[Code of Federal Regulations] [Title 18, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [CITE: 18CFR4.32] [Page 76-81] TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY PART 4_LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT COSTS--Table of Contents Subpart D_Application for Preliminary Permit, License or Exemption: General Provisions Sec. 4.32 Acceptance for filing or rejection; information to be made available to the public; requests for additional studies. (a) Each application must: (1) For a preliminary permit or license, identify every person, citizen, association of citizens, domestic corporation, municipality, or state that has or intends to obtain and will maintain any proprietary right necessary to construct, operate, or maintain the project; (2) For a preliminary permit or a license, identify (providing names and mailing addresses): (i) Every county in which any part of the project, and any Federal facilities that would be used by the project, would be located; (ii) Every city, town, or similar local political subdivision: (A) In which any part of the project, and any Federal facilities that would be used by the project, would be located; or (B) That has a population of 5,000 or more people and is located within 15 miles of the project dam; (iii) Every irrigation district, drainage district, or similar special purpose political subdivision: (A) In which any part of the project, and any Federal facilities that would be used by the project, would be located; or (B) That owns, operates, maintains, or uses any project facilities or any Federal facilities that would be used by the project; (iv) Every other political subdivision in the general area of the project that there is reason to believe would likely be interested in, or affected by, the application; and (v) All Indian tribes that may be affected by the project. (3)(i) For a license (other than a license under section 15 of the Federal Power Act) state that the applicant has made, either at the time of or before filing the application, a good faith effort to give notification by certified mail of the filing of the application to: (A) Every property owner of record of any interest in the property within the bounds of the project, or in the case of the project without a specific boundary, each such owner of property which would underlie or be adjacent to any project works including any impoundments; and (B) The entities identified in paragraph (a)(2) of this section, as well as any other Federal, state, municipal or other local government agencies that there is reason to believe would likely [[Page 77]] be interested in or affected by such application. (ii) Such notification must contain the name, business address, and telephone number of the applicant and a copy of the Exhibit G contained in the application, and must state that a license application is being filed with the Commission. (4)(i) As to any facts alleged in the application or other materials filed, be subscribed and verified under oath in the form set forth in paragraph (a) (3)(ii) of this section by the person filing, an officer thereof, or other person having knowledge of the matters sent forth. If the subscription and verification is by anyone other than the person filing or an officer thereof, it shall include a statement of the reasons therefor. (ii) This (application, etc.) is executed in the State of________________________________________________________________ County of_______________________________________________________________ by:------------ -------- (Name)---------- ----------_____________________________________________ (Address)_______________________________________________________________ being duly sworn, depose(s) and say(s) that the contents of this (application, etc.) are true to the best of (his or her) knowledge or belief. The undersigned applicant(s) has (have) signed the (application, etc.) this -------- ------------ day of --------, 19-- --. ________________________________________________________________________ (Applicant(s)) By:_____________________________________________________________________ Subscribed and sworn to before me, a [Notary Public, or title of other official authorized by the state to notarize documents, as appropriate] of the State of ------------this day of ----------, 19----. /SEAL/ [if any] ________________________________________________________________________ (Notary Public, or other authorized official) (5) Contain the information and documents prescribed in the following sections of this chapter, according to the type of application: (i) Preliminary permit: Sec. 4.81; (ii) License for a minor water power project and a major water power project 5 MW or less: Sec. 4.61; (iii) License for a major unconstructed project and a major modified project: Sec. 4.41; (iv) License for a major project--existing dam: Sec. 4.51; (v) License for a transmission line only: Sec. 4.71; (vi) Nonpower license for a licensed project: Sec. 16.11; (vii) Exemption of a small conduit hydroelectric facility: Sec. 4.92; (viii) Case-specific exemption of a small hydroelectric power project: Sec. 4.107; or (ix) License or exemption for a project located at a new dam or diversion where the applicant seeks PURPA benefits: Sec. 292.208. (b) (1) Each applicant for a preliminary permit, license, and transfer or surrender of license and each petitioner for surrender of an exemption must submit to the Commission's Secretary for filing an original and eight copies of the application or petition. The applicant or petitioner must serve one copy of the application or petition on the Director of the Commission's Regional Office for the appropriate region and on each resource agency, Indian tribe, and member of the public consulted pursuant to Sec. 4.38 or Sec. 16.8 of this chapter or part 5 of this chapter. In the case of an application for a preliminary permit, the applicant must, if the Commission so directs, serve copies of the application on the U.S. Department of the Interior and the U.S. Army Corps of Engineers. The application may include reduced prints of maps and drawings conforming to Sec. 4.39(d). The originals (microfilm) of maps and drawings are not to be filed initially, but will be required pursuant to paragraph (d) of this section. The Commission may also ask for the filing of full-sized prints in appropriate cases. (2) Each applicant for exemption must submit to the Commission's Secretary for filing an original and eight copies of the application. An applicant must serve one copy of the application on the Director of the Commission's Regional Office for the appropriate region and on each resource agency consulted pursuant to Sec. 4.38. For each application filed following October 23, 2003, maps and drawings must conform to the requirements of Sec. 4.39. The originals (microfilm) of maps and drawing are not to be filed initially, but will be [[Page 78]] requested pursuant to paragraph (d) of this section. (3)(i) An applicant must make information regarding its proposed project reasonably available to the public for inspection and reproduction, from the date on which the applicant files its application for a license or exemption until the licensing or exemption proceeding for the project is terminated by the Commission. This information includes a copy of the complete application for license or exemption, together with all exhibits, appendices and any amendments, and any comments, pleadings, supplementary or additional information, or correspondence filed by the applicant with the Commission in connection with the application. (ii) An applicant must delete from any information made available to the public under this section, specific site or property locations the disclosure of which would create a risk of harm, theft, or destruction of archeological or Native American cultural resources or to the site at which the sources are located, or would violate any federal law, including the Archaeological Resources Protection Act of l979, 16 U.S.C. 470w-3, and the National Historic Preservation Act of 1966, 16 U.S.C. 470hh. (4)(i) An applicant must make available the information specified in paragraph (b)(3) of this section in a form that is readily accessible, reviewable, and reproducible, at the same time as the information is filed with the Commission or required by regulation to be made available. (ii) An applicant must make the information specified in paragraph (b)(3) of this section available to the public for inspection: (A) At its principal place of business or at any other location that is more accessible to the public, provided that all the information is available in at least one location; (B) During regular business hours; and (C) In a form that is readily accessible, reviewable and reproducible. (iii) The applicant must provide a copy of the complete application (as amended) to a public library or other convenient public office located in each county in which the proposed project is located. (iv) An applicant must make requested copies of the information specified in paragraph (b)(3) of this section available either: (A) At its principal place of business or at any other location that is more accessible to the public, after obtaining reimbursement for reasonable costs of reproduction; or (B) Through the mail, after obtaining reimbursement for postage fees and reasonable costs of reproduction. (5) Anyone may file a petition with the Commission requesting access to the information specified in paragraph (b)(3) of this section if it believes that an applicant is not making the information reasonably available for public inspection or reproduction. The petition must describe in detail the basis for the petitioner's belief. (6) An applicant must publish notice twice of the filing of its application, no later than 14 days after the filing date, in a daily or weekly newspaper of general circulation in each county in which the project is located. The notice must disclose the filing date of the application and briefly summarize it, including the applicant's name and address, the type of facility applied for, its proposed location, the places where the information specified in paragraph (b)(3) of this section is available for inspection and reproduction, and the date by which any requests for additional scientific studies are due under paragraph (b)(7) of this section, and must state that the Commission will publish subsequent notices soliciting public participation if the application is found acceptable for filing. The applicant must promptly provide the Commission with proof of the publications of this notice. (7) If any resource agency, Indian tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merits, the resource agency, Indian tribe, or person must file a request for the study with the Commission not later than 60 days after the application is filed and serve a copy of the request on the applicant. [[Page 79]] The Commission will issue public notice of the tendering for filing of each application for hydropower license or exemption; each such applicant must submit a draft of this notice to the Commission with its application. For any such additional study request, the requester must describe the recommended study and the basis for the request in detail, including who should conduct and participate in the study, its methodology and objectives, whether the recommended study methods are generally accepted in the Scientific community, how the study and information sought will be useful in furthering the resource goals that are affected by the proposed facilities, and approximately how long the study will take to complete, and must explain why the study objectives cannot be achieved using the data already available. In addition, in the case of a study request by a resource agency or Indian tribe that had failed to request the study during the pre-filing consultation process under Sec. 4.38 of this part or Sec. 16.8 of this chapter, the agency or Indian tribe must explain why this request was not made during the pre-filing consultation process and show good cause why its request for the study should be considered by the Commission. (8) An applicant may file a response to any such study request within 30 days of its filing, serving a copy of the response on the requester. (9) The requirements of paragraphs (b)(3) to (b)(8) of this section only apply to an application for license or exemption filed on or after May 20, 1991. Paragraphs (b)(3) and (b)(4) of this section do not apply to applications subject to the requirements of Sec. 16.7 of this chapter. (c)(1) Every application for a licensee or exemption for a project with a capacity of 80 megawatts or less must include in its application copies of the statements made under Sec. 4.38(b)(1)(vi). (2) If an applicant reverses a statement of intent not to seek PURPA benefits: (i) Prior to the Commission issuing a license or exemption, the reversal of intent will be treated as an amendment of the application under Sec. 4.35 and the applicant must: (A) Repeat the pre-filing consultation process under Sec. 4.38; and (B) Satisfy all the requirements in Sec. 292.208 of this chapter; or (ii) After the Commission issues a license or exemption for the project, the applicant is prohibited from obtaining PURPA benefits. (d) When any application is found to conform to the requirements of paragraphs (a), (b) and (c) of this section, the Commission or its delegate will: (1) Notify the applicant that the application has been accepted for filing, specifying the project number assigned and the date upon which the application was accepted for filing, and, for a license or exemption application, direct the filing of the originals (microfilm) of required maps and drawings; (2)(i) For an application for a preliminary permit or a license, issue public notice of the application as required in the Federal Power Act; (ii) For an application for exemption from licensing, publish notice once in a daily or weekly newspaper of general circulation in each county in which the project is or will be located; and (3) If the project affects lands of the United States, notify the appropriate Federal office of the application and the specific lands affected, pursuant to section 24 of the Federal Power Act. (4) For an application for a license seeking benefits under section 210 of the Public Utility Regulatory Policies Act of 1978, as amended, for a project that would be located at a new dam or diversion, serve the public notice issued for the application under paragraph (d)(2)(i) of this section to interested agencies at the time the applicant is notified that the application is accepted for filing. (e) In order for an application to conform adequately to the requirements of paragraphs (a), (b) and (c) of this section and of Sec. 4.38, an application must be completed fully. No blanks should be left in the application. No material or information required in the application should be omitted. If an applicant believes that its application conforms adequately without containing certain required material or information, it must explain in detail why the material or information is not being submitted and what steps were taken by [[Page 80]] the applicant to provide the material or information. If the Commission finds that an application does not adequately conform to the requirements of paragraphs (a), (b) and (c) of this section and of Sec. 4.38, the Commission or its designee will consider the application either deficient or patently deficient. (1) Deficient applications. (i) An application that in the judgment of the Director of the Office of Energy Projects does not conform to the requirements of paragraphs (a), (b) and (c) of this section and of Sec. 4.38, may be considered deficient. An applicant having a deficient application will be afforded additional time to correct deficiencies, not to exceed 45 days from the date of notification in the case of an application for a preliminary permit or exemption from licensing or 90 days from the date of notification in the case of an application for license. Notification will be by letter or, in the case of minor deficiencies, by telephone. Any notification will specify the deficiencies to be corrected. Deficiencies must be corrected by submitting an original and the number of copies specified in paragraph (b) of this section of the specified materials or information to the Secretary within the time specified in the notification of deficiency. (ii) Upon submission of a conforming application, action will be taken in accordance with paragraph (d) of this section. (iii) If the revised application is found not to conform to the requirements of paragraphs (a), (b) and (c) of this section and of Sec. 4.38, or if the revisions are not timely submitted, the revised application will be rejected. Procedures for rejected applications are specified in paragraph (e)(2)(iii). (2) Patently deficient applications. (i) If, within 90 days of its filing date, the Director of the Office of Energy Projects determines that an application patently fails to substantially comply with the requirements of paragraph (a), (b), and (c) of this section and of Sec. 4.38 of this part or Sec. 16.8 of this chapter, or is for a project that is precluded by law, the application will be rejected as patently deficient with the specification of the deficiencies that render the application patently deficient. (ii) If, after 90 days of its filing date, the Director of the Office of Energy Projects determines that an application patently fails to substantially comply with the requirements of paragraphs (a), (b), and (c) of this section and of Sec. 4.38 of this part or Sec. 16.8 of this chapter, or is for a project that is precluded by law: (A) The application will be rejected by order of the Commission, if the Commission determines it is patently deficient; or (B) The application will be considered deficient under paragraph (e)(1) of this section, if the Commission determines it is not patently deficient. (iii) Any application that is rejected may be resubmitted if the deficiencies are corrected and if, in the case of a competing application, the resubmittal is timely. The date the rejected application is resubmitted will be considered the new filing date for purposes of determining its timeliness under Sec. 4.36 and the disposition of competing applications under Sec. 4.37. (f) Any application will be considered accepted for filing as of the application filing date if the Secretary receives all of the information and documents necessary to conform to the requirements of paragraphs (a), (b) and (c) of this section and of Sec. 4.38 within the time prescribed by the Commission or its delegate under paragraph (e) of this section. (g) An applicant may be required to submit any additional information or documents that the Commission or its designee considers relevant for an informed decision on the application. The information or documents must take the form, and must be submitted within the time, that the Commission or its designee prescribes. An applicant may also be required to provide within a specified time additional copies of the complete application, or any of the additional information or documents that are filed, to the Commission or to any person, agency, or other entity that the Commission or its designee specifies. If an applicant fails to provide timely additional information, documents, or copies of submitted materials as required, the Commission or its designee may dismiss the application, hold it in abeyance, or take other [[Page 81]] appropriate action under this chapter or the Federal Power Act. (h) A prospective applicant, prior to submitting its application for filing, may seek advice from the Commission staff regarding the sufficiency of the application. For this purpose, five copies of the draft application should be submitted to the Director of the Division of Hydropower, Environment and Engineering. An applicant or prospective applicant may confer with the Commission staff at any time regarding deficiencies or other matters related to its application. All conferences are subject to the requirements of Sec. 385.2201 of this chapter governing ex parte communications. The opinions or advice of the staff will not bind the Commission or any person delegated authority to act on its behalf. (i) Intervention in any preliminary permit proceeding will not constitute intervention in any subsequent licensing or exemption proceeding. (j) Any application, the effectiveness of which is conditioned upon the future occurrence of any event or circumstance, will be rejected. (k) Critical Energy Infrastructure Information. (1) If this section requires an applicant to reveal Critical Energy Infrastructure Information (CEII), as defined in Sec. 388.113(c) of this chapter, to any person, the applicant shall omit the CEII from the information made available and insert the following in its place: (i) A statement that CEII is being withheld; (ii) A brief description of the omitted information that does not reveal any CEII; and (iii) This statement: ``Procedures for obtaining access to Critical Energy Infrastructure Information (CEII) may be found at 18 CFR 388.113. Requests for access to CEII should be made to the Commission's CEII Coordinator.'' (2) The applicant, in determining whether information constitutes CEII, shall treat the information in a manner consistent with any filings that applicant has made with the Commission and shall to the extent practicable adhere to any previous determinations by the Commission or the CEII Coordinator involving the same or like information. (3) The procedures contained in Sec. Sec. 388.112 and 388.113 of this chapter regarding designation of, and access to, CEII, shall apply in the event of a challenge to a CEII designation or a request for access to CEII. If it is determined that information is not CEII or that a requester should be granted access to CEII, the applicant will be directed to make the information available to the requester. (4) Nothing in this section shall be construed to prohibit any persons from voluntarily reaching arrangements or agreements calling for the disclosure of CEII. [Order 413, 50 FR 11678, Mar. 25, 1985, as amended by Order 480, 52 FR 37285, Oct. 6, 1987; Order 487, 52 FR 48404, Dec. 22, 1987; Order 499, 53 FR 27001, July 18, 1988; Order 533, 56 FR 23147, May 20, 1991; 56 FR 61155, Dec. 2, 1991; Order 540, 57 FR 21737, May 22, 1992; Order 2002, 68 FR 51115, Aug. 25, 2003; Order 643, 68 FR 52094, Sept. 2, 2003; 68 FR 61742, Oct. 30, 2003]