[Federal Register Volume 79, Number 19 (Wednesday, January 29, 2014)]
[Rules and Regulations]
[Pages 4620-4623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01676]


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TENNESSEE VALLEY AUTHORITY

18 CFR Part 1304


Approval of Construction in the Tennessee River System; Revisions 
to Administrative Appeals Process; Job Title and Address Updates

AGENCY: Tennessee Valley Authority.

ACTION: Final rule.

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SUMMARY: The Tennessee Valley Authority (TVA) is making non-substantive 
changes to Title 18 of the Code of Federal Regulations. The purpose of 
this rule is to amend the process for issuing final determinations on 
administrative appeals of permitting decisions under section 26a of the 
TVA Act. Formerly, final determinations were made by the TVA Board of 
Directors. In 2004, the TVA Act was amended to change TVA's governance 
structure from a three-member, full time board to a nine-member, part-
time policy board with a chief executive officer (CEO). Accordingly, 
the TVA Board approved revisions to the section 26a appeals process to 
provide for an appeal to the CEO followed by a discretionary review by 
a committee of the Board. The revised appeals process is consistent 
with the new governance structure. This rule amends TVA's published 
regulations to incorporate the revisions approved by the Board and to 
make the regulations consistent with the change in TVA's governance 
structure. TVA is also making minor changes to update addresses and job 
and organizational titles.

DATES: This final rule is effective January 29, 2014.

FOR FURTHER INFORMATION CONTACT: Rebecca C. Tolene, Vice President 
Natural Resources, Tennessee Valley Authority, Knoxville, Tennessee, 
(865-632-4433).

SUPPLEMENTARY INFORMATION:

I. Legal Authority

    This rule is promulgated under the authority of the Tennessee 
Valley Authority Act of 1933, as amended, 16 U.S.C. 831-831ee.

II. Background

    Section 26a of the TVA Act requires that TVA's approval be obtained 
prior to the construction, operation, or maintenance of any dam, 
appurtenant works, or other obstruction affecting navigation, flood 
control, or public lands or reservations across, along, or in the 
Tennessee River or any of its tributaries. TVA's rules governing such 
approval are codified at 18 CFR Part 1304. The rules include an appeals 
process whereby an applicant who is not satisfied with an initial 
permitting decision may obtain administrative review of that decision.
    Previously, when TVA was governed by a three-member, full-time 
board, dissatisfied applicants who exhausted their intermediate appeal 
rights could appeal TVA's permitting decisions to the full TVA Board 
for final determination. That stage of the appeals process became 
obsolete, however, when Congress amended the TVA Act to change TVA's 
governance structure to a nine-member, part-time policy board with a 
chief executive officer. 118 Stat. 2963-2967, 16 U.S.C. 831a.
    Hence, this rule amends the appeals process to make it consistent 
with TVA's governance structure. Instead of a final appeal to the full 
TVA Board, dissatisfied applicants who have exhausted their 
intermediate appeal rights may appeal to TVA's CEO, with an opportunity 
for further discretionary

[[Page 4621]]

review by a committee of the Board (Committee). The Committee will 
review the CEO's decision only if one or more Committee members 
determine that extraordinary circumstances exist that warrant further 
review. The rule also makes minor changes necessary to update addresses 
and job and organizational titles.
    TVA is promulgating this rule as a direct final rule with an 
immediate effective date. TVA did not publish a notice of proposed 
rulemaking for this rule because it is exempt from notice and comment 
rulemaking requirements under 5 U.S.C. 553(a)(2) and 553(b)(A) and 
(b)(B). The rule relates to agency management, and it is a rule of 
agency organization, procedure, or practice.

III. Administrative Requirements

Unfunded Mandates Reform Act and various Executive Orders, Including 
E.O. 12866, Regulatory Planning and Review; E.O. 12898, Federal Actions 
To Address Environmental Justice in Minority Populations and Low-Income 
Populations; E.O. 13045, Protection of Children From Environmental 
Health Risks; E.O. 13132, Federalism; E.O. 13175, Consultation and 
Coordination With Indian Tribal Governments; E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, and Use; and E.O. 12988, Civil Justice Reform Act

    The rule contains no federal mandates for State, local or tribal 
governments or for the private sector. Issuance of the rule does not 
constitute a significant regulatory action. The rule will not have an 
annual affect on the economy of $100 million or more, and it will not 
result in expenditures of $100 million in any one year by state, local, 
and tribal governments or the private sector. The rule will not have a 
substantial direct affect on the States or Indian tribes, on the 
relationship between the Federal Government and the States or Indian 
tribes, or on the distribution of power and responsibilities between 
the federal Government and States or Indian tribes. Unified development 
and regulation of the Tennessee River system through an approval 
process for obstructions in or along the river system, and management 
of United States-owned land entrusted to TVA are federal functions for 
which TVA is responsible under the TVA Act. The rule simply codifies a 
change in TVA's procedure for reviewing denials of Section 26a permit 
applications. The rule does not concern an environmental health risk or 
safety risk that may disproportionately affect children, minority 
populations, or low-income populations. The rule is not likely to have 
a significant adverse affect on the supply, distribution, or use of 
energy.

List of Subjects in 18 CFR Part 1304

    Administrative practice and procedure, Natural resources, 
Navigation (water), Rivers, Water pollution control.

    For the reasons set forth in the preamble, title 18, Chapter XIII 
of the Code of Federal Regulations is amended as follows:

PART 1304--APPROVAL OF CONSTRUCTION IN THE TENNESSEE RIVER SYSTEM 
AND REGULATION OF STRUCTURES AND OTHER ALTERATIONS

0
1. The authority citation for 18 CFR Part 1304 continues to read as 
follows:

    Authority:  16 U.S.C. 831-831ee.


0
2. Amend Sec.  1304.2 by revising paragraph (b) to read as follows:


Sec.  1304.2  Application.

* * * * *
    (b) Applications shall be addressed to the Tennessee Valley 
Authority at the appropriate Regional Watershed Office location using 
the addresses provided below. To contact an office, call 1-800-882-
5263. Applications are available on TVA's internet Web site and at the 
addresses listed below.
    (1) For Chickamauga and Nickajack Reservoirs: 1101 Market Street, 
PSC 1E-C, Chattanooga, TN 37402-2801;
    (2) For Apalachia, Blue Ridge, Chatuge, Hiwassee, Nottely, and the 
Ocoee Reservoirs: 4800 US Highway 64 West, Suite 102, MLO 1A-MRN, 
Murphy, NC 28906;
    (3) For Guntersville, Normandy, and Tims Ford Reservoirs: 3696 
Alabama Highway 69, CAB 1A-GVA, Guntersville, AL 35976-7196;
    (4) For Cherokee, Douglas, and Nolichucky Reservoirs and the French 
Broad River: 3726 E. Morris Boulevard, MOC 1A-MOT, Morristown, TN 
37813-1270;
    (5) For Boone, Fort Patrick Henry South Holston, Watauga, and 
Wilbur Reservoirs and the Bristol Project: 106 Tri-Cities Business Park 
Drive, WTR 1A-GRT, Gray, TN 37615;
    (6) For the Beech River Project, Kentucky Reservoir, and the Lower 
Duck River: 2835-A East Wood Street, WTB 1A-PAT, Paris, TN 38242-5948;
    (7) For Fontana, Fort Loudon, Great Falls, Melton Hill, Norris, 
Tellico, and Watts Bar Reservoirs, and the Little Tennessee, Clinch, 
and Powell Rivers: 260 Interchange Park Dr., LCB 1A-LCT, Lenoir City, 
TN 37772-5664;
    (8) For Bear Creek, Cedar Creek, Little Bear Creek, Upper Bear 
Creek, and the Duck and Elk Rivers, and Pickwick, Wheeler and Wilson 
Reservoirs: P.O. Box 1010, MPB 1H-M, Muscle Shoals, AL 35662-1010.
* * * * *

0
3. Revise Sec.  1304.3 to read as follows:


Sec.  1304.3  Delegation of authority.

     The power to approve or disapprove applications under this part is 
delegated to the Vice President, Natural Resources, or the designee 
thereof, subject to appeal to the Chief Executive Officer and 
discretionary review by a designated committee of the TVA Board, as 
provided in Sec.  1304.6. The administration of applications is 
delegated to the Natural Resources staff or the group with functionally 
equivalent responsibilities.

0
4. Revise Sec.  1304.4 to read as follows:


Sec.  1304.4  Application review and approval process.

    (a) TVA shall notify the U.S. Army Corps of Engineers (USACE) and 
other federal agencies with jurisdiction over the application as 
appropriate.
    (b) If a hearing is held for any of the reasons described in 
paragraph (c) of this section, any interested person may become a party 
of record by following the directions contained in the hearing notice.
    (c) Hearings concerning approval of applications are conducted (in 
accordance with Sec.  1304.5) when:
    (1) TVA deems a hearing is necessary or appropriate in determining 
any issue presented by the application;
    (2) A hearing is required under any applicable law or regulation;
    (3) A hearing is requested by the USACE pursuant to the TVA/Corps 
joint processing Memorandum of Understanding; or
    (4) The TVA Investigating Officer directs that a hearing be held.
    (d) Upon completion of the review of the application, including any 
hearing or hearings, the Vice President or the designee thereof shall 
issue an initial decision approving or disapproving the application. 
The basis for the decision shall be set forth in the decision.
    (e) Promptly following the issuance of the decision, the Vice 
President or the designee thereof shall furnish a written copy of the 
decision to the applicant and to any parties of record. The initial 
decision shall become final unless an appeal is made pursuant to Sec.  
1304.6.

0
5. Revise Sec.  1304.5 to read as follows:


Sec.  1304.5  Conduct of hearings.

    (a) If a hearing is to be held for any of the reasons described in 
Sec.  1304.4(c), TVA shall give notice of the hearing to interested 
persons. Such notice may be

[[Page 4622]]

given by publication in a daily newspaper of general circulation in the 
area of the proposed structure, personal written notice, posting on 
TVA's Internet Web site, or by any other method reasonably calculated 
to come to the attention of interested persons. The notice shall 
provide to the extent feasible the place, date, and time of hearing; 
the particular issues to which the hearing will pertain; the manner of 
becoming a party of record; and any other pertinent information as 
appropriate. The applicant shall automatically be a party of record.
    (b) Hearings may be conducted by any such person or persons as may 
be designated by the Vice President, the Vice President's designee, or 
the Chief Executive Officer. Hearings are public and are conducted in 
an informal manner. Parties of record may be represented by counsel or 
other persons of their choosing. Technical rules of evidence are not 
observed although reasonable bounds are maintained as to relevancy, 
materiality, and competency. Evidence may be presented orally or by 
written statement and need not be under oath. Cross-examination by 
parties of witnesses or others providing statements or testifying at a 
hearing shall not be allowed. After the hearing has been completed, 
additional evidence will not be received unless it presents new and 
material matter that in the judgment of the person or persons 
conducting the hearing could not be presented at the hearing. The Vice 
President may arrange a joint hearing with another federal agency where 
the subject of an application will require the approval of and 
necessitate a hearing by or before that other agency. In TVA's 
discretion, the format of any such joint hearing may be that used by 
the other agency.

0
6. Revise Sec.  1304.6 to read as follows:


Sec.  1304.6  Appeals.

    (a) Decisions approving or disapproving an application may be 
appealed as provided in this section. Decisions by the Vice President's 
designee may be appealed to the Vice President and decisions by the 
Vice President may be appealed to the Chief Executive Officer, with the 
possibility of further discretionary review by a committee of the TVA 
Board.
    (b) If a designee of the Vice President issues an initial decision 
disapproving an application or approving it with terms and conditions 
deemed unacceptable by the applicant, the applicant may obtain the Vice 
President's review of that decision by mailing within thirty (30) days 
after receipt of the designee's decision a written request to the Vice 
President, Natural Resources, Tennessee Valley Authority, 400 West 
Summit Hill Drive, Knoxville, Tennessee 37902. Otherwise, the initial 
decision of the Vice President's designee becomes final.
    (c) If the Vice President, either initially or as the result of an 
appeal, disapproves an application or approves it with terms and 
conditions deemed unacceptable by the applicant, the applicant may 
obtain the Chief Executive Officer's review of that decision by mailing 
within thirty (30) days after receipt of the decision a written request 
to the Chief Executive Officer, Tennessee Valley Authority, 400 W. 
Summit Hill Drive, Knoxville, Tennessee 37902. Otherwise, the Vice 
President's decision becomes final.
    (d) The decision of the Chief Executive Officer shall become final 
unless a request for discretionary review by a committee of the Board 
(Committee) is justified by extraordinary circumstances and mailed 
within thirty (30) days after receipt of the decision to the attention 
of Board Services, Tennessee Valley Authority, 400 West Summit Hill 
Drive, Knoxville, Tennessee 37902. If within 60 days of such a request, 
one or more members of the Committee indicate that there are 
extraordinary circumstances warranting further review, the matter will 
be reviewed by the Committee. Otherwise, the Chief Executive Officer's 
decision becomes final. The Committee will schedule a meeting not more 
often that twice a year as needed to hear discretionary appeals. The 
Committee decides what kind of process to use for these appeals. 
Deliberations and voting on the reviews will take place at these 
meetings.
    (e) Any interested party who becomes a party of record at a hearing 
as set forth in Sec.  1304.4(b) and who is aggrieved or adversely 
affected by any decision approving an application may obtain review by 
the Vice President or Chief Executive Officer, as appropriate, and may 
request discretionary review by the Committee, in the same manner as an 
applicant by adhering to the requirements of paragraphs (b), (c), and 
(d) of this section.
    (f) All requests for review shall fully explain the reasons the 
applicant or other aggrieved party of record contends that the decision 
below is in error, and shall include a signed certification that the 
request for review was mailed to each party of record at the same time 
that it was mailed to TVA. TVA shall maintain lists of parties of 
record and make those available upon request for this purpose.
    (g) The applicant and any party of record requesting review by the 
Vice President or Chief Executive Officer may submit additional written 
material in support of their positions within thirty (30) days after 
mailing the request for review or during such additional period as the 
Vice President or Chief Executive Officer may allow.
    (h) In considering an appeal, the Vice President or Chief Executive 
Officer may conduct or cause to be conducted such investigation of the 
application as he or she deems necessary or desirable, and may appoint 
an Investigating Officer. The Investigating Officer may be a TVA 
employee or a person under contract to TVA, and shall not have been 
directly and substantially involved in the decision being appealed. The 
Investigating Officer may be the hearing officer for any hearing held 
during the appeal process. The Vice President or Chief Executive 
Officer shall render a decision approving or disapproving the 
application based on a review of the record and the information 
developed during any investigation and/or submitted by the applicant 
and any parties of record.
    (i) No applicant or party of record shall contact the Chief 
Executive Officer, Committee members, or any other TVA Board member 
during the appeal process, except as specified in correspondence from 
the Chief Executive Officer or from the Committee Secretary. The appeal 
process runs from the date of an appeal to the Chief Executive Officer 
until a final resolution of the matter.
    (j) A written copy of the decision by the Vice President or the 
Chief Executive Officer shall be furnished to the applicant and to all 
parties of record promptly following determination of the matter.
    (k) In the event the Committee grants a request for discretionary 
review, notice of that decision and information about the review shall 
be provided to the person(s) requesting review and to other parties of 
record in accordance with the methods set forth in Sec.  1304.5(a). 
Written notice of the Committee's final determination of the appeal 
shall be provided to the applicant and to all parties of record in 
accordance with the methods set forth in Sec.  1304.5(a).

0
7. In Sec.  1304.412, add definitions of ``Chief Executive Officer,'' 
``Committee,'' and ``TVA Investigating Officer'' in alphabetical order, 
and revise the definition of ``Vice President,'' to read as follows:


Sec.  1304.412  Definitions.

* * * * *

[[Page 4623]]

    Chief Executive Officer means the Chief Executive Officer, TVA.
    Committee means a committee of the TVA Board of Directors that has 
been designated by the TVA Board to hear appeals under this regulation.
* * * * *
    TVA Investigating Officer means a TVA employee or a person under 
contract to TVA appointed by the Vice President or the CEO to 
investigate any issue concerning an appeal of a decision on an 
application under this part.
* * * * *
    Vice President means the Vice President, Natural Resources, TVA, or 
a position with functionally equivalent supervisory responsibilities.
* * * * *

Rebecca C. Tolene,
Vice President, Natural Resources.
[FR Doc. 2014-01676 Filed 1-28-14; 8:45 am]
BILLING CODE 8120-08-P