Title 18 Conservation of Power and Water Resources Part 400 to End

Revised as of April 1, 2012

Containing a codification of documents of general applicability and future effect

As of April 1, 2012

Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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Page Explanation ...... v

Title 18:

Chapter III—Delaware River Basin Commission ...... 3

Chapter VI—Water Resources Council ...... 51

Chapter VIII—Susquehanna River Basin Commission ...... 103

Chapter XIII—Tennessee Valley Authority ...... 141

Finding Aids:

Table of CFR Titles and Chapters ...... 297

Alphabetical List of Agencies Appearing in the CFR ...... 317

List of CFR Sections Affected ...... 327

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To cite the regulations in this volume use title, part and section number. Thus, 18 CFR 401.0 refers to title 18, part 401, section 0.

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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, April 1, 2012), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cutoff date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate Mar<15>2010 16:00 May 21, 2012 Jkt 226059 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Q:\18\18V2.TXT ofr150 PsN: PC150 Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. OBSOLETE PROVISIONS Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published in eleven separate volumes. For the period beginning January 1, 2001, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. ‘‘[RESERVED]’’ TERMINOLOGY The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ location at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that a portion of the CFR was left vacant and not accidentally dropped due to a printing or computer error. INCORPORATION BY REFERENCE What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law. What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are: (a) The incorporation will substantially reduce the volume of material published in the Federal Register. (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process. (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51. What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume. An index to the text of ‘‘Title 3—The President’’ is carried within that volume.

VerDate Mar<15>2010 16:00 May 21, 2012 Jkt 226059 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Q:\18\18V2.TXT ofr150 PsN: PC150 The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg- ister. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. REPUBLICATION OF MATERIAL There are no restrictions on the republication of material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd-numbered pages. For inquiries concerning CFR reference assistance, call 202–741–6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail [email protected]. SALES The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202- 512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2104, 24 hours a day. For payment by check, write to: US Government Printing Office – New Orders, P.O. Box 979050, St. Louis, MO 63197-9000. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers of the Presidents of the United States, Compilation of Presi- dential Documents and the Privacy Act Compilation are available in electronic format via www.ofr.gov. For more information, contact the GPO Customer Con- tact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s web site at www.archives.gov/federal-register.

MICHAEL L. WHITE, Acting Director, Office of the Federal Register. April 1, 2012.

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Title 18—CONSERVATION OF POWER AND WATER RESOURCES is composed of two volumes. The first volume containing parts 1—399, includes all current regulations of the Federal Energy Regulatory Commission, Department of Energy. The second volume, containing part 400 to end, includes all current regulations issued by the Delaware River Basin Commission, the Water Resources Council, the Sus- quehanna River Basin Commission, and the Tennessee Valley Authority as of April 1, 2012.

The OMB control numbers for the Federal Energy Regulatory Commission, De- partment of Energy, appear in § 389.101 of chapter I.

For this volume, Jonn Lilyea was Chief Editor. The Code of Federal Regula- tions publication program is under the direction of Michael L. White, assisted by Ann Worley.

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(This book contains part 400 to End)

Part

CHAPTER III—Delaware River Basin Commission ...... 401

CHAPTER VI—Water Resources Council ...... 701

CHAPTER VIII—Susquehanna River Basin Commission ...... 801

CHAPTER XIII—Tennessee Valley Authority ...... 1300

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SUBCHAPTER A—ADMINISTRATIVE MANUAL

Part Page 400 [Reserved] 401 Rules of practice and procedure ...... 5 410 Basin regulations; water code and administrative manual—Part III water quality regulations ...... 27 415 Basin regulations—flood plain regulations ...... 27 420 Basin regulations—water supply charges ...... 34

SUBCHAPTER B—SPECIAL REGULATIONS 430 Ground water protection area: Pennsylvania ...... 39

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PART 400 [RESERVED] 401.75 Protection of trade secrets; Confiden- tial information. 401.76 Failure to furnish report. PART 401—RULES OF PRACTICE 401.77 Informal conference. AND PROCEDURE 401.78 Consolidation of hearings.

Sec. Subpart F—Administrative and Other 401.0 Introduction. Hearings 401.81 Hearings generally. Subpart A—Comprehensive Plan 401.82 Authorization to conduct hearings. 401.1 Scope. 401.83 Hearing Officer. 401.2 Concept of the plan. 401.84 Hearing procedure. 401.3 Other agencies. 401.85 Staff and other expert testimony. 401.4 Project applications and proposed re- 401.86 Record of proceedings. visions and changes. 401.87 Assessment of costs; Appeals. 401.88 Findings, report and Commission re- 401.5 Review of applications. 401.6 Proposed revisions and changes. view. 401.89 Action by the Commission. 401.7 Further action. 401.90 Appeals from final Commission ac- 401.8 Public projects under Article 11 of the tion; Time for appeals. Compact. 401.9 Custody and availability. Subpart G—Penalties and Settlements in Subpart B—Water Resources Program Lieu of Penalties 401.21 Scope. 401.91 Scope of subpart. 401.22 Concept of the Program. 401.92 Notice to possible violators. 401.93 The record for decision-making. 401.23 Procedure. 401.94 Adjudicatory hearings. 401.24 Preparation and adoption. 401.95 Assessment of a penalty. 401.25 Alternatives for public projects. 401.96 Factors to be applied in fixing pen- 401.26 Inventory of other projects. alty amount. 401.97 Enforcement of penalties. Subpart C—Project Review Under Section 401.98 Settlement by agreement in lieu of 3.8 of the Compact penalty. 401.99 Suspension or modification of pen- 401.31 Scope. alty. 401.32 Concept of 3.8. 401.33 Administrative agreements. Subpart H—Public Access to Records and 401.34 Submission of project required. 401.35 Classification of projects for review Information under Section 3.8 of the Compact. 401.101 Policy on disclosure of Commission 401.36 Water supply projects—Conservation records. requirements. 401.102 Partial disclosure of records. 401.37 Sequence of approval. 401.103 Request for existing records. 401.38 Form of referral by State or Federal 401.104 Preparation of new records. agency. 401.105 Indexes of certain records. 401.39 Form of submission of projects not 401.106 FOIA Officer. requiring prior approval by State or Fed- 401.107 Permanent file of requests for Com- eral agencies. mission records. 401.40 Informal conferences and emer- 401.108 Filing a request for records. gencies. 401.109 Time limitations. 401.41 Limitation of approval. 401.110 Fees. 401.111 Waiver of fees. Subpart D [Reserved] 401.112 Exempt information. 401.113 Segregable materials. Subpart E—Appeals or Objections to Deci- 401.114 Data and information previously dis- sions of the Executive Director in Water closed to the public. Quality Cases 401.115 Discretionary disclosure by the Ex- ecutive Director. 401.71 Scope. 401.116 Disclosure to consultants, advisory 401.72 Notice and request for hearing. committees, State and local government 401.73 Form of request. officials, and other special government 401.74 Form and contents of report. employees.

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401.117 Disclosure to other Federal govern- for such reasonably foreseeable period ment departments and agencies. as the Commission may determine, bal- 401.118 Disclosure in administrative or anced by existing and proposed projects court proceedings. required to satisfy such needs. The 401.119 Disclosure to Congress. Commission’s review and modification Subpart I—General Provisions of the Water Resources Program is conducted pursuant to the provisions of 401.121 Definitions. Articles 3.2 and 13.2 of the Compact. 401.122 Supplementary details. (d) The Commission’s Rules of Prac- 401.123 Waiver of rules. 401.124 Construction. tice and Procedure govern the adoption and revision of the Comprehensive AUTHORITY: Delaware River Basin Compact Plan, the Water Resources Program, (75 Stat. 688), unless otherwise noted. the exercise of the Commission’s au- SOURCE: 39 FR 25474, July 11, 1974, unless thority pursuant to the provisions of otherwise noted. Article 3.8 and other actions of the Commission mandated or authorized by § 401.0 Introduction. the Compact. (a) The Delaware River Basin Com- (e) These Rules of Practice and Pro- pact requires the Commission to for- cedure extend to the following areas of mulate and adopt a Comprehensive Commission responsibility and regula- Plan and Water Resources Program. In tion: addition, the Compact provides in Sec- tion 3.8 that no project having a sub- Article 1—Comprehensive Plan. stantial effect on the water resources Article 2—Water Resources Program. Article 3—Project Review Under Section 3.8 of the Basin shall be undertaken unless of the Compact. it shall have been first submitted to Article 4—(Reserved). and approved by the Commission. The Article 5—Appeals or Objections to Decisions Commission is required to approve a of the Executive Director in Water Quality project whenever it finds and deter- Cases. mines that such project would not sub- Article 6—Administrative and Other Hear- stantially impair or conflict with the ings. Comprehensive Plan. Section 3.8 fur- Article 7—Penalties and Settlements in Lieu ther provides that the Commission of Penalties. shall provide by regulation for the pro- Article 8—Public Access to the Commission’s Records and Information. cedure of submission, review and con- Article 9—General Provisions. sideration of projects and for its determinations pursuant to Section 3.8. (f) These rules are subject to Com- (b) The Comprehensive Plan consists mission revision and modification from of all public and those private projects time to time as the Commission may and facilities which the Commission determine. The Commission reserves has directed be included therein. It also the right to waive any Rule of Practice includes those documents and policies and Procedure it determines should not which the Commission has determined be applicable in connection with any should be included with the Com- matter requiring Commission action. prehensive Plan as being needed to in- All actions by the Commission, how- sure optimum planning, development, ever, shall comply fully with the appli- conservation, use, management and cable provisions of the Compact. control of the water resources of the [62 FR 64154, Dec. 4, 1997] Delaware Basin to meet present and future needs. The Comprehensive Plan is subject to periodic review and revision Subpart A—Comprehensive Plan as provided in Sections 3.2 and 13.1 of the Compact. SOURCE: 62 FR 64154, Dec. 4, 1997, unless (c) The Water Resources Program is otherwise noted. based upon the Comprehensive Plan. It is required to be updated annually and § 401.1 Scope. to include a systematic presentation of This subpart shall govern the submis- the quantity and quality of water re- sion, consideration, and inclusion of sources needs of the area to be served projects into the Comprehensive Plan.

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§ 401.2 Concept of the plan. teration of previously included public (a) The Comprehensive Plan shall be projects may be submitted by signa- adopted, revised and modified as pro- tory parties and agencies or political vided in Sections 3.2 and 13.1 of the subdivisions thereof. Owners or spon- Compact. It is the Commission’s re- sors of privately owned projects may sponsibility to adopt the Comprehen- submit applications for the inclusion of sive Plan, after consultation with new private projects and the deletion water users and interested public bod- or alteration of previously included ies, for the immediate and long-range private projects in which the applicant development and uses of the water re- has an interest. The Commission may sources of the Basin. The Plan shall in- also receive and consider proposals for clude the public and private projects changes and additions to the Com- and facilities which the Commission prehensive Plan which may be sub- determines are required for the opti- mitted by any agency of the signatory mum planning, development, conserva- parties, or any interested person, orga- tion, utilization, management and con- nization, or group. Any application or trol of the water resources of the Basin proposal shall be submitted in such to meet present and future needs. In form as may be required by the Execu- addition to the included projects and tive Director to facilitate consider- facilities, the Comprehensive Plan con- ation by the Commission. sists of the statements of policies, and (b) Applications for projects shall in- programs that the Commission deter- clude at least the following informa- mines are necessary to govern the tion: proper development and use of the (1) Purpose or purposes, including River Basin. The documents within the quantitative measures of physical ben- Comprehensive Plan expressing the efit anticipated from the proposal; Commission’s policies and programs for the future, including the means for (2) The location, physical features carrying them out, may be set forth and total area required. through narrative text, maps, charts, (3) Forecast of the cost or effect on schedules, budgets and other appro- the utilization of water resources; priate means. (4) Relation to other parts of the ex- (b) Specific projects and facilities isting Comprehensive Plan; and statements of policy and programs (5) A discussion of conformance with may be incorporated, deleted or modi- Commission policies included in the fied from time to time to reflect chang- Comprehensive Plan; and ing conditions, research results and (6) A discussion of the alternatives new technology. The degree of detail considered. described in particular projects may vary depending upon the status of their § 401.5 Review of applications. development. Following staff study, examination, § 401.3 Other agencies. and review of each project application, the Commission shall hold a public Projects of the federal agencies affecting the water resources of the hearing upon notice thereon as pro- Basin, subject to the limitations in vided in paragraph 14.4(b) of the Com- Section 1.4 of the Compact, shall be pact and may take such action on a governed by Section 11.1 of the Com- project application as it finds to be ap- pact. Projects of the signatory states, propriate. their political subdivisions and public corporations affecting the water re- § 401.6 Proposed revisions and changes. sources of the Basin, shall be governed by the provisions of Section 11.2 of the Proposals for changes and additions Compact. to the Comprehensive Plan submitted by any agency of the signatory parties § 401.4 Project applications and pro- or any interested person, organization posed revisions and changes. or group shall identify the specific re- (a) Applications for inclusion of new vision or change recommended. In public projects and the deletion or al- order to permit adequate Commission

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consideration of any proposal, the Ex- open to examination during the regular ecutive Director may require such ad- business hours of the Commission, ditional information as may be needed. under such safeguards as the Executive Review or consideration of such pro- Director may determine to be nec- posals shall be based upon the rec- essary to preserve and protect the Plan ommendation of the Executive Direc- against loss, damage or destruction. tor and the further direction of the Copies of the Comprehensive Plan or Commission. any part or parts thereof shall be made available by the Executive Director for § 401.7 Further action. public sale at a price covering the cost The Commission will review the of production and distribution. Comprehensive Plan in its entirety at least once every six years from the Subpart B—Water Resources date of the initial adoption of the Com- Program prehensive Plan (March 28, 1962). Such review may include consideration of § 401.21 Scope. proposals submitted by the signatory This subpart shall govern the submis- parties, agencies or political subdivision, consideration and inclusion of sion thereof or other interested parties. projects into the Water Resources Pro- The amendments, additions, and dele- gram. tions adopted by the Commission will be compiled and the Plan as so revised § 401.22 Concept of the Program. shall be made available for public in- The Water Resources Program, as de- spection. fined and described in section 13.2 of the Compact, will be a reasonably de- § 401.8 Public projects under Article 11 of the Compact. tailed amplification of that part of the Comprehensive Plan which the Com- (a) After a project of any federal, mission recommends for action within state or local agency has been included the ensuing six-year period. That part in the Comprehensive Plan, no further of the Program consisting of a presen- action will be required by the Commis- tation of the water resources needs of sion or by the agency to satisfy the re- the basin will be revised only at such quirements of Article 11 of the Com- intervals as may be indicated to reflect pact, except as the Comprehensive Plan new findings and conclusions, based may be amended or revised pursuant to upon the Commission’s continuing the Compact and this part. Any project planning programs. which is changed substantially from the project as described in the Com- § 401.23 Procedure. prehensive Plan will be deemed to be a Each project included in the Water new and different project for the pur- Resources Program shall have been poses of Article 11 of the Compact. previously included in the Comprehen- Whenever a change is made the sponsor sive Plan, except that a project may be shall advise the Executive Director added to both the Plan and the Pro- who will determine whether the change gram by concurrent action of the Com- is deemed substantial within the mean- mission. The project’s sponsor shall ing of this part. furnish the following information prior (b) Any public project not having a to the inclusion of the project in the substantial effect on the water re- Water Resources Program: sources of the Basin, as defined in sub- (a) The Comprehensive Plan data part C of this part, may proceed with- brought up-to-date for the period of the out reference to Article 11 of the Com- Water Resources Program. pact. (b) Specific location and dimension of a structural project, and specific lan- § 401.9 Custody and availability. guage of a standard, policy or other The Comprehensive Plan shall be and non-structural proposal. remain in the custody of the Executive (c) The plan of operation of a struc- Director. The Plan, including all maps, tural project. charts, description and supporting data (d) The specific effects of a non-struc- shall be and remain a public record tural project.

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(e) Sufficient data to indicate a prehensive Plan. This section of the workable financial plan under which Compact provides: the project will be carried out. (f) A timetable for implementation. ‘‘No project having a substantial effect on the water resources of the basin shall hereafter be undertaken by any person, corpora- § 401.24 Preparation and adoption. tion or governmental authority unless it The Water Resources Program will be shall have been first submitted to and ap- prepared and considered by the Com- proved by the Commission, subject to the mission for adoption annually. Projects provisions of Sections 3.3 and 3.5. The Com- required to satisfy the basin needs dur- mission shall approve a project whenever it finds and determines that such project would ing the period covered by the Program not substantially impair or conflict with the may be classified as follows: Comprehensive Plan and may modify and ap- (a) ‘‘A’’ list. This shall include public prove as modified, or may disapprove any projects which require no further re- such project whenever it finds and deter- view, and inclusion in such list shall be mines that the project would substantially deemed to be approved for the purposes impair or conflict with such Plan. The Com- of section 3.8 of the Compact. mission shall provide by regulation for the (b) ‘‘B’’ list. This shall include public procedure of submission, review and consideration of projects, and for its determina- projects not included in the ‘‘A’’ list tions pursuant to this section. Any deter- and privately sponsored projects which mination of the Commission hereunder shall are proposed or anticipated by the be subject to judicial review in any court of Commission. competent jurisdiction.’’

§ 401.25 Alternatives for public § 401.33 Administrative agreements. projects. The Executive Director is authorized Any publc project which has been in- and directed to enter into cooperative cluded in the Comprehensive Plan but Administrative Agreements with fed- is not on the ‘‘A’’ list of the current eral and state regulatory agencies con- Water Resources Program, at the op- cerned with the review of projects tion of the sponsor, may be submitted under federal or state law as follows: for review and approval under section (a) To facilitate the submission and 3.8 of the Compact in accordance with review of applications and the deter- Subpart C of this part. minations required under Section 3.8 of the Compact; § 401.26 Inventory of other projects. (b) To avoid unnecessary duplication Each Water Resources Program will of staff functions and hearings required include, for information purposes only, by law; and an inventory of projects approved dur- (c) For such other and different pur- ing the previous year pursuant to sec- poses as he may deem feasible and ad- tion 3.8 of the Compact but which are vantageous for the administration of not part of the Comprehensive Plan or the Compact or any other law. Water Resources Program. § 401.34 Submission of project re- Subpart C—Project Review Under quired. Section 3.8 of the Compact Any project which may have a substantial effect on the water resources SOURCE: 62 FR 64155, Dec. 4, 1997, unless of the Basin, except as provided in otherwise noted. paragraph (d) of this section, shall be submitted to the Commission for a de- § 401.31 Scope. termination as to whether the project This subpart shall govern the submis- impairs or conflicts with the Com- sion and review of projects under Sec- prehensive Plan, as follows: tion 3.8 of the Delaware River Basin (a) Where the project is subject to re- Compact. view by a state or federal agency which has entered into an Administrative § 401.32 Concept of 3.8. Agreement with the Commission, such Section 3.8 is intended to protect and project will be referred to the Commis- preserve the integrity of the Com- sion in accordance with the terms of

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the Administrative Agreement, and ap- (1) The construction of new impound- propriate instructions will be prepared ments or the enlargement or removal and issued by the Executive Director of existing impoundments, for what- for guidance of project sponsors and ap- ever purpose, when the storage capac- plicants. ity is less than 100 million gallons; (b) Where no other state or federal (2) A withdrawal from ground water agency has jurisdiction to review and for any purpose when the daily average approve a project, or no Administrative gross withdrawal during any 30 con- Agreement is in force, the project spon- secutive day period does not exceed sor shall apply directly to the Commis- 100,000 gallons; sion. (3) A withdrawal from impoundments (c) Any project proposal, which may or running streams for any purpose have a substantial effect on the water when the daily average gross with- resources of the Basin, may be received drawal during any 30 consecutive day and reviewed by the staff informally in period does not exceed 100,000 gallons; conference with the project sponsor (4) The construction of new domestic during the preliminary planning phase sewage treatment facilities or alter- to assist the sponsor to develop the ation or addition to existing domestic project in accordance with the Com- sewage treatment facilities when the mission’s requirements. design capacity of such facilities is less than a daily average rate of 10,000 gal- (d) Whenever a project sponsored by lons per day in the drainage area to one of the signatory parties, or by any Outstanding Basin Waters and Signifi- agency, political subdivision or public cant Resource Waters or less than corporation thereof, has been included 50,000 gallons per day elsewhere in the in the Water Resources Program in the Basin; and all local sewage collector ‘‘A List’’ classification, the project, to systems and improvements discharging the extent of such inclusion and as de- into authorized trunk sewage systems; scribed in the Program, shall be (5) The construction of new facilities deemed approved for the purposes of or alteration or addition to existing fa- Section 3.8 of the Compact. cilities for the direct discharge to sur- (e) Whenever a project is subject to face or ground waters of industrial review and approval by the Commis- wastewater having design capacity of sion under this section, there shall be less than 10,000 gallons per day in the no substantial construction activity drainage area to Outstanding Basin thereon, including related preparation Waters and Significant Resource Wa- of land, unless and until the project ters or less than 50,000 gallons per day has been approved by the Commission; elsewhere in the Basin; except where provided, however, that this prohibi- such wastewater contains toxic con- tion shall not apply to the drilling of centrations of waste materials; wells for purposes of obtaining (6) A change in land cover on major geohydrologic data, nor to in-plant ground water infiltration areas when control and pretreatment facilities for the amount of land that would be al- pollution abatement. tered is less than three square miles; (7) Deepening, widening, cleaning or § 401.35 Classification of projects for dredging existing stream beds or relo- review under Section 3.8 of the cating any channel, and the placement Compact. of fill or construction of dikes, on (a) Except as the Executive Director streams within the Basin except the may specially direct by notice to the Delaware River and tidal portions of project owner or sponsor, or as a state tributaries thereto, and streams drain- or federal agency may refer under para- ing more than one state; graph (c) of this section, a project in (8) Periodic maintenance dredging; any of the following classifications will (9) Encroachments on streams within be deemed not to have a substantial ef- the Basin caused by: fect on the water resources of the (i) Floating docks and anchorages Basin and is not required to be sub- and buoys and navigational aids; mitted under Section 3.8 of the Com- (ii) Temporary construction such as pact: causeways, cofferdams and falsework

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required to facilitate construction on acres shall be subject to Commission permanent structures; review and action; (10) Bridges and highways unless they (i) Where neither a state nor a federal would pass in or across an existing or level review and permit system is in ef- proposed reservoir or recreation fect, and the Executive Director deter- project area as designated in the Com- mines that a project is of major re- prehensive Plan; gional or interstate significance re- (11) Liquid petroleum products pipe- quiring action by the Commission, or lines and appurtenances designed to op- (ii) When a Commissioner or the Ex- erate under pressures less than 150 psi; ecutive Director determines that the local electric distribution lines and ap- final action of a state or federal per- purtenances; local communication mitting agency may not adequately re- lines and appurtenances; local natural flect the Commission’s policy as to and manufactured gas distribution wetlands of the Basin. In the case of a lines and appurtenances; local water project affecting less than 25 acres for distribution lines and appurtenances; which there has been issued a state or and local sanitary sewer mains, unless federal permit, a determination to un- such lines would involve significant dertake review and action by the Com- disturbance of ground cover affecting mission shall be made no later than 30 water resources; days following notification of the Com- mission of such permit action. The Ex- (12) Electric transmission or bulk ecutive Director, with the approval of power system lines and appurtenances; the Chairman, may at any time within major trunk communication lines and the 30-day period inform any permit appurtenances; natural and manufac- holder, signatory party or other inter- tured gas transmission lines and appur- ested party that the Commission will tenances; major water transmission decline to undertake review and action lines and appurtenances; unless they concerning any such project; would pass in, on, under or across an (16) The diversion or transfer of existing or proposed reservoir or recre- water from the Delaware River Basin ation project area as designated in the (exportation) whenever the design ca- Comprehensive Plan; unless such lines pacity is less than a daily average rate would involve significant disturbance of 100,000 gallons; of ground cover affecting water re- (17) The diversion or transfer of sources; water into the Delaware River Basin (13) Liquid petroleum products pipe- (importation) whenever the design ca- lines and appurtenances designed to op- pacity is less than a daily average rate erate under pressures of more than 150 of 100,000 gallons except when the im- psi, unless they would pass in, on, ported water is wastewater; under or across an existing or proposed (18) The diversion or transfer of reservoir or recreation project area as wastewater into the Delaware River designated in the Comprehensive Plan, Basin (importation) whenever the de- or in, on, under or across any stream sign capacity is less than a daily aver- within the Basin; unless such lines age rate of 50,000 gallons; and would involve significant disturbance (19) Temporary or short term of ground cover affecting water re- projects determined to have non-sub- sources; stantial impact on the water resources (14) Landfill projects, unless no state- of the Basin by the Executive Director. level review and permit system is in ef- (b) All other projects which have or fect; broad regional consequences are may have a substantial effect on the anticipated; or the standards or cri- water resources of the Basin shall be teria used in state level review are not submitted to the Commission in ac- adequate to protect the water of the cordance with this part for determina- Basin for the purposes prescribed in the tion as to whether the project impairs Comprehensive Plan; or conflicts with the Comprehensive (15) Draining, filling or otherwise al- Plan. Among these are projects involv- tering marshes or wetlands when the ing the following (except as provided in area affected is less than 25 acres; pro- paragraph (a) of this section): vided; however, that areas less than 25 (1) Impoundment of water;

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(2) Withdrawal of ground water; water quality impact on waters classi- (3) Withdrawal of water from im- fied as Special Protection Waters. poundment or streams; (c) Whenever a state or federal agen- (4) Diversion of water into or out of cy determines that a project falling the Basin; within an excluded classification (as (5) Deepening or widening of existing defined in paragraph (a) of this section) stream beds, channels, anchorages, may have a substantial effect on the harbors or tuning basins, or the con- water resources of the Basin, such struction of new or enlarged channels, project may be referred by the state or anchorages, harbors or turning basins, federal agency to the Commission for or the dredging of the bed of any action under this part. stream or lake and disposal of the (d) Except as otherwise provided by dredged spoil, when the nature or loca- § 401.39 the sponsor shall submit an ap- tion of the project would affect the plication for review and approval of a quantity or quality of ground or sur- project included under paragraph (b) of face waters, or fish and wildlife habi- this section through the appropriate tat; agency of a signatory party. Such (6) Discharge of pollutants into sur- agency will transmit the application or face or ground waters of the Basin; a summary thereof to the Executive (7) Facilities designed to intercept Director, pursuant to Administrative and transport sewage to a common Agreement, together with available point of discharge; and pipelines and supporting materials filed in accord- electric power and communication ance with the practice of the agency of lines; the signatory party. (8) Facilities for the direct discharge to surface or ground waters of indus- § 401.36 Water supply projects—Con- trial wastewater; servation requirements. (9) Projects that substantially en- croach upon the stream or upon the Maximum feasible efficiency in the 100-year flood plain of the Delaware use of water is required on the part of River or its tributaries; water users throughout the Basin. Ef- (10) Change in land cover on major fective September 1, 1981 applications ground water infiltration areas; under Section 3.8 of the Compact for (11) Hydroelectric power projects, in- new water withdrawals subject to re- cluding pumped storage projects; view by the Commission shall include (12) Projects or facilities of Federal, and describe water-conserving prac- state and local agencies such as high- tices and technology designed to mini- ways, buildings and other public works mize the use of water by municipal, in- and improvements, affecting the water dustrial and agricultural users, as pro- and related land resources of the Basin; vided in this section. (13) Draining, filling or otherwise al- (a) Applications for approval of new tering marshes or wetlands; withdrawal from surface or ground (14) Regional wastewater treatment water sources submitted by a munici- plans developed pursuant to the Fed- pality, public authority or private eral Water Pollution Control Act; water works corporation whose total (15) Landfills and solid waste disposal average withdrawals exceed one mil- facilities affecting the water resources lion gallons per day shall include or be of the Basin; in reference to a program prepared by (16) State and local standards of flood the applicant consisting of the fol- plain regulation; lowing elements: (17) Electric generating or cogener- (1) Periodic monitoring of water dis- ating facilities designed to consump- tribution and use, and establishment of tively use in excess of 100,000 gallons a systematic leak detection and con- per day of water during any 30-day pe- trol program; riod; and (2) Use of the best practicable water- (18) Any other project that the Exec- conserving devices and procedures by utive Director may specially direct by all classes of users in new construction notice to the project sponsor or land or installations, and provision of infor- owner as having a potential substantial mation to all classes of existing users

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concerning the availability of water- determine the adequacy and complete- conserving devices and procedures; and ness of the applicant’s compliance with (3) A contingency plan including use these requirements and shall advise the priorities and emergency conservation Commission of their findings and con- measures to be instituted in the event clusions. of a drought or other water shortage condition. Contingency plans of public § 401.37 Sequence of approval. authorities or private water works cor- A project will be considered by the porations shall be prepared in coopera- Commission under Section 3.8 of the tion with, and made available to, all Compact either before or after any municipalities in the area affected by other state or federal review, in accord- the contingency plan, and shall be co- ance with the provisions of the Admin- ordinated with any applicable state- istrative Agreement applicable to such wide water shortage contingency plans. project. (b) Programs prepared pursuant to paragraph (a) of this section shall be § 401.38 Form of referral by State or subject to any applicable limitations of Federal agency. public utility regulations of the signatory party in which the project is lo- Upon approval by any State or Fed- cated. eral agency of any project reviewable (c) Applications for approval of new by the Commission under this part, if industrial or commercial water with- the project has not prior thereto been drawals from surface or ground water reviewed and approved by the Commis- sources in excess of an average of one sion, such agency shall refer the million gallons per day shall contain project for review under Section 3.8 of (1) A report of the water-conserving the Compact in such form and manner procedures and technology considered as shall be provided by Administrative by the applicant, and the extent to Agreement. which they will be applied in the devel- (a) The Commission will rely on the opment of the project; and appropriate agency in each state to re- (2) A contingency plan including view and regulate the potability of all emergency conservation measures to public water supplies. Applications be- be instituted in the event of a drought fore the Commission should address the or other water shortage. The report impact of the withdrawal, use and dis- and contingency plan shall estimate posal of water on the water resources the impact of the water conservation of the Basin. measures upon consumptive and non- (b) The Commission will rely on sig- consumptive water use by the appli- natory party reviews as much as pos- cant. sible and generally the Commission (d) Applications for approval of new will not review the performance stand- agricultural irrigation water with- ards of individual components of treat- drawals from surface or ground water ment processes but will require compli- sources in excess of one million gallons ance with all policies in the Com- per day shall include a statement of prehensive Plan including all applica- the operating procedure or equipment ble Water Quality Standards. to be used by the applicant to achieve the most efficient method of applica- § 401.39 Form of submission of projects tion of water and to avoid waste. not requiring prior approval by (e) Reports, programs and contin- State or Federal agencies. gency plans required under this section Where a project does not require ap- shall be submitted by the applicant as proval by any other State or Federal part of the permit application to the agency, or where such approval is re- state agency having jurisdiction over quired but an Administrative Agree- the project, or directly to the Commis- ment is not in force, the project shall sion in those cases where the project is be submitted directly to the Commis- not subject to the jurisdiction of a sion for review and determination of state agency. State agencies having ju- compatibility with the Comprehensive risdiction over a project that is subject Plan, in such form of application, with to the provisions of this section shall such supporting documentation, as the

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Executive Director may reasonably re- of the applicant, an informal con- quire for the administration of the pro- ference may be scheduled to explain, visions of the Compact. These shall in- supplement or review an application. clude without limitation thereto: (b) In the event of an emergency re- (a) Exhibits to accompany application. quiring immediate action to protect The application shall be accompanied the public interest or to avoid substan- by the following exhibits: tial and irreparable injury to any pri- (1) Abstract of proceedings author- vate person or property, and the cir- izing project, where applicable; cumstances do not permit a review, (2) General map showing specific lo- hearing and determination in the reg- cation and dimension of a structural ular course of the regulations in this project, or specific language of a stand- part, the Executive Director with the ard or policy in the case of a non-struc- approval of the chairman of the Com- tural proposal; mission may issue an emergency cer- (3) Section of the United States Geo- tificate authorizing an applicant to logical Survey topographic map show- take such action as the Executive Di- ing the territory and watershed af- rector may deem necessary and proper fected; in the circumstances, pending review, (4) Maps, drawings, specifications and hearing and determination by the Com- profiles of any proposed structures, or mission as otherwise required in this a description of the specific effects of a part. non-structural project; (5) Written report of the applicant’s § 401.41 Limitation of approval. engineer showing the proposed plan of (a) Approval by the Commission operation of a structural project; under this part shall expire three years (6) Map of any lands to be acquired or from the date of Commission action occupied; unless prior thereto the sponsor has ex- (7) Estimate of the cost of com- pended substantial funds (in relation to pleting the proposed project, and suffi- the cost of the project) in reliance upon cient data to indicate a workable fi- such approval. An approval may be ex- nancial plan under which the project tended or renewed by the Commission will be carried out; and upon application. (8) Analyses and conclusions of re- (b) Any application that remains dor- gional water supply and wastewater in- mant (no proof of active pursuit of ap- vestigations. provals) for a period of three years (b) Letter of transmittal. The applica- from date of receipt, shall be automati- tion shall be accompanied by a letter of cally terminated. Any renewed activity transmittal in which the applicant following that date will require sub- shall include a list of all enclosures, mission of a new application. the names and addresses to which communications may be directed to the ap- Subpart D [Reserved] plicant, and the names and addresses of the applicant’s engineer and counsel, if Subpart E—Appeals or Objections any. (c) Unless otherwise ordered by the to Decisions of the Executive Commission, two copies of the applica- Director in Water Qualtity tion and accompanying papers shall be Cases filed. If any application is contested, the Commission may require addi- SOURCE: 62 FR 64158, Dec. 4, 1997, unless tional copies of the application and all otherwise noted. accompanying papers to be furnished by the applicant. In such cases, cer- § 401.71 Scope. tified copies of photographic prints or This subpart shall apply to the re- reproduction may be used. view, hearing and decision of objections and issues arising as a result of § 401.40 Informal conferences and administrative actions and decisions emergencies. taken or rendered by the Executive Di- (a) Whenever the Executive Director rector under the Compact and the regu- shall deem necessary, or upon request lations in this chapter. Any hearings

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shall be conducted pursuant to the pro- information and the answers to such visions of subpart F of this part. questions as may be reasonably pertinent to the subject of the action or de- § 401.72 Notice and request for hear- termination under consideration. ing. (b) Waste loading. In cases involving The Executive Director shall serve objections to an allocation of the as- notice of an action or decision by him similative capacity of a stream, under the regulations in this chapter wasteload allocation for a point source, by personal service or certified mail, or load allocation for a new point return receipt requested. The affected source, the report shall be signed and discharger shall be entitled (and the verified by a technically qualified per- notice of action or decision shall so son having personal knowledge of the state) to show cause at a Commission facts stated therein, and shall include hearing why such action or decision such of the following items as the Ex- should not take effect. A request for ecutive Director may require: such a hearing shall be filed with the (1) A specification with particularity Secretary of the Commission not more of the ground or grounds for the objec- than 30 days after service of the Execu- tion; and failure to specify a ground for tive Director’s determination. Failure objection prior to the hearing shall to file such a request within the time foreclose the objector from thereafter limit shall be deemed to be an accept- asserting such a ground at the hearing; ance of the Executive Director’s deter- (2) A description of industrial proc- mination and a waiver of any further essing and waste treatment operational hearing. characteristics and outfall configura- [62 FR 64158, Dec. 4, 1997, as amended at 63 tion in such detail as to permit an FR 45943, Aug. 28, 1998] evaluation of the character, kind and quantity of the discharges, both treat- § 401.73 Form of request. ed and untreated, including the phys- (a) A request for a hearing may be in- ical, chemical and biological properties formal but shall indicate the name of of any liquid, gaseous, solid, radio- the individual and the address to which active, or other substance composing an acknowledgment may be directed. It the discharge in whole or in part; may be stated in such detail as the ob- (3) The thermal characteristics of the jector may elect. The request shall be discharges and the level of heat in flow; deemed filed only upon receipt by the (4) Information in sufficient detail to Commission. permit evaluation in depth of any in- (b) Whenever the Executive Director plant control or recovery process for determines that the request for a hear- which credit is claimed; ing is insufficient to identify the na- (5) The chemical and toxicological ture and scope of the objection, or that characteristics including the processes one or more issues may be resolved, re- and/or indirect discharges which may duced or identified by such action, he be the source of the chemicals or tox- may require the objector to prepare icity; and submit to the Commission, within (6) An analysis of all the parameters such reasonable time (not less than 30 that may have an effect on the days) as he may specify, a technical re- strength of the waste or impinge upon port of the facts relating to the objec- the water quality criteria set forth in tion prior to the scheduling of the the regulations in this chapter, includ- hearing. The report shall be required ing a determination of the rate of bio- by notice in writing served upon the chemical oxygen demand and the pro- objector by certified mail, return rejection of a first-stage carbonaceous ceipt requested, addressed to the per- oxygen demand; son or entity filing the request for (7) Measurements of the waste as hearing at the place indicated in the closely as possible to the processes request. where the wastes are produced, with the sample composited either contin- § 401.74 Form and contents of report. ually or at frequent intervals (one-half (a) Generally. A request for a report hour or, where permitted by the Execu- under this subpart may require such tive Director, one hour periods), so as

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to represent adequately the strength ignate. The purpose of such a con- and volume of waste that is discharged; ference shall be to resolve or narrow and the ground or grounds of the objec- (8) Such other and additional specific tions. technical data as the Executive Direc- tor may reasonably consider necessary § 401.78 Consolidation of hearings. and useful for the proper determination Following such informal conferences of a wasteload allocation. as may be held, to the extent that the [62 FR 64158, Dec. 4, 1997, as amended at 63 same or similar grounds for objections FR 45943, Aug. 28, 1998] are raised by one or more objectors, the Executive Director may in his dis- § 401.75 Protection of trade secrets; cretion and with the consent of the ob- Confidential information. jectors, cause a consolidated hearing to No person shall be required in such be scheduled at which two or more ob- report to divulge trade secrets or se- jectors asserting that ground may be cret processes. All information dis- heard. closed to any Commissioner, agent or employee of the Commission in any re- Subpart F—Administrative and port required by this part shall be confidential for the purposes of Section Other Hearings 1905 of Title 18 of the United States Code which provides: SOURCE: 62 FR 64159, Dec. 4, 1997, unless otherwise noted. Whoever, being an officer or employee of the United States or of any department or § 401.81 Hearings generally. agency thereof, publishes, divulges, discloses, or makes known in any manner or to (a) Scope of subpart. This subpart any extent not authorized by law any infor- shall apply to contested cases required mation coming to him in the course of his to be held under subparts C and E of employment or official duties or by reason of this part, to the conduct of other ad- any examination or investigation made by, ministrative hearings involving con- or return, report or record made to or filed tested cases and to proceedings which with, such department or agency or officer or employee thereof, which information con- Commission regulation or the Commis- cerns or relates to the trade secrets, proc- sion directs be conducted pursuant to esses, operations, style of work, or appa- this subpart. ratus, or to the identity, confidential statis- (b) Definition of contested case. ‘‘Con- tical data, amount or source of any income, tested case’’ means a proceeding in profits, losses, or expenditures of any person, which the legal rights, duties, obliga- firm, partnership, corporation or associa- tions, privileges, benefits or other legal tion; or permits any income return or copy relations of specific parties are in- thereof to be seen or examined by any persons except as provided by law; shall be fined volved. Such a proceeding may involve not more than $1,000 or imprisoned not more personnel matters, project applications than one year, or both; and shall be removed and docket decisions but shall not ex- from office or employment. June 25, 1948, tend to the review of any proposed or C.645, 62 Stat. 791. adopted rule or regulation of the Com- mission. § 401.76 Failure to furnish report. (c) Requests for hearings. Any person The Executive Director may, upon seeking a hearing to review the action five days’ notice to the objector dis- or decision of the Commission or the miss the request for a hearing as to Executive Director may request a hear- any objector who fails to file a coming pursuant to the provisions of this plete report within such time as shall subpart provided such a request is re- be prescribed in the Director’s notice. ceived by the Commission within thirty (30) days of the action or decision § 401.77 Informal conference. which is the subject of the requested Whenever the Executive Director hearing. Requests shall be submitted in deems it appropriate, he may cause an writing to the Secretary of the Com- informal conference to be scheduled be- mission and shall identify the specific tween an objector and such member of action or decision for which a hearing the Commission staff as he may des- is requested, the date of the action or

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decision, the interest of the person re- § 401.82 Authorization to conduct questing the hearing in the subject hearings. matter of the proposed hearing and a (a) Written requests for hearings. Upon summary statement setting forth the receipt of a written request for a hear- basis for objecting to or seeking review ing pursuant to this subpart, the Exec- of the action or decision. Any request utive Director shall review the record filed more than thirty days after an ac- available with regard to the action or tion or decision will be deemed un- decision for which a hearing is re- timely and such request for a hearing quested. Thereafter, the Executive Di- shall be considered denied unless the rector shall present the request for a Commission by unanimous vote other- hearing to the Commission for its con- wise directs. Receipt of requests for sideration. The Commission shall grant hearings, pursuant to this subpart, a request for a hearing pursuant to this whether timely filed or not, shall be subpart if it determines that an ade- submitted by the Secretary to the quate record with regard to the action Commissioners for their information. or decision is not available, the con- (d) Optional joint hearings. Whenever tested case involves a determination by designated by a department, agency or the Executive Director or staff which instrumentality of a signatory party, requires further action by the Commis- sion or that the Commission has found and within any limitations prescribed that an administrative hearing is nec- by the designation, a Hearing Officer essary or desirable. If the Commission designated pursuant to this subpart denies any request for a hearing in a may also serve as a Hearing Officer, ex- contested case, the party seeking such aminer or agent pursuant to such addi- a hearing shall be limited to such rem- tional designation and may conduct edies as may be provided by the Com- joint hearings for the Commission and pact or other applicable law or court for such other department, agency or rule. instrumentality. Pursuant to the addi- (b) Commission directed hearings. This tional designation, a Hearing Officer subpart shall be applicable to any pro- shall cause to be filed with the depart- ceeding which Commission regulation ment, agency or instrumentality mak- or the Commission directs be con- ing the designation, a certified copy of ducted in accordance with the provi- the transcript of the evidence taken be- sions, of this subpart. fore him and, if requested, of his findings and recommendations. Neither the § 401.83 Hearing Officer. Hearing Officer nor the Delaware River (a) Generally. Hearings shall be con- Basin Commission shall have or exer- ducted by one or more members of the cise any power or duty as a result of Commission, by the Executive Direc- such additional designation to decide tor, or by such other Hearing Officer as the merits of any matter arising under the Chairman may designate, except as the separate laws of a signatory party provided in paragraph (b) of this sec- (other than the Delaware River Basin tion. Compact). (b) Wasteload allocation cases. In cases (e) Schedule. The Executive Director involving the allocation of the assimi- shall cause the schedule for each hear- lative capacity of a stream: ing to be listed in advance upon a (1) The Executive Director shall ap- ‘‘hearing docket’’ which shall be posted point a hearing board of at least two in public view at the office of the Com- persons. One of them shall be nomi- mission. nated by the water pollution control (f) Notice of hearing. Notice of any agency of the state in which the dis- hearing to be conducted pursuant to charge originates, and he shall be chairman. The board shall have and ex- this subpart shall comply with the pro- ercise the powers and duties of a Hear- visions of Section 14.4(b) of the Com- ing Officer; pact relating to public notice unless (2) A quorum of the board for pur- otherwise directed by the Commission. poses of the hearing shall consist of two members; and

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(3) Questions of practice or procedure (5) Require briefs and oral arguments during the hearing shall be determined to the extent determined necessary by the Chairman. which shall be included as part of the record unless otherwise ordered by the § 401.84 Hearing procedure. Hearing Officer. (a) Participation in the hearing. In any § 401.85 Staff and other expert testi- hearing, the person requesting the mony. hearing shall be deemed an interested party and shall be entitled to partici- (a) Presentation on behalf of the Com- pate fully in the hearing procedure. In mission. The Executive Director shall addition, any person whose legal rights arrange for the presentation of testi- may be affected by the decision ren- mony by the Commission’s technical dered in a contested case shall be staff and other experts, as he may deemed an interested party. Interested deem necessary or desirable, to incorporate in the record or support the ad- parties shall have the right to be rep- ministrative action, determination or resented by counsel, to present evi- decision which is the subject of the dence and to examine and cross-exam- hearing. ine witnesses. In addition to interested (b) Expert witnesses. An interested parties, any persons having informa- party may submit in writing to the tion concerning a contested case or de- Hearing Officer the report and proposed siring to present comments concerning testimony of an expert witness. No ex- the subject matter of the Hearing for pert report or proposed testimony, inclusion in the record may submit a however, shall be included in the written statement to the Commission. record if the expert is not available for Any interested party may request the examination unless the report and pro- right to examine or cross-examine any posed testimony shall have been pro- person who submits a written state- vided to the Commission and all inter- ment. In the absence of a request for ested parties prior to the hearing and examination of such person, all written the Commission and interested parties statements submitted shall be included have waived the right of cross-exam- within the record and such statements ination. may be relied upon to the extent deter- (c) The Executive Director may des- mined by the Hearing Officer or the ignate for inclusion in the record those Commission. records of the Commission which the (b) Powers of the Hearing Officer. The Executive Director deems relevant to a Hearing Officer shall: decision in a contested case or to pro- (1) Rule upon offers of proof and the vide an understanding of applicable admissibility of evidence, regulate the Commission policies, regulations or course of the hearings, hold con- other requirements relating to the ferences for the settlement or sim- issues in the contested case. The des- plification of procedures or issues, and ignation of such Commission docu- shall schedule submission of documents shall be provided to all inter- ments, briefs and the time for the hear- ested parties prior to the hearing. ing. (2) Cause each witness to be sworn or § 401.86 Record of proceedings. to make affirmation. A record of the proceedings and evi- (3) Limit the number of times any dence at each hearing shall be made by witness may testify, limit repetitious a qualified stenographer designated by examination or cross-examination of the Executive Director. Where de- witnesses or the extent to which cor- manded by the applicant, objector, or roborative or cumulative testimony any other person who is a party to shall be accepted. these proceedings, or where deemed (4) Exclude irrelevant, immaterial or necessary by the Hearing Officer, the unduly repetitious evidence, but the in- testimony shall be transcribed. In terested parties shall not be bound by those instances where a transcript of technical rules of evidence and all rel- proceedings is made, two copies shall evant evidence of reasonably probative be delivered to the Commission. The value may be received. applicant, objector, or other persons

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who desire copies shall obtain them may file objections to the report with- from the stenographer at such price as in 20 days after the service upon him of may be agreed upon by the stenog- a copy of the report. A brief shall be rapher and the person desiring the filed together with any objections. The transcript. report of the Hearing Officer together with objections and briefs shall be § 401.87 Assessment of costs; Appeals. promptly submitted to the Commis- (a) Whenever a hearing is conducted sion. The Commission may require or under this subpart, the costs thereof, permit oral argument upon such sub- as defined in this subpart, shall be as- mission prior to its decision. sessed by the Hearing Officer to the (b) The Executive Director, in addi- party requesting the hearing unless ap- tion to any submission to the Hearing portioned between the interested par- Officer, may also submit to the Com- ties where cost sharing is deemed fair mission staff comments upon, or a re- and equitable by the Hearing Officer. sponse to, the Hearing Officer’s find- For the purposes of this section costs ings and report and, where appropriate, include all incremental costs incurred a draft docket or other recommended by the Commission, including, but not Commission action. Interested parties limited to, hearing examiner and ex- shall be served with a copy of such sub- pert consultants reasonably necessary mission and may have not less than ten in the matter, stenographic record, (10) days to respond before action by rental of a hearing room and other re- the Commission. lated expenses. (b) Upon scheduling of a matter for § 401.89 Action by the Commission. hearing, the Secretary shall furnish to (a) The Commission will act upon the the applicant and/or interested parties findings and recommendations of the a reasonable estimate of the costs to be Hearing Officer pursuant to law. incurred under this section. The appli- (b) Commission Counsel shall assist cant and/or interested parties may be the Commission with its review of the required to furnish security for such hearing record and the preparation of a costs either by cash deposit or by a Commission decision to the extent di- surety bond of a corporate surety au- rected to do so by the Chairman. thorized to do business in a signatory (c) The determination of the Com- state. mission will be in writing and shall be (c) An appeal of the assessment of filed together with any transcript of costs may be submitted in writing to the hearing, report of the Hearing Offi- the Commission within ten (10) days of cer, objections thereto, and all plans, the assessment. A copy of the appeal maps, exhibits and other papers, shall be filed with the Secretary and records or documents relating to the served on all interested parties. The fil- hearing. All such records, papers and ing of said appeal shall not stay the documents may be examined by any Hearing. person at the office of the Commission, and shall not be removed therefrom ex- § 401.88 Findings, report and Commis- cept temporarily upon the written sion review. order of the Secretary after the filing (a) The Hearing Officer shall prepare of a receipt therefor in form prescribed a report of his findings and rec- by the Secretary. Copies of any such ommendations. In the case of an objec- records and papers may be made in the tion to a waste load allocation, the office of the Commission by any per- Hearing Officer shall make specific son, subject to such reasonable safe- findings of a recommended allocation guards for the protection of the records which may increase, reduce or confirm as the Executive Director may require. the Executive Director’s determination. The report shall be served by per- § 401.90 Appeals from final Commis- sonal service or certified mail (return sion action; Time for appeals. receipt requested) upon each party to Any party participating in a hearing the hearing or its counsel unless all conducted pursuant to the provisions parties have waived service of the re- of this subpart may appeal any final port. The applicant and any objector Commission action. To be timely, such

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an appeal must be filed with an appro- tion of the Commission’s Compact or priate federal court, as provided in Ar- its rules, regulations and orders. ticle 15.1(p) of the Commission’s Com- (b) Presentation to the Commission. At pact, within forty-five (45) days of final the date set in the Notice, the possible Commission action. violator shall have the opportunity to supplement its written presentation Subpart G—Penalties and before the Commission by any oral Settlements in Lieu of Penalties statement it wishes to present and shall be prepared to respond to any questions from the Commission or its SOURCE: 52 FR 37602, Oct. 8, 1987, unless otherwise noted. staff or to the statements submitted by persons affected by the possible viola- § 401.91 Scope of subpart. tion. This subpart shall be applicable § 401.94 Adjudicatory hearings. where the Commission shall have information indicating that a person has (a) An adjudicatory hearing, which violated or attempted to violate any may be in lieu of or in addition to pro- provision of the Commission’s Compact ceedings pursuant to § 401.93 at which or any of its rules, regulations or or- testimony may be presented and docu- ders (hereafter referred to as possible ments received shall not be scheduled violator). For the purposes of this sub- unless: part, person shall include person, part- (1) The Executive Director deter- nership, corporation, business associa- mines that a hearing is required to tion, governmental agency or author- have an adequate record for the Com- ity. mission; or (2) The Commission directs that such § 401.92 Notice to possible violators. a hearing be held. Upon direction of the Commission (b) If an adjudicatory hearing is the Executive Director shall, and in all scheduled, the possible violator shall other instances, the Executive Director be given at least 14 days written notice may require a possible violator to show of the hearing date unless waived by cause before the Commission why a consent. Notice of such a hearing may penalty should not be assessed in ac- be given to the general public and the cordance with the provisions of these press in the manner provided in section rules and section 14.17 of the Compact. 14.4(b) of the Compact but may be The notice to the possible violator waived by the Executive Director. shall: (c) Except to the extent inconsistent (a) Set forth the date on which the with the provisions of this subpart ad- possible violator shall respond; and judicatory hearings shall be conducted (b) Set forth any information to be in accordance with the provisions of submitted or produced by the possible §§ 491.83 through 401.88 (including violator. § 401.86 et seq.).

§ 401.93 The record for decision-mak- § 401.95 Assessment of a penalty. ing. The Executive Director may rec- (a) Written submission. In addition to ommend to the Commission the the information required by the Com- amount of the penalty to be imposed. mission, any possible violator shall be Such a recommendation shall be in entitled to submit in writing any other writing and shall set forth the basis for information that it desires to make the penalty amount proposed. Based available to the Commission before it upon the record submitted to the Com- shall act. The Executive Director may mission, the Commission shall decide require documents to be certified or whether a violation has occurred that otherwise authenticated and state- justifies the imposition of a penalty ments to be verified. The Commission pursuant to § 14.17 of the Compact. If it may also receive written submissions is found that such a violation has oc- from any other persons as to whether a curred, the Commission shall deter- violation has occurred and the adverse mine the amount of the penalty to be consequences resulting from a viola- paid.

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§ 401.96 Factors to be applied in fixing ment in lieu of a penalty is in the best penalty amount. interest of the Commission, he may (a) Consideration shall be given to submit to the Commission a proposed the following factors in deciding the settlement agreement in lieu of a pen- amount of any penalty or any settle- alty. No settlement will be considered ment in lieu of penalty: by the Commission unless the possible (1) Previous violation, if any, of the violator has indicated to the Commis- Commission’s Compact and regula- sion acceptance of the terms of the tions; agreement and the intention to comply (2) Whether the violation was unin- with all requirements of the settlement tentional or willful and deliberate; agreement including payment of any (3) Whether the violation caused ad- settlement amount within the time pe- verse environmental consequences and riod provided. If the Commission deter- the extent of any harm; mines not to approve a settlement (4) The costs incurred by the Com- agreement, the Commission may pro- mission or any signatory party relat- ceed with a penalty action in according to the failure to comply with the ance with this subpart. Commission’s Compact and regulations; § 401.99 Suspension or modification of (5) The extent to which the violator penalty. has cooperated with the Commission in The Commission may postpone the correcting the violation and remedi- imposition of a penalty or provide for ating any adverse consequences or reconsideration of the penalty amount harm that resulted therefrom; and imposed pending correction of the con- (6) Whether the failure to comply dition that gave rise to the violation or with the Commission’s Compact and pending a satisfactory resolution of regulations was economically bene- any adverse consequences that resulted ficial to the violator. from the violation. (b) The Commission retains the right to waive any penalty or reduce the Subpart H—Public Access to amount of the penalty should it deter- Records and Information mine that, after consideration of the factors in paragraph (a) of this section, extenuating circumstances justify such AUTHORITY: 5 U.S.C. 552. action. SOURCE: 40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975, unless otherwise noted. § 401.97 Enforcement of penalties. Redesignated at 52 FR 37602, Oct. 8, 1987. Any penalty imposed by the Commis- sion shall be paid within 30 days or § 401.101 Policy on disclosure of Com- mission records. such further time period as shall be fixed by the Commission. The Execu- The Commission will make the full- tive Director and Commission counsel est possible disclosure of records to the are authorized to take such action as public, consistent with the rights of in- may be necessary to assure enforce- dividuals to privacy, the property ment of this subpart. If a proceeding rights of persons in trade secrets and before a court becomes necessary, the confidential commercial or financial action of the Commission in deter- information, and the need for the Com- mining a penalty amount shall con- mission to promote frank internal pol- stitute the penalty amount rec- icy deliberations and to pursue its reg- ommended by the Commission to be ulatory activities without disruption. fixed by the court pursuant to § 14.17 of the Compact. § 401.102 Partial disclosure of records. If a record contains both disclosable § 401.98 Settlement by agreement in and nondisclosable information, the lieu of penalty. nondisclosable information will be de- A possible violator may request set- leted and the remaining record will be tlement of a penalty proceeding by disclosed unless the two are so inex- agreement. If the Executive Director tricably intertwined that it is not fea- determines that settlement by agree- sible to separate them or release of the

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disclosable information would com- § 401.106 FOIA Officer. promise or impinge upon the The Executive Director shall des- nondisclosable portion of the record. ignate a Commission employee as the FOIA Officer. The FOIA Officer shall be § 401.103 Request for existing records. responsible for Commission compliance (a) Any written request to the Com- with the Freedom of Information Act mission for existing records not pre- and these regulations. All requests for pared for routine distribution to the agency records shall be sent in writing public shall be deemed to be a request to: for records pursuant to the Freedom of FOIA Officer Information Act, whether or not the Delaware River Basin Commission Freedom of Information Act is men- P.O. Box 7360 tioned in the request, and shall be gov- West Trenton, NJ 08628–0360 erned by the provisions of this part. (b) Records or documents prepared by [40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975. Redesignated at 52 FR 37602, Oct. 8, the Commission for routine public dis- 1987, as amended at 63 FR 45943, Aug. 28, 1998] tribution, e.g., pamphlets, speeches, public information and educational § 401.107 Permanent file of requests materials, shall be furnished free of for Commission records. charge upon request as long as the sup- The Commission shall maintain a ply lasts. The provisions of this part permanent file of all requests for Com- shall not be applicable to such remission records and all responses quests. thereto, incuding a list of all records (c) All existing Commission records furnished in response to a request. This are subject to routine destruction ac- file is available for public review dur- cording to standard record retention ing working hours. schedules. § 401.108 Filing a request for records. § 401.104 Preparation of new records. (a) All requests for Commission The Freedom of Information Act and records shall be filed in writing deliv- the provisions of this part apply only ered to the FOIA Officer, or by mailing to existing records that are reasonably it to the Commission. The Commission described in a request filed with the will supply forms for written requests. Commission pursuant to the proce- (b) A request for Commission records dures herein established. The Commis- shall reasonably describe the records sion shall not be required to prepare being sought, in a way that they can be new records in order to respond to a re- identified and located. A request quest for information. should include all pertinent details that will help identify the records § 401.105 Indexes of certain records. sought. A person requesting disclosure of records shall be permitted an oppor- (a) Indexes shall be maintained, and tunity to review them without the ne- revised at least quarterly, for the fol- cessity for copying them where the lowing Commission records: records involved contain only (1) Final opinions and orders made in disclosable data and information. the adjudication of cases. (1) If the description is insufficient to (2) Statements of policy and interpre- locate the records requested, the FOIA tation adopted by the Commission and Officer will so notify the person mak- still in force and not published in the ing the request and indicate the addi- FEDERAL REGISTER or official minutes tional information needed to identify of Commission meetings. the records requested. (3) Administrative staff manuals and (2) Every reasonable effort shall be instructions to staff that affect mem- made by the staff to assist in the iden- bers of the public. tification and location of the records (b) A copy of each such index is avail- sought. able at cost of duplication from the (3) In any situation in which it is de- FOIA Officer. termined that a request for voluminous

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records would unduly burden and inter- comply with the request, and, if any fere with the operations of the Com- records are denied, the reasons there- mission, the person making the request for. will be asked to be more specific and to (1) If all of the records requested have narrow the request, and to agree on an been located and a final determination orderly procedure for the production of has been made with respect to disclo- the requested records. sure of all of the records requested, the (c) Upon receipt of a request for letter shall so state. records, the FOIA Officer shall enter it (2) If all of the records have not been in a public log (which entry may con- located or a final determination has sist of a copy of the request). The log not yet been made with respect to dis- shall state the date and time received, closure of all of the records requested, the name and address of the person the letter shall state the extent to making the request, the nature of the which the records involved shall be dis- records requested, the action taken on closed pursuant to the rules estab- the request, the date of the determina- lished in this part. tion letter sent pursuant to § 401.99(b), (3) In the following unusual cir- the date(s) any records are subse- cumstances, the time for sending this quently furnished, the number of staff- letter may be extended by the Execu- hours and grade levels of persons who tive Director for up to an additional spent time responding to the request, ten (10) working days by written notice and the payment requested and re- to the person making the request set- ceived. ting forth the reasons for such exten- (d) A denial of a request for records, sion and the time within which a deter- in whole or in part, shall be signed by mination is expected to be dispatched: the FOIA Officer. The name and title (i) The need to search for and collect or position of each person who partici- the requested records from field facili- pated in the denial of a request for ties or other establishments that are records shall be set forth in a letter de- separate from the Commission’s Head- nying the request. This requirement quarters. may be met by attaching a list of such (ii) The need to search for, collect individuals to the letter. and appropriately examine a voluminous amount of separate and distinct § 401.109 Time limitations. records which are demanded in a single (a) All time limitations established request. pursuant to this section shall begin as (iii) The need for consultation, which of the time at which a request for shall be conducted with all practicable records is logged in by the FOIA Officer speed, with another agency having a pursuant to § 401.98(c). An oral request substantial interest in the determina- for records shall not begin any time re- tion of the request or among two or quirement. A written request for more components of the Commission records sent elsewhere within the Com- having substantial subject-matter in- mission shall not begin any time re- terest therein. quirement until it is redirected to the (c) If any record is denied, the letter FOIA Officer and is logged in accord- shall state the right of the person re- ance with § 401.98(c). A request that is questing such records to appeal any ad- expected to involve fees in excess of $50 verse determination to the Executive will not be deemed received until the Director of the Commission. Such an requester is promptly notified and appeal shall be filed within thirty (30) agrees to bear the cost or has so indi- days from receipt of the FOIA Officer’s cated on his request. determination denying the requested (b) Within ten (10) working days (ex- information (where the entire request cepting Saturdays, Sundays, and legal has been denied), or from the receipt of public holidays) after a request for any information made available pursu- records is logged by the FOIA Officer, ant to the request (where the request the record shall be furnished or a letter has been denied in part). Within twenty shall be sent to the person making the (20) working days (excepting Satur- request determining whether, or the days, Sundays, and legal public holi- extent to which, the Commission will days) after receipt of any appeal, or

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any authorized extension, the Execu- per quarter hour following the first tive Director or his designee shall quarter hour. These charges will be make a determination and notify the billed at the current, hourly paygrade appellant of his determination. If the rate (pro-rated for quarter hour incre- appeal is decided in favor of the appel- ments) of the personnel performing the lant the requested information shall be service. Administrative charges will be promptly supplied as provided in this in addition to any copying charges. part. If on appeal the denial of the re- (iii) Appointment rescheduling/can- quest for records is upheld in whole or cellation. Requesters that do not re- in part, the appellant shall be entitled schedule or cancel appointments to to appeal to the Commission at its next view files at least one full business day regular meeting. In the event that the in advance of the appointment may be Commission confirms the Executive subject to the administrative charges Director’s denial the appellant shall be incurred by the Commission in pre- notified of the provisions for judicial paring the requested records. The Com- review. mission will prepare an itemized in- (d) If the request for records will re- voice of these charges and mail it to sult in a fee of more than $25, deter- the requester for payment. mination letter under § 401.99 shall (2) Photocopying fees. The following specify or estimate the fee involved are charges for photocopies of public and may require prepayment, as well records made by Commission per- as payment of any amount not yet re- sonnel: ceived as a result of any previous re- (i) Standard sized, black and white cop- quest, before the records are made ies. The charge for copying standard available. If the fee is less than $25, sized, black and white public records prepayment shall not be required un- shall be $0.15 per printed page (i.e., sin- less payment has not yet been received gle-sided copies are $0.15 and double- for records disclosed as a result of a sided copies are $0.30). This charge ap- previous request. plies to copies on the following stand- (e) Whenever possible, the determina- ard paper sizes: tion letter required under § 401.99(b), re- (A) 8.5″ × 11″; lating to a request for records that in- (B) 8.5″ × 14″; volves a fee of less than $25.00, shall be (C) 11″ × 17″. accompanied by the requested records. (ii) Color copies/printouts. The charge Where this is not possible, the records for color copies or color printouts shall shall be forwarded as soon as possible be as follows: thereafter. For requests for records in- (A) 8.5″ × 11″—$1.00 per page; volving a fee of more than $25.00, the (B) 8.5″ × 14″—$1.50 per page; records shall be forwarded as soon as (C) 11″ × 17″—$2.00 per page; possible after receipt of payment. (D) The charge for all color copies larger than 11″ × 17″ (including, but not § 401.110 Fees. limited to: photographic imagery, GIS (a) Unless waived in accordance with print-outs, and maps) shall be cal- the provisions of § 401.111, the following culated at the rate of $2.50 per square fees shall be imposed for production of foot. any record pursuant to this part. (iii) Electronically generated records. (1) Administrative fees. (i) Charges for Charges for copying records main- administrative fees include staff time tained in electronic format will be cal- associated with: culated by the material costs involved (A) Processing FOIA requests; in generating the copies (including, but (B) Locating and reviewing files; not limited to: magnetic tape, disk- (C) Monitoring file reviews; ette, or compact disc costs) and admin- (D) Generating computer records istrative costs. (electronic print-outs); and (iv) Other copying fees. The Commis- (E) Preparing logs of records deemed sion, at its discretion, may arrange to non-public. have records copied by an outside con- (ii) Administrative charges will be tractor if the Commission does not calculated as follows: Administrative have the resources or equipment to charges will be billed to the requester copy such records. In this instance, the

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requester will be liable for payment of one’s business and is of a type custom- these costs. arily held in strict confidence or re- (3) Forwarding material to destination. garded as privileged and not disclosed Postage, insurance, and special fees to any member of the public by the will be charged on an actual cost basis. person to whom it belongs.) (b) No charge shall be made for the (d) Inter-agency or intra-agency time spent in resolving legal or policy memorandums or letters other than issues or in examining records for the purely factual compilations, which purpose of deleting nondisclosable por- would not be available by law to a tions thereof. party other than an agency in litiga- (c) Payment shall be made by check tion with the Commission; or money order payable to ‘‘Delaware (e) Personnel and medical files and River Basin Commission’’ and shall be similar files the disclosure of which sent to the FOIA Officer. would constitute a clearly unwarranted [40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. invasion of personal privacy; and 24, 1975. Redesignated at 52 FR 37602, Oct. 8, (f) Investigatory records compiled for 1987, as amended at 67 FR 56753, Sept. 5, 2002] law enforcement purposes, but only to the extent that the production of such § 401.111 Waiver of fees. records would (1) interfere with en- (a) No fee shall be charged for disclo- forcement proceedings, (2) deprive a sure of records pursuant to this part person of a right to a fair trial or an where: impartial adjudication, (3) constitute (1) The records are requested by a an unwarranted invasion of personal congressional committee or sub- privacy, (4) disclose the identity of a committee or the General Accounting confidential source, (5) disclose inves- Office. tigative techniques and procedures, or (2) The records are requested by an (6) endanger the life or physical safety agency of a signatory party. of law enforcement personnel. (3) The records are requested by a court of competent jurisdiction. [40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. (4) The records are requested by a 24, 1975. Redesignated at 52 FR 37602, Oct. 8, 1987, as amended at 63 FR 45943, Aug. 28, 1998] state or local government having jurisdiction thereof. § 401.113 Segregable materials. (b) No fee shall be charged if a record requested is not found or for any record Any reasonably segregable portion of that is totally exempt from disclosure. a record shall be provided to any person requesting such record after dele- § 401.112 Exempt information. tion of the portions which are exempt The following materials and informa- under this part, except as provided in tion covered by this part shall be ex- § 401.92. empt from disclosure; that is, information that is: § 401.114 Data and information previously disclosed to the public. (a) Related solely to the internal personnel matters of the Commission; Any Commission record that is oth- (b) Specifically exempted from dis- erwise exempt from public disclosure closure by statute; pursuant to this part is available for (c) Trade secrets and commercial or public disclosure to the extent that it financial information obtained from a contains data or information that have person and privileged or confidential. previously been disclosed in a lawful (For purposes of this section a trade se- manner to any member of the public, cret may consist of any formula, pat- other than an employee or consultant tern, device, or compilation of informa- or pursuant to other commercial ar- tion which is used in one’s business and rangements with appropriate safe- which gives him an opportunity to ob- guards for secrecy. tain an advantage over competitors who do not know or use it. Commercial § 401.115 Discretionary disclosure by or financial information that is privi- the Executive Director. leged or confidential means valuable (a) The Executive Director may, in data or information which is used in his discretion, disclose part or all of

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any Commission record that is other- with the written permission of the wise exempt from disclosure pursuant Commission. to this part. The Executive Director shall exercise his discretion to disclose § 401.118 Disclosure in administrative such records whenever he determines or court proceedings. that such disclosure is in the public in- Data and information otherwise ex- terest, will promote the objectives of empt from public disclosure may be re- the Commission, and is consistent with vealed in Commission administrative the rights of individuals to privacy, the or court proceedings where the data or property rights of persons in trade se- information are relevant. The Commis- crets, and the need for the Commission sion will request that the data or infor- to promote frank internal policy delib- mation be held in camera and that any erations and to pursue its regulatory other appropriate measures be taken to activities without disruption. reduce disclosure to the minimum nec- (b) Discretionary disclosure of a essary under the circumstances. record pursuant to this section shall invoke the requirement that the record § 401.119 Disclosure to Congress. shall be disclosed to any person who re- All records of the Commission shall quests it pursuant to § 401.98, but shall be disclosed to Congress upon an au- not set a precedent for discretionary thorized request. disclosure of any similar or related record and shall not obligate the Exec- utive Director to exercise his discre- Subpart I—General Provisions tion to disclose any other record that is exempt from disclosure. SOURCE: 40 FR 14059, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975, unless otherwise noted. § 401.116 Disclosure to consultants, ad- Redesignated at 52 FR 37602, Oct. 8, 1987. visory committees, State and local government officials, and other spe- § 401.121 Definitions. cial government employees. For the purposes of this part, except Data and information otherwise ex- as the context may otherwise require: empt from public disclosure may be (a) All words and phrases which are disclosed to Commission consultants, defined by section 1.2 of the Compact advisory committees, state and local shall have the same meaning herein. government officials, and other special government employees for use only in (b) Words and phrases which are de- their work in cooperation with the fined by part I of the Administrative Commission. Such persons are there- Manual (section 1–3) shall have the after subject to the same restrictions same meaning for the purposes of this with respect to the disclosure of such part 401. data and information as any other (c) Application shall mean a request Commission employee. for action by the Commission in any written form, including without limita- § 401.117 Disclosure to other Federal tion thereto, a letter, referral by any government departments and agen- agency of a signatory party, or an offi- cies. cial form prescribed by the Commis- Any Commission record otherwise ex- sion; provided that whenever an official empt from public disclosure may be form of application has been duly re- disclosed to other Federal Government quired, an application shall not be departments and agencies, except that deemed to be pending before the Com- trade secrets may be disclosed only to mission until such time as such form, a department or agency that has con- together with the information required current jurisdiction over the matter thereby, has been completed and filed. and separate legal authority to obtain (d) Applicant shall mean any sponsor the specific information involved. Any or other person who has submitted an disclosure under this section shall be application to the Commission. pursuant to an agreement that the (e) Sponsor shall mean any person au- record shall not be further disclosed by thorized to initiate, construct or ad- the other department or agency except minister a project.

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§ 401.122 Supplementary details. code consists of portions of Article IV of the water quality regulations. Forms, procedures and supple- (c) Work, services, activities and fa- mentary information, to effectuate cilities affecting the conservation, uti- these regulations, may be provided or lization, control, development or man- required by the Executive Director as agement of water resources within the to any hearing, project or class of Delaware River Basin are subject to projects. regulations contained within the Dela- § 401.123 Waiver of rules. ware River Basin Water Code with Amendments Through December 8, 2010 The Commission may, for good cause and the Administrative Manual—Part shown, waive rules or require addi- III Water Quality Regulations with tional information in any case. Amendments Through December 8, 2010. Both the Delaware River Basin § 401.124 Construction. Water Code and the Administrative This part is promulgated pursuant to Manual part III Water Quality Regula- section 14.2 of the Compact and shall be tions are incorporated by reference construed and applied subject to all of into this part with the approval of the the terms and conditions of the Com- Director of the Federal Register under pact and of the provisions of section 5 U.S.C. 552(a) and 1 CFR part 51. You 15.1 of Pub. L. 87–328, 75 Stat. 688. may obtain or inspect a copy at the Delaware River Basin Commission PART 410—BASIN REGULATIONS; (DRBC), 25 State Police Drive, West WATER CODE AND ADMINISTRA- Trenton, New Jersey 08628–0360, 609–883– TIVE MANUAL—PART III WATER 9500, http://www.drbc.net, or at the Na- tional Archives and Records Adminis- QUALITY REGULATIONS tration (NARA). For information on the availability of this material at AUTHORITY: Delaware River Basin Com- NARA, call 202–741–6030 or go to http:// pact, 75 Stat. 688. www.archives.gov/federallregister/ codeloflfederallregulations/ § 410.1 Basin regulations—Water Code ibrllocations.html. and Administrative Manual—Part III Water Quality Regulations. [73 FR 55750, Sept. 26, 2008, as amended at 74 FR 60155, Nov. 20, 2009; 76 FR 16285, Mar. 23, (a) The Water Code of the Delaware 2011] River Basin is a codification of regulations of the Delaware River Basin Com- PART 415—BASIN REGULATIONS— mission applicable to public and private water projects and programs with- FLOOD PLAIN REGULATIONS in the Delaware River Basin. Article I of the water code sets forth general GENERALLY policies of the Commission. Article II Sec. concerns the conservation, develop- 415.1 Short title. ment and utilization of Delaware River 415.2 Definitions. 415.3 Purpose and findings. Basin water resources, including during periods of drought. Article III sets TYPES OF PROJECTS AND JURISDICTION forth water quality standards and 415.20 Class I projects. guidelines for the Delaware River 415.21 Class II projects. Basin. Article IV contains rules relating to application of water quality STANDARDS standards within the Basin. The Com- 415.30 Regulations generally. mission’s Administrative Manual— 415.31 Prohibited uses. Part III, Water Quality Regulations, 415.32 Permitted uses generally. applies to all public and private enti- 415.33 Uses by special permit. ties that discharge waste to waters of ADMINISTRATION the Delaware River Basin. 415.40 Administrative agency. (b) Article III of the water code con- 415.41 Special permits. sists of Article III of the water quality 415.42 Technical standards. regulations. Article IV of the water 415.43 Mapped and unmapped delineations.

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ENFORCEMENT Project means the same word as de- 415.50 General conditions. fined by section 1.2(g) of the Delaware 415.51 Prior non-confirming structures. River Basin Compact. 415.52 Violations. Floodway means the channel of the AUTHORITY: Pub. L. 87–328 (75 Stat. 688). watercourse and those portions of the SOURCE: 42 FR 13541, Mar. 11, 1977, unless adjoining flood plains which are rea- otherwise noted. sonably required to carry and discharge the regulatory flood. For this GENERALLY purpose the limit of the floodway shall be established by allowing not more § 415.1 Short title. than a one-foot rise of the water sur- This part shall be known and may be face elevation of the regulatory flood cited as the ‘‘Flood Plain Regula- as a result of encroachment. Wherever tions.’’ practical, equal conveyance reduction § 415.2 Definitions. from each side of the flood plain shall be used. (See Figure 1.) For the purposes of this part, except as otherwise required by the context:

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Flood fringe means that portion of the Flood plain means the area adjoining flood hazard area outside the floodway. the channel of a stream which has been Flood hazard area means the area in- or hereafter may be covered by flood undated by the regulatory flood. water.

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Floodproofing means any combination (3) The requirements of a facility for of structural and nonstructural addi- a waterfront location. tions, changes, or adjustments to prop- (b) In order to protect the public in- erties and structures which reduce or terest, the following principles and eliminate flood damage to lands, water goals have been determined: and sanitary facilities, structures, and (1) The overall goal is prudent land contents of buildings. use within the physical and environ- Flood protection elevation means one mental constraints of the site. foot above the elevation of the flood (2) The principle of equal and uniform that has a one percent chance of occur- treatment shall apply to all flood plain ring in any one year. (The 100-year users who are similarly situated. flood). (3) Flood plain use shall not result in Major tributary means the mainstem nuisance to other properties. of the following streams: (4) Flood plain use shall not threaten PENNSYLVANIA public safety, health and general wel- Brandywine Creek, Brodhead Creek, Big fare. Bushkill Creek, Lackawaxen, Lehigh, (5) Future land uses in private flood Schuylkill, Neshaminy. plains shall not result in public expense to protect the property and asso- DELAWARE ciated public services from flood dam- Brandywine Creek, Christina. age.

NEW YORK (6) All future public and private flood plain users shall bear the full direct East Branch, Mongaup, Neversink, West and indirect costs attributable to their Branch. use and actions. NEW JERSEY (7) Restrictions on flood plain use, Assunpink, Musconetcong, Paulins Kill, and flood hazard information shall be Rancocas, Pequest. widely publicized. (8) Land and water use regulations of Official flood plain map means a map responsible units of government shall showing the flood plain area of a com- not impair or conflict with the flood munity prepared pursuant to the Na- plain use standards duly adopted for tional Flood Insurance Act, or a map the basin, except as provided for in recognized by the Executive Director as meeting equivalent hydraulic or en- § 415.42(a) of this part. gineering criteria. (9) Plans for land and water use Regulatory flood means the flood adopted by responsible agencies shall which has a one percent chance of oc- not impair or conflict with these flood curring in any one year. (The 100-year plain use standards. flood.) (10) No action of any unit of govern- Structure means any assembly of ma- ment shall impair or conflict with terial above or below the surface of these flood plain use standards. land or water, including but not limited to, buildings, dams, fills, levees, TYPES OF PROJECTS AND JURISDICTION bulkheads, dikes, jetties, embank- § 415.20 Class I projects. ments, causeways, culverts, roads, railroads and bridges. Projects described in paragraphs (a) and (b) of this section shall be subject § 415.3 Purpose and findings. to review by the Commission under (a) The Commission hereby finds and standards provided by this section and determines that the use of flood plains in accordance with the provisions of is affected with a public interest due §§ 415.30 through 415.33 of this part, as to: follows: (1) The danger to life and property (a) All projects subject to review by due to increased flood heights or ve- the Commission under section 3.8 of locities caused by encroachments. the Compact and the regulations there- (2) The danger that materials may be under. swept onto other lands or downstream (b) State and local standards of flood to the injury of others. plain regulation.

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§ 415.21 Class II projects. (1) Stockpiling or disposal of pes- Class II projects, subject to review in ticides, domestic or industrial waste, accordance with §§ 415.40 through 415.43 radioactive materials, petroleum prod- of this part, include all projects other ucts or hazardous material which, if than Class I projects, in non-tidal areas flooded, would pollute the waters of the of the basin, which involve either: basin. (a) A development of land, either res- (2) Any use which will adversely af- idential or non-residential within a fect the capacity of channels or flood hazard area which: floodways of any tributary to the main (1) Includes one or more structures stream, drainage ditch, or any other covering a total land area in excess of drainage facility. 50,000 square feet; or (2) Contains in excess of 25 residen- § 415.32 Permitted uses generally. tial building lots or 25 dwelling units (a) Within the floodway, the fol- as part of an integrated development lowing uses are permitted to the extent plan whether or not such development that they do not require structures, fill is included in a single application; or or storage of materials or permanently (b) A development of land in the flood installed equipment, and do not ad- hazard area to mine, manufacture, versely affect the capacity of the process, store or dispose of materials floodway: which, if flooded, would pollute the wa- (1) Agricultural uses such as general ters of the basin or threaten damage to off-site areas, including, without limi- farming, livestock, and dairy farming, tation thereto, materials which are horticulture, truck farming, sod farm- poisonous, radioactive, biologically un- ing, forestry, wild crop harvesting, and desirable or floatable. normal operating practices associated therewith. STANDARDS (2) Industrial-commercial uses such as loading areas, parking areas and air- § 415.30 Regulations generally. port landing strips. The uses of land within a flood haz- (3) Private and public recreational ard area shall be subject to regulation uses such as golf courses, driving within one of the following categories: ranges, archery ranges, picnic grounds, (a) Prohibited uses; boat launching ramps, swimming (b) Permitted uses generally; areas, parks, wildlife and nature pre- (c) Uses by special permit. serves, game farms, shooting preserves, target ranges, trap and skeet ranges, § 415.31 Prohibited uses. hunting and fishing areas, hiking and (a) Within the floodway, except as horseback riding trails. permitted by special permit, the fol- (4) Uses such as lawns, gardens, park- lowing uses are prohibited: ing areas and play areas. (1) Erection of any structure for oc- (b) Within the flood fringe, the fol- cupancy at any time by humans or ani- lowing uses are permitted: mals. (1) Any use permitted in the (2) Placing, or depositing, or dumping floodway. any spoil, fill or solid waste. (2) Residences and other structures (3) Stockpiling or disposal of pes- constructed so that the first floor, in- ticides, domestic or industrial waste, radioactive materials, petroleum prod- cluding basement, is above the Flood ucts or hazardous material which, if Protection Elevation. When fill is used flooded, would pollute the waters of the the finished fill elevation shall be no basin. lower than the Flood Protection Ele- (4) The storage of equipment or of vation for the particular area and shall buoyant materials, except for purposes extend at least 15 feet beyond the lim- of public safety. its of any structure or building erected (b) Within the flood fringe, except as thereon. permitted by special permit, the following uses are prohibited:

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§ 415.33 Uses by special permit. lots may have lesser protection subject (a) Within the floodway the following to the flood warning requirements set uses by special permit may be author- out in 2 above. ized under the standards hereinafter (4) Utilities, railroad tracks, streets and provided: bridges. Public utility facilities, roads, (1) Uses or structures accessory to railroad tracks and bridges shall be de- open space use. signed to minimize increases in flood (2) Circuses, carnivals and similar elevations and shall be compatible transient enterprises. with local comprehensive flood plain (3) Drive-in theaters, signs and bill- development plans to the extent appli- boards. cable. Protection to the Flood Protec- (4) Extraction of sand, gravel and tion Elevation shall be provided where other non-toxic materials. failure or interruption of these public (5) Marinas, boat liveries, docks, facilities would result in danger to the piers, wharves and water control struc- public health or safety, or where such tures. facilities are essential to the orderly (6) Fish hatcheries. functioning of the area. Where failure (7) Railroads, streets, bridges, utility or interruption of service would not en- transmission lines and pipelines. danger life or health, a lesser degree of (b) Within the flood fringe the fol- protection may be provided for minor lowing uses by special permit may be or auxiliary roads, railroads or utili- authorized under standards hereinafter ties. provided: (5) Water supply and waste treatment. (1) Non-residential uses generally. No new construction, addition or modi- Structures other than residence shall fication of a water supply or waste ordinarily be elevated as herein pro- treatment facility shall be permitted vided but may in special circumstances unless the lowest operating floor of be otherwise flood proofed to a point such facility is above the Flood Protec- above the Flood Protection Elevation. tion Elevation, or the facility is flood (2) Commercial uses. Commercial proofed according to plans approved by structures shall be elevated so that no the Commission, nor unless emergency first floor or basement floor is below plans and procedures for action to be the Flood Protection Elevation; or taken in the event of flooding are pre- such structures may be flood proofed to pared. Plans shall be filed with the the Flood Protection Elevation. Acces- Delaware River Basin Commission and sory land uses, such as yards, railroad tracks and parking lots may be at the concerned state or states. The lower elevations. However, a permit for emergency plans and procedures shall such facilities to be used by the general provide for measures to prevent intro- public shall not be granted in the ab- duction of any pollutant or toxic mate- sence of a flood warning system, if the rial into the flood water or the intro- area is inundated to a depth greater duction of flood waters into potable than two feet or subject to flood veloci- supplies. ties greater than four feet per second ADMINISTRATION upon the occurrence of the Regulatory Flood. § 415.40 Administrative agency. (3) Manufacturing and industrial uses. Manufacturing and industrial build- (a) Class I projects as defined by ings, structures, and appurtenant § 415.20 of this part shall be subject to works shall be elevated so that no first review and approval by the Commis- floor or basement floor is below the sion. Flood Protection Elevation; or such (b) Class II projects as defined by structures may be flood proofed to the § 415.21 shall be subject to review and Flood Protection Elevation. Measures approval by a duly empowered state or shall be taken to minimize flood water local agency; and if there be no such interference with normal plant oper- state or local agency at any time on ations especially for streams having and after January 1, 1978, and only dur- protracted flood durations. Certain ac- ing such time, the Commission may re- cessory land uses as yards and parking view any such project which has been

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identified by the Executive Director as (6) Degrade significantly the quality having special flood hazards, and: of surface water or the quality or quan- (1) Is located along the mainstem tity of ground water. Delaware River or a major tributary (7) Be susceptible to flotation. thereof, or (8) Have service facilities installed (2) An agency of a signatory party re- below the elevation of the regulatory quests such review. flood without being adequately flood § 415.41 Special permits. proofed. A special permit may be granted, or § 415.42 Technical standards. granted on stated conditions, provided: (a) There is a clear balance in favor (a) Standards used by state and local of the public interest in terms of the governments shall conform in principle following environmental criteria: to Commission standards but may vary (1) The importance of a facility to in detail provided that resulting flood the community. plain use will not be less restrictive (2) The availability of alternative lo- than would result from the application cations not subject to flooding for the of Commission standards. The Commis- proposed use. sion will review proposed state and (3) The compatibility of the proposed local flood plain regulations to deter- use with existing development and de- mine their compliance with Commis- velopment anticipated in the foresee- sion standards. able future. (b) Because of the variety and diver- (4) The relationship of the proposed sity of presently recognized hydrologic use to any applicable comprehensive procedures, no one procedure or meth- plan or flood plain management pro- od is prescribed for determining the gram for the area. peak flow in cubic feet per second for (5) The safety of access to the prop- the 100-year storm (Q 100) on which erty in times of flood for ordinary and profiles for the delineation of flood emergency vehicles. hazard areas are based. The following (6) The expected heights, velocity, duration, rate of rise and sediment may be used: transport of the flood water expected (1) A uniform Technique for Deter- at the site. mining Flood Flow Frequencies—Bul- (7) The degree to which the proposed letin No. 15—Water Resources Council, activity would alter natural water flow December 1967. or water temperature. (2) Basin-Wide Program for Flood (8) The degree to which archae- Plain Delineation—Delaware River ological or historic sites and struc- Basin Commission—Anderson-Nichols tures, endangered or rare species of & Co., Inc., June 1973. animals or plants, high quality wildlife (3) Magnitude and Frequency of habitats, scarce vegetation types, and Floods in New Jersey with Effects of other irreplaceable land types would be Urbanization—Special Report 38 degraded or destroyed. U.S.G.S.—New Jersey Department of (9) The degree to which the natural, Environmental Protection, 1974. scenic and aesthetic values at the pro- (4) Guidelines for Determining Flood posed activity site could be retained. Flow Frequency—Bulletin No. 17— (b) The project shall not: Water Resources Council, March 1976. (1) Endanger human life. (2) Have high flood damage potential. State and local agencies may use meth- (3) Obstruct flood flows nor increase ods resulting in Q 100s which are in rea- flood heights or velocities unduly sonable agreement with those of the whether acting alone or in combination Commission. Any significant difference with other uses. shall be reviewed with and subject to (4) Degrade significantly the water approval by the Executive Director. carrying capacity of any delineated (c) Methods and procedures shall be floodway or channel. uniform, so far as practicable, within (5) Increase significantly the rate of sub-basins which have a major effect local runoff, erosion, or sedimentation. on the larger basins of which they are

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a part. To assist in achieving this ob- local government having jurisdiction jective the Commission staff will peri- has special flood hazard areas identi- odically provide to the various inter- fied pursuant to the National Flood In- ested governmental agencies and oth- surance Act; and ers Q 100 data as developed by the Dela- (b) The site is not subject to an ap- ware River Basin Commission Hydrol- proved state or municipal regulatory ogy Coordinating Committee for key system having the same or similar ef- locations in the Delaware River Basin. fect on the flood hazard as this regula- These will be based on a Log Pearson tion, the Commission may condition Type 3 analysis of data from the its approval on any local governmental U.S.G.S. gaging stations using station project under section 3.8 of the Com- skew, regional skew, or weighted skew, pact upon the adoption and enforce- depending on the scope of data at each ment of flood plain regulations, ap- station. proved hereunder, by the state or local government having jurisdiction. § 415.43 Mapped and unmapped delineations. § 415.51 Prior non-conforming struc- (a) Whenever an official flood plain tures. map providing the pertinent informa- A structure which was lawful before tion is available with respect to a given the adoption of this regulation but project, the map shall be used for the which is not in conformity with the delineation of the flood hazard area, provisions hereof, shall be subject to floodway, flood fringe and determina- the following conditions (to be en- tion of flood protection elevation. forced by the appropriate authority as (b) Whenever an official flood plain to Class I and Class II projects, respec- map providing the required informa- tively, under §§ 415.40 through 415.43 of tion is not available with respect to a this part): given project, the administrative agen- (a) A non-conforming structure in cy shall require the project landowner the floodway may not be expanded, ex- to submit details concerning the pro- cept that it may be modified, altered or posed uses as needed to determine the repaired to incorporate flood proofing floodway and flood fringe limits at the measures provided such measures do proposed site, including: cross-sections not raise the level of the 100-year flood. of the stream channel and overbanks, (b) A non-conforming structure in stream profile, and factors involved in the floodway which is destroyed or determining obstructions to flow. damaged by any means, including a From the data submitted, soil surveys, flood, to the extent of 50 percent or historic flood maps, high water marks more of its market value at that time and other empirical data, the appli- may not be restored, repaired, recon- cant, subject to verification by the ad- structed or improved except in con- ministrative agency, shall calculate formity with the provisions of these flood hazard areas, and establish the regulations. flood protection elevation for the particular site. § 415.52 Violations. (c) Pending the preparation and com- Any violation of this regulation shall pletion of flood plain mapping, a ‘‘gen- be subject to penalties imposed by the eral flood plain’’ area shall be pre- Compact. scribed by the administrative agency to delineate for public guidance the PART 420—BASIN REGULATIONS— areal limits of site locations which are WATER SUPPLY CHARGES required to be submitted for review under this regulation. GENERAL

ENFORCEMENT Sec. 420.1 Definitions.

§ 415.50 General conditions. WATER SUPPLY POLICY On and after January 1, 1978, where: 420.21 Policy. (a) The flood hazard at the site is 420.22 Prohibition; sanctions. clear, present and significant, or the 420.23 Exempt uses under the Compact.

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420.24 Effective date of rates. § 420.22 Prohibition; sanctions.

ENTITLEMENT; MEASUREMENT; BILLING Any person, firm, corporation or other entity, including a public cor- 420.31 Certificate of entitlement. 420.32 Measurement and billing of water poration, body or agency, who shall taken. use, withdraw or divert surface waters 420.33 Payment of bills. of the basin, shall pay such charges therefor as may be required by this res- CHARGES; EXEMPTIONS olution. Any violation of this resolu- 420.41 Schedule of water charges. tion shall be subject to penalty as pre- 420.42 Contracts; minimum charge. scribed under Article 14.17 of the Com- 420.43 Exempt use. pact. The Commission may also re- 420.44 Cooling water. cover the value (according to the estab- 420.45 Historical use. lished water pricing schedules of the Commission) of any such use, with- HYDROELECTRIC POWER WATER USE CHARGES drawal or diversion, and invoke the ju- 420.51 Hydroelectric power plant water use risdiction of the courts to enjoin any charges. further use, withdrawal or diversion, unless all charges under this resolution AUTHORITY: Delaware River Basin Com- are paid in full when due. pact, 75 Stat. 688.

SOURCE: 42 FR 13544, Mar. 11, 1977, unless § 420.23 Exempt uses under the Com- otherwise noted. pact. (a) Section 15.1(b) of the Delaware GENERAL River Basin Compact provides that ‘‘no § 420.1 Definitions. provision of section 3.7 of the Compact shall be deemed to authorize the Com- For the purposes of this part 420, ex- mission to impose any charge for water cept as otherwise required by the con- withdrawals or diversions from the text: basin if such withdrawals or diversions Person means any person, corpora- could lawfully have been made without tion, partnership, association, trust, or charge on the effective date of the other entity, public or private. Compact; * * *’’ In compliance with Water user means any person who this provision: There shall be no charge uses, takes, withdraws or diverts sur- for water withdrawn or diverted in face waters within the Delaware River quantities not exceeding the legal enti- Basin. tlement of the user, determined as of Executive Director means the Execu- October 27, 1961. Each water user may tive Director of the Delaware River submit proof satisfactory to the Com- Basin Commission. mission of the factors constituting Consumptive use means the water lost legal entitlement, as defined in para- due to transpiration from vegetation in graph (b) thereof. In the absence of the building of plant tissue, incor- such proof of these conditions as of Oc- porated into products during their tober 27, 1961, the quantity of water ex- manufacture, lost to the atmosphere empt from charge to each user will be from cooling devices, evaporated from the legal entitlement of the user deter- water surfaces, exported from the Dela- mined as of March 31, 1971. ware River Basin, or any other water (b) For the purposes of paragraph (a) use for which the water withdrawn is of this section: not returned to the surface waters of (1) Legal entitlement means the quan- the basin undiminished in quantity. tity or volume of water expressed in million gallons per month determined WATER SUPPLY POLICY by the lesser of the following conditions: § 420.21 Policy. (i) A valid and subsisting permit, The provisions of this part 420 imple- issued under the authority of one of ment Commission Resolution No. 71–4 the signatory parties, if such permit (Comprehensive Plan) relating to water was required as of October 27, 1961, or supply charges. thereafter;

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(ii) Physical capability as required at any time. A preliminary notice of for such taking; or entitlement shall be issued to each (iii) The total allocable flow without user. Such entitlement shall become augmentation by the Commission, final and take effect, unless the user using a seven-day, ten-year, low-flow shall file with the Commission, within criterion measured at the point of 20 days after the service of the notice withdrawal or diversion. of entitlement, a request for hearing by (2) Physical capability means the ca- the Commission. At such hearing the pacity of pumps, water lines and appur- water user may show cause why the tenances installed and operable, deter- proposed entitlement shall not take ef- mined according to sound engineering fect. principles. The physical capability spe- (b) The Executive Director shall cifically includes plant facilities actu- schedule a hearing to be held not less ally using water, but excludes facilities than ten days after receipt of a request which may have been installed in an- for a hearing by the Commission. Hear- ticipation of future plant expansion ings shall be conducted and the results not yet realized. thereof subject to review in accordance (c) Whenever adequate records of with Article 5 of the Commission’s legal entitlement for agricultural irri- rules of practice and procedure. gation purposes are not available to (c) A final certificate of entitlement the Commission, such legal entitle- will be issued either upon expiration of ment shall be measured by the max- the time to request a hearing, where imum number of acres under irrigation there has been no request, or in accord- by the water user at any time during ance with the determination of a hear- the year ending March 31, 1971, allowing where one is held. ing one acre-foot of surface water an- (d) A certificate of entitlement is not nually per acre irrigated. transferable, except as provided in (d) Notwithstanding the provisions of paragraphs (e) and (f) of this section. paragraphs (a), (b) and (c) of this sec- For the purposes of this section, trans- tion, there shall be no charge for water made available from storage where: fer shall mean any sale or other con- (1) The cost of the storage facility veyance by a holder of a certificate of has or will be otherwise paid for by the entitlement involving a specific facil- user, ity and shall include any transfer (2) Such storage controls a drainage which results in a change of ownership area, and and/or control of the facility or of the (3) The use does not exceed the yield stock, or other indicia of ownership of of such storage without augmentation a corporation which holds title to the from other surface water of the basin. facility. (e) Whenever ownership or possession § 420.24 Effective date of rates. of land in agricultural use is trans- Rates and charges shall apply to all ferred, a certificate of entitlement water users not exempt hereunder on with respect to such land shall be and after the date of the first impound- deemed to run with the land, so long as ment of water for water supply pur- the water use continues to be for agri- poses at the Beltzville Reservoir (Feb- cultural irrigation. Upon any such land ruary 8, 1971), or the effective date transfer, the Executive Director will hereof, whichever is later. reissue a certificate of entitlement to the new user. ENTITLEMENT; MEASUREMENT; BILLING (f) A certificate of entitlement may be transferred in connection with a § 420.31 Certificate of entitlement. corporate reorganization within any of (a) The Executive Director will issue the following categories: to each known water user a certificate (1) Whenever property is transferred of entitlement within 30 days after the to a corporation by one or more per- effective date of these regulations sub- sons solely in exchange for stock or se- ject to the provisions of paragraph (b). curities of the same corporation, pro- In addition, any other water user may vided that immediately after the ex- apply for a certificate of entitlement change the same person or persons are

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in control of the transferee corpora- less the user’s legal entitlement, if tion; that is, they own 80 percent of the any. voting stock and 80 percent of all other stock of the corporation; or § 420.33 Payment of bills. (2) Where such transfer is merely a The amount due for each quarter result of a change of the name, iden- shall bear interest at the rate of 1 per- tify, internal corporate structure or cent per month for each day it is un- place of organization of a corporate paid beginning 30 days after the due holder of a certificate of entitlement date of the quarterly report for the and does not affect ownership and/or first three quarters and 30 days after control. the bill is rendered for the fourth quarter. [42 FR 13544, Mar. 11, 1977, as amended at 59 FR 64571, Dec. 15, 1994] CHARGES; EXEMPTIONS

§ 420.32 Measurement and billing of § 420.41 Schedule of water charges. water taken. The Commission will from time to (a) The quantity and volume of wa- time, after public notice and hearing, ters used by each person shall be deter- make, amend and revise a schedule of mined by meters, or other methods ap- water charges. Until changed, the proved by the Commission, installed, charge for water shall be as follows: maintained and read by or on behalf of (a) $80 per million gallons for con- the taker. Meters or other methods of sumptive use; and measurement shall be subject to ap- (b) $.80 per million gallons for non- proval and inspection by the Commis- consumptive use. sion as to installation, maintenance [42 FR 13544, Mar. 11, 1977, as amended at 43 and reading. FR 56655, Dec. 4, 1978; 76 FR 10234, Feb. 24, (b) Each user of surface water who is 2011] not exceeding the quantity specified in his ‘‘certificate of entitlement’’ shall § 420.42 Contracts; minimum charge. annually, on or before January 31, file Subject to the exclusions for certifi- with the Commission, on a form to be cates of entitlement and exempt uses, prescribed by the Executive Director, a the Executive Director may require report of the user’s physical capability, contracts for any taking, use, with- as defined, permit limitations, and the drawal or diversion of waters of the volume of water used during the pre- basin. Each contract shall provide for a ceding year. minimum annual payment in accord- (c) Each user of surface water who is ance with an estimated annual demand taking a quantity of water greater schedule, regardless of use, withdrawal than the amount specified in his ‘‘cer- or diversion. The failure of any person tificate of entitlement’’ shall report to execute a contract under this sec- his usage to the Commission on or be- tion shall not affect the application of fore April 30, July 31, October 31 and other requirements of this resolution. January 31, of each year covering the next preceding calendar quarter, re- § 420.43 Exempt use. spectively, on forms to be prescribed by The following uses shall be exempt the Executive Director. The amount from charge: due for water usage in excess of the (a) Non-consumptive uses of less than legal entitlement for each of the first 1,000 gallons during any day, and less three quarters of a calendar year shall than 100,000 gallons during any quarter. be computed and paid by the user, to- (b) Ballast water used for shipping gether with the report. purposes. (d) The Commission will render a (c) Water taken, withdrawn or di- statement of the net amount due based verted from streams tributary to the on the fourth quarter report, including river master’s gauging station at Mon- a negative or positive adjustment, so tague. that the net total billing and payment (d) Water taken, withdrawn or di- for four quarters will equal the total verted below R.M. 38 (the mouth of the water used during the four quarters Cohansey River) and such proportion of

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waters taken, diverted or withdrawn charged one mill per kilowatt-hour of above R.M. 38 and below R.M. 92.4 (the energy produced. mouth of the Schuylkill River) as the (2) Owners of hydroelectric power Executive Director may determine, on plants that derive additional benefits the basis of hydrologic studies, would from increased flows available to the have no discernible effect upon the hydroelectric project that would not maintenance of the salt front below the have been available without the Com- mouth of the Schuylkill River. mission-sponsored project shall be charged one-half mill per kilowatt- § 420.44 Cooling water. hour of energy produced. No charges Water used exclusively for cooling for increased flows will be required purposes which is returned to the when charges for increased hydraulic stream in compliance with the effluent head are in effect. requirements of applicable water qual- (3) Charges for the use of any facili- ity standards, shall be charged at the ties such as pipe conduits, outlet non-consumptive use rate except that works, and so on, installed in, on or losses due to in-stream evaporation near a Commission-sponsored project caused by cooling uses will be charged that benefit the hydroelectric project as consumptive use. in any way will be determined on a case-by-case basis as approved by the § 420.45 Historical use. Commission. (c) The owner of any hydro- A person who or which could not for Credits. electric generating facility shall re- any reason use, take, withdraw or di- ceive a credit against the current year vert waters of the basin from the place water use fee otherwise payable to the in question on March 31, 1971, shall not Commission for any amount which the be entitled to a certificate of entitle- Commission receives from the U.S. ment. Army Corps of Engineers or from the HYDROELECTRIC POWER WATER USE Federal Energy Regulatory Commis- CHARGES sion for each calendar year. (d) Exemptions. No payment will be § 420.51 Hydroelectric power plant required when hydroelectric power fa- water use charges. cility water use charges would amount (a) Annual base charges. Owners of to less than $25 per year. Retroactive conventional run-of-river hydroelectric charges will not be assessed for facili- power plants that benefit from water ties which have already obtained Com- storage facilities owned or partially mission approval pursuant to Section owned by the Commission shall pay an 3.8 of the Delaware River Basin Com- annual base charge to the Commission. pact. All hydroelectric generating The amount of the base annual charge projects that do not benefit from stor- shall be one dollar per kilowatt of in- age owned or partially owned by the stalled capacity. Commission are exempt from these (b) Annual variable charges. In addi- Commission water charges. tion to the base charge established in (e) Payment of bills. The amount due (a) of this section, annual charges each year shall bear interest at the based on power generated at each facil- rate of 1% per month for each day it is ity will be assessed as follows: unpaid beginning 30 days after the due (1) Owners of hydroelectric power date. Payments are due within 30 days plants that benefit from increased hy- of the end of each calendar year. An- draulic head available to the hydro- nual base charges will be prorated for electric project as a result of invest- periods less than a year. ments by the Commission shall be [53 FR 45260, Nov. 9, 1988]

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PART 430—GROUND WATER PRO- uses in view of present and threatened TECTION AREA: PENNSYLVANIA shortages of water of the quality required to serve such uses. Sec. (d) Provide a mechanism for the ac- 430.1 Policy. quisition of additional information 430.3 Purpose. necessary to more accurately plan and 430.5 Definitions. manage water resources. 430.7 Determination of protected areas and (e) Encourage all water users to restriction on water use. 430.9 Comprehensive plan policies. adopt and implement reasonable water 430.11 Advance notice of exploratory drill- conservation measures and practices, ing. to assure efficient use of limited water 430.13 Protected area permits for new with- supplies. drawals. 430.15 Conservation requirements. § 430.5 Definitions. 430.17 Registration of existing withdrawals. 430.19 Ground water withdrawal metering, For purposes of this regulation, ex- recording, and reporting. cept as otherwise required by the con- 430.21 Protection of existing users. text: 430.23 Technical determinations and proce- Aquifer means waterbearing forma- dures. tion that contains sufficient ground 430.25 Other permit requirements. water to be important as a source of 430.27 Emergencies. 430.29 Appeals. supply. 430.31 Sanctions: Civil and criminal. Comprehensive Plan means the plans, 430.33 Duration. policies and programs adopted as part 430.35 Amendments. of the Comprehensive Plan of the Dela- AUTHORITY: Pub. L. 87–328 (75 Stat. 688). ware Basin in accordance with section 3.2 and Article 13 of the Delaware River SOURCE: 46 FR 24, Jan. 2, 1981, unless otherwise noted. Basin Compact. Ground water means all water be- § 430.1 Policy. neath the surface of the ground. The provisions of this part imple- Ground water basin means a sub- ment Commission Resolutions 80–18 surface structure having the character and 80–27 relating to ground water proof a basin with respect to the collec- tection in southeastern Pennsylvania. tion, retention and outflow of water. Ground water protected area means the § 430.3 Purpose. areas declared and delineated by the The purpose of this regulation is to Commission to be a ground water pro- protect the ground water resources in tected area pursuant to Article 10 of the Triassic lowland and adjacent area the Delaware River Basin Compact and of southeastern Pennsylvania and the this regulation. public interest in those resources. In Ground water recharge means the ad- particular this regulation is to: dition of water to an aquifer by infil- (a) Assure the effective management tration of precipitation through the of water withdrawals to avoid deple- soil, infilitration from surface streams, tion of natural stream flows and lakes or reservoirs, flow of ground ground waters and to protect the qual- water from another aquifer, or pump- ity of such water. age of water into the aquifer through (b) Assure that ground water with- wells. drawals are undertaken consistent Project means the same word as de- with the policies stated in the Com- fined by section 1.2(g) of the Delaware prehensive Plan. River Basin Compact. (c) Protect the just and equitable in- Protected area permit means a permit terests and rights of present and future to divert or withdraw ground water lawful users of water resources, giving within the ground water protected area due regard to the need to balance and for domestic, municipal, agricultural reconcile alternative and conflicting or industrial uses, granted pursuant to

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section 10.3 of the Delaware River tion or other entity within the area Basin Compact and this regulation. shall withdraw ground water for any purpose at a rate exceeding 10,000 gal- § 430.7 Determination of protected lons per day, except as prescribed by areas and restriction on water use. this regulation. In consideration of the foregoing facts and for the purposes cited above: § 430.9 Comprehensive plan policies. (a) The Commission hereby deter- The water resources within the mines and delineates the following Southeastern Pennsylvania Ground area to be a protected area within the Water Protected Area shall be managed meaning and for the purpose of Article consistent with the Comprehensive 10 of the Delaware River Basin Com- Plan policies. For purposes of this pact: ground water protected area, section Southeastern Pennsylvania Ground Water 2.20.4 of the Water Code of the Dela- Protected Area ware River Basin shall be applied using The ‘‘Southeastern Pennsylvania Ground the following definition of the term Water Protected Area’’ shall consist of those ‘‘withdrawal limits’’: portions of the following listed counties and (a) Withdrawal limits. Except as may political subdivision located within the Dela- be otherwise determined by the Com- ware Basin: mission to be in the public interest, Townships withdrawals from the underground wa- Berks County ...... Douglass, Hereford, Union. ters of the basin shall be limited to the Bucks County ...... Bedminster, Buckingham, Doylestown, East Rockhill, maximum draft of all withdrawals Hilltown, Lower Southampton, from a ground water basin, aquifer, or Middletown, Milford, New Britain, aquifer system that can be sustained Newtown, Northampton, Plumstead, Richland, Upper without rendering supplies unreliable, Southampton, Warminster, War- causing long-term progressive lowering rington, Warrick, West Rockhill, of ground water levels, water quality Wrightstown. degradation, permanent loss of storage Boroughs Chalfont, Doylestown, Dublin, capacity, or substantial impact on low Hulmeville, Ivyland, Langhorne, flows of perennial streams. Langhorne Manor, New Britain, (b) [Reserved] Newtown, Penndel, Perkasie, Quakertown, Richlandtown, Sellersville, Silverdale, Telford, § 430.11 Advance notice of exploratory Trumbauersville. drilling. Townships The Commission encourages con- Chester County...... Birmingham, Charlestown, East Coventry, East Bradford, East sultation with any project sponsor who Goshen, East Pikeland, is considering development of a new or Easttown, East Vincent, East expanded ground water withdrawal Whiteland, North Coventry, Schuylkill, South Coventry, that is being planned for any purpose Thornbury, Tredyffrin, Warwick, when the daily average withdrawal West Bradford, West Goshen, during any calendar month exceeds Westtown, Willistown, West 10,000 gallons to insure proper imple- Whiteland. Boroughs mentation of this regulation and to re- Elverson, Malvern, Phoenixville, duce the possibility of investment in Spring City, West Chester. new ground water development facili- Townships Lehigh County ...... Lower Milford. ties which may not be approved here- Montgomery County ..... All of the area within the county under. Such consultation should occur boundary. early in the planning stage of a new (b) The Commission hereby deter- project and prior to initiation of ex- mines that within the Southeastern ploratory drilling. Pennsylvania Ground Water Protected (a) Any person, firm corporation or Area demands upon available ground other entity planning a new or ex- water supplies have developed or panded ground water withdrawal that threaten to develop to such a degree as may be operated at a daily average to create a water shortage or to impair withdrawal during any calendar month or conflict with the requirements or ef- in excess of 10,000 gallons shall notify fectuation of the Comprehensive Plan. the Executive Director not less than 30 Accordingly, no person, firm, corpora- days prior to initiation of exploratory

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drilling. Such notice shall be in writing (2) A written report prepared by a and shall specify the location of pro- hydrogeologist describing the expected posed new facility, the anticipated rate effects of the proposed withdrawal on of withdrawal, and the general purpose existing wells, flows of perennial of the proposed water use. The notice streams and the long-term lowering of shall also state the location of existing ground water levels. wells within the radius set forth in (3) A log showing the nature of sub- § 430.21(a). surface material encountered during (b) Whenever the Executive Director the construction and installation of shall deem necessary, or upon request the exploratory or production well(s). of a party proposing a new or expanded (4) The detailed results of extended withdrawal of ground water, an infor- pump tests, of not less than 48 hours mal conference may be scheduled to re- duration, and records of observations view the nature of the proposed with- during such pump tests from represent- drawal, the applicability of the Com- ative monitoring wells. mission’s standards relating to ground (b) Applications for a protected area water, and the requirements of a pro- permits whose daily average with- tected area permit under this regula- drawal during any calendar month is in tion. excess of 10,000 gallons shall be accompanied by an application fee of $100. § 430.13 Protected area permits for new withdrawals. Government agencies shall be exempt from such application fee. Any person, firm, corporation or (c) If the application for a protected other entity who proposes to develop a area permit is for a daily average with- new ground water withdrawal or ex- drawal during any calendar month in pand an existing ground water with- excess of 100,000 gallons, it shall be ac- drawal for any purpose within the companied by such other information Southeastern Pennsylvania Ground or exhibits required by Article 3 of the Water Protected Area shall be required Commission’s Rules of Practice and to obtain a protected area permit Procedure. In such cases, only the ap- under this regulation if the proposed plication fee required by the Rules will new or increased rate of withdrawal be assessed. from a well or group of wells operated as a system average more than 10,000 (d) To qualify for approval of a pro- gallons per day over a 30-day period. tected area permit, the owner or spon- Whenever the Executive Director, upon sor of the proposed withdrawal shall investigation or upon a reference from demonstrate that: a state or federal agency, determines (1) The proposed withdrawal is con- that a new or increased withdrawal sistent with the Commission’s Com- from a group of wells within the pro- prehensive Plan and the policies and tected area, whether or not such wells purposes of these regulations. are operated as a system, may have a (2) Opportunities to satisy water re- substantial effect on the water requirements on a timely basis from ex- sources of the basin or is likely to have isting available supplies and facilities a significant adverse effect on other have been explored and found infeasi- water uses within the protected area, ble. the Commission may direct a notice to (3) The proposed withdrawal, in con- the owners or sponsors of such wells, junction with other withdrawals in the and require such owners or sponsors to applicable ground water basin, will not apply for and obtain a protected area exceed withdrawal limits of a ground permit under this regulation. water basin, aquifer or aquifer system. (a) Applications for a protected area (4) The proposed withdrawal will not permit shall be submitted to the Com- significantly impair or reduce the flow mission on forms approved by the Ex- of perennial streams in the area. ecutive Director. Each application (5) Existing ground and surface water shall be accompanied by the following withdrawals will not be adversely im- information: pacted, or will be otherwise assured of (1) A map indicating the location of adequate supplies in accordance with existing wells and perennial streams. the requirements of § 430.19 of this part.

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(6) The proposed withdrawal will not device that senses abnormally low or cause substantial, permanent adverse abnormally high refrigerant pressures; impact to the overlying environment. (8) Any drilled well holes that are (7) The owner or sponsor has adopted abandoned shall be sealed with a min- and will implement conservation and imum of ten feet of cement grout. Ad- management programs as required by ditional seals may be required to sepa- § 430.15 of this part. rate different water-bearing zones. (e) Ground water withdrawals for (g) Protected area permits shall be space heating or cooling purposes that approved or disapproved by the Execu- are less than 100,000 gallons per day tive Director with the concurrence of shall be exempt from obtaining a pro- the Pennsylvania member of the Com- tected area permit provided that the mission or his alternate. water withdrawn is returned locally, (h) Dockets and protected area per- and to the same ground water basin mits may be issued for a duration of up and aquifer system from which it is to ten years and shall specify the max- withdrawn, undiminished in quantity imum total withdrawals that must not and quality (except temperature). be exceeded during any consecutive 30- Ground water withdrawals for space day period. Such maximum total with- heating or cooling that are subse- drawals shall be based on demands pro- quently used for commercial or indus- jected to occur during the duration of trial water supply purposes are subject the docket or protected area permit. to Commission withdrawal and waste- (i) Ground water withdrawal limits water discharge regulations. Ground shall be defined for subbasins in ac- water withdrawals exempted pursuant cordance with the provisions of (i)(1) or to this subsection shall be subject to (2) of this section. The limits for spe- the registration requirements of cific subbasins are set forth in (i)(3) of § 430.17. this section. (f) All ground water withdrawal (1) Baseflow frequency analyses shall projects exempted by subsection ‘‘e’’ be conducted for all subbasins in the above shall be constructed in conform- Southeastern Pennsylvania Ground ance with accepted industry practice Water Protected Area. The analyses and as a minimum shall comply with shall determine the 1-year-in-25 aver- the following standards: age annual baseflow rate. The 1-year- (1) All wells shall be drilled by a in-25 average annual baseflow rate Pennsylvania licensed well driller and shall serve as the maximum with- a Water Well Inventory Report shall be drawal limit for net annual ground completed and filed with the Pennsyl- water withdrawals for subbasins. If net vania Department of Environmental annual ground water withdrawals ex- Resources (PADER); ceed 75 percent of this rate for a (2) No wells shall be located within a subbasin, such a subbasin shall be 100-year floodway; deemed ‘‘potentially stressed.’’ The (3) All wells shall have top of casing Commission shall maintain a current extended a minimum of one foot above list of net annual ground water with- the 100-year flood elevation; drawals for all subbasins. ‘‘Net’’ annual (4) All wells shall have the casing ground water withdrawals includes protruding a minimum of six inches total ground water withdrawals less above the immediate surrounding total water returned to the ground grade; water system of the same subbasin. (5) The area around all wells or well (2) Upon application by the appro- pits shall be constructed and/or graded priate governmental body or bodies, to prevent the entrance of surface wa- the withdrawal limits criteria set forth ters; in (i)(1) of this section may be revised (6) All wells shall be accessible for in- by the Commission to provide addi- spection and shall have an access hole tional protection for any subbasin for water level measurements; identified in (i)(3) of this section with (7) In order to protect against signifi- streams or stream segments designated cant leaks of refrigerant, all ground by the Commonwealth of Pennsylvania water heat pump systems shall be as either ‘‘high quality,’’ or ‘‘excep- equipped with an automatic shutdown tional value,’’ or ‘‘wild,’’ or ‘‘scenic,’’

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or ‘‘pastoral,’’ or to correspond with ment; assess the capacity of the more stringent requirements in inte- subbasin to meet present and future de- grated resource plans adopted and im- mands for withdrawal and nonwith- plemented by all municipalities within drawal uses such as instream flows; a subbasin identified in (i)(3) of this identify potential conflicts and prob- section. Integrated resource plans shall lems; incorporate public participation; be developed according to sound prin- and outline plans and programs includ- ciples of hydrology. Such plans shall at ing land use ordinances to resolve con- a minimum assess water resources and flicts and meet needs. Integrated re- existing uses of water; estimate future source plans shall be adopted and im- water demands and resource require- plemented by all municipalities within ments; evaluate supply-side and de- a subbasin and incorporated into each mand-side alternatives to meet water municipality’s Comprehensive Plan. withdrawal needs; assess options for (3)(i) The potentially stressed levels wastewater discharge to subsurface for- and withdrawal limits for all delin- mations and streams; consider eated basins and subbasins are set stormwater and floodplain manage- forth below:

Potentially Withdrawal Subbasin Stressed Limit (mgy) (mgy) 1

Neshaminy Creek Basin

West Branch Neshaminy Creek Basin ...... 1054 1405 Pine Run Basin ...... 596 795 North Branch Neshaminy Creek ...... 853 1131 Doylestown Subbasin Neshaminy Creek ...... 710 946 Warwick Subbasin Neshaminy Creek ...... 889 1185 Warrington Subbasin Little Neshaminy Creek ...... 505 673 Park Creek Basin ...... 582 776 Warminster Subbasin Little Neshaminy Creek ...... 1016 1355 Mill Creek Basin ...... 1174 1565 Northampton Subbasin Neshaminy Creek ...... 596 794 Newtown Creek ...... 298 397 Core Creek Basin ...... 494 658 Ironworks Creek Basin ...... 326 434 Schuylkill River Basin ...... 3026 4034

Lower Section Subbasin Neshaminy Creek

Hay Creek ...... 974 1299 Lower Reach Manatawny-Ironstone Creek ...... 1811 2414 Pigeon Creek ...... 611 815 Schuylkill-Crow Creek ...... 1157 1543 Schuylkill-Mingo Creek ...... 671 895 Schuylkill-Plymouth-Mill Creeks ...... 4446 5929 Schuylkill-Sixpenny Creek ...... 1490 1987 Schuylkill-Sprogels Run ...... 1091 1455 Schuylkill-Stony Creek ...... 687 916 Schuylkill-Trout Creek ...... 1082 1443 Stony Creek ...... 1242 1655 Valley Creek ...... 1865 2486

French and Pickering Creek Subbasins

Lower Reach French Creek ...... 634 845 Lower Reach Pickering Creek ...... 1716 2288 Middle Reach French Creek ...... 1608 2145 South Branch French Creek ...... 1044 1393 Upper Reach French Creek ...... 1295 1726 Upper Reach Pickering Creek ...... 1358 1811

Perkiomen and Skippack Creek Subbasins

East Branch Perkiomen-Indian Creeks ...... 633 844 East Branch Perkiomen-Mill Creeks ...... 720 961 East Branch Perkiomen-Morris Run ...... 1214 1619 Hosensack-Indian Creeks ...... 1257 1676 Lower Reach Skippack Creek ...... 1069 1426 Perkiomen-Deep Creeks ...... 1047 1396 Perkiomen-Lodal Creeks ...... 1200 1600

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Potentially Withdrawal Subbasin Stressed Limit (mgy) (mgy) 1

Perkiomen-Macoby Creek ...... 1252 1669 Swamp-Middle Creeks ...... 1423 1898 Swamp-Minister Creeks ...... 547 730 Swamp-Scioto Creeks ...... 746 994 Towamencin Creek ...... 466 622 Unami-Licking Creeks ...... 992 1322 Unami-Ridge Valley Creeks ...... 1068 1424 Upper Reach Perkiomen Creek ...... 1223 1631 Upper Reach Skippack Creek ...... 813 1084 West Branch Perkiomen Creek ...... 1566 2088

Delaware River Basin

Jericho Creek ...... 421 562 Mill Creek ...... 1600 2134 Paunnacussing Creek ...... 513 684 Pidcock Creek ...... 563 751 Upper Reach Cobbs Creek ...... 871 1161 Upper Reach Crum Creek ...... 1290 1721 Upper Reach Darby Creek ...... 1625 2167 Upper Reach East Branch Chester Creek ...... 1865 2487 Upper Reach Frankford Creek ...... 1414 1886 Upper Reach Poquessing Creek ...... 1008 1344 Upper Reach Ridley Creek ...... 1707 2275

Tohickon Subbasin

Tohickon-Beaver-Morgan Creeks ...... 1156 1541 Tohickon-Deep Run ...... 956 1274 Tohickon-Geddes-Cabin Runs ...... 602 803 Tohickon-Lake Nockamixon ...... 556 741 Tohickon-Three Mile Run ...... 726 968

Pennypack and Wissahickon Subbasins

Lower Reach Wissahickon Creek ...... 2750 3666 Upper Reach Wissahickon Creek ...... 1302 1736 Middle Reach Pennypack Creek ...... 1295 1727 Upper Reach Pennypack Creek ...... 1358 1811

Brandywine Creek Subbasin

East Branch Brandywine-Taylor Run ...... 1054 1405 Middle Reach Brandywine Creek ...... 823 1098 Upper Reach Brandywine Creek ...... 1614 2153 West Branch Brandywine-Beaver Run ...... 2110 2813 West Branch Brandywine-Broad Run ...... 2380 3173 West Valley Creek ...... 1673 2231

Lehigh Subbasin

Upper Reach Saucon Creek ...... 946 1262 1 mgy means million gallons per year.

(ii) Subject to public notice and hear- during any 30-day period of its deter- ing, this section may be updated or re- mination. If any such users have not vised based upon new and evolving in- obtained a docket or protected area formation on hydrology and permit from the Commission, they streamflow and ground water moni- shall be required to apply to the Com- toring or in accordance with paragraph mission within 60 days of notification. (i)(2) of this section. (k) In potentially stressed subbasins, (j) Upon its determination that a dockets and protected area permit ap- subbasin is potentially stressed, the plications for new or expanded ground Commission shall notify all ground water withdrawals must include one or water users in the subbasin with- more programs to mitigate the adverse drawing 10,000 gallons per day or more impacts of the new or expanded ground

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water withdrawal. The eligible pro- total new or expanded annual with- grams are noted below. If the remain- drawal to the same ground water basin der of the application and the pro- and aquifer system from which it is gram(s) submitted are acceptable, the withdrawn. The program shall not im- withdrawal may be approved by the pair ground water quality. Commission for an initial three-year (5) An alternative program approved period. The applicant shall implement by the Commission to mitigate the ad- the program(s) immediately upon Com- verse impacts of the new or expanded mission approval. If after the three- ground water withdrawal. year period the program(s) is deemed (l) The durations of all existing dock- successful by the Commission, the ets and protected area permits may be docket or permit duration may be extended for up to 10 years. The project extended by the Commission for an ad- sponsor shall be required to continue ditional five years if the docket or per- the program(s) for the duration of the mit holder successfully implements in docket or permit. either (k)(1) or (k)(2) of this section. If (1) A conjunctive use program that the docket or permit holder success- demonstrates the applicant’s capa- fully implements both options, the bility to obtain at least 15 percent of docket or permit may be extended for its average annual system usage from a an additional ten years. The Executive reliable surface water supply. An ac- Director shall notify all docket and ceptable program shall include either permit holders potentially affected by reservoir storage or an interconnection this resolution of their right to file an with a surface water supplier and an application to determine their eligi- agreement or contract to purchase bility for extension. water from the supplier for the dura- (m) It is the policy of the Commis- tion of the docket or permit. sion to prevent, to the extent reason- (2) A water conservation program ably possible, net annual ground water that exceeds the requirements of withdrawals from exceeding the max- § 430.15. For existing water utilities, the imum withdrawal limit. An application program shall reduce average annual for a proposed new or expanded ground per capita water usage by at least five water withdrawal that would result in percent. All conservation programs net annual ground water withdrawals shall include water conservation pric- exceeding the maximum withdrawal ing, either inclining block rates, sea- sonal rates, or excess-use surcharges, limit established in paragraph (i)(3) of and plumbing fixture rebate or retrofit this section shall set forth the appli- components. For self-supplied users, cant’s proposal for complying with the the program shall include water effi- Commission’s policy, with such sup- cient technologies such as recycling, porting documentation as may be re- reuse, xeriscaping, drip or micro irriga- quired by the Executive Director. Noti- tion, or other innovative technology fication of the application shall be approved by the Commission. given to all affected existing water (3) A program to monitor and control users who may also submit comments ground water infiltration to the receiv- or recommendations for consideration ing sewer system. The program must by the Commission on the pending ap- quantify ground water infiltration to plication. In taking action upon the ap- the system and document reductions in plication, the Commission shall give infiltration. The program should in- consideration to the submissions from clude such measures as leakage surveys the applicant and affected water users. of sewer mains, metering of sewer flows If the Commission determines that it is in mains and interceptors, analysis of in the public interest to do so, it may sewer system flows to quantify infiltra- reduce the total of proposed and exist- tion, and remedial measures such as re- ing ground water withdrawals within a pair of leaks and joints, main lining, subbasin to a level at or below the and main replacement. withdrawal limit. Unless otherwise de- (4) An artificial recharge or spray ir- termined by the Commission, docket rigation program that demonstrates a return of at least 60 percent of the

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and permit holders shall share equi- (2) Water uses shall be monitored, tably in such reductions. and a systematic process shall be [46 FR 24, Jan. 2, 1981, as amended at 50 FR adopted and implemented to provide 5973, Feb. 13, 1985; 63 FR 6477, Feb. 9, 1998; 64 for the detection and expeditious cor- FR 35566, July 1, 1999] rection of leakage. (3) A drought emergency plan speci- § 430.15 Conservation requirements. fying the actions to be taken to reduce The following conservation require- demand in the event of drought condi- ments shall apply to all existing, new tions shall be prepared and filed with or expanded ground water withdrawals the Commission. for municipal, public, industrial or (c) Permits issued pursuant to these commercial water supply whose cumu- regulations shall be conditioned upon lative daily average withdrawal from compliance with the requirements of one or more wells during any calendar this section. month exceeds 10,000 gallons. (a) Each person, firm, corporation or § 430.17 Registration of existing with- other entity withdrawing ground water drawals. within the Southeastern Pennsylvania (a) Existing users of ground water Ground Water Protected Area for pur- within the Southeastern Pennsylvania poses of municipal or public water sup- Ground Water Protected Area whose ply shall comply with the following lawful use commenced prior to the ef- conservation requirements: fective date of this regulation, whose (1) Water connections shall be me- cumulative monthly average daily tered, and water charges collected shall withdrawal from one or more wells ex- be based on metered usage. ceeds 10,000 gallons and whose with- (2) A water conservation program drawal has not previously been ap- shall be initiated and diligently pur- proved by DRBC, pursuant to section sued within the service area of the mu- 3.8 of the Compact, shall, prior to July nicipal or public water supply. Such 1, 1981, register their use with the program shall include a program for Pennsylvania Department of Environ- leakage control providing for the moni- mental Resources acting as agent for toring, prevention and repair of signifi- the Commission. Registration is re- cant leakage, and the provision of cus- quired as a condition for such existing tomer information relating to water- users being eligible for the protection saving devices. afforded by this regulation. Such reg- (3) Interconnections with adjacent istration shall include withdrawals water systems shall be considered to from quarries that are not fed by sur- assure more reliable supplies of water face streams. during emergencies. (b) Registrations shall be filed on (4) A drought emergency plan speci- forms approved by the Executive Direc- fying actions which would be taken to tor of the Commission. Each registrant reduce demand and assure supplies to shall provide, without limitation there- priority uses in the event of drought to, the following: conditions shall be prepared in cooperation with the municipalities in (1) A description of the location, size the service area. The plan shall be filed and depth of each well and the pump with the Commission. facilities installed therein. (b) Each person, firm, corporation or (2) The estimated quantity of water other entity withdrawing ground water withdrawn from each well, or related within the Southeastern Pennsylvania group of wells, during each month of Ground Water Protected Area for pur- 1980. poses of industrial or commercial (3) The purposes for which the water water supply shall comply with the fol- is withdrawn, its place of use, and the lowing conservation requirements: approximate quantity of water used for (1) Opportunities for water conserva- each purpose. tion shall be investigated and all fea- (4) The location and method of waste- sible conservation measures shall be water disposal and discharge. implemented at the earliest prac- (5) A registration fee of $5 for each ticable time. well.

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§ 430.19 Ground water withdrawal me- metering, recording, and reporting tering, recording, and reporting. ground-water withdrawals in accord- (a) Each person, firm, corporation, or ance with this regulation. other entity whose cumulative daily (Delaware River Basin Compact, 75 Stat. 688) average withdrawal of ground water from a well or group of wells operated [51 FR 25031, July 10, 1986] as a system exceeds 10,000 gallons per § 430.21 Protection of existing users. day during any 30-day period shall meter or measure and record their (a) Protected area permits issued withdrawals and report such with- under this regulation for new or ex- drawals to the Pennsylvania Depart- panded withdrawals of ground water ment of Environmental Resources. shall include conditions to protect the Withdrawals shall be measured by owners of existing wells in accordance means of an automatic continuous re- with the provisions of this section. cording device, flow meter, or other (b) Any person, firm, corporation or method, and shall be measured to with- other entity who commences a new or in five percent of actual flow. Meters or expanded withdrawal of ground water other methods of measurement shall be that is subject to the requirement of a subject to approval and inspection by protected area permit under this regu- the Pennsylvania Department of Envi- lation shall provide mitigating meas- ronmental Resources as to type, meth- ures if the withdrawal significantly af- od, installation, maintenance, calibra- fects or interferes with any existing tion, reading, and accuracy. With- well. Mitigation measures may consist drawals shall at a minimum be re- of: corded on a daily basis for public water (1) Providing an alternative water supply use and on a biweekly basis for supply, of adequate quantity and qual- all other water uses, and reported as ity, to the effected well owner(s); monthly totals annually. More fre- (2) Providing financial compensation quent recording or reporting may be to the affected well owner(s) sufficient required by the Pennsylvania Depart- to cover the costs of acquiring an alter- ment of Environmental Resources or native water supply of adequate quan- the Commission. tity and quality; or (b) The following water uses and op- (3) Such other measures as the Com- erations are exempt from the metering mission shall determine to be just and or measurement requirements of para- equitable under the circumstances graph (a): Agricultural irrigation; present in the case of any individual snowmaking; dewatering incidental to application. mining and quarrying; dewatering inci- [46 FR 24, Jan. 2, 1981. Redesignated at 51 FR dental to construction; and space heat- 25031, July 10, 1986] ing or cooling uses that are exempt from permit requirements in § 430.13. § 430.23 Technical determinations and Except for space heating and cooling procedures. uses described herein, persons engaged (a) The radius to be considered in as- in such exempt withdrawals in excess sessing the potential impact of a proof 10,000 gallons per day during any 30- posed new or expanded ground water day period shall record the pumping withdrawal, as required by §§ 430.11 and rates and the dates and elapsed hours 430.13 of this part shall be as follows: of operation of any well or pump used to withdraw ground water, and report Radius from the pro- Quantity of cumulative proposed with- posed withdrawal to such information as required in para- drawal (gpd) be considered graph (a). Space heating and cooling (miles) uses that are exempt from permit re- 10,000 to 50,000 ...... 0 .5 quirements in § 430.13 shall also be ex- 50,000 to 100,000 ...... 0 .75 empt from the requirement for record- In excess of 100,000 ...... 1 .0 ing and reporting. (c) Pursuant to section 11.5 of the (b) Ground water withdrawal limits, Compact, the Pennsylvania Depart- as defined in section 2.20.4 of the Water ment of Environmental Resources shall Code of the Delaware River Basis and administer and enforce a program for § 430.9 of this part, shall be calculated

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on the basis of the average recharge and its Rules of Practice and Proce- rate to the basin, aquifer, or aquifer dure. system during repetition of a period [46 FR 24, Jan. 2, 1981. Redesignated at 51 FR which includes the worst recorded 25031, July 10, 1986] drought. (c) The requirement of paragraph (a) § 430.27 Emergencies. or (b) of this section may be modified In the event of an emergency requir- or waived by the Executive Director or ing immediate action to protect the the Commission if an applicant adopts public health and safety or to avoid and implements a program for coordi- substantial and irreparable injury to nated use of ground and surface water, any private person or property, and the and the applicant demonstrates that circumstances do not permit full re- operation of the coordinated program view and determination in accordance will be consistent with the policies with these regulations, the Executive contained in the Comprehensive Plan Director, with the concurrence of the and the purposes of these regulations. Pennsylvania member of the Commis- [46 FR 24, Jan. 2, 1981. Redesignated at 51 FR sion or his alternate, may issue an 25031, July 10, 1986] emergency permit authorizing an applicant to take such action relating to § 430.25 Other permit requirements. these regulations as the Executive Di- (a) Except to the extent provided in rector may deem necessary and proper. these regulations, registration of exist- In such cases, the applicant shall be ing ground and surface water with- fully responsible for protecting exist- drawals and the issuance of withdrawal ing ground water users, as prescribed permits hereunder shall not create any in § 430.19 of this part. The Executive private or proprietary rights in the Director shall report at the next meet- water of the basin and the Commission ing of the Commission on the nature of reserves the right to amend, alter, or the emergency and any action taken repeal these regulations and to amend, under this section. alter or rescind any actions taken [47 FR 21776, May 20, 1982. Redesignated at 51 hereunder in order to insure the proper FR 25031, July 10, 1986] control, use and management of the water resources of the basin. § 430.29 Appeals. (b) Neither the obligation to obtain a Any person aggrieved by any action protected area permit under this regu- or decision of the Executive Director lation, nor the receipt thereof, shall re- taken under these regulations shall be lieve the sponsor of a new or expanded entitled upon timely filing of a request ground water withdrawal project of the therefor, to a hearing in accordance obligation to obtain any other applica- with Article 6 of the Commission’a ble permits required by Federal, state Rules of Practice and Procedure. or local government agencies. (c) A new or expanded ground water [46 FR 24, Jan. 2, 1981. Redesignated at 51 FR withdrawal subject to the requirement 25031, July 10, 1986] of a protected area permit under this regulation shall not require any fur- § 430.31 Sanctions: Civil and criminal. ther approval by the Commission if the (a) Any person, association, corpora- daily average withdrawal during any tion, public or private entity who or calendar month is less than 100,000 gal- which violates or attempts or conspires lons. If the new or expanded with- to violate any provision of this regula- drawal exceeds a daily average of tion, or any order, regulation or permit 100,000 gallons during any calendar issued in furtherance thereof, shall be month, the project shall be subject to punishable as provided in section 14.17 review and approval by the commission of the Compact. pursuant to section 3.8 of the Delaware (b) General Counsel of the Commis- River Basin Compact, and the require- sion may, in his discretion, request the ment of a protected area permit for appropriate law enforcement officers of such a project shall be in addition to the Commonwealth of Pennsylvania to other requirements of the Commission prosecute any or all violations of this

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regulation in accordance with the Com- § 430.33 Duration. pact and the laws of the Common- The delineation and declaration of wealth, and for recovery of the fines the Southeastern Pennsylvania Ground fixed by section 14.17 of the Compact, Water Protected Area made pursuant in the name and on behalf of the Com- to this regulation, and the require- mission. The Commonwealth of Penn- ments established hereby, shall con- sylvania and its law enforcement offi- tinue until terminated by specific ac- cers are hereby requested pursuant to tion of the Commission. sections 10.1 and 11.5 of the Compact, [46 FR 24, Jan. 2, 1981. Redesignated at 51 FR to provide such technical, professional 25031, July 10, 1986] and administrative services as may be required for such enforcement. § 430.35 Amendments. (c) In addition to such penal sanc- Upon request by any interested tions as may be imposed pursuant to party, or on its own motion, the Com- this section, any violation of this regu- mission may consider amendment of lation shall be subject to such civil this regulation, and modify the geo- remedies by injunction and otherwise graphic boundaries of the protected as provided by law. area, in accordance with Article 10 of the Compact. [46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986] [46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]

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Part Page 701 Council organization...... 53 704 Plan formulation standards and procedures ...... 67 705 Nondiscrimination in federally assisted programs— effectuation of Title VI of the Civil Rights Act of 1964 ...... 68 706 Employee responsibilities and conduct ...... 76 707 Compliance with the National Environmental Pol- icy Act (NEPA) ...... 83 708 Upper Mississippi River Basin Commission: Public participation in Upper Mississippi River System Master Plan ...... 87 725 Implementation of Executive Orders 11988, Flood- plain Management and 11990, Protection of Wet- lands ...... 92 740 State Water Management Planning Program ...... 94

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Subpart C—Field Organization § 701.1 General. 701.100 Field Directors. This part describes the organization 701.101 Field committees. established by the Water Resources 701.102 Existing committees. Council in discharging its duties and responsibilities. The organization is de- Subpart D—Availability of Information signed to assure that Council Members 701.200 Statement of policy. will meet at least quarterly and con- 701.201 Availability of records and informa- sider and decide major matters before tional materials. the Council. It provides that the Direc- 701.202 Procedure for requests for informa- tor can take action when necessary and tion. appropriate; provided, that in the prep- 701.203 Schedule of fees. aration of agenda items for the Council 701.204 Time limits for WRC initial determinations regarding requests for infor- meetings, the Director shall consult mation. with the Interagency Liaison Com- 701.205 Time limit for requester to appeal mittee. It also provides that the Coun- an initial adverse determination. cil Members shall be continuously ad- 701.206 Time limit for WRC final determina- vised of the significant actions of the tions regarding requests for information Council staff. Council Members expect appealed by the requester from an initial to participate personally in the work of adverse determination. the Council. 701.207 Extension of time limits for WRC initial and final determinations. 701.208 WRC petition for judicial extension § 701.2 Creation and basic authority. of time. The Water Resources Council was es- 701.209 River basin commissions and field tablished by the Water Resources Plan- committees. ning Act of 1965 (Pub. L. 89–80, 79 Stat. 244, as amended (42 U.S.C. 1962–1962d– Subpart E—Protection of Privacy 5)). The rules and regulations of this 701.300 Purpose and scope. part are promulgated by authority of

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section 402 of the Act (42 U.S.C. 1962d– (e) To coordinate schedules, budgets, 1). and programs of Federal agencies in comprehensive interagency regional or [41 FR 20548, May 19, 1976] river basin planning. § 701.3 Purpose of the Water Re- (f) To carry out its responsibilities sources Council. under Title II of the Act with regard to It is the purpose of the Water Re- the creation, operation, and termi- sources Council to effectuate the pol- nation of Federal-State river basin icy of the United States in the Water commissions. Resources Planning Act (hereinafter (g) To receive plans or revisions the Act) to encourage the conserva- thereof submitted by river basin com- tion, development, and utilization of missions in accordance with section water and related land resources of the 204(3) of the Act (42 U.S.C. 1962b(3)), and United States on a comprehensive and to review and transmit them, together coordinated basis by the Federal Gov- with its recommendations, to the ernment, States, localities, and private President in accordance with section enterprise with the cooperation of all 104 of the Act (42 U.S.C. 1962a–3). affected Federal agencies, States, local (h) To assist the States financially in governments, individuals, corpora- developing and participating in the de- tions, business enterprises, and others velopment of comprehensive water and concerned, within the limitations set related land resources plans in accord- forth in section 3 of the Act (42 U.S.C. ance with Title III of the Act. 1962–1). (i) To perform such other functions as the Council may be authorized by § 701.4 Functions. law, executive orders, regulations, or The functions of the Water Resources other appropriate instructions to per- Council are: form. (a) To maintain a continuing study (j) To take such actions as are nec- and prepare periodically an assessment essary and proper to implement the of the adequacy of supplies of water Act and to carry out the functions enu- necessary to meet the water require- merated herein. ments in each water resource region in the United States and of the national § 701.5 Organization pattern. interest therein. (a) The Office of the Water Resources (b) To maintain a continuing study of Council is composed of the Water Re- the relation of regional or river basin sources Council, the Chairman of the plans and programs to the require- Water Resources Council, the Water ments of larger regions of the Nation. Resources Council Staff headed by a (c) To appraise the adequacy of ad- Director, and Field Organizations with- ministrative and statutory means for in its jurisdiction. coordination and implementation of (b) The Water Resources Council con- the water and related land resources sists of the following Members: The policies and programs of the several Secretary of Agriculture; the Secretary Federal agencies and to make rec- of the Army; the Secretary of Com- ommendations to the President with merce; the Secretary of Energy; the respect to Federal policies and pro- Secretary of Housing and Urban Devel- grams. opment; the Secretary of the Interior; (d) To establish, after consultation the Secretary of Transportation; and with appropriate interested Federal the Administrator of the Environ- and non-Federal entities, and with ap- mental Protection Agency. proval of the President, principles, (c) The Chairman of the Council is standards, and procedures for Federal designated by the President. participation in the preparation of (d) The Water Resources Council staff comprehensive regional or river basin is employed, assigned duties and re- plans and for the formulation and eval- sponsibilities, and supervised by the uation of Federal water and related Director. land resources projects, including pri- (e) The Council Members shall estab- mary direct navigation benefits as de- lish an Interagency Liaison Com- fined by section 7a, Pub. L. 89–670. mittee. Task forces may be established

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and assigned duties by the Director fied in written communications must with the concurrence of the Members, receive approval of all Members. If an and/or action of the Council. Any Coun- action item does not receive approval cil Member may provide each task of all Members, it will be considered as force with whatever representation he an agenda item at the next Council or she deems necessary. meeting. For purposes of this section, (f) Field organizations are estab- approval of all Members shall be de- lished by or operate under the Council fined as approval without a negative and include field committees formerly vote within the time limit for voting under the Inter-Agency Committee on provided within each action memo- Water Resources and the offices of the randum. Decisions affecting the au- Chairmen of Federal-State River Basin thority or responsibility of a Member, Commissions established under Title II within the meaning of section 3(b) of of the Act. the Act, (42 U.S.C. 1962–1(b)), can be made only with that Member’s concur- § 701.6 Location of office. rence. The Headquarters is located in the (a) Each of the Members in § 701.5(b) Washington, DC area. shall designate in writing to the Chair- man, with a copy to the Director, those Subpart B—Headquarters individuals who may act as their Alter- nates in fulfilling the duties as a Mem- Organization ber. Each Member shall designate one Alternate and one second Alternate to SOURCE: 43 FR 25945, June 15, 1978, unless represent the Member on the Council. otherwise noted. (b) A quorum for the transaction of business at Council meetings shall con- § 701.51 The Council. sist of five or more Members and a ma- Decisions of the Council are made as jority shall consist of at least four hereinafter described in §§ 701.53 and votes. 701.54. (c) Each Member has equal responsibility and authority in all decisions § 701.52 Definitions. and actions of the Council. Each Mem- As used in this part the term Member ber may place an item on a meeting means the Secretary of Agriculture, agenda or, acting through the Director, the Secretary of the Army, the Sec- circulate in writing an item for Council retary of Commerce, the Secretary of action. Each Member, as well as each Energy, the Secretary of Housing and Associate Member and each Observer, Urban Development, the Secretary of shall have full access to all informa- the Interior, the Secretary of Trans- tion relating to the performance of his portation, and the Administrator of duties and responsibilities. the Environmental Protection Agency, (d) No vote shall be taken at Council or Alternate appointed in accordance meetings until each Member and Asso- with § 701.53(a) when the alternate is ciate Member present has had full op- acting for one of the above-named. portunity to express his views. (e) Members shall meet regularly at § 701.53 Council decisions by Members. least quarterly, upon the call of the Council decisions by Members may Chairman, or when requested by a ma- be made by direct vote at Council jority of Members. meetings or by a written communica- (f) Matters specifically reserved for tion which may provide for either a Council decision by Members are: written or telephone response. Written (1) Actions requiring Presidential ac- communications shall state the time tion or approval. limit for voting on issues which they (2) Approval of Annual Budget re- contain; however, extensions of time quests and the Annual Operating Pro- may be granted by the Director or gram of the Office of the Water Re- Chairman when it is deemed necessary. sources Council. Issues raised at Council meetings shall (3) Decisions involving substantial be decided by majority vote of Mem- policy issues. bers present and voting. Issues identi- (4) Delegations of authority.

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(5) Determination that testimony work of the Council to become Asso- taken or evidence received shall be ciate Members. Associate Members, on taken under oath. the same terms and conditions as Mem- (6) Issuance of invitations to become bers, may designate persons, in accord- Associate Members or Observers. ance with the same procedure identi- (7) Appointment and termination of fied in § 701.53(a), to serve for them as the appointment of the Director. Associate Members. [43 FR 25945, June 15, 1978, as amended at 45 (b) Associate Members may partici- FR 24460, Apr. 10, 1980] pate with Members in consideration of all matters relating to their areas of § 701.54 Interagency Liaison Com- responsibility, except that their con- mittee. currence on a decision of the Council is There is established within the Coun- not required. cil an Interagency Liaison Committee (hereafter referred to as ILC). § 701.56 Observers. (a) The ILC shall be composed of one (a) Chairmen and Vice-Chairmen of representative for each Member, Asso- River Basin Commissions established ciate Member, and Observer. Addi- tional agency representatives may par- under Title II of the Act shall be Ob- ticipate in the ILC meeting whenever servers. necessary. (b) The Chairman, with the concur- (b) The chairmanship of the ILC shall rence of the Council, may invite the rotate quarterly among the Members’ heads of offices or other officials of the representatives. Secretarial assistance Executive Office of the President or shall be the responsibility of the ILC other Federal agencies to become Ob- Chairman. servers. (c) The function of the ILC will be to (c) Observers may designate persons provide a forum for discussion of agen- to attend Council meetings of Mem- da items prior to Council meetings to bers. Observers will be furnished agen- advise the Director of the Members’ da and other materials on the same views on such agenda items, and with basis as Associate Members. the Director, to develop the final agenda. It shall be the duty of the Director § 701.57 Official decisions of the Coun- or his representative to brief the ILC cil. on each agenda item at these meetings. Official decisions of the Council shall (d) The ILC may meet at other times be of record. Such decisions shall be re- upon the call of the Chairman or Direc- corded in accepted minutes of duly tor, to consider other items. called regular or special meetings or (e) Draft agenda items shall be sub- set forth in resolutions, memoranda, or mitted to ILC representatives at least 30 days prior to the Council meeting. other documents approved by Members. The ILC shall meet at least 20 days Decisions which would affect the au- prior to the Council meeting. Final thority and responsibilities of heads of Council agenda material shall be sub- other Federal agencies, including Asso- mitted to the Members at least 7 days ciate Members, within the meaning of prior to the Council meeting. section 3(b) of the Act, shall only be (f) All ILC meetings will be open ex- made during a regular or special meet- cept when privileged information is ing of Members and recorded in the discussed. At such meetings only rep- minutes thereof. resentatives of Members shall be present. § 701.58 Task forces. [43 FR 25945, June 15, 1978, as amended at 45 The Director with Council concur- FR 58834, Sept. 5, 1980] rence or the Council may establish task forces from time to time to aid in § 701.55 Associate Members. the preparation of issues for presen- (a) The Chairman, with concurrence tation to the Council. of the Council, may invite the heads of (a) Any Member, Associate Member, other Federal agencies having authori- or Observer may provide representa- ties and responsibilites relating to the tion on each task force.

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(b) The Director or the Council may § 701.71 The Chairman. designate the chairman of each task (a) The Chairman shall preside at force. Council Meetings of Members. (c) For each task force, the Director (b) The Chairman is the official or the Council shall set forth the pur- spokesman of the Council and rep- pose and specific functions of each task resents it in its relations with the Con- force and their termination dates in es- gress, the States, Federal agencies, tablishing such task forces. Such char- persons, or the public. He shall from ter documents shall also identify the time to time report, on behalf of the relationship of each task force to func- Council, to the President. He shall tions of the Council. keep the Council apprised of his ac- (d) Each duly constituted task force tions under this section. will be provided administrative and (c) The Chairman shall request the secretarial support by the Water Re- heads of other Federal agencies to par- sources Council Staff to the extent pos- ticipate with the Council when matters sible, directly or through arrangements affecting their responsibilities are con- with other Federal agencies. sidered by the Council. (d) In the case of absence, disability, § 701.59 Advisory committees. or vacancy, the acting Chairman shall The Council may establish standing be, in order of precedence, as des- and ad hoc advisory committees. The ignated (1) by the President (2) by the establishment, operation, and termi- Chairman from among the Members, or (3) by the Council from among the nation of such committees shall be in Members. accordance with the Federal Advisory Committee Act (Pub. L. 92–463) and § 701.76 The Water Resources Council other pertinent law and directives. Staff. § 701.60 Procedures for revision of The Water Resources Council Staff rules and regulations. (hereinafter the Staff) serves the Coun- cil and the Chairman in the perform- Revisions proposed by the Water Re- ance of their functions and in the exer- sources Council Members to the Prin- cise of their authorities in accordance ciples and Standards Manual of Proce- with the Act, the rules and regulations dures promulgated as rules and regula- and other decisions of the Council, and tions by the Water Resources Council all other laws, rules, regulations, and are to be submitted in writing by one orders applicable to the Water Re- or more Members of the Water sources Council, and will be organized Resouces Council to the Director, in accordance with a structure ap- Water Resources Council, to be handled proved by the Council. as an action item in accordance with § 701.53. Proposed revisons adopted by § 701.77 Director—duties and respon- the Council in accordance with § 701.53 sibilities. will be published in the FEDERAL REG- The Director shall serve as the prin- ISTER as proposed interim, or final cipal executive officer for the Council changes. Proposed or interim changes and as the head of the staff, and shall shall be subject to a minimum 60-day see to the faithful execution of the public comment period; after the com- policies, programs, and decisions of the ment period, the Water Resources Council; report thereon to the Council Council will publich notice that the re- from time to time or as the Council vision is final as written or as changed may direct; administer the office and to reflect comment or is revoked. Final staff of the Council within the limits of changes will not be subject to a public the Annual Budget and the Annual Op- comment period following publication erating Program related thereto; make recommendations to the Council and in the FEDERAL REGISTER and will become effective when published or at the Chairman relating to the performance of their functions and the exercise specified date. of their authorities; and facilitate the [44 FR 72584, Dec. 14, 1979] work of the Council and the Chairman.

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His duties and responsibilities include, the work of the Council, within the ap- but are not limited to, the following: propriations provided by the Congress (a) Acting for the Chairman, rep- and allowances approved by the Office resents the Council in its relations of Management and Budget. with the Congress, States, Federal (h) Prepares and recommends pro- agencies, persons, or the public under posed rules and regulations, including the general supervision and direction proposed delegations of authority, for of the Council. carrying out the provisions of the Act, (b) Establishes the line of succession or other provisions of law which are ad- as Acting Director among the other of- ministered by the Council. ficers of the Council below the Deputy (i) Prepares and recommends reports Director. and materials for public information (c) Directs the Staff in its service to that are explanatory of the work and the Council and the Chairman in the accomplishments of the Council. performance of their functions and in (j) Appoints staff representatives to the exercise of their authorities. The each task force established pursuant to Director is responsible to the council § 701.58. for the organization of the Staff, em- (k) Establishes and enforces adminis- ployment and discharge of personnel, trative rules and regulations per- training and personnel development taining to the Staff consistent with ap- program, assignment of duties and re- plicable laws, Executive Orders, Budget sponsibilities, and the conduct of its Circulars, and other regulations and work. orders. (d) Insures that the quality of the work of the Staff in its studies, re- § 701.78 Director—delegation of au- ports, and in other assignments is high thorities. that the professional integrity of its (a) Under the authority of section 403 personnel is respected, and that its of the Act (42 U.S.C. 1962d–2), the Direc- overall perspective and independence of tor is delegated authority to: judgment with regard to water and related land resources matters is ap- (1) Hold hearings, sit and act at such proximately maintained within the times and places, take such testimony, context of the inter-agency, intergov- receive such evidence, and print or oth- ernmental, and other staff collabora- erwise reproduce and distribute so tion that is both necessary and desir- much of its proceedings and reprints able in the fulfillment of the purpose of thereon as he may deem advisable. the Council as set forth in § 701.3. (2) Acquire, furnish, and equip such (e) Prepares and recommends reports office space as is necessary. on legislation, Executive orders, and (3) Use the U.S. mails in the same other documents requested of the manner and upon the same conditions Council. as other departments and agencies of (f) Prepares and recommends an An- the United States. nual Budget request in accordance with (4) Employ and fix compensation of policies, rules, and regulations applica- all personnel as the Director deems ad- ble thereto. During its consideration visable in accordance with the civil by the Office of Management and Budg- service laws and the Classification Act et the President and the Congress, the of 1949, as amended; assign duties and Director shall seek acceptance of the responsibilities among such personnel proposed Annual Budget by every ap- and supervise personnel so employed. propriate means. On behalf of the (5) Procure services as authorized by Council, he is authorized in his section 15 of the Act of August 2, 1946 descretion to make appeals and agree (5 U.S.C. 3109), at rates not in excess of to adjustments. However, to the extent the daily equivalent of the rate pre- that time and circumstances permit, scribed for grade GS–18 under section he shall consult with and obtain the 5332 of Title 5 of the United States approval of the Council on all substan- Code in the case of individual experts tial appeals and adjustments. or consultants. (g) Prepares and recommends the An- (6) Purchase, hire, operate, and main- nual Operating Program to carry out tain passenger motor vehicles.

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(7) Utilize and expend such funds as Director shall be guided by the fol- are deemed advisable for proper admin- lowing criteria: istration of the authorities delegated (a) Outstanding character and com- herein. However, contract and indi- petence—both personal and profes- vidual modifications there of in excess sional. of $100,000 or which involve significant (b) Spread and balance of training policy decisions shall be submitted to and experience in the several relevant the Council for approval before execu- professions—ecology; economics; eco- tion. nomic geography; engineering; fish and (8) Request any Federal department wildlife biology; forestry; hydrology; or agency (i) to furnish to the Council irrigation; landscape architecture; law; such information as may be necessary political science; recreation; sanitary for carrying out its functions and as engineering; soil conservation; urban may be available to or procurable by and other land planning; etc. such department or agency, and (ii) to (c) Diversity of prior identification detail personnel to temporary duty and experience, both planning and op- with the Council on a reimbursable basis. erating in Washington and in the field; including personnel with prior identi- (9) Make available for public inspection during ordinary office hours all fication and experience with Federal, appropriate records and papers of the State, or local government, private en- Council. terprise, or university teaching and re- (10) Compute and certify for payment search. funds to the States in accordance with standards and formula approved by the Subpart C—Field Organization Council, and perform related functions of the Council contained in section 305 SOURCE: 39 FR 20590, June 12, 1974, unless of the Act. otherwise noted. (11) Serve as a duly authorized representative of the Chairman of the § 701.100 Field Directors. Council for the purpose of audit and ex- The Council may employ as profes- amination of any pertinent books, doc- sional staff Field Directors who shall uments, papers, and records of the re- be designated as chairmen of commit- cipient of a grant under Title III of the tees or groups established by the Coun- Act, and recommend to the Chairman cil to develop and prepare regional or the appointment of further representatives as may be necessary for such river basin assessments or plans. Such function. Field Directors shall perform their offi- (12) Review, for compliance, State cial functions at locations established programs approved under Title III; con- by the Council. duct full inquiries as the Council may § 701.101 Field committees. direct; and recommend for Council decision such withholding or reinstate- The Council may establish or con- ment of payments as is appropriate and tinue already established regional com- authorized by section 304 of the Act. mittees to carry out assigned functions (13) Serve as the ‘‘responsible agency at field level. official’’ under part 705 of these rules and regulations. § 701.102 Existing committees. (b) The authorities delegated in this Field Committees operating under section may be redelegated by the Di- the Water Resources Council (formerly rector to the extent determined by him under the Inter-Agency Committee on to be necessary and desirable for proper Water Resources) are as follows: administration. Pacific Southwest Inter-Agency Committee § 701.79 Selection policy for profes- Arkansas-White-Red Inter-Agency Com- sional personnel. mittee In the selection for employment of Southeast Basins Inter-Agency Committee the professional staff as a whole, the

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Subpart D—Availability of records would (i) interfere with en- Information forcement proceedings, (ii) deprive a person of a right to a fair trial or an impartial adjudication, (iii) constitute AUTHORITY: 5 U.S.C. 552 as amended by Pub. L. 93–502, 88 Stat. 1561; 42 U.S.C. 1962d– an unwarranted invasion of personal 1. privacy, (iv) disclose the identity of a confidential source and, in the case of SOURCE: 40 FR 7253, Feb. 19, 1975, unless otherwise noted. a record compiled by a criminal law enforcement authority in the course of a § 701.200 Statement of policy. criminal investigation, or by an agency Water Resources Council records and conducting a lawful national security informational materials are available intelligence investigation, confidential to the fullest extent possible consistent information furnished only by the con- with 5 U.S.C. 552, as amended, and will fidential source, (v) disclose investiga- be promptly furnished to any member tive techniques and procedures, or (vi) of the public. endanger the life or physical safety of law enforcement personnel; § 701.201 Availability of records and (8) Contained in or related to exam- informational materials. ination, operating, or condition reports (a) Except for records and materials prepared by, on behalf of, or for the use exempted from disclosure pursuant to of an agency responsible for the regula- paragraph (b) of this section, any per- tion or supervision of financial institu- son may inspect and copy any docu- tions; or ment in the possession and custody of (9) Geological and geophysical infor- the Water Resources Council in accord- mation and data, including maps, con- ance with the procedure provided in cerning wells. § 701.202. (b) The provisions of 5 U.S.C. 552 Any reasonably segregable portion of a which require that agencies make their record shall be provided to any person records available for public inspection requesting such record after deletion of and copying do not apply to matters the portions which are exempt under which are: this subsection. (1)(i) Specifically authorized under criteria established by an Executive § 701.202 Procedure for requests for order to be kept secret in the interest information. of national defense or foreign policy (a) A member of the public who re- and quests records or materials from the (ii) Are in fact properly classified Water Resources Council must provide pursuant to such Executive order; a reasonable description of the records (2) Related solely to the internal per- or materials sought so that such sonnel rules and practices of an agen- records or materials may be located cy; without undue search or inquiry. (3) Specifically exempted from disclo- (b) Requests which reasonably de- sure by statute; scribe the records or materials sought (4) Trade secrets and commercial or should be directed to the Public Infor- financial information obtained from a mation Officer, Water Resources Coun- person and privileged or confidential; (5) Inter-agency or intra-agency cil, Suite 800, 2120 L Street NW., Wash- memorandums or letters which would ington, DC 20037. not be available by law to a party (c) To insure that requests for infor- other than an agency in litigation with mation are processed as expeditiously the agency; as possible, all Freedom of Information (6) Personnel and medical files and Act (FOIA) requests should be clearly similar files the disclosure of which identified by the requester as such on would constitute a clearly unwarranted the envelope and in the letter. invasion of personal privacy; (d) Records or materials will be (7) Investigatory records compiled for available for inspection and copying in law enforcement purposes but only to person during normal business hours or the extent that the production of such by mail.

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(e) Requests for records which origi- (g) The Council reserves the right to nate in or concern matters which origi- limit the number of copies of any docu- nate in another department or agency ment that will be provided to any one may be forwarded to the department or person. agency primarily concerned and the requester so notified. § 701.204 Time limits for WRC initial determinations regarding requests § 701.203 Schedule of fees. for information. (a) The Public Information Officer (a) An initial determination to grant will to the extent practicable, encour- or deny each request for information age the widest possible distribution of will be made within ten (10) working information by permitting requests for days of receipt of such request. inspection or copies of records or mate- (b) The requester shall be notified rials to be met without cost to the per- immediately of the initial determina- son making the request. tion and the reasons therefor. (b) Fees will be charged in the case of (c) The Public Information Officer requests which are determined by the Public Information Officer to involve a will make initial determinations to burden on staff or facilities signifi- grant requests for information. cantly in excess of that normally ac- (1) In those instances where the ini- cepted by the Council in handling rou- tial determination by the Public Infor- tine requests for information. mation Officer is to grant the request (c) In all instances where the Public and the information is immediately Information Officer determines that a supplied such action will serve as both request for information can be consid- notice of determination and compli- ered as primarily benefiting the gen- ance with the request. eral public (despite a § 701.203 deter- (2) In those instances where the ini- mination of burden), such request shall tial determination by the Public Infor- be met either without cost wherever mation Officer is to grant the request, practicable or at a reduced cost to the but the information is not immediately requester. Any such reduction shall be available, the Public Information Offi- determined by the Public Information cer will send immediate notice of the Officer on the basis of the balance be- determination to comply, and the ap- tween the benefit to the general public proximate date the information will be and the cost to the Water Resources forwarded. Council. (d) The Public Information Officer (d) Fees shall be limited to recovery will make initial determination to of only direct costs of search and dupli- deny the requests only with the con- cation but in no event shall the fee for currence of the General Counsel. The search and duplication exceed $2.50 per requester shall be notified immediately half hour, nor shall the fee for copying of the initial adverse determination, exceed $0.25 per page (maximum per page dimension of 8×14 inches). the reasons therefor, and the right to (e) Unless a request for information appeal the initial adverse determina- specifically states that whatever cost tion to the Director. is involved will be acceptable, or ac- § 701.205 Time limit for requester to ceptable up to a specified limit that appeal an initial adverse deter- covers anticipated costs, a request that mination. is expected to involve an assessed fee in excess of $50.00 will not be deemed to (a) The requester shall have thirty have been received until the requester (30) calendar days to file with the Di- is advised promptly upon physical re- rector an appeal from an initial ad- ceipt of the request of the anticipated verse determination. The appeal must cost and agrees to bear it. be in writing. (f) When anticipated fees exceed (b) The thirty (30) day period of ap- $50.00, a deposit for 25% of the amount peal shall run from receipt of the ini- must be made within 10 days of the no- tial adverse determination (in cases of tice to the requester of the initial de- denials of an entire request) and from termination. receipt of any records being made

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available pursuant to the initial ad- (3) The need for consultation, which verse determination (in cases of partial shall be conducted with all practicable denials). speed, with another agency having a substantial interest in the determina- § 701.206 Time limit for WRC final de- tion of the request or among two or terminations regarding requests for more components of the agency having information appealed by the re- substantial subject-matter interest quester from an initial adverse de- therein. termination. The Director shall make a final de- § 701.208 WRC petition for judicial ex- termination with respect to any appeal tension of time. within twenty (20) working days after The provisions of § 701.206 notwith- receipt of such appeal. If the initial ad- standing, the Director may petition for verse determination is in whole or in judicial extension of time when excep- part upheld by the Director, the re- tional circumstances warrant such ac- quester shall be notified of the final ad- tion. verse determination and the provisions for judicial review of that determina- § 701.209 River basin commissions and tion as stated in the Freedom of Infor- field committees. mation Act, as amended (see 5 U.S.C. (a) River basin commissions estab- 552(a)(4) et seq.; as amended by Pub. L. lished pursuant to Title II of the Water 93–502). Resources Planning Act are encouraged to establish, pursuant to section 205(c) § 701.207 Extension of time limits for of that Act, procedures for public avail- WRC initial and final determinations. ability of information that are consistent with 5 U.S.C. 552, as amended, (a) In unusual circumstances, as and this subpart. specified in this section, the time lim- (b) Field committees will be governed its prescribed in either § 701.203 or by the procedures adopted by the lead § 701.204 may be extended by written Federal agency to implement 5 U.S.C. notice from the responsible WRC offi- 552, as amended; except that if the lead cial (i.e., the Public Information Offi- agency of a field committee is a non- cer in instances of initial requests and Federal entity, the standards of this the Director in instances of appeals) to subpart shall apply. the requester setting forth the reasons (c) Requests for documents and infor- for such extension and the date on mational materials may be made to which a determination is expected to the chairmen of the field committees be dispatched. No such notice shall and river basin commissions at the fol- specify a date that would result in an lowing addresses. extension for more than ten (10) work- (1) River Basin Commissions: ing days, and in no event shall the total extended time exceed ten (10) Great Lakes Basin Commission, P.O. Box 999, working days with respect to a par- Ann Arbor, Michigan 48106; ticular request. New England River Basins Commission, 55 (b) As used in this section, unusual Court Street, Boston, Massachusetts 02108; Ohio River Basin Commission, 36 East 4th circumstances means, but only to the Street, Suite 208–220, Cincinnati, Ohio extent reasonably necessary to the 45202; proper processing of the particular re- Pacific Northwest River Basins Commission, quest: P.O. Box 908, Vancouver, Washington 98660; (1) The need to search for and collect Upper Mississippi River Basin Commission, the requested records from field facili- Federal Office Building, Room 510, Fort ties or other establishments that are Snelling, Twin Cities, Minnesota 55111; separate from the office processing the Missouri River Basin Commission, 10050 Re- gency Circle, Suite 403 Omaha, Nebraska request; 68114. (2) The need to search for, collect, and appropriately examine a volumi- (2) Field Committees: nous amount of separate and distinct Arkansas-White-Red Inter-Agency Com- records which are demanded in a single mittee, Room 4030, Federal Building, Albu- request; or querque, New Mexico 87101;

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Pacific Southwest Inter-Agency Committee, assigned to the individual, such as a 630 Sansome Street, Room 1216, San Fran- finger or voice print or a photograph; cisco, California 94111; (e) Adverse determination means a de- Southeast Basins Inter-Agency Committee, 402 New Walton Building, Atlanta, Georgia cision by the proper Council official to 30303. deny, in whole or in part, a request from an individual for a correction or [40 FR 7253, Feb. 19, 1975, as amended at 40 amendment of a record concerning the FR 10668, Mar. 7, 1975] individual and maintained by the Council; and Subpart E—Protection of Privacy (f) Record system means system of records as defined in the Act, i.e., a AUTHORITY: Sec. 402, Water Resources group of any records under the control Planning Act of 1965 (Sec. 402, Pub. L. 89–80; of the Council from which information 79 Stat. 254, as amended (42 U.S.C. 1962d–1)) and the Privacy Act of 1974 (Pub. L. 93–579; 88 is retrieved by the name of the indi- Stat. 1896 (5 U.S.C. 552a)). vidual or by some identifying particular assigned to the individual. SOURCE: 40 FR 45676, Oct. 2, 1975, unless otherwise noted. § 701.302 Procedures for notification of existence of records pertaining to § 701.300 Purpose and scope. individuals. (a) The purpose of this subpart is to (a) The systems of records, as defined set forth rules to inform the public in the Privacy Act of 1974, maintained about information maintained by the by the Council are listed annually in U.S. Water Resources Council relating the FEDERAL REGISTER as required by to identifiable individuals and to in- that Act. Any individual may request form those individuals how they may the Council to inform him or her gain access to and correct or amend in- whether a particular record system formation about themselves. named by the individual contains a (b) The regulations in this subpart record pertaining to him or her. The implement the requirements of the Pri- request may be made in person during vacy Act of 1974 (Pub. L. 93–579; 88 Stat. business hours or in writing at the lo- 1896 (5 U.S.C. 552a)). cation and to the person specified in (c) The regulations in this subpart the notice describing that record sys- apply only to records disclosed or re- tem. quested under the Privacy Act of 1974, and not requests for information made (b) An individual who believes that pursuant to the Freedom of Informa- the Council maintains records per- tion Act, as amended (5 U.S.C. 552, as taining to him or her but who cannot amended by Pub. L. 93–502). determine which records system contains those records, may request assist- § 701.301 Definitions. ance by mail or in person at the Divi- sion of Program Coordination and Man- For the purposes of this subpart, un- agement, 2120 L Street, NW., Wash- less otherwise required by the context: ington, DC 20037, during business hours (a) Council means the U.S. Water Re- (8:00 A.M. through 4:30 P.M., Monday sources Council; through Friday, excluding legal holi- (b) Individual means a citizen of the days). United States or an alien lawfully admitted for permanent resident; (c) The Council will attempt to re- (c) Maintain means maintain, collect, spond to a request as to whether a use or disseminate; record exists within 10 working days (d) Record means any item, collec- from the time it receives the request or tion, or grouping of information about to inform the requestor of the need for an individual that is maintained by the additional time or additional informa- Council, including, but not limited to, tion within 10 working days. If a re- his education, financial transactions, quest is complied with within 10 work- medical history and criminal or em- ing days, no separate acknowledgment ployment history, and that contains will be made. his name, or the identifying number, [40 FR 45676, Oct. 2, 1975, as amended at 41 FR symbol, or other identifying particular 8343, Feb. 26, 1976]

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§ 701.303 Conditions of disclosure. (8) To a person pursuant to a showing (a) Subject to the conditions of para- of compelling circumstance affecting graphs (b) and (c) of this section, the the health or safety of an individual: Council will not disclose any record Provided, That upon such disclosure no- which is contained in a system of tification is transmitted to the last records, by any means of communica- known address of such individual (and tion to any person who is not an indi- see § 701.306); vidual to whom the record pertains. (9) To either House of Congress, and (b) Upon written request or with to the extent of a matter within its ju- prior written consent of the individual risdiction, any committee or sub- to whom the record pertains, the Coun- committee, or joint committee of Con- cil may disclose any such record to any gress; person or other agency. (10) To the Comptroller General, or (c) In the absence of a written con- any of his authorized representatives sent from the individual to whom the in the course of the performance of the record pertains, the Council may dis- duties of the GAO; or close any such record provided such (11) Under an order of a court of com- disclosure is: petent jurisdiction. (1) To those officers and employees of the Council who have a need for the § 701.304 Procedures for identification of individuals making requests. record in the performance of their duties; (a) Each individual requesting the (2) Required under the Freedom of In- disclosure of a record or copy of a formation Act (5 U.S.C. 552); record will furnish the following infor- (3) For a routine use compatible with mation with his or her request: the purpose for which it was collected; (1) The name of the record system (4) To the Bureau of Census for pur- containing the record; poses of planning or carrying out a cen- (2) Proof as described in paragraph sus or survey or related activity under (b) of this section that he or she is the the provisions of Title 13 of the United individual to whom the requested States Code; record relates; and (5) To a recipient who has provided (3) Any other information required the Council with adequate advance by the notice describing the record sys- written assurance that the record will tem. be used solely as a statistical research (b) Proof of identity as required by or reporting record, and the record is paragraph (a)(2) of this section will be to be transferred in a form that is not provided as described in paragraph individually identifiable; (b)(1) and (2) of this section. Requests (6) To the National Archives of the made by an agent, parent, or guardian United States as a record which has will include the authorization de- sufficient historical or other value to scribed in § 701.310(a) and (b). warrant its continued preservation by (1) Requests made in writing will in- the United States government, or for clude a statement, signed by the indi- evaluation by the Administrator of vidual and properly notarized, that he General Services or his designee to de- or she appeared before a notary public termine whether the record has such and submitted proof of identification value; in the form of a drivers license, birth (7) To another agency or to an instru- certificate, passport or other identi- mentality of any governmental juris- fication acceptable to the notary pub- diction within or under the control of lic. In any case in which, because of the the United States for a civil or crimi- extreme sensitivity of the record nal law enforcement activity author- sought to be seen or copied, the agency ized by law: Provided, The head of the determines that the identification is agency or instrumentality has made a not adequate, it may request the indi- prior written request to the Assistant vidual to submit additional proof of Director Program Coordination and identification. Management specifying the particular (2) If the request is made in person, record and the law enforcement activ- the requester will submit proof of iden- ity for which it is sought; tification similar to that described in

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paragraph (b)(1) of this section, accept- a medical doctor, that disclosure of the able to the Council. information would have an adverse effect on the requester. The Council may [41 FR 8343, Feb. 26, 1976] then disclose that information to a § 701.305 Procedures for requests for medical doctor specified by the indi- access to or disclosure of records vidual, rather than to that individual, pertaining to individuals. either in person or by mail. (a) After being informed by the Coun- [40 FR 45676, Oct. 2, 1975, as amended at 41 FR cil that a system of records contains a 8343, Feb. 26, 1976] record pertaining to him or her, an individual may request the Council for § 701.307 Request for correction or access to or disclosure of that record to amendment to record. him or her in the manner described in (a) Any individual who has reviewed this section. Each such request of a a record pertaining to him that was record or a copy of it will be made at furnished to him under this subpart, the place specified in the notice de- may request the agency to correct or scribing that system of records, either amend all or any part of that record. in writing or in person. Requests may (b) Each individual requesting a cor- be made by agents, parents, or guard- rection or amendment will send the re- ians of individuals as described in quest to the agency official who fur- § 701.310(a) and (b). nished the record to him. (b) The request for access to or dis- (c) Each request for a correction or closure of a record should specifically amendment of a record will contain the identify the systems of records in- following information: volved. (1) The name of the individual re- (c) The Council will attempt to af- questing the correction or amendment; firm or deny a request within 10 work- (2) The name of the system of records ing days from the time it receives the in which the record sought to be cor- request or to inform the requester of rected or amended is maintained; the need for additional time, additional (3) The location of that record in the information, identification, or the ten- system of records; dering of fees (as specified in § 701.312), (4) A copy of the record sought to be within 10 working days; except that if corrected or amended or a description the request for access was not preceded of that record; by a notification request as provided in (5) A statement of the material in the § 701.302, then the 10-day period will not record requested to be corrected or begin until after such time as it has amended; been determined that the record exists. (6) A statement of the specific word- If a request is complied with within 10 ing of the correction or amendment working days, no separate acknowl- sought; and edgement will be made. (7) A statement of the basis for the requested correction or amendment, in- [41 FR 8343, Feb. 26, 1976] cluding any material that the individual can furnish to substantiate the § 701.306 Special procedure: Medical reasons for the correction or amend- records. ment sought. (a) An individual requesting disclosure of a record which contains medical § 701.308 Council review of request for or psychological information may correction or amendment of record. name a medical doctor or other person (a) Not later than 10 days (excluding to act as his agent as described in Saturdays, Sundays, and legal holi- § 701.310(a). Records containing medical days) after the receipt of the request or psychological information may be for the correction or amendment of a disclosed to that agent rather than to record under § 701.307, the Council will the individual at the individual’s re- acknowledge receipt of the request and quest. inform the individual whether further (b) If the individual has not named a information is required before the cor- medical doctor as agent, the Council rection or amendment can be consid- may determine, after consultation with ered.

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(b) The Council will promptly review days) after the date on which the Coun- the request and either make the re- cil received the appeal, the Director quested correction or amendment or will complete his review of the appeal notify the individual of the initial ad- and make a final decision thereon. verse determination, including in the However, for good cause shown, the Di- notification the reasons for the adverse rector may extend that 30 day period determination and the appeal proce- by not more than an additional 30 dure provided by § 701.309. working days. If the Director so ex- (c) The Assistant Director, Program tends the period, he will promptly no- Coordination and Management, or his tify the individual requesting the re- designee, will, after consulting with view that the extension has been made the General Counsel, or his designee, and the reasons therefor. have the primary authority to make an (d) After review of an appeal request, initial adverse determination. the agency will send a written notice (d) The Council will make each re- to the requester containing the fol- quested correction or amendment to a lowing information: record if that correction or amendment (1) The decision and, if the denial is will correct anything that is not accu- upheld, the reasons for the decision; rate, relevant, timely, or complete, and within the record. (2) The specific civil remedies avail- (e) If the requested correction or able to the requester as per section 2(g) amendment to a record is agreed to by of Pub. L. 93–579, as well as notice that the Council, the Council will, within 30 additional remedies may be appro- working days: priate and available to enable the full (1) Advise the individual; exercise of the requester’s rights at (2) Correct the record accordingly; law. and (3) The right to file with the Council (3) Where an accounting of disclo- a concise statement setting forth the sures had been made (as provided in requester’s reasons for disagreement § 701.311), advise all previous recipients with the Council’s refusal to correct or (including the individual) of the record amend the record. of the fact that the correction was [40 FR 45676, Oct. 2, 1975, as amended at 41 FR made and the substance of the correc- 8344, Feb. 26, 1976] tion. [40 FR 45676, Oct. 2, 1975, as amended at 41 FR § 701.310 Disclosure of record to per- 8343, Feb. 26, 1976] son other than the individual to whom it pertains. § 701.309 Appeal of initial adverse de- (a) Any individual who desires to termination. have a record covered by this subpart (a) Any individual whose request for disclosed to or mailed to a person other a correction or amendment, requested than that individual may authorize by him, to a record has been denied, in that person to act as his agent for that whole or in part, may appeal that deci- specific purpose. The authorization will sion to the Director of the Council. be in writing, signed by the individual, (b) The appeal will be in writing and and will be notarized. The agent will will: submit with the authorization proof of (1) Name the individual making the the individual’s identity as required by appeal; § 701.304(b). (2) Identify the record sought to be (b) The parent of any minor indi- amended; vidual or the legal guardian of any in- (3) Name the record system in which dividual who has been declared by a that record is contained; court of competent jurisdiction to be (4) Contain a short statement de- incompetent due to physical or mental scribing the amendment sought; and incapacity or age, may act on behalf of (5) State the name and location of that individual in any matter covered the Council official who made the ini- by this subpart. A parent or guardian tial adverse determination. who desires to act on behalf of such an (c) Not later than 30 days (excluding individual will present suitable evi- Saturdays, Sundays, and legal holi- dence of parentage or guardianship, by

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birth certificate, certified copy of a (b) If an individual requests the court order, or similar documents, and Council to furnish him with a copy of proof of the individual’s identity in a the record (when a copy has not other- form that complies with § 701.304(b). wise been made as a necessary part of (c) An individual to whom a record is the process of disclosing the record to to be disclosed in person pursuant to the individual), the Council will charge this subpart, may have a person of his a maximum fee of $0.25 per page (max- own choosing accompany the indi- imum per page dimension of 8×14 vidual when the record is disclosed. inches) to the extent that the request § 701.311 Accounting for disclosures. exceeds $5.00 in cost to the Council. Re- quests not exceeding $5.00 in cost to (a) Maintenance of an accounting. (1) the Council will be met without cost to Where a record is disclosed to any person, or to another agency, under any of the requester. the provisions of § 701.303 except [40 FR 45676, Oct. 2, 1975. Redesignated at 41 § 701.303(c)(1) and (2), an accounting will FR 8344, Feb. 26, 1976] be made. (2) The accounting will record (i) the § 701.313 Penalties. date, nature, and purpose of each dis- Title 18 U.S.C. 1001, Crimes and closure of a record to any person or to Criminal Procedures, makes it a crimi- another agency and (ii) the name and nal offense, subject to a maximum fine address of the person or agency to whom the disclosure was made. of $10,000 or imprisonment for not more (3) Accountings prepared under this than 5 years or both, to knowingly and section will be maintained for at least willfully make or cause to be made any five years or the life of the record, false or fraudulent statements or rep- whichever is longer, after the disclo- resentations in any matter within the sure for which the accounting is made. jurisdiction of any agency of the (b) Access to accounting. (1) Except for United States. Section 552a(i)(3) of the accounting of disclosures made under Privacy Act (5 U.S.C. 552a(i)(3)) makes § 701.303(c)(1) and (2), accountings of all it a misdemeanor, subject to a max- disclosures of a record will be made imum fine of $5,000, to knowingly and available to the individual to whom the willfully request or obtain any record record relates at his or her request. concerning an individual under false (2) An individual desiring access to pretenses. Section 552a(i)(1) and (2) of accountings of disclosures of a record the Privacy Act (5 U.S.C. 552a(i)(1) and pertaining to him or her will submit (2) provide penalties for violations by his request by following the procedures agency employees of the Privacy Act of § 701.305. or regulations established thereunder. (c) Notification of disclosure. When a record is disclosed pursuant to [40 FR 45676, Oct. 2, 1975. Redesignated at 41 § 701.303(c)(11) as the result of the order FR 8344, Feb. 26, 1976] of a court of competent jurisdiction, reasonable efforts will be made to no- § 701.314 Exemptions. tify the individual to whom the record No Council records system or sys- pertains as soon as the order becomes a tems are exempted from the provisions matter of public record. of 5 U.S.C. 552a as permitted under cer- [41 FR 8344, Feb. 26, 1976] tain conditions by 5 U.S.C. 552a(j) and (k). § 701.312 Fees. (a) The Council will not charge an in- [40 FR 45676, Oct. 2, 1975. Redesignated at 41 dividual for the costs of making a FR 8344, Feb. 26, 1976] search for a record or the costs of reviewing the record. When the Council PART 704—PLAN FORMULATION makes a copy of a record as a necessary STANDARDS AND PROCEDURES part of the process of disclosing the record to an individual, the Council Subparts A–D [Reserved] will not charge the individual for the cost of making that copy.

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Subpart E—Standards for Plan date of this section, and that rate shall Formulation and Evaluation continue to be used for such project until construction has been completed, unless the Congress otherwise decides. AUTHORITY: Sec. 402, 79 Stat. 254; 42 U.S.C. (e) Notwithstanding the provisions of 1962d–1. paragraphs (a) and (b) of this section, § 704.39 Discount rate. the discount rate to be used in plan formulation and evaluation during the re- (a) The interest rate to be used in mainder of the fiscal year 1969 shall be plan formulation and evaluation for 45⁄8 percent except as provided by para- discounting future benefits and computing costs, or otherwise converting graph (d) of this section. benefits and costs to a common time (f) Section V. G. 2 of the interagency basis, shall be based upon the average agreement dated May 15, 1962, approved yield during the preceding fiscal year by the President on May 15, 1962, enti- on interest-bearing marketable securi- tled ‘‘Policies, Standards, and Proce- ties of the United States which, at the dures in the Formulation, Evaluation, time the computation is made, have and Review of Plans for Use and Devel- terms of 15 years or more remaining to opment of Water and Related Land Re- maturity: Provided, however, That in no sources,’’ and published on May 29, event shall the rate be raised or low- 1962, as Senate Document No. 97, 87th ered more than one-quarter of 1 per- Congress, 2d Session, is superseded by cent for any year. The average yield the provisions of this section. shall be computed as the average dur- [33 FR 19170, Dec. 24, 1968] ing the fiscal year of the daily bid prices. Where the average rate so com- PART 705—NONDISCRIMINATION puted is not a multiple of one-eighth of IN FEDERALLY ASSISTED PRO- 1 percent, the rate of interest shall be the multiple of one-eighth of 1 percent GRAMS—EFFECTUATION OF TITLE nearest to such average rate. VI OF THE CIVIL RIGHTS ACT OF (b) The computation shall be made as 1964 of July 1 of each year, and the rate thus computed shall be used during the Sec. succeeding 12 months. The Executive 705.1 Purpose. Director shall annually request the 705.2 Definitions. Secretary of the Treasury to inform 705.3 Application of this part. 705.4 Discrimination prohibited. the Water Resources Council of the 705.5 Assurance required. rate thus computed. 705.6 Compliance information. (c) Subject to the provisions of para- 705.7 Conduct of investigations. graphs (d) and (e) of this section, the 705.8 Procedure for effecting compliance. provisions of paragraphs (a) and (b) of 705.9 Hearings. this section shall apply to all Federal 705.10 Decisions and notices. and federally assisted water and re- 705.11 Judicial review. lated land resources project evaluation 705.12 Effect on other regulations. reports submitted to the Congress, or AUTHORITY: Sec. 602 of Pub. L. 88–352, 78 approved administratively, after the Stat. 252, (42 U.S.C. 2000 d—1), and sec. 402 of close of the second session of the 90th Pub. L. 89–80, 79 Stat. 254, (42 U.S.C. 1962 d— Congress. 1). (d) Where construction of a project SOURCE: 39 FR 41521, Nov. 29, 1974, unless has been authorized prior to the close otherwise noted. of the second session of the 90th Con- gress, and the appropriate State or § 705.1 Purpose. local governmental agency or agencies The purpose of this subpart is to im- have given prior to December 31, 1969, plement the provisions of Title VI of satisfactory assurances to pay the re- the Civil Rights Act of 1964, 78 Stat. 252 quired non-Federal share of project (hereafter referred to as the ‘‘Act’’), to costs, the discount rate to be used in the end that no person in the United the computation of benefits and costs States shall, on the ground of race, for such project shall be the rate in ef- color, or national origin, be excluded fect immediately prior to the effective from participation in, be denied the

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benefits of, or otherwise be subjected portunities), or for the provision of fa- to discrimination under any program cilities for furnishing services, finan- or activity receiving Federal financial cial aid or other benefits to individ- assistance from the Water Resources uals. The services, financial aid, or Council. other benefits provided under a program receiving Federal financial as- § 705.2 Definitions. sistance shall be deemed to include any As used in this part: services, financial aid, or other bene- (a) Applicant means one who submits fits provided with the aid of Federal fi- an application, request, or plan re- nancial assistance or the aid of any quired to be approved by the Water Re- non-Federal funds, property, or other sources Council, or by a primary recipi- resources required to be expended or ent, as a condition to eligibility for made available for the program to Federal financial assistance, and the meet matching requirements or other term application means such an appli- conditions which must be met in order cation, request, or plan. to receive the Federal financial assist- (b) Facility includes all or any part of ance, and to include any services, fi- structures, equipment, or other real or nancial aid, or other benefits provided personal property or interests therein, in or through a facility provided with and the provision of facilities includes the construction, expansion, renova- the aid of Federal financial assistance tion, remodeling, alteration or acquisi- or such non-Federal resources. tion of facilities. (f) Recipient may mean any State, (c) Federal financial assistance in- territory, possession, the District of cludes: Columbia, or Puerto Rico, or any polit- (1) Grants and loans of Federal funds; ical subdivision thereof, or instrumen- (2) The grant or donation of Federal tality thereof, any public or private property and interests in property; agency, institution, or organization, or (3) The detail of Federal personnel; other entity, or any individual, in any (4) The sale and lease of, and the per- State, territory, possession, the Dis- mission to use (on other than a casual trict of Columbia, or Puerto Rico, to or transient basis), Federal property or whom Federal financial assistance is any interest in such property without extended, directly or through another consideration or at a nominal consider- recipient, for any program, including ation, or at a consideration which is re- any successor, assignee, or transferee duced for the purpose of assisting the thereof, but such term does not include recipient, or in recognition of the pub- any ultimate beneficiary under any lic interest to be served by such sale or such program. lease to the recipient; and (g) Responsible agency official means (5) Any Federal agreement, arrange- the Director of the Water Resources ment, or other contract which has as Council or his designee. one of its purposes the provision of assistance. § 705.3 Application of this part. (d) Primary recipient means any recipient that is authorized or required This part applies to any program for to extend Federal financial assistance which Federal financial assistance is to another recipient for the purpose of authorized under a law administered by carrying out a program. the Water Resources Council. It applies (e) Program includes any program, to money paid, property transferred, or project, or activity for the provision of other Federal financial assistance ex- services, financial aid, or other bene- tended under any such program after fits to individuals (including education the date of this part pursuant to an ap- or training, health, welfare, rehabilita- plication whether approved before or tion, housing, or other services, wheth- after such date. This part does not er provided through employees of the apply to (a) any Federal financial as- recipient of Federal financial assist- sistance by way of insurance or guar- ance or provided by others through anty contracts, or (b) any employment contracts or other arrangements with practice except to the extent described the recipient, and including work op- in § 705.4(c).

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§ 705.4 Discrimination prohibited. opprotunity to participate in any such (a) General. No person in the United program, may not, directly or through States shall, on the grounds of race, contractual or other arrangements, color, or national origin be excluded utilize criteria or methods of adminis- from participation in, be denied the tration which have the effect of sub- benefits of, or be otherwise subjected jecting persons to discrimination be- to discrimination under, any program cause of their race, color, or national to which this part applies. origin, or have the effect of defeating (b) Specific discriminatory actions pro- or substantially impairing accomplish- hibited. (1) A recipient under any pro- ment of the objectives of the program gram to which this part applies may with respect to individuals of a par- not directly or through contractual or ticular race, color, or national origin. other arrangements, on the grounds of (3) As used in this section, the serv- race, color, or national origin: ices, financial aid, or other benefits (i) Deny a person any service, finan- provided under a program receiving cial aid, or other benefit provided Federal financial assistance include under the program; any service, financial aid, or other ben- (ii) Provide any service, financial aid, efit provided in or through a facility or other benefit to a person which is provided with the aid of Federal finan- different, or is provided in a different cial assistance. manner, from that provided to others under the program; (4) The enumeration of specific forms (iii) Subject a person to segregation of prohibited discrimination in this or separate treatment in any matter paragraph does not limit the generality related to his receipt of any service, fi- of the prohibition in paragraph (a) of nancial aid, or other benefit under the this section. program; (5) This part does not prohibit the (iv) Restrict a person in any way in consideration of race, color, or na- the enjoyment of any advantage or tional origin if the purpose and effect privilege enjoyed by others receiving are to remove or overcome the con- any service, financial aid, or other ben- sequences of practices or impediments efit under the program; which have restricted the availability (v) Treat a person differently from of, or participation in, the program or others in determining whether he satis- activity receiving Federal financial as- fies any admission, enrollment, quota, sistance, on the grounds of race, color, eligibility, membership, or other re- or national origin. When previous dis- quirement or condition which persons criminatory practice or usage tends, on must meet in order to be provided any the grounds of race, color, or national service, financial aid, or other benefit origin, to exclude individuals from par- provided under the program; or ticipation in, to deny them the benefits (vi) Deny a person an opportunity to of, or to subject them to discrimina- participate in the program through the tion under any program or activity to provision of services or otherwise or af- which this part applies, the applicant ford him an opportunity to do so which or recipient has an obligation to take is different from that afforded others under the program. reasonable action to remove or over- (vii) Deny a person the opportunity come the consequences of the prior dis- to participate as a member of a plan- criminatory practice or usage, and to ning or advisory body which is an inte- accomplish the purposes of the Act. gral part of the program. (c) Employment practices. (1) Where a (2) A recipient, in determining the primary objective of a program of Fed- types of services, financial aid, or other eral financial assistance to which this benefits, or facilities which will be pro- part applies is to provide employment, vided under any such program, or the a recipient or other party subject to class of persons to whom, or the situa- this part shall not, directly or through tions in which, such services, financial contractual or other arrangements, aid, other benefits, or facilties will be subject a person to discrimination on provided under any such program, or the grounds of race, color, or national the class of persons to be afforded an origin in its employment practices

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under such program (including recruit- financial assistance to provide a facil- ment or recruitment advertising, hir- ity shall, as a condition to its approval ing, firing, upgrading, promotion, de- and the extension of any Federal finan- motion, transfer, layoff, termination, cial assistance pursuant to the applica- rates of pay or other forms of com- tion, contain or be accompanied by an pensation or benefits, selection for assurance that the program will be training or apprenticeship, use of fa- conducted or the facility operated in cilities, and treatment of employees). compliance with all requirements im- Such recipient shall take affirmative posed by or pursuant to this part. In action to insure that applicants are the case of an application for Federal employed, and employees are treated financial assistance to provide real during employment, without regard to property or structures thereon, or per- their race, color, or national origin. sonal property or equipment of any The requirements applicable to con- kind, such assurance shall obligate the struction employment under any such recipient, or, in the case of a subse- program shall be those specified in or quent transfer, the transferee, for the pursuant to part III of Executive Order period during which the property is 11246 or any Executive Order which su- used for a purpose for which the Fed- persedes it. eral financial assistance is extended or (2) Where a primary objective of the for any other purpose involving the Federal financial assistance is not to provisions of similar services or bene- provide employment, but discrimina- fits. In all other cases, such assurance tion on the grounds of race, color, or shall obligate the recipient for the pe- national origin in the employment riod during which Federal financial as- practices of the recipient or other per- sistance is extended pursuant to the sons subject to the regulation tends, on application. The responsible agency of- the grounds of race, color, or national ficial shall specify the form of the fore- origin, to exclude individuals from par- going assurances for each program, and ticipation in, to deny them the benefits the extent to which like assurances of, or to subject them to discrimina- will be required of subgrantees, con- tion under any program to which this tractors, and subcontractors, trans- regulation applies, the provisions of ferees, successors in interest, and other paragraph (c)(1) of this section shall participants in the program. Any such apply to the employment practice of assurance shall include provisions the recipient or other persons subject which give the United States a right to to the regulation, to the extent nec- seek its judicial enforcement. essary to assure equality of oppor- (b) Planning grants to States. Each tunity to, and nondiscriminatory designated State agency must submit treatment of, beneficiaries. the assurance specified in § 703.5(n) of (d) Location of facilities. A recipient these rules and regulations. may not make a selection of a site or (c) River basin commissions. Each river location of a facility if the purpose of basin commission is required to sub- that selection, or its effect when made, mit, along with its annual budget re- is to exclude individuals from partici- quest, written assurance of its con- pation in, to deny them the benefits of, tinuing compliance with § 705.4 of this or to subject them to discrimination part. under any program or activity to which this rule applies, on the grounds § 705.6 Compliance information. of race, color, or national origin; or if (a) Cooperation and assistance. The re- the purpose is to, or its effect when sponsible agency official shall, to the made will, substantially impair the ac- fullest extent practicable, seek the co- complishment of the objectives of this operation of recipients in obtaining part. compliance with this part and shall provide assistance and guidance to re- § 705.5 Assurance required. cipients to help them comply volun- (a) General. Every application for tarily with this part. Federal financial assistance to carry (b) Compliance reports. Each recipient out a program to which this part ap- shall keep such records and submit to plies, and every application for Federal the responsible agency official timely,

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complete, and accurate compliance re- himself or by a representative file with ports at such times, and in such form the responsible agency official a writ- and containing such information, as ten complaint. A complaint must be the responsible agency official may de- filed not later than 180 days from the termine to be necessary to enable him date of the alleged discrimination, un- to ascertain whether the recipient has less the time for filing is extended by complied or is complying with this the responsible agency official. part. In the case of any program under (c) Investigations. The responsible which a primary recipient extends Fed- agency official will make a prompt in- eral financial assistance to any other vestigation whenever a compliance re- recipient or subcontracts with any view, report, complaint, or any other other person or group, such other re- information indicates a possible failure cipient shall also submit such compliance reports to the primary recipient to comply with this part. The inves- as may be necessary to enable the pri- tigation should include, whenever ap- mary recipient to carry out its obliga- propriate, a review of the pertinent tions under this part. practices and policies of the recipient, (c) Access to sources of information. the circumstances under which the pos- Each recipient shall permit access by sible noncompliance with this part oc- the responsible agency official during curred, and other factors relevant to a normal business hours to such of its determination as to whether the recipi- books, records, accounts, and other ent has failed to comply with this part. sources of information, and its facili- (d) Resolution of matters. (1) If an in- ties, as may be pertinent to ascertain vestigation pursuant to paragraph (c) compliance with this part. Whenever of this section indicates a failure to any information required of a recipient comply with this part, the responsible is in the exclusive possession of any agency official will so inform the re- other agency, institution, or person cipient and the matter will be resolved and that agency, institution, or person by informal means whenever possible. fails or refuses to furnish that informa- If it has been determined that the mat- tion, the recipient shall so certify in ter cannot be resolved by informal its report and set forth the efforts means, action will be taken as provided which it has made to obtain the infor- for in § 705.8. mation. (d) Information to beneficiaries and (2) If an investigation does not war- participants. Each recipient shall make rant action pursuant to subparagraph available to participants, beneficiaries, (1) of this paragraph, the responsible and other interested persons such in- agency official will so inform the re- formation regarding the provisions of cipient and the complainant, if any, in this part and its applicability to the writing. program under which the recipient re- (e) Intimidatory or retaliatory acts pro- ceives Federal financial assistance, and hibited. No recipient or other person make such information available to shall intimidate, threaten, coerce, or them in such manner, as the respon- discriminate against any individual for sible agency official finds necessary to the purpose of interfering with any apprise such persons of the protections right or privilege secured by section 601 against discrimination assured them of the Act or this part, or because he by the Act and this part. has made a complaint, testified, assisted, or participated in any manner § 705.7 Conduct of investigations. in an investigation, proceeding, or (a) Periodic compliance reviews. The re- hearing under this part. The identity of sponsible agency official shall from complainants shall be kept confiden- time to time review the practices of re- tial except to the extent necessary to cipients to determine whether they are carry out the purpose of this part, in- complying with this part. cluding the conduct of any investiga- (b) Complaints. Any person who be- tion, hearing, or judicial proceeding lieves himself or any specific class of individuals to be subjected to discrimi- arising thereunder. nation prohibited by this part may by

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§ 705.8 Procedure for effecting compli- hearing, of a failure by the applicant or ance. recipient to comply with a requirement (a) General. If there appears to be a imposed by or pursuant to this part; failure or threatened failure to comply (3) The action has been approved by with this part and if the noncompli- the Chairman of the Water Resources ance or threatened noncompliance can- Council pursuant to § 705.10(e); and not be corrected by informal means, (4) The expiration of 30 days after the the responsible agency official may responsible agency official has filed suspend or terminate, or refuse to with the committee of the House and grant or continue, Federal financial as- the committee of the Senate having sistance, or use any other means au- legislative jurisdiction over the pro- thorized by law, to induce compliance gram involved, a full written report of with this part. Such other means in- the circumstances and the grounds for clude, but are not limited to, (1) a ref- such action. Any action to suspend or erence to the Department of Justice terminate or to refuse to grant or to with a recommendation that appro- continue Federal financial assistance priate proceedings be brought to en- shall be limited to the particular polit- force any rights of the United States ical entity, or part thereof, or other ap- under any law of the United States (including other titles of the Act), or any plicant or recipient as to whom such a assurance or other contractual under- finding has been made and shall be lim- taking, and (2) any applicable pro- ited in its effect to the particular proceeding under State or local law. gram, or part thereof, in which such (b) Noncompliance with assurance re- noncompliance has been so found. quirement. If an applicant or recipient (d) Other means authorized by law. No fails or refuses to furnish an assurance action to effect compliance with Title required under § 705.5 or fails or refuses VI of the Act by any other means au- to comply with the provisions of the thorized by law shall be taken until: assurance it has furnished, or other- (1) The responsible agency official wise fails or refuses to comply with has determined that compliance cannot any requirement imposed by or pursu- be secured by voluntary means; ant to Title VI or this part, Federal fi- (2) The recipient or other person has nancial assistance may be suspended, been notified or its failure to comply terminated, or refused in accordance and of the action to be taken to effect with the procedures of Title VI and compliance; and this part. The Water Resources Council (3) The expiration of at least 10 days shall not be required to provide assist- from the mailing of such notice to the ance in such a case during the pend- recipient or other person. During this ency of administrative proceedings period of at least 10 days, additional ef- under this part, except that the Coun- forts shall be made to persuade the re- cil will continue assistance during the cipient or other person to comply with pendency of such proceedings whenever the regulation and to take such correc- such assistance is due and payable pur- tive action as may be appropriate. suant to a final commitment made or an application finally approved prior to § 705.9 Hearings. the effective date of this part. (c) Termination of or refusal to grant or (a) Opportunity for hearing. Whenever to continue Federal financial assistance. an opportunity for a hearing is re- No order suspending, terminating, or quired by § 705.8(c), reasonable notice refusing to grant or continue Federal shall be given by registered or certified financial assistance shall become effec- mail, return receipt requested, to the tive until: affected applicant or recipient. This (1) The responsible agency official notice shall advise the applicant or re- has advised the applicant or recipient cipient of the action proposed to be of his failure to comply and has deter- taken, the specific provision under mined that compliance cannot be se- which the proposed action against it is cured by voluntary means; to be taken, and the matters of fact or (2) There has been an express finding law asserted as the basis for this ac- on the record, after opportunity for tion, and either (1) fix a date not less

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than 20 days after the date of such no- ably necessary by the officer con- tice within which the applicant or re- ducting the hearing. The hearing offi- cipient may request of the responsible cer may exclude irrelevant, immate- agency official that the matter be rial, or unduly repetitious evidence. All scheduled for heaing or (2) advise the documents and other evidence offered applicant or recipient that the matter or taken for the record shall be open to in question has been set down for hear- examination by the parties and oppor- ing at a stated place and time. The tunity shall be given to refute facts time and place so fixed shall be reason- and arguments advanced on either side able and shall be subject to change for of the issues. A transcript shall be cause. The complainant, if any, shall made of the oral evidence except to the be advised of the time and place of the extent the substance thereof is stipu- hearing. An applicant or recipient may lated for the record. All decisions shall waive a hearing and submit written in- be based upon the hearing record and formation and argument for the record. written findings shall be made. The failure of an applicant or recipient (e) Consolidated or joint hearings. In to request a hearing under this para- cases in which the same or related graph or to appear at a hearing for facts are asserted to constitute non- which a date has been set shall be compliance with this part with respect deemed to be a waiver of the right to a to two or more programs to which this hearing under section 602 of the Act part applies, or noncompliance with and § 705.8(c) and consent to the mak- this part and the regulations of one or ing of a decision on the basis of such more other Federal departments or information as is available. agencies issued under Title VI of the (b) Time and place of hearing. Hear- Act, the responsible agency official ings shall be held at the offices of the may, by agreement with such other de- Water Resources Council in Wash- partments or agencies, where applica- ington, DC, at a time fixed by the re- ble, provide for the conduct of consoli- sponsible agency official unless it de- dated or joint hearings, and for the ap- termines that the convenience of the plication to such hearings of rules or applicant or recipient or of the Council procedures not inconsistent with this requires that another place be selected. part. Final decisions in such cases, in- Hearings shall be held before the re- sofar as this regulation is concerned, sponsible agency official or at its dis- shall be made in accordance with cretion, before a hearing examiner ap- § 705.10. pointed in accordance with section 3105 of Title 5, U.S.C., or detailed under sec- § 705.10 Decisions and notices. tion 3344 of Title 5, U.S.C. (c) Right to counsel. In all proceedings (a) Procedure on decisions by hearing under this section, the applicant or re- examiner. If the hearing is held by a cipient and the Water Resources Coun- hearing examiner, the hearing exam- cil shall have the right to be rep- iner shall either make an initial deci- resented by counsel. sion, if so authorized, or certify the en- (d) Procedures, evidence, and record. (1) tire record including his recommended The hearing, decision, and any admin- findings and proposed decision to the istrative review thereof shall be con- responsible agency official for a final ducted in conformity with the Admin- decision, and a copy of such initial de- istrative Procedure Act (5 U.S.C. 554– cision or certification shall be mailed 557) and with such other regulations to the applicant or recipient. Where that may be necessary or appropriate the initial decision is made by the for the conduct of hearings pursuant to hearing examiner, the applicant or re- this part. cipient may, within 30 days after the (2) Technical rules of evidence do not mailing of such notice of initial deci- apply to hearings conducted pursuant sion, file with the responsible agency to this part, but rules or principles de- official his exceptions to the initial designed to assure production of the most cision, with his reasons therefor. In the credible evidence available and to sub- absence of exceptions, the responsible ject testimony to test by cross-exam- agency official may, on his own mo- ination shall be applied where reason- tion, within 45 days after the initial

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decison, serve on the applicant or re- mination of, or refusal to grant or con- cipient a notice that he will review the tinue Federal financial assistance, in decision. Upon the filing of such excep- whole or in part, under the program in- tions or of notice of review, the respon- volved, and may contain such terms, sible agency official shall review the conditions, and other provisions as are initial decision and issue his own deci- consistent with and will effectuate the sion thereon including the reasons purposes of the Act and this part, in- therefor. In the absence of either excluding provisions designed to assure ceptions or a notice or review the ini- that no Federal financial assistance tial decision shall, subject to para- will thereafter be extended under such graph (e) constitute the final decision programs to the applicant or recipient of the responsible agency official. determined by such decision to be in (b) Decisions on record or review by the default in its performance of an assur- responsible agency official. Whenever a ance given by it pursuant to this part, record is certified to the responsible or to have otherwise failed to comply agency official for decision or its re- with this part, unless and until it cor- views the decision of a hearing exam- rects its noncompliance and satisfies iner pursuant to paragraph (a) of this the responsible agency official that it section or whenever the responsible will fully comply with this part. agency official conducts the hearing, (g) Post termination proceedings. (1) An the applicant or recipient shall be applicant or recipient adversely af- given reasonable opportunity to file fected by an order issued under para- with it briefs or other written state- graph (f) shall be restored to full eligi- ments of its contentions and a written bility to receive Federal financial as- copy of the final decision of the respon- sistance if it satisfies the terms and sible agency official shall be sent to conditions of that order for such eligi- the applicant or recipient and to the bility or if it brings itself into compli- complainant, if any. ance with this part and provides rea- (c) Decisions on record where a hearing sonable assurance that it will fully is waived. Whenever a hearing is waived comply with this part. pursuant to § 705.9, a decision shall be made by the responsible agency official (2) Any applicant or recipient ad- on the record and a written copy of versely affected by an order entered such decision shall be sent to the appli- pursuant to paragraph (f) of this sec- cant or recipient, and to the complain- tion may at any time request the re- ant, if any. sponsible agency official to restore (d) Rulings required. Each decision of fully its eligibility to receive Federal a hearing examiner or the responsible financial assistance. Any such request agency official shall set forth his or its shall be supported by information ruling on each finding, conclusion, or showing that the applicant or recipient exception presented, and shall identify has met the requirements of paragraph the requirement or requirements im- (g)(1) of this section. If the responsible posed by or pursuant to this part with agency official determines that those which it is found that the applicant or requirements have been satisfied, he recipient has failed to comply. shall restore such eligibility. (e) Approval by the Chairman. Any (3) If the responsible agency official final decision by the responsible agen- denies any such request, the applicant cy official provides for the suspension or recipient may submit a request for a or termination of, or the refusal to hearing in writing, specifying why it grant or continue Federal financial as- believes the responsible agency official sistance, or the imposition of any other to have been in error. It shall there- sanction available under this part or upon be given an expeditious hearing, the Act, shall promptly be transmitted with a decision on the record. The ap- to the Chairman of the Water Re- plicant or recipient will be estored to sources Council, who may approve such such eligibility if it proves at such a decision, may vacate it, or remit or hearing that it satisfied the require- mitigate any sanction imposed. ments of paragraph (g)(1). While pro- (f) Content of orders. The final deci- ceedings under this paragraph are sion may provide for suspension or ter- pending, the sanctions imposed by the

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order issued under paragraph (f) of this 706.103 Remedial action. section shall remain in effect. 706.104 Interpretation and advisory service.

§ 705.11 Judicial review. Subpart B—Conduct and Responsibilities of Employees Action taken pursuant to section 602 of the Act is subject to judicial review 706.201 Proscribed actions. as provided in section 603 of the Act. 706.202 Gifts, entertainment, and favors. 706.203 Outside employment and activity. § 705.12 Effect on other regulations. 706.204 Financial interests. 706.205 Misuse of information. (a) Nothing in this part shall be 706.206 Support of Council programs. deemed to supersede any other order, 706.207 Use of Government property. regulation, or instruction which pro- 706.208 Indebtedness. hibits discrimination on the grounds of 706.209 Gambling, betting, and lotteries. race, color, or national origin in any 706.210 Coercion. program or situation to which this part 706.211 General conduct prejudicial to the Government. is inapplicable, or prohibit discrimina- 706.212 Miscellaneous statutory provisions. tion on any other ground. (b) Forms and instructions. The re- Subpart C—Conduct and Responsibilities sponsible agency official shall issue of Special Government Employees and promptly make available to all interested persons forms and detailed in- 706.301 Use of Government employment. 706.302 Use of inside information. structions and procedures for effec- 706.303 Gifts, entertainment, and favors. tuating this part as applied to pro- 706.304 Applicability of other provisions. grams to which this part applies and for which he is responsible. Subpart D—Statements of Employment and (c) Supervision and coordination. The Financial Interests responsible agency official may from time to time assign to officials of other 706.401 Employees required to submit statements. departments or agencies of the Govern- 706.402 Employee’s complaint on filing re- ment with the consent of such depart- quirements. ments or agencies, responsibilities in 706.403 Form of statements. connection with the effectuation of the 706.404 Time for submission of statements. purposes of Title VI of the Act and this 706.405 Supplementary statements. part (other than responsibility for final 706.406 Interests of employees’ relatives. decision as provided in § 705.10), includ- 706.407 Information not known by employees. ing the achievement of effective co- 706.408 Information not required. ordination and maximum uniformity 706.409 Opportunity for explanation of con- within the Water Resources Council flict or appearance of conflict. and within the Executive Branch of the 706.410 Confidentiality of statements. Government in the application of Title 706.411 Effect of statements on other re- VI and this part to similar programs quirements. and in similar situations. Any action, 706.412 Submission of statements by special taken, determination made, or require- Government employees. 706.413 Submission of statements by River ments imposed by an official of another Basin Commission Chairmen. department or agency acting pursuant to an assignment of responsibility AUTHORITY: Water Resources Planning Act, under this paragraph shall have the 1965 (Sec. 402, Pub. L. 89–80, 79 Stat. 254 (42 U.S.C. 1962d–1)); E.O. 11222 (30 FR 6469, 3 CFR same effect as though such action had Proc. 3279; as amended); 5 CFR part 735 (33 been taken by the responsible agency FR 12487). official. SOURCE: 40 FR 32818, Aug. 4, 1975, unless otherwise noted. PART 706—EMPLOYEE RESPONSIBILITIES AND CONDUCT Subpart A—General Provisions Subpart A—General Provisions § 706.101 Purpose. Sec. The maintenance of unusually high 706.101 Purpose. standards of honesty, integrity, impar- 706.102 Definitions. tiality, and conduct by employees and

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special Government employees is es- Subpart B—Conduct and sential to assure the proper perform- Responsibilities of Employees ance of the Water Resources Council’s (hereafter referred to as the Council) § 706.201 Proscribed actions. business and the maintenance of con- An employee shall avoid any action fidence by citizens in their Govern- which might result in, or create the ap- ment. The avoidance of misconduct and pearance of: conflicts of interest on the part of em- (a) Using public office for private ployees and special Government em- gain; ployees through informed judgment is (b) Giving preferential treatment to indispensable to the maintenance of any person; these standards. To accord with these (c) Impeding Government efficiency concepts, this part sets forth the Coun- or economy; cil’s regulations prescribing standards (d) Losing complete independence or of conduct and responsibilities and gov- impartiality; erning statements of employment and (e) Making a Government decision financial interests for employees and outside official channels; or special Government employees. (f) Affecting adversely the confidence of the public in the integrity of the § 706.102 Definitions. Government. In this part: (a) Employee means the Director and § 706.202 Gifts, entertainment, and fa- an employee of the Council employed vors. by the Director under the authority of (a) Except as provided in paragraphs § 701.78(a)(4) of this chapter. (b) and (c) of this section, an employee (b) Special Government employee means shall not solicit or accept, directly or a special Government employee as de- indirectly, any gift, gratuity, favor, en- fined in section 202 of Title 18 of the tertainment, loan, or any other thing United States Code who is employed by of monetary value, from a person who: the Council. (1) Has, or is seeking to obtain, contractual or other business or financial § 706.103 Remedial action. relations with the Council; (2) Conducts operations or activities (a) A violation of this part by an em- that are regulated by the Council; or ployee or special Government em- (3) Has interests that may be sub- ployee may be cause for remedial ac- stantially affected by the performance tion. Remedial action may include, but or nonperformance of his official duty. is not limited to: (b) The restrictions set forth in para- (1) Changes in assigned duties; graph (a) of this section do not apply (2) Divestment by the employee or to: special Government employee of his (1) Obvious family or personal rela- conflicting interest; tionships, such as those between the (3) Disciplinary action which may be employee and his parents, children, or in addition to any penalty prescribed spouse, when the circumstances make by law; or it clear that those relationships rather (4) Disqualification for a particular than the business of the persons con- assignment. cerned are the motivating factors; (b) Remedial action, whether discipli- (2) The acceptance of food and re- nary or otherwise, shall be effected in freshments of nominal value on infre- accordance with any applicable laws, quent occasions in the ordinary course Executive orders, and regulations. of a luncheon or dinner meeting or other meeting or on an inspection tour § 706.104 Interpretation and advisory where an employee may be properly in service. attendance; The General Counsel will serve as (3) The acceptance of loans from Counselor for the purpose of providing banks or other financial institutions interpretation and advisory assistance on customary terms to finance proper to the Council staff on matters covered and usual activities of employees, such in this part 706. as home mortgage loans; and

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(4) The acceptance of unsolicited ad- physical capacity to perform the duties vertising or promotional material, and responsibilities of his position in such as pens, pencils, note pads, cal- an acceptable manner; endars, and other items of nominal in- (3) Outside employment or activity trinsic value. which is in violation of a statute, Exec- (c) An employee shall not solicit a utive order, or regulation, including contribution from another employee applicable State and local statutes and for a gift to an official superior, make ordinances. a donation as a gift to an official supe- (b) Employees are encouraged to en- rior, or accept a gift from an employee gage in teaching, lecturing, and writ- receiving less pay than himself (5 ing that is not prohibited by law, Exec- U.S.C. 7351). However, this paragraph utive Order 11222 of May 11, 1965, as does not prohibit a voluntary gift of amended by Executive Order 11590 of nominal value or donation in a nomi- April 27, 1971, this part or other Council nal amount made on a special occasion regulations. However, an employee such as marriage, illness, or retire- shall not, either for or without comment. pensation, engage in teaching, lec- (d) An employee shall not accept a turing, or writing, including teaching, gift, present, decoration, or other thing lecturing, or writing for the purpose of from a foreign government unless au- the special preparation of a person or thorized by Congress as provided by the class of persons for an examination of Constitution and in 5 U.S.C. 7342. the Civil Service Commission or Board (e) Neither this section nor § 706.203 of Examiners for the Foreign Service, precludes an employee from receipt of that depends on information obtained bona fide reimbursement, unless pro- as a result of his Government employ- hibited by law, for expenses of travel ment, except when that information and such other necessary subsistence has been made available to the general as is compatible with this part for public or will be made available on re- which no Government payment or request, or when the agency head gives imbursement is made. However, this written authorization for use of non- paragraph does not allow an employee public information on the basis that to be reimbursed, or payment to be the use is in the public interest. made on his behalf, for excessive personal living expenses, gifts, entertain- (c) An employee shall not receive any ment, or other personal benefits, nor salary or anything of monetary value does it allow an employee to be reim- from a private source as compensation bursed by a person for travel on official for his services to the Government. business under Council orders when re- (d) An employee shall not engage in imbursement is proscribed by Decision outside work or activity which may be B–128527 of the Comptroller General construed by the public to be official dated March 7, 1967. acts of the Council, or of a nature closely paralleling the work of the § 706.203 Outside employment and ac- Council. tivity. (e) An employee who engages in any (a) An employee shall not engage in kind of outside paid employment on a outside employment or other outside substantially regular basis shall sub- activity not compatible with the full mit to his immediate supervisor a and proper discharge of the duties and memorandum describing the employ- responsibilities of his Government em- ment and stating approximately how ployment. Incompatible activities in- many hours per week he is so em- clude, but are not limited to: ployed. The immediate supervisor shall (1) Acceptance of a fee, compensa- forward the memorandum through the tion, gift, payment of expense, or any Director for inclusion in the employ- other thing of monetary value in cir- ee’s Official Personnel Folder. cumstances wherein acceptance may (f) This section does not preclude an result in, or create the appearance of, a employee from: conflict of interest; (1) Participation in the activities of (2) Outside employment or activity national or State political parties not which tends to impair his mental or proscribed by law;

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(2) Participation in the local self-gov- (b) An employee shall not, either di- ernment activities in the community rectly or indirectly, use appropriated in which he resides to the extent per- funds to influence a Member of Con- mitted by law; or, gress to favor or oppose legislation in (3) Participation in the affairs of, or violation of 18 U.S.C. 1913. However, an acceptance of an award for meritorious employee is not prohibited from: public contribution or achievement (1) Testifying as a representative of given by, a charitable, religious, pro- the Council on pending legislation professional, social, fraternal, nonprofit posals before congressional committees educational, recreational, public serv- on request; provided, that the relevant ice, or civic organization. provisions of the current OMB Circular A–14 (‘‘Legislation Coordination and § 706.204 Financial interests. Clearance’’) are complied with; or (a) An employee shall not: (2) Assisting congressional commit- (1) Have a direct or indirect financial tees in drafting bills or reports on re- interest that conflicts substantially, or quest, when it is clear that the em- appears to conflict substantially, with ployee is serving solely as a technical his Government duties and responsibil- expert under the direction of com- ities; or mittee leadership. (2) Engage in, directly or indirectly, a financial transaction as a result of or § 706.207 Use of Government property. primarily relying on, information ob- An employee shall not directly or in- tained through his Government em- directly use, or allow the use of, Gov- ployment. ernment property of any kind, includ- (b) This section does not preclude an ing property leased to the Government, employee from having a financial infor other than officially approved ac- terest or engaging in financial trans- tivities. An employee has a positive actions to the same extent as a private duty to protect and conserve Govern- citizen not employed by the Govern- ment property including equipment, ment so long as it is not prohibited by supplies, and other property entrusted law, Executive Order 11222, as amended, or issued to him. 5 CFR part 735, or this part.

§ 706.205 Misuse of information. § 706.208 Indebtedness. For the purpose of furthering a pri- (a) An employee shall pay each just vate interest an employee shall not, ex- financial obligation in a proper and cept as provided in § 706.203(b), directly timely manner, especially one imposed or indirectly use, or allow the use of, by law, such as Federal, State, or local official information obtained through taxes. For the purpose of this section, or in connection with his Government a ‘‘just financial obligation’’ means one employment which has not been made acknowledged by the employee or re- available to the general public. duced to judgment by a court or one imposed by law such as Federal, State § 706.206 Support of Council programs. or local taxes. (a) When a Council program is based (b) When an employee has a levy on law or Executive order, every em- placed against his salary for failure to ployee has a positive obligation to pay an indebtedness for Federal income make it function as efficiently and eco- taxes, he shall be issued a written rep- nomically as possible and to support it rimand stating that failure to make as long as it is a part of recognized satisfactory arrangements regarding public policy. An employee may, there- future tax liabilities will be grounds fore, properly make an address explain- for removal. ing and interpreting such a program, (c) When an employee is the subject citing its achievements, defending it of a letter of complaint stating that he against uninformed or unjust criticism, has not paid his State or local taxes pointing out the need for possible im- and has failed to make satisfactory ar- provements, or soliciting views for im- rangements regarding the debt, he proving it. shall be interviewed by the Assistant

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Director, Division of Program Coordi- another person, particularly one with nation and Management. In this inter- whom he has family, business, or finan- view he shall be instructed to make cial ties. satisfactory arrangements for the payment of his debt immediately and in- § 706.211 General conduct prejudicial formed that failure to do so will be to the Government. grounds for removal. An employee shall not engage in (d) When an employee is the subject criminal, infamous, dishonest, im- of a letter of complaint regarding any moral, or notoriously disgraceful con- other kind of indebtedness to a unit of duct, or other conduct prejudicial to government, Federal, State, or local, the Government. the procedure prescribed in paragraph (c) of this section shall be observed. § 706.212 Miscellaneous statutory pro- (e) When a creditor who holds a legal visions. judgment against an employee requests The attention of each employee is di- that the Council assist in collecting rected to the following statutory provi- the debt, the employee shall be inter- sions: viewed by the Assistant Director, Divi- (a) House Concurrent Resolution 175, sion of Program Coordination and Man- 85th Congress, 2d Session, 72 Stat. B12, agement. In this interview he shall be the Code of Ethics for Government instructed to pay the debt in full with- Service. in 90 days, or within whatever longer (b) Chapter 11 of Title 18, United period is specified by the Assistant Di- States Code, relating to bribery, graft rector, Division of Program Coordina- and conflicts of interest. tion and Management if he determines (c) The prohibition against lobbying that a 90-day limit would impose undue with appropriated funds (18 U.S.C. hardship on the employee, and in- 1913). formed that failure to do so will be (d) The prohibitions against dis- grounds for removal. loyalty and striking (E.O. 10450, 18 (f) When an employee is the subject U.S.C. 1918). of a letter of complaint from a creditor who does not hold a legal judgment (e) The prohibition against the em- against the employee, the Assistant Di- ployment of a member of a Communist rector, Division of Program Coordina- organization (50 U.S.C. 784). tion and Management shall forward a (f) The prohibitions against: copy of the letter to the employee to- (1) The disclosure of classified infor- gether with a memorandum calling the mation (18 U.S.C. 798, 50 U.S.C. 783); employee’s attention to the provisions and of this section. However, the Council (2) The disclosure of confidential in- will not assist the creditor in col- formation (18 U.S.C. 1905). lecting the debt. (g) The provision relating to the ha- bitual use of intoxicants to excess (5 § 706.209 Gambling, betting, and lot- U.S.C. 7352). teries. (h) The prohibition against the mis- An employee shall not participate, use of a Government vehicle (31 U.S.C. while on Government-owned or leased 638a(c)). property or while on duty for the Gov- (i) The prohibition against the mis- ernment, in any gambling activity, in- use of the franking privilege (18 U.S.C. cluding the operation of a gambling de- 1719). vice, in conducting a lottery or pool, in (j) The prohibition against the use of a game for money or property, or in deceit in an examination or personnel selling or purchasing a numbers slip or action in connection with Government ticket. employment (18 U.S.C. 1917). (k) The prohibition against fraud or § 706.210 Coercion. false statements in a Government mat- An employee shall not use his Gov- ter (18 U.S.C. 1001). ernment employment to coerce, or give (l) The prohibition against muti- the appearance of coercing, a person to lating or destroying a public record (18 provide financial benefit to himself or U.S.C. 2071).

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(m) The prohibition against counter- sire for private gain for himself or an- feiting and forging transportation re- other person, particularly one with quests (18 U.S.C. 508). whom he has family, business, or finan- (n) The prohibitions against: cial ties. (1) Embezzlement of Government money or property (18 U.S.C. 641); § 706.302 Use of inside information. (2) Failing to account for public (a) A special Government employee money (18 U.S.C. 643); and shall not use inside information ob- (3) Embezzlement of the money or tained as a result of his Government property of another person in the pos- employment for private gain for him- session of an employee by reason of his self or another person either by direct employment (18 U.S.C. 654). action on his part or by counsel, rec- (o) The prohibition against unauthor- ommendation, or suggestion to another ized use of documents relating to person, particularly one with whom he claims from or by the Government (18 has family, business, or financial ties. U.S.C. 285). For the purpose of this section, ‘‘inside (p) The prohibitions against political information’’ means information ob- activities in Subchapter III of Chapter tained under Government authority 73 of Title 5, United States Code and 18 which has not become part of the body U.S.C. 602, 603, 607, and 608. of public information. (q) The provision relating to the denial of the right to petition Congress (5 (b) A special Government employee U.S.C. 7102). may engage in teaching, lecturing, and (r) The prohibition against an em- writing to the same extent, and subject ployee acting as the agent of a foreign to the same restrictions, as provided in principal registered under the Foreign § 706.303(b) for employees. Agents Registration Act (18 U.S.C. 219). § 706.303 Gifts, entertainment, and fa- (s) The prohibition against a public vors. official appointing or promoting a relative, or advocating such an appoint- (a) Except as provided in paragraph ment or promotion (5 U.S.C. 3110). (b) of this section a special Govern- (t) The prohibition against the em- ment employee, while so employed or ployment of an individual convicted of in connection with his employment, felonious rioting or related offenses (5 shall not receive or solicit from a per- U.S.C. 7313). son having business with the Council (u) The tax imposed on certain em- anything of value as a gift, gratuity, ployees (e.g., Presidential appointees, loan, entertainment, or favor for him- employees excepted under Schedule C, self or another person, particularly one employees in GS–16 or above, or a com- with whom he has family, business, or parable pay level) who knowingly en- financial ties. gage in self-dealing with a private (b) The exceptions from the restric- foundation (26 U.S.C. 4941, 4946). ‘‘Self- tions as set forth in § 706.202(b) for em- dealing’’ is defined in the statute to in- ployees apply in the same manner to clude certain transactions involving an special Government employees. employee’s receipt of pay, a loan, or reimbursement for travel or other ex- § 706.304 Applicability of other provi- penses from, or his sale to or purchase sions. of property from a private foundation. The provisions of §§ 706.206 through 706.211 apply to special Government Subpart C—Conduct and Respon- employees in the same manner as to sibilities of Special Govern- employees. ment Employees Subpart D—Statements of Employ- § 706.301 Use of Government employment and Financial Interests ment. A special Government employee shall § 706.401 Employees required to sub- not use his Government employment mit statements. for a purpose that is, or gives the ap- (a) Employees in the following named pearance of being, motivated by the depositions shall submit statements of

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employment and financial interst to § 706.405 Supplementary statements. the Director: Changes in, or additions to, the infor- (1) Employees in Grade GS–16 or mation contained in an employee’s above of the General Schedule estab- statement of employment and financial lished by the Classification Act of 1949, interests shall be reported in a supple- as amended; mentary statement, in the format pre- (2) The General Counsel and Adminis- scribed by the Division of Management, trative Officer; as of June 30 each year. If no changes (3) The Staff Specialists assigned to or additions occur, a negative report is review applications by States for plan- required. Notwithstanding the filing of ning grants under Title III of the Water the annual report required by this sec- Resources Planning Act; tion, each employee shall at all times (4) Special Government employees, as avoid acquiring a financial interest defined in § 706.102; and that could result, or taking an action (5) Employees classified at GS–13 or that would result in a violation of the above under 5 U.S.C. 5332, or at a com- conflicts-of-interest provisions of sec- parable pay level under another au- tion 18 U.S.C. 208, or subpart B of this thority, who are in positions which the part. Director may determine have duties and responsibilites which require the § 706.406 Interests of employees’ relatives. incumbent to report employment and financial interests in order to avoid in- The interests of a spouse, minor volvement in possible conflicts-of-in- child, or other member of an employ- terest situation and carry out the pur- ee’s immediate household are consid- pose of law, Executive order, and Coun- ered to be interests of the employee. cil regulations. For the purpose of this section, ‘‘mem- (b) A statement of employment and ber of an employee’s immediate house- financial interest is required from the hold’’ means those blood relations who Director and shall be submitted by the are residents of the employee’s house- Director to the Chairman of the Coun- hold. cil. § 706.407 Information not known by employees. § 706.402 Employee’s complaint on filing requirements. If any information required to be included on a statement of employment An employee who feels that his posi- and financial interests or on a supple- tion has been improperly included in mentary statement, including holdings the list in § 706.401 as one requiring the placed in trust, is not known to the submission of a statement of employ- employee but is known to another per- ment and financial interests may ob- son, the employee shall request that tain a review of his complaint under other person to submit the information the Council’s internal grievance proce- in his behalf. dure. § 706.408 Information not required. § 706.403 Form of statements. An employee is not required to sub- An employee required to submit a mit on a statement of employment and statement of employment and financial financial interests, or on a supple- interests shall submit that statement mentary statement, any information in the format prescribed by the Divi- relating to the employee’s connection sion of Management. with, or interest in, a professional society or a charitable, religious, social, § 706.404 Time for submission of state- fraternal, recreational, public service, ments. civic, or political organization or a An employee required to submit a similar organization not conducted as statement of employment and financial a business enterprise. For the purpose intersts by § 706.401 shall submit that of this section, educational and other statement no later than 30 days after institutions doing research and devel- the date of entrance on duty in the po- opment or related work involving sition covered by § 706.401. grants of money from or contracts with

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the Government are deemed ‘‘business Each special Government employee enterprises’’ and are required to be in- shall keep his statement current cluded in an employee’s statement of throughout his period of employment employment and financial interests. by the submission of supplementary statements. § 706.409 Opportunity for explanation (b) A special Government employee of conflict or appearance of con- shall submit his statement of employ- flict. ment and financial interests in the for- When a statement submitted under mat prescribed by the Division of Man- § 706.401 indicates a conflict or an ap- agement. The statement will be filed pearance of conflict, between the inter- with the Division of Management and ests of an employee and the perform- is accorded the confidentiality pre- ance of his services for the Govern- scribed in § 706.410. ment, the employee concerned shall be (c) The provisions of §§ 706.406 given an opportunity to explain the through 706.411 apply to special Gov- conflict or appearance of conflict be- ernment employees in the same man- fore remedial action is initiated. ner as to employees. (d) The Director may waive the re- § 706.410 Confidentiality of statements. quirement in paragraph (a) of this sec- Each statement of employment and tion for the submission of a statement financial interests, and each supple- of employment and financial interests mentary statement, shall be held in in the case of a special Government confidence and retained in limited ac- employee who is not a consultant or an cess files of the reviewing official. The expert when he finds that the duties of use of information on the statements the position held by that special Gov- shall be limited to that necessary to ernment employee are of a nature and carry out the purposes of this part. In- at such a level of responsibility that formation from a statement or a sup- the submission of the statement by the plementary statement shall not be dis- incumbent is not necessary to protect closed except by decision of the Direc- the integrity of the Government. For tor for good cause shown: Provided, the purposes of this paragraph ‘‘con- That information from a statement or sultant’’ and ‘‘expert’’ have the mean- a supplementary statement of the Di- ings given those terms by Chapter 304 rector shall not be disclosed except by of the Federal Personnel Manual. decision of the Chairman for good § 706.413 Submission of statements by cause shown. River Basin Commission Chairmen. § 706.411 Effect of statements on other A statement of employment and fi- requirements. nancial interest is not required under The statements of employment and this part from Chairmen of River Basin financial interests and supplementary Commissions created by the President statements required of employees are pursuant to Title II of the U.S. Water in addition to, and not in substitution Resources Planning Act. The Commis- for or in derogation of any similar re- sion Chairmen are subject to section quirement imposed by law, order, or 401 of Executive Order 11222, as amend- regulation. The submission of a state- ed, and are required to file a statement ment or supplementary statement by with the Chairman of the Civil Service an employee does not permit him or Commission. any other person to participate in a matter in which he or the other per- PART 707—COMPLIANCE WITH THE son’s participation is prohibited by NATIONAL ENVIRONMENTAL law, order, or regulation. POLICY ACT (NEPA)

§ 706.412 Submission of statements by Subpart A—General special Government employees. Sec. (a) Each special Government em- 707.1 Background. ployee shall submit a statement of em- 707.2 Purpose. ployment and financial interests not 707.3 Applicability. later than the time of his employment. 707.4 Definitions.

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707.5 Policy. sections of the regulations which must be addressed in agency procedures. Subpart B—Water Resources Council Implementing Procedures § 707.2 Purpose. 707.6 Early involvement in private, State, The purpose of this NEPA rule is to local, and other non-Federal activities establish Water Resources Council requiring Federal action. (WRC) policy and procedures which 707.7 Ensuring that environmental docu- supplement the CEQ NEPA regulations ments are actually considered in agency by making them more specifically ap- decisionmaking. plicable to our activities and which im- 707.8 Typical classes of action requiring similar treatment under NEPA. plement § 1507.3 (a) and (b) of the CEQ 707.9 Tiering. NEPA regulations. This rule will be re- 707.10 Scoping. vised to incorporate detailed proce- 707.11 Environmental information. dures integrating NEPA and the Prin- ciples and Standards (P&S) and appli- AUTHORITY: National Environmental Pol- cable parts of the procedures for Fed- icy Act of 1969 (42 U.S.C. 4321 et seq.); E.O. 11991, 42 FR 26967; 3 CFR 1977 Compl. p. 123. eral participants in the preparation of comprehensive regional or river basin SOURCE: 44 FR 69922, Dec. 5, 1979, unless plans when these procedures are devel- otherwise noted. oped. This NEPA rule must be used in conjunction with the CEQ NEPA regu- Subpart A—General lations. Compliance with both the CEQ NEPA regulations and this NEPA rule § 707.1 Background. is required. Information in the CEQ (a) The National Environmental Pol- NEPA regulations generally is not re- icy Act (NEPA) of 1969 (42 U.S.C. 4321 et peated here to avoid needless duplica- seq.) establishes national policies and tion. This NEPA rule supersedes WRC goals for the protection and enhance- Policy Statement No. 2—Environ- ment of the environment. Section mental Statements-Framework Stud- 102(2) of NEPA contains certain policy ies and Assessments and Regional or statements and procedural require- River Basin Plans. ments directed toward the attainment of such goals. In particular, all Federal § 707.3 Applicability. agencies are required to give appro- This NEPA rule applies to the WRC priate consideration to the environ- as an independent executive agency mental effects of their proposed ac- and to Title II river basin commissions tions in their decisionmaking and to (RBC’s) and other entities (such as prepare detailed environmental state- interagency committees) preparing ments on recommendations or reports studies and plans for WRC review and on proposals for legislation and other transmittal to the President. Although major Federal actions significantly af- Title III State planning grants do not fecting the quality of the human envi- normally require environmental as- ronment. sessments or statements (§ 707.8 (a)(3)), (b) Executive Order 11991 of May 24, the WRC will encourage States receiv- 1977, amended E.O. 11514 and directed ing grants to give appropriate consider- the Council on Environmental Quality ation to the environmental effects of (CEQ) to issue regulations to imple- their proposed actions and to incor- ment the procedural provisions of NEPA. Accordingly, CEQ issued final porate suitable environmental condi- NEPA regulations (40 CFR Parts 1500– tions, to the extent permitted by State 1508) on November 29, 1978, which are law. The preamble to the WRC Title III binding on all Federal agencies as of guidelines will reflect this policy. July 30, 1979. Section 1507.3(a) of CEQ regulations provides that each Federal § 707.4 Definitions. agency shall as necessary adopt imple- (a) Responsible Federal Official (RFO). menting procedures to supplement the The ‘‘Responsible Federal Official regulations. Section 1507.3(b) of the (RFO)’’ is the official of the Federal CEQ NEPA regulations identifies those Government designated by this rule

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who shall be responsible for the implement No. 4—The Utilization of Com- mentation of NEPA, including regula- prehensive Regional Water Resource tions issued by the CEQ (40 CFR Parts Management Plans). 1500 through 1508) and the rule. Of particular importance, the RFO deter- § 707.5 Policy. mines the need for an Environmental (a) General. The WRC and the RBC’s Assessment or Environmental Impact administer certain programs that must Statement (EIS) in accordance with comply with both NEPA and the P&S. § 707.8 (a)(2) and (b), and if an EIS is re- Generally, the environmental analysis quired, files the draft and final EIS, done during the development of the En- makes the Record of Decision and vironmental Quality (EQ) account assures appropriate public involvement under the P&S partially overlaps the in accordance with 40 CFR 1506.6. The analysis required in an EIS, presenting Chairman of the RBC’s are the RFO’s an opportunity for integration. The re- for the purpose of ensuring compliance quirements of NEPA and the P&S will with the provisions of NEPA and the be carried out by integrating the two P&S for those activities which are processes to the fullest extent prac- funded in whole or in part through the ticable and by combining to the fullest WRC and carried out by the RBC’s, extent practicable the Environmental such as framework studies, special Assessment or, when required, Envi- studies, comprehensive coordinated ronmental Impact Statement, with joint plans, regional or river basin each study or plan into a single docu- (Level B) plans and revisions thereof. ment that will comply fully with the The Chairman of the WRC, or his des- requirements of both processes, as pro- ignee, is the RFO for complying with vided by the CEQ NEPA regulations (40 the provisons of NEPA and the P&S for CFR 1502.10 and 1506.4). those framework studies, regional or (b) Public participation. For each envi- river basin plans, comprehensive co- ronmental assessment and impact ordinated joint plans, and special stud- statement, the appropriate RFO will ies which are funded by the WRC and establish a specific program and sched- carried out by WRC interagency com- ule for public participation of all inter- mittees and WRC coordinating com- ested parties in the NEPA process, and mittees; principles, standards and pro- shall otherwise provide for public in- cedures for planning water and related volvement in accordance with the CEQ land resources; rules and regulations of NEPA regulations (40 CFR 1506.6). the WRC, and other activities of the (c) Environmental Impact Statements. WRC. Environmental Impact Statements (b) Major Federal Action. ‘‘Major Fed- (EIS’s) as required under Section eral action’’ as defined in the CEQ 102(2)(C) of NEPA will be prepared by NEPA regulations (40 CFR 1508.18) in- river basin commissions, interagency cludes actions with effects that may be committee, or WRC coordinating com- major and which are potentially sub- mittees for comprehensive coordinated ject to Federal control and responsi- joint plans and regional or river basin bility. Such actions include WRC inter- (Level B) plans, or revisions thereof. agency committee, and WRC coordi- The Environmental Impact Statement nating committee adoption, approval will be prepared concurrently with the or submittal of plans for water and re- preparation of the study or plan. The lated land resources. For the purpose of statement will reflect the level of plan- this rule, RBC adoption, approval or ning involved and will address those submittal of a plan for water and re- environmental considerations and al- lated land resources is considered a ternatives relevant to decisionmaking major Federal action by virtue of the at that level (see § 707.9 Tiering). Re- scope and significant environmental view and comment on the draft study consequences of such actions, the par- or plan and the incorporated draft en- ticipation of Federal officials in these vironmental impact statement will be RBC actions, and the WRC require- performed simultaneously, and the ments for Federal agency consistency final combined report will incorporate with approved regional water resource and discuss the comments received on management plans (WRC Policy State- the draft.

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Subpart B—Water Resources (4) Consider only those alternatives Council Implementing Procedures encompassed by the range of alternatives discussed in the relevant envi- § 707.6 Early involvement in private, ronmental documents when evaluating State, local, and other non-Federal proposals for agency action. activities requiring Federal action. (5) Where an EIS has been prepared, (a) Section 1501.2(d) of the CEQ NEPA consider the specific alternatives ana- regulations requires Federal agencies lyzed in the EIS when evaluating the proposal which is the subject of the to provide for early involvement in ac- EIS. tivities which, while planned by pri- (b) The NEPA process begins at the vate or other non-Federal entities, re- earliest possible stage of the planning quires some subsequent form of Federal process and is completed when the RFO approval or action to which NEPA ap- makes a finding of significant impact plies. Such activities for which early or a record of decision. In cases where involvement is appropriate include the Chairman of a River Basin Com- those private, local, State, or regional mission, or regional Federal official water and related land resources plans, has been designated as the RFO, and a projects or programs which should be plan or report is submitted to WRC for included in a regional water resources review and comment after completion management plan or Level B plan, of the NEPA process, the environ- since the plans normally required an mental documents incorporated into EIS or assessment as provided in such plans or reports, or submitted § 707.8(a) of this NEPA rule. with them, shall be fully considered by (b) To facilitate the implementation WRC when it prepares its views, com- of 40 CFR 1501.2(d), the appropriate ments, and recommendations for trans- RFO shall publish and distribute in the mittal to the President and Congress. region or basin in which a comprehen- The RFO shall include the Findings of sive or Level B study is conducted, No Significant Impact, or the Record of guidelines for non-Federal entities of Decision, with the documents sub- the types of plans, projects, and pro- mitted to WRC for review. grams which shall be included in such comprehensive or Level B plan. The § 707.8 Typical classes of action requir- RFO shall advise non-Federal entities ing similar treatment under NEPA. on the scope and level of environ- (a) Section 1507.3(b)(2) of the CEQ mental information and analysis need- NEPA regulations in conjunction with ed for environmental documents. § 1508.4 requires agencies to establish three typical classes of action for simi- § 707.7 Ensuring that environmental lar treatment under NEPA. These typ- documents are actually considered in agency decisionmaking. ical classes of actions are set forth below: (a) Section 1505.1 of the NEPA regula- (1) Actions normally requiring EIS’s: tions contains requirements to ensure (i) Adoption, approval or submittal of adequate consideration of the environ- regional water resources management mental documents in agency decision- plans (comprehensive, coordinated, making. To implement these require- joint plans or elements thereof). ments, the RFO shall: (ii) Adoption, approval or submittal (1) Consider relevant environmental of Level B plans. documents in evaluating actions pro- (2) Actions normally requiring as- posed in plans and studies. sessments but not necessarily EIS’s: (2) Make relevant environmental doc- (i) Establishment and implementing uments, comments, and responses part guidance (including significant of the record in any formal rulemaking changes) in principles, standards, and or adjudicatory proceedings. procedures for planning water and re- (3) Ensure that relevant environ- lated land resources. mental documents, comments and re- (ii) Adoption, approval or submittal sponses accompany the proposed ac- of framework studies and special stud- tions through existing review proc- ies which include recommendations for esses. future actions.

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(iii) Any action not in paragraph (a) and related land resources of an entire (1) or (3) of this section. region or river basin. This is the level (3) Actions normally not requiring of consideration at which the environ- assessments or EIS’s (categorical ex- mental issues and considerations are clusions): most relevant to decisionmaking. They (i) Approval of Title III State plan- may also address groups of interrelated ning grants. or individual plan elements where (ii) Adoption, approval or transmittal these involve significant environ- or priorities reports. mental considerations. (iii) Preparation of the National Water Assessment. § 707.10 Scoping. (iv) Recommendations to the Presi- Scoping will be used to determine the dent with the respect to Federal poli- extent of issues to be addressed by the cies and programs, except for trans- EIS and to identify significant issues mittal of plans described in paragraph related to the proposed action. Scoping (a) (1) or (2) of this section for which will be conducted as described by the the original EIS or Environmental As- CEQ NEPA regulations, §§ 1501.7 and sessment (EA) will be transmitted with 1508.25. the plan. A second EIS is not required. (v) Framework studies and assess- § 707.11 Environmental information. ments and special studies which do not Interested persons may contact the include recommendations for future ac- Director, U.S. Water Resources Coun- tions. cil, 2120 L Street, NW., Washington, DC (b) Where the presence of extraor- 20037, for information regarding the dinary circumstances indicates that an Council’s compliance with NEPA. action normally excluded may have a significant environmental effect, the appropriate RFO shall independently PART 708—UPPER MISSISSIPPI RIVER determine whether an EIS or an envi- BASIN COMMISSION: PUBLIC ronmental assessment is required. PARTICIPATION IN UPPER MIS- SISSIPPI RIVER SYSTEM MASTER § 707.9 Tiering. PLAN In accordance with the CEQ NEPA regulations 40 CFR 1502.4(d) and Sec. 1508.28(a), this NEPA rule emphasizes 708.1 Definitions. the use of tiering to relate broad and 708.2 Scope. narrow actions. The level of detail in 708.3 Policy, objectives, and standards. EIS’s and EA’s prepared by RBC’s, 708.4 Required programs and reports. WRC interagency committees or WRC 708.5 Program objectives implementation. coordinating committees will reflect AUTHORITY: Title II, sec. 204, Pub. L. 89–80, the level of detail in the plans, particu- Water Resources Planning Act of 1965; Title larly the comprehensive and policy na- I, sec. 101(b), Pub. L. 95–502, Inland Water- ture of comprehensive, coordinated, ways Authorization Act of 1978. joint plans or elements or revisions SOURCE: 44 FR 14537, Mar. 13, 1979, unless thereof. These EIS’s are not intended othewise noted. to substitute for individual statements on individual projects as more detailed § 708.1 Definitions. planning and analysis will be required As used in the part, the term: for major Federal actions proposed in (a) Act means the Inland Waterways these plans. The ‘‘policy’’ or ‘‘over- Authorization Act of 1978, Pub. L. 95– view’’ EIS should serve as the frame- 502. work and introduction for a more site- (b) Commission means the Upper Mis- specific project EIS developed by the sissippi River Basin Commission, with implementing Federal agency. Envi- headquarters at Fort Snelling, Twin ronmental impact statements for re- Cities, Minnesota. gional water resource management and (c) Master Plan means the Upper Mis- Level B plans will generally address sissippi River System Comprehensive the items in the recommended format Master Management Plan mandated by (40 CFR 1502.10) on the basis of water Title I of the Act.

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(d) GREAT refers to studies con- procedures, programs, regulations, or ducted by Great River Environmental other administrative devices carried Action Teams pursuant to section 117 out under § 708.2(b), but only for those of the Water Resources and Develop- Master Plan Activities under authority ment Act of 1976 (Pub. L. 94–587) for of the Act. purposes of developing balanced management strategies for multipurpose § 708.3 Policy, objectives, and stand- use of the Upper Mississippi River. ards. (e) System means those Upper Mis- (a) Policy. (1) Congress has directed sissippi River reaches containing com- the Commission to prepare a commercial navigation channels on the prehensive Master Plan for manage- Mississippi River main stem north of ment of the System in cooperation Cairo, Illinois; the Minnesota River, with appropriate Federal, state, and Minnesota; Black River, Wisconsin; local officials. In developing the plan, Saint Croix River, Minnesota and Wis- the Commission is required to identify consin; Illinois River and Waterway, Il- various economic, recreational, and en- linois; and Kaskaskia River, Illinois. vironmental objectives of the System, (f) Public meeting means a meeting to recommend guidelines to achieve such provide individuals and representatives objectives, and propose methods to as- of interested organizations opportuni- sure compliance with such guidelines ties to present their opinions and sug- and coordination of future manage- gestions by means of an informally ment decisions affecting the System, structured format. and include with the proposed plan any (g) Public hearing means a formally legislative proposals which may be nec- structured public meeting scheduled to essary to carry out such recommenda- provide adequate time for each testi- tions and achieve such objectives. mony, which will be recorded, tran- (2) The Commission is required to scribed, published, and made available provide for public participation in the to the public. development, revision, and implementation of the Master Plan and to en- § 708.2 Scope. courage and assist such participation. (a) This part describes minimum In doing this, the Commission seeks to guidelines for public participation in foster a spirit of openness and a sense the development, revision, and imple- of mutual trust between the public and mentation of the Master Plan specified the planners. Public participation is in the Act. expected to result in greater respon- (b) This part applies to the following siveness of the Master Plan to public organizations with references to the concerns and priorities, as well as im- activities described in § 708.2(a): proved popular understanding of offi- (1) The Commission, including its cial studies, planning processes, and staff and persons, organizations, and decisions. agencies under contract to it for work (3) In order for public participation within the scope of the Master Plan. to be effective, it must be timely and (2) Such Federal departments and integrated into the planning process. agencies as are directed under section The Commission shall seek public par- 101(3) of the Act to conduct studies pur- ticipation prior to any decision-mak- suant to the Master Plan, for any work ing on the Master Plan or any of its carried out for purposes of developing, components. Such public participation revising, and implementing the Master will ordinarily include informational Plan. output about the plan, public response (3) Such departments and agencies of and input, two-way discussions or ex- any state or local government as are change, and Commission consideration authorized and/or directed to carry out of public expressions. studies and analyses under direction or (4) Neither the Master Plan as a advice of the Commission as stipulated whole nor any component of it shall be in section 101 of the Act. formulated without incorporation of a (c) The guidelines referred to in this program of public participation involv- part shall be considered general re- ing fair representation of all segments quirements applicable to all studies, of the public. The public participation

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section of the Master Plan—Plan of (5) The public participation process is Study shall be developed consistent to have as a product measurable sets of with the guidelines described in this opinion and other manifestations of part. the public will in regard to details of (5) Public participation processes uti- the Master Plan; lized by the Commission in developing (6) Inputs from the public into the the Master Plan shall aim for the high- Master Plan through avenues other est achievable standards of objectivity than the Commission public participa- and thoroughness consistent with other tion program should be facilitated; and requirements of the Act and the intent, (7) Desires expressed by the public concepts, ideas, and basic tenets of the are likely to be conflicting and there- Principles and Standards for Planning fore, public participation cannot be Water and Related Land Resources substituted for the decision-making re- published by the Water Resources sponsibility. Council in the FEDERAL REGISTER, Vol- ume 38, Number 174, part III, Sep- § 708.4 Required programs and re- tember 10, 1973 and any forthcoming reports. visions. Public participation programs shall include monitoring procedures to (a) The Commission shall prepare a maintain an acceptable degree of re- work plan for public participation as sponsiveness and accountability. part of the Master Plan—Plan of (b) Objectives. Objectives of the public Study. The work plan shall satisfy participation program developed by the minimum standards described in this Commission as part of the Master Plan part. The work plan shall describe all are: substantive administrative and man- (1) To develop awareness of public agement arrangements to elicit public preferences by those responsible for participation, shall delineate Commis- preparation and approval of the Master sion member and staff responsibilities, Plan. and shall identify budgetary provi- (2) To anticipate and help resolve sions. conflicts arising during the study, (b) In addition to public meetings and (3) To improve information transfer hearings, the public participation pro- and public awareness of the study, gram shall include survey research, (4) To provide for periodic reviews in program evaluation, and information/ the development of the Master Plan as education activities as described in well as the final review required by the § 708.5. Act, and (c) The Commission shall recommend (5) To provide for evaluation of public long-term public participation activi- participation in the planning process. ties and programs related to implemen- (c) Standards. The Commission in tation of the Master Plan. These rec- meeting the above objectives recog- ommendations shall be based on eval- nizes that: uation of procedures and results man- (1) Inputs from the public are impor- dated in this part and carried out dur- tant for development of the Master ing the Master Plan preparation. Plan; (d) The Commission shall issue re- (2) Participants are to include indi- ports describing the participation pro- vidual citizens as well as organizations; gram as developed or implemented dur- (3) The public participation program ing the designated reporting period. is to assume the existence of numerous Each such report shall include as a publics and their interests—identified minimum a brief description of the and delineated according to a number main participation elicited, the costs of socioeconomic, demographic, geo- graphic, person, and ideological vari- of the effort, and the use that was ables; made of the elicited information in the (4) The public participation process planning process. The reporting periods must be continuous: it is to be provided shall be arranged so as to correspond for, encouraged, and assisted through- generally with the main sequential seg- out the planning process; ments of the overall planning process.

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§ 708.5 Program objectives implemen- audience and shall emphasize methods tation. that foster general awareness and un- (a) The continuing public participa- derstanding of plan issues and the nation program shall contain mecha- ture of the ongoing planning process. nisms or activities for each objective The second level of information and listed in § 708.3(b). The listing of spe- education activities shall focus on pub- cific measures in this section shall not lic interest groups, agency representa- preclude additional techniques for ob- tives, and elected officials and shall taining, encouraging, or assisting pub- emphasize the creation of plan compo- lic participation. Special efforts shall nent data and information in a form be made to simplify the planning proc- that can be utilized by these groups in ess and products for public and media the plan decision-making process. The use. Variances may occur in the use of information presented shall be broadly any given program element, according representative of the relevant perspec- to the nature of the planning issues, tives and issues. the budgetary resources accorded the (d) Throughout the period of study participation process, and the effec- and the succeeding period of implemen- tiveness of the participation actually tation of the Master Plan, the Commis- elicited and measured in the field. sion shall provide a centralized capa- (b) To obtain data in regard to plan- bility for acting as an information/edu- relevant public opinion, methods, shall cation center. The Commission shall include but not be limited to survey re- provide a central source of media-di- search. rected information about the Master (1) The survey research process shall Plan, its components, future expected be developed and utilized in connection planning needs in the System, current with the Master Plan as a whole and program-related activities, and other its components. Whereas public meet- relevant subject areas. Special efforts ings are organized to elicit shall be made to summarize complex unstructured participation and opinion technical materials for public and changes, surveys shall be targeted on media use. The Commission shall have carefully selected samples of function- standing arrangements for early con- ally defined publics located throughout sultation and exchange of views with the System. interested or affected persons and orga- (2) The Commission shall evaluate nizations on development or revisions the effectiveness of the information/ of plans, programs, or other significant education program on the part of the actions prior to decision-making. Sur- surveyed publics. This is necessary for vey research methods and other proce- continued and sustained participation dures will be used to determine the in the decision-making steps of the content and emphasis of information planning process. and education activities and products. (3) If a gap is found between the de- (e) The Commission shall provide for sired and actual effectiveness, the periodic reviews of the development of Commission shall develop and imple- the Master Plan as well as the final re- ment a short-term narrow-focus infor- view required by the Act. Activities to mation and education program tar- accomplish this shall include: geted at the specific problem areas in (1) Public meetings. (i) Public meet- question. ings shall be organized at locations in (4) On completion of the short-term parts of the System most significantly information/education program, re-sur- affected by the possible outcomes. veys shall be made among the affected These open meetings shall be timed to publics. The results shall constitute a coincide with sequential elements of measure of the effectiveness of the the planning process. short-term information/education pro- (ii) The meetings shall provide citi- gram. zens and representatives of interested (c) To improve information transfer organizations an opportunity to utilize and public awareness of the study, two an informally-structured format to air levels of information and education ac- their suggestions and grievances in re- tivities shall be pursued. The first shall gard to the subject matter of the Mas- have the general public as its target ter Plan.

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(iii) When the Commission deems a ings are to be made available to the formal public hearing is necessary, it public at least 30 days prior to the pub- may coincide with the pulic meeting. lic hearings. Information concerning When this is the case, a clear distinc- availability of the preliminary plan, tion shall be made between the formal reports, documents, and data will be and open segments of the meeting/hear- provided in public hearing notices. ing. (vi) The elements of the public hear- (iv) Documents and data pertaining ings, proposed time schedules, and any to the agenda for each public meeting constraints on statements shall be shall be made available to the public specified in public hearing notices. for a reasonable time prior to the pub- (vii) Testimony of witnesses at public lic meeting, at a location convenient hearings shall be scheduled in advance to the expected participants. In addi- when necessary to ensure maximum tion, the Commission shall prepare participation and allotment of ade- outlines of major issues including brief quate time for testimony, provided descriptions of the issues, alternatives, that such scheduling is not used as a and sources of additional information. bar to unscheduled testimony. Blocks (2) Public hearings. (i) The Commis- of time shall be considered for major sion is required to publish a prelimi- categories of witnesses. nary plan not later than January 1, (viii) Public hearing procedures shall 1981 and to hold public hearings in each not inhibit free expression of views by state which would be affected by the requirements of more than one legible plan. The Commission is required to re- copy of any statement submitted, or view all comments presented at such for qualifications of witnesses beyond hearings or submitted in writing to the that needed for identification. Commission, and, after making any re- (ix) A record of public hearing provisions in the plan it decides are nec- ceedings shall be made promptly avail- essary, to submit to Congress a final able to the public at cost. The Commis- Master Plan not later than January 1, sion shall invite, receive, and consider 1982. comments in writing from any inter- (ii) The public hearings on the pre- ested or affected persons and organiza- liminary plan and any other public tions. All such comments shall be part hearings deemed necessary by the Com- of the public record. mission are to be consistent with the (f) To provide mechanisms for eval- provisions of sec. 205 of Pub. L. 89–80 in uation of public participations in the conformity with this part. If conflict Master Plan: exists between the minimum guidelines (1) The Commission shall conduct of this part and requirements of state periodic evaluations of the public par- or Federal law or other regulations ticipation program. The purpose of this pertaining to a particular hearing, the evaluation is to determine the fol- more stringent requirements shall be lowing: observed. (i) The extent of actual participation (iii) In addition to any other formal elicited from each of the process legal requirements, the public hearings phases—public meetings, public hear- are to be well publicized and notices of ings, survey research, direct input from each hearing will be mailed to inter- organizations, and other sources. ested or affected persons at least 30 cal- (ii) The degree to which participation endar days before the hearings. elicited from each process phase was (iv) In determining locations and actually utilized in the planning proc- times for hearings, consideration will ess. be given to travel and to facilitating (iii) Regional/local differences in ef- attendance and testimony by a cross- fectiveness of public participation section of interested or affected per- methods and procedures. sons and organizations. Accessibility of (iv) The need to modify the public hearing sites by public transportation participation process during the Mas- will be considered. ter Plan. (v) The preliminary plan and any (2) Public participation evaluations supporting reports, documents, and shall be incorporated into the Master data to be discussed at the public hear- Plan. Recommendations resulting from

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this overall evaluation shall be utilized menting its provisions, as does Execu- to draft new guidelines and plans of tive Order 11990, Protection of Wetlands, study for public participation programs at section 6. Each of these Orders was to be implemented after the Master prepared in furtherance of the National Plan has been adopted. Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.). The PART 725—IMPLEMENTATION OF floodplain management Order is also EXECUTIVE ORDERS 11988, based on the National Flood Insurance FLOODPLAIN MANAGEMENT Act of 1968, as amended (42 U.S.C. 4001 AND 11990, PROTECTION OF et seq.), and the Flood Disaster Protec- tion Act of 1977, as amended (87 Stat. WETLANDS 975).

Subpart A—Introduction § 725.2 Policy. Sec. It is the policy of the Council to pro- 725.0 Purpose. vide leadership in floodplain manage- 725.1 Authority. ment and the protection of wetlands. 725.2 Policy. Further, the Council shall integrate 725.3 Applicability. 725.4 Definitions. the goals of the Orders to the greatest possible degree into its procedures for Subpart B—Responsibilities implementing the National Environ- mental Policy Act. The Council shall 725.5 Council studies. take action to: 725.6 Principles, standards and procedures. 725.7 Regional or river basin planning. (a) Avoid long- and short-term ad- 725.8 Report, plan and recommendation de- verse impacts associated with the occu- velopment and review. pancy and modification of floodplains 725.9 Reviews of compliance. and the destruction or modification of AUTHORITY: The Water Resources Planning wetlands; Act of 1965, sec. 402, Pub. L. 89–80, 79 Stat. 245 (b) Avoid direct and indirect support (42 U.S.C. 1962d–1), the National Environ- of floodplain development and new con- mental Policy Act of 1969, as amended (42 struction in wetlands wherever there is U.S.C. 4321 et seq.), the National Flood Insur- a practicable alternative; ance Act of 1968, as amended (42 U.S.C. 4001 (c) Reduce the risk of flood loss; et seq.), the Flood Disaster Protection Act of (d) Promote the use of nonstructural 1973, as amended (87 Stat. 975), E.O. 11988 and loss reduction methods to reduce the E.O. 11990 (42 FR 26951). risk of flood loss; SOURCE: 45 FR 76683, Nov. 20, 1980, unless (e) Minimize the impact of floods on otherwise noted. human health, safety and welfare; (f) Minimize the destruction, loss or Subpart A—Introduction degradation of wetlands; (g) Restore and preserve the natural § 725.0 Purpose. and beneficial values served by This rule establishes the procedures floodplains; to be followed by the U.S. Water Re- (h) Preserve and enhance the natural sources Council for applying Executive and beneficial values served by wet- Order 11988, Floodplain Management, lands; and Executive Order 11990, Wetlands (i) Involve the public throughout the Protection, to the water resources floodplain management and wetlands planning assistance activities that it protection decisionmaking process; performs. (j) Adhere to the objectives of the Unified National Program for Flood- § 725.1 Authority. plain Management; This rule is being promulgated pursu- (k) Continually analyze existing and ant to the Water Resources Planning new policies of the Council to ensure Act of 1965, section 402, Pub. L. 89–90, 79 consistency between them and the pro- Stat. 245 (42 U.S.C. 1962d–1). In addi- visions of E.O. 11988 and 11990; and tion, Executive Order 11988, Floodplain (l) Improve and coordinate the Coun- Management, at section 2(d); directs the cil’s plans, programs, functions and re- preparation of procedures imple- sources so that the Nation may attain

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the widest range of beneficial uses of (d) Enhance means to increase, the environment without degradation heighten, or improve the natural and or risk to health and safety. beneficial values associated with wetlands. § 725.3 Applicability. (e) Regional planning sponsors means These regulations apply to all Coun- Federal agencies, states, groups of cil actions which have the potential to States, river basin commissions, inter- affect floodplains or wetlands or which state compact commissions and inter- would be subject to potential harm if agency committees. they were located in floodplains or wetlands. The basic test of the potential of Subpart B—Responsibilities an action to affect floodplains or wetlands is the action’s potential to result § 725.5 Council studies. in the long- or short-term adverse im- All studies and appraisals performed pacts associated with: by the Council pursuant to section 102 (a) The occupancy or modification of of Pub. L. 89–80 and any recommenda- floodplains, or the direct and indirect tions based on these activities shall in- support of floodplain development; or clude specific analyses for reflection of (b) The destruction or modification and opportunities to meet the objec- of wetlands or the direct or indirect tives of E.O. 11988 and E.O. 11990. The support of new construction in wet- Council’s Floodplain Management lands. Guidelines (43 FR 6030), E.O. 11988 and E.O. 11990 provide the basic evaluation These procedures apply to Level A and tools for these analyses. B regional or river basin planning activities carried out by regional plan- § 725.6 Principles, standards and pro- ning sponsors including consideration cedures. of inclusion of site specific projects in The Principles, Standards and Proce- Level A or B regional or river basin dures established by the Council pursu- plans. These procedures do not apply to ant to section 103 of Pub. L. 89–80 shall site specific Level C planning carried reflect the provisions of the Executive out by individual Federal agencies. Orders. These Principles, Standards Each Federal agency shall use its own and Procedures are found in 18 CFR procedures promulgated pursuant to parts 710 through 717. these Orders for such Level C planning. § 725.7 Regional or river basin plan- § 725.4 Definitions. ning. The following definitions shall apply (a) In agreements between river basin throughout this regulation: commissions or other regional plan- (a) All definitions from section 6 of ning sponsors and the Council for the E.O. 11988 (42 FR 26951); all definitions preparation and revision of regional from section 7 of E.O. 11990 (42 FR and river basin Level B Studies and re- 26951); and all definitions listed in the gional water resource management Glossary of the Council’s Floodplain plans, the responsible official rep- Management Guidelines for Imple- resenting the river basin commission menting E.O. 11988 (43 FR 6030) from or regional planning sponsor shall cer- the term base flood through the term tify to the Council that the following structures. criteria have been or will be utilized as (b) Action means all Council activi- part of the planning process: ties including but not limited to plan (1) Determination of whether pro- review, study preparation, preparation posed activities would be located in and modifications to the Council’s floodplains or wetlands, or, even if lo- Principles, Standards and Procedures cated outside of them, would have the (P,S,&P), provision of financial assist- potential to affect floodplains or wet- ance for State, regional, and river lands; basin planning and reviews of compli- (2) Avoidance of performing activi- ance. ties within floodplains or wetlands (c) Council means the U.S. Water Re- wherever there is a practicable alter- sources Council. native;

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(3) Where avoidance of floodplains 740.4 State water management planning cannot be achieved, minimization of program. adverse impacts and support of flood- 740.5 Review and approval of State applications and programs. plain development, and preservation 740.6 Financial assistance. and restoration of natural and bene- 740.7 Administration of financial assistance. ficial floodplain values; 740.8 Reporting. (4) Where avoidance of wetlands can- 740.9 Recordkeeping. not be achieved, minimization of ad- 740.10 Program review and assistance. verse impacts and support of new con- 740.11 Federal/State coordination. struction in wetlands, and preservation 740.12 Amendments. 740.13 Supplemental instructions. and enhancement of natural and beneficial wetlands values; and AUTHORITY: Water Resources Planning Act (5) Involvement of the public in the of 1965 (as amended), Pub. L. 89–80, 79 Stat. floodplain management and wetlands 244, 42 U.S.C. 1962c; Federal Grant and Coop- erative Agreement Act of 1977, Pub. L. 95–224, protection decisionmaking process. 92 Stat. 3, 41 U.S.C. 501 et seq.; E.O. 12044, 43 (b) The Council’s Floodplain Manage- FR 12660. ment Guidelines (43 FR 6030) shall be SOURCE: 45 FR 72010, Oct. 30, 1980, unless used as the basis for implementing the otherwise noted. criteria in § 725.7(a)(1) through (5). (c) The responsible official rep- § 740.1 Purpose and scope. resenting the regional planning spon- (a) In recognition of the role of the sor shall, to the fullest extent of his or States as the focal point for the man- her authority, ensure that any activi- agement of water and related land re- ties carried out under his or her plans sources, this part establishes guide- and programs meet the criteria in lines for financial and program assist- § 725.7(a)(1) through (5). ance to States for water management § 725.8 Report, plan and recommenda- planning programs which address each tion development and review. State’s particular needs, which are based on established State goals and All reports, plans and recommenda- objectives, and which take into consid- tions received under section 104 of Pub. eration national goals and objectives. L. 89–80 shall be reviewed by the Coun- (b) The purpose of the State Water cil for reflection of and opportunities Management Planning Program (Pro- to meet the objectives of E.O. 11988 and gram) is to provide financial and pro- 11990. This review shall be based on the gram assistance to participating States criteria in § 725.7(a)(1) through (5), on to support the development and modi- E.O. 11988 and 11990, and on the Coun- fication of comprehensive water man- cil’s Floodplain Management Guide- agement planning programs. lines (43 FR 6030). (c) Funds made available under this part shall be used to establish, develop § 725.9 Reviews of compliance. or enhance existing or proposed State Reviews of compliance performed water resources management and plan- pursuant to section 304 of Pub. L. 89–80 ning programs that are designed to ad- shall include analysis of each pro- dress pertinent State and national gram’s treatment of floodplain man- goals and objectives, as well as the agement and wetland protection in ac- goals and objectives of Title III of the cordance with the manner in which Water Resources Planning Act (Act), these concepts are expressed in E.O. Pub. L. 89–80, as amended, by address- 11988, 11990, and the Council’s Flood- ing in the Program the following: plain Management Guidelines (43 FR (1) Coordination of the program au- 6030). thorized by the Act and those related programs of other Federal agencies; PART 740—STATE WATER MANAGE- (2) Integration of water conservation MENT PLANNING PROGRAM with State water management planning; Sec. (3) Integration of water quantity and 740.1 Purpose and scope. water quality planning; 740.2 Definitions. (4) Integration of ground and surface 740.3 State applications. water planning;

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(5) Planning for protection and man- grantee for the purposes specified in agement of groundwater supplies; the Act, in the grant agreement and in (6) Planning for protection and man- these guidelines. agement of instream values; and Land area of a State means the land (7) Enhanced cooperation and coordi- and inland water area of a State as de- nation between Federal, regional State fined and set forth in the publication and local governmental entities in- ‘‘Boundaries of the United States and volved in water and related land re- the Several States’’ Geological Survey sources planning and management. Professional Paper 909, U.S. Govern- ment Printing Office, Washington, DC § 740.2 Definitions. issued in 1976, or revisions thereof. Act means the Water Resources Plan- Local government means a local unit ning Act (as amended), Pub. L. 89–80, 42 of government including a county mu- U.S.C. 1962 et seq. nicipality, city, town, township, local Activities means a series of actions public authority, school district, spe- and operations which address the water cial district, intrastate district, coun- management problems of the State and cil of governments, sponsor group rep- have a specific purpose or objective. resentative organization (as defined in Activities are further characterized by 7 CFR 620.2, 40 FR 12472, March 19, 1975) one or more major tasks and mile- and other regional or interstate gov- stones. ernment entity; or any agency or in- Affected interests means public and strumentality of a local government private organizations, local, tribal, exclusive of institutions of higher edu- State and Federal governments that cation and hospitals. may be potentially affected by the Milestones mean key events in the ac- State water management planning pro- tivity implementation schedule. Mile- gram. stones indicate important dates for de- Application means a document sub- sign implementation and monitoring mitted by a Governor or designee for tasks. Examples of milestones include consideration by the Council for a but are not limited to hiring of key grant. staff, publication dates, workshop Council means the Water Resources dates, or the completion of specific Council established by section 101 of phases of the implementation schedule. the Act. Obligation means orders placed, con- Designated agency means an entity of tracts awarded, grants issued, services a State designated by the Governor to received and similar transactions dur- act as the grant recipient and to act as ing a given period that require the dis- liaison with the Council for this Pro- bursement of money. gram. Per capita income of a State means the Fiscal year means a 12-month period most recent year of official U.S. De- ending on September 30, unless other- partment of Commerce per capita in- wise specified. come figures for the State. Governor means the chief executive Program period means the period be- officer of a State, including the Mayor ginning on October 1, 1980, and extend- of the District of Columbia. ing through the authorized life of the Grant agreement means a document Program. executed by the authorized official of Program funds means grant funds pro- the Water Resources Council and by vided under the Act, non-Federal funds the authorized representative of the and the value of in-kind contributions State agency designated as the grant used for matching purposes. recipient containing the agreed terms Population of a State means the latest and conditions of the approved grant official resident population estimate offer and award. by the U.S. Department of Commerce Grant period means a 12-month period available on or before January 1, of the specified in the grant agreement, which year preceding the fiscal year for which shall begin during the fiscal year as de- funds under this part are appropriated. fined above, during which program Related land resources means any land funds are authorized to be expended, affected by present or projected man- obligated, or firmly committed by the agement practices causing significant

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effects on the quantity or quality of § 740.3 State applications. the water resource. (a) The Council shall invite the Gov- State means each of the 50 States, the ernor of each State to submit a State District of Columbia, the Common- application. wealth of Puerto Rico, the Virgin Is- (b) To be eligible for financial assist- lands, Guam, or the Commonwealth of ance under this part, a State shall sub- the Northern Mariana Islands. mit to the Council an original and two State water management planning copies of a State application executed means those activities necessary to ef- by the Governor or designee. The State fect coordinated decisions for the use application shall be submitted not of water and related resources within a later than 90 days from the date of the State or interstate region; which pro- Council’s invitation. vide for the correction or prevention, (c) The program application package respectively, of present and future shall consist of: (1) The forms and instructions for water and related land resources prob- completing the application; lems; which consider the potential for (2) The criteria to be used by the water and related land resources use Council in assessing need for water from the standpoint of present and fu- management planning funds; ture needs; and which provide for in- (3) Information on the applicable volvement of affected interests. Water Federal requirements for admin- management planning activities may istering the program; and include, but are not limited to, plan- (4) Other information pertinent to ning, data collection and analysis, the application. studies and investigations, program de- (d) A State application shall contain: sign and coordination, development of (1) The name and address of the des- regulation and enforcement programs, ignated State agency; information dissemination, public (2) A description of the comprehen- meetings, and the coordination of the sive State water management planning program with other related programs. program, or modifications thereto, as Task means a specific action or oper- required by § 740.4(a); ation which comprises a part of the im- (3) A work plan of the major program plementation effort for an activity. activities of the State water management planning program which targets Water conservation means activities milestones on a semi-annual basis; designed to (1) reduce the demand for (4) A budget and corresponding nar- water, (2) improve efficiency in use and rative in accordance with the forms reduce losses and waste of water, or (3) and instructions provided by the Coun- improve land management practices to cil; conserve water. (5) A notice of concurrence by the Water management planning need is State clearinghouse in accordance with defined as the basis for establishing the Office of Management and Budget criteria for assessing each State’s need (OMB) Circular A–95; for assistance under the Program. (6) The manner in which the general Work Plan means a document listing public is involved in the development the major program elements to be per- and modification of the State program; formed under the program during each and grant period which presents, in chrono- (7) A brief description of activities, in logical order, the major activities and order of priority, which would be car- tasks in the program element; which ried out if additional funds were made targets major milestones or proposed available during the grant period under accomplishments by activity, cost and the provisions of § 740.6(e). This may include supplementing or complementing date; and which will be used in pre- ongoing activities described in para- paring reports to reflect accomplish- graph (d)(3) of this section. ment of goals and objectives under the (e) The Governor or designee may re- participating State’s comprehensive quest an extension to the submission program. date by submitting a written request to the Council not less than 30 days

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prior to the date referred to in para- are considered in program implementa- graph (b) of this section. The extension tion. shall be granted only if, in the Coun- cil’s judgment, acceptable and substan- § 740.5 Review and approval of State tial justification is shown and the ex- applications and programs. tension would further the objectives of (a) The Council shall review and ap- the Act. An extension shall not be prove each State application for finan- granted for more than 30 days. cial assistance if it is determined that: (1) The State water management § 740.4 State water management plan- planning program meets the objectives ning program. of the Act; (a) A State shall submit a description (2) The State application and the of its proposed State program with the State water management planning pro- State application, which shall: gram meet the requirements of this (1) Describe water and related land part; and resources problems, needs and opportu- (3) Progress on the previous grant pe- nities, and the priorities proposed for riod’s work plan is satisfactory, based their resolution; on the requirements set forth by the (2) Specify the goals and objectives Council. which reflect the water resources pol- (b) Based on the review of the appli- icy of the State and which address the cation, the Council shall determine the major problems which are of concern to amount of funds to be made available the State; pursuant to § 740.6 and shall notify the (3) Describe the major elements of designated agency in each partici- the State water management program, pating State of the grant award as soon which should address but not be lim- as possible after funds are apportioned ited to: for Council use. (c) If an application is not approved (i) The integration of water quantity by the Council, it shall be returned by and water quality planning and man- registered mail with a full explanation agement; of the reasons for that determination. (ii) The protection and management The State shall then be allowed the op- of instream values; portunity to submit a revised applica- (iii) The protection and management tion within 30 days after receipt by the of groundwater supplies; State of such notification. Should the (iv) The integration of ground and State determine that further review is surface water planning and manage- required by the State clearinghouse ment; and under OMB Circular A–95, an additional (v) Water conservation. 30 days will be allowed. (4) Identify Federal, State, or local (d) If the grant amount requested by government, or public or private orga- a State differs from the grant amount nizations that will participate and a offered by the Council, the Council will general description of how they are in- request the designated State agency to volved in the management planning submit a revised budget and work plan process; with the acceptance of the grant offer. (5) If provisions are made for pass- (e) The State, upon acceptance of the through of funds, describe the process terms and conditions of the notice of by which recipients will be selected, grant award, as presented by the Coun- and the purpose of the pass-through; cil, will be granted financial assistance and in the amount of the approved final (6) List existing or proposed adminis- budget. trative, legal and/or institutional ar- (f) The work plan for the State water rangements to be used in coordinating management planning program may be intrastate, interstate and regional revised at any time by submitting revi- water resources planning activities in- sions to the work plan and budget to volving State, local and/or the Federal the Council for approval in connection Government with the proposed water with any proposed significant change management planning program of the (an addition or deletion of major ac- State to assure that all such activities tivities specified in the approved work

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plan) with appropriate provision for A– (4) One-third of the remaining bal- 95 State clearinghouse review. The ance of funds after accounting for para- Council will review the proposed revi- graphs (d)(1), (2), and (3) of this section sion and notify the State of its decision in the ratio that the reciprocal of all no later than 30 days from the date of per capital income of a State bears to receipt of the request. the sum of the reciprocals for all States; and § 740.6 Financial assistance. (5) The remainder of the funds ac- (a) The Council shall provide finan- cording to the need for water manage- cial assistance from funds available for ment planning in each State as ex- each fiscal year to each State having pressed by the State and assessed by an approved application pursuant to the Council. In assessing need for water § 740.5. management, the Council shall utilize (b) Within the provisions prescribed established criteria, the proposed pro- by paragraphs (c) and (d) of this sec- gram, and information made available tion, the Council may grant up to 50 during program review. percent of the cost for a State program. (e) Redistribution of grant funds may (c) The funds appropriated pursuant occur: to the Act for the fiscal year shall be (1) If a State fails to apply for a grant allocated among the participating within the period specified in § 740.3, or States as follows, except that under is unable to match the total allocation paragraphs (d) (2) through (4) of this reserved under § 740.6(d) for that State, section no State shall be granted a that portion of the reserved allocation greater or lesser sum of funds which will be withdrawn by the Council; shall be based upon a procedure in (2) If a State fails to obligate Federal which each of the factors of population, funds within the grant period of the ap- land area, and the reciprocal of per proved or amended grant agreement as capital income, are adjusted such that: prescribed in § 740.7(c), such funds shall (1) Those States having observations be returned to the Council not later two standard deviations below the than 30 days after submission of the Fi- mean of each respective factor are nancial Statement for the grant period equated to the mean-minus-two stand- unless the Council, based on written re- ard deviations, and quest, grants an exception or extension (2) Those States having observations to this time limitation; two standard deviations above the (3) Funds available under paragraph mean of each respective factor are (e)(1) of this section shall be available equated to the mean-plus-two standard for redistribution to those States re- deviations. questing additional funds pursuant to (d) Financial assistance for the Pro- § 740.3(d)(7). These funds shall be dis- gram shall be allocated among the par- tributed on the basis of proposals in ticipating States from funds available the application, and the relationship of for any fiscal year based on the fol- the State’s original allocation to the lowing formula: original allocation of other States re- (1) An equal share not to exceed questing redistribution funds; and $100,000, the total of which shares shall (4) Funds available under paragraph not exceed 10 percent of the funds (e)(2) of this section shall be added to available for any fiscal year; (2) One-third of the remaining bal- funds available for distribution for the ance of the funds after accounting for next fiscal year, if the appropriation paragraph (d)(1) of this section in the legislation for the current year allows ratio that the population of each State such action. bears to the population of all States; (3) One-third of the remaining bal- § 740.7 Administration of financial assistance. ance of the funds after accounting for paragraphs (d)(1) and (2) of this section (a) Grants under this part shall com- in the ratio that the land area of each ply with the requirements of: State bears to the land area of all the (1) Office of Management and Budget States; (OMB) Circular A–102, Revised, (34 CFR

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part 256), entitled ‘‘Uniform Adminis- (4) Where avoidance of wetlands can- trative Requirements for Grants-in-Aid not be achieved, minimization of ad- to State and Local Governments;’’ verse impacts and support of new con- (2) Federal Management Circular struction in wetlands, and preservation (FMC) 74–4 (34 CFR part 255), entitled and enhancement of natural and bene- ‘‘Cost Principles Applicable to Grants ficial wetlands values. and Contracts with State and Local (c) Program funds must be obligated Governments;’’ within the grant period unless the (3) OMB Circular A–73 (34 CFR part Council, based on written request, 251), entitled ‘‘Audit of Federal Oper- grants an exception or extension to ations and Programs;’’ this time limitation. The repeated oc- (4) OMB Circular A–95, entitled currence of unobligated program funds ‘‘Evaluation, Review and Coordination at the end of the grant period will be of Federal and Federally assisted Pro- considered in determining the need for grams and Projects;’’ assistance in subsequent years pursu- (5) Treasury Circular (TC) 1075, enti- ant to § 740.6(d)(5). tled ‘‘Regulations Governing With- (d) The procurement standards, prac- drawals of Cash from the Treasury for tices, rules and policies of the State as Advances under Federal Grants and customarily applied, if in accordance other Programs;’’ with Attachment O of OMB Circular A– (6) TC 1082, entitled, ‘‘Notification to 102, shall govern for procurement costs States of Grants-in-Aid Information’’; incurred in an approved program. and (e) For all matching funds the (7) Other procedures which the Coun- sources of a State’s cost share shall cil may from time to time prescribe for have no bearing on whether or not such the administration of financial assist- costs can be matched by Federal funds ance. except that: (b) The planning process as required (1) Other Federal funds or property by these guidelines and assisted by cannot be used for matching purposes WRC Title III program funds shall re- unless specifically permitted by Fed- flect the concepts of the Council’s 1979 eral law; publication, A Unified National Program (2) Program funds shall not be used for Floodplain Management, and the con- to match Federal funds under any cepts of floodplain and wetlands identi- other federally aided program; fication, avoidance and mitigation as (3) Non-Federal funds used to match described in the Council’s Floodplain other federally aided programs shall Management Guidelines (43 FR 6030). In not be used to match funds provided the application for financial assist- under the Act; and ance, the State shall assure the Coun- (4) Federal funds provided through cil that the following planning con- this program, if duly matched through cepts have been or will be integrated the requirements of this part, may be into the planning process: used as non-Federal contributions for (1) Determination of whether pro- Level B studies beginning in Fiscal posed activities would be located in Year 1981. floodplains or wetlands, or, even if lo- (f) Any cost incurred for water man- cated outside of them, would have the agement planning may be employed for potential to affect floodplains or wet- matching a grant awarded under the lands; Act except as specified in this section. (2) Avoidance of performing activi- Such expenditures must be reasonable, ties within floodplains or wetlands documentable, and directly applicable wherever there is a practicable alter- to the approved program. native; (g) Program funds may not be used (3) Where avoidance of floodplains for: cannot be achieved, minimization of (1) Items whose costs are not allow- adverse impacts and support of flood- able under the provision of FMC 74–4; plain development, and preservation (2) Contributions, dues or assess- and restoration of natural and bene- ments to support headquarters offices ficial floodplain values; and of interstate commissions, compacts,

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councils, interagency committees, or Attachments H, I and K of OMB Cir- other similar organizations; cular A–102 and TC 1075. (3) Scholarly or scientific investiga- (b) The annual program report shall tions for purposes other than address- be due 90 days after the end of the ing water management problems, grant period, as specified in the grant needs, concerns or interests specifi- agreement, and shall contain: cally identified and explained in the (1) A summary description of the approved program as a priority consid- major accomplishments and results of eration; the water management planning ac- (4) Construction, payment of sub- tivities for the year, and an expla- sidies, or purchase of land or ease- nation of any work proposed in the ments; work plan that has not been completed; (5) Purchase of equipment with a unit (2) An updated activity milestone cost of $1,500 or more without prior ap- chart, for each major activity in the proval of the Council; and work plan, showing the completion (6) Purchase of equipment with a unit dates of major tasks; cost of less than $1,500 when the cumu- (3) For those States implementing an lative cost of such equipment in any evaluation system, a summary of the one grant period exceeds 1 percent of results of the evaluation efforts on the the grant award, without prior ap- overall program effectiveness and key proval of the Council. water management activities; (h) Federal funds may not be used to (4) A list of publications, public infor- substitute for State and local funds mation materials, and other documents that would have been made available prepared in whole or in part with pro- for water management planning program funds which must duly note the grams in the absence of the grant funds use of Council grant funds in the print- provided under this part. Federal funds ing of these documents; may be used to supplement and com- (5) Other pertinent information, in- plement existing water management cluding any specific need for assist- planning programs. It does not prevent ance; and drawing matching shares from indi- (6) An annual Financial Status Re- vidual programs or from existing agen- port. cy appropriations, budgets, or re- (c) The Report of Federal Cash Trans- sources so long as expenditures are not actions, as required under the provi- substituted by Federal funds for the sions of Treasury Circular 1075, is due purposes of the Act. 30 days after the end of each quarter of (i) Payments shall be made in accord- the grant period, as specified in the ance with Attachment J of OMB Cir- grant agreement. cular A–102 and TC 1075. Grant funds shall be requested only on an as needed § 740.9 Recordkeeping. basis. Each State or other entity within a (j) Financial management procedures State receiving financial assistance shall comply with Attachment G of under this part shall make and retain OMB Circular A–102 and with TC 1075. records required by the Council, includ- The applicable Federal requirements ing records which fully disclose the shall apply to the State and to local amount and disposition of financial as- governments or non-governmental en- sistance received; the cost of adminis- tities that receive funds as a sub-grant- tration; the total cost of all activities ee for the purposes of the Act. for which assistance is given or used; and any data and information which § 740.8 Reporting. the Council determines are necessary (a) The designated agency shall sub- to protect the interests of the United mit program status reports and finan- States and to facilitate an effective ficial statements in accordance with pro- nancial audit and performance evalua- cedures established by the Council. In- tion. The Council and the Comptroller structions and a description of the con- General of the United States shall have tent of these reports and the appro- access to any books, documents, priate forms will be provided by the records or receipts which the Council Council and will be in accordance with determines are relevant or pertinent,

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either directly or indirectly, to any fi- Act, this part, or other relevant in- nancial assistance provided under this structions which apparently have not part. Such records shall be retained for been met. The State shall be given a period of three years, which starts timely opportunity to be heard from the date of the submission of the through the filing of written state- annual financial status report for the ments and personal presentations in grant period. support of their position. If the Council is satisfied that sufficient adjustments § 740.10 Program review and assist- have been made in the design and oper- ance. ation of the program, payments to the (a) Each State’s program will be re- State will be continued; and viewed annually by the Council to (3) If the Council determines on the evaluate program management and ac- basis of all the facts that the program complishments relative to the ap- still does not meet the requirements of proved work plan. The Council shall: the Act, the Governor shall be notified (1) Review progam information in- of the decision and the reasons there- cluding the application, annual re- fore, and that no further payments ports, and other relevant information; shall be made until the noted inadequa- and cies are satisfactorily resolved. (2) Make onsite visits as frequently as practicable to review the State pro- § 740.11 Federal/State coordination. gram to: The Council will coordinate the pro- (i) Provide assistance in the adminis- gram under this part with similar or tration of the program, and at the re- related programs of other Federal quest of the State, specific technical agencies in an effort to achieve con- assistance in water resources manage- sistency and compatibility in the ad- ment; ministration of Federal programs. (ii) Determine whether Council policies, procedures or guidelines need re- § 740.12 Amendments. vision to more effectively administer the grant; and The Council may amend all or por- (iii) Gather information on practical tions of these guidelines in accordance or innovative techniques, methodolo- with established procedures. If it does, gies, or other relevant information on it will: the program. (a) Consult with appropriate advisory (b) Based on the Council’s annual re- groups; view of each State program, the fol- (b) Publish such proposed rulemaking lowing may occur: in the FEDERAL REGISTER; and (1) If the program conforms to the re- (c) Simultaneously provide a copy of quirements of the Act, the State will such proposed changes to each des- be advised of its continued eligibility ignated agency. for a grant; (2) If it appears that the program § 740.13 Supplemental instructions. does not comply with the requirements As deemed appropriate, the Council of the Act in either design or adminis- may amplify the guidelines in this part tration, the Council shall ascertain all by means of supplemental instructions, the relevant facts. The State shall be and may clarify program or adminis- notified immediately of the apparent trative requirements set forth in these inadequacies of the program with cita- guidelines by the means of policy bul- tion of specific requirements of the letins.

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Part Page 801 General policies...... 105 803–805 [Reserved] 806 Review and approval of projects ...... 111 807 Water withdrawal registration ...... 132 808 Hearings and enforcement actions ...... 133

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in all matters relating to the water re- avoid and minimize conflicts and dupli- sources of the basin. cation of effort and shall: (1) The Federal Government will be (1) Cooperate with and help coordi- encouraged and asked to participate in nate Federal, State, local government, water resources projects and programs and private sector efforts in all mat- having national or broad regional sig- ters relating to the planning, conserva- nificance. The Commission will act to tion, preservation, use, development, encourage local initiative to solve management and control of the water water resources problems within a resources of the basin. local and regional context, but when (2) Develop administrative agree- faced with obviously needed action ments, as needed, with appropriate that is not forthcoming from other sources will act, in accordance with the agencies of the signatories and other Compact, on its own. agencies to facilitate achievement of (2) The Compact provides authority the Commission’s objectives and re- for the Commission to serve in a regulated responsibilities of other agencies latory capacity and also to act as a by minimizing duplication of effort and managing and operating agency. The maximizing the contributions the re- Commission will exercise its regu- spective agencies are best able to latory authority mainly in interstate make. matters or where signatory authority (3) Build upon present water re- is not being effectively exercised or sources planning and related activities where the signatory has little or no au- of the signatory parties, local govern- thority to act. Similarly, the Commis- ment, other public bodies, and the pri- sion may manage and operate various vate sector and fully consider their rec- facilities if it is determined that this is ommendations and suggestions. an area in which an important and nec- (4) Establish advisory committees as essary service can be rendered. needed for specific assignments and (3) Should it become necessary for seek meaningful liaison with sources of the Commission to undertake develop- technical and scientific expertise. ment, management and operation of (5) Share with interested parties re- projects, arrangements for repayment sults of investigations, studies, tests, of all project costs and eventual operation and maintenance costs will be ap- and research undertaken by the Com- propriately prorated among the sig- mission in an appropriate manner and natories or otherwise financed in ac- form. cordance with the Compact. (6) Conduct its regular meetings an- (4) The Commission will utilize the nounced in advance and open to the functions, powers, and duties of the ex- public. isting offices and agencies of govern- (7) Depend upon existing public and ment to the extent consistent with the private agencies for the construction, Compact. operation, and maintenance of projects (5) In its actions the Commission will except when the project is necessary to maintain a high level of public visi- further the comprehensive plan and the bility. Broad government, public, and responsible agency does not act or private sector commentary on Com- when the Commission is asked to act mission proposals and findings will be by one or more signatories, one or invited, and to the extent possible be more local governments, or other re- incorporated and reflected in decisions sponsible entities. for finalization of plans, projects, and (8) Require that the planning of programs having significant effect on projects affecting the water resources the water resources of the basin. A con- of the basin by Federal, State, local certed effort will be made to keep the Commission and its activities readily agencies and private organizations be available to government and public undertaken in coordination with the scrutiny, and responsive to their con- Commission and in accordance with cerns. the Compact. (b) The Commission shall exercise its (9) Require that periodic reports of regional jurisdiction in an effort to projects affecting water resources

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within the basin and listings of dispose related conditions, obligations, charge permits granted, and similar ac- and release requirements. tivities undertaken by offices or agen- (2) Determine if a proposed alloca- cies of the signatory parties, be sub- tion, withdrawal or diversion is in con- mitted to the Commission. flict with or will significantly affect the comprehensive plan, and assure ex- § 801.3 Allocations, diversions, with- isting immediate and projected long drawals and release. term local and regional uses are pro- (a) The extremes in availability of tected. water in the basin means that water (3) Impose conditions, obligations will not always be available when and and release requirements for dams and/ where it is needed. One of the respon- or diversion structures to protect prior sibilities of the Commission is to act local interests, downstream interests, upon requests for allocations, with- and environmental quality. drawals, or diversions of water for in- (4) In the matter of drought, disas- basin or out-of-basin use. Water emer- ters or catastrophes, natural or man- gencies may be expected to develop in made, which cause actual and imme- portions of the basin due to drought diate shortage of available and usable conditions or other causes. The Com- mission will act promptly to effect al- water supply, determine and delineate leviation of the condition to the extent the area of shortage and by unanimous posible. vote declare a state of water supply (b) The Commission will require evi- emergency therein, and impose direct dence that proposed interbasin trans- controls on any and all allocations, di- fers of water will not jeopardize, impair versions and uses of water to meet the or limit the efficient development and emergency condition. management of the Susquehanna River (5) In water emergencies coordinate Basin’s water resources, or any aspects the efforts of Federal, State, local, and of these resources for in-basin use, or other persons and entities in dealing have a significant unfavorable impact with the emergency. on the resources of the basin and the (6) Determine and delineate, after receiving waters of the Chesapeake public hearing, areas within the basin Bay. wherein the demands upon supply made (c) The Commission may, in making by water users have developed or decisions on allocations, diversions, threaten to develop to such a degree as withdrawals, and releases, consider the to create a water shortage or impair or following principles among others: conflict with the comprehensive plan. (1) That allocations, diversions, or (7) When areas in need of protection withdrawals of water be based on the from overdemand of safe yield of the common law principles of riparian supply have been delineated, declare rights which entitles landholders in such areas protected from further de- any watershed to draw upon the nat- pletion, with the consent of the mem- ural stream flow in reasonable ber or members from the affected State amounts and be entitled to the stream or States. flow not unreasonably diminished in (8) Require that no person divert or quality or quantity by upstream use or withdraw from any protected area diversion of water; and on the mainte- water for domestic, municipal, agricul- nance of the historic seasional vari- tural, or industrial uses in excess of ations of the flows into Chesapeake Bay. such quantities as the Commission may prescribe by general regulation or (d) When the need arises for action on requests for allocations, diversions, or pursuant to a permit granted here- withdrawals of water from either sur- tofore under the laws of any of the sig- face or ground waters of the basin the natory States. Commission shall: (1) Allocate waters of the basin to and among the signatory States to the Compact as the need appears, and im-

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§ 801.4 Project review. (ii) When a proposed project does not fall under the review jurisdiction of (a) The Compact provides generally any agency of the signatory parties. that no project affecting the water resources of the basin shall be under- § 801.5 Comprehensive plan. taken by any person, governmental au- (a) The Compact requires that the thority, or other entity prior to ap- Commission formulate and adopt a proval by the Commission. comprehensive plan for the immediate (b) In many instances, one or more of and long-range development and use of the signatory parties will exercise the water resources of the basin. project review authority regarding pro- (1) The plan will include existing and posed projects in the basin coming proposed public and private programs, under the review of the Commission. projects, and facilities which are re- Accordingly the Commission will di- quired, in the judgment of the Commis- rect its attention to reviewing the sion, to meet present and future water completeness and effectiveness of the resources needs of the basin. Consider- review procedures of the signatories ation shall be given to the effect of the and will endeavor to minimize duplica- plan, or any part of the plan, on the re- tion of staff effort, and time and cost ceiving waters of the Chesapeake Bay. to the applicant. The Commission shall consult with in- (c) The Commission will establish ex- terested public bodies and public utili- empt categories in accordance with the ties and fully consider the findings and section 3.10–3 of the Compact, and for recommendations of the signatory par- projects determined not to have a sub- ties, their various subdivisions and in- stantial effect on the water resources terested groups. Prior to adoption of of the basin. In dealing with Federal or the plan the Commission shall conduct federally licensed projects, the Com- at least one public hearing in each sig- mission will take the provisions of res- natory State. ervations (r) and (w) of United States (2) The plan will reflect consider- Pub. L. 91–575 (84 Stat. 1509) and provi- ation, of the multiobjectives of na- sions of the Compact into account. tional economy, regional development (d) It is expected that project review and environmental quality; and multi- procedures will be modified following purpose use of projects. adoption of the comprehensive plan. In (3) Water quantity and water quality the meantime the Commission will: planning will be studied together and (1) Base its review and comments per- correlated to the extent feasible, with taining to proposed projects within the existing and proposed land uses. The basin coming under the purview of the development of a basinwide land use Commission, on review and comments study to enable full consideration of of signatory parties. In general, the basic and alternative proposals to meet Commission review will seek to ascer- water resources needs will be explored. tain the completeness of procedures (4) An important phase of the plan followed by the signatory parties in formulation process is a thorough re- their review, and will refrain from spe- view and evaluation of the Susque- cifically rechecking detailed evalua- hanna River Basin Coordinating Com- tions. (Susquehanna River Basin Com- mittee Study report, pertinent plans mission Resolution No. 72–5) and reports of the signatories, includ- (2) Require as it determines nec- ing water quality standards and other essary, submission of pertinent project data available. The findings and rec- plans and documents for its inde- ommendations presented in the Sus- pendent review and approval. The pur- quehanna River Basin Coordinating pose of this review will be to ascertain Committee Study report will be consid- whether all relevant provisions of the ered for incorporation in the Commis- Compact and actions taken pursuant sion’s plan to the extent they are fea- thereto have been observed: sible and compatible with the current (i) When the Commission has deter- and projected needs and interests. mined that a project may have signifi- (5) Essentially the comprehensive cant effect on the water resources of plan will reflect the findings of an the basin. analysis of a mix of alternative futures

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for industrial, agricultural, residential, basin to provide water of suitable qual- and recreational development in the ity for a wide array of public and pri- basin. vate purposes into the foreseeable fu- (6) The Commission will act dili- ture should be possible. gently to promote Federal, State, local (b) The Commission may regulate the governmental, and private sector co- withdrawal of waters of the basin not operation and coordination in the im- regulated by the signatory parties for plementation of the adopted plan. It is domestic, municipal, industrial, and expected that recommended develop- agricultural uses if regulation is con- ment programs will be undertaken by sidered essential to further the aims the signatories, local governmental set forth in the comprehensive plan. agencies, or private interests. If expe- (c) The Commission shall study the ditious action by others is not forth- basin’s water supply needs, the poten- coming or is not possible the Commis- tial surface and ground water re- sion will act in accordance with the sources, and the interrelationships to Compact to implement programs, meet these needs through existing and projects, and standards to the extent new facilities and projects. Efficient necessary to further the aims of the use and management of existing facili- comprehensive plan. ties with emphasis on the full utiliza- (b) The comprehensive plan shall pro- tion of known technology will be ex- vide for the immediate and long-range plored in meeting water supply needs use, development, conservation, preser- for domestic, municipal, agricultural, vation, and management of the water and industrial water supply before new resources of the basin. The plan will be programs or projects are approved. presented in a form and order as determined by the Commission and shall in- § 801.7 Water quality. clude, but not be limited to the fol- (a) The signatory States have the pri- lowing: mary responsibility in the basin for (1) Statement of authority, purpose, water quality management and con- objectives, and scope. trol. However, protection of the water (2) Description of the physical and resources of the basin from pollution, human environment. and actions by the signatory parties to (3) Inventory of the basin’s water re- achieve abatement and control of pol- sources and existing developments and lution are important to the Commis- facilities. sion. (4) Projection of immediate and long- (b) The signatory parties have adopt- range water resources needs of the ed water quality standards for the basin. intra and interstate waters of the (5) Description of a general system of basin. Initially these standards will measures and programs, including serve as the basis for the Commission’s water quality and other standards as water quality program in the com- determined necessary, and reasonable prehensive plan. alternatives considered essential to (c) The Commission’s role in water and capable of satisfying water re- quality management and control essen- sources needs into the reasonably fore- tially will be one of coordination to en- seeable future. sure water quality standards are ade- (6) Criteria used for review and ac- quate to protect broad public water re- ceptance of projects within the plan. sources interests, and that uniform (7) Procedures for updating and modi- policies and enforcement are affected fying the plan. by the signatories. (8) Necessary appendices. (d) The Commission shall: (1) Encourage and coordinate efforts § 801.6 Water supply. of the signatory parties to prevent, re- (a) The Susquehanna River Basin is duce, control, and eliminate water pol- rich in water resources. With proper lution and to maintain water quality planning and management, and with in accordance with established stand- adequate public and private investment ards. in treatment, storage, and distribution (2) Promote government and private facilities, the high potential of the sector implementation of maximum

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practical use of waste utilization and § 801.9 Watershed management. treatment technology. (a) The character, extent, and quality (3) Promote and encourage State and of water resources of a given watershed local governments and industry to plan are strongly affected by the land use for regional waste water treatment and practices within that watershed. Ac- management. cordingly the Commission will main- (4) In cooperation with appropriate tain close liaison with Federal, State, agencies of the signatory parties, make and local highway, mining, soil, forest, periodic inspections to ascertain the fish and wildlife, and recreation agen- state of compliance with appropriate cies and with government agencies water quality standards, and as needed dealing with urban and residential de- establish and operate water quality velopment programs. monitoring stations. (b) The Commission shall: (1) Promote sound practices of water- [38 FR 4662, Feb. 20, 1973, as amended at 38 shed management including soil and FR 6386, Mar. 9, 1973] water conservation measures, land restoration and rehabilitation, erosion § 801.8 Flood plain management and protection. control, forest management, improvement of fish and wildlife habitat, and (a) Periodic inundation of lands along land use in highway, urban, and resi- waterways has not discouraged devel- dential development as related to opment of flood hazards areas. Major water resources. floods cause loss of life, extensive damages, and other conditions not in the § 801.10 Recreation. public interest. A balanced flood plain (a) The use of surface water resources management and protection program is of the basin for recreation purposes is needed to reduce the flood hazard to a extensive. Swimming, fishing, boating, minimum. and other water oriented activities (b) The Commission may regulate the have regional and local economic ben- use of flood prone lands with approval efit as well as recreational benefit. of the appropriate signatory party, to (b) The Commission shall cooperate safeguard public health, welfare, safety with public and private agencies in the and property, and to sustain economic planning and development of water-re- development. lated recreation and fish and wildlife (c) To foster sound flood plain con- programs and projects within the basin trols, as an essential part of water re- and shall: sources management, the Commission (1) Promote public access to and rec- shall: reational use of existing and future (1) Encourage and coordinate the ef- public water areas. (2) Promote recreational use of pub- forts of the signatory parties to control lic water supply reservoirs and lakes modification of the Susquehanna River where adequate treatment of water is and its tributaries by encroachment. provided, and/or where recreational (2) Plan and promote implementation uses are compatible with primary of projects and programs of a struc- project purposes. tural and nonstructural nature for the (3) Include recreation as a purpose protection of flood plains subject to where feasible, in multipurpose water frequent flooding. use planning of reservoirs and other (3) Assist in the study and classifica- water bodies. tion of flood prone lands to ascertain the relative risk of flooding, and estab- § 801.11 Public values. lish standards for flood plain manage- (a) The basin has many points of ar- ment. cheological and historic interest, and is (4) Promote the use of flood insur- well endowed with vistas of aesthetic ance by helping localities qualify for significance. the national program. (b) The Commission fully recognizes (5) Assist in the development of a that the value of these areas cannot be modern flood forecasting and warning measured simply in economic terms system. and will strive to preserve and promote

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them for the enjoyment and enrich- § 801.13 Proviso. ment of present and future genera- (a) This part is promulgated pursuant tions. to sections 3.1, 3.5(1), and 15.2 of the (c) The Commission shall: Compact and shall be construed and ap- (1) Seek the advice and assistance of plied subject to all of the terms and appropriate societies and governmental conditions of the Compact and of the agencies in the identification of ar- provisions of Pub. L. 91–575, 84 Stat. cheological, historic, and scenic areas 1509: Provided, Any provision in this and unique lands in any planning or de- statement of general policies that is in- velopment affecting these attributes of consistent with the Compact itself the basin. shall be null and void.

§ 801.12 Electric power generation. PARTS 803–805 [RESERVED] (a) Significant uses are presently being made of the waters of the basin PART 806—REVIEW AND for the generation of electric power at APPROVAL OF PROJECTS hydro, pumped storage, and thermoelectric generating stations. Increased Subpart A—General Provisions demands for electric power throughout the East Coast can be expected to re- Sec. sult in proposals for the development 806.1 Scope. 806.2 Purposes. of additional electric power generating 806.3 Definitions. stations located either in the basin or 806.4 Projects requiring review and ap- nearby its borders. proval. (b) There appears to be limited site 806.5 Projects that may require review and potential in the basin for additional approval. hydroelectric generation, and consider- 806.6 Transfer of approvals. able potential for additional pumped 806.7 Concurrent project review by member jurisdictions. storage and thermoelectric generation. 806.8 Waiver/modification. The direct and indirect effects of existing and proposed electric generation Subpart B—Application Procedure projects will be considered by the Com- mission. Items of concern will include 806.10 Purpose of this subpart. 806.11 Preliminary consultations. consumptive uses of water, alteration 806.12 Constant-rate aquifer testing. of natural stream regimen, effects on 806.13 Submission of application. water quality, and on the other uses of 806.14 Contents of application. the streams affected. 806.15 Notice of application. (c) The Commission, in cooperation 806.16 Completeness of application. with appropriate agencies of the signa- Subpart C—Standards for Review and tory parties, and with other public and Approval private agencies shall: (1) Conduct a thorough review of ap- 806.20 Purpose of this subpart. plications to relicense existing electric 806.21 General standards. power generating projects and facili- 806.22 Standards for consumptive uses of ties, and applications to amend exist- water. 806.23 Standards for water withdrawals. ing licenses to determine if the pro- 806.24 Standards for diversions. posal is in accord with the comprehen- 806.25 Water conservation standards. sive plan. (2) Require that the proposed siting Subpart D—Terms and Conditions of and location in the basin of any type of Approval electric generating facility or any fa- 806.30 Monitoring. cility located outside the basin having 806.31 Term of approvals. an effect on the waters of the basin, 806.32 Reopening/modification. shall be planned in direct consultation 806.33 Interest on fees. with the Commission to enable advance 806.34 Emergencies. consideration of the possible effects of 806.35 Fees. such installation on the water re- AUTHORITY: Secs. 3.4, 3.5 (5), 3.8, 3.10, and sources of the basin. 15.2, Pub. L. 91–575, 84 Stat. 1509, et seq.

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SOURCE: 71 FR 78579, Dec. 29, 2006, unless tion, all remaining provisions shall re- otherwise noted. main in full force and effect. (d) Except as otherwise stated in this Subpart A—General Provisions part, this part shall be effective on January 1, 2007. § 806.1 Scope. (e) When any period of time is re- (a) This part establishes the scope ferred to in this part, such period in all and procedures for review and approval cases shall be so computed as to ex- of projects under Section 3.10 of the clude the first and include the last day Susquehanna River Basin Compact, of such period. Whenever the last day Public Law 91–575, 84 Stat. 1509 et seq., of any such period shall fall on Satur- (the compact) and establishes special day or Sunday, or on any day made a standards under Section 3.4(2) of the legal holiday by the law of the United compact governing water withdrawals States, such day shall be omitted from and the consumptive use of water. The the computation. special standards established pursuant (f) Any Commission forms or docu- to Section 3.4(2) shall be applicable to ments referenced in this part may be all water withdrawals and consumptive obtained from the Commission at 1721 uses in accordance with the terms of North Front Street, Harrisburg, PA those standards, irrespective of whether such withdrawals and uses are also 17102–2391, or from the Commission’s subject to project review under Section Web site at http://www.srbc.net. 3.10. This part, and every other part of § 806.2 Purposes. 18 CFR Chapter VIII, shall also be incorporated into and made a part of the (a) The general purposes of this part comprehensive plan. are to advance the purposes of the com- (b) When projects subject to Commis- pact and include, but are not limited sion review and approval are sponsored to: by governmental authorities, the Com- (1) The promotion of interstate commission shall submit recommendations ity; and findings to the sponsoring agency, (2) The conservation, utilization, de- which shall be included in any report velopment, management and control of submitted by such agency to its respec- water resources under comprehensive, tive legislative body or to any com- multiple purpose planning; and mittee thereof in connection with any (3) The direction, supervision and co- request for authorization or appropria- ordination of water resources efforts tion therefor. The Commission review and programs of federal, state and local will ascertain the project’s compat- governments and of private enterprise. ibility with the objectives, goals, (b) In addition, §§ 806.22, 806.23 and guidelines and criteria set forth in the 806.24 of this part contain the following comprehensive plan. If determined specific purposes: Protection of public compatible, the said project will also health, safety and welfare; stream be incorporated into the comprehensive plan, if so required by the com- quality control; economic develop- pact. For the purposes of avoiding con- ment; protection of fisheries and flicts of jurisdiction and of giving full aquatic habitat; recreation; dilution effect to the Commission as a regional and abatement of pollution; the regula- agency of the member jurisdictions, no tion of flows and supplies of ground and expenditure or commitment shall be surface waters; the avoidance of con- made by any governmental authority flicts among water users; the preven- for or on account of the construction, tion of undue salinity; and protection acquisition or operation of any project of the Chesapeake Bay. or facility unless it first has been in- (c) The objective of all interpretation cluded by the Commission in the com- and construction of this part and all prehensive plan. subsequent parts is to ascertain and ef- (c) If any portion of this part, or any fectuate the purposes and the intention other part of 18 CFR Chapter VIII, of the Commission set out in this sec- shall, for any reason, be declared in- tion. These regulations shall not be valid by a court of competent jurisdic- construed in such a way as to limit the

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authority of the Commission, the en- well, or the initiation of construction forcement actions it may take, or the of any water impoundment or other remedies it may prescribe. water-related facility to serve the project, whichever comes first. § 806.3 Definitions. Consumptive use. The loss of water For purposes of parts 806, 807 and 808, transferred through a manmade con- unless the context indicates otherwise, veyance system or any integral part the words listed in this section are de- thereof (including such water that is fined as follows: purveyed through a public water sup- Agricultural water use. A water use as- ply or wastewater system), due to tran- sociated primarily with the raising of spiration by vegetation, incorporation food, fiber or forage crops, trees, flow- into products during their manufac- ers, shrubs, turf products, livestock ture, evaporation, injection of water or and poultry. The term shall include wastewater into a subsurface forma- aquaculture. tion from which it would not reason- Application. A written request for ac- ably be available for future use in the tion by the Commission including basin, diversion from the basin, or any without limitation thereto a letter, re- other process by which the water is not ferral by any agency of a member juris- returned to the waters of the basin diction, or an official form prescribed undiminished in quantity. by the Commission. Diversion. The transfer of water into Basin. The area of drainage of the or out of the basin. Susquehanna River and its tributaries Executive Director. The chief execu- into the Chesapeake Bay to the south- tive officer of the Commission ap- ern edge of the Pennsylvania Railroad pointed pursuant to Article 15, Section bridge between Havre de Grace and 15.5, of the compact. Perryville, Maryland. Facility. Any real or personal prop- Change of Ownership. A change in erty, within or without the basin, and ownership shall mean any transfer by improvements thereof or thereon, and sale or conveyance of the real or per- any and all rights of way, water, water sonal property comprising a project. rights, plants, structures, machinery, Commission. The Susquehanna River and equipment acquired, constructed, Basin Commission, as established in operated, or maintained for the bene- Article 2 of the compact, including its ficial use of water resources or related commissioners, officers, employees, or land uses or otherwise including, with- duly appointed agents or representa- out limiting the generality of the fore- tives. going, any and all things and appur- Commissioner. Member or Alternate tenances necessary, useful, or conven- Member of the Susquehanna River ient for the control, collection, stor- Basin Commission as prescribed by Ar- age, withdrawal, diversion, release, ticle 2 of the compact. treatment, transmission, sale, or ex- Compact. The Susquehanna River change of water; or for navigation Basin Compact, Pub. L. 91–575; 84 Stat. thereon, or the development and use of 1509 et seq. hydroelectric energy and power, and Comprehensive plan. The comprehen- public recreational facilities; of the sive plan prepared and adopted by the propagation of fish and wildlife; or to Commission pursuant to Articles 3 and conserve and protect the water re- 14 of the compact. sources of the basin or any existing or Construction. To physically initiate future water supply source, or to facili- assemblage, installation, erection or tate any other uses of any of them. fabrication of any facility, involving or Flowback. The return flow of water intended for the withdrawal, convey- and formation fluids recovered from ance, storage or consumptive use of the the wellbore of an unconventional nat- waters of the basin. For purposes of ural gas or hydrocarbon development natural gas well development projects well following the release of pressures subject to review and approval pursu- induced as part of the hydraulic frac- ant to § 806.4(a)(8), initiation of con- ture stimulation of a target geologic struction shall be deemed to commence formation, and until the well is placed upon the drilling (spudding) of a gas into production.

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Formation fluids. Fluids in a liquid or governmental authority and any other gaseous physical state, present within entity which is recognized by law as the pore spaces, fractures, faults, vugs, the subject of rights and obligations. caverns, or any other spaces of forma- Pre-compact consumptive use. The tions, whether or not naturally occur- maximum average daily quantity or ring or injected therein. volume of water consumptively used Governmental authority. A federal or over any consecutive 30-day period state government, or any political sub- prior to January 23, 1971. division, public corporation, public au- Production fluids. Water or formation thority, special purpose district, or fluids recovered at the wellhead of a agency thereof. producing hydrocarbon well as a by- Groundwater. Water beneath the sur- product of the production activity. face of the ground within a zone of Project. Any work, service, activity, saturation, whether or not flowing or facility undertaken, which is sepa- through known and definite channels rately planned, financed or identified or percolating through underground by the Commission, or any separate fa- geologic formations, and regardless of cility undertaken or to be undertaken whether the result of natural or artifi- by the Commission or otherwise within cial recharge. The term includes water a specified area, for the conservation, contained in quarries, pits and under- utilization, control, development, or ground mines having no significant management of water resources, which surface water inflow, aquifers, under- can be established and utilized inde- ground water courses and other bodies pendently, or as an addition to an ex- of water below the surface of the earth. isting facility, and can be considered as The term also includes a spring in a separate entity for purposes of eval- which the water level is sufficiently uation. For purposes of hydrocarbon lowered by pumping or other means of development activity, including that drainage to eliminate the surface flow. related to unconventional natural gas All other springs are considered to be development, the project shall be con- surface water. sidered to be the drilling pad upon Hydrocarbon development. Activity as- which one or more exploratory or pro- sociated with the drilling, casing, ce- duction wells are undertaken, and all menting, stimulation and completion water-related appurtenant facilities of wells, including but not limited to and activities related thereto. unconventional natural gas develop- Project sponsor. Any person who owns, ment wells, undertaken for the purpose operates or proposes to undertake a of extraction of liquid or gaseous hy- project. The singular shall include the drocarbons from geologic formations. plural. Hydrocarbon water storage facility. An Public water supply. A system, includ- engineered barrier or structure, including facilities for collection, treatment, ing but not limited to tanks, pits or storage and distribution, that provides impoundments, constructed for the water to the public for human con- purpose of storing water, flowback or sumption, that: production fluids for use in hydro- (1) Serves at least 15 service connec- carbon development. tions used by year-round residents of Member jurisdiction. The signatory the area served by the system; or parties as defined in the compact, com- (2) Regularly serves at least 25 year- prised of the States of Maryland and round residents. New York, the Commonwealth of Penn- Surface water. Water on the surface of sylvania, and the United States of the ground, including water in a peren- America. nial or intermittent watercourse, lake, Member state. The States of Maryland reservoir, pond, spring, wetland, estu- and New York, and the Commonwealth ary, swamp or marsh, or diffused sur- of Pennsylvania. face water, whether such body of water Person. An individual, corporation, is natural or artificial. partnership, unincorporated associa- Tophole water. Water that is brought tion, and the like and shall have no to the surface while drilling through gender and the singular shall include the strata containing fresh ground- the plural. The term shall include a water. Tophole water may contain drill

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cuttings typical of the formation being use; provided, however, that nothing in penetrated but may not be polluted or this section shall be construed to ex- contaminated by additives, brine, oil or empt individual consumptive users man induced conditions. connected to any such public water Unconventional natural gas develop- supply from the requirements of this ment. Activity associated with the section. Provided the commission de- drilling, casing, cementing, stimula- termines that low flow augmentation tion and completion of wells under- projects sponsored by the commission’s taken for the purpose of extraction of member states provide sufficient miti- gaseous hydrocarbons from low perme- gation for agricultural water use to ability geologic formations utilizing meet the standards set forth in § 806.22, enhanced drilling, stimulation or re- and except as otherwise provided covery techniques. below, agricultural water use projects Undertake. Except for activities re- shall not be subject to the require- lated to site evaluation, the initiation ments of this paragraph (a)(1). Not- of construction or operation of a new withstanding the foregoing, an agricul- or expanded project, or the operation of tural water use project involving a dian existing project, that is subject to version of the waters of the basin shall Commission review and approval. be subject to such requirements unless Water or waters of the basin. Ground- the property, or contiguous parcels of water or surface water, or both, within property, upon which the agricultural the basin either before or after with- water use project occurs is located at drawal. least partially within the basin. Water resources.Includes all waters (i) Any project initiated on or after and related natural resources within January 23, 1971, involving a consump- the basin. tive water use of an average of 20,000 Withdrawal.A taking or removal of gallons per day (gpd) or more in any water from any source within the basin consecutive 30-day period. for use within the basin. (ii) With respect to projects pre- [71 FR 78579, Dec. 29, 2006, as amended at 73 viously approved by the Commission FR 1273, Jan. 8, 2008; 73 FR 78619, Dec. 23, for consumptive use, any project that 2008; 77 FR 8098, Feb. 14, 2012] will involve an increase in a consumptive use above that amount which was § 806.4 Projects requiring review and previously approved. approval. (iii) With respect to projects that ex- (a) Except for activities relating to isted prior to January 23, 1971, any site evaluation or those authorized project that increases its consumptive under § 806.34, no person shall under- use by an average of 20,000 gpd or more take any of the following projects in any consecutive 30-day period above without prior review and approval by its pre-compact consumptive use. the Commission. The project sponsor (iv) Any project, regardless of when shall submit an application in accord- initiated, involving a consumptive use ance with subpart B and shall be sub- of an average of 20,000 gpd or more in ject to the applicable standards in sub- any 30-day period, and undergoing a part C. change of ownership, unless such (1) Consumptive use of water. Any con- project satisfies the requirements of sumptive use project described below paragraphs (b) or (c) of this section or shall require an application to be sub- the existing Commission approval for mitted in accordance with § 806.13, and such project is transferred pursuant to shall be subject to the standards set § 806.6. forth in § 806.22, and, to the extent that (2) Withdrawals. Any project de- it involves a withdrawal from ground- scribed below shall require an applica- water or surface water, shall also be tion to be submitted in accordance subject to the standards set forth in with § 806.13, and shall be subject to the § 806.23. Except to the extent that they standards set forth in § 806.23. Hydro- involve the diversion of the waters of electric projects, except to the extent the basin, public water supplies shall that such projects involve a with- be exempt from the requirements of drawal, shall be exempt from the re- this section regarding consumptive quirements of this section regarding

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withdrawals; provided, however, that such project is transferred pursuant to nothing in this paragraph shall be con- § 806.6. strued as exempting hydroelectric (3) Diversions. Except with respect to projects from review and approval agricultural water use projects not under any other category of project re- subject to the requirements of para- quiring review and approval as set graph (a)(1) of this section, the projects forth in this section, § 806.5, or 18 CFR described in paragraphs (a)(3)(i) part 801. The taking or removal of through (a)(3)(iv) of this section shall water by a public water supplier indi- require an application to be submitted rectly through another public water in accordance with § 806.13, and shall be supply system or another water user’s subject to the standards set forth in facilities shall constitute a withdrawal § 806.24. The project sponsors of out-of- hereunder. basin diversions shall also comply with (i) Any project initiated on or after all applicable requirements of this part the applicable dates specified in para- relating to consumptive uses and with- graph (a)(2)(iv) below, withdrawing a drawals. The projects identified in consecutive 30-day average of 100,000 paragraphs (a)(3)(v) and (a)(3)(vi) of gpd or more from a groundwater or sur- this section shall be subject to regula- face water source, or a combination of tion pursuant to § 806.22(f). such sources. (i) Any project initiated on or after (ii) With respect to projects pre- January 23, 1971, involving the diver- viously approved by the Commission, sion of water into the basin, or involv- any project that increases a with- ing a diversion of water out of the drawal above that amount which was basin of an average of 20,000 gallons of previously approved and any project water per day or more in any consecu- that will add a source or increase with- tive 30-day period. drawals from an existing source which (ii) With respect to diversions previously approved by the Commission, did not require approval prior to Janu- any project that will increase a diver- ary 1, 2007. sion above the amount previously ap- (iii) Any project which involves a proved. withdrawal from a groundwater or sur- (iii) With respect to diversions initi- face water source and which is subject ated prior to January 23, 1971, any to the requirements of paragraph (a) of project that will increase a diversion this section regarding consumptive into the basin by any amount, or in- use. crease the diversion of water out of the (iv) With respect to groundwater basin by an average of 20,000 gpd or projects in existence prior to July 13, more in any consecutive 30-day period. 1978, and surface water projects in ex- (iv) Any project, regardless of when istence prior to November 11, 1995, any initiated, involving the diversion of project that will increase its with- water into the basin or involving a di- drawal from any source, or initiate a version of an average of 20,000 gallons withdrawal from a new source, or com- of water per day or more in any con- bination of sources, by a consecutive secutive 30-day period out of the basin, 30-day average of 100,000 gpd or more, and undergoing a change of ownership, above that maximum consecutive 30- unless such project satisfies the re- day amount which the project was quirements of paragraphs (b) or (c) of withdrawing prior to the said applica- this section or the Commission ap- ble date. proval for such project is transferred (v) Any project, regardless of when pursuant to § 806.6. initiated, involving a withdrawal of a (v) The interbasin diversion of any consecutive 30-day average of 100,000 flowback or production fluids from hy- gpd or more, from either groundwater drocarbon development projects from or surface water sources, or in com- one drilling pad site to another drilling bination from both, and undergoing a pad site for use in hydrofracture stimu- change of ownership, unless such lation, provided it is handled, trans- project satisfies the requirements of ported and stored in compliance with paragraphs (b) or (c) of this section or all standards and requirements of the the existing Commission approval for applicable member jurisdiction, shall

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not be subject to separate review and securities of the transferee corpora- approval as a diversion under this para- tion, provided that immediately after graph if the generating or receiving the exchange the transferor corpora- pad site is subject to an Approval by tion(s) own 80 percent of the voting Rule issued pursuant to § 806.22(f) and stock and 80 percent of all other stock provided all monitoring and reporting of the transferee corporation. requirements applicable to such ap- (ii) Where the corporate reorganiza- proval are met. tion is merely a result of a change of (vi) The diversion of flowback or pro- the name, identity, internal corporate duction fluids from a hydrocarbon de- structure or place of organization and velopment project for which an Ap- does not affect ownership or control. proval by Rule has been issued pursu- (2) Transfer of a project to the trans- ant to § 806.22(f), to an out-of-basin feror’s spouse or one or more lineal de- treatment or disposal facility author- scendents, or any spouse of such lineal ized under separate governmental ap- descendents, or to a corporation owned proval to accept flowback or produc- or controlled by the transferor, or the tion fluids, shall not be subject to sepa- transferor’s spouse or lineal descend- rate review and approval as a diversion ents, or any spouse of such lineal de- under this paragraph, provided all scendents, for so long as the combined monitoring and reporting requirements ownership interest of the transferor, applicable to the Approval by Rule are the transferor’s spouse and/or the met and it is handled, transported and transferor’s lineal descendent(s) and stored in compliance with all standards their spouses, continues to be 51 per- and requirements of the applicable cent or greater. member jurisdiction. (4) Any project on or crossing the (3) Transfer of land used primarily boundary between two member states. for the raising of food, fiber or forage (5) Any project in a member state crops, trees, flowers, shrubs, turf prod- having a significant effect on water re- ucts, livestock, or poultry, or for aqua- sources in another member state. culture, to the extent that, and for so (6) Any project which has been or is long as, the project’s water use con- required to be included by the Commis- tinues to be for such agricultural water sion in its comprehensive plan, or will use purposes. have a significant effect upon the com- (c) Any project that did not require prehensive plan. Commission approval prior to January (7) Any other project so determined 1, 2007, and not otherwise exempt from by the commissioners or Executive Di- the requirements of paragraph rector pursuant to § 806.5 or 18 CFR (a)(1)(iv), (a)(2)(v), or (a)(3)(iv) pursuant part 801. Such project sponsors shall be to paragraph (b) of this section, may be notified in writing by the Executive Di- undertaken by a new project sponsor rector. upon a change of ownership pending ac- (8) Any unconventional natural gas tion by the Commission on an applica- development project in the basin in- tion submitted by such project sponsor volving a withdrawal, diversion or con- requesting review and approval of the sumptive use, regardless of the quan- project, provided such application is tity. submitted to the Commission in ac- (b) Any project that did not require cordance with this part within 90 days Commission approval prior to January of the date change of ownership occurs 1, 2007, and undergoing a change of and the project features related to the ownership, shall be exempt from the resource, withdrawal, diversion or con- quirements of paragraph (a)(1)(iv), sumptive use of water, or the nature or (a)(2)(v) or (a)(3)(iv) of this section if it quantity of water withdrawal, diver- satisfies any of the following cat- sion or consumptive use associated egories: with the project do not change pending (1) A corporate reorganization of the review of the application. For purposes following types: of this paragraph, changes in the quan- (i) Where property is transferred to a tity of water withdrawal, diversion or corporation by one or more corpora- consumptive use shall only relate to tions solely in exchange for stock or increases in quantity in excess of the

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quantity withdrawn, diverted or con- date of the change of ownership, which sumptively used prior to the change of notice shall be on a form and in a man- ownership. ner prescribed by the Commission and [71 FR 78579, Dec. 29, 2006, as amended at 73 under which the new project sponsor FR 1273, Jan. 8, 2008; 73 FR 78620, Dec. 23, certifies its intention to comply with 2008; 75 FR 60620, Oct. 1, 2010; 77 FR 8099, Feb. all terms and conditions of the trans- 14, 2012] ferred approval and assume all other associated obligations. § 806.5 Projects that may require re- (b) An existing Commission project view and approval. approval for any of the following cat- (a) The following projects, if not oth- egories of projects may be condi- erwise requiring review and approval tionally transferred, subject to admin- under § 806.4, and provided that the istrative approval by the Executive Di- project sponsor is notified in writing rector, upon a change of ownership and by the Executive Director, may be sub- the new project sponsor may only oper- ject to Commission review and ap- ate such project in accordance with proval as determined by the Commis- and subject to the terms and condi- sion or the Executive Director: (1) Projects that may affect inter- tions of the transferred approval: state water quality. (1) A project undergoing a change of (2) Projects within a member state ownership as a result of a corporate re- that have the potential to affect waters organization where the project prop- within another member state. This in- erty is transferred to a corporation by cludes, but is not limited to, projects one or more corporations solely in ex- which have the potential to alter the change for stock or securities of the physical, biological, chemical or transferee corporation, provided that hydrological characteristics of water immediately after the exchange the resources of interstate streams des- transferor corporation(s) own 80 per- ignated by the Commission under sepa- cent of the voting stock and 80 percent rate resolution. of all other stock of the transferee cor- (3) Projects that may have a signifi- poration. cant effect upon the comprehensive (2) A project being transferred to the plan. transferor’s spouse or one or more lin- (4) Projects not included in para- eal descendents, or any spouse of such graphs (a)(1) through (a)(3) of this sec- lineal descendents, or to a corporation tion, but which could have an adverse, owned or controlled by the transferor, adverse cumulative, or interstate ef- or the transferor’s spouse or lineal de- fect on the water resources of the scendents, or any spouse of such lineal basin. descendents, for so long as the com- (b) Determinations by the Executive bined ownership interest of the trans- Director may be appealed to the Com- feror, the transferor’s spouse and/or the mission within 30 days after receipt of transferor’s lineal descendent(s) and notice of such determination as set their spouses, continues to be 51 per- forth in § 808.2. cent or greater. § 806.6 Transfer of approvals. (3) A project involving the transfer of land used primarily for the raising of (a) An existing Commission project approval may be transferred or condi- food, fiber or forage crops, trees, flow- tionally transferred to a new project ers, shrubs, turf products, livestock or sponsor upon a change of ownership of poultry, or for aquaculture, to the ex- the project, subject to the provisions of tent that, and for so long as, the paragraphs (b), (c) and (d) of this sec- project’s water use continues to be for tion, and the new project sponsor may such agricultural water use purposes. only operate the project in accordance (4) A project that satisfies all of the with and subject to the terms and con- following conditions: ditions of the existing approval pend- (i) The existing Commission approval ing approval of the transfer, provided is less than ten (10) years old. the new project sponsor notifies the (ii) The project has no associated pre- Commission within 90 days from the compact consumptive water use.

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(iii) The project has no associated di- have not changed or will not change version that was initiated prior to Jan- upon its transfer. For purposes of this uary 23, 1971. paragraph, changes in the quantity of (iv) The project has no associated water withdrawal, diversion or con- groundwater withdrawal that was initi- sumptive use shall only relate to in- ated prior to July 13, 1978, unless such creases in quantity in excess of the ap- withdrawal has otherwise been approved quantity. proved by the Commission. (2) The project satisfies one or more (v) The project has no associated sur- of the following conditions: face water withdrawal that was initi- (i) The project has an associated pre- ated prior to November 11, 1995, unless compact consumptive water use. such withdrawal has otherwise been ap- (ii) The project has an associated di- proved by the Commission. version that was initiated prior to Jan- (vi) The project is not the subject of uary 23, 1971. a pending compliance or enforcement (iii) The project has an associated matter before the Commission. groundwater withdrawal that was initi- (vii) The project features related to ated prior to July 13, 1978 and that has the source, withdrawal, diversion or not been approved by the Commission. consumptive use of water, or the na- (iv) The project has an associated ture or quantity of water withdrawal, surface water withdrawal that was ini- diversion or use associated with the tiated prior to November 11, 1995 and project, as identified in the existing that has not been approved by the Commission approval, have not Commission. The project has a con- changed or will not change upon its sumptive water use approval and has transfer. For purposes of this para- an associated withdrawal that has not graph, changes in the quantity of water been approved by the Commission. withdrawal, diversion or consumptive (3) The project sponsor submits an use shall only relate to increases in application to the Commission, in ac- quantity in excess of the approved cordance with this part, within ninety quantity. If the project involves both a (90) days from the date of the change of consumptive water use and an associ- ownership, requesting review and ap- ated withdrawal, then the withdrawal proval of the applicable consumptive must have been approved by the Com- use, diversion or withdrawals, identi- mission. fied in paragraph (c)(2) above, as a (c) An existing Commission approval modification to the conditionally of a project that satisfies the following transferred approval. conditions may be conditionally trans- (d) An existing Commission project ferred and the project sponsor may approval for any project not satisfying only operate such project in accord- the requirements of paragraphs (b) or ance with and subject to the terms and (c) of this section may be conditionally conditions of the conditionally trans- transferred and the project sponsor ferred approval, pending action by the may only operate such project in ac- Commission on the application sub- cordance with and subject to the terms mitted in accordance with paragraph and conditions of the conditionally (c)(3) of this section: transferred approval, pending action by (1) The project satisfies all of the fol- the Commission on an application the lowing conditions: project sponsor shall submit to the (i) The existing approval is less than Commission, provided that: ten (10) years old. (1) The new project sponsor submits (ii) The project is not the subject of an application to the Commission, in a pending compliance or enforcement accordance with this part, within nine- matter before the Commission. ty (90) days from the date of the change (iii) The project features related to of ownership, requesting review and ap- the source, withdrawal, diversion or proval of the project; and consumptive use of water, or the na- (2) The project features related to the ture or quantity of water withdrawal, source, withdrawal, diversion or con- diversion or consumptive use associ- sumptive use of water, or the nature or ated with the project, as identified in quantity of water withdrawal, diver- the existing Commission approval, sion or consumptive use associated

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with the project do not change pending rangement with the Commission spe- review of the application. For purposes cifically providing therefor. of this paragraph, changes in the quan- [71 FR 78579, Dec. 29, 2006, as amended at 75 tity of water withdrawal, diversion or FR 60620, Oct. 1, 2010] consumptive use shall only relate to increases in quantity in excess of the § 806.8 Waiver/modification. quantity withdrawn, diverted or con- The Commission may, in its discre- sumptively used prior to the change of tion, waive or modify any of the re- ownership. (e) An existing Commission project quirements of this or any other part of approval may be re-issued by the Exec- its regulations if the essential purposes utive Director at the request of a set forth in § 806.2 continue to be project sponsor undergoing a change of served. name, provided such change does not affect ownership or control of the Subpart B—Application Procedure project or project sponsor. The project sponsor may only continue to operate § 806.10 Purpose of this subpart. the project under the terms and condi- The purpose of this subpart is to set tions of the existing approval pending forth procedures governing applica- approval of its request for re-issuance, tions required by §§ 806.4, 806.5, 806.6 and provided it submits its request to the 18 CFR part 801. Commission within 90 days from the date of the change, which notice shall § 806.11 Preliminary consultations. be on a form and in a manner pre- (a) Any project sponsor of a project scribed by the Commission, accom- that is or may be subject to the Com- panied by the appropriate fee estab- mission’s jurisdiction is encouraged, lished therefore by the Commission. prior to making application for Com- [71 FR 78579, Dec. 29, 2006, as amended at 73 mission review, to request a prelimi- FR 1273, Jan. 8, 2008; 75 FR 60620; 75 FR 60620, nary consultation with the Commis- Oct 1, 2010; 75 FR 60620, Oct. 1, 2010] sion staff for an informal discussion of preliminary plans for the proposed § 806.7 Concurrent project review by project. To facilitate preliminary con- member jurisdictions. sultations, it is suggested that the (a) The Commission recognizes that project sponsor provide a general de- agencies of the member jurisdictions scription of the proposed project, a will exercise their review and approval map showing its location and, to the authority and evaluate many proposed extent available, data concerning di- projects in the basin. The Commission mensions of any proposed structures, will adopt procedures to assure com- anticipated water needs, and the envi- patibility between jurisdictional re- ronmental impacts. view and Commission review. (b) Preliminary consultation is op- (b) To avoid duplication of work and tional for the project sponsor (except to cooperate with other government with respect to aquifer test plans, see agencies, the Commission may develop § 806.12 but shall not relieve the sponsor administrative agreements or other co- from complying with the requirements operative arrangements, in accordance of the compact or with this part. with the procedures outlined in this part, with appropriate agencies of the § 806.12 Constant-rate aquifer testing. member jurisdictions regarding joint (a) Prior to submission of an applica- review of projects. These agreements or tion pursuant to § 806.13, a project spon- arrangements may provide for joint ef- sor seeking approval to withdraw or in- forts by staff, delegation of authority crease a withdrawal of groundwater by an agency or the Commission, or shall perform a constant-rate aquifer any other matter to support coopera- test in accordance with this section. tive review activities. Permits issued (b) The project sponsor shall prepare by a member jurisdiction agency shall a constant-rate aquifer test plan for be considered Commission approved if prior review and approval by Commis- issued pursuant to an administrative sion staff before testing is undertaken. agreement or other cooperative ar- Such plan shall include a groundwater

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availability analysis to determine the (iv) Proposed quantity of water to be availability of water during a 1-in-10- consumed, if applicable. year recurrence interval. (v) Constant-rate aquifer tests. The (c) Unless otherwise specified, ap- project sponsor shall provide the re- proval of a test plan is valid for two sults of a constant-rate aquifer test years from the date of approval. with any application which includes a (d) Approval of a test plan shall not request for a groundwater withdrawal. be construed to limit the authority of The project sponsor shall obtain Com- the Commission to require additional mission approval of the test procedures testing or monitoring. prior to initiation of the constant-rate (e) The project sponsor may be re- aquifer test. quired, at its expense, to provide tem- (vi) Water use and availability. porary water supply if an aquifer test (vii) All water sources and the date of results in interference with an existing initiation of each source. water use. (viii) Supporting studies, reports, and other information upon which assump- § 806.13 Submission of application. tions and assertions have been based. Sponsors of projects subject to re- (ix) Plans for avoiding or mitigating view and approval of the Commission for consumptive use. under §§ 806.4, 806.5 or 806.6, or project (x) Copies of any correspondence with sponsors seeking renewal of an existing member jurisdiction agencies. approval of the Commission, shall sub- (xi) Evidence of compliance with ap- mit an application and applicable fee plicable water registration require- to the Commission, in accordance with ments of the member jurisdiction in this subpart. which the project is located. (3) Anticipated impact of the pro- [77 FR 8099, Feb. 14, 2012] posed project on: (i) Surface water characteristics § 806.14 Contents of application. (quality, quantity, flow regimen, other (a) Except with respect to applica- hydrologic characteristics). tions to renew an existing Commission (ii) Threatened or endangered species approval, applications shall include, and their habitats. but not be limited to, the following in- (iii) Existing water withdrawals. formation and, where applicable, shall (4) Project estimated completion be submitted on forms and in the man- date and estimated construction sched- ner prescribed by the Commission. Re- ule. newal applications shall include such (b) The Commission may also require information that the Commission de- the project sponsor to submit the fol- termines to be necessary for the review lowing information related to the of same, shall be subject to the stand- project, in addition to the information ards set forth in Subpart C—Standards required in paragraph (a) of this sec- for Review and Approval of this part, tion, as deemed necessary. and shall likewise be submitted on (1) Description of project and site in forms and in the manner prescribed by terms of: the Commission. (i) Engineering feasibility. (1) Identification of project sponsor (ii) Ability of project sponsor to fund including any and all proprietors, cor- the project or action. porate officers or partners, the mailing (iii) Identification and description of address of the same, and the name of reasonable alternatives, the extent of the individual authorized to act for the their economic and technical inves- sponsor. tigation, and an assessment of their po- (2) Description of project and site in tential environmental impact. In the terms of: case of a proposed diversion, the (i) Project location, including global project sponsor should include informa- positioning system (gps) coordinates tion that may be required by § 806.25 or accurate to within 10 meters. any policy of the Commission relating (ii) Project purpose. to diversions. (iii) Proposed quantity of water to be (iv) Compatibility of proposed project withdrawn. with existing and anticipated uses.

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(v) Anticipated impact of the pro- 10 days after submission of the applica- posed project on: tion to the Commission and shall con- (A) Flood damage potential consid- tain a description of the project, its ering the location of the project with purpose, the requested quantity of respect to the flood plain and flood haz- water to be withdrawn obtained from ard zones. for sources other than withdrawals or (B) Recreation potential. consumptively used, and the address, (C) Fish and wildlife (habitat quality, electronic mail address, and phone kind and number of species). number of the project sponsor and the (D) Natural environment uses (scenic Commission. All such notices shall be vistas, natural and manmade travel in a form and manner as prescribed by corridors, wild and wilderness areas, the Commission. wild, scenic and recreation rivers). (b) For withdrawal applications sub- (E) Site development considerations mitted pursuant to § 806.4(a)(2), the (geology, topography, soil characteris- project sponsor shall also provide the tics, adjoining and nearby land uses, notice required under paragraph (a) of adequacy of site facilities). this section to each property owner (F) Historical, cultural and archae- listed on the tax assessment rolls of ological impacts. the county in which such property is (2) Governmental considerations: (i) Need for governmental services or located and identified as follows: finances. (1) For groundwater withdrawal ap- (ii) Commitment of government to plications, the owner of any property provide services or finances. that is located within a one-half mile (iii) Status of application with other radius of the proposed withdrawal loca- governmental regulatory bodies. tion. (3) Any other information deemed (2) For surface water withdrawal ap- necessary by the Commission. plications, the owner of any property (c) A report about the project pre- that is riparian or littoral to the body pared for any other purpose, or an ap- of water from which the proposed with- plication for approval prepared for sub- drawal will be taken and is within a mission to a member jurisdiction, may one-half mile radius of the proposed be accepted by the Commission pro- withdrawal location. vided the said report or application ad- (c) For projects involving a diversion dresses all necessary items on the Com- of water out of the basin, the project mission’s form or listed in this section, sponsor shall also publish a notice of as appropriate. the submission of its application at [71 FR 78579, Dec. 29, 2006, as amended at 77 least once in a newspaper of general FR 8099, Feb. 14, 2012] circulation serving the area outside the basin where the project proposing to § 806.15 Notice of application. use the diverted water is located. For (a) Any project sponsor submitting projects involving a diversion of water an application to the Commission shall into the basin, the project sponsor provide notice thereof to the appro- shall also publish a notice of the sub- priate agency of the member State, mission of its application at least once each municipality in which the project in a newspaper of general circulation is located, and the county planning serving the area outside the basin agency of each county in which the where the withdrawal of water pro- project is located. The project sponsor posed for diversion is located. shall also publish notice of submission (d) For applications submitted under of the application at least once in a § 806.22(f)(13) for a public water supply newspaper of general circulation serv- source, the newspaper notice require- ing the area in which the project is lo- ment contained in paragraph (a) of this cated. The project sponsor shall also section shall be satisfied by publica- meet any of the notice requirements tion in a newspaper of general circula- set forth in paragraphs (b) through (e) tion in the area served by the public of this section, if applicable. All no- water supply. tices required under this section shall (e) For applications submitted under be provided or published no later than § 806.22(f)(13) for a wastewater discharge

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source, the newspaper notice require- termination of the application process ment contained in paragraph (a) of this and forfeiture of any fees submitted. section shall be satisfied by publica- (c) The project sponsor has a duty to tion in a newspaper of general circula- provide information reasonably nection in each area within which the essary for the Commission’s review of water obtained from such source will the application. If the project sponsor initially be used for natural gas devel- fails to respond to the Commission’s opment. request for additional information, the (f) For applications submitted under Commission may terminate the appli- § 806.22(f)(14) for a hydrocarbon water cation process, close the file and so no- storage facility, the newspaper notice tify the project sponsor. The project requirement contained in paragraph (a) sponsor may reapply without prejudice of this section shall be satisfied by pub- by submitting a new application and lication in a newspaper of general cir- fee. culation in the area in which the facility is located. Subpart C—Standards for Review (g) The project sponsor shall provide and Approval the Commission with a copy of the United States Postal Service return re- § 806.20 Purpose of this subpart. ceipt for the notifications to agencies The purpose of this subpart is to set of member States, municipalities and forth general standards that shall be county planning agencies required used by the Commission to evaluate all under paragraph (a) of this section. The projects subject to review and approval project sponsor shall also provide cer- by the Commission pursuant to §§ 806.4, tification on a form provided by the 806.5 and 806.6, and to establish special Commission that it has published the standards applicable to certain water newspaper notice(s) required by this withdrawals, consumptive uses and di- section and made the landowner notifi- versions. This subpart shall not be con- cations as required under paragraph (b) strued to limit the Commission’s au- of this section, if applicable. Until thority and scope of review. These these items are provided to the Com- standards are authorized under Sec- mission, processing of the application tions 3.4(2), 3.4(8), 3.4(9), and 3.10 of the will not proceed. The project sponsor compact and are based upon, but not shall maintain all proofs of notice re- limited to, the goals, objectives, guide- quired hereunder for the duration of lines and criteria of the comprehensive the approval related to such notices. plan. [75 FR 60620, Oct. 1, 2010, as amended at 77 FR § 806.21 General standards. 8099, Feb. 14, 2012] (a) A project shall not be detrimental to the proper conservation, develop- § 806.16 Completeness of application. ment, management, or control of the (a) The Commission’s staff shall re- water resources of the basin. view the application, and if necessary, (b) The Commission may modify and request the project sponsor to provide approve as modified, or may dis- any additional information that is approve, a project if it determines that deemed pertinent for proper evaluation the project is not in the best interest of of the project. the conservation, development, man- (b) An application deemed adminis- agement, or control of the basin’s tratively incomplete will be returned water resources, or is in conflict with to the project sponsor, who shall have the comprehensive plan. 30 days to cure the administrative defi- (c) Disapprovals—other governmental ciencies. An application deemed tech- jurisdictions. (1) The Commission may nically deficient may be returned to suspend the review of any application the project sponsor, who shall have a under this part if the project is subject period of time prescribed by Commis- to the lawful jurisdiction of any mem- sion staff to cure the technical defi- ber jurisdiction or any political sub- ciencies. Failure to cure either admin- division thereof, and such member ju- istrative or technical deficiencies with- risdiction or political subdivision has in the prescribed time may result in disapproved or denied the project.

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Where such disapproval or denial is re- and withdraw water from alternative versed on appeal, the appeal is final, surface water storage or aquifers or and the project sponsor provides the other underground storage chambers or Commission with a certified copy of facilities approved by the Commission, the decision, the Commission shall re- from which water can be withdrawn for sume its review of the application. a period of 90 days without impact to Where, however, an application has surface water flows. been suspended hereunder for a period (ii) Release water for flow augmenta- greater than three years, the Commis- tion, in an amount equal to the sion may terminate its review. There- project’s total consumptive use, from upon, the Commission shall notify the surface water storage or aquifers, or project sponsor of such termination other underground storage chambers or and that the application fee paid by the facilities approved by the Commission, project sponsor is forfeited. The project from which water can be withdrawn for sponsor may reactivate the terminated a period of 90 days without impact to docket by reapplying to the Commis- surface water flows. sion, providing evidence of its receipt (iii) Discontinue the project’s con- of all necessary governmental approv- sumptive use, except that reduction of als and, at the discretion of the Com- project sponsor’s consumptive use to mission, submitting new or updated in- less than 20,000 gpd during periods of formation. low flow shall not constitute dis- (2) The Commission may modify, sus- continuance. pend or revoke a previously granted ap- (2) Use, as a source of consumptive proval if the project sponsor fails to ob- use water, surface storage that is sub- tain or maintain the approval of a ject to maintenance of a conservation member jurisdiction or political sub- release acceptable to the Commission. division thereof having lawful jurisdic- In any case of failure to provide the tion over the project. specified conservation release, such § 806.22 Standards for consumptive project shall provide mitigation in ac- uses of water. cordance with paragraph (3), below, for (a) The project sponsors of all con- the calendar year in which such failure sumptive water uses subject to review occurs, and the Commission will re- and approval under § 806.4, § 806.5 or evaluate the continued acceptability of § 806.6 of this part shall comply with the conservation release. this section. (3) Provide monetary payment to the (b) Mitigation. All project sponsors Commission, for annual consumptive whose consumptive use of water is sub- use, in an amount and manner pre- ject to review and approval under scribed by the Commission. § 806.4, § 806.5 or § 806.6 of this part shall (4) Implement other alternatives ap- mitigate such consumptive use. Except proved by the Commission. to the extent that the project involves (c) Determination of manner of mitiga- the diversion of the waters out of the tion. The Commission will, in its sole basin, public water supplies shall be ex- discretion, determine the acceptable empt from the requirements of this manner of mitigation to be provided by section regarding consumptive use; project sponsors whose consumptive provided, however, that nothing in this use of water is subject to review and section shall be construed to exempt approval. Such a determination will be individual consumptive users con- made after considering the project’s lo- nected to any such public water supply cation, source characteristics, antici- from the requirements of this section. pated amount of consumptive use, pro- Mitigation may be provided by one, or posed method of mitigation and their a combination of the following: effects on the purposes set forth in (1) During low flow periods as may be § 806.2 of this part, and any other perti- designated by the Commission for con- nent factors. The Commission may sumptive use mitigation. modify, as appropriate, the manner of (i) Reduce withdrawal from the ap- mitigation, including the magnitude proved source(s), in an amount equal to and timing of any mitigating releases, the project’s total consumptive use, required in a project approval.

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(d) Quality of water released for mitiga- (f) Approval by rule for consumptive tion. The physical, chemical and bio- use related to unconventional natural logical quality of water released for gas and other hydrocarbon develop- mitigation shall at all times meet the ment. quality required for the purposes listed (1) Any unconventional natural gas in § 806.2, as applicable. development project, or any hydro- (e) Approval by rule for consumptive carbon development project subject to uses. (1) Except with respect to projects review and approval under §§ 806.4, 806.5, involving hydrocarbon development or 806.6 of this part, shall be subject to subject to the provisions of paragraph review and approval by the Executive (f) of this section, any project whose Director under this paragraph (f) re- sole source of water for consumptive gardless of the source or sources of use is a public water supply, may be water being used consumptively. approved by the Executive Director (2) Notification of Intent: Prior to under this paragraph (e) in accordance undertaking a project or increasing a with the following, unless the Execu- previously approved quantity of con- tive Director determines that the sumptive use, the project sponsor shall project cannot be adequately regulated under this approval by rule. submit a Notice of Intent (NOI) on forms prescribed by the Commission, (2) Metering, daily use monitoring and quarterly reporting. The project and the appropriate application fee, sponsor shall comply with metering, along with any required attachments. daily use monitoring and quarterly re- (3) Within 10 days after submittal of porting as specified in § 806.30. an NOI under paragraph (f)(2) of this (3) Standard conditions. The standard section, the project sponsor shall sat- conditions set forth in § 806.21 above isfy the notice requirements set forth shall apply to projects approved by in § 806.15. rule. (4) The project sponsor shall comply (4) Mitigation. The project sponsor with metering, daily use monitoring shall comply with mitigation in ac- and quarterly reporting as specified in cordance with § 806.22 (b)(2) or (b)(3). § 806.30, or as otherwise required by the (5) Compliance with other laws. The approval by rule. Daily use monitoring project sponsor shall obtain all nec- shall include amounts delivered or essary permits or approvals required withdrawn per source, per day, and for the project from other federal, state amounts used per gas well, per day, for or local government agencies having well drilling, hydrofracture stimula- jurisdiction over the project. The Com- tion, hydrostatic testing, and dust con- mission reserves the right to modify, trol. The foregoing shall apply to all suspend or revoke any approval under water, including stimulation additives, this paragraph (e) if the project spon- flowback, drilling fluids, formation sor fails to obtain or maintain such ap- fluids and production fluids, utilized by provals. the project. The project sponsor shall (6) The Executive Director may also submit a post-hydrofracture re- grant, deny, suspend, rescind, modify port in a form and manner as pre- or condition an approval to operate scribed by the Commission. under this approval by rule, or renew (5) The project sponsor shall comply an existing approval by rule previously with the mitigation requirements set granted hereunder, and will notify the forth in § 806.22(b). project sponsor of such determination, (6) Any flowback or production fluids including the quantity of consumptive utilized by the project sponsor for use approved. hydrofracture stimulation undertaken (7) Approval by rule shall be effective at the project shall be separately ac- upon written notification from the Ex- counted for, but shall not be included ecutive Director to the project sponsor, shall expire 15 years from the date of in the daily consumptive use amount such notification, and shall be deemed calculated for the project, or be subject to rescind any previous consumptive to the mitigation requirements of use approvals. § 806.22(b).

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(7) The project sponsor shall obtain only for drilling or hydrofracture stim- all necessary permits or approvals re- ulation. quired for the project from other fed- (ii) Precipitation or stormwater col- eral, state, or local government agen- lected on the drilling pad site, provided cies having jurisdiction over the it is used only for drilling or project. The Executive Director re- hydrofracture stimulation. serves the right to modify, suspend or (iii) Drilling fluids, formation fluids, revoke any approval under this para- flowback or production fluids obtained graph (f) if the project sponsor fails to from a drilling pad site, production obtain or maintain such approvals. well site or hydrocarbon water storage (8) The project sponsor shall certify facility, provided it is used only for to the Commission that all flowback hydrofracture stimulation, and is han- and production fluids have been re-used dled, transported and stored in compli- or treated and disposed of in accordance with all standards and require- ance with applicable state and federal ments of the applicable member juris- law. diction. (9) The Executive Director may (iv) Water obtained from a hydro- grant, deny, suspend, rescind, modify carbon water storage facility associ- or condition an approval to operate ated with an approval issued by the under this approval by rule, or renew Commission pursuant to § 806.4(a) or by an existing approval by rule granted the Executive Director pursuant to hereunder, and will notify the project this section, provided it is used only sponsor of such determination, includ- for the purposes authorized therein, ing the sources and quantity of con- and in compliance with all standards sumptive use approved. The issuance of and requirements of the applicable any approval hereunder shall not be member jurisdiction. construed to waive or exempt the (12) A project sponsor issued an ap- project sponsor from obtaining Com- proval by rule pursuant to paragraph mission approval for any water with- (f)(9) of this section may utilize a drawals or diversions subject to review source of water approved by the Com- pursuant to § 806.4(a). Any sources of mission pursuant to § 806.4(a), or by the water approved pursuant to this sec- Executive Director pursuant to para- tion shall be further subject to any ap- graph (f)(14) of this section, and issued proval or authorization required by the to persons other than the project spon- member jurisdiction. sor, provided any such source is ap- (10) Approval by rule shall be effec- proved for use in unconventional nat- tive upon written notification from the ural gas development, or hydrocarbon Executive Director to the project spon- development, whichever is applicable, sor, shall expire five years from the the project sponsor has an agreement date of such notification, and supersede for its use, and at least 10 days prior to any previous consumptive use approv- use, the project sponsor registers such als to the extent applicable to the source with the Commission on a form project. and in the manner prescribed by the (11) In addition to water sources ap- Commission. proved for use by the project sponsor (13) A project sponsor issued an ap- pursuant to § 806.4 or this section, for proval by rule pursuant to paragraph unconventional natural gas develop- (f)(9) of this section may also utilize ment or hydrocarbon development, other sources of water, including but whichever is applicable, a project spon- not limited to, public water supply or sor issued an approval by rule pursuant wastewater discharge not otherwise as- to paragraph (f) (9) of this section may sociated with an approval issued by the utilize any of the following water Commission pursuant to § 806.4(a) or an sources at the drilling pad site, subject approval by rule issued pursuant to to such monitoring and reporting re- paragraph (f)(9) of this section, pro- quirements as the Commission may vided such sources are first approved prescribe: by the Executive Director. Any request (i) Tophole water encountered during for approval shall be submitted on a the drilling process, provided it is used form and in the manner prescribed by

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the Commission, shall satisfy the no- sonably foreseeable needs of the tice requirements set forth in § 806.15, project sponsor. and shall be subject to review pursuant (2) The Commission may deny an ap- to the standards set forth in subpart C plication, limit or condition an ap- of this part. proval to ensure that the withdrawal (14) A project sponsor issued an ap- will not cause significant adverse im- proval by rule pursuant to paragraph pacts to the water resources of the (f)(9) of this section may utilize water basin. The Commission may consider, obtained from a hydrocarbon water without limitation, the following in its storage facility that is not otherwise consideration of adverse impacts: Low- associated with an approval issued by ering of groundwater or stream flow the Commission pursuant to § 806.4(a), levels; rendering competing supplies or an approval by rule issued pursuant unreliable; affecting other water uses; to paragraph (f)(9) of this section, pro- causing water quality degradation that vided such sources are first approved may be injurious to any existing or po- by the Executive Director and are con- tential water use; affecting fish, wild- structed and maintained in compliance life or other living resources or their with all standards and requirements of habitat; causing permanent loss of aq- the applicable member jurisdiction. uifer storage capacity; or affecting low The owner or operator of any such fa- flow of perennial or intermittent cility shall submit a request for ap- streams. proval on a form and in the manner (3) The Commission may impose limi- prescribed by the Commission, shall tations or conditions to mitigate im- satisfy the notice requirements set pacts, including without limitation: forth in § 806.15, and shall be subject to (i) Limit the quantity, timing or rate review pursuant to the standards set of withdrawal or level of drawdown. forth in subpart C of this part. (ii) Require the project sponsor to (15) The project sponsor shall provide provide, at its own expense, an alter- a copy of any registration or source ap- nate water supply or other mitigating proval issued pursuant to this section measures. to the appropriate agency of the appli- (iii) Require the project sponsor to cable member jurisdiction. The project implement and properly maintain spe- sponsor shall record on a daily basis, cial monitoring measures. and report quarterly on a form and in (iv) Require the project sponsor to a manner prescribed by the Commis- implement and properly maintain sion, the quantity of water obtained stream flow protection measures. from any source registered or approved (v) Require the project sponsor to de- hereunder. Any source approval issued velop and implement an operations hereunder shall also be subject to such plan acceptable to the Commission. monitoring and reporting requirements (4) The Commission may require the as may be contained in such approval project sponsor to undertake the fol- or otherwise required by this part. lowing, to ensure its ability to meet its present or reasonably foreseeable water [71 FR 78579, Dec. 29, 2006, as amended at 73 FR 78620, Dec. 23, 2008; 74 FR 49812, Sept. 29, needs from available groundwater or 2009; 75 FR 60621, Oct. 1, 2010; 77 FR 8099, Feb. surface water without limitation: 14, 2012] (i) Investigate additional sources or storage options to meet the demand of § 806.23 Standards for water with- the project. drawals. (ii) Submit a water resource develop- (a) The project sponsors of all with- ment plan that shall include, without drawals subject to review and approval limitation, sufficient data to address under § 806.4, § 806.5 or § 806.6 of this part any supply deficiencies, identify alter- shall comply with the following stand- native water supply options, and sup- ards, in addition to those required purport existing and proposed future with- suant to § 806.21. drawals. (b) Limitations on withdrawals. (1) The Commission may limit withdrawals to § 806.24 Standards for diversions. the amount (quantity and rate) of (a) The project sponsors of all diver- water that is needed to meet the rea- sions subject to review and approval

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under § 806.4, § 806.5 or § 806.6 of this part not limited to, the factors set forth in shall comply with the following stand- paragraphs (i) through (v) of this para- ards. graph (b)(3). The decision whether to (b) For projects involving out-of- consider the factors in this paragraph basin diversions, the following require- (b) and the amount of information re- ments shall apply. quired for such consideration, if under- (1) Project sponsors shall: taken, will depend upon the potential (i) Demonstrate that they have made for the proposed diversion to have an good faith efforts to develop and con- adverse impact on the ability of the serve sources of water within the im- Susquehanna River Basin, or any por- porting basin, and have considered tion thereof, to meet its own present other reasonable alternatives to the di- and future needs. version. (i) The impact of the diversion on (ii) Comply with the general stand- economic development within the Sus- ards set forth in §§ 801.3, 806.21, and quehanna River Basin, the member 806.22, and the applicable requirements states or the United States of America. of this part relating to consumptive (ii) The cost and reliability of the di- uses and withdrawals. version versus other alternatives, in- (2) In deciding whether to approve a cluding certain external costs, such as proposed diversion out of the basin, the impacts on the environment or water Commission shall also consider and the resources. project sponsor shall provide informa- (iii) Any policy of the member juris- tion related to the following factors: dictions relating to water resources, (i) Any adverse effects and cumu- growth and development. lative adverse effects the project may (iv) How the project will individually have on the ability of the Susquehanna and cumulatively affect other environ- River Basin, or any portion thereof, to mental, social and recreational values. meet its own present and future water (v) Any land use and natural resource needs. planning being carried out in the im- (ii) The location, amount, timing, porting basin. purpose and duration of the proposed (c) For projects involving into-basin diversion and how the project will indi- diversions, the following requirements vidually and cumulatively affect the shall apply. flow of any impacted stream or river, (1) Project sponsors shall: and the freshwater inflow of the Chesa- (i) Provide information on the peake Bay, including the extent to source, amount, and location of the which any diverted water is being re- water being diverted to the Susque- turned to the basin or the bay. hanna River Basin from the importing (iii) Whether there is a reasonably basin. foreseeable need for the quantity of (ii) Provide information on the water water requested by the project sponsor quality classification, if any, of the and how that need is measured against Susquehanna River Basin stream to reasonably foreseeable needs in the which diverted water is being dis- Susquehanna River Basin. charged and the discharge location or (iv) The amount and location of locations. water being diverted to the Susque- (iii) Demonstrate that they have ap- hanna River Basin from the importing plied for or received all applicable basin. withdrawal or discharge permits or ap- (v) The proximity of the project to provals related to the diversion, and the Susquehanna River Basin. demonstrate that the diversion will not (vi) The project sponsor’s pre-com- result in water quality degradation pact member jurisdiction approvals to that may be injurious to any existing withdraw or divert the waters of the or potential ground or surface water basin. use. (vii) Historic reliance on sources (2) In deciding whether to approve a within the Susquehanna River Basin. proposed diversion into the basin, the (3) In deciding whether to approve a Commission shall also consider and the proposed diversion out of the basin, the project sponsor shall provide informa- Commission may also consider, but is tion related to the following factors:

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(i) Any adverse effects and cumu- signed for the sponsor’s respective soil lative adverse effects the project may characteristics, topography and vege- have on the Susquehanna River Basin, tation. or any portion thereof, as a result of (d) Effective date. Notwithstanding the introduction or potential introduc- the effective date for other portions of tion of invasive or exotic species that this part, this section shall apply to all may be injurious to the water re- groundwater and surface water with- sources of the basin. drawals initiated on or after January (ii) The extent to which the proposed 11, 1979. diversion satisfies all other applicable general and specific standards set forth Subpart D—Terms and Conditions in subpart C of this part pertaining to of Approval withdrawals and consumptive use. [71 FR 78579, Dec. 29, 2006, as amended at 75 § 806.30 Monitoring. FR 60621, Oct. 1, 2010] The Commission, as part of the project review, shall evaluate the pro- § 806.25 Water conservation standards. posed methodology for monitoring con- Any project sponsor whose project is sumptive uses, water withdrawals and subject to Commission approval under mitigating flows, including flow meter- this part proposing to withdraw water ing devices, stream gages, and other fa- either directly or indirectly (through cilities used to measure the with- another user) from groundwater or sur- drawals or consumptive use of the face water sources, or both, shall com- project or the rate of stream flow. If ply with the following requirements: the Commission determines that addi- (a) Public water supply. As cir- tional flow measuring, metering or cumstances warrant, a project sponsor monitoring devices are required, these of a public water supply shall: shall be provided at the expense of the (1) Reduce distribution system losses project sponsor, installed in accord- to a level not exceeding 20 percent of ance with a schedule set by the Com- the gross withdrawal. mission, be accurate to within 5 per- (2) Install meters for all users. cent, and shall be subject to inspection (3) Establish a program of water con- by the Commission at any time. servation that will: (a) Project sponsors of projects that (i) Require installation of water con- are approved under this part shall: servation devices, as applicable, by all (1) Measure and record on a daily classes of users. basis, or such other frequency as may (ii) Prepare and distribute literature be approved by the Commission, the to customers describing available quantity of all withdrawals, using me- water conservation techniques. ters or other methods approved by the (iii) Implement a water pricing struc- Commission. ture which encourages conservation. (2) Certify, at the time of installation (iv) Encourage water reuse. and no less frequently than once every (b) Industrial. Project sponsors who 5 years, the accuracy of all measuring use water for industrial purposes shall: devices and methods to within 5 per- (1) Designate a company representa- cent of actual flow, unless specified tive to manage plant water use. otherwise by the Commission. (2) Install meters or other suitable (3) Maintain metering or other ap- devices or utilize acceptable flow meas- proved methods so as to provide a con- uring methods for accurate determina- tinuous, accurate record of the with- tion of water use by various parts of drawal or consumptive use. the company operation. (4) Measure groundwater levels in all (3) Install flow control devices which approved production wells, as specified match the needs of the equipment by the Commission. being used for production. (5) Measure groundwater levels at ad- (4) Evaluate and utilize applicable re- ditional monitoring locations, as speci- circulation and reuse practices. fied by the Commission. (c) Irrigation. Project sponsors who (6) Measure water levels in surface use water for irrigation purposes shall storage facilities, as specified by the utilize irrigation systems properly de- Commission.

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(7) Measure stream flows, passby within a reasonable period of time. The flows or conservation releases, as speci- Commission may also attach condi- fied by the Commission, using methods tions to the granting of such exten- and at frequencies approved by the sions, including modification of any Commission. terms of approval that the Commission (b) Reporting. (1) Project sponsors may deem appropriate. whose projects are approved under this (c) If a withdrawal, diversion or con- section shall report to the Commission sumptive use approved by the Commis- on a quarterly basis on forms and in a sion for a project is discontinued for a manner prescribed by the Commission period of five consecutive years, the all information recorded under para- approval shall be null and void, unless graph (a) of this section, unless other- a waiver is granted in writing by the wise specified by the Commission. Commission, upon written request by (2) Project sponsors whose projects the project sponsor demonstrating due are approved under this section shall cause and with notification thereof to report to the Commission: the member jurisdiction in which the (i) Violations of withdrawal limits project is located, prior to the expira- and any conditions of approvals, within tion of such period. 5 days of such violation. (d) If the Commission determines (ii) Loss of measuring or recording that a project has been abandoned, by capabilities required under paragraph evidence of nonuse for a period of time (a)(1) of this section, within 5 days and under such circumstances that an after any such loss. abandonment may be inferred, the Commission may rescind the approval § 806.31 Term of approvals. for such withdrawal, diversion or con- (a) Approvals issued under this part sumptive use. shall have a term equal to the term of (e) If a project sponsor submits an ap- any accompanying member jurisdic- plication to the Commission no later tion approval regulating the same sub- than six months prior to the expiration ject matter, but not longer than 15 of its existing Commission approval, years, unless an alternate period is pro- the existing approval will be deemed vided for in the Commission approval. extended until such time as the Com- If there is no such accompanying mem- mission renders a decision on the appli- ber jurisdiction approval, or if no term cation, unless the existing approval or is specified in such accompanying a notification in writing from the Com- member jurisdiction approval, the mission provide otherwise. term of a Commission approval issued under this part shall be no longer than § 806.32 Reopening/modification. 15 years or the anticipated life of the (a) Once a project is approved, the project, whichever is less, unless an al- Commission, upon its own motion, or ternate period is provided for in the upon petition of the project sponsor or Commission approval. any interested party, may at any time (b) Commission approval of a project reopen any project approval and make shall expire three years from the date additional orders or otherwise modify of such approval if the withdrawal, di- or impose such additional conditions version or consumptive use has not that may be necessary to mitigate or been commenced, unless an alternate avoid adverse impacts or to otherwise period is provided for in the docket ap- protect the public health, safety, and proval or such 3-year period is extended welfare or water resources. Whenever a in writing by the Commission upon petition for reopening is filed by an in- written request from the project spon- terested party, the burden shall be sor submitted no later than 120 days upon that interested party to show, by prior to such expiration. The Commis- a preponderance of the evidence, that a sion may grant an extension, for a pe- significant adverse impact or a threat riod not to exceed two years, only upon to the public health, safety and welfare a determination that the delay is due or water resources exists that warrants to circumstances beyond the project reopening of the docket. Notwith- sponsor’s control and that there is a standing the foregoing, any petition likelihood of project implementation filed by a party who previously sought

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the same or functionally equivalent re- sor to take such action as the Execu- lief identified in the petition pursuant tive Director may deem necessary and to the administrative appeals process proper in the circumstances, pending under § 808.2 will not be eligible for con- review and determination by the Com- sideration by the Commission absent mission as otherwise required by this new facts not known or readily part. discernable at the time of consider- (b) Notification and application. A ation of the petitioner’s previous re- project sponsor shall notify the Com- quest for administrative appeal filed mission, prior to commencement of the pursuant to § 808.2. project, that an emergency certificate (b) If the project sponsor fails to is needed. If immediate action, as de- comply with any term or condition of a fined by this section, is required by a Commission approval, the Commission project sponsor and prior notice to the may issue an order suspending, modi- Commission is not possible, then the fying or revoking its approval of the project sponsor must contact the Com- project. The Commission may also, in mission within one (1) business day of its discretion, suspend, modify or re- the action. Notification may be by cer- voke its approval if the project sponsor tified mail, facsimile, telegram, fails to obtain or maintain other fed- mailgram, or other form of written eral, state or local approvals. communication. This notification must (c) For any previously approved be followed within one (1) business day project where interference occurs, the by submission of the following: Commission may require a project (1) A completed emergency applica- sponsor to provide a temporary source tion form or copy of the State or Fed- of potable water at the project spon- eral emergency water use application if sor’s expense, pending a final deter- the project sponsor also is requesting mination of causation by the Commis- emergency approval from either a state sion. or federal agency. (d) The Commission, upon its own (2) As a minimum, the application motion, may at any time reopen any shall contain: project approval and make additional (i) Contact information. corrective modifications that may be (ii) Justification for emergency ac- necessary. tion (purpose). [71 FR 78579, Dec. 29, 2006, as amended at 74 (iii) Location map and schematic of FR 49813, Sept. 29, 2009] proposed project. (iv) Desired term of emergency use. § 806.33 Interest on fees. (v) Source(s) of the water. The Executive Director may estab- (vi) Quantity of water. lish interest to be paid on all overdue (vii) Flow measurement system (such or outstanding fees of any nature that as metering). are payable to the Commission. (viii) Use restrictions in effect (or planned). § 806.34 Emergencies. (ix) Description of potential adverse (a) Emergency certificates. The other impacts and mitigating measures. requirements of these regulations not- (x) Appropriate fee, unless reduced, withstanding, in the event of an emer- waived or delayed with the approval of gency requiring immediate action to the Executive Director. protect the public health, safety and (c) Emergency certificate issuance. The welfare or to avoid substantial and ir- Executive Director shall: reparable injury to any person, prop- (1) Review and act on the emergency erty, or water resources when cir- request as expeditiously as possible cumstances do not permit a review and upon receipt of all necessary informa- determination in the regular course of tion stipulated in paragraph (b)(2) of the regulations in this part, the Execu- this section. tive Director, with the concurrence of (2) With the concurrence of the chair- the chairperson of the Commission and person of the Commission and the com- the commissioner from the affected missioner from the affected member member state, may issue an emergency state, issue an emergency certificate certificate authorizing a project spon- for a term not to extend beyond the

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next regular business meeting of the part, including any extraordinary costs Commission. associated with specific projects. (3) Include conditions in the emer- [71 FR 78579, Dec. 29, 2006, as amended at 75 gency certificate which may include, FR 60622, Oct. 1, 2010] without limitation, monitoring of withdrawal and/or consumptive use amounts, measurement devices, public PART 807—WATER WITHDRAWAL notification, and reporting, to assure REGISTRATION minimal adverse impacts to the environment and other users. Sec. (d) Post approval. Actions following 807.1 Requirement. issuance of emergency certificates may 807.2 Time limits. include, but are not limited to, the fol- 807.3 Administrative agreements. lowing: 807.4 Effective date. 807.5 Definitions. (1) The Commission may, by resolution, extend the term of the emergency AUTHORITY: Secs. 3.4(2) and (9), 3.8, 3.10 and certificate, upon presentation of a re- 15.2, Pub. L. 91–575, 84 Stat. 1509 et seq. quest from the project sponsor accom- SOURCE: 71 FR 78588, Dec. 29, 2006, unless panied by appropriate evidence that otherwise noted. the conditions causing the emergency persist. § 807.1 Requirement. (2) If the condition is expected to per- In addition to any other require- sist longer than the specified extended ments of Commission regulations, and term, the project sponsor must submit subject to the consent of the affected an application to the Commission for member state to this requirement, any applicable water withdrawal or con- person withdrawing or diverting in ex- sumptive use, or the emergency certifi- cess of an average of 10,000 gpd for any cate will terminate as specified. If the consecutive 30-day period, from ground project sponsor has a prior Commission or surface water sources, as defined in approval for the project, the project part 806 of this chapter, shall register sponsor must submit an application to the amount of this withdrawal with the modify the existing docket accord- Commission and provide such other in- ingly. formation as requested on forms pre- (e) Early termination. With the con- scribed by the Commission. currence of the chairperson of the Com- mission and the commissioner from the § 807.2 Time limits. affected member state, the Executive (a) Except for agricultural water use Director may terminate an emergency projects, all registration forms shall be certificate earlier than the specified submitted within one year after May duration if it is determined that an 11, 1995, or within six months of initi- emergency no longer exists and/or the ation of the water withdrawal or diver- certificate holder has not complied sion, whichever is later; provided, how- with one or more special conditions for ever, that nothing in this section shall the emergency withdrawal or consump- limit the responsibility of a project tive water use. sponsor to apply for and obtain an ap- (f) Restoration or mitigation. Project proval as may be required under part sponsors are responsible for any nec- 806 of this chapter. All registered with- essary restoration or mitigation of en- drawals shall re-register with the Com- vironmental damage or interference mission within five years of their ini- with another user that may occur as a tial registration, and at five-year inter- result of the emergency action. vals thereafter, unless the withdrawal is sooner discontinued. Upon notice by § 806.35 Fees. the Executive Director, compliance Project sponsors shall have an af- with a registration or reporting re- firmative duty to pay such fees as es- quirement, or both, of a member state tablished by the Commission to cover that is substantially equivalent to this its costs of administering the regu- requirement shall be considered com- latory program established by this pliance with this requirement.

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(b) Project sponsors whose existing AUTHORITY: Secs. 3.4 (9), 3.5 (5), 3.8, 3.10 and agricultural water use projects i.e., 15.2, Pub. L. 91–575, 84 Stat. 1509 et seq. projects coming into existence prior to SOURCE: 71 FR 78589, Dec. 29, 2006, unless March 31, 1997) withdraw or divert in otherwise noted. excess of an average of 10,000 gpd for any consecutive 30-day period from a Subpart A—Conduct of Hearings ground or surface water source shall register their use no later than March § 808.1 Public hearings. 31, 1997. Thereafter, project sponsors of (a) A public hearing shall be con- new projects proposing to withdraw or ducted in the following instances: divert in excess of 10,000 gpd for any (1) Addition of projects or adoption of consecutive 30-day period from a amendments to the comprehensive ground or surface water source shall be plan, except as otherwise provided by registered prior to project initiation. Section 14.1 of the compact. (2) Proposed rulemaking. § 807.3 Administrative agreements. (3) Consideration of projects, except The Commission may complete ap- projects approved pursuant to memo- propriate administrative agreements randa of understanding with member or arrangements to carry out this reg- jurisdictions. istration requirement through the of- (4) Hearing requested by a member fices of member jurisdictions. Forms jurisdiction. developed by the Commission shall ap- (5) As otherwise required by the com- prise registrants of any such agree- pact or Commission regulations. ments or arrangements, and provide (b) A public hearing may be con- appropriate instructions to complete ducted by the Commission in any form and submit the form. or style chosen by the Commission when in the opinion of the Commission, § 807.4 Effective date. a hearing is either appropriate or nec- This part shall be effective on Janu- essary to give adequate consideration ary 1, 2007. to issues relating to public health, safety and welfare, or protection of the § 807.5 Definitions. environment, or to gather additional information for the record or consider Terms used in this part shall be de- new information, or to decide factual fined as set forth in § 806.3 of this chap- disputes in connection with matters ter. pending before the Commission. (c) Notice of public hearing. At least PART 808—HEARINGS AND 20 days before any public hearing re- ENFORCEMENT ACTIONS quired by the compact, notices stating the date, time, place and purpose of the Subpart A—Conduct of Hearings hearing including issues of interest to the Commission shall be published at Sec. least once in a newspaper of general 808.1 Public hearings. circulation in the area affected. Occa- 808.2 Administrative appeals. sions when public hearings are required 808.3 Hearings on administrative appeal. 808.4 Optional joint hearing. by the compact include, but are not limited to, amendments to the com- Subpart B—Compliance and Enforcement prehensive plan, drought emergency declarations, and review and approval 808.10 Scope of subpart. of diversions. In all other cases, at 808.11 Duty to comply. least 10 days prior to the hearing, no- 808.12 Investigative powers. tice shall be posted at the office of the 808.13 Notice of violation. Commission (or on the Commission 808.14 Orders. Web site), mailed by first class mail to 808.15 Show cause proceeding. 808.16 Civil penalty criteria. the parties who, to the Commission’s 808.17 Enforcement of penalties, abatement knowledge, will participate in the or remedial orders. hearing, and mailed by first class mail 808.18 Settlement by agreement. to persons, organizations and news 808.19 Effective date. media who have made requests to the

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Commission for notices of hearings or nature and extent of his/her authoriza- of a particular hearing. With regard to tion to represent the person on whose rulemaking, the Commission shall con- behalf he/she intends to appear. vene at least one public hearing on any (f) Description of project. When notice proposed rulemaking it approves for of a public hearing is issued, there public review and comment. For any shall be available for inspection at the such hearing(s), notices need only be Commission offices all plans, sum- forwarded to the directors of the New maries, maps, statements, orders or York Register, the Pennsylvania bul- other supporting documents which ex- letin, the Maryland Register and the plain, detail, amplify, or otherwise de- FEDERAL REGISTER, and it is sufficient scribe the project the Commission is that this notice appear only in the considering. Instructions on where and FEDERAL REGISTER at least 20 days how the documents may be obtained prior to the hearing and in each indi- will be included in the notice. vidual state publication at least 10 (g) Presiding officer. A public hearing days prior to any hearing scheduled in shall be presided over by the Commis- that state. sion chair, the Executive Director, or (d) Standard public hearing procedure. any member or designee of the Com- (1) Hearings shall be open to the public. mission. The presiding officer shall Participants to a public hearing shall have full authority to control the con- be the project sponsor and the Commis- duct of the hearing and make a record sion staff. Participants may also be of the same. any person wishing to appear at the (h) Transcript. Whenever a project in- hearing and make an oral or written volving a diversion of water is the sub- statement. Statements may favor or ject of a public hearing, and at all oppose the project/proposal, or may other times deemed necessary by the simply express a position without spe- Commission or the Executive Director, cifically favoring or opposing the a written transcript of the hearing project/proposal. Statements shall be shall be made. Other public hearings made a part of the record of the hear- may be electronically recorded and a ing, and written statements may be re- transcript made only if deemed nec- ceived up to and including the last day essary by the Executive Director or on which the hearing is held, or within general counsel. A certified copy of the a reasonable time thereafter as may be transcript and exhibits shall be avail- specified by the presiding officer, able for review during business hours which time shall be not less than 10 at the Commission’s headquarters to days nor more than 30 days, except anyone wishing to examine them. Per- that a longer time may be specified if sons wishing to obtain a copy of the requested by a participant. transcript of any hearing shall make (2) Participants (except the project arrangements to obtain it directly sponsor and the Commission staff) are from the recording stenographer at encouraged to file with the Commis- their expense. sion at its headquarters written notice (i) The Commission may conduct any of their intention to appear at the public hearings in concert with any hearing. The notice should be filed at other agency of a member jurisdiction. least three days prior to the opening of the hearing. [71 FR 78589, Dec. 29, 2006, as amended at 74 (e) Representative capacity. Partici- FR 49813, Sept. 29, 2009] pants wishing to be heard at a public hearing may appear in person or be § 808.2 Administrative appeals. represented by an attorney or other (a) A project sponsor or other person representative. A governmental au- aggrieved by a final action or decision thority may be represented by one of of the Commission or Executive Direc- its officers, employees or by a designee tor on a project application or a of the governmental authority. Any in- records access determination made dividual intending to appear before the pursuant to Commission policy may Commission in a representative capac- file a written appeal requesting a hear- ity on behalf of a participant shall give ing. In the case of a project approval or the Commission written notice of the denial, such appeal shall be filed by a

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project sponsor within 30 days of re- the petitioner and project sponsor and ceipt of actual notice, and by all others shall publish such notice in the FED- within 30 days of publication of notice ERAL REGISTER. The hearing shall not of the action taken on the project in be held less than 20 days after publica- the FEDERAL REGISTER. In the case of tion of such notice. Hearings may be records access determinations, such ap- conducted by one or more members of peal shall be filed with the Commission the Commission, by the Executive Di- within 30 days of receipt of actual no- rector, or by such other hearing officer tice of the determination. Appeals filed as the Commission may designate. later than 20 days prior to a regular (1) The petitioner may also request a Commission meeting will be considered stay of the action or decision giving at a subsequent Commission meeting. rise to the appeal pending final disposi- Appeals shall be filed on a form and in tion of the appeal, which stay may be a manner prescribed by the Commis- granted or denied by the Executive Di- sion and the petitioner shall have 20 rector after consultation with the days from the date of filing to amend Commission chair and the member the appeal form. from the affected member State. The (b) The appeal shall identify the spe- decision of the Executive Director on cific action or decision for which a the request for stay shall not be ap- hearing is requested, the date of the ac- pealable to the Commission under this tion or decision, the interest of the per- section and shall remain in full force son requesting the hearing in the sub- and effect until the Commission acts ject matter of the appeal, and a state- on the appeal. ment setting forth the basis for object- (2) In addition to the contents of the ing to or seeking review of the action request itself, the Executive Director, or decision. in granting or denying the request for (c) Any request not filed on or before stay, will consider the following fac- the applicable deadline established in tors: paragraph (a) of this section hereof will (i) Irreparable harm to the peti- be deemed untimely and such request tioner. for a hearing shall be considered denied (ii) The likelihood that the petitioner unless the Commission, upon written will prevail. request and for good cause shown, (f) The Commission shall grant the grants leave to make such filing nunc hearing request pursuant to this sec- pro tunc; the standard applicable to tion if it determines that an adequate what constitutes good cause shown record with regard to the action or de- being the standard applicable in analo- cision is not available, the case in- gous cases under Federal law. Receipt volves a determination by the Execu- of requests for hearings pursuant to tive Director or staff which requires this section, whether timely filed or further action by the Commission, or not, shall be submitted by the Execu- that the Commission has found that an tive Director to the commissioners for administrative review is necessary or their information. desirable. If the Commission denies (d) Petitioners shall be limited to a any request for a hearing, the party single filing that shall set forth all seeking such hearing shall be limited matters and arguments in support to such remedies as may be provided by thereof, including any ancillary mo- the compact or other applicable law or tions or requests for relief. Issues not court rule. raised in this single filing shall be con- (g) If a hearing is granted, the Com- sidered waived for purposes of the in- mission shall refer the matter for hear- stant proceeding. Where the petitioner ing to be held in accordance with is appealing a final determination on a § 808.3, and appoint a hearing officer. project application and is not the (h) Intervention. (1) A request for project sponsor, the petitioner shall intervention may be filed with the serve a copy of the appeal upon the Commission by persons other than the project sponsor within five days of its petitioner within 20 days of the publi- filing. cation of a notice of the granting of (e) If a hearing is granted, the Com- such hearing in the FEDERAL REGISTER. mission shall serve notice thereof upon The request for intervention shall state

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the interest of the person filing such (2) The hearing officer shall cause notice, and the specific grounds of ob- each witness to be sworn or to make af- jection to the action or decision or firmation. other grounds for appearance. The (3) Any party to a hearing shall have hearing officer(s) shall determine the right to present evidence, to exam- whether the person requesting inter- ine and cross-examine witnesses, sub- vention has standing in the matter mit rebuttal evidence, and to present that would justify their admission as summation and argument. an intervener to the proceedings in ac- (4) When necessary, in order to pre- cordance with Federal case law. vent undue prolongation of the hear- (2) Interveners shall have the right to ing, the hearing officer may limit the be represented by counsel, to present number of times any witness may tes- evidence and to examine and cross-ex- tify, the repetitious examination or amine witnesses. cross-examination of witnesses, or the (i) Where a request for an appeal is extent of corroborative or cumulative made, the 90-day appeal period set testimony. forth in Section 3.10 (6) and Federal (5) The hearing officer shall exclude reservation (o) of the compact shall not irrelevant, immaterial or unduly rep- commence until the Commission has etitious evidence, but the parties shall either denied the request for or taken not be bound by technical rules of evi- final action on an administrative ap- dence, and all relevant evidence of rea- peal. sonably probative value may be re- (j) Where the request for appeal received provided it shall be founded lates to an action taken on a project, upon competent, material evidence any hearing conducted pursuant to this which is substantial in view of the en- section shall be convened in the gen- tire record. eral vicinity of the project location. (6) Any party may appear and be [71 FR 78589, Dec. 29, 2006, as amended at 74 heard in person or be represented by an FR 49813, Sept. 29, 2009; 75 FR 60622, Oct. 1, attorney at law who shall file an ap- 2010] pearance with the Commission. (7) Briefs and oral argument may be § 808.3 Hearings on administrative ap- required by the hearing officer and peal. may be permitted upon request made (a) Unless otherwise agreed to by the prior to the close of the hearing by any Commission and the party requesting party. They shall be part of the record an administrative appeal under § 808.2 unless otherwise ordered by the pre- of this part, the following procedures siding officer. shall govern the conduct of hearing on (8) The hearing officer may, as he/she an administrative appeal. deems appropriate, issue subpoenas in (b) Hearing procedure. (1) The hearing the name of the Commission requiring officer shall have the power to rule the appearance of witnesses or the pro- upon offers of proof and the admissi- duction of books, papers, and other bility of evidence, to regulate the documentary evidence for such hear- course of the hearing, to set the loca- ings. tion or venue of the hearing, to hold (9) A record of the proceedings and conferences for the settlement or sim- evidence at each hearing shall be made plification of issues and the stipulation by a qualified stenographer designated of facts, to determine the proper par- by the Executive Director. Where de- ties to the hearing, to determine the manded by the petitioner, or any other scope of any discovery procedures, to person who is a party to the appeal delineate the hearing issues to be adju- proceedings, or where deemed nec- dicated, and to take notice of judi- essary by the Hearing Officer, the tes- cially cognizable facts and general, timony shall be transcribed. In those technical, or scientific facts. The hear- instances where a transcript of pro- ing officer may, with the consent of the ceedings is made, two copies shall be parties, conduct all or part of the hear- delivered to the Commission. The peti- ing or related proceedings by telephone tioner or other persons who desire cop- conference call or other electronic ies shall obtain them from the stenog- means. rapher at such price as may be agreed

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upon by the stenographer and the per- for such costs. The Commission may son desiring the transcript. grant or refuse the request based upon (c) Staff and other expert testimony. the contents of the affidavit or other The Executive Director shall arrange factors, such as whether it believes the for the presentation of testimony by appeal or intervention is taken in good the Commission’s technical staff and faith. other experts, as he/she may deem nec- (f) Findings and report. The hearing essary or desirable, to be incorporated officer shall prepare a report of his/her in the record to support the adminis- findings and recommendations based trative action, determination or deci- on the record of the hearing. The re- sion which is the subject of the hear- port shall be served by personal service ing. or certified mail (return receipt re- (d) Written testimony. If the direct tes- quested) upon each party to the hear- timony of an expert witness is expected ing or its counsel. Any party may file to be lengthy or of a complex, tech- objections to the report. Such objec- nical nature, the presiding officer may tions shall be filed with the Commis- order that such direct testimony be sion and served on all parties within 20 submitted to the Commission in sworn, days after the service of the report. A written form. Copies of said testimony brief shall be filed together with objec- shall be served upon all parties appear- tions. Any replies to the objections ing at the hearing at least 10 days prior shall be filed and served on all parties to said hearing. Such written testi- within 10 days of service of the objec- mony, however, shall not be admitted tions. Prior to its decision on such ob- whenever the witness is not present jections, the Commission may grant a and available for cross-examination at request for oral argument upon such the hearing unless all parties have filing. waived the right of cross-examination. (g) Action by the Commission. The (e) Assessment of costs. (1) Whenever a Commission will act upon the findings hearing is conducted, the costs thereof, and recommendations of the presiding as herein defined, shall be assessed by officer pursuant to law. The determina- the presiding officer to the petitioner tion of the Commission will be in writ- or such other party as the hearing offi- ing and shall be filed in Commission cer deems equitable. For the purposes records together with any transcript of of this section, costs include all incre- the hearing, report of the hearing offi- mental costs incurred by the Commis- cer, objections thereto, and all plans, sion, including, but not limited to, maps, exhibits and other papers, hearing officer and expert consultants records or documents relating to the reasonably necessary in the matter, hearing. stenographic record, rental of the hall and other related expenses. § 808.4 Optional joint hearing. (2) Upon the scheduling of a matter (a) The Commission may order any for hearing, the hearing officer shall two or more public hearings involving furnish to the petitioner a reasonable a common or related question of law or estimate of the costs to be incurred fact to be consolidated for hearing on under this section. The project sponsor any or all of the matters at issue in may be required to furnish security for such hearings. such costs either by cash deposit or by (b) Whenever designated by a depart- a surety bond of a corporate surety au- ment, agency or instrumentality of a thorized to do business in a member member jurisdiction, and within any state. limitations prescribed by the designa- (3) A party to an appeal under this tion, a hearing officer designated pur- section who desires to proceed in forma suant to § 808.2 may also serve as a pauperis shall submit an affidavit to hearing officer, examiner or agent pur- the Commission requesting the same suant to such additional designation and showing in detail the assets pos- and may conduct joint hearings for the sessed by the party, and other informa- Commission and for such other depart- tion indicating the reasons why that ment, agency or instrumentality. Pur- party is unable to pay costs incurred suant to the additional designation, a under this section or to give security hearing officer shall cause to be filed

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with the department, agency, or in- constructed, operated and maintained strumentality making the designation, in accordance with any provisions of a certified copy of the transcript of the the compact, or the Commission’s evidence taken before him/her and, if rules, regulations, orders, approvals, requested, of his/her findings and rec- docket conditions, or any other re- ommendations. Neither the hearing of- quirements of the Commission. ficer nor the Susquehanna River Basin (b) Any person shall allow authorized Commission shall have or exercise any employees or agents of the Commis- power or duty as a result of such addi- sion, without advance notice, at any tional designation to decide the merits reasonable time and upon presentation of any matter arising under the sepa- of appropriate credentials, and without rate laws of a member jurisdiction delay, to have access to and to inspect (other than the compact). all areas where a project is being constructed, operated, or maintained. Subpart B—Compliance and (c) Any person shall provide such in- Enforcement formation to the Commission as the Commission may deem necessary to de- § 808.10 Scope of subpart. termine compliance with any provi- This subpart shall be applicable sions of the compact, or the Commis- where there is reason to believe that a sion’s rules, regulations, orders, ap- person may have violated any provi- provals, docket conditions, or any sion of the compact, or the Commis- other requirements of the Commission. sion’s rules, regulations, orders, ap- The person submitting information to provals, docket conditions, or any the Commission shall verify that it is other requirements of the Commission. true and accurate to the best of the The said person shall hereinafter be re- knowledge, information, and belief of ferred to as the alleged violator. the person submitting such information. Any person who knowingly sub- § 808.11 Duty to comply. mits false information to the Commis- It shall be the duty of any person to sion shall be subject to civil penalties comply with any provision of the com- as provided in the compact and crimi- pact, or the Commission’s rules, regu- nal penalties under the laws of the lations, orders, approvals, docket con- member jurisdictions relating to ditions, or any other requirements of unsworn falsification to authorities. the Commission. § 808.13 Notice of violation. § 808.12 Investigative powers. When the Executive Director or his/ (a) The Commission or its agents or her designee issues a Notice of Viola- employees, at any reasonable time and tion (NOV) to an alleged violator, such upon presentation of appropriate cre- NOV will: dentials, may inspect or investigate (a) List the violations that are al- any person or project to determine leged to have occurred. compliance with any provisions of the (b) State a date by which the alleged compact, or the Commission’s rules, regulations, orders, approvals, docket violator shall respond to the NOV. conditions, or any other requirements § 808.14 Orders. of the Commission. Such employees or agents are authorized to conduct tests (a) Whether or not an NOV has been or sampling; to take photographs; to issued, where exigent circumstances perform measurements, surveys, and warrant, the Executive Director may other tests; to inspect the methods of issue an order directing an alleged vio- construction, operation, or mainte- lator to cease and desist any action or nance; to inspect all measurement activity to the extent such action or equipment; and to audit, examine, and activity constitutes an alleged viola- copy books, papers, and records perti- tion, or may issue any other order re- nent to any matter under investiga- lated to the prevention of further vio- tion. Such employees or agents are au- lations, or the abatement or remedi- thorized to take any other action nec- ation of harm caused by the action or essary to assure that any project is activity.

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(b) If the project sponsor fails to (d) In the proceeding before the Com- comply with any term or condition of a mission, the alleged violator shall have docket approval, the commissioners the opportunity to present both oral may issue an order suspending, modi- and written testimony and informa- fying or revoking approval of the dock- tion, call such witnesses and present et. The commissioners may also, in such other evidence as may relate to their discretion, suspend, modify or re- the alleged violation(s). voke a docket approval if the project (e) The Commission shall require wit- sponsor fails to obtain or maintain nesses to be sworn or make affirma- other federal, state or local approvals. tion, documents to be certified or oth- (c) The commissioners may issue erwise authenticated and statements such other orders as may be necessary to be verified. The Commission may to enforce any provision of the com- also receive written submissions or pact, the Commission’s rules or regula- oral presentations from any other per- tions, orders, approvals, docket condi- sons as to whether a violation has oc- tions, or any other requirements of the curred and any resulting adverse con- Commission. sequences. (d) It shall be the duty of any person (f) The prosecuting officer(s) shall to proceed diligently to comply with recommend to the Commission the any order issued pursuant to this sec- amount of the penalty to be imposed. tion. Based upon the record presented to the Commission, the Commission shall de- § 808.15 Show cause proceeding. termine whether a violation(s) has oc- (a) The Executive Director may issue curred that warrants the imposition of an order requiring an alleged violator a penalty pursuant to Section 15.17 of to appear before the Commission and the compact. If it is found that such a show cause why a penalty should not violation(s) has occurred, the Commis- be assessed in accordance with the pro- sion shall determine the amount of the visions of this chapter and Section penalty to be paid, in accordance with 15.17 of the compact. The order to the § 808.16. alleged violator shall: (1) Specify the nature and duration of § 808.16 Civil penalty criteria. violation(s) that is alleged to have oc- (a) In determining the amount of any curred. civil penalty or any settlement of a (2) Set forth the date and time on violation, the Commission shall con- which, and the location where, the al- sider: leged violator shall appear before the (1) Previous violations, if any, of any Commission. provision of the compact, the Commis- (3) Set forth any information to be sion’s rules or regulations, orders, ap- submitted or produced by the alleged provals, docket conditions or any other violator. requirements of the Commission. (4) Identify the limits of the civil (2) The intent of the alleged violator. penalty that will be recommended to (3) The extent to which the violation the Commission. caused adverse consequences to public (5) Name the individual(s) who has health, safety and welfare or to water been appointed as the enforcement offi- resources. cer(s) in this matter pursuant to para- (4) The costs incurred by the Com- graph (b) of this section. mission or any member jurisdiction re- (b) Simultaneous with the issuance of lating to the failure to comply with the order to show cause, the Executive any provision of the compact, the Com- Director shall designate a staff mem- mission’s rules or regulations, orders, ber(s) to act as prosecuting officer(s). approvals, docket conditions or any (c) In the proceeding before the Com- other requirements of the Commission. mission, the prosecuting officer(s) shall (5) The extent to which the violator present the facts upon which the al- has cooperated with the Commission in leged violation is based and may call correcting the violation and remedi- any witnesses and present any other ating any adverse consequences or supporting evidence. harm that has resulted therefrom.

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(6) The extent to which the failure to ommended by the Commission to be comply with any provision of the com- fixed by the court pursuant to Section pact, the Commission’s rules or regula- 15.17 of the compact. tions, orders, approvals, docket conditions or any other requirements of the § 808.18 Settlement by agreement. Commission was economically bene- (a) An alleged violator may offer to ficial to the violator. settle an enforcement proceeding by (7) The length of time over which the agreement. The Executive Director violation occurred and the amount of shall submit to the Commission any water used during that time period. offer of settlement proposed by an al- (b) The Commission retains the right leged violator. No settlement will be to waive any penalty or reduce the submitted to the Commission by the amount of the penalty recommended Executive Director unless the alleged by the prosecuting officer under violator has indicated, in writing, ac- § 808.15(f) should it determine, after ceptance of the terms of the agreement consideration of the factors in para- and the intention to comply with all graph (a) of this section, that extenu- requirements of the settlement agree- ating circumstances justify such ac- ment, including advance payment of tion. any settlement amount or completion of any abatement or remedial action § 808.17 Enforcement of penalties, within the time period provided or abatement or remedial orders. both. If the Commission determines Any penalty imposed or abatement not to approve a settlement agreement, or remedial action ordered by the Com- the Commission may proceed with an mission or the Executive Director shall enforcement action in accordance with be paid or completed within such time this subpart. period as shall be specified in the civil (b) In the event the violator fails to penalty assessment or order. The Exec- carry out any of the terms of the set- utive Director and Commission counsel tlement agreement, the Commission are authorized to take such additional may reinstitute a civil penalty action action as may be necessary to assure and any other applicable enforcement compliance with this subpart. If a pro- action against the alleged violator. ceeding before a court becomes necessary, the penalty amount determined § 808.19 Effective date. in accordance with § 808.15(f) shall con- This part shall be effective on Janu- stitute the penalty amount rec- ary 1, 2007.

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Part Page 1300 Standards of conduct for employees of Tennessee Valley Authority ...... 143 1301 Procedures ...... 144 1302 Nondiscrimination in federally assisted programs of TVA—effectuation of Title VI of the Civil Rights Act of 1964 ...... 171 1303 Property management...... 182 1304 Approval of construction in the Tennessee River System and regulation of structures and other alterations ...... 182 1305 [Reserved] 1306 Relocation assistance and real property acquisition policies ...... 204 1307 Nondiscrimination with respect to handicap ...... 205 1308 Contract disputes...... 216 1309 Nondiscrimination with respect to age ...... 225 1310 Administrative cost recovery ...... 233 1311 Intergovernmental review of Tennessee Valley Au- thority Federal financial assistance and direct Federal development programs and activities ..... 235 1312 Protection of archaeological resources: Uniform regulations ...... 238 1313 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Tennessee Valley Authority ...... 251 1314 Book-entry procedures for TVA power securities issued through the Federal Reserve Banks ...... 257 1315 New restrictions on lobbying ...... 262 1316 General conditions and certifications for incorporation in contract documents or actions ...... 273 1317 Nondiscrimination on the basis of sex in education programs or activities receiving federal financial assistance ...... 277

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Sec. It is TVA policy that all TVA em- 1300.101 Cross references to employee eth- ployees are responsible for assuring ical conduct standards and other applica- that the workplace is free from sexual ble regulations. harassment. Accordingly, all employ- 1300.102 Gambling, betting, and lotteries. ees must avoid any action or conduct 1300.103 General conduct prejudicial to which could be viewed as sexual harass- TVA. ment including: 1300.104 Sexual harassment. (a) Unwelcome sexual advances; 1300.105 National origin harassment. 1300.106 Harassment on the basis of race, (b) Requests for sexual favors; and color, religion, age, or disability. (c) Other verbal or physical conduct 1300.107 Financial interest exemptions. of a sexual nature when:

AUTHORITY: 16 U.S.C. 831–831dd; 18 U.S.C. (1) Submission to such conduct is 208(b)(2). made either explicitly or implicitly a term or condition of an individual’s SOURCE: 61 FR 20118, May 6, 1996, unless employment; otherwise noted. (2) Submission to or rejection of such § 1300.101 Cross references to em- conduct by an individual is used as the ployee ethical conduct standards basis for employment decisions affect- and other applicable regulations. ing such individual; or Employees of the Tennessee Valley (3) Such conduct has the purpose or Authority (TVA) are subject to the ex- effect of unreasonably interfering with ecutive branch-wide standards of eth- an individual’s work performance or ical conduct at 5 CFR part 2635 and to creating an intimidating, hostile, or of- the TVA regulations at 5 CFR part 7901 fensive working environment. which supplement the executive branch-wide standards. In addition, § 1300.105 National origin harassment. certain TVA employees are subject to It is TVA policy that all TVA em- executive branch-wide financial disclo- ployees are responsible for assuring sure regulations at 5 CFR part 2634. that the workplace is free from national origin harassment. Accordingly, § 1300.102 Gambling, betting, and lot- all employees must avoid any action or teries. conduct which could be viewed as na- An employee shall not participate, tional origin harassment, including while on Government- or TVA-owned ethnic slurs and other verbal or phys- or leased property or while on TVA ical conduct relating to an individual’s duty, in any gambling activity includ- national origin when such conduct: ing the operation of a gambling device, (a) Has the purpose or effect of cre- in conducting a lottery or pool, in a ating an intimidating, hostile, or offen- game for money or property, or in sell- sive working environment; ing or purchasing a numbers slip or (b) Has the purpose or effect of unrea- ticket. However, this section does not sonably interfering with an individ- preclude activities: ual’s work performance; or (a) Necessitated by an employee’s law (c) Otherwise adversely affects an in- enforcement duties; or dividual’s employment opportunities. (b) Under section 7 of Executive Order 12353 (47 FR 12785, 3 CFR, 1982 § 1300.106 Harassment on the basis of Comp., p. 139) and similar TVA-ap- race, color, religion, age, or dis- proved activities. ability. It is TVA policy that all TVA em- § 1300.103 General conduct prejudicial ployees are responsible for assuring to TVA. that the workplace is free from harass- An employee shall not engage in ment on the basis of race, color, reli- criminal, infamous, dishonest, im- gion, age, or disability. Accordingly, moral, or notoriously disgraceful con- all employees must avoid any action or

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conduct which could be viewed as har- defined benefit plan, the assets of the assment on these bases, including any plan are diversified. For the purpose of verbal or physical conduct relating to this provision, payments are not con- an individual’s race, color, religion, sidered to be made ‘‘in the employee’s age, or disability when such conduct: behalf’’ if they are made solely to (a) Has the purpose or effect of cre- maintain adequate plan funding rather ating an intimidating, hostile, or offen- than to provide specific benefits for the sive working environment; employee; or (b) Has the purpose or effect of unrea- (e) The interest an employee has by sonably interfering with an individ- virtue of his or her personal or family ual’s work performance; or use of electric power or through his or (c) Otherwise adversely affects an in- her interests in an organization using dividual’s employment opportunities. electric power generated or distributed by TVA, for purposes of his or her offi- § 1300.107 Financial interest exemp- cial actions at TVA in the process of tions. developing or approving TVA power In accordance with the provisions of rate schedules. 18 U.S.C. 208(b)(2), TVA has exempted the following financial interests of its PART 1301—PROCEDURES employees from the requirements of 18 U.S.C. 208(a) upon the ground that such Subpart A—Freedom of Information Act interests are too remote or too incon- sequential to affect the integrity of Sec. 1301.1 General provisions. such employees’ services. When any of 1301.2 Public reading rooms. the following exemptions applies only 1301.3 Requirements for making requests. to a limited range of official actions, 1301.4 Responsibility for responding to re- rather than all official acts, the range quests. of actions will be specified within the 1301.5 Timing of responses to requests. language of the exemption. 1301.6 Responses to requests. (a) An investment in a business en- 1301.7 Exempt records. 1301.8 Business information. terprise in the form of ownership of 1301.9 Appeals. bonds, notes, and other evidences of 1301.10 Fees. indebtness which are not convertible into shares of preferred or common Subpart B—Privacy Act stock and have no warrants attached 1301.11 Purpose and scope. entitling the holder to purchase stock 1301.12 Definitions. provided that the estimated market 1301.13 Procedures for requests pertaining value of the interest does not exceed to individual records in a record system. $5,000; 1301.14 Times, places, and requirements for (b) An investment in the form of identification of individuals making re- shares in the ownership of enterprises, quests. including preferred and common stocks 1301.15 Disclosure of requested information to individuals. whether voting or nonvoting, or war- 1301.16 Special procedures—medical records. rants to purchase such shares, or evi- 1301.17 Requests for correction or amend- dences of indebtedness convertible into ment of record. such shares provided that the esti- 1301.18 TVA review of request for correction mated market value of the interest or amendment of record. does not exceed $5,000 and does not ex- 1301.19 Appeals on initial adverse agency de- ceed 1 percent of the estimated market termination on correction or amendment. value of all the outstanding shares of 1301.20 Disclosure of record to persons other the enterprise; than individual to whom it pertains. (c) Shares or investments in a well- 1301.21 Fees. diversified money market or mutual 1301.22 Penalties. fund; 1301.23 General exemptions. (d) Vested interests in a pension fund 1301.24 Special exemptions. arising out of former employment and Subpart C—Government in the Sunshine to which no further contributions are Act being made in the employee’s behalf, provided that, if the pension plan is a 1301.41 Purpose and scope.

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1301.42 Definitions. ample, press releases) may be provided 1301.43 Open meetings. to the public without the need for a 1301.44 Notice of meetings. FOIA request under this subpart. As a 1301.45 Procedure for closing meetings. 1301.46 Criteria for closing meetings. matter of policy, TVA makes discre- 1301.47 Transcripts of closed meetings. tionary disclosures of records or infor- 1301.48 Public availability of transcripts mation exempt from disclosure under and other documents. the FOIA whenever disclosure would not foreseeably harm an interest pro- Subpart D—Testimony by TVA Employees, tected by a FOIA exemption, but this Production of Official Records, and policy does not create any right en- Disclosure of Official Information in forceable in court. Legal Proceedings (b) Nothing in this subpart shall be 1301.51 Purpose and scope. construed to entitle any person, as of 1301.52 Definitions. right, to any service or to the disclo- 1301.53 General. sure of any record to which such person 1301.54 Requirements for a demand for is not entitled under the FOIA. records or testimony. 1301.55 Responding to demands. § 1301.2 Public reading rooms. 1301.56 Final determination. 1301.57 Waiver. TVA maintains a public electronic reading room through its Web site at Subpart E—Protection of National Security http://www.tva.gov. This electronic Classified Information reading room contains the records that the FOIA requires to be made regularly 1301.61 Purpose and scope. available for public inspection and 1301.62 Definitions. 1301.63 Senior agency official. copying. Paper copies of documents ac- 1301.64 Original classification authority. cessible through TVA’s reading room 1301.65 Derivative classification. are available upon request from the 1301.66 General declassification and down- TVA Research Library at 400 W. Sum- grading policy. mit Hill Drive, Knoxville, Tennessee 1301.67 Mandatory review for declassifica- 37902–1499, and 1101 Market Street, tion. Chattanooga, Tennessee 37402–2801. 1301.68 Identification and marking. Each TVA organization is responsible 1301.69 Safeguarding classified information. for determining which of the records it AUTHORITY: 16 U.S.C. 831-831dd, 5 U.S.C. 552. generates are required to be made SOURCE: 64 FR 4044, Jan. 27, 1999, unless available in this way and for ensuring otherwise noted. that those records are available in TVA’s reading room. TVA’s FOIA Offi- Subpart A—Freedom of cer will maintain a current subject- Information Act matter index of TVA’s reading room records. The index is identified as the Reading Room Table of Contents on AUTHORITY: 16 U.S.C. 831–831ee, 5 U.S.C. 552. TVA’s Web site and will be updated § 1301.1 General provisions. regularly, at least quarterly, with respect to newly included records. (a) This subpart contains the rules that TVA follows in processing re- [68 FR 28710, May 27, 2003] quests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. § 1301.3 Requirements for making re- These rules should be read together quests. with the FOIA, which provides addi- (a) How made and addressed. You may tional information about access to make a request for records of TVA by records maintained by TVA. Requests writing to the Tennessee Valley Au- made by individuals for records about thority, FOIA Officer, 400 W. Summit themselves under the Privacy Act of Hill Drive (WT 7D), Knoxville, Ten- 1974, 5 U.S.C. 552a, which are processed nessee 37902–1401. You may find TVA’s under subpart B of this part, are proc- ‘‘Guide to Information About TVA’’— essed under this subpart also. Informa- which is available electronically at tion routinely provided to the public as http://www.tva.gov, and is available in part of a regular TVA activity (for ex- paper form as well—helpful in making

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your request. For additional informa- specify a willingness to pay a greater tion about the FOIA, you may refer di- or lesser amount. rectly to the statute. If you are mak- [64 FR 4044, Jan. 27, 1999, as amended at 65 ing a request for records about your- FR 16513, Mar. 29, 2000; 75 FR 11735, Mar. 12, self, see Subpart B Privacy Act for ad- 2010] ditional requirements. If you are making a request for records about another § 1301.4 Responsibility for responding individual, either a written authoriza- to requests. tion signed by that individual permit- (a) TVA’s FOIA Officer, or the FOIA ting disclosure of those records to you Officer’s designee, is responsible for re- or proof that that individual is de- sponding to all FOIA requests. In de- ceased (for example, a copy of a death termining which records are responsive certificate or an obituary) will help the to a request, TVA will ordinarily in- processing of your request. Your re- clude only records in its possession as quest will be considered received as of of the date it begins its search for the date it is received by the FOIA Of- them. If any other date is used, the ficer. For the quickest possible han- FOIA Officer shall inform the requester dling, you should mark both your re- of that date. quest letter and the envelope ‘‘Free- (b) Authority to grant or deny requests. dom of Information Act Request.’’ TVA’s FOIA Officer, or the FOIA Offi- (b) Descriptions of records sought. You cer’s designee, is authorized to grant or must describe the records that you deny any request for a TVA record. seek in enough detail to enable TVA (c) Consultations and referrals. When personnel to locate them with a rea- the FOIA Officer receives a request for sonable amount of effort. Whenever a record in TVA’s possession, the FOIA possible, your request should include Officer shall determine whether an- specific information about each record other agency of the Federal Govern- sought, such as the date, title or name, ment is better able to determine author, recipient, and subject matter whether the record is exempt from dis- of the record. If known, you should in- closure under the FOIA and, if so, clude any file designations or descrip- whether it should be disclosed as a tions for the records that you want. As matter of administrative discretion. If a general rule, the more specific you the FOIA Officer determines that TVA is not best able to process the record, are about the records or type of records the FOIA Officer shall either: that you want, the more likely TVA will be able to locate those records in (1) Respond to the request regarding that record, after consulting with the response to your request. If TVA deter- agency best able to determine whether mines that your request does not rea- to disclose it and with any other agen- sonably describe records, you will be cy that has a substantial interest in it; informed what additional information or is needed or why your request is other- (2) Refer the responsibility for re- wise insufficient. TVA shall also give sponding to the request regarding that you an opportunity to discuss your re- record to the agency that originated quest so that you may modify it to the record (but only if that agency is meet the requirements of this section. subject to the FOIA). Ordinarily, the If your request does not reasonably de- agency that originated a record will be scribe the records you seek, the agen- presumed to be best able to determine cy’s response to your request may be whether to disclose it. delayed. (d) Notice of referral. Whenever TVA (c) Agreement to pay fees. If you make refers all or any part of the responsi- a FOIA request, it shall be considered bility for responding to a request to an- an agreement by you to pay all appli- other agency, it ordinarily shall notify cable fees charged under § 1301.11, up to the requester of the referral and inform $25.00, unless you seek a waiver of fees. the requester of the name of each agen- TVA’s FOIA Officer will confirm this cy to which the request has been re- agreement in an acknowledgement let- ferred and of the part of the request ter. When making a request, you may that has been referred.

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(e) Timing of responses to consultations but we do not expect that the decision and referrals. All consultations and re- on disclosure will be as time con- ferrals will be handled according to the suming as for requests in Tract 3. date the FOIA request initially was re- (3) Tract 3. Requests which require a ceived by the FOIA Officer, not any decision or input from another office or later date. agency, extensive submitter notifica- (f) Agreements regarding consultations tions because of the presence of Busi- and referrals. TVA may make agree- ness Information as defined in ments with other agencies to eliminate § 1301.8(b)(1), and a considerable amount the need for consultations or referrals of time will be needed for that, or the for particular types of records. request is complicated or involves a [64 FR 4044, Jan. 27, 1999, as amended at 68 large number of records. Usually, these FR 4700, Jan. 30, 2003] cases will take the longest to process. (c) Unusual circumstances. (1) Where § 1301.5 Timing of responses to re- the time limits for processing a request quests. cannot be met because of unusual cir- (a) In general, TVA ordinarily shall cumstances and TVA determines to ex- respond to requests according to their tend the time limits on that basis, order of receipt and placement in an TVA shall as soon as practicable notify appropriate processing track, as fol- the requester in writing of the unusual lows: circumstances and of the date by which (b) Multi-track processing procedures. processing of the request can be ex- TVA has established three tracks for pected to be completed. Where the ex- handling requests and the track to tension is for more than ten working which a request is assigned will depend days, TVA shall provide the requester on the nature of the request and the es- with an opportunity either to modify timated processing time, including a the request so that it may be processed consideration of the number of pages within the time limits or to arrange an involved. If TVA places a request in a alternative time period with TVA for track other than Track 1, it will advise processing the request or a modified re- requesters of the limits of its faster quest. As used in this paragraph, ‘un- track(s). TVA may provide requesters usual circumstances’ means, but only in its tracks 2 and 3 with an oppor- to the extent reasonably necessary to tunity to limit the scope of their re- the proper processing of the particular quests in order to qualify for faster requests: processing within the specified limits of TVA’s faster track(s). When doing (i) The need to search for and collect so, TVA may contact the requester ei- the requested records from field facili- ther by telephone, e-mail, or letter, ties or other establishments that are whichever is most efficient in each separate from the office processing the case. request; (1) Track 1. Requests that can be an- (ii) The need to search for, collect, swered with readily available records and appropriately examine a volumi- or information. These are the fastest to nous amount of separate and distinct process. These requests ordinarily will records which are demanded in a single be responded to within 20 working days request; or of receipt of a request by the FOIA Of- (iii) The need for consultation, which ficer. The 20 working day time limit shall be conducted with all practicable provided in this paragraph may be ex- speed, with another agency having a tended by TVA for unusual cir- substantial interest in the determina- cumstances, as defined in paragraph (c) tion of the request or among two or of this section, upon written notice to more components of the agency having the person requesting the records. substantial subject matter interest (2) Track 2. Requests where we need therein. records or information from other of- (2) When TVA reasonably believes fices throughout TVA, where we must that multiple requests submitted by a consult with other Governmental agen- requester, or by a group of requesters cies, or when we must process a sub- acting in concert, constitute a single mitter notice as described in § 1301.8(d), request that would otherwise involve

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unusual circumstances, and the re- (4) Within ten calendar days of requests involve clearly related matters, ceipt of a request for expedited proc- they may be aggregated, as defined in essing, TVA’s FOIA Officer shall decide § 1301.10(h). Multiple requests by a re- whether to grant it and shall notify the quester involving unrelated matters requester of the decision. If a request will not be aggregated. for expedited treatment is granted, the (d) Expedited processing. (1) Requests request shall be given priority and and appeals will be taken out of order shall be processed as soon as prac- and given expedited treatment when- ticable. If a request for expedited proc- ever TVA determines that they in- essing is denied, any appeal of that de- volve: cision shall be acted upon expedi- (i) Circumstances in which the lack tiously. of expedited treatment could reason- [64 FR 4044, Jan. 27, 1999, as amended at 75 ably be expected to pose an imminent FR 11735, Mar. 12, 2010] threat to the life or physical safety of an individual; § 1301.6 Responses to requests. (ii) An urgency to inform the public (a) Acknowledgements of requests. On about an actual or alleged federal gov- receipt of a request, the FOIA Officer ernment activity, if made by a person ordinarily shall send an acknowledge- primarily engaged in disseminating in- ment letter to the requester which formation; shall confirm the requester’s agree- (iii) The loss of substantial due proc- ment to pay fees under § 1301.10 and ess rights; or provide an assigned request number for further reference. (iv) A matter of widespread and ex- (b) Grants of requests. Ordinarily, TVA ceptional media interest in which there shall have twenty business days from exist possible questions about the gov- when a request is received to determine ernment’s integrity which affect public whether to grant or deny the request. confidence. Once TVA makes a determination to (2) A request for expedited processing grant a request in whole or in part, it may be made at the time of the initial shall notify the requester in writing. request for records or at any later The FOIA Officer shall inform the re- time. For a prompt determination, a quester in the notice of any fee charged request for expedited processing must under § 1301.10 and shall disclose be sent to and received by TVA’s FOIA records to the requester promptly on Officer. payment of any applicable fee, if the (3) A requester who seeks expedited fee is equal to or more than $100. If the processing must submit a statement, fee is less than $100, the FOIA officer certified to be true and correct to the shall disclose the records along with a best of that person’s knowledge and be- statement of the fee. Records disclosed lief, explaining in detail the basis for in part shall be marked or annotated to requesting expedited processing. For show the amount of information de- example, a requester within the cat- leted unless doing so would harm an in- egory in paragraph (d)(1)(ii) of this sec- terest protected by an applicable ex- tion, if not a full-time member of the emption. The location of the informa- news media, must establish that he or tion deleted also shall be indicated on she is a person whose main professional the record, if technically feasible. activity or occupation is information (c) Adverse determinations of requests. dissemination, though it need not be If TVA makes an adverse determina- his or her sole occupation. A requester tion denying a request in any respect, within the category in paragraph they shall notify the requester of that (d)(1)(ii) of this section also must es- determination in writing. Adverse de- tablish a particular urgency to inform terminations, or denials of requests, the public about the government activ- consist of: a determination to withhold ity involved in the request, beyond the any requested record in whole or in public’s right to know about govern- part; a determination that a requested ment activity generally. The formality record does not exist or cannot be lo- of certification may be waived as a cated; a determination that a record is matter of administrative discretion. not readily reproducible in the form or

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format sought by the requester; a de- curity plans for the protection of termination that what has been re- TVA’s nuclear facilities; quested is not a record subject to the (6) Personnel and medical files and FOIA; a determination on any disputed similar files, the disclosure of which fee matter, including a denial of a re- would constitute a clearly unwarranted quest for a fee waiver; and a denial of invasion of personal privacy; a request for expedited treatment. The (7) Records or information compiled denial letter shall be signed by the for law enforcement purposes, but only FOIA Officer or the FOIA Officer’s des- to the extent that the production of ignee, and shall include: such law enforcement records or infor- (1) The name and title or position of mation: the person responsible for the denial; (i) Could reasonably be expected to (2) A brief statement of the reason(s) interfere with enforcement pro- for the denial, including any FOIA ex- ceedings, emption applied by TVA in denying the (ii) Would deprive a person of a right request; to a fair trial or an impartial adjudica- (3) An estimate of the volume of tion, records or information withheld, in (iii) Could reasonably be expected to number of pages or in some other rea- constitute an unwarranted invasion of sonable form of estimation. This esti- personal privacy, mate does not need to be provided if (iv) Could reasonably be expected to the volume is otherwise indicated disclose the identity of a confidential through deletions on records disclosed source, including a State, local, or for- in part, or if providing an estimate eign agency or authority or any pri- would harm an interest protected by an vate institution which furnished infor- applicable exemption; and mation on a confidential basis, and, in (4) A statement that the denial may the case of a record or information be appealed under § 1301.9 and a descrip- compiled by a criminal law enforce- tion of the requirements of § 1301.9. ment authority in the course of a criminal investigation or by an agency § 1301.7 Exempt records. conducting a lawful national security (a) Records available. TVA’s records intelligence investigation, information will be made available for inspection furnished by a confidential source, and copying upon request as provided (v) Would disclose techniques and in this section, except that records are procedures for law enforcement inves- exempt and are not made available if tigations or prosecutions, or would dis- they are: close guidelines for law enforcement (1)(i) Specifically authorized under investigations or prosecutions if such criteria established by an Executive disclosure could reasonably be ex- order to be kept secret in the interest pected to risk circumvention of the of national defense or foreign policy law, or and (vi) Could reasonably be expected to (ii) Are in fact properly classified endanger the life or physical safety of pursuant to such Executive order; any individual; (2) Related solely to the internal per- (8) Contained in or related to exam- sonnel rules and practices of TVA; ination, operation, or condition reports (3) Specifically exempted from disclo- prepared by, on behalf of, or for the use sure by statute; of any agency responsible for the regu- (4) Trade secrets and commercial or lation or supervision of financial insti- financial information obtained from tution; or any person and privileged or confiden- (9) Geological and geophysical infor- tial; mation and data, including maps, con- (5) Inter-agency or intra-agency cerning wells. memorandums or letters which would (b) The availability of certain classes not be available by law to a private of nonexempt records is deferred for party in litigation with TVA, including such time as TVA may determine is without limitation records relating to reasonably necessary to avoid inter- control and accounting for special nu- ference with the accomplishment of its clear material and to the physical se- statutory responsibilities. Such records

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include bids and information con- The notice shall either describe the cerning the identity and number of business information requested or in- bids received prior to bid opening; all clude copies of the requested records or nonexempt records relating to bids be- record portions containing the infor- tween the time of bid opening and mation. When notification of a volumi- award; and all nonexempt records re- nous number of submitters is required, lating to negotiations in progress in- notification may be made by posting or volving contracts or agreements for publishing the notice in a place reason- the acquisition or disposal of real or ably likely to accomplish notification personal property by TVA prior to the of submitters. conclusion of such negotiations. Any (e) Where notice is required. Notice reasonably segregable portion of an shall be given to a submitter wherever: available record shall be provided to (1) The information has been des- any person requesting such record after ignated in good faith by the submitter deletion of the portions which are ex- as information considered protected empt under this paragraph. from disclosure under Exemption 4; or (2) TVA has reason to believe that § 1301.8 Business information. the information may be protected from (a) In general. Business information disclosure under Exemption 4. obtained by TVA from a submitter will (f) Opportunity to object to disclosure. be disclosed under the FOIA only under TVA will allow a submitter a reason- this section. able time to respond to the notice de- (b) Definitions. For purposes of this scribed in paragraph (d) of this section. section: If a submitter has any objection to dis- (1) Business information means com- closure, it is required to submit a de- mercial or financial information ob- tailed written statement. The state- tained by TVA from a submitter that ment must specify all grounds for with- may be protected from disclosure under holding any portion of the information Exemption 4 of the FOIA. under any exemption of the FOIA and, (2) Submitter means any person or en- in the case of Exemption 4, it must tity from whom TVA obtains business show why the information is a trade se- information, directly or indirectly. The cret or commercial or financial infor- term includes corporations; state and mation that is privileged or confiden- local governments; and foreign govern- tial. In the event that a submitter fails ments. to respond to the notice within the (c) Designation of business information. time specified in it, the submitter will A submitter of business information be considered to have no objection to will use good-faith efforts to designate, disclosure of the information. Informa- by appropriate markings, either at the tion provided by the submitter that is time of submission or at a reasonable not received by TVA until after its dis- time thereafter, any portions of its closure decision has been made shall submission that it considers to be pro- not be considered by TVA. Information tected from disclosure under Exemp- provided by a submitter under this tion 4. These designations will expire paragraph may itself be subject to dis- ten years after the date of the submis- closure under the FOIA. sion unless the submitter requests, and (g) Notice of intent to disclose. TVA provides justification for, a longer des- shall consider a submitter’s objections ignation period. and specific grounds for nondisclosure (d) Notice to submitters. TVA shall pro- in deciding whether to disclose busi- vide a submitter with prompt written ness information. Whenever TVA de- notice of a FOIA request or administra- cides to disclose business information tive appeal that seeks its business in- over the objection of a submitter, TVA formation wherever required under shall give the submitter written notice, paragraph (e) of this section, except as which shall include: provided in paragraph (h) of this sec- (1) A statement of the reason(s) why tion, in order to give the submitter an each of the submitter’s disclosure ob- opportunity to object to disclosure of jections was not sustained; any specified portion of that informa- (2) A description of the business in- tion under paragraph (f) of this section. formation to be disclosed, and

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(3) A specified disclosure date, which as you wish, as long as it clearly iden- shall be a reasonable time subsequent tifies the TVA determination (includ- to the notice. ing the assigned request number, if (h) Exceptions to notice requirements. known) that you are appealing. An ad- The notice requirements of paragraphs verse determination by the TVA FOIA (d) and (g) of this section shall not Appeal Official will be the final action apply if: of TVA. (1) TVA determines that the informa- (b) Responses to appeals. The decision tion should not be disclosed; on your appeal will be made in writing (2) The information lawfully has been within 20 days (excluding Saturdays, published or has been officially made Sundays, and legal holidays) after an available to the public; appeal is received. A decision affirming (3) Disclosure of the information is an adverse determination in whole or required by statute (other than the in part shall contain a statement of the FOIA) or by applicable regulation; or reason(s) for the affirmance, including (4) The designation made by the sub- any FOIA exemption(s) applied, and mitter under paragraph (c) of this sec- will inform you of the FOIA provisions tion appears obviously frivolous—ex- for court review of the decision. If the cept that, in such a case, the compo- adverse determination is reversed or nent shall, within a reasonable time modified on appeal, in whole or in part, prior to a specified disclosure date, you will be notified in a written deci- give the submitter written notice of sion and your request will be reproc- any final decision to disclose the infor- essed in accordance with that appeal mation. decision. (i) Notice of FOIA lawsuit. Whenever a (c) When appeal is required. If you requester files a lawsuit seeking to wish to seek review by a court of any compel the disclosure of business infor- adverse determination, you must first mation, TVA shall promptly notify the appeal it under this section. submitter. [64 FR 4044, Jan. 27, 1999, as amended at 65 (j) Corresponding notice to requesters. FR 16513, Mar. 29, 2000; 67 FR 14853, Mar. 28, Whenever TVA provides a submitter 2002; 75 FR 11735, Mar. 12, 2010] with notice and an opportunity to object to disclosure under paragraph (d) § 1301.10 Fees. of this section, TVA shall also notify (a) In general, TVA shall charge for the requester(s). Whenever TVA noti- processing requests under the FOIA in fies a submitter of its intent to disclose accordance with paragraph (c) of this requested information under paragraph section, except where fees are limited (g) of this section, TVA shall also no- under paragraph (d) of this section or tify the requester(s). Whenever a sub- where a waiver or reduction of fees is mitter files a lawsuit seeking to pre- granted under paragraph (k) of this vent the disclosure of business infor- section. If the applicable fees are $100 mation, TVA shall notify the re- or more, TVA ordinarily will collect all quester(s). applicable fees before sending copies of requested records to a requester. If the § 1301.9 Appeals. applicable fees are less than $100, TVA (a) Appeals of adverse determinations. ordinarily will bill the requester for If you are dissatisfied with TVA’s re- the fees in the letter responding to the sponse to your request, you may appeal request and enclosing the requested an adverse determination denying your records. Requesters must pay fees by request, in any respect, to TVA’s FOIA check or money order made payable to Appeal Official, Tennessee Valley Au- the Tennessee Valley Authority. thority, 400 W. Summit Hill Drive (WT (b) Definitions. For purposes of this 7D), Knoxville, Tennessee 37902–1401. section: You must make your appeal in writing, (1) Commercial use request means a re- and it must be received by the FOIA quest from or on behalf of a person who Appeal Official within 30 days of the seeks information for a use or purpose date of the letter denying your request. that furthers his or her commercial, Your appeal letter may include as trade, or profit interests, which can in- much or as little related information clude furthering those interests

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through litigation. TVA shall deter- ated on a ‘‘commercial’’ basis, as that mine, whenever reasonably possible, term is defined in paragraph (b)(1) of the use to which a requester will put this section, and that is operated solely the requested records. When it appears for the purpose of conducting scientific that the requester will put the records research the results of which are not to a commercial use, either because of intended to promote any particular the nature of the request itself or be- product or industry. To be in this cat- cause TVA has reasonable cause to egory, a requester must show that the doubt a requester’s stated use, TVA request is authorized by and is made shall provide the requester a reason- under the auspices of a qualifying in- able opportunity to submit further stitution and that the records are not clarification. sought for a commercial or private use (2) Direct costs means those expenses but are sought to further scientific re- that TVA actually incurs in searching search. for and duplicating (and, in the case of (6) Representative of the news media, or commercial use requests, reviewing) news media requester, means any person records to respond to a FOIA request. or entity that gathers information of Direct costs include, for example, the potential interest to a segment of the salary of the employee performing the public, uses its editorial skills to turn work (the basic rate of pay for the em- the raw materials into a distinct work, ployee, plus 16 percent of that rate to and distributes that work to an audi- cover benefits, unless the fee is a ence. In this subsection, the term standard TVA fee as set forth in para- ‘‘news’’ means information that is graph (c) of this section) and the cost about current events or that would be of operating duplication machinery. of current interest to the public. Exam- Not included in direct costs are over- ples of news media entities include tel- head expenses such as the costs of evision or radio stations broadcasting space and heating or lighting of the fa- to the public at large and publishers of cility in which the records are kept. periodicals (but only in those instances (3) Duplication means the making of a where they can qualify as dissemina- copy of a record, or of the information tors of ‘‘news’’) who make their prod- contained in it, necessary to respond to ucts available for purchase by or sub- a FOIA request. Copies can take the scription by or free distribution to the form of paper, microform, audiovisual general public. These examples are not materials, or electronic records (for ex- all-inclusive. Moreover, as methods of ample, magnetic tape or disk), among news delivery evolve (for example, the others. TVA shall honor a requester’s adoption of the electronic dissemina- specified preference of form or format tion of newspapers through tele- of disclosure if the record is readily re- communications services), such alter- producible with reasonable efforts in native media shall be considered to be the requested form or format. new media entities. For ‘‘freelance’’ (4) Educational institution means a journalists to be regarded as working preschool, a public or private elemen- for a news organization, they must tary or secondary school, an institu- demonstrate a solid basis for expecting tion of undergraduate higher edu- publication through that organization. cation, an institution of graduate high- A publication contract would be the er education, or an institution of pro- clearest proof, but TVA shall also look fessional education, or an institution to the past publication record of a re- of vocational education, that operates quester in making this determination. a program of scholarly research. To be To be in this category, a requester in this category, a requester must show must not be seeking the requested that the request is authorized by and is records for a commercial or private made under the auspices of a qualifying use. However, a request for records sup- institution and that the records are not porting the news-dissemination func- sought for commercial or private use, tion of the requester shall not be con- but are sought to further scholarly re- sidered to be for a commercial use. search. (7) Review means the examination of (5) Noncommercial scientific institution a record located in response to a re- means an institution that is not oper- quest in order to determine whether

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any portion of it is exempt from disclo- record or record portion at the initial sure. It also includes processing any request level. No charge will be made record for disclosure—for example, for review at the administrative appeal doing all that is necessary to redact it level for an exemption already applied. and prepare it for disclosure. Review However, record or record portions costs are recoverable even if a record withheld under an exemption that is ultimately is not disclosed. Review subsequently determined not to apply time includes time spent considering may be reviewed again to determine any formal objection to disclosure whether any other exemption not pre- made by a business submitter under viously considered applies; the costs of § 1301.8, but does not include time spent that review are chargeable where it is resolving general legal or policy issues made necessary by a change of cir- regarding the application of exemp- cumstances. Review fees will be tions. charged at the same rates as those (8) Search means the process of look- charged for a search under paragraph ing for and retrieving records or infor- (c)(1) of this section. mation responsive to a request. It in- (d) Limitations on charging fees. (1) No cludes page-by-page or line-by-line search fee will be charged for requests identification of information within by educational institutions, non- records and also includes reasonable ef- commercial scientific institutions, or forts to locate and retrieve information representatives of the news media. from records maintained in electronic (2) No search fee or review fee will be form or format. TVA shall ensure that charged for a quarter-hour period un- searches are done in the most efficient less more than half of that period is re- and least expensive manner reasonably quired for search or review. possible. For example, TVA shall not (3) Except for requesters seeking search line-by-line where duplicating records for a commercial use, TVA will an entire document would be quicker provide the following without charge: and less expensive. (c) Fees. In responding to a FOIA re- (i) The first 100 pages of duplication quest, TVA shall charge the following (or the cost equivalent); and fees unless a waiver or reduction of fees (ii) The first two hours of search (or has been granted under paragraph (k) the cost equivalent). of this section: (4) No fee is charged to any requester (1) Search time charges for other than if the cost of collecting the fee would computer searches. For time spent by be equal to or greater than the fee clerical employees in searching files, itself. the charge is $14.90 per hour. For time (5) The provisions of paragraphs (d)(3) spent by supervisory and professional and (4) of this section work together. employees, the charge is $34.30 per This means that for requesters other hour. than those seeking records for a com- (2) Duplication charges. For photo- mercial use, no fee will be charged un- static reproduction of requested mate- less the cost of search in excess of two rial which consists of sheets no larger hours plus the cost of duplication in than 81⁄2 by 14 inches, the charge is 10 excess of 100 pages is equal to or great- cents per page. For copies produced by er than the fee itself. computer, such as tapes or printouts, (e) Notice of anticipated fees in excess TVA will charge the direct costs, in- of $25.00. When TVA determines or esti- cluding operator time, of producing the mates that the fees to be charged under copy. For other forms of duplication, this section will amount to more than TVA will charge the direct cost of that $25.00, TVA shall notify the requester duplication. of the actual or estimated amount of (3) Review charges. Review fees will be the fees, unless the requester has indi- charged to requesters who make a com- cated a willingness to pay fees as high mercial use request. Review fees will as those anticipated. If only a portion be charged only for the initial record of the fee can be estimated readily, review—in other words, the review TVA shall advise the requester that done when TVA determines whether an the estimated fee may be only a por- exemption applies to a particular tion of the total fee. In cases in which

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a requester has been notified that ac- (2) Where TVA determines or esti- tual or estimated fees amount to more mates that a total fee to be charged than $25.00, the request shall not be under this section will be more than considered received and further work $250.00, it may require the requester to shall not be done on it until the re- make an advance payment of an quester agrees to pay the anticipated amount up to the amount of the entire total fee. Any such agreement should anticipated fee before beginning to be documented in writing. A notice process the request, except where it re- under this paragraph will offer the receives a satisfactory assurance of full quester an opportunity to discuss the payment from a requester that has a matter with TVA personnel in order to history of prompt payment. reformulate the request to meet the re- (3) Where a requester has previously quester’s needs at a lower cost. failed to pay a properly charged FOIA (f) Charges for other services. Apart fee to TVA or another agency within 30 from the other provisions of this sec- days of the date of billing, TVA may tion, when TVA chooses as a matter of require the requester to pay the full administrative discretion to provide a amount due, plus any applicable inter- special service—such as certifying that est, and to make an advance payment records are true copies or sending them of the full amount of any anticipated by other than ordinary mail—the di- fee, before TVA begins to process a new rect costs of providing the service ordi- request or continues to process a pend- narily will be charged. ing request from that requester. (g) Charging interest. TVA may charge (4) In cases in which TVA requires interest on any unpaid bill starting on advance payment or payment due the 31st day following the date of bill- under paragraph (i) (2) or (3) of this sec- ing the requester. Interest charges will tion, the request shall not be consid- be assessed at the rate provided in 31 ered received and further work will not U.S.C. 3717 and will accrue from the be done on it until the required pay- date of the billing until payment is re- ment is received. ceived by TVA. (j) (h) Aggregating requests. When TVA Other fees for TVA published mate- reasonably believes that a requester or rials. The fee schedule of this section a group of requesters acting together is does not apply to fees charged by TVA attempting to divide a request into a for documents, including maps or re- series of requests for the purpose of ports and the like, which TVA sells to avoiding fees, TVA may aggregate the public at established prices. Where those requests and charge accordingly. records responsive to requests are TVA may presume that multiple re- maintained for distribution and sale by quests of this type made within a 30- TVA at established prices. TVA will in- day period have been made in order to form requesters of the steps for obtain- avoid fees. Where requests are sepa- ing records from those sources so that rated by a longer period, TVA will ag- they may do so most economically. gregate them only where there exists a (k) Waiver or reduction of fees. (1) solid basis for determining that aggre- Records responsive to a request will be gation is warranted under all of the furnished without charge or at a circumstances involved. Multiple recharge reduced below that established quests involving unrelated matters will under paragraph (c) of this section not be aggregated. where TVA determines, based on all (i) Advance payments. (1) For requests available information, that the re- other than those described in para- quester has documented that: graphs (i)(2) and (3) of this section, (i) Disclosure of the requested infor- TVA shall not require the requester to mation is in the public interest because make an advance payment-in other it is likely to contribute significantly words, a payment made before work is to public understanding of the oper- begun or continued on a request. Pay- ations or activities of the government, ment owed for work already completed and (i.e., a prepayment before copies are (ii) Disclosure of the information is sent to a requester) is not an advance not primarily in the commercial inter- payment. est of the requester.

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(2) To determine whether the first fee that would contribute significantly to waiver requirement is met, TVA will public understanding of the operations consider the following factors: or activities of the government is ‘‘im- (i) The subject of the request: Wheth- portant’’ enough to be made public. er the subject of the requested records (3) To determine whether the second concerns ‘‘the operations or activities fee waiver requirement is met, TVA of the government.’’ The subject of the will consider the following factors: requested records must concern identi- (i) The existence and magnitude of a fiable operations or activities of the commercial interest: Whether the re- federal government, with a connection quester has a commercial interest that that is direct and clear, not remote or would be furthered by the requested attenuated. (ii) The informative value of the in- disclosure. TVA shall consider any formation to be disclosed: Whether the commercial interest of the requester disclosure is ‘‘likely to contribute’’ to (with reference to the definition of an understanding of government oper- ‘‘commercial use’’ in paragraph (b) (1) ations or activities. The disclosable of this section), or of any person on portions of the requested records must whose behalf the requester may be act- be meaningfully informative about ing, that would be furthered by the re- government operations or activities in quested disclosure. Requesters shall be order to be ‘‘likely to contribute’’ to an given an opportunity in the adminis- increased public understanding of those trative process to provide explanatory operations or activities. The disclosure information regarding this consider- of information that already is in the ation. public domain, in either a duplicative (ii) The primary interest in disclo- or a substantially identical form, sure. Whether any identified commer- would not be as likely to contribute to cial interest of the requester is suffi- such understanding where nothing new ciently large, in comparison with the would be added to the public’s under- public interest in disclosure, that dis- standing. closure is ‘‘primarily in the commer- (iii) The contribution to an under- cial interest of the requester.’’ A fee standing of the subject by the public waiver or reduction is justified where likely to result from disclosure: the public interest standard is satisfied Whether disclosure of the requested in- and that public interest is greater in formation will contribute to ‘‘public understanding.’’ The disclosure must magnitude than that of any identified contribute to the understanding of a commercial interest in disclosure. TVA reasonably broad audience of persons ordinarily shall presume that where a interested in the subject, as opposed to news media requester has satisfied the the individual understanding of the re- public interest standard, the public in- quester. A requester’s expertise in the terest will be the interest primarily subject area and ability and intention served by disclosure to that requester. to effectively convey information to Disclosure to data brokers or others the public shall be considered. It shall who merely compile and market gov- be presumed that a representative of ernment information for direct eco- the news media will satisfy this consid- nomic return shall not be presumed to eration. primarily serve the public interest. (iv) The significance of the contribu- (4) Where only some of the requested tion to public understanding: Whether records satisfy the requirements for a the disclosure is likely to contribute waiver of fees, a waiver shall be grant- ‘‘significantly’’ to public under- ed for those records. standing of government operations or (5) Requests for the waiver or reduc- activities. The public’s understanding tion of fees should address the factors of the subject in question, as compared listed in paragraphs (k) (2) and (3) of to the level of public understanding ex- this section, insofar as they apply to isting prior to the disclosure, must be enhanced by the disclosure to a signifi- each request. TVA will exercise their cant extent. TVA shall not make value judgments about whether information

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discretion to consider the cost-effec- the individual making the request of tiveness of their investment of admin- the referral. istrative resources in this decisionmaking process, however, in deciding § 1301.12 Definitions. to grant waivers or reductions of fees. For purposes of §§ 1301.11 to 1301.24: [64 FR 4044, Jan. 27, 1999, as amended at 75 (a) The Act means section 3 of the FR 11735, Mar. 12, 2010]] Privacy Act of 1974, 5 U.S.C. 552a; (b) The terms individual, maintain, Subpart B—Privacy Act record, system of records, statistical record, and routine use have the meaning provided for by the Act; AUTHORITY: 16 U.S.C. 831–831ee, 5 U.S.C. 552a. (c) The term TVA system means a system of records maintained by TVA; SOURCE: 40 FR 45313, Oct. 1, 1975, unless (d) The term TVA system notice means otherwise noted. Redesignated at 44 FR 30682, a notice of a TVA system published in May 29, 1979. the FEDERAL REGISTER pursuant to the § 1301.11 Purpose and scope. Act. TVA has published TVA system notices about the following TVA sys- (a) The regulations in §§ 1301.11 to tems: 1301.24 implement section 3 of the Pri- vacy Act of 1974, 5 U.S.C. 552a, with re- Apprentice Training Records—TVA. spect to systems of records maintained Personnel Files—TVA. by TVA. They provide procedures by Discrimination Complaint Files—TVA. which an individual may exercise the Work Injury Illness System—TVA. rights granted by the Act to determine Employee Accounts Receivable—TVA. whether a TVA system contains a Employee Alleged Misconduct Inves- record pertaining to him; to gain ac- tigatory Files—TVA. cess to such records; to have a copy Health Records—TVA. made of all or any portion thereof; and Payroll Records—TVA. to request administrative correction or Travel History Records—TVA. amendment of such records. They pre- Employment Applicant Files—TVA. scribe fees to be charged for copying Grievance Records—TVA. records; establish identification re- Employee Supplementary Vacancy An- quirements; list penalties provided by nouncement Records—TVA. statute for certain violations of the Consultant and Contractor Records— Act; and establish exemptions from TVA. certain requirements of the Act for cer- Nuclear Quality Assurance Personnel tain TVA systems or components Records—TVA. thereof. Questionnaire—Land Use Surveys in (b) Nothing in §§ 1301.11 to 1301.24 en- Vicinity of Proposed or Licensed Nu- titles an individual to any access to clear Power Plant—TVA. any information or record compiled in Radiation Dosimetry Personnel Moni- reasonable anticipation of a civil ac- toring Records—TVA. tion or proceeding. Retirement System Records—TVA. (c) Certain records of which TVA Woodland Resource Analysis Program may have physical possession are the Input Data—TVA. official records of another government Energy Program Participant Records— agency which exercises dominion and TVA. control over the records, their content, OIG Investigative Records—TVA. and access thereto. In such cases, Call Detail Records—TVA. TVA’s maintenance of the records is Project/Tract Files—TVA. subject to the direction of the other Section 26a Permit Application government agency. Except for a re- Records—TVA. quest for a determination of the exist- U.S. TVA Police Records—TVA. ence of the record, when TVA receives Wholesale, Retail, and Emergency Data requests related to these records, TVA Files—TVA. will immediately refer the request to the controlling agency for all decisions (e) The term appellant means an indi- regarding the request, and will notify vidual who has filed an appeal pursuant

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to § 1301.19(a) from an initial deter- tem notice for the TVA system con- mination refusing to amend a record on cerned. Requests for both determina- request of the individual; tion and access shall be presented to (f) The term reviewing official means the official designated in the paragraph TVA’s Vice President, Human Re- headed ‘‘Access procedure’’ in the TVA sources Shared Services & Employee system notice for the TVA system con- Relations (or incumbent of a successor cerned. Certain TVA system notices position), or another TVA official des- designate officials at field locations of ignated by the Vice President in writ- TVA systems. With respect to such ing to decide an appeal pursuant to TVA systems, an individual who be- § 1301.19; lieves his record is located at the field (g) The term day, when used in com- location may present a request to the puting a time period, excludes Satur- designated official at the field location. days, Sundays, and legal public holi- If the record is not available at that days. field location, the request will be forwarded to the appropriate TVA office. [40 FR 45313, Oct. 1, 1975. Redesignated at 44 FR 30682, May 29, 1979, and amended at 53 FR (d) If a request is for determination 30252, Aug. 11, 1988; 56 FR 9288, Mar. 6, 1991; 57 only, the determination will normally FR 33634, July 30, 1992; 57 FR 59803, Dec. 16, be made within 10 days after receipt of 1992; 75 FR 11736, Mar. 12, 2010] the request. If the determination cannot be made within 10 days after re- § 1301.13 Procedures for requests per- ceipt of a request, the designated offi- taining to individual records in a cial will acknowledge the request in record system. writing and state when the determina- (a) An individual may, in accordance tion will be made. Upon making a de- with this section (1) request a TVA determination, the designated official termination whether a record retrieved will notify the individual making the by the individual’s name or other per- request whether the record exists. The sonal identifier is maintained in a TVA notice will include any additional in- system, and (2) request access to such a formation necessary to enable the indi- record. A request for determination vidual to request access to the record. may be combined with a request for ac- (e) A request which includes a re- cess. quest for access will be acknowledged (b) Requests under this section shall: within 10 days after receipt. If access (1) Be in writing and signed by the in- can be granted as requested, the ac- dividual seeking the determination or knowledgment will provide a time and access; place for disclosure of the requested (2) Include the individual’s mailing record. Disclosure will normally be address; made within 30 days of the date of the (3) Name the TVA system as listed in acknowledgement, but the designated the TVA system notice; official may extend the 30-day period (4) Include any additional identifying for reasons found by him to be good information specified in the paragraph cause. In case of an extension, TVA headed ‘‘Notification procedure’’ in the will notify the individual, in writing, applicable TVA system notice; that disclosure will be delayed, the rea- (5) Specify whether the request is for sons for delay, and the anticipated date determination only or for both deter- on which the individual may expect the mination and access; and record to be disclosed. TVA will at- (6) Include such proof of identity as tempt to accommodate reasonable re- may be required by § 1301.14 and the ap- quests for disclosure at specified times plicable system notice. and dates, as set forth in a request for Requests may be presented in person or access, so far as compatible with the by mail. In-person requests shall be conduct of TVA business. presented during normal TVA business hours, as set out in § 1301.14(g). § 1301.14 Times, places, and require- (c) Requests for determination only ments for identification of individ- shall be presented to the official des- uals making requests. ignated in the paragraph headed ‘‘No- (a) TVA will require proof of identification procedure’’ in the TVA sys- tity, in accordance with this section,

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before it will disclose a record under tion of identity is required, the indi- § 1301.15 of this part to an individual re- vidual may arrange with the des- questing access to the record, and be- ignated TVA official to provide such fore it will disclose the existence of a identification at any of these TVA lo- record to a requester under § 1301.13 of cations convenient to the individual: this part, if TVA determines that dis- Knoxville, Nashville, and Chattanooga, closure of the existence of such record Tennessee; Muscle Shoals, Alabama; would constitute an unwarranted inva- Washington, DC, or another location sion of personal privacy. agreed upon by the individual and the (b) Identification normally required designated TVA official. Upon request would be an identification card such as the TVA official will provide an ad- a valid state driver’s license or TVA or dress and an appropriate time for such other employee identification card. A identification to be presented. comparison of the signature of the re- (g) In general, TVA offices located in quester with either the signature on the Eastern Time zone are open 8 a.m. the card or a signature in the record to 4:45 p.m., and those in the Central may be used to confirm identity. Time zone 7:30 a.m. to 4:15 p.m. Offices (c) Because of the sensitivity of the are closed on Saturdays, Sundays, and subject matter in a TVA system, a the following holidays: New Year’s TVA system notice may prescribe spe- Day, Birthday of Martin Luther King, cial identification requirements for the Jr., Presidents’ Day, Memorial Day, disclosure of the existence of or access Independence Day, Labor Day, Colum- to records in that TVA system. In such bus Day, Veterans Day, Thanksgiving case, the special identification require- Day, and Christmas Day. ments prescribed in the TVA system notice shall apply in lieu of those pre- [40 FR 45313, Oct. 1, 1975. Redesignated at 44 scribed by paragraph (b) of this section. FR 30682, May 29, 1979, and amended at 53 FR (d) If TVA deems it warranted by the 30253, Aug. 11, 1988; 75 FR 11736, Mar. 12, 2010] nature of identification presented, the subject matter of the material to be § 1301.15 Disclosure of requested information to individuals. disclosed, or other reasons found by TVA to be sufficient, TVA may require (a) All disclosure and examination of the individual requesting access to sign records shall normally be made in the a statement asserting identity and presence of a TVA representative. If an stating that the individual understands individual wishes to be accompanied by that knowingly or willfully seeking or a third person of the individual’s obtaining access to records about an- choosing when the record is disclosed, other person under false pretenses is TVA may require the individual to fur- punishable by a fine of up to $5,000. nish TVA, in advance of disclosure of (e) Where TVA is requested to pro- the record, a statement signed by the vide access to records by mailing cop- individual authorizing discussion and ies of records to the requester, the re- disclosure of the record in the presence quest shall contain or be accompanied of the accompanying person. If desired by adequate identifying information to by the individual, TVA shall provide make it likely the requester is the per- copies of any documents reviewed in son he purports to be and a notarized the record which are requested at the statement asserting identity and stat- time of review. Fees shall be charged ing that the individual understands for such copies in accordance with the that knowingly or willfully seeking or fee schedule in § 1301.21, and shall be obtaining access to records about an- payable prior to delivery of the copies other person under false pretenses is to the individual. punishable by a fine of up to $5,000. (b) Where permitted by § 1301.14, cop- (f) Where sensitivity of record infor- ies of an individual’s record will be mation may warrant (i.e., unauthorized made available by mail. A charge for access could cause harm or embarrass- copies will be made in accordance with ment to the individual) or disclosure § 1301.21 of this part. All fees due shall by mail to third persons is requested, be paid prior to mailing of the mate- TVA may require in-person confirma- rials. However, if TVA is unable to tion of identity. If in-person confirma- allow in-person review of the record,

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the first copy will be made available prior judicial or administrative action, without charge. or provide a collateral remedy for a matter otherwise judicially or adminis- § 1301.16 Special procedures—medical tratively cognizable. records. If, in the judgment of TVA, the [40 FR 45313, Oct. 1, 1975. Redesignated at 44 transmission of medical records, in- FR 30682, May 29, 1979, and amended at 53 FR 30253, Aug. 11, 1988] cluding psychological records, directly to a requesting individual could have § 1301.18 TVA review of request for an adverse effect upon such individual, correction or amendment of record. TVA may refuse to disclose such information directly to the individual. TVA (a) TVA will acknowledge a request will, however, disclose this information for amendment within 10 days of re- to a licensed health care provider or ceipt. The acknowledgement will be in legal representative designated by the writing, will request any additional in- individual in writing who should then formation TVA requires to determine provide the records to the individual whether to make the requested correc- along with any necessary interpretation or amendment, and will indicate tions. the date by which TVA expects to make its initial determination. [75 FR 11736, Mar. 12, 2010] (b) TVA will, except in unusual cir- § 1301.17 Requests for correction or cumstances, complete its consideration amendment of record. of requests to amend records within 30 (a) An individual may request amend- days. If more time is deemed necessary, ment of records pertaining to him in a TVA will notify the individual of the TVA system to the extent permitted by delay and of the expected date of com- the Act in accordance with this sec- pletion of the review. tion. A request for amendment shall: (c) If TVA determines that a record (1) Be in writing and signed by the in- should be corrected or amended, in dividual seeking the amendment; whole or in part, in accordance with a (2) Name the TVA system in which request, it will advise the requesting the record is maintained; individual in writing of its determina- (3) Describe the item or items of in- tion, and correct or amend the record formation to be amended; accordingly. If an accounting of disclo- (4) Describe the nature of the amend- sures has been made, TVA will, to the ment requested; and extent of the accounting, inform prior (5) Give the reasons for the requested recipients of the record of the fact that change. the correction was made and the sub- (b) Requests shall be made to the of- stance of the correction. ficial designated in the paragraph (d) If TVA, after initial consideration headed ‘‘Contesting record procedures’’ of a request, determines that a record in the TVA system notice for the TVA should not be corrected or amended, in system concerned. Before considering a whole or in part, in accordance with a request, TVA may require proof of request, it will notify the individual in identity of the requester similar to writing of its refusal to amend the that required under § 1301.14 to gain ac- record and the reasons therefor. The cess to the record. notification will inform the individual (c) The individual requesting amend- that the refusal may be appealed ad- ment has the responsibility of pro- ministratively and will advise the indi- viding TVA with evidence of why his vidual of the procedures for such ap- record should be amended, and must peals. provide adequate evidence to TVA to justify his request. § 1301.19 Appeals on initial adverse (d) The provisions of §§ 1301.11 to agency determination on correction 1301.24 of this part do not permit the or amendment. alteration of evidence presented or to (a) An individual may appeal an ini- be presented in the course of judicial or tial determination refusing to amend administrative proceedings; neither do that individual’s record in accordance they permit collateral attack on a with this section. An appeal must be

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taken within 20 days of receipt of no- an appellant’s request, TVA will in- tice of TVA’s initial refusal to amend form the appellant in writing of its de- the record and is taken by delivering a termination and correct or amend the written notice of appeal to the Privacy record. If an accounting of disclosures Act Reviewing Official, Tennessee Val- has been made, TVA will, to the extent ley Authority, Knoxville, Tennessee of the accounting, inform prior recipi- 37902–1401. Such notice shall be signed ents of the record of the fact that the by the appellant and shall state: correction was made and of the sub- (1) That it is an appeal from a denial stance of the correction. of a request to amend the individual’s (e) If the reviewing official deter- records under these regulations and mines not to amend a record, in whole under the Privacy Act of 1974; or in part, in accordance with a re- (2) The reasons why the appellant be- quest, TVA will advise the individual: lieves the denial to have been erro- (1) Of its refusal to amend and the neous; reasons therefor; (3) The date on which the denial was (2) Of the appellant’s right to file a issued; and concise statement of reasons for dis- (4) The date on which the denial was agreement with the refusal as set out received by the appellant. in paragraph (f) of this section; (b) Appeals shall be determined by a (3) Of the procedures for filing a reviewing official. Such determination statement of disagreement; may be based on information provided (4) That any statement of disagree- for the initial determination; any addi- ment will be made available to anyone tional information which TVA or the to whom the record is subsequently appellant may desire to provide; and disclosed together with any statement any other material the reviewing offi- by TVA summarizing its reasons for re- cial deems relevant to the determina- fusing to amend the record; tion. The reviewing official, in his sole (5) That prior recipients of the dis- discretion, may request TVA or the ap- puted record will be provided a copy of pellant to provide additional informa- any statement of dispute to the extent tion deemed relevant to the appeal. that an accounting of disclosures was The appellant will be given an oppor- maintained; and tunity to respond to any information (6) Of his or her right to seek judicial provided by TVA or independently pro- review of the agency’s refusal to amend cured by the reviewing official. If in a record. the sole discretion of the reviewing of- (f) If the reviewing official’s final de- ficial a hearing is deemed necessary for termination of an appeal is a refusal to resolution of the appeal, the reviewing correct or amend a record, in whole or official may conduct a hearing upon in part, in accordance with the request, notice to TVA and the appellant, at the appellant may file with TVA a con- which both TVA and the appellant cise statement setting forth the rea- shall be afforded an opportunity to be sons for his or her disagreement with heard on the appeal. The rules gov- the refusal of TVA to amend the erning any hearing will be set forth in records. Such statements normally the notice of hearing. should not exceed 100 words. A state- (c) The reviewing official shall make ment of disagreement should be sub- final determination on the appeal with- mitted within 30 days of receipt of no- in 30 days after it is received unless tice of the reviewing official’s decision such period is extended for good cause. on the appeal, and should be sent to If the reviewing official finds good system manager. In any disclosure con- cause for an extension, TVA will in- taining information about which the form the appellant in writing of the individual has filed a statement of dis- reason for the delay and of the approxi- agreement which occurs after the filing mate date on which the reviewing offi- of the statement, TVA will clearly note cial expects to complete his determina- any portion of the record which is dis- tion of the appeal. puted and provide copies of the state- (d) If the reviewing official deter- ment with the disclosure. Copies of the mines that a record should be amended statement will also be furnished to per- in whole or in part in accordance with sons or other agencies to whom the

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record has been disclosed to the extent it, shall be guilty of a misdemeanor and that an accounting of disclosures was fined not more than $5,000. made. TVA may attach to the state- (2) Any officer or employee of any agency ment of disagreement a brief summary who willfully maintains a system of records without meeting the notice requirements of of TVA’s reasons for refusing to amend subsection (e)(4) of this section shall be the record. Such summaries will be dis- guilty of a misdemeanor and fined not more closed to the individual, but are not than $5,000. subject to amendment. (3) Any person who knowingly and willfully requests or obtains any record con- [40 FR 45313, Oct. 1, 1975. Redesignated at 44 cerning an individual from an agency under FR 30682, May 29, 1979, and amended at 53 FR false pretenses shall be guilty of a mis- 30253, Aug. 11, 1988; 57 FR 33634, July 30, 1992; demeanor and fined not more than $5,000. 75 FR 11736, Mar. 12, 2010] § 1301.23 General exemptions. § 1301.20 Disclosure of record to persons other than individual to whom Individuals may not have access to it pertains. records maintained by TVA but which For purposes of §§ 1301.11 to 1301.24, were provided by another agency which the parent of any minor or the legal has determined by regulation that such guardian of any individual who has information is subject to general ex- been declared incompetent due to phys- emption under 5 U.S.C. 552a(j). If such ical or mental incapacity or age by a exempt records are within a request for court of competent jurisdiction may access, TVA will advise the individual act on behalf of the individual. TVA of their existence and of the name and may require proof of the relationship address of the source agency. For any prior to allowing such action. The par- further information concerning the ent or legal guardian may not act record and the exemption, the indi- where the individual concerned objects vidual must contact that source agen- to the action of the parent or legal cy. guardian, unless a court otherwise or- [75 FR 11736, Mar. 12, 2010] ders. § 1301.24 Specific exemptions. § 1301.21 Fees. (a) The TVA system ‘‘Employee Al- (a) Fees to be charged, if any, to any leged Misconduct Investigatory Files— individual for making copies of his or TVA’’ is exempted from subsections her record exclude the cost of any (c)(3); (d); (e)(1), (4)(G), (4)(H), (4)(I); and search and review of the record. The (f) of 5 U.S.C. 552a and corresponding following fees are applicable: sections of these rules pursuant to sec- (1) For reproduction of material con- tion (k)(2) of 5 U.S.C. 552a (section 3 of 1 sisting of sheets no larger than 8 ⁄2 by the Privacy Act). This TVA system is 14 inches, ten cents per page; and exempted because applications of these (2) For reproduction of other mate- provisions to this system might impair rials, the direct cost of photostats or investigations of employee misconduct. other means necessarily used for dupli- (b)(1) The TVA systems ‘‘Apprentice cation. Training Record System-TVA,’’ ‘‘Con- (b) [Reserved] sultant and Contractor Records-TVA,’’ § 1301.22 Penalties. ‘‘Employment Applicant Files-TVA,’’ ‘‘Personnel Files-TVA,’’ and ‘‘Nuclear Section 552a(i), Title 5, United States Quality Assurance Personnel Records- Code provides that: TVA’’ are exempted from subsections (1) Criminal Penalties. Any officer or em- (d); (e)(4)(H); (f)(2), (3), and (4) of 5 ployee of an agency, who by virtue of his em- U.S.C. 552a and corresponding sections ployment or official position, has possession of these rules to the extent that disclo- of, or access to, agency records which con- sure of material would reveal the iden- tain individually identifiable information tity of a source who furnished informa- the disclosure of which is prohibited by this tion to the Government under an ex- section or by rules or regulations established thereunder, and who knowing that disclosure press promise that the identity of the of the specific material is so prohibited, will- source would be held in confidence, or fully discloses the material in any manner to prior to September 27, 1975, under an any person or agency not entitled to receive implied promise that the identity of

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the source would be held in confidence. vestigation subjects to the existence or These TVA systems are exempted pur- scope of investigations, lead to sup- suant to section (k)(5) of 5 U.S.C. 552a pression, alteration, fabrication, or de- (section 3 of the Privacy Act). struction of evidence, disclose inves- (2) Each of these TVA systems con- tigative techniques or procedures, retain reference letters and information duce the cooperativeness or safety of concerning employees and other indi- witnesses, or otherwise impair inves- viduals who perform services for TVA. tigations. TVA has received this information in (e) The TVA system TVA Police the past under both express and im- Records is exempt from subsections plied promises of confidentiality and (c)(3), (d), (e)(1), (e)(4), (G), (H), and (I) consistent with the Privacy Act these and (f) of 5 U.S.C. 552a (section 3 of the promises will be honored. Pledges of Privacy Act) and corresponding sec- confidentiality will be necessary in the tions of these rules pursuant to 5 future to ensure that unqualified or un- U.S.C. 552a(k)(2). The TVA system Po- suitable individuals are not selected lice Records is exempt from sub- for TVA positions. Without the ability sections (c)(3), (d), (e)(1), (e)(2), (e)(3), to make these promises, a potential (e)(4)(G), (H), and (I), (e)(5), (e)(8), and source of information may be unwilling (g) pursuant to 5 U.S.C. 552a(j)(2). This to provide needed information, or may system is exempt because application not be sufficiently frank to be of value of these provisions might alert inves- in personnel screening. tigation subjects to the existence or (c)(1) The TVA systems ‘‘Apprentice scope of investigations, lead to sup- Training Record System-TVA,’’ ‘‘Con- pression, alteration, fabrication, or de- sultant and Contractor Records-TVA,’’ struction of evidence, disclose inves- ‘‘Employment Applicant Files-TVA,’’ tigative techniques or procedures, re- and ‘‘Personnel Files-TVA,’’ are ex- duce the cooperativeness or safety of empted from subsections (d); (e)(4)(H); witnesses, or otherwise impair inves- (f)(2), (3), and (4) of 5 U.S.C. 552a and tigations. corresponding sections of these rules to [40 FR 45313, Oct. 1, 1975. Redesignated at 44 the extent that disclosure of testing or FR 30682, May 29, 1979, and amended at 53 FR examination material used solely to 30253, Aug. 11, 1988; 56 FR 9288, Mar. 6, 1991; 61 determine individual qualifications for FR 2111, Jan. 25, 1996; 62 FR 4644, Jan. 31, appointment or promotion in the Fed- 1997; 75 FR 11736, Mar. 12, 2010] eral service would compromise the objectivity or fairness of the testing or Subpart C—Government in the examination process. These systems Sunshine Act are exempted pursuant to section (k)(6) of 5 U.S.C. 552a (section 3 of the Pri- AUTHORITY: 16 U.S.C. 831–831ee, 5 U.S.C. vacy Act). 552b. (2) This material is exempted because SOURCE: 42 FR 14086, Mar. 15, 1977, unless its disclosure would reveal information otherwise noted. Redesignated at 44 FR 30682, about the testing process which would May 29, 1979. potentially give an individual an unfair competitive advantage in selection § 1301.41 Purpose and scope. based on test performance. (a) The provisions of this subpart are (d) The TVA system OIG Investiga- intended to implement the require- tive Records is exempt from sub- ments of section 3(a) of the Govern- sections (c)(3), (d), (e)(1), (e)(4), (G), (H), ment in the Sunshine Act, 5 U.S.C. and (I) and (f) of 5 U.S.C. 552a (section 552b, consistent with the purposes and 3 of the Privacy Act) and corresponding provisions of the Tennessee Valley Au- sections of these rules pursuant to 5 thority Act of 1933, 16 U.S.C. 831–831dd. U.S.C. 552a(k)(2). The TVA system OIG (b) Nothing in this subpart expands Investigative Records is exempt from or limits the present rights of any per- subsections (c)(3), (d), (e)(1), (e)(2), son under the Freedom of Information (e)(3), (e)(4)(G), (H), and (I), (e)(5), (e)(8), Act (5 U.S.C. 552) and the provisions of and (g) pursuant to 5 U.S.C. 552a(j)(2). Subpart A of this part, except that the This system is exempt because applica- exemptions set forth in § 1301.46 shall tion of these provisions might alert in- govern in the case of any request made

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pursuant to the Freedom of Informa- § 1301.44 Notice of meetings. tion Act and Subpart A to copy or in- (a) TVA shall make a public an- spect the transcripts, recordings, or nouncement of the time, place, and minutes described in § 1301.47. subject matter of each meeting, wheth- (c) Nothing in this subpart authorizes er it is to be open or closed to the pub- TVA to withhold from any individual lic, and the name and telephone num- any record, including transcripts, re- ber of a TVA official who can respond cordings, or minutes required by this to requests for information about the subpart, which is otherwise accessible meeting. to such individual under the Privacy (b) Such public announcement shall Act (5 U.S.C. 552a) and the provisions of be made at least one week before the Subpart B. meeting unless a majority of the mem- (d) The requirements of Chapter 33 of bers determines by a recorded vote Title 44 of the United States Code shall that TVA business requires that such not apply to the transcripts, record- meeting be called at an earlier date. If ings, and minutes described in § 1301.47. an earlier date is so established, TVA shall make such public announcement § 1301.42 Definitions. at the earliest practicable time. For the purposes of this subpart: (c) Following a public announcement (a) The term Board means the Board required by paragraph (a) of this section, the time or place of the meeting of Directors of the Tennessee Valley may be changed only if TVA publicly Authority; announces the change at the earliest (b) The term meeting means the delib- practicable time. The subject matter of erations of five or more members of the a meeting or the determination to open TVA Board where such deliberations or close a meeting or portion of a meet- determine or result in the joint con- ing to the public may be changed fol- duct or disposition of official TVA lowing the public announcement re- business, but the term does not include quired by paragraph (a) of this section deliberations required or permitted by only if a majority of the entire mem- § 1301.44 or § 1301.45; bership determines by a recorded vote (c) The term member means an indi- that TVA business so requires and that vidual who is a member of the TVA no earlier announcement of the change Board; and was possible and if TVA publicly an- (d) The term TVA means the Ten- nounces such change and the vote of nessee Valley Authority. each member upon such change at the earliest, practicable time. [42 FR 14086, Mar. 15, 1977, as amended at 75 FR 11737, Mar. 12, 2010] (d) Immediately following each public announcement required by this sec- § 1301.43 Open meetings. tion, notice of the time, place, and subject matter of a meeting, whether the Members shall not jointly conduct or meeting is open or closed, any change dispose of TVA business other than in in one of the preceding, and the name accordance with this subpart. Except and phone number of the TVA official as provided in § 1301.46, every portion of designated to respond to requests for every meeting of the agency shall be information about the meeting shall be open to public observation, and TVA submitted for publication in the FED- shall provide suitable facilities there- ERAL REGISTER. for, but participation in the deliberations at such meetings shall be limited [42 FR 14087, Mar. 15, 1977, as amended at 75 FR 11737, Mar. 12, 2010] to members and certain TVA personnel. The public may make reason- § 1301.45 Procedure for closing meet- able use of electronic or other devices ings. or cameras to record deliberations or (a) Action under § 1301.46 to close a actions at meetings so long as such use meeting shall be taken only when a is not disruptive of the meetings. majority of the members vote to take [42 FR 21470, Apr. 27, 1977. Redesignated at 44 such action. A separate vote shall be FR 30682, May 29, 1979] taken with respect to each meeting a

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portion or portions of which are pro- § 1301.46 Criteria for closing meetings. posed to be closed to the public pursu- Except in a case where the Board ant to § 1301.46 or with respect to any finds that the public interest requires information which is proposed to be otherwise, the second sentence of withheld under § 1301.46. A single vote may be taken with respect to a series § 1301.43 shall not apply to any portion of meetings, a portion or portions of of a meeting and such portion may be which are proposed to be closed to the closed to the public, and the require- public, or with respect to any informa- ments of §§ 1301.44 and 1301.45(a), (b), tion concerning such series of meet- and (c) shall not apply to any informa- ings, so long as each meeting in such tion pertaining to such meeting other- series involves the same particular wise required by this subpart to be dis- matters and is scheduled to be held no closed to the public, where the Board more than 30 days after the initial properly determines that such portion meeting in such series. The vote of or portions of its meeting or the disclo- each member participating in such sure of such information is likely to: vote shall be recorded and no proxies (a) Disclose matters that are (1) spe- shall be allowed. cifically authorized under criteria es- (b) Notwithstanding that the mem- tablished by an Executive order to be bers may have already voted not to kept secret in the interests of national close a meeting, whenever any person defense or foreign policy and (2) in fact whose interests may be directly af- properly classified pursuant to such fected by a portion of a meeting re- Executive order; quests that the agency close such por- (b) Relate solely to the internal per- tion to the public for any of the rea- sonnel rules and practices of an agen- sons referred to in paragraphs (e), (f), cy; or (g) of § 1301.46, the Board, upon re- (c) Disclose matters specifically ex- quest of any one of its members made empted from disclosure by statute prior to the commencement of such (other than 5 U.S.C. 552), provided that portion, shall vote by recorded vote such statute (1) requires that the mat- whether to close such portion of the ters be withheld from the public in meeting. such a manner as to leave no discretion (c) Within one day of any vote taken on the issue, or (2) establishes par- pursuant to this section, TVA shall ticular criteria for withholding or re- make publicly available in accordance fers to particular types of matters to with § 1301.48 a written copy of such be withheld; vote reflecting the vote of each mem- (d) Disclose trade secrets and com- ber on the question. If a portion of a mercial or financial information ob- meeting is to be closed to the public, tained from a person and privileged or TVA shall, within one day of the vote confidential; taken pursuant to this section, make (e) Involve accusing any person of a publicly available in accordance with crime, or formally censuring any per- § 1301.48 a full written explanation of son; this action closing the portion together (f) Disclose information of a personal with a list of all persons expected to nature where disclosure would con- attend the meeting and their affili- stitute a clearly unwarranted invasion ation. of personal privacy; (d) Prior to every meeting closed pur- (g) Disclose investigatory records suant to § 1301.46, there shall be a cer- compiled for law enforcement purposes, tification by the General Counsel of or information which if written would TVA stating whether, in his or her be contained in such records, but only opinion, the meeting may be closed to to the extent that the production of the public and each relevant exemptive such records or information would: provision. A copy of such certification (1) Interfere with enforcement pro- shall be retained by TVA and shall be ceedings, made publicly available in accordance (2) Deprive a person of a right to a with § 1301.48. fair trial or an impartial adjudication, [42 FR 14087, Mar. 15, 1977, as amended at 75 (3) Constitute an unwarranted inva- FR 11737, Mar. 12, 2010] sion of personal privacy,

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(4) Disclose the identity of a con- meeting, and the persons present, and fidential source and, in the case of a such statement shall be retained by record compiled by a criminal law en- TVA. forcement authority in the course of a (b) TVA shall maintain a complete criminal investigation, or by an agency transcript or electronic recording ade- conducting a lawful national security quate to record fully the proceedings of intelligence investigation, confidential each meeting, or portion of a meeting, information furnished only by the con- closed to the public, except that in the fidential source, case of a meeting, or portion of a meet- (5) Disclose investigative techniques ing, closed to the public pursuant to and procedures, or paragraph (h), (i)(1), or (j) of § 1301.46, (6) Endanger the life or physical safe- TVA shall maintain either such a tran- ty of law enforcement personnel; script or recording, or a set of minutes. (h) Disclose information contained in Such minutes shall fully and clearly or related to examination, operating, describe all matters discussed and shall or condition reports prepared by, on be- provide a full and accurate summary of half of, or for the use of any agency re- any actions taken, and the reasons sponsible for the regulation or super- therefor, including a description of vision of financial institutions; each of the views expressed on any (i) Disclose information the pre- item and the record of any rollcall vote mature disclosure of which would: (reflecting the vote of each member on (1) In the case of any agency which the question). All documents consid- regulates currencies, securities, com- ered in connection with any action modities, or financial institutions, be shall be identified in such minutes. likely to (i) lead to significant finan- (c) TVA shall maintain a complete cial speculation in currencies, securi- verbatim copy of the transcript, a com- ties, or commodities, or (ii) signifi- plete copy of the minutes, or a com- cantly endanger the stability of any fi- plete electronic recording of each nancial institution; or meeting, or portion of a meeting, (2) In the case of any agency, be like- closed to the public, for a period of at ly to significantly frustrate implemen- least two years after such meeting, or tation of a proposed agency action, ex- until one year after the conclusion of cept that this provision shall not apply any TVA proceeding with respect to in any instance where the agency has which the meeting or portion was held, already disclosed to the public the con- whichever occurs later. tent or nature of its proposed action, or where the agency is required by law § 1301.48 Public availability of tran- to make such disclosure on its own ini- scripts and other documents. tiative prior to taking final action on (a) Public announcements of meet- such proposal; or ings pursuant to § 1301.44, written cop- (j) Specifically concern an agency’s ies of votes to change the subject mat- issuance of a subpena, or its participa- ter of meetings made pursuant to tion in a civil action or proceeding, an § 1301.44(c), written copies of votes to action in a foreign court or inter- close meetings and explanations of national tribunal, or an arbitration, or such closings made pursuant to the initiation, conduct, or disposition § 1301.45(c), and certifications of the by an agency of a particular case of General Counsel made pursuant to formal agency adjudication pursuant § 1301.45(d) shall be available for public to the procedures in 5 U.S.C. 554 or oth- inspection during regular business erwise involving a determination on hours in the TVA Research Library, 400 the record after opportunity for a hear- W. Summit Hill Drive, Knoxville, Ten- ing. nessee 37902–1401. (b) TVA shall make promptly avail- § 1301.47 Transcripts of closed meet- able to the public at the location de- ings. scribed in paragraph (a) of this section (a) For every meeting closed pursu- the transcript, electronic recording, or ant to § 1301.46, the presiding officer of minutes (as required by § 1301.47(b)) of the meeting shall prepare a statement the discussion of any item on the agen- setting forth the time and place of the da, or of any item of the testimony of

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any witness received at the meeting, within 30 days after the person’s re- except for such item or items of such ceipt of the determination by the Sen- discussion or testimony as TVA deter- ior Manager, Media Relations, and is mines to contain information which taken by delivering a written notice of may be withheld under § 1301.46. Each appeal to the Senior Vice President, request for such material shall be made Communications, Tennessee Valley to the Manager, Media Relations, Ten- Authority, Knoxville, Tennessee 37902– nessee Valley Authority, Knoxville, 1401. Such notice shall include a state- Tennessee 37902–1499; state that it is a ment that it is an appeal from a denial request for records pursuant to the of a request under § 1301.48(c) and the Government in the Sunshine Act and Government in the Sunshine Act and this subpart; and reasonably describe shall indicate the date on which the de- the discussion or item of testimony, nial was issued and the date on which and the date of the meeting, with suffi- the denial was received by the person cient specificity to permit TVA to making the request. Promptly after identify the item requested. such an appeal is received, TVA’s Sen- (c) In the event the person making a ior Vice President, Communications, or request under paragraph (b) of this sec- the Senior Vice President’s designee tion has reason to believe that all tran- shall make a final determination on scripts, electronic recordings, or min- the appeal. In making such a deter- utes or portions thereof requested by mination, TVA will consider whether that person and required to be made or not to waive the provisions of any available under paragraph (b) of this exemption contained in § 1301.46. TVA section were not made available, the shall immediately give written notice person shall make a written request to of the final determination to the per- the Senior Manager, Media Relations, son making the request. If the final de- for such additional transcripts, elec- termination on the appeal is to deny tronic recordings, or minutes or por- the request, the notice to the person tions thereof as that person believes making the request shall include a should have been made available under statement of the reasons for the denial paragraph (b) of this section and shall and a notice of the person’s right to ju- set forth in the request the reasons dicial review of the denial. why such additional material is re- (e) Copies of materials available for quired to be made available with suffi- public inspection under this section cient particularity for the Senior Man- shall be furnished to any person at the ager, Media Relations, to determine actual cost of duplication or tran- the validity of such request. Promptly scription. after a request pursuant to this para- [42 FR 14086, Mar. 15, 1977. Redesignated at 44 graph is received, the Senior Manager, FR 30682, May 29, 1979, and amended at 56 FR Media Relations, or his/her designee 55452, Oct. 28, 1991; 75 FR 11737, Mar. 12, 2010] shall make a determination as to whether to comply with the request, Subpart D—Testimony by TVA Em- and shall immediately give written notice of the determination to the person ployees, Production of Official making the request. If the determina- Records, and Disclosure of Of- tion is to deny the request, the notice ficial Information in Legal Pro- to the person making the request shall ceedings include a statement of the reasons for the denial, a notice of the right of the SOURCE: 72 FR 60548, Oct. 25, 2007, unless person making the request to appeal otherwise noted. the denial to TVA’s Senior Vice Presi- dent, Communications, and the time § 1301.51 Purpose and scope. limits thereof. (a) Purpose. This part sets forth the (d) If the determination pursuant to procedures to be followed when TVA or paragraph (c) of this section is to deny a TVA employee is served with a de- the request, the person making the re- mand to provide testimony and/or quest may appeal such denial to TVA’s produce or disclose official information Senior Vice President, Communica- or records in a legal proceeding in tions. Such an appeal must be taken which TVA or the United States is not

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a party, and where such appearance ficial status while the individual was arises out of, or is related to, the indi- employed by TVA. vidual’s employment with TVA. (g) Testimony means any written or (b) Scope. This part applies when, in a oral statements, including depositions, judicial, administrative, legislative, or answers to interrogatories, affidavits, other legal proceeding, a TVA em- declarations, interviews, and state- ployee is served with a demand to pro- ments made by an individual in con- vide testimony concerning information nection with a legal proceeding. acquired in the course of performing official duties or because of official sta- § 1301.53 General. tus and/or to produce official informa- (a) No employee shall appear, in re- tion and/or records. sponse to a demand for official records or information, in any proceeding to § 1301.52 Definitions. which this part applies to provide testi- The following definitions apply to mony and/or produce records or other this part: official information without prior au- (a) Appearance means testimony or thorization as set forth in this part. production of documents or other ma- (b) This part is intended only to pro- terial, including an affidavit, deposi- vide procedures for responding to de- tion, interrogatory, declaration, or mands for testimony or production of other required written submission. records or other official information, (b) Demand means a subpoena, order, and is not intended to, does not, and or other demand of a court of com- may not be relied upon to, create any petent jurisdiction, or other specific right or benefit, substantive or proce- authority (e.g. an administrative or dural, enforceable by any party against State legislative body), for the produc- TVA and the United States. tion, disclosure, or release of TVA records or information or for the ap- § 1301.54 Requirements for a demand pearance of TVA personnel as wit- for records or testimony. nesses in their official capacities. (a) Service of demands. Only TVA’s (c) Employee means any members of General Counsel or his/her designee is the Board of Directors, officials, offi- authorized to receive and accept de- cers, directors, employees or agents of mands sought to be served upon TVA TVA, except as TVA may otherwise de- or its employees. All such documents termine in a particular case, and in- should be delivered in person or by cludes former TVA employees to the United States mail to the Office of the extent that the information sought was General Counsel, Tennessee Valley Au- acquired in the performance of official thority, 400 W. Summit Hill Drive, duties for TVA. Knoxville, Tennessee 37902. (d) General Counsel means the Gen- (b) Time limit for serving demands. The eral Counsel of TVA or a person to demand must be served at least 30 days whom the General Counsel has dele- prior to the scheduled date of testi- gated authority under this part. mony or disclosure of records, in order (e) Legal proceeding means any and all to ensure that the General Counsel has pre-trial, trial, and post-trial stages of adequate time to consider the demand all judicial or administrative actions, and prepare a response, except in cases hearings, investigations, or similar of routine requests for personnel and proceedings before courts, commis- payroll records located on-site in Knox- sions, boards, or other judicial or ville, where service 15 days prior will quasi-judicial bodies or tribunals, normally be considered sufficient. The whether criminal, civil, or administra- General Counsel may, upon request and tive in nature. for good cause shown, waive the re- (f) Records or official records and infor- quirement of this paragraph. mation means all information in the (c) Form of Demand. A demand for tes- custody and control of TVA, relating timony or production of records or to information in the custody and con- other official information must comply trol of TVA, or acquired by a TVA em- with the following requirements: ployee in performance of his or her of- (1) The demand must be in writing ficial duties or because of his or her of- and submitted to the General Counsel.

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(2) The demand must include the fol- of this part are met and there is no lowing information: compelling factor under paragraph (c) (i) The caption of the legal proof this section that requires the testi- ceeding, docket number, and name and mony to be withheld. The General address of the court or other authority Counsel may waive this restriction involved. when necessary. (ii) If production or records or other (b) Demands for production of records official information is sought, a list of or official information. TVA’s practice is categories of records sought, a detailed to provide requested records or official description of how the information information, provided all requirements sought is relevant to the issues in the of this part are met and there is no legal proceeding, and a specific descrip- compelling factor under paragraph (c) tion of the substance of the records of this section that requires the sought. records or official information to be (iii) If testimony is sought, a descrip- withheld. tion of the intended use of the testi- (c) Factors to be considered in deter- mony, a detailed description of how the mining whether requested testimony or testimony sought is relevant to the records or official information must be issues in the legal proceeding, and a specific description of the substance of withheld. The General Counsel shall the testimony sought. consider the following factors, among (iv) A statement as to how the need others, in deciding whether requested for the information outweighs any need testimony or materials must be with- to maintain the confidentiality of the held: information and outweighs the burden (1) Whether production is appropriate on TVA to produce the documents or in light of any relevant privilege; testimony. (2) Whether production is appropriate (v) A statement indicating that the under the applicable rules of discovery information sought is not available or the procedures governing the case or from another source, from other per- matter in which the demand arose; sons or entities, or from the testimony (3) Whether the material requested is of someone other than a TVA em- relevant to the matter at issue; ployee, such as a retained expert. (4) Whether allowing such testimony (vi) The name, address, and telephone or production of records would be nec- number of counsel to each party in the essary to prevent a miscarriage of jus- case. tice; (d) Additional information. TVA re- (5) Whether disclosure would violate serves the right to require additional a statute, Executive Order, or regula- information to complete the request tion, including, but not limited to, the where appropriate or to waive any of Privacy Act of 1974, as amended, 5 the requirements of this section at its U.S.C. 552a; sole discretion. (6) Whether disclosure would impede § 1301.55 Responding to demands. or interfere with an ongoing law enforcement investigation or proceeding, Generally, authorization to provide or compromise constitutional rights or the requested material or testimony national security interests; shall not be withheld unless their disclosure is prohibited by law or for (7) Whether disclosure would improp- other compelling reasons, provided the erly reveal trade secrets or proprietary request is reasonable and in compli- confidential information without the ance with the requirements of this owner’s consent; part, and subject to the following con- (8) Whether disclosure would unduly ditions: interfere with the orderly conduct of (a) Demands for testimony. TVA’s TVA’s functions; practice is to provide requested testi- (9) Whether the records or testimony mony of TVA employees by affidavit can be obtained from other sources; only. TVA will provide affidavit testi- (10) Whether disclosure would result mony in response to demands for such in TVA appearing to favor one litigant testimony, provided all requirements over another;

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(11) Whether the demand or request is Subpart E—Protection of National within the authority of the party mak- Security Classified Information ing it; and (12) Whether a substantial Govern- ment interest is implicated. SOURCE: 76 FR 39261, July 6, 2011, unless otherwise noted. (d) Restrictions on testimony or production of records or official information. § 1301.61 Purpose and scope. When necessary or appropriate, the General Counsel may impose restric- (a) Purpose. These regulations, taken tions or conditions on the production together with the Information Security of testimony or records or official in- Oversight Office’s implementing direc- formation. These restrictions may in- tive at 32 CFR Part 2001, Classified Na- clude, but are not limited to: tional Security Information, provide (1) Limiting the area of testimony; the basis for TVA’s security classifica- (2) Requiring that the requester and tion program implementing Executive other parties to the legal proceeding Order 13526, ‘‘Classified National Secu- agree to keep the testimony under seal; rity Information,’’ as amended (‘‘the (3) Requiring that the testimony be Executive Order’’). used or made available only in the (b) Scope. These regulations apply to legal proceeding for which it was re- TVA employees, contractors, and indi- quested; viduals who serve in advisory, consult- (4) Requiring that the parties to the ant, or non-employee affiliate capac- legal proceeding obtain a protective ities who have been granted access to order or execute a confidentiality classified information. agreement to limit access and any further disclosure of produced records or § 1301.62 Definitions. official information. The following definitions apply to (e) Fees for Production. Fees will be this part: charged for production of TVA records (a) ‘‘Original classification’’ is the and information. The fees will be the initial determination that certain in- same as those charged by TVA pursu- formation requires protection against ant to its Freedom of Information Act unauthorized disclosure in the interest regulations, 16 CFR 1301.10. of national security (i.e., national defense or foreign relations of the United § 1301.56 Final determination. States), together with a designation of The General Counsel makes the final the level of classification. determination whether a demand for (b) ‘‘Classified national security in- testimony or production of records or formation’’ or ‘‘classified information’’ official testimony in a legal proceeding means information that has been deter- in which TVA is not a party shall be mined pursuant to Executive Order granted. All final determinations are 13526 or any predecessor order to re- within the sole discretion of the Gen- quire protection against unauthorized eral Counsel. The General Counsel will disclosure and is marked to indicate its notify the requesting party and, when classified status when in documentary necessary, the court or other authority form. of the final determination, the reasons for the grant or denial of the request, § 1301.63 Senior agency official. and any conditions that the General (a) The Executive Order requires that Counsel may impose on the production each agency that originates or handles of testimony or records or official in- classified information designate a sen- formation. ior agency official to direct and administer its information security program. § 1301.57 Waiver. TVA’s senior agency official is the Di- The General Counsel may grant a rector, Enterprise Information Secu- waiver of any procedure described by rity & Policy. this part where a waiver is considered (b) Questions with respect to the In- necessary to promote a significant information Security Program, particu- terest of TVA or the United States, or larly those concerning the classifica- for other good cause. tion, declassification, downgrading,

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and safeguarding of classified informa- (b) Authorized individuals applying tion, shall be directed to the Senior derivative classification markings Agency Official. shall: (1) Observe and respect original clas- § 1301.64 Original classification au- sification decisions; and thority. (2) Carry forward to any newly cre- (a) Original classification authority ated documents the pertinent classi- is granted by the Director of the Infor- fication markings. mation Security Oversight Office. TVA (3) For information derivatively clas- does not have original classification sified based on multiple sources, the authority. authorized individuals shall carry for- (b) If information is developed that ward: appears to require classification, or is (i) The date or event for declassifica- received from any foreign government tion that corresponds to the longest pe- information as defined in section 6.1(s) riod of classification among the of Executive Order 13526, the individual sources; and in custody of the information shall im- (ii) A listing of these sources on or mediately notify the Senior Agency Of- attached to the official file or record ficial and appropriately protect the in- copy. formation. (c) Documents classified derivatively (c) If the Senior Agency Official be- shall bear all markings prescribed by 32 lieves the information warrants classi- CFR 2001.20 through 2001.23 and shall fication, it shall be sent to the appro- otherwise conform to the requirements priate agency with original classifica- of 32 CFR 2001.20 through 2001.23. tion authority over the subject matter, or to the Information Security Over- § 1301.66 General declassification and sight Office, for review and a classifica- downgrading policy. tion determination. (a) TVA does not have original classi- (d) If there is reasonable doubt about fication authority. the need to classify information, it (b) TVA personnel may not declassify shall be safeguarded as if it were classi- information originally classified by fied pending a determination by an other agencies. original classification authority. If there is reasonable doubt about the ap- § 1301.67 Mandatory review for declas- propriate level of classification, it sification. shall be safeguarded at the higher level (a) Reviews and referrals in response of classification pending a determina- to requests for mandatory declassification by an original classification au- tion shall be conducted in compliance thority. with section 3.5 of Executive Order 13526, 32 CFR 2001.33, and 32 CFR § 1301.65 Derivative classification. 2001.34. (a) In accordance with Part 2 of Exec- (b) Any individual may request a re- utive Order 13526 and directives of the view of classified information and ma- Information Security Oversight Office, terial in possession of TVA for declas- the incorporation, paraphrasing, re- sification. All information classified stating or generation in new form of under Executive Order 13526 or a prede- information that is already classified, cessor Order shall be subject to a re- and the marking of newly developed view for declassification by TVA, if: material consistent with the classifica- (1) The request describes the docu- tion markings that apply to the source ments or material containing the infor- information, is derivative classifica- mation with sufficient specificity to tion. enable TVA to locate it with a reason- (1) Derivative classification includes able amount of effort. Requests with the classification of information based insufficient description of the material on classification guidance. will be returned to the requester for (2) The duplication or reproduction of further information. existing classified information is not (2) The information requested is not derivative classification. the subject of pending litigation.

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(c) Requests shall be in writing, and PART 1302—NONDISCRIMINATION shall be sent to: Director, Enterprise IN FEDERALLY ASSISTED PRO- Information Security & Policy, Ten- GRAMS OF TVA—EFFECTUATION nessee Valley Authority, 1101 Market St., Chattanooga, TN 37402. OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 § 1301.68 Identification and marking. (a) Classified information shall be Sec. 1302.1 Purpose. marked pursuant to the standards set 1302.2 Application of this part. forth in section 1.6, Identification and 1302.3 Definitions. Marking, of the Executive Order; Infor- 1302.4 Discrimination prohibited. mation Security Oversight Office im- 1302.5 Assurances required. plementing directives in 32 CFR part 1302.6 Compliance information. 2001, subpart B; and internal TVA pro- 1302.7 Compliance reviews and conduct of investigations. cedures. 1302.8 Procedure for effecting compliance. (b) Foreign government information 1302.9 Hearings. shall retain its original classification 1302.10 Decisions and notices. markings or be marked and classified 1302.11 Judicial review. at a U.S. classification level that pro- 1302.12 Effect on other regulations; super- vides a degree of protection at least vision and coordination. equivalent to that required by the enti- APPENDIX A TO PART 1302—FEDERAL FINAN- ty that furnished the information. For- CIAL ASSISTANCE TO WHICH THESE REGU- eign government information retaining LATIONS APPLY its original classification markings AUTHORITY: TVA Act, 48 Stat. 58 (1933) as need not be assigned a U.S. classifica- amended, 16 U.S.C. 831–831dd, and sec. 602 of tion marking provided the responsible the Civil Rights Act of 1964, 78 Stat. 252, 42 agency determines that the foreign U.S.C. 2000d–1. government markings are adequate to SOURCE: 30 FR 311, Jan. 9, 1965, unless oth- meet the purposes served by U.S. clas- erwise noted. Redesignated at 44 FR 30682, sification markings. May 29, 1979. (c) Information assigned a level of classification under predecessor execu- § 1302.1 Purpose. tive orders shall be considered as clas- The purpose of this part is to effec- sified at that level of classification. tuate the provisions of Title VI of the Civil Rights Act 1964 (hereafter re- § 1301.69 Safeguarding classified infor- ferred to as the ‘‘Act’’) to the end that mation. no person in the United States shall, (a) All classified information shall be on the ground of race, color, or na- afforded a level of protection against tional origin, be excluded from partici- unauthorized disclosure commensurate pation in, be denied the benefits of, or with its level of classification. be otherwise subjected to discrimina- (b) The Executive Order and the In- tion under any program or activity re- formation Security Oversight Office ceiving financial assistance from TVA. implementing directive provides information on the protection of classified § 1302.2 Application of this part. information. Specific controls on the This part applies to any program for use, processing, storage, reproduction, which financial assistance is provided and transmittal of classified informa- by TVA. The types of Federal financial tion within TVA to provide protection assistance to which this part applies for such information and to prevent ac- are listed in appendix A of this part. cess by unauthorized persons are con- Financial assistance, as used in this tained in internal TVA procedures. part, includes the grant or loan of (c) Any person who discovers or be- money; the donation of real or personal lieves that a classified document is lost property; the sale, lease, or license of or compromised shall immediately re- real or personal property for a consid- port the circumstances to their super- eration which is nominal or reduced for visor and the Senior Agency Official, the purpose of assisting the recipient; who shall conduct an immediate in- the waiver of charges which would nor- quiry into the matter. mally be made, in order to assist the

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recipient; the entry into a contract through (4) of this section, any part of where a purpose is to give financial as- which is extended Federal financial assistance to the contracting party; and sistance: similar transactions. This part does (1)(i) A department, agency, special not apply to: purpose district, or other instrumen- (a) Any financial assistance by way tality of a State or of a local govern- of insurance or guaranty contracts, ment; or (b) Money paid, property transferred, (ii) The entity of such State or local or other assistance extended before the government that distributes such as- effective date of this part, sistance and each such department or (c) Any assistance to any individual agency (and each other State or local who is the ultimate beneficiary, or government entity) to which the as- (d) Any employment practice, under sistance is extended, in the case of as- any such program, of any employer, sistance to a State or local govern- employment agency, or labor organiza- ment; tion, unless such practice exists in a program where a primary objective of (2)(i) A college, university, or other the TVA financial assistance is to pro- postsecondary institution, or a public vide employment; or where such prac- system of higher education; or tice subjects persons to discrimination (ii) A local educational agency (as de- in the provision of services and benefits fined in 20 U.S.C. 7801), system of voca- on the grounds of race, color, or national education, or other school sys- tional origin in a program or activity tem; receiving Federal financial assistance (3)(i) An entire corporation, partner- from TVA. ship, or other private organization, or The fact that a type of Federal finan- an entire sole proprietorship— cial assistance is not listed in appendix (A) If assistance is extended to such A shall not mean, if Title VI of the Act corporation, partnership, private orga- is otherwise applicable, that a program nization, or sole proprietorship as a is not covered. Other types of Federal whole; or financial assistance may be added to (B) Which is principally engaged in this list by notice published in the the business of providing education, FEDERAL REGISTER. health care, housing, social services, or [30 FR 311, Jan. 9, 1965. Redesignated at 44 parks and recreation; or FR 30682, May 29, 1979, and amended at 49 FR (ii) The entire plant or other com- 20481, May 15, 1984; 68 FR 51355, Aug. 26, 2003] parable, geographically separate facility to which Federal financial assist- § 1302.3 Definitions. ance is extended, in the case of any (a) TVA as used in these regulations, other corporation, partnership, private refers to the Tennessee Valley Author- organization, or sole proprietorship; or ity, as created by the Tennessee Valley (4) Any other entity which is estab- Authority Act of 1933, 48 Stat. 58, as lished by two or more of the entities amended, 16 U.S.C. 831–831dd. See also described in paragraph (e)(1), (2), or (3) paragraph (e) of § 1302.6. of this section. (b) Recipient refers to any person, group, or other entity which either re- [49 FR 20481, May 15, 1984; 49 FR 47383, Dec. 4, ceives financial assistance from TVA, 1984, as amended at 68 FR 51355, Aug. 26, 2003] or which has been denied such assist- § 1302.4 Discrimination prohibited. ance. (c) Assistant Attorney General refers to (a) General. No person in the United the Assistant Attorney General, Civil States shall, on the ground of race, Rights Division, Department of Jus- color, or national origin, be excluded tice. from participation in, be denied the (d) Title VI refers to Title VI of the benefits of, or be otherwise subjected Civil Rights Act of 1964, 42 U.S.C. 2000d, to discrimination under any program et seq. or activity receiving Federal financial (e) Program or activity and program assistance from TVA. For the purposes refer to all of the operations of any en- of this part, the following definitions of tity described in paragraphs (e)(1) race and ethnic group apply:

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(1) Black, not of Hispanic origin. A per- provided under the program has been son having origins in any of the black satisfied. racial groups of Africa; (vi) Deny an individual an oppor- (2) Hispanic. A person of Mexican, tunity to participate in the program Puerto Rican, Cuban, Central or South through the provision of services or American, or other Spanish culture or otherwise or afford that individual an origin, regardless of race; opportunity to do so which is different (3) Asian or Pacific Islander. A person from that afforded others under the having origin in any of the original program. peoples of the Far East, Southeast (2) A recipient, in determining the Asia, the Indian Subcontinent, or the types of services, financial aid, or other Pacific Islands. This area includes, for benefits, or facilities which will be pro- example, China, Japan, Korea, the vided under any such program, or the Philippine Islands, and Samoa; class of individuals to whom, or the sit- (4) American Indian or Alaskan Native. uations in which, such services, finan- A person having origins in any of the cial aid, other benefits, or facilities original peoples of North America, and will be provided under any such pro- who maintains cultural identification gram, or the class of individuals to be through tribal affiliation or commu- afforded an opportunity to participate nity recognition; in any such program, may not, directly (5) White, not of Hispanic origin. A per- or through contractual or other ar- son having origins in any of the origi- rangements, utilize criteria or methods nal peoples of Europe, North Africa, or of administration which have the effect the Middle East. of subjecting individuals to discrimina- Additional subcategories based on nation because of their race, color, or national origin or primary language spo- tional origin, or have the effect of de- ken may be used where appropriate. feating or substantially impairing ac- (b) Specific discriminatory actions pro- complishment of the objectives of the hibited. (1) A recipient receiving Fed- program as respect individuals of a par- eral financial assistance from TVA ticular race, color, or national origin. may not, directly or through contrac- (3) In determining the site or loca- tual or other arrangements, on ground tion of facilities, a recipient may not of race, color, or national origin: make selections with the purpose or ef- (i) Deny an individual any service, fi- fect of excluding individuals from, de- nancial aid, or other benefit provided nying them the benefits of, or sub- under the program; jecting them to discrimination under (ii) Provide any service, financial aid any program to which this regulation or other benefit to an individual which applies, on the grounds of race, color, is different, or is provided in a different or national origin; or with the purpose manner, from that provided to others or effect of defeating or substantially under the program; impairing the accomplishment of the (iii) Subject an individual to segrega- objectives of the Act or this regulation. tion or separate treatment in any man- (4) As used in this section the serv- ner related to that individual’s receipt ices, financial aid, or other benefits of any service, financial aid, or other provided under a program receiving fi- benefit under the program; nancial assistance shall be deemed to (iv) Restrict an individual in any way include any service, financial aid, or in the enjoyment of any advantage or other benefit provided in or through a privilege enjoyed by others receiving facility provided with the aid of the fi- any service, financial aid, or other ben- nancial assistance. efit under the program; (5) The enumeration of specific forms (v) Treat an individual differently of prohibited discrimination in this from others in determining whether paragraph does not limit the generality any admission, enrollment, quota, eli- of the prohibition in paragraph (a) of gibility, membership, or other require- this section. ment or condition which individuals (6) This regulation does not prohibit must meet in order to be provided any the consideration of race, color, or na- service, financial aid, or other benefit tional origin if the purpose and effect

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are to remove or overcome the con- terests therein, which is acquired with sequences of practices or impediments Federal financial assistance, or in the which have restricted the availability case where Federal financial assistance of, or participation in, the program or is provided in the form of a transfer by activity receiving Federal financial as- TVA of real property or interest there- sistance, on the grounds of race, color, in, the instrument effecting or record- or national origin. Where previous dis- ing the transfer of title shall contain a criminatory practice or usage tends, on covenant running with the land assur- the grounds of race, color, or national ing nondiscrimination for the period origin, to exclude individuals from par- during which the real property is used ticipation in, to deny them the benefits for a purpose for which the Federal fi- of, or to subject them to discrimina- nancial assistance is extended or for tion under any program or activity to another purpose involving the provi- which this regulation applies, the re- sion of similar services or benefits. cipient has an obligation to take rea- Where no transfer of property is in- sonable action to remove or overcome volved, but property is improved with the consequences of the prior discrimi- Federal financial assistance, the recipi- natory practice or usage, and to accomplish the purposes of the Act. ent shall agree to include such a covenant in any subsequent transfer of [30 FR 311, Jan. 9, 1965, as amended at 38 FR such property. Where the property is 17944, July 5, 1973. Redesignated at 44 FR obtained by transfer from TVA, the 30682, May 29, 1979. Redesignated and amended at 49 FR 20481, May 15, 1984; 68 FR 51355, covenant against discrimination may Aug. 26, 2003] also include a condition coupled with a right to be reserved by TVA to revert § 1302.5 Assurances required. title to the property in the event of a (a) TVA contributes financial assist- breach of the covenant where, in the ance only under agreements which con- discretion of TVA, such a condition tain a provision which specifically re- and right of reverter is appropriate to quires compliance with this part in the statute under which the real prop- programs or activities receiving Fed- erty is obtained and to the nature of eral financial assistance from TVA. If the grant and the grantee. In such the financial assistance involves the event if a transferee of real property furnishing of real property, the agree- proposes to mortgage or otherwise en- ment shall obligate the recipient, or in cumber the real property as security the case of a subsequent transfer, the for financing construction of new, or transferee, for the period during which improvement of existing, facilities on the real property is used for a purpose such property for the purposes for for which the financial assistance is ex- which the property was transferred, tended or for another purpose involving TVA may agree, upon request of the the provision of similar services or transferee and if necessary to accom- benefits. Where the financial assist- plish such financing, and upon such ance involves the furnishing of per- conditions as it deems appropriate, to sonal property, the agreement shall ob- forbear the exercise of such right to re- ligate the recipient for the period dur- vert title for so long as the lien of such ing which the recipient retains owner- mortgage or other encumbrance re- ship or possession of the property. In mains effective. all other cases the agreement shall obligate the recipient for the period dur- [30 FR 311, Jan. 9, 1965, as amended at 38 FR ing which financial assistance is ex- 17944, July 5, 1973. Redesignated at 44 FR tended pursuant to the agreement. 30682, May 29, 1979. Redesignated and amend- TVA shall specify the form of the fore- ed at 49 FR 20481, May 15, 1984; 68 FR 51355, going agreements, and the extent to Aug. 26, 2003] which an agreement shall be applicable § 1302.6 Compliance information. to subgrantees, contractors and subcontractors, transferees, successors in (a) Cooperation and assistance. TVA interest, and other participants. shall to the fullest extent practicable (b) In the case of real property, struc- seek the cooperation of recipients in tures or improvements thereon, or in- obtaining compliance with this part

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and shall provide assistance and guid- § 1302.7 Compliance reviews and con- ance to recipients to help them comply duct of investigations. voluntarily with this part. (a) Preaward compliance reviews. (1) (b) Compliance reports. Each recipient Prior to approval of financial assist- shall keep such records and submit to ance, TVA will make a determination TVA timely, complete and accurate as to whether the proposed recipient is compliance reports at such times, and in compliance with Title VI and the re- in such form and containing such infor- quirements of this part with respect to mation, as TVA may determined to be a program or activity for which it is necessary to enable it to ascertain seeking Federal financial assistance whether the recipient has complied or from TVA. The basis for such a deter- is complying with this part. In the case mination shall be submission of an as- in which a primary recipient extends surance of compliance and a review of Federal financial assistance to any the data and information submitted by other recipient, such other recipient the proposed recipient, any relevant shall also submit such compliance re- compliance review reports on file with TVA, and any other information avail- ports to the primary recipient as may able to TVA. Where a determination be necessary to enable the primary re- cannot be made from this data, TVA cipient to carry out its obligations will require the submission of nec- under this part. essary additional information and may (c) Access to sources of information. take additional steps. Such additional Each recipient shall permit access by steps may include, for example, com- TVA during normal business hours to municating with local government offi- such of its books, records, accounts, cials, protected class organizations, and other sources of information, and and onsite reviews. its facilities as may be pertinent to as- (2) No proposed recipient shall be ap- certain compliance with this part. proved unless it is determined that the Where any information required of a proposed recipient is in compliance recipient is in the exclusive possession with Title VI and this part or has of any other agency, institution or per- agreed in writing to take necessary son and this agency, institution or per- specified steps within a stated period of son shall fail or refuse to furnish this time to come into compliance with information, the recipient shall so cer- Title VI and this part. Such an agree- tify in its report and shall set forth ment must be approved by TVA and what efforts it has made to obtain the made a part of the conditions of the information. agreement under which the financial (d) Information to beneficiaries and assistance is provided. participants. Each recipient shall make (3)(i) Where TVA finds that a pro- available to participants, beneficiaries, posed recipient may not be in compli- and other interested persons such in- ance with Title VI and this part, TVA formation regarding the provisions of shall notify the proposed recipient and this part and its applicability to the the Assistant Attorney General for program for which the recipient re- Civil Rights in writing of: ceives financial assistance, and make (A) The preliminary findings setting such information available to them in forth the alleged noncompliance; (B) Suggested actions for correcting such manner as TVA finds necessary to the alleged noncompliance; and apprise such persons of the protections (C) The fact that the proposed recipi- against discrimination assured them ent has 10 days to correct the alleged by the Act and this part. noncompliance or to provide during (Information collection requirements ap- this time a written submission re- pearing in § 1302.6 were approved by the Of- sponding to or rebutting the prelimi- fice of Management and Budget under con- nary findings or suggested corrective trol number 3316–0077) actions set forth in the notice. [30 FR 311, Jan. 9, 1965. Redesignated at 44 (ii) If within this 10-day period the FR 30682, May 29, 1979. Redesignated at 49 FR proposed recipient has not agreed to 20481, May 15, 1984, and amended at 51 FR the suggested actions set forth or to 9649, Mar. 20, 1986; 68 FR 51355, Aug. 26, 2003] other actions that would correct the

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alleged noncompliance under para- (4) Within 180 days of initiation of a graph (a)(3)(i)(B) of this section, or the review, TVA shall advise the recipient, preliminary findings set forth in para- in writing of: graph (a)(3)(i)(A) of this section have (i) Its preliminary findings; not been rebutted to TVA’s satisfac- (ii) Where appropriate, recommendation, or voluntary compliance has not tions for achieving voluntary compli- been otherwise secured, TVA shall ance; make a formal determination of com- (iii) The opportunity to request TVA pliance or noncompliance, notify the to engage in voluntary compliance ne- proposed recipient, and the Assistant gotiations prior to TVA’s final deter- Attorney General for Civil Rights and mination of compliance or noncompli- institute proceedings (including provi- ance. TVA shall notify the Assistant sion of an opportunity for a hearing) Attorney General at the time it noti- under § 1302.8 of this part. fies the recipient of any matter where (b) Postaward compliance reviews. (1) recommendations for achieving vol- TVA may periodically conduct compli- untary compliance are made. ance reviews of selected recipients in (5) TVA’s General Manager may ex- their programs or activities receiving tend the 180-day period set out in para- TVA financial assistance, including the graph (b)(4) of this section for good request of data and information, and cause shown. may conduct onsite reviews where it (6) If, within 50 days of the recipient’s has reason to believe that discrimina- notification under paragraph (b)(4) of tion may be occurring in such pro- this section, TVA’s recommendations grams or activities. for compliance are not met or vol- (2) Selection for review shall be made untary compliance is not secured, and on the basis of the following criteria the preliminary findings have not been among others: rebutted to TVA’s satisfaction, TVA (i) The number and nature of dis- shall make a final determination of crimination complaints filed against a compliance or noncompliance. The de- recipient with TVA or other Federal termination is to be made no later agencies; than 14 days after the conclusion of the (ii) The scope of the problem revealed 50-day negotiation period. TVA’s Gen- by an investigation commenced on the eral Manager may extend the 14-day basis of a complaint filed with TVA period for good cause shown. against a recipient; and (7) Where TVA makes a formal deter- (iii) The amount of assistance pro- mination of noncompliance on a vided to the recipient. postaward review, the recipient and the (3) Within 15 days after selection of a Assistant Attorney General shall be recipient for review, TVA shall inform immediately notified in writing of the the recipient that it has been selected determination and of the fact that the for review. The review will ordinarily recipient has an additional 10 days in be initiated by a letter requesting data which to come into voluntary compli- pertinent to the review and advising ance. If voluntary compliance has not the recipient of: been achieved within the 10 days, TVA (i) The practices to be reviewed; shall institute proceedings under (ii) The programs or activities af- § 1302.8 of this part. fected by the review; (8) All agreements to come into vol- (iii) The opportunity to make, at any untary compliance shall be in writing time prior to receipt of the final TVA and signed by TVA and an official who findings with respect to the review pur- has authority to legally bind the re- suant to paragraph (b)(6) of this sec- cipient. tion, a documentary submission re- (c) Complaint investigation. (1) TVA sponding to TVA which explains, vali- shall investigate complaints of dis- dates, or otherwise addresses the prac- crimination in a program or activity tices under review; and receiving Federal financial assistance (iv) The schedule under which the re- from TVA that allege a violation of view will be conducted and a deter- Title VI or this part. mination of compliance or noncompli- (2) No complaint will be investigated ance made. if it is received by TVA more than 180

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days after the date of the alleged dis- Attorney General at the time the re- crimination unless the time for filing cipient is notified of any matter where is extended by TVA for good cause recommendations for achieving vol- shown. Where a complaint is accepted untary compliance are made. for investigation, TVA will initiate an (4) If, within 50 days of the recipient’s investigation. The complainant shall notification under paragraph (c) of this be notified in writing as to whether the section, TVA’s recommendations for complaint has been accepted or re- compliance are not met, or voluntary jected. compliance is not secured, and the pre- (3) TVA shall conduct investigations liminary findings have not been rebut- of complaints as follows: ted to TVA’s satisfaction, TVA shall (i) Within 10 days of receipt of a com- make a formal determination of complaint, the Director of Equal Oppor- pliance or noncompliance. The deter- tunity Compliance shall: mination is to be made no later than 14 (A) Determine whether TVA has ju- days after conclusion of a 50-day nego- risdiction under paragraphs (c) (1) and tiation period. TVA’s General Manager (2) of this section; may extend the 14-day period for good (B) If jurisdiction is not found, wher- cause shown. ever possible refer the complaint to the (5) Where TVA makes a formal deter- Federal agency with such jurisdiction mination of noncompliance, the com- and advise the complainant; plainant, the recipient, and the Assist- (C) If jurisdiction is found, notify the ant Attorney General shall be imme- recipient alleged to be in violation of diately notified in writing of the deter- the receipt and acceptance of the com- mination and of the fact that the re- plaint; and cipient has an additional 10 days in (D) Initiate the investigation. which to come into compliance. If vol- (ii) The investigation will ordinarily untary compliance has not been be initiated by a letter to the recipient achieved within the 10 days, TVA shall requesting data pertinent to the com- institute proceedings under § 1302.8 of plaint and informing the recipient of: this part. The complainant shall also (A) The nature of the complaint, and be notified of any action taken includ- with the written consent of the coming the closing of the complaint or the plainant, the identity of the complain- achievement of voluntary compliance. ant; All agreements to come into voluntary (B) The programs or activities af- compliance shall be in writing and fected by the complaint; signed by TVA and an official who has (C) The opportunity to make, at any authority to legally bind the recipient time prior to receipt of TVA’s final and shall be made available to the findings under paragraph (c)(5) of this complainant on request. section, a documentary submission, re- (6) If the complainant or party other sponding to, rebutting, or denying the than TVA has filed suit in Federal or allegations made in the complaint; and State court alleging the same discrimi- (D) The schedule under which the nation as alleged in a complaint pend- complaint will be investigated and a ing before TVA, and if during TVA’s in- determination of compliance or non- vestigation the trial of that suit would compliance made. be in progress, TVA will consult with (iii) Within 180 days of the initiation the Assistant Attorney General and of a complaint investigation, TVA court records to determine the need to shall advise the recipient, in writing, continue or suspend the investigation of: and will monitor the litigation through (A) Preliminary findings; the court docket and contacts with the (B) Where appropriate, recommenda- complainant. Upon receipt of notice tions for achieving voluntary compli- that the court has made a finding of ance; and discrimination against a recipient that (C) The opportunity to request TVA would constitute a violation of this to engage in voluntary compliance ne- part, TVA shall institute proceedings gotiations prior to TVA’s final deter- as specified in § 1302.8 of this part. All mination of compliance or noncompli- agreements to come into voluntary ance. TVA shall notify the Assistant compliance shall be in writing and

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signed by TVA and an official who has nation of or refusal to grant or to con- authority to legally bind the recipient. tinue financial assistance or by any (7) The time limits listed in para- other means authorized by law. Such graphs (c) (3) through (5) of this section other means may include, but are not shall be appropriately adjusted where limited to, TVA requests another Federal agency (1) A reference to the Department of to act on the complaint. TVA shall Justice with a recommendation that monitor the progress of the matter appropriate proceedings be brought to through liaison with the other agency. enforce any rights of the United States Where the request to act does not re- under any law of the United States (in- sult in timely resolution of the matter, cluding other titles of the Act), TVA shall institute appropriate pro- (2) Institution of appropriate proceedings as required by this part. ceedings by TVA to enforce the provi- (d) Intimidatory or retaliatory acts pro- sions of the agreement of financial as- hibited. No recipient or other person sistance or of any deed or instrument shall intimidate, threaten, coerce, or relating thereto, and discriminate against any individual for (3) Any applicable proceeding under the purpose of interfering with any State or local law. right or privilege secured by section 601 The Assistant Attorney General, Civil of Title VI or this part, or because such Rights Division, Department of Jus- individual has made a complaint, testi- tice, will be notified of all findings of fied, assisted, or participated in any probable noncompliance at the same manner in an investigation, pro- time the recipient or applicant is noti- ceeding, or hearing under this part. fied. The identity of complainants shall be (b) Noncompliance with § 1302.5. If any- kept confidential except to the extent one requesting financial assistance de- necessary to carry out the purposes of clines to furnish the assurance required this regulation, including the conduct under § 1302.5 of this part, or otherwise of any investigation, hearing, or judi- fails or refuses to comply with a re- cial proceeding arising thereunder. quirement imposed by or pursuant to (e) Enforcement authority. TVA’s Di- that section, financial assistance may rector of Equal Opportunity Compli- be refused in accordance with the pro- ance, or a successor as designated by cedures of paragraph (c) of this section TVA’s Board of Directors, will be re- and for such purposes, the term ‘‘responsible for all decisions about initi- cipient’’ shall be deemed to include one ating compliance reviews and com- which has been denied financial assist- plaint investigations. TVA’s General ance. TVA shall not be required to pro- Manager, or a successor as designated vide assistance in such a case during by TVA’s Board of Directors, shall be the pendency of the administrative responsible for all decisions about ini- proceedings under such paragraph ex- tiating compliance actions under cept that TVA shall continue assist- § 1302.8(a) of this part. ance during the pendency of such pro- (Information collection requirements ap- ceedings where such assistance is due pearing in § 1302.7 were approved by the Of- and payable pursuant to an agreement fice of Management and Budget under con- therefor entered into with TVA prior trol number 3316–0077) to the effective date of this part. [49 FR 20481, May 15, 1984, as amended at 49 (c) Termination of or refusal to grant or FR 47383, Dec. 4, 1984; 51 FR 9649, Mar. 20, to continue financial assistance. No order 1986; 68 FR 51355, Aug. 26, 2003] suspending, terminating or refusing to grant or continue financial assistance § 1302.8 Procedure for effecting com- shall become effective until (1) TVA pliance. has advised the recipient of his failure (a) General. If there appears to be a to comply and has determined that failure or threatened failure to comply compliance cannot be secured by vol- with this part, and if the noncompli- untary means, (2) there has been an ex- ance or threatened noncompliance can- press finding on the record, after op- not be corrected by informal means, portunity for hearing, or a failure by compliance with this regulation may the recipient to comply with a require- be effected by the suspension or termi- ment imposed by or pursuant to this

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part, (3) the action has been approved recipient that the matter in question by the TVA Board pursuant to § 1302.9, has been set down for hearing at a stat- and (4) the expiration of 30 days after ed time and place. The time and place the TVA Board has filed with the com- so fixed shall be reasonable and shall mittee of the House and the committee be subject to change for cause. The of the Senate having legislative juris- complainant, if any, shall be advised of diction over the program involved, a the time and place of the hearing. A re- full written report of the cir- cipient may waive a hearing and sub- cumstances and the grounds for such mit written information and argument action. Any action to suspend or termi- for the record. The failure of a recipi- nate or to refuse to grant or to con- ent to request a hearing under this sub- tinue financial assistance shall be lim- section or to appear at a hearing for ited to the particular political entity, which a date has been set shall be or part thereof, or recipient as to deemed to be a waiver of the right to a whom such a finding has been made hearing under section 602 of the Act and shall be limited in its effect to the and § 1302.7(b) and consent to the mak- particular program, or part thereof, in ing of a decision on the basis of such which such noncompliance has been so information as is available. found. (b) Time and place of hearing. Hear- (d) Other means authorized by law. No ings shall be held at the time and place action to effect compliance by any fixed by TVA unless it determines that other means authorized by law shall be the convenience of the recipient re- taken until (1) TVA has determined quires that another place be selected. that compliance cannot be secured by Hearings shall be held before the TVA voluntary means, (2) the recipient or Board, or a member thereof, or, at the other person has been notified of its discretion of the Board, before a hear- failure to comply and of the action to ing examiner designated in accordance be taken to effect compliance, and (3) with section 11 of the Administrative the expiration of at least 10 days from Procedure Act. the mailing of such notice to the re- (c) Right to counsel. In all proceedings cipient or other person. During this pe- under this section, the recipient and riod of at least 10 days additional ef- TVA shall have the right to be rep- forts shall be made to persuade the re- resented by counsel. cipient or other person to comply with (d) Procedures, evidence, and record. (1) the regulation and to take such correc- The hearing, decision, and any admin- tive action as may be appropriate. istrative review thereof shall be con- [30 FR 311, Jan. 9, 1965, as amended at 38 FR ducted in conformity with the proce- 17945, July 5, 1973. Redesignated at 44 FR dures contained in 5 U.S.C. 554–557 (sec- 30682, May 29, 1979. Redesignated and amend- tions 5–8 of the Administrative Proce- ed at 49 FR 20483, May 15, 1984; 49 FR 47384, dure Act) and in accordance with such Dec. 4, 1984] rules of procedure as are proper (and not inconsistent with this section) re- § 1302.9 Hearings. lating to the conduct of the hearing, (a) Opportunity for hearing. Whenever giving of notices subsequent to those an opportunity for a hearing is re- provided for in paragraph (a) of this quired by § 1302.7(b), reasonable notice section, taking of testimony, exhibits, shall be given by registered or certified arguments and briefs, requests for find- mail, return receipt requested, to the ings, and other related matters. Both affected recipient. This notice shall ad- TVA and the recipient shall be entitled vise the recipient of the action pro- to introduce all relevant evidence on posed to be taken, the specific provi- the issues as stated in the notice for sion under which the proposed action hearing or as determined by the officer against it is to be taken, and the mat- conducting the hearing at the outset of ters of fact or law asserted as the basis or during the hearing. for this action, and either (1) fix a date (2) Technical rules of evidence shall not less than 20 days after the date of not apply to hearings conducted pursu- such notice within which the recipient ant to this part, but rules or principles may request of TVA that the matter be designed to assure production of the scheduled for hearing or (2) advise the most credible evidence available and to

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subject testimony to test by cross-ex- tions to the initial decision, together amination shall be applied where rea- with a statement of reasons therefor. sonably necessary by the officer con- Such exceptions and statement shall be ducting the hearing. The hearing offi- filed with the TVA Board within 30 cer may exclude irrelevant, immate- days of the date the notice of initial rial, or unduly repetitious evidence. All decision was mailed to the recipient. In documents and other evidence offered the absence of exceptions, the TVA or taken for the record shall be open to Board may on its own motion within 45 examination by the parties and oppor- days after the initial decision serve on tunity shall be given to refute facts the recipient a notice that the TVA and arguments advanced on either side Board will review the decision. Upon of the issues. A transcript shall be the filing of such exceptions or of such made of the oral evidence except to the notice of review, the TVA Board shall extent the substance thereof is stipu- review the initial decision and issue its lated for the record. All decisions shall own decision thereon including the rea- be based upon the hearing record and sons therefor. In the absence of either written findings shall be made. exceptions or a notice of review, the (e) Consolidated or Joint Hearings. In initial decision shall constitute the cases in which the same or related final decision of the TVA Board. facts are asserted to constitute non- (b) Decisions on record or review by the compliance with this part with respect TVA Board. Whenever a record is cer- to two or more Federal statutes, au- tified to the TVA Board for decision or thorities, or other means by which it reviews the decision of a member of Federal financial assistance is ex- the TVA Board or a hearing examiner tended and to which this part applies, pursuant to paragraph (a) of this sec- or noncompliance with this part and tion, or whenever the TVA Board con- the regulations of one or more other ducts the hearing, the recipient shall Federal departments or agencies issued be given reasonable opportunity to file under Title VI of the Act, the TVA with the Board briefs or other written Board may, by agreement with such statements of its contentions, and a other departments or agencies where copy of the final decision of the Board applicable, provide for the conduct of shall be given in writing to the recipi- consolidated or joint hearings, and for ent and to the complainant, if any. the application to such hearings of (c) Decisions on record where a hearing rules of procedure not inconsistent is waived. Whenever a hearing is waived with this part. Final decisions in such pursuant to § 1302.8(a) a decision shall cases, insofar as this part is concerned, be made by the TVA Board on the shall be made in accordance with record and a copy of such decision shall § 1302.9. be given to the recipient, and to the [30 FR 311, Jan. 9, 1965, as amended at 38 FR complainant, if any. 17945, July 5, 1973. Redesignated at 44 FR (d) Rulings required. Each decision 30682, May 29, 1979, and 49 FR 20483, May 15, shall set forth a ruling on each finding, 1984; 68 FR 51355, Aug. 26, 2003] conclusion, or exception presented, and shall identify the requirement or re- § 1302.10 Decisions and notices. quirements imposed by or pursuant to (a) Decision by a member of the TVA this part with which it is found that Board or a hearing examiner. A member the recipient has failed to comply. of the TVA Board or a hearing exam- (e) Approval by TVA Board. Any final iner who holds the hearing shall either decision (other than a decision by the make an initial decision or certify the TVA Board) which provides for the sus- entire record, including the Board pension or termination of, or the re- member’s or examiner’s recommended fusal to grant or continue financial as- findings and proposed decision, to the sistance, or the imposition of any other TVA Board for a final decision. A copy sanction available under this regula- of such initial decision or certification tion or the Act, shall promptly be shall be mailed to the recipient. Where transmitted to the TVA Board, which the initial decision is made by a mem- may approve such decision, may vacate ber of the TVA Board or a hearing ex- it, or remit or mitigate any sanction aminer, the recipient may file excep- imposed.

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(f) Content of orders. The final deci- the order issued under paragraph (f) of sion may provide for suspension or ter- this section shall remain in effect. mination of, or refusal to grant or con- [30 FR 311, Jan. 9, 1965. Redesignated at 44 tinue financial assistance, in whole or FR 30682, May 29, 1979. Redesignated and in part, to which this regulation ap- amended at 45 FR 20483, May 15, 1983; 68 FR plies, and may contain such terms, 51355, Aug. 26, 2003] conditions, and other provisions as are consistent with and will effectuate the § 1302.11 Judicial review. purposes of the Act and this part, in- Action taken pursuant to section 602 cluding provisions designed to assure of the Act is subject to judicial review that no financial assistance to which as provided in section 603 of the Act. this regulation applies will thereafter be extended to the recipient deter- [30 FR 311, Jan. 9, 1965. Redesignated at 44 FR 30682, May 29, 1979, and 49 FR 47384, Dec. mined by such decision to have failed 4, 1984] to comply with this part, unless and until it corrects its noncompliance and § 1302.12 Effect on other regulations; satisfies TVA that it will fully comply supervision and coordination. with this part. (a) Effect on other regulations. All reg- (g) Posttermination proceedings. (1) A ulations, orders, or like directions recipient adversely affected by an heretofore issued by TVA which impose order issued under paragraph (f) of this requirements designed to prohibit any section shall be restored to full eligi- discrimination against individuals on bility to receive Federal financial as- the ground of race, color, or national sistance if it satisfies the terms and origin to which this regulation applies, conditions of that order for such eligi- and which authorize the suspension or bility or if it brings itself into compli- termination of or refusal to grant or to ance with this regulation and provides continue financial assistance to any re- reasonable assurance that it will fully cipient of such assistance under such comply with this regulation. program for failure to comply with (2) Any recipient or proposed recipi- such requirements, are hereby super- ent adversely affected by an order en- seded to the extent that such discrimi- tered pursuant to paragraph (f) of this nation is prohibited by this part, ex- section may at any time request TVA cept that nothing in this part shall be to restore fully the recipient’s eligi- deemed to relieve any person of any ob- bility to receive Federal financial as- ligation assumed or imposed under any sistance. Any such request shall be such superseded regulation, order, in- supported by information showing that struction, or like direction prior to the the recipient has met the requirements effective date of this part. Nothing in of paragraph (g)(1) of this section. If this part, however, shall be deemed to TVA determines that those require- supersede any of the following (includ- ments have been satisfied, TVA shall ing future amendments thereof): restore such eligibility. (1) Executive Order 12250 and regula- (3) If TVA denies any such request, tions issued thereunder, or the recipient may submit a written re- (2) Any other regulations or instruc- quest for a hearing specifying why it tions, insofar as they prohibit discrimi- believes TVA to have been in error. nation on the ground of race, color, or The recipient shall thereupon be given national origin in any program or situ- an expeditious hearing, with a decision ation to which this regulation is inap- on the record, in accordance with rules plicable, or prohibit discrimination on any other ground. of procedure issued by TVA. The recipient will be restored to such eligibility (b) Supervision and coordination. TVA may from time to time assign to offi- if the recipient proves at such a hear- cials of other departments or agencies ing that it satisfied the requirements of the Government with the consent of of paragraph (g)(1) of this section. such departments or agencies, respon- While proceedings under this paragraph sibilities in connection with the effec- are pending, the sanctions imposed by tuation of the purposes of Title VI of

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the Act and this part (other than re- Subpart B—Tobacco Products sponsibility for final decision as pro- 1303.2 Definition. vided in § 1302.9), including the achieve- 1303.3 Prohibition on tobacco products. ment of effective coordination and maximum uniformity within the Exec- AUTHORITY: 16 U.S.C. 831–831dd. utive Branch of the Government in the SOURCE: 61 FR 6110, Feb. 16, 1996, unless application of Title VI and this part to otherwise noted. similar programs and in similar situations. Any action taken, determination Subpart A—General Information made, or requirement imposed by an official of another department or agen- § 1303.1 Applicability. cy acting pursuant to an assignment of This part sets out certain regulations responsibility under this subsection applicable to buildings, structures, and shall have the same effect as though other property under TVA control. such action had been taken by TVA. [38 FR 17945, July 5, 1973. Redesignated at 44 Subpart B—Tobacco Products FR 30682, May 29, 1979. Redesignated and amended at 49 FR 20484, May 15, 1984; 68 FR § 1303.2 Definition. 51355, Aug. 26, 2003] Tobacco product means cigarettes, cigars, little cigars, pipe tobacco, smoke- APPENDIX A TO PART 1302—FEDERAL FI- less tobacco, snuff, and chewing to- NANCIAL ASSISTANCE TO WHICH bacco. THESE REGULATIONS APPLY [61 FR 6110, Feb. 16, 1996; 61 FR 54849, Oct. 22, 1. Transfers, leases and licenses of real 1996] property for nominal consideration to states, counties, municipalities, and other public § 1303.3 Prohibition on tobacco prod- agencies for development for public recre- ucts. ation. (a) Sale of tobacco products by vend- 2. Furnishing funds, property and services ing machine on TVA property is pro- to state agencies, local governments and cit- hibited. Tobacco product vending ma- izen organizations to advance economic chines already in place on TVA prop- growth in watersheds of Tennessee River erty as of November 15, 1995, may con- tributaries through cooperative resource de- tinue in operation for one year from velopment programs. February 16, 1996 while TVA completes 3. Furnishing funds, property and services review of whether such machines to land grant colleges for use in a cooperative program utilizing test-demonstration should be exempted under paragraph farms to test experimental fertilizers devel- (c) of this section. oped by TVA and to educate farmers and (b) Distribution of free samples of to- other interested persons concerning these bacco products on TVA property is pro- new fertilizers. This program also includes hibited. the furnishing of fertilizers at reduced prices (c) TVA may, as appropriate, des- by TVA, through its fertilizer distributors, ignate areas not subject to this section to such test-demonstration farms. if individuals under the age of 18 are 4. Furnishing space and utilities without not allowed in such areas. charge under agreements with state agencies for use in accordance with the Vending Stands for Blind Act. PART 1304—APPROVAL OF CON- STRUCTION IN THE TENNESSEE [30 FR 311, Jan. 9, 1965, as amended at 38 FR 17945, July 5, 1973. Redesignated at 44 FR RIVER SYSTEM AND REGULATION 30682, May 29, 1979] OF STRUCTURES AND OTHER AL- TERATIONS PART 1303—PROPERTY MANAGEMENT Subpart A—Procedures for Approval of Construction Subpart A—General Information Sec. 1304.1 Scope and intent. Sec. 1304.2 Application. 1303.1 Applicability. 1304.3 Delegation of authority.

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1304.4 Application review and approval proc- 1304.406 Removal of unauthorized, unsafe, ess. and derelict structures or facilities. 1304.5 Conduct of hearings. 1304.407 Development within flood control 1304.6 Appeals. storage zones of TVA reservoirs. 1304.7 Conditions of approvals. 1304.408 Variances. 1304.8 Denials. 1304.409 Indefinite or temporary moorage of 1304.9 Initiation of construction. recreational vessels. 1304.10 Change in ownership of approved fa- 1304.410 Navigation restrictions. cilities or activities. 1304.411 Fish attractor, spawning, and habi- 1304.11 Little Tennessee River; date of for- tat structures. mal submission. 1304.412 Definitions. Subpart B—Regulation of Nonnavigable AUTHORITY: 16 U.S.C. 831–831ee. Houseboats SOURCE: 68 FR 46936, Aug. 7, 2003, unless otherwise noted. 1304.100 Scope and intent. 1304.101 Nonnavigable houseboats. 1304.102 Numbering of nonnavigable house- Subpart A—Procedures for boats and transfer of ownership. Approval of Construction 1304.103 Approval of plans for structural modifications or rebuilding of approved § 1304.1 Scope and intent. nonnavigable houseboats. The Tennessee Valley Authority Act Subpart C—TVA-Owned Residential of 1933 among other things confers on Access Shoreland TVA broad authority related to the unified conservation and development 1304.200 Scope and intent. of the Tennessee River Valley and sur- 1304.201 Applicability. rounding area and directs that prop- 1304.202 General sediment and erosion con- erty in TVA’s custody be used to pro- trol provisions. 1304.203 Vegetation management. mote the Act’s purposes. In particular, 1304.204 Docks, piers, and boathouses. section 26a of the Act requires that 1304.205 Other water-use facilities. TVA’s approval be obtained prior to 1304.206 Requirements for community the construction, operation, or mainte- docks, piers, boathouses, or other water- nance of any dam, appurtenant works, use facilities. or other obstruction affecting naviga- 1304.207 Channel excavation on TVA-owned tion, flood control, or public lands or residential access shoreland. reservations along or in the Tennessee 1304.208 Shoreline stabilization on TVA- owned residential access shoreland. River or any of its tributaries. By way 1304.209 Land-based structures/alterations. of example only, such obstructions 1304.210 Grandfathering of preexisting may include boat docks, piers, boat- shoreland uses and structures. houses, buoys, floats, boat launching 1304.211 Change in ownership of grand- ramps, fills, water intakes, devices for fathered structures or alterations. discharging effluent, bridges, aerial ca- 1304.212 Waivers. bles, culverts, pipelines, fish attractors, shoreline stabilization projects, Subpart D—Activities on TVA Flowage channel excavations, and nonnavigable Easement Shoreland houseboats as defined in § 1304.101. Any 1304.300 Scope and intent. person considering constructing, oper- 1304.301 Utilities. ating, or maintaining any such ob- 1304.302 Vegetation management on flowage struction on a stream in the Tennessee easement shoreland. River Watershed should carefully re- 1304.303 Channel excavation. view the regulations in this part and Subpart E—Miscellaneous the 26a Applicant’s Package before doing so. The regulations also apply to 1304.400 Flotation devices and material, all certain activities on TVA-owned land floating structures. alongside TVA reservoirs and to land 1304.401 Marine sanitation devices. subject to TVA flowage easements. 1304.402 Wastewater outfalls. TVA uses and permits use of the lands 1304.403 Marina sewage pump-out stations and holding tanks. and land rights in its custody alongside 1304.404 Commercial marina harbor limits. and subjacent to TVA reservoirs and 1304.405 Fuel storage tanks and handling fa- exercises its land rights to carry out cilities. the purposes and policies of the Act. In

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addition, the National Environmental pute, TVA may require private parties Policy Act of 1969 (NEPA), as amended, requesting TVA action to grant or re- 42 U.S.C. 4321 et seq., and the Federal voke a TVA permit to obtain a court Water Pollution Control Act Amend- order declaring respective land rights. ments of 1972 (FWPCA), 33 U.S.C. 1251 TVA may exercise its discretion to per- et seq., have declared it to be congres- mit a facility on TVA land that is lo- sional policy that agencies should ad- cated up or downstream from the land minister their statutory authorities so which makes the applicant eligible for as to restore, preserve, and enhance the consideration to receive a permit. quality of the environment and should (b) Applications shall be addressed to cooperate in the control of pollution. It the Tennessee Valley Authority, at one is the intent of the regulations in this of the following Watershed Team loca- part 1304 to carry out the purposes of tions: the Act and other statutes relating to these purposes, and this part shall be (1) P.O. Box 1589, Norris, TN 37828, interpreted and applied to that end. (865) 632–1539, Reservoir: Norris; (2) Suite 300, 804 Highway 321, North, § 1304.2 Application. Lenoir City, TN 37771–6440, (865) 988– (a) If the facility is to be built on 2420, Reservoirs: Ft. Loudoun, Tellico, TVA land, the applicant must, in addi- Fontana; tion to the other requirements of this (3) 221 Old Ranger Road, Murphy, NC part, own the fee interest in or have an 28906, (704) 837–7395, Reservoirs: adequate leasehold or easement inter- Hiwassee, Chatuge, Appalachia, Blue est of sufficient tenure to cover the Ridge, Nottely, Ocoee; normal useful life of the proposed facil- (4) 2611 W. Andrew Johnson Hwy., ity in land immediately adjoining the Morristown, TN 37814–3295, (865) 632– TVA land. If the facility is to be built 3791, Reservoirs: Cherokee, Douglas; on private land, the applicant must (5) P.O. Box 1010, Muscle Shoals, AL own the fee interest in the land or have 35662–1010, (256) 386–2560, Reservoirs: an adequate leasehold or easement in- Tim’s Ford, Normandy, Wheeler, Wil- terest in the property where the facil- son; ity will be located. TVA recognizes, however, that in some cases private (6) 202 West Blythe Street, P.O. Box property has been subdivided in a way 280, Paris, TN 38242, (901) 642–2026, Res- that left an intervening strip of land ervoirs: Kentucky, Beech River; between the upland boundary of a TVA (7) P.O. Box 1010, Muscle Shoals, AL flowage easement and the waters of the 35662–1010, (256) 386–2228, Reservoirs: reservoir, or did not convey to the ad- Pickwick, Bear Creek; joining landowner the land underlying (8) Suite 218, Heritage Federal Bank the waters of the reservoir. In some of Building, 4105 Fort Henry Drive, Kings- these situations, the owner of the in- port, TN 37662, (423) 239–2000, Res- tervening strip or underlying land can- ervoirs: Boone, Watauga, Wilbur, Fort not be identified or does not object to Patrick Henry, South Holston; construction of water-use facilities by (9) 1101 Market Street, Chattanooga, the adjacent landowner. In these situa- TN 37402, (423) 697–6006, Reservoirs: tions, TVA may exercise its discretion Chickamauga, Nickajack; to permit the facility, provided there is (10) 2009 Grubb Road, Lenoir City, TN no objection from the fee owner of the 37771–6440, (865) 988–2440, Reservoirs: intervening strip or underlying land. A Watts Bar, Melton Hill; TVA permit conveys no property inter- (11) 2325 Henry Street, Guntersville, est. The applicant is responsible for lo- AL 35976–1868, (256) 571–4280, Reservoirs: cating the proposed facility on quali- Guntersville. fying land and ensuring that there is no objection from any owner of such (c) Submittal of section 26a application. land. TVA may require the applicant to Applicants must submit certain re- provide appropriate verification of quired information depending upon ownership and lack of objection, but whether a proposed facility is a minor TVA is not responsible for resolving or major facility. Examples of the two ownership questions. In case of a dis- categories are provided in paragraphs

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(c)(1) and (2) of this section. Most resi- (E) Indicate the river or reservoir dential related facilities are minor fa- name, river mile, locator landmarks, cilities. Commercial or community fa- and direction of water flow if known. cilities generally are major facilities. (iii) A site photograph. The photo- TVA shall determine whether a pro- graph shall be at least 3 by 5 inches in posed facility is minor or major. An ap- size and show the location of the pro- plication shall not be complete until posed structure or alteration and the payment of the appropriate fee as de- adjacent shoreline area. termined in accordance with 18 CFR (iv) Location map. The location map part 1310, and disclosed to the appli- shall clearly show the location of the cant in the materials provided with the proposed facility and the extent of any application package or by such other site disturbance for the proposed means of disclosure as TVA shall from project. An 81⁄2 by 11-inch copy of one of time to time adopt. For purposes of the the following is ideal: a TVA land map, information required to be submitted a subdivision map, or a portion of a under this section and the determina- United States Geological Survey topo- tion of fees, a request for a variance to graphic map. The subdivision name and the size limitations for a residential- lot number and the map number or related facility (other than a waiver re- name shall be included, if available. quest under § 1304.212 or § 1304.300(a)) (v) Environmental consultations and shall be regarded as an application for permits. To the fullest extent possible a major facility. In addition to the in- the applicant shall obtain or apply for formation required in paragraphs (c)(1) other required environmental permits and (2) of this section, TVA may re- and approvals before or at the same quire the applicant to provide such time as applying for section 26a ap- other information as TVA deems nec- provals. Consultations under the Na- essary for adequate review of a par- tional Historic Preservation Act of 1966 ticular application. and the Endangered Species Act of 1973 (1) Information required for review of shall take place, and permits from the minor facility. By way of example only, U. S. Army Corps of Engineers and minor facilities may include: boat State agencies for water or air regula- docks, piers, rafts, boathouses, fences, tion shall be obtained or applied for at steps, and gazebos. One copy of the ap- the same time as or before application plication shall be prepared and sub- for section 26a approval. The applicant mitted in accordance with the instruc- shall provide TVA with copies of any tions included in the section 26a Appli- such permits or approvals that are cant’s Package. The application shall issued. include: (2) Information required for a major fa- (i) Completed application form. One (1) cility. One (1) copy of the application copy of the application shall be pre- shall be prepared and submitted ac- pared and submitted. Application cording to instructions included in the forms are available from TVA at the section 26a Applicant’s Package. By locations identified at the beginning of way of example only, major projects this section. The application shall in- and facilities may include: marinas, clude a project description which indi- community docks, barge terminals, cates what is to be built, removed, or utility crossings, bridges, culverts, modified, and the sequence of the work. roads, wastewater discharges, water in- (ii) Project, plan, or drawing. The takes, dredging, and placement of fill. project plan/drawing shall: The application shall include: (A) Be prepared on paper suitable for (i) Completed application form. Appli- reproduction (81⁄2 by 11 inches); cation forms are available from TVA at (B) Identify the kind of structure, the locations identified at the begin- purpose/intended use; ning of this section. The application (C) Show principal dimensions, size, shall include a narrative project de- and location in relation to shoreline; scription which indicates what is to be (D) Show the elevation of the struc- built, removed, or modified, and the se- ture above the full summer pool; and quence of the work.

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(ii) Project plan or drawing. Adequate time as applying for section 26a ap- project plans or drawings shall accom- provals. Consultations under the Na- pany the application. They shall: tional Historic Preservation Act of 1966 (A) Be prepared on paper suitable for and the Endangered Species Act of 1973 reproduction (no larger than 11 by 17 shall take place, and permits from the inches) or contained on a 31⁄2-inch flop- U.S. Army Corps of Engineers and py disc in ‘‘dxf’’ format. State agencies for water or air regula- (B) Contain the date; applicant name; tion shall be obtained or applied for at stream; river or reservoir name; river the same time as or before application mile; locator landmarks; and direction for section 26a approval. The applicant of water flow, if known; shall provide TVA with copies of any (C) Identify the kind of structure, such permits or approvals that are purpose/intended use; (D) Include a plan and profile view of issued. the structure; (d) Discharges into navigable waters of (E) Show principal dimensions, size, the United States. If construction, main- and location in relation to shoreline; tenance, or operation of the proposed (F) Show the elevations of the struc- structure or any part thereof, or the ture above full summer pool if located conduct of the activity in connection on a TVA reservoir or above the nor- with which approval is sought, may re- mal high water elevation if on a free- sult in any discharge into navigable flowing stream or river; and waters of the United States, applicant (G) Show the north arrow. shall also submit with the application, (iii) Location map. The location map in addition to the material required by must clearly indicate the exact loca- paragraph (c) of this section, a certifi- tion and extent of site disturbance for cation from the State in which such the proposed project. An 81⁄2- by 11-inch discharge would originate, or, if appro- copy of the appropriate portion of a priate, from the interstate water pollu- United States Geological Survey topo- tion control agency having jurisdiction graphic map is recommended. The map over the navigable waters at the point number or name shall be included. In where the discharge would originate, or addition, recent photos of the location from the Environmental Protection are helpful for TVA’s review and may Agency, that such State or interstate be included. agency or the Environmental Protec- (iv) Other information where application Agency has determined that there ble. The location of any material is reasonable assurance that the appli- laydown or assembly areas, staging areas, equipment storage areas, new cant’s proposed activity will be con- access roads, and road/access closure ducted in a manner which will not vio- required by the project or needed for late applicable water quality stand- construction; the location of borrow or ards. The applicant shall further sub- spoil areas on or off TVA land; the ex- mit such supplemental and additional tent of soil and vegetative disturbance; information as TVA may deem nec- and information on any special res- essary for the review of the applica- ervoir operations needed for the tion, including, without limitation, in- project, such as drawdown or water dis- formation concerning the amounts, charge restrictions. chemical makeup, temperature dif- (v) Site plans. Some projects, particu- ferentials, type and quantity of sus- larly larger ones, may require a sepa- pended solids, and proposed treatment rate site plan which details existing plans for any proposed discharges. and proposed changes to surface topography and elevations (cut and fill, EFFECTIVE DATE NOTE: At 68 FR 46936, Aug. clearing, etc.), location of all proposed 7, 2003, § 1304.2 was revised. Paragraphs (b), facilities, and erosion control plans. (c), and (d) contain information collection and recordkeeping requirements and will not (vi) Environmental consultations and become effective until approval has been permits. To the fullest extent possible given by the Office of Management and the applicant shall obtain or apply for Budget. other required environmental permits and approvals before or at the same

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§ 1304.3 Delegation of authority. § 1304.5 Conduct of hearings. The power to approve or disapprove (a) If a hearing is to be held for any applications under this part is dele- of the reasons described in § 1304.4(c), gated to the Vice President, Resource TVA shall give notice of the hearing to Stewardship, or the designee thereof, interested persons. Such notice may be subject to appeal to the Board as pro- given by publication in the FEDERAL vided in § 1304.6. In his/her discretion, REGISTER, publication in a daily news- the Vice President may submit any ap- paper of general circulation in the area plication and supporting materials to of the proposed structure, personal the Board for its approval or dis- written notice, posting on TVA’s Inter- approval. Administration of the han- net website, or by any other method dling of applications is delegated to reasonably calculated to come to the Resource Stewardship. attention of interested persons. The notice shall indicate the place, date, § 1304.4 Application review and ap- and time of hearing (to the extent fea- proval process. sible), the particular issues to which (a) TVA shall notify the U.S. Army the hearing will pertain, and the man- Corps of Engineers (USACE) and other ner of becoming a party of record, and Federal agencies with jurisdiction of shall provide other pertinent informa- the application as appropriate. tion as appropriate. The applicant shall (b) If a hearing is held for any of the automatically be a party of record. reasons described in paragraph (c) of (b) Hearings may be conducted by the this section, any interested person may Vice President and/or such other per- become a party of record by following son or persons as may be designated by the directions contained in the hearing the Vice President or the Board for notice. that purpose. Hearings are public and (c) Hearings concerning approval of are conducted in an informal manner. applications are conducted (in accord- Parties of record may be represented ance with § 1304.5) when: by counsel or other persons of their choosing. Technical rules of evidence (1) TVA deems a hearing is necessary are not observed although reasonable or appropriate in determining any bounds are maintained as to relevancy, issue presented by the application; materiality, and competency. Evidence (2) A hearing is required under any may be presented orally or by written applicable law or regulation; statement and need not be under oath. (3) A hearing is requested by the Cross-examination by parties of wit- USACE pursuant to the TVA/Corps nesses or others providing statements joint processing Memorandum of Un- or testifying at a hearing shall not be derstanding; or allowed. After the hearing has been (4) The TVA Investigator directs that completed, additional evidence will not a hearing be held. be received unless it presents new and (d) Upon completion of the review of material matter that in the judgment the application, including any hearing of the person or persons conducting the or hearings, the Vice President shall hearing could not be presented at the issue a decision approving or dis- hearing. Where construction of the approving the application. The basis project also requires the approval of for the decision shall be set forth in the another agency of the Federal Govern- decision. ment by or before whom a hearing is to (e) Promptly following the issuance be held, the Vice President may ar- of the decision, the Vice President or range with such agency to hold a joint the Board, as the case may be, shall hearing. furnish a written copy thereof to the applicant and to any parties of record. § 1304.6 Appeals. The Vice President’s decision shall be- (a) Decisions approving or dis- come final unless an appeal is made approving an application may be ap- pursuant to § 1304.6. Any decision by pealed as provided in this section. De- the Board on a matter referred by the cisions by the Vice President’s des- Vice President shall be a final decision. ignee shall be reviewed by the Vice

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President; decisions by the Vice Presi- other person requesting the review, the dent shall be reviewed by the Board. Vice President shall allow for at least (b) If a designee of the Vice President thirty (30) days in which to provide the disapproves an application or approves additional information. At the conclu- it with terms and conditions deemed sion of the review, the Vice President unacceptable by the applicant, the ap- shall render his or her decision approv- plicant may, by written request ad- ing or disapproving the application. dressed to the Vice President, Resource (f) Requests for review by the Board Stewardship, Tennessee Valley Author- shall specify the reasons why it is con- ity, P.O. Box 1589, 17 Ridgeway Road, tended that the Vice President’s deter- Norris, TN 37828–1589, and mailed with- mination is in error and indicate in thirty (30) days after receipt of the whether a hearing is requested. decision, obtain review of the decision (g) The applicant or other person re- by the Vice President. If the Vice questing review and any party of President, either initially or as the result of an appeal, disapproves an appli- record may submit additional written cation or approves it with terms and material in support of their positions conditions deemed unacceptable by the to the Board within thirty (30) days applicant, the applicant may, by writ- after receipt by TVA of the request for ten request addressed to the Board of review. Following receipt of a request Directors, Tennessee Valley Authority, for review, the Board will review the 400 W. Summit Hill Drive, Knoxville, material on which the Vice President’s TN 37902, and mailed within thirty (30) decision was based and any additional days after receipt of the decision, ob- information submitted by any party of tain review of the decision by the record, or a summary thereof, and may Board. In either event, the request conduct or cause to be conducted such must contain a signed representation investigation of the application as the that a copy of the written request for Board deems necessary or desirable. In review was mailed to each party of the event the Board decides to conduct record at the same time as it was an investigation, it shall appoint an In- mailed to TVA. A decision by the Vice vestigating Officer. The Investigating President is a prerequisite for seeking Officer may be a TVA employee, in- Board review. There shall be no admin- cluding a TVA Resource Stewardship istrative appeal of a Board decision ap- employee, or a person under contract proving or disapproving an application. to TVA, and shall not have been di- (c) A party of record at a hearing who rectly and substantially involved in is aggrieved or adversely affected by the decision being appealed. The Inves- any decision approving an application tigating Officer shall be the hearing of- may obtain review by the Board or by ficer for any hearing held during the the Vice President, as appropriate, of appeal process. At the conclusion of his such decision by written request pre- or her investigation, the Investigating pared, addressed and mailed as pro- Officer shall summarize the results of vided in paragraph (b) of this section. the investigation in a written report to (d) Requests for review by the Vice the Board. The report shall be provided President shall specify the reasons why to all parties of record and made part it is contended that the determination of the Vice President’s designee is in of the public record. Based on the re- error. view, investigation, and written sub- (e) The applicant or other person re- missions provided for in this para- questing review and any party of graph, the Board shall render its deci- record may submit additional written sion approving or disapproving the ap- material in support of their positions plication. to the Vice President within thirty (30) (h) A written copy of the decision in days after receipt by TVA of the re- any review proceeding under this sec- quest for review. Following receipt of a tion, either by the Vice President or by request for review, the Vice President the Board, shall be furnished to the ap- will conduct such review as he or she plicant and to all parties of record deems appropriate. If additional infor- promptly following determination of mation is required of the applicant or the matter.

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§ 1304.7 Conditions of approvals. standards in effect at the time the permit was first issued. Approvals of applications shall con- (b) Subsequent owners are not retain such conditions as are required by quired to modify existing facilities law and may contain such other gen- constructed and maintained in accord- eral and special conditions as TVA ance with the standards in effect at the deems necessary or desirable. time the permit was first issued pro- § 1304.8 Denials. vided they: (1) Maintain such facilities in good TVA may, at its sole discretion, deny repair; and any application to construct, operate, (2) Obtain TVA approval for any re- conduct, or maintain any obstruction, pairs that would alter the size of the structure, facility, or activity that in facility or for any new construction. TVA’s judgment would be contrary to the unified development and regulation § 1304.11 Little Tennessee River; date of the Tennessee River system, would of formal submission. adversely affect navigation, flood con- As regards structures on the Little trol, public lands or reservations, the Tennessee River, applications are environment, or sensitive resources deemed by TVA to be formally sub- (including, without limitation, feder- mitted within the meaning of section ally listed threatened or endangered 26a of the Act, on that date upon which species, high priority State-listed spe- applicant has complied in good faith cies, wetlands with high function and with all applicable provisions of value, archaeological or historical sites § 1304.2. of national significance, and other sites or locations identified in TVA Res- ervoir Land Management Plans as re- Subpart B—Regulation of quiring protection of the environment), Nonnavigable Houseboats or would be inconsistent with TVA’s Shoreline Management Policy. In lieu § 1304.100 Scope and intent. of denial, TVA may require mitigation This subpart prescribes regulations measures where, in TVA’s sole judg- governing existing nonnavigable house- ment, such measures would adequately boats that are moored, anchored, or in- protect against adverse effects. stalled in TVA reservoirs. No new nonnavigable houseboats shall be moored, § 1304.9 Initiation of construction. anchored, or installed in any TVA res- A permit issued pursuant to this part ervoir. shall expire unless the applicant initiates construction within eighteen (18) § 1304.101 Nonnavigable houseboats. months after the date of issuance. (a) Any houseboat failing to comply with the following criteria shall be § 1304.10 Change in ownership of ap- deemed a non-navigable houseboat and proved facilities or activities. may not be moored, anchored, in- (a) When there is a change in owner- stalled, or operated in any TVA res- ship of the land on which a permitted ervoir except as provided in paragraph facility or activity is located (or own- (b) of this section: ership of the land which made the ap- (1) Built on a boat hull or on two or plicant eligible for consideration to re- more pontoons; ceive a permit when the facility or ac- (2) Equipped with a motor and rudder tivity is on TVA land), the new owner controls located at a point on the shall notify TVA within sixty (60) days. houseboat from which there is forward Upon application to TVA by the new visibility over a 180-degree range; owner, the new owner may continue to (3) Compliant with all applicable use existing facilities or carry out per- State and Federal requirements relat- mitted activities pending TVA’s deci- ing to vessels; sion on reissuance of the permit. TVA (4) Registered as a vessel in the State shall reissue the permit upon deter- of principal use; and mining that the facilities are in good (5) State registration numbers clear- repair and are consistent with the ly displayed on the vessel.

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(b) Nonnavigable houseboats ap- be structurally repaired or rebuilt proved by TVA prior to February 15, without additional approval from TVA, 1978, shall be deemed existing house- but any expansion in length, width, or boats and may remain on TVA res- height is prohibited except as approved ervoirs provided they remain in com- in writing by TVA. pliance with the rules contained in this (e) All nonnavigable houseboats shall part. Such houseboats shall be moored comply with the requirements for flo- to mooring facilities contained within tation devices contained in § 1304.400. the designated and approved harbor (f) Applications for mooring of a non- limits of a commercial marina. Alter- navigable houseboat outside of des- natively, provided the owner has ob- ignated harbor limits will be dis- tained written approval from TVA pur- approved if TVA determines that the suant to subpart A of this part author- proposed mooring location would be izing mooring at such location, non- contrary to the intent of this subpart. navigable houseboats may be moored to the bank of the reservoir at loca- § 1304.102 Numbering of nonnavigable tions where the owner of the houseboat houseboats and transfer of owner- is the owner or lessee (or the licensee ship. of such owner or lessee) of the proposed (a) All approved nonnavigable house- mooring location, and at locations de- boats shall display a number assigned scribed by § 1304.201(a)(1), (2), and (3). by TVA. The owner of the nonnav- All nonnavigable houseboats must be igable houseboat shall paint or attach moored in such a manner as to: a facsimile of the number on a readily (1) Avoid obstruction of or inter- visible part of the outside of the facil- ference with navigation, flood control, ity in letters at least three inches high. public lands or reservations; (b) The transferee of any nonnav- (2) Avoid adverse effects on public igable houseboat approved pursuant to lands or reservations; the regulations in this subpart shall, (3) Prevent the preemption of public within thirty (30) days of the transfer waters when moored in permanent lo- transaction, report the transfer to cations outside of the approved harbor TVA. limits of commercial marinas; (c) A nonnavigable houseboat moored (4) Protect land and landrights owned at a location approved pursuant to the by the United States alongside and regulations in this subpart shall not be subjacent to TVA reservoirs from tres- relocated and moored at a different lo- pass and other unlawful and unreason- cation without prior approval by TVA, able uses; and except for movement to a new location (5) Maintain, protect, and enhance within the designated harbor limits of the quality of the human environment. a commercial dock or marina. (c) All approved nonnavigable houseboats with toilets must be equipped as § 1304.103 Approval of plans for struc- follows with a properly installed and tural modifications or rebuilding of operating Marine Sanitation Device approved nonnavigable houseboats. (MSD) or Sewage Holding Tank and Plans for the structural modifica- pumpout capability: tion, or rebuilding of an approved non- (1) Nonnavigable houseboats moored navigable houseboat shall be submitted on ‘‘Discharge Lakes’’ must be to TVA for review and approval in ad- equipped with a Type I or Type II MSD. vance of any structural modification (2) Nonnavigable houseboats moored which would increase the length, in: ‘‘No Discharge Lakes’’ must be width, height, or flotation of the struc- equipped with holding tanks and ture. pumpout capability. If a nonnavigable houseboat moored in a ‘‘No Discharge Lake’’ is equipped with a Type I or Subpart C—TVA-Owned Type II MSD, it must be secured to pre- Residential Access Shoreland vent discharge into the lake. (d) Approved nonnavigable house- § 1304.200 Scope and intent. boats shall be maintained in a good This subpart C applies to residential state of repair. Such houseboats may water-use facilities, specifically the

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construction of docks, piers, boat- activities by owners of adjacent upland houses (fixed and floating), retaining residential property shall not be al- walls, and other structures and alter- lowed on any TVA-owned lands other ations, including channel excavation than those described in one or more of and vegetation management, on or the classifications identified in para- along TVA-owned residential access graph (a) of this section. shoreland. TVA manages the TVA- (c) Flowage easement shoreland. Ex- owned residential access shoreland to cept as otherwise specifically provided conserve, protect, and enhance in subpart D of this part, this subpart shoreland resources, while providing C does not apply to shoreland where reasonable access to the water of the TVA’s property interest is ownership of reservoir by qualifying adjacent resi- a flowage easement. The terms of the dents. particular flowage easement and subparts A, B, D, and E of this part govern § 1304.201 Applicability. the use of such property. This subpart addresses residential-related (all private, noncommercial uses) § 1304.202 General sediment and ero- construction activities along and sion control provisions. across shoreland property owned by the (a) During construction activities, United States and under the custody TVA shall require that appropriate ero- and control of TVA. Individual residen- sion and sediment control measures be tial landowners wishing to construct utilized to prevent pollution of the wa- facilities, clear vegetation and/or ters of the reservoir. maintain an access corridor on adja- (b) All material which accumulates cent TVA-owned lands are required to behind sediment control structures apply for and obtain a permit from must be removed from TVA land and TVA before conducting any such ac- placed at an upland site above the 100- tivities. year floodplain elevation or the Flood (a) This subpart applies to the fol- Risk Profile Elevation (whichever is lowing TVA-reservoir shoreland classi- applicable). fications: (c) Disturbed sites must be promptly (1) TVA-owned shorelands over which stabilized with seeding, vegetative the adjacent residential landowner planting, erosion control netting, and/ holds rights of ingress and egress to or mulch material. the water (except where a particular activity is specifically excluded by an § 1304.203 Vegetation management. applicable real estate document), in- No vegetation management shall be cluding, at TVA’s discretion, cases approved on TVA-owned Residential where the applicant owns access rights Access Shoreland until a Vegetation across adjoining private property that Management Plan meeting the vegeta- borders on and benefits from rights of tion management standards contained ingress and egress across TVA-owned in this section is submitted to and ap- shoreland. proved by TVA. (2) TVA-owned shorelands designated (a) Except for the mowing of lawns in current TVA Reservoir Land Man- established and existing before Novem- agement Plans as open for consider- ber 1, 1999, all vegetation management ation of residential development; and activities on TVA-owned property sub- (3) On reservoirs not having a current ject to this subpart (including all such approved TVA Reservoir Land Manage- activities described in paragraphs (b) ment Plan at the time of application, through (m) of this section as ‘‘al- TVA-owned shorelands designated in lowed’’ and all activities undertaken in TVA’s property forecast system as connection with a section 26a permit ‘‘reservoir operations property,’’ iden- obtained before September 8, 2003) re- tified in a subdivision plat recorded quire TVA’s advance written permis- prior to September 24, 1992, and con- sion. Special site circumstances such taining at least one water-use facility as the presence of wetlands may result developed prior to September 24, 1992. in a requirement for mitigative meas- (b) Construction of structures, access ures or alternative vegetation manage- corridors, and vegetation management ment approaches.

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(b) Vegetation may be cleared to cre- tive cover, provided native plants are ate and maintain an access corridor up used. to but not exceeding 20 feet wide. The (l) Fertilizers and herbicides shall corridor will extend from the common not be applied within the SMZ or else- boundary between TVA and the adja- where on TVA land, except as specifi- cent landowner to the water-use facil- cally approved in the Vegetative Man- ity. agement Plan. (c) The access corridor will be lo- (m) Restricted use herbicides and cated to minimize removal of trees or pesticides shall not be applied on TVA- other vegetation on the TVA land. owned shoreland except by a State cer- (d) Grass may be planted and mowed tified applicator. All herbicides and within the access corridor, and stone, pesticides shall be applied in accord- brick, concrete, mulch, or wooden ance with label requirements. paths, walkways and/or steps are allowed. Pruning of side limbs that ex- § 1304.204 Docks, piers, and boat- tend into the access corridor from trees houses. located outside the access corridor is Applicants are responsible for sub- allowed. mitting plans for proposed docks, piers, (e) A 50-foot-deep shoreline manage- and boathouses that conform to the ment zone (SMZ) shall be designated size standards specified in this section. by TVA on TVA property; provided, Where and if site constraints at the however, that where TVA ownership is proposed construction location pre- insufficient to establish a 50-foot-deep clude a structure of the maximum size, SMZ, the SMZ shall consist only of all TVA shall determine the size of facility of the TVA land at the location (pri- that may be approved. Applicants are vate land shall not be included within required to submit accurate drawings the SMZ). Within the SMZ, no trees with dimensions of all proposed facili- may be cut or vegetation removed, ex- ties. cept that which is preapproved by TVA (a) Docks, piers, boathouses, and all within the access corridor. other residential water-use facilities (f) Within the 50-foot SMZ and else- shall not exceed a total footprint area where on TVA land as defined in of greater than 1000 square feet. § 1304.201, clearing of specified under- (b) Docks, boatslips, piers, and fixed story plants (poison ivy, Japanese hon- or floating boathouses are allowable. eysuckle, kudzu, and other exotic These and other water-use facilities as- plants on a list provided by TVA) is al- sociated with a lot must be sited with- lowed. in a 1000-square-foot rectangular or (g) On TVA land situated above the square area at the lakeward end of the SMZ, selective thinning of trees or access walkway that extends from the other vegetation under three inches in shore to the structure. Access walk- diameter at the ground level is always to the water-use structure are not lowed. included in calculating the 1000-foot (h) Removal of trees outside of the area. access corridor but within the SMZ (c) Docks and walkway(s) shall not may be approved to make the site suit- extend more than 150 feet from the able for approved shoreline erosion shoreline, or more than one-third the control projects. distance to the opposite shoreline, (i) Vegetation removed for erosion whichever is less. control projects must be replaced with (d) All fixed piers and docks on Pick- native species of vegetation. wick, Wilson, Wheeler, Guntersville, (j) The forest floor must be left un- and Nickajack Reservoirs shall have disturbed, except as specified in this deck elevations at least 18 inches above section. Mowing is allowed only within full summer pool level; facilities on all the access corridor. other reservoirs, shall be a minimum of (k) Planting of trees, shrubs, 24 inches above full summer pool. wildflowers, native grasses, and ground (e) All docks, piers, and other water- covers within the SMZ is allowed to use facilities must be attached to the create, improve, or enhance the vegeta- shore with a single walkway which

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must connect from land to the struc- but shall not be covered by a roof or ture by the most direct route and must enclosed with siding or screening. adjoin the access corridor. (q) In congested areas or in other cir- (f) Docks, piers, and boathouses may cumstances deemed appropriate by be fixed or floating or a combination of TVA, TVA may require an applicant’s the two types. dock, pier, or boathouse to be located (g) Roofs are allowed on boatslips, ex- on an area of TVA shoreline not di- cept on Kentucky Reservoir where rectly fronting the applicant’s prop- roofs are not allowed on fixed struc- erty. tures due to extreme water level fluc- tuations. Roofs over docks or piers to § 1304.205 Other water-use facilities. provide shade are allowed on all res- (a) A marine railway or concrete boat ervoirs. launching ramp with associated drive- (h) Docks proposed in subdivisions re- way may be located within the access corded after November 1, 1999, must be corridor. Construction must occur dur- placed at least 50 feet from the neigh- ing reservoir drawdown. Excavated ma- bors’ docks. When this density require- terial must be placed at an upland site. ment cannot be met, TVA may require Use of concrete is allowable; asphalt is group or community facilities. not permitted. (i) Where the applicant owns or con- (b) Tables or benches for cleaning trols less than 50 feet of property ad- fish are permitted on docks or piers. joining TVA shoreline, the overall (c) All anchoring cables or spud poles width of the facilities permitted along must be anchored to the walkway or to the shore shall be limited to ensure the ground in a way that will not ac- sufficient space to accommodate other celerate shoreline erosion. Anchoring property owners. of cables, chains, or poles to trees on (j) Covered boatslips may be open or TVA property is not permitted. enclosed with siding. (d) Electrical appliances such as stoves, refrigerators, freezers, and (k) Access walkways constructed microwave ovens are not permitted on over water and internal walkways in- docks, piers, or boathouses. side of boathouses shall not exceed six (e) Mooring buoys/posts may be per- feet in width. mitted provided the following require- (l) Enclosed space shall be used solely ments are met. for storage of water-use equipment. (1) Posts and buoys shall be placed in The outside dimensions of any com- such a manner that in TVA’s judgment pletely enclosed storage space shall not they would not create a navigation exceed 32 square feet and must be lo- hazard. cated on an approved dock, pier, or (2) Mooring posts must be a min- boathouse. imum 48 inches in height above the full (m) Docks, piers, and boathouses summer pool elevation of the reservoir shall not contain living space or sleep- or higher as required by TVA. ing areas. Floor space shall not be con- (3) Buoys must conform to the Uni- sidered enclosed if three of the four form State Waterway Marking system. walls are constructed of wire or screen (f) Structures shall not be wider than mesh from floor to ceiling, and the the width of the lot. wire or screen mesh leaves the interior (g) In congested areas, TVA may es- of the structure open to the weather. tablish special permit conditions re- (n) Except for nonnavigable house- quiring dry-docking of floating struc- boats approved in accordance with sub- tures when a reservoir reaches a spe- part B of this part, toilets and sinks cific drawdown elevation to prevent are not permitted on water-use facili- these structures from interfering with ties. navigation traffic, recreational boating (o) Covered docks, boatslips, and access, or adjacent structures during boathouses shall not exceed one story winter drawdown. in height. (h) Closed loop heat exchanges for (p) Second stories on covered docks, residential heat pump application may piers, boatslips, or boathouses may be be approved provided they are installed constructed as open decks with railing, five feet below minimum winter water

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elevation and they utilize propylene (2) Size and number of slips at com- glycol or water. All land-based pipes munity water-use facilities lots shall must be buried within the access cor- be determined by TVA with consider- ridor. ation of the following: (i) Size of community outlot; § 1304.206 Requirements for community docks, piers, boathouses, or (ii) Parking accommodations on the other water-use facilities. community outlot; (iii) Length of shoreline frontage as- (a) Community facilities where indi- sociated with the community outlot; vidual facilities are not allowed: (iv) Number of property owners hav- (1) TVA may limit water-use facili- ing the right to use the community ties to community facilities where outlot; physical or environmental constraints (v) Water depths fronting the com- preclude approval of individual docks, munity lot; piers, or boathouses. (vi) Commercial and private vessel (2) When individual water-use facili- navigation uses and restrictions in the ties are not allowed, no more than one vicinity of the community lot; slip for each qualified applicant will be approved for any community facility. (vii) Recreational carrying capacity TVA shall determine the location of for water-based activities in the vicin- the facility and the named permittees, ity of the community lot, and taking into consideration the pref- (viii) Other site specific conditions erences of the qualified applicants and and considerations as determined by such other factors as TVA determines TVA. to be appropriate. (3) Vegetation management shall be (3) In narrow coves or other situa- in accordance with the requirements of tions where shoreline frontage is lim- § 1304.203 except that, at TVA’s discre- ited, shoreline development may be tion, the community access corridor limited to one landing dock for tem- may exceed 20 feet in width, and porary moorage of boats not to exceed thinning of vegetation outside of the the 1000-square-foot footprint require- corridor within or beyond the SMZ ment, and/or a boat launching ramp, if may be allowed to enhance views of the the site, in TVA’s judgment, will ac- reservoir. commodate such development. (c) TVA may approve community fa- (b) Private and community facilities cilities that are greater in size than at jointly-owned community outlots: 1000 square feet. In such circumstances, (1) Applications for private or com- TVA also may establish harbor limits. munity facilities to be constructed at a § 1304.207 Channel excavation on TVA- jointly-owned community outlot must owned residential access shoreland. be submitted either with 100 percent concurrence of all co-owners of such (a) Excavation of individual boat lot, or with concurrence of the author- channels shall be approved only when ized representatives of a State-char- TVA determines there is no other prac- tered homeowners association with the ticable alternative to achieving suffi- authority to manage the common lot cient navigable water depth and the ac- on behalf of all persons having an in- tion would not substantially impact terest in such lot. If the community fa- sensitive resources. cility will serve five or more other lots, (b) No more than 150 cubic yards of the application must be submitted by material shall be removed for any indi- the authorized representatives of such vidual boat channel. an association. TVA considers an asso- (c) The length, width, and depth of ciation to have the necessary authority approved boat channels shall not ex- to manage the common lot if all co- ceed the dimensions necessary to owners are eligible for membership in achieve three-foot water depths for the association and a majority are navigation of the vessel at the min- members. TVA may request the asso- imum winter water elevation. ciation to provide satisfactory evi- (d) Each side of the channel shall dence of its authority. have a slope ratio of at least 3:1.

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(e) Only one boat channel or harbor (3) Gabions (rock wrapped with wire may be considered for each abutting mesh) that are commercially manufac- property owner. tured for erosion control may be used. (f) The grade of the channel must (4) Riprap material must be placed so allow drainage of water during res- as to follow the existing contour of the ervoir drawdown periods. bank. (g) Channel excavations must be ac- (5) Site preparation must be limited complished during the reservoir draw- to the work necessary to obtain ade- down when the reservoir bottom is ex- quate slope and stability of the riprap posed and dry. material. (h) Spoil material from channel exca- (c) Use of retaining walls for shore- vations must be placed in accordance line stabilization. with any applicable local, State, and Federal regulations at an upland site (1) Retaining walls shall be allowed above the TVA Flood Risk Profile ele- only where the erosion process is se- vation. For those reservoirs that have vere and TVA determines that a retain- no flood control storage, dredge spoil ing wall is the most effective erosion must be disposed of and stabilized control option or where the proposed above the limits of the 100-year flood- wall would connect to an existing TVA- plain and off of TVA property. approved wall on the lot or to an adjacent owner’s TVA-approved wall. § 1304.208 Shoreline stabilization on (2) The retaining wall must be con- TVA-owned residential access structed of stone, concrete blocks, shoreland. poured concrete, gabions, or other ma- TVA may issue permits allowing ad- terials acceptable to TVA. Railroad jacent residential landowners to sta- ties, rubber tires, broken concrete (un- bilize eroding shorelines on TVA-owned less determined by TVA to be of ade- residential access shoreland. TVA will quate size and integrity), brick, creo- determine if shoreline erosion is suffi- sote timbers, and asphalt are not al- cient to approve the proposed stabiliza- lowed. tion treatment. (3) Reclamation of land that has been (a) Biostabilization of eroded shore- lost to erosion is not allowed. lines. (4) The base of the retaining wall (1) Moderate contouring of the bank shall not be located more than an aver- may be allowed to provide conditions age of two horizontal feet lakeward of suitable for planting of vegetation. the existing full summer pool water. (2) Tightly bound bundles of coconut Riprap shall be placed at least two feet fiber, logs, or other natural materials in depth along the footer of the retain- may be placed at the base of the eroded ing wall to deflect wave action and re- site to deflect waves. duce undercutting that could eventu- (3) Willow stakes and bundles and ally damage the retaining wall. live cuttings of suitable native plant materials may be planted along the § 1304.209 Land-based structures/alter- surface of the eroded area. ations. (4) Native vegetation may be planted within the shoreline management zone (a) Except for steps, pathways, boat to help minimize further erosion. launching ramps, marine railways lo- (5) Riprap may be allowed along the cated in the access corridor, bank sta- base of the eroded area to prevent fur- bilization along the shoreline, and ther undercutting of the bank. other uses described in this subpart, no (b) Use of gabions and riprap to sta- permanent structures, fills or grading bilize eroded shorelines. shall be allowed on TVA land. (1) The riprap material must be quar- (b) Portable items such as picnic tary-run stone, natural stone, or other bles and hammocks may be placed on material approved by TVA. TVA land; permanent land-based struc- (2) Rubber tires, concrete rubble, or tures and facilities such as picnic pa- other debris salvaged from construc- vilions, gazebos, satellite antennas, tion sites shall not be used to stabilize septic tanks, and septic drainfields shorelines. shall not be allowed on TVA land.

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(c) Utility lines (electric, water-in- (d) Vegetation management at grand- take lines, etc.) may be placed within fathered developments shall be as fol- the access corridor as follows: lows: (1) Power lines, poles, electrical (1) Mowing of lawns established on panel, and wiring must be installed: TVA-owned residential access (i) In a way that would not be haz- shoreland prior to November 1, 1999, ardous to the public or interfere with may be continued without regard to TVA operations; whether the lawn uses are authorized (ii) Solely to serve water-use facili- by a TVA permit. ties, and (2) At sites where mowing of lawns (iii) In compliance with all State and established prior to November 1, 1999, local electrical codes (satisfactory evi- is not specifically included as an au- dence of compliance to be provided to thorized use in an existing permit, TVA upon request). TVA will include mowing as a per- (2) Electrical service must be in- mitted use in the next permit action at stalled with an electrical disconnect that is: that site. (i) Located above the 500-year flood- (3) The SMZ is not required where es- plain or the flood risk profile, which- tablished lawns existed prior to No- ever is higher, and vember 1, 1999. (ii) Is accessible during flood events. (4) Any additional removal of trees or (3) TVA’s issuance of a permit does other vegetation (except for mowing of not mean that TVA has determined the lawns established prior to November 1, facilities are safe for any purpose or 1999) requires TVA’s approval in ac- that TVA has any duty to make such a cordance with § 1304.203. Removal of determination. trees greater than three inches in di- (d) Fences crossing TVA residential ameter at ground level is not allowed. access shoreland may be considered only where outstanding agricultural § 1304.211 Change in ownership of rights or fencing rights exist and the grandfathered structures or alter- land is used for agricultural purposes. ations. Fences must have a built-in means for (a) When ownership of a permitted easy pedestrian passage by the public structure or other shoreline alteration and they must be clearly marked. changes, the new owner shall comply with § 1304.10 regarding notice to TVA. § 1304.210 Grandfathering of pre- (b) The new owner may, upon appli- existing shoreland uses and struc- cation to TVA for a permit, continue tures. to use existing permitted docks and In order to provide for a smooth tran- other shoreline alterations pending sition to new standards, grandfathering TVA action on the application. provisions shall apply as follows to pre- (c) Subsequent owners are not re- existing development and shoreland quired to modify to new standards ex- uses established prior to November 1, isting shoreline alterations con- 1999, which are located along or adjoin structed and maintained in accordance TVA-owned access residential with the standards in effect at the time shoreland. the previous permit was first issued, (a) Existing shoreline structures and they may continue mowing estab- (docks, retaining walls, etc.) previously permitted by TVA are grandfathered. lished lawns that existed prior to No- (b) Grandfathered structures may vember 1, 1999. continue to be maintained in accord- (d) New owners wishing to continue ance with previous permit require- existing grandfathered activities and ments, and TVA does not require modi- structures must: fication to conform to new standards. (1) Maintain existing permitted (c) If a permitted structure is de- docks, piers, boathouses, and other stroyed by fire or storms, the permit shoreline structures in good repair. shall be reissued if the replacement fa- (2) Obtain TVA approval for any re- cility is rebuilt to specifications origi- pairs that would alter the size of the nally permitted by TVA. facility, for any new construction, or

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for removal of trees or other vegeta- to ensure accommodation of neigh- tion (except for mowing of lawns estab- boring landowners. lished prior to November 1, 1999). (f) Section 1304.205 shall apply except that the facilities described in para- § 1304.212 Waivers. graph (a) are not limited to locations (a) Waivers of standards contained in within an access corridor. this subpart may be requested when (g) Section 1304.206 shall apply except the following minimum criteria are es- for paragraph (b)(3). tablished: (h) Section 1304.208 shall apply except (1) The property is within a pre- that TVA approval shall not be re- existing development (an area where quired to conduct the activities de- shoreline development existed prior to scribed in paragraph (a). November 1, 1999); and (i) Section 1304.210 shall apply except (2) The proposed shoreline alterations for paragraph (d). are compatible with surrounding per- (j) Section 1304.211 shall apply except mitted structures and uses within the to the extent that it would restrict subdivision or, if there is no subdivi- mowing or other vegetation manage- sion, within the immediate vicinity ment. (one-fourth mile radius). (k) Nothing contained in this part (b) In approving waivers of the stand- shall be construed to be in derogation ards of this subpart C, TVA will con- of the rights of the United States or of sider the following: TVA under any flowage easement held (1) The prevailing permitted prac- by the United States or TVA. tices within the subdivision or immediate vicinity; and § 1304.301 Utilities. (2) The uses permitted under the Upon application to and approval by guidelines followed by TVA before No- TVA, utility lines (electric, water-in- vember 1, 1999. take lines, etc.) may be placed within the flowage easement area as follows: Subpart D—Activities on TVA (a) Power lines, poles, electrical pan- Flowage Easement Shoreland els, and wiring shall be installed: (1) In a way that would not be haz- § 1304.300 Scope and intent. ardous to the public or interfere with Any structure built upon land sub- TVA operations; and ject to a flowage easement held by (2) In compliance with all State and TVA shall be deemed an obstruction af- local electrical codes (satisfactory evi- fecting navigation, flood control, or dence of compliance to be provided to public lands or reservations within the TVA upon request). meaning of section 26a of the Act. Such (b) Electrical service shall be in- obstructions shall be subject to all re- stalled with an electrical disconnect quirements of this part except those that is located above the 500-year contained in subpart C of this part, floodplain or the flood risk profile, which shall apply as follows: whichever is higher, and is accessible (a) All of § 1304.212 shall apply. during flood events. (b) Sections 1304.200, 1304.203, 1304.207, (c) TVA’s issuance of a permit does and 1304.209 shall not apply. not mean that TVA has determined the (c) Section 1304.201 shall not apply facilities are safe for any purpose or except for paragraph (c). that TVA has any duty to make such a (d) Section 1304.202 shall apply except determination. that TVA shall determine on a case-by- case basis whether it is necessary to re- § 1304.302 Vegetation management on move materials accumulated behind flowage easement shoreland. sediment control structures to an up- Removal, modification, or establish- land site. ment of vegetation on privately-owned (e) Section 1304.204 shall apply except shoreland subject to a TVA flowage that the ‘‘50 feet’’ trigger of paragraph easement does not require approval by (i) of that section shall not apply. TVA TVA. When reviewing proposals for may impose appropriate requirements docks or other obstructions on flowage

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easement shoreland, TVA shall con- serviceable, at which time it shall be sider the potential for impacts to sen- replaced with approved flotation upon sitive plants or other resources and notification from TVA. For any float may establish conditions in its ap- installed after September 8, 2003, repair proval of a proposal to avoid or mini- or replacement is required when it no mize such impacts consistent with ap- longer performs its designated function plicable laws and executive orders. or exhibits any of the conditions pro- § 1304.303 Channel excavation. hibited by this subpart. (b) Because of the possible release of (a) Channel excavation of privately- toxic or polluting substances, and the owned reservoir bottom subject to a hazard to navigation from metal drums TVA flowage easement does not require approval by TVA under section 26a if: that become partially filled with water (1) All dredged material is placed and escape from docks, boathouses, above the limits of the 100-year flood- houseboats, floats, and other water-use plain or the TVA flood risk profile ele- structures and facilities for which they vation, whichever is applicable, and are used for flotation, the use of metal (2) The dredging is not being accom- drums in any form, except as author- plished in conjunction with the con- ized in paragraph (c) of this section, for struction of a structure requiring a flotation of any facilities is prohibited. section 26a permit. (c) Only metal drums which have (b) Any fill material placed within been filled with plastic foam or other the flood control zone of a TVA res- solid flotation materials and welded, ervoir requires TVA review and ap- strapped, or otherwise firmly secured proval. in place prior to July 1, 1972, on exist- (c) TVA shall encourage owners of ing facilities are permitted. Replace- flowage easement property to adopt ment of any metal drum flotation per- the standards for channel excavation mitted to be used by this paragraph applicable to TVA-owned residential must be with a commercially manufac- access shoreland. tured flotation device or material specifically designed for marine applica- Subpart E—Miscellaneous tions (for example, pontoons, boat § 1304.400 Flotation devices and mate- hulls, or other buoyancy devices made rial, all floating structures. of steel, aluminum, fiberglass, or plastic foam, as provided for in paragraph (a) All flotation for docks, boat mooring buoys, and other water-use (a) of this section). structures and facilities, shall be of (d) Every flotation device employed materials commercially manufactured in the Tennessee River system must be for marine use. Flotation materials firmly and securely affixed to the shall be fabricated so as not to become structure it supports with materials water-logged, crack, peel, fragment, or capable of withstanding prolonged ex- be subject to loss of beads. Flotation posure to wave wash and weather con- materials shall be resistant to punc- ditions. ture, penetration, damage by animals, and fire. Any flotation within 40 feet of § 1304.401 Marine sanitation devices. a line carrying fuel shall be 100 percent No person operating a commercial impervious to water and fuel. boat dock permitted under this part Styrofoam floatation must be fully en- shall allow the mooring at such per- cased. Reuse of plastic, metal, or other mitted facility of any watercraft or previously used drums or containers floating structure equipped with a ma- for encasement or flotation purpose is rine sanitation device (MSD) unless prohibited, except as provided in para- such MSD is in compliance with all ap- graph (c) of this section for certain plicable statutes and regulations, in- metal drums already in use. Existing flotation (secured in place prior to Sep- cluding the FWPCA and regulations tember 8, 2003) in compliance with pre- issued thereunder, and, where applica- vious rules is authorized until in TVA’s ble, statutes and regulations governing judgment the flotation is no longer ‘‘no discharge’’ zones.

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§ 1304.402 Wastewater outfalls. wastewater or sewage into the reservoir. Applicants for a wastewater outfall shall provide copies of all Federal, § 1304.404 Commercial marina harbor State, and local permits, licenses, and limits. approvals required for the facility prior The landward limits of commercial to applying for TVA approval, or shall marina harbor areas are determined by concurrently with the TVA application the extent of land rights held by the apply for such approvals. A section 26a dock operator. The lakeward limits of permit shall not be issued until other harbors at commercial marinas will be required water quality approvals are designated by TVA on the basis of the obtained, and TVA reserves the right size and extent of facilities at the dock, to impose additional requirements. navigation and flood control require- § 1304.403 Marina sewage pump-out ments, optimum use of lands and land stations and holding tanks. rights owned by the United States, carrying capacity of the reservoir area in All pump-out facilities constructed the vicinity of the marina, and on the after September 8, 2003 shall meet the basis of the environmental effects asso- following minimum design and oper- ciated with the use of the harbor. ating requirements: Mooring buoys, slips, breakwaters, and (a) Spill-proof connection with ship- permanent anchoring are prohibited board holding tanks; beyond the lakeward extent of harbor (b) Suction controls or vacuum limits. TVA may, at its discretion, re- breaker capable of limiting suction to configure harbor limits based on such levels as will avoid collapse of changes in circumstances, including rigid holding tanks; but not limited to, changes in the own- (c) Available fresh water facilities for ership of the land base supporting the tank flushing; marina. (d) Check valve and positive cut-off or other device to preclude spillage § 1304.405 Fuel storage tanks and han- when breaking connection with vessel dling facilities. being severed; Fuel storage tanks and handling fa- (e) Adequate interim storage where cilities are generally either under- storage is necessary before transfer to ground (UST) or aboveground (AST) approved treatment facilities; storage tank systems. An UST is any (f) No overflow outlet capable of dis- one or combination of tanks or tank charging effluent into the reservoir; systems defined in applicable Federal (g) Alarm system adequate to notify or State regulations as an UST. Typi- the operator when the holding tank is cally (unless otherwise provided by ap- full; plicable Federal or State rules), an (h) Convenient access to holding UST is used to contain a regulated sub- tanks and piping system for purposes stance (such as a petroleum product) of inspection; and has 10 percent or more of its total (i) Spill-proof features adequate for volume beneath the surface of the transfer of sewage from all movable ground. The total volume includes any floating pump-out facilities to shore- piping used in the system. An UST may based treatment plants or intermediate be a buried tank, or an aboveground transfer facilities; tank with buried piping if the piping (j) A reliable disposal method con- holds 10 percent or more of the total sisting of: system volume including the tank. For (1) An approved upland septic system purposes of this part, an aboveground that meets TVA, State, and local re- storage tank (AST) is any storage tank quirements; or whose total volume (piping and tank) (2) Proof of a contract with a sewage is less than 10 percent underground or disposal contractor; and any storage tank defined by applicable (k) A written statement to TVA cer- law or regulation as an AST. tifying that the system shall be oper- (a) TVA requires the following to be ated and maintained in such a way as included in all applications submitted to prevent any discharge or seepage of after September 8, 2003 to install an

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UST or any part of an UST system combustible liquids storage tanks at below the 500-year flood elevation on a marine service stations. TVA reservoir, or regulated tailwater: (d) Fuel handling on private, non-com- (1) A copy of the State approval for mercial docks and piers. TVA will not the UST along with a copy of the appli- approve the installation, operation, or cation sent to the State and any plans maintenance of fuel handling facilities or drawings that were submitted for on any private, non-commercial dock the State’s review; or pier. (2) Evidence of secondary contain- (e) Floating fuel handling facilities. ment for all piping or other systems as- TVA will not approve the installation sociated with the UST; of any floating fuel handling facility or (3) Evidence of secondary contain- fuel storage tank. ment to contain leaks from gas (f) Demonstration of financial responsi- pump(s); bility. Applicants for a fuel handling fa- (4) Calculations certified by a li- cility to be located in whole or in part censed, professional engineer in the on TVA land shall be required to pro- relevant State showing how the tank vide TVA, in a form and amount ac- will be anchored so that it does not ceptable to TVA, a surety bond, irrev- float during flooding; and ocable letter of credit, pollution liabil- (5) Evidence, where applicable, that ity insurance, or other evidence of fi- the applicant has complied with all spill prevention, control and counter- nancial responsibility in the event of a measures (SPCC) requirements. release. (b) The applicant must accept and § 1304.406 Removal of unauthorized, sign a document stating that the appli- unsafe, and derelict structures or cant shall at all times be the owner of facilities. the UST system, that TVA shall have the right (but no duty) to prevent or If, at any time, any dock, wharf, remedy pollution or violations of law, boathouse (fixed or floating), nonnav- including removal of the UST system, igable houseboat, outfall, aerial cable, with costs charged to the applicant, or other fixed or floating structure or that the applicant shall at all times facility (including any navigable boat maintain and operate the UST system or vessel that has become deteriorated in full compliance with applicable Fed- and is a potential navigation hazard or eral, State, and local UST regulations, impediment to flood control) is an- and that the applicant shall maintain chored, installed, constructed, or eligibility in any applicable State trust moored in a manner inconsistent with fund. this part, or is not constructed in ac- (c) An application to install an AST cordance with plans approved by TVA, or any part of an AST system below or is not maintained or operated so as the 500-year elevation on a TVA res- to remain in accordance with this part ervoir or a regulated tailwater is sub- and such plans, or is not kept in a good ject to all of the requirements of para- state of repair and in good, safe, and graphs (a) and (b) of this section except substantial condition, and the owner or that paragraph (a)(1) shall not apply in operator thereof fails to repair or re- States that do not require application move such structure (or operate or or approval for installation of an AST. maintain it in accordance with such Eligibility must be maintained for any plans) within ninety (90) days after applicable AST trust fund, and the sys- written notice from TVA to do so, TVA tem must be maintained and operated may cancel any license, permit, or ap- in accordance with any applicable AST proval and remove such structure, and/ regulations. The applicant must notify or cause it to be removed, from the and obtain any required documents or Tennessee River system and/or lands in permission from the State fire mar- the custody or control of TVA. Such shal’s office prior to installation of the written notice may be given by mailing AST. The applicant must also follow a copy thereof to the owner’s address the National Fire Protection Associa- as listed on the license, permit, or ap- tion Codes 30 and 30A for installation proval or by posting a copy on the and maintenance of flammable and structure or facility. TVA may remove

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or cause to be removed any such struc- A partial list of repetitive actions in- ture or facility anchored, installed, cludes: constructed, or moored without such (1) Private and public water-use fa- license, permit, or approval, whether cilities; such license or approval has once been (2) Commercial recreation boat dock obtained and subsequently canceled, or and water-use facilities; whether it has never been obtained. (3) Water intake structures; TVA’s removal costs shall be charged (4) Outfalls; to the owner of the structure, and pay- (5) Mooring and loading facilities for ment of such costs shall be a condition barge terminals; of approval for any future facility pro- (6) Minor grading and fills; and posed to serve the tract of land at issue (7) Bridges and culverts for pedes- or any tract derived therefrom whether trian, highway, and railroad crossings. or not the current owner caused such (b) Projects resulting in flood storage charges to be incurred. In addition, any loss in excess of one acre-foot will not applicant with an outstanding removal be considered repetitive actions. charge payable to TVA shall, until (c) For projects not qualifying as re- such time as the charge be paid in full, petitive actions, the applicant shall be be ineligible to receive a permit or ap- required, as appropriate, to evaluate proval from TVA for any facility lo- alternatives to the placement of fill or cated anywhere along or in the Ten- the construction of a project within the flood control storage zone that nessee River or its tributaries. TVA would result in lost flood control stor- shall not be responsible for the loss of age. The alternative evaluation would property associated with the removal either identify a better option or sup- of any such structure or facility in- port and document that there is no rea- cluding, without limitation, the loss of sonable alternative to the loss of flood any navigable boat or vessel moored at control storage. If this determination such a facility. Any costs voluntarily can be made, the applicant must then incurred by TVA to protect and store demonstrate how the loss of flood con- such property shall be removal costs trol storage will be minimized. within the meaning of this section, and (1) In addition, documentation shall TVA may sell such property and apply be provided regarding: the proceeds toward any and all of its (i) The amount of anticipated flood removal costs. Small businesses seek- control storage loss; ing expedited consideration of the eco- (ii) The cost of compensation of the nomic impact of actions under this sec- displaced flood control storage (how tion may contact TVA’s Supplier and much it would cost to excavate mate- Diverse Business Relations staff, TVA rial from the flood control storage Procurement, 1101 Market Street, zone, haul it to an upland site and dis- Chattanooga, Tennessee 37402–2801. pose of it); (iii) The cost of mitigation of the dis- § 1304.407 Development within flood placed flood control storage (how much control storage zones of TVA res- it would cost to excavate material ervoirs. from another site within the flood con- (a) Activities involving development trol storage zone, haul it to the project within the flood control storage zone site and use as the fill material); on TVA reservoirs will be reviewed to (iv) The cost of the project; and determine if the proposed activity (v) The nature and significance of qualifies as a repetitive action. Under any economic and/or natural resource TVA’s implementation of Executive benefits that would be realized as a re- Order 11988, Floodplain Management, sult of the project. repetitive actions are projects within a (2) TVA may, in its discretion, de- class of actions TVA has determined to cline to permit any project that would be approvable without further review result in the loss of flood control stor- and documentation related to flood age. control storage, provided the loss of (d) Recreational vehicles parked or flood control storage caused by the placed within flood control storage project does not exceed one acre-foot. zones of TVA reservoirs shall be

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deemed an obstruction affecting navi- within the limits of safety harbors and gation, flood control, or public lands or landings established for commercial reservations within the meaning of sec- navigation. tion 26a of the Act unless they: (b) Structures shall not be located in (1) Remain truly mobile and ready such a way as to block the visibility of for highway use. The unit must be on navigation aids. Examples of naviga- its wheels or a jacking system and be tion aids are lights, dayboards, and di- attached to its site by only quick dis- rectional signs. connect type utilities; (c) The establishment of ‘‘no-wake’’ (2) Have no permanently attached ad- zones outside approved harbor limits is ditions, connections, foundations, prohibited at marinas or community porches, or similar structures; and dock facilities that are adjacent to or (3) Have an electrical cutoff switch near a commercial navigation channel. that is located above the flood control In such circumstances, facility owners zone and fully accessible during flood may, upon approval from TVA, install events. a floating breakwater along the harbor limit to reduce wave and wash action. § 1304.408 Variances. The Vice President or the designee § 1304.411 Fish attractor, spawning, thereof is authorized, following consid- and habitat structures. eration whether a proposed structure Fish attractors constitute potential or other regulated activity would ad- obstructions and require TVA ap- versely impact navigation, flood con- proval. trol, public lands or reservations, (a) Fish attractors may be con- power generation, the environment, or structed of anchored brush piles, log sensitive environmental resources, or cribs, and/or spawning benches, stake would be incompatible with sur- beds, vegetation, or rock piles, pro- rounding uses or inconsistent with an vided they meet ‘‘TVA Guidelines for approved TVA reservoir land manage- Fish Attractor Placement in TVA Res- ment plan, to approve a structure or ervoirs’’ (TVA 1997). activity that varies from the require- (b) When established in connection ments of this part in minor aspects. with an approved dock, fish attractors shall not project more than 30 feet out § 1304.409 Indefinite or temporary from any portion of the dock. moorage of recreational vessels. (c) Any floatable materials must be (a) Recreational vessels’ moorage at permanently anchored. unpermitted locations along the water’s edge of any TVA reservoir may § 1304.412 Definitions. not exceed 14 consecutive days at any Except as the context may otherwise one place or at any place within one require, the following words or terms, mile thereof. when used in this part 1304, have the (b) Recreational vessels may not es- meaning specified in this section. tablish temporary moorage within the 100-year floodplain means that area limits of primary or secondary naviga- inundated by the one percent annual tion channels. chance (or 100-year) flood. (c) Moorage lines of recreational ves- 500-year floodplain means that area sels may not be placed in such a way as inundated by the 0.2 percent annual to block or hinder boating access to chance (or 500-year) flood; any land any part of the reservoir. susceptible to inundation during the (d) Permanent or extended moorage 500-year or greater flood. of a recreational vessel along the Act means the Tennessee Valley Au- shoreline of any TVA reservoir without thority Act of 1933, as amended. approval under section 26a of the TVA Applicant means the person, corpora- Act is prohibited. tion, State, municipality, political subdivision or other entity making appli- § 1304.410 Navigation restrictions. cation to TVA. (a) Except for the placement of riprap Application means a written request along the shoreline, structures, land for the approval of plans pursuant to based or water use, shall not be located the regulations contained in this part.

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Backlot means a residential lot not imum shoreline contours of that res- located adjacent to the shoreline but ervoir. located in a subdivision associated Maximum shoreline contour means an with the shoreline. elevation typically five feet above the Board means the Board of Directors top of the gates of a TVA dam. It is of TVA. sometimes the property boundary be- Community outlot means a subdivision tween TVA property and adjoining pri- lot located adjacent to the shoreline vate property. and designated by deed, subdivision Nonnavigable houseboat means any covenant, or recorded plat as available houseboat not in compliance with one for use by designated property owners or more of the criteria defining a navi- within the subdivision. gable houseboat. Dredging means the removal of mate- Owner or landowner ordinarily means rial from a submerged location, pri- all of the owners of a parcel of land. marily for deepening harbors and wa- Except as otherwise specifically pro- terways. vided in this part, in all cases where Enclosed structure means a structure TVA approval is required to engage in enclosed overhead and on all sides so as an activity and the applicant’s eligi- to keep out the weather. bility to seek approval depends on status as an owner of real property, the Flood control storage means the vol- owner or owners of only a fractional in- ume within an elevation range on a terest or of fractional interests total- TVA reservoir that is reserved for the ing less than one in any such property storage of floodwater. shall not be considered, by virtue of means the Flood control storage zone such fractional interest or interests area within an elevation range on a only, to be an owner and as such eligi- TVA reservoir that is reserved for the ble to seek approval to conduct the ac- storage of floodwater. TVA shall, upon tivity without the consent of the other request, identify the contour marking co-owners. In cases where the applicant the upper limit of the flood control owns water access rights across adjoin- storage zone at particular reservoir lo- ing private property that borders TVA- cations. owned shoreland, TVA may exercise its Flood risk profile elevation means the discretion to consider such person an elevation of the 500-year flood that has owner, taking into account the avail- been adjusted for surcharge at the dam. ability of the shoreline to accommo- Surcharge is the ability to raise the date similarly situated owners and water level behind the dam above the such other factors as TVA deems to be top-of-gates elevation. appropriate. In subdivisions where TVA Flowage easement shoreland means had an established practice prior to privately-owned properties where TVA September 8, 2003 of permitting indi- has the right to flood the land. vidual or common water-use facilities Footprint means the total water sur- on or at jointly-owned lots without the face area of either a square or rectan- consent of all co-owners, TVA may ex- gular shape occupied by an adjoining ercise its discretion to continue such property owner’s dock, pier, boathouse, practice, taking into account the avail- or boatwells. ability of the shoreline to accommo- Full summer pool means the targeted date similarly situated owners and elevation to which TVA plans to fill other factors as TVA deems to be ap- each reservoir during its annual oper- propriate; provided, however, that the ating cycle. Applicants are encouraged issuance of a TVA permit conveys no to consult the appropriate TVA Water- property interests, and the objections shed Team or the TVA website to ob- of a co-owner may be a basis for rev- tain the full summer pool elevation for ocation of the permit. the reservoir in question at the time Shoreland means the surface of land the application is submitted. lying between minimum winter pool Land-based structure means any struc- elevation of a TVA reservoir and the ture constructed on ground entirely maximum shoreline contour. above the full summer pool elevation Shoreline means the line where the of a TVA reservoir but below the max- water of a TVA reservoir meets the

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shore when the water level is at the Subpart A—Regulations and full summer pool elevation. Procedures Shoreline Management Zone (SMZ) means a 50-foot-deep vegetated zone § 1306.1 Purpose and applicability. designated by TVA on TVA-owned (a) Purpose. The purpose of the regu- land. lations and procedures in this Subpart TVA means the Tennessee Valley Au- A is to implement Uniform Relocation thority. Assistance and Real Property acquisi- TVA property means real property tion Policies Act of 1970 (Pub. L. 91–646, owned by the United States and under 84 Stat. 42 U.S.C. 4601) as amended by the custody and control of TVA. the Surface Transportation and Uni- Vice President means the Vice Presi- form Relocation Assistance Act of 1987 dent, Resource Stewardship, TVA, or a (Title IV of Pub. L. 100–17, Stat. 246–256, functionally equivalent position. 42 U.S.C. 4601 note) (Uniform Act, as Water-based structure means any amended). structure, fixed or floating, con- (b) Applicability. (1) Titles and I and II structed on or in navigable waters of of the Uniform Act, as amended, gov- the United States. ern relocation assistance by TVA. For Winter drawdown elevation means the TVA program activities undertaken elevation to which a reservoir water after April 1, 1989, relocation assistance level is lowered during fall to provide under those titles will be governed by storage capacity for winter and spring implementing regulations set forth in floodwaters. Subpart A and Subparts C through G of Winter pool means the lowest level ex- 49 CFR part 24. pected for the reservoir during the (2) Regulations and procedures for flood season. complying with the real property acquisition provisions of Title III of the PART 1305 [RESERVED] Uniform Act, as amended, are set forth in this part. PART 1306—RELOCATION ASSIST- [52 FR 48019, Dec. 17, 1987] ANCE AND REAL PROPERTY AC- QUISITION POLICIES § 1306.2 Uniform real property acquisition policy. Subpart A—Regulations and Procedures (a) Before negotiations are initiated for acquisition of real property, the Sec. 1306.1 Purpose and applicability. Chief of TVA’s Land Branch will cause 1306.2 Uniform real property acquisition the property to be appraised and estab- policy. lish an amount believed to be just com- 1306.3 Surrender of possession. pensation therefor. The appraiser shall 1306.4 Rent after acquisition. afford the owner or his representative 1306.5 Tenants’ rights in improvements. an opportunity to accompany him dur- 1306.6 Expense of transfer of title and prora- ing his inspection of the property. tion of taxes. (b) When negotiations are initiated to acquire real property, the owner will Subpart B [Reserved] be given a written statement of, and summary of the basis for, the amount AUTHORITY: Sec. 213, Uniform Relocation estimated as just compensation. The Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 91–646, 84 Stat. statement will identify the property 1894 (42 U.S.C. 4601) as amended by the Sur- and the interest therein to be acquired, face Transportation and Uniform Relocation including buildings and other improve- Assistance Act of 1987, Title IV of Pub. L. ments to be acquired as a part of the 100–17, 101 Stat. 246–256 (42 U.S.C. 4601 note); real property, the amount of the esti- 48 Stat. 58, as amended (16 U.S.C. 831–831dd). mated just compensation, and the basis therefor. If only a portion of the property is to be acquired, the statement

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will include a statement of damages (b) Real property taxes shall be pro- and benefits, if any, to the remainder. rated to relieve the seller from paying taxes which are allocable to a period [38 FR 3592, Feb. 8, 1973. Redesignated at 52 FR 48019, Dec. 17, 1987] subsequent to vesting of title in the United States or the date of possession, § 1306.3 Surrender of possession. whichever is earlier. Possession of real property will not [38 FR 3592, Feb. 8, 1973. Redesignated at 52 be taken until the owner has been paid FR 48019, Dec. 17, 1987] the agreed purchase price or TVA’s estimate of just compensation has been Subpart B [Reserved] deposited in court in a condemnation proceeding. To the greatest extent PART 1307—NONDISCRIMINATION practicable, no person will be required to move from property acquired by WITH RESPECT TO HANDICAP TVA without at least 90 days’ written Sec. notice thereof. 1307.1 Definitions. [38 FR 3592, Feb. 8, 1973. Redesignated at 52 1307.2 Purpose. FR 48019, Dec. 17, 1987] 1307.3 Application. 1307.4 Discrimination prohibited. § 1306.4 Rent after acquisition. 1307.5 Employment discrimination. 1307.6 Accessibility. If TVA rents real property acquired 1307.7 Assurances required. by it to the former owner or former 1307.8 Compliance information. tenant, the amount of rent shall not 1307.9 Conduct of investigations. exceed the fair rental value on a short- 1307.10 Procedure for effecting compliance. term basis. 1307.11 Hearings. 1307.12 Decisions and notices. [38 FR 3592, Feb. 8, 1973. Redesignated at 52 1307.13 Effect on other regulations; super- FR 48019, Dec. 17, 1987] vision and coordination. § 1306.5 Tenants’ rights in improve- AUTHORITY: TVA Act, 48 Stat. 58 (1933) as ments. amended, 16 U.S.C. 831–831dd (1976) and sec. 504 of the Rehabilitation Act of 1973, Pub. L. Tenants of real property being ac- 93–112, as amended, 29 U.S.C. 794 (1976; Supp. quired by TVA will be paid just com- II 1978). pensation for any improvements owned SOURCE: 45 FR 22895, Apr. 4, 1980, unless by them, whether or not they might otherwise noted. have a right to remove such improvements under the terms of their ten- § 1307.1 Definitions. ancy. Such payment will be made only As used in this part, the following upon the condition that all right, title, terms have the stated meanings, unless and interest of the tenant in such im- the context otherwise requires: provements shall be transferred to (a) Section 504 means section 504 of TVA and upon the further condition the Rehabilitation Act of 1973, Pub. L. that the owner of the real property 93–112, as amended, 29 U.S.C. 794. being acquired shall execute a dis- (b) Recipient means any individual, claimer of any interest in said im- any State or its political subdivision, provements. or any instrumentality of either, and [38 FR 3592, Feb. 8, 1973. Redesignated at 52 any public or private agency, institu- FR 48019, Dec. 17, 1987] tion, organization, or other entity to which financial assistance is extended § 1306.6 Expense of transfer of title by TVA directly or through another re- and proration of taxes. cipient, including any successor, as- In connection with the acquisition of signee, or transferee of a recipient as real property by TVA: hereinafter set forth, but excluding the (a) TVA will, to the extent it deems ultimate beneficiary of the assistance. fair and reasonable, bear all expenses (c) Financial assistance means the incidental to the transfer of title to the grant or loan of money; the donation of United States, including penalty costs real or personal property; the sale, for the prepayment of any valid pre- lease, or license of real or personal existing recorded mortgage; property for a consideration which is

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nominal or reduced for the purpose of forming manual tasks, walking, seeing, assisting the recipient; the waiver of hearing, speaking, breathing, learning, charges which would normally be and working. made, in order to assist the recipient; (3) Has a record of such an impairment the entry into a contract where a pur- means has a history of, or has been pose is to give financial assistance to misclassified as having, a physical or the contracting party; and similar mental impairment that substantially transactions. limits one or more major life activi- (d) Facility means all or any portion ties. of buildings, structures, equipment, (4) Is regarded as having such an im- roads, walks, parking lots, or other pairment means (i) has a physical or real or personal property or interest in mental impairment that does not sub- such property. stantially limit major life activities (e) Federal agency means any depart- but which is treated by a recipient as ment, agency, or instrumentality of constituting such a limitation; (ii) has the Government of the United States, a physical or mental impairment that other than TVA. substantially limits major life activi- (f) Handicapped person means any in- ties only as a result of the attitudes of dividual who has a physical or mental others toward the impairment; or (iii) impairment that substantially limits does not have a physical or mental im- one or more major life activities, has a pairment as defined in paragraph (f)(1) record of such an impairment, or is re- of this section but is treated by a regarded as having such an impairment, cipient as having such an impairment. as further defined below, except that, (g) Qualified handicapped person as related to employment, the term means (1) with respect to employment, handicapped individual does not include a handicapped person (except an alco- any individual who is an alcoholic or holic or drug abuser as defined in para- drug abuser whose current use of alco- graph (f) of this section), who, with hol or drugs prevents such individual reasonable accommodation, can per- from performing the duties of the job in question or whose employment, by form the essential functions of the job reason of such current drug or alcohol in question and (2) with respect to serv- abuse, would constitute a direct threat ices, a handicapped person who meets to property or the safety of others: the essential eligibility requirements (1) Physical or mental impairment for the receipt of such services. means (i) any physiological disorder or (h) Historic property means an condition, cosmetic disfigurement, or architecturally, historically, or cul- anatomical loss affecting one or more turally significant property listed in or of the following body systems: Neuro- eligible for listing in the National Reg- logical; musculoskeletal; special sense ister of Historic Places, or a property organs; respiratory, including speech officially designated as having archi- organs; cardiovascular; reproductive; tectural, historic, or cultural signifi- digestive; genitourinary; hemic and cance under a statute of the appro- lymphatic; skin; and endocrine; or (ii) priate State or local governmental any mental or psychological disorder, body. such as mental retardation, organic (i) Building alterations means those brain syndrome, emotional or mental changes to existing conditions and illness, and specific learning disabil- equipment of a building which do not ities. The term physical or mental im- involve any structural changes, but pairment includes, but is not limited to, which typically improve and upgrade a such diseases and conditions as ortho- building, such as site improvements pedic, visual, speech, and hearing im- and alterations to stairways, doors, pairments; cerebral palsy; epilepsy; toilets or elevators. muscular dystrophy; multiple sclerosis; (j) Structural changes shall mean cancer; heart disease; diabetes; mental those changes which alter the struc- retardation; emotional illness; and ture of a building, including but not drug addiction and alcoholism. limited to its load bearing walls and all (2) Major life activities means func- types of post and beam systems in tions such as caring for one’s self, per- wood, steel, iron or concrete.

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(k) Program or activity means all of § 1307.3 Application. the operations of any entity described This part applies to any program or in paragraphs (k)(1) through (4) of this activity for which financial assistance section, any part of which is extended is provided by TVA, except that this Federal financial assistance: part does not apply to any (a) TVA pro- (1)(i) A department, agency, special curement contracts, contracts with purpose district, or other instrumen- other Federal agencies, or contracts of tality of a State or of a local govern- insurance or guaranty, (b) money paid, ment; or property transferred, or other assist- (ii) The entity of such State or local ance extended to a recipient before the government that distributes such as- effective date of this part, or (c) assist- sistance and each such department or ance to any individual or entity which agency (and each other State or local is the ultimate beneficiary. Nothing in government entity) to which the as- paragraph (b) of this section exempts sistance is extended, in the case of as- any recipient of financial assistance sistance to a State or local govern- under a contract in effect on the effec- ment; tive date of this part from compliance (2)(i) A college, university, or other with this part. postsecondary institution, or a public system of higher education; or [45 FR 22895, Apr. 4, 1980, as amended at 68 (ii) A local educational agency (as de- FR 51356, Aug. 26, 2003] fined in 20 U.S.C. 7801), system of voca- § 1307.4 Discrimination prohibited. tional education, or other school system; (a) General. No qualified handicapped (3)(i) An entire corporation, partner- person, shall, on the basis of handicap, ship, or other private organization, or be excluded from participation in, be an entire sole proprietorship— denied the benefits of, or otherwise be (A) If assistance is extended to such subjected to discrimination under any corporation, partnership, private orga- program or activity to which this part nization, or sole proprietorship as a applies. whole; or (b) Specific discriminatory actions. (1) A (B) Which is principally engaged in recipient to which this part applies the business of providing education, shall not, directly or through contrac- health care, housing, social services, or tual, licensing, or other arrangements, parks and recreation; or on the basis of handicap: (ii) The entire plant or other com- (i) Deny a qualified handicapped per- parable, geographically separate facil- son the opportunity to participate in ity to which Federal financial assist- or benefit from the aid, benefit, or ance is extended, in the case of any services available under the program or other corporation, partnership, private activity; organization, or sole proprietorship; or (ii) Afford a qualified handicapped (4) Any other entity which is estab- person an opportunity to participate in lished by two or more of the entities or benefit from the aid, benefit, or described in paragraph (k)(1), (2), or (3) service that is not equal to that af- of this section. forded others under the program or activity; [45 FR 22895, Apr. 4, 1980, as amended at 68 (iii) Provide a qualified handicapped FR 51356, Aug. 26, 2003] person with an aid, benefit, or service that is not as effective in affording § 1307.2 Purpose. equal opportunity to obtain the same The purpose of this part is to effec- result, to gain the same benefit, or to tuate section 504 to the end that no reach the same level of achievement as otherwise qualified handicapped indi- that provided to others under the pro- vidual shall, solely by reason of his or gram or activity; her handicap, be excluded from the par- (iv) Provide different or separate aid, ticipation in, be denied the benefits of, benefits, or services to handicapped or be subjected to discrimination under persons or to any class of handicapped any program or activity receiving fi- persons than is provided to others, un- nancial assistance from TVA. less such action is necessary to provide

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qualified handicapped persons with aid, (c) The exclusion of nonhandicapped benefits, or services that are as effec- persons from aid, benefits, or services tive as those provided to others under limited by Federal statute or executive the program or activity; order to handicapped persons or the ex- (v) Aid or perpetuate discrimination clusion of a specific class of handi- against a qualified handicapped person capped persons from aid, benefits, or by providing significant assistance to services limited by Federal statute or an agency, organization, or entity that executive order to a different class of discriminates on the basis of handicap handicapped persons is not prohibited in providing any aid, benefit, or service by this part. to beneficiaries of the recipient’s pro- (d) Recipients shall administer program or activity; grams or activities in the most inte- (vi) Deny a qualified handicapped grated setting appropriate to the needs person the opportunity to participate of qualified handicapped persons. A re- as a member of planning or advisory cipient who wishes to establish a policy boards with respect to the program or of separate aid, benefits, or services or activity; or different treatment for handicapped (vii) Otherwise limit a qualified and nonhandicapped persons shall re- handicapped person in the enjoyment quest and receive written approval under the program of any right, privi- from TVA before instituting such pol- lege, advantage, or opportunity en- icy or undertaking any such separate joyed by others under the program or treatment. activity. (e) Recipients shall take appropriate (2) A recipient shall not deny a quali- steps to ensure that communications fied handicapped person the oppor- to their applicants, employees, and tunity to participate under the pro- beneficiaries are available to such per- gram or activity in activities that are sons with impaired vision and hearing. not separate or different, despite the existence of permissibly separate or [45 FR 22895, Apr. 4, 1980, as amended at 68 FR 51356, Aug. 26, 2003] different aid, benefits, or services. (3) A recipient shall not, directly or § 1307.5 Employment discrimination. through contractual or other arrangements, utilize criteria or methods of (a) General. No qualified handicapped administration (i) that have the effect person shall, on the basis of handicap, of subjecting qualified handicapped be subjected to discrimination in em- persons to discrimination on the basis ployment under any program or activ- of handicap, (ii) that have the purpose ity subject to this part. or effect of defeating or substantially (b) Specific discriminatory actions. impairing accomplishment of the ob- With respect to a program or activity jectives of the program or activity subject to this part, a recipient shall with respect to handicapped persons, or not limit, segregate, or classify appli- (iii) that perpetuate the discrimination cants or employees in any way that ad- of another recipient if both recipients versely affects their opportunities or are subject to common administrative status because of handicap. control. (c) A recipient shall make all deci- (4) A recipient shall not, in deter- sions concerning employment under mining the site or location of a facility any program or activity subject to this under the program or activity, make part in a manner which ensures that selections (i) that have the effect of ex- discrimination on the basis of handicap cluding handicapped persons from, de- does not occur, including the following nying them the benefits of, or other- activities: wise subjecting them to discrimination (1) Recruitment, advertising, and under the program or activity, or (ii) processing of applications for employ- that have the purpose or effect of de- ment; feating or substantially impairing the (2) Hiring, upgrading, promotion, accomplishment of the objectives of award of tenure, demotion, transfer, the program or activity with respect to layoff, termination, right of return handicapped persons. from layoff, and rehiring;

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(3) Rates of pay or any other form of graph factors to be considered include compensation and changes in com- but are not limited to: pensation; (i) The nature and cost of the accom- (4) Job assignments, job classifica- modation needed, and its effect, if any, tions, organizational structures, posi- on the recipient’s programs or activi- tion descriptions, lines of progression, ties. and seniority lists; (ii) The kind of operation conducted (5) Leaves of absence, sick leave, or by the recipient, including the com- any other leave; position and structure of the recipi- (6) Fringe benefits available by vir- ent’s workforce; and tue of employment, whether or not ad- (iii) The overall size of the recipient’s ministered by the recipient; program or activity with respect to (7) Selection and financial support number of employees, number and type for training, including apprenticeship, of facilities, and size of budget. professional meetings, conferences, and (3) It is not an undue hardship with other related activities, and selection respect to a qualified handicapped em- for leaves of absence to pursue train- ployee or applicant if the sole basis for ing; the claim of hardship is the need to make an accommodation to the phys- (8) Employer sponsored activities, in- ical or mental limitations of the other- cluding those that are social or rec- wise qualified employee or applicant reational; and and the accommodation is deemed by (9) Any other term, condition, or TVA to be reasonable. privilege of employment. (f) Employment criteria. A recipient (d) A recipient shall not participate shall not use employment tests or cri- in a contractual or other relationship teria that discriminate against handi- that has the effect of subjecting quali- capped persons and shall ensure that fied handicapped applicants or employ- employment tests are adapted for use ees to discrimination prohibited by by persons who have handicaps that this part, including relationships with impair sensory, manual, or speaking employment and referral agencies, skills. with labor unions, with organizations (g) Preemployment inquiries. (1) A re- providing or administering fringe bene- cipient shall not conduct a preemploy- fits to employees of the recipient, and ment medical examination or make a with organizations providing training preemployment inquiry as to whether and apprenticeships. an applicant is a handicapped person or (e) Reasonable accommodation. (1) A as to the nature or severity of a handi- recipient shall make reasonable accom- cap except as set out in this paragraph modation to the known physical or (g). mental limitations of an otherwise (2) A recipient may make a pre- qualified handicapped applicant or em- employment inquiry into an appli- ployee unless the recipient can dem- cant’s ability to perform job-related onstrate that the accommodation functions. would impose an undue hardship on the (3) When a recipient is taking reme- operation of the program or activity dial action to correct the effects of subject to this part. Reasonable accom- past discrimination, taking voluntary modation may include: action to overcome the effects of condi- (i) Making facilities used by employ- tions that resulted in limited partici- ees readily accessible to and usable by pation in its TVA-assisted program or handicapped persons; and activity or is taking affirmative action (ii) Job restructuring, part-time or pursuant to section 503 of the Rehabili- modified work schedules, acquisition tation Act of 1973, the recipient may or modification of equipment or de- invite applicants for employment to in- vices, the provision of readers or inter- dicate whether and to what extent they preters, or other similar actions. are handicapped: Provided, That the re- (2) In determining whether an accom- cipient states clearly on any written modation would impose an undue hard- questionnaire used for this purpose, or ship on the operation of a recipient’s makes clear orally if no written ques- program or activity under this para- tionnaire is so used, that:

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(i) The information requested is in- (b) Existing facilities. (1) Each program tended for use solely in connection or activity subject to this part shall be with such remedial, voluntary or af- operated so that when each part is firmative action efforts; viewed in its entirety it is readily ac- (ii) The information is being re- cessible to and usable by qualified quested on a voluntary basis and it will handicapped persons. This paragraph be kept confidential as provided in does not necessarily require a recipient paragraph (g)(4) of this section; to make each of its existing facilities (iii) Refusal to provide the informa- or every part of an existing facility action will not subject the applicant or cessible to and usable by handicapped employee to any adverse treatment; persons. A recipient is not required to and make building alterations or structural (iv) The information will be used changes if other methods are effective only in accordance with this part. in achieving accessibility. Such com- (4) Nothing in this section shall pro- pliance methods may include (subject hibit a recipient from conditioning an to the provisions of §§ 1307.4 and 1307.5), offer of employment on the results of a reassigning aid, benefits, or services to medical examination conducted prior accessible locations within a facility; to the employee’s entrance on duty: providing assistance to handicapped Provided, That: persons into or through an otherwise (i) All entering employees are sub- inaccessible facility; delivering projected to such an examination regard- grams or activities at other alternative less of handicap; and sites which are accessible and are oper- (ii) The results of such an examina- ated or available for use by the recipi- tion are used only in accordance with ent; or other methods which comply the requirements of this part. with the intent of this paragraph. (5) Information obtained in accord- (2) This paragraph governs the tim- ance with this section as to the med- ing of development of transition plans ical condition or history of an em- and the completion of necessary build- ployee or applicant shall be collected ing alterations and structural changes and maintained on separate forms that to existing facilities, including historic shall be accorded confidentiality as property covered by paragraph (c) of medical records, except that: this section. If building alterations or (i) Supervisors and managers may be structural changes will be necessary to informed regarding restrictions on the comply with paragraph (b)(1) of this work or duties of handicapped persons section, the recipient shall develop a and regarding necessary accommoda- transition plan setting forth the steps tions; necessary to complete the alterations (ii) First aid and safety personnel or changes in accordance with such may be informed, where appropriate, if standards as TVA may specify in the the condition might require emergency contract or agreement, and shall have treatment; and the plan approved by TVA. If the finan- (iii) TVA officials investigating com- cial assistance from TVA is expected to pliance with section 504 shall be pro- last for less than three years, the con- vided information which they deem rel- tract or agreement shall specify the evant upon request. date by which the transition plan shall be developed and approved. If the fi- [45 FR 22895, Apr. 4, 1980, as amended at 68 nancial assistance from TVA is ex- FR 51356, Aug. 26, 2003] pected to last for at least three years, the transition plan shall be developed § 1307.6 Accessibility. and submitted to TVA within six (a) General. No qualified handicapped months from the effective date of the person shall, because facilities are in- contract or agreement, subject to ex- accessible to or unusable by handi- tension by TVA for an additional six capped persons, be denied the benefits month period, for good cause shown to of, be excluded from participation in, it. A transition plan shall: or otherwise be subjected to discrimi- (i) Be developed with the assistance nation under any program or activity of interested persons or organizations subject to this part. representing handicapped persons;

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(ii) Be available for public inspection part 101–19.6 app. A) shall be deemed to after approval by TVA (or at any ear- comply with the requirements of this lier time required by state or local law section with respect to those buildings. applicable to the recipient); Departures from particular technical (iii) Identify the official responsible and scoping requirements of UFAS by for implementation of the approved the use of other methods are permitted plan; and where substantially equivalent or (iv) Specify the date by which the re- greater access to and usability of the quired alterations or changes shall be building is provided. completed, which shall be as soon as (3) For purposes of this section, sec- practicable and in no event later than tion 4.1.6(1)(g) of UFAS shall be inter- three years after the effective date preted to exempt from the require- that financial assistance is extended by ments of UFAS only mechanical rooms TVA. and other spaces that, because of their (3) Alterations to existing facilities intended use, will not require accessi- shall, to the maximum extent feasible, bility to the public or beneficiaries or be designed and constructed to be read- result in the employment or residence ily accessible to and usable by handicapped persons. therein of physically handicapped per- (c) Historic property. If a recipient’s sons. program or activity uses an existing fa- (4) This section does not require re- cility which is an historic property, the cipients to make building alterations recipient shall endeavor to assure com- that have little likelihood of being ac- pliance with paragraph (b)(1) of this complished without removing or alter- section by compliance methods which ing a load-bearing structural member. do not alter the historic character or [45 FR 22895, Apr. 4, 1980, as amended at 53 architectural integrity of the historic FR 39083, Oct. 5, 1988; 68 FR 51356, Aug. 26, property. The recipient must deter- 2003] mine that accessibility cannot be accomplished by such alternative meth- § 1307.7 Assurances required. ods before considering building alter- (a) TVA contributes financial assist- ations as a compliance method. To the ance only under agreements which con- maximum extent possible any building tain a provision which specifically re- alterations determined to be necessary quires compliance with this part and shall be undertaken so as not to alter compliance with such standards for or destroy architecturally significant construction and alteration of facili- elements or features. A recipient may ties as TVA may provide. If the finan- determine that structural changes are cial assistance involves the furnishing necessary to accomplish accessibility only if the recipient has determined of real property, the agreement shall that accessibility cannot feasibly be obligate the recipient, or the transferee accomplished by any of the other fore- in the case of a subsequent transfer, for going methods. To the maximum ex- the period during which the real prop- tent possible, any structural changes erty is used for a purpose for which the determined to be necessary shall be un- financial assistance is extended or for dertaken so as not to alter or destroy another purpose involving the provi- architecturally significant elements or sion of similar services or benefits. features. Where the financial assistance involves (d) New construction. (1) New facilities the furnishing of personal property, the required under a program or activity agreement shall obligate the recipient subject to this part shall be designed during the period for which ownership and constructed to be readily acces- or possession of the property is re- sible to and usable by handicapped per- tained. In all other cases the agree- sons. ment shall obligate the recipient for (2) Effective as of November 4, 1988, the period during which financial as- design, construction, or alteration of sistance is extended pursuant to the buildings in conformance with Sections agreement. TVA shall specify the form 3–8 of the Uniform Federal Accessi- of the foregoing agreement, and the ex- bility Standards (UFAS) (41 CFR Sub- tent to which an agreement shall be

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applicable to subcontractors, trans- obtaining compliance with this part ferees, successors in interest, and other and shall provide assistance and guid- participants. ance to recipients to help them comply (b) In the case of real property, struc- voluntarily with this part. tures or improvements thereon, or in- (b) Compliance reports. Each recipient terests therein, acquired with TVA fi- shall keep such records and submit to nancial assistance, or in the case where TVA timely, complete and accurate financial assistance was provided in compliance reports at such times, and the form of a transfer by TVA of real in such form and containing such infor- property or interest therein, the in- mation, as TVA may determine to be strument effecting or recording the necessary to enable it to ascertain transfer of title shall contain a whether the recipient has complied or convenant running with the land assur- is complying with this part. In the case ing compliance with this part and the which a primary recipient extends fi- guidelines contained herein for the pe- nancial assistance to any other recipi- riod during which the real property is ent, such other recipient shall also sub- used for a purpose for which the TVA mit such compliance reports to the pri- financial assistance is extended or for mary recipient as may be necessary to another purpose involving the provi- enable the primary recipient to carry sion of similar services or benefits. out its obligations under this part. Where no transfer of property is in- (c) Access to sources of information. volved, but property is improved with Each recipient shall permit access by of TVA financial assistance, the recipi- TVA during normal business hours to ent shall agree to include such a cov- such of its books, records, accounts, enant in any subsequent transfer of and other sources of information, and such property. Where the property is its facilities, as TVA may require to obtained by transfer from TVA, the ascertain compliance with this part. covenant against discrimination may Where any information required of a also include a condition coupled with a recipient is in the exclusive possession right to be reserved by TVA to revert of any other agency, institution or per- title to the property in the event of a son and this agency, institution or per- breach of the covenant where, in the son shall fail or refuse to furnish this discretion of TVA, such a condition information, the recipient shall so cer- and right of reverter is appropriate to tify in its report and set forth the ef- the statute under which the real prop- forts it has made to obtain the infor- erty is obtained and to the nature of mation. the grant and the grantee. In such (d) Information to employees, bene- event, if a transferee of real property ficiaries and participants. Each recipient proposes to mortgage or otherwise en- shall make available to employees, cumber the real property as security participants, beneficiaries, and other for financing construction of new, or interested persons such information re- improvement of existing, facilities on garding the provisions of this part and such property for the purposes for its applicability to the program or ac- which the property was transferred, tivity for which the recipient receives TVA may agree, upon request of the financial assistance, and shall make transferee and if necessary to accom- such information available to them in plish such financing, and upon such such manner, as TVA finds necessary conditions as it deems appropriate, to to apprise such persons of the protec- forbear the exercise of such right to re- tions against discrimination assured vert title for so long as the lien of such them by section 504 and this part. mortgage or other encumbrance re- [45 FR 22895, Apr. 4, 1980, as amended at 68 mains effective. FR 51356, Aug. 26, 2003] [45 FR 22895, Apr. 4, 1980, as amended at 68 FR 51356, Aug. 26, 2003] § 1307.9 Conduct of investigations. (a) Periodic compliance reviews. TVA § 1307.8 Compliance information. shall from time to time review the (a) Cooperation and assistance. TVA practices of recipients to determine shall to the fullest extent practicable whether they are complying with this seek the cooperation of recipients in part.

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(b) Complaints. Any individual who § 1307.10 Procedure for effecting com- claims (individually or on behalf of any pliance. specific class of individuals) to have (a) General. If there appears to be a been subjected to discrimination pro- failure or threatened failure to comply hibited by this part may, personally or with this part, and if the noncompli- by a representative, file with TVA a ance or threatened noncompliance can- written complaint. A complaint must not be corrected by informal means, be filed not later than ninety (90) days compliance with this part may be ef- from the date of the alleged discrimi- fected by the suspension or termination, unless the time for filing is ex- nation of or refusal to grant or to contended by TVA. tinue financial assistance or by any (c) Investigations. TVA will make a other means authorized by law. Such prompt investigation whenever a com- other means may include, but are not pliance review, report, complaint, or to be limited to, (1) a reference to the any other information indicates a pos- Department of Justice with a rec- sible failure to comply with this part. ommendation that appropriate pro- The investigation shall include, where ceedings be brought to enforce any appropriate, a review of the pertinent rights of the United States under any practices and policies of the recipient, law of the United States, (2) institution the circumstances under which the pos- of appropriate proceedings by TVA to sible noncompliance with this part oc- enforce the provisions of the agreement curred, and other factors relevant to a of financial assistance or of any deed or determination as to whether the recipi- instrument relating thereto, and (3) ent has failed to comply with this part. any applicable proceeding under State or local law. (d) Resolution of matters. (1) If an investigation pursuant to paragraph (c) (b) Noncompliance with § 1307.7. If any entity requesting financial assistance of this section indicates a failure to from TVA declines to furnish the as- comply with this part, TVA will so insurance required under § 1307.7, or oth- form the recipient and the matter will erwise fails or refuses to comply with a be resolved by informal means when- requirement imposed by or pursuant to ever possible. If TVA determines that that section, financial assistance may the matter cannot be resolved by infor- be refused in accordance with the pro- mal means, action will be taken as procedures of paragraph (c) of this section; vided for in § 1307.10. and for such purposes, the term ‘‘re- (2) If an investigation does not war- cipient’’ includes one who has been de- rant action pursuant to paragraph (d) nied financial assistance. TVA shall (1) of this section, TVA will so inform not be required to provide assistance in the recipient and the complainant, if such a case during the pendency of the any, in writing. administrative proceedings under such (e) Intimidatory or retaliatory acts pro- paragraph except that TVA shall con- hibited. No recipient or other person tinue assistance during the pendency of shall intimidate, threaten, coerce, or such proceedings where such assistance discriminate against any individual for was due and payable pursuant to an the purpose of interfering with any agreement therefor entered into with right or privilege secured by section 504 TVA prior to the effective date of this or this part, or because the individual part. had made a complaint, testified, as- (c) Termination of or refusal to grant or sisted, or participated in any manner to continue financial assistance. No order in an investigation, proceeding, or suspending, terminating or refusing to hearing under this part. The identity of grant or continue financial assistance complainants shall be kept confiden- shall become effective until (1) TVA tial except to the extent necessary to has advised the recipient of the failure to comply and has determined that carry out the purposes of this part, in- compliance cannot be secured by vol- cluding the conduct of any investiga- untary means, (2) there has been an ex- tion, hearing, or judicial proceeding press finding on the record, after op- arising thereunder. portunity for hearing, of a failure by

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the recipient to comply with a require- place of the hearing. A recipient may ment imposed by or pursuant to this waive a hearing and submit written in- part, including any act of discrimina- formation and argument for the record. tion on the basis of handicap in viola- The failure of a recipient to request a tion of this part, and (3) the action has hearing under this subsection or to ap- been approved by the TVA Board pur- pear at a hearing for which a date has suant to § 1307.12. Any action to sus- been set shall be deemed to be a waiver pend or terminate or to refuse to grant of the right to a hearing and a consent or to continue financial assistance to the making of a decision on the shall be limited to the particular re- basis of such information as is avail- cipient as to whom such a finding had able. been made and shall be limited in its (b) Hear- effect to the particular program or ac- Time and place of hearing. tivity, or part thereof, in which such ings shall be held at the time and place noncompliance had been so found. fixed by TVA unless it determines that (d) Other means authorized by law. No the convenience of the recipient re- action to effect compliance by any quires that another place be selected. other means authorized by law shall be Hearings shall be held before the TVA taken until (1) TVA has determined Board or before a ‘‘hearing officer’’ who that compliance cannot be secured by shall be either a member of the TVA voluntary means, (2) the recipient or Board or, at the discretion of the other person has been notified of its Board, a person designated by the failure to comply and of the action to Board who shall not be employed in or be taken to effect compliance, and (3) under the TVA division through or the expiration of at least ten (10) days under which the financial assistance from the mailing of such notice to the has been extended by TVA to the re- recipient or other person. During this cipient involved in the hearing. period of at least ten (10) days addi- (c) Right to counsel. In all proceedings tional efforts will be made to persuade under this section, the recipient and the recipient or other person to comply TVA shall have the right to be rep- with this part and to take such correc- resented by counsel. tive action as may be appropriate. (d) Procedures, evidence, and record. (1) [45 FR 22895, Apr. 4, 1980, as amended at 68 The hearing, decision, and any admin- FR 51356, Aug. 26, 2003] istrative review thereof shall be conducted in accordance with such rules of § 1307.11 Hearings. procedure as are proper (and not incon- (a) Opportunity for hearing. Whenever sistent with this section) relating to an opportunity for a hearing is re- the conduct of the hearing, giving of quired by § 1307.10, reasonable notice notices subsequent to those provided shall be given by registered or certified for in paragraph (a) of this section, mail, return receipt requested, to the taking of testimony, exhibits, argu- affected recipient. This notice shall ad- ments and briefs, requests for findings, vise the recipient of the action pro- and other related matters. Both TVA posed to be taken, the specific provision under which the proposed action and the recipient shall be entitled to against it is to be taken, and the mat- introduce all relevant evidence on the ters of fact or law asserted as the basis issues as stated in the notice for hear- for this action, and shall either (1) fix ing or as determined by the officer con- a date not less than twenty (20) days ducting the hearing at the outset of or after the date of such notice within during the hearing. which the recipient may request of (2) Technical rules of evidence will TVA that the matter be scheduled for not apply to hearings conducted pursu- hearing or (2) advise the recipient that ant to this part, but rules or principles the matter in question has been set designed to assure production of the down for hearing at a stated time and most credible evidence available and to place. The time and place so fixed shall subject testimony to test by cross-ex- be reasonable and shall be subject to amination shall be applied where rea- change for cause. The complainant, if sonably necessary by the officer con- any, shall be advised of the time and ducting the hearing. That officer may

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exclude irrelevant, immaterial, or un- ent a notice that it will review the de- duly repetitious evidence. All docu- cision. Upon the filing of such excep- ments and other evidence offered or tions or of such notice of review, the taken for the record shall be open to TVA Board shall review the initial de- examination by the parties and oppor- cision and issue its own decision there- tunity shall be given to refute facts on including the reasons therefor. In and arguments advanced on either side the absence of either exceptions or a of the issues. A transcript shall be notice of review, the initial decision made of the oral evidence except to the shall constitute the final decision of extent the substance thereof is stipu- the TVA Board. lated for the record. All decisions shall (b) Decisions on record or review by the be based upon the hearing record and TVA Board. Whenever a record is cer- written findings shall be made. tified to the TVA Board for decision or (e) Consolidated or joint hearings. In it reviews the decision of a hearing of- cases in which the same or related ficer pursuant to paragraph (a) of this facts are asserted to constitute non- section, or whenever the TVA Board compliance with this part with respect conducts the hearing, the recipient to two or more Federal statutes, au- shall be given reasonable opportunity thorities, or other means by which to file with the Board briefs or other Federal financial assistance is ex- written statements of its contentions, tended and to which this part applies, and a copy of the final decision of the or noncompliance with this part and Board shall be given in writing to the the regulations of one or more other recipient and to the complainant, if Federal agencies issued under section any. 504, the TVA Board may, by agreement (c) Decisions on record where a hearing with such other agency, provide for the is waived. Whenever a hearing is conduct of consolidated or joint hear- waived, a decision shall be made by the ings, and for the application to such TVA Board on the record and a copy of hearings of rules of procedure not in- such decision shall be given to the re- consistent with this part. Final deci- cipient, and to the complainant, if any. sions in such cases, insofar as this part (d) Rulings required. Each decision is concerned, shall be made in accord- shall set forth a ruling on each finding, ance with § 1307.12. conclusion, or exception presented, and [45 FR 22895, Apr. 4, 1980, as amended at 68 shall identify the requirement or re- FR 51356, Aug. 26, 2003] quirements imposed by or pursuant to this part with which it is found that § 1307.12 Decisions and notices. the recipient has failed to comply. (a) Decision by a member of the TVA (e) Approval by TVA Board. Any final Board or a hearing officer. If the hearing decision (other than a decision by the is held before a ‘‘hearing officer’’ as de- TVA Board) which provides for the sus- fined in § 1307.11(b), that hearing officer pension or termination of, or the re- shall either make an initial decision, if fusal to grant or continue financial asso authorized, or certify the entire sistance, or the imposition of any other record including recommended findings sanction available under this part or and proposed decision to the TVA section 504 shall promptly be trans- Board for a final decision. A copy of mitted to the TVA Board which may such initial decision or certification approve such decision, vacate it, or shall be mailed to the recipient. Where remit or mitigate any sanction im- the initial decision is made by a hear- posed. ing officer, the recipient may file with (f) Content of orders. The final deci- the TVA Board exceptions to the ini- sion may provide for suspension or ter- tial decision, which shall include a mination of, or refusal to grant or con- statement of reasons therefor. Such ex- tinue financial assistance, in whole or ceptions shall be filed within thirty (30) in part, to which this regulation ap- days of the mailing of the notice of ini- plies, and may contain such terms, tial decision. In the absence of excep- conditions, and other provisions as are tions, the TVA Board may on its own consistent with and will effectuate the motion within forty-five (45) days after purposes of section 504 and this part, the initial decision serve on the recipi- including provisions designed to assure

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that no financial assistance to which section 503 of the Rehabilitation Act of this regulation applies will thereafter 1973, or (2) any other regulations or in- be extended to the recipient deter- structions, insofar as they prohibit dis- mined by such decision to have failed crimination on the ground of handicap to comply with this part, unless and in any program or activity or situation until it corrects its noncompliance and to which this part is inapplicable, or satisfies TVA that it will fully comply which prohibit discrimination on any with this part. other ground. (g) Posttermination proceedings. (1) A (b) Supervison and coordination. TVA recipient adversely affected by an may from time to time assign to offi- order issued under paragraph (f) of this cials of other Federal agencies, with section shall be restored to full eligi- the consent of such agencies, respon- bility to receive financial assistance sibilities in connection with the effec- upon satisfaction of the terms and con- tuation of the purposes of section 504 ditions for such eligibility contained in and this part (other than responsibility that order, or if the recipient otherwise for final decision as provided in comes into compliance with this part § 1307.12), including the achievement of and provides reasonable assurance of effective coordination and maximum future full compliance with this part. uniformity within the Executive (2) Any recipient adversely affected Branch of the government in the appli- by an order entered pursuant to para- cation of section 504 and this part to graph (f) of this section may at any similar programs or activities and in time request that TVA fully restore similar situations. Any action taken, the recipient’s eligibility to receive fi- determination made, or requirement nancial assistance. Any such request imposed by an official of another fed- shall be supported by information eral agency acting pursuant to an as- showing that the recipient has met the signment of responsibility under this requirements of paragraph (g)(1) of this part shall have the same effect as section. If TVA determines that those though such action had been taken by requirements have been satisfied, it TVA. shall restore such eligibility. (3) If TVA denies any such request, [45 FR 22895, Apr. 26, 1980, as amended at 68 the recipient may submit a request for FR 51356, Apr. 4, 2003] a hearing in writing, specifying its reasons for believing TVA to have been in PART 1308—CONTRACT DISPUTES error. The recipient shall thereupon be given an expeditious hearing, with a Subpart A—General Matters decision on the record, in accordance Sec. with rules of procedure issued by TVA. 1308.1 Purpose and organization. The recipient, upon proving at such a 1308.2 Definitions. hearing that the requirements of para- 1308.3 Exclusions. graph (g)(1) of this section are satis- 1308.4 Coverage of certain excluded Contrac- fied, will be restored to such eligi- tors. bility. While proceedings under this 1308.5 Interest. paragraph are pending, the sanctions 1308.6 Fraudulent claims. 1308.7 Effective date. imposed by the order issued under paragraph (f) of this section shall re- Subpart B—Contracting Officers main in effect. 1308.11 Contractor’s request for relief. [45 FR 22895, Apr. 4, 2003, as amended at 68 1308.12 Submission and decision of Contrac- FR 51356, Aug. 26, 2003] tor’s claim. 1308.13 Time limits for decisions. § 1307.13 Effect on other regulations; 1308.14 Request for relief by TVA. supervision and coordination. 1308.15 Finality of decisions. (a) Effect on other regulations. Nothing 1308.16 Decisions involving fraudulent in this part shall be deemed to super- claims. sede or affect any of the following (in- 1308.17 Failure to render timely decision. cluding future amendments thereof): Subpart C—Board of Contract Appeals (1) Regulations by TVA and other Fed- eral agencies issued with respect to 1308.21 Jurisdiction and organization.

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1308.22 Representation. (c) The term claim means a written 1308.23 Finality of decisions. demand by a Contractor, in compliance 1308.24 Undue delay in Contracting Officer’s with this paragraph, for a decision by a decision. Contracting Officer under a disputes 1308.25 Stay of appeal for Contracting Offi- clause. A claim must: cer’s decision. 1308.26 Appeals. (1) State the amount of monetary re- 1308.27 Appeal files. lief, or the kind of nonmonetary relief, sought, and identify the contract pro- Subpart D—Prehearing and Hearing vision relied upon; Procedures (2) Include sufficient supporting data to permit the Contracting Officer to 1308.31 Filing and service. decide the claim, or provide appro- 1308.32 Prehearing procedures. priate reference to previously sub- 1308.33 Hearings. mitted data; 1308.34 Record on appeal. (3) If monetary relief totalling more 1308.35 Small claims procedure. 1308.36 Accelerated appeal procedure. than $50,000 is involved, include a 1308.37 Decisions. signed certification by the Contractor 1308.38 Reconsideration. that the claim is made in good faith, 1308.39 Briefs and motions. that the supporting data are accurate and complete to the best of the Con- Subpart E—Subpoenas tractor’s knowledge and belief, and that the amount requested accurately 1308.51 Form. reflects the contract adjustment for 1308.52 Issuance. 1308.53 Service. which the Contractor believes TVA is 1308.54 Requests to quash or modify. liable; 1308.55 Penalties. (4) Be signed by the Contractor, or on its behalf if the Contractor is other AUTHORITY: Tennessee Valley Authority than an individual. If signed on a Con- Act of 1933, as amended, 16 U.S.C. 831–831dd; Contract Disputes Act of 1978, 92 Stat. 2383– tractor’s behalf, the claim must in- 2391. clude evidence of the authority of the individual so signing it, and of the indi- SOURCE: 44 FR 29648, May 22, 1979, unless vidual signing any certification re- otherwise noted. Redesignated at 44 FR 30682, quired by this paragraph, unless such May 29, 1979. authority appears in the contract or contract file. Subpart A—General Matters The Contracting Officer has no author- § 1308.1 Purpose and organization. ity to waive any of the requirements of this paragraph. The regulations in this part imple- (d) The term contract means an agreement the Contract Disputes Act of 1978 ment in writing entered into by TVA as it relates to TVA. This part consists for: of 5 subparts. Subpart A deals with (1) The procurement of property, matters applicable throughout the other than real property in being; part, incuding definitions. Subpart B (2) The procurement of nonpersonal deals with Contracting Officers’ deci- services; sions. Subpart C deals with general (3) The procurement of construction, matters concerning the TVA Board of alteration, repair or maintenance of Contract Appeals. Subpart D deals with real property; or hearing and prehearing procedures, in- (4) The disposal of personal property. cluding discovery. Subpart E deals The term ‘‘contract’’ does not include with subpoenas. any TVA contract for the sale of fertilizer or electric power, or any TVA § 1308.2 Definitions. contract related to the conduct or op- For the purposes of this part, unless eration of the electric power system. otherwise provided: (e) The term Contracting Officer (a) The term Act means the Contract means TVA’s Director of Purchasing, Disputes Act of 1978, 92 Stat. 2383–91. or duly authorized representative act- (b) The term Board means the TVA ing within the limits of the representa- Board of Contract Appeals. tive’s authority. The TVA Purchasing

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Agent who administers a contract for Authority, 465 F.2d 1073 (5th Cir. 1972)), TVA is designated as the duly author- a Contractor’s election under this sec- ized representative of the Director of tion shall cause the provisions of the Purchasing to act as Contracting Offi- first two sentences of section 6(a) of cer for all purposes in the administra- the Act to apply to the contract, and tion of the contract (including, without such an election shall be irrevocable. limitation, decision of claims under (b) A Contractor makes an election the disputes clause). Such a designa- under paragraph (a) of this section by tion continues until it is revoked or giving written notice to the Con- modified by written notice to the Con- tracting Officer stating that the Con- tractor and the Purchasing Agent from tractor elects to proceed with the dis- TVA’s Director of Purchasing. pute under the Act. For disputes pend- (f) The term Contractor means a party ing on March 1, 1979, the notice shall be to a TVA contract which contains a actually received by the Contracting disputes clause. The term ‘‘Con- Officer within 30 days after the Con- tractor’’ does not include TVA. tractor receives the Contracting Offi- (g) The term disputes clause means a cer’s decision. For disputes initiated clause in a TVA contract requiring thereafter, the notice shall be included that a contract dispute be resolved in the document first requesting a deci- through a TVA-conducted administra- sion by the Contracting Officer. tive process. It does not include, for example, arbitration provisions, or provi- § 1308.5 Interest. sions specifying an independent third TVA shall pay a Contractor interest party to decide certain kinds of mat- on the amount found to be due on a ters or special mechanisms to establish claim: prices or price adjustments in con- (a) From the date payment is due tracts. under the contract or the Contracting (h) The term Hearing Officer means a Officer receives the claim, whichever is member of the Board who has been des- later, until TVA makes payment; ignated to hear and determine a par- (b) At the rate payable pursuant to ticular matter pending before the section 12 of the Act on the date from Board. which interest runs pursuant to para- (i) The term TVA means the Ten- graph (a) of this section. nessee Valley Authority. (j) A term defined as in a contract § 1308.6 Fraudulent claims. subject to this part shall have the meaning given it in the contract. (a) If a Contractor is unable to support any part of a claim and it is deter- § 1308.3 Exclusions. mined that such inability is attrib- (a) This part does not apply to any utable to the Contractor’s misrepresen- TVA contract which does not contain a tation of fact or fraud, the Contractor disputes clause. shall be liable to TVA, as set out in (b) Except as otherwise specifically section 5 of the Act, for: provided, this part does not apply to (1) An amount equal to the unsup- any TVA contract entered into prior to ported part of the claim; plus March 1, 1979, or to any dispute relat- (2) All TVA’s costs attributable to re- ing to such a contract. viewing that part of the claim. (b) The term ‘‘misrepresentation of § 1308.4 Coverage of certain excluded fact’’ has the meaning given it in sec- Contractors. tion 2(7) of the Act. (a) A Contractor whose contract is (c) Prior to TVA’s filing suit for excluded from this part under § 1308.3(b) amounts due under this section, TVA may elect to proceed under this part shall provide the Contractor with a and the Act with respect to any dispute copy of any opinion under § 1308.16 or pending before a Contracting Officer on § 1308.37(b), and shall request the Con- March 1, 1979, or initiated thereafter. If tractor to pay voluntarily the amount the disputes clause in the contract is TVA asserts is due to it. not an ‘‘all disputes’’ clause (see Patton (d) A determination by TVA that Wrecking & Dem. Co. v. Tennessee Valley fraud or misrepresentation of the fact

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has been committed is not subject to $50,000, the Contracting Officer within decision under a disputes clause. 60 days from actual receipt shall either (e) The provisions of this section are issue a decision or notify the Con- in addition to whatever penalties or tractor of the date by which a decision remedies may otherwise be provided by shall be rendered, which shall be within law. a reasonable time. The Contracting Of- ficer shall not be deemed to be in ‘‘ac- § 1308.7 Effective date. tual receipt’’ of a claim until the claim Subject to § 1308.3(a), this part applies meets all requirements of § 1308.2(c). to any TVA contract having an effec- (b) The Contracting Officer shall tive date on or after March 1, 1979. issue a decision within any time limits set by an order under § 1308.24. If a Subpart B—Contracting Officers Hearing Officer grants a stay of an appeal pursuant to § 1308.25, the Con- § 1308.11 Contractor’s request for re- tracting Officer shall issue a decision lief. within any time limits specified by the Any request for relief which a Con- stay order, or within a reasonable time tractor believes is due under a contract after receipt of the stay, if it sets no shall be submitted to the Contracting time limits. Officer in writing, in accordance with (c) As used in this subpart, the rea- the terms of the contract, including ap- sonableness of a time period depends on plicable time limits. the amount or kind of relief involved and complexity of the issues raised, the § 1308.12 Submission and decision of adequacy of the Contractor’s sup- Contractor’s claim. porting data, contractual requirements (a) If Contractor and TVA are unable for auditing of Contractor’s cost or to resolve Contractor’s request for re- other data, and other relevant factors. lief by agreement within a reasonable time, Contractor may submit a claim § 1308.14 Request for relief by TVA. to the Contracting Officer. When TVA believes it is due relief (b) The Contracting Officer shall under a contract, the Contracting Offi- issue a decision to the Contractor on a cer shall make a request for relief submitted claim in conformity with against the Contractor, and shall at- the contract’s disputes clause. Specific tempt to resolve the request by agree- findings of fact are not required, but ment. If agreement cannot be reached may be made. Such findings are not within a reasonable time, the Con- binding in any subsequent proceeding tracting Officer shall issue a decision except as provided in § 1308.15. The deci- which complies with the requirements sion shall: of § 1308.12(b). (1) Be in writing; (2) State the reasons for the decision § 1308.15 Finality of decisions. reached; (3) Include information about the A decision by a Contracting Officer Contractor’s rights of appeal under sec- under the disputes clause of a contract tions 7 and 10 of the Act (including subject to this part is final and conclu- time limits); and sive and not subject to review by any (4) Notify the Contractor, as appro- forum, tribunal, or Government agency priate, of the special procedures avail- unless an appeal or suit is timely com- able under §§ 1308.35 and 1308.36 at the menced under this part or section 10(a) Contractor’s election. A copy of the (2) and (3) of the Act. provisions of this part shall be furnished with the decision. § 1308.16 Decisions involving fraudulent claims. § 1308.13 Time limits for decisions. If a Contracting Officer denies any (a) If a submitted claim involves part of a Contractor’s claim for lack of $50,000 or less, the Contracting Officer support, and the Contracting Officer is shall issue the decision within 60 days of the opinion that the Contractor’s in- from actual receipt of the claim. If a ability to support that part of the submitted claim involves more than claim is within § 1308.6 and section 5 of

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the Act, the Contracting Officer’s deci- timely manner the duties of Hearing sion shall not state that opinion, but, Officer, because of unavailability or in- contemporaneously with the decision, capacity which would in the Chair- the Contracting Officer shall sepa- man’s judgment affect the expeditious rately notify TVA’s General Counsel of and timely resolution of the appeal, or that opinion and the reasons therefor. for any other reason deemed sufficient by the Chairman, the Chairman may § 1308.17 Failure to render timely deci- take any action deemed appropriate to sion. effectuate the disposition of the appeal Any failure by Contracting Officer to and the rights of the parties under this issue a decision on a submitted claim part. The kind of action taken, and the within the period required or permitted manner thereof, shall be within the dis- by § 1308.13, will be deemed to be a deci- cretion of the Chairman, and may in- sion by the Contracting Officer denying clude, but is not limited to, action on the claim and will authorize the com- pending motions, discovery, issuance of mencement of an appeal on the claim or ruling on objections to subpoenas, under this part, or a suit on the claim and reassignment of an appeal in whole as provided in section 10(a)(2) of the Act. If no appeal or suit pursuant to or in part. this section has been commenced at § 1308.22 Representation. the time the Contracting Officer issues a decision, the right to sue or appeal (a) In any appeal to the Board, a Con- and the time limits therefor shall be tractor may be represented by an at- determined as otherwise provided in torney at law duly licensed by any this part and the Act, and this section state, commonwealth, territory, or the shall not authorize an appeal or suit District of Columbia. A Contractor not from the decision. an individual and not wishing to appear by an attorney may be rep- Subpart C—Board of Contract resented by any member, partner, or Appeals officer duly authorized to act on Con- tractor’s behalf, or if an individual, § 1308.21 Jurisdiction and organiza- may appear personally. tion. (b) TVA shall be represented by at- (a) The Board shall consider and de- torneys from its Office of General termine timely appeals filed by Con- Counsel. tractors from decisions of TVA Con- tracting Officers pursuant to a disputes § 1308.23 Finality of decisions. clause. A decision by a Hearing Officer on an (b) The Board shall consist of an in- appeal shall be the decision of the determinate number of members, who Board and shall be final, subject only shall serve on a part-time basis. The to amendment under § 1308.37(c), recon- members of the Board shall all be at- sideration under § 1308.38 or appeal pur- torneys at law duly licensed by any suant to sections 8(g)(2) and 10(b) of the state, commonwealth, territory, or the Act. District of Columbia. One of the members of the Board shall be designated as § 1308.24 Undue delay in Contracting ‘‘Chairman’’ pursuant to section 8(b)(2) Officer’s decision. of the Act. (c) Each appeal or other matter be- (a) If there is an undue delay by a fore the Board shall normally be as- Contracting Officer in issuing a deci- signed to a single Hearing Officer, to be sion on a claim, the Contractor may redesignated by the Chairman. The quest the Chairman to direct the Con- Chairman may act as a Hearing Officer, tracting Officer to issue a decision and shall notify the Contractor and within a specified period of time. TVA of the name and mailing address (b) A request under this section shall: of the person designated as Hearing Of- (1) Be in writing; ficer. (2) State the date on which the claim (d) If a member to whom an appeal was submitted to the Contracting Offi- has been assigned cannot perform in a cer.

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(3) State the date suggested for (b) Following transmittal of the no- issuance of a decision by the Con- tice of appeal, TVA shall assemble and tracting Officer. transmit to the Hearing Officer and the (c) TVA may reply to a motion under Contractor an appeal file consisting of: this section within 5 days after its re- (1) The Contracting Officer’s deci- ceipt. sion, if any, from which the appeal is (d) The Chairman shall issue a writ- taken; ten decision on the request. If granted, (2) The contract and pertinent the decision shall specify the date by amendments, specifications, plans, and which the Contracting Officer’s deci- drawings (a list of the documents sub- sion is to be rendered, and a copy shall mitted may be provided Contractor in be served on the Contracting Officer. lieu of copies); (3) The claim; § 1308.25 Stay of appeal for Con- (4) Any other matter pertinent to the tracting Officer’s decision. appeal submitted to or considered by If an appeal has been taken because the Contracting Officer for reaching a of a Contracting Officer’s failure to decision. render a timely decision, as provided (c) The appeal file shall be submitted by § 1308.17, the Hearing Officer, with or within 30 days. Within 30 days after re- without a motion by a party, may stay ceipt of a copy, the Contractor may proceedings on the appeal in order to submit to the Hearing Officer and obtain a decision on the matter ap- TVA’s General Counsel any documents pealed. Oral argument will not be within the scope of paragraph (b) of heard on such a motion unless other- this section which are not included in wise directed. The stay order will nor- the appeal file but which the Con- mally set a date certain by which the tractor believes are pertinent to the decision of the Contracting Officer will appeal. Such documents are considered be rendered. Such date shall take into a part of the appeal file. account the factors mentioned in § 1308.13(c), the length of time the matter has already been pending before the Subpart D—Prehearing and Contracting Officer, and the need for Hearing Procedures prompt and expeditious action on ap- § 1308.31 Filing and service. peals. (a) All documents required to be § 1308.26 Appeals. served shall be served on TVA and Con- (a) An appeal to the Board from a tractor and filed with the Board, ex- Contracting Officer’s decision under cept subpoenas. § 1308.12 shall be initiated within 90 (b) A request under § 1308.15 shall be days from the Contractor’s receipt of directed to the General Manager, Ten- the Contracting Officer’s decision and nessee Valley Authority, 400 Commerce in the manner set forth in the disputes Avenue, Knoxville, Tennessee 37902, clause. and shall be transmitted to the Chair- (b) An appeal from the Contracting man. Officer’s failure to render a timely (c) All other documents required to decison shall be taken within the time be filed shall be directed to the Hearing period provided by § 1308.17. The notice Officer assigned to the matter. of appeal shall be in the form and filed (d) Service on the opposing party in the manner specified in the disputes may be made personally or by mail. clause, but shall state that it is an ap- The copy presented for filing shall bear peal under § 1308.17, and shall include a an appropriate certificate or acknowl- copy of the claim which was submitted edgment of service. for decision. § 1308.32 Prehearing procedures. § 1308.27 Appeal files. (a) Unless otherwise provided in this (a) Notices of appeal shall be filed as part, prehearing procedures, including provided in the disputes clause, and discovery, shall be conducted in ac- shall be promptly transmitted by TVA cordance with Rules 6, 7(b), 16, 26, 28–37, to the Chairman. and 56 of the Federal Rules of Civil

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Procedure, except that the Hearing Of- ficer may modify those Rules to meet ficer may modify those Rules to meet the needs of the parties in a particular the needs of the parties in a particular case. The terms court, plaintiff, defend- case. ant, and action as used in those Rules (b) The term court as used in those shall be deemed to have the meaning Rules shall be deemed to mean ‘‘Hear- given them in § 1308.32. ing Officer’’; the term plaintiff shall be (2) After the Contractor has com- deemed to mean ‘‘Contractor’’; the pleted the presentation of his evidence, term defendant shall be deemed to TVA, without waiving the right to mean ‘‘TVA’’; and the term action shall offer evidence in the event the motion be deemed to mean the pending appeal. is not granted, may move for a dis- (c) Discovery subpoenas are subject missal on the ground that upon the to Subpart E. facts and the law the Contractor has (d) The party giving notice of a depo- shown no right to relief. The Hearing sition is responsible for securing a re- Officer as the trier of the facts may porter. then determine them and render a deci- (e) No appeal of counterclaim may be sion against the Contractor, or take dismissed except by order of the Hear- the matter under advisement, or de- ing Officer. The Hearing Officer may cline to render any decision until the order at any time, with or without a close of all the evidence. Any decision motion by a party, that an appeal or rendered under this paragraph shall counterclaim, or any part thereof, be conform to § 1308.37, and is a decision dismissed because the matter has been within the meaning of § 1308.23. settled, because the party no longer de- (d) Hearings shall be as informal as sires to pursue the matter, or because may be reasonable and appropriate of the party’s failure to prosecute the under the circumstances, and shall be matter or to comply with the regula- held at a time and place to be specified tions in this part or with any order of by the Hearing Officer. the Hearing Officer. Any dismissal (e) Evidentiary subpoenas are subject under this paragraph operates as an ad- to Subpart E of this part. judication on the merits of the matter [44 FR 29648, May 22, 1979. Redesignated at 44 which is dismissed, and is a decision FR 30682, May 29, 1979, and amended at 49 FR within the meaning of § 1308.23, but 3845, Jan. 31, 1984] does not affect the Hearing Officer’s jurisdiction over any matter not so dis- § 1308.34 Record on appeal. missed. Except as otherwise provided in this [44 FR 29648, May 22, 1979. Redesignated at 44 part, the appeal shall be decided on the FR 30682, May 29, 1979, and amended at 49 FR basis of the record on appeal, which 3845, Jan. 31, 1984] consists of the notice of appeal, the claim, any notice of election under § 1308.33 Hearings. § 1308.35 or § 1308.36, orders entered dur- (a) TVA shall arrange for the ver- ing the proceeding, admissions, tran- batim reporting of evidentiary hear- scripts of hearings, hearing exhibits ings before the Hearing Officer, and and stipulations on file, all other docu- shall provide the Hearing Officer with ments admitted in evidence, and all the original transcript. The parties briefs submitted by the parties. shall make their own arrangements with the reporter for copies. § 1308.35 Small claims procedure. (b) Admissibility of evidence shall (a) The Contractor may elect to have generally be governed by the Federal the appeal processed under this sec- Rules of Evidence, subject, however, to tion, if the amount in dispute is $10,000 the Hearing Officer’s discretion. As or less. This amount shall be deter- used in those Rules, the term court mined by totalling the amounts shall be deemed to mean ‘‘Hearing Offi- claimed by TVA and Contractor. cer.’’ (b) Appeals under this section shall (c)(1) Conduct of hearings shall gen- be decided, whenever possible, within erally be governed by Rules 42–44, 44.1, 120 days after the Hearing Officer re- and 46 of the Federal Rules of Civil ceives written notice that the Con- Procedure, except that the Hearing Of- tractor has elected to proceed under

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this section. Such election may be adequate presentation of their posi- made a part of the notice of appeal. tions. The Hearing Officer may shorten (c) An appeal under this section shall applicable time periods in order to be determined on the basis of the meet the 180-day period, and may re- record on appeal and those documents serve 30 days to prepare a decision. in the appeal file identified in (d) The Hearing Officer’s decision § 1308.27(b)(1), (2), and (3). Other docu- under this section will be short and ments may be considered in the deter- may contain only summary findings of mination of the appeal as may be stipu- fact and conclusions of law. The deci- lated to by the parties, or as the Hear- sion may, at the Hearing Officer’s elec- ing Officer may order on motion by a tion, be rendered orally at the conclu- party. No evidentiary hearing shall be sion of the evidentiary hearing, fol- held unless the Hearing Officer directs lowing such oral argument as may be testimony on a particular issue. Dis- permitted. In such case, the Hearing covery and other prehearing procedures Officer will promptly furnish the par- may be conducted under such time pe- ties a typed copy of the decision, which riods as the Hearing Officer may set to shall constitute the final decision. meet the 120-day period, and the Hear- ing Officer may reserve up to 30 days to § 1308.37 Decisions. prepare a decision. Upon request by ei- (a) The Hearing Officer’s decision ther party, the Hearing Officer shall shall be in writing. Except as provided hear oral argument after the record is by § 1308.35 or 1308.36, the decision shall closed, and may direct oral argument contain complete findings of fact and on specified issues if the parties do not conclusions of law. The parties may be request it. directed to submit proposed findings (d) The Hearing Officer’s decision and conclusions. A decision against a under this section will be short and Contractor on a claim shall include no- contain only summary findings of fact tice of the Contractor’s rights under and conclusions of law. The decision paragraphs (2) and (3) of section 10(a) of may, at the Hearing Officer’s discre- the Act. tion, be rendered orally at the conclusion of any oral argument held. In such (b) If the decision denies any part of case, the Hearing Officer will promptly a Contractor’s claim for lack of sup- furnish the parties a typed copy of the port and the Hearing Officer is of the decision, which shall constitute the opinion that the Contractor’s inability final decision. to support that part is within § 1308.6 (e) Decisions under this section shall and section 5 of the Act, the decision be final and conclusive except for shall not state that opinion, but con- fraud, and shall have no value as prece- temporaneously with the decision the dent for future appeals. Hearing Officer shall separately notify TVA’s General Counsel of that opinion § 1308.36 Accelerated appeal proce- and the reasons therefor. dure. (c) Not later than 10 days after re- (a) The Contractor may elect to have ceipt of the decision, a party may move the appeal processed under this section to alter or amend the findings or make if the amount in dispute is $50,000 or additional findings and amend the con- less. The amount shall be determined clusions and decision accordingly. by totalling the amounts claimed by Such a motion may be combined with a TVA and Contractor. motion under § 1308.38. This time period (b) Appeals under this section shall cannot be extended. be decided, whenever possible, within 180 days after the Hearing Officer re- § 1308.38 Reconsideration. ceives written notice that the Con- Motions for reconsideration shall be tractor has elected to proceed under served not later than 10 days after this section. Such election may be issuance of the Hearing Officer’s deci- made a part of the notice of appeal. sion. This time period cannot be ex- (c) In cases under this section, the tended. Such a motion shall be heard parties are encouraged to limit dis- and decided in the manner provided by covery and briefing, consistent with Rule 59 of the Federal Rules of Civil

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Procedure for motions for new trial in least 30 days in advance of the sched- actions tried without a jury. uled hearing. The request should state: (1) The name and address of the wit- § 1308.39 Briefs and motions. ness; (a) All motions shall be accompanied (2) The general scope of the witness’ by a brief or memorandum setting testimony; forth supporting authorities. Briefs in (3) The books, records, papers, and opposition to a motion shall be served other tangible things sought to be pro- within 10 days after receipt of the mo- duced; and tion, unless otherwise specified in this (4) The general relevance of the mat- part, or by order of the Hearing Officer. ters sought to the case. (b) The Hearing Officer shall set the (c) Upon receipt of a notice of deposi- schedule for service of prehearing and tion or request for appearance at a posthearing briefs on the merits. hearing, the Hearing Officer shall fill (c) A motion to dismiss an appeal for in the name of the witness and sign and lack of jurisdiction should be served issue a subpoena otherwise in blank to seasonably, but may be served at any the party seeking it, together with a time. The issue of lack of jurisdiction duplicate for proof of service. The may be raised by the Hearing Officer party requesting the subpoena shall fill sua sponte, in which case the Hearing in both copies before service. Officer shall set a briefing schedule on (d) Letters rogatory may be issued by the issue in the document raising it to the Hearing Officer as provided in 28 the parties. U.S.C. 1781–1784. (d) A motion for summary judgment may be made at any time after the ap- § 1308.53 Service. peal file has been transmitted under A subpoena may be served at any § 1308.26. place, and may be served by any individual not a party who is at least 18 Subpart E—Subpoenas years of age, or as otherwise provided by law. Service may be made by an at- § 1308.51 Form. torney or employee of a party. Service (a) A subpoena shall state the name shall be made by personal delivery of of the Board and the title of the appeal; the subpoena to the individual named shall command the person to whom it therein, together with tender of the is directed to attend and give testi- amounts required by 5 U.S.C. 503 or mony at a deposition or hearing, as ap- other applicable law. The individual propriate, and, if appropriate, to making service shall file with the produce specified books, papers, docu- Board the duplicate subpoena, filled ments, or tangible things at a time and out as served, with the return of serv- place therein specified; and shall notify ice filled in, signed and notarized. the person of the right to request that the subpoena be quashed or modified § 1308.54 Requests to quash or modify. and of the penalties for contumacy or The person served with a subpoena failure to obey. (or a party, if the person served is a (b) [Reserved] party’s employee) may request the Hearing Officer to quash or modify a § 1308.52 Issuance. subpoena. Such requests shall be made (a) A deposition subpoena shall not and determined in accordance with the issue except upon the filing of a notice time limits and principles of Rule 45(a), of deposition of the person to be sub- (b) and (d) of the Federal Rules of Civil poenaed, which notice should normally Procedure. be filed at least 15 days in advance of the scheduled deposition. § 1308.55 Penalties. (b) A subpoena for the attendance of In case of contumacy or refusal to a witness at an evidentiary hearing obey a subpoena by a person who re- shall not issue except upon the filing of sides, is found, or transacts business a request for appearance at the hearing within the jurisdiction of a United of the person to be subpoenaed, which States District Court, the Board will request should normally be filed at apply to the court through the General

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Counsel of TVA for an order requiring § 1309.1 What are the defined terms in the person to appear before the Hearing this part and what do they mean? Officer, to produce evidence or give tes- As used in this part the following timony, or both. Any failure of any terms have the stated meanings: such person to obey the order of the (a) Act means the Age Discrimination court may be punished by the court as Act of 1975, as amended, 42 U.S.C. 6101, a contempt thereof. et seq. (Title III of Pub. L. 94–135). (b) Action means any act, activity, PART 1309—NONDISCRIMINATION policy, rule, standard, or method of ad- WITH RESPECT TO AGE ministration; or the use of any policy, rule, standard, or method of adminis- Sec. tration. 1309.1 What are the defined terms in this part and what do they mean? (c) Age means how old a person is, or 1309.2 What is the purpose of the Act? the number of elapsed years from the 1309.3 What is the purpose of this part? date of a person’s birth. 1309.4 What programs or activities are cov- (d) Age distinction means any action ered by the Act and this part? using age or an age-related term. 1309.5 What are the rules against age dis- (e) Age-related term means a term crimination? which necessarily implies a particular 1309.6 Is the normal operation or statutory objective of any program or activity an age or range of ages (for example, exception to the rules against age dis- ‘‘children,’’ ‘‘adult,’’ ‘‘older persons,’’ crimination? but not ‘‘student’’). 1309.7 Is the use of reasonable factors other (f) Financial assistance means any than age an exception to the rules grant, entitlement, loan, cooperative against age discrimination? agreement, contract (other than a pro- 1309.8 Who has the burden of proving that curement contract or a contract of in- an action is excepted? surance or guaranty), or any other ar- 1309.9 How does TVA provide financial assistance in conformity with the Act? rangement, by which TVA provides or 1309.10 What general responsibilities do re- otherwise makes available to a recipi- cipients and TVA have to ensure compli- ent assistance in any of the following ance with the Act? forms: 1309.11 What specific responsibilities do (1) Funds; TVA and recipients have to ensure com- (2) Services of TVA personnel; pliance with the Act? 1309.12 What are a recipient’s responsibil- (3) Real and personal property or any ities on compliance reviews and access to interest in or use of property, includ- information? ing: 1309.13 What are the prohibitions against (i) Transfers or leases of property for intimidation or retaliation? less than fair market value or for re- 1309.14 How will complaints against recipi- duced consideration; and ents be processed? 1309.15 How will TVA enforce compliance (ii) Proceeds from a subsequent with the Act and this part? transfer or lease of property if the 1309.16 What is the alternate funds disbursal share of its fair market value provided procedure? by TVA is not returned to TVA. 1309.17 What is the procedure for hearings (g) For purposes of §§ 1309.6 and 1309.7, and issuance of TVA decisions required normal operation means the operation of by this part? a program or activity without signifi- 1309.18 Under what circumstances must recipients take remedial or affirmative ac- cant changes that would impair its tion? ability to meet it objectives. 1309.19 When may a complainant file a civil (h) Program or activity means all of action? the operations of any entity described AUTHORITY: TVA Act of 1933, 48 Stat. 58 in paragraphs (h)(1) through (4) of this (1933), as amended, 16 U.S.C. 831–831dd (1976), section, any part of which is extended and sec. 304 of the Age Discrimination Act of Federal financial assistance: 1975, 89 Stat 729 (1975), as amended, 42 U.S.C. (1)(i) A department, agency, special 6103 (1976). purpose district, or other instrumen- SOURCE: 46 FR 30811, June 11, 1981, unless tality of a State or of a local govern- otherwise noted. ment; or

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(ii) The entity of such State or local (l) United States means the fifty government that distributes such as- States, the District of Columbia, Puer- sistance and each such department or to Rico, the Virgin Islands, American agency (and each other State or local Samoa, Guam, Wake Island, the Canal government entity) to which the as- Zone, the Trust Territory of the Pa- sistance is extended, in the case of as- cific Islands, the Northern Marianas, sistance to a State or local govern- and the territories and possessions of ment; the United States. (2)(i) A college, university, or other (m) TVA means the Tennessee Valley postsecondary institution, or a public Authority. system of higher education; or [46 FR 30811, June 11, 1981, as amended at 68 (ii) A local educational agency (as de- FR 51357, Aug. 26, 2003] fined in 20 U.S.C. 7801), system of vocational education, or other school sys- § 1309.2 What is the purpose of the tem; Act? (3)(i) An entire corporation, partner- The Act is designed to prohibit dis- ship, or other private organization, or crimination on the basis of age in pro- an entire sole proprietorship— grams or activities receiving Federal (A) If assistance is extended to such financial assistance. The Act also per- corporation, partnership, private orga- mits federally assisted programs or ac- nization, or sole proprietorship as a tivities, and recipients of Federal whole; or funds, to continue to use certain age (B) Which is principally engaged in distinctions and factors other than age the business of providing education, which meet the requirements of the health care, housing, social services, or Act and this part. parks and recreation; or [46 FR 30811, June 11, 1981, as amended at 68 (ii) The entire plant or other com- FR 51357, Aug. 26, 2003] parable, geographically separate facility to which Federal financial assist- § 1309.3 What is the purpose of this ance is extended, in the case of any part? other corporation, partnership, private The purpose of this part is to effec- organization, or sole proprietorship; or tuate the Act in all programs or activi- (4) Any other entity which is estab- ties of recipients which receive finan- lished by two or more of the entities cial assistance from TVA, and to in- described in paragraph (h)(1), (2), or (3) form the public and the recipients of fi- of this section. nancial assistance from TVA of the (i) For purposes of §§ 1309.6 and 1309.7, Act’s requirements and how it will be statutory objective means any purpose of enforced. a program or activity expressly stated in any Federal statute, State statute, § 1309.4 What programs or activities or local statute or ordinance adopted are covered by the Act and this by an elected, general purpose legisla- part? tive body. (a) The Act and this part apply to (j) Recipient means any State or its any program or activity receiving fi- political subdivision, any instrumen- nancial assistance from TVA. tality of a State or its political sub- (b) The Act and this part do not division, any State-created or recog- apply to: nized public or private agency, institu- (1) An age distinction contained in tion, organization, or other entity, or that part of a Federal, State or local any person to which TVA extends fi- statute or ordinance adopted by an nancial assistance directly or through elected, general purpose legislative another recipient. Recipient includes body which: any successor, assignee, or transferee, (i) Provides any benefits or assist- but excludes the ultimate beneficiary ance to persons based on age; or of the assistance. (ii) Establishes criteria for participa- (k) Secretary means the Secretary of tion in age-related terms; or the Department of Health, Education, (iii) Describes intended beneficiaries and Welfare, and its successors. or target groups in age-related terms.

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(2) Any employment practice of any for the normal operation of the pro- employer, employment agency, labor gram or activity to continue, or to organization, or any labor-manage- achieve any statutory objective of the ment joint apprenticeship training pro- program or activity; and gram. (c) The other characteristic(s) can be reasonably measured or approximated § 1309.5 What are the rules against age by the use of age; and discrimination? (d) It is impractical to measure the (a) General rule. No person in the other characteristic(s) directly on an United States shall, on the basis of age, individual basis. be excluded from participation in, be denied the benefits of, or be subjected § 1309.7 Is the use of reasonable factors other than age an exception to to discrimination under, any program the rules against age discrimina- or activity receiving financial assist- tion? ance from TVA. A recipient is permitted to take an (b) Specific rules. In any program or action otherwise prohibited by § 1309.5 activity receiving financial assistance which is based on a factor other than from TVA, a recipient may not directly age, even though that action may have or through contractual, licensing, or a disproportionate effect on persons of other arrangements, use age distinc- different ages. An action may be based tions or take any other actions which on a factor other than age only if the have the effect, on the basis of age of: factor bears a direct and substantial (1) Excluding individuals from, deny- relationship to the normal operation of ing them the benefits of, or subjecting the program or activity or to the them to discrimination under a pro- achievement of a statutory objective. gram or activity receiving financial assistance from TVA, or § 1309.8 Who has the burden of prov- (2) Denying or limiting individuals in ing that an action is excepted? their opportunity to participate in any The burden of proving that an age program or activity receiving financial distinction or other action falls within assistance from TVA. the exceptions outlined in §§ 1309.6 and (c) The specific forms of age discrimi- 1309.7 is on the recipient of financial nation listed in paragraph (b) of this assistance from TVA. section do not necessarily constitute a complete list. § 1309.9 How does TVA provide finan- (d) The rules stated in this section cial assistance in conformity with are limited by the exceptions con- the Act? tained in §§ 1309.6 and 1309.7. (a) TVA contributes financial assistance only under agreements which con- § 1309.6 Is the normal operation or tain a provision which specifically re- statutory objective of any program quires compliance with the Act and or activity an exception to the rules this part. If the financial assistance in- against age discrimination? volves the furnishing of real property, A recipient is permitted to take an the agreement shall obligate the re- action, otherwise prohibited by § 1309.5, cipient, or the transferee in the case of if the action reasonably takes into ac- a subsequent transfer, for the period count age as a factor necessary to the during which the real property is used normal operation or the achievement for a purpose for which the financial of any statutory objective of a program assistance is extended or for another or activity. An action reasonably takes purpose involving the provision of into account age as a factor necessary similar services or benefits. Where the to the normal operation or the achieve- financial assistance involves the fur- ment of any statutory objective of a nishing of personal property, the agree- program or activity, if: ment shall obligate the recipient dur- (a) Age is used as a measure or ap- ing the period for which ownership or proximation of one or more other char- possession of the property is retained. acteristics; and In all other cases the agreement shall (b) The other characteristic(s) must obligate the recipient for the period be measured or approximated in order during which financial asssistance is

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extended pursuant to the agreement. § 1309.10 What general responsibilities TVA shall specify the form of the fore- do recipients and TVA have to en- going agreement, and the extent to sure compliance with the Act? which an agreement shall be applicable (a) A recipient has primary responsi- to subcontractors, transferees, succes- bility to ensure that its programs or sors in interest, and other participants. activities are in compliance with the (b) In the case of real property, struc- Act and shall take steps to eliminate tures or improvements thereon, or in- violations of the Act. A recipient also terests therein, acquired through a pro- has responsibility to maintain records, gram of TVA financial assistance, or in provide information, and afford TVA the case where TVA financial assist- access to its records to the extent re- ance was provided in the form of a quired by TVA to determine whether transfer by TVA of real property or an the recipient is in compliance with the interest therein, the instrument effect- Act. ing or recording the transfer of title (b) TVA has responsibility to at- shall contain a covenant running with tempt to secure a recipient’s compli- the land assuring compliance with this ance with the Act by voluntary means, part and the guidelines contained here- to the fullest extent practicable, and to in for the period during which the real provide assistance and guidance to re- property is used for a purpose for which cipients to help them comply volun- the TVA financial assistance is ex- tarily. TVA may use the services of ap- tended or for another purpose involving propriate Federal, State, local, or pri- the provision of similar services or vate organizations for this purpose. benefits. Where no transfer of property TVA also has the responsibility to en- is involved, but property is improved force the Act when a recipient fails to with TVA financial assistance, the re- eliminate violations of the Act. cipient shall agree to include such a [46 FR 30811, June 11, 1981, as amended at 68 covenant in any subsequent transfer of FR 51357, Aug. 26, 2003] such property. Where the property is obtained by transfer from TVA, the § 1309.11 What specific responsibilities covenant against discrimination may do TVA and recipients have to en- also include a condition coupled with a sure compliance with the Act? right to be reserved by TVA to revert (a) Written notice, technical assistance, title to the property in the event of a and educational materials. TVA shall: breach of the covenant where, in the (1) Provide written notice to each re- discretion of TVA, such a condition cipient of its obligations under the Act. and right of reverter is appropriate to The notice shall include a requirement the nature of (1) the statute under that where the recipient initially re- which the real property is obtained, (2) ceiving funds makes the funds avail- the recipient, and (3) the instrument able to a subrecipient, the recipient effecting or recording the transfer of must notify the subrecipient of its obli- title. In such event, if a transferee of gations under the Act. The notice may real property proposes to mortgage or be made a part of the contract under otherwise encumber the real property which financial assistance is provided as security for financing construction by TVA. of new, or improvement of existing, fa- (2) Provide technical assistance to re- cilities on such property for the pur- cipients, where necessary, to aid them poses for which the property was trans- in complying with the Act. ferred, TVA may agree, upon request of (3) Make available educational mate- the transferee and if necessary to ac- rials setting forth the rights and obli- complish such financing, and upon such gations of beneficiaries and recipients conditions as it deems appropriate, to under the Act. forbear the exercise of such right to re- (b) [Reserved] vert title for so long as the lien of such § 1309.12 What are a recipient’s re- mortgage or other encumbrance responsibilities on compliance reports mains effective. and access to information? [46 FR 30811, June 11, 1981, as amended at 68 (a) Compliance reports. Each recipient FR 51357, Aug. 26, 2003] shall keep such records and submit to

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TVA timely, complete and accurate complainants shall be kept confiden- compliance reports at such times and tial except to the extent necessary to in such form and containing such infor- carry out the purposes of this part, in- mation, as TVA may determine to be cluding the conduct of any investiga- necessary to enable it to ascertain tion, mediation, hearing, or judicial whether the recipient has complied or proceeding arising under the Act or is complying with this part. In the case this part. in which a primary recipient passes through financial assistance from TVA § 1309.14 How will complaints against to any other recipient, such other re- recipients be processed? cipient shall also submit such compli- (a) Receipt of complaints. Any indi- ance reports to the primary recipient vidual who claims (individually or on as may be necessary to enable the pri- behalf of any specific class of individ- mary recipient to carry out its obliga- uals) that he or she has been subjected tions under this part. (b) Access to sources of information. to discrimination prohibited by this Each recipient shall permit access by part (including § 1309.13) may file a TVA during normal business hours to written complaint with TVA. The writ- such of its books, records, accounts and ten complaint must be filed not later other sources of information, and its than 90 days from the date of the al- facilities as may be pertinent to ascer- leged discrimination, unless the time tain compliance with this part. Where for filing is extended by TVA for good any information required of a recipient cause shown. A complaint shall be is in the exclusive possession of any signed by the complainant, give the other agency, institution or person, name and mailing address of the com- and such agency, institution or person plainant and the recipient, identify the shall fail or refuse to furnish this infor- TVA financial assistance involved, and mation, the recipient shall so certify in state the facts and occurrences (includ- its report and shall set forth what ef- ing dates) which led the complainant forts it has made to obtain the infor- to believe that an act of prohibited dis- mation. crimination has occurred. Anonymous (c) Information to beneficiaries and par- complaints will not be accepted or filed ticipants. Each recipient shall make under this section, but may be the available to participants, beneficiaries, basis for a compliance review. TVA will and other interested persons such in- reject any complaint which does not formation regarding the provisions of fall within the coverage of the Act and this part and its applicability to the this part, and may reject or require program or activity for which the re- supplementation or clarification of any cipient receives financial assistance, complaint which does not contain suffi- and make such information available cient information for further proc- to them in such manner as TVA finds essing as set forth in this paragraph. A necessary to apprise such persons of complaint shall not be deemed filed the protections against discrimination until all such information has been assured them by the Act and this part. provided to TVA. [46 FR 30811, June 11, 1981, as amended at 68 (b) Prompt resolution of complaints. FR 51357, Aug. 26, 2003] The complaint shall be resolved promptly. To this end, TVA shall pro- § 1309.13 What are the prohibitions ceed with the complaint without undue against intimidation or retaliation? delay so that the complaint is resolved No recipient or other person shall in- within 180 calendar days after it is filed timidate, threaten, coerce, or discrimi- with TVA. The recipient and complain- nate against any individual for the pur- ant involved in each complaint are re- pose of interfering with any right se- quired to cooperate in this effort. Fail- cured by the Act or this part, or be- ure to cooperate on the part of the cause such individual has made a com- complainant may result in cancella- plaint, testified, assisted, or partici- tion of the complaint, while such fail- pated in any manner in an investiga- ure on the part of the recipient may re- tion, mediation, hearing, or other pro- sult in enforcement action as described ceeding under this part. The identity of in § 1309.15.

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(c) Mediation of complaints. All com- and, if possible, to resolve the complaints which fall within the coverage plaint to the mutual satisfaction of the of the Act and this part will be referred parties. TVA may seek the assistance to a mediation agency designated by of any involved State agency. the Secretary. (3) If TVA cannot resolve the matter (1) The participation of the recipient within 10 calendar days after the medi- and the complainant in the mediation ator returns the complaint, it shall process is required, although both par- complete the investigation, attempt to ties need not meet with the mediator achieve voluntary compliance satisfac- at the same time. tory to TVA, if the investigation indi- (2) If the complainant and recipient cates a violation, and arrange for en- reach a mutually satisfactory resolu- forcement as described in § 1309.15, if tion of the complaint during the medi- necessary. ation period, they shall reduce the [46 FR 30811, June 11, 1981, as amended at 68 agreement to writing. The mediator FR 51357, Aug. 26, 2003] shall send a copy of the settlement to TVA. No further action shall be taken § 1309.15 How will TVA enforce com- based on that complaint unless it ap- pliance with the Act and this part? pears that the complainant or the re- (a) If a compliance report, self-eval- cipient is failing to comply with the uation, or preaward review indicates a agreement. violation or threatened violation of the (3) Not more than 60 days after the Act or this part, TVA shall attempt to complaint is filed, the mediator shall secure the recipient’s voluntary com- return a still unresolved complaint to pliance with the Act and this part. If TVA for initial investigation. The me- the violation or threatened violation diator may return a complaint at any cannot be corrected by informal means, time before the end of the 60-day period compliance with the Act and this part if it appears that the complaint cannot may be effected by the following be resolved through mediation. means: (4) The mediator shall protect the (1) Termination of a recipient’s fi- confidentiality of all information ob- nancial assistance under the program tained in the course of the mediation or activity involved where the recipi- process. No mediator shall testify in ent has violated the Act or this part. any adjudicative proceeding, produce The determination of the recipient’s any document, or otherwise disclose violation may be made only after a re- any information obtained in the course cipient has had an opportunity for a of the mediation process without prior hearing on the record before an appro- approval of the head of the agency ap- priate hearing officer. pointing the mediator. (2) Any other means authorized by (d) Investigation. (1) TVA will make a law including but not limited to: prompt investigation whenever a com- (i) Referral to the Department of Jus- plaint is unresolved within 60 days tice for proceedings to enforce any after it is filed with TVA or is reopened rights of the United States or obliga- because of a violation of the mediation tions of the recipient created by the agreement. The investigation should Act or this part. include, where appropriate, a review of (ii) Use of any requirement of or re- the pertinent practices and policies of ferral to any Federal, State, or local the recipient, the circumstances under government agency which will have the which the possible noncompliance with effect of correcting a violation of the the Act and this part occurred, and Act or this part. other factors relevant to a determina- (iii) Commencement by TVA of pro- tion as to whether the recipient has ceedings to enforce any rights of TVA failed to comply with the Act and this or obligations of the recipient created part. by the contract, the Act, or this part. (2) As part of the initial investiga- (b) Any termination under paragraph tion, TVA shall use informal fact find- (a)(1) of this section shall be limited to ing methods including joint or indi- the particular recipient and the par- vidual discussions with the complain- ticular program or activity (or portion ant and recipient to establish the facts, thereof) receiving financial assistance

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from TVA which is found to be in viola- tract to disburse the withheld funds dition of the Act or this part. No termi- rectly to any public or nonprofit pri- nation shall be based in whole or in vate organization or agency, or State part on a finding with respect to any or political subdivision of the State. program or activity which does not re- These alternate recipients must dem- ceive financial assistance from TVA. onstrate the ability to comply with (c) No assistance will be terminated this part and to achieve the goals of under paragraph (a)(1) of this section the Federal financial assistance in- until: volved. (1) TVA has advised the recipient of its failure to comply with the Act or [46 FR 30811, June 11, 1981, as amended at 68 this part and has determined that vol- FR 51357, Aug. 26, 2003] untary compliance cannot be obtained. (2) Thirty days have elapsed after § 1309.17 What is the procedure for hearings and issuance of TVA deci- TVA has sent a written report of the sions required by this part? circumstances and grounds of the termination of assistance to the commit- (a) Opportunity for hearing. Whenever tees of the Congress having legislative an opportunity for a hearing is re- jurisdiction over the program or activ- quired by § 1309.15(a)(1), reasonable no- ity involved. A report shall be filed in tice shall be given by registered or cer- each case in which TVA has deter- tified mail, return receipt requested, to mined that assistance will be termi- the affected recipient. This notice shall nated under paragraph (a)(1) of this advise the recipient of the action pro- section. posed to be taken, the specific provi- (d) TVA may defer granting new fi- sion under which the proposed action nancial assistance to a recipient when against it is to be taken, and the mat- termination proceedings under para- ters of fact or law asserted as the basis graph (a)(1) of this section are initi- for this action, and either (1) fix a date ated. not less than 20 days after the date of (1) New financial assistance includes such notice within which the recipient all assistance administrated by or may request of TVA that the matter be through TVA for which an application scheduled for hearing or (2) advise the or approval, including renewal or con- recipient that the matter in question tinuation of existing activities, or au- has been set down for hearing at a stat- thorization of new activities, is re- ed time and place. The time and place quired during the deferral period. New so fixed shall be reasonable and shall financial assistance does not include be subject to change for cause. The assistance approved prior to the begin- complainant, if any, shall be advised of ning of termination proceedings. the time and place of the hearing. A re- (2) A deferral may not begin until the cipient may waive a hearing and subrecipient has received a notice of op- mit written information and argument portunity for a hearing under para- for the record. The failure of a recipi- graph (a)(1) of this section. A deferral ent to request a hearing under this sub- may not continue for more than 60 section or to appear at a hearing for days unless a hearing has begun within which a date has been set shall be that time or the time for beginning the deemed to be a waiver of the right to a hearing has been extended by mutual hearing under the Act and § 1309.15(a)(1) consent of the recipient and TVA. A de- and a consent to the making of a deci- ferral may not continue for more than sion on the basis of such information 30 days after the close of the hearing, as is available. unless the hearing results in a finding (b) Time and place of hearing. Hear- against the recipient. ings shall be held at the time and place [46 FR 30811, June 11, 1981, as amended at 68 fixed by TVA unless it determines that FR 51357, Aug. 26, 2003] the convenience of the recipient requires that another place be selected. § 1309.16 What is the alternate funds Hearings shall be held before a hearing disbursal procedure? officer who shall be designated by When TVA withholds funds from a re- TVA’s General Manager, and who shall cipient under this part, TVA may con- not be a TVA employee.

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(c) Right to counsel. In all proceedings agencies where applicable, provide for under this section, the recipient and the conduct of consolidated or joint TVA shall have the right to be rep- hearings, and for the application to resented by counsel. such hearings of the rules of procedure (d) Procedures, evidence, and record. (1) applicable to such hearings by such The hearing, decision, and any admin- other departments or agencies. Final istrative review thereof by TVA’s decisions in such cases, insofar as this Board of Directors shall be conducted part is concerned, shall be made in ac- in conformity with this part and in accordance with paragraph (f) of this sec- cordance with such rules of procedure tion. as are proper (and not inconsistent (f) Decisions. (1) After the hearing, or with this section) relating to the con- after the hearing is waived under para- duct of the hearing, giving of notices graph (a) of this section, the hearing subsequent to those provided for in officer shall make an initial decision. paragraph (a) of this section, taking of The recipient may file exceptions to testimony, exhibits, arguments and the decision with the TVA Board with- briefs, requests for findings, and other in 10 days of receipt of the decision. If related matters, as prescribed by the exceptions are not filed within the hearing officer. Both TVA and the re- specified time, the hearing officer’s ini- cipient shall be entitled to introduce tial decision becomes the final TVA de- all relevant evidence on the issues as cision. stated in the notice for hearing or as (2) Based on the hearing record, in- determined by the hearing officer at vestigation, and any written submis- the outset of or during the hearing. sion to the hearing officer or the TVA (2) Technical rules of evidence shall Board, the Board shall render its deci- not apply to hearings conducted pursu- sion accepting the initial decision, or ant to this part, but rules or principles rejecting it, in whole or part. designed to assure production of the (3) The final decision may provide for most credible evidence available and to suspension or termination of, or refusal subject testimony to test by cross-ex- to grant or continue financial assist- amination shall be applied where rea- ance, in whole or in part, to which this sonably necessary by the hearing offi- regulation applies, and may contain cer. The hearing officer may exclude ir- such terms, conditions, and other pro- relevant, immaterial, or unduly repeti- visions as are consistent with and will tious evidence. All documents and effectuate the purposes of the Act and other evidence offered or received for this part, including provisions designed the record shall be open to examina- to assure that no financial assistance tion by the parties and opportunity to which this regulations applies will shall be given to refute facts and argu- thereafter be extended to the recipient ments advanced on either side of the determined by such decision to have issues. A transcript shall be made of failed to comply with this part, unless the oral evidence except to the extent and until it corrects its noncompliance the substance thereof is stipulated for and satisfies TVA that it will fully the record. All decisions shall be based comply with this part. upon the hearing record and written (g) Posttermination proceedings. (1) A findings shall be made. recipient adversely affected by an (e) Consolidated or joint hearings. In order issued under paragraph (f) of this cases in which the same or related section shall be restored to full eligi- facts are asserted to constitute non- bility to receive financial assistance compliance with this part with respect from TVA if it satisfies the terms and to two or more Federal statutes, au- conditions of that order for such eligi- thorities, of other means by which Fed- bility or if it brings itself into compli- eral financial assistance is extended ance with this part and provides rea- and to which this part applies, or non- sonable assurance that it will fully compliance with this part and the reg- comply with this part. ulations of one or more other Federal (2) Any recipient adversely affected departments or agencies issued under by an order entered pursuant to para- the Act, the TVA Board may, by agree- graph (f) of this section may at any ment with such other departments or time request TVA to restore fully its

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eligibility to receive financial assist- § 1309.19 When may a complainant file ance from TVA. Any such request shall a civil action? be supported by information showing (a) A complainant may file a civil ac- that the recipient has met the require- tion following the exhaustion of admin- ments of paragraph (g)(1) of this sec- istrative remedies under the Act. Ad- tion. If TVA determines that those re- ministrative remedies are exhausted if: quirements have been satisfied, it shall (1) 180 days have elapsed since the restore such eligibility. complainant filed the complaint and (3) If TVA denies any such request, TVA has made no finding with regard the recipient may submit a written re- to the complaint; or quest for a hearing, specifying why it (2) TVA issues any finding in favor of believes TVA to have been in error. the recipient. The recipient shall thereupon be given (b) If either of the conditions set an expeditious hearing, with a decision forth in paragraph (a) of this section is on the record, in accordance with rules satisfied, TVA shall: of procedure issued by TVA. The recipi- (1) Promptly advise the complainant ent will be restored to such eligibility of this fact; and if it proves at such a hearing that it (2) Advise the complainant of his or satisfied the requirements of paragraph her right, under Section 305(e) of the (g)(1) of this section. While proceedings Act, to bring a civil action for injunc- under this paragraph are pending, the tive relief that will effect the purposes sanctions imposed by the order issued of the Act; and under paragraph (f)(3) of this section (3) Inform the complainant: shall remain in effect. (i) That a civil action can only be brought in a United States district [46 FR 30811, June 11, 1981, as amended at 68 court for the district in which the re- FR 51357, Aug. 26, 2003] cipient is found or transacts business; § 1309.18 Under what circumstances (ii) That a complainant prevailing in must recipients take remedial or af- a civil action has the right to be firmative action? awarded the costs of the action, including reasonable attorney’s fees, but that (a) Where a recipient is found to have these costs must be demanded in the discriminated on the basis of age, the complaint; recipient shall take any remedial ac- (iii) That before commencing the action which TVA may require to over- tion the complainant shall give 30 come the effects of the discrimination, days’ notice by registered mail to the if another recipient exercises control Secretary, the Attorney General of the over the recipient that has discrimi- United States, TVA, and the recipient; nated, both recipients may be required (iv) That the notice shall state: the to take remedial action. alleged violation of the Act; the relief (b) Even in the absence of a finding of requested; the court in which the ac- discrimination, a recipient may take tion will be brought; and whether or affirmative action to overcome the ef- not attorney’s fees are demanded in the fects of conditions that resulted in lim- event the complainant prevails; and ited participation recipient’s program (v) That no action shall be brought if or activity on the basis of age. the same alleged violation of the Act (c) If a recipient operating a program by the same recipient is the subject of or activity which serves the elderly or a pending action in any court of the children, in addition to persons of United States. other ages, provides special benefits to the elderly or to children, the provision of those benefits shall be presumed to PART 1310—ADMINISTRATIVE COST be voluntary affirmative action pro- RECOVERY vided that it does not have the effect of excluding otherwise eligible persons Sec. 1310.1 Purpose. from participation in the program or 1310.2 Application. activity. 1310.3 Assessment of administrative charge. [46 FR 30811, June 11, 1981, as amended at 68 AUTHORITY: 16 U.S.C. 831–831dd; 31 U.S.C. FR 51357, Aug. 26, 2003] 9701.

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SOURCE: 60 FR 8196, Feb. 13, 1995, unless (c) Quota deer hunt and turkey hunt otherwise noted. applications. Quota deer hunt and turkey hunt permit applications will be § 1310.1 Purpose. processed by TVA if accompanied by The purpose of the regulations in this the fee prescribed in § 1310.3(d). part is to establish a schedule of fees to [60 FR 8196, Feb. 13, 1995, as amended at 72 be charged in connection with the dis- FR 18118, Apr. 11, 2007] position and uses of, and activities affecting, real property in TVA’s custody § 1310.3 Assessment of administrative or control; approval of plans under sec- charge. tion 26a of the Tennessee Valley Au- (a) Range of charges. Except as other- thority Act of 1933, as amended (16 wise provided herein, the responsible U.S.C. 831y–1); and certain other activi- land manager shall assess a charge ties in order to help ensure that such which he/she determines in his/her sole activities are self-sustaining to the full judgment to be approximately equal to extent possible. the administrative costs incurred by TVA for each action including both the § 1310.2 Application. direct cost to TVA and applicable (a) General. TVA will undertake the overheads. In determining the amount following actions only upon the condi- of such charge, the responsible land tion that the applicant pay to TVA manager may establish a standard such administrative charges as the charge for each category of action Senior Manager of the TVA organiza- rather than determining the actual ad- tion that administers the land or per- ministrative costs for each individual mit being considered (hereinafter ‘‘re- action. The standard charge shall be an sponsible land manager’’), as appro- amount approximately equal to TVA’s priate, shall assess in accordance with actual average administrative costs for § 1310.3; provided, however, that the re- the category of action. Charges shall be sponsible land manager may waive pay- not less than the minimum or greater ment where he/she determines that than the maximum amount specified there is a corresponding benefit to TVA herein, except as otherwise provided in or that such waiver is otherwise in the paragraph (c) of this section. public interest. (1) Land transfers—$500–$10,000. (1) Conveyances and abandonment of (2) Use permits or licenses–$50–$5,000. TVA land or landrights. (3) Actions taken to approve plans for (2) Licenses and other uses of TVA fills, structures, or other obstructions land not involving the disposition of under section 26a of the TVA Act—$100– TVA real property or interests in real $5,000. property. (4) Abandonment of transmission line easements and rights-of-way—$100– (3) Actions taken to suffer the pres- $1,500. ence of unauthorized fills and struc- (5) Quota deer hunt or turkey hunt tures over, on, or across TVA land or applications—$5–$25. landrights, and including actions not (b) Basis of charge. The administra- involving the abandonment or disposal tive charge assessed by the responsible of TVA land or landrights. land manager shall, to the extent ap- (4) Actions taken to approve fills, plicable, include the following costs: structures, or other obstructions under (1) Appraisal of the land or landrights section 26a of the Tennessee Valley Au- affected; thority Act of 1933, as amended (16 (2) Assessing applicable rental fees; U.S.C. 831y–1), and TVA’s regulations (3) Compliance inspections and other issued thereunder at part 1304 of this field investigations; chapter. (4) Title and record searches; (b) Exemption. An administrative (5) Preparation for and conducting charge shall not be made for the fol- public auction and negotiated sales; lowing actions: (6) Mapping and surveying; (1) Releases of unneeded mineral (7) Preparation of conveyance instru- right options. ment, permit, or other authorization or (2) TVA mineral transactions. approval instrument;

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(8) Coordination of the proposed ac- 1311.6 What procedures apply to the selection within TVA and with other Fed- tion of programs and activities under eral, State, and local agencies; these regulations? 1311.7 How does TVA communicate with (9) Legal review; and state, regional and local officials con- (10) Administrative overheads associ- cerning TVA’s programs and activities? ated with the transaction. 1311.8 How does TVA provide states an op- (c) Assessment of charge when actual portunity to comment on proposed fed- administrative costs significantly exceed eral financial assistance and direct federal development? established range. When the responsible 1311.9 How does TVA receive and respond to land manager determines that the ac- comments? tual administrative costs are expected 1311.10 How does TVA make efforts to ac- to significantly exceed the range of commodate intergovernmental view- costs established in paragraph (a) of points? this section, such manager shall not 1311.11 What are TVA’s obligations in interstate situations? proceed with the TVA action until 1311.12 [Reserved] agreement is reached on payment of a 1311.13 May TVA waive any provision of charge calculated to cover TVA’s ac- these regulations? tual administrative costs. AUTHORITY: Tennessee Valley Authority (d) Quota deer hunt and turkey hunt Act of 1933, 48 Stat. 58, as amended, 16 U.S.C. application fees. A fee for each person in 831–831dd (1976; Supp. V, 1981); E. O. 12372, the amount prescribed by the respon- July 14, 1982 (47 FR 30,959), amended April 8, sible land manager must accompany 1983 (48 FR 15,887); sec. 401 of the Intergov- the complete application form for a ernmental Cooperation Act of 1968, as amended. quota deer hunt and turkey hunt permit. Applications will not be processed SOURCE: 48 FR 29399, June 24, 1983, unless unless accompanied by the correct fee otherwise noted. amount. No refunds will be made to un- § 1311.1 What is the purpose of these successful applicants, except that fees regulations? received after the application due date will be refunded. (a) The regulations in this part implement Executive Order 12372, ‘‘Inter- (e) Additional charges. In addition to governmental Review of Federal Pro- the charges assessed under these regu- grams,’’ issued July 14, 1982, and lations, TVA may impose a charge in amended on April 8, 1983. These regula- connection with environmental reviews tions also implement applicable provi- or other environmental investigations sions of section 401 of the Intergovern- it conducts under its policies or proce- mental Cooperation Act of 1968 and are dures implementing the National Envi- intended to assist TVA in carrying out ronmental Policy Act (42 U.S.C. 4321 et its responsibilities under the TVA Act. seq.). (b) These regulations are intended to foster an intergovernmental partner- PART 1311—INTERGOVERNMENTAL ship and a strengthened Federalism by REVIEW OF TENNESSEE VALLEY relying on state processes and on state, AUTHORITY FEDERAL FINANCIAL areawide, regional, and local coordina- ASSISTANCE AND DIRECT FED- tion for review of proposed federal fi- ERAL DEVELOPMENT PROGRAMS nancial assistance and direct federal development. AND ACTIVITIES (c) These regulations are intended to aid the internal management of TVA, Sec. and are not intended to create any 1311.1 What is the purpose of these regula- right or benefit enforceable at law by a tions? party against TVA or its officers. 1311.2 What definitions apply to these regulations? § 1311.2 What definitions apply to 1311.3 What programs and activities of TVA these regulations? are subject to these regulations? 1311.4 [Reserved] TVA means the Tennessee Valley Au- 1311.5 What is TVA’s obligation with re- thority, a wholly owned corporation spect to federal interagency coordina- and independent instrumentality of the tion? United States.

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Order means Executive Order 12372, programs and activities, after TVA is issued July 14, 1982, and amended April notified of the states selections. 8, 1983, and titled ‘‘Intergovernmental Review of Federal Programs.’’ § 1311.7 How does TVA communicate State means any of the 50 states, the with state, regional, and local offi- District of Columbia, the Common- cials concerning TVA’s programs wealth of Puerto Rico, the Common- and activities? wealth of the Northern Mariana Is- (a) For those programs and activities lands, Guam, American Samoa, the covered by a state process under U.S. Virgin Islands, or the Trust Terri- § 1311.6, TVA, to the extent permitted tory of the Pacific Islands. by law: (1) Uses the official state process to § 1311.3 What programs and activities determine views of state and local of TVA are subject to these regula- elected officials, and tions? (2) Communicates with state and TVA publishes in the FEDERAL REG- local elected officials, through the offi- ISTER a list of TVA’s federal financial cial state process, as early in a pro- assistance and direct federal develop- gram planning cycle as is reasonably ment programs and activities that are feasible to explain specific plans and subject to these regulations. actions. (b) TVA provides notice to directly § 1311.4 [Reserved] affected state, areawide, regional, and § 1311.5 What is TVA’s obligation with local entities in a state of proposed respect to federal interagency co- Federal financial assistance or direct ordination? federal development if: TVA, to the extent practicable, (1) The state has not adopted a proc- consults with and seeks advice from all ess under the Order; other substantially affected federal de- (2) The assistance or development in- partments and agencies in an effort to volves a program or activity not se- assure full coordination between such lected for the state process; or agencies and TVA regarding programs (3) The particular government entity and activities covered under these reg- is not part of or involved in the state ulations. process. This notice may be made by a publica- § 1311.6 What procedures apply to the tion widely available in the potentially selection of programs and activities affected area or other appropriate under these regulations? means, which TVA in its discretion (a) A state may select any program deems appropriate. or activity published in the FEDERAL REGISTER in accordance with § 1311.3 of § 1311.8 How does TVA provide states this part for intergovernmental review an opportunity to comment on pro- under these regulations. Each state, posed federal financial assistance before selecting programs and activi- and direct federal development? ties, shall consult with local elected of- (a) Except in unusual circumstances, ficials. TVA gives state processes or directly (b) Each state that adopts a process affected state, areawide, regional, and shall notify TVA of the programs and local officials and entities: activities selected for that process. (1) [Reserved] (c) A state may notify TVA of (2) At least 60 days from the date es- changes in its selections at any time. tablished by TVA to comment on pro- For each change, the state shall submit posed direct Federal development or to TVA an assurance that the state has federal financial assistance. consulted with local elected officials (b) This section also applies to com- regarding the change. TVA may estab- ments in cases in which the review, co- lish deadlines by which states are re- ordination, and communication with quired to inform TVA of changes in TVA have been delegated or when TVA their program selections. provides notice directly to potentially (d) TVA uses a state’s process as soon affected state, areawide, regional, or as feasible, depending on individual local entities under § 1311.7(b).

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§ 1311.9 How does TVA receive and re- (1) Accepts the recommendation; spond to comments? (2) Reaches a mutually agreeable so- (a) TVA follows the procedures in lution with the state process; or § 1311.10 if: (3) Provides the single point of con- (1) A state office or official is des- tact (including any regional or local of- ignated to act as a single point of con- fice delegated a review and comment tact between a state process and all role by the state process) with written federal agencies, and explanation of the decision in such (2) That office or official transmits a form as TVA in its discretion deems state process recommendation for a appropriate. TVA may also supplement program selected under § 1311.6. the written explanation by providing (b)(1) The single point of contact is the explanation to the single point of not obligated to transmit comments contact by telephone, other tele- from state, areawide, regional, or local communications, meeting with the sin- officials and entities where there is no gle point of contact, and, as appro- state process recommendation; how- priate, other interested officials or of- ever, these officials or entities may fices, or other means. submit comments directly to TVA for (b) In any explanation under para- TVA’s consideration. graph (a)(3) of this section, TVA in- (2) If a state process recommendation forms the single point of contact that: is transmitted by a single point of con- (1) TVA will not implement its deci- tact, all comments from state, sion for at least 10 days after the single areawide, regional, and local officials point of contact receives the expla- and entities that differ from it must nation; or also be transmitted. (2) TVA’s General Manager has re- (c) If a state has not established a viewed the decision and determined process, or is unable to submit a state that, because of unusual cir- process recommendation, state, cumstances, the waiting period of at areawide, regional, and local officials least 10 days is not feasible. and entities may submit comments to (c) For purposes of computing the TVA. waiting period under paragraph (b)(1) (d) If a program or activity is not se- of this section, the explanation is pre- lected for a state process, state, sumed to have been received five days areawide, regional, and local officials after the date of mailing of such notifi- and entities may submit comments to cation. TVA. In addition, if a state process recommendation for a nonselected pro- § 1311.11 What are TVA’s obligations in interstate situations? gram or activity is transmitted to TVA by the single point of contact, TVA fol- (a) TVA is responsible for: lows the procedures of § 1311.10 of this (1) Identifying proposed Federal fi- part. nancial assistance and direct Federal (e) TVA considers comments which development that potentially impact do not constitute a state process recon interstate areas; ommendation submitted under these (2) Notifying appropriate officials regulations and for which TVA is not and entities in states which have required to apply the procedures of adopted a process and which select § 1311.10 of this part, when such com- TVA’s program or activity; ments are provided by a single point of (3) In accordance with § 1311.7(b), contact or directly to TVA by a state, making efforts to identify and notify areawide, regional, or local govern- the affected state, areawide, regional ment. and local officials and entities in those states that have not adopted a process § 1311.10 How does TVA make efforts under the Order or do not select TVA’s to accommodate intergovernmental program or activity; viewpoints? (4) Responding pursuant to § 1311.10 of (a) If a state process provides a state this part if TVA receives a rec- process recommendation to TVA ommendation from a designated through its single point contact, TVA areawide agency transmitted by a sin- either: gle point of contact, in cases in which

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the review, coordination, and commu- § 1312.1 Purpose. nication with TVA have been dele- (a) The regulations in this part im- gated. (b) TVA uses the procedures in plement provisions of the Archae- § 1311.10 if a state process provides a ological Resources Protection Act of state process recommendation to TVA 1979, as amended (16 U.S.C. 470aa-mm) through a single point of contact. by establishing the uniform definitions, standards, and procedures to be § 1311.12 [Reserved] followed by all Federal land managers in providing protection for archae- § 1311.13 May TVA waive any provi- ological resources, located on public sion of these regulations? lands and Indian lands of the United In an emergency, TVA may waive States. These regulations enable Fed- any provision of these regulations. eral land managers to protect archaeological resources, taking into consid- PART 1312—PROTECTION OF AR- eration provisions of the American In- CHAEOLOGICAL RESOURCES: dian Religious Freedom Act (92 Stat. UNIFORM REGULATIONS 469; 42 U.S.C. 1996), through permits authorizing excavation and/or removal of Sec. archaeological resources, through civil 1312.1 Purpose. penalties for unauthorized excavation 1312.2 Authority. and/or removal, through provisions for 1312.3 Definitions. the preservation of archaeological re- 1312.4 Prohibited acts and criminal pen- source collections and data, and alties. through provisions for ensuring con- 1312.5 Permit requirements and exceptions. fidentiality of information about ar- 1312.6 Application for permits and information collection. chaeological resources when disclosure 1312.7 Notification to Indian tribes of pos- would threaten the archaeological re- sible harm to, or destruction of, sites on sources. public lands having religious or cultural (b) The regulations in this part do importance. not impose any new restrictions on ac- 1312.8 Issuance of permits. tivities permitted under other laws, au- 1312.9 Terms and conditions of permits. 1312.10 Suspension and revocation of per- thorities, and regulations relating to mits. mining, mineral leasing, reclamation, 1312.11 Appeals relating to permits. and other multiple uses of the public 1312.12 Relationship to section 106 of the lands. National Historic Preservation Act. 1312.13 Custody of archaeological resources. [49 FR 1028, Jan. 6, 1984, as amended at 60 FR 1312.14 Determination of archaeological or 5259, 5260, Jan. 26, 1995] commercial value and cost of restoration and repair. § 1312.2 Authority. 1312.15 Assessment of civil penalties. (a) The regulations in this part are 1312.16 Civil penalty amounts. 1312.17 Other penalties and rewards. promulgated pursuant to section 10(a) 1312.18 Confidentiality of archaeological re- of the Archaeological Resources Pro- source information. tection Act of 1979 (16 U.S.C. 470ii), 1312.19 Report. which requires that the Secretaries of 1312.20 Public awareness programs. the Interior, Agriculture and Defense 1312.21 Surveys and schedules. and the Chairman of the Board of the AUTHORITY: Pub. L. 96–95, 93 Stat. 721, as Tennessee Valley Authority jointly de- amended, 102 Stat. 2983 (16 U.S.C. 470aa-mm) velop uniform rules and regulations for (Sec. 10(a). Related Authority: Pub. L. 59–209, carrying out the purposes of the Act. 34 Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86–523, (b) In addition to the regulations in 74 Stat. 220, 221 (16 U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L. 89–665, 80 Stat. 915 (16 this part, section 10(b) of the Act (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), U.S.C. 470ii) provides that each Federal 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. land manager shall promulgate such 3467 (1978), 94 Stat. 2987 (1980); Pub. L. 95–341, rules and regulations, consistent with 92 Stat. 469 (42 U.S.C. 1996). the uniform rules and regulations in SOURCE: 49 FR 1028, Jan. 6, 1984, unless oth- this part, as may be necessary for car- erwise noted. rying out the purposes of the Act.

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§ 1312.3 Definitions. (v) Organic waste (including, but not limited to, vegetal and animal re- As used for purposes of this part: mains, coprolites); (a) Archaeological resource means any (vi) Human remains (including, but material remains of human life or ac- not limited to, bone, teeth, mummified tivities which are at least 100 years of flesh, burials, cremations); age, and which are of archaeological interest. (vii) Rock carvings, rock paintings, intaglios and other works of artistic or (1) Of archaeological interest means ca- symbolic representation; pable of providing scientific or human- istic understandings of past human be- (viii) Rockshelters and caves or por- havior, cultural adaptation, and re- tions thereof containing any of the lated topics through the application of above material remains; scientific or scholarly techniques such (ix) All portions of shipwrecks (in- as controlled observation, contextual cluding, but not limited to, arma- measurement, controlled collection, ments, apparel, tackle, cargo); analysis, interpretation and expla- (x) Any portion or piece of any of the nation. foregoing. (2) Material remains means physical (4) The following material remains evidence of human habitation, occupa- shall not be considered of archae- tion, use, or activity, including the ological interest, and shall not be con- site, location, or context in which such sidered to be archaeological resources evidence is situated. for purposes of the Act and this part, (3) The following classes of material unless found in a direct physical rela- remains (and illustrative examples), if tionship with archaeological resources they are at least 100 years of age, are of as defined in this section: archaeological interest and shall be (i) Paleontological remains; considered archaeological resources (ii) Coins, bullets, and unworked min- unless determined otherwise pursuant erals and rocks. to paragraph (a)(4) or (5) of this sec- (5) The Federal land manager may tion: determine that certain material re- (i) Surface or subsurface structures, mains, in specified areas under the shelters, facilities, or features (includ- Federal land manager’s jurisdiction, ing, but not limited to, domestic struc- and under specified circumstances, are tures, storage structures, cooking not or are no longer of archaeological structures, ceremonial structures, arti- interest and are not to be considered ficial mounds, earthworks, fortifica- archaeological resources under this tions, canals, reservoirs, horticultural/ part. Any determination made pursu- agricultural gardens or fields, bedrock ant to this subparagraph shall be docu- mortars or grinding surfaces, rock mented. Such determination shall in alignments, cairns, trails, borrow pits, no way affect the Federal land man- cooking pits, refuse pits, burial pits or ager’s obligations under other applica- graves, hearths, kilns, post molds, wall ble laws or regulations. trenches, middens); (6) For the disposition following law- (ii) Surface or subsurface artifact ful removal or excavations of Native concentrations or scatters; American human remains and ‘‘cul- (iii) Whole or fragmentary tools, im- tural items’’, as defined by the Native plements, containers, weapons and American Graves Protection and Repa- weapon projectiles, clothing, and orna- triation Act (NAGPRA; Pub. L. 101–601; ments (including, but not limited to, 104 Stat. 3050; 25 U.S.C. 3001–13), the pottery and other ceramics, cordage, Federal land manager is referred to basketry and other weaving, bottles NAGPRA and its implementing regula- and other glassware, bone, ivory, shell, tions. metal, wood, hide, feathers, pigments, (b) Arrowhead means any projectile and flaked, ground, or pecked stone); point which appears to have been de- (iv) By-products, waste products, or signed for use with an arrow. debris resulting from manufacture or (c) Federal land manager means: use of human-made or natural mate- (1) With respect to any public lands, rials; the secretary of the department, or the

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head of any other agency or instrumen- most recent publication of the annual tality of the United States, having pri- list; and mary management authority over such (3) Any Alaska Native village or re- lands, including persons to whom such gional or village corporation as defined management authority has been offi- in or established pursuant to the Alas- cially delegated; ka Native Claims Settlement Act (85 (2) In the case of Indian lands, or any Stat. 688), and any Alaska Native vil- public lands with respect to which no lage or tribe which is recognized by the department, agency or instrumentality Secretary of the Interior as eligible for has primary management authority, services provided by the Bureau of In- such term means the Secretary of the dian Affairs. Interior; (g) Person means an individual, cor- (3) The Secretary of the Interior, poration, partnership, trust, institu- when the head of any other agency or tion, association, or any other private instrumentality has, pursuant to sec- entity, or any officer, employee, agent, tion 3(2) of the Act and with the con- department, or instrumentality of the sent of the Secretary of the Interior, United States, or of any Indian tribe, delegated to the Secretary of the Inte- or of any State or political subdivision rior the responsibilities (in whole or in thereof. part) in this part. (h) State means any of the fifty states, the District of Columbia, Puer- (d) Public lands means: to Rico, Guam, and the Virgin Islands. (1) Lands which are owned and ad- (i) Act means the Archaeological Re- ministered by the United States as sources Protection Act of 1979 (16 part of the national park system, the U.S.C. 470aa–mm). national wildlife refuge system, or the national forest system; and [49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, (2) All other lands the fee title to 1984, as amended at 60 FR 5259, 5260, Jan. 26, 1995] which is held by the United States, except lands on the Outer Continental § 1312.4 Prohibited acts and criminal Shelf, lands under the jurisdiction of penalties. the Smithsonian Institution, and In- (a) Under section 6(a) of the Act, no dian lands. person may excavate, remove, damage, (e) Indian lands means lands of Indian or otherwise alter or deface, or attempt tribes, or Indian individuals, which are to excavate, remove, damage, or other- either held in trust by the United wise alter or deface any archaeological States or subject to a restriction resource located on public lands or In- against alienation imposed by the dian lands unless such activity is pur- United States, except for subsurface in- suant to a permit issued under § 1312.8 terests not owned or controlled by an or exempted by § 1312.5(b) of this part. Indian tribe or Indian individual. (b) No person may sell, purchase, ex- (f) Indian tribe as defined in the Act change, transport, or receive any ar- means any Indian tribe, band, nation, chaeological resource, if such resource or other organized group or commu- was excavated or removed in violation nity, including any Alaska village or of: regional or village corporation as de- (1) The prohibitions contained in fined in, or established pursuant to, the paragraph (a) of this section; or Alaska Native Claims Settlement Act (2) Any provision, rule, regulation, (85 Stat. 688). In order to clarify this ordinance, or permit in effect under statutory definition for purposes of any other provision of Federal law. this part, ‘‘Indian tribe’’ means: (c) Under section (d) of the Act, any (1) Any tribal entity which is in- person who knowingly violates or cluded in the annual list of recognized counsels, procures, solicits, or employs tribes published in the FEDERAL REG- any other person to violate any prohi- ISTER by the Secretary of the Interior bition contained in section 6 (a), (b), or pursuant to 25 CFR part 54; (c) of the Act will, upon conviction, be (2) Any other tribal entity acknowl- fined not more than $10,000.00 or im- edged by the Secretary of the Interior prisoned not more than one year, or pursuant to 25 CFR part 54 since the both: provided, however, that if the

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commercial or archaeological value of (2) No permit shall be required under the archaeological resources involved this part for any person collecting for and the cost of restoration and repair private purposes any rock, coin, bullet, of such resources exceeds the sum of or mineral which is not an archae- $500.00, such person will be fined not ological resource as defined in this more than $20,000.00 or imprisoned not part, provided that such collecting does more than two years, or both. In the not result in disturbance of any case of a second or subsequent such archaelogical resource. violation upon conviction such person (3) No permit shall be required under will be fined not more than $100,000.00, this part or under section 3 of the Act or imprisoned not more than five of June 8, 1906 (16 U.S.C. 432), for the years, or both. excavation or removal by any Indian [49 FR 1028, Jan. 6, 1984, as amended at 60 FR tribe or member thereof of any archae- 5259, 5260, Jan. 26, 1995] ological resource located on Indian lands of such Indian tribe, except that § 1312.5 Permit requirements and ex- in the absence of tribal law regulating ceptions. the excavation or removal or archae- (a) Any person proposing to excavate ological resources on Indian lands, an and/or remove archaeological resources individual tribal member shall be re- from public lands or Indian lands, and quired to obtain a permit under this to carry out activities associated with part; such excavation and/or removal, shall (4) No permit shall be required under apply to the Federal land manager for this part for any person to carry out a permit for the proposed work, and any archaeological activity authorized shall not begin the proposed work until by a permit issued under section 3 of a permit has been issued. The Federal the Act of June 8, 1906 (16 U.S.C. 432), land manager may issue a permit to before the enactment of the Archae- any qualified person, subject to appro- ological Resources Protection Act of priate terms and conditions, provided 1979. Such permit shall remain in effect that the person applying for a permit according to its terms and conditions meets conditions in § 1312.8(a) of this until expiration. part. (5) No permit shall be required under (b) Exceptions: section 3 of the Act of June 8, 1906 (16 (1) No permit shall be required under U.S.C. 432) for any archaeological work this part for any person conducting ac- for which a permit is issued under this tivities on the public lands under other part. permits, leases, licenses, or entitle- (c) Persons carrying out official ments for use, when those activities agency duties under the Federal land are exclusively for purposes other than manager’s direction, associated with the excavation and/or removal of ar- the management of archaeological re- chaeological resources, even though sources, need not follow the permit ap- those activities might incidentally re- plication procedures of § 1312.6. How- sult in the disturbance of archae- ever, the Federal land manager shall ological resources. General earth-mov- insure that provisions of §§ 1312.8 and ing excavation conducted under a per- 1312.9 have been met by other docu- mit or other authorization shall not be mented means, and that any official construed to mean excavation and/or duties which might result in harm to removal as used in this part. This ex- or destruction of any Indian tribal reli- ception does not, however, affect the gious or cultural site, as determined by Federal land manager’s responsibility the Federal land manager, have been to comply with other authorities which the subject of consideration under protect archaeological resources prior § 1312.7. to approving permits, leases, licenses, (d) Upon the written request of the or entitlements for use; any excavation Governor of any State, on behalf of the and/or removal of archaeological re- State or its educational institutions, sources required for compliance with the Federal land manager shall issue a those authorities shall be conducted in permit, subject to the provisions of accordance with the permit require- §§ 1312.5(b)(5), 1312.7, 1312.8(a)(3), (4), (5), ments of this part. (6), and (7), 1312.9, 1312.10, 1312.12, and

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1312.13(a) to such Governor or to such logistical support and laboratory fa- designee as the Governor deems quali- cilities. fied to carry out the intent of the Act, (5) Where the application is for the for purposes of conducting archae- excavation and/or removal of archaeological research, excavating and/or re- ological resources on public lands, the moving archaeological resources, and names of the university, museum, or safeguarding and preserving any mate- other scientific or educational institu- rials and data collected in a university, tion in which the applicant proposes to museum, or other scientific or edu- store all collections, and copies of cational institution approved by the records, data, photographs, and other Federal land manager. documents derived from the proposed (e) Under other statutory, regu- work. Applicants shall submit written latory, or administrative authorities certification, signed by an authorized governing the use of public lands and official of the institution, of willing- Indian lands, authorizations may be re- ness to assume curatorial responsi- quired for activities which do not re- bility for the collections, records, data, quire a permit under this part. Any photographs and other documents and person wishing to conduct on public tm safeguard and preserve these mate- lands or Indian lands any activities re- rials as property of the United States. lated to but believed to fall outside the (6) Where the application is for the scope of this part should consult with excavation and/or removal of archae- the Federal land manager, for the pur- ological resources on Indian lands, the pose of determining whether any au- name of the university, museum, or thorization is required, prior to begin- other scientific or educational institu- ning such activities. tion in which the applicant proposes to § 1312.6 Application for permits and store copies of records, data, photo- information collection. graphs, ald other documents derived from the proposed work, and all collec- (a) Any person may apply to the ap- tions in the event the Indian owners do propriate Federal land manager for a not wish tm take custody or otherwise permit to excavate and/or remove ar- dispose of the archaeological resources. chaeological resources from public lands or Indian lands and to carry out Applicants shall submit written certifi- activities associated with such exca- cation, signed by an authorized official vation and/or removal. of the institution, or willingness tm as- (b) Each application for a permit sume curatorial responsibility for the shall include: collections, if applicable, and/or the (1) The nature and extent of the work records, data, photographs, and other proposed, including how and why it is documents derived from the proposed proposed to be conducted, proposed work. time of performance, locational maps, (c) The Federal land manager may and proposed outlet for public written require additional information, perti- dissemination of the results. nent to land management responsibil- (2) The name and address of the indi- ities, to be included in the application vidual(s) proposed to be responsible for for permit and shall so inform the ap- conducting the work, institutional af- plicant. filiation, if any, and evidence of edu- (d) Paperwork Reduction Act. The in- cation, training, and experience in ac- formation collection requirement con- cord with the minimal qualifications tained in § 1312.6 of these regulations listed in § 1312.8(a). has been approved by the Office of (3) The name and address of the indi- Management and Budget under 44 vidual(s), if different from the indi- U.S.C. 3501 et seq. and assigned clear- vidual(s) named in paragraph (b)(2) of ance number 1024–0037. The purpose of this section, proposed to be responsible the information collection is to meet for carrying out the terms and condi- statutory and administrative require- tions of the permit. ments in the public interest. The infor- (4) Evidence of the applicant’s ability mation will be used to assist Federal to initiate, conduct, and complete the land managers in determining that ap- proposed work, including evidence of plicants for permits are qualified, that

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the work proposed would further ar- of loss or destruction of an archae- chaeological knowledge, that archaeological resource, the Federal land ological resources and associated manager shall so notify the appro- records and data will be properly pre- priate tribe. served, and that the permitted activity (b)(1) In order to identify sites of reli- would not conflict with the manage- gious or cultural importance, the Fed- ment of the public lands involved. Re- eral land manager shall seek to iden- sponse to the information requirement tify all Indian tribes having aboriginal is necessary in order for an applicant or historic ties to the lands under the to obtain a benefit. Federal land manager’s jurisdiction and seek to determine, from the chief (Approved by the Office of Management and Budget under control number 1024–0037) executive officer or other designated official of any such tribe, the location § 1312.7 Notification to Indian tribes of and nature of specific sites of religious possible harm to, or destruction of, or cultural importance so that such in- sites on public lands having reli- formation may be on file for land man- gious or cultural importance. agement purposes. Information on sites (a) If the issuance of a permit under eligible for or included in the National this part may result in harm to, or de- Register of Historic Places may be struction of, any Indian tribal religious withheld from public disclosure pursu- or cultural site on public lands, as de- ant to section 304 of the Act of October termined by the Federal land manager, 15, 1966, as amended (16 U.S.C. 470w–3). at least 30 days before issuing such a (2) If the Federal land manager be- permit the Federal land manager shall comes aware of a Native American notify any Indian tribe which may con- group that is not an Indian tribe as de- sider the site as having religious or fined in this part but has aboriginal or cultural importance. Such notice shall historic ties to public lands under the not be deemed a disclosure to the pub- Federal land manager’s jurisdiction, lic for purposes of section 9 of the Act. the Federal land manager may seek to (1) Notice by the Federal land man- communicate with official representa- ager to any Indian tribe shall be sent tives of that group to obtain informa- to the chief executive officer or other tion on sites they may consider to be of designated official of the tribe. Indian religious or cultural importance. tribes are encouraged to designate a (3) The Federal land manager may tribal official to be the focal point for enter into agreement with any Indian any notification and discussion be- tribe or other Native American group tween the tribe and the Federal land for determining locations for which manager. such tribe or group wishes to receive (2) The Federal land manager may notice under this section. provide notice to any other Native (4) The Federal land manager should American group that is known by the also seek to determine, in consultation Federal land manager to consider sites with official representatives of Indian potentially affected as being of reli- tribes or other Native American gious or cultural importance. groups, what circumstances should be (3) Upon request during the 30-day pe- the subject of special notification to riod, the Federal land manager may the tribe or group after a permit has meet with official representatives of been issued. Circumstances calling for any Indian tribe or group to discuss notification might include the dis- their interests, including ways to avoid covery of human remains. When cir- or mitigate potential harm or destruc- cumstances for special notification tion such as excluding sites from the have been determined by the Federal permit area. Any mitigation measures land manager, the Federal land man- which are adopted shall be incor- ager will include a requirement in the porated into the terms and conditions terms and conditions of permits, under of the permit under § 1312.9. § 1312.9(c), for permittees to notify the (4) When the Federal land manager Federal land manger immediately upon detemines that a permit applied for the occurrence of such circumstances. under this part must be issued imme- Following the permittee’s notification, diately because of an imminent threat the Federal land manager will notify

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and consult with the tribe or group as interest, which may include but need appropriate. In cases involving Native not be limited to, scientific or schol- American human remains and other arly research, and preservation of ar- ‘‘cultural items’’, as defined by chaeological data; NAGPRA, the Federal land manager is (3) The proposed work, including referred to NAGPRA and its imple- time, scope, location, and purpose, is menting regulations. not inconsistent with any management [49 FR 1028, Jan. 6, 1984, as amended at 60 FR plan or established policy, objectives, 5259, 5261, Jan. 26, 1995] or requirements applicable to the management of the public lands concerned; § 1312.8 Issuance of permits. (4) Where the proposed work consists (a) The Federal land manager may of archaelogical survey and/or data reissue a permit, for a specified period of covery undertaken in accordance with time appropriate to the work to be con- other approved uses of the public lands ducted, upon determining that: or Indian lands, and the proposed work (1) The applicant is appropriately has been agreed to in writing by the qualified, as evidenced by training, Federal land manager pursuant to sec- education, and/or experience, and pos- tion 106 of the National Historic Pres- sesses demonstrable competence in ar- ervation Act (16 U.S.C. 470f), para- chaeological theory and methods, and graphs (a)(2) and (3) shall be deemed in collecting, handling, analyzing, satisfied by the prior approval. evaluating, and reporting archae- (5) Written consent has been ob- ological data, relative to the type and tained, for work proposed on Indian scope of the work proposed, and also lands, from the Indian landowner and meets the following minimum quali- the Indian tribe having jurisdiction fications: over such lands; (i) A graduate degree in anthropology (6) Evidence is submitted to the Fed- or archaeology, or equivalent training eral land manager that any university, and experience; museum, or other scientific or edu- (ii) The demonstrated ability to plan, cational institution proposed in the ap- equip, staff, organize, and supervise ac- plication as the repository possesses tivity of the type and scope proposed; adequate curatorial capability for safe- (iii) The demonstrated ability to guarding and preserving the archae- carry research to completion, as evi- ological resources and all associated denced by timely completion of theses, records; and research reports, or similar documents; (7) The applicant has certified that, (iv) Completion of at least 16 months not later than 90 days after the date of professional experience and/or spe- the final report is submitted to the cialized training in archaeological Federal land manager, the following field, laboratory, or library research, will be delivered to the appropriate of- administration, or management, in- ficial of the approved university, mu- cluding at least 4 months experience seum, or other scientific or educational and/or specialized training in the kind institution, which shall be named in of activity the individual proposes to the permit: conduct under authority of a permit; (i) All artifacts, samples, collections, and and copies of records, data, photo- (v) Applicants proposing to engage in graphs, and other documents resulting historical archaeology should have had from work conducted under the re- at least one year of experience in requested permit where the permit is for search concerning archaeological re- the excavation and/or removal of ar- sources of the historic period. Appli- chaeological resources from public cants proposing to engage in pre- lands. historic archaeology should have had (ii) All artifacts, samples and collec- at least one year of experience in re- tions resulting from work under the research concerning archaeological requested permit for which the custody sources of the prehistoric period. or disposition is not undertaken by the (2) The proposed work is to be under- Indian owners, and copies of records, taken for the purpose of furthering ar- data, photographs, and other docu- chaeological knowledge in the public ments resulting from work conducted

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under the requested permit, where the been satisfied, whether or not the term permit is for the excavation and/or re- of the permit has expired. moval of archaeological resources from (f) The permittee may request that Indian lands. the Federal land manager extend or (b) When the area of the proposed modify a permit. work would cross jurisdictional bound- (g) The permittee’s performance aries, so that permit applications must under any permit issued for a period be submitted to more than one Federal greater than 1 year shall be subject to land manager, the Federal land man- review by the Federal land manager, at agers shall coordinate the review and least annually. evaluation of applications and the issuance of permits. § 1312.10 Suspension and revocation of permits. [49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984] (a) Suspension or revocation for cause. (1) The Federal land manager may sus- § 1312.9 Terms and conditions of per- pend a permit issued pursuant to this mits. part upon determining that the per- (a) In all permits issued, the Federal mittee has failed to meet any of the land manager shall specify: terms and conditions of the permit or (1) The nature and extent of work al- has violated any prohibition of the Act lowed and required under the permit, or § 1312.4. The Federal land manager including the time, duration, scope, lo- shall provide written notice to the per- cation, and purpose of the work; mittee of the suspension, the cause (2) The name of the individual(s) re- thereof, and the requirements which sponsible for conducting the work and, must be met before the suspension will if different, the name of the indi- be removed. vidual(s) responsible for carrying out (2) The Federal land manager may re- the terms and conditions of the permit; voke a permit upon assessment of a (3) The name of any university, mu- civil penalty under § 1312.15 upon the seum, or other scientific or educational permittee’s conviction under section 6 insitutions in which any collected ma- of the Act, or upon determining that terials and data shall be deposited; and the permittee has failed after notice (4) Reporting requirements. under this section to correct the situa- (b) The Federal land manager may tion which led to suspension of the per- specify such terms and conditions as mit. deemed necessary, consistent with this (b) Suspension or revocation for man- part, to protect public safety and other agement purposes. The Federal land values and/or resources, to secure work manager may suspend or revoke a per- areas, to safeguard other legitimate mit, without liability to the United land uses, and to limit activities inci- States, its agents, or employees, when dental to work authorized under a per- continuation of work under the permit mit. would be in conflict with management (c) The Federal land manager shall requirements not in effect when the include in permits issued for archae- permit was issued. The Federal land ological work on Indian lands such manager shall provide written notice terms and conditions as may be re- to the permittee stating the nature of quested by the Indian landowner and and basis for the suspension or revoca- the Indian tribe having jurisdiction tion. over the lands, and for archaeological work on public lands shall include such [49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, terms and conditions as may have been 1984] developed pursuant to § 1312.7. (d) Initiation of work or other activi- § 1312.11 Appeals relating to permits. ties under the authority of a permit Any affected person may appeal per- signifies the permittee’s acceptance of mit issuance, denial of permit the terms and conditions of the permit. issuance, suspension, revocation, and (e) The permittee shall not be re- terms and conditions of a permit leased from requirements of a permit through existing administrative appeal until all outstanding obligations have procedures, or through procedures

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which may be established by the Fed- NAGPRA, that have been excavated, eral land manager pursuant to section removed, or discovered on public lands. 10(b) of the Act and this part. [49 FR 1028, Jan. 6, 1984, as amended at 60 FR 5259, 5261, Jan. 26, 1995] § 1312.12 Relationship to section 106 of the National Historic Preservation § 1312.14 Determination of archae- Act. ological or commercial value and Issuance of a permit in accordance cost of restoration and repair. with the Act and this part does not (a) Archaeological value. For purposes constitute an undertaking requiring of this part, the archaeological value of compliance with section 106 of the Act any archaeological resource involved of October 15, 1966 (16 U.S.C. 470f). How- in a violation of the prohibitions in ever, the mere issuance of such a per- § 1312.4 of this part or conditions of a mit does not excuse the Federal land permit issued pursuant to this part manager from compliance with section shall be the value of the information 106 where otherwise required. associated with the archaeological resource. This value shall be appraised in § 1312.13 Custody of archaeological re- terms of the costs of the retrieval of sources. the scientific information which would (a) Archaeological resources exca- have been obtainable prior to the viola- vated or removed from the public lands tion. These costs may include, but need remain the property of the United not be limited to, the cost of preparing States. a research design, conducting field (b) Archaeological resources exca- work, carrying out laboratory analysis, vated or removed from Indian lands re- and preparing reports as would be nec- main the property of the Indian or In- essary to realize the information po- dian tribe having rights of ownership tential. over such resources. (b) Commercial value. For purposes of (c) The Secretary of the Interior may this part, the commercial value of any promulgate regulations providing for archaeological resource involved in a the exchange of archaeological re- violation of the prohibitions in § 1312.4 sources among suitable universities, of this part or conditions of a permit museums, or other scientific or edu- issued pursuant to this part shall be its cational institutions, for the ultimate fair market value. Where the violation disposition of archaeological resources, has resulted in damage to the archae- and for standards by which archaeological resource, the fair market ological resources shall be preserved value should be determined using the and maintained, when such resources condition of the archaeological re- have been excavated or removed from source prior to the violation, to the ex- public lands and Indian lands. tent that its prior condition can be (d) In the absence of regulations ref- ascertained. erenced in paragraph (c) of this section, (c) Cost of restoration and repair. For the Federal land manager may provide purposes of this part, the cost of res- for the exchange of archaeological re- toration and repair of archaeological sources among suitable universities, resources damaged as a result of a vio- museums, or other scientific or edu- lation of prohibitions or conditions cational institutions, when such re- pursuant to this part, shall be the sum sources have been excavated or re- of the costs already incurred for emer- moved from public lands under the au- gency restoration or repair work, plus thority of a permit issued by the Fed- those costs projected to be necessary to eral land manager. complete restoration and repair, which (e) Notwithstanding the provisions of may include, but need not be limited paragraphs (a) through (d) of this sec- to, the costs of the following: tion, the Federal land manager will fol- (1) Reconstruction of the archae- low the procedures required by ological resource; NAGPRA and its implementing regula- (2) Stabilization of the archae- tions for determining the disposition of ological resource; Native American human remains and (3) Ground contour reconstruction other ‘‘cultural items’’, as defined by and surface stabilization;

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(4) Research necessary to carry out the person of the right to seek judicial reconstruction or stabilization; review of any final administrative deci- (5) Physical barriers or other protec- sion assessing a civil penalty. tive devices, necessitated by the dis- (c) The person served with a notice of turbance of the archaeological re- violation shall have 45 calendar days source, to protect it from further dis- from the date of its service (or the date turbance; of service of a proposed penalty (6) Examination and analysis of the amount, if later) in which to respond. archaeological resource including re- During this time the person may: cording remaining archaeological in- (1) Seek informal discussions with formation, where necessitated by dis- the Federal land manager; turbance, in order to salvage remaining (2) File a petition for relief in accord- values which cannot be otherwise con- ance with paragraph (d) of this section; served; (3) Take no action and await the Fed- (7) Reinterment of human remains in eral land manager’s notice of assess- accordance with religious custom and ment; State, local, or tribal law, where appropriate, as determined by the Federal (4) Accept in writing or by payment land manager. the proposed penalty, or any mitiga- (8) Preparation of reports relating to tion or remission offered in the notice. any of the above activities. Acceptance of the proposed penalty or mitigation or remission shall be § 1312.15 Assessment of civil penalties. deemed a waiver of the notice of assess- (a) The Federal land manager may ment and of the right to request a assess a civil penalty against any per- hearing under paragraph (g) of this sec- son who has violated any prohibition tion. contained in § 1312.4 or who has vio- (d) Petition for relief. The person lated any term or condition included in served with a notice of violation may a permit issued in accordance with the request that no penalty be assessed or Act and this part. that the amount be reduced, by filing a (b) Notice of violation. The Federal petition for relief with the Federal land manager shall serve a notice of land manager within 45 calendar days violation upon any person believed to of the date of service of the notice of be subject to a civil penalty, either in violation (or of a proposed penalty person or by registered or certified amount, if later). The petition shall be mail (return receipt requested). The in writing and signed by the person Federal land manager shall include in served with the notice of violation. If the notice: the person is a corporation, the peti- (1) A concise statement of the facts tion must be signed by an officer au- believed to show a violation; thorized to sign such documents. The (2) A specific reference to the provi- petition shall set forth in full the legal sion(s) of this part or to a permit or factual basis for the requested relief. issued pursuant to this part allegedly (e) Assessment of penalty. (1) The Fed- violated; eral land manager shall assess a civil (3) The amount of penalty proposed penalty upon expiration of the period to be assessed, including any initial for filing a petition for relief, upon proposal to mitigate or remit where ap- completion of review of any petition propriate, or a statement that notice of filed, or upon completion of informal a proposed penalty amount will be discussions, whichever is later. served after the damages associated (2) The Federal land manager shall with the alleged violation have been take into consideration all available ascertained; information, including information (4) Notification of the right to file a provided pursuant to paragraphs (c) petition for relief pursuant to para- and (d) of this section or furnished graph (d) of this section, or to await upon further request by the Federal the Federal land manager’s notice of land manager. assessment, and to request a hearing in (3) If the facts warrant a conclusion accordance with paragraph (g) of this that no violation has occurred, the section. The notice shall also inform Federal land manager shall so notify

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the person served with a notice of vio- (h) Final administrative decision. (1) lation, and no penalty shall be as- Where the person served with a notice sessed. of violation has accepted the penalty (4) Where the facts warrant a conclu- pursuant to paragraph (c)(4) of this sec- sion that a violation has occurred, the tion, the notice of violation shall con- Federal land manager shall determine stitute the final administrative deci- a penalty amount in accordance with sion; § 1312.16. (2) Where the person served with a (f) Notice of assessment. The Federal notice of assessment has not filed a land manager shall notify the person timely request for a hearing pursuant served with a notice of violation of the to paragraph (g)(1) of this section, the penalty amount assessed by serving a notice of assessment shall constitute written notice of assessment, either in the final administrative decision; person or by registered or certified (3) Where the person served with a mail (return receipt requested). The Federal land manager shall include in notice of assessment has filed a timely the notice of assessment: request for a hearing pursuant to para- (1) The facts and conclusions from graph (g)(1) of this section, the decision which it was determined that a viola- resulting from the hearing or any ap- tion did occur; plicable administrative appeal there- (2) The basis in § 1312.16 for deter- from shall constitute the final admin- mining the penalty amount assessed istrative decision. and/or any offer to mitigate or remit (i) Payment of penalty. (1) The person the penalty; and assessed a civil penalty shall have 45 (3) Notification of the right to re- calendar days from the date of issuance quest a hearing, including the proce- of the final administrative decision in dures to be followed, and to seek judi- which to make full payment of the pen- cial review of any final administrative alty assessed, unless a timely request decision assessing a civil penalty. for appeal has been filed with a U.S. (g) Hearings. (1) Except where the District Court as provided in section right to request a hearing is deemed to 7(b)(1) of the Act. have been waived as provided in para- (2) Upon failure to pay the penalty, graph (c)(4) of this section, the person the Federal land manager may request served with a notice of assessment may the Attorney General to institute a file a written request for a hearing civil action to collect the penalty in a with the adjudicatory body specified in U.S. District Court for any district in the notice. The person shall enclose which the person assessed a civil pen- with the request for hearing a copy of alty is found, resides, or transacts busi- the notice of assessment, and shall de- ness. Where the Federal land manager liver the request as specified in the no- is not represented by the Attorney tice of assessment, personally or by General, a civil action may be initiated registered or certified mail (return re- directly by the Federal land manager. ceipt requested). (j) Other remedies not waived. Assess- (2) Failure to deliver a written re- ment of a penalty under this section quest for a hearing within 45 days of shall not be deemed a waiver of the the date of service of the notice of as- right to pursue other available legal or sessment shall be deemed a waiver of administrative remedies. the right to a hearing. (3) Any hearing conducted pursuant § 1312.16 Civil penalty amounts. to this section shall be held in accordance with 5 U.S.C. 554. In any such (a) Maximum amount of penalty. (1) hearing, the amount of civil penalty Where the person being assessed a civil assessed shall be determined in accord- penalty has not committed any pre- ance with this part, and shall not be vious violation of any prohibition in limited by the amount assessed by the § 1312.4 or of any term or condition in- Federal land manager under paragraph cluded in a permit issued pursuant to (f) of this section or any offer of miti- this part, the maximum amount of the gation or remission made by the Fed- penalty shall be the full cost of res- eral land manager. toration and repair of archaeological

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resources damaged plus the archae- (vii) Determination of other miti- ological or commercial value of archae- gating circumstances appropriate to ological resources destroyed or not reconsideration in reaching a fair and ex- covered. peditious assessment. (2) Where the person being assessed a (2) When the penalty is for a viola- civil penalty has committed any pre- tion on Indian lands, the Federal land vious violation of any prohibition in manager shall consult with and con- § 1312.4 or of any term or condition in- sider the interests of the Indian land- cluded in a permit issued pursuant to owner and the Indian tribe having ju- this part, the maximum amount of the risdiction over the Indian lands prior penalty shall be double the cost of res- to proposing to mitigate or remit the toration and repair plus double the ar- penalty. chaeological or commercial value of ar- (3) When the penalty is for a viola- chaeological resources destroyed or not tion which may have had an effect on a recovered. known Indian tribal religious or cultural site on public lands, the Federal (3) Violations limited to the removal land manager should consult with and of arrowheads located on the surface of consider the interests of the affected the ground shall not be subject to the tribe(s) prior to proposing to mitigate penalties prescribed in this section. or remit the penalty. (b) Determination of penalty amount, mitigation, and remission. The Federal [49 FR 1028, Jan. 6, 1984, as amended at 52 FR land manager may assess a penalty 47721, Dec. 16, 1987] amount less than the maximum § 1312.17 Other penalties and rewards. amount of penalty and may offer to mitigate or remit the penalty. (a) Section 6 of the Act contains (1) Determination of the penalty criminal prohibitions and provisions amount and/or a proposal to mitigate for criminal penalties. Section 8(b) of or remit the penalty may be based the Act provides that archaeological upon any of the following factors: resources, vehicles, or equipment involved in a violation may be subject to (i) Agreement by the person being as- forfeiture. sessed a civil penalty to return to the (b) Section 8(a) of the Act provides Federal land manager archaeological for rewards to be made to persons who resources removed from public lands or furnish information which leads to con- Indian lands; viction for a criminal violation or to (ii) Agreement by the person being assessment of a civil penalty. The Fed- assessed a civil penalty to assist the eral land manager may certify to the Federal land manager in activity to Secretary of the Treasury that a per- preserve, restore, or otherwise con- son is eligible to receive payment. Offi- tribute to the protection and study of cers and employees of Federal, State, archaeological resources on public or local government who furnish infor- lands or Indian lands; mation or render service in the per- (iii) Agreement by the person being formance of their official duties, and assessed a civil penalty to provide in- persons who have provided information formation which will assist in the de- under § 1312.16(b)(1)(iii) shall not be cer- tection, prevention, or prosecution of tified eligible to receive payment of re- violations of the Act or this part; wards. (iv) Demonstration of hardship or in- (c) In cases involving Indian lands, ability to pay, provided that this factor all civil penalty monies and any item shall only be considered when the per- forfeited under the provisions of this son being assessed a civil penalty has section shall be transferred to the ap- not been found to have previously vio- propriate Indian or Indian tribe. lated the regulations in this part; (v) Determination that the person § 1312.18 Confidentiality of archae- being assessed a civil penalty did not ological resource information. willfully commit the violation; (a) The Federal land manager shall (vi) Determination that the proposed not make available to the public, under penalty would constitute excessive Subchapter II of Chapter 5 of Title 5 of punishment under the circumstances; the U.S. Code or any other provision of

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law, information concerning the nature quested by the Secretary, will submit and location of any archaeological re- any available information on surveys source, with the following exceptions: and schedules and suspected violations (1) The Federal land manager may in order to enable the Secretary to make information available, provided summarize in the comprehensive report that the disclosure will further the actions taken pursuant to section 14 of purposes of the Act and this part, or the Act. the Act of June 27, 1960, as amended (16 U.S.C. 469–469c), without risking harm [60 FR 5259, 5261, Jan. 26, 1995] to the archaeological resource or to the site in which it is located. § 1312.20 Public awareness programs. (2) The Federal land manager shall (a) Each Federal land manager will make information available, when the establish a program to increase public Governor of any State has submitted awareness of the need to protect impor- to the Federal land manager a written tant archaeological resources located request for information, concerning the on public and Indian lands. Edu- archaeological resources within the re- cational activities required by section questing Governor’s State, provided that the request includes: 10(c) of the Act should be incorporated (i) The specific archaeological re- into other current agency public edu- source or area about which information cation and interpretation programs is sought; where appropriate. (ii) The purpose for which the infor- (b) Each Federal land manager annu- mation is sought; and ally will submit to the Secretary of the (iii) The Governor’s written commit- Interior the relevant information on ment to adequately protect the con- public awareness activities required by fidentiality of the information. section 10(c) of the Act for inclusion in (b) [Reserved] the comprehensive report on activities [49 FR 1028, Jan. 6, 1984; 49 FR 5923, Feb. 16, required by section 13 of the Act. 1984] [60 FR 5259, 5261, Jan. 26, 1995] § 1312.19 Report. § 1312.21 Surveys and schedules. (a) Each Federal land manager, when requested by the Secretary of the Inte- (a) The Secretaries of the Interior, rior, will submit such information as is Agriculture, and Defense and the necessary to enable the Secretary to Chairman of the Board of the Ten- comply with section 13 of the Act and nessee Valley Authority will develop comprehensively report on activities plans for surveying lands under each carried out under provisions of the Act. agency’s control to determine the na- (b) The Secretary of the Interior will ture and extent of archaeological re- include in the annual comprehensive sources pursuant to section 14(a) of the report, submitted to the Committee on Act. Such activities should be con- Interior and Insular Affairs of the sistent with Federal agency planning United States House of Representatives policies and other historic preservation and to the Committee on Energy and program responsibilities required by 16 Natural Resources of the United States U.S.C. 470 et seq. Survey plans prepared Senate under section 13 of the Act, in- under this section will be designed to formation on public awareness pro- comply with the purpose of the Act re- grams submitted by each Federal land garding the protection of archae- manager under § 1312.20(b). Such sub- ological resources. mittal will fulfill the Federal land (b) The Secretaries of the Interior, manager’s responsibility under section Agriculture, and Defense and the 10(c) of the Act to report on public Chairman of the Tennessee Valley Au- awareness programs. (c) The comprehensive report by the thority will prepare schedules for sur- Secretary of the Interior also will in- veying lands under each agency’s con- clude information on the activities car- trol that are likely to contain the most ried out under section 14 of the Act. scientifically valuable archaeological Each Federal land manager, when re- resources pursuant to section 14(b) of

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the Act. Such schedules will be devel- 1313.104–1313.109 [Reserved] oped based on objectives and informa- 1313.110 Self-evaluation. tion identified in survey plans de- 1313.111 Notice. 1313.112–1313.129 [Reserved] scribed in paragraph (a) of this section 1313.130 General prohibitions against dis- and implemented systematically to crimination. cover areas where the most scientif- 1313.131–1313.139 [Reserved] ically valuable archaeological re- 1313.140 Employment. sources are likely to exist. 1313.141–1313.148 [Reserved] (c) Guidance for the activities under- 1313.149 Program accessibility: Discrimina- taken as part of paragraphs (a) through tion prohibited. 1313.150 Program accessibility: Existing fa- (b) of this section is provided by the cilities. Secretary of the Interior’s Standards 1313.151 Program accessibility: New con- and Guidelines for Archeology and His- struction and alterations. toric Preservation. 1313.152–1313.159 [Reserved] (d) Other Federal land managing 1313.160 Communications. agencies are encouraged to develop 1313.161–1313.169 [Reserved] 1313.170 Compliance procedures. plans for surveying lands under their jurisdictions and prepare schedules for AUTHORITY: 29 U.S.C. 794. surveying to improve protection and SOURCE: 51 FR 22889, 22896, June 23, 1986, management of archaeological re- unless otherwise noted. sources. (e) The Secretaries of the Interior, § 1313.101 Purpose. Agriculture, and Defense and the This part effectuates section 119 of Chairman of the Tennessee Valley Au- the Rehabilitation, Comprehensive thority will develop a system for docu- Services, and Developmental Disabil- menting and reporting suspected viola- ities Amendments of 1978, which tions of the various provisions of the amended section 504 of the Rehabilita- Act. This system will reference a set of tion Act of 1973 to prohibit discrimina- procedures for use by officers, employ- tion on the basis of handicap in pro- ees, or agents of Federal agencies to as- grams or activities conducted by Exec- sist them in recognizing violations, utive agencies or the United States documenting relevant evidence, and re- Postal Service. porting assembled information to the appropriate authorities. Methods em- § 1313.102 Application. ployed to document and report such This part applies to all programs or violations should be compatible with activities conducted by the agency. existing agency reporting systems for documenting violations of other appro- § 1313.103 Definitions. priate Federal statutes and regula- For purposes of this part, the term— tions. Summary information to be in- Assistant Attorney General means the cluded in the Secretary’s comprehen- Assistant Attorney General, Civil sive report will be based upon the sys- Rights Division, United States Depart- tem developed by each Federal land ment of Justice. manager for documenting suspected Auxiliary aids means services or de- violations. vices that enable persons with impaired sensory, manual, or speaking [60 FR 5259, 5261, Jan. 26, 1995] skills to have an equal opportunity to participate in, and enjoy the benefits PART 1313—ENFORCEMENT OF of, programs or activities conducted by NONDISCRIMINATION ON THE the agency. For example, auxiliary aids BASIS OF HANDICAP IN PRO- useful for persons with impaired vision GRAMS OR ACTIVITIES CON- include readers, brailled materials, DUCTED BY THE TENNESSEE VAL- audio recordings, telecommunications LEY AUTHORITY devices and other similar services and devices. Auxiliary aids useful for per- Sec. sons with impaired hearing include 1313.101 Purpose. telephone handset amplifiers, tele- 1313.102 Application. phones compatible with hearing aids, 1313.103 Definitions. telecommunication devices for deaf

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persons (TDD’s), interpreters, (3) Has a record of such an impairment notetakers, written materials, and means has a history of, or has been other similar services and devices. misclassified as having, a mental or Complete complaint means a written physical impairment that substantially statement that contains the complain- limits one or more major life activi- ant’s name and address and describes ties. the agency’s alleged discriminatory ac- (4) Is regarded as having an impairment tion in sufficient detail to inform the means— agency of the nature and date of the al- (i) Has a physical or mental impair- leged violation of section 504. It shall ment that does not substantially limit be signed by the complainant or by major life activities but is treated by someone authorized to do so on his or the agency as constituting such a limi- her behalf. Complaints filed on behalf tation; of classes or third parties shall describe (ii) Has a physical or mental impair- or identify (by name, if possible) the ment that substantially limits major alleged victims of discrimination. life activities only as a result of the at- Facility means all or any portion of titudes of others toward such impair- buildings, structures, equipment, ment; or roads, walks, parking lots, rolling (iii) Has none of the impairments de- stock or other conveyances, or other fined in paragraph (1) of this definition real or personal property. but is treated by the agency as having Handicapped person means any person such an impairment. who has a physical or mental impair- Historic preservation programs means ment that substantially limits one or programs conducted by the agency that more major life activities, has a record have preservation of historic properties of such an impairment, or is regarded as a primary purpose. as having such an impairment. Historic properties means those prop- As used in this definition, the phrase: erties that are listed or eligible for (1) Physical or mental impairment in- listing in the National Register of His- cludes— toric Places or properties designated as (i) Any physiological disorder or con- historic under a statute of the appro- dition, cosmetic disfigurement, or ana- priate State or local government body. tomical loss affecting one or more of Qualified handicapped person means— the following body systems: Neuro- (1) With respect to preschool, elemen- logical; musculoskeletal; special sense tary, or secondary education services organs; respiratory, including speech provided by the agency, a handicapped organs; cardiovascular; reproductive; person who is a member of a class of digestive; genitourinary; hemic and persons otherwise entitled by statute, lymphatic; skin; and endocrine; or regulation, or agency policy to receive (ii) Any mental or psychological dis- education services from the agency. order, such as mental retardation, or- (2) With respect to any other agency ganic brain syndrome, emotional or program or activity under which a per- mental illness, and specific learning son is required to perform services or disabilities. The term ‘‘physical or to achieve a level of accomplishment, a mental impairment’’ includes, but is handicapped person who meets the es- not limited to, such diseases and condi- sential eligibility requirements and tions as orthopedic, visual, speech, and who can acheive the purpose of the pro- hearing impairments, cerebral palsy, gram or activity without modifications epilepsy, muscular dystrophy, multiple in the program or activity that the sclerosis, cancer, heart disease, diabe- agency can demonstrate would result tes, mental retardation, emotional ill- in a fundamental alteration in its na- ness, and drug addiction and ture; alocoholism. (3) With respect to any other pro- (2) Major life activities includes func- gram or activity, a handicapped person tions such as caring for one’s self, per- who meets the essential eligibility re- forming manual tasks, walking, seeing, quirements for participation in, or re- hearing, speaking, breathing, learning, ceipt of benefits from, that program or and working. activity; and

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(4) Qualified handicapped person is de- such information available to them in fined for purposes of employment in 29 such manner as the head of the agency CFR 1613.702(f), which is made applica- finds necessary to apprise such persons ble to this part by § 1313.140. of the protections against discrimina- Section 504 means section 504 of the tion assured them by section 504 and Rehabilitation Act of 1973 (Pub. L. 93– this regulation. 112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act §§ 1313.112–1313.129 [Reserved] Amendments of 1974 (Pub. L. 93–516, 88 Stat. 1617), and the Rehabilitation, § 1313.130 General prohibitions against discrimination. Comprehensive Services, and Develop- mental Disabilities Amendments of (a) No qualified handicapped person 1978 (Pub. L. 95–602, 92 Stat. 2955). As shall, on the basis of handicap, be ex- used in this part, section 504 applies cluded from participation in, be denied only to programs or activities con- the benefits of, or otherwise be sub- ducted by Executive agencies and not jected to discrimination under any pro- to federally assisted programs. gram or activity conducted by the Substantial impairment means a sig- agency. nificant loss of the integrity of finished (b)(1) The agency, in providing any materials, design quality, or special aid, benefit, or service, may not, di- character resulting from a permanent rectly or through contractual, licens- alteration. ing, or other arrangements, on the basis of handicap— §§ 1313.104–1313.109 [Reserved] (i) Deny a qualified handicapped person the opportunity to participate in § 1313.110 Self-evaluation. or benefit from the aid, benefit, or (a) The agency shall, by August 24, service; 1987, evaluate its current policies and (ii) Afford a qualified handicapped practices, and the effects thereof, that person an opportunity to participate in do not or may not meet the require- or benefit from the aid, benefit, or ments of this part, and, to the extent service that is not equal to that af- modification of any such policies and forded others; practices is required, the agency shall (iii) Provide a qualified handicapped proceed to make the necessary modi- person with an aid, benefit, or service fications. that is not as effective in affording (b) The agency shall provide an op- equal opportunity to obtain the same portunity to interested persons, includ- result, to gain the same benefit, or to ing handicapped persons or organiza- reach the same level of achievement as tions representing handicapped per- that provided to others; sons, to participate in the self-evalua- (iv) Provide different or separate aid, tion process by submitting comments benefits, or services to handicapped (both oral and written). persons or to any class of handicapped (c) The agency shall, until three persons than is provided to others un- years following the completion of the less such action is necessary to provide self-evaluation, maintain on file and qualified handicapped persons with aid, make available for public inspection: benefits, or services that are as effec- (1) A description of areas examined tive as those provided to others; and any problems identified, and (v) Deny a qualified handicapped per- (2) A description of any modifications son the opportunity to participate as a made. member of planning or advisory boards; or § 1313.111 Notice. (vi) Otherwise limit a qualified The agency shall make available to handicapped person in the enjoyment employees, applicants, participants, of any right, privilege, advantage, or beneficiaries, and other interested per- opportunity enjoyed by others receiv- sons such information regarding the ing the aid, benefit, or service. provisions of this part and its applica- (2) The agency may not deny a quali- bility to the programs or activities fied handicapped person the oppor- conducted by the agency, and make tunity to participate in programs or

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activities that are not separate or dif- (d) The agency shall administer pro- ferent, despite the existence of permis- grams and activities in the most inte- sibly separate or different programs or grated setting appropriate to the needs activities. of qualified handicapped persons. (3) The agency may not, directly or through contractual or other §§ 1313.131–1313.139 [Reserved] arrangments, utilize criteria or meth- § 1313.140 Employment. ods of administration the purpose or effect of which would— No qualified handicapped person (i) Subject qualified handicapped per- shall, on the basis of handicap, be sub- sons to discrimination on the basis of jected to discrimination in employ- handicap; or ment under any program or activity (ii) Defeat or substantially impair ac- conducted by the agency. The defini- complishment of the objectives of a tions, requirements, and procedures of program or activity with respect to section 501 of the Rehabilitation Act of handicapped persons. 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity (4) The agency may not, in deter- Commission in 29 CFR part 1613, shall mining the site or location of a facil- apply to employment in federally con- ity, make selections the purpose or ef- ducted programs or activities. fect of which would— (i) Exclude handicapped persons §§ 1313.141–1313.148 [Reserved] from, deny them the benefits of, or otherwise subject them to discrimination § 1313.149 Program accessibility: Dis- under any program or activity con- crimination prohibited. ducted by the agency; or Except as otherwise provided in (ii) Defeat or substantially impair § 1313.150, no qualified handicapped per- the accomplishment of the objectives son shall, because the agency’s facili- of a program or activity with respect ties are inaccessible to or unusable by to handicapped persons. handicapped persons, be denied the (5) The agency, in the selection of benefits of, be excluded from participa- procurement contractors, may not use tion in, or otherwise be subjected to criteria that subject qualified handi- discrimination under any program or capped persons to discrimination on activity conducted by the agency. the basis of handicap. (6) The agency may not administer a § 1313.150 Program accessibility: Exist- licensing or certification program in a ing facilities. manner that subjects qualified handi- (a) General. The agency shall operate capped persons to discrimination on each program or activity so that the the basis of handicap, nor may the program or activity, when viewed in its agency establish requirements for the entirety, is readily accessible to and programs or activities of licensees or usable by handicapped persons. This certified entities that subject qualified paragraph does not— handicapped persons to discrimination (1) Necessarily require the agency to on the basis of handicap. However, the make each of its existing facilities ac- programs or activities of entities that cessible to and usable by handicapped are licensed or certified by the agency persons; are not, themselves, covered by this (2) In the case of historic preserva- part. tion programs, require the agency to (c) The exclusion of nonhandicapped take any action that would result in a persons from the benefits of a program substantial impairment of significant limited by Federal statute or Execu- historic features of an historic prop- tive order to handicapped persons or erty; or the exclusion of a specific class of (3) Require the agency to take any handicapped persons from a program action that it can demonstrate would limited by Federal statute or Execu- result in a fundamental alteration in tive order to a different class of handi- the nature of a program or activity or capped persons is not prohibited by in undue financial and administrative this part. burdens. In those circumstances where

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agency personnel believe that the pro- programs, the agency shall give pri- posed action would fundamentally ority to methods that provide physical alter the program or activity or would access to handicapped persons. In cases result in undue financial and adminis- where a physical alteration to an his- trative burdens, the agency has the toric property is not required because burden of proving that compliance with of § 1313.150(a)(2) or (a)(3), alternative § 1313.150(a) would result in such alter- methods of achieving program accessi- ation or burdens. The decision that bility include— compliance would result in such alter- (i) Using audio-visual materials and ation or burdens must be made by the devices to depict those portions of an agency head or his or her designee historic property that cannot other- after considering all agency resources wise be made accessible; available for use in the funding and op- (ii) Assigning persons to guide handi- eration of the conducted program or capped persons into or through por- activity, and must be accompanied by tions of historic properties that cannot a written statement of the reasons for otherwise be made accessible; or reaching that conclusion. If an action (iii) Adopting other innovative meth- would result in such an alteration or ods. such burdens, the agency shall take (c) Time period for compliance. The any other action that would not result agency shall comply with the obliga- in such an alteration or such burdens tions established under this section by but would nevertheless ensure that October 21, 1986, except that where handicapped persons receive the bene- structural changes in facilities are un- fits and services of the program or ac- dertaken, such changes shall be made tivity. by August 22, 1989, but in any event as (b) Methods—1) General. The agency expeditiously as possible. may comply with the requirements of (d) Transition plan. In the event that this section through such means as re- structural changes to facilities will be design of equipment, reassignment of undertaken to achieve program acces- the services to accessible buildings, as- sibility, the agency shall develop, by signment of aides to beneficiaries, February 23, 1987, a transition plan set- home visits, delivery of services at al- ting forth the steps necessary to com- ternate accessible sites, alteration of plete such changes. The agency shall existing facilities and construction of provide an opportunity to interested new facilities, use of accessible rolling persons, including handicapped persons stock, or any other methods that re- or organizations representing handi- sult in making its programs or activi- capped persons, to participate in the ties readily accessible to and usable by development of the transition plan by handicapped persons. The agency is not submitting comments (both oral and required to make structural changes in written). A copy of the transition plan existing facilities where other methods shall be made available for public in- are effective in achieving compliance spection. The plan shall, at a min- with this section. The agency, in mak- imum— ing alterations to existing buildings, (1) Identify physical obstacles in the shall meet accessibility requirements agency’s facilities that limit the acces- to the extent compelled by the Archi- sibility of its programs or activities to tectural Barriers Act of 1968, as amend- handicapped persons; ed (42 U.S.C. 4151–4157), and any regula- (2) Describe in detail the methods tions implementing it. In choosing that will be used to make the facilities among available methods for meeting accessible; the requirements of this section, the (3) Specify the schedule for taking agency shall give priority to those the steps necessary to achieve compli- methods that offer programs and ac- ance with this section and, if the time tivities to qualified handicapped per- period of the transition plan is longer sons in the most integrated setting ap- than one year, identify steps that will propriate. be taken during each year of the tran- (2) Historic preservation programs. In sition period; and meeting the requirements of (4) Indicate the official responsible § 1313.150(a) in historic preservation for implementation of the plan.

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§ 1313.151 Program accessibility: New mental alteration in the nature of a construction and alterations. program or activity or in undue finan- Each building or part of a building cial and adminstrative burdens. In that is constructed or altered by, on those circumstances where agency per- behalf of, or for the use of the agency sonnel believe that the proposed action shall be designed, constructed, or al- would fundamentally alter the program tered so as to be readily accessible to or activity or would result in undue fi- and usable by handicapped persons. nancial and administrative burdens, The definitions, requirements, and the agency has the burden of proving standards of the Architectural Barriers that compliance with § 1313.160 would Act (42 U.S.C. 4151–4157), as established result in such alteration or burdens. in 41 CFR 101–19.600 to 101–19.607, apply The decision that compliance would re- to buildings covered by this section. sult in such alteration or burdens must be made by the agency head or his or §§ 1313.152–1313.159 [Reserved] her designee after considering all agency resources available for use in the § 1313.160 Communications. funding and operation of the conducted (a) The agency shall take appropriate program or activity, and must be ac- steps to ensure effective communica- companied by a written statement of tion with applicants, participants, per- the reasons for reaching that conclu- sonnel of other Federal entities, and sion. If an action required to comply members of the public. with this section would result in such (1) The agency shall furnish appro- an alteration or such burdens, the priate auxiliary aids where necessary agency shall take any other action to afford a handicapped person an equal that would not result in such an alter- opportunity to participate in, and ation or such burdens but would never- enjoy the benefits of, a program or ac- theless ensure that, to the maximum tivity conducted by the agency. extent possible, handicapped persons (i) In determining what type of auxil- receive the benefits and services of the iary aid is necessary, the agency shall program or activity. give primary consideration to the requests of the handicapped person. §§ 1313.161–1313.169 [Reserved] (ii) The agency need not provide individually prescribed devices, readers for § 1313.170 Compliance procedures. personal use or study, or other devices (a) Except as provided in paragraph of a personal nature. (b) of this section, this section applies (2) Where the agency communicates to all allegations of discrimination on with applicants and beneficiaries by the basis of handicap in programs or telephone, telecommunication devices activities conducted by the agency. for deaf person (TDD’s) or equally ef- (b) The agency shall process com- fective telecommunication systems plaints alleging violations of section shall be used. 504 with respect to employment accord- (b) The agency shall ensure that in- ing to the procedures established by terested persons, including persons the Equal Employment Opportunity with impaired vision or hearing, can Commission in 29 CFR part 1613 pursu- obtain information as to the existence ant to section 501 of the Rehabilitation and location of accessible services, ac- Act of 1973 (29 U.S.C. 791). tivities, and facilities. (c) The Supervisor, Contracting and (c) The agency shall provide signage Community Assistance, shall be re- at a primary entrance to each of its in- sponsible for coordinating implementa- accessible facilities, directing users to tion of this section. Complaints may be a location at which they can obtain in- sent to Supervisor, Contracting and formation about accessible facilities. Community Assistance, Tennessee Val- The international symbol for accessi- ley Authority, E5 B30, 400 West Sum- bility shall be used at each primary en- mit Hill Drive, Knoxville, Tennessee trance of an accessible facility. 37902. (d) This section does not require the (d) The agency shall accept and in- agency to take any action that it can vestigate all complete complaints for demonstrate would result in a funda- which it has jurisdiction. All complete

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complaints must be filed within 180 the final determination may not be days of the alleged act of discrimina- delegated to another agency. tion. The agency may extend this time [51 FR 22889, 22896, June 23, 1986, as amended period for good cause. at 51 FR 22890, June 23, 1986] (e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the com- PART 1314—BOOK-ENTRY PROCE- plainant and shall make reasonable ef- DURES FOR TVA POWER SECURI- forts to refer the complaint to the ap- TIES ISSUED THROUGH THE FED- propriate government entity. ERAL RESERVE BANKS (f) The agency shall notify the Archi- tectural and Transportation Barriers Sec. Compliance Board upon receipt of any 1314.1 Applicability and effect. complaint alleging that a building or 1314.2 Definition of terms. facility that is subject to the Architec- 1314.3 Authority of Reserve Banks. tural Barriers Act of 1968, as amended 1314.4 Law governing the rights and obligations of TVA and Reserve Banks; law (42 U.S.C. 4151–4157), or section 502 of governing the rights of any Person the Rehabilitation Act of 1973, as against TVA and Reserve Banks; law amended (29 U.S.C. 792), is not readily governing other interests. accessible to and usable by handi- 1314.5 Creation of Participant’s Security capped persons. Entitlement; security interests. (g) Within 180 days of the receipt of a 1314.6 Obligations of TVA. complete complaint for which it has ju- 1314.7 Liability of TVA and Reserve Banks. risdiction, the agency shall notify the 1314.8 Identification of accounts. complainant of the results of the inves- 1314.9 Waiver of regulations. tigation in a letter containing— 1314.10 Additional provisions. (1) Findings of fact and conclusions AUTHORITY: 16 U.S.C. 831–831dd. of law; SOURCE: 62 FR 920, Jan. 7, 1997, unless oth- (2) A description of a remedy for each erwise noted. violation found; and (3) A notice of the right to appeal. § 1314.1 Applicability and effect. (h) Appeals of the findings of fact and (a) Applicability. The regulations in conclusions of law or remedies must be this part govern the issuance of, and filed by the complainant within 90 days transactions in, all TVA Power Securi- of receipt from the agency of the letter ties issued by TVA in book-entry form required by § 1313.170(g). The agency through the Reserve Banks. may extend this time for good cause. (b) Effect. The TVA Power Securities (i) Timely appeals shall be accepted to which the regulations in this part and processed by the head of the agen- apply are obligations which, by the cy. terms of their issue, are available ex- (j) The head of the agency shall no- clusively in book-entry form through tify the complainant of the results of the Reserve Banks’ Book-entry Sys- the appeal within 60 days of the receipt tem. of the request. If the head of the agency determines that additional informa- § 1314.2 Definition of terms. tion is needed from the complainant, Unless the context requires other- he or she shall have 60 days from the wise, terms used in this part 1314 that date of receipt of the additional infor- are not defined in this section have the mation to make his or her determina- meanings as set forth in 31 CFR 357.2. tion on the appeal. Definitions and terms used in 31 CFR (k) The time limits cited in para- part 357 should be read as though modi- graphs (g) and (j) of this section may be fied to effectuate their application to extended with the permission of the Book-entry TVA Power Securities Assistant Attorney General. where applicable. (l) The agency may delegate its au- (a) Book-entry System means the auto- thority for conducting complaint in- mated book-entry system operated by vestigations to other Federal agencies, the Reserve Banks acting as the fiscal except that the authority for making agent for TVA on which Book-entry

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TVA Power Securities are issued, re- rities accounts and transfers book- corded, transferred, and maintained in entry securities. book-entry form. (m) Securities Documentation means (b) Book-entry TVA Power Security the applicable documents establishing means any TVA Power Security issued the terms of a Book-entry TVA Power or maintained in the Book-entry Sys- Security. tem of the Reserve Banks. (n) Securities Intermediary means: (c) CUSIP Number is a unique identi- (1) A Person that is registered as a fication for each security issue estab- ‘‘clearing agency’’ under the Federal lished by the Committee on Uniform securities law; a Reserve Bank; any Security Identification Procedures. other Person that provides clearance or (d) Depository Institution means any settlement services with respect to a Participant. Book-entry TVA Power Security that (e) Entitlement Holder means a Person would require it to register as a clear- to whose account an interest in a ing agency under the Federal securities Book- entry TVA Power Security is laws but for an exclusion or exemption credited on the records of a Securities from the registration requirement, if Intermediary. its activities as a clearing corporation, (f) Funds Account means a reserve including promulgation of rules, are and/or clearing account at a Reserve subject to regulation by a Federal or Bank to which debits or credits are State governmental authority; or posted for transfers against payment, (2) A Person (other than an indi- book-entry securities transaction fees, vidual, unless such individual is reg- or principal and interest payments. istered as a broker or dealer under the (g) Other TVA Power Evidences of In- Federal securities laws), including a debtedness means any TVA Power Secu- bank or broker, that in the ordinary rity issued consistent with section 2.5 course of business maintains securities of the TVA Basic Bond Resolution (see accounts for others and is acting in paragraph (r) of this section). that capacity. (h) Participant (also called ‘‘holder’’ (o) Security Entitlement means the in the TVA Basic Bond Resolution and rights and property interests of an En- in other resolutions adopted by the titlement Holder with respect to a TVA Board of Directors relating to Book-entry TVA Power Security. Book-entry TVA Power Securities) (p) State means any State of the means a Person that maintains a Par- United States, the District of Colum- ticipant’s Security Account with a Re- bia, Puerto Rico, the Virgin Islands, or serve Bank. any other territory or possession of the (i) Participant’s Security Account United States. means an account in the name of a (q) TVA means the Tennessee Valley Participant at a Reserve Bank to Authority, a wholly owned corporate which Book-entry TVA Power Securi- agency and instrumentality of the ties held for a Participant are or may United States of America created and be credited. existing under the Tennessee Valley (j) Person means and includes an indi- Authority Act of 1933, as amended (16 vidual, corporation, company, govern- U.S.C. 831–831dd). mental entity, association, firm, part- (r) TVA Basic Bond Resolution means nership, trust, estate, representative, the Basic Tennessee Valley Authority and any other similar organization, but Power Bond Resolution 1 adopted by does not mean or include the United the TVA Board of Directors on October States or a Reserve Bank. 6, 1960, as heretofore and hereafter (k) Reserve Banks means the Federal amended. Reserve Banks of the Federal Reserve (s) TVA Power Bond means any TVA System and their branches. Power Security issued by TVA under (l) Reserve Bank Operating Circular means the publication issued by each 1 A copy of the TVA Basic Bond Resolution Reserve Bank that sets forth the terms may be obtained upon request directed to and conditions under which the Re- TVA, 400 West Summit Hill Drive, Knoxville, serve Bank maintains book-entry secu- Tennessee 37902–1499, Attn.: Treasurer.

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section 2.2 of the TVA Basic Bond Res- § 1314.4 Law governing the rights and olution and the supplemental resolu- obligations of TVA and Reserve tion adopted by the TVA Board of Di- Banks; law governing the rights of rectors authorizing the issuance there- any Person against TVA and Re- of. serve Banks; law governing other (t) TVA Power Bond Anticipation Obli- interests. gation means any TVA Power Security (a) Except as provided in paragraph issued consistent with section 2.4 of the (b) of this section, the following rights TVA Basic Bond Resolution. and obligations are governed solely by (u) TVA Power Note means any Other the book-entry regulations contained TVA Power Evidences of Indebtedness in this part 1314, the Securities Docu- in the form of a note having a maturity mentation (but not including any at the date of issue of less than one choice of law provisions in such docu- year. mentation), and Reserve Bank Oper- (v) TVA Power Security means a TVA ating Circulars: Power Bond, TVA Power Bond Antici- pation Obligation, TVA Power Note, or (1) The rights and obligations of TVA Other TVA Power Evidence of Indebt- and Reserve Banks with respect to: edness issued by TVA under Section (i) A Book-entry TVA Power Secu- 15d of the TVA Act, as amended. rity or Security Entitlement; and (ii) The operation of the Book-entry [62 FR 920, Jan. 7, 1997; 62 FR 4833, Jan. 31, System as it applies to TVA Power Se- 1997, as amended at 62 FR 29288, May 30, 1997] curities; and § 1314.3 Authority of Reserve Banks. (2) The rights of any Person, including a Participant, against TVA and Re- (a) Each Reserve Bank is hereby authorized as fiscal agent of TVA to per- serve Banks with respect to: form the following functions with re- (i) A Book-entry TVA Power Secu- spect to the issuance of Book-entry rity or Security Entitlement; and TVA Power Securities offered and sold (ii) The operation of the Book-entry by TVA to which this part 1314 applies, System as it applies to TVA Power Se- in accordance with the Securities Doc- curities. umentation, Reserve Bank Operating (b) A security interest in a Security Circulars, this part 1314, and proce- Entitlement that is in favor of a Re- dures established by the Secretary of serve Bank from a Participant and that the United States Treasury consistent is not recorded on the books of a Re- with these authorities: serve Bank pursuant to § 1314.5(c) is (1) To service and maintain Book- governed by the law (not including the entry TVA Power Securities in ac- conflict-of-law rules) of the jurisdic- counts established for such purposes; tion where the head office of the Re- (2) To make payments with respect serve Bank maintaining the Partici- to such securities, as directed by TVA; pant’s Security Account is located. A (3) To effect transfer of Book-entry security interest in a Security Entitle- TVA Power Securities between Partici- ment that is in favor of a Reserve Bank pants’ Security Accounts as directed from a Person that is not a Partici- by the Participants; pant, and that is not recorded on the (4) To perform such other duties as books of a Reserve Bank pursuant to fiscal agent as may be requested by TVA. § 1314.5(c), is governed by the law deter- (b) Each Reserve Bank may issue Re- mined in the manner specified in para- serve Bank Operating Circulars not in- graph (d) of this section. consistent with this part 1314, gov- (c) If the jurisdiction specified in the erning the details of its handling of first sentence of paragraph (b) of this Book-entry TVA Power Securities, Se- section is a State that has not adopted curity Entitlements, and the operation Revised Article 8, then the law speci- of the Book-entry System under this fied in paragraph (b) of this section part 1314. shall be the law of that State as though Revised Article 8 had been [62 FR 920, Jan. 7, 1997, as amended at 62 FR 29288, May 30, 1997] adopted by that State.

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(d) To the extent not otherwise in- of the Participant is recorded. To the consistent with this part 1314, and not- extent required by such law or regula- withstanding any provision in the Se- tion or set forth in an agreement with curities Documentation setting forth a a Reserve Bank or in a Reserve Bank choice of law, the provisions set forth Operating Circular, a security interest in 31 CFR 357.11 regarding law gov- in a Security Entitlement that is in erning other interests apply and should favor of a Reserve Bank or a Person be read as though modified to effec- may be created and perfected by a Re- tuate the application of 31 CFR 357.11 serve Bank marking its books to record to Book-entry TVA Power Securities. the security interest. Subject to para- [62 FR 920, Jan. 7, 1997; 62 FR 8619, Feb. 26, graph (b) of this section with respect to 1997, as amended at 62 FR 29288, May 30, 1997] a security interest in favor of the United States, a security interest in a § 1314.5 Creation of Participant’s Secu- Security Entitlement marked on the rity Entitlement; security interests. books of a Reserve Bank shall have pri- (a) A Participant’s Security Entitle- ority over any other interest in the se- ment is created when a Reserve Bank curities. indicates by book-entry that a Book- (d) In addition to the method pro- entry TVA Power Security has been vided in paragraph (c) of this section, a credited to a Participant’s Security security interest, including a security Account. interest in favor of a Reserve Bank, (b) A security interest in a Security may be perfected by any method by Entitlement of a Participant in favor of the United States to secure deposits which a security interest may be per- of public money, including without fected under applicable law as de- limitation deposits to the Treasury tax scribed in § 1314.4(b) or (d). The perfec- and loan accounts, or other security in- tion, effect of perfection or non-perfec- terest in favor of the United States tion, and priority of a security interest that is required by Federal statute, are governed by such applicable law. A regulation or agreement, and that is security interest in favor of a Reserve marked on the books of a Reserve Bank shall be treated as a security in- Bank, is thereby effected and per- terest in favor of a clearing corpora- fected, and has priority over any other tion in all respects under such law, in- interest in the securities. Where a se- cluding with respect to the effect of curity interest in favor of the United perfection and priority of such security States in a Security Entitlement of a interest. A Reserve Bank Operating Participant is marked on the books of Circular shall be treated as a rule a Reserve Bank, such Reserve Bank adopted by a clearing corporation for may rely, and is protected in relying, such purposes. exclusively on the order of an author- [62 FR 920, Jan. 7, 1997; 62 FR 4833, Jan. 31, ized representative of the United 1997; 62 FR 8619, Feb. 26, 1997] States directing the transfer of the security. For purposes of this paragraph, § 1314.6 Obligations of TVA. an ‘‘authorized representative of the United States’’ is the official des- (a) Except in the case of a security ignated in the applicable regulations or interest in favor of the United States agreement to which a Reserve Bank is or a Reserve Bank or otherwise as pro- a party governing the security inter- vided in § 1314.5(c), for the purposes of est. this part 1314, TVA and Reserve Banks (c) TVA and Reserve Banks have no shall treat the Participant to whose se- obligation to agree to act on behalf of curities account an interest in a Book- any Person or to recognize the interest entry TVA Power Security has been of any transferee of a security interest credited as the Person exclusively enti- or other limited interest in favor of tled to issue a transfer message, to re- any Person except to the extent of any ceive interest and other payments with specific requirement of Federal law or respect thereof, and otherwise to exer- regulation or to the extent set forth in cise all the rights and powers with re- any specific agreement with the Re- spect to such security, notwith- serve Bank on whose books the interest standing any information or notice to

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the contrary. Neither TVA nor the Re- arily permitted by the entity (e.g., De- serve Banks are liable to a Person as- pository Institution, Securities Inter- serting or having an adverse claim to a mediary, etc.) maintaining them, ex- Security Entitlement or to a Book- cept that each account established by entry TVA Power Security in a Par- such entity (other than a Reserve ticipant’s Security Account, including Bank) should include data to permit any such claim arising as a result of both customer identification by name, the transfer or disposition of a Book- address, and taxpayer identifying num- entry TVA Power Security by a Re- ber, as well as a determination of the serve Bank pursuant to a transfer mes- Book-entry TVA Power Securities sage that the Reserve Bank reasonably being held in such account by amount, believes to be genuine. maturity, date, and CUSIP Number, (b) The obligation of TVA to make and of transactions relating thereto. payments with respect to Book-entry TVA Power Securities is discharged at [62 FR 920, Jan. 7, 1997; 62 FR 8620, Feb. 26, the time payment in the appropriate 1997] amount is made as follows: (1) Interest or other payments on § 1314.9 Waiver of regulations. Book-entry TVA Power Securities are TVA reserves the right in TVA’s dis- either credited by a Reserve Bank to a cretion to waive any provision of the Funds Account maintained at such regulations in this part in any case or bank or otherwise paid as directed by class of cases for the convenience of the Participant. TVA or in order to relieve any Person (2) Book-entry TVA Power Securities of unnecessary hardship, if such action are redeemed in accordance with their is not inconsistent with law and does terms by a Reserve Bank withdrawing not adversely affect any substantial ex- the securities from the Participant’s isting rights, and TVA is satisfied that Security Account in which they are maintained and by either crediting the such action will not subject TVA to amount of the redemption proceeds, in- any substantial expense or liability. cluding both principal and interest, where applicable, to a Funds Account § 1314.10 Additional provisions. at such bank or otherwise paying such (a) Additional requirements. In any principal and interest as directed by case or any class of cases arising under the Participant. No action by the Par- the regulations in this part, TVA may ticipant ordinarily is required in con- require such additional evidence and a nection with the redemption of a Book- bond of indemnity, with or without entry TVA Power Security. surety, as may in the judgment of TVA [62 FR 920, Jan. 7, 1997; 62 FR 8619, 8620, Feb. be necessary for the protection of the 26, 1997] interests of TVA. (b) Notice of attachment for TVA Power § 1314.7 Liability of TVA and Reserve Securities in Book-entry System. The in- Banks. terest of a debtor in a Security Entitle- TVA and the Reserve Banks may rely ment may be reached by a creditor on the information provided in a trans- only by legal process upon the Securi- fer message and are not required to ties Intermediary with whom the debt- verify the information. TVA and the or’s securities account is maintained, Reserve Banks shall not be liable for except where a Security Entitlement is any action taken in accordance with maintained in the name of a secured the information set out in a transfer party, in which case the debtor’s inter- message or evidence submitted in sup- est may be reached by legal process port thereof. upon the secured party. The regula- [62 FR 920, Jan. 7, 1997; 62 FR 4833, Jan. 31, tions in this part do not purport to es- 1997] tablish whether a Reserve Bank is required to honor an order or other no- § 1314.8 Identification of accounts. tice of attachment in any particular Book-entry accounts may be estab- case or class of cases. lished in such form or forms as custom-

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PART 1315—NEW RESTRICTIONS ON the entering into of any cooperative LOBBYING agreement, and the extension, continuation, renewal, amendment, or modi- Subpart A—General fication of any Federal contract, grant, loan, or cooperative agreement. Sec. (b) Each person who requests or re- 1315.100 Conditions on use of funds. ceives from an agency a Federal con- 1315.105 Definitions. tract, grant, loan, or cooperative 1315.110 Certification and disclosure. agreement shall file with that agency a Subpart B—Activities by Own Employees certification, set forth in appendix A, that the person has not made, and will 1315.200 Agency and legislative liaison. not make, any payment prohibited by 1315.205 Professional and technical services. paragraph (a) of this section. 1315.210 Reporting. (c) Each person who requests or re- Subpart C—Activities by Other Than Own ceives from an agency a Federal con- Employees tract, grant, loan, or a cooperative agreement shall file with that agency a 1315.300 Professional and technical services. disclosure form, set forth in appendix B, if such person has made or has Subpart D—Penalties and Enforcement agreed to make any payment using 1315.400 Penalties. nonappropriated funds (to include prof- 1315.405 Penalty procedures. its from any covered Federal action), 1315.410 Enforcement. which would be prohibited under paragraph (a) of this section if paid for with Subpart E—Exemptions appropriated funds. 1315.500 Secretary of Defense. (d) Each person who requests or receives from an agency a commitment Subpart F—Agency Reports providing for the United States to insure or guarantee a loan shall file with 1315.600 Semi-annual compilation. that agency a statement, set forth in 1315.605 Inspector General report. appendix A, whether that person has APPENDIX A TO PART 1315—CERTIFICATION RE- made or has agreed to make any pay- GARDING LOBBYING ment to influence or attempt to influ- APPENDIX B TO PART 1315—DISCLOSURE FORM TO REPORT LOBBYING ence an officer or employee of any agency, a Member of Congress, an offi- AUTHORITY: 16 U.S.C. 831–831ee; 31 U.S.C. cer or employee of Congress, or an em- 1352. ployee of a Member of Congress in con- SOURCE: 55 FR 6737 and 6748, Feb. 26, 1990, nection with that loan insurance or unless otherwise noted. guarantee. CROSS REFERENCE: See also Office of Man- (e) Each person who requests or re- agement and Budget notice published at 54 ceives from an agency a commitment FR 52306, December 20, 1989. providing for the United States to insure or guarantee a loan shall file with Subpart A—General that agency a disclosure form, set forth in appendix B, if that person has made § 1315.100 Conditions on use of funds. or has agreed to make any payment to (a) No appropriated funds may be ex- influence or attempt to influence an of- pended by the recipient of a Federal ficer or employee of any agency, a contract, grant, loan, or cooperative Member of Congress, an officer or em- ageement to pay any person for influ- ployee of Congress, or an employee of a encing or attempting to influence an Member of Congress in connection with officer or employee of any agency, a that loan insurance or guarantee. Member of Congress, an officer or employee of Congress, or an employee of a § 1315.105 Definitions. Member of Congress in connection with For purposes of this part: any of the following covered Federal (a) Agency, as defined in 5 U.S.C. actions: the awarding of any Federal 552(f), includes Federal executive de- contract, the making of any Federal partments and agencies as well as inde- grant, the making of any Federal loan, pendent regulatory commissions and

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Government corporations, as defined in an officer or employee of Congress, or 31 U.S.C. 9101(1). an employee of a Member of Congress (b) Covered Federal action means any in connection with any covered Federal of the following Federal actions: action. (1) The awarding of any Federal con- (i) Loan guarantee and loan insurance tract; means an agency’s guarantee or insur- (2) The making of any Federal grant; ance of a loan made by a person. (3) The making of any Federal loan; (j) Local government means a unit of (4) The entering into of any coopera- government in a State and, if char- tive agreement; and, tered, established, or otherwise recog- (5) The extension, continuation, re- nized by a State for the performance of newal, amendment, or modification of a governmental duty, including a local any Federal contract, grant, loan, or public authority, a special district, an cooperative agreement. intrastate district, a council of govern- Covered Federal action does not in- ments, a sponsor group representative clude receiving from an agency a com- organization, and any other instrumen- mitment providing for the United tality of a local government. States to insure or guarantee a loan. (k) Officer or employee of an agency in- Loan guarantees and loan insurance cludes the following individuals who are addressed independently within are employed by an agency: this part. (1) An individual who is appointed to (c) Federal contract means an acquisi- a position in the Government under tion contract awarded by an agency, title 5, U.S. Code, including a position including those subject to the Federal under a temporary appointment; Acquisition Regulation (FAR), and any (2) A member of the uniformed serv- other acquisition contract for real or ices as defined in section 101(3), title 37, personal property or services not sub- U.S. Code; ject to the FAR. (d) Federal cooperative agreement (3) A special Government employee means a cooperative agreement en- as defined in section 202, title 18, U.S. tered into by an agency. Code; and, (e) Federal grant means an award of (4) An individual who is a member of financial assistance in the form of a Federal advisory committee, as de- money, or property in lieu of money, fined by the Federal Advisory Com- by the Federal Government or a direct mittee Act, title 5, U.S. Code appendix appropriation made by law to any per- 2. son. The term does not include tech- (l) Person means an individual, cor- nical assistance which provides serv- poration, company, association, au- ices instead of money, or other assist- thority, firm, partnership, society, ance in the form of revenue sharing, State, and local government, regard- loans, loan guarantees, loan insurance, less of whether such entity is operated interest subsidies, insurance, or direct for profit or not for profit. This term United States cash assistance to an in- excludes an Indian tribe, tribal organi- dividual. zation, or any other Indian organiza- (f) Federal loan means a loan made by tion with respect to expenditures spe- an agency. The term does not include cifically permitted by other Federal loan guarantee or loan insurance. law. (g) Indian tribe and tribal organization (m) Reasonable compensation means, have the meaning provided in section 4 with respect to a regularly employed of the Indian Self-Determination and officer or employee of any person, com- Education Assistance Act (25 U.S.C. pensation that is consistent with the 450B). Alaskan Natives are included normal compensation for such officer under the definitions of Indian tribes in or employee for work that is not fur- that Act. nished to, not funded by, or not fur- (h) Influencing or attempting to influ- nished in cooperation with the Federal ence means making, with the intent to Government. influence, any communication to or ap- (n) Reasonable payment means, with pearance before an officer or employee respect to perfessional and other tech- or any agency, a Member of Congress, nical services, a payment in an amount

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that is consistent with the amount nor- (b) Each person shall file a certifi- mally paid for such services in the pri- cation, and a disclosure form, if re- vate sector. quired, upon receipt by such person of: (o) Recipient includes all contractors, (1) A Federal contract, grant, or co- subcontractors at any tier, and sub- operative agreement exceeding $100,000; grantees at any tier of the recipient of or funds received in connection with a (2) A Federal loan or a commitment Federal contract, grant, loan, or coop- providing for the United States to in- erative agreement. The term excludes sure or guarantee a loan exceeding an Indian tribe, tribal organization, or $150,000, any other Indian organization with re- Unless such person previously filed a spect to expenditures specifically per- certification, and a disclosure form, if mitted by other Federal law. required, under paragraph (a) of this (p) Regularly employed means, with section. respect to an officer or employee of a (c) Each person shall file a disclosure person requesting or receiving a Fed- form at the end of each calendar quar- eral contract, grant, loan, or coopera- ter in which there occurs any event tive agreement or a commitment pro- that requires disclosure or that materi- viding for the United States to insure ally affects the accuracy of the infor- or guarantee a loan, an officer or em- mation contained in any disclosure ployee who is employed by such person form previously filed by such person for at least 130 working days within under paragraphs (a) or (b) of this sec- one year immediately preceding the tion. An event that materially affects date of the submission that initiates the accuracy of the information re- agency consideration of such person for ported includes: receipt of such contract, grant, loan, (1) A cumulative increase of $25,000 or cooperative agreement, loan insurance more in the amount paid or expected to commitment, or loan guarantee com- be paid for influencing or attempting mitment. An officer or employee who is to influence a covered Federal action; employed by such person for less than or 130 working days within one year im- (2) A change in the person(s) or indi- mediately preceding the date of the vidual(s) influencing or attempting to submission that initiates agency con- influence a covered Federal action; or, sideration of such person shall be considered to be regularly employed as (3) A change in the officer(s), em- soon as he or she is employed by such ployee(s), or Member(s) contacted to person for 130 working days. influence or attempt to influence a (q) State means a State of the United covered Federal action. States, the District of Columbia, the (d) Any person who requests or re- Commonwealth of Puerto Rico, a terri- ceives from a person referred to in tory or possession of the United States, paragraphs (a) or (b) of this section: an agency or instrumentality of a (1) A subcontract exceeding $100,000 State, and a multi-State, regional, or at any tier under a Federal contract; interstate entity having governmental (2) A subgrant, contract, or sub- duties and powers. contract exceeding $100,000 at any tier under a Federal grant; § 1315.110 Certification and disclosure. (3) A contract or subcontract exceed- (a) Each person shall file a certifi- ing $100,000 at any tier under a Federal cation, and a disclosure form, if re- loan exceeding $150,000; or, quired, with each submission that ini- (4) A contract or subcontract exceed- tiates agency consideration of such ing $100,000 at any tier under a Federal person for: cooperative agreement, (1) Award of a Federal contract, Shall file a certification, and a disclo- grant, or cooperative agreement ex- sure form, if required, to the next tier ceeding $100,000; or above. (2) An award of a Federal loan or a (e) All disclosure forms, but not cer- commitment providing for the United tifications, shall be forwarded from States to insure or guarantee a loan tier to tier until received by the person exceeding $150,000. referred to in paragraphs (a) or (b) of

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this section. That person shall forward (c) For purposes of paragraph (a) of all disclosure forms to the agency. this section, the following agency and (f) Any certification or disclosure legislative liaison activities are allow- form filed under paragraph (e) of this able at any time only where they are section shall be treated as a material not related to a specific solicitation for representation of fact upon which all any covered Federal action: receiving tiers shall rely. All liability (1) Discussing with an agency (in- arising from an erroneous representa- cluding individual demonstrations) the tion shall be borne solely by the tier qualities and characteristics of the per- filing that representation and shall not son’s products or services, conditions be shared by any tier to which the er- or terms of sale, and service capabili- roneous representation is forwarded. ties; and, Submitting an erroneous certification (2) Technical discussions and other or disclosure constitutes a failure to activities regarding the application or file the required certification or disclo- adaptation of the person’s products or sure, respectively. If a person fails to services for an agency’s use. file a required certification or disclo- (d) For purposes of paragraph (a) of sure, the United States may pursue all this section, the following agencies and available remedies, including those au- legislative liaison activities are allow- thorized by section 1352, title 31, U.S. able only where they are prior to for- Code. mal solicitation of any covered Federal (g) For awards and commitments in action: process prior to December 23, 1989, but (1) Providing any information not not made before that date, certifi- specifically requested but necessary for cations shall be required at award or an agency to make an informed deci- commitment, covering activities oc- sion about initiation of a covered Fed- curring between December 23, 1989, and eral action; the date of award or commitment. (2) Technical discussions regarding However, for awards and commitments the preparation of an unsolicited pro- in process prior to the December 23, posal prior to its official submission; 1989 effective date of these provisions, and, but not made before December 23, 1989, (3) Capability presentations by per- disclosure forms shall not be required sons seeking awards from an agency at time of award or commitment but pursuant to the provisions of the Small shall be filed within 30 days. Business Act, as amended by Public (h) No reporting is required for an ac- Law 95–507 and other subsequent tivity paid for with appropriated funds amendments. if that activity is allowable under ei- (e) Only those activities expressly au- ther subpart B or C. thorized by this section are allowable under this section. Subpart B—Activities by Own Employees § 1315.205 Professional and technical services. § 1315.200 Agency and legislative liai- (a) The prohibition on the use of ap- son. propriated funds, in § 1315.100 (a), does (a) The prohibition on the use of ap- not apply in the case of a payment of propriated funds, in § 1315.100 (a), does reasonable compensation made to an not apply in the case of a payment of officer or employee of a person request- reasonable compensation made to an ing or receiving a Federal contract, officer or employee of a person request- grant, loan, or cooperative agreement ing or receiving a Federal contract, or an extension, continuation, renewal, grant, loan, or cooperative agreement amendment, or modification of a Fed- if the payment is for agency and legis- eral contract, grant, loan, or coopera- lative liaison activities not directly re- tive agreement if payment is for pro- lated to a covered Federal action. fessional or technical services rendered (b) For purposes of paragraph (a) of directly in the preparation, submis- this section, providing any information sion, or negotiation of any bid, pro- specifically requested by an agency or posal, or application for that Federal Congress is allowable at any time. contract, grant, loan, or cooperative

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agreement or for meeting requirements (d) Only those services expressly au- imposed by or pursuant to law as a thorized by this section are allowable condition for receiving that Federal under this section. contract, grant, loan, or cooperative agreement. § 1315.210 Reporting. (b) For purposes of paragraph (a) of No reporting is required with respect this section, ‘‘professional and tech- to payments of reasonable compensa- nical services’’ shall be limited to ad- tion made to regularly employed offi- vice and analysis directly applying any cers or employees of a person. professional or technical discipline. For example, drafting of a legal docu- Subpart C—Activities by Other ment accompanying a bid or proposal Than Own Employees by a lawyer is allowable. Similarly, technical advice provided by an engi- § 1315.300 Professional and technical neer on the performance or operational services. capability of a piece of equipment ren- (a) The prohibition on the use of ap- dered directly in the negotiation of a propriated funds, in § 1315.100 (a), does contract is allowable. However, com- not apply in the case of any reasonable munications with the intent to influ- payment to a person, other than an of- ence made by a professional (such as a ficer or employee of a person request- licensed lawyer) or a technical person ing or receiving a covered Federal ac- (such as a licensed accountant) are not tion, if the payment is for professional allowable under this section unless or technical services rendered directly they provide advice and analysis di- in the preparation, submission, or ne- rectly applying their professional or gotiation of any bid, proposal, or appli- technical expertise and unless the ad- cation for that Federal contract, grant, vice or analysis is rendered directly loan, or cooperative agreement or for and solely in the preparation, submis- meeting requirements imposed by or sion or negotiation of a covered Fed- pursuant to law as a condition for re- eral action. Thus, for example, commu- ceiving that Federal contract, grant, nications with the intent to influence loan, or cooperative agreement. made by a lawyer that do not provide (b) The reporting requirements in legal advice or analysis directly and § 1315.110 (a) and (b) regarding filing a solely related to the legal aspects of disclosure form by each person, if re- his or her client’s proposal, but gen- quired, shall not apply with respect to erally advocate one proposal over an- professional or technical services ren- other are not allowable under this sec- dered directly in the preparation, sub- tion because the lawyer is not pro- mission, or negotiation of any commit- viding professional legal services. ment providing for the United States to insure or guarantee a loan. Similarly, communications with the intent to influence made by an engi- (c) For purposes of paragraph (a) of this section, ‘‘professional and tech- neer providing an engineering analysis nical services’’ shall be limited to ad- prior to the preparation or submission vice and analysis directly applying any of a bid or proposal are not allowable professional or technical discipline. under this section since the engineer is For example, drafting or a legal docu- providing technical services but not di- ment accompanying a bid or proposal rectly in the preparation, submission by a lawyer is allowable. Similarly, or negotiation of a covered Federal ac- technical advice provided by an engi- tion. neer on the performance or operational (c) Requirements imposed by or pur- capability of a piece of equipment ren- suant to law as a condition for receiv- dered directly in the negotiation of a ing a covered Federal award include contract is allowable. However, com- those required by law or regulation, or munications with the intent to influ- reasonably expected to be required by ence made by a professional (such as a law or regulation, and any other re- licensed lawyer) or a technical person quirements in the actual award docu- (such as a licensed accountant) are not ments. allowable under this section unless

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they provide advice and analysis di- (c) A filing or amended filing on or rectly applying their professional or after the date on which an administra- technical expertise and unless the ad- tive action for the imposition of a civil vice or analysis is rendered directly penalty is commenced does not prevent and solely in the preparation, submis- the imposition of such civil penalty for sion or negotiation of a covered Fed- a failure occurring before that date. An eral action. Thus, for example, commu- administrative action is commenced nications with the intent to influence with respect to a failure when an inves- made by a lawyer that do not provide tigating official determines in writing legal advice or analysis directly and to commence an investigation of an al- solely related to the legal aspects of legation of such failure. his or her client’s proposal, but gen- (d) In determining whether to impose erally advocate one proposal over an- a civil penalty, and the amount of any other are not allowable under this sec- such penalty, by reason of a violation tion because the lawyer is not pro- by any person, the agency shall con- viding professional legal services. sider the nature, circumstances, ex- Similarly, communications with the tent, and gravity of the violation, the intent to influence made by an engi- effect on the ability of such person to neer providing an engineering analysis continue in business, any prior viola- prior to the preparation or submission tions by such person, the degree of cul- of a bid or proposal are not allowable pability of such person, the ability of under this section since the engineer is the person to pay the penalty, and such providing technical services but not di- other matters as may be appropriate. rectly in the preparation, submission (e) First offenders under paragraph or negotiation of a covered Federal ac- (a) or (b) of this section shall be subject tion. to a civil penalty of $12,000, absent ag- (d) Requirements imposed by or pur- gravating circumstances. Second and suant to law as a condition for receiv- subsequent offenses by persons shall be ing a covered Federal award include subject to an appropriate civil penalty those required by law or regulation, or between $12,000 and $120,000, as deter- reasonably expected to be required by mined by the agency head or his or her law or regulation, and any other re- designee. quirements in the actual award docu- (f) An imposition of a civil penalty ments. under this section does not prevent the (e) Persons other than officers or em- United States from seeking any other ployees of a person requesting or re- remedy that may apply to the same ceiving a covered Federal action in- conduct that is the basis for the impo- clude consultants and trade associa- sition of such civil penalty. tions. (f) Only those services expressly au- [55 FR 6737 and 6748, Feb. 26, 1990, as amended thorized by this section are allowable at 61 FR 55098, Oct. 24, 1996; 67 FR 9925, Mar. under this section. 5, 2002]

Subpart D—Penalties and § 1315.405 Penalty procedures. Enforcement Agencies shall impose and collect civil penalties pursuant to the provi- § 1315.400 Penalties. sions of the Program Fraud and Civil (a) Any person who makes an expend- Remedies Act, 31 U.S.C. sections 3803 iture prohibited herein shall be subject (except subsection (c)), 3804, 3805, 3806, to a civil penalty of not less than 3807, 3808, and 3812, insofar as these pro- $12,000 and not more than $120,000 for visions are not inconsistent with the each such expenditure. requirements herein. (b) Any person who fails to file or amend the disclosure form (see appen- § 1315.410 Enforcement. dix B) to be filed or amended if re- The head of each agency shall take quired herein, shall be subject to a civil such actions as are necessary to ensure penalty of not less than $12,000 and not that the provisions herein are vigor- more than $120,000 for each such fail- ously implemented and enforced in ure. that agency.

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Subpart E—Exemptions Committees on Appropriations of the Senate and the House of Representa- § 1315.500 Secretary of Defense. tives in accordance with procedures (a) The Secretary of Defense may ex- agreed to by such committees. Such in- empt, on a case-by-case basis, a cov- formation shall not be available for ered Federal action from the prohibi- public inspection. tion whenever the Secretary deter- (e) The first semi-annual compilation mines, in writing, that such an exemp- shall be submitted on May 31, 1990, and tion is in the national interest. The shall contain a compilation of the dis- Secretary shall transmit a copy of each closure reports received from Decem- such written exemption to Congress ber 23, 1989 to March 31, 1990. immediately after making such a de- (f) Major agencies, designated by the termination. Office of Management and Budget (b) The Department of Defense may (OMB), are required to provide ma- issue supplemental regulations to im- chine-readable compilations to the plement paragraph (a) of this section. Secretary of the Senate and the Clerk of the House of Representatives no Subpart F—Agency Reports later than with the compilations due on May 31, 1991. OMB shall provide de- § 1315.600 Semi-annual compilation. tailed specifications in a memorandum to these agencies. (a) The head of each agency shall col- (g) Non-major agencies are requested lect and compile the disclosure reports (see appendix B) and, on May 31 and to provide machine-readable compila- November 30 of each year, submit to tions to the Secretary of the Senate the Secretary of the Senate and the and the Clerk of the House of Rep- Clerk of the House of Representatives a resentatives. report containing a compilation of the (h) Agencies shall keep the originals information contained in the disclo- of all disclosure reports in the official sure reports received during the six- files of the agency. month period ending on March 31 or § 1315.605 Inspector General report. September 30, respectively, of that year. (a) The Inspector General, or other (b) The report, including the com- official as specified in paragraph (b) of pilation, shall be available for public this section, of each agency shall pre- inspection 30 days after receipt of the pare and submit to Congress each year, report by the Secretary and the Clerk. commencing with submission of the (c) Information that involves intel- President’s Budget in 1991, an evalua- ligence matters shall be reported only tion of the compliance of that agency to the Select Committee on Intel- with, and the effectiveness of, the re- ligence of the Senate, the Permanent quirements herein. The evaluation may Select Committee on Intelligence of include any recommended changes that the House of Representatives, and the may be necessary to strengthen or im- Committees on Appropriations of the prove the requirements. Senate and the House of Representa- (b) In the case of an agency that does tives in accordance with procedures not have an Inspector General, the agreed to by such committees. Such in- agency official comparable to an In- formation shall not be available for spector General shall prepare and sub- public inspection. mit the annual report, or, if there is no (d) Information that is classified such comparable official, the head of under Executive Order 12356 or any suc- the agency shall prepare and submit cessor order shall be reported only to the annual report. the Committee on Foreign Relations of (c) The annual report shall be sub- the Senate and the Committee on For- mitted at the same time the agency eign Affairs of the House of Represent- submits its annual budget justifica- atives or the Committees on Armed tions to Congress. Services of the Senate and the House of (d) The annual report shall include Representatives (whichever such com- the following: All alleged violations re- mittees have jurisdiction of matters lating to the agency’s covered Federal involving such information) and to the actions during the year covered by the

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report, the actions taken by the head (3) The undersigned shall require that the of the agency in the year covered by language of this certification be included in the report with respect to those alleged the award documents for all subawards at all violations and alleged violations in tiers (including subcontracts, subgrants, and previous years, and the amounts of contracts under grants, loans, and coopera- civil penalties imposed by the agency tive agreements) and that all subrecipients shall certify and disclose accordingly. in the year covered by the report. This certification is a material representation of fact upon which reliance was placed APPENDIX A TO PART 1315— when this transaction was made or entered CERTIFICATION REGARDING LOBBYING into. Submission of this certification is a Certification for Contracts, Grants, Loans, and prerequisite for making or entering into this Cooperative Agreements transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the The undersigned certifies, to the best of his required certification shall be subject to a or her knowledge and belief, that: (1) No Federal appropriated funds have civil penalty of not less than $10,000 and not been paid or will be paid, by or on behalf of more than $100,000 for each such failure. the undersigned, to any person for influ- Statement for Loan Guarantees and Loan encing or attempting to influence an officer Insurance or employee of an agency, a Member of Con- gress, an officer or employee of Congress, or The undersigned states, to the best of his an employee of a Member of Congress in con- or her knowledge and belief, that: nection with the awarding of any Federal If any funds have been paid or will be paid contract, the making of any Federal grant, to any person for influencing or attempting the making of any Federal loan, the entering to influence an officer or employee of any into of any cooperative agreement, and the agency, a Member of Congress, an officer or extension, continuation, renewal, amend- employee of Congress, or an employee of a ment, or modification of any Federal con- Member of Congress in connection with this tract, grant, loan, or cooperative agreement. commitment providing for the United States (2) If any funds other than Federal appropriated funds have been paid or will be paid to insure or guarantee a loan, the under- to any person for influencing or attempting signed shall complete and submit Standard to influence an officer or employee of any Form-LLL, ‘‘Disclosure Form to Report Lob- agency, a Member of Congress, an officer or bying,’’ in accordance with its instructions. employee of Congress, or an employee of a Submission of this statement is a pre- Member of Congress in connection with this requisite for making or entering into this Federal contract, grant, loan, or cooperative transaction imposed by section 1352, title 31, agreement, the undersigned shall complete U.S. Code. Any person who fails to file the and submit Standard Form-LLL, ‘‘Disclosure required statement shall be subject to a civil Form to Report Lobbying,’’ in accordance penalty of not less than $10,000 and not more with its instructions. than $100,000 for each such failure.

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APPENDIX B TO PART 1315—DISCLOSURE FORM TO REPORT LOBBYING

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PART 1316—GENERAL CONDITIONS (b) Certification of Nonsegregated Facilities: (1) By submission of its offer, the offeror cer- AND CERTIFICATIONS FOR IN- tifies that it does not and will not maintain CORPORATION IN CONTRACT or provide for employees any segregated fa- DOCUMENTS OR ACTIONS cilities at any of its establishments, and that it does not and will not permit employees to Subpart A—General Information perform their services at any location under its control where segregated facilities are Sec. maintained. The offeror agrees that a breach 1316.1 Applicability. of this certification is a violation of the Equal Opportunity clause in this contract. Subpart B—Text of Conditions and (2) As used in this certification, the term Certifications ‘‘segregated facilities’’ means any waiting rooms, work areas, restrooms and wash- 1316.2 Affirmative action and equal oppor- rooms, restaurants and other eating areas, tunity. timeclocks, locker rooms and other storage 1316.3 Anti-kickback procedures. or dressing areas, parking lots, drinking 1316.4 Buy American Act supply contracts. fountains, recreation or entertainment 1316.5 Clean Air and Water Acts. areas, transportation, or housing facilities 1316.6 Discrimination on the basis of age. provided to employees which are segregated 1316.7 Drug-free workplace. by explicit directive or are in fact segregated 1316.8 Employee protected activities. on the basis of race, religion, color, or na- 1316.9 Nuclear energy hazards and nuclear tional origin, because of habit, local custom, incidents. or otherwise. 1316.10 Officials not to benefit. (3) Contractor further agrees that (except where it has obtained identical certifications AUTHORITY: 16 U.S.C. 831–831dd. from proposed subcontractors for specific SOURCE: 58 FR 25930, Apr. 29, 1993, unless time periods) identical certifications will be otherwise noted. obtained from proposed subcontractors prior to the award of subcontractors exceeding $10,000 which are not exempt from the provi- Subpart A—General Information sions of the Equal Opportunity clause; that it will retain such certifications in its files; § 1316.1 Applicability. and that it will forward the following notice This part sets out the text of certain to such proposed subcontractors (except conditions and certifications which where the proposed subcontractors have sub- may be included by reference in certain mitted identical certifications for specific time periods): TVA contract documents or actions. Notice to Prospective Subcontractors of Re- The provisions set out in this part are quirement for Certifications of Nonsegregated not automatically incorporated in all Facilities. A Certification of Nonsegregated TVA actions. Facilities must be submitted prior to the award of a subcontract exceeding $10,000 which is not exempt from the provision of Subpart B—Text of Conditions and the Equal Opportunity clause. The certifi- Certifications cation may be submitted either for each subcontract or for all subcontracts during a pe- § 1316.2 Affirmative action and equal riod (i.e., quarterly, semiannually, or annu- opportunity. ally). When so indicated in TVA contract (4) NOTE: The penalty for making false documents or actions, the following statements in offers is prescribed in Title 18 U.S.C. 1001. clause is included by reference in such documents or actions: (End of clause)

AFFIRMATIVE ACTION AND EQUAL § 1316.3 Anti-kickback procedures. OPPORTUNITY When so indicated in TVA contract (a) To the extent applicable, contract in- corporates the following provisions: ‘‘Af- documents or actions, the following firmative Action for Disabled Veterans and clause is included by reference in such Veterans of the Vietnam Era’’ clause, 41 CFR documents or actions: 60–250.4; the ‘‘Affirmative Action for Handi- ANTI-KICKBACK PROCEDURES capped Workers’’ clause, 41 CFR 60–741.4; and the ‘‘Equal Opportunity’’ clause, 41 CFR 60– Contractor shall comply with the fol- 1.4. Contractor complies with applicable reg- lowing: ulatory requirements, including information (a) Definitions. As used in this clause, reports and affirmative action programs. terms shall have the meanings defined in the

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Anti-Kickback Act of 1986 (41 U.S.C. 51–58) tic end products. A domestic end product (the Act). means: (b) The Act prohibits any person from— (1) An unmanufactured end product which (1) Providing or attempting to provide or has been mined or produced in the United offering to provide any kickback; States; and (2) Soliciting, accepting, or attempting to (2) An end product manufactured in the accept any kickback; or United States if the cost of components (3) Including, directly or indirectly, the thereof which are mined, produced, or manu- amount of any kickback in the contract factured in the United States exceeds 50 per- price charged by a prime contractor to TVA cent of the cost of all its components. or in the contract price charged by the sub- (b) Contractor agrees that there will be de- contractor to a prime contractor or higher livered under this contract only domestic tier subcontractor. end products, except end products: (c)(1) Contractor shall have in place and (1) Which are for use outside the United follow reasonable procedures designed to pre- States; vent and detect possible violations described (2) Which TVA determines are not mined, in section (b) of this clause in its own oper- produced, or manufactured in the United ations and direct business relationships. States in sufficient and reasonably available (2) When Contractor has reasonable commercial quantities and of a satisfactory grounds to believe that a violation described quality; in section (b) of this clause may have oc- (3) As to which TVA determines the domes- curred, Contractor shall promptly report in tic preference to be inconsistent with the writing the possible violation. Such reports public interest; or shall be made to the TVA Inspector General. (4) As to which TVA determines the cost to (3) Contractor shall cooperate fully with be unreasonable. TVA or any other Federal agency investigating a possible violation described in sec- (End of clause) tion (b) of this clause. (4) (i) Regardless of the contract tier at § 1316.5 Clean Air and Water Acts. which a kickback was provided, accepted, or charged under the contract in violation of When so indicated in TVA contract section (b) of this clause, the Contracting Of- documents or actions, the following ficer may— clause is included by reference in such (A) Offset the amount of the kickback documents or actions: against any monies owed by TVA under this contract; and/or CLEAN AIR AND WATER ACTS (B) Direct that Contractor withhold from (a) If performance of this contract would sums owed the subcontractor the amount of involve the use of facilities which have given the kickback. rise to a conviction under section 113(c)(1) of (ii) The Contracting Officer may order that the Clean Air Act (42 U.S.C. 7413) or section monies withheld under subsection (c)(4)(i)(B) 309(c) of the Federal Water Pollution Control of this clause be paid over to TVA unless Act (33 U.S.C. 1319), offeror shall include in TVA has already offset those monies under its offer a statement clearly setting forth subsection (c)(4)(i)(A) of this clause. In the the facts and circumstances of said convic- latter case, Contracting shall notify the Con- tion and shall list the facilities which gave tracting Officer when the monies are with- rise to said conviction. If no such statement held. is submitted, submission of an offer con- (5) Contractor agrees to incorporate the stitutes certification by the offeror that per- substance of this clause, including this sub- formance of this contract will not involve section (c)(5), in all subcontracts under this the use of facilities which have given rise to contract. a conviction under section 113(c)(1) of the Clean Air Act or section 309(c) of the Federal (End of clause) Water Pollution Control Act. As used in this clause ‘‘facilities’’ shall have the meaning § 1316.4 Buy American Act supply con- set forth in 40 CFR 15.4. tracts. (b) TVA will not award a contract to any When so indicated in TVA contract offeror whose performance would involve the documents or actions, the following use of any facility or facilities which have given rise to a conviction as set forth in clause is included by reference in such paragraph (a) of this clause except to the ex- documents or actions: tent TVA, in its sole judgment, determines that such contract is exempt at the time of BUY AMERICAN ACT SUPPLY CONTRACTS contract award from the provisions of 40 (a) In TVA’s acquisition of end products, CFR part 15 as set forth therein. the Buy American Act (41 U.S.C. 10a–10d) (c) A condition of award of this contract is provides that preference be given to domes- that contractor shall notify the Contracting

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Officer in writing of the receipt of any com- manufacture, distribution, dispensing, pos- munication from the U.S. Environmental session, or use of any controlled substance. Protection Agency (EPA) indicating that a Drug-free workplace means a site, including facility to be utilized for this contract is TVA premises, for the performance of work under consideration to be listed on the EPA done in connection with a specific contract List of Violating Facilities. Prompt notifica- at which employees of Contractor are prohib- tion shall be required prior to contract ited from engaging in the unlawful manufac- award. ture, distribution, dispensing, possession, or use of a controlled substance. (End of clause) Employee means an employee of a contractor directly engaged in the performance § 1316.6 Discrimination on the basis of of work under a Government contract. age. Individual means an offeror/contractor that When so indicated in TVA contract has no more than one employee, including the offeror/contractor. documents or actions, the following (b) Offerors Other than Individuals. By sub- clause is included by reference in such mission of its offer, the offeror, if other than documents or actions: an individual, who is making an offer that equals or exceeds $25,000, certifies and agrees DISCRIMINATION ON THE BASIS OF AGE that, with respect to all employees of the of- Executive Order 11141, 3 CFR, 1964–1965 feror to be employed under a contract result- Comp., p. 179, states that it is the policy of ing from this solicitation, it will— the Executive Branch of the United States (1) Publish a statement notifying such em- that: Contractors and subcontractors en- ployees that the unlawful manufacture, dis- gaged in the performance of Federal contribution, dispensing, possession, or use of a tracts shall not, in connection with the em- controlled substance is prohibited in Con- ployment, advancement, or discharge of em- tractor’s workplace and specifying the ac- ployees, or in connection with the terms, tions that will be taken against employees conditions, or privileges of their employ- for violations of such prohibition; ment, discriminate against persons because (2) Establish a drug-free awareness proof their age except upon the basis of a bona gram to inform such employees about— fide occupational qualification, retirement (i) The dangers of drug abuse in the work- plan, or statutory requirement; and that place; contractors and subcontractors, or persons (ii) Contractor’s policy of maintaining a acting on their behalf, shall not specify, in drug-free workplace; solicitations or advertisements for employ- (iii) Any available drug counseling, reha- ees to work on Government contracts, a bilitation, and employee assistance pro- maximum age limit for such employment grams; and unless the specified maximum age limit is (iv) The penalties that may be imposed based upon a bona fide occupational quali- upon employees for drug abuse violations oc- fication, retirement plan, or statutory re- curring in the workplace; quirement. (3) Provide all employees engaged in performance of the contract with a copy of the (End of clause) statement required by paragraph (b)(1) of this section; § 1316.7 Drug-free workplace. (4) Notify such employees in the statement required by paragraph (b)(1) of this section When so indicated in TVA contract that, as a condition of continued employ- documents or actions, the following ment on the contract resulting from this so- clause is included by reference in such licitation, the employee will— documents or actions: (i) Abide by the terms of the statement; and DRUG-FREE WORKPLACE (ii) Notify Contractor of any criminal drug (a) Definitions. As used in this provision: statute conviction for a violation occurring Controlled substance means a controlled in the workplace no later than 5 days after substance in schedules I through V of Sec- such conviction; tion 202 of the Controlled Substances Act (21 (5) Notify the Contracting Officer within 10 U.S.C. 812) and as further defined in regula- days after receiving notice under paragraph tions at 21 CFR 1308.11 through 1308.15 (b)(4)(ii) of this section from an employee or Conviction means a finding of guilt (includ- otherwise receiving actual notice of such ing a plea of nolo contendere) or imposition conviction; of sentence, or both, by any judicial body (6) Within 30 days after receiving notice charged with the responsibility to determine under subsection (b)(4) of this section of a violations of the Federal or State criminal conviction, impose the following sanctions drug statutes. or remedial measures on any employee who Criminal drug statute means a Federal or is convicted of drug abuse violations occur- non-Federal criminal statute involving the ring in the workplace:

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(i) Take appropriate personnel action terms, conditions, and privileges of employ- against such employee, up to and including ment; the term ‘‘protected activities’’ in- termination; or cludes, among other things, employees rais- (ii) Require such employee to satisfac- ing nuclear safety or quality controls com- torily participate in a drug abuse assistance plaints either internally to their employer or or rehabilitation program approved for such to the NRC. Contractor shall aggressively purposes by a Federal, State, or local health, pursue any employee allegation of discrimi- law enforcement, or other appropriate agen- nation and shall fully investigate such alle- cy; gations. Contractor shall notify the TVA (7) Make a good-faith effort to maintain a Concerns Resolution Staff Site Representa- drug-free workplace through implementation tive of such allegation or complaint in writ- of subsections (b)(1) through (b)(6) of this ing, together with a copy of any complaint. provision. Contractor shall provide TVA any investiga- (c) Individuals. By submission of its offer, tive reports that it may prepare and shall the offeror, if an individual who is making also provide to TVA a full written descrip- an offer of any dollar value, certifies and tion of any management action taken in re- agrees that the offeror will not engage in the sponse to any such allegation or complaint. unlawful manufacture, distribution, dis- In circumstances where any such allegation pensing, possession, or use of a controlled or complaint also charges TVA employees substance in the performance of the contract with involvement in any discriminatory ac- resulting from this solicitation. tivities, contractor shall cooperate fully (d) Enforcement. Failure of the offeror to with TVA counsel in its representation. provide the certification required by section (b) Contractor shall ensure that no agree- (b) or (c) of this provision, renders the offer- ment affecting compensation, terms, condi- or unqualified and ineligible for award. Fail- tions, and privileges of employment, includ- ure of Contractor to comply with the re- ing, but not limited to, any agreement to quirements of subsections (b)(1) through settle a complaint filed by an employee or (b)(7) or section (c) shall constitute a mate- former employee of the Contractor with the rial breach of contract entitling TVA to sus- Department of Labor pursuant to Section 211 pend payments, terminate the contract, sus- of the Energy Reorganization Act of 1974, as pend or debar Contractor from Government amended, may contain any provision which contracting in accordance with subsection would prohibit, restrict, or otherwise dis- 5152(b)(2) of the Drug-Free Workplace Act of courage an employee or former employee 1988 (41 U.S.C. 701(b)(2)), or take such other from participating in any protected activity action as may be in accordance with law or as described in the ‘‘Employee Protection’’ the contract. regulations of NRC, 10 CFR 50.7, including, (e) In addition to other remedies available to the Government, the certification in sec- but not limited to, providing information to tions (b) and (c) of this provision concerns a NRC on potential violations of the NRC’s matter within the jurisdiction of an agency regulations or other matters within NRC’s of the United States, and making of a false, regulatory responsibilities. fictitious, or fraudulent certification may (c) Any breach of this provision shall be a render the maker subject to prosecution material breach of the contract. In the event under 18 U.S.C. 1001. NRC imposes a civil penalty against TVA as a result of a breach of this provision, such a (End of clause) civil penalty is considered by the parties to be direct and not special or consequential § 1316.8 Employee protected activities. damages. (d) Contractor agrees to place this provi- When so indicated in TVA contract sion, along with the flow-down requirement documents or actions, the following of this sentence, in all subcontracts of any clause is included by reference in such tier entered into pursuant to this contract. documents or actions: (End of clause) Employee Protected Activities (Applicable to contracts for goods or serv- § 1316.9 Nuclear energy hazards and ices delivered to nuclear facilities or other- nuclear incidents. wise relating to Nuclear Regulatory Com- When so indicated in TVA contract mission (NRC) licensed activities.) documents or actions, the following (a) Contractor shall comply with Section 211 of the Energy Reorganization Act of 1974 clause is included by reference in such (42 U.S.C. 5851), as amended, which prohibits documents or actions: discrimination against employees for engag- NUCLEAR ENERGY HAZARDS AND NUCLEAR ing in certain protected activities. The Sec- INCIDENTS retary of Labor has determined that ‘‘discrimination’’ means discharge or any other (Applicable only to contracts for goods or adverse actions that relate to compensation, services delivered to nuclear plants.)

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(a) Prior to, or at the time of shipment of OFFICIALS NOT TO BENEFIT the first nuclear fuel to the TVA nuclear fa- No member of or delegate to Congress or cility, TVA will furnish nuclear liability pro- Resident Commissioner, or any officer, em- tection in accordance with Section 170 of the ployee, special Government employee, or Atomic Energy Act (42 U.S.C. 2210) and appli- agent of TVA shall be admitted to any share cable regulations of the Nuclear Regulatory or part of this agreement or to any benefit Commission. Should this system of protec- that may arise therefrom unless it be made tion be repealed or changed, TVA would un- with a corporation for its general benefit; dertake to maintain in effect during the pe- nor shall Contractor offer or give, directly or riod of operation of the plant, to the extent indirectly, to any officer, employee, special available on reasonable terms, liability pro- Government employee, or agent of TVA, any tection which would not result in a material gift, gratuity, favor, entertainment, loan, or impairment of the protection afforded to any other thing of monetary value, except as Contractor and its suppliers under existing provided in 5 CFR part 2635. Breach of this system. clause shall constitute a material breach of (b) TVA waives any claim it might have this contract, and TVA shall have the right against Contractor or its subcontractors be- to exercise all remedies provided in this con- cause of damage to, loss of, or loss of use of tract or at law. any property at the site of the TVA nuclear facility resulting from nuclear energy haz- (End of clause) ards or nuclear incidents. This provision shall not affect Contractor’s obligation PART 1317—NONDISCRIMINATION under the ‘‘Warranty’’ provision of this contract. ON THE BASIS OF SEX IN EDU- (c) TVA will indemnify Contractor and its CATION PROGRAMS OR ACTIVI- subcontractors and save them harmless from TIES RECEIVING FEDERAL FINAN- any claims, losses, or liability arising as a CIAL ASSISTANCE result of damage to, loss of, or loss of use of any property at the site of the TVA nuclear Subpart A—Introduction facility resulting from nuclear energy hazards or nuclear incidents. In return for this Sec. indemnification, Contractor waives any 1317.100 Purpose and effective date. claim it might have against any third party 1317.105 Definitions. because of damage to, loss of, or loss of use 1317.110 Remedial and affirmative action of its property at the site of the TVA nuclear and self-evaluation. facility resulting from nuclear energy haz- 1317.115 Assurance required. ards or nuclear incidents. 1317.120 Transfers of property. (d) The foregoing waiver and indemnifica- 1317.125 Effect of other requirements. tion provisions will apply to the full extent 1317.130 Effect of employment opportuni- permitted by law and regardless of fault. The ties. subcontractors referred to above include any 1317.135 Designation of responsible em- of Contractor’s suppliers of material, equip- ployee and adoption of grievance proce- ment, or services for the work, regardless of dures. tier. 1317.140 Dissemination of policy. (e) For purposes of these provisions, the following definitions shall apply: Nuclear en- Subpart B—Coverage ergy hazards shall mean the hazardous prop- 1317.200 Application. erties of nuclear material. Hazardous prop- 1317.205 Educational institutions and other erties shall include radioactive, toxic, or ex- entities controlled by religious organiza- plosive properties of nuclear material. Nu- tions. clear material shall include source material, 1317.210 Military and merchant marine edu- special nuclear material or by-product mate- cational institutions. rial as those are defined in the Atomic En- 1317.215 Membership practices of certain or- ergy Act (42 U.S.C. 2014). Nuclear incident ganizations. shall have the meaning given that term in 1317.220 Admissions. the Atomic Energy Act (42 U.S.C. 2014(q)). 1317.225 Educational institutions eligible to submit transition plans. (End of clause) 1317.230 Transition plans. 1317.235 Statutory amendments. § 1316.10 Officials not to benefit. Subpart C—Discrimination on the Basis of When so indicated in TVA contract Sex in Admission and Recruitment Pro- documents or actions, the following hibited clause is included by reference in such documents or actions: 1317.300 Admission.

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1317.305 Preference in admission. ance, whether or not such program or 1317.310 Recruitment. activity is offered or sponsored by an educational institution as defined in Subpart D—Discrimination on the Basis of these Title IX regulations. The effec- Sex in Education Programs or Activities tive date of these Title IX regulations Prohibited shall be September 29, 2000. 1317.400 Education programs or activities. 1317.405 Housing. § 1317.105 Definitions. 1317.410 Comparable facilities. As used in these Title IX regulations, 1317.415 Access to course offerings. the term: 1317.420 Access to schools operated by LEAs. Administratively separate unit means a 1317.425 Counseling and use of appraisal and school, department, or college of an counseling materials. educational institution (other than a 1317.430 Financial assistance. local educational agency) admission to 1317.435 Employment assistance to stu- which is independent of admission to dents. any other component of such institu- 1317.440 Health and insurance benefits and tion. services. 1317.445 Marital or parental status. Admission means selection for part- 1317.450 Athletics. time, full-time, special, associate, 1317.455 Textbooks and curricular material. transfer, exchange, or any other enrollment, membership, or matriculation in Subpart E—Discrimination on the Basis of or at an education program or activity Sex in Employment in Education Pro- operated by a recipient. grams or Activities Prohibited Applicant means one who submits an application, request, or plan required 1317.500 Employment. 1317.505 Employment criteria. to be approved by an official of the 1317.510 Recruitment. Federal agency that awards Federal fi- 1317.515 Compensation. nancial assistance, or by a recipient, as 1317.520 Job classification and structure. a condition to becoming a recipient. 1317.525 Fringe benefits. Designated agency official means Man- 1317.530 Marital or parental status. ager, Supplier and Diverse Business Re- 1317.535 Effect of state or local law or other lations. requirements. Educational institution means a local 1317.540 Advertising. 1317.545 Pre-employment inquiries. educational agency (LEA) as defined by 1317.550 Sex as a bona fide occupational 20 U.S.C. 8801(18), a preschool, a private qualification. elementary or secondary school, or an applicant or recipient that is an insti- Subpart F—Procedures tution of graduate higher education, an 1317.600 Notice of covered programs. institution of undergraduate higher 1317.605 Enforcement procedures. education, an institution of professional education, or an institution of AUTHORITY: 20 U.S.C. 1681, 1682, 1683, 1685, vocational education, as defined in this 1686, 1687, 1688. section. SOURCE: 65 FR 52865, 52877, Aug. 30, 2000, un- Federal financial assistance means any less otherwise noted. of the following, when authorized or extended under a law administered by Subpart A—Introduction the Federal agency that awards such assistance: § 1317.100 Purpose and effective date. (1) A grant or loan of Federal finan- The purpose of these Title IX regula- cial assistance, including funds made tions is to effectuate Title IX of the available for: Education Amendments of 1972, as (i) The acquisition, construction, ren- amended (except sections 904 and 906 of ovation, restoration, or repair of a those Amendments) (20 U.S.C. 1681, building or facility or any portion 1682, 1683, 1685, 1686, 1687, 1688), which is thereof; and designed to eliminate (with certain ex- (ii) Scholarships, loans, grants, ceptions) discrimination on the basis of wages, or other funds extended to any sex in any education program or activ- entity for payment to or on behalf of ity receiving Federal financial assist- students admitted to that entity, or

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extended directly to such students for level study beyond the high school payment to that entity. level, leading to a diploma or an asso- (2) A grant of Federal real or per- ciate degree, or wholly or principally sonal property or any interest therein, creditable toward a baccalaureate de- including surplus property, and the gree; or proceeds of the sale or transfer of such (2) An institution offering academic property, if the Federal share of the study leading to a baccalaureate de- fair market value of the property is gree; or not, upon such sale or transfer, prop- (3) An agency or body that certifies erly accounted for to the Federal Gov- credentials or offers degrees, but that ernment. may or may not offer academic study. (3) Provision of the services of Fed- eral personnel. Institution of vocational education (4) Sale or lease of Federal property means a school or institution (except or any interest therein at nominal con- an institution of professional or grad- sideration, or at consideration reduced uate or undergraduate higher edu- for the purpose of assisting the recipi- cation) that has as its primary purpose ent or in recognition of public interest preparation of students to pursue a to be served thereby, or permission to technical, skilled, or semiskilled occu- use Federal property or any interest pation or trade, or to pursue study in a therein without consideration. technical field, whether or not the (5) Any other contract, agreement, or school or institution offers certificates, arrangement that has as one of its pur- diplomas, or degrees and whether or poses the provision of assistance to any not it offers full-time study. education program or activity, except Recipient means any State or polit- a contract of insurance or guaranty. ical subdivision thereof, or any instru- Institution of graduate higher edu- mentality of a State or political sub- cation means an institution that: division thereof, any public or private (1) Offers academic study beyond the agency, institution, or organization, or bachelor of arts or bachelor of science other entity, or any person, to whom degree, whether or not leading to a cer- Federal financial assistance is ex- tificate of any higher degree in the lib- tended directly or through another re- eral arts and sciences; cipient and that operates an education (2) Awards any degree in a professional field beyond the first profes- program or activity that receives such sional degree (regardless of whether assistance, including any subunit, suc- the first professional degree in such cessor, assignee, or transferee thereof. field is awarded by an institution of Student means a person who has undergraduate higher education or pro- gained admission. fessional education); or Title IX means Title IX of the Edu- (3) Awards no degree and offers no cation Amendments of 1972, Public Law further academic study, but operates 92–318, 86 Stat. 235, 373 (codified as ordinarily for the purpose of facili- amended at 20 U.S.C. 1681–1688) (except tating research by persons who have sections 904 and 906 thereof), as amend- received the highest graduate degree in ed by section 3 of Public Law 93–568, 88 any field of study. Stat. 1855, by section 412 of the Edu- Institution of professional education cation Amendments of 1976, Public Law means an institution (except any insti- 94–482, 90 Stat. 2234, and by Section 3 of tution of undergraduate higher edu- Public Law 100–259, 102 Stat. 28, 28–29 cation) that offers a program of aca- (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, demic study that leads to a first profes- 1688). sional degree in a field for which there Title IX regulations means the provi- is a national specialized accrediting sions set forth at §§ 1317.100 through agency recognized by the Secretary of Education. 1317.605. Institution of undergraduate higher Transition plan means a plan subject education means: to the approval of the Secretary of (1) An institution offering at least Education pursuant to section 901(a)(2) two but less than four years of college- of the Education Amendments of 1972,

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20 U.S.C. 1681(a)(2), under which an edu- resulted from adherence to these poli- cational institution operates in mak- cies and practices. ing the transition from being an edu- (d) Availability of self-evaluation and cational institution that admits only related materials. Recipients shall main- students of one sex to being one that tain on file for at least three years fol- admits students of both sexes without lowing completion of the evaluation re- discrimination. quired under paragraph (c) of this sec- [65 FR 52865 and 52877, 52878, Aug. 30, 2000] tion, and shall provide to the designated agency official upon request, a § 1317.110 Remedial and affirmative description of any modifications made action and self-evaluation. pursuant to paragraph (c)(2) of this sec- (a) Remedial action. If the designated tion and of any remedial steps taken agency official finds that a recipient pursuant to paragraph (c)(3) of this sec- has discriminated against persons on tion. the basis of sex in an education program or activity, such recipient shall § 1317.115 Assurance required. take such remedial action as the des- (a) General. Either at the application ignated agency official deems nec- stage or the award stage, Federal agen- essary to overcome the effects of such cies must ensure that applications for discrimination. Federal financial assistance or awards (b) Affirmative action. In the absence of Federal financial assistance contain, of a finding of discrimination on the be accompanied by, or be covered by a basis of sex in an education program or specifically identified assurance from activity, a recipient may take affirma- the applicant or recipient, satisfactory tive action consistent with law to over- to the designated agency official, that come the effects of conditions that re- each education program or activity op- sulted in limited participation therein erated by the applicant or recipient by persons of a particular sex. Nothing and to which these Title IX regulations in these Title IX regulations shall be interpreted to alter any affirmative ac- apply will be operated in compliance tion obligations that a recipient may with these Title IX regulations. An as- have under Executive Order 11246, 3 surance of compliance with these Title CFR, 1964–1965 Comp., p. 339; as amend- IX regulations shall not be satisfactory ed by Executive Order 11375, 3 CFR, to the designated agency official if the 1966–1970 Comp., p. 684; as amended by applicant or recipient to whom such as- Executive Order 11478, 3 CFR, 1966–1970 surance applies fails to commit itself Comp., p. 803; as amended by Executive to take whatever remedial action is Order 12086, 3 CFR, 1978 Comp., p. 230; necessary in accordance with as amended by Executive Order 12107, 3 § 1317.110(a) to eliminate existing dis- CFR, 1978 Comp., p. 264. crimination on the basis of sex or to (c) Self-evaluation. Each recipient eliminate the effects of past discrimi- education institution shall, within one nation whether occurring prior to or year of September 29, 2000: subsequent to the submission to the (1) Evaluate, in terms of the require- designated agency official of such as- ments of these Title IX regulations, its surance. current policies and practices and the (b) Duration of obligation. (1) In the effects thereof concerning admission of case of Federal financial assistance ex- students, treatment of students, and tended to provide real property or employment of both academic and non- structures thereon, such assurance academic personnel working in connec- shall obligate the recipient or, in the tion with the recipient’s education pro- case of a subsequent transfer, the gram or activity; transferee, for the period during which (2) Modify any of these policies and the real property or structures are used practices that do not or may not meet to provide an education program or ac- the requirements of these Title IX reg- tivity. ulations; and (2) In the case of Federal financial as- (3) Take appropriate remedial steps sistance extended to provide personal to eliminate the effects of any dis- property, such assurance shall obligate crimination that resulted or may have the recipient for the period during

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which it retains ownership or posses- (29 U.S.C. 206); and any other Act of sion of the property. Congress or Federal regulation. (3) In all other cases such assurance (b) Effect of State or local law or other shall obligate the recipient for the pe- requirements. The obligation to comply riod during which Federal financial as- with these Title IX regulations is not sistance is extended. obviated or alleviated by any State or (c) Form. (1) The assurances required local law or other requirement that by paragraph (a) of this section, which would render any applicant or student may be included as part of a document ineligible, or limit the eligibility of that addresses other assurances or obli- any applicant or student, on the basis gations, shall include that the appli- of sex, to practice any occupation or cant or recipient will comply with all profession. applicable Federal statutes relating to (c) Effect of rules or regulations of pri- nondiscrimination. These include but vate organizations. The obligation to are not limited to: Title IX of the Edu- comply with these Title IX regulations cation Amendments of 1972, as amend- is not obviated or alleviated by any ed (20 U.S.C. 1681–1683, 1685–1688). rule or regulation of any organization, (2) The designated agency official club, athletic or other league, or asso- will specify the extent to which such ciation that would render any appli- assurances will be required of the ap- cant or student ineligible to partici- plicant’s or recipient’s subgrantees, pate or limit the eligibility or partici- contractors, subcontractors, trans- pation of any applicant or student, on ferees, or successors in interest. the basis of sex, in any education program or activity operated by a recipi- § 1317.120 Transfers of property. ent and that receives Federal financial If a recipient sells or otherwise trans- assistance. fers property financed in whole or in part with Federal financial assistance § 1317.130 Effect of employment oppor- to a transferee that operates any edu- tunities. cation program or activity, and the The obligation to comply with these Federal share of the fair market value Title IX regulations is not obviated or of the property is not upon such sale or alleviated because employment oppor- transfer properly accounted for to the tunities in any occupation or profes- Federal Government, both the trans- sion are or may be more limited for feror and the transferee shall be members of one sex than for members deemed to be recipients, subject to the of the other sex. provisions of §§ 1317.205 through 1317.235(a). § 1317.135 Designation of responsible employee and adoption of grievance § 1317.125 Effect of other require- procedures. ments. (a) Designation of responsible employee. (a) Effect of other Federal provisions. Each recipient shall designate at least The obligations imposed by these Title one employee to coordinate its efforts IX regulations are independent of, and to comply with and carry out its re- do not alter, obligations not to dis- sponsibilities under these Title IX reg- criminate on the basis of sex imposed ulations, including any investigation of by Executive Order 11246, 3 CFR, 1964– any complaint communicated to such 1965 Comp., p. 339; as amended by Exec- recipient alleging its noncompliance utive Order 11375, 3 CFR, 1966–1970 with these Title IX regulations or al- Comp., p. 684; as amended by Executive leging any actions that would be pro- Order 11478, 3 CFR, 1966–1970 Comp., p. hibited by these Title IX regulations. 803; as amended by Executive Order The recipient shall notify all its stu- 12087, 3 CFR, 1978 Comp., p. 230; as dents and employees of the name, of- amended by Executive Order 12107, 3 fice address, and telephone number of CFR, 1978 Comp., p. 264; sections 704 the employee or employees appointed and 855 of the Public Health Service pursuant to this paragraph. Act (42 U.S.C. 295m, 298b-2); Title VII of (b) Complaint procedure of recipient. A the Civil Rights Act of 1964 (42 U.S.C. recipient shall adopt and publish griev- 2000e et seq.); the Equal Pay Act of 1963 ance procedures providing for prompt

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and equitable resolution of student and of the policy described in paragraph (a) employee complaints alleging any ac- of this section in each announcement, tion that would be prohibited by these bulletin, catalog, or application form Title IX regulations. that it makes available to any person of a type, described in paragraph (a) of § 1317.140 Dissemination of policy. this section, or which is otherwise used (a) Notification of policy. (1) Each re- in connection with the recruitment of cipient shall implement specific and students or employees. continuing steps to notify applicants (2) A recipient shall not use or dis- for admission and employment, stu- tribute a publication of the type de- dents and parents of elementary and scribed in paragraph (b)(1) of this sec- secondary school students, employees, tion that suggests, by text or illustra- sources of referral of applicants for ad- tion, that such recipient treats appli- mission and employment, and all cants, students, or employees dif- unions or professional organizations ferently on the basis of sex except as holding collective bargaining or profes- such treatment is permitted by these sional agreements with the recipient, Title IX regulations. that it does not discriminate on the (c) Distribution. Each recipient shall basis of sex in the educational pro- distribute without discrimination on grams or activities that it operates, the basis of sex each publication de- and that it is required by Title IX and scribed in paragraph (b)(1) of this sec- these Title IX regulations not to dis- tion, and shall apprise each of its ad- criminate in such a manner. Such noti- mission and employment recruitment fication shall contain such informa- representatives of the policy of non- tion, and be made in such manner, as discrimination described in paragraph the designated agency official finds (a) of this section, and shall require necessary to apprise such persons of such representatives to adhere to such the protections against discrimination policy. assured them by Title IX and these Title IX regulations, but shall state at Subpart B—Coverage least that the requirement not to discriminate in education programs or ac- § 1317.200 Application. tivities extends to employment there- Except as provided in §§ 1317.205 in, and to admission thereto unless through 1317.235(a), these Title IX regu- §§ 1317.300 through 1317.310 do not apply lations apply to every recipient and to to the recipient, and that inquiries each education program or activity op- concerning the application of Title IX erated by such recipient that receives and these Title IX regulations to such Federal financial assistance. recipient may be referred to the employee designated pursuant to § 1317.205 Educational institutions and § 1317.135, or to the designated agency other entities controlled by reli- official. gious organizations. (2) Each recipient shall make the ini- (a) Exemption. These Title IX regula- tial notification required by paragraph tions do not apply to any operation of (a)(1) of this section within 90 days of an educational institution or other en- September 29, 2000 or of the date these tity that is controlled by a religious Title IX regulations first apply to such organization to the extent that appli- recipient, whichever comes later, cation of these Title IX regulations which notification shall include publi- would not be consistent with the reli- cation in: gious tenets of such organization. (i) Newspapers and magazines oper- (b) Exemption claims. An educational ated by such recipient or by student, institution or other entity that wishes alumnae, or alumni groups for or in to claim the exemption set forth in connection with such recipient; and paragraph (a) of this section shall do so (ii) Memoranda or other written com- by submitting in writing to the des- munications distributed to every stu- ignated agency official a statement by dent and employee of such recipient. the highest-ranking official of the in- (b) Publications. (1) Each recipient stitution, identifying the provisions of shall prominently include a statement these Title IX regulations that conflict

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with a specific tenet of the religious or- through 1317.310 apply shall not dis- ganization. criminate on the basis of sex in admission or recruitment in violation of § 1317.210 Military and merchant ma- §§ 1317.300 through 1317.310. rine educational institutions. (d) Educational institutions. Except as These Title IX regulations do not provided in paragraph (e) of this sec- apply to an educational institution tion as to recipients that are edu- whose primary purpose is the training cational institutions, §§ 1317.300 of individuals for a military service of through 1317.310 apply only to institu- the United States or for the merchant tions of vocational education, profes- marine. sional education, graduate higher education, and public institutions of un- § 1317.215 Membership practices of dergraduate higher education. certain organizations. (e) Public institutions of undergraduate (a) Social fraternities and sororities. higher education. §§ 1317.300 through These Title IX regulations do not apply 1317.310 do not apply to any public in- to the membership practices of social stitution of undergraduate higher edu- fraternities and sororities that are ex- cation that traditionally and contin- empt from taxation under section ually from its establishment has had a 501(a) of the Internal Revenue Code of policy of admitting students of only 1954, 26 U.S.C. 501(a), the active mem- one sex. bership of which consists primarily of students in attendance at institutions § 1317.225 Educational institutions eli- of higher education. gible to submit transition plans. (b) YMCA, YWCA, Girl Scouts, Boy (a) Application. This section applies Scouts, and Camp Fire Girls. These Title to each educational institution to IX regulations do not apply to the which §§ 1317.300 through 1317.310 apply membership practices of the Young that: Men’s Christian Association (YMCA), (1) Admitted students of only one sex the Young Women’s Christian Associa- as regular students as of June 23, 1972; tion (YWCA), the Girl Scouts, the Boy or Scouts, and Camp Fire Girls. (2) Admitted students of only one sex (c) Voluntary youth service organiza- as regular students as of June 23, 1965, tions. These Title IX regulations do not but thereafter admitted, as regular stu- apply to the membership practices of a dents, students of the sex not admitted voluntary youth service organization prior to June 23, 1965. that is exempt from taxation under (b) Provision for transition plans. An section 501(a) of the Internal Revenue educational institution to which this Code of 1954, 26 U.S.C. 501(a), and the section applies shall not discriminate membership of which has been tradi- on the basis of sex in admission or re- tionally limited to members of one sex cruitment in violation of §§ 1317.300 and principally to persons of less than through 1317.310. nineteen years of age. § 1317.230 Transition plans. § 1317.220 Admissions. (a) Submission of plans. An institution (a) Admissions to educational insti- to which § 1317.225 applies and that is tutions prior to June 24, 1973, are not composed of more than one administra- covered by these Title IX regulations. tively separate unit may submit either (b) Administratively separate units. For a single transition plan applicable to the purposes only of this section, all such units, or a separate transition §§ 1317.225 and 1317.230, and §§ 1317.300 plan applicable to each such unit. through 1317.310, each administratively (b) Content of plans. In order to be ap- separate unit shall be deemed to be an proved by the Secretary of Education, educational institution. a transition plan shall: (c) Application of §§ 1317.300 through (1) State the name, address, and Fed- .310. Except as provided in paragraphs eral Interagency Committee on Edu- (d) and (e) of this section, §§ 1317.300 cation Code of the educational institu- through 1317.310 apply to each recipi- tion submitting such plan, the admin- ent. A recipient to which §§ 1317.300 istratively separate units to which the

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plan is applicable, and the name, ad- tions, addresses statutory amendments dress, and telephone number of the per- to Title IX. son to whom questions concerning the (b) These Title IX regulations shall plan may be addressed. The person who not apply to or preclude: submits the plan shall be the chief ad- (1) Any program or activity of the ministrator or president of the institu- American Legion undertaken in con- tion, or another individual legally au- nection with the organization or oper- thorized to bind the institution to all ation of any Boys State conference, actions set forth in the plan. Boys Nation conference, Girls State (2) State whether the educational in- conference, or Girls Nation conference; stitution or administratively separate (2) Any program or activity of a sec- unit admits students of both sexes as ondary school or educational institu- regular students and, if so, when it tion specifically for: began to do so. (3) Identify and describe with respect (i) The promotion of any Boys State to the educational institution or ad- conference, Boys Nation conference, ministratively separate unit any obsta- Girls State conference, or Girls Nation cles to admitting students without dis- conference; or crimination on the basis of sex. (ii) The selection of students to at- (4) Describe in detail the steps nec- tend any such conference; essary to eliminate as soon as prac- (3) Father-son or mother-daughter ticable each obstacle so identified and activities at an educational institution indicate the schedule for taking these or in an education program or activity, steps and the individual directly re- but if such activities are provided for sponsible for their implementation. students of one sex, opportunities for (5) Include estimates of the number reasonably comparable activities shall of students, by sex, expected to apply be provided to students of the other for, be admitted to, and enter each sex; class during the period covered by the (4) Any scholarship or other financial plan. assistance awarded by an institution of (c) Nondiscrimination. No policy or higher education to an individual be- practice of a recipient to which cause such individual has received such § 1317.225 applies shall result in treat- award in a single-sex pageant based ment of applicants to or students of upon a combination of factors related such recipient in violation of §§ 1317.300 to the individual’s personal appear- through 1317.310 unless such treatment ance, poise, and talent. The pageant, is necessitated by an obstacle identi- however, must comply with other non- fied in paragraph (b)(3) of this section discrimination provisions of Federal and a schedule for eliminating that ob- law. stacle has been provided as required by (c) Program or activity or program paragraph (b)(4) of this section. means: (d) Effects of past exclusion. To overcome the effects of past exclusion of (1) All of the operations of any entity students on the basis of sex, each edu- described in paragraphs (c)(1)(i) cational institution to which § 1317.225 through (iv) of this section, any part of applies shall include in its transition which is extended Federal financial as- plan, and shall implement, specific sistance: steps designed to encourage individuals (i)(A) A department, agency, special of the previously excluded sex to apply purpose district, or other instrumen- for admission to such institution. Such tality of a State or of a local govern- steps shall include instituting recruitment; or ment programs that emphasize the in- (B) The entity of such State or local stitution’s commitment to enrolling government that distributes such as- students of the sex previously ex- sistance and each such department or cluded. agency (and each other State or local government entity) to which the as- § 1317.235 Statutory amendments. sistance is extended, in the case of as- (a) This section, which applies to all sistance to a State or local govern- provisions of these Title IX regula- ment;

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(ii)(A) A college, university, or other (2) Nothing in this section shall be postsecondary institution, or a public construed to permit a penalty to be im- system of higher education; or posed on any person or individual be- (B) A local educational agency (as de- cause such person or individual is seek- fined in section 8801 of title 20), system ing or has received any benefit or serv- of vocational education, or other ice related to a legal abortion. Accord- school system; ingly, subject to paragraph (d)(1) of (iii)(A) An entire corporation, part- this section, no person shall be ex- nership, or other private organization, cluded from participation in, be denied or an entire sole proprietorship— the benefits of, or be subjected to dis- (1) If assistance is extended to such crimination under any academic, ex- corporation, partnership, private orga- tracurricular, research, occupational nization, or sole proprietorship as a training, employment, or other edu- whole; or cational program or activity operated (2) Which is principally engaged in by a recipient that receives Federal fi- the business of providing education, nancial assistance because such indi- health care, housing, social services, or vidual has sought or received, or is parks and recreation; or seeking, a legal abortion, or any ben- (B) The entire plant or other com- efit or service related to a legal abor- parable, geographically separate facil- tion. ity to which Federal financial assistance is extended, in the case of any Subpart C—Discrimination on the other corporation, partnership, private Basis of Sex in Admission and organization, or sole proprietorship; or Recruitment Prohibited (iv) Any other entity that is established by two or more of the entities § 1317.300 Admission. described in paragraphs (c)(1)(i), (ii), or (a) General. No person shall, on the (iii) of this section. basis of sex, be denied admission, or be (2)(i) Program or activity does not in- subjected to discrimination in admis- clude any operation of an entity that is sion, by any recipient to which controlled by a religious organization §§ 1317.300 through §§ 1317.310 apply, ex- if the application of 20 U.S.C. 1681 to cept as provided in §§ 1317.225 and such operation would not be consistent §§ 1317.230. with the religious tenets of such organization. (b) Specific prohibitions. (1) In determining whether a person satisfies any (ii) For example, all of the operations policy or criterion for admission, or in of a college, university, or other post- making any offer of admission, a re- secondary institution, including but not limited to traditional educational cipient to which §§ 1317.300 through operations, faculty and student hous- 1317.310 apply shall not: ing, campus shuttle bus service, cam- (i) Give preference to one person over pus restaurants, the bookstore, and another on the basis of sex, by ranking other commercial activities are part of applicants separately on such basis, or a ‘‘program or activity’’ subject to otherwise; these Title IX regulations if the col- (ii) Apply numerical limitations upon lege, university, or other institution the number or proportion of persons of receives Federal financial assistance. either sex who may be admitted; or (d)(1) Nothing in these Title IX regu- (iii) Otherwise treat one individual lations shall be construed to require or differently from another on the basis of prohibit any person, or public or pri- sex. vate entity, to provide or pay for any (2) A recipient shall not administer benefit or service, including the use of or operate any test or other criterion facilities, related to an abortion. Med- for admission that has a disproportion- ical procedures, benefits, services, and ately adverse effect on persons on the the use of facilities, necessary to save basis of sex unless the use of such test the life of a pregnant woman or to ad- or criterion is shown to predict validly dress complications related to an abor- success in the education program or action are not subject to this section. tivity in question and alternative tests

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or criteria that do not have such a dis- be required to undertake additional re- proportionately adverse effect are cruitment efforts for one sex as reme- shown to be unavailable. dial action pursuant to § 1317.110(a), and (c) Prohibitions relating to marital or may choose to undertake such efforts parental status. In determining whether as affirmative action pursuant to a person satisfies any policy or cri- § 1317.110(b). terion for admission, or in making any (b) Recruitment at certain institutions. offer of admission, a recipient to which A recipient to which §§ 1317.300 through §§ 1317.300 through 1317.310 apply: 1317.310 apply shall not recruit pri- (1) Shall not apply any rule con- marily or exclusively at educational cerning the actual or potential paren- institutions, schools, or entities that tal, family, or marital status of a stu- admit as students only or predomi- dent or applicant that treats persons nantly members of one sex, if such ac- differently on the basis of sex; tions have the effect of discriminating (2) Shall not discriminate against or on the basis of sex in violation of exclude any person on the basis of §§ 1317.300 through 1317.310. pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice Subpart D—Discrimination on the that so discriminates or excludes; Basis of Sex in Education Pro- (3) Subject to § 1317.235(d), shall treat grams or Activities Prohibited disabilities related to pregnancy, childbirth, termination of pregnancy, or re- § 1317.400 Education programs or ac- covery therefrom in the same manner tivities. and under the same policies as any (a) General. Except as provided else- other temporary disability or physical where in these Title IX regulations, no condition; and person shall, on the basis of sex, be ex- (4) Shall not make pre-admission included from participation in, be denied quiry as to the marital status of an ap- the benefits of, or be subjected to dis- plicant for admission, including wheth- crimination under any academic, exer such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ tracurricular, research, occupational A recipient may make pre-admission training, or other education program inquiry as to the sex of an applicant for or activity operated by a recipient that admission, but only if such inquiry is receives Federal financial assistance. made equally of such applicants of both Sections 1317.400 through 1317.455 do sexes and if the results of such inquiry not apply to actions of a recipient in are not used in connection with discrimination prohibited by these Title connection with admission of its stu- IX regulations. dents to an education program or activity of a recipient to which §§ 1317.300 § 1317.305 Preference in admission. through 1317.310 do not apply, or an en- A recipient to which §§ 1317.300 tity, not a recipient, to which §§ 1317.300 through 1317.310 apply shall not give through 1317.310 would not apply if the preference to applicants for admission, entity were a recipient. on the basis of attendance at any edu- (b) Specific prohibitions. Except as pro- cational institution or other school or vided in §§ 1317.400 through 1317.455, in entity that admits as students only or providing any aid, benefit, or service to predominantly members of one sex, if a student, a recipient shall not, on the the giving of such preference has the basis of sex: effect of discriminating on the basis of (1) Treat one person differently from sex in violation of §§ 1317.300 through another in determining whether such 1317.310. person satisfies any requirement or condition for the provision of such aid, § 1317.310 Recruitment. benefit, or service; (a) Nondiscriminatory recruitment. A (2) Provide different aid, benefits, or recipient to which §§ 1317.300 through services or provide aid, benefits, or 1317.310 apply shall not discriminate on services in a different manner; the basis of sex in the recruitment and (3) Deny any person any such aid, admission of students. A recipient may benefit, or service;

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(4) Subject any person to separate or (i) Shall develop and implement a different rules of behavior, sanctions, procedure designed to assure itself that or other treatment; the operator or sponsor of such other (5) Apply any rule concerning the education program or activity takes no domicile or residence of a student or action affecting any applicant, student, applicant, including eligibility for in- or employee of such recipient that state fees and tuition; these Title IX regulations would pro- (6) Aid or perpetuate discrimination hibit such recipient from taking; and against any person by providing sig- (ii) Shall not facilitate, require, per- nificant assistance to any agency, or- mit, or consider such participation if ganization, or person that discrimi- such action occurs. nates on the basis of sex in providing any aid, benefit, or service to students § 1317.405 Housing. or employees; (a) Generally. A recipient shall not, (7) Otherwise limit any person in the on the basis of sex, apply different enjoyment of any right, privilege, ad- rules or regulations, impose different vantage, or opportunity. fees or requirements, or offer different (c) Assistance administered by a recipi- services or benefits related to housing, ent educational institution to study at a except as provided in this section (in- foreign institution. A recipient edu- cluding housing provided only to mar- cational institution may administer or ried students). assist in the administration of scholar- (b) Housing provided by recipient. (1) A ships, fellowships, or other awards es- recipient may provide separate housing tablished by foreign or domestic wills, on the basis of sex. trusts, or similar legal instruments, or (2) Housing provided by a recipient to by acts of foreign governments and re- students of one sex, when compared to stricted to members of one sex, that that provided to students of the other are designed to provide opportunities sex, shall be as a whole: to study abroad, and that are awarded (i) Proportionate in quantity to the to students who are already matricu- number of students of that sex apply- lating at or who are graduates of the ing for such housing; and recipient institution; Provided, that a (ii) Comparable in quality and cost to recipient educational institution that the student. administers or assists in the adminis- (c) Other housing. (1) A recipient shall tration of such scholarships, fellow- not, on the basis of sex, administer dif- ships, or other awards that are re- ferent policies or practices concerning stricted to members of one sex pro- occupancy by its students of housing vides, or otherwise makes available, other than that provided by such re- reasonable opportunities for similar cipient. studies for members of the other sex. (2)(i) A recipient which, through so- Such opportunities may be derived licitation, listing, approval of housing, from either domestic or foreign or otherwise, assists any agency, orga- sources. nization, or person in making housing (d) Aids, benefits or services not pro- available to any of its students, shall vided by recipient. (1) This paragraph (d) take such reasonable action as may be applies to any recipient that requires necessary to assure itself that such participation by any applicant, stu- housing as is provided to students of dent, or employee in any education one sex, when compared to that pro- program or activity not operated whol- vided to students of the other sex, is as ly by such recipient, or that facilitates, a whole: permits, or considers such participa- (A) Proportionate in quantity; and tion as part of or equivalent to an edu- (B) Comparable in quality and cost to cation program or activity operated by the student. such recipient, including participation (ii) A recipient may render such as- in educational consortia and coopera- sistance to any agency, organization, tive employment and student-teaching or person that provides all or part of assignments. such housing to students of only one (2) Such recipient: sex.

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§ 1317.410 Comparable facilities. (6) Recipients may make requirements based on vocal range or quality A recipient may provide separate toi- that may result in a chorus or choruses let, locker room, and shower facilities of one or predominantly one sex. on the basis of sex, but such facilities provided for students of one sex shall § 1317.420 Access to schools operated be comparable to such facilities pro- by LEAs. vided for students of the other sex. A recipient that is a local edu- § 1317.415 Access to course offerings. cational agency shall not, on the basis of sex, exclude any person from admis- (a) A recipient shall not provide any sion to: course or otherwise carry out any of its (a) Any institution of vocational edu- education program or activity sepa- cation operated by such recipient; or rately on the basis of sex, or require or (b) Any other school or educational refuse participation therein by any of unit operated by such recipient, unless its students on such basis, including such recipient otherwise makes avail- health, physical education, industrial, able to such person, pursuant to the business, vocational, technical, home same policies and criteria of admission, economics, music, and adult education courses, services, and facilities com- courses. parable to each course, service, and fa- (b)(1) With respect to classes and ac- cility offered in or through such tivities in physical education at the el- schools. ementary school level, the recipient shall comply fully with this section as § 1317.425 Counseling and use of ap- expeditiously as possible but in no praisal and counseling materials. event later than one year from Sep- (a) Counseling. A recipient shall not tember 29, 2000. With respect to phys- discriminate against any person on the ical education classes and activities at basis of sex in the counseling or guid- the secondary and post-secondary lev- ance of students or applicants for ad- els, the recipient shall comply fully mission. with this section as expeditiously as (b) Use of appraisal and counseling ma- possible but in no event later than terials. A recipient that uses testing or three years from September 29, 2000. other materials for appraising or coun- (2) This section does not prohibit seling students shall not use different grouping of students in physical edu- materials for students on the basis of cation classes and activities by ability their sex or use materials that permit as assessed by objective standards of or require different treatment of stu- individual performance developed and dents on such basis unless such dif- applied without regard to sex. ferent materials cover the same occu- (3) This section does not prohibit sep- pations and interest areas and the use aration of students by sex within phys- of such different materials is shown to ical education classes or activities dur- be essential to eliminate sex bias. Re- ing participation in wrestling, boxing, cipients shall develop and use internal rugby, ice hockey, football, basketball, procedures for ensuring that such ma- and other sports the purpose or major terials do not discriminate on the basis activity of which involves bodily con- of sex. Where the use of a counseling tact. test or other instrument results in a (4) Where use of a single standard of substantially disproportionate number measuring skill or progress in a phys- of members of one sex in any particular ical education class has an adverse ef- course of study or classification, the fect on members of one sex, the recipi- recipient shall take such action as is ent shall use appropriate standards necessary to assure itself that such dis- that do not have such effect. proportion is not the result of discrimi- (5) Portions of classes in elementary nation in the instrument or its applica- and secondary schools, or portions of tion. education programs or activities, that (c) Disproportion in classes. Where a deal exclusively with human sexuality recipient finds that a particular class may be conducted in separate sessions contains a substantially dispropor- for boys and girls. tionate number of individuals of one

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sex, the recipient shall take such ac- of financial assistance is allocated to tion as is necessary to assure itself each student selected under paragraph that such disproportion is not the re- (b)(2)(i) of this section; and sult of discrimination on the basis of (iii) No student is denied the award sex in counseling or appraisal mate- for which he or she was selected under rials or by counselors. paragraph (b)(2)(i) of this section because of the absence of a scholarship, § 1317.430 Financial assistance. fellowship, or other form of financial (a) General. Except as provided in assistance designated for a member of paragraphs (b) and (c) of this section, that student’s sex. in providing financial assistance to any (c) Athletic scholarships. (1) To the ex- of its students, a recipient shall not: tent that a recipient awards athletic (1) On the basis of sex, provide dif- scholarships or grants-in-aid, it must ferent amounts or types of such assistance, limit eligibility for such assist- provide reasonable opportunities for ance that is of any particular type or such awards for members of each sex in source, apply different criteria, or oth- proportion to the number of students erwise discriminate; of each sex participating in inter- (2) Through solicitation, listing, ap- scholastic or intercollegiate athletics. proval, provision of facilities, or other (2) A recipient may provide separate services, assist any foundation, trust, athletic scholarships or grants-in-aid agency, organization, or person that for members of each sex as part of sep- provides assistance to any of such re- arate athletic teams for members of cipient’s students in a manner that dis- each sex to the extent consistent with criminates on the basis of sex; or this paragraph (c) and § 1317.450. (3) Apply any rule or assist in application of any rule concerning eligi- § 1317.435 Employment assistance to bility for such assistance that treats students. persons of one sex differently from per- (a) Assistance by recipient in making sons of the other sex with regard to available outside employment. A recipi- marital or parental status. ent that assists any agency, organiza- (b) Financial aid established by certain tion, or person in making employment legal instruments. (1) A recipient may available to any of its students: administer or assist in the administration of scholarships, fellowships, or (1) Shall assure itself that such em- other forms of financial assistance es- ployment is made available without tablished pursuant to domestic or for- discrimination on the basis of sex; and eign wills, trusts, bequests, or similar (2) Shall not render such services to legal instruments or by acts of a for- any agency, organization, or person eign government that require that that discriminates on the basis of sex awards be made to members of a par- in its employment practices. ticular sex specified therein; Provided, (b) Employment of students by recipi- that the overall effect of the award of ents. A recipient that employs any of such sex-restricted scholarships, fel- its students shall not do so in a manner lowships, and other forms of financial that violates §§ 1317.500 through assistance does not discriminate on the 1317.550. basis of sex. (2) To ensure nondiscriminatory § 1317.440 Health and insurance bene- awards of assistance as required in fits and services. paragraph (b)(1) of this section, recipi- Subject to § 1317.235(d), in providing a ents shall develop and use procedures medical, hospital, accident, or life in- under which: surance benefit, service, policy, or plan (i) Students are selected for award of financial assistance on the basis of to any of its students, a recipient shall nondiscriminatory criteria and not on not discriminate on the basis of sex, or the basis of availability of funds re- provide such benefit, service, policy, or stricted to members of a particular sex; plan in a manner that would violate (ii) An appropriate sex-restricted §§ 1317.500 through 1317.550 if it were scholarship, fellowship, or other form provided to employees of the recipient.

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This section shall not prohibit a recipi- does not otherwise qualify for leave ent from providing any benefit or serv- under such a policy, a recipient shall ice that may be used by a different pro- treat pregnancy, childbirth, false preg- portion of students of one sex than of nancy, termination of pregnancy, and the other, including family planning recovery therefrom as a justification services. However, any recipient that for a leave of absence for as long a pe- provides full coverage health service riod of time as is deemed medically shall provide gynecological care. necessary by the student’s physician, at the conclusion of which the student § 1317.445 Marital or parental status. shall be reinstated to the status that (a) Status generally. A recipient shall she held when the leave began. not apply any rule concerning a student’s actual or potential parental, § 1317.450 Athletics. family, or marital status that treats (a) General. No person shall, on the students differently on the basis of sex. basis of sex, be excluded from partici- (b) Pregnancy and related conditions. pation in, be denied the benefits of, be (1) A recipient shall not discriminate treated differently from another per- against any student, or exclude any son, or otherwise be discriminated student from its education program or against in any interscholastic, inter- activity, including any class or extra- collegiate, club, or intramural ath- curricular activity, on the basis of such letics offered by a recipient, and no re- student’s pregnancy, childbirth, false cipient shall provide any such athletics pregnancy, termination of pregnancy, separately on such basis. or recovery therefrom, unless the stu- (b) Separate teams. Notwithstanding dent requests voluntarily to partici- the requirements of paragraph (a) of pate in a separate portion of the pro- this section, a recipient may operate or gram or activity of the recipient. sponsor separate teams for members of (2) A recipient may require such a each sex where selection for such student to obtain the certification of a teams is based upon competitive skill physician that the student is phys- or the activity involved is a contact ically and emotionally able to continue sport. However, where a recipient oper- participation as long as such a certifi- ates or sponsors a team in a particular cation is required of all students for sport for members of one sex but oper- other physical or emotional conditions ates or sponsors no such team for mem- requiring the attention of a physician. bers of the other sex, and athletic op- (3) A recipient that operates a por- portunities for members of that sex tion of its education program or activ- have previously been limited, members ity separately for pregnant students, of the excluded sex must be allowed to admittance to which is completely vol- try out for the team offered unless the untary on the part of the student as sport involved is a contact sport. For provided in paragraph (b)(1) of this sec- the purposes of these Title IX regulation, shall ensure that the separate tions, contact sports include boxing, portion is comparable to that offered wrestling, rugby, ice hockey, football, to non-pregnant students. basketball, and other sports the pur- (4) Subject to § 1317.235(d), a recipient pose or major activity of which in- shall treat pregnancy, childbirth, false volves bodily contact. pregnancy, termination of pregnancy (c) Equal opportunity. (1) A recipient and recovery therefrom in the same that operates or sponsors inter- manner and under the same policies as scholastic, intercollegiate, club, or in- any other temporary disability with re- tramural athletics shall provide equal spect to any medical or hospital ben- athletic opportunity for members of efit, service, plan, or policy that such both sexes. In determining whether recipient administers, operates, offers, equal opportunities are available, the or participates in with respect to stu- designated agency official will con- dents admitted to the recipient’s edu- sider, among other factors: cational program or activity. (i) Whether the selection of sports (5) In the case of a recipient that does and levels of competition effectively not maintain a leave policy for its stu- accommodate the interests and abili- dents, or in the case of a student who ties of members of both sexes;

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(ii) The provision of equipment and Subpart E—Discrimination on the supplies; Basis of Sex in Employment in (iii) Scheduling of games and prac- Education Programs or Activi- tice time; ties Prohibited (iv) Travel and per diem allowance; (v) Opportunity to receive coaching § 1317.500 Employment. and academic tutoring; (a) General. (1) No person shall, on (vi) Assignment and compensation of the basis of sex, be excluded from par- coaches and tutors; ticipation in, be denied the benefits of, (vii) Provision of locker rooms, prac- or be subjected to discrimination in tice, and competitive facilities; employment, or recruitment, consider- (viii) Provision of medical and train- ation, or selection therefor, whether ing facilities and services; full-time or part-time, under any edu- (ix) Provision of housing and dining cation program or activity operated by facilities and services; a recipient that receives Federal finan- (x) Publicity. cial assistance. (2) For purposes of paragraph (c)(1) of (2) A recipient shall make all em- this section, unequal aggregate expend- ployment decisions in any education itures for members of each sex or un- program or activity operated by such equal expenditures for male and female recipient in a nondiscriminatory manner and shall not limit, segregate, or teams if a recipient operates or spon- classify applicants or employees in any sors separate teams will not constitute way that could adversely affect any ap- noncompliance with this section, but plicant’s or employee’s employment the designated agency official may opportunities or status because of sex. consider the failure to provide nec- (3) A recipient shall not enter into essary funds for teams for one sex in any contractual or other relationship assessing equality of opportunity for which directly or indirectly has the ef- members of each sex. fect of subjecting employees or stu- (d) Adjustment period. A recipient that dents to discrimination prohibited by operates or sponsors interscholastic, §§ 1317.500 through 1317.550, including intercollegiate, club, or intramural relationships with employment and re- athletics at the elementary school ferral agencies, with labor unions, and level shall comply fully with this sec- with organizations providing or admin- tion as expeditiously as possible but in istering fringe benefits to employees of no event later than one year from Sep- the recipient. tember 29, 2000. A recipient that oper- (4) A recipient shall not grant pref- ates or sponsors interscholastic, inter- erences to applicants for employment collegiate, club, or intramural ath- on the basis of attendance at any edu- letics at the secondary or postsec- cational institution or entity that ad- ondary school level shall comply fully mits as students only or predominantly with this section as expeditiously as members of one sex, if the giving of possible but in no event later than such preferences has the effect of dis- three years from September 29, 2000. criminating on the basis of sex in violation of these Title IX regulations. § 1317.455 Textbooks and curricular (b) Application. The provisions of material. §§ 1317.500 through 1317.550 apply to: (1) Recruitment, advertising, and the Nothing in these Title IX regulations process of application for employment; shall be interpreted as requiring or pro- (2) Hiring, upgrading, promotion, hibiting or abridging in any way the consideration for and award of tenure, use of particular textbooks or cur- demotion, transfer, layoff, termi- ricular materials. nation, application of nepotism policies, right of return from layoff, and rehiring; (3) Rates of pay or any other form of compensation, and changes in compensation;

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(4) Job assignments, classifications, sively at entities that furnish as appli- and structure, including position de- cants only or predominantly members scriptions, lines of progression, and se- of one sex if such actions have the ef- niority lists; fect of discriminating on the basis of (5) The terms of any collective bar- sex in violation of §§ 1317.500 through gaining agreement; 1317.550. (6) Granting and return from leaves of absence, leave for pregnancy, child- § 1317.515 Compensation. birth, false pregnancy, termination of A recipient shall not make or enforce pregnancy, leave for persons of either any policy or practice that, on the sex to care for children or dependents, basis of sex: or any other leave; (a) Makes distinctions in rates of pay (7) Fringe benefits available by vir- or other compensation; tue of employment, whether or not ad- (b) Results in the payment of wages ministered by the recipient; to employees of one sex at a rate less (8) Selection and financial support than that paid to employees of the op- for training, including apprenticeship, posite sex for equal work on jobs the professional meetings, conferences, and performance of which requires equal other related activities, selection for skill, effort, and responsibility, and tuition assistance, selection for that are performed under similar work- sabbaticals and leaves of absence to ing conditions. pursue training; (9) Employer-sponsored activities, in- § 1317.520 Job classification and struc- cluding social or recreational pro- ture. grams; and (10) Any other term, condition, or A recipient shall not: privilege of employment. (a) Classify a job as being for males or for females; § 1317.505 Employment criteria. (b) Maintain or establish separate A recipient shall not administer or lines of progression, seniority lists, ca- operate any test or other criterion for reer ladders, or tenure systems based any employment opportunity that has on sex; or a disproportionately adverse effect on (c) Maintain or establish separate persons on the basis of sex unless: lines of progression, seniority systems, (a) Use of such test or other criterion career ladders, or tenure systems for is shown to predict validly successful similar jobs, position descriptions, or performance in the position in ques- job requirements that classify persons tion; and on the basis of sex, unless sex is a bona (b) Alternative tests or criteria for fide occupational qualification for the such purpose, which do not have such positions in question as set forth in disproportionately adverse effect, are § 1317.550. shown to be unavailable. § 1317.525 Fringe benefits. § 1317.510 Recruitment. (a) ‘‘Fringe benefits’’ defined. For pur- (a) Nondiscriminatory recruitment and poses of these Title IX regulations, hiring. A recipient shall not discrimi- fringe benefits means: Any medical, hos- nate on the basis of sex in the recruit- pital, accident, life insurance, or re- ment and hiring of employees. Where a tirement benefit, service, policy or recipient has been found to be pres- plan, any profit-sharing or bonus plan, ently discriminating on the basis of sex leave, and any other benefit or service in the recruitment or hiring of employ- of employment not subject to the pro- ees, or has been found to have so dis- vision of § 1317.515. criminated in the past, the recipient (b) Prohibitions. A recipient shall not: shall recruit members of the sex so dis- (1) Discriminate on the basis of sex criminated against so as to overcome with regard to making fringe benefits the effects of such past or present dis- available to employees or make fringe crimination. benefits available to spouses, families, (b) Recruitment patterns. A recipient or dependents of employees differently shall not recruit primarily or exclu- upon the basis of the employee’s sex;

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(2) Administer, operate, offer, or par- time, at the conclusion of which the ticipate in a fringe benefit plan that employee shall be reinstated to the sta- does not provide for equal periodic ben- tus that she held when the leave began efits for members of each sex and for or to a comparable position, without equal contributions to the plan by such decrease in rate of compensation or recipient for members of each sex; or loss of promotional opportunities, or (3) Administer, operate, offer, or par- any other right or privilege of employ- ticipate in a pension or retirement plan ment. that establishes different optional or compulsory retirement ages based on § 1317.535 Effect of state or local law sex or that otherwise discriminates in or other requirements. benefits on the basis of sex. (a) Prohibitory requirements. The obligation to comply with §§ 1317.500 § 1317.530 Marital or parental status. through 1317.550 is not obviated or alle- (a) General. A recipient shall not viated by the existence of any State or apply any policy or take any employ- local law or other requirement that im- ment action: poses prohibitions or limits upon em- (1) Concerning the potential marital, ployment of members of one sex that parental, or family status of an em- are not imposed upon members of the ployee or applicant for employment other sex. that treats persons differently on the (b) Benefits. A recipient that provides basis of sex; or any compensation, service, or benefit (2) Which is based upon whether an to members of one sex pursuant to a employee or applicant for employment State or local law or other requirement is the head of household or principal shall provide the same compensation, wage earner in such employee’s or ap- service, or benefit to members of the plicant’s family unit. other sex. (b) Pregnancy. A recipient shall not discriminate against or exclude from § 1317.540 Advertising. employment any employee or applicant A recipient shall not in any adver- for employment on the basis of preg- tising related to employment indicate nancy, childbirth, false pregnancy, ter- preference, limitation, specification, or mination of pregnancy, or recovery discrimination based on sex unless sex therefrom. is a bona fide occupational qualifica- (c) Pregnancy as a temporary disability. tion for the particular job in question. Subject to § 1317235(d), a recipient shall treat pregnancy, childbirth, false preg- § 1317.545 Pre-employment inquiries. nancy, termination of pregnancy, re- (a) Marital status. A recipient shall covery therefrom, and any temporary not make pre-employment inquiry as disability resulting therefrom as any to the marital status of an applicant other temporary disability for all job- for employment, including whether related purposes, including commence- such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ ment, duration, and extensions of (b) Sex. A recipient may make pre- leave, payment of disability income, employment inquiry as to the sex of an accrual of seniority and any other ben- applicant for employment, but only if efit or service, and reinstatement, and such inquiry is made equally of such under any fringe benefit offered to em- applicants of both sexes and if the re- ployees by virtue of employment. sults of such inquiry are not used in (d) Pregnancy leave. In the case of a connection with discrimination prohib- recipient that does not maintain a ited by these Title IX regulations. leave policy for its employees, or in the case of an employee with insufficient § 1317.550 Sex as a bona fide occupa- leave or accrued employment time to tional qualification. qualify for leave under such a policy, a A recipient may take action other- recipient shall treat pregnancy, child- wise prohibited by §§ 1317.500 through birth, false pregnancy, termination of 1317.550 provided it is shown that sex is pregnancy, and recovery therefrom as a a bona fide occupational qualification justification for a leave of absence for that action, such that consider- without pay for a reasonable period of ation of sex with regard to such action

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is essential to successful operation of eral financial assistance shall publish the employment function concerned. A in the FEDERAL REGISTER a notice of recipient shall not take action pursu- the programs covered by these Title IX ant to this section that is based upon regulations. Each such Federal agency alleged comparative employment char- shall periodically republish the notice acteristics or stereotyped characteriza- of covered programs to reflect changes tions of one or the other sex, or upon in covered programs. Copies of this no- preference based on sex of the recipi- tice also shall be made available upon ent, employees, students, or other per- request to the Federal agency’s office sons, but nothing contained in this sec- that enforces Title IX. tion shall prevent a recipient from considering an employee’s sex in relation § 1317.605 Enforcement procedures. to employment in a locker room or toi- let facility used only by members of The investigative, compliance, and one sex. enforcement procedural provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (‘‘Title VI’’) are hereby Subpart F—Procedures adopted and applied to these Title IX § 1317.600 Notice of covered programs. regulations. These procedures may be found at 18 CFR part 1302. Within 60 days of September 29, 2000, each Federal agency that awards Fed- [65 FR 52878, Aug. 30, 2000]

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A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually. Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected

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Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) III Administrative Conference of the United States (Parts 300—399) IV Miscellaneous Agencies (Parts 400—500)

Title 2—Grants and Agreements

SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR GRANTS AND AGREEMENTS I Office of Management and Budget Governmentwide Guidance for Grants and Agreements (Parts 2—199) II Office of Management and Budget Circulars and Guidance (200— 299) SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND AGREEMENTS III Department of Health and Human Services (Parts 300— 399) IV Department of Agriculture (Parts 400—499) VI Department of State (Parts 600—699) VII Agency for International Development (Parts 700—799) VIII Department of Veterans Affairs (Parts 800—899) IX Department of Energy (Parts 900—999) XI Department of Defense (Parts 1100—1199) XII Department of Transportation (Parts 1200—1299) XIII Department of Commerce (Parts 1300—1399) XIV Department of the Interior (Parts 1400—1499) XV Environmental Protection Agency (Parts 1500—1599) XVIII National Aeronautics and Space Administration (Parts 1800— 1899) XX United States Nuclear Regulatory Commission (Parts 2000—2099) XXII Corporation for National and Community Service (Parts 2200— 2299) XXIII Social Security Administration (Parts 2300—2399) XXIV Housing and Urban Development (Parts 2400—2499) XXV National Science Foundation (Parts 2500—2599) XXVI National Archives and Records Administration (Parts 2600—2699) XXVII Small Business Administration (Parts 2700—2799) XXVIII Department of Justice (Parts 2800—2899)

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XXX Department of Homeland Security (Parts 3000—3099) XXXI Institute of Museum and Library Services (Parts 3100—3199) XXXII National Endowment for the Arts (Parts 3200—3299) XXXIII National Endowment for the Humanities (Parts 3300—3399) XXXIV Department of Education (Parts 3400—3499) XXXV Export-Import Bank of the United States (Parts 3500—3599) XXXVII Peace Corps (Parts 3700—3799) LVIII Election Assistance Commission (Parts 5800—5899)

Title 3—The President

I Executive Office of the President (Parts 100—199)

Title 4—Accounts

I Government Accountability Office (Parts 1—199) II Recovery Accountability and Transparency Board (Parts 200— 299)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Parts 2100—2199) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Parts 3200—3299) XXIII Department of Energy (Parts 3300—3399) XXIV Federal Energy Regulatory Commission (Parts 3400—3499) XXV Department of the Interior (Parts 3500—3599) XXVI Department of Defense (Parts 3600— 3699) XXVIII Department of Justice (Parts 3800—3899) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199)

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XXXIII Overseas Private Investment Corporation (Parts 4300—4399) XXXIV Securities and Exchange Commission (Parts 4400—4499) XXXV Office of Personnel Management (Parts 4500—4599) XXXVII Federal Election Commission (Parts 4700—4799) XL Interstate Commerce Commission (Parts 5000—5099) XLI Commodity Futures Trading Commission (Parts 5100—5199) XLII Department of Labor (Parts 5200—5299) XLIII National Science Foundation (Parts 5300—5399) XLV Department of Health and Human Services (Parts 5500—5599) XLVI Postal Rate Commission (Parts 5600—5699) XLVII Federal Trade Commission (Parts 5700—5799) XLVIII Nuclear Regulatory Commission (Parts 5800—5899) XLIX Federal Labor Relations Authority (Parts 5900—5999) L Department of Transportation (Parts 6000—6099) LII Export-Import Bank of the United States (Parts 6200—6299) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Parts 6400—6499) LV National Endowment for the Arts (Parts 6500—6599) LVI National Endowment for the Humanities (Parts 6600—6699) LVII General Services Administration (Parts 6700—6799) LVIII Board of Governors of the Federal Reserve System (Parts 6800— 6899) LIX National Aeronautics and Space Administration (Parts 6900— 6999) LX United States Postal Service (Parts 7000—7099) LXI National Labor Relations Board (Parts 7100—7199) LXII Equal Employment Opportunity Commission (Parts 7200—7299) LXIII Inter-American Foundation (Parts 7300—7399) LXIV Merit Systems Protection Board (Parts 7400—7499) LXV Department of Housing and Urban Development (Parts 7500— 7599) LXVI National Archives and Records Administration (Parts 7600—7699) LXVII Institute of Museum and Library Services (Parts 7700—7799) LXVIII Commission on Civil Rights (Parts 7800—7899) LXIX Tennessee Valley Authority (Parts 7900—7999) LXX Court Services and Offender Supervision Agency for the District of Columbia (Parts 8000—8099) LXXI Consumer Product Safety Commission (Parts 8100—8199) LXXIII Department of Agriculture (Parts 8300—8399) LXXIV Federal Mine Safety and Health Review Commission (Parts 8400—8499) LXXVI Federal Retirement Thrift Investment Board (Parts 8600—8699) LXXVII Office of Management and Budget (Parts 8700—8799) LXXX Federal Housing Finance Agency (Parts 9000—9099) LXXXII Special Inspector General for Iraq Reconstruction (Parts 9200— 9299)

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XCVII Department of Homeland Security Human Resources Manage- ment System (Department of Homeland Security—Office of Personnel Management) (Parts 9700—9799)

Title 6—Domestic Security

I Department of Homeland Security, Office of the Secretary (Parts 1—99)

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XX Local Television Loan Guarantee Board (Parts 2200—2299)

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XXV Office of Advocacy and Outreach, Department of Agriculture (Parts 2500—2599) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy Policy and New Uses, Department of Agri- culture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV National Institute of Food and Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)

Title 8—Aliens and Nationality

I Department of Homeland Security (Immigration and Naturaliza- tion) (Parts 1—499) V Executive Office for Immigration Review, Department of Justice (Parts 1000—1399)

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

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I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XIII Nuclear Waste Technical Review Board (Parts 1300—1399) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Parts 1800—1899)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099) II Election Assistance Commission (Parts 9400—9499)

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) X Bureau of Consumer Financial Protection (Parts 1000—1099) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XII Federal Housing Finance Agency (Parts 1200—1299) XIII Financial Stability Oversight Council (Parts 1300—1399) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVI Office of Financial Research (Parts 1600—1699) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)

Title 13—Business Credit and Assistance

I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399) IV Emergency Steel Guarantee Loan Board (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)

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I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—1199) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Air Transportation System Stabilization (Parts 1300—1399)

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Industry and Security, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE- MENTS XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS AND INFORMATION XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399)

Title 16—Commercial Practices

I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)

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I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)

Title 18—Conservation of Power and Water Resources

I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)

Title 19—Customs Duties

I U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury (Parts 0—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV U.S. Immigration and Customs Enforcement, Department of Homeland Security (Parts 400—599)

Title 20—Employees’ Benefits

I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees’ Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Office of Workers’ Compensation Programs, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 1000—1099)

Title 21—Food and Drugs

I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)

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I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V Broadcasting Board of Governors (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIII Millennium Challenge Corporation (Parts 1300—1399) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799)

Title 23—Highways

I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499)

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V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XV Emergency Mortgage Insurance and Loan Programs, Depart- ment of Housing and Urban Development (Parts 2700—2799) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXIV Board of Directors of the HOPE for Homeowners Program (Parts 4000—4099) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

Title 25—Indians

I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Parts 1200—1299)

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I Internal Revenue Service, Department of the Treasury (Parts 1— End)

Title 27—Alcohol, Tobacco Products and Firearms

I Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury (Parts 1—399) II Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart- ment of Justice (Parts 400—699)

Title 28—Judicial Administration

I Department of Justice (Parts 0—299) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) XI Department of Justice and Department of State (Parts 1100— 1199)

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Employee Benefits Security Administration, Department of Labor (Parts 2500—2599)

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XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

Title 30—Mineral Resources

I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Bureau of Safety and Environmental Enforcement, Department of the Interior (Parts 200—299) IV Geological Survey, Department of the Interior (Parts 400—499) V Bureau of Ocean Energy Management, Department of the Inte- rior (Parts 500—599) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999) XII Office of Natural Resources Revenue, Department of the Interior (Parts 1200—1299)

Title 31—Money and Finance: Treasury

SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS 0—50) SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999) X Financial Crimes Enforcement Network, Department of the Treasury (Parts 1000—1099)

Title 32—National Defense

SUBTITLE A—DEPARTMENT OF DEFENSE I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE- FENSE

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XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVII Office of the Director of National Intelligence (Parts 1700—1799) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899)

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Homeland Security (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education [Reserved] XI National Institute for Literacy (Parts 1100—1199) SUBTITLE C—REGULATIONS RELATING TO EDUCATION XII National Council on Disability (Parts 1200—1299)

Title 35 [Reserved]

Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199)

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II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VI [Reserved] VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Parts 1500—1599) XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)

Title 37—Patents, Trademarks, and Copyrights

I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) III Copyright Royalty Board, Library of Congress (Parts 300—399) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)

Title 38—Pensions, Bonuses, and Veterans’ Relief

I Department of Veterans Affairs (Parts 0—199) II Armed Forces Retirement Home (Parts 200—299)

Title 39—Postal Service

I United States Postal Service (Parts 1—999) III Postal Regulatory Commission (Parts 3000—3099)

Title 40—Protection of Environment

I Environmental Protection Agency (Parts 1—1099) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600— 1699) VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799)

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SUBTITLE A—FEDERAL PROCUREMENT REGULATIONS SYSTEM [NOTE] SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS 50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99) 60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 61–1—61–999) 62-100 [Reserved] SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS SYSTEM 101 Federal Property Management Regulations (Parts 101–1—101–99) 102 Federal Management Regulation (Parts 102–1—102–299) 103-104 [Reserved] 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) 129-200 [Reserved] SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM [RESERVED] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–1—303–99) 304 Payment of Travel Expenses from a Non-Federal Source (Parts 304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—599) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)

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SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 400— 999) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10099)

Title 44—Emergency Management and Assistance

I Federal Emergency Management Agency, Department of Home- land Security (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)

Title 45—Public Welfare

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) [Reserved] X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199)

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XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)

Title 46—Shipping

I Coast Guard, Department of Homeland Security (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Homeland Security (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399) IV National Telecommunications and Information Administration, Department of Commerce, and National Highway Traffic Safe- ty Administration, Department of Transportation (Parts 400— 499)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Defense Acquisition Regulations System, Department of Defense (Parts 200—299) 3 Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management, Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799)

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18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 30 Department of Homeland Security, Homeland Security Acquisi- tion Regulation (HSAR) (Parts 3000—3099) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement [Reserved] 54 Defense Logistics Agency, Department of Defense (Parts 5400— 5499) 57 African Development Foundation (Parts 5700—5799) 61 Civilian Board of Contract Appeals, General Services Adminis- tration (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)

Title 49—Transportation

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION (PARTS 1—99) SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION I Pipeline and Hazardous Materials Safety Administration, De- partment of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Homeland Security (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699)

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VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399) XI Research and Innovative Technology Administration, Depart- ment of Transportation [Reserved] XII Transportation Security Administration, Department of Home- land Security (Parts 1500—1699)

Title 50—Wildlife and Fisheries

I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199) II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)

CFR Index and Finding Aids

Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR

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CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Administrative Conference of the United States 1, III Advisory Council on Historic Preservation 36, VIII Advocacy and Outreach, Office of 7, XXV African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development 2, VII; 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department 2, IV; 5, LXXIII Advocacy and Outreach, Office of 7, XXV Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Economic Research Service 7, XXXVII Energy Policy and New Uses, Office of 2, IX; 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National Institute of Food and Agriculture 7, XXXIV Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII, L Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV, L Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII, L Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force Department 32, VII Federal Acquisition Regulation Supplement 48, 53 Air Transportation Stabilization Board 14, VI Alcohol and Tobacco Tax and Trade Bureau 27, I Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I

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VerDate Mar<15>2010 16:00 May 21, 2012 Jkt 226059 PO 00000 Frm 00336 Fmt 8092 Sfmt 8092 Q:\18\18V2.TXT ofr150 PsN: PC150 List of CFR Sections Affected All changes in this volume of the Code of Federal Regulations that were made by documents published in the FEDERAL REGISTER since Jan- uary 1, 2001, are enumerated in the following list. Entries indicate the nature of the changes effected. Page numbers refer to FEDERAL REGISTER pages. The user should consult the entries for chapters and parts as well as sections for revisions. For the period before January 1, 2001, see the ‘‘List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, 1986–2000’’ published in 11 separate volumes.

2001 18 CFR—Continued 68 FR Page (No regulations published) Chapter XIII—Continued 1304 Revised ...... 46937 2002 1304.2 OMB number pending in part ...... 46936 18 CFR 67 FR Page 1305 Removed ...... 17546 Chapter III 1307.1 (k) added ...... 51356 401.101—401.119 (Subpart H) Au- 1307.3 Amended...... 51356 thority citation revised ...... 56753 1307.4 Heading revised; (b)(1) in- 401.110 (a) revised...... 56753 troductory text, (i) through (vii), (2), (3)(ii), (4) introduc- Chapter XIII tory text, (i), (c) and (d) amend- 1301.9 (a) revised...... 14853 ed ...... 51356 1315 Authority citation re- 1307.5 (c)(8), (d) and (e)(2)(i) vised ...... 9925 amended...... 51356 1315.400 (a), (b) and (e) amend- 1307.6 Heading revised; (a), (b)(1), ed...... 9925 (2) introductory text, (c) and (d)(1) amended ...... 51356 2003 1307.7 (a) and (b) amended...... 51356 18 CFR 68 FR 1307.8 (b) and (d) amended...... 51356 Page 1307.10 (c) amended ...... 51356 Chapter XIII 1307.11 (e) amended ...... 51356 1301.2 Revised ...... 28710 1307.12 (f) amended...... 51356 1301.4 (a) revised...... 4700 1307.13 (a)(2) and (b) amended ...... 51356 1302.2 Introductory text, (b), (c) 1308 Comment request...... 1964 and concluding text amend- 1309.1 (h) through (l) redesignated ed ...... 51355 as (i) through (m); new (h) 1302.3 (e) added...... 51355 added...... 51357 1302.4 (b)(1) introductory text 1309.2 Amended...... 51357 amended...... 51355 1309.4 Heading revised ...... 51357 1302.5 (a) and (b) amended...... 51355 1309.9 (a) and (b) amended...... 51357 1302.6 (b) and (d) amended...... 51355 1309.10 (a) amended ...... 51357 1302.7 (b)(3)(ii) and (c)(3)(ii)(B) 1309.12 (a) and (c) amended ...... 51357 amended...... 51355 1309.14 (a) and (d)(2) amended ...... 51357 1302.9 (e) amended...... 51355 1309.15 (b) and (c)(2) amended ...... 51357 1302.10 (f) amended...... 51355 1309.16 Amended ...... 51357 1302.12 (a) introductory text 1309.17 (e) and (f)(3) amended ...... 51357 amended...... 51355 1309.18 (c) amended ...... 51357

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VerDate Mar<15>2010 16:00 May 21, 2012 Jkt 226059 PO 00000 Frm 00337 Fmt 8060 Sfmt 8060 Q:\18\18V2.TXT ofr150 PsN: PC150 18 CFR (4–1–12 Edition) 2004–2005 2010 (No regulations published) 18 CFR 75 FR Page 2006 Chapter VIII 806.4 (a)(2) introductory text, (iv) 18 CFR 68 FR Page and (c) revised...... 60620 806.6 (a), (b) introductory text, Chapter XIII (1), (c) introductory text and 803 Removed...... 78579 (d) introductory text revised; 804 Removed...... 78579 (e) added ...... 60620 805 Removed...... 78579 806.7 (a) revised...... 60620 806 Added ...... 78579 806.15 Revised ...... 60620 807 Added ...... 78588 806.22 (e)(1), (6), (f)(3), (9) and (12) 808 Added ...... 788589 revised ...... 60621 806.24 (c)(2) added...... 60621 2007 806.35 Revised ...... 60622 18 CFR 72 FR 808.2 (a) through (h) revised...... 60622 Page Chapter XIII Chapter XIII 1301.1—1301.10 (Subpart A) Au- 1301.51—1301.57 (Subpart D) thority citation revised ...... 11735 Added ...... 60548 1301.3 (a) and (b) revised ...... 11735 1310.2 (a) introductory text and 1301.5 (b) introductory text re- (b) revised...... 18118 vised...... 11735 1301.9 (a) revised ...... 11735 2008 1301.10 (b)(6) revised...... 11735 18 CFR 73 FR 1301.11—1301.24 (Subpart B) Au- Page thority citation revised ...... 11736 Chapter III 1301.12 (d) and (f) revised ...... 11736 410.1 Revised ...... 55750 1301.14 (g) revised...... 11736 Chapter VIII 1301.16 Revised ...... 11736 806.3 Amended...... 1273 1301.19 (a) introductory text re- Amended ...... 78619 vised...... 11736 806.4 (a)(1) introductory text, (3) 1301.23 Revised ...... 11736 introductory text and (b)(3) re- 1301.24 (b)(1) and (c)(1) revised ...... 11736 vised ...... 1273 1301.41—1301.48 (Subpart C) Au- (a)(8) added ...... 78620 thority citation revised ...... 11737 806.6 (b)(3) revised ...... 1273 1301.42 (b) revised...... 11737 806.22 (e)(1) introductory text, 1301.44 (b) and (c) revised ...... 11737 (ii), (6) and (7) revised; (f) 1301.45 (a) revised...... 11737 added...... 78620 1301.48 (a), (c) and (d) revised ...... 11737 808 Authority citation revised...... 1273 2011 2009 18 CFR 76 FR 18 CFR 75 FR Page Page Chapter III Chapter III 410.1 (c) amended ...... 16285 410.1 (c) amended ...... 60155 420.41 (a) and (b) revised ...... 10234 Chapter VIII Chapter XIII 806.22 (f)(11) revised; (f)(12) 1301.61—1301.69 (Subpart E) added...... 49812 Added ...... 39261 806.32 (a) revised ...... 49813 808.1 (a)(2) and (c) revised ...... 49813 808.2 (a) revised...... 49813

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2012 18 CFR—Continued 77 FR Page (Regulations published from January 1, Chapter VIII—Continued 2012, through April 1, 2012) 806.13 Revised ...... 8099 18 CFR 77 FR 806.14 (a) introductory text re- Page vised ...... 8099 Chapter VIII 806.15 (d), (e) and (f) revised; (g) 806.3 Amended...... 8098 added ...... 8099 806.4 (a)(3) introductory text and 806.22 (e)(1), (6), (f) introductory (8) revised; (a)(3)(v) and (vi) text, (1), (4), (6), (8), (9), (11) and added ...... 8099 (12) revised; (f)(13), (14) and (15) 806.6 (b)(1)(i) and (ii) correctly re- revised ...... 8099 moved; CFR correction ...... 14272 Æ

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