18 Cfr 4.33

§ 4.33

18 CFR Ch. I (4–1–13 Edition)

documents that the Commission or its
designee considers relevant for an informed decision on the application.
The information or documents must
take the form, and must be submitted
within the time, that the Commission
or its designee prescribes. An applicant
may also be required to provide within
a specified time additional copies of
the complete application, or any of the
additional information or documents
that are filed, to the Commission or to
any person, agency, or other entity
that the Commission or its designee
specifies. If an applicant fails to provide timely additional information,
documents, or copies of submitted materials as required, the Commission or
its designee may dismiss the application, hold it in abeyance, or take other
appropriate action under this chapter
or the Federal Power Act.
(h) A prospective applicant, prior to
submitting its application for filing,
may seek advice from the Commission
staff regarding the sufficiency of the
application. For this purpose, five copies of the draft application should be
submitted to the Director of the Division of Hydropower Licensing. An applicant or prospective applicant may
confer with the Commission staff at
any time regarding deficiencies or
other matters related to its application. All conferences are subject to the
requirements of § 385.2201 of this chapter governing ex parte communications. The opinions or advice of the
staff will not bind the Commission or
any person delegated authority to act
on its behalf.
(i) Intervention in any preliminary
permit proceeding will not constitute
intervention in any subsequent licensing or exemption proceeding.
(j) Any application, the effectiveness
of which is conditioned upon the future
occurrence of any event or circumstance, will be rejected.
(k) Critical Energy Infrastructure Information. (1) If this section requires an
applicant to reveal Critical Energy Infrastructure Information (CEII), as defined in § 388.113(c) of this chapter, to
any person, the applicant shall omit
the CEII from the information made
available and insert the following in its
place:

(i) A statement that CEII is being
withheld;
(ii) A brief description of the omitted
information that does not reveal any
CEII; and
(iii) This statement: ‘‘Procedures for
obtaining access to Critical Energy Infrastructure Information (CEII) may be
found at 18 CFR 388.113. Requests for
access to CEII should be made to the
Commission’s CEII Coordinator.’’
(2) The applicant, in determining
whether information constitutes CEII,
shall treat the information in a manner consistent with any filings that applicant has made with the Commission
and shall to the extent practicable adhere to any previous determinations by
the Commission or the CEII Coordinator involving the same or like information.
(3) The procedures contained in
§§ 388.112 and 388.113 of this chapter regarding designation of, and access to,
CEII, shall apply in the event of a challenge to a CEII designation or a request for access to CEII. If it is determined that information is not CEII or
that a requester should be granted access to CEII, the applicant will be directed to make the information available to the requester.
(4) Nothing in this section shall be
construed to prohibit any persons from
voluntarily reaching arrangements or
agreements calling for the disclosure of
CEII.
[Order 413, 50 FR 11678, Mar. 25, 1985]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 4.32, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.

§ 4.33 Limitations on submitting applications.
(a) Limitations on submission and acceptance of a preliminary permit application. The Commission will not accept
an application for a preliminary permit
for project works that:
(1) Would develop, conserve, and utilize, in whole or in part, the same
water resources that would be developed, conserved, and utilized by a
project for which there is an unexpired
preliminary permit.

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Federal Energy Regulatory Commission
(2) Would interfere with a licensed
project in a manner that, absent the licensee’s consent, would be precluded by
Section 6 of the Federal Power Act.
(3) Would develop, conserve, and utilize, in whole or in part, the same
water resources that would be developed, conserved, and utilized by a
project for which an initial development application has been filed unless
the preliminary permit application is
filed not later than the time allowed
under § 4.36(a) for the filing of applications in competition against an initial
application for a preliminary permit
that would develop, conserve, and utilize, in whole or in part, the same resources.
(b) Limitations on submissions and acceptance of a license application. The
Commission will not accept an application for a license or project works that
would develop, conserve, or utilize, in
whole or part, the same water resources that would be developed, conserved, and utilized by a project for
which there is:
(1) An unexpired preliminary permit,
unless the permittee has submitted an
application for license; or
(2) An unexpired license, except as
provided for in Section 15 of the Federal Power Act.
(c) Limitations on submission and acceptance of an application for a license
that would affect an exempted project. (1)
Except as permitted under § 4.33(c)(2),
§ 4.94(d), or § 4.106 (c), (e) or (f), the
Commission will not accept an application for a license for project works that
are already exempted from licensing
under this part.
(2) If a project is exempted from licensing pursuant to § 4.103 or § 4.109 and
real property interests in any non-Federal lands would be necessary to develop or operate the project, any person who is both a qualified license applicant and has any of those real property interests in non-Federal lands
may submit a license application for
that project. If a license application is
submitted under this clause, any other
qualified license applicant may submit
a competing license application in accordance with § 4.36.
(d) Limitations on submission and acceptance of exemption applications—(1)
Unexpired permit or license. (i) If there is

§ 4.33
an unexpired permit in effect for a
project, the Commission will accept an
application for exemption of that
project from licensing only if the exemption applicant is the permittee.
Upon acceptance for filing of the permittee’s application, the permit will be
considered to have expired.
(ii) If there is an unexpired license in
effect for a project, the Commission
will accept an application for exemption of that project from licensing only
if the exemption applicant is the licensee.
(2) Pending license applications. If an
accepted license application for a
project was submitted by a permittee
before the preliminary permit expired,
the Commission will not accept an application for exemption of that project
from licensing submitted by a person
other than the former permittee.
(3) Submitted by qualified exemption applicant. If the first accepted license application for a project was filed by a
qualified exemption applicant, the applicant may request that its license application be treated initially as an application for exemption from licensing
by so notifying the Commission in
writing and, unless only rights to use
or occupy Federal lands would be necessary to develop and operate the
project, by submitting documentary
evidence showing that the applicant
holds the real property interests required under § 4.31. Such notice and
documentation must be submitted not
later than the last date for filing protests or motions to intervene prescribed in the public notice issued for
its license application under § 4.32(d)(2).
(e) Priority of exemption applicant’s
earlier permit or license application. Any
accepted preliminary permit or license
application submitted by a person who
later applies for exemption of the
project from licensing will retain its
validity and priority under this subpart until the preliminary permit or license application is withdrawn or the
project is exempted from licensing.
[Order 413, 50 FR 11680, Mar. 25, 1985, as
amended by Order 499, 53 FR 27002, July 18,
1988; Order 2002, 68 FR 51116, Aug. 25, 2003;
Order 699, 72 FR 45324, Aug. 14, 2007]

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