each program, and the extent to which like assurances
will be required of subgrantees, contractors, and subcontractors,
transferees, successors in interest, and other participants in the
program. Any such assurance shall include provisions which give the
United States a right to seek its judicial enforcement.
(b) Planning grants to States. Each designated State agency must
submit the assurance specified in 703.5(n) of these rules and
regulations.
(c) River basin commissions. Each river basin commission is required
to submit, along with its annual budget request, written assurance of
its continuing compliance with 705.4 of this part.
18 CFR 705.6 Compliance information.
(a) Cooperation and assistance. The responsible agency official
shall, to the fullest extent practicable, seek the cooperation of
recipients in obtaining compliance with this part and shall provide
assistance and guidance to recipients to help them comply voluntarily
with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible agency official timely, complete, and accurate
compliance reports at such times, and in such form and containing such
information, as the responsible agency official may determine to be
necessary to enable him to ascertain whether the recipient has complied
or is complying with this part. In the case of any program under which
a primary recipient extends Federal financial assistance to any other
recipient or subcontracts with any other person or group, such other
recipient shall also submit such compliance reports to the primary
recipient as may be necessary to enable the primary recipient to carry
out its obligations under this part.
(c) Access to sources of information. Each recipient shall permit
access by the responsible agency official during normal business hours
to such of its books, records, accounts, and other sources of
information, and its facilities, as may be pertinent to ascertain
compliance with this part. Whenever any information required of a
recipient is in the exclusive possession of any other agency,
institution, or person and that agency, institution, or person fails or
refuses to furnish that information, the recipient shall so certify in
its report and set forth the efforts which it has made to obtain the
information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program under which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the responsible agency official
finds necessary to apprise such persons of the protections against
discrimination assured them by the Act and this part.
18 CFR 705.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible agency official
shall from time to time review the practices of recipients to determine
whether they are complying with this part.
(b) Complaints. Any person who believes himself or any specific
class of individuals to be subjected to discrimination prohibited by
this part may by himself or by a representative file with the
responsible agency official a written complaint. A complaint must be
filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible agency official.
(c) Investigations. The responsible agency official will make a
prompt investigation whenever a compliance review, report, complaint, or
any other information indicates a possible failure to comply with this
part. The investigation should include, whenever appropriate, a review
of the pertinent practices and policies of the recipient, the
circumstances under which the possible noncompliance with this part
occurred, and other factors relevant to a determination as to whether
the recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the responsible agency official will so inform the recipient and
the matter will be resolved by informal means whenever possible. If it
has been determined that the matter cannot be resolved by informal
means, action will be taken as provided for in 705.8.
(2) If an investigation does not warrant action pursuant to
subparagraph (1) of this paragraph, the responsible agency official will
so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall be kept confidential except to the extent
necessary to carry out the purpose of this part, including the conduct
of any investigation, hearing, or judicial proceeding arising
thereunder.
18 CFR 705.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, the responsible
agency official may suspend or terminate, or refuse to grant or
continue, Federal financial assistance, or use any other means
authorized by law, to induce compliance with this part. Such other
means include, but are not limited to, (1) a reference to the Department
of Justice with a recommendation that appropriate proceedings be brought
to enforce any rights of the United States under any law of the United
States (including other titles of the Act), or any assurance or other
contractual undertaking, and (2) any applicable proceeding under State
or local law.
(b) Noncompliance with assurance requirement. If an applicant or
recipient fails or refuses to furnish an assurance required under 705.5
or fails or refuses to comply with the provisions of the assurance it
has furnished, or otherwise fails or refuses to comply with any
requirement imposed by or pursuant to Title VI or this part, Federal
financial assistance may be suspended, terminated, or refused in
accordance with the procedures of Title VI and this part. The Water
Resources Council shall not be required to provide assistance in such a
case during the pendency of administrative proceedings under this part,
except that the Council will continue assistance during the pendency of
such proceedings whenever such assistance is due and payable pursuant to
a final commitment made or an application finally approved prior to the
effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating, or refusing to
grant or continue Federal financial assistance shall become effective
until:
(1) The responsible agency official has advised the applicant or
recipient of his failure to comply and has determined that compliance
cannot be secured by voluntary means;
(2) There has been an express finding on the record, after
opportunity for hearing, of a failure by the applicant or recipient to
comply with a requirement imposed by or pursuant to this part;
(3) The action has been approved by the Chairman of the Water
Resources Council pursuant to 705.10(e); and
(4) The expiration of 30 days after the responsible agency official
has filed with the committee of the House and the committee of the
Senate having legislative jurisdiction over the program involved, a full
written report of the circumstances and the grounds for such action.
Any action to suspend or terminate or to refuse to grant or to continue
Federal financial assistance shall be limited to the particular
political entity, or part thereof, or other applicant or recipient as to
whom such a finding has been made and shall be limited in its effect to
the particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to effect compliance
with Title VI of the Act by any other means authorized by law shall be
taken until:
(1) The responsible agency official has determined that compliance
cannot be secured by voluntary means;
(2) The recipient or other person has been notified or its failure to
comply and of the action to be taken to effect compliance; and
(3) The expiration of at least 10 days from the mailing of such
notice to the recipient or other person. During this period of at least
10 days, additional efforts shall be made to persuade the recipient or
other person to comply with the regulation and to take such corrective
action as may be appropriate.
18 CFR 705.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by 705.8(c), reasonable notice shall be given by registered
or certified mail, return receipt requested, to the affected applicant
or recipient. This notice shall advise the applicant or recipient of
the action proposed to be taken, the specific provision under which the
proposed action against it is to be taken, and the matters of fact or
law asserted as the basis for this action, and either (1) fix a date not
less than 20 days after the date of such notice within which the
applicant or recipient may request of the responsible agency official
that the matter be scheduled for heaing or (2) advise the applicant or
recipient that the matter in question has been set down for hearing at a
stated place and time. The time and place so fixed shall be reasonable
and shall be subject to change for cause. The complainant, if any,
shall be advised of the time and place of the hearing. An applicant or
recipient may waive a hearing and submit written information and
argument for the record. The failure of an applicant or recipient to
request a hearing under this paragraph or to appear at a hearing for
which a date has been set shall be deemed to be a waiver of the right to
a hearing under section 602 of the Act and 705.8(c) and consent to the
making of a decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Water Resources Council in Washington, D.C., at a time fixed by
the responsible agency official unless it determines that the
convenience of the applicant or recipient or of the Council requires
that another place be selected. Hearings shall be held before the
responsible agency official or at its discretion, before a hearing
examiner appointed in accordance with section 3105 of Title 5, U.S.C.,
or detailed under section 3344 of Title 5, U.S.C.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the Water Resources Council shall have the
right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
the Administrative Procedure Act (5 U.S.C. 554-557) and with such other
regulations that may be necessary or appropriate for the conduct of
hearings pursuant to this part.
(2) Technical rules of evidence do not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer
may exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with this part and the regulations of one or more other
Federal departments or agencies issued under Title VI of the Act, the
responsible agency official may, by agreement with such other
departments or agencies, where applicable, provide for the conduct of
consolidated or joint hearings, and for the application to such hearings
of rules or procedures not inconsistent with this part. Final decisions
in such cases, insofar as this regulation is concerned, shall be made in
accordance with 705.10.
18 CFR 705.10 Decisions and notices.
(a) Procedure on decisions by hearing examiner. If the hearing is
held by a hearing examiner, the hearing examiner shall either make an
initial decision, if so authorized, or certify the entire record
including his recommended findings and proposed decision to the
responsible agency official for a final decision, and a copy of such
initial decision or certification shall be mailed to the applicant or
recipient. Where the initial decision is made by the hearing examiner,
the applicant or recipient may, within 30 days after the mailing of such
notice of initial decision, file with the responsible agency official
his exceptions to the initial decision, with his reasons therefor. In
the absence of exceptions, the responsible agency official may, on his
own motion, within 45 days after the initial decison, serve on the
applicant or recipient a notice that he will review the decision. Upon
the filing of such exceptions or of notice of review, the responsible
agency official shall review the initial decision and issue his own
decision thereon including the reasons therefor. In the absence of
either exceptions or a notice or review the initial decision shall,
subject to paragraph (e) constitute the final decision of the
responsible agency official.
(b) Decisions on record or review by the responsible agency official.
Whenever a record is certified to the responsible agency official for
decision or its reviews the decision of a hearing examiner pursuant to
paragraph (a) of this section or whenever the responsible agency
official conducts the hearing, the applicant or recipient shall be given
reasonable opportunity to file with it briefs or other written
statements of its contentions and a written copy of the final decision
of the responsible agency official shall be sent to the applicant or
recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to 705.9, a decision shall be made by the
responsible agency official on the record and a written copy of such
decision shall be sent to the applicant or recipient, and to the
complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or the
responsible agency official shall set forth his or its ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the applicant or recipient has failed to comply.
(e) Approval by the Chairman. Any final decision by the responsible
agency official provides for the suspension or termination of, or the
refusal to grant or continue Federal financial assistance, or the
imposition of any other sanction available under this part or the Act,
shall promptly be transmitted to the Chairman of the Water Resources
Council, who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, under the program involved, and may
contain such terms, conditions, and other provisions as are consistent
with and will effectuate the purposes of the Act and this part,
including provisions designed to assure that no Federal financial
assistance will thereafter be extended under such programs to the
applicant or recipient determined by such decision to be in default in
its performance of an assurance given by it pursuant to this part, or to
have otherwise failed to comply with this part, unless and until it
corrects its noncompliance and satisfies the responsible agency official
that it will fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) shall be
restored to full eligibility to receive Federal financial assistance if
it satisfies the terms and conditions of that order for such eligibility
or if it brings itself into compliance with this part and provides
reasonable assurance that it will fully comply with this part.
(2) Any applicant or recipient adversely affected by an order entered
pursuant to paragraph (f) of this section may at any time request the
responsible agency official to restore fully its eligibility to receive
Federal financial assistance. Any such request shall be supported by
information showing that the applicant or recipient has met the
requirements of paragraph (g)(1) of this section. If the responsible
agency official determines that those requirements have been satisfied,
he shall restore such eligibility.
(3) If the responsible agency official denies any such request, the
applicant or recipient may submit a request for a hearing in writing,
specifying why it believes the responsible agency official to have been
in error. It shall thereupon be given an expeditious hearing, with a
decision on the record. The applicant or recipient will be estored to
such eligibility if it proves at such a hearing that it satisfied the
requirements of paragraph (g)(1). While proceedings under this
paragraph are pending, the sanctions imposed by the order issued under
paragraph (f) of this section shall remain in effect.
18 CFR 705.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
18 CFR 705.12 Effect on other regulations.
(a) Nothing in this part shall be deemed to supersede any other
order, regulation, or instruction which prohibits discrimination on the
grounds of race, color, or national origin in any program or situation
to which this part is inapplicable, or prohibit discrimination on any
other ground.
(b) Forms and instructions. The responsible agency official shall
issue and promptly make available to all interested persons forms and
detailed instructions and procedures for effectuating this part as
applied to programs to which this part applies and for which he is
responsible.
(c) Supervision and coordination. The responsible agency official
may from time to time assign to officials of other departments or
agencies of the Government with the consent of such departments or
agencies, responsibilities in connection with the effectuation of the
purposes of Title VI of the Act and this part (other than responsibility
for final decision as provided in 705.10), including the achievement of
effective coordination and maximum uniformity within the Water Resources
Council and within the Executive Branch of the Government in the
application of Title VI and this part to similar programs and in similar
situations. Any action, taken, determination made, or requirements
imposed by an official of another department or agency acting pursuant
to an assignment of responsibility under this paragraph shall have the
same effect as though such action had been taken by the responsible
agency official.
18 CFR 705.12 PART 706 -- EMPLOYEE RESPONSIBILITIES AND CONDUCT
18 CFR 705.12 Subpart A -- General Provisions
Sec.
706.101 Purpose.
706.102 Definitions.
706.103 Remedial action.
706.104 Interpretation and advisory service.
18 CFR 705.12 Subpart B -- Conduct and Responsibilities of Employees
706.201 Proscribed actions.
706.202 Gifts, entertainment, and favors.
706.203 Outside employment and activity.
706.204 Financial interests.
706.205 Misuse of information.
706.206 Support of Council programs.
706.207 Use of Government property.
706.208 Indebtedness.
706.209 Gambling, betting, and lotteries.
706.210 Coercion.
706.211 General conduct prejudicial to the Government.
706.212 Miscellaneous statutory provisions.
18 CFR 705.12 Subpart C -- Conduct and Responsibilities of Special
Government Employees
706.301 Use of Government employment.
706.302 Use of inside information.
706.303 Gifts, entertainment, and favors.
706.304 Applicability of other provisions.
18 CFR 705.12 Subpart D -- Statements of Employment and Financial
Interests
706.401 Employees required to submit statements.
706.402 Employee's complaint on filing requirement.
706.403 Form of statements.
706.404 Time for submission of statements.
706.405 Supplementary statements.
706.406 Interests of employees' relatives.
706.407 Information not known by employees.
706.408 Information not required.
706.409 Opportunity for explanation of conflict or appearance of
conflict.
706.410 Confidentiality of statements.
706.411 Effect of statements on other requirements.
706.412 Submission of statements by special Government employees.
706.413 Submission of statements by River Basin Commission Chairmen.
Authority: Water Resources Planning Act, 1965 (Sec. 402, Pub. L.
89-80, 79 Stat. 254 (42 U.S.C. 1962d-1)); E.O. 11222 (30 FR 6469, 3 CFR
Proc. 3279; as amended); 5 CFR Part 735 (33 FR 12487).
Source: 40 FR 32818, Aug. 4, 1975, unless otherwise noted.
18 CFR 705.12 Subpart A -- General Provisions
18 CFR 706.101 Purpose.
The maintenance of unusually high standards of honesty, integrity,
impartiality, and conduct by employees and special Government employees
is essential to assure the proper performance of the Water Resources
Council's (hereafter referred to as the Council) business and the
maintenance of confidence by citizens in their Government. The
avoidance of misconduct and conflicts of interest on the part of
employees and special Government employees through informed judgment is
indispensable to the maintenance of these standards. To accord with
these concepts, this part sets forth the Council's regulations
prescribing standards of conduct and responsibilities and governing
statements of employment and financial interests for employees and
special Government employees.
18 CFR 706.102 Definitions.
In this part:
(a) Employee means the Director and an employee of the Council
employed by the Director under the authority of 701.78(a)(4) of this
chapter.
(b) Special Government employee means a special Government employee
as defined in section 202 of Title 18 of the United States Code who is
employed by the Council.
18 CFR 706.103 Remedial action.
(a) A violation of this part by an employee or special Government
employee may be cause for remedial action. Remedial action may include,
but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee or special Government employee of his
conflicting interest;
(3) Disciplinary action which may be in addition to any penalty
prescribed by law; or
(4) Disqualification for a particular assignment.
(b) Remedial action, whether disciplinary or otherwise, shall be
effected in accordance with any applicable laws, Executive orders, and
regulations.
18 CFR 706.104 Interpretation and advisory service.
The General Counsel will serve as Counselor for the purpose of
providing interpretation and advisory assistance to the Council staff on
matters covered in this Part 706.
18 CFR 706.104 Subpart B -- Conduct and Responsibilities of Employees
18 CFR 706.201 Proscribed actions.
An employee shall avoid any action which might result in, or create
the appearance of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person;
(c) Impeding Government efficiency or economy;
(d) Losing complete independence or impartiality;
(e) Making a Government decision outside official channels; or
(f) Affecting adversely the confidence of the public in the integrity
of the Government.
18 CFR 706.202 Gifts, entertainment, and favors.
(a) Except as provided in paragraphs (b) and (c) of this section, an
employee shall not solicit or accept, directly or indirectly, any gift,
gratuity, favor, entertainment, loan, or any other thing of monetary
value, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with the Council;
(2) Conducts operations or activities that are regulated by the
Council; or
(3) Has interests that may be substantially affected by the
performance or nonperformance of his official duty.
(b) The restrictions set forth in paragraph (a) of this section do
not apply to:
(1) Obvious family or personal relationships, such as those between
the employee and his parents, children, or spouse, when the
circumstances make it clear that those relationships rather than the
business of the persons concerned are the motivating factors;
(2) The acceptance of food and refreshments of nominal value on
infrequent occasions in the ordinary course of a luncheon or dinner
meeting or other meeting or on an inspection tour where an employee may
be properly in attendance;
(3) The acceptance of loans from banks or other financial
institutions on customary terms to finance proper and usual activities
of employees, such as home mortgage loans; and
(4) The acceptance of unsolicited advertising or promotional
material, such as pens, pencils, note pads, calendars, and other items
of nominal intrinsic value.
(c) An employee shall not solicit a contribution from another
employee for a gift to an official superior, make a donation as a gift
to an official superior, or accept a gift from an employee receiving
less pay than himself (5 U.S.C. 7351). However, this paragraph does not
prohibit a voluntary gift of nominal value or donation in a nominal
amount made on a special occasion such as marriage, illness, or
retirement.
(d) An employee shall not accept a gift, present, decoration, or
other thing from a foreign government unless authorized by Congress as
provided by the Constitution and in 5 U.S.C. 7342.
(e) Neither this section nor 706.203 precludes an employee from
receipt of bona fide reimbursement, unless prohibited by law, for
expenses of travel and such other necessary subsistence as is compatible
with this part for which no Government payment or reimbursement is made.
However, this paragraph does not allow an employee to be reimbursed, or
payment to be made on his behalf, for excessive personal living
expenses, gifts, entertainment, or other personal benefits, nor does it
allow an employee to be reimbursed by a person for travel on official
business under Council orders when reimbursement is proscribed by
Decision B-128527 of the Comptroller General dated March 7, 1967.
18 CFR 706.203 Outside employment and activity.
(a) An employee shall not engage in outside employment or other
outside activity not compatible with the full and proper discharge of
the duties and responsibilities of his Government employment.
Incompatible activities include, but are not limited to:
(1) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances wherein acceptance
may result in, or create the appearance of, a conflict of interest;
(2) Outside employment or activity which tends to impair his mental
or physical capacity to perform the duties and responsibilities of his
position in an acceptable manner;
(3) Outside employment or activity which is in violation of a
statute, Executive order, or regulation, including applicable State and
local statutes and ordinances.
(b) Employees are encouraged to engage in teaching, lecturing, and
writing that is not prohibited by law, Executive Order 11222 of May 11,
1965, as amended by Executive Order 11590 of April 27, 1971, this part
or other Council regulations. However, an employee shall not, either
for or without compensation, engage in teaching, lecturing, or writing,
including teaching, lecturing, or writing for the purpose of the special
preparation of a person or class of persons for an examination of the
Civil Service Commission or Board of Examiners for the Foreign Service,
that depends on information obtained as a result of his Government
employment, except when that information has been made available to the
general public or will be made available on request, or when the agency
head gives written authorization for use of non-public information on
the basis that the use is in the public interest.
(c) An employee shall not receive any salary or anything of monetary
value from a private source as compensation for his services to the
Government.
(d) An employee shall not engage in outside work or activity which
may be construed by the public to be official acts of the Council, or of
a nature closely paralleling the work of the Council.
(e) An employee who engages in any kind of outside paid employment on
a substantially regular basis shall submit to his immediate supervisor a
memorandum describing the employment and stating approximately how many
hours per week he is so employed. The immediate supervisor shall
forward the memorandum through the Director for inclusion in the
employee's Official Personnel Folder.
(f) This section does not preclude an employee from:
(1) Participation in the activities of national or State political
parties not proscribed by law;
(2) Participation in the local self-government activities in the
community in which he resides to the extent permitted by law; or,
(3) Participation in the affairs of, or acceptance of an award for
meritorious public contribution or achievement given by, a charitable,
religious, professional, social, fraternal, nonprofit educational,
recreational, public service, or civic organization.
18 CFR 706.204 Financial interests.
(a) An employee shall not:
(1) Have a direct or indirect financial interest that conflicts
substantially, or appears to conflict substantially, with his Government
duties and responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a
result of or primarily relying on, information obtained through his
Government employment.
(b) This section does not preclude an employee from having a
financial interest or engaging in financial transactions to the same
extent as a private citizen not employed by the Government so long as it
is not prohibited by law, Executive Order 11222, as amended, 5 CFR Part
735, or this part.
18 CFR 706.205 Misuse of information.
For the purpose of furthering a private interest an employee shall
not, except as provided in 706.203(b), directly or indirectly use, or
allow the use of, official information obtained through or in connection
with his Government employment which has not been made available to the
general public.
18 CFR 706.206 Support of Council programs.
(a) When a Council program is based on law or Executive order, every
employee has a positive obligation to make it function as efficiently
and economically as possible and to support it as long as it is a part
of recognized public policy. An employee may, therefore, properly make
an address explaining and interpreting such a program, citing its
achievements, defending it against uninformed or unjust criticism,
pointing out the need for possible improvements, or soliciting views for
improving it.
(b) An employee shall not, either directly or indirectly, use
appropriated funds to influence a Member of Congress to favor or oppose
legislation in violation of 18 U.S.C. 1913. However, an employee is not
prohibited from:
(1) Testifying as a representative of the Council on pending
legislation proposals before congressional committees on request;
provided, that the relevant provisions of the Current OMB Circular A-14
(''Legislation Coordination and Clearance'') are complied with; or
(2) Assisting congressional committees in drafting bills or reports
on request, when it is clear that the employee is serving solely as a
technical expert under the direction of committee leadership.
18 CFR 706.207 Use of Government property.
An employee shall not directly or indirectly use, or allow the use
of, Government property of any kind, including property leased to the
Government, for other than officially approved activities. An employee
has a positive duty to protect and conserve Government property
including equipment, supplies, and other property entrusted or issued to
him.
18 CFR 706.208 Indebtedness.
(a) An employee shall pay each just financial obligation in a proper
and timely manner, especially one imposed by law, such as Federal,
State, or local taxes. For the purpose of this section, a ''just
financial obligation'' means one acknowledged by the employee or reduced
to judgment by a court or one imposed by law such as Federal, State or
local taxes.
(b) When an employee has a levy placed against his salary for failure
to pay an indebtedness for Federal income taxes, he shall be issued a
written reprimand stating that failure to make satisfactory arrangements
regarding future tax liabilities will be grounds for removal.
(c) When an employee is the subject of a letter of complaint stating
that he has not paid his State or local taxes and has failed to make
satisfactory arrangements regarding the debt, he shall be interviewed by
the Assistant Director, Division of Program Coordination and Management.
In this interview he shall be instructed to make satisfactory
arrangements for the payment of his debt immediately and informed that
failure to do so will be grounds for removal.
(d) When an employee is the subject of a letter of complaint
regarding any other kind of indebtedness to a unit of government,
Federal, State, or local, the procedure prescribed in paragraph (c) of
this section shall be observed.
(e) When a creditor who holds a legal judgment against an employee
requests that the Council assist in collecting the debt, the employee
shall be interviewed by the Assistant Director, Division of Program
Coordination and Management. In this interview he shall be instructed
to pay the debt in full within 90 days, or within whatever longer period
is specified by the Assistant Director, Division of Program Coordination
and Management if he determines that a 90-day limit would impose undue
hardship on the employee, and informed that failure to do so will be
grounds for removal.
(f) When an employee is the subject of a letter of complaint from a
creditor who does not hold a legal judgment against the employee, the
Assistant Director, Division of Program Coordination and Management
shall forward a copy of the letter to the employee together with a
memorandum calling the employee's attention to the provisions of this
section. However, the Council will not assist the creditor in
collecting the debt.
18 CFR 706.209 Gambling, betting, and lotteries.
An employee shall not participate, while on Government-owned or
leased property or while on duty for the Government, in any gambling
activity, including the operation of a gambling device, in conducting a
lottery or pool, in a game for money or property, or in selling or
purchasing a numbers slip or ticket.
18 CFR 706.210 Coercion.
An employee shall not use his Government employment to coerce, or
give the appearance of coercing, a person to provide financial benefit
to himself or another person, particularly one with whom he has family,
business, or financial ties.
18 CFR 706.211 General conduct prejudicial to the Government.
An employee shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government.
18 CFR 706.212 Miscellaneous statutory provisions.
The attention of each employee is directed to the following statutory
provisions:
(a) House Concurrent Resolution 175, 85th Congress, 2d Session, 72
Stat. B12, the Code of Ethics for Government Service.
(b) Chapter 11 of Title 18, United States Code, relating to bribery,
graft and conflicts of interest.
(c) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(d) The prohibitions against disloyalty and striking (E.O. 10450, 18
U.S.C. 1918).
(e) The prohibition against the employment of a member of a Communist
organization (50 U.S.C. 784).
(f) The prohibitions against:
(1) The disclosure of classified information (18 U.S.C. 798, 50
U.S.C. 783); and
(2) The disclosure of confidential information (18 U.S.C. 1905).
(g) The provision relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
(h) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)).
(i) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(j) The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
(k) The prohibition against fraud or false statements in a Government
matter (18 U.S.C. 1001).
(l) The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071).
(m) The prohibition against counterfeiting and forging transportation
requests (18 U.S.C. 508).
(n) The prohibitions against:
(1) Embezzlement of Government money or property (18 U.S.C. 641);
(2) Failing to account for public money (18 U.S.C. 643); and
(3) Embezzlement of the money or property of another person in the
possession of an employee by reason of his employment (18 U.S.C. 654).
(o) The prohibition against unauthorized use of documents relating to
claims from or by the Government (18 U.S.C. 285).
(p) The prohibitions against political activities in Subchapter III
of Chapter 73 of Title 5, United States Code and 18 U.S.C. 602, 603,
607, and 608.
(q) The provision relating to the denial of the right to petition
Congress (5 U.S.C. 7102).
(r) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
(s) The prohibition against a public official appointing or promoting
a relative, or advocating such an appointment or promotion (5 U.S.C.
3110).
(t) The prohibition against the employment of an individual convicted
of felonious rioting or related offenses (5 U.S.C. 7313).
(u) The tax imposed on certain employees (e.g., Presidential
appointees, employees excepted under Schedule C, employees in GS-16 or
above, or a comparable pay level) who knowingly engage in self-dealing
with a private foundation (26 U.S.C. 4941, 4946). ''Self-dealing'' is
defined in the statute to include certain transactions involving an
employee's receipt of pay, a loan, or reimbursement for travel or other
expenses from, or his sale to or purchase of property from a private
foundation.
18 CFR 706.212 Subpart C -- Conduct and Responsibilities of Special Government Employees
18 CFR 706.301 Use of Government employment.
A special Government employee shall not use his Government employment
for a purpose that is, or gives the appearance of being, motivated by
the desire for private gain for himself or another person, particularly
one with whom he has family, business, or financial ties.
18 CFR 706.302 Use of inside information.
(a) A special Government employee shall not use inside information
obtained as a result of his Government employment for private gain for
himself or another person either by direct action on his part or by
counsel, recommendation, or suggestion to another person, particularly
one with whom he has family, business, or financial ties. For the
purpose of this section, ''inside information'' means information
obtained under Government authority which has not become part of the
body of public information.
(b) A special Government employee may engage in teaching, lecturing,
and writing to the same extent, and subject to the same restrictions, as
provided in 706.303(b) for employees.
18 CFR 706.303 Gifts, entertainment, and favors.
(a) Except as provided in paragraph (b) of this section a special
Government employee, while so employed or in connection with his
employment, shall not receive or solicit from a person having business
with the Council anything of value as a gift, gratuity, loan,
entertainment, or favor for himself or another person, particularly one
with whom he has family, business, or financial ties.
(b) The exceptions from the restrictions as set forth in 706.202(b)
for employees apply in the same manner to special Government employees.
18 CFR 706.304 Applicability of other provisions.
The provisions of 706.206 through 706.211 apply to special
Government employees in the same manner as to employees.
18 CFR 706.304 Subpart D -- Statements of Employment and Financial Interests
18 CFR 706.401 Employees required to submit statements.
(a) Employees in the following named positions shall submit
statements of employment and financial interst to the Director:
(1) Employees in Grade GS-16 or above of the General Schedule
established by the Classification Act of 1949, as amended;
(2) The General Counsel and Administrative Officer;
(3) The Staff Specialists assigned to review applications by States
for planning grants under Title III of the Water Resources Planning Act;
(4) Special Government employees, as defined in 706.102; and
(5) Employees classified at GS-13 or above under 5 U.S.C. 5332, or at
a comparable pay level under another authority, who are in positions
which the Director may determine have duties and responsibilites which
require the incumbent to report employment and financial interests in
order to avoid involvement in possible conflicts-of-interest situation
and carry out the purpose of law, Executive order, and Council
regulations.
(b) A statement of employment and financial interest is required from
the Director and shall be submitted by the Director to the Chairman of
the Council.
18 CFR 706.402 Employee's complaint on filing requirements.
An employee who feels that his position has been improperly included
in the list in 706.401 as one requiring the submission of a statement
of employment and financial interests may obtain a review of his
complaint under the Council's internal grievance procedure.
18 CFR 706.403 Form of statements.
An employee required to submit a statement of employment and
financial interests shall submit that statement in the format prescribed
by the Division of Management.
18 CFR 706.404 Time for submission of statements.
An employee required to submit a statement of employment and
financial intersts by 706.401 shall submit that statement no later than
30 days after the date of entrance on duty in the position covered by
706.401.
18 CFR 706.405 Supplementary statements.
Changes in, or additions to, the information contained in an
employee's statement of employment and financial interests shall be
reported in a supplementary statement, in the format prescribed by the
Division of Management, as of June 30 each year. If no changes or
additions occur, a negative report is required. Notwithstanding the
filing of the annual report required by this section, each employee
shall at all times avoid acquiring a financial interest that could
result, or taking an action that would result in a violation of the
conflicts-of-interest provisions of section 18 U.S.C. 208, or Subpart B
of this part.
18 CFR 706.406 Interests of employees' relatives.
The interests of a spouse, minor child, or other member of an
employee's immediate household are considered to be interests of the
employee. For the purpose of this section, ''member of a employee's
immediate household'' means those blood relations who are residents of
the employee's household.
18 CFR 706.407 Information not known by employees.
If any information required to be included on a statement of
employment and financial interests or on a supplementary statement,
including holdings placed in trust, is not known to the employee but is
known to another person, the employee shall request that other person to
submit the information in his behalf.
18 CFR 706.408 Information not required.
An employee is not required to submit on a statement of employment
and financial interests, or on a supplementary statement, any
information relating to the employee's connection with, or interest in,
a professional society or a charitable, religious, social, fraternal,
recreational, public service, civic, or political organization or a
similar organization not conducted as a business enterprise. For the
purpose of this section, educational and other institutions doing
research and development or related work involving grants of money from
or contracts with the Government are deemed ''business enterprises'' and
are required to be included in an employee's statement of employment and
financial interests.
18 CFR 706.409 Opportunity for explanation of conflict or appearance of
conflict.
When a statement submitted under 706.401 indicates a conflict or an
appearance of conflict, between the interests of an employee and the
performance of his services for the Government, the employee concerned
shall be given an opportunity to explain the conflict or appearance of
conflict before remedial action is initiated.
18 CFR 706.410 Confidentiality of statements.
Each statement of employment and financial interests, and each
supplementary statement, shall be held in confidence and retained in
limited access files of the reviewing official. The use of information
on the statements shall be limited to that necessary to carry out the
purposes of this part. Information from a statement or a supplementary
statement shall not be disclosed except by decision of the Director for
good cause shown: Provided, That information from a statement or a
supplementary statement of the Director shall not be disclosed except by
decision of the Chairman for good cause shown.
18 CFR 706.411 Effect of statements on other requirements.
The statements of employment and financial interests and
supplementary statements required of employees are in addition to, and
not in substitution for or in derogation of any similar requirement
imposed by law, order, or regulation. The submission of a statement or
supplementary statement by an employee does not permit him or any other
person to participate in a matter in which he or the other person's
participation is prohibited by law, order, or regulation.
18 CFR 706.412 Submission of statements by special Government
employees.
(a) Each special Government employee shall submit a statement of
employment and financial interests not later than the time of his
employment. Each special Government employee shall keep his statement
current throughout his period of employment by the submission of
supplementary statements.
(b) A special Government employee shall submit his statement of
employment and financial interests in the format prescribed by the
Division of Management. The statement will be filed with the Division
of Management and is accorded the confidentiality prescribed in
706.410.
(c) The provisions of 706.406 through 706.411 apply to special
Government employees in the same manner as to employees.
(d) The Director may waive the requirement in paragraph (a) of this
section for the submission of a statement of employment and financial
interests in the case of a special Government employee who is not a
consultant or an expert when he finds that the duties of the position
held by that special Government employee are of a nature and at such a
level of responsibility that the submission of the statement by the
incumbent is not necessary to protect the integrity of the Government.
For the purposes of this paragraph ''consultant'' and ''expert'' have
the meanings given those terms by Chapter 304 of the Federal Personnel
Manual.
18 CFR 706.413 Submission of statements by River Basin Commission
Chairmen.
A statement of employment and financial interest is not required
under this part from Chairmen of River Basin Commissions created by the
President pursuant to Title II of the U.S. Water Resources Planning Act.
The Commission Chairmen are subject to section 401 of Executive Order
11222, as amended, and are required to file a statement with the
Chairman of the Civil Service Commission.
18 CFR 706.413 PART 707 -- COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)
18 CFR 706.413 Subpart A -- General
Sec.
707.1 Background.
707.2 Purpose.
707.3 Applicability.
707.4 Definitions.
707.5 Policy.
18 CFR 706.413 Subpart B -- Water Resources Council Implementing
Procedures
707.6 Early involvement in private, State, local, and other
non-Federal activities requiring Federal action.
707.7 Ensuring that environmental documents are actually considered
in agency decisionmaking.
707.8 Typical classes of action requiring similar treatment under
NEPA.
707.9 Tiering.
707.10 Scoping.
707.11 Environmental information.
Authority: National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.); E.O. 11991, 42 FR 26967; 3 CFR 1977 Compl. p. 123.
Source: 44 FR 69922, Dec. 5, 1979, unless otherwise noted.
18 CFR 706.413 Subpart A -- General
18 CFR 707.1 Background.
(a) The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C.
4321 et seq.) establishes national policies and goals for the protection
and enhancement of the environment. Section 102(2) of NEPA contains
certain policy statements and procedural requirements directed toward
the attainment of such goals. In particular, all Federal agencies are
required to give appropriate consideration to the environmental effects
of their proposed actions in their decisionmaking and to prepare
detailed environmental statements on recommendations or reports on
proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment.
(b) Executive Order 11991 of May 24, 1977, amended E.O. 11514 and
directed the Council on Environmental Quality (CEQ) to issue regulations
to implement the procedural provisions of NEPA. Accordingly, CEQ issued
final NEPA regulations (40 CFR Parts 1500-1508) on November 29, 1978,
which are binding on all Federal agencies as of July 30, 1979. Section
1507.3(a) of CEQ regulations provides that each Federal agency shall as
necessary adopt implementing procedures to supplement the regulations.
Section 1507.3(b) of the CEQ NEPA regulations identifies those sections
of the regulations which must be addressed in agency procedures.
18 CFR 707.2 Purpose.
The purpose of this NEPA rule is to establish Water Resources Council
(WRC) policy and procedures which supplement the CEQ NEPA regulations by
making them more specifically applicable to our activities and which
implement 1507.3 (a) and (b) of the CEQ NEPA regulations. This rule
will be revised to incorporate detailed procedures integrating NEPA and
the Principles and Standards (P&S) and applicable parts of the
procedures for Federal participants in the preparation of comprehensive
regional or river basin plans when these procedures are developed. This
NEPA rule must be used in conjunction with the CEQ NEPA regulations.
Compliance with both the CEQ NEPA regulations and this NEPA rule is
required. Information in the CEQ NEPA regulations generally is not
repeated here to avoid needless duplication. This NEPA rule supersedes
WRC Policy Statement No. 2 -- Environmental Statements-Framework
Studies and Assessments and Regional or River Basin Plans.
18 CFR 707.3 Applicability.
This NEPA rule applies to the WRC as an independent executive agency
and to Title II river basin commissions (RBC's) and other entities (such
as interagency committees) preparing studies and plans for WRC review
and transmittal to the President. Although Title III State planning
grants do not normally require environmental assessments or statements (
707.8 (a)(3)), the WRC will encourage States receiving grants to give
appropriate consideration to the environmental effects of their proposed
actions and to incorporate suitable environmental conditions, to the
extent permitted by State law. The preamble to the WRC Title III
guidelines will reflect this policy.
18 CFR 707.4 Definitions.
(a) Responsible Federal Official (RFO). The ''Responsible Federal
Official (RFO)'' is the official of the Federal Government designated by
this rule who shall be responsible for the implementation of NEPA,
including regulations issued by the CEQ (40 CFR Parts 1500 through 1508)
and the rule. Of particular importance, the RFO determines the need for
an Environmental Assessment or Environmental Impact Statement (EIS) in
accordance with 707.8 (a)(2) and (b), and if an EIS is required, files
the draft and final EIS, makes the Record of Decision and assures
appropriate public involvement in accordance with 40 CFR 1506.6. The
Chairman of the RBC's are the RFO's for the purpose of ensuring
compliance with the provisions of NEPA and the P&S for those activities
which are funded in whole or in part through the WRC and carried out by
the RBC's, such as framework studies, special studies, comprehensive
coordinated joint plans, regional or river basin (Level B) plans and
revisions thereof. The Chairman of the WRC, or his designee, is the RFO
for complying with the provisons of NEPA and the P&S for those framework
studies, regional or river basin plans, comprehensive coordinated joint
plans, and special studies which are funded by the WRC and carried out
by WRC interagency committees and WRC coordinating committees;
principles, standards and procedures for planning water and related land
resources; rules and regulations of the WRC, and other activities of
the WRC.
(b) Major Federal Action. ''Major Federal action'' as defined in the
CEQ NEPA regulations (40 CFR 1508.18) includes actions with effects that
may be major and which are potentially subject to Federal control and
responsibility. Such actions include WRC interagency committee, and WRC
coordinating committee adoption, approval or submittal of plans for
water and related land resources. For the purpose of this rule, RBC
adoption, approval or submittal of a plan for water and related land
resources is considered a major Federal action by virtue of the scope
and significant environmental consequences of such actions, the
participation of Federal officials in these RBC actions, and the WRC
requirements for Federal agency consistency with approved regional water
resource management plans (WRC Policy Statement No. 4 -- The Utilization
of Comprehensive Regional Water Resource Management Plans).
18 CFR 707.5 Policy.
(a) General. The WRC and the RBC's administer certain programs that
must comply with both NEPA and the P&S. Generally, the environmental
analysis done during the development of the Environmental Quality (EQ)
account under the P&S partially overlaps the analysis required in an
EIS, presenting an opportunity for integration. The requirements of
NEPA and the P&S will be carried out by integrating the two processes to
the fullest extent practicable and by combining to the fullest extent
practicable the Environmental Assessment or, when required,
Environmental Impact Statement, with each study or plan into a single
document that will comply fully with the requirements of both processes,
as provided by the CEQ NEPA regulations (40 CFR 1502.10 and 1506.4).
(b) Public participation. For each environmental assessment and
impact statement, the appropriate RFO will establish a specific program
and schedule for public participation of all interested parties in the
NEPA process, and shall otherwise provide for public involvement in
accordance with the CEQ NEPA regulations (40 CFR 1506.6).
(c) Environmental Impact Statements. Environmental Impact Statements
(EIS's) as required under Section 102(2)(C) of NEPA will be prepared by
river basin commissions, interagency committee, or WRC coordinating
committees for comprehensive coordinated joint plans and regional or
river basin (Level B) plans, or revisions thereof. The Environmental
Impact Statement will be prepared concurrently with the preparation of
the study or plan. The statement will reflect the level of planning
involved and will address those environmental considerations and
alternatives relevant to decisionmaking at that level (see 707.9
Tiering). Review and comment on the draft study or plan and the
incorporated draft environmental impact statement will be performed
simultaneously, and the final combined report will incorporate and
discuss the comments received on the draft.
18 CFR 707.5 Subpart B -- Water Resources Council Implementing Procedures
18 CFR 707.6 Early involvement in private, State, local, and other
non-Federal activities requiring Federal action.
(a) Section 1501.2(d) of the CEQ NEPA regulations requires Federal
agencies to provide for early involvement in activities which, while
planned by private or other non-Federal entities, requires some
subsequent form of Federal approval or action to which NEPA applies.
Such activities for which early involvement is appropriate include those
private, local, State, or regional water and related land resources
plans, projects or programs which should be included in a regional water
resources management plan or Level B plan, since the plans normally
required an EIS or assessment as provided in 707.8(a) of this NEPA
rule.
(b) To facilitate the implementation of 40 CFR 1501.2(d), the
appropriate RFO shall publish and distribute in the region or basin in
which a comprehensive or Level B study is conducted, guidelines for
non-Federal entities of the types of plans, projects, and programs which
shall be included in such comprehensive or Level B plan. The RFO shall
advise non-Federal entities on the scope and level of environmental
information and analysis needed for environmental documents.
18 CFR 707.7 Ensuring that environmental documents are actually
considered in agency decisionmaking.
(a) Section 1505.1 of the NEPA regulations contains requirements to
ensure adequate consideration of the environmental documents in agency
decisionmaking. To implement these requirements, the RFO shall:
(1) Consider relevant environmental documents in evaluating actions
proposed in plans and studies.
(2) Make relevant environmental documents, comments, and responses
part of the record in any formal rulemaking or adjudicatory proceedings.
(3) Ensure that relevant environmental documents, comments and
responses accompany the proposed actions through existing review
processes.
(4) Consider only those alternatives encompassed by the range of
alternatives discussed in the relevant environmental documents when
evaluating proposals for agency action.
(5) Where an EIS has been prepared, consider the specific
alternatives analyzed in the EIS when evaluating the proposal which is
the subject of the EIS.
(b) The NEPA process begins at the earliest possible stage of the
planning process and is completed when the RFO makes a finding of
significant impact or a record of decision. In cases where the Chairman
of a River Basin Commission, or regional Federal official has been
designated as the RFO, and a plan or report is submitted to WRC for
review and comment after completion of the NEPA process, the
environmental documents incorporated into such plans or reports, or
submitted with them, shall be fully considered by WRC when it prepares
its views, comments, and recommendations for transmittal to the
President and Congress. The RFO shall include the Findings of No
Significant Impact, or the Record of Decision, with the documents
submitted to WRC for review.''
18 CFR 707.8 Typical classes of action requiring similar treatment
under NEPA.
(a) Section 1507.3(b)(2) of the CEQ NEPA regulations in conjunction
with 1508.4 requires agencies to establish three typical classes of
action for similar treatment under NEPA. These typical classes of
actions are set forth below:
(1) Actions normally requiring EIS's:
(i) Adoption, approval or submittal of regional water resources
management plans (comprehensive, coordinated, joint plans or elements
thereof).
(ii) Adoption, approval or submittal of Level B plans.
(2) Actions normally requiring assessments but not necessarily EIS's:
(i) Establishment and implementing guidance (including significant
changes) in principles, standards, and procedures for planning water and
related land resources.
(ii) Adoption, approval or submittal of framework studies and special
studies which include recommendations for future actions.
(iii) Any action not in paragraph (a) (1) or (3) of this section.
(3) Actions normally not requiring assessments or EIS's (categorical
exclusions):
(i) Approval of Title III State planning grants.
(ii) Adoption, approval or transmittal or priorities reports.
(iii) Preparation of the National Water Assessment.
(iv) Recommendations to the President with the respect to Federal
policies and programs, except for transmittal of plans described in
paragraph (a) (1) or (2) of this section for which the original EIS or
Environmental Assessment (EA) will be transmitted with the plan. A
second EIS is not required.
(v) Framework studies and assessments and special studies which do
not include recommendations for future actions.
(b) Where the presence of extraordinary circumstances indicates that
an action normally excluded may have a significant environmental effect,
the appropriate RFO shall independently determine whether an EIS or an
environmental assessment is required.
18 CFR 707.9 Tiering.
In accordance with the CEQ NEPA regulations 40 CFR 1502.4(d) and
1508.28(a), this NEPA rule emphasizes the use of tiering to relate broad
and narrow actions. The level of detail in EIS's and EA's prepared by
RBC's, WRC interagency committees or WRC coordinating committees will
reflect the level of detail in the plans, particularly the comprehensive
and policy nature of comprehensive, coordinated, joint plans or elements
or revisions thereof. These EIS's are not intended to substitute for
individual statements on individual projects as more detailed planning
and analysis will be required for major Federal actions proposed in
these plans. The ''policy'' or ''overview'' EIS should serve as the
framework and introduction for a more site-specific project EIS
developed by the implementing Federal agency. Environmental impact
statements for regional water resource management and Level B plans will
generally address the items in the recommended format (40 CFR 1502.10)
on the basis of water and related land resources of an entire region or
river basin. This is the level of consideration at which the
environmental issues and considerations are most relevant to
decisionmaking. They may also address groups of interrelated or
individual plan elements where these involve significant environmental
considerations.
18 CFR 707.10 Scoping.
Scoping will be used to determine the extent of issues to be
addressed by the EIS and to identify significant issues related to the
proposed action. Scoping will be conducted as described by the CEQ NEPA
regulations, 1501.7 and 1508.25.
18 CFR 707.11 Environmental information.
Interested persons may contact the Director, U.S. Water Resources
Council, 2120 L Street, NW., Washington, DC 20037, for information
regarding the Council's compliance with NEPA.
18 CFR 707.11 PART 708 -- UPPER MISSISSIPPI RIVER BASIN COMMISSION:
PUBLIC PARTICIPATION IN UPPER MISSISSIPPI RIVER SYSTEM MASTER PLAN
Sec.
708.1 Definitions.
708.2 Scope.
708.3 Policy, objectives, and standards.
708.4 Required programs and reports.
708.5 Program objectives implementation.
Authority: Title II, sec. 204, Pub. L. 89-80, Water Resources
Planning Act of 1965; Title I, sec. 101(b), Pub. L. 95-502, Inland
Waterways Authorization Act of 1978.
Source: 44 FR 14537, Mar. 13, 1979, unless othewise noted.
18 CFR 708.1 Definitions.
As used in the part, the term:
(a) Act means the Inland Waterways Authorization Act of 1978, Pub.
L. 95-502.
(b) Commission means the Upper Mississippi River Basin Commission,
with headquarters at Fort Snelling, Twin Cities, Minnesota.
(c) Master Plan means the Upper Mississippi River System
Comprehensive Master Management Plan mandated by Title I of the Act.
(d) GREAT refers to studies conducted by Great River Environmental
Action Teams pursuant to section 117 of the Water Resources and
Development Act of 1976 (Pub. L. 94-587) for purposes of developing
balanced management strategies for multipurpose use of the Upper
Mississippi River.
(e) System means those Upper Mississippi River reaches containing
commercial navigation channels on the Mississippi River main stem north
of Cairo, Illinois; the Minnesota River, Minnesota; Black River,
Wisconsin; Saint Croix River, Minnesota and Wisconsin; Illinois River
and Waterway, Illinois; and Kaskaskia River, Illinois.
(f) Public meeting means a meeting to provide individuals and
representatives of interested organizations opportunities to present
their opinions and suggestions by means of an informally structured
format.
(g) Public hearing means a formally structured public meeting
scheduled to provide adequate time for each testimony, which will be
recorded, transcribed, published, and made available to the public.
18 CFR 708.2 Scope.
(a) This part describes minimum guidelines for public participation
in the development, revision, and implementation of the Master Plan
specified in the Act.
(b) This part applies to the following organizations with references
to the activities described in 708.2(a):
(1) The Commission, including its staff and persons, organizations,
and agencies under contract to it for work within the scope of the
Master Plan.
(2) Such Federal departments and agencies as are directed under
section 101(3) of the Act to conduct studies pursuant to the Master
Plan, for any work carried out for purposes of developing, revising, and
implementing the Master Plan.
(3) Such departments and agencies of any state or local government as
are authorized and/or directed to carry out studies and analyses under
direction or advice of the Commission as stipulated in section 101 of
the Act.
(c) The guidelines referred to in this part shall be considered
general requirements applicable to all studies, procedures, programs,
regulations, or other administrative devices carried out under
708.2(b), but only for those Master Plan Activities under authority of
the Act.
18 CFR 708.3 Policy, objectives, and standards.
(a) Policy. (1) Congress has directed the Commission to prepare a
comprehensive Master Plan for management of the System in cooperation
with appropriate Federal, state, and local officials. In developing the
plan, the Commission is required to identify various economic,
recreational, and environmental objectives of the System, recommend
guidelines to achieve such objectives, and propose methods to assure
compliance with such guidelines and coordination of future management
decisions affecting the System, and include with the proposed plan any
legislative proposals which may be necessary to carry out such
recommendations and achieve such objectives.
(2) The Commission is required to provide for public participation in
the development, revision, and implementation of the Master Plan and to
encourage and assist such participation. In doing this, the Commission
seeks to foster a spirit of openness and a sense of mutual trust between
the public and the planners. Public participation is expected to result
in greater responsiveness of the Master Plan to public concerns and
priorities, as well as improved popular understanding of official
studies, planning processes, and decisions.
(3) In order for public participation to be effective, it must be
timely and integrated into the planning process. The Commission shall
seek public participation prior to any decision-making on the Master
Plan or any of its components. Such public participation will
ordinarily include informational output about the plan, public response
and input, two-way discussions or exchange, and Commission consideration
of public expressions.
(4) Neither the Master Plan as a whole nor any component of it shall
be formulated without incorporation of a program of public participation
involving fair representation of all segments of the public. The public
participation section of the Master Plan -- Plan of Study shall be
developed consistent with the guidelines described in this part.
(5) Public participation processes utilized by the Commission in
developing the Master Plan shall aim for the highest achievable
standards of objectivity and thoroughness consistent with other
requirements of the Act and the intent, concepts, ideas, and basic
tenets of the Principles and Standards for Planning Water and Related
Land Resources published by the Water Resources Council in the Federal
Register, Volume 38, Number 174, Part III, September 10, 1973 and any
forthcoming revisions. Public participation programs shall include
monitoring procedures to maintain an acceptable degree of responsiveness
and accountability.
(b) Objectives. Objectives of the public participation program
developed by the Commission as part of the Master Plan are:
(1) To develop awareness of public preferences by those responsible
for preparation and approval of the Master Plan.
(2) To anticipate and help resolve conflicts arising during the
study,
(3) To improve information transfer and public awareness of the
study,
(4) To provide for periodic reviews in the development of the Master
Plan as well as the final review required by the Act, and
(5) To provide for evaluation of public participation in the planning
process.
(c) Standards. The Commission in meeting the above objectives
recognizes that:
(1) Inputs from the public are important for development of the
Master Plan;
(2) Participants are to include individual citizens as well as
organizations;
(3) The public participation program is to assume the existence of
numerous publics and their interests -- identified and delineated
according to a number of socioeconomic, demographic, geographic, person,
and ideological variables;
(4) The public participation process must be continuous: it is to be
provided for, encouraged, and assisted throughout the planning process;
(5) The public participation process is to have as a product
measurable sets of opinion and other manifestations of the public will
in regard to details of the Master Plan;
(6) Inputs from the public into the Master Plan through avenues other
than the Commission public participation program should be facilitated;
and
(7) Desires expressed by the public are likely to be conflicting and
therefore, public participation cannot be substituted for the
decision-making responsibility.
18 CFR 708.4 Required programs and reports.
(a) The Commission shall prepare a work plan for public participation
as part of the Master Plan -- Plan of Study. The work plan shall
satisfy minimum standards described in this part. The work plan shall
describe all substantive administrative and management arrangements to
elicit public participation, shall delineate Commission member and staff
responsibilities, and shall identify budgetary provisions.
(b) In addition to public meetings and hearings, the public
participation program shall include survey research, program evaluation,
and information/education activities as described in 708.5.
(c) The Commission shall recommend long-term public participation
activities and programs related to implementation of the Master Plan.
These recommendations shall be based on evaluation of procedures and
results mandated in this part and carried out during the Master Plan
preparation.
(d) The Commission shall issue reports describing the participation
program as developed or implemented during the designated reporting
period. Each such report shall include as a minimum a brief description
of the main participation elicited, the costs of the effort, and the use
that was made of the elicited information in the planning process. The
reporting periods shall be arranged so as to correspond generally with
the main sequential segments of the overall planning process.
18 CFR 708.5 Program objectives implementation.
(a) The continuing public participation program shall contain
mechanisms or activities for each objective listed in 708.3(b). The
listing of specific measures in this section shall not preclude
additional techniques for obtaining, encouraging, or assisting public
participation. Special efforts shall be made to simplify the planning
process and products for public and media use. Variances may occur in
the use of any given program element, according to the nature of the
planning issues, the budgetary resources accorded the participation
process, and the effectiveness of the participation actually elicited
and measured in the field.
(b) To obtain data in regard to plan-relevant public opinion,
methods, shall include but not be limited to survey research.
(1) The survey research process shall be developed and utilized in
connection with the Master Plan as a whole and its components. Whereas
public meetings are organized to elicit unstructured participation and
opinion changes, surveys shall be targeted on carefully selected samples
of functionally defined publics located throughout the System.
(2) The Commission shall evaluate the effectiveness of the
information/education program on the part of the surveyed publics. This
is necessary for continued and sustained participation in the
decision-making steps of the planning process.
(3) If a gap is found between the desired and actual effectiveness,
the Commission shall develop and implement a short-term narrow-focus
information and education program targeted at the specific problem areas
in question.
(4) On completion of the short-term information/education program,
re-surveys shall be made among the affected publics. The results shall
constitute a measure of the effectiveness of the short-term
information/education program.
(c) To improve information transfer and public awareness of the
study, two levels of information and education activities shall be
pursued. The first shall have the general public as its target audience
and shall emphasize methods that foster general awareness and
understanding of plan issues and the nature of the ongoing planning
process. The second level of information and education activities shall
focus on public interest groups, agency representatives, and elected
officials and shall emphasize the creation of plan component data and
information in a form that can be utilized by these groups in the plan
decision-making process. The information presented shall be broadly
representative of the relevant perspectives and issues.
(d) Throughout the period of study and the succeeding period of
implementation of the Master Plan, the Commission shall provide a
centralized capability for acting as an information/education center.
The Commission shall provide a central source of media-directed
information about the Master Plan, its components, future expected
planning needs in the System, current program-related activities, and
other relevant subject areas. Special efforts shall be made to
summarize complex technical materials for public and media use. The
Commission shall have standing arrangements for early consultation and
exchange of views with interested or affected persons and organizations
on development or revisions of plans, programs, or other significant
actions prior to decision-making. Survey research methods and other
procedures will be used to determine the content and emphasis of
information and education activities and products.
(e) The Commission shall provide for periodic reviews of the
development of the Master Plan as well as the final review required by
the Act. Activities to accomplish this shall include:
(1) Public meetings. (i) Public meetings shall be organized at
locations in parts of the System most significantly affected by the
possible outcomes. These open meetings shall be timed to coincide with
sequential elements of the planning process.
(ii) The meetings shall provide citizens and representatives of
interested organizations an opportunity to utilize an
informally-structured format to air their suggestions and grievances in
regard to the subject matter of the Master Plan.
(iii) When the Commission deems a formal public hearing is necessary,
it may coincide with the pulic meeting. When this is the case, a clear
distinction shall be made between the formal and open segments of the
meeting/hearing.
(iv) Documents and data pertaining to the agenda for each public
meeting shall be made available to the public for a reasonable time
prior to the public meeting, at a location convenient to the expected
participants. In addition, the Commission shall prepare outlines of
major issues including brief descriptions of the issues, alternatives,
and sources of additional information.
(2) Public hearings. (i) The Commission is required to publish a
preliminary plan not later than January 1, 1981 and to hold public
hearings in each state which would be affected by the plan. The
Commission is required to review all comments presented at such hearings
or submitted in writing to the Commission, and, after making any
revisions in the plan it decides are necessary, to submit to Congress a
final Master Plan not later than January 1, 1982.
(ii) The public hearings on the preliminary plan and any other public
hearings deemed necessary by the Commission are to be consistent with
the provisions of sec. 205 of Pub. L. 89-80 in conformity with this
part. If conflict exists between the minimum guidelines of this part
and requirements of state or Federal law or other regulations pertaining
to a particular hearing, the more stringent requirements shall be
observed.
(iii) In addition to any other formal legal requirements, the public
hearings are to be well publicized and notices of each hearing will be
mailed to interested or affected persons at least 30 calendar days
before the hearings.
(iv) In determining locations and times for hearings, consideration
will be given to travel and to facilitating attendance and testimony by
a cross-section of interested or affected persons and organizations.
Accessibility of hearing sites by public transportation will be
considered.
(v) The preliminary plan and any supporting reports, documents, and
data to be discussed at the public hearings are to be made available to
the public at least 30 days prior to the public hearings. Information
concerning availability of the preliminary plan, reports, documents, and
data will be provided in public hearing notices.
(vi) The elements of the public hearings, proposed time schedules,
and any constraints on statements shall be specified in public hearing
notices.
(vii) Testimony of witnesses at public hearings shall be scheduled in
advance when necessary to ensure maximum participation and allotment of
adequate time for testimony, provided that such scheduling is not used
as a bar to unscheduled testimony. Blocks of time shall be considered
for major categories of witnesses.
(viii) Public hearing procedures shall not inhibit free expression of
views by requirements of more than one legible copy of any statement
submitted, or for qualifications of witnesses beyond that needed for
identification.
(ix) A record of public hearing proceedings shall be made promptly
available to the public at cost. The Commission shall invite, receive,
and consider comments in writing from any interested or affected persons
and organizations. All such comments shall be part of the public
record.
(f) To provide mechanisms for evaluation of public participations in
the Master Plan:
(1) The Commission shall conduct periodic evaluations of the public
participation program. The purpose of this evaluation is to determine
the following:
(i) The extent of actual participation elicited from each of the
process phases -- public meetings, public hearings, survey research,
direct input from organizations, and other sources.
(ii) The degree to which participation elicited from each process
phase was actually utilized in the planning process.
(iii) Regional/local differences in effectiveness of public
participation methods and procedures.
(iv) The need to modify the public participation process during the
Master Plan.
(2) Public participation evaluations shall be incorporated into the
Master Plan. Recommendations resulting from this overall evaluation
shall be utilized to draft new guidelines and plans of study for public
participation programs to be implemented after the Master Plan has been
adopted.
18 CFR 708.5 PART 725 -- IMPLEMENTATION OF EXECUTIVE ORDERS 11988, FLOODPLAIN MANAGEMENT AND 11990, PROTECTION OF WETLANDS
18 CFR 708.5 Subpart A -- Introduction
Sec.
725.0 Purpose.
725.1 Authority.
725.2 Policy.
725.3 Applicability.
725.4 Definitions.
18 CFR 708.5 Subpart B -- Responsibilities
725.5 Council studies.
725.6 Principles, standards and procedures.
725.7 Regional or river basin planning.
725.8 Report, plan and recommendation development and review.
725.9 Reviews of compliance.
Authority: The Water Resources Planning Act of 1965, sec. 402, Pub.
L. 89-80, 79 Stat. 245 (42 U.S.C. 1962d-1), the National Environmental
Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), the National
Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.), the
Flood Disaster Protection Act of 1973, as amended (87 Stat. 975), E.O.
11988 and E.O. 11990 (42 FR 26951).
Source: 45 FR 76683, Nov. 20, 1980, unless otherwise noted.
18 CFR 708.5 Subpart A -- Introduction
18 CFR 725.0 Purpose.
This rule establishes the procedures to be followed by the U.S.
Water Resources Council for applying Executive Order 11988, Floodplain
Management, and Executive Order 11990, Wetlands Protection, to the water
resources planning assistance activities that it performs.
18 CFR 725.1 Authority.
This rule is being promulgated pursuant to the Water Resources
Planning Act of 1965, section 402, Pub. L. 89-90, 79 Stat. 245 (42
U.S.C. 1962d-1). In addition, Executive Order 11988, Floodplain
Management, at section 2(d); directs the preparation of procedures
implementing its provisions, as does Executive Order 11990, Protection
of Wetlands, at section 6. Each of these Orders was prepared in
furtherance of the National Environmental Policy Act of 1969, as amended
(42 U.S.C. 4321 et seq.). The floodplain management Order is also based
on the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001
et seq.), and the Flood Disaster Protection Act of 1977, as amended (87
Stat. 975).
18 CFR 725.2 Policy.
It is the policy of the Council to provide leadership in floodplain
management and the protection of wetlands. Further, the Council shall
integrate the goals of the Orders to the greatest possible degree into
its procedures for implementing the National Environmental Policy Act.
The Council shall take action to:
(a) Avoid long- and short-term adverse impacts associated with the
occupancy and modification of floodplains and the destruction or
modification of wetlands;
(b) Avoid direct and indirect support of floodplain development and
new construction in wetlands wherever there is a practicable
alternative;
(c) Reduce the risk of flood loss;
(d) Promote the use of nonstructural loss reduction methods to reduce
the risk of flood loss;
(e) Minimize the impact of floods on human health, safety and
welfare;
(f) Minimize the destruction, loss or degradation of wetlands;
(g) Restore and preserve the natural and beneficial values served by
floodplains;
(h) Preserve and enhance the natural and beneficial values served by
wetlands;
(i) Involve the public throughout the floodplain management and
wetlands protection decisionmaking process;
(j) Adhere to the objectives of the Unified National Program for
Floodplain Management;
(k) Continually analyze existing and new policies of the Council to
ensure consistency between them and the provisions of E.O. 11988 and
11990; and
(l) Improve and coordinate the Council's plans, programs, functions
and resources so that the Nation may attain the widest range of
beneficial uses of the environment without degradation or risk to health
and safety.
18 CFR 725.3 Applicability.
These regulations apply to all Council actions which have the
potential to affect floodplains or wetlands or which would be subject to
potential harm if they were located in floodplains or wetlands. The
basic test of the potential of an action to affect floodplains or
wetlands is the action's potential to result in the long- or short-term
adverse impacts associated with:
(a) The occupany or modification of floodplains, or the direct and
indirect support of floodplain development; or
(b) The destruction or modification of wetlands or the direct or
indirect support of new construction in wetlands.
These procedures apply to Level A and B regional or river basin
planning activities carried out by regional planning sponsors including
consideration of inclusion of site specific projects in Level A or B
regional or river basin plans. These procedures do not apply to site
specific Level C planning carried out by individual Federal agencies.
Each Federal agency shall use its own procedures promulgated pursuant to
these Orders for such Level C planning.
18 CFR 725.4 Definitions.
The following definitions shall apply throughout this regulation:
(a) All definitions from section 6 of E.O. 11988 (42 FR 26951); all
definitions from section 7 of E.O. 11990 (42 FR 26951); and all
definitions listed in the Glossary of the Council's Floodplain
Management Guidelines for Implementing E.O. 11988 (43 FR 6030) from the
term base flood through the term structures.
(b) Action means all Council activities including but not limited to
plan review, study preparation, preparation and modifications to the
Council's Principles, Standards and Procedures (P,S,&P), provision of
financial assistance for State, regional, and river basin planning and
reviews of compliance.
(c) Council means the U.S. Water Resources Council.
(d) Enhance means to increase, heighten, or improve the natural and
beneficial values associated with wetlands.
(e) Regional planning sponsors means Federal agencies, states, groups
of States, river basin commissions, interstate compact commissions and
interagency committees.
18 CFR 725.4 Subpart B -- Responsibilities
18 CFR 725.5 Council studies.
All studies and appraisals performed by the Council pursuant to
section 102 of Pub. L. 89-80 and any recommendations based on these
activities shall include specific analyses for reflection of and
opportunities to meet the objectives of E.O. 11988 and E.O. 11990. The
Council's Floodplain Management Guidelines (43 FR 6030), E.O. 11988 and
E.O. 11990 provide the basic evaluation tools for these analyses.
18 CFR 725.6 Principles, standards and procedures.
The Principles, Standards and Procedures established by the Council
pursuant to section 103 of Pub. L. 89-80 shall reflect the provisions
of the Executive Orders. These Principles, Standards and Procedures are
found in 18 CFR Parts 710 through 717.
18 CFR 725.7 Regional or river basin planning.
(a) In agreements between river basin commissions or other regional
planning sponsors and the Council for the preparation and revision of
regional and river basin Level B Studies and regional water resource
management plans, the responsible official representing the river basin
commission or regional planning sponsor shall certify to the Council
that the following criteria have been or will be utilized as part of the
planning process:
(1) Determination of whether proposed activities would be located in
floodplains or wetlands, or, even if located outside of them, would have
the potential to affect floodplains or wetlands;
(2) Avoidance of performing activities within floodplains or wetlands
wherever there is a practicable alternative;
(3) Where avoidance of floodplains cannot be achieved, minimization
of adverse impacts and support of floodplain development, and
preservation and restoration of natural and beneficial floodplain
values;
(4) Where avoidance of wetlands cannot be achieved, minimization of
adverse impacts and support of new construction in wetlands, and
preservation and enhancement of natural and beneficial wetlands values;
and
(5) Involvement of the public in the floodplain management and
wetlands protection decisionmaking process.
(b) The Council's Floodplain Management Guidelines (43 FR 6030) shall
be used as the basis for implementing the criteria in 725.7(a)(1)
through (5).
(c) The responsible official representing the regional planning
sponsor shall, to the fullest extent of his or her authority, ensure
that any activities carried out under his or her plans and programs meet
the criteria in 725.7(a)(1) through (5).
18 CFR 725.8 Report, plan and recommendation development and review.
All reports, plans and recommendations received under section 104 of
Pub. L. 89-80 shall be reviewed by the Council for reflection of and
opportunities to meet the objectives of E.O. 11988 and 11990. This
review shall be based on the criteria in 725.7(a)(1) through (5), on
E.O. 11988 and 11990, and on the Council's Floodplain Management
Guidelines (43 FR 6030).
18 CFR 725.9 Reviews of compliance.
Reviews of compliance performed pursuant to section 304 of Pub. L.
89-80 shall include analysis of each program's treatment of floodplain
management and wetland protection in accordance with the manner in which
these concepts are expressed in E.O. 11988, 11990, and the Council's
Floodplain Management Guidelines (43 FR 6030).
18 CFR 725.9 PART 740 -- STATE WATER MANAGEMENT PLANNING PROGRAM
Sec.
740.1 Purpose and scope.
740.2 Definitions.
740.3 State applications.
740.4 State water management planning program.
740.5 Review and approval of State applications and programs.
740.6 Financial assistance.
740.7 Administration of financial assistance.
740.8 Reporting.
740.9 Recordkeeping.
740.10 Program review and assistance.
740.11 Federal/State coordination.
740.12 Amendments.
740.13 Supplemental instructions.
Authority: Water Resources Planning Act of 1965 (as amended), Pub.
L. 89-80, 79 Stat. 244, 42 U.S.C. 1962c; Federal Grant and Cooperative
Agreement Act of 1977, Pub. L. 95-224, 92 Stat. 3, 41 U.S.C. 501 et
seq.; E.O. 12044, 43 FR 12660.
Source: 45 FR 72010, Oct. 30, 1980, unless otherwise noted.
18 CFR 740.1 Purpose and scope.
(a) In recognition of the role of the States as the focal point for
the management of water and related land resources, this part
establishes guidelines for financial and program assistance to States
for water management planning programs which address each State's
particular needs, which are based on established State goals and
objectives, and which take into consideration national goals and
objectives.
(b) The purpose of the State Water Management Planning Program
(Program) is to provide financial and program assistance to
participating States to support the development and modification of
comprehensive water management planning programs.
(c) Funds made available under this part shall be used to establish,
develop or enhance existing or proposed State water resources management
and planning programs that are designed to address pertinent State and
national goals and objectives, as well as the goals and objectives of
Title III of the Water Resources Planning Act (Act), Pub. L. 89-80, as
amended, by addressing in the Program the following:
(1) Coordination of the program authorized by the Act and those
related programs of other Federal agencies;
(2) Integration of water conservation with State water management
planning;
(3) Integration of water quantity and water quality planning;
(4) Integration of ground and surface water planning;
(5) Planning for protection and management of groundwater supplies;
(6) Planning for protection and management of instream values; and
(7) Enhanced cooperation and coordination between Federal, regional
State and local governmental entities involved in water and related land
resources planning and management.
18 CFR 740.2 Definitions.
Act means the Water Resources Planning Act (as amended), Pub. L.
89-80, 42 U.S.C. 1962 et seq.
Activities means a series of actions and operations which address the
water management problems of the State and have a specific purpose or
objective. Activities are further characterized by one or more major
tasks and milestones.
Affected interests means public and private organizations, local,
tribal, State and Federal governments that may be potentially affected
by the State water management planning program.
Application means a document submitted by a Governor or designee for
consideration by the Council for a grant.
Council means the Water Resources Council established by section 101
of the Act.
Designated agency means an entity of a State designated by the
Governor to act as the grant recipient and to act as liaison with the
Council for this Program.
Fiscal year means a 12-month period ending on September 30, unless
otherwise specified.
Governor means the chief executive officer of a State, including the
Mayor of the District of Columbia.
Grant agreement means a document executed by the authorized official
of the Water Resources Council and by the authorized representative of
the State agency designated as the grant recipient containing the agreed
terms and conditions of the approved grant offer and award.
Grant period means a 12-month period specified in the grant
agreement, which shall begin during the fiscal year as defined above,
during which program funds are authorized to be expended, obligated, or
firmly committed by the grantee for the purposes specified in the Act,
in the grant agreement and in these guidelines.
Land area of a State means the land and inland water area of a State
as defined and set forth in the publication ''Boundaries of the United
States and the Several States'' Geological Survey Professional Paper
909, U.S. Government Printing Office, Washington, DC issued in 1976, or
revisions thereof.
Local government means a local unit of government including a county
municipality, city, town, township, local public authority, school
district, special district, intrastate district, council of governments,
sponsor group representative organization (as defined in 7 CFR 620.2, 40
FR 12472, March 19, 1975) and other regional or interstate government
entity; or any agency or instrumentality of a local government
exclusive of institutions of higher education and hospitals.
Milestones mean key events in the activity implementation schedule.
Milestones indicate important dates for design implementation and
monitoring tasks. Examples of milestones include but are not limited to
hiring of key staff, publication dates, workshop dates, or the
completion of specific phases of the implementation schedule.
Obligation means orders placed, contracts awarded, grants issued,
services received and similar transactions during a given period that
require the disbursement of money.
Per capita income of a State means the most recent year of official
U.S. Department of Commerce per capita income figures for the State.
Program period means the period beginning on October 1, 1980, and
extending through the authorized life of the Program.
Program funds means grant funds provided under the Act, non-Federal
funds and the value of in-kind contributions used for matching purposes.
Population of a State means the latest official resident population
estimate by the U.S. Department of Commerce available on or before
January 1, of the year preceding the fiscal year for which funds under
this part are appropriated.
Related land resources means any land affected by present or
projected management practices causing significant effects on the
quantity or quality of the water resource.
State means each of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, or the
Commonwealth of the Northern Mariana Islands.
State water management planning means those activities necessary to
effect coordinated decisions for the use of water and related resources
within a State or interstate region; which provide for the correction
or prevention, respectively, of present and future water and related
land resources problems; which consider the potential for water and
related land resources use from the standpoint of present and future
needs; and which provide for involvement of affected interests. Water
management planning activities may include, but are not limited to,
planning, data collection and analysis, studies and investigations,
program design and coordination, development of regulation and
enforcement programs, information dissemination, public meetings, and
the coordination of the program with other related programs.
Task means a specific action or operation which comprises a part of
the implementation effort for an activity.
Water conservation means activities designed to (1) reduce the demand
for water, (2) improve efficiency in use and reduce losses and waste of
water, or (3) improve land management practices to conserve water.
Water management planning need is defined as the basis for
establishing criteria for assessing each State's need for assistance
under the Program.
Work Plan means a document listing the major program elements to be
performed under the program during each grant period which presents, in
chronological order, the major activities and tasks in the program
element; which targets major milestones or proposed accomplishments by
activity, cost and date; and which will be used in preparing reports to
reflect accomplishment of goals and objectives under the participating
State's comprehensive program.
18 CFR 740.3 State applications.
(a) The Council shall invite the Governor of each State to submit a
State application.
(b) To be eligible for financial assistance under this part, a State
shall submit to the Council an original and two copies of a State
application executed by the Governor or designee. The State application
shall be submitted not later than 90 days from the date of the Council's
invitation.
(c) The program application package shall consist of:
(1) The forms and instructions for completing the application;
(2) The criteria to be used by the Council in assessing need for
water management planning funds;
(3) Information on the applicable Federal requirements for
administering the program; and
(4) Other information pertinent to the application.
(d) A State application shall contain:
(1) The name and address of the designated State agency;
(2) A description of the comprehensive State water management
planning program, or modifications thereto, as required by 740.4(a);
(3) A work plan of the major program activities of the State water
management planning program which targets milestones on a semi-annual
basis;
(4) A budget and corresponding narrative in accordance with the forms
and instructions provided by the Council;
(5) A notice of concurrence by the State clearinghouse in accordance
with the Office of Management and Budget (OMB) Circular A-95;
(6) The manner in which the general public is involved in the
development and modification of the State program; and
(7) A brief description of activities, in order of priority, which
would be carried out if additional funds were made available during the
grant period under the provisions of 740.6(e). This may include
supplementing or complementing ongoing activities described in paragraph
(d)(3) of this section.
(e) The Governor or designee may request an extension to the
submission date by submitting a written request to the Council not less
than 30 days prior to the date referred to in paragraph (b) of this
section. The extension shall be granted only if, in the Council's
judgment, acceptable and substantial justification is shown and the
extension would further the objectives of the Act. An extension shall
not be granted for more than 30 days.
18 CFR 740.4 State water management planning program.
(a) A State shall submit a description of its proposed State program
with the State application, which shall:
(1) Describe water and related land resources problems, needs and
opportunities, and the priorities proposed for their resolution;
(2) Specify the goals and objectives which reflect the water
resources policy of the State and which address the major problems which
are of concern to the State;
(3) Describe the major elements of the State water management
program, which should address but not be limited to:
(i) The integration of water quantity and water quality planning and
management;
(ii) The protection and management of instream values;
(iii) The protection and management of groundwater supplies;
(iv) The integration of ground and surface water planning and
management; and
(v) Water conservation.
(4) Identify Federal, State, or local government, or public or
private organizations that will participate and a general description of
how they are involved in the managment planning process;
(5) If provisions are made for pass-through of funds, describe the
process by which recipients will be selected, and the purpose of the
pass-through; and
(6) List existing or proposed administrative, legal and/or
institutional arrangements to be used in coordinating intrastate,
interstate and regional water resources planning activities involving
State, local and/or the Federal Government with the proposed water
management planning program of the State to assure that all such
activities are considered in program implementation.
18 CFR 740.5 Review and approval of State applications and programs.
(a) The Council shall review and approve each State application for
financial assistance if it is determined that:
(1) The State water management planning program meets the objectives
of the Act;
(2) The State application and the State water management planning
program meet the requirements of this part; and
(3) Progress on the previous grant period's work plan is
satisfactory, based on the requirements set forth by the Council.
(b) Based on the review of the application, the Council shall
determine the amount of funds to be made available pursuant to 740.6
and shall notify the designated agency in each participating State of
the grant award as soon as possible after funds are apportioned for
Council use.
(c) If an application is not approved by the Council, it shall be
returned by registered mail with a full explanation of the reasons for
that determination. The State shall then be allowed the opportunity to
submit a revised application within 30 days after receipt by the State
of such notification. Should the State determine that further review is
required by the State clearinghouse under OMB Circular A-95, an
additional 30 days will be allowed.
(d) If the grant amount requested by a State differs from the grant
amount offered by the Council, the Council will request the designated
State agency to submit a revised budget and work plan with the
acceptance of the grant offer.
(e) The State, upon acceptance of the terms and conditions of the
notice of grant award, as presented by the Council, will be granted
financial assistance in the amount of the approved final budget.
(f) The work plan for the State water management planning program may
be revised at any time by submitting revisions to the work plan and
budget to the Council for approval in connection with any proposed
significant change (an addition or deletion of major activities
specified in the approved work plan) with appropriate provision for A-95
State clearinghouse review. The Council will review the proposed
revision and notify the State of its decision no later than 30 days from
the date of receipt of the request.
18 CFR 740.6 Financial assistance.
(a) The Council shall provide financial assistance from funds
available for each fiscal year to each State having an approved
application pursuant to 740.5.
(b) Within the provisions prescribed by paragraphs (c) and (d) of
this section, the Council may grant up to 50 percent of the cost for a
State program.
(c) The funds appropriated pursuant to the Act for the fiscal year
shall be allocated among the participating States as follows, except
that under paragraphs (d) (2) through (4) of this section no State shall
be granted a greater or lesser sum of funds which shall be based upon a
procedure in which each of the factors of population, land area, and the
reciprocal of per capital income, are adjusted such that:
(1) Those States having observations two standard deviations below
the mean of each respective factor are equated to the mean-minus-two
standard deviations, and
(2) Those States having observations two standard deviations above
the mean of each respective factor are equated to the mean-plus-two
standard deviations.
(d) Financial assistance for the Program shall be allocated among the
participating States from funds available for any fiscal year based on
the following formula:
(1) An equal share not to exceed $100,000, the total of which shares
shall not exceed 10 percent of the funds available for any fiscal year;
(2) One-third of the remaining balance of the funds after accounting
for paragraph (d)(1) of this section in the ratio that the population of
each State bears to the population of all States;
(3) One-third of the remaining balance of the funds after accounting
for paragraphs (d)(1) and (2) of this section in the ratio that the land
area of each State bears to the land area of all the States;
(4) One-third of the remaining balance of funds after accounting for
paragraphs (d)(1), (2), and (3) of this section in the ratio that the
reciprocal of all per capital income of a State bears to the sum of the
reciprocals for all States; and
(5) The remainder of the funds according to the need for water
management planning in each State as expressed by the State and assessed
by the Council. In assessing need for water management, the Council
shall utilize established criteria, the proposed program, and
information made available during program review.
(e) Redistribution of grant funds may occur:
(1) If a State fails to apply for a grant within the period specified
in 740.3, or is unable to match the total allocation reserved under
740.6(d) for that State, that portion of the reserved allocation will be
withdrawn by the Council;
(2) If a State fails to obligate Federal funds within the grant
period of the approved or amended grant agreement as prescribed in
740.7(c), such funds shall be returned to the Council not later than 30
days after submission of the Financial Statement for the grant period
unless the Council, based on written request, grants an exception or
extension to this time limitation;
(3) Funds available under paragraph (e)(1) of this section shall be
available for redistribution to those States requesting additional funds
pursuant to 740.3(d)(7). These funds shall be distributed on the basis
of proposals in the application, and the relationship of the State's
original allocation to the original allocation of other States
requesting redistribution funds; and
(4) Funds available under paragraph (e)(2) of this section shall be
added to funds available for distribution for the next fiscal year, if
the appropriation legislation for the current year allows such action.
18 CFR 740.7 Administration of financial assistance.
(a) Grants under this part shall comply with the requirements of:
(1) Office of Management and Budget (OMB) Circular A-102, Revised,
(34 CFR Part 256), entitled ''Uniform Administrative Requirements for
Grants-in-Aid to State and Local Governments;''
(2) Federal Management Circular (FMC) 74-4 (34 CFR Part 255),
entitled ''Cost Principles Applicable to Grants and Contracts with State
and Local Governments;''
(3) OMB Circular A-73 (34 CFR Part 251), entitled ''Audit of Federal
Operations and Programs;''
(4) OMB Circular A-95, entitled ''Evaluation, Review and Coordination
of Federal and Federally assisted Programs and Projects;''
(5) Treasury Circular (TC) 1075, entitled ''Regulations Governing
Withdrawals of Cash from the Treasury for Advances under Federal Grants
and other Programs;''
(6) TC 1082, entitled, ''Notification to States of Grants-in-Aid
Information''; and
(7) Other procedures which the Council may from time to time
prescribe for the administration of financial assistance.
(b) The planning process as required by these guidelines and assisted
by WRC Title III program funds shall reflect the concepts of the
Council's 1979 publication, A Unified National Program for Floodplain
Management, and the concepts of floodplain and wetlands identification,
avoidance and mitigation as described in the Council's Floodplain
Management Guidelines (43 FR 6030). In the application for financial
assistance, the State shall assure the Council that the following
planning concepts have been or will be integrated into the planning
process:
(1) Determination of whether proposed activities would be located in
floodplains or wetlands, or, even if located outside of them, would have
the potential to affect floodplains or wetlands;
(2) Avoidance of performing activities within floodplains or wetlands
wherever there is a practicable alternative;
(3) Where avoidance of floodplains cannot be achieved, minimization
of adverse impacts and support of floodplain development, and
preservation and restoration of natural and beneficial floodplain
values; and
(4) Where avoidance of wetlands cannot be achieved, minimization of
adverse impacts and support of new construction in wetlands, and
preservation and enhancement of natural and beneficial wetlands values.
(c) Program funds must be obligated within the grant period unless
the Council, based on written request, grants an exception or extension
to this time limitation. The repeated occurrence of unobligated program
funds at the end of the grant period will be considered in determining
the need for assistance in subsequent years pursuant to 740.6(d)(5).
(d) The procurement standards, practices, rules and policies of the
State as customarily applied, if in accordance with Attachment O of OMB
Circular A-102, shall govern for procurement costs incurred in an
approved program.
(e) For all matching funds the sources of a State's cost share shall
have no bearing on whether or not such costs can be matched by Federal
funds except that:
(1) Other Federal funds or property cannot be used for matching
purposes unless specifically permitted by Federal law;
(2) Program funds shall not be used to match Federal funds under any
other federally aided program;
(3) Non-Federal funds used to match other federally aided programs
shall not be used to match funds provided under the Act; and
(4) Federal funds provided through this program, if duly matched
through the requirements of this part, may be used as non-Federal
contributions for Level B studies beginning in Fiscal Year 1981.
(f) Any cost incurred for water management planning may be employed
for matching a grant awarded under the Act except as specified in this
section. Such expenditures must be reasonable, documentable, and
directly applicable to the approved program.
(g) Program funds may not be used for:
(1) Items whose costs are not allowable under the provision of FMC
74-4;
(2) Contributions, dues or assessments to support headquarters
offices of interstate commissions, compacts, councils, interagency
committees, or other similar organizations;
(3) Scholarly or scientific investigations for purposes other than
addressing water management problems, needs, concerns or interests
specifically identified and explained in the approved program as a
priority consideration;
(4) Construction, payment of subsidies, or purchase of land or
easements;
(5) Purchase of equipment with a unit cost of $1,500 or more without
prior approval of the Council; and
(6) Purchase of equipment with a unit cost of less than $1,500 when
the cumulative cost of such equipment in any one grant period exceeds 1
percent of the grant award, without prior approval of the Council.
(h) Federal funds may not be used to substitute for State and local
funds that would have been made available for water management planning
programs in the absence of the grant funds provided under this part.
Federal funds may be used to supplement and complement existing water
management planning programs. It does not prevent drawing matching
shares from individual programs or from existing agency appropriations,
budgets, or resources so long as expenditures are not substituted by
Federal funds for the purposes of the Act.
(i) Payments shall be made in accordance with Attachment J of OMB
Circular A-102 and TC 1075. Grant funds shall be requested only on an
as needed basis.
(j) Financial management procedures shall comply with Attachment G of
OMB Circular A-102 and with TC 1075. The applicable Federal
requirements shall apply to the State and to local governments or
non-governmental entities that receive funds as a sub-grantee for the
purposes of the Act.
18 CFR 740.8 Reporting.
(a) The designated agency shall submit program status reports and
financial statements in accordance with procedures established by the
Council. Instructions and a description of the content of these reports
and the appropriate forms will be provided by the Council and will be in
accordance with Attachments H, I and K of OMB Circular A-102 and TC
1075.
(b) The annual program report shall be due 90 days after the end of
the grant period, as specified in the grant agreement, and shall
contain:
(1) A summary description of the major accomplishments and results of
the water management planning activities for the year, and an
explanation of any work proposed in the work plan that has not been
completed;
(2) An updated activity milestone chart, for each major activity in
the work plan, showing the completion dates of major tasks;
(3) For those States implementing an evaluation system, a summary of
the results of the evaluation efforts on the overall program
effectiveness and key water management activities;
(4) A list of publications, public information materials, and other
documents prepared in whole or in part with program funds which must
duly note the use of Council grant funds in the printing of these
documents;
(5) Other pertinent information, including any specific need for
assistance; and
(6) An annual Financial Status Report.
(c) The Report of Federal Cash Transactions, as required under the
provisions of Treasury Circular 1075, is due 30 days after the end of
each quarter of the grant period, as specified in the grant agreement.
18 CFR 740.9 Recordkeeping.
Each State or other entity within a State receiving financial
assistance under this part shall make and retain records required by the
Council, including records which fully disclose the amount and
disposition of financial assistance received; the cost of
administration; the total cost of all activities for which assistance
is given or used; and any data and information which the Council
determines are necessary to protect the interests of the United States
and to facilitate an effective financial audit and performance
evaluation. The Council and the Comptroller General of the United
States shall have access to any books, documents, records or receipts
which the Council determines are relevant or pertinent, either directly
or indirectly, to any financial assistance provided under this part.
Such records shall be retained for a period of three years, which starts
from the date of the submission of the annual financial status report
for the grant period.
18 CFR 740.10 Program review and assistance.
(a) Each State's program will be reviewed annually by the Council to
evaluate program management and accomplishments relative to the approved
work plan. The Council shall:
(1) Review progam information including the application, annual
reports, and other relevant information; and
(2) Make onsite visits as frequently as practicable to review the
State program to:
(i) Provide assistance in the administration of the program, and at
the request of the State, specific technical assistance in water
resources management;
(ii) Determine whether Council policies, procedures or guidelines
need revision to more effectively administer the grant; and
(iii) Gather information on practical or innovative techniques,
methodologies, or other relevant information on the program.
(b) Based on the Council's annual review of each State program, the
following may occur:
(1) If the program conforms to the requirements of the Act, the State
will be advised of its continued eligibility for a grant;
(2) If it appears that the program does not comply with the
requirements of the Act in either design or administration, the Council
shall ascertain all the relevant facts. The State shall be notified
immediately of the apparent inadequacies of the program with citation of
specific requirements of the Act, this part, or other relevant
instructions which apparently have not been met. The State shall be
given timely opportunity to be heard through the filing of written
statements and personal presentations in support of their position. If
the Council is satisfied that sufficient adjustments have been made in
the design and operation of the program, payments to the State will be
continued; and
(3) If the Council determines on the basis of all the facts that the
program still does not meet the requirements of the Act, the Governor
shall be notified of the decision and the reasons therefore, and that no
further payments shall be made until the noted inadequacies are
satisfactorily resolved.
18 CFR 740.11 Federal/State coordination.
The Council will coordinate the program under this part with similar
or related programs of other Federal agencies in an effort to achieve
consistency and compatibility in the administration of Federal programs.
18 CFR 740.12 Amendments.
The Council may amend all or portions of these guidelines in
accordance with established procedures. If it does, it will:
(a) Consult with appropriate advisory groups;
(b) Publish such proposed rulemaking in the Federal Register; and
(c) Simultaneously provide a copy of such proposed changes to each
designated agency.
18 CFR 740.13 Supplemental instructions.
As deemed appropriate, the Council may amplify the guidelines in this
part by means of supplemental instructions, and may clarify program or
administrative requirements set forth in these guidelines by the means
of policy bulletins.
18 CFR 740.13 CHAPTER VIII -- SUSQUEHANNA RIVER BASIN COMMISSION
Part
Page
801 General policies
803 Review of projects
18 CFR 740.13
18 CFR 740.13 18 CFR Ch. VIII (4-1-93 Edition)
18 CFR 740.13 Susquehanna River Basin Commission
18 CFR 740.13 PART 801 -- GENERAL POLICIES
Sec.
801.0 Introduction.
801.1 Standard definitions.
801.2 Coordination, cooperation, and intergovernmental relations.
801.3 Allocations, diversions, withdrawals, and release.
801.4 Project review.
801.5 Comprehensive plan.
801.6 Water supply.
801.7 Water quality.
801.8 Flood plain management and protection.
801.9 Watershed management.
801.10 Recreation.
801.11 Public values.
801.12 Electric power generation.
801.13 Proviso.
Authority: Secs. 3.1, 3.5(1) and 15.2, Pub. L. 91-575 (84 Stat.
1509 et seq.).
Source: 38 FR 4662, Feb. 20, 1973, unless otherwise noted.
18 CFR 801.0 Introduction.
(a) The Governors of the States of New York, Pennsylvania, and
Maryland, and a representative of the President of the United States are
members of the Susquehanna River Basin Commission. The Commission is a
regional governmental agency whose purpose is to effect comprehensive
multiple purpose planning for the conservation, utilization,
development, management, and control of the water and related natural
resources of the basin, which includes part of New York, Pennsylvania,
and Maryland.
(b) The Susquehanna River Basin Compact provides broad authority for
the Commission to carry out basinwide planning programs and projects,
and to take independent action as it determines essential to fulfill its
statutory regional governmental role.
(c) The objectives of the Commission are to: (1) Develop cooperative
and coordinated Federal, State, local, and private water and related
natural resources planning within the basin, (2) formulate, adopt,
effectuate, and keep current a comprehensive plan and a water resources
program for the immediate and long-range use and development of the
water resources of the basin, (3) provide for orderly collection and
evaluation of data, and for the continuing promotion and conduct of
appropriate research relating to water resources problems, (4) establish
priorities for planning, financing subject to applicable laws,
development and use of projects and facilities essential to effectively
meet identified water resource needs, (5) and to maintain these
resources in a viable state.
(d) The Commission shall employ a multiobjective approach recognizing
national economy, regional development and environmental quality in
planning for the use and development of the water resources of the
basin.
(e) It is the purpose of this document to set forth the objectives of
the Commission and to present certain basic policies that (1) have
basinwide application, (2) are specifically pertinent to the formulation
of a comprehensive plan, (3) will serve as guidelines for all agencies
or individuals with planning responsibilities for the development and
use of the water resources of the basin, (4) form the basis for working
relationship between the Commission and other agencies having related
responsibilities in the basin. This statement will be amended and
updated from time to time.
18 CFR 801.1 Standard definitions.
(a) Many terms that will be used in official Commission documents may
have slightly different meanings to various groups. To avoid confusion
and to increase the clarity of the meaning the Commission applies to
frequently used terms standard definitions will be utilized.
(b) The Commission will use the standard definitions set forth for
the terms shown in section 1.2 of the Compact,1 021 and will add terms
and appropriate definitions as deemed necessary.
0211Filed as part of FR Doc. 72-17234, Oct. 7, 1972.
18 CFR 801.2 Coordination, cooperation, and intergovernmental
relations.
(a) The interstate nature of the Susquehanna River Basin and the
broad regional authority of the Commission require clear and effective
working relationships with the States, Federal Government, and local and
private sectors in all matters relating to the water resources of the
basin.
(1) The Federal Government will be encouraged and asked to
participate in water resources projects and programs having national or
broad regional significance. The Commission will act to encourage local
initiative to solve water resources problems within a local and regional
context, but when faced with obviously needed action that is not
forthcoming from other sources will act, in accordance with the Compact,
on its own.
(2) The Compact provides authority for the Commission to serve in a
regulatory capacity and also to act as a managing and operating agency.
The Commission will exercise its regulatory authority mainly in
interstate matters or where signatory authority is not being effectively
exercised or where the signatory has little or no authority to act.
Similarly, the Commission may manage and operate various facilities if
it is determined that this is an area in which an important and
necessary service can be rendered.
(3) Should it become necessary for the Commission to undertake
development, management and operation of projects, arrangements for
repayment of all project costs and eventual operation and maintenance
costs will be appropriately prorated among the signatories or otherwise
financed in accordance with the Compact.
(4) The Commission will utilize the functions, powers, and duties of
the existing offices and agencies of government to the extent consistent
with the Compact.
(5) In its actions the Commission will maintain a high level of
public visibility. Broad government, public, and private sector
commentary on Commission proposals and findings will be invited, and to
the extent possible be incorporated and reflected in decisions for
finalization of plans, projects, and programs having significant effect
on the water resources of the basin. A concerted effort will be made to
keep the Commission and its activities readily available to government
and public scrutiny, and responsive to their concerns.
(b) The Commission shall exercise its regional jurisdiction in an
effort to avoid and minimize conflicts and duplication of effort and
shall:
(1) Cooperate with and help coordinate Federal, State, local
government, and private sector efforts in all matters relating to the
planning, conservation, preservation, use, development, management and
control of the water resources of the basin.
(2) Develop administrative agreements, as needed, with appropriate
agencies of the signatories and other agencies to facilitate achievement
of the Commission's objectives and related responsibilities of other
agencies by minimizing duplication of effort and maximizing the
contributions the respective agencies are best able to make.
(3) Build upon present water resources planning and related
activities of the signatory parties, local government, other public
bodies, and the private sector and fully consider their recommendations
and suggestions.
(4) Establish advisory committees as needed for specific assignments
and seek meaningful liaison with sources of technical and scientific
expertise.
(5) Share with interested parties results of investigations, studies,
tests, and research undertaken by the Commission in an appropriate
manner and form.
(6) Conduct its regular meetings announced in advance and open to the
public.
(7) Depend upon existing public and private agencies for the
construction, operation, and maintenance of projects except when the
project is necessary to further the comprehensive plan and the
responsible agency does not act or when the Commission is asked to act
by one or more signatories, one or more local governments, or other
responsible entities.
(8) Require that the planning of projects affecting the water
resources of the basin by Federal, State, local agencies and private
organizations be undertaken in coordination with the Commission and in
accordance with the Compact.
(9) Require that periodic reports of projects affecting water
resources within the basin and listings of discharge permits granted,
and similar activities undertaken by offices or agencies of the
signatory parties, be submitted to the Commission.
18 CFR 801.3 Allocations, diversions, withdrawals and release.
(a) The extremes in availability of water in the basin means that
water will not always be available when and where it is needed. One of
the responsibilities of the Commission is to act upon requests for
allocations, withdrawals, or diversions of water for in-basin or
out-of-basin use. Water emergencies may be expected to develop in
portions of the basin due to drought conditions or other causes. The
Commission will act promptly to effect alleviation of the condition to
the extent posible.
(b) The Commission will require evidence that proposed interbasin
transfers of water will not jeopardize, impair or limit the efficient
development and management of the Susquehanna River Basin's water
resources, or any aspects of these resources for in-basin use, or have a
significant unfavorable impact on the resources of the basin and the
receiving waters of the Chesapeake Bay.
(c) The Commission may, in making decisions on allocations,
diversions, withdrawals, and releases, consider the following principles
among others:
(1) That allocations, diversions, or withdrawals of water be based on
the common law principles of riparian rights which entitles landholders
in any watershed to draw upon the natural stream flow in reasonable
amounts and be entitled to the stream flow not unreasonably diminished
in quality or quantity by upstream use or diversion of water; and on
the maintenance of the historic seasional variations of the flows into
Chesapeake Bay.
(d) When the need arises for action on requests for allocations,
diversions, or withdrawals of water from either surface or ground waters
of the basin the Commission shall:
(1) Allocate waters of the basin to and among the signatory States to
the Compact as the need appears, and impose related conditions,
obligations, and release requirements.
(2) Determine if a proposed allocation, withdrawal or diversion is in
conflict with or will significantly affect the comprehensive plan, and
assure existing immediate and projected long term local and regional
uses are protected.
(3) Impose conditions, obligations and release requirements for dams
and/or diversion structures to protect prior local interests, downstream
interests, and environmental quality.
(4) In the matter of drought, disasters or catastrophes, natural or
manmade, which cause actual and immediate shortage of available and
usable water supply, determine and delineate the area of shortage and by
unanimous vote declare a state of water supply emergency therein, and
impose direct controls on any and all allocations, diversions and uses
of water to meet the emergency condition.
(5) In water emergencies coordinate the efforts of Federal, State,
local, and other persons and entities in dealing with the emergency.
(6) Determine and delineate, after public hearing, areas within the
basin wherein the demands upon supply made by water users have developed
or threaten to develop to such a degree as to create a water shortage or
impair or conflict with the comprehensive plan.
(7) When areas in need of protection from overdemand of safe yield of
the supply have been delineated, declare such areas protected from
further depletion, with the consent of the member or members from the
affected State or States.
(8) Require that no person divert or withdraw from any protected area
water for domestic, municipal, agricultural, or industrial uses in
excess of such quantities as the Commission may prescribe by general
regulation or pursuant to a permit granted heretofore under the laws of
any of the signatory States.
18 CFR 801.4 Project review.
(a) The Compact provides generally that no project affecting the
water resources of the basin shall be undertaken by any person,
governmental authority, or other entity prior to approval by the
Commission.
(b) In many instances, one or more of the signatory parties will
exercise project review authority regarding proposed projects in the
basin coming under the review of the Commission. Accordingly the
Commission will direct its attention to reviewing the completeness and
effectiveness of the review procedures of the signatories and will
endeavor to minimize duplication of staff effort, and time and cost to
the applicant.
(c) The Commission will establish exempt categories in accordance
with the section 3.10-3 of the Compact, and for projects determined not
to have a substantial effect on the water resources of the basin. In
dealing with Federal or federally licensed projects, the Commission will
take the provisions of reservations (r) and (w) of United States Pub.
L. 91-575 (84 Stat. 1509) and provisions of the Compact into account.
(d) It is expected that project review procedures will be modified
following adoption of the comprehensive plan. In the meantime the
Commission will:
(1) Base its review and comments pertaining to proposed projects
within the basin coming under the purview of the Commission, on review
and comments of signatory parties. In general, the Commission review
will seek to ascertain the completeness of procedures followed by the
signatory parties in their review, and will refrain from specifically
rechecking detailed evaluations. (Susquehanna River Basin Commission
Resolution No. 72-5)
(2) Require as it determines necessary, submission of pertinent
project plans and documents for its independent review and approval.
The purpose of this review will be to ascertain whether all relevant
provisions of the Compact and actions taken pursuant thereto have been
observed:
(i) When the Commission has determined that a project may have
significant effect on the water resources of the basin.
(ii) When a proposed project does not fall under the review
jurisdiction of any agency of the signatory parties.
18 CFR 801.5 Comprehensive plan.
(a) The Compact requires that the Commission formulate and adopt a
comprehensive plan for the immediate and long-range development and use
of the water resources of the basin.
(1) The plan will include existing and proposed public and private
programs, projects, and facilities which are required, in the judgment
of the Commission, to meet present and future water resources needs of
the basin. Consideration shall be given to the effect of the plan, or
any part of the plan, on the receiving waters of the Chesapeake Bay.
The Commission shall consult with interested public bodies and public
utilities and fully consider the findings and recommendations of the
signatory parties, their various subdivisions and interested groups.
Prior to adoption of the plan the Commission shall conduct at least one
public hearing in each signatory State.
(2) The plan will reflect consideration, of the multiobjectives of
national economy, regional development and environmental quality; and
multipurpose use of projects.
(3) Water quantity and water quality planning will be studied
together and correlated to the extent feasible, with existing and
proposed land uses. The development of a basinwide land use study to
enable full consideration of basic and alternative proposals to meet
water resources needs will be explored.
(4) An important phase of the plan formulation process is a thorough
review and evaluation of the Susquehanna River Basin Coordinating
Committee Study report, pertinent plans and reports of the signatories,
including water quality standards and other data available. The
findings and recommendations presented in the Susquehanna River Basin
Coordinating Committee Study report will be considered for incorporation
in the Commission's plan to the extent they are feasible and compatible
with the current and projected needs and interests.
(5) Essentially the comprehensive plan will reflect the findings of
an analysis of a mix of alternative futures for industrial,
agricultural, residential, and recreational development in the basin.
(6) The Commission will act diligently to promote Federal, State,
local governmental, and private sector cooperation and coordination in
the implementation of the adopted plan. It is expected that recommended
development programs will be undertaken by the signatories, local
governmental agencies, or private interests. If expeditious action by
others is not forthcoming or is not possible the Commission will act in
accordance with the Compact to implement programs, projects, and
standards to the extent necessary to further the aims of the
comprehensive plan.
(b) The comprehensive plan shall provide for the immediate and
long-range use, development, conservation, preservation, and management
of the water resources of the basin. The plan will be presented in a
form and order as determined by the Commission and shall include, but
not be limited to the following:
(1) Statement of authority, purpose, objectives, and scope.
(2) Description of the physical and human environment.
(3) Inventory of the basin's water resources and existing
developments and facilities.
(4) Projection of immediate and long-range water resources needs of
the basin.
(5) Description of a general system of measures and programs,
including water quality and other standards as determined necessary, and
reasonable alternatives considered essential to and capable of
satisfying water resources needs into the reasonably foreseeable future.
(6) Criteria used for review and acceptance of projects within the
plan.
(7) Procedures for updating and modifying the plan.
(8) Necessary appendices.
18 CFR 801.6 Water supply.
(a) The Susquehanna River Basin is rich in water resources. With
proper planning and management, and with adequate public and private
investment in treatment, storage, and distribution facilities, the high
potential of the basin to provide water of suitable quality for a wide
array of public and private purposes into the foreseeable future should
be possible.
(b) The Commission may regulate the withdrawal of waters of the basin
not regulated by the signatory parties for domestic, municipal,
industrial, and agricultural uses if regulation is considered essential
to further the aims set forth in the comprehensive plan.
(c) The Commission shall study the basin's water supply needs, the
potential surface and ground water resources, and the interrelationships
to meet these needs through existing and new facilities and projects.
Efficient use and management of existing facilities with emphasis on the
full utilization of known technology will be explored in meeting water
supply needs for domestic, municipal, agricultural, and industrial water
supply before new programs or projects are approved.
18 CFR 801.7 Water quality.
(a) The signatory States have the primary responsibility in the basin
for water quality management and control. However, protection of the
water resources of the basin from pollution, and actions by the
signatory parties to achieve abatement and control of pollution are
important to the Commission.
(b) The signatory parties have adopted water quality standards for
the intra and interstate waters of the basin. Initially these standards
will serve as the basis for the Commission's water quality program in
the comprehensive plan.
(c) The Commission's role in water quality management and control
essentially will be one of coordination to ensure water quality
standards are adequate to protect broad public water resources
interests, and that uniform policies and enforcement are affected by the
signatories.
(d) The Commission shall:
(1) Encourage and coordinate efforts of the signatory parties to
prevent, reduce, control, and eliminate water pollution and to maintain
water quality in accordance with established standards.
(2) Promote government and private sector implementation of maximum
practical use of waste utilization and treatment technology.
(3) Promote and encourage State and local governments and industry to
plan for regional waste water treatment and management.
(4) In cooperation with appropriate agencies of the signatory
parties, make periodic inspections to ascertain the state of compliance
with appropriate water quality standards, and as needed establish and
operate water quality monitoring stations.
(38 FR 4662, Feb. 20, 1973, as amended at 38 FR 6386, Mar. 9, 1973)
18 CFR 801.8 Flood plain management and protection.
(a) Periodic inundation of lands along waterways has not discouraged
development of flood hazards areas. Major floods cause loss of life,
extensive damages, and other conditions not in the public interest. A
balanced flood plain management and protection program is needed to
reduce the flood hazard to a minimum.
(b) The Commission may regulate the use of flood prone lands with
approval of the appropriate signatory party, to safeguard public health,
welfare, safety and property, and to sustain economic development.
(c) To foster sound flood plain controls, as an essential part of
water resources management, the Commission shall:
(1) Encourage and coordinate the efforts of the signatory parties to
control modification of the Susquehanna River and its tributaries by
encroachment.
(2) Plan and promote implementation of projects and programs of a
structural and nonstructural nature for the protection of flood plains
subject to frequent flooding.
(3) Assist in the study and classification of flood prone lands to
ascertain the relative risk of flooding, and establish standards for
flood plain management.
(4) Promote the use of flood insurance by helping localities qualify
for the national program.
(5) Assist in the development of a modern flood forecasting and
warning system.
18 CFR 801.9 Watershed management.
(a) The character, extent, and quality of water resources of a given
watershed are strongly affected by the land use practices within that
watershed. Accordingly the Commission will maintain close liaison with
Federal, State, and local highway, mining, soil, forest, fish and
wildlife, and recreation agencies and with government agencies dealing
with urban and residential development programs.
(b) The Commission shall: (1) Promote sound practices of watershed
management including soil and water conservation measures, land
restoration and rehabilitation, erosion control, forest management,
improvement of fish and wildlife habitat, and land use in highway,
urban, and residential development as related to water resources.
18 CFR 801.10 Recreation.
(a) The use of surface water resources of the basin for recreation
purposes is extensive. Swimming, fishing, boating, and other water
oriented activities have regional and local economic benefit as well as
recreational benefit.
(b) The Commission shall cooperate with public and private agencies
in the planning and development of water-related recreation and fish and
wildlife programs and projects within the basin and shall:
(1) Promote public access to and recreational use of existing and
future public water areas.
(2) Promote recreational use of public water supply reservoirs and
lakes where adequate treatment of water is provided, and/or where
recreational uses are compatible with primary project purposes.
(3) Include recreation as a purpose where feasible, in multipurpose
water use planning of reservoirs and other water bodies.
18 CFR 801.11 Public values.
(a) The basin has many points of archeological and historic interest,
and is well endowed with vistas of aesthetic significance.
(b) The Commission fully recognizes that the value of these areas
cannot be measured simply in economic terms and will strive to preserve
and promote them for the enjoyment and enrichment of present and future
generations.
(c) The Commission shall: (1) Seek the advice and assistance of
appropriate societies and governmental agencies in the identification of
archeological, historic, and scenic areas and unique lands in any
planning or development affecting these attributes of the basin.
18 CFR 801.12 Electric power generation.
(a) Significant uses are presently being made of the waters of the
basin for the generation of electric power at hydro, pumped storage, and
thermoelectric generating stations. Increased demands for electric
power throughout the East Coast can be expected to result in proposals
for the development of additional electric power generating stations
located either in the basin or nearby its borders.
(b) There appears to be limited site potential in the basin for
additional hydroelectric generation, and considerable potential for
additional pumped storage and thermoelectric generation. The direct and
indirect effects of existing and proposed electric generation projects
will be considered by the Commission. Items of concern will include
consumptive uses of water, alteration of natural stream regimen, effects
on water quality, and on the other uses of the streams affected.
(c) The Commission, in cooperation with appropriate agencies of the
signatory parties, and with other public and private agencies shall:
(1) Conduct a thorough review of applications to relicense existing
electric power generating projects and facilities, and applications to
amend existing licenses to determine if the proposal is in accord with
the comprehensive plan.
(2) Require that the proposed siting and location in the basin of any
type of electric generating facility or any facility located outside the
basin having an effect on the waters of the basin, shall be planned in
direct consultation with the Commission to enable advance consideration
of the possible effects of such installation on the water resources of
the basin.
18 CFR 801.13 Proviso.
(a) This part is promulgated pursuant to sections 3.1, 3.5(1), and
15.2 of the Compact and shall be construed and applied subject to all of
the terms and conditions of the Compact and of the provisions of Pub.
L. 91-575, 84 Stat. 1509: Provided, Any provision in this statement of
general policies that is inconsistent with the Compact itself shall be
null and void.
18 CFR 801.13 PART 803 -- REVIEW OF PROJECTS
18 CFR 801.13 Subpart A -- Introduction
Sec.
803.1 General.
803.2 Definitions.
803.3 Projects requiring applications.
803.4 Projects requiring review and approval.
803.5 Review by signatory parties of projects of concern to the
Commission.
803.6 Effective date.
18 CFR 801.13 Subpart B -- Application Procedure
803.20 Purpose of this subpart.
803.21 Preliminary consultations.
803.22 Submission of application.
803.23 Contents of application.
803.24 Notice of receipt of application.
803.25 Staff review.
803.26 Emergency approval.
18 CFR 801.13 Subpart C -- Public Hearing Procedure
803.40 Public hearing requirement.
803.41 Notice of public hearing.
803.42 Participants to a public hearing.
803.43 Representative capacity.
803.44 Description of project.
803.45 Adjudicatory hearing.
803.46 Presiding officer.
803.47 Memorandum of law or fact.
803.48 Consolidation of hearings.
803.49 Joint hearings.
803.50 Transcript.
803.51 Adjournments.
18 CFR 801.13 Subpart D -- Standards for Review
803.60 Purpose of this subpart.
803.61 Consumptive uses of water.
803.62 Ground-water withdrawals.
803.63 Water conservation requirements.
Authority: Sec. 3.4(9), 3.10, and 15.2, Pub. L. 91-575, 84 Stat.
1509 et seq.
Source: 39 FR 41973, Dec. 4, 1974, unless otherwise noted.
18 CFR 801.13 Subpart A -- Introduction
18 CFR 803.1 General.
(a) The Review of Projects is one of four major elements of the
Commission's program and planning system. Other major elements are the
Comprehensive Plan, the annual Water Resources Program and
Intergovernmental Relationships; all provided for in the Susquehanna
River Basin Compact (hereinafter referred to as the ''Compact'')
sections 14.1, 14.2 and 12.1 et seq., respectively. The Commission will
utilize the four elements, as appropriate, to advance its purpose set
forth in the Compact.
(b) This part establishes the scope and procedures for Review of
Projects. Section 3.10 of the Compact provides the authority for
Commission Review of Projects. In general, it provides that the
Commission's review authority extends to (1) projects that may result in
a significant interstate effect on the water resources of the Basin and
(2) projects that would affect immediate and long-range alternatives for
the management, development, conservation, or utilization of the Basin's
water resources.
(c) No person, group of persons, association, corporation or other
nongovernmental entity shall begin construction or operation of any
project affecting the water resources of the basin as set forth
hereafter prior to review and approval by the Commission of the project.
(d) Proposals for projects that come within 803.3 Projects Requiring
Review, set forth hereafter, of the Federal government, and the
signatory states, their political subdivisions, and public corporations
shall be submitted to the Commission for a period of ninety days or such
longer time as may be requested by the Commission. The Commission shall
submit recommendations and findings to the sponsoring agency which shall
be included in any report submitted by such agency to its respective
legislative body or to any committee thereof in connection with any
request for authorization or appropriation therefor. Commission review
and approval shall be required prior to construction or operation of any
government project within 803.3 that is not subject to specific
authorization or appropriation by a legislative body. The Commission
review will ascertain the projects' compatibility with the objectives,
goals, guidelines and criteria set forth in the Comprehensive Plan.
18 CFR 803.2 Definitions.
(a) These words shall be defined as follows unless otherwise
indicated.
(1) Basin. The Susquehanna River Basin.
(2) Construction. Clearing or excavation of the site, including the
driving of piles, construction of roadways and railroad spurs, and the
pouring of the foundation for, or the installation of any portion of the
project on the site.
(3) Project. Any work, service, activity, or facility undertaken
which is separately planned or financed for the conservation,
utilization, control, development, or management of water resources
which can be established and utilized independently, or as an addition
to an existing facility, and can be considered as a separate entity for
purposes of evaluation.
(4) Signatory party. The States of Maryland, New York, Commonwealth
of Pennsylvania, and the Federal government.
(5) Signatory State. The States of Maryland, New York, and
Pennsylvania.
(6) Sponsor. Any person, group of persons, association, corporation,
or government entity proposing a project.
(7) Susquehanna River Basin. The area of drainage of the Susquehanna
River and its tributaries into Chesapeake Bay to the southern edge of
the Pennsylvania Railroad bridge between Havre de Grace and Perryville,
Maryland.
(8) Water(s). Surface and underground water(s) contained within the
Susquehanna River Basin.
18 CFR 803.3 Projects requiring applications.
(a) Sponsors proposing the following projects shall file an
application in accordance with Subpart B of this part.
(1) Any physical facility on or crossing the boundary between any two
signatory states.
(2) Any project involving either the consumptive use of water (as
described in 803.61), or the transfer of water into or from the basin.
(3) Any proposal to change interstate water quality standards or
criteria.
(4) Any project within a signatory State that has the potential to
affect waters within another signatory State. This includes but is not
limited to projects which have the potential to alter the physical,
biological, chemical, or hydrological characteristics of water and
related natural resources of the following streams and/or their
tributaries:
(i) Between New York and Pennsylvania
Apalachian Creek, Bentley Creek, Bulkley Brook, Camp Brook Creek,
Cascade Creek, Cayuta Creek, Chemung River, Choconut Creek, Cowanesque
River, Denton Creek, Holden Creek, Little Snake Creek, Seeley Creek,
Snake Creek, South Creek, Susquehanna River, Tioga River, Troups Creek,
Trowbridge Creek, Wappasening Creek, White Branch.
(ii) Between Pennsylvania and Maryland
Big Branch Deer Creek, Broad Creek, Conowingo Creek, Deer Creek,
Falling Branch Deer Creek, Long Arm Creek, Muddy Creek, Octoraro Creek,
Scott Creek, South Branch, Conewago Creek, Susquehanna River.
(5) Any project which requires the commitment of water to a specific
use for a period of time longer than ten years. This includes but is
not limited to projects involving such activities as discharge into or
withdrawal from surface or underground water.
(i) Exemptions:
(a) Withdrawal of one MGD or less from any surface stream provided
it, in conjunction with all other withdrawals, does not exceed at any
point 25 percent of the seven (7) day, twenty (20) year low flow.
(b) Withdrawals by a user totaling 100,000 gpd or less from
groundwater sources.
(c) Any discharge authorized by the rules, regulations, or a permit
of a signatory party.
(6) Any project with a life expectancy of ten or more years designed
to satisfy a water resource related need. This includes projects such
as: Dams, levees, walls, or channel modifications.
(i) Exemptions:
(a) Farm ponds.
(b) Levees, walls and channel modifications less than 500 feet in
length or stream clearance activities conducted in accordance with
Commission guidelines.
(c) Dams which control a drainage area of less than ten square miles
except for water supply dams developing less than 80 percent of the one
hundred eighty (180) day average annual low flow if such low flow is
greater than 100,000 gpd.
(7) Any project or projects not included in paragraphs (a)(1) through
(6) of this section determined by the Commission to have a potential
adverse, adverse cumulative, or interstate effect on the water resources
of the basin; Provided, That the project sponsor is notified in writing
by the Commission that an application is required.
(b) If a sponsor is uncertain whether an application should be filed
with the Commission the sponsor may request and, within thirty days
after submission of information in such form and manner as will allow
the Commission to make the determination, receive from the Commission a
letter stating whether an application is required.
(c) For additional application and review procedures for projects,
see Subparts B and C of this part.
(39 FR 41973, Dec. 4, 1974, as amended at 41 FR 43135, Sept. 30,
1976)
18 CFR 803.4 Projects requiring review and approval.
(a) As determined from applications or otherwise, the Commission
shall review and either approve, approve with conditions, or disapprove
the following proposed projects within the Susquehanna River Basin.
(1) Any physical facility on or crossing the boundary between any two
signatory states.
(2) Any project involving either the consumptive use of water (as
described in 803.61), a ground-water withdrawal (as described in
803.62), or the transfer of water into or from the basin.
(3) Any project within a signatory state found and determined by the
Commission to have a significant effect on water within another
signatory state or upon the Comprehensive Plan.
(b) Any project or projects determined by the Commission or by a
signatory party to cause an adverse, adverse cumulative, or an
interstate effect on the water resources of the basin; Provided, The
project sponsor has been notified in writing by the Commission or a
signatory party that Commission review and action is required.
(39 FR 41973, Dec. 4, 1974 as amended at 41 FR 43135, Sept. 30, 1976;
55 FR 39144, Sept. 25, 1990)
18 CFR 803.5 Review by signatory parties of projects of concern to the
Commission.
(a) The Commission recognizes that agencies of the signatory parties
will exercise their review authority and evaluate many proposed projects
in the Basin. The Commission will develop guidelines to assure
compatibility between signatory review and Commission review.
(b) To avoid duplication of work and to cooperate with other
government agencies the Commission will develop agreements of
understanding in accordance with these guidelines with appropriate
agencies of the signatory parties regarding joint review of projects and
acceptance of signatory review. These agreements may provide for joint
efforts by staff, delegation of authority by an agency or the
Commission, or any other matter to support cooperative review
activities. Permits issued by a signatory agency shall be considered
Commission approval if issued pursuant to an agreement of understanding
with the Commission specifically providing therefor.
18 CFR 803.6 Effective date.
(a) Review by the Commission shall not be required for any project
which, prior to the effective date of this part, has (1) been issued a
permit by a signatory party allowing completion through the project's
final construction phase, or (2) commenced operation or been issued a
permit by a signatory party allowing it to commence; unless, the
project's sponsor is notified as provided in 803.4(b).
(b) This part shall become effective June 1, 1975.
18 CFR 803.6 Subpart B -- Application Procedure
18 CFR 803.20 Purpose of this subpart.
The purpose of this subpart is to set forth procedures governing
applications required by 803.3.
18 CFR 803.21 Preliminary consultations.
(a) Any sponsor of a proposed project that is subject to the
Commission's review jurisdiction under 803.4 is encouraged, prior to
making application for Commission review, to request a preliminary
consultation with the Commission staff for an informal discussion of
preliminary plans for the proposed project. To facilitate preliminary
consultations, it is suggested that the sponsor provide a general
description of the proposed project, the project site and, to the extent
available, data concerning dimensions of any proposed structures and the
environmental impacts.
(b) Preliminary consultations shall be optional with the project
sponsor and shall not relieve the sponsor from complying with the
provisions of the Susquehanna River Basin Compact or with these Rules
and Regulations.
18 CFR 803.22 Submission of application.
(a) Except as stated in paragraph (b) of this section, projects
requiring a permit or other form of regulatory approval from a State or
Federal agency having authority regarding water resources use,
development, control and conservation.
(1) The sponsor of the project shall make application to the agency
in the manner prescribed by the agency.
(2) It shall be the responsibility of the agency to transmit a copy
of the application to the Commission.
(b) Projects not subject to the jurisdiction of the above agencies
and projects involving a consumptive use of water as regulated under
803.61 or a ground-water withdrawal as regulated under 803.62.
(1) The sponsor of the project shall, prior to the time the project
is undertaken, make application to the Commission for review. The
application shall be submitted to the Commission at its headquarters,
and shall contain the information prescribed in 803.23.
(39 FR 41973, Dec. 4, 1974, as amended at 55 FR 39144, Sept. 25,
1990)
18 CFR 803.23 Contents of application.
(a) Except as stated in paragraph (b) of this section, projects
requiring a permit or other form of regulatory approval from a State or
Federal agency having regulatory authority regarding water resources
use, development, control and conservation.
(1) The sponsor of the project shall make application to the agency
in the form prescribed by the agency.
(b) Projects not subject to the jurisdiction of the above agencies
and projects involving a consumptive use of water as regulated under
803.61 or a ground-water withdrawal as regulated under 803.62.
(1) With the exception of applications for ground-water withdrawals
under 803.62 hereof, the sponsor's application shall address the
aspects pertinent to the project listed in paragraph (c) of this
section. The requirements for ground-water withdrawal applications are
described in 803.62.
(2) A report(s) about the project prepared for any other purpose will
be accepted by the Commission; Provided, The report(s) addresses the
aspects pertinent to the project listed in paragraph (c) of this
section.
(c) The sponsor's application shall address those aspects contained
in the following list if applicable to the project.
(1) Identification of sponsor(s) and name of person to contact
authorized to speak for the sponsor.
(2) Description of project and site in terms of:
(i) Engineering feasibility.
(ii) Willingness of sponsor(s) to fund the project or action.
(iii) Identification and description of reasonable alternatives, the
extent of their economic and technical investigation, and an assessment
of their potential environmental impact.
(iv) Supporting studies, reports and other information upon which
assumptions and assertions have been based.
(v) Compatibility of proposed project with existing and anticipated
uses.
(vi) Plans for avoiding or compensating for consumptive use during
low flow periods.
(vii) Current conditions and anticipated impact of the proposed
project on the following:
(a) Flood Damage potential:
(1) Location of project with respect to the flood plain and flood
hazard zones.
(b) (Reserved)
(c) Surface water characteristics:
(1) Quality.
(2) Quantity.
(3) Flow regimen.
(4) Other hydrologic characteristics.
(d) Recreation Potential.
(e) Fish and Wildlife:
(1) Habitat quality.
(2) Kind and number of species.
(f) Natural Environment Uses:
(1) Scenic vistas.
(2) Natural and man-made travel corridors.
(3) Wild and wilderness areas.
(4) Wild, scenic and recreation rivers.
(g) Site development considerations:
(1) Geology.
(2) Topography.
(3) Soil Characteristics.
(4) Adjoining and nearby land uses.
(5) Adequacy of site facilities.
(h) Historical, cultural and archaeological.
(3) Governmental considerations:
(i) Need for governmental services or finances.
(ii) Commitment of government to provide services or finances.
(iii) Status of application with other governmental regulatory
bodies.
(4) Project completion date.
(39 FR 41973, Dec. 4, 1974, as amended at 55 FR 39144, Sept. 25, 1990
18 CFR 803.24 Notice of receipt of application.
The Commission shall promptly issue a notice to area and regional
news media that an application has been received.
18 CFR 803.25 Staff review.
The Commission's staff shall review the application, and if
necessary, request the sponsor to provide any additional information
that is deemed pertinent for proper review of the project. The staff
review shall include:
(a) Determination of completeness of the application.
(b) Identification of the issues.
(c) Assessment of the project.
(d) Consultation with sponsor -- if requested.
(e) Report of findings and recommendations to Commission.
18 CFR 803.26 Emergency approval.
Whenever, in the judgement of the Executive Director, there exists an
emergency situation where delay in project review will affect adversely
the public health, public welfare, protection of property or the
environment, he may, after consultation with the Chairman and the member
of the signatory state in which the project is located and any affected
signatory state, act to approve a project on behalf of the Commission
under these regulations; provided, however, that the Commission must
ratify the Executive Director's action at the next regular meeting of
the Commission or the said action shall be considered invalid.
(50 FR 12241, Mar. 28, 1985)
18 CFR 803.26 Subpart C -- Public Hearing Procedure
18 CFR 803.40 Public hearing requirement.
A public hearing shall be conducted if the Commission determines that
(a) the project should or must be included in the Comprehensive Plan,
(b) a hearing is requested by a signatory party, or (c) a hearing is
necessary for proper evaluation of the project. Hearings will be held
whenever, in the judgement of the Commission, substantive requests or
questions are received that are related to public safety, protection of
the environment, or other important societal factors.
18 CFR 803.41 Notice of public hearing.
At least thirty days before any public hearing, notices stating the
date, time, place and purpose of the hearing including issues of
interest to the Commission shall be published at least once in a
newspaper or newspapers of general circulation in the area affected,
posted at the office of the Commission, and mailed to persons,
organizations and government agencies who have made written requests to
the Commission for notices of hearings or of a particular hearing; the
Directors of the Federal Register, Pennsylvania Bulletin, and the
Maryland Register for publication.
18 CFR 803.42 Participants to a public hearing.
(a) Hearings shall be open to the public. Participants to a public
hearing shall be the project sponsor and the Commission staff.
Participants may also be any person or public agency wishing to appear
at the hearing and make an oral or written statement. Statements may
favor or oppose the project or may simply express a position without
specifically favoring or opposing the project. Statements shall be made
a part of the record of the hearing, and written statements may be
received up to and including the last day on which the hearing is held,
or within a reasonable time thereafter as specified by the presiding
officer which time shall be not less than two weeks nor more than four
weeks, except that a longer time may be specified if requested by a
participant.
(b) Participants (except the project sponsor and the Commission
staff) are encouraged to file with the Commission at its headquarters
written notice of their intention to appear at the hearing. The notice
should be filed at least three days prior to the opening of the hearing.
18 CFR 803.43 Representative capacity.
Participants wishing to be heard at a hearing may appear in person or
be represented by an attorney or other representative. A public agency
or a local government may be represented by one of its officers,
employees or by a designee of the public agency or local government.
Any person intending to appear before the Commission in a representative
capacity on behalf of a participant shall give the Commission written
notice of the nature and extent of their authorization to represent the
person(s), public agency or local government on whose behalf they intend
to appear.
18 CFR 803.44 Description of project.
When notice of hearing is issued, there shall be available for
inspection at the Commission offices such plans, summaries, maps,
findings, statements, orders or other supporting documents which
explain, detail, amplify, or otherwise describe the project the
Commission is considering. Instructions on where and how the documents
may be obtained will be included in the notice.
18 CFR 803.45 Adjudicatory hearing.
The Commission, upon application by any interested party and in its
absolute discretion, may determine that any hearing or additional
hearing shall be conducted as an adjudicatory hearing and may specify
that all testimony to be received be given under oath, the right of
cross-examination be allowed, motions appropriate to such proceedings be
allowed, or otherwise regulate the hearings and the conduct of the
parties and their counsel.
18 CFR 803.46 Presiding officer.
The hearing shall be conducted by the Commission or any member or
designee of the Commission. The presiding officer shall have full
authority to control the conduct of the hearing and make a record of the
same.
18 CFR 803.47 Memorandum of law or fact.
The presiding officer may request from participants or participants
may on their own initiative provide a memorandum for the record to
assure the proper evaluation of issues of law or fact identified in the
hearing. The memorandum shall be provided by the participant to the
Commission and the project sponsor within 15 days from the end of the
hearing or such time as the presiding officer shall provide. Any such
memoranda will be at the Commission's headquarters for inspection and
copies will be available at the cost of reproduction.
18 CFR 803.48 Consolidation of hearings.
The Commission may order any two or more hearings involving a common
or related question of law or fact to be consolidated for hearing on any
or all the matters in issue in such hearings.
18 CFR 803.49 Joint hearings.
The Commission may conduct hearings in concert with any other agency
of a signatory party.
18 CFR 803.50 Transcript.
A verbatim transcript of the hearing shall be kept by the Commission.
A certified copy of the transcript and exhibits shall be available for
review during business hours at the Commission's headquarters to anyone
wishing to examine them. Anyone wishing to obtain a copy of the
transcript of any hearing shall make arrangements to obtain it directly
from the recording stenographer at their expense.
18 CFR 803.51 Adjournments.
The sponsor and all other persons wishing to be heard should be
prepared to proceed on the date of the hearing. Application for
adjournments will not be granted, except when good cause is shown.
18 CFR 803.51 Subpart D -- Standards for Review
Source: 41 FR 43135, Sept. 30, 1976, unless otherwise noted.
18 CFR 803.60 Purpose of this subpart.
The purpose of this subpart is to set forth standards that shall be
used by the Commission to evaluate proposed projects pursuant to its
authority detailed in 803.1 to 803.6. This subpart does not identify
all the aspects of a proposed project that will be evaluated. Nor
should it be construed as a self-imposed limitation upon the
Commission's authority and scope of review. These standards shall be
used for review of projects in conjunction with and in addition to the
Compact, Comprehensive Plan, Water Resources Program, and appropriate
regulations.
18 CFR 803.61 Consumptive uses of water.
(a) Definitions. For purposes of this section the words listed below
are defined as follows:
(1) Consumptive use. Water withdrawn from ground water or surface
water, via a man-made conveyance system, and not returned to the ground
water or surface water of the basin thereby making it unavailable for
other water uses or purposes.
(2) Dedicated augmentation. Release from an upstream storage
facility which is intended for another instream or withdrawal use.
(3) Compensation. Water provided from surface storage or ground
water as make-up for a project's consumptive use.
(b) Requirement. (1) Compensation shall be required for consumptive
uses of water during periods of low flow. Compensation is required
during periods of low flow for the purposes of protection of public
health; stream quality control; economic development; protection of
fisheries; recreation; dilution and abatement of pollution; the
regulation of flows and supplies of surface and ground waters; the
prevention of undue salinity; protection of the Chesapeake Bay; and
other purposes as determined by the Commission.
(2) Consumptive uses by a project not exceeding an average of 20,000
gpd for any consecutive thirty-day period from surface or ground waters
are exempt from the requirement unless such uses adversely affect the
purposes outlined in paragraph (b)(1) of this section.
(c) Method of compensation. (1) Methods of compensation acceptable
to the Commission will depend upon the character of the project's source
of water supply and other factors noted below.
(i) Stream source. Compensation in an amount equal to the project's
total consumptive use shall be required when the stream flow at the
point of taking equals or is anticipated to equal the low flow criterion
which is the 7-day 10-year low flow plus the project's total consumptive
use and dedicated augmentation. The Commission reserves the right to
apply a higher low flow criterion for a particular stream reach when it
finds, as the result of evidence presented at a public hearing, that it
is needed to serve the purposes outlined in paragraph (b)(1) of this
section.
(ii) Ground-water source. Compensation for the project's consumptive
use of ground water shall be required when the stream flow is less than
the applicable low flow criterion. For the purposes of implementing
this regulation, the Commission will identify the appropriate stream
gaging station for determining the applicable low flow.
(iii) The required amount of compensation shall be provided by the
applicant or project sponsor at the point of taking (for a surface
source) or another appropriate site as approved by the Commission to
satisfy the purposes outlined in paragraph (b)(1) of this section. If
compensation for consumptive use from a surface source is to be provided
upstream from the point of taking, such compensation shall reasonably
assure no diminution of the flow immediately downstream from the point
of taking which would otherwise exist naturally, plus any other
dedicated augmentation.
(iv) Compensation may be provided by one, or a combination of the
following:
(a) Construction or acquisition of storage facilities.
(b) Purchase of available water supply storage in existing public or
private storage facilities, or in public or private facilities scheduled
for completion prior to completion of the applicant's project.
(c) Purchase of water to be released as required from a water
purveyor.
(d) Releases from an existing facility owned and operated by the
applicant.
(e) Use of water from a public water supplier utilizing raw water
storage that maintains a conservation release or flow-by, as applicable,
of Q7-10 or greater at the public water supplier's point of taking.
(f) Ground water.
(g) Purchase and release of waters stored in other subbasins or
watersheds.
(h) Other alternatives.
(2) Alternatives to compensation may be appropriate such as
discontinuance of that part of the project's operation that consumes
water, imposition of conservation measures, utilization of an
alternative source that is unaffected by the compensation requirement,
or a monetary payment to the Commission in an amount to be determined by
the Commission from time-to-time.
(3) The Commission shall, in its sole discretion, determine the
acceptable manner of compensation or alternatives to compensation, as
applicable, for consumptive uses by a project. Such a determination
will be made after considering the project location, anticipated amount
of consumptive use and its effect on the purposes set forth in paragraph
(b)(1) of this section, and any other pertinent factors.
(d) Quantity of consumptive use. For purposes of evaluating a
proposed project the Commission shall require estimates of anticipated
consumptive use from the project sponsor. The Commission, as part of
the project review, shall evaluate the proposed methodology for
monitoring consumptive losses and compensating flows including flow
metering devices, stream gages, and other facilities used to measure the
consumptive use of the project or the rate of streamflow. If the
Commission determines that additional flow measuring devices are
required these shall be provided at the expense of the applicant and
shall be subject to inspection by the Commission at any time. When the
project is operational, the Commission shall be responsible for
determining when compensation is required and shall notify the project
sponsor accordingly. The project sponsor shall provide the Commission
with periodic reports in the time and manner as it requires showing
actual consumptive uses associated with the project. The Commission may
use this data to modify, as appropriate, the magnitude and timing of the
compensating releases initially required when the project was approved.
(e) Quality of compensation water. The physical, chemical and
biological quality of water used for compensation shall at all times
meet the quality requirements for the purposes listed in paragraph
(b)(1) of this section, as applicable.
(f) Effective date. This section shall apply to all consumptive uses
initiated since January 23, 1971. Any project that has initiated
consumptive use after the effective date is subject to this requirement.
Such users or projects which will begin consumptive uses in the near
future must comply with the requirement within a time period to be set
by the Commission for individual projects.
(g) Public water suppliers, except to the extent that they are
diverting the waters of the basin, shall be exempt from the requirements
of this section; provided, however, that nothing herein shall be
construed to exempt individual consumptive users connected to any such
public water supply system from the requirements of the section.
(41 FR 43135, Sept. 30, 1976, as amended at 55 FR 39144, Sept. 25,
1990)
18 CFR 803.62 Ground-water withdrawals.
Any project sponsor proposing to withdraw ground water from a single
well or a well field in excess of an average of 100,000 gpd for any
consecutive thirty-day period or proposing to increase an existing
withdrawal to more than an average of 100,000 gpd for any consecutive
thirty-day period shall obtain Commission approval of the withdrawal.
These withdrawals may be limited by the Commission to the amount
(quantity and rate) of ground water that can be withdrawn from an
aquifer or aquifer system without causing long-term progressive lowering
of ground-water levels, rendering competing supplies unreliable, causing
water quality degradation that may be injurious to any existing or
potential ground or surface water use, causing permanent loss of aquifer
storage capacity, or having substantial impact on low flow of perennial
streams. Projects withdrawing more than an average of 100,000 gallons
per day for any consecutive thirty-day period prior to the effective
date of this section are exempt from the above approval requirements,
provided that the current withdrawal rate does not exceed the amount
withdrawn before the said effective date. Any such exempted project
that increases the said average withdrawal to a level above that which
it was withdrawing prior to the said effective date shall be subject to
the monitoring and reporting requirements described in paragraph (c) of
this section and the 5-year review described in paragraph (e) of this
section. Any sponsor of a project subject to Commission review and
approval shall complete a ground-water withdrawal application. Also,
after obtaining approval for the withdrawal, the sponsor shall comply
with metering, monitoring, and conservation requirements as follows:
(a) Withdrawal Application (Form SRBC 24). Information required by
the Commission is specified in the ground-water withdrawal application
and includes but is not limited to the following:
(1) Drillers' and/or geologists' reports.
(2) Location map(s) showing all project wells and other pertinent
information.
(3) Results of a minimum, 48-hour constant rate pumping test. Note:
Review and approval of the test procedures to be used by the applicant
are necessary before the test is started.
(4) A chemical analysis of ground water from the proposed source.
(b) Metering. Ground-water users shall meter all approved
ground-water sources. The meters shall be accurate to within five
percent of the actual flow. Withdrawals for all commercial farm
irrigation, sand and gravel operations, and temporary dewatering
operations shall be exempt from the requirement for metering. They
shall, however, record pump capacity and elapsed hours of operation.
This information shall be reported as monthly totals annually or more
frequently, if required, by the permitting agency.
(c) Monitoring and Reporting. Periodic monitoring and reporting of
water levels, well production, and ground-water quality are required of
all approved ground-water withdrawals. The required information is
listed in Form SRBC 30 (Ground-Water Withdrawal Reporting Form) and
includes but is not limited to the following:
(1) Ground-water levels shall be measured weekly in all approved
production wells and reported to the Commission annually. Additional
water levels may be required in one or more observation wells as
determined by the Commission.
(2) Production from approved ground-water sources shall be recorded
weekly and reported to the Commission annually.
(3) Samples of ground water for water quality analysis shall be
obtained and the results reported to the Commission every three years.
The required chemical constituents to be included in the analysis are
listed in Form SRBC 30. Note: The information may be provided to the
Commission either on Form SRBC 30 or other similar document containing
all of the required information.
(d) The Commission may, in its discretion, modify the requirements of
paragraphs (a), (b), or (c) of this section if the essential purposes of
the ground-water program continue to be served.
(e) Approvals by the Commission for ground-water withdrawals shall be
subject to review at intervals of 5 years, after which the Commission
may, at its discretion, choose to modify the approval based on
information obtained from monitoring or other sources.
(f) Planning. If projections indicate that a project's ground-water
supply will be constrained in the future by either the quantity or
quality of available ground water, the Commission may, in its
discretion, require the submission of a water resource-development plan
prior to accepting any new withdrawal applications for the same or
related projects.
(g) Interference with Existing Wells. If review of the application
or other substantial data demonstrates that operation of a proposed
ground-water withdrawal will significantly affect or interfere with an
existing well or wells, the project sponsor may be required to provide,
at its expense, an alternate water supply or other mitigating measures.
(55 FR 39145, Sept. 25, 1990)
18 CFR 803.63 Water conservation requirements.
Any project sponsor proposing to withdraw water from surface or
groundwater sources or both shall comply with the following
requirements:
(a) Public water supply utilities. As circumstances warrant, the
utility shall:
(1) Reduce distribution system losses to a level not exceeding 20
percent of the gross withdrawal.
(2) Install meters for all users and/or otherwise establish a program
of water conservation that will include:
(i) The installation of water conservation devices, as applicable, by
all classes of users;
(ii) Preparation and distribution of literature to customers
describing available water conservation techniques; and
(iii) Implementation of a water pricing structure which encourages
conservation.
(b) Industrial water users. Industrial users shall:
(1) Establish a company representative to manage plant water use.
(2) Install meters or other suitable devices or utilize acceptable
flow measuring methods for accurate determination of water use by
various parts of the company operation.
(3) Install flow control devices, which match the needs of the
equipment being used for production.
(4) Evaluate and implement applicable recirculation and reuse
practices.
(c) Agricultural irrigation. Water users for irrigation purposes
shall:
(1) Utilize irrigation systems properly designed for the farm's
respective soil characteristics, topography, and cropping systems.
(2) Irrigate for food crops only as necessary to achieve optimum crop
production, except in periods of prolonged drought when irrigation is
applied to protect against crop failure.
(44 FR 8868, Feb. 12, 1979)
18 CFR 803.63 18 CFR Ch. XIII (4-1-93 Edition)
18 CFR 803.63 Tennessee Valley Authority
18 CFR 803.63 CHAPTER XIII -- TENNESSEE VALLEY AUTHORITY
Part
Page
1300 Ethical and other conduct standards and responsibilities of
employees and special government employees
1301 Procedures
1302 Nondiscrimination in federally assisted programs of TVA --
effectuation of Title VI of the Civil Rights Act of 1964
1303 (Reserved)
1304 Approval of construction in the Tennessee River System and
regulation of structures
1305 Land between the lakes
1306 Relocation assistance and real property acquisition policies
1307 Nondiscrimination with respect to handicap
1308 Contract disputes
1309 Nondiscrimination with respect to age
1310 Administrative cost recovery
1311 Intergovernmental review of Tennessee Valley Authority Federal
financial assistance and direct Federal development programs and
activities
1312 Protection of archaeological resources: Uniform regulations
1313 Enforcement of nondiscrimination on the basis of handicap in
programs or activities conducted by the Tennessee Valley Authority
1314 Book-entry procedures for TVA power securities
1315 New restrictions on lobbying
18 CFR 803.63
18 CFR 803.63 18 CFR Ch. XIII (4-1-93 Edition)
18 CFR 803.63 Tennessee Valley Authority
18 CFR 803.63 PART 1300 -- ETHICAL AND OTHER CONDUCT STANDARDS AND RESPONSIBILITIES OF EMPLOYEES AND SPECIAL GOVERNMENT EMPLOYEES
18 CFR 803.63 Subpart A -- General Provisions
Sec.
1300.735-1 Purpose.
1300.735-2 Definitions.
1300.735-3 Interpretation and advisory service.
1300.735-4 Reviewing statements of employment and financial
interests.
1300.735-5 Disciplinary and other remedial action.
1300.735-6 Administration of regulations.
18 CFR 803.63 Subpart B -- Ethical and Other Conduct Standards and
Responsibilities of Employees
1300.735-11 Proscribed actions.
1300.735-12 Gifts, entertainment, and favors.
1300.735-13 Outside employment and other activity.
1300.735-14 Financial interests.
1300.735-15 Use of Government property.
1300.735-16 Misuse of information.
1300.735-17 Indebtedness.
1300.735-18 Gambling, betting, and lotteries.
1300.735-19 General conduct prejudicial to the Government.
1300.735-20 Miscellaneous statutory provisions.
1300.735-21 Sexual harassment.
1300.735-22 National origin harassment.
1300.735-23 Harrassment on the basis of race, color, religion, age,
or handicap.
18 CFR 803.63 Subpart C -- Ethical and Other Conduct Standards and
Responsibilities of Special Government Employees
1300.735-31 Use of TVA employment.
1300.735-32 Use of inside information.
1300.735-33 Coercion.
1300.735-34 Gifts, entertainment, and favors.
1300.735-35 Miscellaneous statutory provisions.
1300.735-36 General conduct.
1300.735-37 Sexual harassment.
1300.735-38 National origin harassment.
1300.735-39 Harassment on the basis of race, color, religion, age, or
handicap.
18 CFR 803.63 Subpart D -- Statements of Employment and Financial
Interests
1300.735-41 Employees required to submit statements.
1300.735-41a Employee's complaint on filing requirement.
1300.735-41b Interests not required to be reported.
1300.735-42 Time and place for submission of employees' statements.
1300.735-43 Supplementary statements.
1300.735-44 Interests of employees' relatives.
1300.735-45 Information not known by employees.
1300.735-46 Information prohibited.
1300.735-47 Confidentiality of employees' statements.
1300.735-48 Effect of employees' statements on other requirements.
1300.735-49 TVA regulations for special Government employees.
Authority: 16 U.S.C. 831-831dd; E.O. 11222, 3 CFR 1964-1965 Comp.,
p. 306 (as amended); 5 CFR 735.104. Section 1300.735-14(c) is issued in
accordance with 18 U.S.C. 208(b). Sections 1300.735-21 through
1300.735-23 and 1300.735-37 through 1300.735-39 are issued under
authority of 16 U.S.C. 831-831dd.
Source: 33 FR 224, Jan. 6, 1968, unless otherwise noted.
Redesignated at 44 FR 30682, May 29, 1979.
18 CFR 803.63 Subpart A -- General Provisions
18 CFR 1300.735-1 Purpose.
The maintenance of unusually high standards of honesty, integrity,
impartiality, and conduct by Government employees and special Government
employees is essential to assure the proper performance of the
Government business and the maintenance of confidence by citizens in
their Government. The regulations in this part prescribe ethical and
other conduct standards and responsibilities of TVA employees and
special Government employees and set forth requirements for reporting on
and reviewing their outside employment and financial interests.
18 CFR 1300.735-2 Definitions.
In this part:
(a) Employee means an employee of TVA but does not include a special
Government employee or a member of the uniformed services.
(b) Executive order means Executive Order 11222 of May 8, 1965.
(c) General Manager means the General Manager of TVA.
(d) Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company, or
any other organization or institution.
(e) Special Government employee means a ''special Government
employee'' as defined in section 202 of Title 18 of the United States
Code who is employed by TVA (i.e., an employer-employee relationship is
established), but does not include a member of the uniformed services.
(f) TVA Board or Board means the Board of Directors of TVA.
(g) Uniformed services has the meaning given that term by section
101(3) of Title 37 of the United States Code.
18 CFR 1300.735-3 Interpretation and advisory service.
The General Manager is designated as counselor for TVA. As such he
is TVA's designee to the U.S. Civil Service Commission on matters
covered by the regulations in this part; he coordinates TVA's
counseling services and assures that counseling and interpretations on
questions of conflict of interest and other matters covered by the
regulations in this part are available to deputy counselors. He
designates other officials as deputy counselors as he deems necessary.
Deputy counselors are responsible for providing authoritative advice and
guidance to each employee and special Government employee who seeks
advice on matters covered by the regulations in this part.
18 CFR 1300.735-4 Reviewing statements of employment and financial
interests.
Each statement of employment and financial interests submitted under
1300.735-41 through 1300.735-49 is reviewed as follows:
(a) A statement submitted by the General Manager is reviewed by the
TVA Board.
(b) Statements submitted by employees or special Government employees
reporting directly to the General Manager are reviewed by the General
Manager.
(c) Statements submitted by other employees or special Government
employees are reviewed by the General Manager or by officials he
designates.
(d) The employee or special Government employee is provided an
opportunity to explain a conflict or apparent conflict of interest.
(e) The reviewer obtains from the employee or special Government
employee or from any other source such additional information as he
deems advisable in any case where he determines a conflict or apparent
conflict of interest may exist.
(f) A conflict or appearance of conflict of interest that is not
resolved at a lower level is reported to the TVA Board through the
counselor designated under 1300.735-3.
18 CFR 1300.735-5 Disciplinary and other remedial action.
(a) A violation of the regulations in this part may be cause for
appropriate disciplinary action which may be in addition to any penalty
prescribed by law.
(b) Remedial action to end a conflict or appearance of conflict of
interest may include, but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee or special Government employee of his
conflicting interest;
(3) Removal from position or resignation;
(4) Disqualification for a particular assignment.
(c) Any of the foregoing actions shall be effected in accordance with
applicable laws, Executive orders, and regulations.
18 CFR 1300.735-6 Administration of regulations.
Except as specifically provided otherwise, the administration of the
regulations in this part and the applicable regulations of the U.S.
Civil Service Commission under the Executive order is hereby delegated
to the General Manager and to offices, divisions, and officials he
designates.
18 CFR 1300.735-6 Subpart B -- Ethical and Other Conduct Standards and Responsibilities of Employees
18 CFR 1300.735-11 Proscribed actions.
An employee shall avoid any action, whether or not specifically
prohibited by this subpart, which might result in, or create the
appearance of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person;
(c) Impeding TVA efficiency or economy;
(d) Losing complete independence or impartiality;
(e) Making a TVA decision outside official channels; or
(f) Affecting adversely the confidence of the public in the integrity
of TVA.
18 CFR 1300.735-12 Gifts, entertainment, and favors.
(a) Except as provided in paragraphs (b) and (e) of this section, an
employee shall not solicit or accept directly or indirectly, any gift,
gratuity, favor, entertainment, loan, or any other thing of monetary
value, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with TVA;
(2) Conducts operations or activities that are regulated by TVA; or
(3) Has interests that may be substantially affected by the
performance or nonperformance of his official duty.
(b) An employee may: (1) Accept a gift or favor or other thing of
monetary value when the circumstances make it clear that it is an
obvious family or personal relationship (such as that between the
parents, children, or spouse of the employee and the employee) which
motivates the gift and its acceptance rather than the business of the
persons concerned;
(2) Accept food and refreshments of nominal value on infrequent
occasions in the ordinary course of a luncheon or dinner meeting or
other meeting or on an inspection tour where an employee may properly be
in attendance;
(3) Accept food and refreshments, not lavish in kind, offered free in
the course of a widely attended group function such as a reception,
seminar, conference or training session, at which attendance is
desirable because it will assist the employee in performing his or her
official duties; however, the benefit to TVA in having the employee
attend must outweigh the entertainment value of the event. The
Chairman, Directors, Executive Vice President, Senior Vice Presidents,
General Counsel, Inspector General, and Vice Presidents shall determine
for their staffs the propriety of attendance at such functions and the
acceptance of such amenities; such determinations for Senior Vice
Presidents, the General Counsel, and Vice Presidents shall be made by
the Executive Vice President, and determinations for the Chairman,
Directors, Executive Vice President, or Inspector General shall be made
by themselves with prior Designated Agency Ethics Official consultation.
All such determinations required by this 1300.735-12(b)(3) shall be
made in advance and shall take into account whether the timing or
circumstances of the event and the sponsor's current relationship with
TVA might create an appearance of impropriety;
(4) Accept local transportation while on official business when no
provision for individual payment can be made and alternative
arrangements are clearly impracticable such as transportation from an
airport to a remote site for business purposes;
(5) Accept loans from banks or other financial institutions on
customary terms to finance proper and usual activities of employees such
as home mortgage loans; and
(6) Accept unsolicited advertising or promotional material, such as
pens, pencils, note pads, calendars, and other items of nominal
intrinsic value.
(c) An employee shall not solicit a contribution from another
employee for a gift to an official superior, make a donation as a gift
to an official superior, or accept a gift from an employee receiving
less pay than himself (5 U.S.C. 7351). However, this paragraph does not
prohibit a voluntary gift of nominal value or donation in a nominal
amount made on a special occasion such as marriage, illness, or
retirement.
(d) An employee shall not accept a gift, present, decoration, or
other thing from a foreign government unless authorized by Congress as
provided by the Constitution and in 5 U.S.C. 7342.
(e) Neither this section nor 1300.735-13 precludes an employee from
receipt of bona fide reimbursement, unless prohibited by law, for
expenses of travel and such other necessary subsistence as is compatible
with this part for which no Government payment or reimbursement is made.
However, this paragraph does not allow an employee to be reimbursed, or
payment to be made on his behalf, for excessive personal living
expenses, gifts, entertainment or other personal benefits, nor does it
allow an employee to be reimbursed by a person for travel on official
business under agency orders when reimbursement is proscribed by
Decision B-128527 of the Comptroller General dated March 7, 1967.
(33 FR 224, Jan. 6, 1968. Redesignated at 44 FR 30682, May 29, 1979,
and amended at 53 FR 40217, Oct. 14, 1988)
18 CFR 1300.735-13 Outside employment and other activity.
(a) An employee shall not engage in outside employment or other
outside activity, including holding a State or local government office,
not compatible with the full and proper discharge of the duties and
responsibilities of his TVA employment. Incompatible activities include
but are not limited to:
(1) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances in which acceptance
may result in, or create the appearance of, conflicts of interest.
(2) Outside employment which tends to impair the employee's mental or
physical capacity to perform his Government duties and responsibilities
in an acceptable manner.
(3) Outside employment which would conflict with or reduce the
employee's effectiveness in his TVA job or adversely affect TVA's
relations with the public.
(b) An employee may not accept outside consulting work without prior
TVA approval. Employees who perform consulting work for others, do so
in accord with concepts and policies followed by TVA as an agency in the
particular subject-matter field. For purposes of this section,
consulting work is that which involves primarily the provision of expert
judgment and advice to others, as contrasted with direct work
performance.
(c)(1) An employee may not receive any salary, or any contribution to
or supplementation of salary, as compensation for his service as an
employee from any source other than the Government of the United States,
except as may be contributed out of the treasury of any State, county,
or municipality (18 U.S.C. 209).
(2) The above provision does not prevent an employee from continuing
to participate in a bona fide pension, retirement, group life, health or
accident insurance, profit-sharing, stock bonus, or other employee
welfare or benefit plan maintained by a former employer.
(d) Employees may engage in teaching, lecturing, and writing that is
not prohibited by law, the Executive order, or the regulations in this
part. However, an employee shall not, either for or without
compensation, engage in teaching, lecturing, or writing, that is
dependent on information obtained as a result of his Government
employment, except when that information has been made available to the
general public or will be made available on request, or when the General
Manager, after obtaining prior concurrence of the Board, gives written
authorization for the use of nonpublic information on the basis that the
use is in the public interest.
(e) This section does not preclude an employee from:
(1) Participation in the activities of national or State political
parties not proscribed by law or TVA policy.
(2) Participation in the affairs of or acceptance of an award for a
meritorious public contribution or achievement given by a charitable,
religious, professional, social, fraternal, nonprofit educational and
recreational, public service, or civic organization.
(33 FR 19168, Dec. 24, 1968. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1300.735-14 Financial interests.
(a) An employee shall not:
(1) Have a direct or indirect financial interest that conflicts
substantially, or appears to conflict substantially, with his TVA duties
and responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a
result of, or primarily relying on, information obtained through his TVA
employment.
(b) This section does not preclude an employee from having a
financial interest or engaging in financial transactions to the same
extent as a private citizen not employed by TVA so long as it is not
prohibited by law, the Executive order, or the regulations in this part.
(c) In accordance with the provisions of 18 U.S.C. 208(b)(2) (1982),
TVA has exempted the following financial interests of its employees from
the requirements of 18 U.S.C. 208(a) upon the ground that such interests
are too remote or too inconsequential to affect the integrity of such
employees' services. When any of the following exemptions applies only
to a limited range of official actions, rather than all official acts,
the range of actions will be specified within the language of the
exemption.
(1) An investment in a business enterprise in the form of ownership
of bonds, notes, and other evidences of indebtedness which are not
convertible into shares of preferred or common stock and have no
warrants attached entitling the holder to purchase stock provided that
the estimated market value of the interest does not exceed $5,000;
(2) An investment in the form of shares in the ownership of
enterprises, including preferred and common stocks whether voting or
nonvoting, or warrants to purchase such shares, or evidences of
indebtedness convertible into such shares provided that the estimated
market value of the interest does not exceed $5,000 and does not exceed
1 percent of the estimated market value of all the outstanding shares of
the enterprise;
(3) Shares or investments in a well-diversified money market or
mutual fund;
(4) Vested interests in a pension fund arising out of former
employment and to which no further contributions are being made in the
employee's behalf, provided that, if the pension plan is a defined
benefit plan, the assets of the plan are diversified. For the purpose
of this provision, payments are not considered to be made ''in the
employee's behalf'' if they are made solely to maintain adequate plan
funding rather than to provide specific benefits for the employee; or
(5) The interest an employee has by virtue of his or her personal or
family use of electric power or through his or her interests in an
organization using electric power generated or distributed by TVA, for
purposes of his or her official actions at TVA in the process of
developing or approving TVA power rate schedules.
(33 FR 224, Jan. 6, 1968. Redesignated at 44 FR 30682, May 29, 1979,
and amended at 53 FR 40217, Oct. 14, 1988)
18 CFR 1300.735-15 Use of Government property.
An employee shall not directly or indirectly use, or allow the use
of, Government property of any kind, including property leased to the
Government, for other than officially approved activities. An employee
has a positive duty to protect and conserve Government property,
including equipment, supplies, and other property entrusted or issued to
him.
18 CFR 1300.735-16 Misuse of information.
For the purpose of furthering a private interest, an employee shall
not, except as provided in 1300.735-13(d), directly or indirectly use,
or allow the use of, official information obtained through or in
connection with his TVA employment which has not been available to the
general public.
18 CFR 1300.735-17 Indebtedness.
An employee shall pay each just financial obligation in a proper and
timely manner, especially one imposed by law such as Federal, State, or
local taxes. For the purpose of this section, a ''just financial
obligation'' means one acknowledged by the employee or reduced to
judgment by a court, and ''in a proper and timely manner'' means in a
manner which TVA determines does not, under the circumstances, reflect
adversely on TVA as his employer. In the event of a dispute between an
employee and an alleged creditor, this section does not require TVA to
determine the validity or amount of the disputed debt.
18 CFR 1300.735-18 Gambling, betting, and lotteries.
An employee shall not participate, while on Government owned or
leased property or while on duty for the Government, in any gambling
activity including the operation of a gambling device, in conducting a
lottery or pool, in a game for money or property, or in selling or
purchasing a numbers slip or ticket. However, this section does not
preclude activities:
(a) Necessitated by an employee's law enforcement duties; or
(b) Under section 3 of Executive Order 10927 and similar TVA-approved
activities.
18 CFR 1300.735-19 General conduct prejudicial to the Government.
An employee shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government.
18 CFR 1300.735-20 Miscellaneous statutory provisions.
Each employee shall acquaint himself with each statute that relates
to his ethical and other conduct as an employee of TVA and of the
Government. These statutes are as follows:
(a) House Concurrent Resolution 175, 85th Congress 2d Session, 72
Stat. B12, the ''Code of Ethics for Government Service.''
(b) Chapter 11 of Title 18, United States Code, relating to bribery,
graft, and conflicts of interest, as appropriate to the employees
concerned.
(c) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(d) The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918).
(e) The prohibition against the employment of a member of a Communist
organization (50 U.S.C. 784).
(f) The prohibitions against (1) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of
confidential information (18 U.S.C. 1905).
(g) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)).
(h) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(i) The prohibition against fraud or false statements in a Government
matter (18 U.S.C. 1001).
(j) The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071).
(k) The prohibition against counterfeiting and forging transportation
requests (18 U.S.C. 508).
(l) The prohibitions against (1) embezzlement of Government money or
property (18 U.S.C. 641); (2) failing to account for public money (18
U.S.C. 643); and (3) embezzlement of the money or property of another
person in the possession of an employee by reason of his employment (18
U.S.C. 654).
(m) The prohibition against unauthorized use of documents relating to
claims from or by the Government (18 U.S.C. 285).
(n) The prohibitions against political activities in Subchapter III
of Chapter 73 of Title 5, United States Code and 18 U.S.C. 602, 603,
607, and 608.
(o) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
18 CFR 1300.735-21 Sexual harassment.
It is TVA policy that all TVA employees are responsible for assuring
that the workplace is free from sexual harassment. Accordingly, all
employees must avoid any action or conduct which could be viewed as
sexual harassment including:
(a) Unwelcome sexual advances;
(b) Requests for sexual favors; and
(c) Other verbal or physical conduct of a sexual nature when:
(1) Submission to such conduct is made either explicitly or
implicitly a term or condition of an individual's employment;
(2) Submission to or rejection of such conduct by an individual is
used as the basis for employment decisions affecting such individual;
or
(3) Such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an
intimidating, hostile, or offensive working environment.
(48 FR 41380, Sept. 15, 1983)
18 CFR 1300.735-22 National origin harassment.
It is TVA policy that all TVA employees are responsible for assuring
that the workplace is free from national origin harassment.
Accordingly, all employees must avoid any action or conduct which could
be viewed as national origin harassment, including ethnic slurs and
other verbal or physical conduct relating to an individual's national
origin when such conduct:
(a) Has the purpose or effect of creating an intimidating, hostile,
or offensive working environment;
(b) Has the purpose or effect of unreasonably interfering with an
individual's work performance; or
(c) Otherwise adversely affects an individual's employment
opportunities.
(48 FR 41380, Sept. 15, 1983)
18 CFR 1300.735-23 Harassment on the basis of race, color, religion,
age, or handicap.
It is TVA policy that all TVA employees are responsible for assuring
that the workplace is free from harassment on the basis of race, color,
religion, age, or handicap. Accordingly, all employees must avoid any
action or conduct which could be viewed as harassment on these bases,
including any verbal or physical conduct relating to an individual's
race, color, religion, age, or handicap when such conduct:
(a) Has the purpose or effect of creating an intimidating, hostile,
or offensive working environment;
(b) Has the purpose or effect of unreasonably interfering with an
individual's work performance; or
(c) Otherwise adversely affects an individual's employment
opportunities.
(48 FR 41380, Sept. 15, 1983)
18 CFR 1300.735-23 Subpart C -- Ethical and Other Conduct Standards and Responsibilities of Special Government Employees
18 CFR 1300.735-31 Use of TVA employment.
A special Government employee of TVA shall not use his TVA employment
for a purpose that is, or gives the appearance of being, motivated by
the desire for private gain for himself or another person, particularly
one with whom he has family, business, or financial ties.
18 CFR 1300.735-32 Use of inside information.
(a) A special Government employee shall not use inside information
obtained as a result of his TVA employment for private gain for himself
or another person either by direct action on his part or by counsel,
recommendation, or suggestion to another person, particularly one with
whom he has family, business, or financial ties. For the purpose of
this section, ''inside information'' means information obtained under
Government authority which has not become part of the body of public
information.
(b) A special Government employee may teach, lecture, or write in a
manner not inconsistent with the standards established for employees in
1300.735-13(d).
18 CFR 1300.735-33 Coercion.
A special Government employee shall not use his TVA employment to
coerce, or give the appearance of coercing, a person to provide
financial benefit to himself or another person, particularly one with
whom he has family, business, or financial ties.
18 CFR 1300.735-34 Gifts, entertainment, and favors.
(a) Except as provided in paragraph (b) of this section, a special
Government employee who can influence TVA's decisions in acquiring or
disposing of services, equipment, materials, or real estate, or in
planning or carrying out program activities may not, while employed by
TVA or in connection with his employment with TVA, receive or solicit,
anything of value as a gift, gratuity, special discount, favor,
entertainment, loan, or any other thing of monetary value, for himself
or another person, from a person who might benefit from such decisions.
(b) A special Government employee may accept things of value
described in 1300.735-12(b) under the same circumstances and to the
same extent as they may be accepted by employees.
18 CFR 1300.735-35 Miscellaneous statutory provisions.
Each special Government employee shall acquaint himself with each
statute listed in 1300.735-20 that relates to his ethical and other
conduct as a special Government employee of TVA and of the Government.
18 CFR 1300.735-36 General conduct.
Each special Government employee shall adhere to the standards of
conduct made applicable to employees by 1300.735-14 through
1300.735-19.
18 CFR 1300.735-37 Sexual harassment.
It is TVA policy that all TVA special Government employees are
responsible for assuring that the workplace is free from sexual
harassment. Accordingly, all special Government employees must avoid
any action or conduct which could be viewed as sexual harassment
including:
(a) Unwelcome sexual advances;
(b) Requests for sexual favors; and
(c) Other verbal or physical conduct of a sexual nature when:
(1) Submission to such conduct is made either explicitly or
implicitly a term or condition of an individual's employment;
(2) Submission to or rejection of such conduct by an individual is
used as the basis for employment decisions affecting such individual;
or
(3) Such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an
intimidating, hostile, or offensive working environment.
(48 FR 41380, Sept. 15, 1983)
18 CFR 1300.735-38 National origin harassment.
It is TVA policy that all TVA special Government employees are
responsible for assuring that the workplace is free from national origin
harassment. Accordingly, all special Government employees must avoid
any action or conduct which could be viewed as national origin
harassment, including ethnic slurs and other verbal or physical conduct
relating to an individual's national origin when such conduct:
(a) Has the purpose or effect of creating an intimidating, hostile,
or offensive working environment;
(b) Has the purpose or effect of unreasonably interfering with an
individual's work performance; or
(c) Otherwise adversely affects an individual's employment
opportunities.
(48 FR 41380, Sept. 15, 1983)
18 CFR 1300.735-39 Harassment on the basis of race, color, religion,
age, or handicap.
It is TVA policy that all TVA special Government employees are
responsible for assuring that the workplace is free from harassment on
the basis of race, color, religion, age, or handicap. Accordingly, all
special Government employees must avoid any action or conduct which
could be viewed as harassment on these bases, including any verbal or
physical conduct relating to an individual's race, color, religion, age,
or handicap when such conduct:
(a) Has the purpose or effect of creating an intimidating, hostile,
or offensive working environment;
(b) Has the purpose or effect of unreasonably interfering with an
individual's work performance; or
(c) Otherwise adversely affects an individual's employment
opportunities.
(48 FR 41381, Sept. 15, 1983)
18 CFR 1300.735-39 Subpart D -- Statements of Employment and Financial Interests
18 CFR 1300.735-41 Employees required to submit statements.
(a) The following employees must submit statements of employment and
financial interests on forms TVA 9862, ''Confidential Statement of
Employment and Financial Interests (For Use by Employees)'':
(1) All employees at TVA grade M-8 and above.
(2) Employees at TVA grades M-5, M-6, and M-7 who are in positions
determined by the General Manager or an official designated by him as
positions the incumbents of which are responsible for making a TVA
decision or taking a TVA action in regard to:
(i) Contracting or procurement (other than contracting for the
services of employees or special Government employees), including the
determination of specifications to be included in procurement contracts;
the evaluation of bids; the appraisal or selection of prospective
bidders or of contractors; the negotiation or approval of contracts;
the administration of contract provisions, including the supervision of
activities performed by contractors, and the inspection of materials for
acceptability;
(ii) Administering or monitoring grants or subsidies, including
grants to educational institutions and other non-Federal enterprises;
(iii) Audit of financial transactions;
(iv) Regulating or auditing private or other non-Federal enterprise;
(v) Use and disposal of excess or surplus property;
(vi) Establishment and enforcement of safety standards and procedures
systems; or
(vii) Any other matter having an appreciable economic impact on the
interests of a non-Federal enterprise.
Employees in such positions may be excluded from the reporting
requirement when the General Manager or an official designated by him
determines that the duties of a position are such that the likelihood of
the incumbent's involvement in a conflicts-of-interest situation is
remote; or that the duties of a position are at such a level of
responsibility that the submission of a statement of employment and
financial interests is not necessary because of the degree of
supervision and review over the incumbent or the inconsequential effect
on the integrity of the Government and TVA.
(3) Employees at TVA grades M-5, M-6, and M-7 who are in positions
which are determined by the General Manager or an official designated by
him to have duties and responsibilities which require the incumbent to
report employment and financial interests in order to avoid involvement
in a possible conflicts-of-interest situation and carry out the purpose
of law, the Executive order, and the regulations in this part.
(b) The positions described in paragraphs (a) (2) and (3) of this
section are identified in the appendix to this section. The appendix
shall be maintained and changes therein made by TVA. Additions to,
deletions from, and other amendments of the list of positions in the
appendix are effective upon actual notification to the incumbents. The
amended appendix shall be submitted annually for publication in the
Federal Register.
As provided in 1300.735-41(b), employees in the following positions,
which are described in 1300.735-41(a) (2) and (3), must submit
Statements of Employment and Financial Interests:
Assistant to Manager, Office, grade M-7
District Administrator, grade M-7
Chief, Staff, grade M-5
Chief, Citizen Action Office, grade M-7
Coordinator, grade M-7
Manager, Information Services, grade M-7
Assistant Chief, Citizen Action Office, grade M-6
Chief, Broadcast/Audiovisual Staff, grade M-6
Manager, Energy Education, grade M-6
Manager, Information Services, grade M-6
Manager, Media Relations, grade M-6
Chief, Employee Communications Staff, grade M-5
Manager, Information Services, grade M-5
Manager, News Desk, grade M-5
Assistant Chief, Branch, Corporate Industrial Engineering Branch,
grade M-6
Assistant General Auditor, grade M-6
Audit Supervisor, External, grade M-6
Audit Supervisor, Internal, grade M-6
Supervisor, Program Evaluations Section, grade M-6
Industrial Engineer, grade M-5
Program Analyst, grade M-5
Supervisor, Section, grade M-5 (All)
Chief, Branch, grade M-6
Assistant to the Program Manager, grade M-6
Chemical Engineer, grade M-6
Chief, Business Staff, grade M-6
Head, Group, grade M-6 (All)
Chief, Operations Staffs, grade M-5
Project Staff Engineer, grade M-5
Supervisor, Section, grade M-5 (All)
Supervisor, Staff, grade M-5 (All)
Chief, Branch, Knoxville Accounting Branch, grade M-7
Treasurer, grade M-7
Assistant Chief, Branch, Muscle Shoals Accounting Branch, grade M-6
Assistant, Chief, Branch, Retirement Services Branch, grade M-6
Supervisor, Accounting Services, grade M-6
Supervisor, Accounting Section, grade M-5
Supervisor, Accounting Quality Assurance Section, grade M-5
Supervisor, Accounts Payable Section, grade M-5
Supervisor, Benefits Section, grade M-5
Supervisor, Distributive Services Accounting Section, grade M-5
Supervisor, Payroll Section, grade M-5
Attorney (Community, Industrial, and Chemical Development), grade M-7
Attorney (Natural Resources Development), grade M-7
Attorney (Nuclear Regulatory and Environmental Laws and Regulations),
grade M-7
Attorney (Procurement and Business), grade M-7
Attorney (Reservoir Properties, Permits), grade M-7
Attorney (Patents), grade M-6
Assistant to the Manager of Agricultural and Chemical Development,
grade M-7
Chief, Staff, Budget and Cost Control Staff, grade M-7
Program Manager, grade M-7
Agriculturist, grade M-6
Assistant Project Manager, grade M-5
Personnel Officer, grade M-5
Supervisor, Safety Engineering Services, grade M-5
Chief, Branch, grade M-7
Senior Scientist, grade M-7
Assistant to the Director of Agricultural Development, grade M-6
Assistant Chief, Branch, grade M-6
Program Manager, grade M-6 (All)
Supervisor, Section, grade M-6 (All)
Assistant to the Chief of Agricultural Research Branch, grade M-5
Supervisor, Administrative Services, grade M-5
Chief, Branch, grade M-7
Project Manager, grade M-7
Assistant Chief, Design Branch, grade M-6
Assistant Project Manager, grade M-6
Chief, Services, Administrative Services, grade M-6
Electrical Engineer (Contract Administration), grade M-6
Mechanical Engineer (Contract Administration), grade M-6
Civil Engineer (Contract Administration), grade M-5
Mechanical Engineer (Contract Administration), grade M-5
Chief, Branch, grade M-7
Assistant Chief, Branch, grade M-6
Supervisor, Central Services Section, grade M-5
Assistant to the Office Manager, grade M-7
Chief, Branch, grade M-7
Economist, grade M-6
Program Delivery Center Manager, grade M-6 (All)
Program Manager, grade M-6 (All)
Supervisor, Section, grade M-6 (All)
Chief, Staff, grade M-5 (All)
Coordinator, grade M-5 (All)
Economist, grade M-5 (All)
Program Coordinator, grade M-5 (All)
Program Manager, Minority Economic Development Section, grade M-5
Program Manager, Regional Studies and Mitigation Section, grade M-5
Program Manager, Skills Development Section, grade M-5
Program Manager, Program Delivery Center, Nashville, grade M-5
Program Manager, Special Opportunities Counties and Cities and
Enterprise Development Section, grade M-5
Regional Planner, grade M-5
Supervisor, Section, grade M-5 (All)
Supervisor, Unit, grade M-5 (All)
Supervisor, Section, grade M-5 (All)
Supervisor, Unit, grade M-5 (All)
Project Staff Engineer, grade M-7 (All)
Chief, Staff, Management Systems Staff, grade M-6
Project Manager, grade M-6
Assistant Project Manager, grade M-5
Supervisor, Field Office Inspection Unit, grade M-5
Chief, Branch, grade M-7
Civil Engineer, grade M-7 (All)
Design Project Manager, Environmental Design Project, grade M-7
Electrical Design Project Engineer, grade M-7 (All)
Electrical Engineer, grade M-7 (All)
Geologist, grade M-7
Mechanical Design Project Engineer, grade M-7 (All)
Mechanical Engineer, grade M-7 (All)
Project Engineer, Deferred Nuclear Unit Project, grade M-7 (All)
Project Manager, grade M-7 (All)
Architect, grade M-6 (All)
Assistant to the Chief, Branch, grade M-6 (All)
Assistant Head, Group, Nuclear Steam Supply Materials and Radwaste,
grade M-6
Assistant to Design Project Manager, Sequoyah and Watts Bar Design
Project, grade M-6
Assistant to Project Manager, Investment Recovery Project, grade M-6
Civil Design Project Engineer, grade M-6 (All)
Civil Engineer, Administrative Services, Civil Engineering Support
Branch, grade M-6
Civil Engineer, Structural Engineering Section, Civil Engineering
Support Branch, grade M-6
Civil Engineer, Project Management Staff, Boiling Water Reactor
Project, grade M-6
Electrical Design Project Engineer, grade M-6
Materials Engineer, grade M-6
Mechanical Design Project Engineer, grade M-6
Mechanical Engineer, Staff Specialist, Mechanical Engineering Support
Branch, grade M-6
Nuclear Engineer, Nuclear Safety Analysis Staff, Nuclear Engineering
Support Branch, grade M-6
Quality Assurance Engineer, grade M-6
Electrical Engineer, Communication Equipment Section, Electrical
Engineering Support Branch, grade M-5
Project Engineer, Chattanooga Office Complex Project, grade M-5
Supervisor, Section, Codes, Standards, and Materials Section, grade
M-5
Supervisor, Section, Contract Engineering Section, grade M-5
Supervisor, Section, Heavy Equipment Design Section, grade M-5
Supervisor, Section, Manpower Management Section, grade M-5
Supervisor, Section, NSSS, Stride, and BOP Engineering Section, grade
M-5
Supervisor, Section, Nuclear Analysis Section, grade M-5
Supervisor, Section, Nuclear Steam Supply Section, grade M-5 (All)
Supervisor, Section, Quality Assurance Audit Section, grade M-5
Supervisor, Section, Quality Assurance Engineering Section, grade M-5
Supervisor, Section, Reliability and Availability Section, grade M-5
Supervisor, Section, Reprographic/Administrative Services Section,
grade M-5
Supervisor, Section, Systems Analysis Section (No. 3), grade M-5
Chief, Management Services Branch, grade M-7
Construction Engineer, grade M-7 (All)
General Construction Superintendent, grade M-7 (All)
Project Manager, Yellow Creek Nuclear Plant, grade M-7
Assistant Construction Engineer, Phipps Bend Nuclear Plant, grade M-6
Assistant to the Manager (Administrative), grade M-6
Chief, Project Management Services, grade M-6
Chief, Staff, grade M-6 (All)
Project Engineer, grade M-6
Supervisor, Section, Management Services Section, grade M-5
Supervisor, Unit, Warehouse Services Unit, grade M-5 (All)
Welding Engineer, grade M-5
Assistant to Director of Labor Relations, grade M-7
Chief, Salary Policy Contract Administration, grade M-7
Chief, Trades and Labor Contract Administration, grade M-7
Chief, Negotiations Support Staff, grade M-6
Chief, Branch, grade M-7
Chief, Staff, Information Resources Management Staff, grade M-7
Assistant Chief, Information Resources Management Staff, grade M-6
Chief, Management Services Staff, grade M-6
Manager, Technical Services Development Section, grade M-6
ADP Planner, grade M-5
Assistant to Chief, Systems Development Services Branch, grade M-5
Supervisor, Section, Facilities Evaluation and Acquisition, grade M-5
Supervisor, Section, Operating Services Section, grade M-5
Chief, Branch, grade M-7
Chief, Branch, grade M-6
Supervisor, Administrative Services, grade M-5
Assistant to Director of Property and Services, grade M-7
Chief, Branch, grade M-7
Title Attorney, grade M-7
Assistant Chief, Land Branch, grade M-6
Assistant to Chief, Employee Transportation Branch, grade M-6
Coordinator, Office Service Branch, grade M-6
Librarian, grade M-6
Supervisor, Section, grade M-6 (All)
Supervisor, Services, Reprographics and Record Services Group, grade
M-6
Airplane Pilot, grade M-5
Assistant to Chief, Office Service Branch, grade M-5
Building Management Specialist, grade M-5
Chief, Services, Management Services, grade M-5
District Manager, grade M-5
Supervisor, Section, grade M-5 (All)
Supervisor, Services, Reproduction and Word Processing Section, grade
M-5
Supervisor, Unit, grade M-5 (All)
Supervisor, Management Services Staff, grade M-6
Supervisor, Area Operations Section, grade M-5
Supervisor, Nuclear Compliance Staff, grade M-5
Supervisor, Nuclear Operations Section, grade M-5
Supervisor, Personnel and Budget Section, grade M-5
Assistant to the Director of Purchasing, grade M-7
Chief, Branch, grade M-7
Chief, Staff, Procurement Support Staff, grade M-7
Assistant Chief, Branch, grade M-6
Assistant Chief, Staff, grade M-6
Chief, Staff, grade M-6
Assistant Chief, Staff, Procurement Systems Staff, grade M-5
Procurement Analyst, grade M-5
Purchasing Agent, grade M-5
Supervisor, Section, grade M-5 (All)
Assistant to the Director of Occupational Health and Safety, grade
M-7
Chief, Branch, grade M-7
Chief, Branch, Technical Support Branch, grade M-6
Supervisor, Section, grade M-6 (All)
Chief, Staff, Management Services Staff, grade M-5
Hazard Control Engineer, grade M-5
Industrial Hygienist, grade M-5
Personnel Officer, grade M-5
Supervisor, Section, grade M-5 (All)
Supervisor, Staff, Automated Data Processing Staff, grade M-5
Supervisor, Unit, grade M-5 (All)
Chief, Branch, Health Physics Services Branch, grade M-7
Chief, Branch, Laboratory Services Branch, grade M-6
Supervisor, Section, grade M-6 (All)
Health Physicist, grade M-5
Supervisor, Section, grade M-5 (All)
Supervisor, Unit, Health Physics Support Unit, grade M-5
Chief, Area Medical Service, grade P-4
Chief, Branch, grade M-7
Medical Administrator, grade M-7
Assistant Medical Administrator, grade M-6
Assistant Chief, Staff, Technical Project Unit, grade M-5
Chief of Nursing, grade M-5
Personnel Officer, grade M-5
Psychologist, grade M-5
Supervisor, Section, Systems and Data Processing Section, grade M-5
Chief, Program, grade M-7
Supervisor, Section, Research Section, grade M-6
Chief, Management Services, grade M-7
Manager, Land Planning and Management, grade M-7
Manager, Resource Programs, grade M-7
Program Manager, grade M-6 (All)
Project Manager, Forest Industry Development, grade M-6
Project Manager, grade M-6 (All)
Chief Archaeologist, grade M-5
Program Manager, grade M-5 (All)
Project Manager, grade M-5 (All)
Senior Terrestrial Ecologist, grade M-5
Senior Wetland Ecologist, grade M-5
Staff Forester, grade M-5
Supervisor, Section, grade M-5 (All)
Supervisor, Staff, Data Analysis Staff, grade M-5
Chief, Branch, grade M-6
Assistant Chief, Branch, Recreation, Interpretation, and
Environmental/Energy Education Branch, grade M-5
Civil Engineer, grade M-5
General Foreman, grade M-5
Land Use Specialist, grade M-5
Program Manager, grade M-5
Supervisor, Section, grade M-5 (All)
Assistant to the Director of Natural Resource Operations, grade M-7
Chief, Branch, grade M-7
Manager, Operations, grade M-7
Assistant Chief, Branch, grade M-6
Chief, Branch, Laboratory Branch, grade M-6 Chief, Services,
Administrative and Personnel Services, grade M-6
Program Manager, Geographic Information Services Branch, grade M-6
Supervisor, Operations, grade M-6 (All)
Civil Engineer, Data Services Branch, grade M-5
Coordinator, grade M-5 (All)
Instrument Engineer, Data Services Branch, grade M-5
Personnel Officer, grade M-5
Project Manager, Data Services Branch, grade M-5
Project Manager, Geographic Information Services Branch, grade M-5
Research Chemist, grade M-5
Supervisor, Section, grade M-5 (All)
Supervisor, Services, Administrative Services, grade M-5
Supervisor, Staff, grade M-5 (All)
Supervisor, Unit, Field Operations Eastern Area, grade M-5
Chief, Branch, grade M-7
Assistant to the Director of Water Resources, grade M-6
Assistant Chief, Staff, grade M-7
Head, Group, Power System and Analysis Group, grade M-7
Head, Group, Program Planning Group, grade M-7
Assistant Chief, Management Services Staff, grade M-6
Chief, Staff, Systems Planning and Development Staff, grade M-6
Power Planning Advisor, grade M-6
Supervisor, Safety Engineering Service, grade M-6
Chief, Branch, grade M-7
Chief, Staff, Planning and Communication Staff, grade M-7
Assistant to Chief, Branch, grade M-6
Supervisor, Section, grade M-6 (All)
Economist, grade M-5
Project Manager, grade M-5 (All)
Research Analyst, grade M-5
Staff Rate Assistant, grade M-5
Supervisor, Section, grade M-5 (All)
Supervisor, Services, Energy Conservation and Solar Training Section,
grade M-5
Supervisor, Unit grade M-5 (All)
Chief, Branch, grade M-7
Chief, Staff, Planning and Budget Staff, grade M-7
Program Manager, grade M-6 (All)
Project Manager, AFBC Demonstration Plant Section, grade M-6
Project Manager, Systems Improvement, grade M-6
Supervisor, Section grade M-6 (All)
Coordinator, Project Management and Project Engineering, grade M-5
Mechanical Engineer, grade M-5
Personnel Officer, grade M-5
Project Coordinator, Advanced Systems, grade M-5
Project Manager, grade M-5 (All)
Research Analyst, grade M-5
Research Chemist, grade M-5
Supervisor, Section, grade M-5 (All)
Supervisor, Services, grade M-5 (All)
Assistant to the Director, grade M-7
Chief, Branch, grade M-7
Chief, Staff, Analysis Staff, grade M-7
District Manager, grade M-7
Senior District Advisor, grade M-7
Assistant Chief, Branch, grade M-6
Assistant District Manager, grade M-6
Assistant Chief, Branch, grade M-7
Chief, Branch, grade M-7
Power Plant Superintendent, Watts Bar Steam Plant, grade M-7
Superintendent, Hydro Operations, grade M-7
Assistant Chief, Branch, Plant Improvement Branch, grade M-6
Chemical Engineer, grade M-6
Environmental Engineer, grade M-6
Mechanical Engineer, grade M-6
Power Plant Superintendent, Wilson, grade M-6
Project Coordinator, Plant Equipment Branch, grade M-6
Supervisor, Industrial Safety and Fire Protection Engineering, grade
M-6
Supervisor, Services, grade M-6 (All)
Power Plant Superintendent, grade M-5 (All)
Supervisor, Section, grade M-5 (All)
Chief, Branch, grade M-7
Chief, Staff, Special Projects Staff, grade M-7
Assistant Chief, Branch, grade M-6
Head, Group, grade M-6
Nuclear Engineer, grade M-6
Project Engineer, grade M-6
Fuels Engineer, grade M-5
Nuclear Engineer, grade M-5
Project Manager, grade M-5 (All)
Supervisor, Section, grade M-5 (All)
Supervisor, Staff, grade M-5 (All)
Supervisor, Administrative Services, grade M-5
Chief, Branch, grade M-7
Assistant Chief, Branch, Field Services Branch, grade M-6
Chemical Engineer, grade M-6
Chief, Staff, Quality Assurance and Compliance Branch, grade M-6
Head, Group, grade M-6
Mechanical Engineer, grade M-6
Metallurgy Engineer, grade M-6
Nuclear Engineer, grade M-6
Personnel Officer, grade M-6
Supervisor, Staff, grade M-6 (All)
Assistant Chief, Power Projects Staff, grade M-7
Assistant to the General Manager, grade M-7
Chief, Branch, grade M-7
Program Manager, grade M-7
Superintendent, Power Service Shops, grade M-7
Assistant Quality Assurance Manager, grade M-6
Assistant Superintendent, Service Shops, grade M-6
Chief, Branch, grade M-6
Chief, Services, Central Laboratories, grade M-6
Environmental Engineer, grade M-6
Head, Group, grade M-6
Manager, QI, Project Management Corporation, grade M-6
Nuclear Engineer, grade M-6
Staff Engineer, grade M-6
Supervisor, Section, grade M-6
Assistant to the Chief, Branch, grade M-5
Assistant Supervisor, Section, grade M-5
Environmental Engineer, grade M-5
Power Supply Engineer, grade M-5
Project Manager, grade M-5
Staff Engineer, grade M-5
Supervisor, Group, grade M-5
Supervisor, Measurement Laboratory, grade M-5
Supervisor, Section, grade M-5
Chief, Branch, grade M-7
Supervisor, Section, grade M-5
Area Construction Manager, grade M-7
Chief, Branch, grade M-7
Chief, Project Services, grade M-7
Assistant Chief, Branch, grade M-6
Civil Engineer, grade M-6
Electrical Engineer, grade M-6
General Construction Superintendent, grade M-5
Supervisor, Section Civil Engineering and Design Branch, grade M-5
Supervisor, Section Electrical Engineering and Design Branch, grade
M-5
Supervisor, Section, Technical Services, grade M-5
(48 FR 54001, Nov. 30, 1983)
18 CFR 1300.735-41a Employee's complaint on filing requirement.
An employee who believes that his position has been improperly
included under the regulations in this subpart as one requiring the
submission of a statement of employment and financial interests may make
a complaint to that official who has been designated under 1300.735-4
to review the employee's statement. If the employee is not satisfied
with the decision by the reviewing officer on his complaint, he may
complain to the reviewing officer for the next higher organizational
level within TVA whose decision will be final.
18 CFR 1300.735-41b Interests not required to be reported.
An employee is not required to report financial interests which are
excluded from the disclosure requirements under 1300.735-14(c) of this
chapter which were established pursuant to section 208 of Title 18,
United States Code.
(33 FR 224, Jan. 6, 1968. Redesignated at 44 FR 30682, May 29, 1979,
and amended at 53 FR 40218, Oct. 14, 1988)
18 CFR 1300.735-42 Time and place for submission of employees'
statements.
(a) An employee required to submit a statement of employment and
financial interests under the regulations in this part shall submit it
not later than 30 days after his entrance on duty.
(b) Statements of employment and financial interests shall be
submitted as follows:
(1) A statement submitted by the General Manager shall be submitted
to the Board; and
(2) Statements submitted by other employees shall be submitted to the
General Manager or officials he designates.
18 CFR 1300.735-43 Supplementary statements.
Changes in, or additions to, the information contained in an
employee's statement of employment and financial interests shall be
reported in a supplementary statement as of June 30 each year. If no
changes or additions occur, a negative report is required.
Notwithstanding the filing of the annual report required by this
section, each employee shall at all times avoid acquiring a financial
interest that could result, or taking an action that would result, in a
violation of the conflicts-of-interest provisions of section 208 of
Title 18, United States Code, the regulations under 1300.735-14(c) of
this chapter, or Subpart B of this part.
(33 FR 224, Jan. 6, 1968. Redesignated at 44 FR 30682, May 29, 1979,
and amended at 53 FR 40218, Oct. 14, 1988)
18 CFR 1300.735-44 Interests of employees' relatives.
The interest of a spouse, minor child, or other member of an
employee's immediate household is considered to be an interest of the
employee. For the purpose of this section, ''member of an employee's
immediate household'' means those blood relations who are residents of
the employee's household.
18 CFR 1300.735-45 Information not known by employees.
If any information required to be included on a statement of
employment and financial interests or supplementary statement, including
holdings placed in trust, is not known to the employee but is known to
another person, the employee shall request that other person to submit
information in his behalf.
18 CFR 1300.735-46 Information prohibited.
The regulations in this part do not require an employee to submit on
a statement of employment and financial interests or supplementary
statement any information relating to the employee's connection with, or
interest in, a professional society or a charitable, religious, social,
fraternal, recreational, public service, civic, or political
organization or a similar organization not conducted as a business
enterprise. For the purpose of this section, educational and other
institutions doing research and development or related work involving
grants of money from or contracts with the Government are deemed
''business enterprises'' and are required to be included in an
employee's statement of employment and financial interests.
18 CFR 1300.735-47 Confidentiality of employees' statements.
Each statement of employment and financial interests and each
supplementary statement shall be held in confidence. To insure this
confidentiality each official designated under 1300.735-4 to review
statements assures that the statements are maintained in confidence and
that there shall not be access to, or information disclosed from, a
statement except to carry out the purpose of this part. Information
from a statement will not be disclosed, except as the U.S. Civil Service
Commission or the General Manager may determine for good cause shown.
18 CFR 1300.735-48 Effect of employees' statements on other
requirements.
The statements of employment and financial interests and
supplementary statements required of employees are in addition to, and
not in substitution for, or in derogation of, any similar requirement
imposed by law, order, or regulation. The submission of a statement or
supplementary statement by an employee does not permit him or any other
person to participate in a matter in which his or the other person's
participation is prohibited by law, order, or regulation.
18 CFR 1300.735-49 TVA regulations for special Government employees.
(a) Except as provided in paragraph (b) of this section, each special
Government employee is required to submit a statement of employment and
financial interests on a TVA form entitled, ''Confidential Statement of
Employment and Financial Interest (For Use by Special Government
Employees),'' which reports:
(1) All other employment; and
(2) The financial interests of the special Government employee which
relate either directly or indirectly to the duties and responsibilities
of the special Government employee except such financial interests which
are excluded from the disclosure requirements under 1300.735-14(c) of
this chapter which were established pursuant to section 208 of Title 18,
United States Code.
(b) TVA may waive the requirement in paragraph (a) of this section
for the submission of a statement of employment and financial interests
in the case of a special Government employee who is not a consultant or
expert when TVA finds that the duties of the position held by that
special Government employee are of a nature and at such a level of
responsibility that the submission of the statement by the incumbent is
not necessary to protect the integrity of the Government. For the
purpose of this paragraph, the terms ''consultant'' and ''expert'' have
the following meanings:
(1) ''Consultant'' means an individual who serves as an adviser to
TVA as distinguished from an employee who carries out TVA's duties and
responsibilities. He gives his views or opinions on problems or
questions presented him by TVA, but he neither performs nor supervises
performance of operating functions. Ordinarily, he is expert in the
field in which he advises, but he need not be a specialist. His
expertness may lie in his possession of a high order of broad
administrative, professional, or technical experience indicating that
his ability and knowledge make his advice distinctively valuable to TVA.
(2) ''Expert'' means a person with excellent qualifications and a
high degree of attainment in a professional, scientific, technical, or
other field. His knowledge and mastery of the principles, practices,
problems, methods, and techniques of his field of activity, or of a
specialized area in the field, are clearly superior to those usually
possessed by ordinarily competent individuals in that activity. His
attainment is such that he usually is regarded as an authority or as a
practitioner of unusual competence and skill by other individuals in the
profession, occupation, or activity.
The terms ''consultant'' and ''expert'' do not include a physician,
dentist, or allied medical specialist whose services are procured to
provide care and service to patients or a veterinarian whose services
are procured to provide care and service to animals.
(c) A statement of employment and financial interests required to be
submitted under this section shall be submitted not later than the time
of employment of the special Government employee. Each special
Government employee shall keep his statement current throughout his
employment by the submission of supplementary statements.
The statements of employment and financial interests and
supplementary statements required of special Government employees are in
addition to, and not in substitution for, or in derogation of, any
similar requirement imposed by law, order, or regulation. The
submission of a statement or supplementary statement by an employee does
not permit him or any other person to participate in a matter in which
his or the other person's participation is prohibited by law, order, or
regulation.
(33 FR 224, Jan. 6, 1968. Redesignated at 44 FR 30682, May 29, 1979,
and amended at 53 FR 40218, Oct. 14, 1988)
18 CFR 1300.735-49 PART 1301 -- PROCEDURES
18 CFR 1300.735-49 Subpart A
Sec.
1301.1 Records.
1301.2 Schedule of fees.
1301.3 Waiver or reduction of fees.
18 CFR 1300.735-49 Subpart B -- Privacy Act
1301.11 Purpose and scope.
1301.12 Definitions.
1301.13 Procedures for requests pertaining to individual records in a
record system.
1301.14 Times, places, and requirements for identification of
individuals making requests.
1301.15 Disclosure of requested information to individuals.
1301.16 Special procedures -- medical records.
1301.17 Requests for correction or amendment of record.
1301.18 TVA review of request for correction or amendment of record.
1301.19 Appeals on initial adverse agency determination on correction
or amendment.
1301.20 Disclosure of record to persons other than individual to whom
it pertains.
1301.21 Fees.
1301.22 Penalties.
1301.23 General exemptions.
1301.24 Special exemptions.
18 CFR 1300.735-49 Subpart C -- Government in the Sunshine Act
1301.41 Purpose and scope.
1301.42 Definitions.
1301.43 Open meetings.
1301.44 Notice of meetings.
1301.45 Procedure for closing meetings.
1301.46 Criteria for closing meetings.
1301.47 Transcripts of closed meetings.
1301.48 Public availability of transcripts and other documents.
18 CFR 1300.735-49 Subpart A
Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552.
18 CFR 1301.1 Records.
(a) Records available. TVA's records will be made available for
inspection and copying upon request as provided in this section, except
that records are exempt and are not made available if they are:
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and
(ii) Are in fact properly classified pursuant to such Executive
order;
(2) Related solely to the internal personnel rules and practices of
TVA;
(3) Specifically exempted from disclosure by statute;
(4) Trade secrets and commercial or financial information obtained
from any person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a private party in litigation with TVA,
including without limitation records relating to control and accounting
for special nuclear material and to the physical security plans for the
protection of TVA's nuclear facilities;
(6) Personnel and medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records
or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source,
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operation, or condition
reports prepared by, on behalf of, or for the use of any agency
responsible for the regulation or supervision of financial institution;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
The availability of certain classes of nonexempt records is deferred
for such time as TVA may determine is reasonably necessary to avoid
interference with the accomplishment of its statutory responsibilities.
Such records include bids and information concerning the identity and
number of bids received prior to bid opening; all nonexempt records
relating to bids between the time of bid opening and award; and all
nonexempt records relating to negotiations in progress involving
contracts or agreements for the acquisition or disposal of real or
personal property by TVA prior to the conclusion of such negotiations.
Any reasonably segregable portion of an available record shall be
provided to any person requesting such record after deletion of the
portions which are exempt under this paragraph.
(b) Requests. Requests to inspect and copy TVA records shall be
directed to the TVA FOIA Officer, TVA Records and Information
Management, Information Support Services, Tennessee Valley Authority,
400 Summit Hill Drive, Knoxville, TN 37902-1499. A request shall:
(1) Be in writing;
(2) State in the text that it is a request for records pursuant to
the Freedom of Information Act or the regulations in this section;
(3) Reasonably describe the records requested with sufficient
specificity to permit their location and identification; and
(4) Include a statement (if such is the case) that the person making
the request will pay all applicable fees under 1301.2, or a statement
of the amount of the maximum applicable fee that such person is willing
to pay without further notification from TVA. Requests may be made
personally or by mail, but to permit expeditious processing, a mailed
request should be identified on the envelope as a Freedom of Information
Act request.
(c) Processing of requests -- (1) Initial determination. (i) Within
10 days (excluding Saturdays, Sundays, and legal public holidays) after
a request is received by TVA, and subject to paragraph (c)(3) of this
section, TVA shall make an initial determination as to whether to comply
with the request, and shall immediately give written notice of the
determination to the person making the request. Initial determinations
shall be made by the TVA FOIA Officer or the TVA FOIA Officer's
designee. If the initial determination is not to comply with the
request, the notice to the person making the request shall include a
statement of the reasons for the denial of the request; a notice of the
right of the person making the request to appeal the denial to the Vice
President, Facilities Services, and the time limits therefor; and the
name and job title of the person responsible for the initial
determination.
(ii) For the purposes of this paragraph, a request is deemed to be
received by TVA only when it is physically delivered to the TVA FOIA
Officer and meets all the requirements of paragraph (b) of this section.
If the request does not contain a sufficient description of the record
as required by paragraph (b)(3) of this section, TVA will promptly
notify the person making the request of the need for clarification, and
the request will not be deemed received until clarification is obtained.
If the request does not contain a statement as required by paragraph
(b)(4) of this section, or if the amount of anticipated search fees
exceeds the higher of the amount stated of $25, TVA will promptly notify
the person making the request of the amount of the anticipated fee.
Such notice shall include an offer to confer in order to determine if
the request can be reformulated so as to meet the person's needs at
lower cost, and the request will not be deemed received until agreement
is reached concerning fees.
(2) Appeal. (i) If the initial determination is to deny the request,
the person making the request may appeal such action to the Vice
President, Facilities Services. Such an appeal must be taken within 30
days after the person's receipt of the initial determination and is
taken by delivering a written notice of appeal to the Vice President,
Facilities Services, TVA, 400 Summit Hill Drive, Knoxville, TN
37902-1499. Such notice shall include a statement that it is an appeal
from a denial of a request under the Freedom of Information Act and
shall indicate (A) the date on which the denial was issued, and (B) the
date on which the denial was received by the person making the request.
(ii) Within 20 days (excluding Saturdays, Sundays, and legal public
holidays) after an appeal is received, and subject to paragraph (c)(3)
of this section, TVA shall make a final determination on the appeal. In
making such a determination, TVA will consider whether or not to waive
the provisions of any exemption contained in paragraph (a) of this
section, except that without the written permission of the person
involved, TVA will not waive the exemptions contained in paragraphs (a)
(4), (6) and (7) of this section. Determinations of appeals under this
section shall be made by the Vice President, Facilities Services, or the
Vice President, Facilities Services' designee. If the determination on
the appeal is to deny the request for records, TVA shall notify the
person making the request of such determination, including the reason
for the denial; a notice of the person's right to judicial review of
the denial; and the name and job title of the TVA official responsible
for the determination of the appeal.
(3) Extensions of time. (i) The 10-day time limit provided in
paragraph (c)(1) of this section may be extended by TVA for unusual
circumstances as set forth in this paragraph upon written notice to the
person making the request specifying the reason for such extension and
the date on which an initial determination is expected to be dispatched
to such person. Such extension may not exceed 10 working days, and a
decision to make such extension shall be made by the TVA FOIA Officer,
or the TVA FOIA Officer's designee.
(ii) The 20-day time limit provided in paragraph (c)(2) of this
section may be extended by TVA for unusual circumstances as set forth in
this paragraph upon written notice to the person appealing a denial of a
request for records. The notice shall specify the reasons for the
extension and the date on which a determination of the appeal is
expected to be dispatched. The aggregate length of an extension under
this paragraph when combined with any extension provided under paragraph
(c)(3)(i) of this section shall not exceed 10 working days. A decision
to make an extension under this paragraph shall be made by the Vice
President, Facilities Services, or the Vice President, Facilities
Services' designee.
(iii) For the purposes of this paragraph, unusual circumstances
means, to the extent reasonably necessary to the proper processing of
the particular request or appeal:
(A) Time necessary to search and collect requested records from
segments of the agency separate from the office processing the request;
(B) Time necessary to search for, collect, and appropriately examine
the voluminous number of records demanded in a single request; or
(C) Time necessary for consultation with another agency having a
substantial interest in the determination of the request, or among two
or more components of the agency which have an interest in the subject
matter of the request.
(d) Manner of making records available. When TVA determines to
comply with a request for records, the records are made available
promptly for inspection and copying at the place it considers most
feasible. TVA will notify the person requesting the records of the
place at which the records will be made available and the amount of the
applicable fee pursuant to 1301.2, and will request the person to set
up a mutually convenient time for inspection. Applicable fees are
payable prior to actual inspection of the records or prior to receipt of
requested copies after inspection, respectively. If TVA deems it more
convenient to do so, it may furnish copies of available requested
records in lieu of permitting physical inspection thereof. In such case
payment of applicable fees is due within 30 days after receipt of the
copies.
(e) Publications. TVA publishes and sells to the public at nominal
cost various materials concerning its activities and other matters
within its statutory responsibilities, and also provides for the sale of
other materials, such as maps prepared by other agencies, at prices
prescribed by such agencies. Such services are not performed under the
Freedom of Information Act, and requests for the purchase of such
materials are not covered by the provision of paragraphs (a) through (d)
of this section. A pricelist and order form for some of the most
frequently asked for TVA publications and reports are contained in form
TVA 3077, which may be obtained by writing the Manager, Public Affairs,
Governmental and Public Affairs, Tennessee Valley Authority, Knoxville,
Tennessee 37902-1499. Information about other informational material
available for sale or distribution by TVA may be obtained at the same
address.
(40 FR 7326, Feb. 19, 1975; 40 FR 10668, Mar. 7, 1975. Redesignated
at 44 FR 30682, May 29, 1979, and amended at 53 FR 405, Jan. 7, 1988;
53 FR 31316, Aug. 18, 1988; 57 FR 59908, Dec. 17, 1992)
18 CFR 1301.2 Schedule of fees.
(a) Basis. Except as otherwise provided in paragraph (d) of this
section, TVA records available for public inspection under 1301.1 are
made available upon payment of uniform fees which will approximately
cover the direct costs to TVA of searching for, duplicating, and in the
case of commercial requesters, reviewing the records.
(b) Definitions -- (1) Search. The term ''search'' includes all time
spent looking for material that is responsive to a request, including
page-by-page and/or line-by-line identification of material within
records, and computer searches using existing programming.
(2) Duplication. The term ''duplication'' refers to the process of
making a copy of a record necessary to respond to a request. Such
copies can take the form of paper copy, microform, audiovisual
materials, or machine-readable documentation (e.g., magnetic tape or
disk), among others.
(3) Review. The term ''review'' refers to the initial process of
examining records located in response to a commercial use request to
determine whether any portion of any record located is permitted to be
withheld. It also includes processing any records for disclosure, e.g.,
doing all that is necessary to excise them and otherwise prepare them
for release.
(4) Commercial use request. The term ''commercial use request''
refers to a request from or on behalf of one who seeks information for a
use or purpose that furthers the commercial, trade, or profit interests
of the requester or the person on whose behalf the request is made. In
determining whether the requester properly belongs in this category, TVA
will determine the use to which the requester will put the records
sought. Where TVA has reasonable cause to doubt the use to which the
requester will put the records sought, or where the use is not clear
from the request itself, TVA may seek additional clarification.
(5) Educational institution. The term ''educational institution''
refers to a preschool, a public or private elementary or secondary
school, an institution of undergraduate higher education, an institution
of graduate higher education, an institution of professional education,
and an institution of vocational education, which operates a program or
programs of scholarly research.
(6) Noncommercial scientific institution. The term ''noncommercial
scientific institution'' refers to an institution that is not operated
on a commercial basis and which is operated solely for the purpose of
conducting scientific research, the results of which are not intended to
promote any particular product or industry.
(7) Representative of the news media. The term ''representative of
the news media'' refers to any person actively gathering news for an
entity that is organized and operated to publish or broadcast news to
the public. News is any information that is about current events or
that would be of current interest to the public. Examples of news media
entities include television or radio stations broadcasting to the
public, and publishers of periodicals who make their products available
for purchase or subscription by the public. A free-lance journalist may
be regarded as working for a news entity if that journalist can
demonstrate a solid basis for expecting publication through that entity,
even though not actually employed by it.
(c) Fees. The following fees are applicable:
(1) Search time charges for other than computer searches. For time
spent by clerical employees in searching files, the charge is $8.35 per
hour. For time spent by supervisory and professional employees, the
charge is $19.75 per hour.
(2) Duplication charges. For photostatic reproduction of requested
material which consists of sheets no larger than 8 1/2 by 14 inches, the
charge is 10 cents per page. For reproduction of other materials, the
charge is the direct cost of photostat or other means necessarily used
for duplication.
(3) Review charges. For initial review of documents in response to a
commercial use request, the time spent reviewing them to determine
whether they are exempt from mandatory disclosure is charged at the same
rates as search time.
(4) Charges for computer searches. For computer searches, the charge
is the direct cost of providing the service, including the cost of
operating the central processing unit for that portion of operating time
that is directly attributable to searching for responsive records, and
operator/programmer salary apportionable to the search.
(5) Other charges. Where a response to a request requires services
(including personnel) or materials other than the ones described in
paragraphs (c)(1), (2), (3), and (4) of this section, the charge is the
full cost of any such services and materials which TVA agrees to
provide, but only if the requester has been notified of such cost before
it is incurred, or if the request contains a statement accepting
responsibility for the cost to be incurred. Such services or materials
(provided at TVA's discretion) include:
(i) Certifying that records are true copies;
(ii) Sending records by special methods such as express mail, etc.
(d) Waiver of fees and services provided without charge. (1) TVA
waives or reduces fees otherwise chargeable under this section if TVA
determines that disclosure of the information is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the Government and is not primarily
in the commercial interest of the requester.
(2) Except for documents provided in response to a commercial use
request, the first 100 pages of duplication and the first 4 hours of
search time will be provided without charge. Educational and
noncommercial scientific institution requesters who seek records for
scholarly or scientific research and representatives of the news media
are not charged search time.
(3) No fee is charged to any requester if the cost of collecting the
fee would be equal to or greater than the fee itself.
(e) Assessment and collection of fees. (1) Interest may be charged
to those requesters who fail to pay fees charged. Interest may begin to
be assessed on the amount billed on the 31st day following the day on
which the billing was sent but any interest assessed will accrue from
the date of the billing. Interest will be at the rate prescribed in 31
U.S.C. 3717.
(2) If TVA reasonably believes that a requester or group of
requesters is attempting to break a request down into a series of
requests for the purpose of evading the assessment of fees, TVA may
aggregate any such requests and charge accordingly.
(3) If TVA determines that the allowable charges a requester may be
required to pay are likely to exceed $250, TVA may require a requester
to make an advance payment of an amount up to the full estimated charges
if the requester has no history of prompt payment. If the requester has
such a history, TVA may notify the requester of the estimated charges
and if a satisfactory assurance of full payment is obtained, will not
require an advance payment under this provision. The administrative
time limits prescribed in 1301.1(c) of this part will begin to run only
after TVA has received any payment required to be made in advance under
this provision.
(4) Where a requester has previously failed to pay a fee charged in a
timely manner (within 30 days of the date of billing), TVA may require
the requester to pay the full amount owed plus any applicable interest
as provided in paragraph (e)(1) of this section and to make an advance
payment of the full estimated charges before the agency begins to
process a new request or a pending request from that requester. The
administrative time limits prescribed in 1301.1(c) of this part will
begin to run only after TVA has received any payment required to be made
in advance under this provision.
(5) TVA may assess charges for time spent searching, even if TVA
fails to locate the records or if records located are determined to be
exempt from disclosure.
(52 FR 17939, May 13, 1987)
18 CFR 1301.3 Waiver or reduction of fees.
(a) Records responsive to a request under 5 U.S.C. 552 shall be
furnished without charge or at a charge reduced below that established
under 1301.2 where TVA determines, based upon information provided by a
requester in support of a fee waiver request or otherwise made known to
TVA, that disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester. Requests for
a waiver or reduction of fees, which shall be made at the same time as
the requests for records, shall be considered on a case-by-case basis.
(b) In order to determine whether the first fee waiver requirement is
met -- i.e., that disclosure of the requested information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
-- TVA shall consider the following four factors in sequence:
(1) The subject of the request: Whether the subject of the requested
records concerns ''the operations or activities of the government.'' The
subject matter of the requested records, in the context of the request,
must specifically concern identifiable operations or activities of the
federal government -- with a connection that is direct and clear, not
remote or attenuated. Furthermore, the records must be sought for their
informative value with respect to those government operations or
activities; a request for access to records for their intrinsic
informational content alone will not satisfy this threshold
consideration.
(2) The informational value of the information to be disclosed:
Whether the disclosure is ''likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative on specific
government operations or activities in order to hold potential for
contributing to increased public understanding of those operations and
activities. The disclosure of information that already is in the public
domain, in either a duplicative or a substantially identical form, would
not be likely to contribute to such understanding, as nothing new would
be added to the public record.
(3) The contribution to an understanding of the subject by the public
likely to result from disclosure: Whether disclosure of the requested
information will contribute to ''public understanding.'' The disclosure
must contribute to the understanding of the public at large, as opposed
to the individual understanding of the requester or a narrow segment of
interested persons. A requester's identity and qualification -- e.g.,
expertise in the subject area and ability and intention to effectively
convey information to the general public -- should be considered. It
reasonably may be presumed that a representative of the news media (as
defined in paragraph 1301.2(b)(7)) who has access to the means of public
dissemination readily will be able to satisfy this consideration.
Requests from libraries or other record repositories (or requesters who
intend merely to disseminate information to such institutions) shall be
analyzed, like those of other requesters, to identify a particular
person who represents that he actually will use the requested
information in scholarly or other analytic work and then disseminate it
to the general public.
(4) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ''significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject matter in question, as compared to
the level of public understanding existing prior to the disclosure, must
be likely to be enhanced by the disclosure to a significant extent. TVA
shall not make separate value judgments as to whether information, even
though it in fact would contribute significantly to public understanding
of the operations or activities of the government, is ''important''
enough to be made public.
(c) In order to determine whether the second fee waiver requirement
is met -- i.e., that disclosure of the requested information is not
primarily in the commercial interest of the requester -- TVA shall
consider the following two factors in sequence:
(1) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. TVA shall consider all commercial interests of
the requester (with reference to the definition of ''commercial use'' in
paragraph 1301.2(b)(4)), or any person on whose behalf the requester may
be acting, but shall consider only those interests which would be
furthered by the requested disclosure. In assessing the magnitude of
identified commercial interests, consideration shall be given to the
role that such FOIA-disclosed information plays with respect to those
commercial interests, as well as to the extent to which FOIA disclosures
serve those interests overall. Requesters shall be given a reasonable
opportunity in the administrative process to provide information bearing
upon this consideration.
(2) The primary interest in disclosure: Whether the magnitude of the
identified commercial interest of the requester is sufficiently large,
in comparison with the public interest in disclosure, that disclosure is
''primarily in the commercial interest of the requester.'' A fee waiver
or reduction is warranted only where, once the ''public interest''
standard set out in paragraph (b) of this section is satisfied, that
public interest can fairly be regarded as greater in magnitude than that
of the requester's commercial interest in disclosure. TVA shall
ordinarily presume that, where a news media requester has satisfied the
''public interest'' standard, that will be the interest primarily served
by disclosure to that requester. Disclosure to data brokers or others
who compile and market government information for direct economic return
shall not be presumed to primarily serve the ''public interest.''
(d) Where only a portion of the requested records satisfies both of
the requirements for a waiver or reduction of fees under this paragraph,
a waiver or reduction shall be granted only as to that portion.
(e) Requests for the waiver or reduction of fees shall address each
of the factors listed in paragraphs (b) and (c) of this section, as they
apply to each record request.
(f) A denial of a request for reduced fees or of a request for waiver
of fees, in whole or in part, will be made in writing, will state the
reasons for the denial, and will notify the requester of the right to
appeal the denial. The appeal process for denial of a fee waiver or
reduction of fees shall be identical to the appeal process for denial of
a requested record and shall be subject to the procedures detailed in
1301.1(c)(2).
(57 FR 23532, June 4, 1992)
18 CFR 1301.3 Subpart B -- Privacy Act
Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552a.
Source: 40 FR 45313, Oct. 1, 1975, unless otherwise noted.
Redesignated at 44 FR 30682, May 29, 1979.
18 CFR 1301.11 Purpose and scope.
(a) The regulations in 1301.11 to 1301.24 implement section 3 of
the Privacy Act of 1974, 5 U.S.C. 552a, with respect to systems of
records maintained by TVA. They provide procedures by which an
individual may exercise the rights granted by the Act to determine
whether a TVA system contains a record pertaining to him; to gain
access to such records; to have a copy made of all or any portion
thereof; and to request administrative correction or amendment of such
records. They prescribe fees to be charged for copying records;
establish identification requirements; list penalties provided by
statute for certain violations of the Act; and establish exemptions
from certain requirements of the Act for certain TVA systems or
components thereof.
(b) Nothing in 1301.11 to 1301.24 entitles an individual to any
access to any information or record compiled in reasonable anticipation
of a civil action or proceeding.
(c) Certain records of which TVA may have physical possession are the
official records of another government agency which exercises dominion
and control over the records, their content, and access thereto. In
such cases, TVA's maintenance of the records is subject to the direction
of the other government agency. Except for a request for a
determination of the existence of the record, when TVA receives requests
related to these records, TVA will immediately refer the request to the
controlling agency for all decisions regarding the request, and will
notify the individual making the request of the referral.
18 CFR 1301.12 Definitions.
For purposes of 1301.11 to 1301.24:
(a) The Act means section 3 of the Privacy Act of 1974, 5 U.S.C.
552a;
(b) The terms individual, maintain, record, system of records,
statistical record, and routine use have the meaning provided for by the
Act;
(c) The term TVA system means a system of records maintained by TVA;
(d) The term TVA system notice means a notice of a TVA system
published in the Federal Register pursuant to the Act. TVA has
published TVA system notices about the following TVA systems:
Apprentice Training Record System -- TVA.
Personnel Files -- TVA.
Upgrade Craft Training Program -- TVA.
Demonstration Farm Records -- TVA.
Discrimination Complaint Files -- TVA.
Employee Accident Information System -- TVA.
Employee Accounts Receivable -- TVA.
Employee Alleged Misconduct Investigatory Files -- TVA.
Medical Record System -- TVA.
Employee Statement of Employment and Financial Interests -- TVA.
Payroll Records -- TVA.
Travel History Records -- TVA.
Employment Applicant Files -- TVA.
Grievance Records -- TVA.
LAND BETWEEN THE LAKES# Hunter Records -- TVA.
LAND BETWEEN THE LAKES# Register of Law Violations -- TVA.
Employee Supplementary Vacancy Announcement Records -- TVA.
Consultant and Personal Service Contractor Records -- TVA.
Nuclear Quality Assurance Personnel Records -- TVA.
Questionnaire -- Farms in Vicinity of Proposed or Licensed Nuclear
Power Plant -- TVA.
Radiation Dosimetry Personnel Monitoring Records -- TVA.
Retirement System Records -- TVA.
Test Demonstration Farm Records -- TVA.
Woodland Resource Analysis Program Input Data -- TVA.
Electricity Use, Rate, and Service Study Records -- TVA.
LAND BETWEEN LAKES# Mailing Lists -- TVA.
OIG Investigative Records -- TVA.
Call Detail Records -- TVA.
Office of Nuclear Power Call Detail Records -- TVA.
Project/Tract Files -- TVA.
Building Access Security Records -- TVA.
Section 26a Permit Applications -- TVA.
(e) The term appellant means an individual who has filed an appeal
pursuant to 1301.19(a) from an initial determination refusing to amend
a record on request of the individual;
(f) The term reviewing official means TVA's Vice President, Employee
Worklife, or another TVA official designated by the Vice President in
writing to decide an appeal pursuant to 1301.19;
(g) The term day, when used in computing a time period, excludes
Saturdays, Sundays, and legal public holidays.
(40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29,
1979, and amended at 53 FR 30252, Aug. 11, 1988; 56 FR 9288, Mar. 6,
1991; 57 FR 33634, July 30, 1992; 57 FR 59803, Dec. 16, 1992)
18 CFR 1301.13 Procedures for requests pertaining to individual records
in a record system.
(a) An individual may, in accordance with this section (1) request a
TVA determination whether a record retrieved by the individual's name or
other personal identifier is maintained in a TVA system, and (2) request
access to such a record. A request for determination may be combined
with a request for access.
(b) Requests under this section shall:
(1) Be in writing and signed by the individual seeking the
determination or access;
(2) Include the individual's mailing address;
(3) Name the TVA system as listed in the TVA system notice;
(4) Include any additional identifying information specified in the
paragraph headed ''Notification procedure'' in the applicable TVA system
notice;
(5) Specify whether the request is for determination only or for both
determination and access; and
(6) Include such proof of identity as may be required by 1301.14 and
the applicable system notice.
Requests may be presented in person or by mail. In-person requests
shall be presented during normal TVA business hours, as set out in
1301.14(g).
(c) Requests for determination only shall be presented to the
official designated in the paragraph headed ''Notification procedure''
in the TVA system notice for the TVA system concerned. Requests for
both determination and access shall be presented to the official
designated in the paragraph headed ''Access procedure'' in the TVA
system notice for the TVA system concerned. Certain TVA system notices
designate officials at field locations of TVA systems. With respect to
such TVA systems, an individual who believes his record is located at
the field location may present a request to the designated official at
the field location. If the record is not available at that field
location, the request will be forwarded to the appropriate TVA office.
(d) If a request is for determination only, the determination will
normally be made within 10 days after receipt of the request. If the
determination cannot be made within 10 days after receipt of a request,
the designated official will acknowledge the request in writing and
state when the determination will be made. Upon making a determination,
the designated official will notify the individual making the request
whether the record exists. The notice will include any additional
information necessary to enable the individual to request access to the
record.
(e) A request which includes a request for access will be
acknowledged within 10 days after receipt. If access can be granted as
requested, the acknowledgment will provide a time and place for
disclosure of the requested record. Disclosure will normally be made
within 30 days of the date of the acknowledgement, but the designated
official may extend the 30-day period for reasons found by him to be
good cause. In case of an extension, TVA will notify the individual, in
writing, that disclosure will be delayed, the reasons for delay, and the
anticipated date on which the individual may expect the record to be
disclosed. TVA will attempt to accommodate reasonable requests for
disclosure at specified times and dates, as set forth in a request for
access, so far as compatible with the conduct of TVA business.
18 CFR 1301.14 Times, places, and requirements for identification of
individuals making requests.
(a) TVA will require proof of identity, in accordance with this
section, before it will disclose a record under 1301.15 of this part to
an individual requesting access to the record, and before it will
disclose the existence of a record to a requester under 1301.13 of this
part, if TVA determines that disclosure of the existence of such record
would constitute an unwarranted invasion of personal privacy.
(b) Identification normally required would be an identification card
such as a valid state driver's license or TVA or other employee
identification card. A comparison of the signature of the requester
with either the signature on the card or a signature in the record may
be used to confirm identity.
(c) Because of the sensitivity of the subject matter in a TVA system,
a TVA system notice may prescribe special identification requirements
for the disclosure of the existence of or access to records in that TVA
system. In such case, the special identification requirements
prescribed in the TVA system notice shall apply in lieu of those
prescribed by paragraph (b) of this section.
(d) If TVA deems it warranted by the nature of identification
presented, the subject matter of the material to be disclosed, or other
reasons found by TVA to be sufficient, TVA may require the individual
requesting access to sign a statement asserting identity and stating
that the individual understands that knowingly or willfully seeking or
obtaining access to records about another person under false pretenses
is punishable by a fine of up to $5,000.
(e) Where TVA is requested to provide access to records by mailing
copies of records to the requester, the request shall contain or be
accompanied by adequate identifying information to make it likely the
requester is the person he purports to be and a notarized statement
asserting identity and stating that the individual understands that
knowingly or willfully seeking or obtaining access to records about
another person under false pretenses is punishable by a fine of up to
$5,000.
(f) Where sensitivity of record information may warrant (i.e.,
unauthorized access could cause harm or embarrassment to the individual)
or disclosure by mail to third persons is requested, TVA may require
in-person confirmation of identity. If in-person confirmation of
identity is required, the individual may arrange with the designated TVA
official to provide such identification at any of these TVA locations
convenient to the individual: Knoxville, Nashville, and Chattanooga,
Tennessee; Muscle Shoals, Alabama; Washington, D.C., or another
location agreed upon by the individual and the designated TVA official.
Upon request the TVA official will provide an address and an appropriate
time for such identification to be presented.
(g) In general, TVA offices located in the eastern time zone are open
8 a.m. to 4:45 p.m., and those in the central time zone 7:30 a.m. to
4:15 p.m. Construction project offices and Land Between The Lakes are
generally open 7 a.m. to 3:30 p.m. Offices are closed on Saturdays,
Sundays, and the following holidays: New Year's Day, Birthday of Martin
Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas
Day.
(40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29,
1979, and amended at 53 FR 30253, Aug. 11, 1988)
18 CFR 1301.15 Disclosure of requested information to individuals.
(a) All disclosure and examination of records shall normally be made
in the presence of a TVA representative. If an individual wishes to be
accompanied by a third person of the individual's choosing when the
record is disclosed, TVA may require the individual to furnish TVA, in
advance of disclosure of the record, a statement signed by the
individual authorizing discussion and disclosure of the record in the
presence of the accompanying person. If desired by the individual, TVA
shall provide copies of any documents reviewed in the record which are
requested at the time of review. Fees shall be charged for such copies
in accordance with the fee schedule in 1301.21, and shall be payable
prior to delivery of the copies to the individual.
(b) Where permitted by 1301.14, copies of an individual's record
will be made available by mail. A charge for copies will be made in
accordance with 1301.21 of this part. All fees due shall be paid prior
to mailing of the materials. However, if TVA is unable to allow
in-person review of the record, the first copy will be made available
without charge.
18 CFR 1301.16 Special procedures -- medical records.
If, in the judgment of TVA, the transmission of medical records,
including psychological records, directly to a requesting individual
could have an adverse effect upon such individual, TVA may refuse to
disclose such information directly to the individual. TVA will,
however, disclose this information to a licensed physician designated by
the individual in writing.
18 CFR 1301.17 Requests for correction or amendment of record.
(a) An individual may request amendment of records pertaining to him
in a TVA system to the extent permitted by the Act in accordance with
this section. A request for amendment shall:
(1) Be in writing and signed by the individual seeking the amendment;
(2) Name the TVA system in which the record is maintained;
(3) Describe the item or items of information to be amended;
(4) Describe the nature of the amendment requested; and
(5) Give the reasons for the requested change.
(b) Requests shall be made to the official designated in the
paragraph headed ''Contesting record procedures'' in the TVA system
notice for the TVA system concerned. Before considering a request, TVA
may require proof of identity of the requester similar to that required
under 1301.14 to gain access to the record.
(c) The individual requesting amendment has the responsibility of
providing TVA with evidence of why his record should be amended, and
must provide adequate evidence to TVA to justify his request.
(d) The provisions of 1301.11 to 1301.24 of this part do not permit
the alteration of evidence presented or to be presented in the course of
judicial or administrative proceedings; neither do they permit
collateral attack on a prior judicial or administrative action, or
provide a collateral remedy for a matter otherwise judicially or
administratively cognizable.
(40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29,
1979, and amended at 53 FR 30253, Aug. 11, 1988)
18 CFR 1301.18 TVA review of request for correction or amendment of
record.
(a) TVA will acknowledge a request for amendment within 10 days of
receipt. The acknowledgement will be in writing, will request any
additional information TVA requires to determine whether to make the
requested correction or amendment, and will indicate the date by which
TVA expects to make its initial determination.
(b) TVA will, except in unusual circumstances, complete its
consideration of requests to amend records within 30 days. If more time
is deemed necessary, TVA will notify the individual of the delay and of
the expected date of completion of the review.
(c) If TVA determines that a record should be corrected or amended,
in whole or in part, in accordance with a request, it will advise the
requesting individual in writing of its determination, and correct or
amend the record accordingly. If an accounting of disclosures has been
made, TVA will, to the extent of the accounting, inform prior recipients
of the record of the fact that the correction was made and the substance
of the correction.
(d) If TVA, after initial consideration of a request, determines that
a record should not be corrected or amended, in whole or in part, in
accordance with a request, it will notify the individual in writing of
its refusal to amend the record and the reasons therefor. The
notification will inform the individual that the refusal may be appealed
administratively and will advise the individual of the procedures for
such appeals.
18 CFR 1301.19 Appeals on initial adverse agency determination on
correction or amendment.
(a) An individual may appeal an initial determination refusing to
amend that individual's record in accordance with this section. An
appeal must be taken within 20 days of receipt of notice of TVA's
initial refusal to amend the record and is taken by delivering a written
notice of appeal to the Vice President, Employee Worklife, Tennessee
Valley Authority, Knoxville, Tennessee 37902. Such notice shall be
signed by the appellant and shall state:
(1) That it is an appeal from a denial of a request to amend the
individual's records under these regulations and under the Privacy Act
of 1974;
(2) The reasons why the appellant believes the denial to have been
erroneous;
(3) The date on which the denial was issued; and
(4) The date on which the denial was received by the appellant.
(b) Appeals shall be determined by a reviewing official. Such
determination may be based on information provided for the initial
determination; any additional information which TVA or the appellant
may desire to provide; and any other material the reviewing official
deems relevant to the determination. The reviewing official, in his
sole discretion, may request TVA or the appellant to provide additional
information deemed relevant to the appeal. The appellant will be given
an opportunity to respond to any information provided by TVA or
independently procured by the reviewing official. If in the sole
discretion of the reviewing official a hearing is deemed necessary for
resolution of the appeal, the reviewing official may conduct a hearing
upon notice to TVA and the appellant, at which both TVA and the
appellant shall be afforded an opportunity to be heard on the appeal.
The rules governing any hearing will be set forth in the notice of
hearing.
(c) The reviewing official shall make final determination on the
appeal within 30 days after it is received unless such period is
extended for good cause. If the reviewing official finds good cause for
an extension, TVA will inform the appellant in writing of the reason for
the delay and of the approximate date on which the reviewing official
expects to complete his determination of the appeal.
(d) If the reviewing official determines that a record should be
amended in whole or in part in accordance with an appellant's request,
TVA will inform the appellant in writing of its determination and
correct or amend the record. If an accounting of disclosures has been
made, TVA will, to the extent of the accounting, inform prior recipients
of the record of the fact that the correction was made and of the
substance of the correction.
(e) If the reviewing official determines not to amend a record, in
whole or in part, in accordance with a request, TVA will advise the
individual:
(1) Of its refusal to amend and the reasons therefor;
(2) Of the appellant's right to file a concise statement of reasons
for disagreement with the refusal as set out in paragraph (f) of this
section;
(3) Of the procedures for filing a statement of disagreement;
(4) That any statement of disagreement will be made available to
anyone to whom the record is subsequently disclosed together with any
statement by TVA summarizing its reasons for refusing to amend the
record;
(5) That prior recipients of the disputed record will be provided a
copy of any statement of dispute to the extent that an accounting of
disclosures was maintained; and
(6) Of his or her right to seek judicial review of the agency's
refusal to amend a record.
(f) If the reviewing official's final determination of an appeal is a
refusal to correct or amend a record, in whole or in part, in accordance
with the request, the appellant may file with TVA a concise statement
setting forth the reasons for his or her disagreement with the refusal
of TVA to amend the records. Such statements normally should not exceed
100 words. A statement of disagreement should be submitted within 30
days of receipt of notice of the reviewing official's decision on the
appeal, and should be sent to system manager. In any disclosure
containing information about which the individual has filed a statement
of disagreement which occurs after the filing of the statement, TVA will
clearly note any portion of the record which is disputed and provide
copies of the statement with the disclosure. Copies of the statement
will also be furnished to persons or other agencies to whom the record
has been disclosed to the extent that an accounting of disclosures was
made. TVA may attach to the statement of disagreement a brief summary
of TVA's reasons for refusing to amend the record. Such summaries will
be disclosed to the individual, but are not subject to amendment.
(40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29,
1979, and amended at 53 FR 30253, Aug. 11, 1988; 57 FR 33634, July 30,
1992)
18 CFR 1301.20 Disclosure of record to persons other than individual to
whom it pertains.
For purposes of 1301.11 to 1301.24, the parent of any minor or the
legal guardian of any individual who has been declared incompetent due
to physical or mental incapacity or age by a court of competent
jurisdiction may act on behalf of the individual. TVA may require proof
of the relationship prior to allowing such action. The parent or legal
guardian may not act where the individual concerned objects to the
action of the parent or legal guardian, unless a court otherwise orders.
18 CFR 1301.21 Fees.
(a) Fees to be charged, if any, to any individual for making copies
of his or her record exclude the cost of any search and review of the
record. The following fees are applicable:
(1) For reproduction of material consisting of sheets no larger than
8 1/2 by 14 inches, ten cents per page; and
(2) For reproduction of other materials, the direct cost of
photostats or other means necessarily used for duplication.
18 CFR 1301.22 Penalties.
Section 552a(i), Title 5, United States Code provides that:
(1) Criminal Penalties. Any officer or employee of an agency, who by
virtue of his employment or official position, has possession of, or
access to, agency records which contain individually identifiable
information the disclosure of which is prohibited by this section or by
rules or regulations established thereunder, and who knowing that
disclosure of the specific material is so prohibited, willfully
discloses the material in any manner to any person or agency not
entitled to receive it, shall be guilty of a misdemeanor and fined not
more than $5,000.
(2) Any officer or employee of any agency who willfully maintains a
system of records without meeting the notice requirements of subsection
(e)(4) of this section shall be guilty of a misdemeanor and fined not
more than $5,000.
(3) Any person who knowingly and willfully requests or obtains any
record concerning an individual from an agency under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000.
18 CFR 1301.23 General exemptions.
(a) Individuals may not have access to records maintained by TVA but
which were provided by another agency which has determined by regulation
that such information is subject to general exemption under 5 U.S.C.
552a(j). If such exempt records are within a request for access, TVA
will advise the individual of their existence and of the name and
address of the source agency. For any further information concerning
the record and the exemption, the individual must contact that source
agency.
(b) The TVA system ''Land Between The Lakes Register of Law
Violations -- TVA'' is exempted from subsections (c)(3), (4); (d);
(e)(1), (2), (3), (4)(G), (4)(H), (4)(I), (5); (f); (g); and (h) of 5
U.S.C. 552a and corresponding sections of these rules pursuant to
section (j)(2) of 5 U.S.C. 552a (section 3 of the Privacy Act).
Application of these provisions of the Privacy Act to the criminal law
enforcement records in this system might interfere with effective law
enforcement at the Land Between The Lakes.
(40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29,
1979, and amended at 53 FR 30253, Aug. 11, 1988)
18 CFR 1301.24 Specific exemptions.
(a) The TVA system ''Employee Alleged Misconduct Investigatory Files
-- TVA'' is exempted from subsections (c)(3); (d); (e)(1), (4)(G),
(4)(H), (4)(I); and (f) of 5 U.S.C. 552a and corresponding sections of
these rules pursuant to section (k)(2) of 5 U.S.C. 552a (section 3 of
the Privacy Act). This TVA system is exempted because applications of
these provisions to this system might impair investigations of employee
misconduct.
(b)(1) The TVA systems ''Apprentice Training Record System-TVA,''
''Consultant and Personal Service Contractor Records-TVA,'' ''Upgrade
Craft Training Program-TVA,'' ''Employment Applicant Files-TVA,''
''Personnel Files-TVA,'' and ''Nuclear Quality Assurance Personnel
Records-TVA'' are exempted from subsections (d); (e)(4)(H); (f)(2),
(3), and (4) of 5 U.S.C. 552a and corresponding sections of these rules
to the extent that disclosure of material would reveal the identity of a
source who furnished information to the Government under an express
promise that the identity of the source would be held in confidence, or
prior to September 27, 1975, under an implied promise that the identity
of the source would be held in confidence. These TVA systems are
exempted pursuant to section (k)(5) of 5 U.S.C. 552a (section 3 of the
Privacy Act).
(2) Each of these TVA systems contain reference letters and
information concerning employees and other individuals who perform
services for TVA. TVA has received this information in the past under
both express and implied promises of confidentiality and consistent with
the Privacy Act these promises will be honored. Pledges of
confidentiality will be necessary in the future to ensure that
unqualified or unsuitable individuals are not selected for TVA
positions. Without the ability to make these promises, a potential
source of information may be unwilling to provide needed information, or
may not be sufficiently frank to be of value in personnel screening.
(c)(1) The TVA systems ''Apprentice Training Record System-TVA,''
''Consultant and Personal Service Contractor Records-TVA,'' ''Upgrade
Craft Training Program-TVA,'' ''Employment Applicant Files-TVA,'' and
''Personnel Files-TVA,'' are exempted from subsections (d); (e)(4)(H);
(f)(2), (3), and (4) of 5 U.S.C. 552a and corresponding sections of
these rules to the extent that disclosure of testing or examination
material used solely to determine individual qualifications for
appointment or promotion in the Federal service would compromise the
objectivity or fairness of the testing or examination process. These
systems are exempted pursuant to section (k)(6) of 5 U.S.C. 552a
(section 3 of the Privacy Act).
(2) This material is exempted because its disclosure would reveal
information about the testing process which would potentially give an
individual an unfair competitive advantage in selection based on test
performance.
(d) The TVA system OIG Investigative Records is exempt from
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I) and (f) of 5
U.S.C. 552a (section 3 of the Privacy Act) and corresponding sections of
these rules pursuant to 5 U.S.C. 552a(k)(2). This system is exempted
because application of these provisions might alert investigation
subjects to the existence or scope of investigations, disclose
investigative techniques or procedures, reduce the cooperativeness of
witnesses, or otherwise impair investigations.
(40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29,
1979, and amended at 52 FR 7408, Mar. 11, 1987; 53 FR 30253, Aug. 11,
1988; 56 FR 9288, Mar. 6, 1991)
18 CFR 1301.24 Subpart C -- Government in the Sunshine Act
Authority: 16 U.S.C. 831-831dd, 5 U.S.C. 552b.
Source: 42 FR 14086, Mar. 15, 1977, unless otherwise noted.
Redesignated at 44 FR 30682, May 29, 1979.
18 CFR 1301.41 Purpose and scope.
(a) The provisions of this subpart are intended to implement the
requirements of section 3(a) of the Government in the Sunshine Act, 5
U.S.C. 552b, consistent with the purposes and provisions of the
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831-831dd.
(b) Nothing in this subpart expands or limits the present rights of
any person under the Freedom of Information Act (5 U.S.C. 552) and the
provisions of Subpart A of this part, except that the exemptions set
forth in 1301.46 shall govern in the case of any request made pursuant
to the Freedom of Information Act and Subpart A to copy or inspect the
transcripts, recordings, or minutes described in 1301.47.
(c) Nothing in this subpart authorizes TVA to withhold from any
individual any record, including transcripts, recordings, or minutes
required by this subpart, which is otherwise accessible to such
individual under the Privacy Act (5 U.S.C. 552a) and the provisions of
Subpart B.
(d) The requirements of Chapter 33 of Title 44 of the United States
Code shall not apply to the transcripts, recordings, and minutes
described in 1301.47.
18 CFR 1301.42 Definitions.
For the purposes of this subpart:
(a) The term Board means the Board of Directors of the Tennessee
Valley Authority;
(b) The term meeting means the deliberations of two or more members
of the TVA Board where such deliberations determine or result in the
joint conduct or disposition of official TVA business, but the term does
not include deliberations required or permitted by 1301.44 or 1301.45;
(c) The term member means an individual who is a member of the TVA
Board; and
(d) The term TVA means the Tennessee Valley Authority.
18 CFR 1301.43 Open meetings.
Members shall not jointly conduct or dispose of TVA business other
than in accordance with this subpart. Except as provided in 1301.46,
every portion of every meeting of the agency shall be open to public
observation, and TVA shall provide suitable facilities therefor, but
participation in the deliberations at such meetings shall be limited to
members and certain TVA personnel. The public may make reasonable use
of electronic or other devices or cameras to record deliberations or
actions at meetings so long as such use is not disruptive of the
meetings.
(42 FR 21470, Apr. 27, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1301.44 Notice of meetings.
(a) TVA shall make a public announcement of the time, place, and
subject matter of each meeting, whether it is to be open or closed to
the public, and the name and telephone number of a TVA official who can
respond to requests for information about the meeting.
(b) Such public announcement shall be made at least one week before
the meeting unless two or more members determine by a recorded vote that
TVA business requires that such meeting be called at an earlier date.
If an earlier date is so established, TVA shall make such public
announcement at the earliest practicable time.
(c) Following a public announcement required by paragraph (a) of this
section, the time or place of the meeting may be changed only if TVA
publicly announces the change at the earliest practicable time. The
subject matter of a meeting or the determination to open or close a
meeting or portion of a meeting to the public may be changed following
the public announcement required by paragraph (a) of this section only
if two or more members determine by a recorded vote that TVA business so
requires and that no earlier announcement of the change was possible and
if TVA publicly announces such change and the vote of each member upon
such change at the earliest, practicable time.
(d) Immediately following each public announcement required by this
section, notice of the time, place, and subject matter of a meeting,
whether the meeting is open or closed, any change in one of the
preceding, and the name and phone number of the TVA official designated
to respond to requests for information about the meeting shall be
submitted for publication in the Federal Register.
18 CFR 1301.45 Procedure for closing meetings.
(a) Action under 1301.46 to close a meeting shall be taken only when
two or more members vote to take such action. A separate vote shall be
taken with respect to each meeting a portion or portions of which are
proposed to be closed to the public pursuant to 1301.46 or with respect
to any information which is proposed to be withheld under 1301.46. A
single vote may be taken with respect to a series of meetings, a portion
or portions of which are proposed to be closed to the public, or with
respect to any information concerning such series of meetings, so long
as each meeting in such series involves the same particular matters and
is scheduled to be held no more than 30 days after the initial meeting
in such series. The vote of each member participating in such vote
shall be recorded and no proxies shall be allowed.
(b) Notwithstanding that the members may have already voted not to
close a meeting, whenever any person whose interests may be directly
affected by a portion of a meeting requests that the agency close such
portion to the public for any of the reasons referred to in paragraphs
(e), (f), or (g) of 1301.46, the Board, upon request of any one of its
members made prior to the commencement of such portion, shall vote by
recorded vote whether to close such portion of the meeting.
(c) Within one day of any vote taken pursuant to this section, TVA
shall make publicly available in accordance with 1301.48 a written copy
of such vote reflecting the vote of each member on the question. If a
portion of a meeting is to be closed to the public, TVA shall, within
one day of the vote taken pursuant to this section, make publicly
available in accordance with 1301.48 a full written explanation of this
action closing the portion together with a list of all persons expected
to attend the meeting and their affiliation.
(d) Prior to every meeting closed pursuant to 1301.46, there shall
be a certification by the General Counsel of TVA stating whether, in his
or her opinion, the meeting may be closed to the public and each
relevant exemptive provision. A copy of such certification shall be
retained by TVA and shall be made publicly available in accordance with
1301.48.
18 CFR 1301.46 Criteria for closing meetings.
Except in a case where the Board finds that the public interest
requires otherwise, the second sentence of 1301.43 shall not apply to
any portion of a meeting and such portion may be closed to the public,
and the requirements of 1301.44 and 1301.45(a), (b), and (c) shall not
apply to any information pertaining to such meeting otherwise required
by this subpart to be disclosed to the public, where the Board properly
determines that such portion or portions of its meeting or the
disclosure of such information is likely to:
(a) Disclose matters that are (1) specifically authorized under
criteria established by an Executive order to be kept secret in the
interests of national defense or foreign policy and (2) in fact properly
classified pursuant to such Executive order;
(b) Relate solely to the internal personnel rules and practices of an
agency;
(c) Disclose matters specifically exempted from disclosure by statute
(other than 5 U.S.C. 552), provided that such statute (1) requires that
the matters be withheld from the public in such a manner as to leave no
discretion on the issue, or (2) establishes particular criteria for
withholding or refers to particular types of matters to be withheld;
(d) Disclose trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
(e) Involve accusing any person of a crime, or formally censuring any
person;
(f) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
(g) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would (1) interfere with enforcement proceedings, (2)
deprive a person of a right to a fair trial or an impartial
adjudication, (3) constitute an unwarranted invasion of personal
privacy, (4) disclose the identity of a confidential source and, in the
case of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source, (5) disclose investigative
techniques and procedures, or (6) endanger the life or physical safety
of law enforcement personnel;
(h) Disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of any agency responsible for the regulation or supervision of
financial institutions;
(i) Disclose information the premature disclosure of which would:
(1) In the case of any agency which regulates currencies, securities,
commodities, or financial institutions, be likely to (i) lead to
significant financial speculation in currencies, securities, or
commodities, or (ii) significantly endanger the stability of any
financial institution; or
(2) In the case of any agency, be likely to significantly frustrate
implementation of a proposed agency action, except that this provision
shall not apply in any instance where the agency has already disclosed
to the public the content or nature of its proposed action, or where the
agency is required by law to make such disclosure on its own initiative
prior to taking final action on such proposal; or
(j) Specifically concern an agency's issuance of a subpena, or its
participation in a civil action or proceeding, an action in a foreign
court or international tribunal, or an arbitration, or the initiation,
conduct, or disposition by an agency of a particular case of formal
agency adjudication pursuant to the procedures in 5 U.S.C. 554 or
otherwise involving a determination on the record after opportunity for
a hearing.
18 CFR 1301.47 Transcripts of closed meetings.
(a) For every meeting closed pursuant to 1301.46, the presiding
officer of the meeting shall prepare a statement setting forth the time
and place of the meeting, and the persons present, and such statement
shall be retained by TVA.
(b) TVA shall maintain a complete transcript or electronic recording
adequate to record fully the proceedings of each meeting, or portion of
a meeting, closed to the public, except that in the case of a meeting,
or portion of a meeting, closed to the public pursuant to paragraph (h),
(i)(1), or (j) of 1301.46, TVA shall maintain either such a transcript
or recording, or a set of minutes. Such minutes shall fully and clearly
describe all matters discussed and shall provide a full and accurate
summary of any actions taken, and the reasons therefor, including a
description of each of the views expressed on any item and the record of
any rollcall vote (reflecting the vote of each member on the question).
All documents considered in connection with any action shall be
identified in such minutes.
(c) TVA shall maintain a complete verbatim copy of the transcript, a
complete copy of the minutes, or a complete electronic recording of each
meeting, or portion of a meeting, closed to the public, for a period of
at least two years after such meeting, or until one year after the
conclusion of any TVA proceeding with respect to which the meeting or
portion was held, whichever occurs later.
18 CFR 1301.48 Public availability of transcripts and other documents.
(a) Public announcements of meetings pursuant to 1301.44, written
copies of votes to change the subject matter of meetings made pursuant
to 1301.44(c), written copies of votes to close meetings and
explanations of such closings made pursuant to 1301.45(c) and
certifications of the General Counsel made pursuant to 1301.45(d) shall
be available for public inspection during regular business hours in the
TVA Corporate Library, room WT 2F, 400 West Summit Hill Drive,
Knoxville, Tennessee 37902-1499.
(b) TVA shall make promptly available to the public at the location
described in paragraph (a) of this section the transcript, electronic
recording, or minutes (as required by 1301.47(b)) of the discussion of
any item on the agenda, or of any item of the testimony of any witness
received at the meeting, except for such item or items of such
discussion or testimony as TVA determines to contain information which
may be withheld under 1301.46. Each request for such material shall be
made to the Manager, Media Relations, Tennessee Valley Authority,
Knoxville, Tennessee 37902-1499; state that it is a request for records
pursuant to the Government in the Sunshine Act and this subpart; and
reasonably describe the discussion or item of testimony, and the date of
the meeting, with sufficient specificity to permit TVA to identify the
item requested.
(c) In the event the person making a request under paragraph (b) of
this section has reason to believe that all transcripts, electronic
recordings, or minutes or portions thereof requested by that person and
required to be made available under paragraph (b) of this section were
not made available, the person shall make a written request to the
Manager, Media Relations for such additional transcripts, electronic
recordings, or minutes or portions thereof as that person believes
should have been made available under paragraph (b) of this section and
shall set forth in the request the reasons why such additional material
is required to be made available with sufficient particularity for the
Manager, Media Relations to determine the validity of such request.
Promptly after a request pursuant to this paragraph is received, the
Manager, Media Relations or his/her designee shall make a determination
as to whether to comply with the request, and shall immediately give
written notice of the determination to the person making the request.
If the determination is to deny the request, the notice to the person
making the request shall include a statement of the reasons for the
denial, a notice of the right of the person making the request to appeal
the denial to TVA's Senior Vice President, Communications and Employee
Development, and the time limits thereof.
(d) If the determination pursuant to paragraph (c) of this section is
to deny the request, the person making the request may appeal such
denial to TVA's Senior Vice President, Communications and Employee
Development. Such an appeal must be taken within 30 days after the
person's receipt of the determination by the Manager, Media Relations
and is taken by delivering a written notice of appeal to the Senior Vice
President, Communications and Employee Development, Tennessee Valley
Authority, Knoxville, Tennessee 37902-1499. Such notice shall include a
statement that it is an appeal, from a denial of a request under
1301.48(c) and the Government in the Sunshine Act and shall indicate the
date on which the denial was issued and the date on which the denial was
received by the person making the request. Promptly after such an
appeal is received, TVA's Senior Vice President, Communications and
Employee Development or the Senior Vice President's designee shall make
a final determination on the appeal. In making such a determination,
TVA will consider whether or not to waive the provisions of any
exemption contained in 1301.46. TVA shall immediately give written
notice of the final determination to the person making the request. If
the final determination on the appeal is to deny the request, the notice
to the person making the request shall include a statement of the
reasons for the denial and a notice of the person's right to judicial
review of the denial.
(e) Copies of materials available for public inspection under this
section shall be furnished to any person at the actual cost of
duplication or transcription.
(42 FR 14086, Mar. 15, 1977. Redesignated at 44 FR 30682, May 29,
1979, and amended at 56 FR 55452, Oct. 28, 1991)
18 CFR 1301.48 PART 1302 -- NONDISCRIMINATION IN FEDERALLY ASSISTED
PROGRAMS OF TVA -- EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF
1964
Sec.
1302.1 Purpose.
1302.2 Application of this part.
1302.3 Definitions.
1302.4 Discrimination prohibited.
1302.5 Assurances required.
1302.6 Compliance information.
1302.7 Compliance reviews and conduct of investigations.
1302.8 Procedure for effecting compliance.
1302.9 Hearings.
1302.10 Decisions and notices.
1302.11 Judicial review.
1302.12 Effect on other regulations; supervision and coordination.
Appendix A -- Federal Financial Assistance to Which These Regulations
Apply
Authority: TVA Act, 48 Stat. 58 (1933) as amended, 16 U.S.C.
831-831dd, and sec. 602 of the Civil Rights Act of 1964, 78 Stat. 252,
42 U.S.C. 2000d-1.
Source: 30 FR 311, Jan. 9, 1965, unless otherwise noted.
Redesignated at 44 FR 30682, May 29, 1979.
18 CFR 1302.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI
of the Civil Rights Act 1964 (hereafter referred to as the ''Act'') to
the end that no person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving financial assistance from TVA.
18 CFR 1302.2 Application of this part.
This part applies to any program in which financial assistance is
provided by TVA. The programs to which this part applies are listed in
Appendix A of this part. Financial assistance, as used in this part,
includes the grant or loan of money; the donation of real or personal
property; the sale, lease, or license of real or personal property for
a consideration which is nominal or reduced for the purpose of assisting
the recipient; the waiver of charges which would normally be made, in
order to assist the recipient; the entry into a contract where a
purpose is to give financial assistance to the contracting party; and
similar transactions. This part does not apply to:
(a) Any financial assistance by way of insurance or guaranty
contracts,
(b) Money paid, property transferred, or other assistance extended
under any such program before the effective date of this part,
(c) Any assistance to any individual who is the ultimate beneficiary
under any such program, or
(d) Any employment practice, under any such program, of any employer,
employment agency, or labor organization, unless such practice exists in
a program where a primary objective of the TVA financial assistance is
to provide employment; or where such practice subjects persons to
discrimination in the provision of services and benefits on the grounds
of race, color, or national origin in a program or activity receiving
Federal financial assistance from TVA.
The fact that a program is not listed in Appendix A shall not mean,
if Title VI of the Act is otherwise applicable, that such program is not
covered. Other programs may be added to this list by notice published
in the Federal Register.
(30 FR 311, Jan. 9, 1965. Redesignated at 44 FR 30682, May 29, 1979,
and amended at 49 FR 20481, May 15, 1984)
18 CFR 1302.3 Definitions.
(a) TVA as used in these regulations, refers to the Tennessee Valley
Authority, as created by the Tennessee Valley Authority Act of 1933, 48
Stat. 58, as amended, 16 U.S.C. 831-831dd. See also paragraph (e) of
1302.6.
(b) Recipient refers to any person, group, or other entity which
either receives financial assistance from TVA, or which has been denied
such assistance.
(c) Assistant Attorney General refers to the Assistant Attorney
General, Civil Rights Division, Department of Justice.
(d) Title VI refers to Title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d, et seq.
(49 FR 20481, May 15, 1984; 49 FR 47383, Dec. 4, 1984)
18 CFR 1302.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving Federal financial assistance
from TVA. For the purposes of this part, the following definitions of
race and ethnic group apply:
(1) Black, not of Hispanic origin. A person having origins in any of
the black racial groups of Africa;
(2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or
South American, or other Spanish culture or origin, regardless of race;
(3) Asian or Pacific Islander. A person having origin in any of the
original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands. This area includes, for example,
China, Japan, Korea, the Philippine Islands, and Samoa;
(4) American Indian or Alaskan Native. A person having origins in
any of the original peoples of North America, and who maintains cultural
identification through tribal affiliation or community recognition;
(5) White, not of Hispanic origin. A person having origins in any of
the original peoples of Europe, North Africa, or the Middle East.
Additional subcategories based on national origin or primary language
spoken may be used where appropriate.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program or activity receiving Federal financial assistance
from TVA may not, directly or through contractual or other arrangements,
on ground of race, color, or national origin:
(i) Deny an individual any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in
any manner related to that individual's receipt of any service,
financial aid, or other benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining
whether any admission, enrollment, quota, eligibility, membership, or
other requirement or condition which individuals must meet in order to
be provided any service, financial aid, or other benefit provided under
the program has been satisfied.
(vi) Deny an individual an opportunity to participate in the program
through the provision of services or otherwise or afford that individual
an opportunity to do so which is different from that afforded others
under the program.
(2) A recipient, in determining the types of services, financial aid,
or other benefits, or facilities which will be provided under any such
program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of individuals to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respect individuals
of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
may not make selections with the purpose or effect of excluding
individuals from, denying them the benefits of, or subjecting them to
discrimination under any program to which this regulation applies, on
the grounds of race, color, or national origin; or with the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the Act or this regulation.
(4) As used in this section the services, financial aid, or other
benefits provided under a program receiving financial assistance shall
be deemed to include any service, financial aid, or other benefit
provided in or through a facility provided with the aid of the financial
assistance.
(5) The enumeration of specific forms of prohibited discrimination in
this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(6) This regulation does not prohibit the consideration of race,
color, or national origin if the purpose and effect are to remove or
overcome the consequences of practices or impediments which have
restricted the availability of, or participation in, the program or
activity receiving Federal financial assistance, on the grounds of race,
color, or national origin. Where previous discriminatory practice or
usage tends, on the grounds of race, color, or national origin, to
exclude individuals from participation in, to deny them the benefits of,
or to subject them to discrimination under any program or activity to
which this regulation applies, the recipient has an obligation to take
reasonable action to remove or overcome the consequences of the prior
discriminatory practice or usage, and to accomplish the purposes of the
Act.
(30 FR 311, Jan. 9, 1965, as amended at 38 FR 17944, July 5, 1973.
Redesignated at 44 FR 30682, May 29, 1979. Redesignated and amended at
49 FR 20481, May 15, 1984)
18 CFR 1302.5 Assurances required.
(a) TVA contributes financial assistance only under agreements which
contain a provision which specifically requires compliance with this
part in programs or activities receiving Federal financial assistance
from TVA. If the financial assistance involves the furnishing of real
property, the agreement shall obligate the recipient, or in the case of
a subsequent transfer, the transferee, for the period during which the
real property is used for a purpose for which the financial assistance
is extended or for another purpose involving the provision of similar
services or benefits. Where the financial assistance involves the
furnishing of personal property, the agreement shall obligate the
recipient for the period during which the recipient retains ownership or
possession of the property. In all other cases the agreement shall
obligate the recipient for the period during which financial assistance
is extended pursuant to the agreement. TVA shall specify the form of
the foregoing agreements, and the extent to which an agreement shall be
applicable to subgrantees, contractors and subcontractors, transferees,
successors in interest, and other participants in the program.
(b) In the case of real property, structures or improvements thereon,
or interests therein, which is acquired through a program of Federal
financial assistance, or in the case where Federal financial assistance
is provided in the form of a transfer by TVA of real property or
interest therein, the instrument effecting or recording the transfer of
title shall contain a covenant running with the land assuring
nondiscrimination for the period during which the real property is used
for a purpose for which the Federal financial assistance is extended or
for another purpose involving the provision of similar services or
benefits. Where no transfer of property is involved, but property is
improved under a program of Federal financial assistance, the recipient
shall agree to include such a covenant in any subsequent transfer of
such property. Where the property is obtained by transfer from TVA, the
covenant against discrimination may also include a condition coupled
with a right to be reserved by TVA to revert title to the property in
the event of a breach of the covenant where, in the discretion of TVA,
such a condition and right of reverter is appropriate to the program
under which the real property is obtained and to the nature of the grant
and the grantee. In such event if a transferee of real property
proposes to mortgage or otherwise encumber the real property as security
for financing construction of new, or improvement of existing,
facilities on such property for the purposes for which the property was
transferred, TVA may agree, upon request of the transferee and if
necessary to accomplish such financing, and upon such conditions as it
deems appropriate, to forbear the exercise of such right to revert title
for so long as the lien of such mortgage or other encumbrance remains
effective.
(30 FR 311, Jan. 9, 1965, as amended at 38 FR 17944, July 5, 1973.
Redesignated at 44 FR 30682, May 29, 1979. Redesignated and amended at
49 FR 20481, May 15, 1984)
18 CFR 1302.6 Compliance information.
(a) Cooperation and assistance. TVA shall to the fullest extent
practicable seek the cooperation of recipients in obtaining compliance
with this part and shall provide assistance and guidance to recipients
to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to TVA timely, complete and accurate compliance reports at such
times, and in such form and containing such information, as TVA may
determined to be necessary to enable it to ascertain whether the
recipient has complied or is complying with this part. In the case of
any program under which a primary recipient extends Federal financial
assistance to any other recipient, such other recipient shall also
submit such compliance reports to the primary recipient as may be
necessary to enable the primary recipient to carry out its obligations
under this part.
(c) Access to sources of information. Each recipient shall permit
access by TVA during normal business hours to such of its books,
records, accounts, and other sources of information, and its facilities
as may be pertinent to ascertain compliance with this part. Where any
information required of a recipient is in the exclusive possession of
any other agency, institution or person and this agency, institution or
person shall fail or refuse to furnish this information, the recipient
shall so certify in its report and shall set forth what efforts it has
made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program under which the recipient
receives financial assistance, and make such information available to
them in such manner as TVA finds necessary to apprise such persons of
the protections against discrimination assured them by the Act and this
part.
(Information collection requirements appearing in 1302.6 were
approved by the Office of Management and Budget under control number
3316-0077)
(30 FR 311, Jan. 9, 1965. Redesignated at 44 FR 30682, May 29, 1979.
Redesignated at 49 FR 20481, May 15, 1984, and amended at 51 FR 9649,
Mar. 20, 1986)
18 CFR 1302.7 Compliance reviews and conduct of investigations.
(a) Preaward compliance reviews. (1) Prior to approval of financial
assistance, TVA will make a determination as to whether the proposed
recipient is in compliance with Title VI and the requirements of this
part with respect to a program or activity for which it is seeking
Federal financial assistance from TVA. The basis for such a
determination shall be submission of an assurance of compliance and a
review of the data and information submitted by the proposed recipient,
any relevant compliance review reports on file with TVA, and any other
information available to TVA. Where a determination cannot be made from
this data, TVA will require the submission of necessary additional
information and may take additional steps. Such additional steps may
include, for example, communicating with local government officials,
protected class organizations, and onsite reviews.
(2) No proposed recipient shall be approved unless it is determined
that the proposed recipient is in compliance with Title VI and this part
or has agreed in writing to take necessary specified steps within a
stated period of time to come into compliance with Title VI and this
part. Such an agreement must be approved by TVA and made a part of the
conditions of the agreement under which the financial assistance is
provided.
(3)(i) Where TVA finds that a proposed recipient may not be in
compliance with Title VI and this part, TVA shall notify the proposed
recipient and the Assistant Attorney General for Civil Rights in writing
of:
(A) The preliminary findings setting forth the alleged noncompliance;
(B) Suggested actions for correcting the alleged noncompliance; and
(C) The fact that the proposed recipient has 10 days to correct the
alleged noncompliance or to provide during this time a written
submission responding to or rebutting the preliminary findings or
suggested corrective actions set forth in the notice.
(ii) If within this 10-day period the proposed recipient has not
agreed to the suggested actions set forth or to other actions that would
correct the alleged noncompliance under paragraph (a)(3)(i)(B) of this
section, or the preliminary findings set forth in paragraph (a)(3)(i)(A)
of this section have not been rebutted to TVA's satisfaction, or
voluntary compliance has not been otherwise secured, TVA shall make a
formal determination of compliance or noncompliance, notify the proposed
recipient, and the Assistant Attorney General for Civil Rights and
institute proceedings (including provision of an opportunity for a
hearing) under 1302.8 of this part.
(b) Postaward compliance reviews. (1) TVA may periodically conduct
compliance reviews of selected recipients in their programs or
activities receiving TVA financial assistance, including the request of
data and information, and may conduct onsite reviews where it has reason
to believe that discrimination may be occurring in such programs or
activities.
(2) Selection for review shall be made on the basis of the following
criteria among others:
(i) The number and nature of discrimination complaints filed against
a recipient with TVA or other Federal agencies;
(ii) The scope of the problem revealed by an investigation commenced
on the basis of a complaint filed with TVA against a recipient; and
(iii) The amount of assistance provided to the recipient.
(3) Within 15 days after selection of a recipient for review, TVA
shall inform the recipient that it has been selected for review. The
review will ordinarily be initiated by a letter requesting data
pertinent to the review and advising the recipient of:
(i) The practices to be reviewed;
(ii) The program or activities affected by the review;
(iii) The opportunity to make, at any time prior to receipt of the
final TVA findings with respect to the review pursuant to paragraph
(b)(6) of this section, a documentary submission responding to TVA which
explains, validates, or otherwise addresses the practices under review;
and
(iv) The schedule under which the review will be conducted and a
determination of compliance or noncompliance made.
(4) Within 180 days of initiation of a review, TVA shall advise the
recipient, in writing of:
(i) Its preliminary findings;
(ii) Where appropriate, recommendations for achieving voluntary
compliance;
(iii) The opportunity to request TVA to engage in voluntary
compliance negotiations prior to TVA's final determination of compliance
or noncompliance. TVA shall notify the Assistant Attorney General at
the time it notifies the recipient of any matter where recommendations
for achieving voluntary compliance are made.
(5) TVA's General Manager may extend the 180-day period set out in
paragraph (b)(4) of this section for good cause shown.
(6) If, within 50 days of the recipient's notification under
paragraph (b)(4) of this section, TVA's recommendations for compliance
are not met or voluntary compliance is not secured, and the preliminary
findings have not been rebutted to TVA's satisfaction, TVA shall make a
final determination of compliance or noncompliance. The determination
is to be made no later than 14 days after the conclusion of the 50-day
negotiation period. TVA's General Manager may extend the 14-day period
for good cause shown.
(7) Where TVA makes a formal determination of noncompliance on a
postaward review, the recipient and the Assistant Attorney General shall
be immediately notified in writing of the determination and of the fact
that the recipient has an additional 10 days in which to come into
voluntary compliance. If voluntary compliance has not been achieved
within the 10 days, TVA shall institute proceedings under 1302.8 of
this part.
(8) All agreements to come into voluntary compliance shall be in
writing and signed by TVA and an official who has authority to legally
bind the recipient.
(c) Complaint investigation. (1) TVA shall investigate complaints of
discrimination in a program or activity receiving Federal financial
assistance from TVA that allege a violation of Title VI or this part.
(2) No complaint will be investigated if it is received by TVA more
than 180 days after the date of the alleged discrimination unless the
time for filing is extended by TVA for good cause shown. Where a
complaint is accepted for investigation, TVA will initiate an
investigation. The complainant shall be notified in writing as to
whether the complaint has been accepted or rejected.
(3) TVA shall conduct investigations of complaints as follows:
(i) Within 10 days of receipt of a complaint, the Director of Equal
Opportunity Compliance shall:
(A) Determine whether TVA has jurisdiction under paragraphs (c) (1)
and (2) of this section;
(B) If jurisdiction is not found, wherever possible refer the
complaint to the Federal agency with such jurisdiction and advise the
complainant;
(C) If jurisdiction is found, notify the recipient alleged to be in
violation of the receipt and acceptance of the complaint; and
(D) Initiate the investigation.
(ii) The investigation will ordinarily be initiated by a letter to
the recipient requesting data pertinent to the complaint and informing
the recipient of:
(A) The nature of the complaint, and with the written consent of the
complainant, the identity of the complainant;
(B) The program or activities affected by the complaint;
(C) The opportunity to make, at any time prior to receipt of TVA's
final findings under paragraph (c)(5) of this section, a documentary
submission, responding to, rebutting, or denying the allegations made in
the complaint; and
(D) The schedule under which the complaint will be investigated and a
determination of compliance or noncompliance made.
(iii) Within 180 days of the initiation of a complaint investigation,
TVA shall advise the recipient, in writing, of:
(A) Preliminary findings;
(B) Where appropriate, recommendations for achieving voluntary
compliance; and
(C) The opportunity to request TVA to engage in voluntary compliance
negotiations prior to TVA's final determination of compliance or
noncompliance. TVA shall notify the Assistant Attorney General at the
time the recipient is notified of any matter where recommendations for
achieving voluntary compliance are made.
(4) If, within 50 days of the recipient's notification under
paragraph (c) of this section, TVA's recommendations for compliance are
not met, or voluntary compliance is not secured, and the preliminary
findings have not been rebutted to TVA's satisfaction, TVA shall make a
formal determination of compliance or noncompliance. The determination
is to be made no later than 14 days after conclusion of a 50-day
negotiation period. TVA's General Manager may extend the 14-day period
for good cause shown.
(5) Where TVA makes a formal determination of noncompliance, the
complainant, the recipient, and the Assistant Attorney General shall be
immediately notified in writing of the determination and of the fact
that the recipient has an additional 10 days in which to come into
compliance. If voluntary compliance has not been achieved within the 10
days, TVA shall institute proceedings under 1302.8 of this part. The
complainant shall also be notified of any action taken including the
closing of the complaint or the achievement of voluntary compliance.
All agreements to come into voluntary compliance shall be in writing and
signed by TVA and an official who has authority to legally bind the
recipient and shall be made available to the complainant on request.
(6) If the complainant or party other than TVA has filed suit in
Federal or State court alleging the same discrimination as alleged in a
complaint pending before TVA, and if during TVA's investigation the
trial of that suit would be in progress, TVA will consult with the
Assistant Attorney General and court records to determine the need to
continue or suspend the investigation and will monitor the litigation
through the court docket and contacts with the complainant. Upon
receipt of notice that the court has made a finding of discrimination
against a recipient that would constitute a violation of this part, TVA
shall institute proceedings as specified in 1302.8 of this part. All
agreements to come into voluntary compliance shall be in writing and
signed by TVA and an official who has authority to legally bind the
recipient.
(7) The time limits listed in paragraphs (c) (3) through (5) of this
section shall be appropriately adjusted where TVA requests another
Federal agency to act on the complaint. TVA shall monitor the progress
of the matter through liaison with the other agency. Where the request
to act does not result in timely resolution of the matter, TVA shall
institute appropriate proceedings as required by this part.
(d) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of Title VI or this part, or because
such individual has made a complaint, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this part. The identity of complainants shall be kept
confidential except to the extent necessary to carry out the purposes of
this regulation, including the conduct of any investigation, hearing, or
judicial proceeding arising thereunder.
(e) Enforcement authority. TVA's Director of Equal Opportunity
Compliance, or a successor as designated by TVA's Board of Directors,
will be responsible for all decisions about initiating compliance
reviews and complaint investigations. TVA's General Manager, or a
successor as designated by TVA's Board of Directors, shall be
responsible for all decisions about initiating compliance actions under
1302.8(a) of this part.
(Information collection requirements appearing in 1302.7 were
approved by the Office of Management and Budget under control number
3316-0077)
(49 FR 20481, May 15, 1984, as amended at 49 FR 47383, Dec. 4, 1984;
51 FR 9649, Mar. 20, 1986)
18 CFR 1302.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this regulation may be effected by the suspension or termination of or
refusal to grant or to continue financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to,
(1) A reference to the Department of Justice with a recommendation
that appropriate proceedings be brought to enforce any rights of the
United States under any law of the United States (including other titles
of the Act),
(2) Institution of appropriate proceedings by TVA to enforce the
provisions of the agreement of financial assistance or of any deed or
instrument relating thereto, and
(3) Any applicable proceeding under State or local law.
The Assistant Attorney General, Civil Rights Division, Department of
Justice, will be notified of all findings of probable noncompliance at
the same time the recipient or applicant is notified.
(b) Noncompliance with 1302.5. If anyone requesting financial
assistance declines to furnish the assurance required under 1302.5 of
this part, or otherwise fails or refuses to comply with a requirement
imposed by or pursuant to that section, financial assistance may be
refused in accordance with the procedures of paragraph (c) of this
section and for such purposes, the term ''recipient'' shall be deemed to
include one which has been denied financial assistance. TVA shall not
be required to provide assistance in such a case during the pendency of
the administrative proceedings under such paragraph except that TVA
shall continue assistance during the pendency of such proceedings where
such assistance is due and payable pursuant to an agreement therefor
entered into with TVA prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue financial
assistance. No order suspending, terminating or refusing to grant or
continue financial assistance shall become effective until (1) TVA has
advised the recipient of his failure to comply and has determined that
compliance cannot be secured by voluntary means, (2) there has been an
express finding on the record, after opportunity for hearing, or a
failure by the recipient to comply with a requirement imposed by or
pursuant to this part, (3) the action has been approved by the TVA Board
pursuant to 1302.9, and (4) the expiration of 30 days after the TVA
Board has filed with the committee of the House and the committee of the
Senate having legislative jurisdiction over the program involved, a full
written report of the circumstances and the grounds for such action.
Any action to suspend or terminate or to refuse to grant or to continue
financial assistance shall be limited to the particular political
entity, or part thereof, or recipient as to whom such a finding has been
made and shall be limited in its effect to the particular program, or
part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until (1) TVA has
determined that compliance cannot be secured by voluntary means, (2) the
recipient or other person has been notified of its failure to comply and
of the action to be taken to effect compliance, and (3) the expiration
of at least 10 days from the mailing of such notice to the recipient or
other person. During this period of at least 10 days additional efforts
shall be made to persuade the recipient or other person to comply with
the regulation and to take such corrective action as may be appropriate.
(30 FR 311, Jan. 9, 1965, as amended at 38 FR 17945, July 5, 1973.
Redesignated at 44 FR 30682, May 29, 1979. Redesignated and amended at
49 FR 20483, May 15, 1984; 49 FR 47384, Dec. 4, 1984)
18 CFR 1302.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by 1302.7(b), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
recipient. This notice shall advise the recipient of the action
proposed to be taken, the specific provision under which the proposed
action against it is to be taken, and the matters of fact or law
asserted as the basis for this action, and either (1) fix a date not
less than 20 days after the date of such notice within which the
recipient may request of TVA that the matter be scheduled for hearing or
(2) advise the recipient that the matter in question has been set down
for hearing at a stated time and place. The time and place so fixed
shall be reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of the
hearing. A recipient may waive a hearing and submit written information
and argument for the record. The failure of a recipient to request a
hearing under this subsection or to appear at a hearing for which a date
has been set shall be deemed to be a waiver of the right to a hearing
under section 602 of the Act and 1302.7(b) and consent to the making of
a decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the time
and place fixed by TVA unless it determines that the convenience of the
recipient requires that another place be selected. Hearings shall be
held before the TVA Board, or a member thereof, or, at the discretion of
the Board, before a hearing examiner designated in accordance with
section 11 of the Administrative Procedure Act.
(c) Right to counsel. In all proceedings under this section, the
recipient and TVA shall have the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
the procedures contained in 5 U.S.C. 554-557 (sections 5-8 of the
Administrative Procedure Act) and in accordance with such rules of
procedure as are proper (and not inconsistent with this section)
relating to the conduct of the hearing, giving of notices subsequent to
those provided for in paragraph (a) of this section, taking of
testimony, exhibits, arguments and briefs, requests for findings, and
other related matters. Both TVA and the recipient shall be entitled to
introduce all relevant evidence on the issues as stated in the notice
for hearing or as determined by the officer conducting the hearing at
the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer
may exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or Joint Hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with this part and the regulations of one or more other
Federal departments or agencies issued under Title VI of the Act, the
TVA Board may, by agreement with such other departments or agencies
where applicable, provide for the conduct of consolidated or joint
hearings, and for the application to such hearings of rules of procedure
not inconsistent with this part. Final decisions in such cases, insofar
as this part is concerned, shall be made in accordance with 1302.9.
(30 FR 311, Jan. 9, 1965, as amended at 38 FR 17945, July 5, 1973.
Redesignated at 44 FR 30682, May 29, 1979, and 49 FR 20483, May 15,
1984)
18 CFR 1302.10 Decisions and notices.
(a) Decision by a member of the TVA Board or a hearing examiner. A
member of the TVA Board or a hearing examiner who holds the hearing
shall either make an initial decision or certify the entire record,
including the Board member's or examiner's recommended findings and
proposed decision, to the TVA Board for a final decision. A copy of
such initial decision or certification shall be mailed to the recipient.
Where the initial decision is made by a member of the TVA Board or a
hearing examiner, the recipient may file exceptions to the initial
decision, together with a statement of reasons therefor. Such
exceptions and statement shall be filed with the TVA Board within 30
days of the date the notice of initial decision was mailed to the
recipient. In the absence of exceptions, the TVA Board may on its own
motion within 45 days after the initial decision serve on the recipient
a notice that the TVA Board will review the decision. Upon the filing
of such exceptions or of such notice of review, the TVA Board shall
review the initial decision and issue its own decision thereon including
the reasons therefor. In the absence of either exceptions or a notice
of review, the initial decision shall constitute the final decision of
the TVA Board.
(b) Decisions on record or review by the TVA Board. Whenever a
record is certified to the TVA Board for decision or it reviews the
decision of a member of the TVA Board or a hearing examiner pursuant to
paragraph (a) of this section, or whenever the TVA Board conducts the
hearing, the recipient shall be given reasonable opportunity to file
with the Board briefs or other written statements of its contentions,
and a copy of the final decision of the Board shall be given in writing
to the recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to 1302.8(a) a decision shall be made by the
TVA Board on the record and a copy of such decision shall be given to
the recipient, and to the complainant, if any.
(d) Rulings required. Each decision shall set forth a ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the recipient has failed to comply.
(e) Approval by TVA Board. Any final decision (other than a decision
by the TVA Board) which provides for the suspension or termination of,
or the refusal to grant or continue financial assistance, or the
imposition of any other sanction available under this regulation or the
Act, shall promptly be transmitted to the TVA Board, which may approve
such decision, may vacate it, or remit or mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue financial assistance,
in whole or in part, under the program involved, and may contain such
terms, conditions, and other provisions as are consistent with and will
effectuate the purposes of the Act and this part, including provisions
designed to assure that no financial assistance will thereafter be
extended under such program to the recipient determined by such decision
to have failed to comply with this part, unless and until it corrects
its noncompliance and satisfies TVA that it will fully comply with this
part.
(g) Posttermination proceedings. (1) A recipient adversely affected
by an order issued under paragraph (f) of this section shall be restored
to full eligibility to receive Federal financial assistance if it
satisfies the terms and conditions of that order for such eligibility or
if it brings itself into compliance with this regulation and provides
reasonable assurance that it will fully comply with this regulation.
(2) Any recipient or proposed recipient adversely affected by an
order entered pursuant to paragraph (f) of this section may at any time
request TVA to restore fully the recipient's eligibility to receive
Federal financial assistance. Any such request shall be supported by
information showing that the recipient has met the requirements of
paragraph (g)(1) of this section. If TVA determines that those
requirements have been satisfied, TVA shall restore such eligibility.
(3) If TVA denies any such request, the recipient may submit a
written request for a hearing specifying why it believes TVA to have
been in error. The recipient shall thereupon be given an expeditious
hearing, with a decision on the record, in accordance with rules of
procedure issued by TVA. The recipient will be restored to such
eligibility if the recipient proves at such a hearing that it satisfied
the requirements of paragraph (g)(1) of this section. While proceedings
under this paragraph are pending, the sanctions imposed by the order
issued under paragraph (f) of this section shall remain in effect.
(30 FR 311, Jan. 9, 1965. Redesignated at 44 FR 30682, May 29, 1979.
Redesignated and amended at 45 FR 20483, May 15, 1983)
18 CFR 1302.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
(30 FR 311, Jan. 9, 1965. Redesignated at 44 FR 30682, May 29, 1979,
and 49 FR 47384, Dec. 4, 1984)
18 CFR 1302.12 Effect on other regulations; supervision and
coordination.
(a) Effect on other regulations. All regulations, orders, or like
directions heretofore issued by TVA which impose requirements designed
to prohibit any discrimination against individuals on the ground of
race, color, or national origin under any program to which this
regulation applies, and which authorize the suspension or termination of
or refusal to grant or to continue financial assistance to any recipient
of such assistance under such program for failure to comply with such
requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part shall be deemed to relieve any person of any obligation assumed or
imposed under any such superseded regulation, order, instruction, or
like direction prior to the effective date of this part. Nothing in
this part, however, shall be deemed to supersede any of the following
(including future amendments thereof):
(1) Executive Order 12250 and regulations issued thereunder, or
(2) Any other regulations or instructions, insofar as they prohibit
discrimination on the ground of race, color, or national origin in any
program or situation to which this regulation is inapplicable, or
prohibit discrimination on any other ground.
(b) Supervision and coordination. TVA may from time to time assign
to officials of other departments or agencies of the Government with the
consent of such departments or agencies, responsibilities in connection
with the effectuation of the purposes of Title VI of the Act and this
part (other than responsibility for final decision as provided in
1302.9), including the achievement of effective coordination and maximum
uniformity within the Executive Branch of the Government in the
application of Title VI and this part to similar programs and in similar
situations. Any action taken, determination made, or requirement
imposed by an official of another department or agency acting pursuant
to an assignment of responsibility under this subsection shall have the
same effect as though such action had been taken by TVA.
(38 FR 17945, July 5, 1973. Redesignated at 44 FR 30682, May 29,
1979. Redesignated and amended at 49 FR 20484, May 15, 1984)
18 CFR 1302.12 Pt. 1302, App. A
18 CFR 1302.12 Appendix A -- Federal Financial Assistance to Which
These Regulations Apply
1. Transfers, leases and licenses of real property for nominal
consideration to states, counties, municipalities, and other public
agencies for development for public recreation.
2. Furnishing funds, property and services to state agencies, local
governments and citizen organizations to advance economic growth in
watersheds of Tennessee River tributaries through cooperative resource
development programs.
3. Furnishing funds, property and services to land grant colleges for
use in a cooperative program utilizing test-demonstration farms to test
experimental fertilizers developed by TVA and to educate farmers and
other interested persons concerning these new fertilizers. This program
also includes the furnishing of fertilizers at reduced prices by TVA,
through its fertilizer distributors, to such test-demonstration farms.
4. Furnishing space and utilities without charge under agreements
with state agencies for use in accordance with the Vending Stands for
Blind Act.
(30 FR 311, Jan. 9, 1965, as amended at 38 FR 17945, July 5, 1973.
Redesignated at 44 FR 30682, May 29, 1979)
18 CFR 1302.12 PART 1303 -- (RESERVED)
18 CFR 1302.12 PART 1304 -- APPROVAL OF CONSTRUCTION IN THE TENNESSEE RIVER SYSTEM AND REGULATION OF STRUCTURES
18 CFR 1302.12 Subpart A -- General Requirements
Sec.
1304.1 Definitions.
1304.2 Scope and intent.
1304.3 Flotation devices and material.
1304.4 Treatment of sewage.
1304.5 Removal of unauthorized, unsafe, and derelict structures.
18 CFR 1302.12 Subpart B -- Approval of Construction
1304.100 Scope and intent.
1304.101 Delegation of authority.
1304.102 Application.
1304.103 Contents of application.
1304.104 Little Tennessee River; date of formal submission.
1304.105 Determination of application.
1304.106 Appeals.
1304.107 Conduct of hearings.
1304.108 Conditions of approvals.
1304.109 Habitable and certain other enclosed structures within the
flowage easement areas of TVA reservoirs.
18 CFR 1302.12 Subpart C -- Regulation of Boathouses, Houseboats, Other
Floating Structures, and Harbor Limits
1304.200 Scope and intent.
1304.201 Definitions.
1304.202 Designation of harbor areas at commercial boat docks.
1304.203 Houseboats.
1304.204 Floating boathouses.
1304.205 Approval of plans for floating boathouses and nonnavigable
houseboats.
1304.206 Numbering and transfer of approved facilities.
Authority: 16 U.S.C. 831-831dd, unless otherwise noted.
Source: 36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971,
unless otherwise noted. Redesignated at 44 FR 30682, May 29, 1979.
18 CFR 1302.12 Subpart A -- General Requirements
18 CFR 1304.1 Definitions.
Except as the context may otherwise require, the following words or
terms, when used in this Part 1304, have the meaning specified in this
section.
Act means the Tennessee Valley Authority Act of 1933, as amended.
Applicant means the person, corporation, State, municipality,
political subdivision or other entity making application.
Application means a written request for the approval of plans
pursuant to section 26a of the Act and the regulations contained in this
part.
Board means the Board of Directors of TVA.
Director means the Director of Land and Forest Resources of TVA.
TVA means the Tennessee Valley Authority.
(42 FR 65146, Dec. 30, 1977, as amended at 44 FR 23066, Apr. 18,
1979. Redesignated at 44 FR 30682, May 29, 1979)
18 CFR 1304.2 Scope and intent.
The Act among other things confers on TVA broad powers related to the
unified conservation and development of the Tennessee River Valley and
surrounding area and directs that property in TVA's custody be used to
promote the Act's purposes. In particular, section 26a of the Act
requires that TVA's approval be obtained prior to the construction,
operation, or maintenance of any dam, appurtenant works, or other
obstruction affecting navigation, flood control, or public lands or
reservations along or in the Tennessee River or any of its tributaries.
By way of example only, such obstructions include boat docks, piers,
boathouses, rafts, buoys, floats, boat launching ramps, fills, and
nonnavigable houseboats as defined in 1304.201. Any person considering
construction, operating, or maintaining any such structure should
carefully study these regulations before doing so. The regulations also
apply to certain structures built upon land subject to TVA flowage
easements. In the transfer or other disposition affecting shoreline
lands within its custody, TVA has also retained land rights to carry out
the Act's purposes including rights related to control of water
pollution from the use of the land transferred. TVA uses and permits
use of the lands and land rights in its custody alongside and subjacent
to TVA reservoirs to carry out the purposes and policies of the Act. In
addition, recent legislation, including the National Environmental
Policy Act of 1969, as amended, (NEPA) 42 U.S.C. 4321 et seq., and the
Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1251
et seq. (FWPCA), have declared it to be congressional policy that
agencies should administer their statutory authorities so as to restore,
preserve and enhance the quality of the environment and should cooperate
in the control of pollution. Unless otherwise noted, all references in
this title to these statutes shall be deemed to include any future
amendments to them. It is the intent of the regulations prescribed in
this Part 1304 to carry out the purposes of the Act and other statutes
relating to these purposes, and this part shall be interpreted and
applied to that end.
(42 FR 65146, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.3 Flotation devices and material.
(a) Because of the possible release of toxic or polluting substances,
and the hazard to navigation from metal drums that become partially
filled with water and escape from docks, boathouses, houseboats, floats,
and other water-use structures and facilities for which they are used
for flotation, the Board has prohibited use of metal drums in any form,
except as authorized in paragraph (b) of this section, for flotation of
any facilities requiring approval under this part before being
constructed or placed on any TVA reservoir.
(b) The only metal drums permitted are those which have been filled
with plastic foam or other solid flotation materials and welded,
strapped, or otherwise firmly secured in place prior to July 1, 1972, on
existing facilities, but replacement of any metal drum flotation
permitted to be used by this subsection must be with some type of
permanent flotation device or material, for example, pontoons, boat
hulls, or other buoyancy devices made of steel, aluminum, fiberglass, or
plastic foam, not including filled metal drums.
(c) Every flotation device employed in the Tennessee River system
must be firmly and securely affixed to the structure it supports with
materials capable of withstanding prolonged exposure to wave wash and
weather conditions.
(36 FR 20424, Oct. 22, 1971, as amended at 42 FR 65147, Dec. 30,
1977. Redesignated at 44 FR 30682, May 29, 1979)
18 CFR 1304.4 Treatment of sewage.
No person operating a commercial boat dock on or over real property
of the United States in the custody and control of TVA, or on or over
real property subject to provisions for the control of water pollution
in a deed, grant or easement, lease, license, permit or other instrument
from or to the United States or TVA shall permit the mooring on or over
such real property of any watercraft or floating structure equipped with
a marine toilet unless such toilet is in compliance with all applicable
statutes and regulations, including the FWPCA and regulations issued
thereunder.
(42 FR 65147, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.5 Removal of unauthorized, unsafe, and derelict structures.
If, at any time, any dock, wharf, floating boathouse, nonnavigable
houseboat, outfall, or other fixed or floating structure or facility
anchored, installed, constructed, or moored under a license, permit, or
approval from TVA is not constructed in accordance with plans approved
by TVA, or is not maintained or operated so as to remain in accordance
with such plans, or is not kept in a good state of repair and in good,
safe, and substantial condition, and the owner or operator thereof fails
to repair or remove such structure (or operate or maintain it in
accordance with such plans) within ninety (90) days after written notice
from TVA to do so, TVA may cancel such license, permit, or approval and
remove such structure, or cause it to be removed, from the Tennessee
River system and/or lands in the custody or control of TVA. Such
written notice may be given by mailing a copy thereof to the owner's
address as listed on the license, permit, or approval or by posting a
copy on the structure or facility. TVA will remove or cause to be
removed any such structure or facility anchored, installed, constructed,
or moored without such license, permit, or approval, whether such
license or approval has once been obtained and subsequently canceled, or
whether it has never been obtained.
(42 FR 65147, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.5 Subpart B -- Approval of Construction
18 CFR 1304.100 Scope and intent.
Approval must be obtained with respect to each structure subject to
section 26a of the Act prior to its construction, operation, or
maintenance. This subpart prescribes procedures to be followed in any
case where it is desired to obtain such approval.
(42 FR 65147, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.101 Delegation of authority.
The power to approve or disapprove applications under this part is
delegated to the Director, subject to appeal to the Board as provided in
1304.106. In his discretion the Director may submit any application to
the Board for its approval or disapproval. Administration of the
handling of applications is delegated to the Division of Land and Forest
Resources.
(42 FR 65147, Dec. 30, 1977, as amended at 44 FR 23066, Apr. 18,
1979. Redesignated at 44 FR 30682, May 29, 1979)
18 CFR 1304.102 Application.
Applications shall be addressed to Tennessee Valley Authority,
Director of Land and Forest Resources, Norris, Tenn. 37828.
(44 FR 20366, Apr. 18, 1979. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.103 Contents of application.
(a) Each application must be accompanied by five (5) complete sets of
plans for the construction, operation, and maintenance of the proposed
structure. The application shall be prepared according to
''Instructions for Preparing an Application for an Approval of Plans for
Proposed Structures Under section 26a of the Tennessee Valley Authority
Act.'' These instructions require that the application include, among
other things:
(1) Accurate maps showing the exact location where the structure is
proposed to be built, moored, or installed;
(2) Plans, including layout, in scale, of the proposed structure;
(3) Statements of the plans formulated for the maintenance and
operation of the structure when completed;
(4) Sufficient information to describe adequately all of the persons,
corporations, organizations, agencies, or others who propose to
construct, own, and operate such structure; and
(5) A report of the anticipated environmental consequences resulting
from the construction, operation, and maintenance of the proposed
structure. This report of anticipated environmental consequences shall
include a discussion of:
(i) The probable impact of the proposed structure on the environment;
(ii) Any probable adverse environmental consequences which cannot be
avoided;
(iii) Alternatives to the proposed structure;
(iv) The relationship betweeen the local short-term uses of the
environment and the maintenance of long-term productivity which will
result from the proposed structure; and
(v) Any irreversible or irretrievable commitments of resources which
would be involved by virtue of the proposed structure.
(b) If construction, maintenance, or operation of the proposed
structure or any part thereof, or the conduct of the activity in
connection with which approval is sought, may result in any discharge
into navigable waters of the United States, applicant shall also submit
with the application, in addition to the material required by paragraph
(a) of this section, a certification from the State in which such
discharge would originate, or, if appropriate, from the interstate water
pollution control agency having jurisdiction over the navigable waters
at the point where the discharge would originate, or from the
Environmental Protection Agency, that such State or interstate agency or
the Environmental Protection Agency has determined after public notice
of applicant's proposal that there is reasonable assurance that
applicant's proposed activity will be conducted in a manner which will
not violate applicable water quality standards. If construction or
operation of the proposed structure will affect water quality but is not
subject to any applicable water quality standards, applicant shall
submit a written statement to that effect by such State, interstate
agency, or the Environmental Protection Agency. The applicant shall
further submit such supplemental and additional information as TVA may
deem necessary for the review of the application, including, without
limitation, information concerning the amounts, chemical makeup,
temperature differentials, type and quantity of suspended solids, and
proposed treatment plans for any proposed discharges.
(c) Detailed information concerning contents of applications, kinds
and amounts of information required to be submitted for specific
structures, and instructions are available at the address specified in
1304.102 or from the Manager of Properties, Division of Land and Forest
Resources, Tennessee Valley Authority, at one of the following district
offices:
(1) Western District, Post Office Box 280, Paris, Tenn. 38242
(office location: 202 West Blythe Street).
(2) Southern District, 601 First Federal Building, Muscle Shoals,
Ala. 35660 (office location: 102 South Court Street, Florence).
(3) Central District, Post Office Box 606, Athens, Tenn. 37303
(office location: 110 Congress Parkway).
(4) Eastern District, 2611 West Andrew Johnson Highway, Morristown,
Tenn. 37814.
(42 FR 65147, Dec. 30, 1977, as amended at 44 FR 23066, Apr. 18,
1979. Redesignated at 44 FR 30682, May 29, 1979)
18 CFR 1304.104 Little Tennessee River; date of formal submission.
As regards structures on the Little Tennessee River, applications are
deemed by TVA to be ''formally submitted'' within the meaning of section
26a of the Act, on that date upon which applicant has complied in good
faith with all of the provisions of paragraphs (a) and (b) of 1304.103.
18 CFR 1304.105 Determination of application.
(a) The Division of Land and Forest Resources conducts preliminary
investigations, coordinates the processing of applications within TVA;
notifies the applicant if preparation and review of an environmental
statement are required under NEPA and of what additional information
must be submitted to TVA by applicant so that TVA may comply with the
requirements of that statute and related legal requirements, and
complete its review of the application; and arranges for notification
to the Environmental Protection Agency of applications that request
approval of plans for structures which may result in a discharge into
navigable waters of the United States and are certified in accordance
with the requirements of 1304.103(b).
(b) Hearings concerning approval of applications are conducted (in
accordance with 1304.107) (1) when requested by the applicant, (2) when
TVA deems that a hearing is necessary or appropriate in determining any
issue presented by the application, (3) when required under applicable
provisions of the FWPCA.
(c) Upon completion of the investigation, coordination of the review
of water quality aspects of the application under the FWPCA, completion
of review under NEPA if required, and hearing or hearings, if any, the
Director approves or disapproves the application on the basis of the
application and supporting documents the report of investigation, the
transcript of the hearing or hearings, if any be held, the
recommendations of other agencies, the intent of this part, and the
applicable provisions of the TVA Act, the FWPCA, NEPA, and other
applicable laws or regulations. In his discretion the Director may
refer any application and supporting materials to the Board for its
approval or disapproval.
(d) Promptly following determination, the Director or the Board, as
the case may be, furnishes a written copy of the decision to the
applicant and to any parties of record pursuant to 1304.107. In the
case of applications initially approved or disapproved by the Board,
written requests for reconsideration may be made to the Board in the
same manner as provided for appeals under 1304.106(a).
(42 FR 65148, Dec. 30, 1977, as amended at 44 FR 23066, Apr. 18,
1979. Redesignated at 44 FR 30682, May 29, 1979)
18 CFR 1304.106 Appeals.
(a) If the Director disapproves an application, the applicant may, by
written request addressed to the Board of Directors, Tennessee Valley
Authority, Knoxville, Tenn. 37902, and mailed within thirty (30) days
after receipt of notification of such disapproval, obtain review by the
Board of the determination of the Director disapproving the application.
(b) A party of record to any hearing before the Director who is
aggrieved or adversely affected by any determination of the Director
approving an application, may obtain review by the Board of such
determination by written request addressed and mailed as provided in
paragraph (a) of this section.
(c) Requests for review shall specify the reasons why it is contended
that the Director's determination is in error.
(d) Following receipt of a request for review, the Board will review
the material on which the Director's decision was based and may conduct
or cause to be conducted such investigation of the application as the
Board deems necessary or desirable. The applicant and the person
requesting review may submit additional written material in support of
his position to the Board within thirty (30) days after receipt by TVA
of the request for review. Based on the review, investigation, and
written submissions provided for in this paragraph, the Board shall
render its decision approving or disapproving the application.
(e) The Board will furnish a written copy of its decision in any
review proceeding under this section to the applicant and to all parties
of record promptly following determination of the matter.
(36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971, as amended
at 42 FR 65148, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.107 Conduct of hearings.
(a) If a hearing is to be held for any of the reasons described in
1304.105(b) TVA gives notice of the hearing to permit attendance by
interested persons. Such notice may be given by publication in the
Federal Register, publication in a daily newspaper of general
circulation in the area of the proposed structure, personal written
notice, or a combination of these methods. The notice indicates the
place, date and time of hearing, so far as feasible indicates the
particular issues to which the hearing will pertain, states the manner
of becoming a party of record, and provides other relevant information.
The applicant is automatically a party of record.
(b) Hearings may be conducted by the Director and/or such other
person or persons as he may designate for that purpose. Hearings are
public and are conducted in an informal manner. Parties of record may
be represented by counsel or other persons of their choosing. Technical
rules of evidence are not observed although reasonable bounds are
maintained as to relevancy, materiality, and competency. Evidence may
be presented orally or by written statement and need not be under oath.
After the hearing has been completed, additional evidence will not be
received unless it presents new and material matter that in the judgment
of the person or persons conducting the hearing could not be presented
at the hearing. Where construction of the project also requires the
approval of another agency of the Federal Government by or before whom a
hearing is to be held, the Director may arrange with such agency to hold
a joint hearing.
18 CFR 1304.108 Conditions of approvals.
(a) Approvals of applications shall contain such conditions as are
required by law. Approvals of applications may contain such other
conditions as TVA deems necessary to carry out the provisions of the
Act, the policy of related statutes, and the intent of this part.
(b) If an approval is granted under this subpart of a structure or
facility with respect to which a certificate of compliance with
applicable water quality standards has been obtained pursuant to FWPCA
and no additional or other Federal permit or license is required for
operation of such structure or facility, the holder of the TVA approval
shall, prior to initial operation of such structure or facility, provide
an opportunity for the certifying state or, if appropriate, the
interstate agency or the Environmental Protection Agency to review the
manner in which the structure or facility will be operated or conducted,
for the purpose of assuring that applicable water quality standards will
not be violated.
(c) Except for plans which must be approved only because the proposed
structure is to be built upon land subject to a TVA flowage easement, as
provided in 1304.109, no plans will be approved for any structure,
including by way of example only, boat docks, piers, fixed boathouses,
floats or rafts, if they provide for toilets, living or sleeping
quarters, or any type of enclosed floor space in excess of 25 square
feet, not including walkways around boat wells or mooring slips. Such
walkways shall not exceed 4 feet in width unless, in the sole judgment
of the Director, the size of the well or slip justifies a greater width.
For the purposes of this subsection, floor space shall not be deemed
enclosed solely because of plans providing for the use of wire mesh or
similar screening which leaves the interior of the structure of facility
open to the weather: And, provided further, That nothing contained in
this paragraph shall be construed as prohibiting enclosure of the boat
well or mooring slip proper. In the case of applications for structures
to be used as part of a public boat dock, marina, or other public or
commercial facility, the requirements of this paragraph (c) may be
waived or modified by the Director if he considers such waiver necessary
or desirable for proper development of the facility.
(36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971, as amended
at 42 FR 65148, Dec. 30, 1977; 43 FR 6766, Feb. 16, 1978. Redesignated
at 44 FR 30682, May 29, 1979)
18 CFR 1304.109 Habitable and certain other enclosed structures within
the flowage easement areas of TVA reservoirs.
In addition to all other requirements of this part, any structure
built upon land subject to a flowage easement held by TVA shall be
deemed an obstruction affecting navigation, flood control, or public
lands or reservations within the meaning of section 26a of the Act if
it:
(a) Is a fixed enclosed structure having a cost-in-place in excess of
five thousand dollars; or
(b) Is designed or used for human habitation, regardless of cost; or
(c) Involves a discharge into the navigable waters of the United
States.
Such obstructions shall be subject to all requirements of this
subpart, but nothing contained in this section shall be construed to be
in derogation of the rights of the United States or of TVA under any
flowage easement held by TVA.
For purposes of this section ''enclosed structure'' shall mean a
structure enclosed overhead and on all sides so as to keep out weather.
(42 FR 65148, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.109 Subpart C -- Regulation of Boathouses, Houseboats, Other Floating Structures, and Harbor Limits
18 CFR 1304.200 Scope and intent.
This subpart prescribes regulations governing designation of harbor
areas at commercial boat docks and the approval of structures and
facilities which can be moored or installed in such areas and in other
areas in the Tennessee River and its tributaries, all in such a manner
as to avoid obstruction of or interference with navigation and flood
control, avoid or minimize adverse effects on public lands and
reservations, prevent the preemption of public waters by houseboats
moored in permanent or semipermanent locations outside such harbors and
used as floating dwellings, attain the widest range of beneficial uses
of land and land rights owned by the United States of America, enhance
reasonable recreational use of TVA reservoirs by all segments of the
general public, protect lands and land rights owned by the United States
alongside and subjacent to TVA reservoirs from trespass and other
unlawful or unreasonable uses, and maintain, protect, and enhance the
quality of the human environment.
(42 FR 65148, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.201 Definitions.
For the purposes of this subpart, in addition to any definitions
contained elsewhere in this part, the following words or terms shall
have the meaning specified in this section, unless the context requires
otherwise:
Existing as applied to floating boathouses or other structures,
except houseboats, means those which were moored, anchored, or otherwise
installed on, along, or in a TVA reservoir on or before July 1, 1972.
Existing as applied to houseboats shall mean those which were moored,
anchored, or otherwise installed on, along, or in a TVA reservoir on or
before February 15, 1978.
Floating boathouse means a floating structure or facility, any
portion of which is enclosed, capable of storing or mooring any
houseboat or other vessel under cover.
Houseboat means any vessel which is equipped with enclosed or covered
sleeping quarters.
Navigable houseboat means any self propelled houseboat having
maneuverability which is (a) built on a boat hull or on two or more
pontoons; (b) equipped with motor and rudder controls located at a
point on the houseboat from which there is forward visibility over a 180
range; and (c) in compliance with all applicable State and Federal
requirements relating to watercraft: Provided, however, That any
existing houseboat which was deemed navigable under the provisions of
the former 1304.201, which became effective November 21, 1971, shall
continue to be deemed navigable for all purposes of this subpart, except
that such houseboats shall be subject to the provisions of 1304.203(d).
New as applied to houseboats, floating boathouses, floats, or other
structures means all houseboats, floating boathouses, or structures,
other than existing ones.
Nonnavigable houseboat means a houseboat not in compliance with one
or more of the criteria defining a navigable houseboat.
Pontoon means an elongated watertight box or cylinder extending fore
and aft for the full length of a vessel and having a sloped or molded
bow to facilitate movement through the water.
Vessel means any watercraft or other structure or contrivance used or
capable of use as a means of water transportation, such as a boat,
floatboat, or houseboat.
(42 FR 65148, Dec. 30, 1977; 43 FR 6766, Feb. 16, 1978.
Redesignated at 44 FR 30682, May 29, 1979)
18 CFR 1304.202 Designation of harbor areas at commercial boat docks.
The landward limits of harbor areas are determined by the extent of
land rights held by the dock operator. The lakeward limits of harbors
at commercial boat docks will be designated by TVA on the basis of the
size and extent of facilities at the dock, navigation and flood control
requirements, optimum use of lands and land rights owned by the United
States, and on the basis of the environmental effects associated with
the use of the harbor. Mooring buoys or slips and indefinite anchoring
are prohibited beyond such lakeward limits, except as otherwise provided
in this subpart.
18 CFR 1304.203 Houseboats.
(a) No new nonnavigable houseboat shall be moored, anchored, or
installed in any TVA reservoir.
(b) Existing nonnavigable houseboats may remain in TVA reservoirs
subject to the provisions of paragraph (d) of this section, but only if:
(1) They have flotation devices complying with 1304.3; (2) they are
approved and numbered pursuant to 1304.205 and 1304.206; and (3) they
are moored in compliance with paragraph (c) of this section.
(c) Existing nonnavigable houseboats shall be moored:
(1) To mooring facilities provided by a commercial dock operator
within the designated harbor limits of his dock; or
(2) To the bank of the reservoir outside the designated harbor limits
of commercial boat docks, if the houseboat owner is the owner or lessee
of the abutting property at the mooring location (or the licensee of
such owner or lessee) and has requested and obtained from TVA, pursuant
to 1304.205, written approval authorizing mooring at such location.
(d) Ordinary maintenance and repair of existing nonnavigable
houseboats permitted to be moored pursuant to this section may be
continued, including replacement of metal drum flotation as required by
1304.3, but such houseboats may not be structurally modified or
expanded, nor may they be replaced, rebuilt, or returned to the
reservoir when they have been abandoned, destroyed, or removed from the
reservoir, or have deteriorated or been damaged so as to be unusable and
unrepairable.
(42 FR 65149, Dec. 30, 1977; 43 FR 6766, Feb. 16, 1978.
Redesignated at 44 FR 30682, May 29, 1979)
Editorial Note: For an interpretation of 1304.203, see the appendix
to 1304.204.
18 CFR 1304.204 Floating boathouses.
(a) Floating boathouses may be moored in TVA reservoirs only if:
(1) They have flotation devices complying with 1304.3; (2) they are
approved and numbered pursuant to 1304.205 and 1304.206; and (3) they
are moored in compliance with paragraph (b) of this section.
(b) All floating boathouses shall be moored:
(1) To mooring facilities provided by a commercial dock operator
within the designated harbor limits of his dock; or
(2) To the bank of the reservoir outside the designated harbor limits
of a commercial boat dock, if the boathouse owner is the owner or lessee
of the abutting property at the mooring location (or the licensee of
such owner or lessee) and has requested and obtained from TVA, pursuant
to 1304.205, written approval authorizing mooring at such location.
(c) Ordinary maintenance and repair of existing floating boathouses
permitted to be moored pursuant to this section may be continued,
including replacement of metal drum flotation as required by 1304.3,
but such floating boathouses may not be structurally modified or
expanded, or replaced, rebuilt, or returned to the reservoir when they
have been abandoned, destroyed, or removed from the reservoir, or have
deterioriated or been damaged, so as to be unusable or unrepairable:
Provided, however, That such floating boathouses may be so structurally
modified or expanded, replaced, rebuilt, or so returned to the reservoir
if they comply with all the requirements of 1304.205(d) and approval is
obtained under that section as for a new floating boathouse.
1. Sections 1304.203(a) and 1304.204(a) of Title 18 of the Code of
Federal Regulations prohibit new nonnavigable houseboats and new
floating boathouses not meeting the requirements of 1304.205(d) in TVA
reservoirs. These sections also provide that existing nonnavigable
houseboats approved for continued mooring on TVA reservoirs and all
floating boathouses shall be moored: (1) To mooring facilities provided
by a commercial dock operator within the designated harbor limits of his
dock; or (2) to the bank of the reservoir outside the designated harbor
limits of commercial boat docks, if the houseboat or boathouse owner is
the owner or lessee of the abutting property at the mooring location (or
the licensee of such owner or lessee) and has requested and obtained
from TVA, pursuant to 1304.205, written approval authorizing mooring at
such location.
In all cases where more than one person owns or leases the abutting
property at a present or proposed mooring location as tenants in common
or in any other sort of cotenancy, TVA interprets the terms ''the owner
or lessee of the abutting property'' and ''such owner or lessee'' in 18
CFR 1304.203(c)(2) and 1304.204(b)(2) as meaning all of the owners of
such abutting property. The owner or owners of only a fractional
interest or of fractional interests totalling less than one in any such
property shall under no circumstances be considered, by virtue of such
fractional interest or interests only, to be the ''owner or lessee'' of
such abutting property for the purposes of 18 CFR 1304.203(c)(2) or
1304.204(b)(2) and, as such, eligible to moor or license others to moor
as provided therein without the consent of the other coowners.
(Sec. 26a of the Tennessee Valley Authority Act of 1933, as amended
(16 U.S.C. 831y-1))
(42 FR 65149, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979, and amended at 48 FR 9639, Mar. 8, 1983)
18 CFR 1304.205 Approval of plans for floating boathouses and
nonnavigable houseboats.
(a) Existing nonnavigable houseboats and all floating boathouses must
be approved pursuant to this subpart and the provisions of Subpart B of
this part.
(b) Persons proposing to moor new floating boathouses shall submit
applications to TVA prior to commencement of construction or mooring
thereof. Applications shall be accompanied by plans showing in
reasonable detail the size and shape of the facility; the kind of
flotation device; the proposed mooring locations thereof; whether a
marine toilet is on the facility; and the name and mailing address of
the owner. TVA shall be kept advised of any changes in the kind of
flotation devices which may be made by the applicant after approval is
granted. Plans described in this section shall be in lieu of the plans
specified in 1304.103(a).
(c) If the proposed mooring location is outside the designated harbor
limits of a commercial boat dock, the application and plans shall be
accompanied by evidence satisfactory to TVA showing that the applicant
is the owner or lessee of the abutting property at the proposed mooring
location, or the licensee of such owner or lessee.
(d) Applications for new floating boathouses will be disapproved if
the plans provide for toilets, living or sleeping quarters, or enclosed
spaces with more than 25 square feet of floor space, not including
walkways around boat wells or mooring slips. Such walkways shall not
exceed 4 feet in width unless, in the sole judgment of the Director, the
size of the well or slip justifies a greater width. A new floating
boathouse or part thereof shall not be deemed ''enclosed'' solely
because of plans providing for the use of wire mesh or similar screening
which leaves the interior of the structure open to the weather, and
nothing contained in this subsection shall be construed as prohibiting
enclosure of the boat well or mooring slip proper. Plans for any new
floating boathouses will also be disapproved if the proposed flotation
device includes metal drums in any form.
(e) Applications for mooring outside designated harbor limits will be
disapproved if TVA determines that such proposed mooring location will
be contrary to the intent of this subpart, of 1304.2, or of any
applicable law. Applications will also be disapproved if marine toilets
not in compliance with 1304.4 are proposed.
(f) Approvals of applications shall contain such conditions as may be
required by law and may contain such other conditions as TVA determines
to be necessary or desirable to carry out the intent of this subpart,
this part or other applicable law. Included, without limitation, among
such conditions are conditions relating to the mooring of houseboats and
floating boathouses at locations outside the designated harbor limits of
commercial boat docks. Strict compliance with all conditions will be
required.
(36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971, as amended
at 42 FR 65149, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.206 Numbering and transfer of approved facilities.
(a) Upon approval of an application concerning a nonnavigable
houseboat or floating boathouse, TVA will assign a number to such
facility. The owner of the facility shall paint such number on, or
attach a facsimile thereof to, a readily visible part of the outside of
the facility in letters not less than three (3) inches high. The
placement of such number shall be consistent with the requirements of
any State or Federal law or regulation concerning numbering of
watercraft.
(b) The transferee of any floating boathouse or nonnavigable
houseboat approved pursuant to this part and which, after transfer,
remains subject to this part, shall promptly report such transfer to
TVA. A facility moored at a location approved pursuant to this part
shall not be moored at a different location without prior approval of
such location by TVA under this subpart, except for transfers of
location to or between mooring facilities provided by commercial dock
operators within the designated harbor limits of their docks.
(36 FR 20424, Oct. 22, 1971; 36 FR 22901, Dec. 2, 1971, as amended
at 42 FR 65149, Dec. 30, 1977. Redesignated at 44 FR 30682, May 29,
1979)
18 CFR 1304.206 PART 1305 -- LAND BETWEEN THE LAKES
18 CFR 1304.206 Subpart A -- Use of Motorized Vehicles
Sec.
1305.1 Motor vehicles generally.
1305.2 Motorcycles.
1305.3 Off-road vehicles.
1305.4 Major off-road vehicle areas.
1305.5 Mini-bike areas at family campgrounds as designated.
1305.6 Enforcement.
Authority: 16 U.S.C. 831-831dd. Sections 1305.1 to 1305.6 also
issued under 42 U.S.C. 4321 and E.O. 11644, 37 FR 2877.
Source: 38 FR 5458, Mar. 1, 1973, unless otherwise noted.
Redesignated at 44 FR 30682, May 29, 1979.
18 CFR 1304.206 Subpart A -- Use of Motorized Vehicles
18 CFR 1305.1 Motor vehicles generally.
All properly licensed motor vehicles may be operated on paved,
graveled, or graded roads unless otherwise posted or gated or
barricaded, and on other roads if specifically authorized in writing by
an authorized Land Between the Lakes official. Driving in woods or
fields or on foottrails or utility rights of way is prohibited, except
as authorized in 1305.3 through 1305.5. Drivers must hold a valid
State operator's license to drive on improved roads. All vehicles must
be equipped with properly functioning mufflers. Maximum speed within
Land Between the Lakes is 35 miles per hour or less if so posted, except
on the Trace and U.S. Highway 68, where a maximum speed of 60 miles per
hour is permitted unless posted for reduced speeds.
18 CFR 1305.2 Motorcycles.
Motorcycles of all types shall be equipped with properly functioning
spark arresters. Safety requirements for motorcycle riders on improved
roads are safety helmets and protective eyewear.
18 CFR 1305.3 Off-road vehicles.
Except for operation as authorized in 1305.1, off-road vehicles,
including trail bikes and mini-bikes, may be operated only within the
posted boundaries of areas designated by TVA for this purpose during
daylight hours, in accordance with posted regulations, and at the sole
risk of the operator. TVA recommends that off-road vehicle riders
follow all safety practices recommended by the American Motorcycle
Association regarding safety helmets, heavy shoes, protective clothing,
and protective shatterproof eyewear. All vehicles shall be equipped
with properly functioning mufflers, and motorcycles with spark
arresters. No vehicles emitting an unusually loud noise may be operated
in such areas. All operation of such vehicles shall be in full
compliance with applicable State laws. If such laws permit operation
within such areas without registration and licensing, any unlicensed
bikes must be transported to the areas.
18 CFR 1305.4 Major off-road vehicle areas.
(a) Off-road vehicles of all kinds, including trail bikes and
mini-bikes, may be operated within the posted boundaries of major
off-road vehicle areas, which include trails, camping space, unloading
ramps, and sanitary facilities. The only area presently so designated
is the Turkey Bay Off-Road Vehicle Area, a 2,500-acre tract reached by a
drive running west off the Trace approximately 2 1/4 miles south of the
U.S. Highway 68 overpass.
(b) Off-road vehicles may be operated in these areas from 8 a.m.
until 30 minutes before sundown. Motors must be off at all other times
except for the purpose of entering or leaving the area.
(c) The areas will not be made available for competitive events
sponsored by any organized riding groups.
(d) All one-way and other directional signs on trails shall be
strictly observed.
(e) Signs designating cemeteries, experimental plantings, and other
portions of these areas as off limits to riders shall be strictly
observed.
(f) All garbage and other debris must be placed in containers
provided.
(g) Riders and campers in the areas shall not harass or otherwise
disturb other persons or wildlife in any way.
18 CFR 1305.5 Mini-bike areas at family campgrounds as designated.
(a) Mini-bikes and small trail bikes may be ridden on marked trails
and within posted boundaries in areas designated for that purpose at
family campgrounds. Such areas are presently designated at the Piney
and Hillman Ferry campgrounds.
(b) These areas are open from 9:30 a.m. until 30 minutes before
sundown.
(c) All bikes must be equipped with a properly functioning
combination muffler and U.S. Forest Service-approved spark arrester.
(d) All one-way and other directional signs on trails shall be
strictly observed.
(e) Reckless operation, horseplay, and any action endangering or
disturbing other users is prohibited.
18 CFR 1305.6 Enforcement.
Persons violating any of the foregoing rules and regulations may be
excluded from Land Between the Lakes or denied use of the areas and
trails designated for operation of off-road vehicles, as deemed
appropriate by authorized officials of Land Between the Lakes.
18 CFR 1305.6 PART 1306 -- RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES
18 CFR 1305.6 Subpart A -- Regulations and Procedures
Sec.
1306.1 Purpose and applicability.
1306.2 Uniform real property acquisition policy.
1306.3 Surrender of possession.
1306.4 Rent after acquisition.
1306.5 Tenants' rights in improvements.
1306.6 Expense of transfer of title and proration of taxes.
Authority: Sec. 213, Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42
U.S.C. 4601) as amended by the Surface Transportation and Uniform
Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 101
Stat. 246-256 (42 U.S.C. 4601 note); 48 Stat. 58, as amended (16
U.S.C. 831-831dd).
18 CFR 1305.6 Subpart A -- Regulations and Procedures
18 CFR 1306.1 Purpose and applicability.
(a) Purpose. The purpose of the regulations and procedures in this
Subpart A is to implement Uniform Relocation Assistance and Real
Property acquisition Policies Act of 1970 (Pub. L. 91-646, 84 Stat. 42
U.S.C. 4601) as amended by the Surface Transportation and Uniform
Relocation Assistance Act of 1987 (Title IV of Pub. L. 100-17, Stat.
246-256, 42 U.S.C. 4601 note) (Uniform Act, as amended).
(b) Applicability. (1) Titles and I and II of the Uniform Act, as
amended, govern relocation assistance by TVA. For TVA program
activities undertaken after April 1, 1989, relocation assistance under
those titles will be governed by implementing regulations set forth in
Subpart A and Subparts C through G of 49 CFR Part 24.
(2) Regulations and procedures for complying with the real property
acquisition provisions of Title III of the Uniform Act, as amended, are
set forth in this part.
(52 FR 48019, Dec. 17, 1987)
18 CFR 1306.2 Uniform real property acquisition policy.
(a) Before negotiations are initiated for acquisition of real
property, the Chief of TVA's Land Branch will cause the property to be
appraised and establish an amount believed to be just compensation
therefor. The appraiser shall afford the owner or his representative an
opportunity to accompany him during his inspection of the property.
(b) When negotiations are initiated to acquire real property, the
owner will be given a written statement of, and summary of the basis
for, the amount estimated as just compensation. The statement will
identify the property and the interest therein to be acquired, including
buildings and other improvements to be acquired as a part of the real
property, the amount of the estimated just compensation, and the basis
therefor. If only a portion of the property is to be acquired, the
statement will include a statement of damages and benefits, if any, to
the remainder.
(38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17,
1987)
18 CFR 1306.3 Surrender of possession.
Possession of real property will not be taken until the owner has
been paid the agreed purchase price or TVA's estimate of just
compensation has been deposited in court in a condemnation proceeding.
To the greatest extent practicable, no person will be required to move
from property acquired by TVA without at least 90 days' written notice
thereof.
(38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17,
1987)
18 CFR 1306.4 Rent after acquisition.
If TVA rents real property acquired by it to the former owner or
former tenant, the amount of rent shall not exceed the fair rental value
on a short-term basis.
(38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17,
1987)
18 CFR 1306.5 Tenants' rights in improvements.
Tenants of real property being acquired by TVA will be paid just
compensation for any improvements owned by them, whether or not they
might have a right to remove such improvements under the terms of their
tenancy. Such payment will be made only upon the condition that all
right, title, and interest of the tenant in such improvements shall be
transferred to TVA and upon the further condition that the owner of the
real property being acquired shall execute a disclaimer of any interest
in said improvements.
(38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17,
1987)
18 CFR 1306.6 Expense of transfer of title and proration of taxes.
In connection with the acquisition of real property by TVA:
(a) TVA will, to the extent it deems fair and reasonable, bear all
expenses incidental to the transfer of title to the United States,
including penalty costs for the prepayment of any valid preexisting
recorded mortgage;
(b) Real property taxes shall be prorated to relieve the seller from
paying taxes which are allocable to a period subsequent to vesting of
title in the United States or the date of possession, whichever is
earlier.
(38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17,
1987)
18 CFR 1306.6 PART 1307 -- NONDISCRIMINATION WITH RESPECT TO HANDICAP
Sec.
1307.1 Definitions.
1307.2 Purpose.
1307.3 Application.
1307.4 Program discrimination.
1307.5 Employment discrimination.
1307.6 Program accessibility.
1307.7 Assurances required.
1307.8 Compliance information.
1307.9 Conduct of investigations.
1307.10 Procedure for effecting compliance.
1307.11 Hearings.
1307.12 Decisions and notices.
1307.13 Effect on other regulations; supervision and coordination.
Authority: TVA Act, 48 State. 58 (1933) as amended, 16 U.S.C.
831-831dd (1976) and sec. 504 of the Rehabilitation Act of 1973, Pub.
L. 93-112, as amended, 29 U.S.C. 794 (1976; Supp. II 1978).
Source: 45 FR 22895, Apr. 4, 1980, unless otherwise noted.
18 CFR 1307.1 Definitions.
As used in this part, the following terms have the stated meanings,
unless the context otherwise requires:
(a) Section 504 means section 504 of the Rehabilitation Act of 1973,
Pub. L. 93-112, as amended, 29 U.S.C. 794.
(b) Recipient means any individual, any State or its political
subdivision, or any instrumentality of either, and any public or private
agency, institution, organization, or other entity to which financial
assistance is extended by TVA directly or through another recipient,
including any successor, assignee, or transferee of a recipient as
hereinafter set forth, but excluding the ultimate beneficiary of the
assistance.
(c) Financial assistance means the grant or loan of money; the
donation of real or personal property; the sale, lease, or license of
real or personal property for a consideration which is nominal or
reduced for the purpose of assisting the recipient; the waiver of
charges which would normally be made, in order to assist the recipient;
the entry into a contract where a purpose is to give financial
assistance to the contracting party; and similar transactions.
(d) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
(e) Federal agency means any department, agency, or instrumentality
of the Government of the United States, other than TVA.
(f) Handicapped person means any individual who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment, as further defined below, except that, as related to
employment, the term handicapped individual does not include any
individual who is an alcoholic or drug abuser whose current use of
alcohol or drugs prevents such individual from performing the duties of
the job in question or whose employment, by reason of such current drug
or alcohol abuse, would constitute a direct threat to property or the
safety of others:
(1) Physical or mental impairment means (i) any physiological
disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following body systems: Neurological;
musculoskeletal; special sense organs; respiratory, including speech
organs; cardiovascular; reproductive; digestive; genitourinary;
hemic and lymphatic; skin; and endocrine; or (ii) any mental or
psychological disorder, such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning
disabilities. The term physical or mental impairment includes, but is
not limited to, such diseases and conditions as orthopedic, visual,
speech, and hearing impairments; cerebral palsy; epilepsy; muscular
dystrophy; multiple sclerosis; cancer; heart disease; diabetes;
mental retardation; emotional illness; and drug addiction and
alcoholism.
(2) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has
been misclassified as having, a physical or mental impairment that
substantially limits one or more major life activities.
(4) Is regarded as having such an impairment means (i) has a physical
or mental impairment that does not substantially limit major life
activities but which is treated by a recipient as constituting such a
limitation; (ii) has a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of others
toward the impairment; or (iii) does not have a physical or mental
impairment as defined in paragraph (f)(1) of this section but is treated
by a recipient as having such an impairment.
(g) Qualified handicapped person means (1) with respect to
employment, a handicapped person (except an alcoholic or drug abuser as
defined in paragraph (f) of this section), who, with reasonable
accommodation, can perform the essential functions of the job in
question and (2) with respect to services, a handicapped person who
meets the essential eligibility requirements for the receipt of such
services.
(h) Historic property means an architecturally, historically, or
culturally significant property listed in or eligible for listing in the
National Register of Historic Places, or a property officially
designated as having architectural, historic, or cultural significance
under a statute of the appropriate State or local governmental body.
(i) Building alterations means those changes to existing conditions
and equipment of a building which do not involve any structural changes,
but which typically improve and upgrade a building, such as site
improvements and alterations to stairways, doors, toilets or elevators.
(j) Structural changes shall mean those changes which alter the
structure of a building, including but not limited to its load bearing
walls and all types of post and beam systems in wood, steel, iron or
concrete.
18 CFR 1307.2 Purpose.
The purpose of this part is to effectuate section 504 to the end that
no otherwise qualified handicapped individual shall, solely by reason of
his or her handicap, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any program or
activity receiving financial assistance from TVA.
18 CFR 1307.3 Application.
This part applies to any program in which financial assistance is
provided by TVA, except that this part does not apply to any (a) TVA
procurement contracts, contracts with other Federal agencies, or
contracts of insurance or guaranty, (b) money paid, property
transferred, or other assistance extended to a recipient under any
program before the effective date of this part, or (c) assistance to any
individual or entity which is the ultimate beneficiary under any such
program. Nothing in paragraph (b) of this section exempts any recipient
of financial assistance under a contract in effect on the effective date
of this part from compliance with this part.
18 CFR 1307.4 Program discrimination.
(a) General. No qualified handicapped person, shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity to which this part applies.
(b) Specific discriminatory actions. (1) A recipient under any
program to which this part applies shall not, directly or through
contractual, licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or services available
under the program;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others under the program;
(iii) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others under the program;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others, unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others under the program;
(v) Aid or perpetuate discrimination against a qualified handicapped
person by providing significant assistance to an agency, organization,
or entity that discriminates on the basis of handicap in providing any
aid, benefit, or service to beneficiaries of the recipient's program;
(vi) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards with respect to
the program; or
(vii) Otherwise limit a qualified handicapped person in the enjoyment
under the program of any right, privilege, advantage, or opportunity
enjoyed by others under the program.
(2) A recipient shall not deny a qualified handicapped person the
opportunity to participate under the program in activities that are not
separate or different, despite the existence of permissibly separate or
different activities.
(3) A recipient shall not, directly or through contractual or other
arrangements, utilize criteria or methods of administration (i) that
have the effect of subjecting qualified handicapped persons to
discrimination on the basis of handicap, (ii) that have the purpose or
effect of defeating or substantially impairing accomplishment of the
objectives of the program with respect to handicapped persons, or (iii)
that perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control.
(4) A recipient shall not, in determining the site or location of a
facility under the program, make selections (i) that have the effect of
excluding handicapped persons from, denying them the benefits of, or
otherwise subjecting them to discrimination under the program, or (ii)
that have the purpose or effect of defeating or substantially impairing
the accomplishment of the objectives of the program or activity with
respect to handicapped persons.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or executive order to a different
class of handicapped persons is not prohibited by this part.
(d) Recipients shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons. A recipient who wishes to establish a policy of separate
programs or different treatment for handicapped and nonhandicapped
persons shall request and receive written approval from TVA before
instituting such policy or undertaking any such separate treatment.
(e) Recipients shall take appropriate steps to ensure that
communications to their applicants, employees, and beneficiaries are
available to such persons with impaired vision and hearing.
18 CFR 1307.5 Employment discrimination.
(a) General. No qualified handicapped person shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity subject to this part.
(b) Specific discriminatory actions. With respect to a program or
activity subject to this part, a recipient shall not limit, segregate,
or classify applicants or employees in any way that adversely affects
their opportunities or status because of handicap.
(c) A recipient shall make all decisions concerning employment under
any program or activity subject to this part in a manner which ensures
that discrimination on the basis of handicap does not occur, including
the following activities:
(1) Recruitment, advertising, and processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or not
administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(d) A recipient shall not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this part,
including relationships with employment and referral agencies, with
labor unions, with organizations providing or administering fringe
benefits to employees of the recipient, and with organizations providing
training and apprenticeship programs.
(e) Reasonable accommodation. (1) A recipient shall make reasonable
accommodation to the known physical or mental limitations of an
otherwise qualified handicapped applicant or employee unless the
recipient can demonstrate that the accommodation would impose an undue
hardship on the operation of the program or activity subject to this
part. Reasonable accommodation may include:
(i) Making facilities used by employees readily accessible to and
usable by handicapped persons; and
(ii) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
readers or interpreters, or other similar actions.
(2) In determining whether an accommodation would impose an undue
hardship on the operation of a recipient's program or activity under
this paragraph factors to be considered include but are not limited to:
(i) The nature and cost of the accommodation needed, and its effect,
if any, on the recipient's programs.
(ii) The kind of operation conducted by the recipient, including the
composition and structure of the recipient's workforce; and
(iii) The overall size of the recipient's program or activity with
respect to number of employees, number and type of facilities, and size
of budget.
(3) It is not an undue hardship with respect to a qualified
handicapped employee or applicant if the sole basis for the claim of
hardship is the need to make an accommodation to the physical or mental
limitations of the otherwise qualified employee or applicant and the
accommodation is deemed by TVA to be reasonable.
(f) Employment criteria. A recipient shall not use employment tests
or criteria that discriminate against handicapped persons and shall
ensure that employment tests are adapted for use by persons who have
handicaps that impair sensory, manual, or speaking skills.
(g) Preemployment inquiries. (1) A recipient shall not conduct a
preemployment medical examination or make a preemployment inquiry as to
whether an applicant is a handicapped person or as to the nature or
severity of a handicap except as set out in this paragraph (g).
(2) A recipient may make a preemployment inquiry into an applicant's
ability to perform job-related functions.
(3) When a recipient is taking remedial action to correct the effects
of past discrimination, taking voluntary action to overcome the effects
of conditions that resulted in limited participation in its TVA-assisted
program or activity or is taking affirmative action pursuant to section
503 of the Rehabilitation Act of 1973, the recipient may invite
applicants for employment to indicate whether and to what extent they
are handicapped: Provided, That the recipient states clearly on any
written questionnaire used for this purpose, or makes clear orally if no
written questionnaire is so used, that:
(i) The information requested is intended for use solely in
connection with such remedial, voluntary or affirmative action efforts;
(ii) The information is being requested on a voluntary basis and it
will be kept confidential as provided in paragraph (g)(4) of this
section;
(iii) Refusal to provide the information will not subject the
applicant or employee to any adverse treatment; and
(iv) The information will be used only in accordance with this part.
(4) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty:
Provided, That:
(i) All entering employees are subjected to such an examination
regardless of handicap; and
(ii) The results of such an examination are used only in accordance
with the requirements of this part.
(5) Information obtained in accordance with this section as to the
medical condition or history of an employee or applicant shall be
collected and maintained on separate forms that shall be accorded
confidentiality as medical records, except that:
(i) Supervisors and managers may be informed regarding restrictions
on the work or duties of handicapped persons and regarding necessary
accommodations;
(ii) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(iii) TVA officials investigating compliance with section 504 shall
be provided information which they deem relevant upon request.
18 CFR 1307.6 Program accessibility.
(a) General. No qualified handicapped person shall, because
facilities are inaccessible to or unusable by handicapped persons, be
denied the benefits of, be excluded from participation in, or otherwise
be subjected to discrimination under any program subject to this part.
(b) Existing facilities. (1) Each program subject to this part shall
be operated so that, viewed in its entirety, it is readily accessible to
and usable by qualified handicapped persons. This paragraph does not
necessarily require a recipient to make each of its existing facilities
or every part of an existing facility accessible to and usable by
handicapped persons. A recipient is not required to make building
alterations or structural changes if other methods are effective in
achieving program accessibility. Such compliance methods may include
(subject to the provisions of 1307.4 and 1307.5), reassigning programs
or activities to accessible locations within a facility; providing
assistance to handicapped persons into or through an otherwise
inaccessible facility; delivering programs or activities at other
alternative sites which are accessible and are operated or available for
use by the recipient; or other methods which comply with the intent of
this paragraph.
(2) This paragraph governs the timing of development of transition
plans and the completion of necessary building alterations and
structural changes to existing facilities, including historic property
covered by paragraph (c) of this section. If building alterations or
structural changes will be necessary to make covered programs or
activities in existing facilities of a recipient accessible, the
recipient shall develop a transition plan setting forth the steps
necessary to complete the alterations or changes in accordance with such
standards as TVA may specify in the contract or agreement, and shall
have the plan approved by TVA. If the financial assistance from TVA is
expected to last for less than three years, the contract or agreement
shall specify the date by which the transition plan shall be developed
and approved. If the financial assistance from TVA is expected to last
for at least three years, the transition plan shall be developed and
submitted to TVA within six months from the effective date of the
contract or agreement, subject to extension by TVA for an additional six
month period, for good cause shown to it. A transition plan shall:
(i) Be developed with the assistance of interested persons or
organizations representing handicapped persons;
(ii) Be available for public inspection after approval by TVA (or at
any earlier time required by state or local law applicable to the
recipient);
(iii) Identify the official responsible for implementation of the
approved plan; and
(iv) Specify the date by which the required alterations or changes
shall be completed, which shall be as soon as practicable and in no
event later than three years after the effective date that financial
assistance is extended by TVA.
(3) Alterations to existing facilities shall, to the maximum extent
feasible, be designed and constructed to be readily accessible to and
usable by handicapped persons.
(c) Historic property. If a recipient's program or activity uses an
existing facility which is an historic property, the recipient shall
endeavor to assure compliance with paragraph (b)(1) of this section by
compliance methods which do not alter the historic character or
architectural integrity of the historic property. The recipient must
determine that program accessibility cannot be accomplished by such
alternative methods before considering building alterations as a
compliance method. To the maximum extent possible any building
alterations determined to be necessary shall be undertaken so as not to
alter or destroy architecturally significant elements or features. A
recipient may determine that structural changes are necessary to
accomplish program accessibility only if the recipient has determined
that accessibility cannot feasibly be accomplished by any of the other
foregoing methods. To the maximum extent possible, any structural
changes determined to be necessary shall be undertaken so as not to
alter or destroy architecturally significant elements or features.
(d) New construction. (1) New facilities required under a program
subject to this part shall be designed and constructed to be readily
accessible to and usable by handicapped persons.
(2) Effective as of November 4, 1988, design, construction, or
alteration of buildings in conformance with Sections 3-8 of the Uniform
Federal Accessibility Standards (UFAS) (41 CFR Subpart 101-19.6 app. A)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(3) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of physically handicapped persons.
(4) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
(45 FR 22895, Apr. 4, 1980, as amended at 53 FR 39083, Oct. 5, 1988)
18 CFR 1307.7 Assurances required.
(a) TVA contributes financial assistance only under agreements which
contain a provision which specifically requires compliance with this
part and compliance with such standards for construction and alteration
of facilities as TVA may provide. If the financial assistance involves
the furnishing of real property, the agreement shall obligate the
recipient, or the transferee in the case of a subsequent transfer, for
the period during which the real property is used for a purpose for
which the financial assistance is extended or for another purpose
involving the provision of similar services or benefits. Where the
financial assistance involves the furnishing of personal property, the
agreement shall obligate the recipient during the period for which
ownership or possession of the property is retained. In all other cases
the agreement shall obligate the recipient for the period during which
financial assistance is extended pursuant to the agreement. TVA shall
specify the form of the foregoing agreement, and the extent to which an
agreement shall be applicable to subcontractors, transferees, successors
in interest, and other participants in the program.
(b) In the case of real property, structures or improvements thereon,
or interests therein, acquired through a program of TVA financial
assistance, or in the case where financial assistance was provided in
the form of a transfer by TVA of real property or interest therein, the
instrument effecting or recording the transfer of title shall contain a
convenant running with the land assuring compliance with this part and
the guidelines contained herein for the period during which the real
property is used for a purpose for which the TVA financial assistance is
extended or for another purpose involving the provision of similar
services or benefits. Where no transfer of property is involved, but
property is improved under a program of TVA financial assistance, the
recipient shall agree to include such a covenant in any subsequent
transfer of such property. Where the property is obtained by transfer
from TVA, the covenant against discrimination may also include a
condition coupled with a right to be reserved by TVA to revert title to
the property in the event of a breach of the covenant where, in the
discretion of TVA, such a condition and right of reverter is appropriate
to the program under which the real property is obtained and to the
nature of the grant and the grantee. In such event, if a transferee of
real property proposes to mortgage or otherwise encumber the real
property as security for financing construction of new, or improvement
of existing, facilities on such property for the purposes for which the
property was transferred, TVA may agree, upon request of the transferee
and if necessary to accomplish such financing, and upon such conditions
as it deems appropriate, to forbear the exercise of such right to revert
title for so long as the lien of such mortgage or other encumbrance
remains effective.
18 CFR 1307.8 Compliance information.
(a) Cooperation and assistance. TVA shall to the fullest extent
practicable seek the cooperation of recipients in obtaining compliance
with this part and shall provide assistance and guidance to recipients
to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to TVA timely, complete and accurate compliance reports at such
times, and in such form and containing such information, as TVA may
determine to be necessary to enable it to ascertain whether the
recipient has complied or is complying with this part. In the case of
any program under which a primary recipient extends financial assistance
to any other recipient, such other recipient shall also submit such
compliance reports to the primary recipient as may be necessary to
enable the primary recipient to carry out its obligations under this
part.
(c) Access to sources of information. Each recipient shall permit
access by TVA during normal business hours to such of its books,
records, accounts, and other sources of information, and its facilities,
as TVA may require to ascertain compliance with this part. Where any
information required of a recipient is in the exclusive possession of
any other agency, institution or person and this agency, institution or
person shall fail or refuse to furnish this information, the recipient
shall so certify in its report and set forth the efforts it has made to
obtain the information.
(d) Information to employees, beneficiaries and participants. Each
recipient shall make available to employees, participants,
beneficiaries, and other interested persons such information regarding
the provisions of this part and its applicability to the program under
which the recipient receives financial assistance, and shall make such
information available to them in such manner, as TVA finds necessary to
apprise such persons of the protections against discrimination assured
them by section 504 and this part.
18 CFR 1307.9 Conduct of investigations.
(a) Periodic compliance reviews. TVA shall from time to time review
the practices of recipients to determine whether they are complying with
this part.
(b) Complaints. Any individual who claims (individually or on behalf
of any specific class of individuals) to have been subjected to
discrimination prohibited by this part may, personally or by a
representative, file with TVA a written complaint. A complaint must be
filed not later than ninety (90) days from the date of the alleged
discrimination, unless the time for filing is extended by TVA.
(c) Investigations. TVA will make a prompt investigation whenever a
compliance review, report, complaint, or any other information indicates
a possible failure to comply with this part. The investigation shall
include, where appropriate, a review of the pertinent practices and
policies of the recipient, the circumstances under which the possible
noncompliance with this part occurred, and other factors relevant to a
determination as to whether the recipient has failed to comply with this
part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, TVA will so inform the recipient and the matter will be resolved
by informal means whenever possible. If TVA determines that the matter
cannot be resolved by informal means, action will be taken as provided
for in 1307.10.
(2) If an investigation does not warrant action pursuant to paragraph
(d) (1) of this section, TVA will so inform the recipient and the
complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 504 or this part, or because the individual
had made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall be kept confidential except to the extent
necessary to carry out the purposes of this part, including the conduct
of any investigation, hearing, or judicial proceeding arising
thereunder.
18 CFR 1307.10 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue financial assistance or by any other means
authorized by law. Such other means may include, but are not to be
limited to, (1) a reference to the Department of Justice with a
recommendation that appropriate proceedings be brought to enforce any
rights of the United States under any law of the United States, (2)
institution of appropriate proceedings by TVA to enforce the provisions
of the agreement of financial assistance or of any deed or instrument
relating thereto, and (3) any applicable proceeding under State or local
law.
(b) Noncompliance with 1307.7. If any entity requesting financial
assistance from TVA declines to furnish the assurance required under
1307.7, or otherwise fails or refuses to comply with a requirement
imposed by or pursuant to that section, financial assistance may be
refused in accordance with the procedures of paragraph (c) of this
section; and for such purposes, the term ''recipient'' includes one who
has been denied financial assistance. TVA shall not be required to
provide assistance in such a case during the pendency of the
administrative proceedings under such paragraph except that TVA shall
continue assistance during the pendency of such proceedings where such
assistance was due and payable pursuant to an agreement therefor entered
into with TVA prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue financial
assistance. No order suspending, terminating or refusing to grant or
continue financial assistance shall become effective until (1) TVA has
advised the recipient of the failure to comply and has determined that
compliance cannot be secured by voluntary means, (2) there has been an
express finding on the record, after opportunity for hearing, of a
failure by the recipient to comply with a requirement imposed by or
pursuant to this part, including any act of discrimination on the basis
of handicap in violation of this part, and (3) the action has been
approved by the TVA Board pursuant to 1307.12. Any action to suspend or
terminate or to refuse to grant or to continue financial assistance
shall be limited to the particular recipient as to whom such a finding
had been made and shall be limited in its effect to the particular
program, or part thereof, in which such noncompliance had been so found.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until (1) TVA has
determined that compliance cannot be secured by voluntary means, (2) the
recipient or other person has been notified of its failure to comply and
of the action to be taken to effect compliance, and (3) the expiration
of at least ten (10) days from the mailing of such notice to the
recipient or other person. During this period of at least ten (10) days
additional efforts will be made to persuade the recipient or other
person to comply with this part and to take such corrective action as
may be appropriate.
18 CFR 1307.11 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by 1307.10, reasonable notice shall be given by registered
or certified mail, return receipt requested, to the affected recipient.
This notice shall advise the recipient of the action proposed to be
taken, the specific provision under which the proposed action against it
is to be taken, and the matters of fact or law asserted as the basis for
this action, and shall either (1) fix a date not less than twenty (20)
days after the date of such notice within which the recipient may
request of TVA that the matter be scheduled for hearing or (2) advise
the recipient that the matter in question has been set down for hearing
at a stated time and place. The time and place so fixed shall be
reasonable and shall be subject to change for cause. The complainant,
if any, shall be advised of the time and place of the hearing. A
recipient may waive a hearing and submit written information and
argument for the record. The failure of a recipient to request a
hearing under this subsection or to appear at a hearing for which a date
has been set shall be deemed to be a waiver of the right to a hearing
and a consent to the making of a decision on the basis of such
information as is available.
(b) Time and place of hearing. Hearings shall be held at the time
and place fixed by TVA unless it determines that the convenience of the
recipient requires that another place be selected. Hearings shall be
held before the TVA Board or before a ''hearing officer'' who shall be
either a member of the TVA Board or, at the discretion of the Board, a
person designated by the Board who shall not be employed in or under the
TVA division through or under which the financial assistance has been
extended by TVA to the recipient involved in the hearing.
(c) Right to counsel. In all proceedings under this section, the
recipient and TVA shall have the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in accordance with
such rules of procedure as are proper (and not inconsistent with this
section) relating to the conduct of the hearing, giving of notices
subsequent to those provided for in paragraph (a) of this section,
taking of testimony, exhibits, arguments and briefs, requests for
findings, and other related matters. Both TVA and the recipient shall
be entitled to introduce all relevant evidence on the issues as stated
in the notice for hearing or as determined by the officer conducting the
hearing at the outset of or during the hearing.
(2) Technical rules of evidence will not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. That officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with this part and the regulations of one or more other
Federal agencies issued under section 504, the TVA Board may, by
agreement with such other agency, provide for the conduct of
consolidated or joint hearings, and for the application to such hearings
of rules of procedure not inconsistent with this part. Final decisions
in such cases, insofar as this part is concerned, shall be made in
accordance with 1307.12.
18 CFR 1307.12 Decisions and notices.
(a) Decision by a member of the TVA Board or a hearing officer. If
the hearing is held before a ''hearing officer'' as defined in
1307.11(b), that hearing officer shall either make an initial decision,
if so authorized, or certify the entire record including recommended
findings and proposed decision to the TVA Board for a final decision. A
copy of such initial decision or certification shall be mailed to the
recipient. Where the initial decision is made by a hearing officer, the
recipient may file with the TVA Board exceptions to the initial
decision, which shall include a statement of reasons therefor. Such
exceptions shall be filed within thirty (30) days of the mailing of the
notice of initial decision. In the absence of exceptions, the TVA Board
may on its own motion within forty-five (45) days after the initial
decision serve on the recipient a notice that it will review the
decision. Upon the filing of such exceptions or of such notice of
review, the TVA Board shall review the initial decision and issue its
own decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review, the initial decision shall
constitute the final decision of the TVA Board.
(b) Decisions on record or review by the TVA Board. Whenever a
record is certified to the TVA Board for decision or it reviews the
decision of a hearing officer pursuant to paragraph (a) of this section,
or whenever the TVA Board conducts the hearing, the recipient shall be
given reasonable opportunity to file with the Board briefs or other
written statements of its contentions, and a copy of the final decision
of the Board shall be given in writing to the recipient and to the
complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived, a decision shall be made by the TVA Board on the
record and a copy of such decision shall be given to the recipient, and
to the complainant, if any.
(d) Rulings required. Each decision shall set forth a ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the recipient has failed to comply.
(e) Approval by TVA Board. Any final decision (other than a decision
by the TVA Board) which provides for the suspension or termination of,
or the refusal to grant or continue financial assistance, or the
imposition of any other sanction available under this part or section
504 shall promptly be transmitted to the TVA Board which may approve
such decision, vacate it, or remit or mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue financial assistance,
in whole or in part, under the program involved, and may contain such
terms, conditions, and other provisions as are consistent with and will
effectuate the purposes of section 504 and this part, including
provisions designed to assure that no financial assistance will
thereafter be extended under such program to the recipient determined by
such decision to have failed to comply with this part, unless and until
it corrects its noncompliance and satisfies TVA that it will fully
comply with this part.
(g) Posttermination proceedings. (1) A recipient adversely affected
by an order issued under paragraph (f) of this section shall be restored
to full eligibility to receive financial assistance upon satisfaction of
the terms and conditions for such eligibility contained in that order,
or if the recipient otherwise comes into compliance with this part and
provides reasonable assurance of future full compliance with this part.
(2) Any recipient adversely affected by an order entered pursuant to
paragraph (f) of this section may at any time request that TVA fully
restore the recipient's eligibility to receive financial assistance.
Any such request shall be supported by information showing that the
recipient has met the requirements of paragraph (g)(1) of this section.
If TVA determines that those requirements have been satisfied, it shall
restore such eligibility.
(3) If TVA denies any such request, the recipient may submit a
request for a hearing in writing, specifying its reasons for believing
TVA to have been in error. The recipient shall thereupon be given an
expeditious hearing, with a decision on the record, in accordance with
rules of procedure issued by TVA. The recipient, upon proving at such a
hearing that the requirements of paragraph (g)(1) of this section are
satisfied, will be restored to such eligibility. While proceedings
under this paragraph are pending, the sanctions imposed by the order
issued under paragraph (f) of this section shall remain in effect.
18 CFR 1307.13 Effect on other regulations; supervision and
coordination.
(a) Effect on other regulations. Nothing in this part shall be
deemed to supersede or affect any of the following (including future
amendments thereof): (1) Regulations by TVA and other Federal agencies
issued with respect to section 503 of the Rehabilitation Act of 1973, or
(2) any other regulations or instructions, insofar as they prohibit
discrimination on the ground of handicap in any program or situation to
which this part is inapplicable, or which prohibit discrimination on any
other ground.
(b) Supervison and coordination. TVA may from time to time assign to
officials of other Federal agencies, with the consent of such agencies,
responsibilities in connection with the effectuation of the purposes of
section 504 and this part (other than responsibility for final decision
as provided in 1307.12), including the achievement of effective
coordination and maximum uniformity within the Executive Branch of the
government in the application of section 504 and this part to similar
programs and in similar situations. Any action taken, determination
made, or requirement imposed by an official of another federal agency
acting pursuant to an assignment of responsibility under this part shall
have the same effect as though such action had been taken by TVA.
18 CFR 1307.13 PART 1308 -- CONTRACT DISPUTES
18 CFR 1307.13 Subpart A -- General Matters
Sec.
1308.1 Purpose and organization.
1308.2 Definitions.
1308.3 Exclusions.
1308.4 Coverage of certain excluded Contractors.
1308.5 Interest.
1308.6 Fraudulent claims.
1308.7 Effective date.
18 CFR 1307.13 Subpart B -- Contracting Officers
1308.11 Contractor's request for relief.
1308.12 Submission and decision of Contractor's claim.
1308.13 Time limits for decisions.
1308.14 Requests for relief by TVA.
1308.15 Finality of decisions.
1308.16 Decisions involving fraudulent claims.
1308.17 Failure to render timely decision.
18 CFR 1307.13 Subpart C -- Board of Contract Appeals
1308.21 Jurisdiction and organization.
1308.22 Representation.
1308.23 Finality of decisions.
1308.24 Undue delay in Contracting Officer's decision.
1308.25 Stay of appeal for Contracting Officer's decision.
1308.26 Appeals.
1308.27 Appeal files.
18 CFR 1307.13 Subpart D -- Prehearing and Hearing Procedures
1308.31 Filing and service.
1308.32 Prehearing procedures.
1308.33 Hearings.
1308.34 Record on appeal.
1308.35 Small claims procedure.
1308.36 Accelerated appeal procedure.
1308.37 Decisions.
1308.38 Reconsideration.
1308.39 Briefs and motions.
18 CFR 1307.13 Subpart E -- Subpoenas
1308.51 Form.
1308.52 Issuance.
1308.53 Service.
1308.54 Requests to quash or modify.
1308.55 Penalties.
Authority: Tennessee Valley Authority Act of 1933, as amended, 16
U.S.C. 831-831dd; Contract Disputes Act of 1978, 92 Stat. 2383-2391.
Source: 44 FR 29648, May 22, 1979, unless otherwise noted.
Redesignated at 44 FR 30682, May 29, 1979.
18 CFR 1307.13 Subpart A -- General Matters
18 CFR 1308.1 Purpose and organization.
The regulations in this part implement the Contract Disputes Act of
1978 as it relates to TVA. This part consists of 5 subparts. Subpart A
deals with matters applicable throughout the part, incuding definitions.
Subpart B deals with Contracting Officers' decisions. Subpart C deals
with general matters concerning the TVA Board of Contract Appeals.
Subpart D deals with hearing and prehearing procedures, including
discovery. Subpart E deals with subpoenas.
18 CFR 1308.2 Definitions.
For the purposes of this part, unless otherwise provided:
(a) The term Act means the Contract Disputes Act of 1978, 92 Stat.
2383-91.
(b) The term Board means the TVA Board of Contract Appeals.
(c) The term claim means a written demand by a Contractor, in
compliance with this paragraph, for a decision by a Contracting Officer
under a disputes clause. A claim must:
(1) State the amount of monetary relief, or the kind of nonmonetary
relief, sought, and identify the contract provision relied upon;
(2) Include sufficient supporting data to permit the Contracting
Officer to decide the claim, or provide appropriate reference to
previously submitted data;
(3) If monetary relief totalling more than $50,000 is involved,
include a signed certification by the Contractor that the claim is made
in good faith, that the supporting data are accurate and complete to the
best of the Contractor's knowledge and belief, and that the amount
requested accurately reflects the contract adjustment for which the
Contractor believes TVA is liable;
(4) Be signed by the Contractor, or on its behalf if the Contractor
is other than an individual. If signed on a Contractor's behalf, the
claim must include evidence of the authority of the individual so
signing it, and of the individual signing any certification required by
this paragraph, unless such authority appears in the contract or
contract file.
The Contracting Officer has no authority to waive any of the
requirements of this paragraph.
(d) The term contract means an agreement in writing entered into by
TVA for:
(1) The procurement of property, other than real property in being;
(2) The procurement of nonpersonal services;
(3) The procurement of construction, alteration, repair or
maintenance of real property; or
(4) The disposal of personal property. The term ''contract'' does
not include any TVA contract for the sale of fertilizer or electric
power, or any TVA contract related to the conduct or operation of the
electric power system.
(e) The term Contracting Officer means TVA's Director of Purchasing,
or duly authorized representative acting within the limits of the
representative's authority. The TVA Purchasing Agent who administers a
contract for TVA is designated as the duly authorized representative of
the Director of Purchasing to act as Contracting Officer for all
purposes in the administration of the contract (including, without
limitation, decision of claims under the disputes clause). Such a
designation continues until it is revoked or modified by written notice
to the Contractor and the Purchasing Agent from TVA's Director of
Purchasing.
(f) The term Contractor means a party to a TVA contract which
contains a disputes clause. The term ''Contractor'' does not include
TVA.
(g) The term disputes clause means a clause in a TVA contract
requiring that a contract dispute be resolved through a TVA-conducted
administrative process. It does not include, for example, arbitration
provisions, or provisions specifying an independent third party to
decide certain kinds of matters or special mechanisms to establish
prices or price adjustments in contracts.
(h) The term Hearing Officer means a member of the Board who has been
designated to hear and determine a particular matter pending before the
Board.
(i) The term TVA means the Tennessee Valley Authority.
(j) A term defined s in a contract subject to this part shall have
the meaning given it in the contract.
18 CFR 1308.3 Exclusions.
(a) This part does not apply to any TVA contract which does not
contain a disputes clause.
(b) Except as otherwise specifically provided, this part does not
apply to any TVA contract entered into prior to March 1, 1979, or to any
dispute relating to such a contract.
18 CFR 1308.4 Coverage of certain excluded Contractors.
(a) A Contractor whose contract is excluded from this part under
1308.3(b) may elect to proceed under this part and the Act with respect
to any dispute pending before a Contracting Officer on March 1, 1979, or
initiated thereafter. If the disputes clause in the contract is not an
''all disputes'' clause (see Patton Wrecking & Dem. Co. v. Tennessee
Valley Authority, 465 F.2d 1073 (5th Cir. 1972)), a Contractor's
election under this section shall cause the provisions of the first two
sentences of section 6(a) of the Act to apply to the contract, and such
an election shall be irrevocable.
(b) A Contractor makes an election under paragraph (a) of this
section by giving written notice to the Contracting Officer stating that
the Contractor elects to proceed with the dispute under the Act. For
disputes pending on March 1, 1979, the notice shall be actually received
by the Contracting Officer within 30 days after the Contractor receives
the Contracting Officer's decision. For disputes initiated thereafter,
the notice shall be included in the document first requesting a decision
by the Contracting Officer.
18 CFR 1308.5 Interest.
TVA shall pay a Contractor interest on the amount found to be due on
a claim:
(a) From the date payment is due under the contract or the
Contracting Officer receives the claim, whichever is later, until TVA
makes payment;
(b) At the rate payable pursuant to section 12 of the Act on the date
from which interest runs pursuant to paragraph (a) of this section.
18 CFR 1308.6 Fraudulent claims.
(a) If a Contractor is unable to support any part of a claim and it
is determined that such inability is attributable to the Contractor's
misrepresentation of fact or fraud, the Contractor shall be liable to
TVA, as set out in section 5 of the Act, for:
(1) An amount equal to the unsupported part of the claim; plus
(2) All TVA's costs attributable to reviewing that part of the claim.
(b) The term ''misrepresentation of fact'' has the meaning given it
in section 2(7) of the Act.
(c) Prior to TVA's filing suit for amounts due under this section,
TVA shall provide the Contractor with a copy of any opinion under
1308.16 or 1308.37(b), and shall request the Contractor to pay
voluntarily the amount TVA asserts is due to it.
(d) A determination by TVA that fraud or misrepresentation of the
fact has been committed is not subject to decision under a disputes
clause.
(e) The provisions of this section are in addition to whatever
penalties or remedies may otherwise be provided by law.
18 CFR 1308.7 Effective date.
Subject to 1308.3(a), this part applies to any TVA contract having
an effective date on or after March 1, 1979.
18 CFR 1308.7 Subpart B -- Contracting Officers
18 CFR 1308.11 Contractor's request for relief.
Any request for relief which a Contractor believes is due under a
contract shall be submitted to the Contracting Officer in writing, in
accordance with the terms of the contract, including applicable time
limits.
18 CFR 1308.12 Submission and decision of Contractor's claim.
(a) If Contractor and TVA are unable to resolve Contractor's request
for relief by agreement within a reasonable time, Contractor may submit
a claim to the Contracting Officer.
(b) The Contracting Officer shall issue a decision to the Contractor
on a submitted claim in conformity with the contract's disputes clause.
Specific findings of fact are not required, but may be made. Such
findings are not binding in any subsequent proceeding except as provided
in 1308.15. The decision shall:
(1) Be in writing;
(2) State the reasons for the decision reached;
(3) Include information about the Contractor's rights of appeal under
sections 7 and 10 of the Act (including time limits); and
(4) Notify the Contractor, as appropriate, of the special procedures
available under 1308.35 and 1308.36 at the Contractor's election. A
copy of the provisions of this part shall be furnished with the
decision.
18 CFR 1308.13 Time limits for decisions.
(a) If a submitted claim involves $50,000 or less, the Contracting
Officer shall issue the decision within 60 days from actual receipt of
the claim. If a submitted claim involves more than $50,000, the
Contracting Officer within 60 days from actual receipt shall either
issue a decision or notify the Contractor of the date by which a
decision shall be rendered, which shall be within a reasonable time.
The Contracting Officer shall not be deemed to be in ''actual receipt''
of a claim until the claim meets all requirements of 1308.2(c).
(b) The Contracting Officer shall issue a decision within any time
limits set by an order under 1308.24. If a Hearing Officer grants a
stay of an appeal pursuant to 1308.25, the Contracting Officer shall
issue a decision within any time limits specified by the stay order, or
within a reasonable time after receipt of the stay, if it sets no time
limits.
(c) As used in this subpart, the reasonableness of a time period
depends on the amount or kind of relief involved and complexity of the
issues raised, the adequacy of the Contractor's supporting data,
contractual requirements for auditing of Contractor's cost or other
data, and other relevant factors.
18 CFR 1308.14 Request for relief by TVA.
When TVA believes it is due relief under a contract, the Contracting
Officer shall make a request for relief against the Contractor, and
shall attempt to resolve the request by agreement. If agreement cannot
be reached within a reasonable time, the Contracting Officer shall issue
a decision which complies with the requirements of 1308.12(b).
18 CFR 1308.15 Finality of decisions.
A decision by a Contracting Officer under the disputes clause of a
contract subject to this part is final and conclusive and not subject to
review by any forum, tribunal, or Government agency unless an appeal or
suit is timely commenced under this part or section 10(a) (2) and (3) of
the Act.
18 CFR 1308.16 Decisions involving fraudulent claims.
If a Contracting Officer denies any part of a Contractor's claim for
lack of support, and the Contracting Officer is of the opinion that the
Contractor's inability to support that part of the claim is within
1308.6 and section 5 of the Act, the Contracting Officer's decision
shall not state that opinion, but, contemporaneously with the decision,
the Contracting Officer shall separately notify TVA's General Counsel of
that opinion and the reasons therefor.
18 CFR 1308.17 Failure to render timely decision.
Any failure by Contracting Officer to issue a decision on a submitted
claim within the period required or permitted by 1308.13, will be
deemed to be a decision by the Contracting Officer denying the claim and
will authorize the commencement of an appeal on the claim under this
part, or a suit on the claim as provided in section 10(a)(2) of the Act.
If no appeal or suit pursuant to this section has been commenced at the
time the Contracting Officer issues a decision, the right to sue or
appeal and the time limits therefor shall be determined as otherwise
provided in this part and the Act, and this section shall not authorize
an appeal or suit from the decision.
18 CFR 1308.17 Subpart C -- Board of Contract Appeals
18 CFR 1308.21 Jurisdiction and organization.
(a) The Board shall consider and determine timely appeals filed by
Contractors from decisions of TVA Contracting Officers pursuant to a
disputes clause.
(b) The Board shall consist of an indeterminate number of members,
who shall serve on a part-time basis. The members of the Board shall
all be attorneys at law duly licensed by any state, commonwealth,
territory, or the District of Columbia. One of the members of the Board
shall be designated as ''Chairman'' pursuant to section 8(b)(2) of the
Act.
(c) Each appeal or other matter before the Board shall normally be
assigned to a single Hearing Officer, to be designated by the Chairman.
The Chairman may act as a Hearing Officer, and shall notify the
Contractor and TVA of the name and mailing address of the person
designated as Hearing Officer.
(d) If a member to whom an appeal has been assigned cannot perform in
a timely manner the duties of Hearing Officer, because of unavailability
or incapacity which would in the Chairman's judgment affect the
expeditious and timely resolution of the appeal, or for any other reason
deemed sufficient by the Chairman, the Chairman may take any action
deemed appropriate to effectuate the disposition of the appeal and the
rights of the parties under this part. The kind of action taken, and
the manner thereof, shall be within the discretion of the Chairman, and
may include, but is not limited to, action on pending motions,
discovery, issuance of or ruling on objections to subpoenas, and
reassignment of an appeal in whole or in part.
18 CFR 1308.22 Representation.
(a) In any appeal to the Board, a Contractor may be represented by an
attorney at law duly licensed by any state, commonwealth, territory, or
the District of Columbia. A Contractor not an individual and not
wishing to appear by an attorney may be represented by any member,
partner, or officer duly authorized to act on Contractor's behalf, or if
an individual, may appear personally.
(b) TVA shall be represented by attorneys from its Office of General
Counsel.
18 CFR 1308.23 Finality of decisions.
A decision by a Hearing Officer on an appeal shall be the decision of
the Board and shall be final, subject only to amendment under
1308.37(c), reconsideration under 1308.38 or appeal pursuant to
sections 8(g)(2) and 10(b) of the Act.
18 CFR 1308.24 Undue delay in Contracting Officer's decision.
(a) If there is an undue delay by a Contracting Officer in issuing a
decision on a claim, the Contractor may request the Chairman to direct
the Contracting Officer to issue a decision within a specified period of
time.
(b) A request under this section shall:
(1) Be in writing;
(2) State the date on which the claim was submitted to the
Contracting Officer.
(3) State the date suggested for issuance of a decision by the
Contracting Officer.
(c) TVA may reply to a motion under this section within 5 days after
its receipt.
(d) The Chairman shall issue a written decision on the request. If
granted, the decision shall specify the date by which the Contracting
Officer's decision is to be rendered, and a copy shall be served on the
Contracting Officer.
18 CFR 1308.25 Stay of appeal for Contracting Officer's decision.
If an appeal has been taken because of a Contracting Officer's
failure to render a timely decision, as provided by 1308.17, the
Hearing Officer, with or without a motion by a party, may stay
proceedings on the appeal in order to obtain a decision on the matter
appealed. Oral argument will not be heard on such a motion unless
otherwise directed. The stay order will normally set a date certain by
which the decision of the Contracting Officer will be rendered. Such
date shall take into account the factors mentioned in 1308.13(c), the
length of time the matter has already been pending before the
Contracting Officer, and the need for prompt and expeditious action on
appeals.
18 CFR 1308.26 Appeals.
(a) An appeal to the Board from a Contracting Officer's decision
under 1308.12 shall be initiated within 90 days from the Contractor's
receipt of the Contracting Officer's decision and in the manner set
forth in the disputes clause.
(b) An appeal from the Contracting Officer's failure to render a
timely decison shall be taken within the time period provided by
1308.17. The notice of appeal shall be in the form and filed in the
manner specified in the disputes clause, but shall state that it is an
appeal under 1308.17, and shall include a copy of the claim which was
submitted for decision.
18 CFR 1308.27 Appeal files.
(a) Notices of appeal shall be filed as provided in the disputes
clause, and shall be promptly transmitted by TVA to the Chairman.
(b) Following transmittal of the notice of appeal, TVA shall assemble
and transmit to the Hearing Officer and the Contractor an appeal file
consisting of:
(1) The Contracting Officer's decision, if any, from which the appeal
is taken;
(2) The contract and pertinent amendments, specifications, plans, and
drawings (a list of the documents submitted may be provided Contractor
in lieu of copies);
(3) The claim;
(4) Any other matter pertinent to the appeal submitted to or
considered by the Contracting Officer for reaching a decision.
(c) The appeal file shall be submitted within 30 days. Within 30
days after receipt of a copy, the Contractor may submit to the Hearing
Officer and TVA's General Counsel any documents within the scope of
paragraph (b) of this section which are not included in the appeal file
but which the Contractor believes are pertinent to the appeal. Such
documents are considered a part of the appeal file.
18 CFR 1308.27 Subpart D -- Prehearing and Hearing Procedures
18 CFR 1308.31 Filing and service.
(a) All documents required to be served shall be served on TVA and
Contractor and filed with the Board, except subpoenas.
(b) A request under 1308.15 shall be directed to the General
Manager, Tennessee Valley Authority, 400 Commerce Avenue, Knoxville,
Tennessee 37902, and shall be transmitted to the Chairman.
(c) All other documents required to be filed shall be directed to the
Hearing Officer assigned to the matter.
(d) Service on the opposing party may be made personally or by mail.
The copy presented for filing shall bear an appropriate certificate or
acknowledgment of service.
18 CFR 1308.32 Prehearing procedures.
(a) Unless otherwise provided in this part, prehearing procedures,
including discovery, shall be conducted in accordance with Rules 6,
7(b), 16, 26, 28-37, and 56 of the Federal Rules of Civil Procedure,
except that the Hearing Officer may modify those Rules to meet the needs
of the parties in a particular case.
(b) The term ''court'' as used in those Rules shall be deemed to mean
''Hearing Officer''; the term ''plaintiff'' shall be deemed to mean
''Contractor''; the term ''defendant'' shall be deemed to mean ''TVA'';
and the term ''action'' shall be deemed to mean the pending appeal.
(c) Discovery subpoenas are subject to Subpart E.
(d) The party giving notice of a deposition is responsible for
securing a reporter.
(e) No appeal of counterclaim may be dismissed except by order of the
Hearing Officer. The Hearing Officer may order at any time, with or
without a motion by a party, that an appeal or counterclaim, or any part
thereof, be dismissed because the matter has been settled, because the
party no longer desires to pursue the matter, or because of the party's
failure to prosecute the matter or to comply with the regulations in
this part or with any order of the Hearing Officer. Any dismissal under
this paragraph operates as an adjudication on the merits of the matter
which is dismissed, and is a decision within the meaning of 1308.23,
but does not affect the Hearing Officer's jurisdiction over any matter
not so dismissed.
(44 FR 29648, May 22, 1979. Redesignated at 44 FR 30682, May 29,
1979, and amended at 49 FR 3845, Jan. 31, 1984)
18 CFR 1308.33 Hearings.
(a) TVA shall arrange for the verbatim reporting of evidentiary
hearings before the Hearing Officer, and shall provide the Hearing
Officer with the original transcript. The parties shall make their own
arrangements with the reporter for copies.
(b) Admissibility of evidence shall generally be governed by the
Federal Rules of Evidence, subject, however, to the Hearing Officer's
discretion. As used in those Rules, the term ''court'' shall be deemed
to mean ''Hearing Officer.''
(c)(1) Conduct of hearings shall generally be governed by Rules
42-44, 44.1, and 46 of the Federal Rules of Civil Procedure, except that
the Hearing Officer may modify those Rules to meet the needs of the
parties in a particular case. The terms ''court,'' ''plaintiff,''
''defendant,'' and ''action'' as used in those Rules shall be deemed to
have the meaning given them in 1308.32.
(2) After the Contractor has completed the presentation of his
evidence, TVA, without waiving the right to offer evidence in the event
the motion is not granted, may move for a dismissal on the ground that
upon the facts and the law the Contractor has shown no right to relief.
The Hearing Officer as the trier of the facts may then determine them
and render a decision against the Contractor, or take the matter under
advisement, or decline to render any decision until the close of all the
evidence. Any decision rendered under this paragraph shall conform to
1308.37, and is a decision within the meaning of 1308.23.
(d) Hearings shall be as informal as may be reasonable and
appropriate under the circumstances, and shall be held at a time and
place to be specified by the Hearing Officer.
(e) Evidentiary subpoenas are subject to Subpart E of this part.
(44 FR 29648, May 22, 1979. Redesignated at 44 FR 30682, May 29,
1979, and amended at 49 FR 3845, Jan. 31, 1984)
18 CFR 1308.34 Record on appeal.
Except as otherwise provided in this part, the appeal shall be
decided on the basis of the record on appeal, which consists of the
notice of appeal, the claim, any notice of election under 1308.35 or
1308.36, orders entered during the proceeding, admissions, transcripts
of hearings, hearing exhibits and stipulations on file, all other
documents admitted in evidence, and all briefs submitted by the parties.
18 CFR 1308.35 Small claims procedure.
(a) The Contractor may elect to have the appeal processed under this
section, if the amount in dispute is $10,000 or less. This amount shall
be determined by totalling the amounts claimed by TVA and Contractor.
(b) Appeals under this section shall be decided, whenever possible,
within 120 days after the Hearing Officer receives written notice that
the Contractor has elected to proceed under this section. Such election
may be made a part of the notice of appeal.
(c) An appeal under this section shall be determined on the basis of
the record on appeal and those documents in the appeal file identified
in 1308.27(b)(1), (2), and (3). Other documents may be considered in
the determination of the appeal as may be stipulated to by the parties,
or as the Hearing Officer may order on motion by a party. No
evidentiary hearing shall be held unless the Hearing Officer directs
testimony on a particular issue. Discovery and other prehearing
procedures may be conducted under such time periods as the Hearing
Officer may set to meet the 120-day period, and the Hearing Officer may
reserve up to 30 days to prepare a decision. Upon request by either
party, the Hearing Officer shall hear oral argument after the record is
closed, and may direct oral argument on specified issues if the parties
do not request it.
(d) The Hearing Officer's decision under this section will be short
and contain only summary findings of fact and conclusions of law. The
decision may, at the Hearing Officer's discretion, be rendered orally at
the conclusion of any oral argument held. In such case, the Hearing
Officer will promptly furnish the parties a typed copy of the decision,
which shall constitute the final decision.
(e) Decisions under this section shall be final and conclusive except
for fraud, and shall have no value as precedent for future appeals.
18 CFR 1308.36 Accelerated appeal procedure.
(a) The Contractor may elect to have the appeal processed under this
section if the amount in dispute is $50,000 or less. The amount shall
be determined by totalling the amounts claimed by TVA and Contractor.
(b) Appeals under this section shall be decided, whenever possible,
within 180 days after the Hearing Officer receives written notice that
the Contractor has elected to proceed under this section. Such election
may be made a part of the notice of appeal.
(c) In cases under this section, the parties are encouraged to limit
discovery and briefing, consistent with adequate presentation of their
positions. The Hearing Officer may shorten applicable time periods in
order to meet the 180-day period, and may reserve 30 days to prepare a
decision.
(d) The Hearing Officer's decision under this section will be short
and may contain only summary findings of fact and conclusions of law.
The decision may, at the Hearing Officer's election, be rendered orally
at the conclusion of the evidentiary hearing, following such oral
argument as may be permitted. In such case, the Hearing Officer will
promptly furnish the parties a typed copy of the decision, which shall
constitute the final decision.
18 CFR 1308.37 Decisions.
(a) The Hearing Officer's decision shall be in writing. Except as
provided by 1308.35 or 1308.36, the decision shall contain complete
findings of fact and conclusions of law. The parties may be directed to
submit proposed findings and conclusions. A decision against a
Contractor on a claim shall include notice of the Contractor's rights
under paragraphs (2) and (3) of section 10(a) of the Act.
(b) If the decision denies any part of a Contractor's claim for lack
of support and the Hearing Officer is of the opinion that the
Contractor's inability to support that part is within 1308.6 and
section 5 of the Act, the decision shall not state that opinion, but
contemporaneously with the decision the Hearing Officer shall separately
notify TVA's General Counsel of that opinion and the reasons therefor.
(c) Not later than 10 days after receipt of the decision, a party may
move to alter or amend the findings or make additional findings and
amend the conclusions and decision accordingly. Such a motion may be
combined with a motion under 1308.38. This time period cannot be
extended.
18 CFR 1308.38 Reconsideration.
Motions for reconsideration shall be served not later than 10 days
after issuance of the Hearing Officer's decision. This time period
cannot be extended. Such a motion shall be heard and decided in the
manner provided by Rule 59 of the Federal Rules of Civil Procedure for
motions for new trial in actions tried without a jury.
18 CFR 1308.39 Briefs and motions.
(a) All motions shall be accompanied by a brief or memorandum setting
forth supporting authorities. Briefs in opposition to a motion shall be
served within 10 days after receipt of the motion, unless otherwise
specified in this part, or by order of the Hearing Officer.
(b) The Hearing Officer shall set the schedule for service of
prehearing and posthearing briefs on the merits.
(c) A motion to dismiss an appeal for lack of jurisdiction should be
served seasonably, but may be served at any time. The issue of lack of
jurisdiction may be raised by the Hearing Officer sua sponte, in which
case the Hearing Officer shall set a briefing schedule on the issue in
the document raising it to the parties.
(d) A motion for summary judgment may be made at any time after the
appeal file has been transmitted under 1308.26.
18 CFR 1308.39 Subpart E -- Subpoenas
18 CFR 1308.51 Form.
(a) A subpoena shall state the name of the Board and the title of the
appeal; shall command the person to whom it is directed to attend and
give testimony at a deposition or hearing, as appropriate, and, if
appropriate, to produce specified books, papers, documents, or tangible
things at a time and place therein specified; and shall notify the
person of the right to request that the subpoena be quashed or modified
and of the penalties for contumacy or failure to obey.
18 CFR 1308.52 Issuance.
(a) A deposition subpoena shall not issue except upon the filing of a
notice of deposition of the person to be subpoenaed, which notice should
normally be filed at least 15 days in advance of the scheduled
deposition.
(b) A subpoena for the attendance of a witness at an evidentiary
hearing shall not issue except upon the filing of a request for
appearance at the hearing of the person to be subpoenaed, which request
should normally be filed at least 30 days in advance of the scheduled
hearing. The request should state:
(1) The name and address of the witness;
(2) The general scope of the witness' testimony;
(3) The books, records, papers, and other tangible things sought to
be produced; and
(4) The general relevance of the matters sought to the case.
(c) Upon receipt of a notice of deposition or request for appearance
at a hearing, the Hearing Officer shall fill in the name of the witness
and sign and issue a subpoena otherwise in blank to the party seeking
it, together with a duplicate for proof of service. The party
requesting the subpoena shall fill in both copies before service.
(d) Letters rogatory may be issued by the Hearing Officer as provided
in 28 U.S.C. 1781-1784.
18 CFR 1308.53 Service.
A subpoena may be served at any place, and may be served by any
individual not a party who is at least 18 years of age, or as otherwise
provided by law. Service may be made by an attorney or employee of a
party. Service shall be made by personal delivery of the subpoena to
the individual named therein, together with tender of the amounts
required by 5 U.S.C. 503 or other applicable law. The individual making
service shall file with the Board the duplicate subpoena, filled out as
served, with the return of service filled in, signed and notarized.
18 CFR 1308.54 Requests to quash or modify.
The person served with a subpoena (or a party, if the person served
is a party's employee) may request the Hearing Officer to quash or
modify a subpoena. Such requests shall be made and determined in
accordance with the time limits and principles of Rule 45(a), (b) and
(d) of the Federal Rules of Civil Procedure.
18 CFR 1308.55 Penalties.
In case of contumacy or refusal to obey a subpoena by a person who
resides, is found, or transacts business within the jurisdiction of a
United States District Court, the Board will apply to the court through
the General Counsel of TVA for an order requiring the person to appear
before the Hearing Officer, to produce evidence or give testimony, or
both. Any failure of any such person to obey the order of the court may
be punished by the court as a contempt thereof.
18 CFR 1308.55 PART 1309 -- NONDISCRIMINATION WITH RESPECT TO AGE
Sec.
1309.1 What are the defined terms in this part and what do they mean?
1309.2 What is the purpose of the Act?
1309.3 What is the purpose of this part?
1309.4 What programs and activities are covered by the Act and this
part?
1309.5 What are the rules against age discrimination?
1309.6 Is the normal operation or statutory objective of any program
or activity an exception to the rules against age discrimination?
1309.7 Is the use of reasonable factors other than age an exception
to the rules against age discrimination?
1309.8 Who has the burden of proving that an action is excepted?
1309.9 How does TVA provide financial assistance in conformity with
the Act?
1309.10 What general responsibilities do recipients and TVA have to
ensure compliance with the Act?
1309.11 What specific responsibilities do TVA and recipients have to
ensure compliance with the Act?
1309.12 What are a recipient's responsibilities on compliance reviews
and access to information?
1309.13 What are the prohibitions against intimidation or
retaliation?
1309.14 How will complaints against recipients be processed?
1309.15 How will TVA enforce compliance with the Act and this part?
1309.16 What is the alternate funds disbursal procedure?
1309.17 What is the procedure for hearings and issuance of TVA
decisions required by this part?
1309.18 Under what circumstances must recipients take remedial or
affirmative action?
1309.19 When may a complainant file a civil action?
Authority: TVA Act of 1933, 48 Stat. 58 (1933), as amended, 16
U.S.C. 831-831dd (1976), and sec. 304 of the Age Discrimination Act of
1975, 89 Stat 729 (1975), as amended, 42 U.S.C. 6103 (1976).
Source: 46 FR 30811, June 11, 1981, unless otherwise noted.
18 CFR 1309.1 What are the defined terms in this part and what do they
mean?
As used in this part the following terms have the stated meanings:
(a) Act means the Age Discrimination Act of 1975, as amended, 42
U.S.C. 6101, et seq. (Title III of Pub. L. 94-135).
(b) Action means any act, activity, policy, rule, standard, or method
of administration; or the use of any policy, rule, standard, or method
of administration.
(c) Age means how old a person is, or the number of elapsed years
from the date of a person's birth.
(d) Age distinction means any action using age or an age-related
term.
(e) Age-related term means a term which necessarily implies a
particular age or range of ages (for example, ''children,'' ''adult,''
''older persons,'' but not ''student'').
(f) Financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement, by which
TVA provides or otherwise makes available to a recipient assistance in
any of the following forms:
(1) Funds;
(2) Services of TVA personnel;
(3) Real and personal property or any interest in or use of property,
including:
(i) Transfers or leases of property for less than fair market value
or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of property if the
share of its fair market value provided by TVA is not returned to TVA.
(g) For purposes of 1309.6 and 1309.7, normal operation means the
operation of a program or activity without significant changes that
would impair its ability to meet it objectives.
(h) For purposes of 1309.6 and 1309.7, statutory objective means
any purpose of a program or activity expressly stated in any Federal
statute, State statute, or local statute or ordinance adopted by an
elected, general purpose legislative body.
(i) Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any
State-created or recognized public or private agency, institution,
organization, or other entity, or any person to which TVA extends
financial assistance directly or through another recipient. Recipient
includes any successor, assignee, or transferee, but excludes the
ultimate beneficiary of the assistance.
(j) Secretary means the Secretary of the Department of Health,
Education, and Welfare, and its successors.
(k) United States means the fifty States, the District of Columbia,
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the
Canal Zone, the Trust Territory of the Pacific Islands, the Northern
Marianas, and the territories and possessions of the United States.
(l) TVA means the Tennessee Valley Authority.
18 CFR 1309.2 What is the purpose of the Act?
The Act is designed to prohibit discrimination on the basis of age in
programs or activities receiving Federal financial assistance. The Act
also permits federally assisted programs and activities, and recipients
of Federal funds, to continue to use certain age distinctions and
factors other than age which meet the requirements of the Act and this
part.
18 CFR 1309.3 What is the purpose of this part?
The purpose of this part is to effectuate the Act in all programs or
activities of recipients which receive financial assistance from TVA,
and to inform the public and the recipients of financial assistance from
TVA of the Act's requirements and how it will be enforced.
18 CFR 1309.4 What programs and activities are covered by the Act and
this part?
(a) The Act and this part apply to any program or activity receiving
financial assistance from TVA.
(b) The Act and this part do not apply to:
(1) An age distinction contained in that part of a Federal, State or
local statute or ordinance adopted by an elected, general purpose
legislative body which:
(i) Provides any benefits or assistance to persons based on age; or
(ii) Establishes criteria for participation in age-related terms; or
(iii) Describes intended beneficiaries or target groups in
age-related terms.
(2) Any employment practice of any employer, employment agency, labor
organization, or any labor-management joint apprenticeship training
program.
18 CFR 1309.5 What are the rules against age discrimination?
(a) General rule. No person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under, any program or activity receiving
financial assistance from TVA.
(b) Specific rules. In any program or activity receiving financial
assistance from TVA, a recipient may not directly or through
contractual, licensing, or other arrangements, use age distinctions or
take any other actions which have the effect, on the basis of age of:
(1) Excluding individuals from, denying them the benefits of, or
subjecting them to discrimination under a program or activity receiving
financial assistance from TVA, or
(2) Denying or limiting individuals in their opportunity to
participate in any program or activity receiving financial assistance
from TVA.
(c) The specific forms of age discrimination listed in paragraph (b)
of this section do not necessarily constitute a complete list.
(d) The rules stated in this section are limited by the exceptions
contained in 1309.6 and 1309.7.
18 CFR 1309.6 Is the normal operation or statutory objective of any
program or activity an exception to the rules against age
discrimination?
A recipient is permitted to take an action, otherwise prohibited by
1309.5, if the action reasonably takes into account age as a factor
necessary to the normal operation or the achievement of any statutory
objective of a program or activity. An action reasonably takes into
account age as a factor necessary to the normal operation or the
achievement of any statutory objective of a program or activity, if:
(a) Age is used as a measure or approximation of one or more other
characteristics; and
(b) The other characteristic(s) must be measured or approximated in
order for the normal operation of the program or activity to continue,
or to achieve any statutory objective of the program or activity; and
(c) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(d) It is impractical to measure the other characteristic(s) directly
on an individual basis.
18 CFR 1309.7 Is the use of reasonable factors other than age an
exception to the rules against age discrimination?
A recipient is permitted to take an action otherwise prohibited by
1309.5 which is based on a factor other than age, even though that
action may have a disproportionate effect on persons of different ages.
An action may be based on a factor other than age only if the factor
bears a direct and substantial relationship to the normal operation of
the program or activity or to the achievement of a statutory objective.
18 CFR 1309.8 Who has the burden of proving that an action is excepted?
The burden of proving that an age distinction or other action falls
within the exceptions outlined in 1309.6 and 1309.7 is on the
recipient of financial assistance from TVA.
18 CFR 1309.9 How does TVA provide financial assistance in conformity
with the Act?
(a) TVA contributes financial assistance only under agreements which
contain a provision which specifically requires compliance with the Act
and this part. If the financial assistance involves the furnishing of
real property, the agreement shall obligate the recipient, or the
transferee in the case of a subsequent transfer, for the period during
which the real property is used for a purpose for which the financial
assistance is extended or for another purpose involving the provision of
similar services or benefits. Where the financial assistance involves
the furnishing of personal property, the agreement shall obligate the
recipient during the period for which ownership or possession of the
property is retained. In all other cases the agreement shall obligate
the recipient for the period during which financial asssistance is
extended pursuant to the agreement. TVA shall specify the form of the
foregoing agreement, and the extent to which an agreement shall be
applicable to subcontractors, transferees, successors in interest, and
other participants in the program.
(b) In the case of real property, structures or improvements thereon,
or interests therein, acquired through a program of TVA financial
assistance, or in the case where TVA financial assistance was provided
in the form of a transfer by TVA of real property or an interest
therein, the instrument effecting or recording the transfer of title
shall contain a covenant running with the land assuring compliance with
this part and the guidelines contained herein for the period during
which the real property is used for a purpose for which the TVA
financial assistance is extended or for another purpose involving the
provision of similar services or benefits. Where no transfer of
property is involved, but property is improved under a program of TVA
financial assistance, the recipient shall agree to include such a
covenant in any subsequent transfer of such property. Where the
property is obtained by transfer from TVA, the covenant against
discrimination may also include a condition coupled with a right to be
reserved by TVA to revert title to the property in the event of a breach
of the covenant where, in the discretion of TVA, such a condition and
right of reverter is appropriate to the nature of (1) the program under
which the real property is obtained, (2) the recipient, and (3) the
instrument effecting or recording the transfer of title. In such event,
if a transferee of real property proposes to mortgage or otherwise
encumber the real property as security for financing construction of
new, or improvement of existing, facilities on such property for the
purposes for which the property was transferred, TVA may agree, upon
request of the transferee and if necessary to accomplish such financing,
and upon such conditions as it deems appropriate, to forbear the
exercise of such right to revert title for so long as the lien of such
mortgage or other encumbrance remains effective.
18 CFR 1309.10 What general responsibilities do recipients and TVA have
to ensure compliance with the Act?
(a) A recipient has primary responsibility to ensure that its
programs and activities are in compliance with the Act and shall take
steps to eliminate violations of the Act. A recipient also has
responsibility to maintain records, provide information, and afford TVA
access to its records to the extent required by TVA to determine whether
the recipient is in compliance with the Act.
(b) TVA has responsibility to attempt to secure a recipient's
compliance with the Act by voluntary means, to the fullest extent
practicable, and to provide assistance and guidance to recipients to
help them comply voluntarily. TVA may use the services of appropriate
Federal, State, local, or private organizations for this purpose. TVA
also has the responsibility to enforce the Act when a recipient fails to
eliminate violations of the Act.
18 CFR 1309.11 What specific responsibilities do TVA and recipients
have to ensure compliance with the Act?
(a) Written notice, technical assistance, and educational materials.
TVA shall:
(1) Provide written notice to each recipient of its obligations under
the Act. The notice shall include a requirement that where the
recipient initially receiving funds makes the funds available to a
subrecipient, the recipient must notify the subrecipient of its
obligations under the Act. The notice may be made a part of the
contract under which financial assistance is provided by TVA.
(2) Provide technical assistance to recipients, where necessary, to
aid them in complying with the Act.
(3) Make available educational materials setting forth the rights and
obligations of beneficiaries and recipients under the Act.
18 CFR 1309.12 What are a recipient's responsibilities on compliance
reports and access to information?
(a) Compliance reports. Each recipient shall keep such records and
submit to TVA timely, complete and accurate compliance reports at such
times and in such form and containing such information, as TVA may
determine to be necessary to enable it to ascertain whether the
recipient has complied or is complying with this part. In the case of
any program under which a primary recipient passes through financial
assistance from TVA to any other recipient, such other recipient shall
also submit such compliance reports to the primary recipient as may be
necessary to enable the primary recipient to carry out its obligations
under this part.
(b) Access to sources of information. Each recipient shall permit
access by TVA during normal business hours to such of its books,
records, accounts and other sources of information, and its facilities
as may be pertinent to ascertain compliance with this part. Where any
information required of a recipient is in the exclusive possession of
any other agency, institution or person, and such agency, institution or
person shall fail or refuse to furnish this information, the recipient
shall so certify in its report and shall set forth what efforts it has
made to obtain the information.
(c) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program under which the recipient
receives financial assistance, and make such information available to
them in such manner as TVA finds necessary to apprise such persons of
the protections against discrimination assured them by the Act and this
part.
18 CFR 1309.13 What are the prohibitions against intimidation or
retaliation?
No recipient or other person shall intimidate, threaten, coerce, or
discriminate against any individual for the purpose of interfering with
any right secured by the Act or this part, or because such individual
has made a complaint, testified, assisted, or participated in any manner
in an investigation, mediation, hearing, or other proceeding under this
part. The identity of complainants shall be kept confidential except to
the extent necessary to carry out the purposes of this part, including
the conduct of any investigation, mediation, hearing, or judicial
proceeding arising under the Act or this part.
18 CFR 1309.14 How will complaints against recipients be processed?
(a) Receipt of complaints. Any individual who claims (individually
or on behalf of any specific class of individuals) that he or she has
been subjected to discrimination prohibited by this part (including
1309.13) may file a written complaint with TVA. The written complaint
must be filed not later than 90 days from the date of the alleged
discrimination, unless the time for filing is extended by TVA for good
cause shown. A complaint shall be signed by the complainant, give the
name and mailing address of the complainant and the recipient, identify
the TVA financial assistance program involved, and state the facts and
occurrences (including dates) which led the complainant to believe that
an act of prohibited discrimination has occurred. Anonymous complaints
will not be accepted or filed under this section, but may be the basis
for a compliance review. TVA will reject any complaint which does not
fall within the coverage of the Act and this part, and may reject or
require supplementation or clarification of any complaint which does not
contain sufficient information for further processing as set forth in
this paragraph. A complaint shall not be deemed filed until all such
information has been provided to TVA.
(b) Prompt resolution of complaints. The complaint shall be resolved
promptly. To this end, TVA shall proceed with the complaint without
undue delay so that the complaint is resolved within 180 calendar days
after it is filed with TVA. The recipient and complainant involved in
each complaint are required to cooperate in this effort. Failure to
cooperate on the part of the complainant may result in cancellation of
the complaint, while such failure on the part of the recipient may
result in enforcement action as described in 1309.15.
(c) Mediation of complaints. All complaints which fall within the
coverage of the Act and this part will be referred to a mediation agency
designated by the Secretary.
(1) The participation of the recipient and the complainant in the
mediation process is required, although both parties need not meet with
the mediator at the same time.
(2) If the complainant and recipient reach a mutually satisfactory
resolution of the complaint during the mediation period, they shall
reduce the agreement to writing. The mediator shall send a copy of the
settlement to TVA. No further action shall be taken based on that
complaint unless it appears that the complainant or the recipient is
failing to comply with the agreement.
(3) Not more than 60 days after the complaint is filed, the mediator
shall return a still unresolved complaint to TVA for initial
investigation. The mediator may return a complaint at any time before
the end of the 60-day period if it appears that the complaint cannot be
resolved through mediation.
(4) The mediator shall protect the confidentiality of all information
obtained in the course of the mediation process. No mediator shall
testify in any adjudicative proceeding, produce any document, or
otherwise disclose any information obtained in the course of the
mediation process without prior approval of the head of the agency
appointing the mediator.
(d) Investigation. (1) TVA will make a prompt investigation whenever
a complaint is unresolved within 60 days after it is filed with TVA or
is reopened because of a violation of the mediation agreement. The
investigation should include, where appropriate, a review of the
pertinent practices and policies of the recipient, the circumstances
under which the possible noncompliance with the Act and this part
occurred, and other factors relevant to a determination as to whether
the recipient has failed to comply with the Act and this part.
(2) As part of the initial investigation, TVA shall use informal fact
finding methods including joint or individual discussions with the
complainant and recipient to establish the facts, and, if possible, to
resolve the complaint to the mutual satisfaction of the parties. TVA
may seek the assistance of any involved State program agency.
(3) If TVA cannot resolve the matter within 10 calendar days after
the mediator returns the complaint, it shall complete the investigation,
attempt to achieve voluntary compliance satisfactory to TVA, if the
investigation indicates a violation, and arrange for enforcement as
described in 1309.15, if necessary.
18 CFR 1309.15 How will TVA enforce compliance with the Act and this
part?
(a) If a compliance report, self-evaluation, or preaward review
indicates a violation or threatened violation of the Act or this part,
TVA shall attempt to secure the recipient's voluntary compliance with
the Act and this part. If the violation or threatened violation cannot
be corrected by informal means, compliance with the Act and this part
may be effected by the following means:
(1) Termination of a recipient's financial assistance under the
program or activity involved where the recipient has violated the Act or
this part. The determination of the recipient's violation may be made
only after a recipient has had an opportunity for a hearing on the
record before an appropriate hearing officer.
(2) Any other means authorized by law including but not limited to:
(i) Referral to the Department of Justice for proceedings to enforce
any rights of the United States or obligations of the recipient created
by the Act or this part.
(ii) Use of any requirement of or referral to any Federal, State, or
local government agency which will have the effect of correcting a
violation of the Act or this part.
(iii) Commencement by TVA of proceedings to enforce any rights of TVA
or obligations of the recipient created by the contract, the Act, or
this part.
(b) Any termination under paragraph (a)(1) of this section shall be
limited to the particular recipient and the particular prograrm or
activity (or portion thereof) receiving financial assistance from TVA
which is found to be in violation of the Act or this part. No
termination shall be based in whole or in part on a finding with respect
to any program or activity which does not receive financial assistance
from TVA.
(c) No assistance will be terminated under paragraph (a)(1) of this
section until:
(1) TVA has advised the recipient of its failure to comply with the
Act or this part and has determined that voluntary compliance cannot be
obtained.
(2) Thirty days have elapsed after TVA has sent a written report of
the circumstances and grounds of the termination of assistance to the
committees of the Congress having legislative jurisdiction over the TVA
program or activity involved. A report shall be filed in each case in
which TVA has determined that assistance will be terminated under
paragraph (a)(1) of this section.
(d) TVA may defer granting new financial assistance to a recipient
when termination proceedings under paragraph (a)(1) of this section are
initiated.
(1) New financial assistance includes all assistance administrated by
or through TVA for which an application or approval, including renewal
or continuation of existing activities, or authorization of new
activities, is required during the deferral period. New financial
assistance does not include assistance approved prior to the beginning
of termination proceedings.
(2) A deferral may not begin until the recipient has received a
notice of opportunity for a hearing under paragraph (a)(1) of this
section. A deferral may not continue for more than 60 days unless a
hearing has begun within that time or the time for beginning the hearing
has been extended by mutual consent of the recipient and TVA. A
deferral may not continue for more than 30 days after the close of the
hearing, unless the hearing results in a finding against the recipient.
18 CFR 1309.16 What is the alternate funds disbursal procedure?
When TVA withholds funds from a recipient under this part, TVA may
contract to disburse the withheld funds directly to any public or
nonprofit private organization or agency, or State or political
subdivision of the State. These alternate recipients must demonstrate
the ability to comply with this part and to achieve the goals of the
program or activity involved.
18 CFR 1309.17 What is the procedure for hearings and issuance of TVA
decisions required by this part?
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by 1309.15(a)(1), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
recipient. This notice shall advise the recipient of the action
proposed to be taken, the specific provision under which the proposed
action against it is to be taken, and the matters of fact or law
asserted as the basis for this action, and either (1) fix a date not
less than 20 days after the date of such notice within which the
recipient may request of TVA that the matter be scheduled for hearing or
(2) advise the recipient that the matter in question has been set down
for hearing at a stated time and place. The time and place so fixed
shall be reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of the
hearing. A recipient may waive a hearing and submit written information
and argument for the record. The failure of a recipient to request a
hearing under this subsection or to appear at a hearing for which a date
has been set shall be deemed to be a waiver of the right to a hearing
under the Act and 1309.15(a)(1) and a consent to the making of a
decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the time
and place fixed by TVA unless it determines that the convenience of the
recipient requires that another place be selected. Hearings shall be
held before a hearing officer who shall be designated by TVA's General
Manager, and who shall not be a TVA employee.
(c) Right to counsel. In all proceedings under this section, the
recipient and TVA shall have the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof by TVA's Board of Directors shall be
conducted in conformity with this part and in accordance with such rules
of procedure as are proper (and not inconsistent with this section)
relating to the conduct of the hearing, giving of notices subsequent to
those provided for in paragraph (a) of this section, taking of
testimony, exhibits, arguments and briefs, requests for findings, and
other related matters, as prescribed by the hearing officer. Both TVA
and the recipient shall be entitled to introduce all relevant evidence
on the issues as stated in the notice for hearing or as determined by
the hearing officer at the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the hearing officer. The hearing officer may exclude
irrelevant, immaterial, or unduly repetitious evidence. All documents
and other evidence offered or received for the record shall be open to
examination by the parties and opportunity shall be given to refute
facts and arguments advanced on either side of the issues. A transcript
shall be made of the oral evidence except to the extent the substance
thereof is stipulated for the record. All decisions shall be based upon
the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with this part and the regulations of one or more other
Federal departments or agencies issued under the Act, the TVA Board may,
by agreement with such other departments or agencies where applicable,
provide for the conduct of consolidated or joint hearings, and for the
application to such hearings of the rules of procedure applicable to
such hearings by such other departments or agencies. Final decisions in
such cases, insofar as this part is concerned, shall be made in
accordance with paragraph (f) of this section.
(f) Decisions. (1) After the hearing, or after the hearing is waived
under paragraph (a) of this section, the hearing officer shall make an
initial decision. The recipient may file exceptions to the decision
with the TVA Board within 10 days of receipt of the decision. If
exceptions are not filed within the specified time, the hearing
officer's initial decision becomes the final TVA decision.
(2) Based on the hearing record, investigation, and any written
submission to the hearing officer or the TVA Board, the Board shall
render its decision accepting the initial decision, or rejecting it, in
whole or part.
(3) The final decision may provide for suspension or termination of,
or refusal to grant or continue financial assistance, in whole or in
part, under the program involved, and may contain such terms,
conditions, and other provisions as are consistent with and will
effectuate the purposes of the Act and this part, including provisions
designed to assure that no financial assistance will thereafter be
extended under such program to the recipient determined by such decision
to have failed to comply with this part, unless and until it corrects
its noncompliance and satisfies TVA that it will fully comply with this
part.
(g) Posttermination proceedings. (1) A recipient adversely affected
by an order issued under paragraph (f) of this section shall be restored
to full eligibility to receive financial assistance from TVA if it
satisfies the terms and conditions of that order for such eligibility or
if it brings itself into compliance with this part and provides
reasonable assurance that it will fully comply with this part.
(2) Any recipient adversely affected by an order entered pursuant to
paragraph (f) of this section may at any time request TVA to restore
fully its eligibility to receive financial assistance from TVA. Any
such request shall be supported by information showing that the
recipient has met the requirements of paragraph (g)(1) of this section.
If TVA determines that those requirements have been satisfied, it shall
restore such eligibility.
(3) If TVA denies any such request, the recipient may submit a
written request for a hearing, specifying why it believes TVA to have
been in error. The recipient shall thereupon be given an expeditious
hearing, with a decision on the record, in accordance with rules of
procedure issued by TVA. The recipient will be restored to such
eligibility if it proves at such a hearing that it satisfied the
requirements of paragraph (g)(1) of this section. While proceedings
under this paragraph are pending, the sanctions imposed by the order
issued under paragraph (f)(3) of this section shall remain in effect.
18 CFR 1309.18 Under what circumstances must recipients take remedial
or affirmative action?
(a) Where a recipient is found to have discriminated on the basis of
age, the recipient shall take any remedial action which TVA may require
to overcome the effects of the discrimination, if another recipient
exercises control over the recipient that has discriminated, both
recipients may be required to take remedial action.
(b) Even in the absence of a finding of discrimination, a recipient
may take affirmative action to overcome the effects of conditions that
resulted in limited participation recipient's program or activity on the
basis of age.
(c) If a recipient operating a program which serves the elderly or
children, in addition to persons of other ages, provides special
benefits to the elderly or to children, the provision of those benefits
shall be presumed to be voluntary affirmative action provided that it
does not have the effect of excluding otherwise eligible persons from
participation in the program.
18 CFR 1309.19 When may a complainant file a civil action?
(a) A complainant may file a civil action following the exhaustion of
administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and TVA has made no finding with regard to the complaint; or
(2) TVA issues any finding in favor of the recipient.
(b) If either of the conditions set forth in paragraph (a) of this
section is satisfied, TVA shall:
(1) Promptly advise the complainant of this fact; and
(2) Advise the complainant of his or her right, under Section 305(e)
of the Act, to bring a civil action for injunctive relief that will
effect the purposes of the Act; and
(3) Inform the complainant:
(i) That a civil action can only be brought in a United States
district court for the district in which the recipient is found or
transacts business;
(ii) That a complainant prevailing in a civil action has the right to
be awarded the costs of the action, including reasonable attorney's
fees, but that these costs must be demanded in the complaint;
(iii) That before commencing the action the complainant shall give 30
days' notice by registered mail to the Secretary, the Attorney General
of the United States, TVA, and the recipient;
(iv) That the notice shall state: the alleged violation of the Act;
the relief requested; the court in which the action will be brought;
and whether or not attorney's fees are demanded in the event the
complainant prevails; and
(v) That no action shall be brought if the same alleged violation of
the Act by the same recipient is the subject of a pending action in any
court of the United States.
18 CFR 1309.19 PART 1310 -- ADMINISTRATIVE COST RECOVERY
Sec.
1310.1 Purpose.
1310.2 Application.
1310.3 Assessment of administrative charge.
Authority: 16 U.S.C. 831-831dd; 31 U.S.C. 9701.
Source: 48 FR 16657, Apr. 19, 1983, unless otherwise noted.
18 CFR 1310.1 Purpose.
The purpose of the regulations in this part is to establish a
schedule of fees to be charged in connection with the disposition and
uses of, and activities affecting, real property in TVA's custody or
control, and certain other activities in order to help ensure that such
activities are self-sustaining to the full extent possible.
18 CFR 1310.2 Application.
(a) TVA will undertake the following actions only upon the condition
that the applicant pay to TVA such administrative charge as the Director
of Land and Forest Resources or Chief of the Power Management Services
Staff (hereinafter ''responsible land manager''), as appropriate, shall
assess in accordance with 1310.3 of this part; provided, however, that
no payment shall be required where the responsible land manager
determines that there is a corresponding benefit to TVA:
(1) Conveyance and abandonment of TVA land or landrights, except as
provided in paragraph (b)(5) of this section.
(2) Other private uses of TVA land not involving the disposition of
TVA real property or interests in real property.
(3) Actions taken to suffer the presence of unauthorized fills and
structures over, on, or across TVA land or landrights, and including
actions not involving the abandonment or disposal of TVA land or
landrights.
(4) Actions taken to approve fills or structures constructed either
without prior approval of plans under section 26a of the Tennessee
Valley Authority Act of 1933, as amended (16 U.S.C. 831y-1), and TVA's
regulations issued thereunder at 18 CFR Part 1304, or not in accordance
with such plans previously approved by TVA.
(b) Exemption. An administrative charge shall not be made for the
following actions:
(1) Agricultural licenses.
(2) Firewood cutting permits and timber sale contracts.
(3) Permits for the nonexclusive short-term use of TVA land.
(4) Uses of TVA land, at no charge, for utility line crossings, not
involving the disposition of TVA real property or interests in real
property.
(5) Conveyance and abandonment of TVA land or landrights at no charge
to States and municipalities, and political subdivisions and agencies
thereof.
(6) Conveyances pursuant to section 4(k)(d) of the Tennessee Valley
Authority Act of 1933, as amended (16 U.S.C. 831c(k)(d)).
(7) Releases of unneeded mineral right options.
(8) TVA phosphate land and mineral transactions.
(9) Permits and licenses for use of TVA land by distributors of TVA
power.
(c) Quota deer hunt and turkey hunt applications. Quota deer hunt
and turkey hunt permit applications will be processed by TVA if
accompanied by the fee prescribed in paragraph (d) of 1310.3 of this
part.
(48 FR 16657, Apr. 19, 1983, as amended at 52 FR 25592, July 8, 1987;
53 FR 2827, Feb. 2, 1988)
18 CFR 1310.3 Assessment of administrative charge.
(a) Range of charges. Except as otherwise provided herein, the
responsible land manager shall assess a charge which he determines in
his sole judgment to be approximately equal to the administrative costs
incurred by TVA for each action including both the direct cost to TVA
and applicable overheads. With respect to the following categories of
actions, a charge of not less than the minimum or greater than the
maximum amount specified herein shall be assessed except as otherwise
provided in paragraph (c) of this section.
(1) Land transfers -- $500-$4,400.
(2) Use permits or licenses -- $50-$625.
(3) Actions taken to approve plans for fills or structures
constructed either without prior approval by TVA under section 26a of
the TVA Act or not in accordance with such plans previously approved by
TVA, and other actions, where appropriate, to suffer the presence of
such fills or structures or to reach other agreements with respect to
such fills or structures -- $100-$2,500.
(4) Abandonment of transmission line easements and rights of way --
$100-$1,500.
(b) Basis of charge. The administrative charge assessed by the
responsible land manager shall, to the extent applicable, include the
following costs:
(1) Appraisal of the land or landrights affected;
(2) Assessing applicable rental fees;
(3) Field inspections and investigations;
(4) Title and record searches;
(5) Preparation for conducting public auction and negotiated sales;
(6) Mapping and surveying;
(7) Preparation of conveyance instrument, permit, or other
authorization or approval instrument;
(8) Coordination of the proposed action within TVA and with other
Federal, State, and local agencies;
(9) Legal review; and
(10) Administrative overheads associated with the transaction.
(c) Assessment of charge when actual administrative costs
significantly exceed established range. When the responsible land
manager determines that the actual administrative costs are expected to
significantly exceed the range of costs established in paragraph (a) of
this section, such manager shall not proceed with the TVA action until
agreement is reached on payment of a charge calculated to cover TVA's
actual administrative costs.
(d) Quota deer hunt and turkey hunt application fees. A fee of $2
for each person must accompany the completed application form for a
quota deer hunt and turkey hunt permit. Applications will not be
processed unless accompanied by the correct fee amount. No refunds will
be made to unsuccessful applicants, except that fees received after the
application due date will be refunded.
(e) Additional charges. In addition to the charges assessed under
these regulations, TVA may charge for its services if TVA is required to
make environmental investigations or otherwise incur additional expenses
as provided in section 5.7.2 of TVA's procedures implementing the
National Environmental Policy Act (45 FR 54511-54515).
(48 FR 16657, Apr. 19, 1983, as amended at 52 FR 25592, July 8, 1987;
53 FR 2827, Feb. 2, 1988)
18 CFR 1310.3 PART 1311 -- INTERGOVERNMENTAL REVIEW OF TENNESSEE VALLEY
AUTHORITY FEDERAL FINANCIAL ASSISTANCE AND DIRECT FEDERAL DEVELOPMENT
PROGRAMS AND ACTIVITIES
Sec.
1311.1 What is the purpose of these regulations?
1311.2 What definitions apply to these regulations?
1311.3 What programs and activities of TVA are subject to these
regulations?
1311.4 (Reserved)
1311.5 What is TVA's obligation with respect to federal interagency
coordination?
1311.6 What procedures apply to the selection of programs and
activities under these regulations?
1311.7 How does TVA communicate with state, regional and local
officials concerning TVA's programs and activities?
1311.8 How does TVA provide states an opportunity to comment on
proposed federal financial assistance and direct federal development?
1311.9 How does TVA receive and respond to comments?
1311.10 How does TVA make efforts to accommodate intergovernmental
viewpoints?
1311.11 What are TVA's obligations in interstate situations?
1311.12 (Reserved)
1311.13 May TVA waive any provision of these regulations?
Authority: Tennessee Valley Authority Act of 1933, 48 Stat. 58, as
amended, 16 U.S.C. 831-831dd (1976; Supp. V, 1981); E. O. 12372, July
14, 1982 (47 FR 30,959), amended April 8, 1983 (48 FR 15,887); sec. 401
of the Intergovernmental Cooperation Act of 1968, as amended.
Source: 48 FR 29399, June 24, 1983, unless otherwise noted.
18 CFR 1311.1 What is the purpose of these regulations?
(a) The regulations in this part implement Executive Order 12372,
''Intergovernmental Review of Federal Programs,'' issued July 14, 1982,
and amended on April 8, 1983. These regulations also implement
applicable provisions of section 401 of the Intergovernmental
Cooperation Act of 1968 and are intended to assist TVA in carrying out
its responsibilities under the TVA Act.
(b) These regulations are intended to foster an intergovernmental
partnership and a strengthened Federalism by relying on state processes
and on state, areawide, regional, and local coordination for review of
proposed federal financial assistance and direct federal development.
(c) These regulations are intended to aid the internal management of
TVA, and are not intended to create any right or benefit enforceable at
law by a party against TVA or its officers.
18 CFR 1311.2 What definitions apply to these regulations?
TVA means the Tennessee Valley Authority, a wholly owned corporation
and independent instrumentality of the United States.
Order means Executive Order 12372, issued July 14, 1982, and amended
April 8, 1983, and titled ''Intergovernmental Review of Federal
Programs.''
State means any of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust
Territory of the Pacific Islands.
18 CFR 1311.3 What programs and activities of TVA are subject to these
regulations?
TVA publishes in the Federal Register a list of TVA's federal
financial assistance and direct federal development programs and
activities that are subject to these regulations.
1311.4 (Reserved)
18 CFR 1311.5 What is TVA's obligation with respect to federal
interagency coordination?
TVA, to the extent practicable, consults with and seeks advice from
all other substantially affected federal departments and agencies in an
effort to assure full coordination between such agencies and TVA
regarding programs and activities covered under these regulations.
18 CFR 1311.6 What procedures apply to the selection of programs and
activities under these regulations?
(a) A state may select any program or activity published in the
Federal Register in accordance with 1311.3 of this part for
intergovernmental review under these regulations. Each state, before
selecting programs and activities, shall consult with local elected
officials.
(b) Each state that adopts a process shall notify TVA of the programs
and activities selected for that process.
(c) A state may notify TVA of changes in its selections at any time.
For each change, the state shall submit to TVA an assurance that the
state has consulted with local elected officials regarding the change.
TVA may establish deadlines by which states are required to inform TVA
of changes in their program selections.
(d) TVA uses a state's process as soon as feasible, depending on
individual programs and activities, after TVA is notified of the states
selections.
18 CFR 1311.7 How does TVA communicate with state, regional, and local
officials concerning TVA's programs and activities?
(a) For those programs and activities covered by a state process
under 1311.6, TVA, to the extent permitted by law:
(1) Uses the official state process to determine views of state and
local elected officials, and
(2) Communicates with state and local elected officials, through the
official state process, as early in a program planning cycle as is
reasonably feasible to explain specific plans and actions.
(b) TVA provides notice to directly affected state, areawide,
regional, and local entities in a state of proposed Federal financial
assistance or direct federal development if:
(1) The state has not adopted a process under the Order;
(2) The assistance or development involves a program or activity not
selected for the state process; or
(3) The particular government entity is not part of or involved in
the state process.
This notice may be made by a publication widely available in the
potentially affected area or other appropriate means, which TVA in its
discretion deems appropriate.
18 CFR 1311.8 How does TVA provide states an opportunity to comment on
proposed federal financial assistance and direct federal development?
(a) Except in unusual circumstances, TVA gives state processes or
directly affected state, areawide, regional, and local officials and
entities:
(1) (Reserved)
(2) At least 60 days from the date established by TVA to comment on
proposed direct Federal development or federal financial assistance.
(b) This section also applies to comments in cases in which the
review, coordination, and communication with TVA have been delegated or
when TVA provides notice directly to potentially affected state,
areawide, regional, or local entities under 1311.7(b).
18 CFR 1311.9 How does TVA receive and respond to comments?
(a) TVA follows the procedures in 1311.10 if:
(1) A state office or official is designated to act as a single point
of contact between a state process and all federal agencies, and
(2) That office or official transmits a state process recommendation
for a program selected under 1311.6.
(b)(1) The single point of contact is not obligated to transmit
comments from state, areawide, regional, or local officials and entities
where there is no state process recommendation; however, these
officials or entities may submit comments directly to TVA for TVA's
consideration.
(2) If a state process recommendation is transmitted by a single
point of contact, all comments from state, areawide, regional, and local
officials and entities that differ from it must also be transmitted.
(c) If a state has not established a process, or is unable to submit
a state process recommendation, state, areawide, regional, and local
officials and entities may submit comments to TVA.
(d) If a program or activity is not selected for a state process,
state, areawide, regional, and local officials and entities may submit
comments to TVA. In addition, if a state process recommendation for a
nonselected program or activity is transmitted to TVA by the single
point of contact, TVA follows the procedures of 1311.10 of this part.
(e) TVA considers comments which do not constitute a state process
recommendation submitted under these regulations and for which TVA is
not required to apply the procedures of 1311.10 of this part, when such
comments are provided by a single point of contact or directly to TVA by
a state, areawide, regional, or local government.
18 CFR 1311.10 How does TVA make efforts to accommodate
intergovernmental viewpoints?
(a) If a state process provides a state process recommendation to TVA
through its single point contact, TVA either:
(1) Accepts the recommendation;
(2) Reaches a mutually agreeable solution with the state process; or
(3) Provides the single point of contact (including any regional or
local office delegated a review and comment role by the state process)
with written explanation of the decision in such form as TVA in its
discretion deems appropriate. TVA may also supplement the written
explanation by providing the explanation to the single point of contact
by telephone, other telecommunications, meeting with the single point of
contact, and, as appropriate, other interested officials or offices, or
other means.
(b) In any explanation under paragraph (a)(3) of this section, TVA
informs the single point of contact that:
(1) TVA will not implement its decision for at least 10 days after
the single point of contact receives the explanation; or
(2) TVA's General Manager has reviewed the decision and determined
that, because of unusual circumstances, the waiting period of at least
10 days is not feasible.
(c) For purposes of computing the waiting period under paragraph
(b)(1) of this section, the explanation is presumed to have been
received five days after the date of mailing of such notification.
18 CFR 1311.11 What are TVA's obligations in interstate situations?
(a) TVA is responsible for:
(1) Identifying proposed Federal financial assistance and direct
Federal development that potentially impact on interstate areas;
(2) Notifying appropriate officials and entities in states which have
adopted a process and which select TVA's program or activity;
(3) In accordance with 1311.7(b), making efforts to identify and
notify the affected state, areawide, regional and local officials and
entities in those states that have not adopted a process under the Order
or do not select TVA's program or activity;
(4) Responding pursuant to 1311.10 of this part if TVA receives a
recommendation from a designated areawide agency transmitted by a single
point of contact, in cases in which the review, coordination, and
communication with TVA have been delegated.
(b) TVA uses the procedures in 1311.10 if a state process provides a
state process recommendation to TVA through a single point of contact.
1311.12 (Reserved)
18 CFR 1311.13 May TVA waive any provision of these regulations?
In an emergency, TVA may waive any provision of these regulations.
18 CFR 1311.13 PART 1312 -- PROTECTION OF ARCHAEOLOGICAL RESOURCES:
UNIFORM REGULATIONS
Sec.
1312.1 Purpose.
1312.2 Authority.
1312.3 Definitions.
1312.4 Prohibited acts.
1312.5 Permit requirements and exceptions.
1312.6 Application for permits and information collection.
1312.7 Notification to Indian tribes of possible harm to, or
destruction of, sites on public lands having religious or cultural
importance.
1312.8 Issuance of permits.
1312.9 Terms and conditions of permits.
1312.10 Suspension and revocation of permits.
1312.11 Appeals relating to permits.
1312.12 Relationship to section 106 of the National Historic
Preservation Act.
1312.13 Custody of archaeological resources.
1312.14 Determination of archaeological or commercial value and cost
of restoration and repair.
1312.15 Assessment of civil penalties.
1312.16 Civil penalty amounts.
1312.17 Other penalties and rewards.
1312.18 Confidentiality of archaeological resource information.
1312.19 Report.
Authority: Pub. L. 96-95, 93 Stat. 721 (16 U.S.C. 470aa -- 470ll)
(sec. 10(a)). Related authority Pub. L. 59-209, 34 Stat. 225 (16
U.S.C. 432, 433); Pub. L. 86-523, 74 Stat. 220, 221 (16 U.S.C. 469),
as amended, 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 915 (16
U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 (1973),
90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 (1980);
Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).
Source: 49 FR 1028, Jan. 6, 1984, unless otherwise noted.
18 CFR 1312.1 Purpose.
(a) The regulations in this part implement provisions of the
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa --
470ll) by establishing the uniform definitions, standards, and
procedures to be followed by all Federal land managers in providing
protection for archaeological resources, located on public lands and
Indian lands of the United States. These regulations enable Federal
land managers to protect archaeological resources, taking into
consideration provisions of the American Indian Religious Freedom Act
(92 Stat. 469; 42 U.S.C. 1996), through permits authorizing excavation
and/or removal of archaeological resources, through civil penalties for
unauthorized excavation and/or removal, through provisions for the
preservation of archaeological resource collections and data, and
through provisions for ensuring confidentiality of information about
archaeological resources when disclosure would threaten the
archaeological resources.
(b) The regulations in this part do not impose any new restrictions
on activities permitted under other laws, authorities, and regulations
relating to mining, mineral leasing, reclamation, and other multiple
uses of the public lands.
18 CFR 1312.2 Authority.
(a) The regulations in this part are promulgated pursuant to section
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C.
470ii), which requires that the Secretaries of the Interior, Agriculture
and Defense and the Chairman of the Board of the Tennessee Valley
Authority jointly develop uniform rules and regulations for carrying out
the purposes of the Act.
(b) In addition to the regulations in this part, section 10(b) of the
Act (16 U.S.C. 470ii) provides that each Federal land manager shall
promulgate such rules and regulations, consistent with the uniform rules
and regulations in this part, as may be necessary for carrying out the
purposes of the Act.
18 CFR 1312.3 Definitions.
As used for purposes of this part:
(a) Archaeological resource means any material remains of human life
or activities which are at least 100 years of age, and which are of
archaeological interest.
(1) Of archaeological interest means capable of providing scientific
or humanistic understandings of past human behavior, cultural
adaptation, and related topics through the application of scientific or
scholarly techniques such as controlled observation, contextual
measurement, controlled collection, analysis, interpretation and
explanation.
(2) Material remains means physical evidence of human habitation,
occupation, use, or activity, including the site, location, or context
in which such evidence is situated.
(3) The followiing classes of material remains (and illustrative
examples), if they are at least 100 years of age, are of archaeological
interest and shall be considered archaeological resources unless
determined otherwise pursuant to paragraph (a)(4) or (5) of this
section:
(i) Surface or subsurface structures, shelters, facilities, or
features (including, but not limited to, domestic structures, storage
structures, cooking structures, ceremonial structures, artificial
mounds, earthworks, fortifications, canals, reservoirs,
horticultural/agricultural gardens or fields, bedrock mortars or
grinding surfaces, rock alignments, cairns, trails, borrow pits, cooking
pits, refuse pits, burial pits or graves, hearths, kilns, post molds,
wall trenches, middens);
(ii) Surface or subsurface artifact concentrations or scatters;
(iii) Whole or fragmentary tools, implements, containers, weapons and
weapon projectiles, clothing, and ornaments (including, but not limited
to, pottery and other ceramics, cordage, basketry and other weaving,
bottles and other glassware, bone, ivory, shell, metal, wood, hide,
feathers, pigments, and flaked, ground, or pecked stone);
(iv) By-products, waste products, or debris resulting from
manufacture or use of human-made or natural materials;
(v) Organic waste (including, but not limited to, vegetal and animal
remains, coprolites);
(vi) Human remains (including, but not limited to, bone, teeth,
mummified flesh, burials, cremations);
(vii) Rock carvings, rock paintings, intaglios and other works of
artistic or symbolic representation;
(viii) Rockshelters and caves or portions thereof containing any of
the above material remains;
(ix) All portions of shipwrecks (including, but not limited to,
armaments, apparel, tackle, cargo);
(x) Any portion or piece of any of the foregoing.
(4) The following material remains shall not be considered of
archaeological interest, and shall not be considered to be
archaeological resources for purposes of the Act and this part, unless
found in a direct physical relationship with archaeological resources as
defined in this section:
(i) Paleontological remains;
(ii) Coins, bullets, and unworked minerals and rocks.
(5) The Federal land manager may determine that certain material
remains, in specified areas under the Federal land manager's
jurisdiction, and under specified circumstances, are not or are no
longer of archaeological interest and are not to be considered
archaeological resources under this part. Any determination made
pursuant to this subparagraph shall be documented. Such determination
shall in no way affect the Federal land manager's obligations under
other applicable laws or regulations.
(b) Arrowhead means any projectile point which appears to have been
designed for use with an arrow.
(c) Federal land manager means:
(1) With respect to any public lands, the secretary of the
department, or the head of any other agency or instrumentality of the
United States, having primary management authority over such lands,
including persons to whom such management authority has been officially
delegated;
(2) In the case of Indian lands, or any public lands with respect to
which no department, agency or instrumentality has primary management
authority, such term means the Secretary of the Interior;
(3) The Secretary of the Interior, when the head of any other agency
or instrumentality has, pursuant to section 3(2) of the Act and with the
consent of the Secretary of the Interior, delegated to the Secretary of
the Interior the responsibilities (in whole or in part) in this part.
(d) Public lands means:
(1) Lands which are owned and administered by the United States as
part of the national park system, the national wildlife refuge system,
or the national forest system; and
(2) All other lands the fee title to which is held by the United
States, except lands on the Outer Continental Shelf, lands under the
jurisdiction of the Smithsonian Institution, and Indian lands.
(e) Indian lands means lands of Indian tribes, or Indian individuals,
which are either held in trust by the United States or subject to a
restriction against alienation imposed by the United States, except for
subsurface interests not owned or controlled by an Indian tribe or
Indian individual.
(f) Indian tribe as defined in the Act means any Indian tribe, band,
nation, or other organized group or community, including any Alaska
village or regional or village corporation as defined in, or established
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In
order to clarify this statutory definition for purposes of this part,
''Indian tribe'' means:
(1) Any tribal entity which is included in the annual list of
recognized tribes published in the Federal Register by the Secretary of
the Interior pursuant to 25 CFR Part 54;
(2) Any other tribal entity acknowledged by the Secretary of the
Interior pursuant to 25 CFR Part 54 since the most recent publication of
the annual list; and
(3) Any Alaska Native village or regional or village corporation as
defined in or established pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe
which is recognized by the Secretary of the Interior as eligible for
services provided by the Bureau of Indian Affairs.
(g) Person means an individual, corporation, partnership, trust,
institution, association, or any other private entity, or any officer,
employee, agent, department, or instrumentality of the United States, or
of any Indian tribe, or of any State or political subdivision thereof.
(h) State means any of the fifty states, the District of Columbia,
Puerto Rico, Guam, and the Virgin Islands.
(i) Act means the Archaeological Resources Protection Act of 1979 (16
U.S.C. 470aa-470ll).
(49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984)
18 CFR 1312.4 Prohibited acts.
(a) No person may excavate, remove, damage, or otherwise alter or
deface any archaeological resource located on public lands or Indian
lands unless such activity is pursuant to a permit issued under 1312.8
or exempted by 1312.5(b) of this part.
(b) No person may sell, purchase, exchange, transport, or receive any
archaeological resource, if such resource was excavated or removed in
violation of:
(1) The prohibitions contained in paragraph (a) of this section; or
(2) Any provision, rule, regulation, ordinance, or permit in effect
under any other provision of Federal law.
18 CFR 1312.5 Permit requirements and exceptions.
(a) Any person proposing to excavate and/or remove archaeological
resources from public lands or Indian lands, and to carry out activities
associated with such excavation and/or removal, shall apply to the
Federal land manager for a permit for the proposed work, and shall not
begin the proposed work until a permit has been issued. The Federal
land manager may issue a permit to any qualified person, subject to
appropriate terms and conditions, provided that the person applying for
a permit meets conditions in 1312.8(a) of this part.
(b) Exceptions:
(1) No permit shall be required under this part for any person
conducting activities on the public lands under other permits, leases,
licenses, or entitlements for use, when those activities are exclusively
for purposes other than the excavation and/or removal of archaeological
resources, even though those activities might incidentally result in the
disturbance of archaeological resources. General earth-moving
excavation conducted under a permit or other authorization shall not be
construed to mean excavation and/or removal as used in this part. This
exception does not, however, affect the Federal land manager's
responsibility to comply with other authorities which protect
archaeological resources prior to approving permits, leases, licenses,
or entitlements for use; any excavation and/or removal of
archaeological resources required for compliance with those authorities
shall be conducted in accordance with the permit requirements of this
part.
(2) No permit shall be required under this part for any person
collecting for private purposes any rock, coin, bullet, or mineral which
is not an archaeological resource as defined in this part, provided that
such collecting does not result in disturbance of any archaelogical
resource.
(3) No permit shall be required under this part or under section 3 of
the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or removal
by any Indian tribe or member thereof of any archaeological resource
located on Indian lands of such Indian tribe, except that in the absence
of tribal law regulating the excavation or removal or archaeological
resources on Indian lands, an individual tribal member shall be required
to obtain a permit under this part;
(4) No permit shall be required under this part for any person to
carry out any archaeological activity authorized by a permit issued
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the
enactment of the Archaeological Resources Protection Act of 1979. Such
permit shall remain in effect according to its terms and conditions
until expiration.
(5) No permit shall be required under section 3 of the Act of June 8,
1906 (16 U.S.C. 432) for any archaeological work for which a permit is
issued under this part.
(c) Persons carrying out official agency duties under the Federal
land manager's direction, associated with the management of
archaeological resources, need not follow the permit application
procedures of 1312.6. However, the Federal land manager shall insure
that provisions of 1312.8 and 1312.9 have been met by other documented
means, and that any official duties which might result in harm to or
destruction of any Indian tribal religious or cultural site, as
determined by the Federal land manager, have been the subject of
consideration under 1312.7.
(d) Upon the written request of the Governor of any State, on behalf
of the State or its educational institutions, the Federal land manager
shall issue a permit, subject to the provisions of 1312.5(b)(5),
1312.7, 1312.8(a)(3), (4), (5), (6), and (7), 1312.9, 1312.10, 1312.12,
and 1312.13(a) to such Governor or to such designee as the Governor
deems qualified to carry out the intent of the Act, for purposes of
conducting archaeological research, excavating and/or removing
archaeological resources, and safeguarding and preserving any materials
and data collected in a university, museum, or other scientific or
educational institution approved by the Federal land manager.
(e) Under other statutory, regulatory, or administrative authorities
governing the use of public lands and Indian lands, authorizations may
be required for activities which do not require a permit under this
part. Any person wishing to conduct on public lands or Indian lands any
activities related to but believed to fall outside the scope of this
part should consult with the Federal land manager, for the purpose of
determining whether any authorization is required, prior to beginning
such activities.
18 CFR 1312.6 Application for permits and information collection.
(a) Any person may apply to the appropriate Federal land manager for
a permit to excavate and/or remove archaeological resources from public
lands or Indian lands and to carry out activities associated with such
excavation and/or removal.
(b) Each application for a permit shall include:
(1) The nature and extent of the work proposed, including how and why
it is proposed to be conducted, proposed time of performance, locational
maps, and proposed outlet for public written dissemination of the
results.
(2) The name and address of the individual(s) proposed to be
responsible for conducting the work, institutional affiliation, if any,
and evidence of education, training, and experience in accord with the
minimal qualifications listed in 1312.8(a).
(3) The name and address of the individual(s), if different from the
individual(s) named in paragraph (b)(2) of this section, proposed to be
responsible for carrying out the terms and conditions of the permit.
(4) Evidence of the applicant's ability to initiate, conduct, and
complete the proposed work, including evidence of logistical support and
laboratory facilities.
(5) Where the application is for the excavation and/or removal of
archaeological resources on public lands, the names of the university,
museum, or other scientific or educational institution in which the
applicant proposes to store all collections, and copies of records,
data, photographs, and other documents derived from the proposed work.
Applicants shall submit written certification, signed by an authorized
official of the institution, of willingness to assume curatorial
responsibility for the collections, records, data, photographs and other
documents and tm safeguard and preserve these materials as property of
the United States.
(6) Where the application is for the excavation and/or removal of
archaeological resources on Indian lands, the name of the university,
museum, or other scientific or educational institution in which the
applicant proposes to store copies of records, data, photographs, ald
other documents derived from the proposed work, and all collections in
the event the Indian owners do not wish tm take custody or otherwise
dispose of the archaeological resources. Applicants shall submit
written certification, signed by an authorized official of the
institution, or willingness tm assume curatorial responsibility for the
collections, if applicable, and/or the records, data, photographs, and
other documents derived from the proposed work.
(c) The Federal land manager may require additional information,
pertinent to land management responsibilities, to be included in the
application for permit and shall so inform the applicant.
(d) Paperwork Reduction Act. The information collection requirement
contained in 1312.6 of these regulations has been approved by the
Office of Management and Budget under 44 U.S.C. 3501 et seq. and
assigned clearance number 1024-0037. The purpose of the information
collection is to meet statutory and administrative requirements in the
public interest. The information will be used to assist Federal land
managers in determining that applicants for permits are qualified, that
the work proposed would further archaeological knowledge, that
archaeological resources and associated records and data will be
properly preserved, and that the permitted activity would not conflict
with the management of the public lands involved. Response to the
information requirement is necessary in order for an applicant to obtain
a benefit.
(Approved by the Office of Management and Budget under control number
1024-0037)
18 CFR 1312.7 Notification to Indian tribes of possible harm to, or
destruction of, sites on public lands having religious or cultural
importance.
(a) If the issuance of a permit under this part may result in harm
to, or destruction of, any Indian tribal religious or cultural site on
public lands, as determined by the Federal land manager, at least 30
days before issuing such a permit the Federal land manager shall notify
any Indian tribe which may consider the site as having religious or
cultural importance. Such notice shall not be deemed a disclosure to
the public for purposes of section 9 of the Act.
(1) Notice by the Federal land manager to any Indian tribe shall be
sent to the chief executive officer or other designated official of the
tribe. Indian tribes are encouraged to designate a tribal official to
be the focal point for any notification and discussion between the tribe
and the Federal land manager.
(2) The Federal land manager may provide notice to any other Native
American group that is known by the Federal land manager to consider
sites potentially affected as being of religious or cultural importance.
(3) Upon request during the 30-day period, the Federal land manager
may meet with official representatives of any Indian tribe or group to
discuss their interests, including ways to avoid or mitigate potential
harm or destruction such as excluding sites from the permit area. Any
mitigation measures which are adopted shall be incorporated into the
terms and conditions of the permit under 1312.9.
(4) When the Federal land manager detemines that a permit applied for
under this part must be issued immediately because of an imminent threat
of loss or destruction of an archaeological resource, the Federal land
manager shall so notify the appropriate tribe.
(b)(1) In order to identify sites of religious or cultural
importance, the Federal land manager shall seek to identify all Indian
tribes having aboriginal or historic ties to the lands under the Federal
land manager's jurisdiction and seek to determine, from the chief
executive officer or other designated official of any such tribe, the
location and nature of specific sites of religious or cultural
importance so that such information may be on file for land management
purposes. Information on sites eligible for or included in the National
Register of Historic Places may be withheld from public disclosure
pursuant to section 304 of the Act of October 15, 1966, as amended (16
U.S.C. 470w-3).
(2) If the Federal land manager becomes aware of a Native American
group that is not an Indian tribe as defined in this part but has
aboriginal or historic ties to public lands under the Federal land
manager's jurisdiction, the Federal land manager may seek to communicate
with official representatives of that group to obtain information on
sites they may consider to be of religious or cultural importance.
(3) The Federal land manager may enter into agreement with any Indian
tribe or other Native American group for determining locations for which
such tribe or group wishes to receive notice under this section.
18 CFR 1312.8 Issuance of permits.
(a) The Federal land manager may issue a permit, for a specified
period of time appropriate to the work to be conducted, upon determining
that:
(1) The applicant is appropriately qualified, as evidenced by
training, education, and/or experience, and possesses demonstrable
competence in archaeological theory and methods, and in collecting,
handling, analyzing, evaluating, and reporting archaeological data,
relative to the type and scope of the work proposed, and also meets the
following minimum qualifications:
(i) A graduate degree in anthropology or archaeology, or equivalent
training and experience;
(ii) The demonstrated ability to plan, equip, staff, organize, and
supervise activity of the type and scope proposed;
(iii) The demonstrated ability to carry research to completion, as
evidenced by timely completion of theses, research reports, or similar
documents;
(iv) Completion of at least 16 months of professional experience
and/or specialized training in archaeological field, laboratory, or
library research, administration, or management, including at least 4
months experience and/or specialized training in the kind of activity
the individual proposes to conduct under authority of a permit; and
(v) Applicants proposing to engage in historical archaeology should
have had at least one year of experience in research concerning
archaeological resources of the historic period. Applicants proposing
to engage in prehistoric archaeology should have had at least one year
of experience in research concerning archaeological resources of the
prehistoric period.
(2) The proposed work is to be undertaken for the purpose of
furthering archaeological knowledge in the public interest, which may
include but need not be limited to, scientific or scholarly research,
and preservation of archaeological data;
(3) The proposed work, including time, scope, location, and purpose,
is not inconsistent with any management plan or established policy,
objectives, or requirements applicable to the management of the public
lands concerned;
(4) Where the proposed work consists of archaelogical survey and/or
data recovery undertaken in accordance with other approved uses of the
public lands or Indian lands, and the proposed work has been agreed to
in writing by the Federal land manager pursuant to section 106 of the
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2)
and (3) shall be deemed satisfied by the prior approval.
(5) Written consent has been obtained, for work proposed on Indian
lands, from the Indian landowner and the Indian tribe having
jurisdiction over such lands;
(6) Evidence is submitted to the Federal land manager that any
university, museum, or other scientific or educational institution
proposed in the application as the repository possesses adequate
curatorial capability for safeguarding and preserving the archaeological
resources and all associated records; and
(7) The applicant has certified that, not later than 90 days after
the date the final report is submitted to the Federal land manager, the
following will be delivered to the appropriate official of the approved
university, museum, or other scientific or educational institution,
which shall be named in the permit:
(i) All artifacts, samples, collections, and copies of records, data,
photographs, and other documents resulting from work conducted under the
requested permit where the permit is for the excavation and/or removal
of archaeological resources from public lands.
(ii) All artifacts, samples and collections resulting from work under
the requested permit for which the custody or disposition is not
undertaken by the Indian owners, and copies of records, data,
photographs, and other documents resulting from work conducted under the
requested permit, where the permit is for the excavation and/or removal
of archaeological resources from Indian lands.
(b) When the area of the proposed work would cross jurisdictional
boundaries, so that permit applications must be submitted to more than
one Federal land manager, the Federal land managers shall coordinate the
review and evaluation of applications and the issuance of permits.
(49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984)
18 CFR 1312.9 Terms and conditions of permits.
(a) In all permits issued, the Federal land manager shall specify:
(1) The nature and extent of work allowed and required under the
permit, including the time, duration, scope, location, and purpose of
the work;
(2) The name of the individual(s) responsible for conducting the work
and, if different, the name of the individual(s) responsible for
carrying out the terms and conditions of the permit;
(3) The name of any university, museum, or other scientific or
educational insitutions in which any collected materials and data shall
be deposited; and
(4) Reporting requirements.
(b) The Federal land manager may specify such terms and conditions as
deemed necessary, consistent with this part, to protect public safety
and other values and/or resources, to secure work areas, to safeguard
other legitimate land uses, and to limit activities incidental to work
authorized under a permit.
(c) The Federal land manager shall include in permits issued for
archaeological work on Indian lands such terms and conditions as may be
requested by the Indian landowner and the Indian tribe having
jurisdiction over the lands, and for archaeological work on public lands
shall include such terms and conditions as may have been developed
pursuant to 1312.7.
(d) Initiation of work or other activities under the authority of a
permit signifies the permittee's acceptance of the terms and conditions
of the permit.
(e) The permittee shall not be released from requirements of a permit
until all outstanding obligations have been satisfied, whether or not
the term of the permit has expired.
(f) The permittee may request that the Federal land manager extend or
modify a permit.
(g) The permittee's performance under any permit issued for a period
greater than 1 year shall be subject to review by the Federal land
manager, at least annually.
18 CFR 1312.10 Suspension and revocation of permits.
(a) Suspension or revocation for cause. (1) The Federal land manager
may suspend a permit issued pursuant to this part upon determining that
the permittee has failed to meet any of the terms and conditions of the
permit or has violated any prohibition of the Act or 1312.4. The
Federal land manager shall provide written notice to the permittee of
the suspension, the cause thereof, and the requirements which must be
met before the suspension will be removed.
(2) The Federal land manager may revoke a permit upon assessment of a
civil penalty under 1312.15 upon the permittee's conviction under
section 6 of the Act, or upon determining that the permittee has failed
after notice under this section to correct the situation which led to
suspension of the permit.
(b) Suspension or revocation for management purposes. The Federal
land manager may suspend or revoke a permit, without liability to the
United States, its agents, or employees, when continuation of work under
the permit would be in conflict with management requirements not in
effect when the permit was issued. The Federal land manager shall
provide written notice to the permittee stating the nature of and basis
for the suspension or revocation.
(49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984)
18 CFR 1312.11 Appeals relating to permits.
Any affected person may appeal permit issuance, denial of permit
issuance, suspension, revocation, and terms and conditions of a permit
through existing administrative appeal procedures, or through procedures
which may be established by the Federal land manager pursuant to section
10(b) of the Act and this part.
18 CFR 1312.12 Relationship to section 106 of the National Historic
Preservation Act.
Issuance of a permit in accordance with the Act and this part does
not constitute an undertaking requiring compliance with section 106 of
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance
of such a permit does not excuse the Federal land manager from
compliance with section 106 where otherwise required.
18 CFR 1312.13 Custody of archaeological resources.
(a) Archaeological resources excavated or removed from the public
lands remain the property of the United States.
(b) Archaeological resources excavated or removed from Indian lands
remain the property of the Indian or Indian tribe having rights of
ownership over such resources.
(c) The Secretary of the Interior may promulgate regulations
providing for the exchange of archaeological resources among suitable
universities, museums, or other scientific or educational institutions,
for the ultimate disposition of archaeological resources, and for
standards by which archaeological resources shall be preserved and
maintained, when such resources have been excavated or removed from
public lands and Indian lands.
(d) In the absence of regulations referenced in paragraph (c) of this
section, the Federal land manager may provide for the exchange of
archaeological resources among suitable universities, museums, or other
scientific or educational institutions, when such resources have been
excavated or removed from public lands under the authority of a permit
issued by the Federal land manager.
18 CFR 1312.14 Determination of archaeological or commercial value and
cost of restoration and repair.
(a) Archaeological value. For purposes of this part, the
archaeological value of any archaeological resource involved in a
violation of the prohibitions in 1312.4 of this part or conditions of a
permit issued pursuant to this part shall be the value of the
information associated with the archaeological resource. This value
shall be appraised in terms of the costs of the retrieval of the
scientific information which would have been obtainable prior to the
violation. These costs may include, but need not be limited to, the
cost of preparing a research design, conducting field work, carrying out
laboratory analysis, and preparing reports as would be necessary to
realize the information potential.
(b) Commercial value. For purposes of this part, the commercial
value of any archaeological resource involved in a violation of the
prohibitions in 1312.4 of this part or conditions of a permit issued
pursuant to this part shall be its fair market value. Where the
violation has resulted in damage to the archaeological resource, the
fair market value should be determined using the condition of the
archaeological resource prior to the violation, to the extent that its
prior condition can be ascertained.
(c) Cost of restoration and repair. For purposes of this part, the
cost of restoration and repair of archaeological resources damaged as a
result of a violation of prohibitions or conditions pursuant to this
part, shall be the sum of the costs already incurred for emergency
restoration or repair work, plus those costs projected to be necessary
to complete restoration and repair, which may include, but need not be
limited to, the costs of the following:
(1) Reconstruction of the archaeological resource;
(2) Stabilization of the archaeological resource;
(3) Ground contour reconstruction and surface stabilization;
(4) Research necessary to carry out reconstruction or stabilization;
(5) Physical barriers or other protective devices, necessitated by
the disturbance of the archaeological resource, to protect it from
further disturbance;
(6) Examination and analysis of the archaeological resource including
recording remaining archaeological information, where necessitated by
disturbance, in order to salvage remaining values which cannot be
otherwise conserved;
(7) Reinterment of human remains in accordance with religious custom
and State, local, or tribal law, where appropriate, as determined by the
Federal land manager.
(8) Preparation of reports relating to any of the above activities.
18 CFR 1312.15 Assessment of civil penalties.
(a) The Federal land manager may assess a civil penalty against any
person who has violated any prohibition contained in 1312.4 or who has
violated any term or condition included in a permit issued in accordance
with the Act and this part.
(b) Notice of violation. The Federal land manager shall serve a
notice of violation upon any person believed to be subject to a civil
penalty, either in person or by registered or certified mail (return
receipt requested). The Federal land manager shall include in the
notice:
(1) A concise statement of the facts believed to show a violation;
(2) A specific reference to the provision(s) of this part or to a
permit issued pursuant to this part allegedly violated;
(3) The amount of penalty proposed to be assessed, including any
initial proposal to mitigate or remit where appropriate, or a statement
that notice of a proposed penalty amount will be served after the
damages associated with the alleged violation have been ascertained;
(4) Notification of the right to file a petition for relief pursuant
to paragraph (d) of this section, or to await the Federal land manager's
notice of assessment, and to request a hearing in accordance with
paragraph (g) of this section. The notice shall also inform the person
of the right to seek judicial review of any final administrative
decision assessing a civil penalty.
(c) The person served with a notice of violation shall have 45
calendar days from the date of its service (or the date of service of a
proposed penalty amount, if later) in which to respond. During this
time the person may:
(1) Seek informal discussions with the Federal land manager;
(2) File a petition for relief in accordance with paragraph (d) of
this section;
(3) Take no action and await the Federal land manager's notice of
assessment;
(4) Accept in writing or by payment the proposed penalty, or any
mitigation or remission offered in the notice. Acceptance of the
proposed penalty or mitigation or remission shall be deemed a waiver of
the notice of assessment and of the right to request a hearing under
paragraph (g) of this section.
(d) Petition for relief. The person served with a notice of
violation may request that no penalty be assessed or that the amount be
reduced, by filing a petition for relief with the Federal land manager
within 45 calendar days of the date of service of the notice of
violation (or of a proposed penalty amount, if later). The petition
shall be in writing and signed by the person served with the notice of
violation. If the person is a corporation, the petition must be signed
by an officer authorized to sign such documents. The petition shall set
forth in full the legal or factual basis for the requested relief.
(e) Assessment of penalty. (1) The Federal land manager shall assess
a civil penalty upon expiration of the period for filing a petition for
relief, upon completion of review of any petition filed, or upon
completion of informal discussions, whichever is later.
(2) The Federal land manager shall take into consideration all
available information, including information provided pursuant to
paragraphs (c) and (d) of this section or furnished upon further request
by the Federal land manager.
(3) If the facts warrant a conclusion that no violation has occurred,
the Federal land manager shall so notify the person served with a notice
of violation, and no penalty shall be assessed.
(4) Where the facts warrant a conclusion that a violation has
occurred, the Federal land manager shall determine a penalty amount in
accordance with 1312.16.
(f) Notice of assessment. The Federal land manager shall notify the
person served with a notice of violation of the penalty amount assessed
by serving a written notice of assessment, either in person or by
registered or certified mail (return receipt requested). The Federal
land manager shall include in the notice of assessment:
(1) The facts and conclusions from which it was determined that a
violation did occur;
(2) The basis in 1312.16 for determining the penalty amount assessed
and/or any offer to mitigate or remit the penalty; and
(3) Notification of the right to request a hearing, including the
procedures to be followed, and to seek judicial review of any final
administrative decision assessing a civil penalty.
(g) Hearings. (1) Except where the right to request a hearing is
deemed to have been waived as provided in paragraph (c)(4) of this
section, the person served with a notice of assessment may file a
written request for a hearing with the adjudicatory body specified in
the notice. The person shall enclose with the request for hearing a
copy of the notice of assessment, and shall deliver the request as
specified in the notice of assessment, personally or by registered or
certified mail (return receipt requested).
(2) Failure to deliver a written request for a hearing within 45 days
of the date of service of the notice of assessment shall be deemed a
waiver of the right to a hearing.
(3) Any hearing conducted pursuant to this section shall be held in
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil
penalty assessed shall be determined in accordance with this part, and
shall not be limited by the amount assessed by the Federal land manager
under paragraph (f) of this section or any offer of mitigation or
remission made by the Federal land manager.
(h) Final administrative decision. (1) Where the person served with
a notice of violation has accepted the penalty pursuant to paragraph
(c)(4) of this section, the notice of violation shall constitute the
final administrative decision;
(2) Where the person served with a notice of assessment has not filed
a timely request for a hearing pursuant to paragraph (g)(1) of this
section, the notice of assessment shall constitute the final
administrative decision;
(3) Where the person served with a notice of assessment has filed a
timely request for a hearing pursuant to paragraph (g)(1) of this
section, the decision resulting from the hearing or any applicable
administrative appeal therefrom shall constitute the final
administrative decision.
(i) Payment of penalty. (1) The person assessed a civil penalty
shall have 45 calendar days from the date of issuance of the final
administrative decision in which to make full payment of the penalty
assessed, unless a timely request for appeal has been filed with a U.S.
District Court as provided in section 7(b)(1) of the Act.
(2) Upon failure to pay the penalty, the Federal land manager may
request the Attorney General to institute a civil action to collect the
penalty in a U.S. District Court for any district in which the person
assessed a civil penalty is found, resides, or transacts business.
Where the Federal land manager is not represented by the Attorney
General, a civil action may be initiated directly by the Federal land
manager.
(j) Other remedies not waived. Assessment of a penalty under this
section shall not be deemed a waiver of the right to pursue other
available legal or administrative remedies.
18 CFR 1312.16 Civil penalty amounts.
(a) Maximum amount of penalty. (1) Where the person being assessed a
civil penalty has not committed any previous violation of any
prohibition in 1312.4 or of any term or condition included in a permit
issued pursuant to this part, the maximum amount of the penalty shall be
the full cost of restoration and repair of archaeological resources
damaged plus the archaeological or commercial value of archaeological
resources destroyed or not recovered.
(2) Where the person being assessed a civil penalty has committed any
previous violation of any prohibition in 1312.4 or of any term or
condition included in a permit issued pursuant to this part, the maximum
amount of the penalty shall be double the cost of restoration and repair
plus double the archaeological or commercial value of archaeological
resources destroyed or not recovered.
(3) Violations limited to the removal of arrowheads located on the
surface of the ground shall not be subject to the penalties prescribed
in this section.
(b) Determination of penalty amount, mitigation, and remission. The
Federal land manager may assess a penalty amount less than the maximum
amount of penalty and may offer to mitigate or remit the penalty.
(1) Determination of the penalty amount and/or a proposal to mitigate
or remit the penalty may be based upon any of the following factors:
(i) Agreement by the person being assessed a civil penalty to return
to the Federal land manager archaeological resources removed from public
lands or Indian lands;
(ii) Agreement by the person being assessed a civil penalty to assist
the Federal land manager in activity to preserve, restore, or otherwise
contribute to the protection and study of archaeological resources on
public lands or Indian lands;
(iii) Agreement by the person being assessed a civil penalty to
provide information which will assist in the detection, prevention, or
prosecution of violations of the Act or this part;
(iv) Demonstration of hardship or inability to pay, provided that
this factor shall only be considered when the person being assessed a
civil penalty has not been found to have previously violated the
regulations in this part;
(v) Determination that the person being assessed a civil penalty did
not willfully commit the violation;
(vi) Determination that the proposed penalty would constitute
excessive punishment under the circumstances;
(vii) Determination of other mitigating circumstances appropriate to
consideration in reaching a fair and expeditious assessment.
(2) When the penalty is for a violation on Indian lands, the Federal
land manager shall consult with and consider the interests of the Indian
landowner and the Indian tribe having jurisdiction over the Indian lands
prior to proposing to mitigate or remit the penalty.
(3) When the penalty is for a violation which may have had an effect
on a known Indian tribal religious or cultural site on public lands, the
Federal land manager should consult with and consider the interests of
the affected tribe(s) prior to proposing to mitigate or remit the
penalty.
(49 FR 1028, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987)
18 CFR 1312.17 Other penalties and rewards.
(a) Section 6 of the Act contains criminal prohibitions and
provisions for criminal penalties. Section 8(b) of the Act provides
that archaeological resources, vehicles, or equipment involved in a
violation may be subject to forfeiture.
(b) Section 8(a) of the Act provides for rewards to be made to
persons who furnish information which leads to conviction for a criminal
violation or to assessment of a civil penalty. The Federal land manager
may certify to the Secretary of the Treasury that a person is eligible
to receive payment. Officers and employees of Federal, State, or local
government who furnish information or render service in the performance
of their official duties, and persons who have provided information
under 1312.16(b)(1)(iii) shall not be certified eligible to receive
payment of rewards.
(c) In cases involving Indian lands, all civil penalty monies and any
item forfeited under the provisions of this section shall be transferred
to the appropriate Indian or Indian tribe.
18 CFR 1312.18 Confidentiality of archaeological resource information.
(a) The Federal land manager shall not make available to the public,
under Subchapter II of Chapter 5 of Title 5 of the U.S. Code or any
other provision of law, information concerning the nature and location
of any archaeological resource, with the following exceptions:
(1) The Federal land manager may make information available, provided
that the disclosure will further the purposes of the Act and this part,
or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c), without
risking harm to the archaeological resource or to the site in which it
is located.
(2) The Federal land manager shall make information available, when
the Governor of any State has submitted to the Federal land manager a
written request for information, concerning the archaeological resources
within the requesting Governor's State, provided that the request
includes:
(i) The specific archaeological resource or area about which
information is sought;
(ii) The purpose for which the information is sought; and
(iii) The Governor's written commitment to adequately protect the
confidentiality of the information.
(49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984)
18 CFR 1312.19 Report.
Each Federal land manager, when requested by the Secretary of the
Interior, shall submit such information as is necessary to enable the
Secretary to comply with section 13 of the Act.
18 CFR 1312.19 PART 1313 -- ENFORCEMENT OF NONDISCRIMINATION ON THE
BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE TENNESSEE
VALLEY AUTHORITY
Sec..
1313.101 Purpose.
1313.102 Application.
1313.103 Definitions.
1313.104 -- 1313.109 (Reserved)
1313.110 Self-evaluation.
1313.111 Notice.
1313.112 -- 1313.129 (Reserved)
1313.130 General prohibitions against discrimination.
1313.131 -- 1313.139 (Reserved)
1313.140 Employment.
1313.141 -- 1313.148 (Reserved)
1313.149 Program accessibility: Discrimination prohibited.
1313.150 Program accessibility: Existing facilities.
1313.151 Program accessibility: New construction and alterations.
1313.152 -- 1313.159 (Reserved)
1313.160 Communications.
1313.161 -- 1313.169 (Reserved)
1313.170 Compliance procedures.
Authority: 29 U.S.C. 794.
Source: 51 FR 22889, 22896, June 23, 1986, unless otherwise noted.
18 CFR 1313.101 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
18 CFR 1313.102 Application.
This part applies to all programs or activities conducted by the
agency.
18 CFR 1313.103 Definitions.
For purposes of this part, the term --
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ''physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alocoholism.
(2) Major life activities includes functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Historic preservation programs means programs conducted by the agency
that have preservation of historic properties as a primary purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Qualified handicapped person means --
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, a handicapped person who is a member of
a class of persons otherwise entitled by statute, regulation, or agency
policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can acheive the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature;
(3) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by 1313.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
1313.104 -- 1313.109 (Reserved)
18 CFR 1313.110 Self-evaluation.
(a) The agency shall, by August 24, 1987, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the agency shall proceed to
make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including handicapped persons or organizations representing handicapped
persons, to participate in the self-evaluation process by submitting
comments (both oral and written).
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
18 CFR 1313.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the head of the agency
finds necessary to apprise such persons of the protections against
discrimination assured them by section 504 and this regulation.
1313.112 -- 1313.129 (Reserved)
18 CFR 1313.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap --
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangments, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified handicapped persons to
discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified handicapped persons to discrimination on
the basis of handicap. However, the programs or activities of entities
that are licensed or certified by the agency are not, themselves,
covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
1313.131 -- 1313.139 (Reserved)
18 CFR 1313.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
conducted by the agency. The definitions, requirements, and procedures
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as
established by the Equal Employment Opportunity Commission in 29 CFR
Part 1613, shall apply to employment in federally conducted programs or
activities.
1313.141 -- 1313.148 (Reserved)
18 CFR 1313.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 1313.150, no qualified handicapped
person shall, because the agency's facilities are inaccessible to or
unusable by handicapped persons, be denied the benefits of, be excluded
from participation in, or otherwise be subjected to discrimination under
any program or activity conducted by the agency.
18 CFR 1313.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not --
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons;
(2) In the case of historic preservation programs, require the agency
to take any action that would result in a substantial impairment of
significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with 3.150(a) would result in such alteration
or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
(b) Methods -- (1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of the services to accessible buildings,
assignment of aides to beneficiaries, home visits, delivery of services
at alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by handicapped persons. The agency is not
required to make structural changes in existing facilities where other
methods are effective in achieving compliance with this section. The
agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
handicapped persons in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
1313.150(a) in historic preservation programs, the agency shall give
priority to methods that provide physical access to handicapped persons.
In cases where a physical alteration to an historic property is not
required because of 1313.150(a)(2) or (a)(3), alternative methods of
achieving program accessibility include --
(i) Using audio-visual materials and devices to depict those portions
of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide handicapped persons into or through
portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by October 21, 1986, except
that where structural changes in facilities are undertaken, such changes
shall be made by August 22, 1989, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by February 23, 1987, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall
be made available for public inspection. The plan shall, at a minimum
--
(1) Identify physical obstacles in the agency's facilities that limit
the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
18 CFR 1313.151 Program accessibility: New construction and
alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of
the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in
41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
1313.152 -- 1313.159 (Reserved)
18 CFR 1313.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf person (TDD's) or
equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and adminstrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with 1313.160 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity, and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
handicapped persons receive the benefits and services of the program or
activity.
1313.161 -- 1313.169 (Reserved)
18 CFR 1313.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
Part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Supervisor, Contracting and Community Assistance, shall be
responsible for coordinating implementation of this section. Complaints
may be sent to Supervisor, Contracting and Community Assistance,
Tennessee Valley Authority, E5 B30, 400 West Summit Hill Drive,
Knoxville, Tennessee 37902.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by 1313.170(g). The agency may extend
this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the
agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
(51 FR 22889, 22896, June 23, 1986, as amended at 51 FR 22890, June
23, 1986)
18 CFR 1313.170 PART 1314 -- BOOK-ENTRY PROCEDURES FOR TVA POWER
SECURITIES
Sec.
1314.1 Applicability and effect.
1314.2 Definition of terms.
1314.3 Authority of Reserve Banks.
1314.4 Scope and effect of book-entry TVA power securities accounts.
1314.5 Transfer or pledge.
1314.6 Delivery of book-entry TVA power securities.
1314.7 Classes of accounts.
1314.8 Identification of accounts.
1314.9 Servicing book-entry TVA power securities.
Authority: The Tennessee Valley Authority Act of 1933, as amended,
16 U.S.C. 831-831dd.
Source: 54 FR 42456, Oct. 16, 1989, unless otherwise noted.
18 CFR 1314.1 Applicability and effect.
(a) Applicability. The regulations in this Part govern the issuance
of, and transactions in, all TVA power securities (as defined herein)
issued by TVA in book-entry form on or after the effective date of this
part.
(b) Effect. The TVA power securities to which these regulations
apply are obligations, which, by the terms of their issue, are available
exclusively in book-entry form.
18 CFR 1314.2 Definition of terms.
In this part, unless the context otherwise requires or indicates:
(a) TVA means the Tennessee Valley Authority, a wholly owned
corporate agency and instrumentality of the United States of America
created and existing under the Tennessee Valley Authority Act of 1933,
as amended (16 U.S.C. 831-831dd).
(b) Reserve Bank means the Federal Reserve Bank of New York and its
branches (and any other Federal Reserve Bank, and its branches, which
agrees to issue TVA power securities in book-entry form) as fiscal agent
of the United States acting on behalf of TVA and, when indicated, acting
in its individual capacity.
(c) The TVA Basic Bond Resolution means the Basic Tennessee Valley
Authority Power Bond Resolution /1/ adopted by the TVA Board of
Directors on October 6, 1960, as heretofore or hereafter amended.
(d) TVA power security means a TVA power bond, TVA power bond
anticipation obligation, TVA power note, or other TVA power evidences of
indebtedness issued by TVA under section 15d of the TVA Act, as amended,
and the TVA Basic Bond Resolution.
(e) Definitive form means engraved or printed form.
(f) Book-entry TVA power security means a TVA power security issued
under, and in the form of an entry made as prescribed in, this part on
the records of a Reserve Bank.
(g) TVA power bond means any TVA power security issued by TVA under
2.2 of the TVA Basic Bond Resolution and the supplemental resolution
adopted by the TVA Board of Directors authorizing the issuance thereof.
(h) TVA power bond anticipation obligation means any TVA power
security issued under 2.4 of the TVA Basic Bond Resolution.
(i) Other TVA power evidences of indebtedness means any TVA power
security issued under 2.5 of the TVA Basic Bond Resolution.
(j) TVA power note means any other TVA power evidences of
indebtedness in the form of a note having a maturity at the date of
issue of less than one year.
(k) Pledge includes a pledge of, or any other security interest in,
book-entry TVA power securities as collateral for loans or advances or
to secure deposits of public moneys or the performance of an obligation.
(l) Depository institution means any national bank, State bank, other
bank or trust company, or any other financial institution, authorized by
law to secure Reserve Bank services.
(m) CUSIP number is a unique identification for each security issue
established by the Committee on Uniform Security Identification
Procedures.
(n) Date of call is the date on which TVA will make payment of a
book-entry TVA power security before maturity in accordance with its
terms.
/1/ A copy of the TVA Basic Bond Resolution may be obtained upon
request directed to TVA, 400 West Summit Hill Drive, Knoxville, Tenn.
37902, Attn.: Treasurer.
18 CFR 1314.3 Authority of Reserve Banks.
Each Reserve Bank is hereby authorized, in accordance with the
provisions of this part, to:
(a) Issue book-entry TVA power securities by means of entries on its
records, which shall include the name of the Reserve Bank's depositor,
the latter's employer identification number, where appropriate, and the
amount, maturity date and CUSIP number of each security;
(b) Otherwise service and maintain book-entry TVA power securities;
and
(c) Issue a confirmation of transaction in the form of an advice
(serially numbered or otherwise), which specifies the amount, maturity
date and CUSIP number of the security, as well as the date of the
transaction.
18 CFR 1314.4 Scope and effect of book-entry TVA power securities
accounts.
(a) Scope and effect of accounts at Reserve Bank. Each Reserve Bank,
as fiscal agent of the United States acting on behalf of TVA, may apply
the regulations in this part to any book-entry TVA power securities in
accounts held in its individual capacity under terms and conditions
which indicate that the Reserve Bank will continue to maintain such
deposit accounts in its individual capacity notwithstanding their
maintenance in book-entry form. This paragraph is applicable, but not
limited to, book-entry TVA power securities deposited or maintained:
(1) As collateral pledged to a Reserve Bank (in its individual
capacity) for advances by it;
(2) For a depository institution for its sole account;
(3) For a depository institution held for the account of its
customers;
(4) In connection with deposits in a depository institution of funds
of States, municipalities, or other political subdivisions;
(5) In connection with the performance of an obligation or duty under
Federal, State, municipal, or local law, or judgments or decrees of
courts.
The maintenance of book-entry TVA power securities under this
paragraph shall not derogate from or adversely affect the relationship
that would otherwise exist between a Reserve Bank in its individual
capacity and the entities for which accounts are maintained. With
respect to book-entry TVA power securities, the Reserve Bank is
authorized to take all actions necessary in respect of such securities
to enable the Reserve Bank, in its individual capacity, to perform its
obligations as depository with respect to such securities.
(b) Deposits not to be accepted. No deposits shall be accepted under
this section after the date of maturity or call of the security.
18 CFR 1314.5 Transfer or pledge.
(a) Reserve Bank records. A transfer or a pledge of book-entry TVA
power securities to a Reserve Bank or to any transferee or pledgee
eligible to maintain an appropriate book-entry account in its name with
a Reserve Bank under this part is effected and perfected,
notwithstanding any provision of law to the contrary, by the Reserve
Bank making an appropriate entry in its record of the book-entry TVA
power securities transferred or pledged. The making of such an entry in
the records of a Reserve Bank shall:
(1) Have the same effect as the delivery of TVA power securities in
bearer definitive form;
(2) Have the effect of a taking of delivery by the transferee or
pledgee;
(3) Constitute the transferee or pledgee a holder;
(4) If a pledge, effect a perfected security interest therein in
favor of the pledgee.
A transfer or pledge of book-entry TVA power securities under this
paragraph (a) shall have priority over any transfer, pledge or other
interest, theretofore or thereafter effected or perfected under
paragraph (b) of this section or in any other manner.
(b) Member banks or others. A transfer or a pledge of book-entry TVA
power securities, or any interest therein, maintained by a Reserve Bank
(in its individual capacity or as fiscal agent of the United States
acting on behalf of TVA) in a book-entry account under this part is
effected, and a pledge is perfected, by any means that would be
effective under applicable law to effect a transfer or to effect and
perfect a pledge of TVA power securities or any interest therein, if
such securities were maintained by the Reserve Bank in bearer definitive
form. For purposes of transfer or pledge hereunder, book-entry TVA
power securities maintained by a Reserve Bank shall, notwithstanding any
provision of law to the contrary, be deemed to be maintained in bearer
definitive form. A Reserve Bank maintaining book-entry TVA power
securities either in its individual capacity or as fiscal agent of the
United States acting on behalf of TVA is not a bailee for purposes of
notification of pledges of those securities under this paragraph (b) or
a third person in possession for purposes of acknowledgment of transfers
thereof under this paragraph (b). Where book-entry TVA power securities
are recorded on the books of an entity for account of the pledgor or
transferor thereof and such securities are maintained with the Reserve
Bank, such entity shall, for purposes of perfecting a pledge of such
securities or effecting their delivery to a purchaser under applicable
provisions of law, be the bailee to which notification of the pledge of
the securities may be given or the third person in possession from which
acknowledgment of the holding of the securities for the purchase may be
obtained. The Reserve Bank will not accept notice or advice of a
transfer or a pledge effected or perfected under this paragraph (b), and
any such notice or advice shall have no effect. The Reserve Bank may
continue to deal with its depositors in accordance with the provisions
of this part, notwithstanding any transfer or pledge effected or
perfected under this paragraph (b).
(c) Filing and recording unnecessary. No filing or recording with a
public recording office or officer shall be necessary or effective with
respect to any transfer or pledge of book-entry TVA power securities or
any interest therein.
(d) Nonconversion. Book-entry TVA power securities are not
convertible into definitive form, nor are definitive form TVA power
securities convertible into book-entry form.
(e) Transfer by Reserve Bank. A transfer of book-entry TVA power
securities within a Reserve Bank shall be made in accordance with
procedures established by the Reserve Bank not inconsistent with this
part. The transfer of book-entry TVA power securities by a Reserve Bank
may be made through a telegraphic transfer procedure.
(f) Timeliness of requests. All requests for transfer or any
authorized transaction must be received prior to the date of call or
maturity of the TVA power securities.
18 CFR 1314.6 Delivery of book-entry TVA power securities.
Where a Reserve Bank has received book-entry TVA power securities and
effected pledges, made entries regarding them, or transferred or
delivered them according to the instructions of its depositor, it shall
not be liable for conversion or for participation in breach of fiduciary
duty even though the depositor has no right to dispose of or take other
action in respect of such securities. A Reserve Bank shall be fully
discharged of its obligations under this part by the transfer or
delivery of book-entry TVA power securities to its depositor or upon the
order of such depositor.
18 CFR 1314.7 Classes of accounts.
A Reserve Bank is authorized to maintain book-entry TVA power
securities for depository institutions located in its district for
securities such institutions hold for their own account, or hold for the
account of their customers, and as otherwise specified in 1314.4.
Purchasers of book-entry TVA power securities, on original issue or
otherwise, may have such securities maintained in book-entry form at
depository institutions of a Reserve Bank, or in accounts maintained at
entities providing securities safekeeping services for customers (e.g.,
securities dealers) which have related accounts at such depository
institutions.
18 CFR 1314.8 Identification of accounts.
Book-entry accounts may be established in such form or forms as
customarily permitted by the entity (e.g., depository institution,
securities dealer, etc.) maintaining them, except that each account
should include data to permit both customer identification by name,
address, and taxpayer identifying number, as well as a determination of
the book-entry TVA power securities being held in such account by
amount, maturity, date and CUSIP number, and of transactions relating
thereto.
18 CFR 1314.9 Servicing book-entry TVA power securities.
(a) Payment of interest. Interest becoming due on book-entry TVA
power securities shall be charged to the appropriate TVA account at the
Federal Reserve Bank of New York on the interest-due date and remitted
or credited in accordance with the instructions of the depository
institution.
(b) Payment of principal and redemption premiums. Upon call or at
maturity book-entry TVA power securities shall be redeemed and charged
to the appropriate TVA account at the Federal Reserve Bank of New York,
and the redemption proceeds, i.e., principal, redemption premium, and
any interest payable with the principal, shall be disposed of in
accordance with the instructions of the depository institution for whose
account the securities were maintained.
18 CFR 1314.9 PART 1315 -- NEW RESTRICTIONS ON LOBBYING
18 CFR 1314.9 Subpart A -- General
Sec.
1315.100 Conditions on use of funds.
1315.105 Definitions.
1315.110 Certification and disclosure.
18 CFR 1314.9 Subpart B -- Activities by Own Employees
1315.200 Agency and legislative liaison.
1315.205 Professional and technical services.
1315.210 Reporting.
18 CFR 1314.9 Subpart C -- Activities by Other Than Own Employees
1315.300 Professional and technical services.
18 CFR 1314.9 Subpart D -- Penalties and Enforcement
1315.400 Penalties.
1315.405 Penalty procedures.
1315.410 Enforcement.
18 CFR 1314.9 Subpart E -- Exemptions
1315.500 Secretary of Defense.
18 CFR 1314.9 Subpart F -- Agency Reports
1315.600 Semi-annual compilation.
1315.605 Inspector General report.
Appendix A to Part 1315 -- Certification Regarding Lobbying
Appendix B to Part 1315 -- Disclosure Form to Report Lobbying
Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 16
U.S.C. 831-831dd.
Source: 55 FR 6737 and 6748, Feb. 26, 1990, unless otherwise noted.
Cross Reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
18 CFR 1314.9 Subpart A -- General
18 CFR 1315.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in Appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in Appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in Appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in Appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
18 CFR 1315.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive
departments and agencies as well as independent regulatory commissions
and Government corporations, as defined in 31 U.S.C. 9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided in
section 4 of the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450B). Alaskan Natives are included under the definitions of
Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee, as
defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a
multi-State, regional, or interstate entity having governmental duties
and powers.
18 CFR 1315.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form, if
required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form, if
required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States to
insure or guarantee a loan exceeding $150,000,
Unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
Shall file a certification, and a disclosure form, if required, to
the next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e) of
this section shall be treated as a material representation of fact upon
which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23, 1989,
but not made before that date, certifications shall be required at award
or commitment, covering activities occurring between December 23, 1989,
and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either Subpart B
or C.
18 CFR 1315.110 Subpart B -- Activities by Own Employees
18 CFR 1315.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in 1315.100
(a), does not apply in the case of a payment of reasonable compensation
made to an officer or employee of a person requesting or receiving a
Federal contract, grant, loan, or cooperative agreement if the payment
is for agency and legislative liaison activities not directly related to
a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an unsolicited
proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an agency
pursuant to the provisions of the Small Business Act, as amended by
Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
18 CFR 1315.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 1315.100
(a), does not apply in the case of a payment of reasonable compensation
made to an officer or employee of a person requesting or receiving a
Federal contract, grant, loan, or cooperative agreement or an extension,
continuation, renewal, amendment, or modification of a Federal contract,
grant, loan, or cooperative agreement if payment is for professional or
technical services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) For purposes of paragraph (a) of this section, ''professional and
technical services'' shall be limited to advice and analysis directly
applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
18 CFR 1315.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
18 CFR 1315.210 Subpart C -- Activities by Other Than Own Employees
18 CFR 1315.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 1315.100
(a), does not apply in the case of any reasonable payment to a person,
other than an officer or employee of a person requesting or receiving a
covered Federal action, if the payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in 1315.110 (a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, ''professional and
technical services'' shall be limited to advice and analysis directly
applying any professional or technical discipline. For example,
drafting or a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
18 CFR 1315.300 Subpart D -- Penalties and Enforcement
18 CFR 1315.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
Appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section shall
be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
18 CFR 1315.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
18 CFR 1315.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
18 CFR 1315.410 Subpart E -- Exemptions
18 CFR 1315.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
18 CFR 1315.500 Subpart F -- Agency Reports
18 CFR 1315.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see Appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or any
successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and Budget
(OMB), are required to provide machine-readable compilations to the
Secretary of the Senate and the Clerk of the House of Representatives no
later than with the compilations due on May 31, 1991. OMB shall provide
detailed specifications in a memorandum to these agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
18 CFR 1315.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector General,
the agency official comparable to an Inspector General shall prepare and
submit the annual report, or, if there is no such comparable official,
the head of the agency shall prepare and submit the annual report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
18 CFR 1315.605 Pt. 1315, App. A
18 CFR 1315.605 Appendix A to Part 1315 -- Certification Regarding
Lobbying
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid
or will be paid to any person for influencing or attempting to influence
an officer or employee of any agency, a Member of Congress, an officer
or employee of Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
''Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ''Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering
into this transaction imposed by section 1352, title 31, U.S. Code. Any
person who fails to file the required statement shall be subject to a
civil penalty of not less than $10,000 and not more than $100,000 for
each such failure.
18 CFR 1315.605 Part 1315, App. B
18 CFR 1315.605 Appendix B to Part 1315 -- Disclosure Form to Report
Lobbying
insert illustration 532
insert illustration 533
insert illustration 534
18 CFR 1315.605 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Chap.
18 CFR 1315.605 Table of CFR Titles and Chapters
18 CFR 1315.605 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
18 CFR 1315.605 Title 2 -- (Reserved)
18 CFR 1315.605 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
18 CFR 1315.605 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
18 CFR 1315.605 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Counsel (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
18 CFR 1315.605 Title 6 (Reserved)
18 CFR 1315.605 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
XLII Rural Development Administration, Department of Agriculture
(Part 4284 )
18 CFR 1315.605 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
18 CFR 1315.605 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
18 CFR 1315.605 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
18 CFR 1315.605 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
18 CFR 1315.605 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Thrift Depositor Protection Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
18 CFR 1315.605 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
18 CFR 1315.605 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
18 CFR 1315.605 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
18 CFR 1315.605 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
18 CFR 1315.605 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
18 CFR 1315.605 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
18 CFR 1315.605 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
18 CFR 1315.605 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
18 CFR 1315.605 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
III Office of National Drug Control Policy (Parts 1400 -- 1499)
18 CFR 1315.605 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
18 CFR 1315.605 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
18 CFR 1315.605 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
18 CFR 1315.605 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
18 CFR 1315.605 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
18 CFR 1315.605 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
18 CFR 1315.605 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
18 CFR 1315.605 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200 -- 1299)
XII Federal Mediation and Conciliation Service (Parts 1400 -- 1499)
XIV Equal Employment Opportunity Commission (Parts 1600 -- 1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
18 CFR 1315.605 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
18 CFR 1315.605 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
18 CFR 1315.605 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200 -- 1299)
XVI Selective Service System (Parts 1600 -- 1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
XXIX Presidential Commission on the Assignment of Women in the Armed
Forces (Part 2900)
18 CFR 1315.605 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
18 CFR 1315.605 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
18 CFR 1315.605 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
18 CFR 1315.605 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900 -- 999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
18 CFR 1315.605 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400 -- 499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
18 CFR 1315.605 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
18 CFR 1315.605 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
18 CFR 1315.605 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
18 CFR 1315.605 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
18 CFR 1315.605 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
18 CFR 1315.605 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
18 CFR 1315.605 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
18 CFR 1315.605 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services
(Parts 200 -- 299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Administration for Children and Families, Department of Health
and Human Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Administration for Children and
Families Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Administration for Children and
Families, Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (Parts
2200 -- 2299)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400 --
2499)
XXV Commission on National and Community Service (Parts 2500 -- 2506)
18 CFR 1315.605 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
18 CFR 1315.605 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
18 CFR 1315.605 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
20 Nuclear Regulatory Commission (Parts 2000 -- 2099)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900 -- 9999)
18 CFR 1315.605 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Federal Transit Administration, Department of Transportation
(Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
18 CFR 1315.605 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
18 CFR 1315.605 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Tables of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies
Appearing in the CFR
18 CFR 1315.605 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on National and Community Service 45, XXV
Committee for Purchase from People who are Blind or Severely Disabled
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 12, VI
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National and Community Service, Commission on 45, XXV
National Credit Union Administration 12, VII
National Drug Control Policy, Office of 21, III
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I; 48, XX
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Office of National Drug Control Policy 21, III
Office of Navajo and Hopi Indian Relocation 25, IV
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Commission on the Assignment of Women in the Armed
Forces 32, XXIX
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Depositor Protection Oversight Board 12, XV
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Administration 15, XII
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
18 CFR 1315.605 18 CFR (4-1-93 Edition)
18 CFR 1315.605 List of CFR Sections Affected
18 CFR 1315.605 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven
separate volumes.
18 CFR 1315.605 1986
18 CFR
51 FR
Page
Chapter III
410 Revised 20960
Water Code amended 25031, 28810
430.19 Redesignated as 430.21; new 430.19 added 25031
430.21 Redesignated as 430.23; new 430.21 redesignated from 430.19
25031
430.23 Redesignated as 430.25; new 430.23 redesignated from 430.21
25031
430.24 Redesignated as 430.27 25031
430.25 Redesignated as 430.29; new 430.25 redesignated from 430.23
25031
430.27 Redesignated as 430.31; new 430.27 redesignated from 430.24
25031
430.29 Redesignated as 430.33; new 430.29 redesignated from 430.25
25031
430.31 Redesignated as 430.35; new 430.31 redesignated from 430.27
25031
430.33 Redesignated from 430.29 25031
430.35 Redesignated from 430.31 25031
Chapter XIII
1302.6 OMB number 9649
1302.7 OMB number 9649
1313 Added 22889, 22896
1313.170 (c) revised 22890
18 CFR 1315.605 1987
18 CFR
52 FR
Page
Chapter III
401 Authority citation revised 37602
401.91 -- 401.109 (Subpart G) Redesignated as 401.101 -- 401.119
(Subpart H) 37602
401.91 -- 401.99 (Subpart G) Added 37602
401.101 -- 401.119 (Subpart H) Redesignated from 401.91 -- 401.109
(Subpart G) 37602
401.111 -- 401.114 (Subpart H) Redesignated as 401.121 -- 401.124
(Subpart I) 37602
401.121 -- 401.124 (Subpart I) Redesignated from 401.111 -- 401.114
(Subpart H) 37602
410 Water Code amended 16239
Water Code corrected 17888
Chapter XIII
1301.1 -- 1301.4 (Subpart A) Subpart authority citation added 17939
1301.2 Revised 17939
1301.24 (d) added 7408
1306 Authority citation revised 48019
1306.1 Revised; interim 48019
(b) revised; interim; eff. 4-2-89 48019
1306.2 Removed; new 1306.2 redesignated from 1306.18; interim;
eff. 4-2-89 48019
1306.3 Removed; new 1306.3 redesignated from 1306.19; interim;
eff. 4-2-89 48019
1306.4 Removed; new 1306.4 redesignated from 1306.20; interim;
eff. 4-2-89 48019
1306.5 Removed; new 1306.5 redesignated from 1306.21; interim;
eff. 4-2-89 48019
1306.6 Removed; new 1306.6 redesignated from 1306.22; interim;
eff. 4-2-89 48019
1306.7 Removed; interim; eff. 4-2-89 48019
1306.8 Removed; interim; eff. 4-2-89 48019
1306.9 Removed; interim; eff. 4-2-89 48019
1306.10 Removed; interim; eff. 4-2-89 48019
1306.11 Removed; interim; eff. 4-2-89 48019
1306.12 Removed; interim; eff. 4-2-89 48019
1306.13 Removed; interim; eff. 4-2-89 48019
1306.14 Removed; interim; eff. 4-2-89 48019
1306.15 Removed; interim; eff. 4-2-89 48019
1306.16 Removed; interim; eff. 4-2-89 48019
1306.17 Removed; interim; eff. 4-2-89 48019
1306.18 Redesignated as 1306.2; interim; eff. 4-2-89 48019
1306.19 Redesignated as 1306.3; interim; eff. 4-2-89 48019
1306.20 Redesignated as 1306.4; interim; eff. 4-2-89 48019
1306.21 Redesignated as 1306.5; interim; eff. 4-2-89 48019
1306.22 Redesignated as 1306.6; interim; eff. 4-2-89 48019
1306.23 Removed; interim; eff. 4-2-89 48019
1310 Authority citation revised 25592
1310.2 (c) added 25592
1310.3 (d) redesignated as (e); new (d) added 25592
1312.16 (a) (1) and (2) revised 47721
18 CFR 1315.605 1988
18 CFR
53 FR
Page
Chapter I
381.401 Amended 15384
381.402 Revised 15382
381.403 Amended 15384
381.404 Amended 15384
381.405 Removed 15382
381.502 Revised 15382
381.503 Removed 15382
381.504 Removed 15382
381.505 Revised 15382
381.506 Amended 15384
381.507 Amended 15384
381.508 Amended 15384
381.509 Amended 15384
381.510 Amended 15384
381.601 (Subpart F) Added 15383
382 Clarification 46445
385 Authority citation revised 15032,
16408, 32039
Programs availability 30047
Record formats revised 35312, 44004
Software availability 45758
Rehearing denied 50943
385.501 Revised 16067
385.502 (a)(2) revised 16067
385.913 Revised 16408
385.1501 -- 385.1511 (Subpart O) Added 32039
385.2011 Added 15032
Rehearing granted and effective date suspended 16058
Eff. 8-1-88 19283
Implementation conference 32891
385.2012 Added 37546
Rehearing denied 47949
388 Authority citation revised 15032
Programs availability 30047
Record formats revised 35312, 44004
Software availability 45758
388.104 Revised 15383
388.112 (b) revised 15032
Rehearing granted and effective date suspended 16058
Eff. 8-1-88 19283
Implementation conference 32891
389 Filing time extended 36273
389.101 (b) table OMB numbers confirmed 12676
(b) table amended (OMB numbers) 12677, 31701
Chapter III
410 Water Code amended 1751
420.51 Undesignated center heading and section added 45260
Chapter XIII
1300 Authority citation revised 40217
1300.735-12 (b) revised 40217
1300.735-14 (c) added 40217
1300.735-41b Amended 40218
1300.735-43 Amended 40218
1300.735-49 Amended 40218
1301 Authority citation removed 40218
1301.1 -- 1301.2 (Subpart A) Authority citation revised 40218
1301.1 (a)(7) revised; (b) introductory text, (c)(1) (i), (ii),
(2)(ii), (3) (i) and (ii), and (e) amended 405
1301.1 (b) introductory text, (c)(1) (i) and (ii), (2) (i) and (ii),
and (3) (i) and (ii), and (e) amended 31316
1301.4 Removed 40218
1301.11 -- 1301.24 (Subpart B) Authority citation revised 40218
1301.12 (d) and (f) revised 30252
1301.14 (g) amended 30253
1301.17 (d) removed; (e) redesignated as (d) 30253
1301.19 (a) introductory text amended 30253
1301.23 (b) amended 30253
1301.24 (a) amended; (b)(1) and (c)(1) revised 30253
1301.41 -- 1301.48 (Subpart C) Authority citation revised 40218
1307.6 (d) revised 39083
1310.2 (c) amended 2827
1310.3 (d) amended 2827
18 CFR 1315.605 1989
18 CFR
54 FR
Page
Chapter III
410 Water code amended 9199
Chapter XIII
1306 Regulations at 52 FR 48019 confirmed; see regulation codified
at 49 CFR Part 24 8912
1314 Added 42456
18 CFR 1315.605 1990
18 CFR
55 FR
Page
Chapter III
401.35 (a)(15) and (b)(15) redesignated as (a)(16) and (b)(16); new
(a)(15) and (b)(16) added 52168
Chapter VIII
803.4 Heading, (a) introductory text and (2) revised 39144
803.22 (a) introductory text and (b) introductory text revised 39144
803.23 (a) introductory text, (b) introductory text and (1) revised;
(c)(2)(vii)(b) removed 39144
803.61 (a)(1), (b)(1), (2), (c)(1)(ii), (iii), (2) and (3) revised;
(d) amended; (a)(3), (c)(1)(iv) and (g) added 39144
803.62 Revised 39145
Chapter XIII
1303 Removed 20453
1315 Added; interim 6737, 6748
18 CFR 1315.605 1991
18 CFR
56 FR
Page
Chapter III
401.35 (a)(17) through (19) added 30502
(a)(17) and (18) corrected 37954
Chapter XIII
1301.12 (d) revised 9288
1301.24 (b)(1) and (c)(1) amended 9288
1301.48 (a), (c) and (d) revised; (b) amended 55452
18 CFR 1315.605 1992
18 CFR
57 FR
Page
Chapter III
401.35 (a)(4) and (5) revised 60470
(b)(17) added 59908
Chapter XIII
1301.1 (b) introductory text revised; (c)(1)(i), (ii), (2)(i), (ii),
(3)(i) and (ii) amended 59908
1301.3 Added 23532
1301.12 (f) revised 33634
(d) revised 59803
1301.19 (a) introductory text revised 33634
18 CFR 1315.605 1993
18
Conservation of Power and Water Resources
PART 400 TO END
Revised as of April 1, 1993
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF APRIL 1, 1993
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
Washington, DC 20402-9328
18 CFR 1315.605 Table of Contents
Page
Explanation v
Title 18:
Chapter III -- Delaware River Basin Commission
Chapter VI -- Water Resources Council
Chapter VIII -- Susquehanna River Basin Commission
Chapter XIII -- Tennessee Valley Authority
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
18 CFR 1315.605 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 1993), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-512-1557). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
April 1, 1993.
18 CFR 1315.605 THIS TITLE
Title 18 -- Conservation of Power and Water Resources is composed of
four volumes. The first three volumes, parts 1 to 149, parts 150 to
279, and parts 280 to 399 contain chapter I, the current regulations of
the Federal Energy Regulatory Commission, Department of Energy. The
fourth volume, containing part 400 to End, includes all current
regulations issued by the Delaware River Basin Commission, the Water
Resources Council, the Susquehanna River Basin Commission, and the
Tennessee Valley Authority as of April 1, 1993.
The OMB control numbers for the Federal Energy Regulatory Commission,
Department of Energy, appear in 389.101 of chapter I. For the
convenience of the user, 389.101 is reprinted in the Finding Aids
section of the first and second volumes.
For this volume, Ina C. Masters was Chief Editor. The Code of
Federal Regulation publication program is under the direction of Richard
L. Claypoole, assisted by Alomha S. Morris.
19 CFR 0.0 19 CFR Ch. I (4-1-93 Edition)
19 CFR 0.0 United States Customs Service, Treasury
19 CFR 0.0 Title 19 -- Customs Duties
19 CFR 0.0 (This book contains parts 1 to 199)
Part
chapter i -- United States Customs Service, Department of the
Treasury 4
Cross References: Regulations of the Department of Agriculture: See
titles 7 and 9.
Internal Revenue Service, Department of the Treasury: See Internal
Revenue Service, 26 CFR chapter I.
Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury:
27 CFR chapter I.
Drug Enforcement Administration, Department of Justice: See Food and
Drugs, 21 CFR chapter II.
Coast Guard, Department of Transportation: See 33 CFR chapter I, 46
CFR chapter I, and 49 CFR chapter IV.
Department of Defense procurement: See Federal Acquisition
Regulations System, 48 CFR chapter 2.
Department of State: See Foreign Relations, 22 CFR chapter I.
Food and Drug Administration, Department of Health and Human
Services: See Food and Drugs, 21 CFR chapter I.
Foreign trade statistics: See Commerce and Foreign Trade, 15 CFR
part 30.
Foreign-Trade Zones Board: See Commerce and Foreign Trade, 15 CFR
chapter IV.
Immigration and Naturalization Service, Department of Justice: See
Aliens and Nationality, 8 CFR chapter I.
Importation of wildlife and plants: See Wildlife and Fisheries, 50
CFR chapter I, subchapter B.
Postal Service (International Mail): See United States Postal
Service, 39 CFR chapter I, subchapter B.
Public Health Service, Department of Health and Human Services: See
Public Health, 42 CFR chapter I.
Other regulations issued by the Department of the Treasury appear in
12 CFR chapter I; and title 31.
19 CFR 0.0 19 CFR Ch. I (4-1-93 Edition)
19 CFR 0.0 United States Customs Service, Treasury
19 CFR 0.0 CHAPTER I -- UNITED STATES CUSTOMS SERVICE,
19 CFR 0.0 DEPARTMENT OF THE TREASURY
Part
Page
1-3 (Reserved)
4 Vessels in foreign and domestic trades
7 Customs relations with insular possessions and Guantanamo Bay Naval
Station
10 Articles conditionally free, subject to a reduced rate, etc.
11 Packing and stamping; marking
12 Special classes of merchandise
18 Transportation in bond and merchandise in transit
19 Customs warehouses, container stations and control of merchandise
therein
24 Customs financial and accounting procedure
54 Certain importations temporarily free of duty
101 General provisions
103 Availability of information
111 Customs brokers
112 Carriers, cartmen, and lightermen
113 Customs bonds
114 Carnets
115 Cargo container and road vehicle certification pursuant to
international customs conventions
118 Centralized examination stations
122 Air Commerce regulations
123 Customs relations with Canada and Mexico
125 Cartage and lighterage of merchandise
127 General order, unclaimed, and abandoned merchandise
128 Express consignments
132 Quotas
133 Trademarks, trade names, and copyrights
134 Country of origin marking
141 Entry of merchandise
142 Entry process
143 Special entry procedures
144 Warehouse and rewarehouse entries and withdrawals
145 Mail importations
146 Foreign trade zones
147 Trade fairs
148 Personal declarations and exemptions
151 Examination, sampling, and testing of merchandise
152 Classification and appraisement of merchandise
158 Relief from duties on merchandise lost, damaged, abandoned, or
exported
159 Liquidation of duties
161 General enforcement provisions
162 Recordkeeping, inspection, search, and seizure
171 Fines, penalties, and forfeitures
172 Liquidated damages
173 Administrative review in general
174 Protests
175 Petitions by domestic interested parties.
176 Proceedings in the Court of International Trade
177 Administrative rulings
178 Approval of information collection requirements
191 Drawback
192 Export control
19 CFR 0.0
19 CFR 0.0 19 CFR Ch. I (4-1-93 Edition)
19 CFR 0.0 United States Customs Service, Treasury
19 CFR 0.0 PARTS 1-3 (RESERVED)
19 CFR 0.0 Pt. 4
19 CFR 0.0 PART 4 -- VESSELS IN FOREIGN AND DOMESTIC TRADES
Sec.
4.0 General definitions.
4.1 Boarding of vessels; cutter and dock passes.
4.2 Reports of arrival of vessels.
4.2a Small vessel reporting of arrival, Miami District.
4.3 Vessels required to enter.
4.4 Panama Canal; report of arrival required.
4.5 Government vessels.
4.6 Departure or unlading before report or entry.
4.7 Inward foreign manifest; production on demand; contents and
form.
4.7a Inward manifest; information required; alternative forms.
4.8 Preliminary entry.
4.9 Formal entry.
4.10 Request for overtime services.
4.11 Sealing of stores.
4.12 Explanation of manifest discrepancy.
4.13 Alcoholic liquors on vessels of not over 500 net tons.
4.14 Foreign equipment purchases by, and repairs to, American
vessels.
4.15 Fishing vessels touching and trading at foreign places.
4.16 Entry and clearance on board vessels.
4.17 Vessels from discriminating countries.
4.20 Tonnage taxes.
4.21 Exemptions from tonnage taxes.
4.22 Exemptions from special tonnage taxes.
4.23 Certificate of payment and cash receipt.
4.24 Application for refund of tonnage tax.
4.30 Permits and special licenses for unlading and lading.
4.31 Unlading or transshipment due to casualty.
4.32 Vessels in distress, landing of cargo.
4.33 Diversion of cargo.
4.34 Prematurely discharged, overcarried, and undelivered cargo.
4.35 Unlading outside port of entry.
4.36 Delayed discharge of cargo.
4.37 Lay order; general order.
4.38 Release of cargo.
4.39 Stores and equipment of vessels and crews' effects; unlading or
lading and retention on board.
4.40 Equipment, etc., from wrecked or dismantled vessels.
4.41 Cargo of wrecked vessel.
4.50 Passenger lists.
4.60 Vessels required to clear.
4.61 Requirements for clearance.
4.62 Accounting for inward cargo.
4.63 Outward cargo declaration; shippers' export declarations.
4.64 (Reserved)
4.65 Verification of nationality and tonnage.
4.65a Load lines.
4.66 Verification of inspection.
4.66a Illegal discharge of oil and hazardous substances.
4.66b Pollution of coastal and navigable waters.
4.66c Oil pollution by oceangoing vessels.
4.67 Closed ports or places.
4.68 Crew; passengers.
4.69 Shipping articles.
4.70 Pratique.
4.71 Inspection of livestock.
4.72 Inspection of meat, meat-food products, and inedible fats.
4.73 Neutrality; exportation of arms and munitions.
4.74 Transportation orders.
4.75 Incomplete manifest; incomplete export declarations; bond.
4.80 Vessels entitled to engage in coastwise trade.
4.80a Coastwise transportation of passengers.
4.80b Coastwise transportation of merchandise.
4.81 Reports of arrivals and departures in coastwise trade.
4.81a Certain barges carrying merchandise transferred from another
barge.
4.82 Touching at foreign port while in coastwise trade.
4.83 Trade between United States ports on the Great Lakes and other
ports of the United States.
4.84 Trade with noncontiguous territory.
4.85 Vessels with residue cargo for domestic ports.
4.86 Intercoastal residue -- cargo procedure; optional ports.
4.87 Vessels proceeding foreign via domestic ports.
4.88 Vessels with residue cargo for foreign ports.
4.89 Vessels in foreign trade proceeding via domestic ports and
touching at intermediate foreign ports.
4.90 Simultaneous vessel transactions.
4.91 Diversion of vessel; transshipment of cargo.
4.92 Towing.
4.93 Coastwise transportation by certain vessels of empty vans,
tanks, and barges, equipment for use with vans and tanks; empty
instruments of international traffic; stevedoring equipment and
material; procedures.
4.94 Yacht privileges and obligations.
4.95 Records of entry and clearance of vessels.
4.96 Fisheries.
4.97 Salvage vessels.
4.98 Navigation fees.
4.99 Forms; substitution.
4.100 Licensing of vessels of less than 30 net tons.
4.101 Prohibitions against Customs officers and employees.
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1624; 46 U.S.C. App. 3;
Section 4.1 also issued under 19 U.S.C. 1581(a), 46 U.S.C. App. 158,
163;
Section 4.2 also issued under 19 U.S.C. 1433, 1441, 1486;
Section 4.3 also issued under 19 U.S.C. 288, 1434, 1435, 1441, 46
U.S.C. App. 111;
Section 4.5 also issued under 19 U.S.C. 1441;
Section 4.6 also issued under 19 U.S.C. 1585;
Section 4.7 also issued under 19 U.S.C. 1431, 1439, 1465, 1581(a),
1583, 46 U.S.C. App. 883a, 883b;
Section 4.7a also issued under 19 U.S.C. 1431, 1432, 1439, 1465,
1498, 1584, 46 U.S.C. App. 674;
Section 4.8 also issued under 19 U.S.C. 1448, 1486;
Section 4.9 also issued under 19 U.S.C. 1434, 1435, 42 U.S.C. 269, 46
U.S.C. App. 677;
Section 4.10 also issued under 19 U.S.C. 1448, 1451;
Section 4.12 also issued under 19 U.S.C. 1440, 1584;
Section 4.14 also issued under 19 U.S.C. 1466, 1498;
Section 4.15 also issued under 46 U.S.C. U.S.C. App. 310;
Section 4.16 also issued under 19 U.S.C. 1435b;
Section 4.20 also issued under 46 U.S.C. 2107(b), 8103, 14306, 14502,
14511, 14512, 14513, 14701, 14702, 46 U.S.C. App. 121, 128;
Section 4.21 also issued under 19 U.S.C. 1441, 46 U.S.C. App.
121-125, 128, 129, 132, 135;
Section 4.22 also issued under 46 U.S.C. App. 121, 128, 141;
Section 4.24 also issued under 46 U.S.C. 2108;
Section 4.30 also issued under 19 U.S.C. 288, 1433, 1446, 1448,
1450-1454, 1490;
Section 4.31 also issued under 19 U.S.C. 1453, 1586;
Section 4.32 also issued under 19 U.S.C. 1449;
Section 4.35 also issued under 19 U.S.C. 1447;
Section 4.36 also issued under 19 U.S.C. 1431, 1457, 1458, 46 U.S.C.
App. 100;
Section 4.37 also issued under 19 U.S.C. 1448, 1457, 1490;
Section 4.38 also issued under 19 U.S.C. 1448, 1505;
Section 4.39 also issued under 19 U.S.C. 1432, 1446;
Section 4.40 also issued under 19 U.S.C. 1446;
Section 4.50 also issued under 19 U.S.C. 1431;
Section 4.65a also issued under 46 U.S.C. 5101-5102, 5106-5109,
5112-5114, 5116;
Section 4.66 also issued under 46 U.S.C. App. 91;
Section 4.66a also issued under 33 U.S.C. 1321, 46 U.S.C. App. 91;
Section 4.66b also issued under 33 U.S.C. 407, 1321;
Section 4.68 also issued under 46 U.S.C. App. 674, 817d, 817e;
Section 4.69 also issued under 46 U.S.C. 10301, 10302, 10314, and
10315.
Section 4.74 also issued under 46 U.S.C. App. 91;
Section 4.75 also issued under 46 U.S.C. App. 91;
Section 4.80 also issued under 46 U.S.C. App. 251, 289, 319, 802,
808, 883, 883-1;
Section 4.81 also issued under 19 U.S.C. 1433, 1439, 1442, 1443,
1444, 1486, 46 U.S.C. App. 251, 313, 314, 883;
Section 4.81a also issued under 46 U.S.C. App. 883;
Section 4.82 also issued under 19 U.S.C. 293, 294, 46 U.S.C. App.
123;
Section 4.83 also issued under 46 U.S.C. App. 91, 111, 123;
Section 4.84 also issued under 19 U.S.C. 1433, 1435, 1437, 46 U.S.C.
App. 91, 313, 314, 883-1;
Section 4.85 also issued under 19 U.S.C. 1439, 1442, 1443, 1444,
1623;
Section 4.86 also issued under 19 U.S.C. 1442, 1443, 1444;
Section 4.88 also issued under 19 U.S.C. 1442, 1622, 1623;
Section 4.92 also issued under 46 U.S.C. App. 316(a);
Section 4.93 also issued under 19 U.S.C. 1322(a), 46 U.S.C. App.
883;
Section 4.94 also issued under 19 U.S.C. 1433, 1434, 1435, 1441, 46
U.S.C. App. 91, 104, 313, 314;
Section 4.96 also issued under 46 U.S.C. 12101(a)(1), 12108, 46
U.S.C. App. 251;
Section 4.98 also issued under 31 U.S.C. 9701;
Section 4.100 also issued under 19 U.S.C. 1706.
Source: 28 FR 14596, Dec. 31, 1963, unless otherwise noted.
19 CFR 0.0 Arrival and Entry of Vessels
19 CFR 4.0 General definitions.
For the purposes of this part:
(a) The word vessel includes every description of water craft or
other contrivance used or capable of being used as a means of
transportation on water, but does not include aircraft. (19 U.S.C.
1401.)
(b) The term vessel of the United States means any vessel documented
under the laws of the United States.
(c) The term documented vessel means a vessel for which a valid
Certificate of Documentation, form CG 1270, issued by the U.S. Coast
Guard is outstanding. Upon qualification and proper application to the
appropriate Coast Guard Office, the Certificate of Documentation may be
endorsed for (1) registry (generally, available to a vessel to be
employed in foreign trade, trade with Guam, American Samoa, Midway, or
Kingman Reef, and other employments for which another endorsement is not
required), (2) coastwise license (generally, entitles a vessel to
employment in the coastwise trade, the fisheries, and other employments
for which another endorsement is not required), (3) Great Lakes license
(generally, entitles a vessel to engage in the coastwise trade and the
fisheries on the Great Lakes and their tributary and connecting waters,
in trade with Canada, and in other employment for which another
endorsement is not required), (4) fishery license (generally, subject to
federal and state laws regulating the fisheries, entitles a vessel to
fish within the fishery conservation zone (16 U.S.C. 1811) and landward
of that zone and to land its catch) or (5) pleasure license (entitles a
vessel to pleasure use only). Generally, any vessel of at least 5 net
tons and wholly owned by a United States citizen or citizens is eligible
for documentation except that for a coastwise, Great Lakes, or fisheries
license endorsement a vessel must also be built in the United States.
Detailed Coast Guard regulations on documentation are set forth in Title
46, Code of Federal Regulations, 67.01-67.45.
(d) The term noncontiguous territory of the United States includes
all the island territories and possessions of the United States, but
does not include the Canal Zone.
(e) The word citizen is as defined by the U.S. Coast Guard for
purposes of vessel documentation (see subpart 67.03 of title 46, Code of
Federal Regulations.)
(T.D. 69-266, 34 FR 20422, Dec. 31, 1969, as amended by T.D. 83-214,
48 FR 46511, Oct. 13, 1983)
19 CFR 4.1 Boarding of vessels; cutter and dock passes.
(a) When any vessel which might have on board any article subject to
Customs treatment comes within the limits of any port of entry or within
Customs waters, Customs officers may board the vessel to inspect its
manifest and other documents and papers and to examine, inspect, and
search the vessel and the persons and articles on board. 1
(b) Every vessel arriving within a Customs district directly from a
point outside the Customs territory of the United States shall be
boarded and shall be subject to such supervision while in port as the
district director deems necessary. Boarding is required also whenever
there is a preliminary entry. When he deems it desirable, the district
director may detail Customs officers to remain on board a vessel to
secure the enforcement of this part. Except as provided in paragraph
(a) of this section, boarding of a vessel arriving within a Customs
district directly from another port in the United States shall not be
required.
(c)(1) No person, with or without the consent of the master, except a
pilot in connection with the navigation of the vessel, personnel from
another vessel in connection with the navigation of an unmanned barge,
an officer of Customs or the Coast Guard, an immigration or health
officer, an inspector of the Animal and Plant Health Inspection Service
of the U.S. Department of Agriculture, or an agent of the vessel or
consular officer exclusively for purposes relating to Customs
formalities, shall go on board any vessel arriving from outside the
Customs territory of the United States without permission of the
district director or the Customs officer in charge until the vessel has
been taken in charge by a Customs officer.
(2) A person may leave the vessel for the purpose of reporting its
arrival as required by law (see 4.2), but no other person, except those
designated in paragraph (c)(1) of this section, shall leave any vessel
arriving from outside the Customs territory of the United States, with
or without the consent of the master, without the permission of the
district director of Customs or the Customs officer in charge until the
vessel has been properly inspected by Customs and brought into the dock
or anchorage at which cargo is to be unladen and until all passengers
have been landed from the vessel. 2
(3) Every person permitted to go on board or to leave without the
consent of a Customs officer under the provisions of this paragraph
shall be subject to Customs and quarantine regulations.
(4) The master of any vessel shall not authorize the boarding or
leaving of his vessel by any person in violation of this paragraph.
(d) A district director, in his discretion may issue a cutter pass on
Customs Form 3093 to permit the holder to board an incoming vessel after
it has been inspected by the quarantine authorities and taken in charge
by an officer of the Customs, as follows: (1) To persons on official
business; (2) to news reporters, newspaper photographers, photographers
of established motionpicture companies, and broadcasters of established
radio broadcasting cmmpanies; and (3) in cases of special exigency in
which the district director is satisfied as to the urgent need for the
boarding and that its allowance will not result in undue interference
with the performance of official business.
(e) No person in charge of a tugboat, rowboat, or other vessel shall
bring such conveyance alongside an incoming vessel heretofore described
and put on board thereof any person, except as authorized by law or
regulations.
(f) (Reserved)
(g) Term cutter and dock passes, for a period of not to exceed one
year, may be issued in the discretion of the district director, to
persons on official business and to duly accredited news reporters and
newspaper photographers. Passes are not transferable and shall be
forfeited upon presentation by others than those to whom issued.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 78-141, 43 FR 22174,
May 24, 1978; T.D. 82-224, 47 FR 35475, Aug. 16, 1982; T.D. 92-74, 57
FR 35751, Aug. 11, 1992)
1''Any officer of the customs may at any time go on board of any
vessel or vehicle at any place in the United States or within the
customs waters * * * and examine the manifest and other documents and
papers and examine, inspect, and search the vessel or vehicle and every
part thereof and any person, trunk, package, or cargo on board, and to
this end may hail and stop such vessel or vehicle, and use all necessary
force to compel compliance.'' (19 U.S.C. 1581(a))
''If the master of any vessel shall obstruct or hinder, or shall
intentionally cause any obstruction or hindrance to any officer in
lawfully going on board such vessel, for the purpose of carrying into
effect any of the revenue or navigation laws of the United States, he
shall for every such offense be liable to a penalty of not more than
$2,000 nor less than $500.'' (R.S. 3068, sec. 307, 49 Stat. 528)
2''It shall not be lawful for the master of any such steamship or
other vessel,* not in distress, after the arrival of the vessel within
any collection district of the United States, to allow any person or
persons, except a pilot, officer of the customs, or health officer,
agents of the vessel, and consuls, to come on board of the vessel, or to
leave the vessel, until the vessel has been taken in charge by an
officer of the customs, nor, after charge so taken, without leave of
such officer, until all the passengers, with their baggage, have been
duly landed from the vessel. * * *'' (46 U.S.C. 158)
''The Secretary of the Treasury is authorized and directed to
prescribe from time to time and enforce regulations governing the
boarding of vessels arriving at the seaports of the United States,
before such vessels have been properly inspected and placed in security,
and for that purpose to employ any of the officers of that department.
Each person violating such regulations shall be subject to a penalty of
not more than $100 or imprisonment not to exceed six months, or both, in
the discretion of the court. This section shall be construed as
supplementary to section 158 and section 708 of this title.'' (46 U.S.C.
163 Sec. 102, Reorg. Plan No. 3 of 1946; 3 CFR, 1946 Supp., Ch. IV)
''Whoever, not being in the United States service, and not being duly
authorized by law for the purpose, goes on board any vessel about to
arrive at the place of her destination, before her actual arrival, and
before she has been completely moored, shall be fined not more than $200
or imprisoned not more than six months, or both.
''The master of such vessel may take any such person into custody,
and deliver him up forthwith to any law enforcement officer, to be by
him taken before any committing magistrate, to be dealt with according
to law.'' (18 U.S.C. 2279)
''If, within twenty-four hours after the arrival of any vessel at any
port in the United States, any person, then being on board such vessel,
solicits any seaman to become a lodger at the house of any person
letting lodgings for hire, or takes out of such vessel any effects of
any seaman, except under his personal direction, and with the permission
of the master, he shall, for every such offense, be punishable by a fine
of not more than $50, or by imprisonment for not more than three months.
This section shall apply to vessels of the United States engaged in the
foreign trade and to foreign vessels.'' (46 U.S.C. 709)
*A vessel from a noncontiguous foreign place carrying steerage
passengers.
3(Reserved)
19 CFR 4.2 Reports of arrival of vessels.
(a) The report of arrival required by section 433, Tariff Act of
1930, as amended (19 U.S.C. 1433), or as supplemented in local
instruction by the district director and made available to interested
parties by posting in Customs offices, publication in a newspaper of
general circulation, and other appropriate means, shall be made by any
means of communication to the district director or to a Customs officer
assigned to board a vessel. The Customs officer may require the
production of any documents or papers deemed necessary for the proper
inspection/examination of a vessel, cargo, passengers, or crew.
(b) For the purposes of this part, the time of arrival of a vessel
shall be that time when she first comes to rest, whether at anchor or at
a dock, in any harbor within the Customs territory of the United States.
(c) In the case of a vessel described in section 441(3), Tariff Act
of 1930, as amended,4 the report of articles subject to entry shall be
made in accordance with the provisions of subpart B of part 148 of this
chapter to the Customs officer assigned to board the vessel. (See
4.1(c).)
(d) In the case of vessels described in section 441(4), Tariff Act of
1930, as amended,4 the report may be filed by either the master, owner,
or agent, and shall be in the form and give the information required by
that statute, except that the report need not be under oath. A derelict
vessel shall be considered one in distress and any person bringing it
into port may report its arrival.
(e) The report of baggage and merchandise on a vessel within the
purview of section 441(2), Tariff Act of 1930, as amended,4 shall be
made as provided for in that section and shall be in addition to the
required report of arrival.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 73-27, 38 FR 2448,
Jan. 26, 1973; T.D. 87-150, 52 FR 48196, Dec. 21, 1987; T.D. 88-71, 53
FR 46083, Nov. 16, 1988)
4See footnote 5 to 4.3.
19 CFR 4.2a Small vessel reporting of arrival, Miami District.
(a) Scope. This section imposes special requirements for the report
of arrival from any foreign port or place by small vessels whose
intended destination is at a point within the jurisdiction of the Miami,
Florida, Customs District, as defined in 101.3(b) of this chapter. The
operators of vessels will be required to immediately report their
arrival in the U.S., as prescribed by 4.2(a) of this chapter, or as
supplemented in local instruction issued by the district director and
made available to interested parties by posting in Customs offices,
publication in a newspaper of general circulation within the Miami
District, and other appropriate means, by proceeding to locations
designated by the District Director of Customs, Miami, Florida, prior to
proceeding to their destination. The report will be made through a
clearly marked Customs telephone. After securing some information from
the person reporting, the Customs officer responding to the report of
arrival will instruct the vessel operator that the vessel may proceed or
that further action, which may include inspection at another location,
is required.
(b) Definitions. For the purposes of this section:
(1) Foreign port or place includes hovering vessels as defined in
section 401(k)), Tariff Act of 1930, as amended (19 U.S.C. 1401(k)), and
any point in the Customs waters beyond the territorial sea or on the
high seas at which a vessel arriving in a port or place in the U.S. has
received merchandise.
(2) Small vessel includes any vessel of less than 5 net tons, and any
private pleasure vessel, regardless of displacement.
(3) Arrival of a vessel occurs when a small vessel comes to rest
within the waters of the Miami District, whether at anchor or at a dock,
in any harbor or other location.
(c) Vessels entering the southern and western portion of the Miami
District. The operators of vessels arriving from a foreign port or
place with an intended destination at a point south of the entrance to
Biscayne Bay known as Broad Creek, which is north of Key Largo between
Swan Key and Broad Key or that portion of the west coast of the State of
Florida within the Miami Customs District, as described in 101.3(b), of
this chapter, shall immediately report their arrival by the use of
special clearly marked Customs telephones provided for that purpose, at
the Customs designated location in the Florida Keys nearest to their
intended destination point, before proceeding to the destination point.
(d) Vessels entering the northern portion of the Miami District. The
operators of vessels arriving from a foreign port or place with an
intended destination at or north of the entrance to Biscayne Bay known
as Broad Creek, which is north of Key Largo and between Swan Key and
Broad Key, shall immediately report their arrival by the use of special
clearly marked Customs telephones provided for that purpose, at the
Customs designated location nearest to point at which the Biscayne Bay
may be first entered or the intracoastal waterway is first entered
through a ''cut'', ''channel'' or ''inlet'', before proceeding to their
destination point. This provision shall apply to vessels whose intended
destination is on the Florida mainland or the barrier islands east of
the intracoastal waterway.
(e) Penalties -- (1) Civil Penalty. The master or person in charge
of any vessel who fails to report arrival as required under this section
is liable for a civil penalty of $5,000 for the first violation, and
$10,000 for each subsequent violation. Any vessel used in connection
with any such violation is subject to seizure and forfeiture.
(2) Criminal penalty. In addition to the civil penalty prescribed
for violation of this section, the master or person in charge who
intentionally fails to report arrival as required by this section is
liable, upon conviction, for a fine of not more than $2,000 or
imprisonment for 1 year, or both. If the vessel is found to have or to
have had on board any merchandise the importation of which is
prohibited, such individual is liable for an additional fine of not more
than $10,000 or imprisonment for not more than 5 years, or both.
(3) Additional civil penalty. If any merchandise, other than sea
stores, is imported or brought into the U.S. aboard a vessel which has
failed to report arrival as prescribed by this section, the master or
person in charge shall be liable for a civil penalty equal to the value
of the merchandise, and the merchandise may be seized and forfeited,
unless properly entered by the importer or consignee. If any of the
merchandise consists of a controlled substance listed in section 584,
Tariff Act of 1930, as amended (19 U.S.C. 1584), the penalties
prescribed in that section shall apply.
(T.D. 88-71, 53 FR 46083, Nov. 16, 1988)
19 CFR 4.3 Vessels required to enter.
(a) Except as specified in section 441, Tariff Act of 1930, as
amended, /5/ R.S. 2792, /7/ R.S. 2793, as amended, /8/ or as otherwise
specified in this part,8a every American vessel arriving in the United
States from a foreign port or place and every foreign vessel /9/
arriving at a port in the United States from another such port or from a
foreign port or place shall make entry /10/ at the customhouse within 48
hours after arrival in accordance with 4.9. /11/
(b) For the purposes of this part the time of departure of a vessel
shall be that time when she gets under way on her outward voyage and
proceeds on the voyage without thereafter coming to rest in the harbor
from which she is going.
(c) For purposes of the vessel entry requirement in this section and
4.9, a ''foreign port or place'' shall include a vessel on the high seas
when the vessel arriving in the U.S. is returning from the vessel on the
high seas after having --
(1) Transported export merchandise out of the U.S. to the vessel on
the high seas and there transshipped the merchandise to that vessel; or
(2) Transported import merchandise to the U.S. from the vessel on the
high seas after having there received the merchandise from that vessel.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 83-214, 48 FR 46511,
Oct. 13, 1983; T.D. 85-91, 50 FR 21428, May 24, 1985; T.D. 85-123, 50
FR 29952, July 23, 1985)
/5/ ''The following vessels shall not be required to make entry at
the customhouse:
''(1) Vessels of war and public vessels employed for the conveyance
of letters and dispatches and not permitted by the laws of the nations
to which they belong to be employed in the transportation of passengers
or merchandise in trade;
''(2) Passenger vessels making three trips or oftener a week between
a port of the United States and a foreign port, or vessels used
exclusively as ferryboats, carrying passengers, baggage, or merchandise:
Provided, That the master of any such vessel shall be required to
report such baggage and merchandise to the collector within twenty-four
hours after arrival;
''(3) Vessels carrying passengers on excursion from the United States
Virgin Islands to the British Virgin Islands and returning, and licensed
yachts or undocumented American pleasure vessels not engaged in trade:
Provided, That such vessels do not in any way violate the customs or
navigation laws of the United States and have not visited any hovering
vessel: Provided further, That the master of any such vessel which has
on board any article required by law to be entered shall be required to
report such article to the appropriate customs officer within
twenty-four hours after arrival.
''(4) Vessels arriving in distress or for the purpose of taking on
bunker coal, bunker oil, sea stores, or ship's stores and which shall
depart within twenty-four hours after arrival without having landed or
taken on board any passengers, or any merchandise other than bunker
coal, bunker oil, sea stores, or ship's stores: Provided, That the
master, owner, or agent of such vessel shall report under oath to the
collector the hour and date of arrival and departure and the quantity of
bunker coal, bunker oil, sea stores, or ship's stores taken on board;
and
''(5) Tugs enrolled and licensed to engage in the foreign and
coasting trade in the northern, northeastern, and northwestern frontiers
when towing vessels which are required by law to enter and clear.''
(Tariff Act of 1930, sec. 441, as amended. 19 U.S.C. 1441)
6(Reserved)
/7/ ''Vessels used exclusively as ferryboats carrying passengers,
baggage, and merchandise, shall not be required to enter and clear, nor
shall the masters of such vessels be required to present manifests, or
to pay entrance or clearance fees, or fees for receiving or certifying
manifests, but they shall, upon arrival in the United States, be
required to report such baggage and merchandise to the proper officer of
the customs according to law.'' (46 U.S.C. 110)
''Any passenger vessel engaged triweekly or oftener in trade between
ports of the United States and foreign ports shall be exempt from
entrance and clearance fees while such service triweekly or oftener is
maintained.'' (46 U.S.C. 112)
/8/ ''Enrolled or licensed vessels engaged in the foreign and
coasting trade on the northern, northeastern, and northwestern frontiers
of the United States, departing from or arriving at a port in one
district to or from a port in another district, and also touching at
intermediate foreign ports, shall not thereby become liable to the
payment of entry and clearance fees, as if from or to foreign ports;
but such vessel shall, notwithstanding, be required to enter and clear;
except that when such vessels are on such voyages on the Great Lakes and
touch at foreign ports for the purpose of taking on bunker fuel only,
they may be exempted from entering and clearing under such rules and
regulations as the Secretary of the Treasury may prescribe,
notwithstanding any other provisions of law: Provided, That this
exception shall not apply to such vessels if, while at such foreign
port, they land or take on board any passengers, or any merchandise
other than bunker fuel, receive orders, discharge any seamen by mutual
consent, or engage any seaman to replace those discharged by mutual
consent, or transact any other business save that of taking on bunker
fuel.'' (19 U.S.C. 288)
8aNo entry is required for a vessel of less than 5 net tons which
arrives in the United States from a contiguous country otherwise than by
sea. For the reporting requirements applicable with respect to such
vessels, see 5.1 of this chapter.
/9/ Every undocumented vessel of 5 net tons or over owned by an
alien, whether or not such alien is a resident of the United States, is
a foreign vessel.
/10/ ''Whenever, under any provision or provisions of any statute of
the United States, it is made the duty of the masters of vessels to make
entry and clearance of same, it shall be lawful for such duties to be
performed by any licensed deck officer or purser of such vessel; and
when such duties are performed by a licensed deck officer or purser of
such vessel, such acts shall have the same force and effect as if
performed by masters of such vessels: Provided, That nothing herein
contained shall relieve the master of any penalty or liability provided
by any statute relating to the entry or clearance of vessels.'' (46
U.S.C. 91a)
''* * * Every master who presents a forged, altered, or false
document or paper on making entry of a vessel as required by section 434
or 435 of this Act, knowing the same to be forged, altered or false and
without revealing the fact, shall, in addition to any forfeiture to
which in consequence the vessel may be subject, be liable to a fine of
not more than $5,000 nor less than $50 or to imprisonment for not more
than two years, or to both such fine and imprisonment.'' (Tariff Act of
1930, sec. 436, as amended; 19 U.S.C. 1436)
/11/ See 4.2(b).
12(Reserved)
19 CFR 4.4 Panama Canal; report of arrival required.
Vessels which merely transit the Panama Canal without transacting any
business there shall be required to report their arrival because of such
transit. The report of arrival shall be made in accordance with
4.2(a).
(T.D. 79-276, 44 FR 61956, Oct. 29, 1979)
19 CFR 4.5 Government vessels.
(a) No report of arrival or entry shall be required of any vessel
owned by, or under the complete control and management of the United
States or any of its agencies, if such vessel (1) is manned wholly by
members of the uniformed services of the United States, by personnel in
the civil service of the United States, or by both, and (2) is
transporting only property of the United States or passengers traveling
on official business of the United States, or it is ballast. However,
if any cargo is on board, the master or commander of each such vessel
arriving from abroad shall file a Cargo Declaration, Customs Form 1302,
or an equivalent form issued by the Department of Defense, in duplicate.
The original of each Cargo Declaration or equivalent form required
under this paragraph shall be filed with the district director within 48
hours after the arrival of the vessel. The other copy shall be made
available for use by the discharging inspector at the pier. See 148.73
of this chapter with respect to baggage on carriers operated by the
Department of Defense.
(b) The arrival of every vessel owned or controlled and manned as
described in paragraph (a) of this section but transporting other
property or passengers, and every vessel so owned or controlled but not
so manned, whether in ballast or transporting cargo or passengers, shall
be reported in accordance with 4.2 and the vessel shall be entered in
accordance with 4.9.
(c) Every vessel owned by, or under the complete control and
management of, any foreign nation shall be exempt from or subject to the
laws relating to report of arrival and entry under the same conditions
as a vessel owned or controlled by the United States.
(28 FR 14596, Dec. 31, 1963, as amended by 39 FR 10897, Mar. 22,
1974; T.D. 83-213, 48 FR 46978, Oct. 17, 1983)
19 CFR 4.6 Departure or unlading before report or entry.
(a) The provisions of section 585 Tariff Act of 1930, as amended,13
apply to foreign as well as American vessels, but shall not be applied
to a vessel merely passing through waters within the limits of a Customs
district in the ordinary course of her voyage.
(b) The ''limits of any Customs district'' as used herein are those
defined by 101.1(b) of this chapter, including the marginal waters to
the 3-mile limit on the seaboard and the waters to the boundary line on
the northern and southern boundaries.
(28 FR 54596, Dec. 31, 1963, as amended by T.D. 77-241, 42 FR 54936,
Oct. 12, 1977)
13''If any vessel or vehicle from a foreign port or place arrives
within the limits of any collection district and departs or attempts to
depart, except from stress of weather or other necessity, without making
a report or entry under the provisions of this chapter, or if any
merchandise is unladen therefrom before such report or entry, the master
of such vessel shall be liable to a penalty of $5,000, and the person in
charge of such vehicle shall be liable to a penalty of $500, and any
such vessel or vehicle shall be forfeited, and any officer of the
customs may cause such vessel or vehicle to be arrested and brought back
to the most convenient port of the United States.'' (Tariff Act of 1930,
sec. 585, as amended, 19 U.S.C. 1585)
19 CFR 4.7 Inward foreign manifest; production on demand; contents
and form.
(a) The master of every vessel arriving in the United States and
required to make entry shall have on board his vessel a manifest, as
required by section 431, Tariff Act of 1930 (19 U.S.C. 1431),14 and by
this section. The manifest shall be legible and complete. If it is in
a foreign language, an English translation shall be furnished with the
original and with any required copies. The manifest shall consist of a
Master's Oath on Entry of Vessel in Foreign Trade, Customs Form 1300, a
General Declaration, Customs Form 1301, and the following documents:
(1) Cargo Declaration, Customs Form 1302, (2) Ship's Stores Declaration,
Customs Form 1303, (3) Crew's Effects Declaration, Customs Form 1304,
or, optionally, a copy of the Crew List, Customs and Immigration Form
I-418, to which are attached crewmember's declarations on Customs Form
5129, (4) Crew List, Customs and Immigration Form I-418, and (5)
Passenger List, Customs and Immigration Form I-418. Any document which
is not required may be omitted from the manifest provided the word
''None'' is inserted in item 17-22 of the General Declaration, as
appropriate. If a vessel arrives in ballast and therefore the Cargo
Declaration is omitted, the legend ''No merchandise on board'' shall be
inserted in item 13 of the General Declaration.
(b) The original and one copy of the manifest shall be ready for
production on demand. 15 The master shall deliver the original and one
copy of the manifest to the Customs officer who shall first demand it.
If the vessel is to proceed from the port of arrival to other United
States ports with residue foreign cargo or passengers, an additional
copy of the manifest shall be available for certification as a traveling
manifest (see 4.85). The district director may require an additional
copy or additional copies of the manifest, but a reasonable time shall
be allowed for the preparation of any copy which may be required in
addition to the original and one copy.
(c) No Passenger List or Crew List shall be required in the case of a
vessel arriving from Canada, otherwise than by sea, at a port on the
Great Lakes or their connecting or tributary waters. 16a
(d)(1) The master or owner of --
(i) A vessel documented under the laws of the United States with a
registry, coastwise license, or Great Lakes license endorsement, or a
vessel not so documented but intended to be employed in the foreign,
coastwise, or Great Lakes trade, or
(ii) A documented vessel with a fishery license endorsement which has
a permit to touch and trade (see 4.15) or a vessel with a fishery
license endorsement lacking a permit to touch and trade but intended to
engage in trade --
at the port of first arrival from a foreign country shall declare on
Customs Form 226 any equipment, repair parts, or materials purchased for
the vessel, or any expense for repairs incurred, outside the United
States, within the purview of section 466, Tariff Act of 1930, as
amended (19 U.S.C. 1466).16b If no equipment, repair parts, or materials
have been purchased, or repairs made, a declaration to that effect shall
be made on Customs Form 226.
(2) If the vessel is at least 500 gross tons, the declaration shall
include a statement that no work in the nature of a rebuilding or
alteration which might give rise to a reasonable belief that the vessel
may have been rebuilt within the meaning of the second proviso to
section 27, Merchant Marine Act, 1920, as amended (46 U.S.C. 883), has
been effected which has not been either previously reported or
separately reported simultaneously with the filing of such declaration.
The district director shall notify the U.S. Coast Guard vessel
documentation officer at the home port of the vessel of any work in the
nature of a rebuilding or alteration, including the construction of any
major component of the hull or superstructure of the vessel, which comes
to his attention unless the district director is satisfied that the
owner of the vessel has filed an application for rebuilt determination
as required by 46 CFR 67.27-3.
(3) The declaration shall be ready for production on demand for
inspection and shall be presented as part of the original manifest when
formal entry of the vessel is made.
(T.D. 71-169, 36 FR 12602, July 2, 1971, as amended by T.D. 74-284,
39 FR 39718, Nov. 11, 1974; T.D. 77-255, 42 FR 56319, Oct. 25, 1977;
T.D. 80-237, 45 FR 64565, Sept. 30, 1980; T.D. 83-214, 48 FR 46511,
Oct. 13, 1983; T.D. 92-74, 57 FR 35751, Aug. 11, 1992)
14''The master of every vessel arriving in the United States and
required to make entry shall have on board his vessel a manifest in a
form to be prescribed by the Secretary of the Treasury and signed by
such master under oath as to the truth of the statements therein
contained. Such manifest shall contain:
''First. The names of the ports or places at which the merchandise
was taken on board and the ports of entry of the United States for which
the same is destined, particularly describing the merchandise destined
to each such port: Provided, That the master of any vessel laden
exclusively with coal, sugar, salt, nitrates, hides, dyewoods, wool, or
other merchandise in bulk consigned to one owner and arriving at a port
for orders, may destine such cargo 'for orders,' and within fifteen days
thereafter, but before the unlading of any part of the cargo such
manifest may be amended by the master by designating the port or ports
of discharge of such cargo, and in the event of failure to amend the
manifest within the time permitted such cargo must be discharged at the
port at which the vessel arrived and entered.
''Second. The name, description, and build of the vessel, the true
measure or tonnage thereof, the port to which such vessel belongs, and
the name of the master of such vessel.
''Third. A detailed account of all merchandise on board such vessel,
with the marks and numbers of each package, and the number and
description of the packages according to their usual name or
denomination, such as barrel, keg, hogshead, case, or bag.
''Fourth. The names of the persons of whom such packages are
respectively consigned in accordance with the bills of lading issued
therefor, except that when such merchandise is consigned to order the
manifest shall so state.
''Fifth. The names of the several passengers aboard the vessel,
stating whether cabin or steerage passengers, with their baggage,
specifying the number and description of the pieces of baggage belonging
to each, and a list of all baggage not accompanied by passengers.
''Sixth. An account of the sea stores and ship's stores on board of
the vessel.'' (Tariff Act of 1930, sec. 431; 19 U.S.C. 1431)
15''The master of every vessel and the person in charge of every
vehicle bound to a port or place in the United States shall deliver to
the officer of the customs or Coast Guard who shall first demand it of
him, the original and one copy of the manifest of such vessel or
vehicle, and such officer shall certify on the back of the original
manifest to the inspection thereof and return the same to the master or
other person in charge.'' (Tariff Act of 1930, sec. 583; 19 U.S.C.
1583)
''Any master of any vessel and any person in charge of any vehicle
bound to the United States who does not produce the manifest to the
officer demanding the same shall be liable to a penalty of $500, * * *;
Provided, That if the collector shall be satisfied that the manifest was
lost or mislaid without intentional fraud, * * *, said penalties shall
not be incurred. * * *'' (Tariff Act of 1930, sec. 584, as amended;
19 U.S.C. 1584)
16(Reserved)
16a''Notwithstanding any provision of law to the contrary, no
collector of customs shall require a master or owner of a vessel
arriving, otherwise than by sea, at a port or place in the United States
on the Great Lakes, or their connecting or tributary waters, from a port
or place in the Dominion of Canada to furnish a list of passengers on
board such vessel.'' (60 Stat. 882)
16bSee 4.14(a)(1).
19 CFR 4.7a Inward manifest; information required; alternative forms.
The forms designated by 4.7(a) as comprising the inward manifest
shall be completed as follows:
(a) Ship's Stores Declaration. Articles to be retained aboard as sea
or ship's stores, required by section 432, Tariff Act of 1930,17 to be
separately specified shall be listed on the Ship's Stores Declaration,
Customs Form 1303. Less than whole packages of sea or ship's stores may
be described as ''sundry small and broken stores.''
(b) Crew's Effects Declaration. (Customs Form 1304). (1) The
declaration number of the Crew Member's Declaration, Customs Form 5129,
prepared and signed by any officer or crewmember who intends to land
articles in the United States, or the word ''None,'' shall be shown in
item No. 7 on the Crew's Effects Declaration, Customs Form 1304
opposite the respective crewmember's name.
(2) In lieu of describing the articles on Customs Form 1304, the
master may furnish a Crew List, Customs and Immigration Form I-418,
endorsed as follows:
I certify that this list, with its supporting crewmembers'
declarations, is a true and complete manifest of all articles on board
the vessel acquired abroad by myself and the officers and crewmembers of
this vessel, other than articles exclusively for use on the voyage or
which have been duly cleared through Customs in the United States.
(Master.)
The Crew List on Form I-418 shall show, opposite the crewmember's
name, his shipping article number and, in column 5, the declaration
number. If the crewmember has nothing to declare, the word ''None''
shall be placed opposite his name instead of a declaration number.
(3) For requirements concerning the preparation of Customs Form 5129,
see subpart G of part 148 of this chapter.
(4) Any articles which are required to be manifested and are not
manifested shall be subject to forfeiture and the master shall be
subjected to a penalty equal to the value thereof, as provided in
section 584, Tariff Act of 1930, as amended.
(c) Cargo Declaration. (1) The Cargo Declaration, Customs Form 1302,
shall list all the inward foreign cargo on board regardless of the port
of discharge. The block designated ''Arrival'' at the top of the form
shall be checked. The name of the shipper shall be set forth in the
column calling for such information and on the same line where the bill
of lading is listed for that shipper's merchandise. When more than one
bill of lading is listed for merchandise from the same shipper, ditto
marks or the word ''ditto'' may be used to indicate the same shipper.
The cargo described in column Nos. 6 and 7, and either column No. 8 or
9, shall refer to the respective bills of lading. Either column No. 8
or column No. 9 shall be used, as appropriate. The gross weight in
column No. 8 shall be expressed in either pounds or kilograms. The
measurement in column No. 9 shall be expressed according to the unit of
measure specified in the Tariff Schedules of the United States (19
U.S.C. 1202).
(2)(i) When inward foreign cargo is being shipped by container, each
bill of lading shall be listed in the column headed ''B/L Nr.'' in
numerical sequence according to the bill of lading number. The number
of the container which contains the cargo covered by that bill of lading
and the number of the container seal shall be listed in column No. 6
opposite the bill of lading number. The number of any other bill of
lading for cargo in that container also shall be listed in column No. 6
immediately under the container and seal numbers. A description of the
cargo shall be set forth in column No. 7 only if the covering bill of
lading is listed in the column headed ''B/L Nr.''
(ii) As an alternative to the procedure described in paragraph (i), a
separate list of the bills of lading covering each container on the
vessel may be submitted on Customs Form 1302 or on a separate sheet. If
this procedure is used:
(A) Each container number shall be listed in alphanumeric sequence by
port of discharge in column No. 6 of Customs Form 1302, or on the
separate sheet; and
(B) The number of each bill of lading covering cargo in a particular
container, identifying the port of lading, shall be listed opposite the
number of the container with that cargo in the column headed ''B/L Nr.''
if Customs Form 1302 is used, or either opposite or under the number of
the container if a separate sheet is used.
(iii) All bills of lading, whether issued by a carrier, freight
forwarder, or other issuer, shall contain a unique identifier consisting
of up to 16 characters in length. The unique bill of lading number will
be composed of two elements. The first element will be the first four
characters consisting of the carrier or issuer's four digit Standard
Carrier Alpha Code (SCAC) assigned to the carrier in the National Motor
Freight Traffic Association, Inc., Directory of Standard Multi-Modal
Carrier and Tariff Agent Codes, applicable supplements thereto and
reissues thereof. The second element may be up to 12 characters in
length and may be either alpha and/or numeric. The unique identifier
shall not be used by the carrier, freight forwarder or issuer for
another bill of lading for a period of 3 years after issuance. Customs
processing of the unique identifier will be limited to checking the
validity of the Standard Carrier Alpha Codes (SCAC) and ensuring that
the identifier has not been duplicated within a 3-year period. Carriers
and broker/importers will be responsible for reconciliation of
discrepancies between manifests and entries. Customs will not perform
any reconciliation except in a post-audit process.
(3) For shipment of containerized or palletized cargo, Customs
officers shall accept a Cargo Declaration which indicates that it has
been prepared on the basis of information furnished by the shipper. The
use of words of qualification shall not limit the responsibility of a
master to submit accurate Cargo Declarations or qualify the oath taken
by the master as to the accuracy of his declaration.
(i) If Cargo Declaration covers only containerized or palletized
cargo, the following statement may be placed on the declaration:
The information appearing on the declaration relating to the quantity
and description of the cargo is in each instance based on the shipper's
load and count. I have no knowledge or information which would lead me
to believe or to suspect that the information furnished by the shipper
is incomplete, inaccurate, or false in any way.
(ii) If the Cargo Declaration covers conventional cargo and
containerized or palletized cargo, or both, the use of the abbreviation
''SLAC'' for ''shipper's load and count,'' or an appropriate
abbreviation if similar words are used, is approved: Provided, That
abbreviation is placed next to each containerized or palletized shipment
on the declaration and the following statement is placed on the
delaration:
The information appearing on this declaration relating to the
quantity and description of cargo preceded by the abbreviation ''SLAC''
is in each instance based on the shipper's load and count. I have no
information which would lead me to believe or to suspect that the
information furnished by the shipper is incomplete, inaccurate, or false
in any way.
(iii) The statements specified in paragraphs (c)(3) (i) and (ii) of
this section shall be placed on the last page of the Cargo Declaration.
Words similar to ''the shipper's load and count'' may be substituted for
those words in the statements. Vague expressions such as ''said to
contain'' or ''accepted as containing'' are not acceptable. The use of
an asterisk or other character instead of appropriate abbreviations,
such as ''SLAC'', is not acceptable.
(d) Crew List. The Crew List shall be completed in accordance with
the requirements of the Immigration and Naturalization Service, United
States Department of Justice (8 CFR part 251).
(e) Passenger List. (1) The Passenger List shall be completed in
accordance with 4.50 and with the requirements of the Immigration and
Naturalization Service, U.S. Department of Justice (8 CFR part 231), and
the following certification shall be placed on its last page:
I certify that Customs baggage declaration requirements have been
made known to incoming passengers; that any required Customs baggage
declarations have been or will simultaneously herewith be filed as
required by law and regulation with the proper Customs officer; and
that the responsibilities devolving upon this vessel in connection
therewith, if any, have been or will be discharged as required by law or
regulation before the proper Customs officer. I further certify that
there are no steerage passengers on board this vessel (46 U.S.C.
151-163).
Master
(2) If the vessel is carrying steerage passengers, the reference to
steerage passengers shall be deleted from the certification, and the
master shall comply with the requirements of 4.50.
(3) If there are no steerage passengers aboard upon arrival, the
listing of the passengers may be in the form of a vessel ''souvenir
passenger list,'' or similar list, in which the names of the passengers
are listed alphabetically and to which the certificate referred to in
paragraph (e)(1) of this section is attached.
(4) All baggage on board a vessel not accompanying a passenger and
the marks or addresses thereof shall be listed on the last sheet of the
passenger list under the caption ''Unaccompanied baggage.''
(T.D. 71-169, 36 FR 12602, July 2, 1971, as amended by T.D. 73-27, 38
FR 2448, Jan. 26, 1973; T.D. 77-255, 42 FR 56320, Oct. 25, 1977; T.D.
79-31, 44 FR 5649, Jan. 29, 1979; T.D. 85-123, 50 FR 29952, July 23,
1985; T.D. 89-58, 54 FR 20381, May 11, 1989)
17''The manifest of any vessel arriving from a foreign port or place
shall separately specify the articles to be retained on board of such
vessel as sea stores, ship's stores, or bunker coal, or bunker oil, and
if any other or greater quantity of sea stores, ship's stores, bunker
coal, or bunker oil is found on board of any such vessel than is
specified in the manifest, or if any such articles, whether shown on the
manifest or not are landed without a permit therefor issued by the
collector, all such articles omitted from the manifest or landed without
a permit shall be subject to forfeiture, and the master shall be liable
to a penalty equal to the value of the articles.'' (Tariff Act of 1930,
sec. 432; 19 U.S.C. 1432)
18(Reserved)
19 CFR 4.8 Preliminary entry.
Preliminary entry allows a U.S. or foreign vessel arriving from a
foreign port or place to discharge cargo, passengers or baggage or take
on additional cargo, passengers or baggage prior to making formal entry
at the customhouse by allowing the master to make an oath or affirmation
to the truth of statements contained in the vessel's manifest and
deliver the manifest to the customs officer who boards the vessel.
Customs officers are required to board a vessel before preliminary entry
is permitted. Preliminary entry shall be made by compliance with 4.30
and execution by the master of the Master's Certificate on Preliminary
Entry on Customs Form 1300.
(T.D. 92-74, 57 FR 35751, Aug. 11, 1992)
19 CFR 4.9 Formal entry.
(a) Section 4.3 provides which vessels are subject to formal entry
and which are exempt from formal entry requirements. The formal entry
of an American vessel from a foreign port or place (see 4.3(c)) shall
be in accordance with section 434, Tariff Act of 1930 (19 U.S.C. 1434).
/19/ The term ''American vessel'' means a vessel of the United States
(see 4.0(b)) as well as a vessel entitled to be documented (see
4.0(c)) except for its size when arriving by sea (if less than 5 net
tons and arriving otherwise than by sea, see part 123 of this chapter).
The formal entry of a foreign vessel arriving within the limits of any
Customs district shall be in accordance with section 435, Tariff Act of
1930 (19 U.S.C. 1435). /20/ The required oath on entry shall be
executed on Customs Form 1300.
(b) Upon the entry of an American vessel, the master shall present to
the District Director of Customs, in addition to the Crew Lists required
under 4.7(a), the certified copy of the Crew List on Customs and
Immigration Form I-418 obtained, in accordance with the provisions of
4.68(a), upon the last previous clearance outward from the United
States. The master shall deposit the vessel's document with the
district director before or at the time of entry. The document may be
returned upon request to the master of a vessel of less than 100 gross
tons engaged in taking out fishing parties.
(c) The master of any foreign vessel shall exhibit the vessel's
document to the district director on or before the entry of the vessel.
After the net tonnage has been noted, the master may deliver it to the
consul of the nation to which such vessel belongs, in which event he
shall file with the district director the certificate required by
section 435, Tariff Act of 1930 (19 U.S.C. 1435). If not delivered to
the consul, the document shall be deposited in the customhouse. Whether
delivered to the foreign consul or deposited at the customhouse, the
document shall not be delivered to the master of the foreign vessel
until clearance is granted under 4.61.21
(d) The master of every vessel required to make entry shall present
on entry the pratique required by the pertinent regulations of the
United States Public Health Service and shall pay all required fees and
penalties incurred.
(e) The master, licensed deck officer, or purser may appear in person
at the customhouse to enter the vessel; or the required oaths, related
documents, and other papers properly executed by the master or other
proper officer may be delivered at the customhouse by the vessel agent
or other personal representatives of the master.
(T.D. 71-169, 36 FR 12603, July 2, 1971, as amended by T.D. 83-214,
48 FR 46511, Oct. 13, 1983; T.D. 83-214, 48 FR 56043, Dec. 19, 1983;
T.D. 85-91, 50 FR 21428, May 24, 1985)
/19/ ''Except as otherwise provided by law, and under such
regulations as the Secretary of the Treasury may prescribe, the master
of a vessel of the United States arriving in the United States from a
foreign port or place shall, within forty-eight hours after its arrival
within the limits of any customs collection district, make formal entry
of the vessel at the customhouse by producing and depositing with the
collector the vessel's crew list, its register, or document in lieu
thereof, the clearance and bills of health issued to the vessel at the
foreign port or ports from which it arrived, together with the original
and one copy of the manifest, and shall make oath that the ownership of
the vessel is as indicated in the register, or document in lieu thereof,
and that the manifest was made out in accordance with section 431 of
this Act.'' (Tariff Act of 1930, sec. 434, as amended; 19 U.S.C. 1434)
/20/ ''The master of any foreign vessel arriving within the limits of
any customs collection district shall, within forty-eight hours
thereafter, make entry at the customhouse in the same manner as is
required for the entry of a vessel of the United States, except that a
list of the crew need not be delivered, and that instead of depositing
the register or document in lieu thereof such master may produce a
certificate by the consul of the nation to which such vessel belongs
that said documents have been deposited with him: Provided, That such
exception shall not apply to the vessels of foreign nations in whose
ports American consular officers are not permitted to have the custody
and possession of the register and other papers of vessels entering the
ports of such nations,'' (Tariff Act of 1930, sec. 435; 19 U.S.C. 1435)
21''It shall not be lawful for any foreign consul to deliver to the
master of any foreign vessel the register, or document in lieu thereof,
deposited with him in accordance with the provisions of section 435 of
this Act until such master shall produce to him a clearance in due form
from the collector of the port where such vessel has been entered. Any
consul offending against the provisions of this section shall be liable
to a fine of not more than $5,000.'' (Tariff Act of 1930, sec. 438; 19
U.S.C. 1438)
22(Reserved)
19 CFR 4.10 Request for overtime services.
Request for overtime services in connection with entry or clearance
of a vessel, including the boarding of a vessel in accordance with 4.1
shall be made on Customs Form 3171. (See 24.16 of this chapter
regarding pleasure vessels.) Such request for overtime services must
specify the nature of the services desired and the exact times when they
will be needed, unless a term special license (unlimited or limited to
the service requested) has been issued (see 4.30(g)) and arrangements
are made locally so that the proper Customs officer will be notified
during official hours in advance of the rendering of the services as to
the nature of the services desired and the exact times they will be
needed. Such request shall not be approved (previously issued term
special licenses shall be revoked) unless the carrier complies with the
provisions of paragraphs (l) and (m) of 4.30 regarding terminal
facilities and employee lists, respectively, and the required cash
deposit or bond, on Customs Form 301, containing the bond conditions set
forth in 113.64 of this chapter, has been received. Separate bonds
shall be required if overtime services are requested by different
principals.
(T.D. 72-189, 37 FR 13975, July 15, 1972, as amended by T.D. 84-213,
49 FR 41163, Oct. 19, 1984; T.D. 92-74, 57 FR 35751, Aug. 11, 1992)
19 CFR 4.11 Sealing of stores.
Upon the arrival of a vessel from a foreign port, or a vessel engaged
in the foreign trade from a domestic port, sea stores and ship's stores
not required for immediate use or consumption on board while the vessel
is in port and articles acquired abroad by officers and members of the
crew, for which no permit to land has been issued, shall be placed under
seal, unless the Customs officer is of the opinion that the
circumstances do not require such action. Customs inspectors in charge
of the vessel, from time to time, as in their judgment the necessity of
the case requires, may issue stores from under seal for consumption on
board the vessel by its passengers and crew. (See 4.39.)
19 CFR 4.12 Explanation of manifest discrepancy.
(a)(1) Vessel masters or agents shall notify the district director on
Customs Form 5931 of shortages (merchandise manifested, but not found)
or overages (merchandise found, but not manifested) of merchandise.
(2) Shortages shall be reported to the district director by the
master or agent of the vessel by endorsement on the importer's claim for
shortage on Customs Form 5931 as provided for in 158.3 of this chapter,
or within 60 days after the date of entry of the vessel, whichever is
later. Satisfactory evidence to support the claim of nonimportation23
or of proper disposition or other corrective action (see 4.34) shall be
obtained by the master or agent and shall be retained in the carrier's
file for one year.
(3) Overages shall be reported to the district director within 60
days after the date of entry of the vessel by completion of a post
entry24 or suitable explanation of corrective action (see 4.34) on the
Customs Form 5931.
(4) The district director shall immediately advise the master or
agent of those discrepancies which are not reported by the master or
agent. Notification may be in any appropriate manner, including the
furnishing of a copy of Customs Form 5931 to the master or agent. The
master or agent shall satisfactorily resolve the matter within 30 days
after the date of such notification, or within 60 days after entry of
the vessel, whichever is later.
(5)(a) Unless the required notification and explanation is made
timely and the district director is satisfied that the discrepancies
resulted from clerical error or other mistake and that there has been no
loss of revenue (and in the case of a discrepancy not initially reported
by the master or agent that there was a valid reason for failing to so
report), applicable penalties under section 584, Tariff Act of 1930, as
amended (19 U.S.C. 1584), shall be assessed (see 162.31 of this
chapter). For purposes of this section, the term ''clerical error'' is
defined as a non-negligent, inadvertent, or typographical mistake in the
preparation, assembly, or submission of the manifest. However, repeated
similar manifest discrepancies by the same parties may be deemed the
result of negligence and not clerical error or other mistake. For the
purpose of assessing applicable penalties, the value of the merchandise
shall be determined as prescribed in 162.43 of this chapter. The fact
that the master or owner had no knowledge of a discrepancy shall not
relieve him from the penalty.
(b) Except as provided in paragraph (c) of this section, a correction
in the manifest shall not be required in the case of bulk merchandise if
the district director is satisfied that the difference between the
manifested quantity and the quantity unladen, whether the difference
constitutes an overage or a shortage, is an ordinary and usual
difference properly attributable to absorption of moisture, temperature,
faulty weighing at the port of lading, or other similar reason. A
correction in the manifest shall not be required because of
discrepancies between marks or numbers on packages of merchandise and
the marks or numbers for the same packages as shown on the manifest of
the importing vessel when the quantity and description of the
merchandise in such packages are correctly given.
(c) Manifest discrepancies (shortages and overages) of petroleum and
petroleum products imported in bulk shall be reported on Customs Form
5931, if the discrepancy exceeds one percent.
(T.D. 80-142, 45 FR 36383, May 30, 1980)
23* * * ''If any merchandise described in such manifest is not found
on board the vessel or vehicle the master or other person in charge or
the owner of such vessel or vehicle or any person directly or indirectly
responsible for any discrepancy between the merchandise and said
manifest shall be subject to a penalty of $500: Provided, That if the
appropriate Customs officer shall be satisfied that the manifest * * *
is incorrect by reason of clerical error or other mistake and that no
part of the merchandise not found on board was unshipped or discharged
except as specified in the report of the master, said penalties shall
not be incurred. * * *, the term 'clerical error' means a
non-negligent, inadvertent, or typographical mistake in the preparation,
assembly or submission of the manifest. * * *'' (Tariff Act of 1930,
sec. 584, as amended, 19 U.S.C. 1584).
24''If there is any merchandise or baggage on board such vessel which
is not included in or which does not agree with the manifest, the master
of the vessel shall make a post entry thereof, and mail or deliver a
copy to such employee as the Secretary of the Treasury shall designate
and for failure so to do shall be liable to a penalty of $500.'' (Tariff
Act of 1930, sec. 440, as amended; 19 U.S.C. 1440).
25-27(Reserved)
19 CFR 4.13 Alcoholic liquors on vessels of not over 500 net tons.
(a) When a vessel of not over 500 net tons which arrives from a
foreign port or a hovering vessel has on board any alcoholic liquors, a
certificate respecting the importation of any spirits, wines, or other
alcoholic liquors on board, other than sea stores, shall be delivered to
the appropriate Customs officer with the inward foreign manifest. Each
such certificate shall consist of a declaration of the master of the
vessel, together with the certificate of a consular officer of the
United States or other authorized person, and shall cover only one
shipment from one consignor to one consignee or firm of consignees. The
document shall be in substantially the following form:
Declaration of Master. I declare that the following merchandise is
being shipped in accordance with the facts here stated as true and
correct to the best of my information and belief:
Date of shipment:
Marks, numbers, and quantities:
Port of arrival:
Consignor:
Full description of goods:
Consignee:
(Signature)
Master of the
(Name of vessel)
(Port of shipment)
------------------ 19 --
(Date)
Certificate of Consular Officer. I certify that the above
declaration was this day produced and signed before me by the individual
whose signature appears, that I am satisfied he is the person he
represents himself to be, that I have delivered one copy hereof to him,
and that I have retained a copy in my files.
Service number not required.
(Post)
Tariff item No. 58(a) (no fee).
(Date)
(consular
impression
seal)
(Signature)
(Title)
Certificate of Other Authorized Person. I certify that I have been
designated by letter of ------------ , 19 -- , from (insert name of
Officer), American (title) at (place), to provide certifications upon
declarations made by masters under 7 of the Anti-Smuggling Act of 1935
(19 U.S.C. 1707), that the above declaration was this day produced and
signed before me by the individual whose signature appears, that I am
satisfied he is the person he represents himself to be, that I have no
interest in the shipment described, that I have delivered one copy
hereof to the person making the declaration, and that I have forwarded
one copy to the American (Embassy, Consulate General, Consulate) at
(place).
(Port of shipment)
------------------ 19 -- (Date)
(seal not
required)
(Signature)
(Title)
The provisions of this paragraph, read together with those of 91.4,
title 22, Code of Federal Regulations, constitute the joint regulations
contemplated for issuance by the Secretary of State and the Secretary of
the Treasury under section 1707, title 19, United States Code.
(b) When any shipment of spirits, wines, or other alcoholic liquors
found on board a vessel not exceeding 500 net tons is not accompanied by
a certified declaration as described in paragraph (a) of this section
but is shown to have a bona fide destination outside the United States,
the master shall furnish a landing bond on Customs Form 301, containing
the bond conditions relating to international carriers set forth in
113.64 of this chapter in an amount equal to twice the potential duty
liability with an authorized corporate surety.
(c) The condition of the landing bond shall be satisfied by the
delivery to the district director within 6 months from the date of the
bond of a landing certificate or certificates of a revenue officer of
the country of destination showing that all the alcoholic liquors have
been landed at their foreign destination.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 67-201, 32 FR 12557,
Aug. 30, 1967; 32 FR 12750, Sept. 6, 1967; T.D. 84-213, 49 FR 41163,
Oct. 19, 1984; T.D. 92-74, 57 FR 35751, Aug. 11, 1992)
19 CFR 4.14 Foreign equipment purchases by, and repairs to, American
vessels.
(a) Dutiability of foreign repairs and equipment purchases -- (1)
Items subject to duty. The equipment, or any part thereof, including
boats, purchased for, or the repair parts or materials to be used, or
the expenses for repairs made, including the cost of labor incurred,
outside the United States, upon any vessel documented under the laws of
the United States with a registry, coastwise trade license, or Great
Lakes license endorsement, or intended to be employed in such trade, are
dutiable at the rate of 50 percent ad valorem on the actual cost in the
country where the items are purchased or the repairs are made.
Liability for declaration, entry, and payment of duties accrues at the
time of the first arrival of the vessel in a port of the United States.
For the purposes of this section, equipment, repair parts or materials
purchased, or repairs made, in American Samoa, the Guantanamo Bay Naval
Station, Guam, Puerto Rico, or the U.S. Virgin Islands are not
considered to have been purchased or made outside the United States.
(2) Dutiable costs on specific types of vessels -- (i) Fishing
vessels. Documented vessels of the United States with a fishery license
endorsement having a permit to touch and trade (see 4.15) and
documented vessels with a fishery license endorsement which lack a
permit to touch and trade are subject to this section.
(ii) Government-owned or chartered vessels. Vessels owned or
chartered by the United States Government, if documented with a
registry, coastwise trade, or Great Lakes trade endorsement, or if
undocumented, intended to engage in foreign, coastwise or Great Lakes
trade, are subject to this section. See paragraph (b)(2)(i) of this
section with respect to entry procedures for Government vessels.
(iii) Vessels outside U.S. for two years or more -- (A) Requirements
for declaration and entry of dutiable items. If a vessel which is
documented with a registry, coastwise trade, or Great Lakes trade
endorsement is operated in international or foreign waters two years or
more after its last departure from the U.S., the only dutiable items are
fish nets and nettings whenever purchased and any other items purchased
or repairs made during the first six months after the vessel's last
departure from the U.S. Under these circumstances, only those items
(with the exception of fish nets and nettings) purchased and repairs
made outside the U.S. during the first six months after the vessel's
last departure from the U.S. shall be declared and entered. Fish nets
and netting purchased or repaired outside the U.S. shall be declared and
entered whether or not purchased or repaired during the first six months
after departure.
(B) Exception. The provisions of 4.14(a)(2)(iii)(A) do not apply to
a vessel designed and used primarily for transporting passengers and
property if such vessel departed the U.S. for the sole purpose of
obtaining equipment, parts, materials, or repairs.
(iv) LASH Barges. Lighter-aboard-ship (LASH) barges (see 4.81 and
4.81a) and similar vessels documented with a registry, coastwise trade,
or Great Lakes trade endorsement or, if undocumented, intended to engage
in such trade, are subject to this section.
(b) Declaration and repair entry -- (1) Declaration. Upon first
arrival of the vessel in the United States, the owner or master shall
declare on Customs Form 226 all equipment, parts, or materials
purchased, and all repairs made, outside the United States. Except as
provided in 4.14(a)(2) (iii)(B), the declaration is required regardless
of the dutiable status of such items or expenses. The declaration shall
be ready for production on demand and for inspection by the boarding
officer and shall be presented as part of the original manifest when
formal entry of the vessel is made. Estimated duties shall be deposited
or a bond on Customs Form 301, containing the bond conditions set forth
in 113.64 of this chapter shall be filed before the departure of the
vessel, except as provided in paragraph (b)(2)(i) of this section. The
amount of the bond shall be determined by the district director as
provided in 113.14(m) of this chapter. See paragraph (g) of this
section for applicable penalties.
(2) Entry. All equipment, parts, or materials purchased for, and all
repairs made outside the United States to, any vessel subject to the
provisions of this section shall be entered on Customs Form 226 by the
master or owner of the vessel. The entry shall be filed with the
appropriate Customs officer at the port of first arrival within five
working days after arrival. The Customs officer with whom the entry is
filed shall forward it to the appropriate vessel repair liquidation
unit. The party filing the entry shall mark it to indicate whether it
is a full and complete account or an incomplete account. See paragraph
(g) of this section for applicable penalties.
(i) Entry procedures for vessels owned or chartered by the United
States. Whenever the appropriate Customs officer determines that a
Government-owned or chartered vessel subject to the provisions of this
section (see paragraph (a)(2)(ii)) is being operated by an agency of the
United States, or that a Government-owned or chartered vessel is being
operated by a private party for an agency of the United States under an
agreement that obligates the Government agency to pay any duty on the
costs of repairs or purchases, the vessel shall be allowed to depart the
port of first arrival without depositing estimated duties or furnishing
a bond to cover estimated duties. In all other cases, the vessel shall
be treated as though privately owned.
(ii) Time period for submitting evidence of cost. Whenever a repair
entry is submitted as a full and complete account, the entry papers
shall include evidence showing the cost of each item listed on the
entry. If a repair entry is submitted as an incomplete account, the
evidence must be submitted within 60 days from the date of the vessel's
arrival. If before the end of the 60-day period, the party that is
required to furnish the evidence of cost submits a written request for
an extension of time beyond the 60-day period, together with a
satisfactory explanation of the delay, to the appropriate vessel repair
liquidation unit, that unit may grant an additional 30-day extension of
time to submit cost evidence. Any request for a further extension of
time to furnish evidence of cost shall be submitted to the appropriate
vessel repair liquidation unit, which shall transmit the request to
Headquarters, U.S. Customs Service, Attention: Carrier Rulings Branch,
for approval. If the costs shown on the complete account differ from
the costs declared on the entry, the appropriate Customs officer may
permit amendment of the entry.
(A) Investigation to obtain evidence. If the required evidence is
not furnished timely, or is of doubtful authenticity, the appropriate
regional commissioner shall use all available means to obtain the
necessary information and may refer the matter to the Office of
Enforcement. If an investigation is conducted, the Office of
Enforcement shall obtain all available evidence on the cost of the
repairs and any evidence with respect to the reason for the party's
failure to submit the evidence in a timely fashion.
(B) Concurrent time period for submission of costs and filing
application for relief. The 60-day time period to submit evidence of
cost on the entry is concurrent with the 60-day time period to submit an
application for relief under paragraph (d)(1)(ii) of this section and
will not operate to provide additional time to submit an application for
relief. A request for additional time to submit evidence of cost may
include a request for additional time to submit an application for
relief.
(c) Remission or refund of duty -- (1) Vessel repair liquidation
units. Vessel repair liquidation units under the supervision of the
Regional Commissioner of Customs are established at New York, New York
(New York Region); New Orleans, Louisiana (South Central Region); and
San Francisco, California (Pacific Region). The New York Region unit
shall process and liquidate each vessel repair entry filed at ports in
the Northeast, New York, and the North Central Regions. The South
Central Region unit shall process and liquidate each vessel repair entry
filed at ports in the Southeast, the South Central, and the Southwest
Regions. The Pacific Region unit shall process and liquidate each
vessel repair entry filed at ports in the Pacific Region. After
processing and liquidation of the entries, the bulletin notice of
liquidation shall be returned to the respective ports of entry for
posting.
(2) Authority. If clearly applicable precedent for a decision exists
and any remission or refund of duty as a result of a decision will be
less than $2,500, the Regional Commissioners of the New York, South
Central, and Pacific Regions may approve or deny any application for
relief on vessel repair entries filed at the ports within their
respective jurisdictions. If there is no clearly applicable precedent
on which to base a decision, or if the decision may result in a
remission or refund of $2,500 or more in duty, the respective Regional
Commissioner shall refer the matter to Headquarters, U.S. Customs
Service, Attention: Carrier Rulings Branch, for advice before acting on
the application for relief.
(3) Basis for remission or refund. Remission or refund of duty is
authorized if good and sufficient evidence is furnished which shows any
of the following circumstances exist:
(i) Stress of weather or other casualty. The vessel, while in the
regular course of its voyage, was compelled, by stress of weather or
other casualty, while outside the United States, to purchase such
equipment or make such repairs, to secure the safety and seaworthiness
of the vessel to enable it to reach its port of destination in the
United States. However, only the duty on the cost of the minimal
repairs needed for the safety and seaworthiness of the vessel is subject
to remission or refund. For the purposes of this section, the term
''casualty'' does not include any purchases or repairs necessitated by
ordinary wear and tear, but does include a part's failure to function if
satisfactory evidence shows that the specific part was repaired or
serviced immediately before starting the voyage from the United States
port and that the part failed to function within six months of such
repair or servicing.
(ii) United States parts and equipment installed with American labor.
The equipment, equipment parts, repair parts or materials used on the
vessel were manufactured or produced in the United States and purchased
by the owner of the vessel in the United States, and the labor necessary
to install such equipment or to make such repairs was performed by
residents of the United States or by members of the regular crew of the
vessel.
(iii) Dunnage. The equipment, equipment parts, materials or labor
were used as dunnage for cargo, or for the packing or shoring thereof,
or in the erection of temporary bulkheads or other similar devices for
the control of bulk cargo, or in the preparation (without permanent
repair or alteration) of tanks for the carriage of liquid cargo.
(d) Procedure for remission or refund of duties -- (1) Application
for relief -- (i) Form and contents. The application for relief need
not be in any particular form. The application for relief should allege
that an item or a repair expense covered by the entry is not subject to
duty under paragraph (a) of this section, or that the articles purchased
or the repair expenses are within the provisions of paragraph (c) of
this section, or that both conditions are present. The application for
relief also shall certify that all foreign equipment, parts, or
materials purchased for, and all foreign repairs made to, the vessel
within one year immediately preceding the application have been declared
as required by this section, or the application shall be deemed
incomplete. The application for relief shall be signed by the master,
owner, or operator of the vessel, or their authorized agent. If the
application for relief is filed by a corporation, it shall be signed by
an authorized corporate officer.
(ii) Place and time of filing. The application for relief shall be
filed with the appropriate Customs officer at the port where the vessel
repair entry was made or with the appropriate vessel repair liquidation
unit (see paragraph (c)(1) of this section). If filed at the port where
the entry was made, the Customs officer who receives the application
shall promptly forward it, together with his comments, if any, to the
appropriate vessel repair liquidation unit. The application for relief,
with supporting evidence, shall be filed within 60 days from the date of
first arrival of the vessel. However, if good cause is shown, the
appropriate vessel repair liquidation unit may authorize one 30-day
extension of time to file beyond the 60-day filing period.
(iii) Supporting evidence. Unless such evidence is already filed
with Customs, each application for relief shall include duplicate copies
of the following evidence, in addition to any other documents the
applicant wishes to submit in support of the application:
(A) All itemized bills, receipts, and invoices covering items
specified in paragraph (a)(1) of this section, segregating the cost of
those items for which relief is sought from all other items listed in
the vessel repair entry.
(B) Full and complete photocopies of the relevant parts of the
vessel's logs.
(C) Photocopies of any American Bureau of Shipping or other
classification society report of the cause and type of damage and the
nature of the remedial action taken, together with photocopies of any
certifications of seaworthiness.
(D) A certification by the master or other responsible vessel officer
with personal knowledge of the facts relating to the relief sought,
including, but not limited to, details of the claimed stress of weather
or other casualty, when and where it occurred, the damages due to such
stress of weather or other casualty, and the place and date where the
vessel was repaired or the equipment for the vessel was purchased.
(E) A certification by the master as to whether the repairs or
equipment purchases were necessary for the safety and seaworthiness of
the vessel to enable it to reach its port of destination in the United
States.
(F) A written description of the circumstances involved by the master
or other responsible vessel officer having knowledge of the facts when
remission or refund is sought under the provisions of paragraph
(c)(3)(ii) (relating to the use of American equipment and labor) or
(c)(3)(iii) (relating to dunnage) of this section.
(G) In the case of LASH barges and similar unmanned vessels, the
evidence required in paragraphs (d)(1)(iii) (B), (D), (E), and (F) of
this section may be omitted, and in lieu thereof, the owner or operator
of each vessel shall submit evidence showing that: (1) The vessel was
inspected immediately prior to its lading aboard the vessel which
transported it to a foreign port on the voyage in which the damage
occurred, (2) the vessel was then found to be in seaworthy condition,
(3) the damage was discovered during the course of the foreign voyage,
and (4) the repairs were necessary for the safety and seaworthiness of
the vessel to enable it to reach its port of destination in the United
States.
(iv) Documentary evidence. All documents submitted in support of an
application must be certified by the master or owner of the vessel to be
originals or copies of originals. If a vessel is owned or operated by a
corporation, the master or an authorized corporate officer shall certify
the documents. Documents in a foreign language shall be accompanied by
an English translation that is certified for accuracy by the translator.
(v) Action. Within 60 days after receipt of an application for
relief by a vessel repair liquidation unit, the appropriate regional
commissioner shall either approve or deny the application for relief or
forward it to Headquarters, U.S. Customs Service, Attention: Carrier
Rulings Branch, for advice, as provided in paragraph (c)(2) of this
section. The appropriate regional commissioner shall give prompt
written notice of any final decision to the party who submitted the
application. The notice shall advise the party of its right to petition
for review of the decision under paragraph (d)(2) of this section. If
the decision involves remission of duty under paragraph (c) of this
section and the entry has been liquidated, reliquidation is not
required. If any other relief is granted and the entry has been
liquidated, reliquidation is required.
(vi) Suspension of liquidation. If an application for relief has
been filed within the time period provided in paragraph (d)(1)(ii) of
this section, liquidation of the vessel repair entry shall be suspended
until 30 days after the date of the written notice provided for in
paragraph (d)(1)(v) of this section.
(2) Petition for review on a denial of an application for relief --
(i) Form. If an applicant is dissatisfied with the decision on its
application for relief, the applicant may file a petition for review of
that decision. The petition for review need not be in any particular
form. The petition for review must identify the decision on the
application for relief and must detail the exceptions taken to that
decision. The petition shall be signed by the master, owner, or
operator of the vessel, or their authorized agent. If the petition for
review is filed by a corporation, it must be signed by a duly authorized
corporate officer.
(ii) Place and time of filing. The petition for review shall be
addressed to the Commissioner of Customs and shall be filed with the
appropriate vessel repair liquidation unit within 30 days after the date
of the written notice to the party of the decision on the application
for relief, as provided in paragraph (d)(1)(v) of this section.
However, if good cause is shown, the appropriate vessel repair
liquidation unit may authorize one additional 30-day extension of time.
(iii) Action. The appropriate regional commissioner promptly shall
transmit a copy of the petition for review, any comments and
recommendations he may have on the petition for review, and the entire
file on the application for relief to Headquarters, U.S. Customs
Service, Attention: Carrier Rulings Branch, for decision. After
notification of the decision by Headquarters, the appropriate regional
commissioner shall give written notification of that decision to the
party who filed the petition for review. The notice will inform the
party of his right to submit a supplemental petition for review and that
no further suspension of liquidation will be permitted.
(iv) Suspension of liquidation. If an original petition for review
is filed within the time provided for in paragraph (d)(2)(ii) of this
section, liquidation of the vessel repair entry shall be suspended
further until the regional commissioner notifies the party who filed the
petition of the decision on the petition. Following notification of the
Headquarters decision to the party who filed the petition, the vessel
repair liquidation unit shall promptly initiate liquidation of the entry
in accordance with that decision even if a supplemental petition for
review is filed.
(e) Liquidation of vessel repair entries, time limits. If evidence
of cost is available and the appropriate vessel repair liquidation unit
receives written notification from the master, owner, or operator of the
vessel, or their authorized agent, that an application for relief will
not be filed, the vessel repair liquidation unit promptly shall initiate
liquidation of the entry. In all other cases in which the evidence of
cost is available, the entry may be liquidated 60 days after arrival of
the vessel, or at the expiration of any extension of time granted under
paragraph (b)(2)(ii) of this section to furnish evidence of cost, unless
an application for relief is filed timely as provided in paragraph
(d)(1)(ii) of this section. If an application for relief is filed
timely, the vessel repair entry may be liquidated 30 days after the date
of the written notice to the party who filed the application for relief,
as provided in paragraph (d)(1)(v), unless a petition for review is
filed timely under paragraph (d)(2)(ii) of this section. If a petition
for review is filed timely, the vessel repair entry may be liquidated
after the date of the notification of the decision on the petition to
the party who filed the petition even though a supplemental petition for
review is filed.
(f) Protests. Following liquidation of an entry, a protest under
part 174 of this chapter may be filed against the decision to treat an
item or a repair as dutiable under paragraph (a) of this section.
(g) Penalties -- (1) Failure to report, enter, or pay duty. If the
owner or master of a vessel subject to the provisions of paragraph (a)
of this section willfully or knowingly neglects or fails to report, make
entry, and pay duties as required, or if he makes any false statement in
respect of the purchases or repairs described in this section without
reasonable cause to believe the truth of the statements, or aids or
procures the making of any false statement as to any material matter
without reasonable cause to believe the truth of the statement, the
vessel, with its tackle, apparel, and furniture, or a monetary amount up
to the value thereof as determined by the Secretary of the Treasury, to
be recovered from the owner, shall be subject to seizure and forfeiture.
(2) False declaration. If any person required to file a declaration
on Customs Form 226, by paragraph (b)(1) of this section, or to file an
entry on Customs Form 226, by paragraph (b)(2) of this section,
willfully and knowingly provides any false information, or willfully and
knowingly omits any required information, that person shall be subject
to the criminal penalties provided for in 18 U.S.C. 1001.
(T.D. 80-237, 45 FR 64565, Sept. 30, 1980, as amended by T.D.
82-227, 47 FR 54065, Dec. 1, 1982; T.D. 83-214, 48 FR 46511, Oct. 13,
1983; T.D. 84-149, 49 FR 28698, July 16, 1984; T.D. 84-213, 49 FR
41163, Oct. 19, 1984; T.D. 85-123, 50 FR 29952, July 23, 1985; T.D.
91-77, 56 FR 46114, Sept. 10, 1991)
19 CFR 4.15 Fishing vessels touching and trading at foreign places.
(a) Before any vessel documented with a fishery license endorsement
shall touch and trade at a foreign port or place, the master shall
obtain from the district director a permit on Customs Form 1379 to touch
and trade.
When a fishing vessel departs from the United States and there is an
intent to stop at a foreign port (1) to lade vessel equipment which was
preordered, (2) to purchase and lade vessel equipment, or (3) to
purchase and lade vessel equipment to replace existing vessel equipment,
the master of the vessel must either clear for that foreign port or
obtain a permit to touch and trade, whether or not the vessel will
engage in fishing on that voyage. 28 Purchases of such equipment,
whether intended at the time of departure or not, are subject to
declaration, entry, and payment of duty pursuant to section 466 of the
Tariff Act of 1930, as amended (19 U.S.C. 1466). The duty may be
remitted if it is established that the purchases resulted from stress of
weather or other casualty.
(b) Upon the arrival of a documented vessel with a fishery
endorsement which has put into a foreign port or place, the master shall
report its arrival, make entry, and conform in all respects to the
regulations applicable in the case of a vessel arriving from a foreign
port.
(c) If a vessel which has been granted a permit to touch and trade
arrives at a port in the United States, whether or not the vessel has
touched at a foreign port or place, such permit shall forthwith be
surrendered to the district director.
(d) No permit to touch and trade shall be issued to a vessel which
does not have a Certificate of Documentation with a fishery license
endorsement.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 77-28, 42 FR 3161,
Jan. 17, 1977; T.D. 83-214, 48 FR 46512, Oct. 13, 1983)
28''Whenever any vessel, licensed for carrying on the fisheries, is
intended to touch and trade at any foreign port, it shall be the duty of
the master or owner to obtain permission for that purpose from the
collector of the district where such vessel may be, previous to her
departure, and the master of every such vessel shall deliver like
manifests, and make like entries, both of the vessel and of the
merchandise on board, within the same time, and under the same penalty,
as are by law provided for vessels of the United States arriving from a
foreign port.'' (46 U.S.C. 310)
''Whenever a vessel, licensed for carrying on the fisheries, is found
within three leagues of the coast, with merchandise of foreign growth or
manufacture, exceeding the value of $500, without having such permission
as is directed by section 310 of this title, such vessel together with
the merchandise of foreign growth or manufacture imported therein, shall
be subject to seizure and forfeiture.'' (46 U.S.C. 311; see also 46
U.S.C. 325)
If such a vessel puts into a foreign port or place and only obtains
bunkers, stores, or supplies suitable for a fishing voyage, it is not
considered to have touched and traded there. Fish nets and netting are
considered vessel equipment and not vessel supplies.
19 CFR 4.16 Entry and clearance on board vessels.
(a) A master, owner, or agent of a vessel described in the Act of
June 16, 1937,29 who desires that arrival may be reported, entry made,
and clearance obtained on board the vessel shall file with the district
director of Customs an application on Customs Form 3171 and a single
entry or continuous bond on Customs Form 301 containing the bond
conditions set forth in 113.64 of this chapter, in such amount as the
district director deems appropriate but not less than $1,000.
(b) If the application is approved, the district director or such
Customs officer as may be designated by him shall receive the report of
arrival and the entry of the vessel and grant it clearance on board the
vessel.
(c) For the purposes of the said act the term ''at night'' shall
include the hours from 5 p.m. of one day to 8 a.m. of the following day,
and the term ''holiday'' shall include only national holidays.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 68-247, 33 FR 15021,
Oct. 8, 1968; T.D. 84-213, 49 FR 41163, Oct. 19, 1984; 49 FR 44867,
Nov. 9, 1984)
29''In order to expedite the dispatch of vessels carrying passengers
operating on regular schedules and arriving at night or on a Sunday or a
holiday at a port in the United States at which such vessel is required
by law to report arrival and make entry and from which it is required to
obtain a clearance, the collector of customs, or any deputy collector of
customs designated by him, if the vessel departs during the same night,
Sunday, or holiday on which it arrives may, under such regulations as
may be prescribed by the Secretary of the Treasury, receive the report
of arrival and entry of such vessel from and give clearance for such
vessel to the master or other proper officer thereof on board such
vessel: Provided, That bond, as prescribed in section 1451 of this
title, is given to secure reimbursement to the Government for the
compensation of, and expenses incurred by, such customs officers in
performing such services, who shall be entitled to rates of compensation
fixed on the same basis and payable in the same manner and upon the same
terms and conditions as in the case of customs officers and employees
assigned to lading or unlading at night or on Sunday or a holiday.'' (19
U.S.C. 1435b. Sec. 102, Reorg. Plan No. 3 of 1946; 3 CFR, 1946 Supp.,
Ch. IV)
30-57(Reserved)
19 CFR 4.17 Vessels from discriminating countries.
The prohibition against imports in, and the penalty of forfeiture of,
certain vessels from countries which discriminate against American
vessels provided for in subsections 2 and 3 of paragraph J, section IV,
Tariff Act of 1913, as amended by the act of March 4, 1915 (19 U.S.C.
130, 131), shall be enforced only in pursuance of specific instructions
issued and published from time to time by the Secretary of the Treasury
or such other officer as the Secretary may designate. (See also
4.20(c) and 159.42 of this chapter.)
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 73-175, 38 FR 17444,
July 2, 1973)
19 CFR 4.17 Tonnage Tax and Light Money
19 CFR 4.20 Tonnage taxes.
(a) Except as specified in 4.21, a regular tonnage tax or duty of 9
cents per net ton, not to exceed in the aggregate 45 cents per net ton
in any 1 year, shall be imposed at each entry on all vessels which shall
be entered in any port of the United States from any foreign port or
place in North America, Central America, the West Indies, the Bahama
Islands, the Bermuda Islands, the coast of South America bordering on
the Caribbean Sea (considered to include the mouth of the Orinoco
River), or the high seas adjacent to the U.S. or the above listed
foreign locations, and on all vessels (except vessels of the U.S.,
recreational vessels, and barges, as defined in 2101 of Title 46) that
depart a U.S. port or place and return to the same port or place without
being entered in the United States from another port or place, and
regular tonnage tax of 27 cents per net ton, not to exceed $1.35 cents
per net ton per annum, shall be imposed at each entry on all vessels
which shall be entered in any port of the United States from any other
foreign port. In determining the port of origin of a voyage to the
United States and the rate of tonnage tax, the following shall be used
as a guide:
(1) When the vessel has proceeded in ballast from a port to which the
27-cent rate is applicable to a port to which the 9-cent rate applies
and there has laden cargo or taken passengers, tonnage tax upon entry in
the United States shall be assessed at the 9-cent rate.
(2) The same rate shall be applied in a case in which the vessel has
transported cargo or passengers from a 27-cent port to a 9-cent port
when all such cargo or passengers have been unladen or discharged at the
9-cent port, without regard to whether the vessel thereafter has
proceeded to the United States in ballast or with cargo or passengers
laden or taken on board at the 9-cent port.
(3) The 27-cent rate shall be applied when the vessel proceeds from a
9-cent port to a 27-cent port en route to the United States under
circumstances similar to paragraph (a) (1) or (2) of this section.
(4) If the vessel arrives in the United States with cargo or
passengers taken at two or more ports to which different rates are
applicable, tonnage tax shall be collected at the higher rate.
(b) The tonnage year shall be computed from the date of the first
entry of the vessel concerned, without regard to the rate of the payment
made at that entry, and shall expire on the day preceding the
corresponding date of the following year. There may be 5 payments at
the maximum (27 cent) and 5 at the minimum (9-cent) rate during a
tonnage year, so that the maximum assessment of tonnage duty may amount
to $1.80 per net ton for the tonnage year of a vessel engaged in
alternating trade.
(c) A vessel shall also be subject on every entry from a foreign port
or place, whether or not regular tonnage tax is payable on the
particular entry, to the payment of a special tonnage tax and to the
payment of light money at the rates and under the circumstances
specified in the following table:
(d) Tonnage tax shall be imposed upon a vessel even though she enters
a port of the United States only for orders.
(e) The fact that a vessel passes through the Panama Canal does not
affect the rate of tonnage tax otherwise applicable to the vessel.
(f) For the purpose of computing tonnage tax, the net tonnage of a
vessel stated in the vessel's marine document shall be accepted unless
(1) such statement is manifestly wrong, in which case the net tonnage
shall be estimated, pending admeasurement of the vessel, or the tonnage
reported for her by any recognized classification society may be
accepted, or (2) an appendix is attached to the marine document showing
a net tonnage ascertained under the so-called ''British rules'' or the
rules of any foreign country which have been accepted as substantially
in accord with the rules of the United States, in which case the tonnage
so shown may be accepted and the date the appendix was issued shall be
noted on the tonnage tax certificate, Customs Form 1002, and on the
master's oath, Customs Form 1300. For the purpose of computing tonnage
tax on a vessel with a tonnage mark and dual tonnages, the higher of the
net tonnages stated in the vessel's marine document or tonnage
certificate shall be used unless the Customs officer concerned is
satisfied by report of the boarding officer, statement or certificate of
the master, or otherwise that the tonnage mark was not submerged at the
time of arrival. Whether the vessel has a tonnage mark, and if so,
whether the mark was submerged on arrival, shall be noted on Customs
Form 1300 by the boarding officer.
(g) The decision of the Commissioner of Customs is the final
administrative decision on any question of interpretation relating to
the collection of tonnage tax or to the refund of such tax when
collected erroneously or illegally, and any question of doubt shall be
referred to him for instructions.
(h) Any person adversely affected by a decision of the Commissioner
of Customs relating to the collection of tonnage tax, or to the refund
of such tax when collected erroneously or illegally, may appeal the
decision in the Court of International Trade provided that the appeal
action is commenced in accordance with the rules of the Court within 2
years after the cause of action first accrues.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 71-169, 36 FR 12603,
July 2, 1971; T.D. 75-110, 40 FR 21027, May 15, 1975; T.D. 76-280, 41
FR 42647, Sept. 28, 1976; T.D. 79-276, 44 FR 61956, Oct. 29, 1979;
T.D. 82-145, 47 FR 35475, Aug. 16, 1982; T.D. 85-91, 50 FR 21429, May
24, 1985; T.D. 85-90, 50 FR 21430, May 24, 1985; T.D. 93-12, 58 FR
13196, Mar. 10, 1993)
19 CFR 4.21 Exemptions from tonnage taxes.
(a) Tonnage taxes and light money shall be suspended in whole or in
part whenever the President by proclamation shall so direct.
(b) The following vessels, or vessels arriving in the circumstances
as defined below, shall be exempt from tonnage tax and light money:
(1) It comes into port for bunkers (including water), sea stores, or
ship's stores; transacts no other business in the port; and departs
within 24 hours after its arrival.
(2) It arrives in distress, even though required to enter.
(3) It is brought into port by orders of United States naval
authorities and transacts no business while in port other than the
taking on of bunkers, sea stores, or ship's stores.
(4) It is a vessel of war or other vessel which is owned by, or under
the complete control and management of the United States or the
government of a foreign country, and which is not carrying passengers or
merchandise in trade or, if in ballast, which is not arriving from a
foreign port during the usual course of its employment as a vessel
engaged in trade.
(5) It is a yacht or other pleasure vessel not carrying passengers or
merchandise in trade.
(6) It is engaged exclusively in scientific activities.
(7) It is engaged exclusively in laying or repairing cables.
(8) It is engaged in whaling or other fisheries, even though it may
have entered a foreign port for fuel or supplies, if it did not carry
passengers or merchandise in trade.
(9) It is a passenger vessel making three trips or more a week
between a port of the United States and a foreign port.
(10) It is used exclusively as a ferry boat, including a car ferry.
(11) It is a tug with a Great Lakes license endorsement on its vessel
document, when towing vessels which are required to make entry.
(12) It is a documented vessel with a Great Lakes license endorsement
which has touched at an intermediate foreign port or ports during a
coastwise voyage.
(13) It enters otherwise than by sea from a foreign port at which
tonnage or lighthouse duties or equivalent taxes are not imposed on
vessels of the United States (applicable only where the vessel arrives
from a port in the province of Ontario, Canada).
(14) It is a coastwise-qualified vessel solely engaged in the
coastwise trade (although arriving from a foreign port or place, it is
engaged in the transportation of merchandise or passengers, or the
towing of a vessel other than a vessel in distress, between points in
the U.S. via a foreign point) (see 4.80, 4.80a, 4.80b, and 4.92).
(15) It is a vessel entering directly from the Virgin Islands (U.S.),
American Samoa, the islands of Guam, Wake, Midway, Canton, or Kingman
Reef, or Guantanamo Bay Naval Station.
(16) It is a vessel making regular daily trips between any port of
the United States and any port in Canada wholly upon interior waters not
navigable to the ocean, except that such a vessel shall pay tonnage
taxes upon her first arrival in each calendar year.
(17) It is a vessel arriving at a port in the United States which,
while proceeding between ports in the United States, touched at a
foreign port under circumstances which would have exempted it from
making entry under section 441(4), Tariff Act of 1930, as amended (19
U.S.C. 1441(4)), had it touched at a United States port.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 72-264, 37 FR 20317,
Sept. 29, 1972; T.D. 75-110, 40 FR 21027, May 15, 1975; T.D. 75-206,
40 FR 34586, Aug. 18, 1975; T.D. 79-276, 44 FR 61956, Oct. 29, 1979;
T.D. 83-214, 48 FR 46512, Oct. 13, 1983; T.D. 93-12, 58 FR 13197, Mar.
10, 1993)
19 CFR 4.22 Exemptions from special tonnage taxes.
Vessels of the following nations are exempted by treaties,
Presidential proclamations, or orders of the Secretary of the Treasury
from the payment of any higher tonnage duties than are applicable to
vessels of the United States and are exempted from the payment of light
money:
Algeria.
Antigua and Barbuda.
Arab Republic of Egypt.
Argentina.
Australia.
Austria.
Bahamas, The.
Bahrain.
Bangladesh.
Barbados.
Belgium.
Bermuda.
Bolivia.
Bulgaria.
Burma.
Canada.
Chile.
Colombia.
Costa Rica.
Cuba.
Cyprus.
Czechoslovakia.
Denmark (including the Faeroe Islands).
Dominica.
Dominican Republic.
Ecuador.
El Salvador.
Estonia.
Ethiopia.
Fiji.
Finland.
France.
Gambia, The.
German Democratic Republic.
German Federal Republic.
Ghana.
Great Britain (including the Cayman Islands).
Greece.
Greenland.
Guatemala.
Guinea, Republic of.
Guyana.
Haiti.
Honduras.
Hungarian People's Republic
Iceland.
India.
Indonesia.
Iran.
Iraq.
Ireland (Eire).
Israel.
Italy.
Ivory Coast, Republic of.
Jamaica.
Japan.
Kenya.
Korea.
Kuwait.
Latvia.
Lebanon.
Liberia.
Libya.
Luxembourg.
Malaysia.
Malta.
Marshall Islands, Republic of.
Mauritius.
Mexico.
Monaco.
Morocco.
Nauru, Republic of.
Netherlands.
Netherlands Antilles.
New Zealand.
Nicaragua.
Nigeria.
Norway.
Oman.
Pakistan.
Panama.
Papua New Guinea.
Paraguay.
People's Republic of China.
Peru.
Philippines.
Poland.
Portugal.
Qatar.
Rumania.
Saudi Arabia.
Senegal.
Singapore, Republic.
Somali, Republic.
Spain.
Sri Lanka.
St. Vincent and The Grenadines.
Surinam, Republic of.
Sweden.
Switzerland.
Syrian Arab Republic.
Taiwan.
Thailand.
Togo.
Tonga.
Tunisia.
Turkey.
Union of South Africa.
Union of Soviet Socialist Republics.
United Arab Emirates (Abu Dhabi, Ajman, Dubai, Fujairah, Ras Al
Khaimah, Sharjah, and Umm Al Qaiwain).
Uruguay.
Vanuatu, Republic of.
Venezuela.
Yugoslavia.
Zaire.
(28 FR 14596, Dec. 31, 1963)
Editorial Note: For Federal Register citations affecting 4.22, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
19 CFR 4.23 Certificate of payment and cash receipt.
Upon each payment of tonnage tax or light money, the master of the
vessel shall be given a certificate on Customs Form 1002 on which the
control number of the cash receipt (Customs Form 368 or 368A) upon which
payment was recorded shall be written. This certificate shall
constitute the official evidence of such payment and shall be presented
upon each entry during the tonnage year to establish the date of
commencement of the tonnage year and to insure against overpayment. In
the absence of the certificate, evidence of payment of tonnage tax shall
be obtained from the district director to whom the payment was made.
(T.D. 85-71, 50 FR 15415, Apr. 18, 1985, as amended by T.D. 92-56, 57
FR 24943, June 12, 1992)
19 CFR 4.24 Application for refund of tonnage tax.
(a) The authority to make refunds in accordance with section 26 of
the Act of June 26, 1884 (46 U.S.C. 8) of regular tonnage taxes
described in 4.20(a) is delegated to the several Regional Commissioners
of Customs. If any doubt exists, the case shall first be referred to
Headquarters, U.S. Customs Service for advice.
(b) Each application for refund of regular or special tonnage tax or
light money prepared in accordance with this section shall be filed with
the Customs officer to whom payment was made. After verification of the
pertinent facts asserted in the claim, the application shall be
forwarded with any necessary report or recommendation to the Regional
Commissioner of Customs. Applications for refund of special tonnage tax
and light money (see 4.20(c)) with the reports and recommendations
submitted therewith shall be forwarded by the Regional Commissioner to
the Commissioner of Customs for decision. Any refund authorized by the
Regional Commissioner of Customs under paragraph (a) of this section or
any refund of special tonnage tax or light money authorized by the
Commissioner of Customs shall be made by the appropriate Customs
officer. The records of tonnage tax shall be clearly noted to show each
refund authorized.
(c) The application shall be a direct request for the refund of a
definite sum, showing concisely the reasons therefor, the nationality
and name of the vessel, and the date, place, and amount of each payment
for which refund is requested. The application shall be made within 1
year from date of the payment. A protest against a payment shall not be
accepted as an application for its refund.
(d) When the application is based upon a claim that more than five
payments of regular tax at either the 2-cent or the 6-cent rate have
been made during a tonnage year, the application shall be supported by a
statement from the appropriate Customs officer at the port where the
application is submitted and from the appropriate Customs officer at
each port at which any claimed payment was made verifying the facts and
showing in each case whether refunds have been authorized.
(e) The application shall include a certificate by the owner or by
the owner's agent that payment of tonnage tax at the applicable rate has
been or will be made for each entry of the vessel on a voyage on which
that rate is applicable before the end of the current tonnage year,
exclusive of any payment which has been refunded or which may be
refunded as a result of such application.
(f) The owner or operator of the vessel involved, or other party in
interest, may file with the Regional Commissioner a petition addressed
to the Commissioner of Customs for a review of the Regional
Commissioner's decision on an application for refund of regular tonnage
tax. Such petition shall be filed in duplicate within 30 days from the
date of notice of the Regional Commissioner's decision, shall completely
identify the case, and shall set forth in detail the exceptions to the
Regional Commissioner's decision. When such a petition has been filed,
the Regional Commissioner shall immediately transmit both copies thereof
and the entire file to Headquarters, U.S. Customs Service, together
with any comments he may desire to submit. (Section 26, 23 Stat. 59, as
amended; 46 U.S.C. 8.)
(T.D. 71-274, 36 FR 21025, Nov. 3, 1971)
19 CFR 4.24 Landing and Delivery of Cargo
19 CFR 4.30 Permits and special licenses for unlading and lading.
(a) Except as prescribed in paragraph (f), (g), or (k) of this
section or in 123.8 of this chapter and except in the case of a vessel
exempt from entry or clearance under 19 U.S.C. 288, no passengers,
cargo, baggage or other article shall be unladen from a vessel which
arrives directly from any port outside the Customs territory of the
United States or from a vessel which transits the Panama Canal and no
cargo, baggage, or other article shall be laden on a vessel destined to
a port or a place outside the Customs territory of the United States if
Customs supervision of such lading is required until the district
director shall have issued a permit or special license therefore on
Customs Form 3171.
(1) U.S. and foreign vessels arriving at a U.S. port directly from a
foreign port or place are required to make entry, whether it be formal
or, as provided in 4.8, preliminary, before the district director may
issue a permit or special license to lade or unlade.
(2) U.S. vessels arriving at a U.S. port from another U.S. port at
which formal entry was made may be issued a permit or special license to
unlade or lade without having to make either preliminary or formal entry
at the second and subsequent ports. Foreign vessels arriving at a U.S.
port from another U.S. port at which formal entry was made may be issued
a permit or special license to lade or unlade at the second and
subsequent ports prior to formal entry without the necessity of making
preliminary entry. In these circumstances, after the master has
reported arrival of the vessel, the district director may issue the
permit or special license or may, in his discretion, require the vessel
to be boarded, the master to make an oath or affirmation to the truth of
the statements contained in the vessel's manifest to the Customs officer
who boards the vessel, and require delivery of the manifest prior to
issuing the permit.
(b) Application for a permit or special license shall be made by the
master, owner, or agent of the vessel on Customs Form 3171, and shall
specifically indicate the type of service desired at that time, unless a
term permit or term special license has been issued. Arrangements, in
the case of a term permit or term special license, shall be made locally
so that the proper Customs officer will be notified during official
hours in advance of the rendering of the services as to the nature of
the services desired and the exact times they will be needed. An agent
of a vessel may limit his application to operations involved in the
entry and unlading of the vessel or to operations involved in its lading
and clearance. Such limitation shall be specifically noted on the
application.
(c) The request for a permit or a special license shall not be
approved (previously issued term permits or special licenses shall be
revoked) unless the carrier complies with the provisions of paragraphs
(l) and (m) of this section regarding terminal facilities and employee
lists, and the required cash deposit or bond has been filed on Customs
Form 301, containing the bond conditions set forth in 113.64 of this
chapter relating to international carriers.62 When a carrier has on file
a bond on Customs Form 301, containing the bond conditions set forth in
113.63 of this chapter relating to basic custodial bond conditions, no
further bond shall be required solely by reason of the unlading or
lading at night or on a Sunday or holiday of merchandise or baggage
covered by bonded transportation entries. Separate bonds shall be
required if overtime services are requested by different principals.
(d) Except as prescribed in paragraph (f) or (g) of this section, a
separate application for a permit or special license shall be filed in
the case of each arrival.
(e) Stevedoring companies and others concerned in lading or unlading
merchandise, or in removing or otherwise securing it, shall ascertain
that the applicable preliminary Customs requirements have been complied
with before commencing such operation, since performance in the absence
of such compliance render them severally liable to the penalties
prescribed in section 453, Tariff Act of 1930,62a even though they may
not be responsible for taking the action necessary to secure compliance.
(f) The district director may issue a term permit on Customs Form
3171, which will remain in effect until revoked by the district
director, terminated by the carrier, or automatically cancelled by
termination of the supporting continuous bond, to unlade merchandise,
passengers, or baggage, or to lade merchandise or baggage during
official hours.
(g) The district director may issue a term special license on Customs
Form 3171, which will remain in effect until revoked by the district
director, terminated by the carrier, or automatically cancelled by
termination of the supporting continuous bond, to unlade merchandise,
passengers, or baggage, or to lade merchandise or baggage at night or on
a Sunday or holiday when Customs supervision is required. (See 24.16
of this chapter regarding pleasure vessels.)
(h) A special license for the unlading or lading of a vessel at night
or on a Sunday or holiday shall be refused by the district director if
the character of the merchandise or the conditions or facilities at the
place of unlading or lading render the issuance of such special license
dangerous to the revenue. In no case shall a special license for
unlading or lading at night or on a Sunday or holiday be granted except
on the ground of commercial necessity.
(i) The district director shall not issue a permit or special license
to unlade cargo or equipment of vessels arriving directly or indirectly
from any port or place outside the United States, except on compliance
with one or more of the following conditions:
(1) The merchandise shall have been duly entered and permits issued;
or
(2) A bond on Customs Form 301, containing the bond conditions set
forth in 113.64 of this chapter relating to international carriers, or
cash deposit shall have been given; or
(3) The merchandise is to be discharged into the custody of the
district director as provided for in section 490(b), Tariff Act of 1930.
63
(j) Bonds are not required under this section for vessels owned by
the United States and operated for its account.
(k) In the case of vessels of 5 net tons or over which are used
exclusively as pleasure vessels and which arrive from any country, the
district director in his discretion and under such conditions as he
deems advisable may allow the required application for unlading
passengers and baggage to be made orally, and may authorize his
inspectors to grant oral permission for unlading at any time, and to
grant requests on Customs Form 3171 for overtime services.
(l) A permit to unlade pursuant to this part 4 or part 122 of this
chapter shall not be granted unless the district director determines
that the applicant provides or the terminal at which the applicant will
unlade the cargo provides (1) sufficient space, capable of being locked,
sealed, or otherwise secured, for the storage immediately upon unlading
of cargo whose weight-to-value ratio renders it susceptible to theft or
pilferage and of packages which have been broken prior to or in the
course of unlading; and (2) an adequate number of vehicles, capable of
being locked, sealed, or otherwise secured, for the transportation of
such cargo or packages between the point of unlading and the point of
storage. A term permit to unlade shall be revoked if the district
director determines subsequent to such issuance that the requirements of
this paragraph have not been met.
(m) A permit to unlade pursuant to this part 4 or part 122 of this
chapter shall not be granted to an importing carrier, and a term permit
to unlade previously granted to such a carrier shall be revoked, (1) if
such carrier, within 30 days after the date of receipt of a written
demand by the district director, does not furnish a written list of the
names, addresses, social security numbers, and dates and places of birth
of persons it employs in connection with the unlading, storage and
delivery of imported merchandise; or (2) if, having furnished such a
list, the carrier does not advise the district director in writing of
the names, addresses, social security numbers, and dates and places of
birth of any new personnel employed in connection with the unlading,
storage and delivery of imported merchandise within 10 days after such
employment. If the employment of any such person is terminated, the
carrier shall promptly advise the district director. For the purposes
of this part, a person shall not be deemed to be employed by a carrier
if he is an officer or employee of an independent contractor engaged by
a carrier to load, unload, transport or otherwise handle cargo.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 68-247, 33 FR 15022,
Oct. 8, 1968; T.D. 71-39, 36 FR 1891, Feb. 3, 1971; T.D. 72-189, 38
FR 13975, July 15, 1972; T.D. 73-27, 38 FR 2448, Jan. 26, 1973; T.D.
84-213, 49 FR 41163, Oct. 19, 1984; T.D. 88-12, 53 FR 9314, Mar. 22,
1988; T.D. 92-74, 57 FR 35751, Aug. 11, 1992)
/58/ Vessels arriving in the United States from foreign ports may
retain on board, without the payment of duty, all coal and other fuel,
supplies, ships' stores, sea stores, and the legitimate equipment of
such vessels. Any such supplies, ships' stores, sea stores, or
equipment landed and delivered from such vessel shall be considered and
treated as imported merchandise: Provided, That bunker coal, bunker
oil, ships' stores, sea stores, or the legitimate equipment of vessels
belonging to regular lines plying between foreign ports and the United
States, which are delayed in port for any cause, may be transferred
under a permit by the collector under customs supervision from the
vessell so delayed to another vessel of the same line and owner, and
engaged in the foreign trade, without the payment of duty thereon.''
(Tariff Act of 1930, sec. 446; 19 U.S.C. 1446).
The provisions of section 446, Tariff Act of 1930, do not apply to
vessels of less than 5 net tons. (T.D. 45431)
/59/ ''If any merchandise or baggage is laden on, or unladen from,
any vessel or vehicle without a special license or permit therefor
issued by the collector, the master of such vessel or the person in
charge of such vehicle and every other person who knowingly is
concerned, or who aids therein, or in removing or otherwise securing
such merchandise or baggage, shall each be liable to a penalty equal to
the value of the merchandise or baggage so laden or unladen, and such
merchandise or baggage shall be subject to forfeiture, and if the value
thereof is $500 or more, the vessel or vehicle on or from which the same
shall be laden or unladen shall be subject to forefeiture.'' (Tariff Act
of 1930, section 453; 19 U.S.C. 1453)
60-61(Reserved)
62''Before any such special license to unlade shall be granted, the
master, owner, or agent of such vessel or vehicle, or the person in
charge of such vehicle, shall be required to deposit sufficient money to
pay, or to give a bond in an amount to be fixed by the Secretary
conditioned to pay, the compensation and expenses of the customs
officers and employees assigned to duty in connection with such unlading
at night or on Sunday or a holiday, in accordance with the provisions of
section 5 of the act of February 13, 1911, as amended (U.S.C. 1952
edition, title 19 sec. 267). In lieu of such deposit or bond the owner
or agent of any vessel or vehicle or line of vessels or vehicles may
execute a bond in an amount to be fixed by the Secretary of the Treasury
to cover and include the issuance of special licenses for the unlading
of such vessels or vehicles for a period not to exceed one year. * *
*'' (Tariff Act of 1930, section 451, as amended, 19 U.S.C. 1451)
62aSee footnote 59 to 4.30(a).
63''At the request of the consignee of any merchandise, or of the
owner or master of the vessel, or the person in charge of the vehicle in
which the same is imported, any merchandise may be taken possession of
by the collector after the expiration of one day after the entry of the
vessel or report of the vehicle and may be unladen and held at the risk
and expense of the consignee until entry thereof is made.'' (Tariff Act
of 1930, section 490(b); 19 U.S.C. 1490(b))
19 CFR 4.31 Unlading or transshipment due to casualty.
(a) When any cargo or stores of a vessel have been unladen or
transshipped at any place in the United States or its Customs waters
other than a port of entry because of accident, stress of weather, or
other necessity, no penalty shall be imposed under section 453 /64/ or
586(a), /65/ Tariff Act of 1930, if due notice is given to the district
director at the port at which the vessel thereafter first arrives and
satisfactory proof is submitted to him as provided for in section
586(f), Tariff Act of 1930, as amended. /66/ The district director may
accept the certificates of the master and two or more officers or
members of the crew of the vessel, of whom the person next to the master
in command shall be one, as proof that the unlading or transshipment was
necessary by reason of unavoidable cause.
(b) The district director may then permit entry of the vessel and its
cargo and permit the unlading of the cargo in such place in his district
as he may deem proper. Unless its transportation has been in violation
of the coastwise laws, the cargo may be cleared through Customs at the
port where it is discharged or forwarded to the port of original
destination under an entry for immediate transportation or for
transportation and exportation, as the case may be. All regulations
shall apply in such cases as if the unlading and delivery took place at
the port of original destination.
/64/ ''If any merchandise or baggage is laden on, or unladen from,
any vessel or vehicle without a special license or permit therefor
issued by the collector, the master of such vessel or the person in
charge of such vehicle and every other person who knowingly is concerned
or who aids therein, or in removing or otherwise securing such
merchandise or baggage, shall each be liable to a penalty equal to the
value of the merchandise or baggage so laden or unladen, and such
merchandise or baggage shall be subject to forfeiture and if the value
thereof is $500 or more, the vessel or vehicle on or from which the same
shall be laden or unladen shall be subject to forfeiture.'' (Tariff Act
of 1930, sec. 453; 19 U.S.C. 1453)
/65/ ''The master of any vessel from a foreign port or place who
allows any merchandise (including sea stores) to be unladen from such
vessel at any time after its arrival within the customs waters and
before such vessel has come to the proper place for the discharge of
such merchandise and before he has received a permit to unlade, shall be
liable to a penalty equal to twice the value of the merchandise but not
less than $1,000, and such vessel and its cargo and the merchandise so
unladen shall be seized and forfeited.'' (Tariff Act of 1930, sec.
586(a), as amended; 19 U.S.C. 1586(a))
/66/ ''Whenever any part of the cargo or stores of a vessel has been
unladen or transshipped because of accident, stress of weather, or other
necessity, the master of such vessel and the master of any vessel to
which such cargo or stores has been transshipped shall, as soon as
possible thereafter, notify the collector of the district within which
such unlading or transshipment has occurred, or the collector within the
district at which such vessel shall first arrive thereafter, and shall
furnish proof that such unlading or transshipment was made necessary by
accident, stress of weather, or other unavoidable cause, and if the
collector is satisfied that the unlading or transshipment was in fact
due to accident, stress of weather, or other necessity, the penalties
described in this section shall not be incurred.'' (Tariff Act of 1930,
sec. 586(f), as amended, 19 U.S.C. 1586(f))
19 CFR 4.32 Vessels in distress; landing of cargo.
(a) When a vessel from a foreign port arrives in distress at a port
other than that to which it is destined, a permit to land merchandise or
baggage may be issued if such action is necessary. Merchandise and
baggage so unladen shall be taken into Customs custody and, if it has
not been transported in violation of the coastwise laws, may be entered
and disposed of in the same manner as any other imported merchandise or
may be reladen without entry to be carried to its destination on the
vessel from which it was unladen, subject only to charges for storage
and safekeeping.
(b) A bond on Customs Form 301, containing the bond conditions set
forth in 113.64 of this chapter relating to international carriers
shall be given in an amount to be determined by the district director to
insure the proper disposition of the cargo, whether such cargo be
dutiable or free.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 84-213, 49 FR 41164,
Oct. 19, 1984)
19 CFR 4.33 Diversion of cargo.
(a) Unlading at other than original port of destination. A vessel
may unlade cargo or baggage at an alternative port of entry to the port
of original destination if:
(1) It is compelled by any cause to put into the alternative port and
the district director to the port issues a permit for the unlading of
cargo or baggage; or
(2) As a result of an emergency existing at the port of destination,
the district director authorizes the vessel to proceed in accordance
with the residue cargo bond procedure to the alternative port. The
owner or agent of the vessel shall apply for such authorization in
writing, stating the reasons and agreeing to hold the district director
and the Government harmless for the diversion.
(b) Disposition of cargo or baggage at emergency port. Cargo and
baggage unladen at the alternative port under the circumstances set
forth in paragraph (a) of this section may be:
(1) Entered in the same manner as other imported cargo or baggage;
(2) Treated as unclaimed and stored at the risk and expense of its
owner; or
(3) Reladen upon the same vessel without entry, for transportation to
its original destination.
(c) Substitution of ports of discharge on manifest. After entry, the
Cargo Declaration, Customs Form 1302, of a vessel may be changed at any
time to permit discharge of manifested cargo at any domestic port in
lieu of any other port shown on the Cargo Declaration, if:
(1) A written application for the diversion is made on the amended
Cargo Declaration by the master, owner, or agent of the vessel to the
district director of the port where the vessel is located, after entry
of the vessel at that port;
(2) An amended Cargo Declaration, under oath, covering the cargo,
which it is desired to divert, is furnished in support of the
application and is filed in such number of copies as the district
director shall require for local Customs purposes; and
(3) The certified traveling manifest is not altered or added to in
any way by the master, owner, or agent of the vessel. When an
application under paragraph (c)(1) of this section is approved, the
district director shall securely attach an approved copy of the amended
manifest to the traveling manifest and shall send one copy of the
amended Cargo Declaration to the district director at the port where the
vessel's bond was filed.
(d) Retention of cargo on board for later return to the United
States. If, as the result of a strike or other emergency at a United
States port for which inward foreign cargo is manifested, it is desired
to retain the cargo on board the vessel for discharge at a foreign port
but with the purpose of having the cargo returned to the United States,
an application may be made by the master, owner, or agent of the vessel
to amend the vessel's Cargo Declaration, Customs Form 1302, under a
procedure similar to that described in paragraph (c) of this section,
except that a foreign port shall be substituted for the domestic port of
discharge. If the application is approved, it shall be handled in the
same manner as an application filed under paragraph (c) of this section.
However, before approving the application, the district director is
authorized to require such bond as he deems necessary to insure that
export control laws and regulations are not circumvented.
(T.D. 77-255, 42 FR 56320, Oct. 25, 1977)
19 CFR 4.34 Prematurely discharged, overcarried, and undelivered cargo.
(a) Prematurely landed cargo. Upon receipt of a satisfactory written
application from the owner or agent of a vessel establishing that cargo
was prematurely landed and left behind by the importing vessel through
error or emergency, the district director may permit inward foreign
cargo remaining on the dock to be reladen on the next available vessel
owned or chartered by the owner of the importing vessel for
transportation to the destination shown on the Cargo Declaration,
Customs Form 1302, of the first vessel, provided the importing vessel
actually entered the port of destination of the prematurely landed
cargo. Unless so forwarded within 30 days from the date of landing, the
cargo shall be appropriately entered for Customs clearance or for
forwarding in bond; otherwise, it shall be sent to general order as
unclaimed. If the merchandise is so entered for Customs clearance at
the port of unlading, or if it is so forwarded in bond, other than by
the importing vessel or by another vessel owned or chartered by the
owner of the importing vessel, representatives of the importing vessel
shall file at the port of unlading a Cargo Declaration in duplicate
listing the cargo. The district director shall retain the original and
forward the duplicate to the district director at the originally
intended port of discharge.
(b) Overcarried cargo. Upon receipt of a satisfactory written
application by the owner or agent of a vessel establishing that cargo
was not landed at its destination and was overcarried to another
domestic port through error or emergency, the district director may
permit the cargo to be returned in the importing vessel, or in another
vessel owned or chartered by the owner of the importing vessel, to the
destination shown on the Cargo Declaration, Customs Form 1302, of the
importing vessel, provided the importing vessel actually entered the
port of destination. 67
(c) Inaccessibly-stowed cargo. Cargo so stowed as to be inaccessible
upon arrival at destination may be retained on board, carried forward to
another domestic port or ports, and returned to the port of destination
in the importing vessel or in another vessel owned or chartered by the
owner of the importing vessel in the same manner as other overcarried
cargo.
(d) Application for forwarding cargo. When it is desired that
prematurely landed cargo, overcarried cargo, or cargo so stowed as to be
inaccessible, be forwarded to its destination by the importing vessel or
by another vessel owned or chartered by the owner of the importing
vessel in accordance with paragraph (a), (b), or (c) of this section,
the required application shall be filed with the local district director
at the port of premature landing or overcarriage by the owner or agent
of the vessel. The application shall be supported by a Cargo
Declaration, Customs Form 1302, in such number of copies as the district
director may require. Whenever practicable, the application shall be
made on the face of the Cargo Declaration below the description of the
merchandise. The application shall specify the vessel on which the
cargo was imported, even though the forwarding to destination is by
another vessel owned or chartered by the owner of the importing vessel,
and all ports of departure and dates of sailing of the importing vessel.
The application shall be stamped and signed to show that it has been
approved.
(e) Manifesting prematurely landed or overcarried cargo. One copy of
the Cargo Declaration, Customs Form 1302, shall be certified by Customs
for use as a substitute traveling manifest for the prematurely landed or
overcarried cargo being forwarded as residue cargo, whether or not the
forwarding vessel is also carrying other residue cargo. If the
application for forwarding is made on the Cargo Declaration, the new
substitute traveling manifest shall be stamped to show the approval of
the application. If the application is on a separate document, a copy
thereof, stamped to show its approval, shall be attached to the
substitute traveling manifest. An appropriate cross-reference shall be
placed on the original traveling manifest to show that the vessel has
one or more substitute traveling manifests. A permit to proceed
endorsed on a General Declaration, Customs Form 1301, issued to the
vessel transporting the prematurely landed or overcarried cargo to its
destination shall make reference to the nature of such cargo,
identifying it with the importing vessel.
(f) Residue cargo procedure. A vessel with prematurely landed or
overcarried cargo on board shall comply upon arrival at all domestic
ports of call with all the requirements of part 4 relating to foreign
residue cargo for domestic ports. The substitute traveling manifest,
carried forward from port to port by the oncarrying vessel, shall be
finally surrendered at the port where the last portion of the
prematurely landed or overcarried cargo is discharged.
(g) Cargo undelivered at foreign port and returned to the U.S.
Merchandise shipped from a domestic port, but undelivered at the foreign
destination and returned, shall be manifested as ''Undelivered-to be
returned to original foreign destination,'' if such a return is
intended. The district director may issue a permit to retain the
merchandise on board, or he may, upon written application of the
steamship company, issue a permit on a Delivery Ticket, Customs Form
6043, allowing the merchandise to be transferred to another vessel for
return to the original foreign destination. No charge shall be made
against the bond on Customs Form 301, containing the bond conditions
relating to international carriers set forth in 113.64 of this chapter.
The items shall be remanifested outward and an explanatory reference of
the attending circumstances and compliance with export requirements
noted.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 77-255, 42 FR 56321,
Oct. 25, 1977; T.D. 85-123, 50 FR 29952, July 23, 1985)
67See 141.69(c) of this chapter for the conditions under which such
merchandise and goods removed from a port of intended entry under these
or certain other circumstances may subsequently be cleared under a
consumption entry which had been filed therefore before the merchandise
was removed from the port of intended entry.
19 CFR 4.35 Unlading outside port of entry.
(a) Upon written application from the interested party, the district
director concerned, if he considers it necessary, may permit any vessel
laden with merchandise in bulk to proceed, after entry, to any place
outside the port where the vessel entered which such district director
may designate for the purpose of unlading such cargo. 68
(b) In such case a deposit of a sum sufficient to reimburse the
Government for the compensation, travel, and subsistence expenses of the
officers detailed to supervise the unlading and delivery of the cargo
may be required by the district director.
68''It shall be unlawful * * * to unlade the cargo or any part
thereof of any vessel elsewhere than at a port of entry: Provided, * *
* That any vessel laden with merchandise in bulk may proceed after entry
of such vessel to any place designated by the Secretary of the Treasury
for the purpose of unlading such cargo, under the supervision of customs
officers if the collector shall consider the same necessary, and in such
case the compensation and expenses of such officers shall be reimbursed
to the Government by the party in interest.'' (Tariff Act of 1930, sec.
447; 19 U.S.C. 1447)
19 CFR 4.36 Delayed discharge of cargo.
(a) When pursuant to section 457, Tariff Act of 1930,69 customs
officers are placed on a vessel which has retained merchandise on board
more than 25 days after the date of the vessel's arrival, their
compensation and subsistence expenses shall be reimbursed to the
Government by the owner or master.
(b) The compensation of all Customs officers and employees assigned
to supervise the discharge of a cargo within the purview of section 458,
Tariff Act of 1930,70 after the expiration of 25 days after the date of
the vessel's entry shall be reimbursed to the Government by the owner or
master of the vessel.
(c) When a cargo within the purview of the proviso to the first
subdivision of section 431, Tariff Act of 193071 is manifested ''for
orders'' upon the arrival of the vessel, no amendment of the manifest to
show another port of discharge shall be permitted after 15 days after
the date of the vessel's arrival, except as provided for in 4.33.
(d) All reimbursements payable in accordance with this section shall
be paid or secured to the district director before clearance is granted
to the vessel.
69''Whenever any merchandise remains on board a vessel or vehicle
from a foreign port more than twenty-five days after the date on which
report of said vessel or vehicle was made, the collector may take
possession of such merchandise and cause the same to be unladen at the
expense and risk of the owners thereof, or may place one or more
inspectors or other customs officers on board of said vessel or vehicle
to protect the revenue. The compensation and expenses of any such
inspector or customs officer for subsistence while on board of such
vessel or vehicle shall be reimbursed to the Government by the owner or
master of such vessel or vehicle.'' (Tariff Act of 1930, sec. 457; 19
U.S.C. 1457)
70''The limitation of time for unlading shall not extend to vessels
laden exclusively with merchandise in bulk consigned to one consignee
and arriving at a port for orders, but if the master of such vessel
requests a longer time to discharge its cargo, the compensation of the
inspectors or other customs officers whose services are required in
connection with the unlading shall, for every day consumed in unlading
in excess of twenty-five (25) days from the date of the vessel's entry,
be reimbursed by the master or owner of such vessel.'' (Tariff Act of
1930, sec. 458; 19 U.S.C. 1458)
71''* * * the master of any vessel laden exclusively with coal,
sugar, salt, nitrates, hides, dyewoods, wool, or other merchandise in
bulk consigned to one owner and arriving at a port for orders, may
destine such cargo 'for orders,' and within 15 days thereafter, but
before the unlading of any part of the cargo such manifest may be
amended by the master by designating the port or ports of discharge of
such cargo, and in the event of failure to amend the manifest within the
time permitted such cargo must be discharged at the port at which the
vessel arrived and entered. * * *'' (Tariff Act of 1930, sec. 431; 19
U.S.C. 1431)
19 CFR 4.37 Lay order; general order.
(a) Any merchandise or baggage regularly landed but not covered by a
permit for its release shall be allowed to remain on the wharf or pier
until 5 p. m. on the fifth working day after the day the vessel was
entered. 72 At the expiration of such period, any merchandise or baggage
so remaining shall be deposited in the public stores or a general-order
warehouse, except that, at the written request of the owner, agent, or
master of the vessel, filed in duplicate on Customs Form 3189, and at
the risk of the owner of the vessel, the district director may issue a
lay order allowing such merchandise or baggage to remain on the wharf or
pier properly protected for a further period, which shall be specified
in the order. The application for an initial lay order to allow the
merchandise to remain on the wharf or pier beyond the fifth working day
may be included, if the district director approves, in the space
provided therefor in the application made on Customs Form 3171 for a
permit to lade or unlade.
(b) All merchandise or baggage unladen from a vessel for which no
permit has been received before expiration of the original 5-day period,
or extension thereof, shall be sent to the public stores or a
general-order warehouse and held as unclaimed at the risk and expense of
the consignee or owner. 73
(c) Merchandise unladen after the expiration of the 25-day period
prescribed in section 457, Tariff Act of 1930, for which no Customs
permit has been presented to the discharging inspector, shall be sent
forthwith by the district director to the public stores or a
general-order warehouse and stored at the expense and risk of the owner
of such merchandise. 73
(d) Merchandise taken into the custody of the district director
pursuant to section 490(b), Tariff Act of 1930,74 shall be sent to the
public stores or a general-order warehouse after 1 day after the day the
vessel was entered, to be held there at the risk and expense of the
owner.
(e) Any merchandise which is apt to decrease in weight after
importation shall be weighed before it is deposited in the public stores
or a general-order warehouse.
(f) Whenever, pursuant to section 457 or 490, Tariff Act of 1930, as
amended (19 U.S.C. 1457, 1490), the district director shall take
possession of a cargo which is unclaimed and not unladen, he shall
require, as a condition for granting a permit to discharge, that the
vessel be removed at the expense of the owner to the wharf, pier, or
other place most convenient to the general order stores.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 74-114, 39 FR 12091,
Apr. 3, 1974)
72''* * * After the entry, preliminary or otherwise, of any vessel or
report of the arrival of any vehicle, the collector may issue a permit
to the master of the vessel, or to the person in charge of the vehicle,
to unlade merchandise or baggage, but except as provided in subdivision
(b) of this section merchandise or baggage so unladen shall be retained
at the place of unlading until entry therefor is made and a permit for
its delivery granted, and the owners of the vessel or vehicle from which
any imported merchandise is unladen prior to entry of such merchandise
shall be liable for the payment of the duties accruing on any part
thereof that may be removed from the place of unlading without a permit
therefor having been issued. Any merchandise or baggage so unladen from
any vessel or vehicle for which entry is not made within forty-eight
hours exclusive of Sunday and holidays from the time of the entry of the
vessel or report of the vehicle, unless a longer time is granted by the
collector, as provided in section 484, shall be sent to a bonded
warehouse or the public stores and held as unclaimed at the risk and
expense of the consignee in the case of merchandise and of the owner in
the case of baggage until entry thereof is made.'' (Tariff Act of 1930,
sec. 448(a); 19 U.S.C. 1448(a)).
73''Whenever entry of any imported merchandise is not made within the
time provided by law or the regulations prescribed by the Secretary of
the Treasury, or whenever entry of such merchandise is incomplete
because of failure to pay the estimated duties, or whenever, in the
opinion of the collector, entry of such merchandise cannot be made for
want of proper documents or other cause, or whenever the collector
believes that any merchandise is not correctly and legally invoiced, he
shall take the merchandise into his custody and send it to a bonded
warehouse or public store, to be held at the risk and expense of the
consignee until entry is made or completed and the proper documents are
produced, or a bond given for their production.'' (Tariff Act of 1930,
sec. 490(a); 19 U.S.C. 1490(a))
74See footnote 63, 4.30.
19 CFR 4.38 Release of cargo.
(a) No imported merchandise shall be released from Customs custody
until a permit to release such merchandise has been granted. Such
permit shall be issued by the district director only after the
merchandise has been entered and, except as provided for in 141.102(d)
or part 142 of this chapter, the duties thereon, if any, have been
estimated and paid. Generally, the permit shall consist of a document
authorizing delivery of a particular shipment or an electronic
equivalent. Alternatively, the permit may consist of a report which
lists those shipments which have been authorized for release. This
alternative cargo release notification may be used when the manifest is
not filed by the carrier through the Automated Manifest System, the
entry has been filed through the Automated Broker Interface, and Customs
has approved the cargo for release without submission of paper documents
after reviewing the entry data submitted electronically through ABI and
its selectivity criteria (see 143.34). The report shall be posted in a
conspicuous area to which the public has access in the customhouse at
the port of entry where the cargo was imported.
(1) Where the cargo arrives by vessel, the report shall consist of
the following data elements:
(i) Vessel name or code, if transmitted by the entry filer;
(ii) Carrier code;
(iii) Voyage number, if transmitted by the entry filer;
(iv) Bill of lading number;
(v) Quantity released; and
(vi) Entry number (including filer code).
(2) Where the cargo arrives by air, the report shall consist of the
following data elements:
(i) Air waybill number;
(ii) Quantity released;
(iii) Entry number (including filer code);
(iv) Carrier code; and
(v) Flight number, if transmitted by the entry filer.
(3) In the case of merchandise traveling via in-bond movement, the
report will contain the following data elements:
(i) Immediate transportation bond number;
(ii) Carrier code;
(iii) Quantity released; and
(iv) Entry number (including filer code).
When merchandise is released without proper permit before entry has
been made, the district director shall issue a written demand for
redelivery. The carrier or facility operator shall redeliver the
merchandise to Customs within 30 days after the demand is made. The
district director may authorize unentered merchandise brought in by one
carrier for the account of another carrier to be transferred within the
port to the latter carrier's facility. Upon receipt of the merchandise
the latter carrier assumes liability for the merchandise to the same
extent as though the merchandise had arrived on its own vessel.
(b) When packages of merchandise bear marks or numbers which differ
from those appearing on the Cargo Declaration, Customs Form 1302, of the
importing vessel for the same packages and the importer or a receiving
bonded carrier, with the concurrence of the importing carrier, makes
application for their release under such marks or numbers, either for
consumption or for transportation in bond under an entry filed therefor
at the port of discharge from the importing vessel, the district
director may approve the application upon condition that (1) the
contents of the packages be identified with an invoice or transportation
entry as set forth below and (2) the applicant furnish at his own
expense any bonded cartage or lighterage service which the granting of
the application may require. The application shall be in writing in
such number of copies as may be required for local Customs purposes.
Before permitting delivery of packages under such an application, the
district director shall cause such examination thereof to be made as
will reasonably identify the contents with the invoice filed with the
consumption entry. If the merchandise is entered for transportation in
bond without the filing of an invoice, such examination shall be made as
will reasonably identify the contents of the packages with the
transportation entry.
(c) If the district director determines that, in a port or portion of
a port, the volume of cargo handled, the incidence of theft or
pilferage, or any other factor related to the protection of merchandise
in Customs custody requires such measures, he shall require as a
condition to the granting of a permit to release imported merchandise
that the importer or his agent present to the carrier or his agent a
fully executed pickup order in substantially the following format, in
triplicate, to obtain delivery of any imported merchandise:
Delivered quantities verified
Customs officer badge No.
Date
The pickup order shall contain a duly authenticated customhouse
broker's signature, unless it is presented by a person properly
identified as an employee or agent of the ultimate consignee. When
delivered quantities are verified by a Customs officer, he shall certify
all copies of the pickup order, returning one to the importer or his
agent and two to the carrier making delivery.
(d) When the provisions of paragraph (c) of this section are invoked
by the district director and verification of delivered quantities by
Customs is required, a permit to release merchandise shall be effective
as a release from Customs custody at the time that the delivery of the
merchandise covered by the pickup order into the physical possession of
a subsequent carrier or an importer or the agent of either is completed
under the supervision of a Customs officer, and only to the extent of
the actual delivery of merchandise described in such pickup order as
verified by such Customs officer.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 71-39, 36 FR 1892,
Feb. 3, 1971; T.D. 77-255, 42 FR 56321, Oct. 25, 1977; T.D. 91-46, 56
FR 22330, May 15, 1991; 56 FR 27559, June 14, 1991)
19 CFR 4.39 Stores and equipment of vessels and crews' effects;
unlading or lading and retention on board.
(a) The provisions of 4.30 relating to unlading under a permit on
Customs Form 3171 are applicable to the unlading of articles, other than
cargo or baggage, which have been laden on a vessel outside the Customs
territory of the United States, regardless of the trade in which the
vessel may be engaged at the time of unlading, except that such
provisions do not apply to such articles which have already been
entered.
(b) Any articles other than cargo or baggage landed for delivery for
consumption in the United States shall be treated in the same manner as
other imported articles. 75 A notation as to the landing of such
articles, together with the number of the entry made therefor, shall be
made on the vessel's store list, but such notation shall not subject the
articles to the requirement of being included in a post entry to the
manifest.
(c) Bags or dunnage constituting equipment of a vessel may be landed
temporarily and reladen on such vessel under Customs supervision without
entry.
(d) Articles claimed to be sea or ships' stores which are in excess
of the reasonable requirements of the vessel on which they are found
shall be treated as cargo of such vessel.
(e) Under section 446, Tariff Act of 1930, district directors may
permit narcotic drugs, except smoking opium, in reasonable quantities
and properly listed as medical stores to remain on board vessels if
satisfied that such drugs are adequately safeguarded and used only as
medical supplies.
(f) Application for permission to transfer bunkers, stores or
equipment as provided for in the proviso to section 446, Tariff Act of
1930, shall be made and the permit therefor granted on Customs Form
3171.
75See footnote 58 to 4.30(a).
19 CFR 4.40 Equipment, etc., from wrecked or dismantled vessels.
Ship's or sea stores, supplies, and equipment of a vessel wrecked
either in the waters of the United States or outside such waters, on
being recovered and brought into a United States port, and like articles
landed from a vessel dismantled in a United States port shall be subject
to the same Customs treatment as would apply if the articles were landed
from a vessel arriving in the ordinary course of trade. Parts of the
hull and fittings recovered from a vessel which arrived in the United
States in the course of navigation and was wrecked in the waters of the
United States or was dismantled in this country are free of duties and
import taxes, but if such articles are recovered from vessels outside
the waters of the United States and brought into a United States port,
they shall be treated as imported merchandise.
19 CFR 4.41 Cargo of wrecked vessel.
(a) Any cargo landed from a vessel wrecked in the waters of the
United States or on the high seas shall be subject at the port of entry
to the same entry requirements and privileges as the cargo of a vessel
regularly arriving in the foreign trade. In lieu of a Cargo
Declaration, Customs Form 1302, to cover such cargo, the owner,
underwriter (if the merchandise has been abandoned to him), or the
salvor of the merchandise shall make entry on Customs Form 7501, and any
such applicant shall be regarded as the consignee of the merchandise for
Customs purposes. 76
(b) All such merchandise shall be taken into possession by the
district director of the port in which it shall first arrive and be
retained in his custody pending entry. If it is not entered by the
person entitled to make entry, or is not disposed of pursuant to court
order, it shall be subject to sale as unclaimed merchandise.
(c) If such merchandise is from a vessel which has been sunk in
waters of the United States for 2 years or more and has been abandoned
by the owner, any person who has salvaged the cargo shall be permitted
to enter the merchandise in the district in which the vessel was wrecked
free of duty upon the facts being established to the satisfaction of the
district director at the port of entry. 77 Any other such merchandise is
subject to the same tariff classification as like merchandise regularly
imported in the ordinary course of trade.
(d) If the merchandise is libeled for salvage,78 the district
director shall notify the United States attorney of the claim of the
United States for duties, and request him to intervene for such duties.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 77-255, 42 FR 56321,
Oct. 25, 1977; T.D. 87-75, 52 FR 20066, May 29, 1987)
76''* * * The underwriters of abandoned merchandise and the salvors
of merchandise saved from a wreck at sea or on or along a coast of the
United States may be regarded as the consignees.''* * * (Tariff Act of
1930, sec. 483; 19 U.S.C. 1483)
77''Whenever any vessel laden with merchandise, in whole or in part
subject to duty, has been sunk in any river, harbor, bay, or waters
subject to the jurisdiction of the United States, and within its limits,
for the period of two years and is abandoned by the owner thereof, any
person who may raise such vessel shall be permitted to bring any
merchandise recovered therefrom into the port nearest to the place where
such vessel was so raised free from the payment of any duty thereupon,
but under such regulations as the Secretary of the Treasury may
prescribe.'' (Tariff Act of 1930, sec. 310; 19 U.S.C. 1310)
78Salvors have an uncertain interest in the goods salved, dependent
upon the decree of a competent tribunal, and have a presumptive right
without such decree to possession of merchandise salved by them from
abandoned wrecks. The salvors are entitled in either case to make entry
of derelict or wrecked goods.
19 CFR 4.41 Passengers on Vessels
19 CFR 4.50 Passenger lists.
(a) The master of every vessel arriving at a port of the United
States from foreign territory and required to make entry, except a
vessel arriving from Canada, otherwise than by sea, at a port on the
Great Lakes, or their connections or tributary waters,79 shall submit a
passenger and crew list as required by 4.7(a). If the vessel is
arriving from noncontiguous foreign territory and is carrying steerage
passengers, the additional information respecting such passengers
required by Customs and Immigration Form I-418 shall be included
therein.
(b) A passenger within the meaning of this part is any person carried
on a vessel who is not connected with the operation of such vessel, her
navigation, ownership, or business.
(28 FR 14596, Dec. 31, 1963 as amended by T.D. 71-169, 36 FR 12603,
July 2, 1971; T.D. 82-145, 47 FR 35475, Aug. 16, 1982)
79''Notwithstanding any provision of law to the contrary, no
collector of customs shall require a master or owner of a vessel
arriving, otherwise than by sea, at a port or place in the United States
on the Great Lakes, or their connecting or tributary waters, from a port
or place in the Dominion of Canada to furnish a list of passengers on
board such vessel.'' (60 Stat. 882)
80-89(Reserved)
19 CFR 4.50 Foreign Clearances
19 CFR 4.60 Vessels required to clear.
(a) Except as otherwise provided for in this section, every vessel
bound for a foreign port or ports shall be cleared90 for a definite port
or ports in the order of its itinerary, but an application to clear for
a port or place for orders, that is, for instructions to masters as to
destination of the vessel, may be accepted if the vessel is in ballast
or if any cargo on board is to be discharged in a port of the same
country as the port for which clearance is sought.
(b) The following vessels are not required to clear:
(1) A documented vessel with a pleasure license endorsement or an
undocumented American pleasure vessel (i.e., an undocumented vessel
wholly owned by a United States citizen or citizens, whether or not it
has a certificate of number issued by the State in which the vessel is
principally used under 46 U.S.C. 1466-1467 and not engaged in trade nor
violating the Customs or navigation laws of the United States and not
having visited any hovering vessel (see 19 U.S.C. 1709(d)).
(2) Any documented vessel with a Great Lakes license endorsement
which during a voyage on the Great Lakes will touch at a foreign port
only for taking on bunker fuel. 91 (see 4.82).
(3) A vessel exempted from entry by section 441, Tariff Act of 1930.
92 (See 4.5.)
(4) A vessel of less than 5 net tons which departs from the United
States to proceed to a contiguous country otherwise than by sea.
(c) Vessels which will merely transit the Panama Canal without
transacting any business there shall not be required to be cleared
because of such transit.
(d) In the event that departure is delayed beyond the second day
after clearance, the delay shall be reported within 72 hours after
clearance to the district director who shall note the fact of detention
on the certificate of clearance and on the official record of clearance.
When the proposed voyage is canceled after clearance, the reason
therefor shall be reported in writing within 24 hours after such
cancellation and the certificate of clearance and related papers shall
be surrendered.
(e) No vessel shall be cleared for the high seas except, a vessel
bound to another vessel on the high seas to --
(1) Transship export merchandise which it has transported from the
U.S. to the vessel on the high seas; or
(2) Receive import merchandise from the vessel on the high seas and
transport the merchandise to the U.S.93
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 79-276, 44 FR 61956,
Oct. 29, 1979; T.D. 83-214, 48 FR 46512, Oct. 13, 1983; T.D. 85-91,
50 FR 21429, May 24, 1985)
90''The master or person having the charge or command of any vessel
bound to a foreign port shall deliver to the collector of the district
from which such vessel is about to depart a manifest of all the cargo on
board the same, and the value thereof, by him subscribed, and shall
swear to the truth thereof: whereupon the collector shall grant a
clearance for such vessel and her cargo, but without specifying the
particulars thereof in the clearance, unless required by the master or
other person having the charge or command of such vessel so to do. If
any vessel bound to a foreign port (other than a licensed yacht or an
undocumented American pleasure vessel not engaged in any trade nor in
any way violating the customs or navigation laws of the United States)
departs from any port or place in the United States without a clearance,
or if the master delivers a false manifest, or does not answer truly the
questions demanded of him, or, having received a clearance adds to the
cargo of such vessel without having mentioned in the report outwards the
intention to do so, or if the departure of the vessel is delayed beyond
the second day after obtaining clearance without reporting the delay to
the collector, the master or other person having the charge or command
of such vessel shall be liable to a penalty of not more than $1,000 or
less than $500, or if the cargo consists in any part of narcotic drugs,
or any spirits, wines, or other alcoholic liquors (sea stores excepted),
a penalty of not more than $5,000 nor less than $1,000 for each offense,
and the vessel shall be detained in any port of the United States until
the said penalty is paid or secured: * * *'' (46 U.S.C. 91)
''Whenever, under any provision or provisions of any statute of the
United States, it is made the duty of the masters of vessels to make
entry and clearance of same, it shall be lawful for such duties to be
performed by any licensed deck officer or purser or such vessel; and
when such duties are performed by a licensed deck officer or purser of
such vessel; such acts shall have the same force and effect as if
performed by masters of such vessels: Provided, That nothing herein
contained shall relieve the master of any penalty or liability provided
by any statute relating to the entry or clearance of vessels.'' (46
U.S.C. 91a) (For clearance via domestic ports, see 4.87).
91''Enrolled or licensed vessels engaged in the foreign and coasting
trade on the northern, northeastern, and northwestern frontiers of the
United States, departing from or arriving at a port in one district to
or from a port in another district, and also touching at intermediate
foreign ports, shall not thereby become liable to the payment of entry
and clearance fees, as if from or to foreign ports; but such vessel
shall, notwithstanding, be required to enter and clear; except that
when such vessels are on such voyages on the Great Lakes and touch at
foreign ports for the purpose of taking on bunker fuel only, they may be
exempted from entering and clearing under such rules and regulations as
the Secretary of the Treasury may prescribe, notwithstanding any other
provisions of law: Provided, That this exception shall not apply to
such vessels if, while at such foreign port, they land or take on board
any passengers, or any merchandise other than bunker fuel, receive
orders, discharge any seamen by mutual consent, or engage any seamen to
replace those discharged by mutual consent, or transact any other
business save that of taking on bunker fuel.'' (19 U.S.C. 288)
92See footnote 5, 4.3.
93Collectors may permit vessels to proceed to sea to adjust
compasses, try out new machinery, clean tanks, etc., without requiring
formal clearance.
19 CFR 4.61 Requirements for clearance.
(a) Application for clearance for a vessel intending to depart for a
foreign port shall be made by filing the oath, Customs Form 1300, and a
General Declaration, Customs Form 1301, by or on behalf of the master at
the customhouse. The master, licensed deck officer, or purser may
appear in person to clear the vessel, or the required oaths, related
documents, and other papers properly executed by the master or other
proper officer may be delivered at the customhouse by the vessel agent
or other personal representative of the master. Clearance shall be
granted on Customs Form 1378.
(b) Before clearance is granted to a vessel bound to a foreign port,
the district director shall verify compliance with the requirements in
respect of the following matters which are more fully stated in the
provisions of law or of these regulations indicated in the list:
(1) Accounting for inward cargo ( 4.62).
(2) Outward Cargo Declarations; shippers export declarations (
4.63).
(3) Documentation ( 4.64).
(4) Verification of nationality and tonnage ( 4.65).
(5) Verification of inspection ( 4.66).
(6) Inspection under State laws. 94
(7) Closed ports or places ( 4.67).
(8) Crew; passengers ( 4.68).
(9) Shipping articles and enforcement of Seamen's Act ( 4.69).
(10) Medicine and slop chests. 9596
(11) Load line regulations ( 4.65a).
(12) Carriage of United States securities, etc. 97
(13) Carriage of mail. 98
(14) Pratique ( 4.70).
(15) Inspection of vessels carrying livestock ( 4.71).
(16) Inspection of meat, meat-food products, and inedible fats (
4.72).
(17) Tobacco seed and plants. 99
(18) Neutrality exportation of arms and munitions ( 4.73).
(19) Payment of State and Federal fees and fees due the Government of
the Virgin Islands of the United States. 100
(20) Orders restricting shipping ( 4.74).
(21) Estimated duties deposited or a bond given to cover duties on
foreign repairs and equipment for vessels of the United States (Sec.
4.14).
(22) Illegal discharge of oil ( 4.66a).
(23) Attached or arrested vessel. 100a
(24) Immigration laws. 100b
(c) A new vessel built in the United States for foreign account shall
be cleared under a certificate of record, Coast-Guard Form 1316, in lieu
of a marine document.
(d) Clearance shall not be granted to any foreign vessel using the
flag of the United States or any distinctive signs or markings
indicating that the vessel is an American vessel. 101
(28 FR 14696, Dec. 31, 1963, as amended by T.D. 68-217, 33 FR 12308,
Aug. 31, 1968; T.D. 69-210, 34 FR 14733, Sept. 24, 1969; T.D. 70-213,
35 FR 15637, Oct. 6, 1970; T.D. 71-169, 36 FR 12603, July 2, 1971;
T.D. 73-250, 38 FR 24354, Sept. 7, 1973; T.D. 75-133, 40 FR 24518, June
9, 1975; T.D. 77-255, 42 FR 56321, Oct. 25, 1977; T.D. 82-145, 47 FR
35475, Aug. 16, 1982)
94The collectors and other officers of the customs shall pay due
regard to the inspection laws of the States in which they may
respectively act, in such manner that no vessel having on board goods
liable to inspection shall be cleared until the master, or other proper
person, shall have produced such certificate that all such goods have
been duly inspected, as the laws of the respective States may require to
be produced to collectors or other officers of the customs.'' (46 U.S.C.
97)
95See 46 U.S.C. 666, 669, 670, and 671.
96(Reserved)
97''All vessels belonging to citizens of the United States, and bound
from any port in the United States to any other port therein, or to any
foreign port, or from any foreign port to any port in the United States
shall, before clearance, receive on board all such bullion, coin, United
States notes and bonds and other securities, as the Government of the
United States or any department thereof, or any minister, consul, vice
consul, or other agent of the United States abroad, shall offer, and
shall securely convey and promptly deliver the same to the proper
authorities or consignees, on arriving at the port of destination; and
shall receive for such service such reasonable compensation as may be
allowed to other carriers in the ordinary transactions of business.''
(46 U.S.C. 98)
98See 4.63(b), 18 U.S.C. 1724 and 39 U.S.C. 496.
99''It shall be unlawful to export any tobacco seed and/or live
tobacco plants from the United States or any Territory subject to the
jurisdiction thereof, to any foreign country, port, or place, unless
such exportation and/or transportation is in pursuance of a written
permit granted by the Secretary of Agriculture. Such permit shall be
granted by the Secretary only upon application therefor and after proof
satisfactory to him that such seed or plants are to be used for
experimental purposes only.'' (7 U.S.C. 516)
100''Previous to a clearance being granted to any vessel, outward
bound, the legal fees which shall have accrued on such vessel shall be
paid at the offices where such fees are respectively payable; and
receipts for the same shall be produced to the collector or other
officer whose duty it may be to grant clearances, before a clearance is
granted.'' (46 U.S.C. 100)
100aSee Federal Rules of Civil Procedure, Supplemental Rule
(Admiralty and Maritime) E(4)(b) (28 U.S.C. Appendix).
100bSee 8 U.S.C. 1221, 1223, 1227, 1253, 1281, 1283-1286, 1322, and
1323; 8 C.F.R. 280 (CRA 17-18-A).
101''It shall be unlawful for any vessel belonging to or operating
under the jurisdiction of any foreign state to use the flag of the
United States thereon, or to make use of any distinctive signs or
markings, indicating that the same is an American vessel.'' (22 U.S.C.
454a)
102-103(Reserved)
19 CFR 4.62 Accounting for inward cargo.
Inward cargo discrepancies shall be accounted for and adjusted by
correction of the Cargo Declaration Outward With Commercial Forms,
Customs Form 1302-A, but the vessel may be cleared and the adjustment
deferred if the discharging officer's report has not been received.
(See 4.12.)
(T.D. 77-255, 42 FR 56322, Oct. 25, 1977, as amended by T.D. 84-193,
49 FR 35485, Sept. 10, 1984)
19 CFR 4.63 Outward cargo declaration; shippers' export declarations.
(a) No vessel shall be cleared directly for a foreign port, or for a
foreign port by way of another domestic port or other domestic ports
(see 4.87(b)), unless there has been filed with the appropriate Customs
officer at the port from which clearance is being sought:
(1) A Cargo Declaration Outward With Commercial Forms, Customs Form
1302-A. Copies of bills of lading or equivalent commercial documents
relating to all cargo encompassed by the manifest must be attached in
such manner as to constitute one document, together with a properly
executed Master's Oath on Entry of Vessel in Foreign Trade, Customs Form
1300, and export declarations as are required by pertinent regulations
of the Bureau of the Census, Department of Commerce; or
(2) An incomplete Cargo Declaration as provided for in 4.75.
(b) Except as hereafter stated, the number of the export declaration
covering each shipment for which an authenticated export declaration is
required shall be shown on the Cargo Declaration Outward With Commercial
Forms, Customs Form 1302-A, in the marginal column headed ''B/L No.'' If
an export declaration is not required for a shipment, a notation shall
be made on the Cargo Declaration Outward With Commercial Forms (Customs
Form 1302-A) describing the basis for the exemption with a reference to
the number of the section in the Census Regulations (see 15 CFR 30.39,
30.50 through 30.57) where the particular exemption is provided. If
shipments are exempt on the basis of value and destination, the
appearance of the value and destination on a bill of lading or other
commercial documents is acceptable as evidence of the exemption and
reference to the applicable section in the Census Regulations is not
required.
(c) The following minimal information shall be included on the Cargo
Declaration Outward With Commercial Forms, Customs Form 1302-A (other
information required to be on a Customs Form 1302-A as shown on the form
itself must also be included thereon) or on attached copies of bills of
lading or equivalent commercial documents:
(1) Name and address of shipper;
(2) Description of the cargo (see paragraph (d) of this section);
(3) Number of packages and gross weight (see paragraph (d) of this
section);
(4) Name of vessel or carrier;
(5) Port of exit (this shall be the port where the merchandise is
loaded on the vessel); and
(6) Port of destination (this shall be the foreign port of discharge
of the merchandise).
(d) If the bills of lading or equivalent commercial documents
attached to the Customs Form 1302-A show on their face the cargo
information required by columns 6, 7, and either column 8 or 9, of the
Customs Form 1302-A, that information need not be shown again on the
Customs Form 1302-A. However, in that case, the cargo information must
be incorporated by a suitable reference on the face of the Customs Form
1302-A such as ''Cargo as per attached commercial documents.''
(e) For each shipment to be exported under an entry or withdrawal for
exportation or for transportation and exportation, the Cargo Declaration
Outward With Commercial Forms, Customs Form 1302-A, or commercial
document attached to the Cargo Declaration and made a part thereof in
accordance with paragraph (a)(1) of this section, shall clearly show for
such shipment the number, date, and class of such Customs entry or
withdrawal (i.e., T. & E., Wd. T. & E., I. E., Wd. Ex., or Wd. T., as
applicable) and the name of the port where the merchandise is laden for
exportation.
(f) Customs officers shall accept a Cargo Declaration Outward With
Commercial Forms, Customs Form 1302-A, covering containerized or
palletized cargo which indicates by the use of appropriate words of
qualification (see 4.7a(c)(3)) that the declaration has been prepared
on the basis of information furnished by the shipper.
(T.D. 84-193, 49 FR 35484, Sept. 10, 1984)
4.64 (Reserved)
19 CFR 4.65 Verification of nationality and tonnage.
The nationality and tonnage of a vessel shall be verified by
examination of its marine document. If such examination discloses that
insufficient tonnage tax was collected on entry of the vessel, no
clearance shall be granted until the deficiency is paid.
19 CFR 4.65a Load lines.
(a) If a district director of Customs is notified by an officer of
the United States Coast Guard that a detention order has been issued
against a vessel engaged in the foreign trade under the International
Voyage Load Line Act of 1973, clearance shall not be granted until the
order is withdrawn.
(b) If a district director of Customs issues a detention order under
the Coastwise Load Line Act, 1935, as amended, or is notified by an
officer of the United States Coast Guard that a detention order has been
issued against a vessel under the aforesaid Act, clearance shall not be
granted until the order is withdrawn.
(T.D. 75-133, 40 FR 24518, June 9, 1975)
19 CFR 4.66 Verification of inspection.
(a) No clearance shall be granted unless the district director is
satisfied that a proper certificate of inspection is in force and the
vessel is in compliance with such certificate, if the vessel is:
(1) A vessel of the United States required to be inspected as
specified in Title 46, Code of Federal Regulations.
(2) A foreign vessel carrying passengers from the United States.
(b) In the case of vessels of foreign nations which are signatories
of the International Convention for the Safety of Life at Sea, 1948,
carrying passengers from the United States, an unexpired Certificate of
Examination for Foreign Passenger Vessel, Form CG-989, or an unexpired
Certificate for Foreign Vessel to Carry Persons in Addition to Crew,
Form CG-3463, issued by the United States Coast Guard, may be accepted
as evidence that a proper certificate of inspection is in force and the
vessel is in compliance with such certificate.
(c) In the case of vessels of the United States subject to inspection
proceeding to another port for repairs, a valid Permit to Proceed to
Another Port for Repairs, Form CG-948, issued by the United States Coast
Guard, shall be accepted in lieu of the certificate of inspection
required by this section.
(T.D. 56173, 29 FR 6681, May 22, 1964, as amended by T.D. 69-266, 34
FR 20422, Dec. 31, 1969)
19 CFR 4.66a Illegal discharge of oil and hazardous substances.
If a district director receives a request from an officer of the U.S.
Coast Guard to withhold clearance of a vessel whose owner or operator is
subject to a civil penalty for discharging oil or a hazardous substance
into or upon the navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the contiguous zone in
quantities determined to be harmful by appropriate authorities, such
clearance shall not be granted until the district director is informed
that a bond or other surety satisfactory to the Coast Guard has been
filed.
(T.D. 82-28, 47 FR 5226, Feb. 4, 1982)
19 CFR 4.66b Pollution of coastal and navigable waters.
(a) If any Customs officer has reason to believe that any refuse
matter is being or has been deposited in navigable waters or any
tributary of any navigable waters in violation of section 13 of the Act
of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407), or oil or a hazardous
substance is being or has been discharged into or upon the navigable
waters of the United States, adjoining shorelines, or into or upon the
waters of the contiguous zone in violation of the Federal Water
Pollution Control Act, as amended (33 U.S.C. 1251, 1321), he shall
promptly furnish to the district director a full report of the incident,
together with the names of witnesses and, when practicable, a sample of
the material discharged from the vessel in question.
(b) The district director shall forward this report immediately,
without recommendation, to the district commander of the Coast Guard
district concerned and a copy of such report shall be furnished to
Headquarters, U.S. Customs Service.
(T.D. 73-18, 38 FR 1587, Jan. 16, 1973, as amended by T.D. 82-28, 47
FR 5226, Feb. 4, 1982)
19 CFR 4.66c Oil pollution by oceangoing vessels.
(a) If a district director receives a request from a Coast Guard
officer to refuse or revoke the clearance or permit to proceed of a
vessel because the vessel, its owner, operator, or person in charge, is
liable for a fine or civil penalty, or reasonable cause exists to
believe that they may be subject to a fine or civil penalty under the
provisions of 33 U.S.C. 1908 for violating the Protocol of 1978 Relating
to the International Convention for the Prevention of Pollution from
Ships, 1973 (MARPOL Protocol), the Act to Prevent Pollution from Ships,
1980 (33 U.S.C. 1901-1911), or regulations issued thereunder, such
clearance or a permit to proceed shall be refused or revoked. Clearance
or a permit to proceed may be granted when the district director is
informed that a bond or other security satisfactory to the Coast Guard
has been filed.
(b) If a district director receives a notification from a Coast Guard
officer that an order has been issued to detain a vessel required to
have an International Oil Pollution Prevention (IOPP) Certificate which
does not have a valid certificate on board, or whose condition or whose
equipment's condition does not substantially agree with the particulars
of the certificate on board, or which presents an unreasonable threat of
harm to the marine environment, the district director shall refuse or
revoke the clearance or permit to proceed of the vessel if requested to
do so by a Coast Guard officer. The district director shall not grant
clearance or issue a permit to proceed to the vessel until notified by a
Coast Guard officer that detention of the vessel is no longer required.
(c) If a district director receives a notification from a Coast Guard
officer to detain a vessel operated under the authority of a country not
a party to the MARPOL Protocol which does not have a valid certificate
on board showing that the vessel has been surveyed in accordance with
and complies with the requirements of the MARPOL Protocol, or whose
condition or whose equipment's condition does not substantially agree
with the particulars of the certificate on board, or which presents an
unreasonable threat of harm to the marine environment, the district
director shall refuse or revoke the clearance or permit to proceed of
the vessel if requested to do so by a Coast Guard officer. The district
director shall not grant clearance or issue a permit to proceed to the
vessel until notified by a Coast Guard officer that detention of the
vessel is no longer required.
(T.D. 81-148, 49 FR 28695, July 16, 1984)
19 CFR 4.67 Closed ports or places.
No foreign vessel shall be granted a clearance or permit to proceed
to any port or place from which such vessels are excluded by orders or
regulations of the United States Navy Department except with the prior
approval of that Department.
19 CFR 4.68 Crew; passengers.
(a) Clearance shall not be granted to any vessel bound on a foreign
voyage or engaged in the whale fishery until a crew list has been
delivered to the district director in duplicate on Customs and
Immigration Form I-418. The district director shall certify the
duplicate copy and return it to the master for later presentation to
Customs (see 4.9(b)).
(b) No vessel shall be granted a clearance while it has on board any
citizen of the United States except in accordance with the rules and
regulations prescribed by the Secretary of State pursuant to
Proclamation 2523 issued by the President on November 14, 1941 (3 CFR,
1943 Cum. Supp.).
(c) No vessel having berth or stateroom accommodations for 50 or more
passengers and embarking passengers at U.S. ports shall be granted a
clearance at the port or place of departure from the United States
unless it is established that the vessel has valid certificates issued
by the Federal Maritime Commission evidencing compliance with sections 2
and 3 of Pub. L. 89-777 (46 U.S.C. 817d, 817e).
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 67-214, 32 FR 13186,
Sept. 16, 1967; T.D. 83-214, 48 FR 46512, Oct. 13, 1983)
19 CFR 4.69 Shipping articles.
No vessel of the U.S. on a voyage between a U.S. port and a foreign
port (except a port in Canada, Mexico, or the West Indies), or if of at
least 75 gross tons, on a voyage between a U.S. port on the Atlantic
Ocean and a U.S. port on the Pacific Ocean, shall be granted clearance
before presentation, to the appropriate Customs officer, of the shipping
articles agreements, including any seaman's allotment agreement,
required by 46 U.S.C. chapter 103, in the form provided for in 46 CFR
14.05-1.
(T.D. 92-52, 57 FR 23945, June 5, 1992)
19 CFR 4.70 Pratique.
No clearance shall be granted to a vessel subject to the foreign
quarantine regulations of the Public Health Service unless it has been
issued a certificate of free pratique or has been remanded to another
port in the United States.
19 CFR 4.71 Inspection of livestock.
A proper export inspection certificate issued by the Veterinary
Services, Animal and Plant Health Inspection Service, Department of
Agriculture, shall be filed before the clearance of a vessel carrying
horses, mules, asses, cattle, sheep, swine, or goats (9 CFR part 91)
(T.D. 79-32, 44 FR 5650, Jan. 29, 1979)
19 CFR 4.72 Inspection of meat, meat-food products, and inedible fats.
(a) No clearance shall be granted to any vessel carrying meat or
meat-food products, as defined and classified by the U.S. Department of
Agriculture, Food Safety and Inspection Service, Meat and Poultry
Inspection until there have been filed with the district director such
copies of export certificates concerning such meat or meat-food products
as are required by the pertinent regulations of the U.S. Department of
Agriculture, Food Safety and Inspection Service, Meat and Poultry
Inspection (9 CFR part 322).
(b) No clearance shall be granted to any vessel carrying tallow,
stearin, oleo oil, or other rendered fat derived from cattle, sheep,
swine, or goats for export from the United States, which has not been
inspected, passed, and marked by the United States Department of
Agriculture, unless the district director is furnished with a
certificate by the exporter that the article is inedible.
(28 FR 14596, Dec. 31, 1963, as amended by T.D. 78-99, 43 FR 13059,
Mar. 29, 1978; T.D. 91-77, 56 FR 46114, Sept. 10, 1991)
19 CFR 4.73 Neutrality; exportation of arms and munitions.
(a) Clearance shall not be granted to any vessel if the district
director has reason to believe that her departure or intended voyage
would be in violation of any provision of the Neutrality Act of 1939 or
other neutrality law of the United States,104 or of any regulation or
instruction issued pursuant to any such law.
(b) The district director shall refuse clearance for and detain any
vessel manifestly built for warlike purposes and about to depart from
the United States with a cargo consisting principally of arms and
munitions of war105 when the number of men intending to sail or other
circumstances render it probable that the vessel is intended to commit
hostilities against the subjects, citizens, or property or any foreign
country, with which the United States is at peace, until the decision of
the President thereon is received, or until the owners shall have given
bond or security in double the value of the vessel and its cargo that
she will not be so employed.
(c) A district director shall promptly communicate all the facts to
Headquarters, U.S. Customs Service, if he learns while the United States
is at peace that any vessel of a belligerent power which has arrived as
a merchant vessel is altering, or will attempt to alter, her status as a
merchant vessel so as to become an armed vessel or an auxiliary to armed
vessels of a foreign power.
(d) If a district director has reason to believe during the existence
of a war to which the United States is not a party that any vessel in
his district is about to carry arms, munitions, supplies, dispatches,
information, or men to any warship or tender or supply ship of a
belligerent nation, he shall withhold the clearance of such vessel and
report the facts promptly to Headquarters, U.S. Customs Service.
104See 18 U.S.C. 961 through 967 and 22 U.S.C. 441 through 457.
105Clearance for vessel shall not be denied for the sole reason that
her cargo contains contraband of war.
106-110(Reserved)
19 CFR 4.74 Transportation orders.
Clearance shall not be granted to any vessel if the district director
has reason to believe that her departure or intended voyage would be in
violation of any provision of any transportation order, regulation, or
restriction issued under authority of the Defense Production Act of 1950
(50 U.S.C. App. 2061-2066).
19 CFR 4.75 Incomplete manifest; incomplete export declarations;
bond.
(a) Pro forma manifest. Except as provided for in 4.75(c), if a
master desiring to clear his vessel for a foreign port does not have
available for filing with the district director a complete Cargo
Declaration Outward with Commercial Forms, Customs Form 1302-A (see
4.63) in accordance with 46 U.S.C. 91, or all required shipper's export
declarations (see 15 CFR 30.24), the district director may accept in
lieu thereof an incomplete manifest (referred to as a pro forma
manifest) on the General Declaration, Customs Form 1301, if there is on
file in his office a bond on Customs Form 301, containing the bond
conditions set forth in 113.64 of this chapter relating to
international carriers, executed by the vessel owner or other person as
attorney in fact of the vessel owner. The legend, ''This incomplete
Cargo Declaration is filed in accordance with 4.75, Customs
Regulations,'' shall be inserted in item 16 of the General Declaration.
The form shall be appropriately modified to indicate that it is an
incomplete Cargo Declaration, and the Master's Oath on Entry of Vessel
in Foreign Trade, Customs Form 1300 (see 4.63(a)), shall be executed.
(b) Time in which to file complete manifest and export declarations.
Not later than the fourth business day after clearance from each port in
the vessel's itinerary, the master, or the vessel's agent on behalf of
the master, shall deliver to the district director at each port a
complete Cargo Declaration Outward with Commercial Forms, Customs Form
1302-A, in accordance with 4.63, of the cargo laden at such port
together with duplicate copies of all required shipper's export
declarations for such cargo and a General Declaration on Customs Form
1301. The oath of the master or agent on the Master's Oath on Entry of
Vessel in Foreign Trade, Customs Form 1300 (see 4.63(a)), shall be
properly executed before acceptance. The statutory grace period of 4
days for filing the complete manifest and missing export declarations
begins to run on the first day (exclusive of any day on which the
customhouse is not open for marine business) following the date on which
clearance is granted.
(c) Countries for which vessels may not be cleared until complete
manifests and shipper's export declarations are filed. To aid the
Customs Service in the enforcement of export laws and regulations, no
vessel shall be cleared for any port in the following countries until a
complete outward foreign manifest and all required shipper's export
declarations have been filed with the district director:
Albania
Bulgaria
Cambodia
China, People's Republic of
Cuba
Czechoslovakia
Estonia
German Democratic Republic (Soviet Zone of Germany and Soviet Zone
sector of Berlin)
Hungary
Iran
Iraq
Laos
Latvia
Libya
Lithuania
Mongolian People's Republic
North Korea
Polish People's Republic (Including Danzig)
Rumania
South Yemen
Union of Soviet Socialist Republics
Viet Nam
(T.D. 87-1, 52 FR 255, Jan. 5, 1987, as amended by T.D. 91-60, 56 FR
32085, July 15, 1991)
19 CFR 4.75 Coastwise Procedure
19 CFR 4.80 Vessels entitled to engage in coastwise trade.
(a) No vessel shall transport, either directly or by way of a foreign
port, any passenger or merchandise between points in the United States
embraced within the coastwise laws, including points within a harbor, or
merchandise for any part of the transportation between such points,
unless it is:
(1) Owned by a citizen and is so documented under the laws of the
United States as to permit it to engage in the coastwise trade;
(2) Owned by a citizen, is exempt from documentation, and is entitled
to or, except for its tonnage, would be entitled to be documented with a
coastwise license or, where appropriate, a Great Lakes license
endorsement.
(3) Owned by a partnership or association in which at least a 75
percent interest is owned by such a citizen, is exempt from
documentation and is entitled to or, except for its tonnage, or
citizenship of its owner, or both, would be entitled to be documented
for the coastwise trade. The term ''citizen'' for vessel documentation
purposes, whether for an individual, partnership, or corporation owner,
is defined in 46 CFR subpart 67.03.
(b) Penalties for violating coastwise laws. (1) The penalty imposed
for the illegal transportation of merchandise between coastwise points
is forfeiture of the merchandise or, in the discretion of the district
director, forfeiture of a monetary amount up to the value of the
merchandise to be recovered from the consignor, seller, owner, importer,
consignee, agent, or other person or persons so transporting or causing
the merchandise to be transported (46 U.S.C. 883).
(2) The penalty imposed for the unlawful transportation of passengers
between coastwise points is $200 for each passenger so transported and
landed (46 U.S.C. 289).
(c) Any vessel of the United States, whether or not entitled under
paragraph (a) of this section to engage in the coastwise trade, and any
foreign vessel may proceed between points in the United States embraced
within the coastwise laws to discharge cargo or passengers laden at a
foreign port, to lade cargo or passengers for a foreign port, in
ballast, or to transport certain articles in accordance with 4.93.
Cargo laden at a foreign port may be retained onboard during such
movements. Furthermore, certain barges of United States or foreign flag
may transport transferred merchandise between points in the United
States embraced within the coastwise laws, excluding transportation
between the continental United States and a noncontiguous point in the
United States embraced within the coastwise laws, in accordance with
4.81a.
(d) No vessel owned by a corporation which is a citizen of the United
States under the Act of September 2, 1958 (46 U.S.C. 883-1) shall be
used in any trade other than the coastwise trade and shall not be used
in that trade unless it is properly documented for such use or is exempt
from documentation and is entitled to or, except for its tonnage, would
be entitled to a coastwise license, or where appropriate, a Great Lakes
license endorsement. Such a vessel shall not be documented for nor
engage in the foreign trade or the fisheries and shall not transport
merchandise or passengers coastwise for hire except as a service for a
parent or a subsidiary corporation as defined in the aforesaid Act or
while under demise or bareboat charter at prevailing rates for use
otherwise than in trade with noncontiguous territory of the United
States to a common or contract carrier subject to Part III of the
Interstate Commerce Act, as amended (49 U.S.C. 901 through 923), which
otherwise qualifies as a citizen of the United States under section 2 of
the Shipping Act, 1916, as amended (46 U.S.C. 802), and which is not
connected, directly or indirectly, by way of ownership or control with
such owning corporation.
(e) No vessel which has acquired the lawful right to engage in the
coastwise trade, by virtue of having been built in or documented under
the laws of the United States, shall have the right to engage in such
trade if it thereafter has been sold or transferred foreign in whole or
in part or placed under foreign registry, or, if of more than 500 gross
tons, has been rebuilt unless the entire rebuilding, including the
construction of any major components of the hull or superstructure of
the vessel, was effected within the United States, its Territories (not
including trust territories), or its possessions. However, no rebuilt
vessel shall be deemed to have lost its coastwise privileges within the
meaning of the above if rebuilt within the United States, its
Territories (not including trust territories), or its possessions under
a contract executed before July 5, 1960, if the work of rebuilding
commenced not later than 24 months after such date.
(f) No foreign-built vessel owned and documented as a vessel of the
United States prior to February 1, 1920, by a citizen nor one owned by
the United States on June 5, 1920, and sold to and owned by a citizen,
shall engage in the American fisheries, but it is otherwise unlimited as
to trade so long as it continues in such ownership (section 22, Merchant
Marine Act, of June 5, 1920; 46 U.S.C. 13). No foreign-built vessel
which is owned by a citizen, but which was not so owned and documented
on February 1, 1920, or which was not owned by the United States on June
5, 1920, shall engage in the coastwise trade or the American fisheries.
No foreign-built vessel which has been sold, leased, or chartered by the
Secretary of Commerce to any citizen, shall engage in the American
fisheries, but it is otherwise unlimited as to trade so long as it
continues in such ownership, lease, or charter (section 9 of the Act of
Sept. 7, 1916, as amended, 46 U.S.C. 808). A vessel engaged in taking
out fishing parties for hire, unless it intends to proceed to a foreign
port, is considered to be engaged in the coastwise trade and not the
fisheries.
(g) Certain vessels not documented under the laws of the United
States which are acquired by or made available to the Secretary of
Commerce may be documented under section 3 of the Act of August 9, 1954
(50 U.S.C. 198). Such vessels shall not engage in the coastwise trade
unless in possession of a valid unexpired permit to engage in that trade
issued by the Secretary of Commerce under authority of section 3(c) of
the said Act.
(h) Any vessel, entitled to be documented and not so documented,
employed in a trade for which a Certificate of Documentation is issued
under the vessel documentation laws (see 4.0(c)), other than a trade
covered by a registry, is liable to a civil penalty of $500 for each
port at which it arrives without the proper Certificate of
Documentation. If such a vessel has on board any foreign merchandise
(sea stores excepted), or any domestic taxable alcoholic beverages, on
which the duty and taxes have not been paid or secured to be paid, the
vessel and its cargo are subject to seizure and forfeiture.
(T.D. 69-266, 34 FR 20422, Dec. 31, 1969, as amended by T.D. 79-160,
44 FR 31956, June 4, 1979; T.D. 83-214, 48 FR 46512, Oct. 13, 1983)