18 CFR Part 16

Federal Energy Regulatory Commission

PART 16—PROCEDURES RELATING
TO TAKEOVER AND RELICENSING
OF LICENSED PROJECTS
Subpart A—General Provisions
Sec.
16.1 Applicability.
16.2 Definitions.
16.3 Public notice of projects under expiring
licenses.
16.4 Acceleration of a license expiration
date.
16.5 Site access for a competing applicant.

Subpart B—Applications for Projects Subject to Sections 14 and 15 of the Federal Power Act
16.6

Notification procedures under section
15 of the Federal Power Act.
16.7 Information to be made available to the
public at the time of notification of intent under section 15(b) of the Federal
Power Act.
16.8 Consultation requirements.
16.9 Applications for new licenses and
nonpower licenses for projects subject to
sections 14 and 15 of the Federal Power
Act.
16.10 Information to be provided by an applicant for new license: Filing requirements.
16.11 Nonpower licenses.
16.12 Application for exemption from licensing by a licensee whose license is subject
to sections 14 and 15 of the Federal Power
Act.
16.13 Standards and factors for issuing a
new license.

Subpart C—Takeover Provisions for Projects
Subject to Sections 14 and 15 of the
Federal Power Act

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16.14 Departmental recommendation for
takeover.
16.15 Commission recommendation to Congress.
16.16 Motion for stay by Federal department or agency.

§ 16.1
16.17 Procedures upon Congressional
thorization of takeover.

Subpart D—Annual Licenses for Projects
Subject to Sections 14 and 15 of the
Federal Power Act
16.18 Annual licenses for projects subject to
sections 14 and 15 of the Federal Power
Act.

Subpart E—Projects With Minor and Minor
Part Licenses Not Subject to Sections
14 and 15 of the Federal Power Act
16.19 Procedures for an existing licensee of
a minor hydroelectric power project or of
a minor part of a hydroelectric power
project with a license not subject to sections 14 and 15 of the Federal Power Act.
16.20 Applications for subsequent license for
a project with an expiring license not
subject to sections 14 and 15 of the Federal Power Act.
16.21 Operation of projects with a minor or
minor part license not subject to sections 14 and 15 of the Federal Power Act
after expiration of a license.
16.22 Application for an exemption by a licensee with a minor or minor part license for a project not subject to sections 14 and 15 of the Federal Power Act.

Subpart F—Procedural Matters
16.23 Failure to file timely notices of intent.
16.24 Prohibitions against filing applications for new license, nonpower license,
exemption, or subsequent license.
16.25 Disposition of a project for which no
timely application is filed following a notice of intent to file.
16.26 Disposition of a project for which no
timely application is filed following a notice of intent not to file.
AUTHORITY: 16 U.S.C. 791a–825r; 42 U.S.C.
7101–7352.
SOURCE: Order 513, 54 FR 23806, June 2, 1989,
unless otherwise noted.

Subpart A—General Provisions
§ 16.1 Applicability.
This part applies to the filing and
processing of an application for:
(a) A new license, a nonpower license,
or an exemption from licensing for a
hydroelectric project with an existing
license subject to the provisions of sections 14 and 15 of the Federal Power
Act.
(b) A subsequent license or an exemption from licensing for a hydroelectric

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§ 16.2

18 CFR Ch. I (4–1–12 Edition)

project with an existing minor license
or minor part license not subject to the
provisions of sections 14 and 15 of the
Federal Power Act because those sections were waived pursuant to section
10(i) of the Federal Power Act.
(c) Any potential applicant for a new
or subsequent license for which the
deadline for the notice of intent required by § 16.6 falls on or after July 23,
2005 and which wishes to develop and
file its application pursuant to this
part, must seek Commission authorization to do so pursuant to the provisions
of part 5 of this chapter.
[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 2002, 68 FR 51139, Aug. 25,
2003]

§ 16.2 Definitions.
For purposes of this part:
(a) New license means a license, except an annual license, for a water
power project that is issued under section 15(a) of the Federal Power Act
after an original license expires.
(b) New license application filing deadline, as provided in section 15(c)(1) of
the Federal Power Act, is the date 24
months before the expiration of an existing license.
(c) Nonpower license means a license
for a nonpower project issued under
section 15(b) of the Federal Power Act.
(d) Subsequent license means a license
for a water power project issued under
Part I of the Federal Power Act after a
minor or minor part license that is not
subject to sections 14 and 15 of the Federal Power Act expires.

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[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 513–A, 55 FR 15, Jan. 2,
1990; Order 533, 56 FR 23154, May 20, 1991]

§ 16.3 Public notice of projects under
expiring licenses.
In addition to the notice of a licensee’s intent to file or not to file an application for a new license provided in
§ 16.6(d), the Commission will publish,
in its annual report and annually in
the FEDERAL REGISTER, a table showing
the projects whose licenses will expire
during the succeeding six years. The
table will:
(a) List the licenses according to
their expiration dates; and
(b) Contain the following information: license expiration date; licensee’s

name; project number; type of principal project works licensed, e.g., dam
and reservoir, powerhouse, transmission lines; location by state, county, and stream; location by city or
nearby city when appropriate; whether
the existing license is subject to sections 14 and 15 of the Federal Power
Act; and plant installed capacity.
§ 16.4 Acceleration of a license expiration date.
(a) Request for acceleration. (1) A licensee may file with the Commission,
in accordance with the formal filing requirements in subpart T of part 385 of
this chapter, a written request for acceleration of the expiration date of its
existing license, containing the statements and information specified in
§ 16.6(b) and a detailed explanation of
the basis for the acceleration request.
(2) If the Commission grants the request for acceleration pursuant to
paragraph (c), the Commission will
deem the request for acceleration to be
a notice of intent under § 16.6 and, unless the Commission directs otherwise,
the licensee shall make available the
information specified in § 16.7 no later
than 90 days from the date that the
Commission grants the request for acceleration.
(b) Notice of request for acceleration. (1)
Upon receipt of a request for acceleration, the Commission will give notice
of the licensee’s request and provide a
45-day period for comments by interested persons by:
(i) Publishing notice in the FEDERAL
REGISTER;
(ii) Publishing notice once in a daily
or weekly newspaper published in the
county or counties in which the project
or any part thereof or the lands affected thereby are situated; and
(iii) Notifying appropriate Federal,
state, and interstate resource agencies
and Indian tribes by mail.
(2) The notice issued pursuant to
paragraphs (1) (i) and (ii) and the written notice given pursuant to paragraph
(1)(iii) will be considered as fulfilling
the notice provisions of § 16.6(d) should
the Commission grant the acceleration
request and will include an explanation
of the basis for the licensee’s acceleration request.

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Federal Energy Regulatory Commission

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(c) Commission order. If the Commission determines it is in the public interest, the Commission will issue an
order accelerating the expiration date
of the license to not less than five
years and 90 days from the date of the
Commission order.
§ 16.5 Site access for a competing applicant.
(a) Access. If a potential applicant for
a new license, subsequent license, or
nonpower license for a project has complied with the first stage consultation
provisions of § 16.8(b)(1) and has notified the existing licensee in writing of
the need for and extent of the access
required, the existing licensee must
allow the potential applicant to enter
upon or into designated land, buildings,
or other property in the project area at
a reasonable time and under reasonable
conditions, including, but not limited
to, reasonable liability conditions, conditions for compensation to the existing licensee for all reasonable costs incurred in providing access, including
energy generation lost as a result of
modification of project operations that
may be necessary to provide access,
and in a manner that will not adversely affect the environment, for the
purposes of:
(1) Conducting a study or gathering
information required by a resource
agency under § 16.8 or by the Commission pursuant to § 4.32 of this chapter;
(2) Conducting a study or gathering
information not covered by paragraph
(a)(1) but necessary to prepare an application for new license, subsequent license, or nonpower license; or
(3) Holding a site visit for a resource
agency under § 16.8.
(b)(1) Disputes. Except as specified by
paragraph (b)(2), disputes regarding the
timing and conditions of access for the
purposes specified in paragraphs (a) (1),
(2), or (3) of this section and the need
for the studies or information specified
in paragraph (a)(2) may be referred to
the Director of the Office of Energy
Projects for resolution in the manner
specified in § 16.8(b)(5) prior to the providing of access.
(2) Disputes regarding the amount of
compensation to be paid the existing
licensee for access may be referred to
the Director of the Office of Energy

§ 16.6
Projects for resolution in the manner
specified in § 16.8(b)(5) after the access
has been provided.

Subpart
B—Applications
for
Projects Subject to Sections
14 and 15 of the Federal
Power Act
§ 16.6 Notification procedures under
section 15 of the Federal Power Act.
(a) Applicability. This section applies
to a licensee of an existing project subject to sections 14 and 15 of the Federal
Power Act.
(b) Requirement to notify. In order to
notify the Commission under section 15
of the Federal Power Act whether a licensee intends to file or not to file an
application for new license, the licensee must file with the Secretary of
the Commission in accordance with filing procedures posted on the Commission’s Web site at http://www.ferc.gov a
letter, that contains the following information:
(1) The licensee’s name and address.
(2) The project number.
(3) The license expiration date.
(4) An unequivocal statement of the
licensee’s intention to file or not to file
an application for a new license.
(5) The type of principal project
works licensed, such as dam and reservoir, powerhouse, or transmission
lines.
(6) Whether the application is for a
power or nonpower license.
(7) The location of the project by
state, county and stream, and, when
appropriate, by city or nearby city.
(8) The installed plant capacity.
(9) The location or locations of all
the sites where the information required under § 16.7 is available to the
public.
(10) The names and mailing addresses
of:
(i) Every county in which any part of
the project is located, and in which any
Federal facility that is used by the
project is located;
(ii) Every city, town, or similar local
political subdivision:
(A) In which any part of the project
is located and any Federal facility that
is used by the project is located, or

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§ 16.7

18 CFR Ch. I (4–1–12 Edition)

(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
is located and any Federal facility that
is used by the project is located, or
(B) That owns, operates, maintains,
or uses any project facility or any Federal facility that is used by the project;
(iv) Every other political subdivision
in the general area of the project that
there is reason to believe would be
likely to be interested in, or affected
by, the notification;
(v) Affected Indian tribes.
(c) When to notify. (1) Except as provided in paragraph (c)(2) of this section, if a license expires on or after October 17, 1992, the licensee must notify
the Commission as required in paragraph (b) of this section at least five
years, but no more than five and onehalf years, before the existing license
expires.
(2) The requirement in paragraph
(c)(1) of this section does not apply if a
licensee filed notice more than five and
one-half years before its existing license expired and before the effective
date of this rule.
(d) Commission notice. Upon receipt of
the notification required under paragraph (c) of this Section, the Commission will provide notice of the licensee’s intent to file or not to file an application for a new license by:
(1) If the notification is filed prior to
July 23, 2005;
(i) Publishing notice in the FEDERAL
REGISTER;
(ii) Publishing notice once in a daily
or weekly newspaper published in the
county or counties in which the project
or any part thereof or the lands affected thereby are situated; and
(iii) Notifying the appropriate Federal and state resource agencies, state
water quality and coastal zone management consistency certifying agencies, and Indian tribes, by electronic
means if practical, otherwise by mail.

(2) If the notification is filed on or
after July 23, 2005, pursuant to the provisions of § 5.8 of this chapter.
[Order 496, 53 FR 15810, May 4, 1988. Redesignated and amended by Order 513, 54 FR 23807,
June 2, 1989; Order 2002, 68 FR 51139, Aug. 25,
2003; Order 653, 70 FR 8724, Feb. 23, 2005; Order
737, 75 FR 43403, July 26, 2010]

§ 16.7 Information to be made available to the public at the time of notification of intent under section
15(b) of the Federal Power Act.
(a) Applicability. This section applies
to a licensee of an existing project subject to sections 14 and 15 of the Federal
Power Act.
(b) Requirement to make information
available. A licensee must make the information specified in paragraph (d) of
this section reasonably available to the
public for inspection and reproduction,
from the date on which the licensee notifies the Commission pursuant to
§ 16.6(b) of this part until the date any
relicensing proceeding for the project
is terminated.
(c) Requirement to supplement information. A licensee must supplement the
information it is required to make
available under the provisions of paragraph (d) with any additional information developed after the filing of a notice of intent.
(d) Information to be made available. (1)
A licensee for which the deadline for
filing a notification of intent to seek a
new or subsequent license is on or after
July 23, 2005 must, at the time it files
a notification of intent to seek a license pursuant to § 5.5 of this chapter,
provide a copy of the pre-application
document required by § 5.6 of this chapter to the entities specified in that
paragraph.
(2) A licensee for which the deadline
for filing a notification of intent to
seek a new or subsequent license is
prior to July 23, 2005, and which elects
to seek a license pursuant to this part
must make the following information
regarding its existing project reasonably available to the public as provided
in paragraph (b) of this section:
(i) The following construction and
operation information:
(A) The original license application
and the order issuing the license and
any subsequent license application and

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Federal Energy Regulatory Commission
subsequent order issuing a license for
the existing project, including
(1) Approved Exhibit drawings, including as-built exhibits,
(2) Any order issuing amendments or
approving exhibits,
(3) Any order issuing annual licenses
for the existing project;
(B) All data relevant to whether the
project is and has been operated in accordance with the requirements of each
license article, including minimum
flow requirements, ramping rates, reservoir elevation limitations, and environmental monitoring data;
(C) A compilation of project generation and respective outflow with time
increments not to exceed one hour, unless use of another time increment can
be justified, for the period beginning
five years before the filing of a notice
of intent;
(D) Any public correspondence related to the existing project;
(E) Any report on the total actual
annual generation and annual operation and maintenance costs for the period beginning five years before the filing of a notice of intent;
(F) Any reports on original project
costs, current net investment, and
available funds in the amortization reserve account;
(G) A current and complete electrical
single-line diagram of the project
showing the transfer of electricity
from the project to the area utility
system or point of use; and
(H) Any bill issued to the existing licensee for annual charges under Section 10(e) of the Federal Power Act.
(ii) The following safety and structural adequacy information:
(A) The most recent emergency action plan for the project or a letter exempting the project from the emergency action plan requirement;
(B) Any independent consultant’s reports required by part 12 of this chapter and filed on or after January 1, 1981;
(C) Any report on operation or maintenance problems, other than routine
maintenance, occurring within the five
years preceding the filing of a notice of
intent or within the most recent fiveyear period for which data exists, and
associated costs of such problems
under the Commission’s Uniform System of Accounts;

§ 16.7
(D) Any construction report for the
existing project; and
(E) Any public correspondence relating to the safety and structural adequacy of the existing project.
(iii) The following fish and wildlife
resources information:
(A) Any report on the impact of the
project’s construction and operation on
fish and wildlife resources;
(B) Any existing report on any
threatened or endangered species or
critical habitat located in the project
area, or affected by the existing project
outside the project area;
(C) Any fish and wildlife management plan related to the project area
prepared by the existing licensee or
any resource agency; and
(D) Any public correspondence relating to the fish and wildlife resources
within the project area.
(iv) The following recreation and
land use resources information:
(A) Any report on past and current
recreational uses of the project area;
(B) Any map showing recreational facilities and areas reserved for future
development in the project area, designated or proposed wilderness areas in
the project area; Land and Water Conservation Fund lands in the project
area, and designated or proposed Federal or state wild and scenic river corridors in the project area.
(C) Any documentation listing the
entity responsible for operating and
maintaining any existing recreational
facilities in the project area; and
(D) Any public correspondence relating to recreation and land use resources within the project area.
(v) The following cultural resources
information:
(A) Except as provided in paragraph
(d)(2)(v)(B) of this section, a licensee
must make available:
(1) Any report concerning documented archeological resources identified in the project area;
(2) Any report on past or present use
of the project area and surrounding
areas by Native Americans; and
(3) Any public correspondence relating to cultural resources within the
project area.
(B) A licensee must delete from any
information made available under
paragraph (d)(2)(v)(A) of this section,

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§ 16.7

18 CFR Ch. I (4–1–12 Edition)

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 resources are located, or would violate any Federal law, including the Archeological Resources Protection Act
of 1979, 16 U.S.C. 470w–3, and the National Historic Preservation Act of
1966, 16 U.S.C. 470hh.
(vi) The following energy conservation
information
under
section
10(a)(2)(C) of the Federal Power Act related to the licensee’s efforts to conserve electricity or to encourage conservation by its customers including:
(A) Any plan of the licensee;
(B) Any public correspondence; and
(C) Any other pertinent information
relating to a conservation plan.
(3)–(6) [Reserved]
(7)(i) If paragraph (d) of 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:
(A) A statement that CEII is being
withheld;
(B) A brief description of the omitted
information that does not reveal any
CEII; and
(C) 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.’’
(ii) 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.
(iii) 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 ac-

cess to CEII, the applicant will be directed to make the information available to the requester.
(iv) Nothing in this section shall be
construed to prohibit any persons from
voluntarily reaching arrangements or
agreements calling for the disclosure of
CEII.
(e) Form, place, and hours of availability, and cost of reproduction. (1) A licensee must make the information
specified in paragraph (d) of this section, or the pre-application document,
as applicable, available to the public
for inspection:
(i) At its principal place of business
or at any other location or locations
that are more accessible to the public,
provided that all of the information is
available in at least one location;
(ii) During regular business hours;
and
(iii) In a form that is readily accessible, reviewable, and reproducible.
(2) Except as provided in paragraph
(d)(3) of this section, a licensee must
make requested copies of the information specified in paragraph (c) of this
section available either:
(i) At its principal place of business
or at any other location or locations
that are more accessible to the public,
after obtaining reimbursement for reasonable costs of reproduction; or
(ii) Through the mail, after obtaining
reimbursement for postage fees and
reasonable costs of reproduction.
(3) A licensee must make requested
copies of the information specified in
paragraph (d) of this section available
to the United States Fish and Wildlife
Service, the National Marine Fisheries
Service, Indian tribes, and the state
agency responsible for fish and wildlife
resources without charge for the costs
of reproduction or postage.
(f) Unavailability of required information. Anyone may file a petition with
the Commission requesting access to
the information specified in paragraph
(d) of this section if it believes that a
licensee 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.
(g) Public correspondence. A licensee
may compile and make available in one

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Federal Energy Regulatory Commission
file all the public correspondence required to be made available for inspection and reproduction by § 16.7(d)(1)(iv),
(d)(2)(v),
(d)(3)(iv),
(d)(4)(iv),
and
(d)(6)(ii).

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[Order 496, 53 FR 15810, May 4, 1988. Redesignated by Order 513, 54 FR 23807, June 2, 1989;
Order 513–C, 55 FR 10768, Mar. 23, 1990; Order
2002, 68 FR 51139, Aug. 25, 2003; Order 643, 68
FR 52095, Sept. 2, 2003]

§ 16.8 Consultation requirements.
(a) Requirement to consult. (1) Before
it files any application for a new license, a nonpower license, an exemption from licensing, or, pursuant to
§ 16.25 or § 16.26 of this part, a surrender
of a project, a potential applicant must
consult with the relevant Federal,
State, and interstate resource agencies, including the National Marine
Fisheries Service, the United States
Fish and Wildlife Service, the National
Park Service, the United States Environmental Protection Agency, the Federal agency administering any United
States lands or facilities utilized or occupied by the project, the appropriate
state fish and wildlife agencies, the appropriate State water resource management agencies, the certifying agency under section 401(a)(1) of the Federal
Water Pollution Control Act (Clean
Water Act), 33 U.S.C. 1341(c)(1), and any
Indian tribe that may be affected by
the project.
(2) Each requirement in this section
to contact or consult with resource
agencies or Indian tribes shall require
as well that the potential Applicant
contact or consult with members of the
public.
(3) If the potential applicant for a
new or subsequent license commences
first stages pre-filing consultation
under this part on or after July 23, 2005,
it must file a notification of intent to
file a license application pursuant to
§ 5.5 of this chapter and a pre-application document pursuant to the provisions of § 5.6 of this chapter.
(4) The Director of the Office of Energy Projects will, upon request, provide a list of known appropriate Federal, state, and interstate resource
agencies, and Indian tribes, and local,
regional, or national non-governmental
organizations likely to be interested in
any license application proceeding.

§ 16.8
(5)(i) Before it files an amendment
that would be considered as material
under § 4.35 of this part, to any application subject to this section, an applicant must consult with the resource
agencies and Indian tribes listed in
paragraph (a)(1) of this section and
allow such agencies and tribes at least
60 days to comment on a draft of the
proposed amendment and to submit
recommendations and conditions to the
applicant. The amendment as filed
with the Commission must summarize
the consultation with the resource
agencies and Indian tribes on the proposed amendment and respond to any
obligations, recommendations or conditions submitted by the agencies or
Indian tribes.
(ii) If an applicant has any doubt as
to whether a particular amendment
would be subject to the pre-filing consultation requirements of this section,
the applicant may file a written request for clarification with the Director, Office of Energy Projects.
(b) First stage of consultation. (1) A potential Applicant for a new or subsequent license must, at the time it files
its notification of intent to seek a license pursuant to § 5.5 of this chapter,
provide a copy of the pre-application
document required by § 5.6 of this chapter to the entities specified in § 5.6(a) of
this chapter.
(2) A potential applicant for a
nonpower license or exemption or a potential applicant which elects to use
the licensing procedures of Parts 4 or
16 of this chapter prior to July 23, 2005,
must promptly contact each of the appropriate resource agencies, Indian
tribes, and members of the public listed
in paragraph (a)(1) of this section, and
the Commission with the following information:
(i) Detailed maps showing existing
project boundaries, if any, proper land
descriptions of the entire project area
by township, range, and section, as
well as by state, county, river, river
mile, and closest town, and also showing the specific location of all existing
and proposed project facilities, including roads, transmission lines, and any
other appurtenant facilities;
(ii) A general engineering design of
the existing project and any proposed

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§ 16.8

18 CFR Ch. I (4–1–12 Edition)

changes, with a description of any existing or proposed diversion of a stream
through a canal or penstock;
(iii) A summary of the existing operational mode of the project and any
proposed changes;
(iv) Identification of the environment
affected or to be affected, the significant resources present and the applicant’s existing and proposed environmental protection, mitigation, and enhancement plans, to the extent known
at that time;
(v) Streamflow and water regime information, including drainage area,
natural flow periodicity, monthly flow
rates and durations, mean flow figures
illustrating the mean daily streamflow
curve for each month of the year at the
point of diversion or impoundment,
with location of the stream gauging
station, the method used to generate
the streamflow data provided, and copies of all records used to derive the
flow data used in the applicant’s engineering calculations;
(vi) Detailed descriptions of any proposed studies and the proposed methodologies to be employed; and
(vii) Any statement required by
§ 4.301(a) of this chapter.
(3)(i) A potential applicant for an exemption, a new or subsequent license
for which the deadline for filing a notification of intent to seek a license is
prior to July 23, 2005 and which elects
to commence pre-filing consultation
under this part, or a new or subsequent
license for which the deadline for filing
a notification of intent to seek a license is on or after July 23, 2005 and
which receives Commission approval to
use the license application procedures
of this part must:
(A) Hold a joint meeting, including
an opportunity for a site visit, with all
pertinent agencies, Indian tribes and
members of the public to review the information and to discuss the data and
studies to be provided by the potential
applicant as part of the consultation
process; and
(B) Consult with the resource agencies, Indian tribes and members of the
public on the scheduling of the joint
meeting; and provide each resource
agency, Indian tribe, member of the
public, and the Commission with written notice of the time and place of the

joint meeting and a written agenda of
the issues to be discussed at the meeting at least 15 days in advance.
(ii) The joint meeting must be held
no earlier than 30 days, and no later
than 60 days from, as applicable:
(A) The date of the potential applicant’s letter transmitting the information required by paragraph (b)(2) of this
section, in the case of a potential exemption applicant or a potential license applicant that commences prefiling consultation under this part
prior to July 23, 2005; or
(B) The date of the Commission’s approval of the potential license applicant’s request to use the license application procedures of this part pursuant
to the provisions of part 5, in the case
of a potential license applicant for
which the deadline for filing a notification of intent to seek a license is on or
after July 23, 2005.
(4) Members of the public are invited
to attend the joint meeting held pursuant to paragraph (b)(3) of this section.
Members of the public attending the
meeting are entitled to participate
fully in the meeting and to express
their views regarding resource issues
that should be addressed in any application for a new license that may be
filed by the potential applicant. Attendance of the public at any site visit
held pursuant to paragraph (b)(3) of
this section shall be at the discretion
of the potential applicant. The potential applicant must make either audio
recordings or written transcripts of the
joint meeting, and must upon request
promptly provide copies of these recordings or transcripts to the Commission and any resource agency and Indian tribe.
(5) Unless otherwise extended by the
Director of Office of Energy Projects
pursuant to paragraph (b)(6) of this section, not later than 60 days after the
joint meeting held under paragraph
(b)(3) of this section each interested resource agency, and Indian tribe, and
member of the public must provide a
potential applicant with written comments:
(i) Identifying its determination of
necessary studies to be performed or
information to be provided by the potential applicant;

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Federal Energy Regulatory Commission
(ii) Identifying the basis for its determination;
(iii) Discussing its understanding of
the resource issues and its goals objectives for these resources;
(iv) Explaining why each study methodology recommended by it is more appropriate than any other available
methodology alternatives, including
those identified by the potential applicant pursuant to paragraph (b)(2)(vi) of
this section;
(v) Documenting that the use of each
study methodology recommended by it
is a generally accepted practice; and
(vi) Explaining how the studies and
information requested will be useful to
the agency, Indian tribe, or member of
the public in furthering its resource
goals and objectives.
(6)(i) If a potential applicant and a
resource agency, Indian tribe, or member of the public disagree as to any
matter arising during the first stage of
consultation or as to the need to conduct a study or gather information referenced in paragraph (c)(2) of this section, the potential applicant or resource agency, or Indian tribe, or member of the public may refer the dispute
in writing to the Director of the Office
of Energy Projects (Director) for resolution.
(ii) The entity referring the dispute
must serve a copy of its written request for resolution on the disagreeing
party at the time the request is submitted to the Director. The disagreeing
party may submit to the Director a
written response to the referral within
15 days of the referral’s submittal to
the Director.
(iii) Written referrals to the Director
and written responses thereto pursuant
to paragraphs (b)(6)(i) or (b)(6)(ii) of
this section must be filed with the Secretary of the Commission in accordance with the Commission’s Rules of
Practice and Procedure, and must indicate that they are for the attention of
the Director of the Office of Energy
Projects pursuant to § 16.8(b)(6).
(iv) The Director will resolve disputes by an order directing the potential applicant to gather such information or conduct such study or studies
as, in the Director’s view, is reasonable
and necessary.

§ 16.8
(v) If a resource agency, Indian tribe,
or member of the public fails to refer a
dispute regarding a request for a potential applicant to obtain information or
conduct studies (other than a dispute
regarding the information specified in
paragraph (b)(1) or (b)(2) of this section, as applicable), the Commission
will not entertain the dispute following
the filing of the license application.
(vi) If a potential applicant fails to
obtain information or conduct a study
as required by the Director pursuant to
paragraph (b)(6)(iv) of this section, its
application will be considered deficient.
(7) Unless otherwise extended by the
Director pursuant to paragraph (b)(6)
of this section, the first stage of consultation ends when all participating
agencies, Indian tribes, and members of
the public provide the written comments required under paragraph (b)(5)
of this section or 60 days after the joint
meeting held under paragraph (b)(3) of
this section, whichever occurs first.
(c) Second stage of consultation. (1) Unless determined otherwise by the Director of the Office of Energy Projects
pursuant to paragraph (b)(6) of this section, a potential applicant must complete all reasonable and necessary
studies and obtain all reasonable and
necessary information requested by resource agencies and Indian tribes under
paragraph (b):
(i) Prior to filing the application, if
the results:
(A) Would influence the financial
(e.g., instream flow study) or technical
feasibility of the project (e.g., study of
potential mass soil movement); or
(B) Are needed to determine the design or location of project features,
reasonable alternatives to the project,
the impact of the project on important
natural or cultural resources (e.g., resource surveys), suitable mitigation or
enhancement measures, or to minimize
impact on significant resources (e.g.,
wild and scenic river, anadromous fish,
endangered species, caribou migration
routes);
(ii) After filing the application but
before license issuance, if the applicant
complied with the provisions of paragraph (b)(1) or (b)(2) of this section, as
applicable, no later than four years

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§ 16.8

18 CFR Ch. I (4–1–12 Edition)

prior to the expiration date of the existing license and the results:
(A) Would be those described in paragraphs (c)(1)(i) (A) or (B) of this section; and
(B) Would take longer to conduct and
evaluate than the time between the
conclusion of the first stage of consultation and the new license application filing deadline.
(iii) After a new license is issued, if
the studies can be conducted or the information obtained only after construction or operation of proposed facilities, would determine the success of
protection, mitigation, or enhancement measures (e.g., post-construction
monitoring studies), or would be used
to refine project operation or modify
project facilities.
(2) If, after the end of the first stage
of consultation as defined in paragraph
(b)(7) of this section, a resource agency,
Indian tribe, or member of the public
requests that the potential applicant
conduct a study or gather information
not previously identified and specifies
the basis for its request, under paragraphs (b)(5)(i)–(vi) of this section, the
potential applicant will promptly initiate the study or gather the information, unless the Director of the Office
of Energy Projects determines under
paragraph (b)(5) of this section either
that the study or information is unreasonable or unnecessary or that use of
the methodology requested by a resource agency or Indian tribe for conducting the study is not a generally accepted practice.
(3) (i) The results of studies and information gathering referenced in
paragraphs (c)(1)(ii) and (c)(2) of this
section will be treated as additional information; and
(ii) Filing and acceptance of an application will not be delayed and an application will not be considered deficient
or patently deficient pursuant to § 4.32
(e)(1) or (e)(2) of this chapter merely
because the study or information gathering is not complete before the application is filed.
(4) A potential applicant must provide each resource agency and Indian
tribe with:
(i) A copy of its draft application
that:

(A) Indicates the type of application
the potential applicant expects to file
with the Commission; and
(B) Responds to any comments and
recommendations made by any resource agency or Indian tribe either
during the first stage of consultation
or under paragraph (c)(2) of this section;
(ii) The results of all studies and information gathering either requested
by that resource agency or Indian tribe
in the first stage of consultation (or
under paragraph (c)(2) of this section if
available) or which pertains to resources of interest to that resource
agency or Indian tribe and which were
identified by the potential applicant
pursuant to paragraph (b)(2)(vi) of this
section, including a discussion of the
results and any proposed protection,
mitigation, or enhancement measure;
and
(iii) A written request for review and
comment.
(5) A resource agency or Indian tribe
will have 90 days from the date of the
potential applicant’s letter transmitting the paragraph (c)(4) of this section
information to it to provide written
comments on the information submitted by a potential applicant under
paragraph (c)(4) of this section.
(6) If the written comments provided
under paragraph (c)(5) of this section
indicate that a resource agency or Indian tribe has a substantive disagreement with a potential applicant’s conclusions regarding resource impacts or
its proposed protection, mitigation, or
enhancement measures, the potential
applicant will:
(i) Hold at least one joint meeting
with the disagreeing resource agency
or Indian tribe and other agencies with
similar or related areas of interest, expertise, or responsibility not later than
60 days from the date of the disagreeing agency’s or Indian tribe’s
written comments to discuss and to attempt to reach agreement on its plan
for environmental protection, mitigation, or enhancement measures; and
(ii) Consult with the disagreeing
agency or Indian tribe and other agencies with similar or related areas of interest, expertise, or responsibility on
the scheduling of the joint meeting and

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Federal Energy Regulatory Commission
provide the disagreeing resource agency or Indian tribe, other agencies with
similar or related areas of interest, expertise, or responsibility, and the Commission with written notice of the time
and place of each meeting and a written agenda of the issues to be discussed
at the meeting at least 15 days in advance.
(7) The potential applicant and any
disagreeing resource agency or Indian
tribe may conclude a joint meeting
with a document embodying any agreement among them regarding environmental protection, mitigation, or enhancement measures and any issues
that are unresolved.
(8) The potential applicant must describe all disagreements with a resource agency or Indian tribe on technical or environmental protection,
mitigation, or enhancement measures
in its application, including an explanation of the basis for the applicant’s
disagreement with the resource agency
or Indian tribe, and must include in its
application any document developed
pursuant to paragraph (c)(7) of this section.
(9) A potential applicant may file an
application with the Commission if:
(i) It has complied with paragraph
(c)(4) of this section and no resource
agency or Indian tribe has responded
with substantive disagreements by the
deadline specified in paragraph (c)(5) of
this section; or
(ii) It has complied with paragraph
(c)(6) of this section if any resource
agency or Indian tribe has responded
with substantive disagreements.
(10) The second stage of consultation
ends:
(i) Ninety days after the submittal of
information pursuant to paragraph
(c)(4) of this section in cases where no
resource agency or Indian tribe has responded with substantive disagreements; or
(ii) At the conclusion of the last joint
meeting held pursuant to paragraph
(c)(6) of this section in cases where a
resource agency or Indian tribe has responded with substantive disagreements.
(d) Third stage of consultation. (1) The
third stage of consultation is initiated
by the filing of an application for a new
license, nonpower license, exemption

§ 16.8
from licensing, or surrender of license,
accompanied by a transmittal letter
certifying that at the same time copies
of the application are being distributed
to the resource agencies, Indian tribes,
and other government offices specified
in paragraph (d)(2) of this section and
§ 16.10(f) of this part, if applicable.
(2) As soon as an applicant files such
application documents with the Commission, or promptly after receipt in
the case of documents described in
paragraph (d)(2)(iii) of this section, as
the Commission may direct, the applicant must serve on every resource
agency and Indian tribe consulted, on
other government offices, and, in the
case of applications for surrender or
nonpower license, any state, municipal,
interstate, or Federal agency which is
authorized to assume regulatory supervision over the land, waterways, and
facilities covered by the application for
surrender or nonpower license, copies
of:
(i) Its application for a new license, a
nonpower license, an exemption from
licensing, or a surrender of the project;
(ii) Any deficiency correction, revision, supplement, response to additional information request, or amendment to the application; and
(iii) Any written correspondence
from the Commission requesting the
correction of deficiencies or the submittal of additional information.
(e) Resource agency or Indian tribe
waiver of compliance with consultation
requirement. (1) If a resource agency or
Indian tribe waives in writing compliance with any requirement of this section, a potential applicant does not
have to comply with that requirement
as to that agency or Indian tribe.
(2) If a resource agency or Indian
tribe fails to timely comply with a provision regarding a requirement of this
section, a potential applicant may proceed to the next sequential requirement of this section without waiting
for the resource agency or Indian tribe
to comply.
(3) The failure of a resource agency
or Indian tribe to timely comply with a
provision regarding a requirement of
this section does not preclude its participation in subsequent stages of the
consultation process.

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§ 16.8

18 CFR Ch. I (4–1–12 Edition)

(4) Following July 23, 2003 a potential
license applicant engaged in pre-filing
consultation under this part may during first stage consultation request to
incorporate into pre-filing consultation
any element of the integrated license
application process provided for in part
5 of this chapter. Any such request
must be accompanied by a:
(i) Specific description of how the
element of the part 5 license application would fit into the pre-filing consultation process under this part; and
(ii) Demonstration that the potential
license applicant has made every reasonable effort to contact all resource
agencies, Indian tribes, non-governmental organizations, and others affected by the potential applicant’s proposal, and that a consensus exists in
favor of incorporating the specific element of the part 5 process into the prefiling consultation under this part.
(f) Application requirements documenting consultation and any disagreements with resource agencies or Indian
tribes. An applicant must show in Exhibit E of its application that it has
met the requirements of paragraphs (b)
through (d) of this section, and § 16.8(i),
and must include:
(1) Any resource agency’s or Indian
tribe’s letters containing comments,
recommendations, and proposed terms
and conditions;
(2) Any letters from the public containing comments and recommendations;
(3) Notice of any remaining disagreement with a resource agency or Indian
tribe on:
(i) The need for a study or the manner in which a study should be conducted and the applicant’s reasons for
disagreement, and
(ii) Information on any environmental protection, mitigation, or enhancement measure, including the
basis for the applicant’s disagreement
with the resource agency or Indian
tribe.
(4) Evidence of any waivers under
paragraph (e) of this section;
(5) Evidence of all attempts to consult with a resource agency or Indian
tribe, copies of related documents
showing the attempts, and documents
showing the conclusion of the second
stage of consultation;

(6) An explanation of how and why
the project would, would not, or should
not, comply with any relevant comprehensive plan as defined in § 2.19 of
this chapter and a description of any
relevant resource agency or Indian
tribe determination regarding the consistency of the project with any such
comprehensive plan;
(7) A description of how the applicant’s proposal addresses the significant resource issues raised by members
of the public during the joint meeting
held pursuant to paragraph (b)(2) of
this section.
(g) Requests for privileged treatment of
pre-filing submission. If a potential applicant requests privileged treatment
of any information submitted to the
Commission during pre-filing consultation (except for the information specified in paragraph (b)(1) of this section),
the Commission will treat the request
in accordance with the provisions in
§ 388.112 of this chapter until the date
the application is filed with the Commission.
(h) Other meetings. Prior to holding a
meeting with a resource agency or Indian tribe, other than a joint meeting
pursuant to paragraph (b)(3)(i) or
(c)(6)(i) of this section, a potential applicant must provide the Commission
and each resource agency or Indian
tribe (with an area of interest, expertise, or responsibility similar or related to that of the resource agency or
Indian tribe with which the potential
applicant is to meet) with written notice of the time and place of each meeting and a written agenda of the issues
to be discussed at the meeting at least
15 days in advance.
(i) Public participation. (1) At least 14
days in advance of the joint meeting
held pursuant to paragraph (b)(3), the
potential applicant must publish notice, at least once, of the purpose, location, and timing of the joint meeting,
in a daily or weekly newspaper published in the county or counties in
which the existing project or any part
thereof or the lands affected thereby
are situated. The notice shall include a
copy of the written agenda of the
issues to be discussed at the joint
meeting prepared pursuant to paragraph (b)(3)(ii) of this section.

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Federal Energy Regulatory Commission
(2)(i) A potential applicant must
make available to the public for inspection and reproduction the information specified in paragraph (b)(1) of this
section from the date on which the notice required by paragraph (i)(1) of this
section is first published until a final
order is issued on the license application.
(ii) The provisions of § 16.7(e) shall
govern the form and manner in which
the information is to be made available
for public inspection and reproduction.
(iii) A potential applicant must make
available to the public for inspection
at the joint meeting required by paragraph (b)(3) of this section the information specified in paragraph (b)(2) of this
section.
(j) Critical Energy Infrastructure Information. If this section requires an applicant to reveal Critical Energy Infrastructure Information (CEII), as defined by § 388.113(c) of this chapter, to
any person, the applicant shall follow
the procedures set out in § 16.7(d)(7).

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[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 513–A, 55 FR 16, Jan. 2,
1990; Order 533, 56 FR 23154, May 20, 1991; 56
FR 61156, Dec. 2, 1991; Order 2002, 68 FR 51140,
Aug. 25, 2003; Order 643, 68 FR 52095, Sept. 2,
2003; 68 FR 61743, Oct. 30, 2003]

§ 16.9 Applications for new licenses
and nonpower licenses for projects
subject to sections 14 and 15 of the
Federal Power Act.
(a) Applicability. This section applies
to an applicant for a new license or
nonpower license for a project subject
to sections 14 and 15 of the Federal
Power Act.
(b) Filing requirement. (1) An applicant
for a license under this section must
file its application at least 24 months
before the existing license expires.
(2) An application for a license under
this section must meet the requirements of § 4.32 (except that the Director
of the Office of Energy Projects may
provide more than 90 days in which to
correct deficiencies in applications)
and, as appropriate, §§ 4.41, 4.51, or 4.61
of this chapter.
(3) The requirements of § 4.35 of this
chapter do not apply to an application
under this section, except that the
Commission will reissue a public notice
of the application in accordance with
the provisions of § 16.9(d)(1) if an

§ 16.9
amendment described in § 4.35(f) of this
chapter is filed.
(4) If the Commission rejects or dismisses an application pursuant to the
provisions of § 4.32 of this chapter, the
application may not be refiled after the
new license application filing deadline
specified in § 16.9(b)(1).
(c) Final amendments. All amendments to an application, including the
final amendment, must be filed with
the Commission and served on all competing applicants no later than the
date specified in the notice issued
under paragraph (d)(2).
(d) Commission notice. (1) Upon acceptance of an application for a new license
or a nonpower license, the Commission
will give notice of the application and
of the dates for comment, intervention,
and protests by:
(i) Publishing notice in the FEDERAL
REGISTER;
(ii) Publishing notice once every
week for four weeks in a daily or weekly newspaper published in the county
or counties in which the project or any
part thereof or the lands affected
thereby are situated; and
(iii) Notifying appropriate Federal,
state, and interstate resource agencies,
Indian tribes, and non-governmental
organizations, by electronic means if
practical, otherwise by mail.
(2) Within 60 days after the new license application filing deadline, the
Commission will issue a notice on the
processing deadlines established under
§ 4.32 of this chapter, estimated dates
for further processing deadlines under
§ 4.32 of this chapter, deadlines for complying with the provisions of § 4.36(d)(2)
(ii) and (iii) of this chapter in cases
where competing applications are filed,
and the date for final amendments and
will:
(i) Publish the notice in the FEDERAL
REGISTER;
(ii) Provide the notice to appropriate
Federal, state, and interstate resource
agencies and Indian tribes, by electronic means if practical, otherwise by
mail; and
(iii) Serve the notice on all parties to
the proceedings pursuant to § 385.2010 of
this chapter.
(3) Where two or more mutually exclusive competing applications have
been filed for the same project, the

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§ 16.10

18 CFR Ch. I (4–1–12 Edition)

final amendment date and deadlines for
complying with the provisions of
§ 4.36(d)(2) (ii) and (iii) of this chapter
established pursuant to the notice
issued under paragraph (d)(2) of this
section will be the same for all such applications.
(4) The provisions of § 4.36(d)(2)(i) of
this chapter will not be applicable to
applications filed pursuant to this section.

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[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 2002, 68 FR 51142, Aug. 25,
2003; Order 653, 70 FR 8724, Feb. 23, 2005]

§ 16.10 Information to be provided by
an applicant for new license: Filing
requirements.
(a) Information to be supplied by all applicants. All applicants for a new license under this part must file the following information with the Commission:
(1) A discussion of the plans and ability of the applicant to operate and
maintain the project in a manner most
likely to provide efficient and reliable
electric service, including efforts and
plans to:
(i) Increase capacity or generation at
the project;
(ii) Coordinate the operation of the
project with any upstream or downstream water resource projects; and
(iii) Coordinate the operation of the
project with the applicant’s or other
electrical systems to minimize the cost
of production.
(2) A discussion of the need of the applicant over the short and long term
for the electricity generated by the
project, including:
(i) The reasonable costs and reasonable availability of alternative sources
of power that would be needed by the
applicant or its customers, including
wholesale customers, if the applicant is
not granted a license for the project;
(ii) A discussion of the increase in
fuel, capital, and any other costs that
would be incurred by the applicant or
its customers to purchase or generate
power necessary to replace the output
of the licensed project, if the applicant
is not granted a license for the project;
(iii) The effect of each alternative
source of power on:
(A) The applicant’s customers, including wholesale customers;

(B) The applicant’s operating and
load characteristics; and
(C) The communities served or to be
served, including any reallocation of
costs associated with the transfer of a
license from the existing licensee.
(3) The following data showing need
and the reasonable cost and availability of alternative sources of power:
(i) The average annual cost of the
power produced by the project, including the basis for that calculation;
(ii) The projected resources required
by the applicant to meet the applicant’s capacity and energy requirements over the short and long term including:
(A) Energy and capacity resources,
including the contributions from the
applicant’s generation, purchases, and
load modification measures (such as
conservation, if considered as a resource), as separate components of the
total resources required;
(B) A resource analysis, including a
statement of system reserve margins
to be maintained for energy and capacity; and
(C) If load management measures are
not viewed as resources, the effects of
such measures on the projected capacity and energy requirements indicated
separately;
(iii) For alternative sources of power,
including generation of additional
power at existing facilities, restarting
deactivated units, the purchase of
power off-system, the construction or
purchase and operation of a new power
plant, and load management measures
such as conservation:
(A) The total annual cost of each alternative source of power to replace
project power;
(B) The basis for the determination
of projected annual cost; and
(C) A discussion of the relative merits of each alternative, including the
issues of the period of availability and
dependability of purchased power, average life of alternatives, relative
equivalent availability of generating
alternatives, and relative impacts on
the applicant’s power system reliability and other system operating
characteristics; and
(iv) The effect on the direct providers
(and their immediate customers) of alternate sources of power.

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Federal Energy Regulatory Commission
(4) If an applicant uses power for its
own industrial facility and related operations, the effect of obtaining or losing electricity from the project on the
operation and efficiency of such facility or related operations, its workers,
and the related community.
(5) If an applicant is an Indian tribe
applying for a license for a project located on the tribal reservation, a statement of the need of such tribe for electricity generated by the project to foster the purposes of the reservation.
(6) A comparison of the impact on the
operations and planning of the applicant’s transmission system of receiving
or not receiving the project license, including:
(i) An analysis of the effects of any
resulting redistribution of power flows
on line loading (with respect to applicable thermal, voltage, or stability
limits), line losses, and necessary new
construction of transmission facilities
or upgrading of existing facilities, together with the cost impact of these effects;
(ii) An analysis of the advantages
that the applicant’s transmission system would provide in the distribution
of the project’s power; and
(iii) Detailed single-line diagrams, including existing system facilities identified by name and circuit number,
that show system transmission elements in relation to the project and
other principal interconnected system
elements. Power flow and loss data
that represent system operating conditions may be appended if applicants believe such data would be useful to show
that the operating impacts described
would be beneficial.
(7) If the applicant has plans to modify existing project facilities or operations, a statement of the need for, or
usefulness of, the modifications, including at least a reconnaissance-level
study of the effect and projected costs
of the proposed plans and any alternate
plans, which in conjunction with other
developments in the area would conform with a comprehensive plan for improving or developing the waterway
and for other beneficial public uses as
defined in section 10(a)(1) of the Federal Power Act.
(8) If the applicant has no plans to
modify existing project facilities or op-

§ 16.10
erations, at least a reconnaissancelevel study to show that the project facilities or operations in conjunction
with other developments in the area
would conform with a comprehensive
plan for improving or developing the
waterway and for other beneficial public uses as defined in section 10(a)(1) of
the Federal Power Act.
(9) A statement describing the applicant’s financial and personnel resources to meet its obligations under a
new license, including specific information to demonstrate that the applicant’s personnel are adequate in number and training to operate and maintain the project in accordance with the
provisions of the license.
(10) If an applicant proposes to expand the project to encompass additional lands, a statement that the applicant has notified, by certified mail,
property owners on the additional
lands to be encompassed by the project
and governmental agencies and subdivisions likely to be interested in or
affected by the proposed expansion.
(11) The applicant’s electricity consumption efficiency improvement program,
as
defined
under
section
10(a)(2)(C) of the Federal Power Act, including:
(i) A statement of the applicant’s
record of encouraging or assisting its
customers to conserve electricity and a
description of its plans and capabilities
for promoting electricity conservation
by its customers; and
(ii) A statement describing the compliance of the applicant’s energy conservation programs with any applicable
regulatory requirements.
(12) The names and mailing addresses
of every Indian tribe with land on
which any part of the proposed project
would be located or which the applicant reasonably believes would otherwise be affected by the proposed
project.
(b) Information to be provided by an applicant who is an existing licensee. An existing licensee that applies for a new license must provide:
(1) The information specified in paragraph (a).
(2) A statement of measures taken or
planned by the licensee to ensure safe
management, operation, and maintenance of the project, including:

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§ 16.11

18 CFR Ch. I (4–1–12 Edition)

(i) A description of existing and
planned operation of the project during
flood conditions;
(ii) A discussion of any warning devices used to ensure downstream public
safety;
(iii) A discussion of any proposed
changes to the operation of the project
or downstream development that
might affect the existing Emergency
Action Plan, as described in subpart C
of part 12 of this chapter, on file with
the Commission;
(iv) A description of existing and
planned monitoring devices to detect
structural movement or stress, seepage, uplift, equipment failure, or water
conduit failure, including a description
of the maintenance and monitoring
programs used or planned in conjunction with the devices; and
(v) A discussion of the project’s employee safety and public safety record,
including the number of lost-time accidents involving employees and the
record of injury or death to the public
within the project boundary.
(3) A description of the current operation of the project, including any constraints that might affect the manner
in which the project is operated.
(4) A discussion of the history of the
project and record of programs to upgrade the operation and maintenance
of the project.
(5) A summary of any generation lost
at the project over the last five years
because of unscheduled outages, including the cause, duration, and corrective action taken.
(6) A discussion of the licensee’s
record of compliance with the terms
and conditions of the existing license,
including a list of all incidents of noncompliance, their disposition, and any
documentation relating to each incident.
(7) A discussion of any actions taken
by the existing licensee related to the
project which affect the public.
(8) A summary of the ownership and
operating expenses that would be reduced if the project license were transferred from the existing licensee.
(9) A statement of annual fees paid
under Part I of the Federal Power Act
for the use of any Federal or Indian
lands included within the project
boundary.

(c) Information to be provided by an applicant who is not an existing licensee. An
applicant that is not an existing licensee must provide:
(1) The information specified in paragraph (a).
(2) A statement of the applicant’s
plans to manage, operate, and maintain the project safely, including:
(i) A description of the differences between the operation and maintenance
procedures planned by the applicant
and the operation and maintenance
procedures of the existing licensee;
(ii) A discussion of any measures proposed by the applicant to implement
the existing licensee’s Emergency Action Plan, as described in subpart C of
part 12 of this chapter, and any proposed changes;
(iii) A description of the applicant’s
plans to continue safety monitoring of
existing project instrumentation and
any proposed changes; and
(iv) A statement indicating whether
or not the applicant is requesting the
licensee to provide transmission services under section 15(d) of the Federal
Power Act.
(d) Inclusion in application. The information required to be provided by this
section must be included in the application as a separate exhibit labeled
‘‘Exhibit H.’’
[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 533, 56 FR 23154, May 20,
1991; 56 FR 61156, Dec. 2, 1991; Order 2002, 68
FR 51142, Aug. 25, 2003]

§ 16.11 Nonpower licenses.
(a) Information to be provided by all applicants for nonpower licenses. (1) An applicant for a nonpower license must
provide the following information in
its application:
(i) The information required by §§ 4.51
or 4.61 of this chapter, as appropriate;
(ii) A description of the nonpower
purpose for which the project is to be
used;
(iii) A showing of how the nonpower
use conforms with a comprehensive
plan for improving or developing the
waterway and for other beneficial public uses as defined in section 10(a)(1) of
the Federal Power Act;
(iv) A statement of any impact that
converting the project to nonpower use
may have on the power supply of the

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Federal Energy Regulatory Commission
system served by the project, including
the additional cost of power if an alternative generating source is used to offset the loss of the project’s generation;
(v) A statement identifying the state,
municipal, interstate, or Federal agency, which is authorized and willing to
assume regulatory supervision over the
land, waterways, and facilities to be included within the nonpower project;
(vi) Copies of written communication
and documentation of oral communication that the applicant may have had
with any jurisdictional agency or governmental unit authorized and willing
to assume regulatory control over the
project and the point of time at which
the agency or unit would assume regulatory control;
(vii) A statement that demonstrates
that the applicant has complied with
the requirements of § 16.8(d)(2);
(viii) A proposal that shows the manner in which the applicant plans to remove or otherwise dispose of the
project’s power facilities;
(ix) Any proposal to repair or rehabilitate any nonpower facilities;
(x) A statement of the costs associated with removing the project’s power
facilities and with any necessary restoration and rehabilitation work; and
(xi) A statement that demonstrates
that the applicant has resources to ensure the integrity and safety of the remaining project facilities and to maintain the nonpower functions of the
project until the governmental unit or
agency assumes regulatory control
over the project.
(2) [Reserved]
(b) Termination of a proceeding for a
nonpower license. The Commission may
deny an application for a nonpower license and turn the project over to any
agency that has jurisdiction over the
land or reservations if:
(1) An existing project is located on
public lands or reservations of the
United States;
(2) Neither the existing licensee nor
any other entity has filed an application for a new license for the project;
(3) No one has filed a recommendation to take over the project pursuant
to § 16.14; and
(4) The agency that has jurisdiction
over the land or reservations demonstrates that it is able and willing to:

§ 16.13
(i) Accept immediate responsibility
for the nonpower use of the project;
and.
(ii) Pay the existing licensee for its
net investment in the project and any
severance damages specified in section
14(a) of the Federal Power Act.
(c) Termination of nonpower license. A
nonpower license will be terminated by
Commission order when the Commission determines that a state, municipal, interstate, or Federal agency has
jurisdiction over, and is willing to assume regulatory responsibility for, the
land, waterways, and facilities included
within the nonpower license.
[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 2002, 68 FR 51142, Aug. 25,
2003]

§ 16.12 Application for exemption from
licensing by a licensee whose license is subject to sections 14 and
15 of the Federal Power Act.
(a) An existing licensee whose license
is subject to sections 14 and 15 of the
Federal Power Act may apply for an
exemption for the project.
(b) An applicant for an exemption
under paragraph (a) must meet the requirements of subpart K or subpart J of
part 4 of this chapter, and §§ 16.5, 16.6,
16.7, 16.8, 16.9(b) (1), (2) (except the requirement to comply with §§ 4.41, 4.51,
or 4.61 of this chapter), 16.9(c), 16.10(a),
16.10(b), and 16.10(d).
(c) The Commission will process an
application by an existing licensee for
an exemption for the project in accordance with §§ 16.9(b)(3), 16.9(b)(4), and
16.9(d).
(d) If a license application is filed in
competition with an application for exemption filed by the existing licensee,
the Commission will decide among the
competing applications in accordance
with the standards of § 16.13 and not in
accordance with the provisions of
§ 4.37(d)(2) of this chapter.
[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 699, 72 FR 45324, Aug. 14,
2007]

§ 16.13 Standards and factors for
issuing a new license.
(a) In determining whether a final
proposal for a new license under section 15 of the Federal Power Act is best
adapted to serve the public interest,

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§ 16.14

18 CFR Ch. I (4–1–12 Edition)

the Commission will consider the factors enumerated in sections 15(a)(2) and
(a)(3) of the Federal Power Act.
(b) If there are only insignificant differences between the final applications
of an existing licensee and a competing
applicant after consideration of the
factors enumerated in section 15(a)(2)
of the Federal Power Act, the Commission will determine which applicant
will receive the license after considering:
(1) The existing licensee’s record of
compliance with the terms and conditions of the existing license; and
(2) The actions taken by the existing
licensee related to the project which
affect the public.
(c) An existing licensee that files an
application for a new license in conjunction with an entity or entities that
are not currently licensees of all or
part of the project will not be considered an existing licensee for the purpose of the insignificant differences
provision of section 15(a)(2) of the Federal Power Act.

Subpart C—Takeover Provisions
for Projects Subject to Sections 14 and 15 of the Federal
Power Act

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§ 16.14 Departmental recommendation
for takeover.
(a) A Federal department or agency
may file a recommendation that the
United States exercise its right to take
over a hydroelectric power project with
a license that is subject to sections 14
and 15 of the Federal Power Act. The
recommendation must:
(1) Be filed no earlier than five years
before the license expires and no later
than the end of the comment period
specified by the Commission in:
(i) A notice of application for a new
license, a nonpower license, or an exemption for the project; or
(ii) A notice of an amendment to an
application for a new license, a
nonpower license, or an exemption;
(2) Be filed in accordance with the
formal requirements for filings in subpart T of part 385 of the Commission’s
regulations and be served on each relevant Federal and state resource agency, all applicants for new license,

nonpower license or exemption, and
any other party to the proceeding;
(3) Specify the project works that
would be taken over by the United
States;
(4) Describe the proposed Federal operation of the project, including any
plans for its redevelopment, and discuss the manner in which takeover
would serve the public interest as fully
as non-Federal development and operation;
(5) State whether the agency intends
to undertake the operation of the
project; and
(6) Include the information required
by §§ 4.41, 4.51, or 4.61 of this chapter, as
appropriate.
(b) A department or agency that files
a takeover recommendation becomes a
party to the proceeding.
(c) An applicant or potential applicant for a new license, a nonpower license, or an exemption that involves a
takeover recommendation may file a
reply to the recommendation, within
120 days from the date the takeover
recommendation is filed with the Commission. The reply must be filed with
the Commission in accordance with
part 385 of the Commission’s regulations and a copy of such a reply must
be served on the agency recommending
the takeover and on any other party to
the proceeding.
§ 16.15 Commission
to Congress.

recommendation

Upon receipt of a recommendation
from any Federal department or agency, a proposal of any party, or on the
Commission’s own motion, and after
notice and opportunity for hearing, the
Commission may determine that a
project may be taken over by the
United States, issue an order on its
findings and recommendations, and forward a copy to Congress.
§ 16.16 Motion for stay by Federal department or agency.
(a) Within 30 days of the date on
which an order granting a new license
or exemption is issued, a Federal department or agency that has filed a
takeover recommendation under § 16.14
may file a motion under § 385.212 of this

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Federal Energy Regulatory Commission
chapter to request a stay of the effective date of the license or exemption
order.
(b)(1) If a Federal department or
agency files a motion under paragraph
(a), the Commission will stay the effective date of the order issuing the license or exemption for two years.
(2) The stay issued under paragraph
(b)(1) of this section may be terminated
either:
(i) Upon motion of the department or
agency that requested the stay; or
(ii) By action of Congress.
(c) The Commission will notify Congress if:
(1) An order granting a stay under
paragraph (b)(1) of this section is
issued;
(2) Any license or exemption order
becomes effective by reason of the termination of a stay; or
(3) Any license or exemption order
becomes effective by reason of the expiration of a stay.
(d) The Commission’s order granting
the license or exemption will automatically become effective:
(1) Thirty days after issuance, if no
request for stay is filed, provided that
no appeal or rehearing is filed;
(2) When the period of the stay expires; or
(3) When the stay is terminated
under paragraph (b)(2) of this section.
[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 699, 72 FR 45324, Aug. 14,
2007]

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§ 16.17 Procedures upon Congressional
authorization of takeover.
If Congress authorizes the takeover
of a hydroelectric power project as provided under section 14 of the Federal
Power Act:
(a) The Commission or the Director
of the Office of Energy Projects will
notify the existing licensee in writing
of the authorization at least two years
before the takeover occurs; and
(b) The licensee must present any
claim for compensation to the Commission:
(1) Within six months of issuance of
the notice of takeover; and
(2) As provided in section 14 of the
Federal Power Act.

§ 16.18

Subpart D—Annual Licenses for
Projects Subject to Sections
14 and 15 of the Federal
Power Act
§ 16.18 Annual licenses for projects
subject to sections 14 and 15 of the
Federal Power Act.
(a) This section applies to projects
with licenses subject to sections 14 and
15 of the Federal Power Act.
(b) The Commission will issue an annual license to an existing licensee
under the terms and conditions of the
existing license upon expiration of its
existing license to allow:
(1) The licensee to continue to operate the project while the Commission
reviews any applications for a new license, a nonpower license, an exemption, or a surrender;
(2) The orderly removal of a project,
if the United States does not take over
a project and no new power or
nonpower license or exemption will be
issued; or
(3) The orderly transfer of a project
to:
(i) The United States, if takeover is
elected; or
(ii) A new licensee, if a new power or
nonpower license is issued to that licensee.
(c) An annual license issued under
this section will be considered renewed
automatically without further order of
the Commission, unless the Commission orders otherwise.
(d) In issuing an annual license, the
Commission may incorporate additional or revised interim conditions if
necessary and practical to limit adverse impacts on the environment.
[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 513–A, 55 FR 18, Jan. 2,
1990; Order 540, 57 FR 21738, May 22, 1992]

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§ 16.19

18 CFR Ch. I (4–1–12 Edition)

Subpart E—Projects With Minor
and Minor Part Licenses Not
Subject to Sections 14 and 15
of the Federal Power Act
§ 16.19 Procedures for an existing licensee of a minor hydroelectric
power project or of a minor part of
a hydroelectric power project with
a license not subject to sections 14
and 15 of the Federal Power Act.
(a) Applicability. This section applies
to an existing licensee of a minor hydroelectric power project or of a minor
part of a hydroelectric power project
that is not subject to sections 14 and 15
of the Federal Power Act.
(b) Notification procedures. (1) An existing licensee with a minor license or
a license for a minor part of a hydroelectric project must file a notice of intent pursuant to § 16.6(b).
(2) If the license of an existing licensee expires on or after October 17,
1994, the licensee must notify the Commission as required under § 16.6(b) at
least five years before the expiration of
the existing license.
(3) The Commission will give notice
of a licensee’s intent to file or not to
file an application for a subsequent license in accordance with § 16.6(d).
(c) Requirement to make information
available. (1) Except as provided in
paragraph (c)(2) of this section, a licensee must make the information described in § 16.7 available to the public
for inspection and reproduction when it
gives notice to the Commission under
paragraph (b).
(2) The requirement of paragraph
(c)(1) of this section does not apply if
an applicant filed an application for a
subsequent license on or before July 3,
1989.
[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 2002, 68 FR 51142, Aug. 25,
2003; Order 699, 72 FR 45324, Aug. 14, 2007]

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§ 16.20 Applications for subsequent license for a project with an expiring
license not subject to sections 14
and 15 of the Federal Power Act.
(a) Applicability. This section applies
to an application for subsequent license for a project with an expiring license that is not subject to sections 14
and 15 of the Federal Power Act.

(b) Licensing proceeding. (1) An applicant for a license for a project with an
expiring license not subject to sections
14 and 15 of the Federal Power Act
must file its application under Part I of
the Federal Power Act.
(2) The provisions of section 7(a) of
the Federal Power Act do not apply to
licensing proceedings involving an application described in paragraph (b)(1).
(c) Requirement to file. An applicant
must file an application for subsequent
license at least 24 months before the
expiration of the existing license.
(d) Requirements for and processing of
applications. An application for subsequent license must meet the requirements of, and will be processed in accordance with, §§ 16.5, 16.8, 16.9(b)(2),
16.9(b)(3), 16.9(b)(4), 16.9(c), and 16.9(d).
(e) Applicant notice. An applicant for
subsequent license or exemption that
proposes to expand an existing project
to encompass additional lands must include in its application a statement
that the applicant has notified, by certified mail, property owners on the additional lands to be encompassed by
the project and governmental agencies
and subdivisions likely to be interested
in or affected by the proposed expansion.
[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 2002, 68 FR 51142, Aug. 25,
2003]

§ 16.21 Operation of projects with a
minor or minor part license not
subject to sections 14 and 15 of the
Federal Power Act after expiration
of a license.
(a) A licensee of a minor or minor
part project not subject to sections 14
and 15 of the Federal Power Act that
has filed an application for a subsequent license or exemption may continue to operate the project in accordance with the terms and conditions of
the license after the minor or minor
part license expires until the Commission acts on its application.
(b) If the licensee of a minor or minor
part project not subject to sections 14
and 15 of the Federal Power Act has
not filed an application for a subsequent license or exemption, the Commission may issue an order requiring
the licensee to continue to operate its
project in accordance with the terms

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Federal Energy Regulatory Commission
and conditions of the license until the
Commission either acts on any applications for subsequent license timely
filed by another entity or takes action
pursuant to §§ 16.25 or 16.26.
§ 16.22 Application for an exemption
by a licensee with a minor or minor
part license for a project not subject to sections 14 and 15 of the
Federal Power Act.
(a) Applicability. This section applies
to an existing licensee with a license
for a project not subject to sections 14
and 15 of the Federal Power Act.
(b) Information requirements. An applicant for an exemption must meet the
requirements of, and will be processed
in accordance with, subpart K or subpart J of part 4 of this chapter, and
§§ 16.5, 16.8, 16.9(b)(2) (except the requirement to comply with §§ 4.41, 4.51,
or 4.61 of this chapter), §§ 16.9(b)(3),
16.9(b)(4), 16.9(c), and 16.9(d).
(c) Standard of comparison. If an application for subsequent license is filed in
competition with an application for exemption by an existing licensee, the
Commission will decide among competing applications in accordance with
the standards of § 16.13 and not in accordance with the provisions of
§ 4.37(d)(2) of this chapter.
[Order 513, 54 FR 23806, June 2, 1989, as
amended by Order 699, 72 FR 45324, Aug. 14,
2007]

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Subpart F—Procedural Matters
§ 16.23 Failure to file timely notices of
intent.
(a) An existing licensee of a water
power project with a license subject to
sections 14 and 15 of the Federal Power
Act that fails to file a notice of intent
pursuant to § 16.6(b) by the deadlines
specified in § l6.6(c) shall be deemed to
have filed a notice of intent indicating
that it does not intend to file an application for new license, nonpower license, or exemption.
(b) An existing licensee of a water
power project with a license not subject to sections 14 and 15 of the Federal
Power Act that fails to file a notice of
intent pursuant to § 16.6(b) by the deadlines specified in § 16.20(c) shall be
deemed to have filed a notice of intent
indicating that it does not intend to

§ 16.24
file an application for subsequent license or exemption.
§ 16.24 Prohibitions against filing applications
for
new
license,
nonpower license, exemption, or
subsequent license.
(a) Licenses subject to sections 14 and 15
of the Federal Power Act. (1) An existing
licensee with a license subject to sections 14 and 15 of the Federal Power
Act that informs the Commission that
it does not intend to file an application
for new license, nonpower license, or
exemption for a project, as required by
§ 16.6, may not file an application for
new license, nonpower license, or exemption for the project, either individually or in conjunction with an entity
or entities that are not currently licensees of the project.
(2) An existing licensee with a license
subject to sections 14 and 15 of the Federal Power Act that fails to file an application for new license, nonpower license, or exemption for a project at
least 24 months before the expiration of
the existing license for the project may
not file an application for new license,
nonpower license, or exemption for the
project, either individually or in conjunction with an entity or entities that
are not currently licensees of the
project.
(b) Licenses not subject to sections 14
and 15 of the Federal Power Act. (1) An
existing licensee with a license not
subject to sections 14 and 15 of the Federal Power Act that informs the Commission that it does not intend to file
an application for subsequent license
or exemption for a project, as required
by § 16.6, may not file an application for
subsequent license or exemption for
the project, either individually or in
conjunction with an entity or entities
that are not currently licensees of the
project.
(2) An existing licensee with a license
not subject to sections 14 and 15 of the
Federal Power Act that fails to file an
application for subsequent license or
exemption for a project by the deadlines specified in § 16.20(c) may not file
an application for subsequent license
or exemption for the project, either individually or in conjunction with an
entity or entities that are not currently licensees of the project.

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§ 16.25

18 CFR Ch. I (4–1–12 Edition)

§ 16.25 Disposition of a project for
which no timely application is filed
following a notice of intent to file.
(a) If an existing licensee that indicates in the notice filed pursuant to
§ 16.6 that it will file an application for
new license, nonpower license, subsequent license, or an exemption does not
file its application individually or in
conjunction with an entity or entities
that are not currently licensees of the
project at least 24 months before its existing license expires in the case of licenses subject to sections 14 and 15 of
the Federal Power Act, or by the deadlines specified in § 16.20(c) in the case of
licenses not subject to sections 14 and
15 of the Federal Power Act, and no
other applicant files an application
within the appropriate time or all
pending applications filed before the
applicable filing deadline are subsequently rejected or dismissed pursuant
to § 4.32 of this chapter, the Commission will publish in the FEDERAL REGISTER and once in a daily or weekly
newspaper published in the county or
counties in which the project or any
part thereof or the lands affected
thereby are situated, notice soliciting
applications from potential applicants
other than the existing licensee.
(b) A potential applicant that files a
notice of intent within 90 days from
the date of the public notice issued
pursuant to paragraph (a):
(1) May apply for a license under Part
I of the Federal Power Act and part 4
of this chapter (except § 4.38) within 18
months of the date on which it files its
notice; and
(2) Must comply with the requirements of § 16.8 and, if the project would
have a total installed capacity of over
2,000 horsepower, § 16.10.
(c) The existing licensee must file a
schedule for the filing of a surrender
application for the project, for the approval of the Director of the Office of
Energy Projects, 90 days:
(1) After the due date established for
any notice of intent issued under paragraph (a), if no notices of intent were
received; or
(2) After the due date for any application filed under paragraph (b)(1), if no
application has been filed.
(d) Any application for surrender
must be filed according to the approved

schedule, must comply with the requirements of § 16.8 and part 6 of this
chapter, and must provide for disposition of any project facility.
§ 16.26 Disposition of a project for
which no timely application is filed
following a notice of intent not to
file.
(a) If an existing licensee indicates in
the notice filed pursuant to § 16.6 that
it will not file an application for new
license, nonpower license, subsequent
license, or exemption and no other applicant files an application at least 24
months before the existing license expires in the case of licenses subject to
sections 14 and 15 of the Federal Power
Act, or by the deadlines specified in
§ 16.20(c) in the case of licenses not subject to sections 14 and 15 of the Federal
Power Act, the Director of the Office of
Energy Projects will provide the existing licensee with written notice that
no timely applications for the project
have been filed.
(b) The existing licensee, within 90
days from the date of the written notice provided in paragraph (a), must
file a schedule for the filing of a surrender application for the project for
the approval of the Director of the Office of Energy Projects.
(c) Any application for surrender
must be filed according to the approved
schedule, must comply with the requirements of § 16.8 and part 6 of this
chapter, and must provide for disposition of any project facility.

PART 20—AUTHORIZATION OF THE
ISSUANCE OF SECURITIES BY LICENSEES AND COMPANIES SUBJECT TO SECTIONS 19 AND 20 OF
THE FEDERAL POWER ACT
Sec.
20.1 Applicability.
20.2 Regulation of issuance of securities.
AUTHORITY: Secs. 3(16), 19, 20, 41 Stat. 1063,
1073; secs. 201, 309, 49 Stat. 838, 858; 16 U.S.C.
796 (16), 812, 813, 825k.
SOURCE: Order 170, 19 FR 2013, Apr. 8, 1954,
unless otherwise noted.

§ 20.1 Applicability.
(a) Without special proceeding for regulation. Every security issue within the
scope of the jurisdiction conferred upon

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