16 U.S.C. § 823b — Enforcement

Page 1391 TITLE 16—CONSERVATION § 823b agency exercising administration over the fish and wildlife resources of the State in which the facility is or will be located, in the manner pro- vided by the Fish and Wildlife Coordination Act (16 U.S.C. 661, et seq.), and shall include in any such exemption— (1) such terms and conditions as the Fish and Wildlife Service 1 National Marine Fish- eries Service 1 and the State agency each de- termine are appropriate to prevent loss of, or damage to, such resources and to otherwise carry out the purposes of such Act, and (2) such terms and conditions as the Com- mission deems appropriate to insure that such facility continues to comply with the provi- sions of this section and terms and conditions included in any such exemption. (d) Violation of terms of exemption Any violation of a term or condition of any ex- emption granted under subsection (b) shall be treated as a violation of a rule or order of the Commission under this chapter. (e) Fees for studies The Commission, in addition to the require- ments of section 803(e) of this title, shall estab- lish fees which shall be paid by an applicant for a license or exemption for a project that is re- quired to meet terms and conditions set by fish and wildlife agencies under subsection (c). Such fees shall be adequate to reimburse the fish and wildlife agencies referred to in subsection (c) for any reasonable costs incurred in connection with any studies or other reviews carried out by such agencies for purposes of compliance with this section. The fees shall, subject to annual appropriations Acts, be transferred to such agencies by the Commission for use solely for purposes of carrying out such studies and shall remain available until expended. (June 10, 1920, ch. 285, pt. I, § 30, as added Pub. L. 95–617, title II, § 213, Nov. 9, 1978, 92 Stat. 3148; amended Pub. L. 99–495, § 7, Oct. 16, 1986, 100 Stat. 1248; Pub. L. 113–23, § 4(a), Aug. 9, 2013, 127 Stat. 494; Pub. L. 115–270, title III, § 3002, Oct. 23, 2018, 132 Stat. 3863.) Editorial Notes REFERENCES IN TEXT The Fish and Wildlife Coordination Act, referred to in subsec. (c), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, which is classified generally to sections 661 to 666c–1 of this title. For complete classification of this Act to the Code, see section 661(a) of this title, Short Title note set out under section 661 of this title, and Tables. PRIOR PROVISIONS A prior section 30 of act June 10, 1920, was classified to section 791 of this title, prior to repeal by act Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat. 847. AMENDMENTS 2018—Subsec. (a)(2)(C). Pub. L. 115–270, § 3002(1), sub- stituted ‘‘30 days’’ for ‘‘45 days’’ in introductory provi- sions. Subsec. (a)(3)(C)(ii). Pub. L. 115–270, § 3002(2), sub- stituted ‘‘40 megawatts’’ for ‘‘5 megawatts’’. 2013—Subsecs. (a), (b). Pub. L. 113–23, § 4(a)(1), added subsecs. (a) and (b) and struck out former subsecs. (a) and (b) which authorized the Commission to grant ex- emptions from the requirements of this subchapter for certain hydroelectric facilities and prohibited the granting of exemptions to facilities with certain capac- ities. Subsec. (c). Pub. L. 113–23, § 4(a)(2), substituted ‘‘sub- section (b)’’ for ‘‘subsection (a)’’ in introductory provi- sions. Subsec. (d). Pub. L. 113–23, § 4(a)(3), substituted ‘‘sub- section (b)’’ for ‘‘subsection (a)’’. 1986—Subsec. (b). Pub. L. 99–495, § 7(a), inserted provi- sion setting the maximum installation capacity for ex- emptions under subsec. (a) at 40 megawatts in the case of a facility constructed, operated, and maintained by an agency or instrumentality of a State or local gov- ernment solely for water supply for municipal pur- poses. Subsec. (c). Pub. L. 99–495, § 7(b), which directed the insertion of ‘‘National Marine Fisheries Service’’ after ‘‘the Fish and Wildlife Service’’ in both places such term appears, was executed by inserting ‘‘National Ma- rine Fisheries Service’’ after ‘‘the United States Fish and Wildlife Service’’ and ‘‘the Fish and Wildlife Serv- ice’’, as the probable intent of Congress. Subsec. (e). Pub. L. 99–495, § 7(c), added subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–495 effective with respect to each license, permit, or exemption issued under this chapter after Oct. 16, 1986, see section 18 of Pub. L. 99–495, set out as a note under section 797 of this title. APPLICATION OF SUBSECTION (c) Pub. L. 99–495, § 8(c), Oct. 16, 1986, 100 Stat. 1251, pro- vided that: ‘‘Nothing in this Act [see Short Title of 1986 Amendment note set out under section 791a of this title] shall affect the application of section 30(c) of the Federal Power Act [16 U.S.C. 823a(c)] to any exemption issued after the enactment of this Act [Oct. 16, 1986].’’ § 823b. Enforcement (a) Monitoring and investigation The Commission shall monitor and investigate compliance with each license and permit issued under this subchapter and with each exemption granted from any requirement of this sub- chapter. The Commission shall conduct such in- vestigations as may be necessary and proper in accordance with this chapter. After notice and opportunity for public hearing, the Commission may issue such orders as necessary to require compliance with the terms and conditions of li- censes and permits issued under this subchapter and with the terms and conditions of exemp- tions granted from any requirement of this sub- chapter. (b) Revocation orders After notice and opportunity for an evi- dentiary hearing, the Commission may also issue an order revoking any license issued under this subchapter or any exemption granted from any requirement of this subchapter where any licensee or exemptee is found by the Commis- sion: (1) to have knowingly violated a final order issued under subsection (a) after completion of judicial review (or the opportunity for judicial review); and (2) to have been given reasonable time to comply fully with such order prior to com- mencing any revocation proceeding. In any such proceeding, the order issued under subsection (a) shall be subject to de novo review Page 1392 TITLE 16—CONSERVATION § 823b 1 So in original. Probably should not be capitalized. by the Commission. No order shall be issued under this subsection until after the Commis- sion has taken into consideration the nature and seriousness of the violation and the efforts of the licensee to remedy the violation. (c) Civil penalty Any licensee, permittee, or exemptee who vio- lates or fails or refuses to comply with any rule or regulation under this subchapter, any term, or condition of a license, permit, or exemption under this subchapter, or any order issued under subsection (a) shall be subject to a civil penalty in an amount not to exceed $10,000 for each day that such violation or failure or refusal con- tinues. Such penalty shall be assessed by the Commission after notice and opportunity for public hearing. In determining the amount of a proposed penalty, the Commission shall take into consideration the nature and seriousness of the violation, failure, or refusal and the efforts of the licensee to remedy the violation, failure, or refusal in a timely manner. No civil penalty shall be assessed where revocation is ordered. (d) Assessment (1) Before issuing an order assessing a civil penalty against any person under this section, the Commission shall provide to such person no- tice of the proposed penalty. Such notice shall, except in the case of a violation of a final order issued under subsection (a), inform such person of his opportunity to elect in writing within 30 days after the date of receipt of such notice to have the procedures of paragraph (3) (in lieu of those of paragraph (2)) apply with respect to such assessment. (2)(A) In the case of the violation of a final order issued under subsection (a), or unless an election is made within 30 calendar days after receipt of notice under paragraph (1) to have paragraph (3) apply with respect to such pen- alty, the Commission shall assess the penalty, by order, after a determination of violation has been made on the record after an opportunity for an agency hearing pursuant to section 554 of title 5 before an administrative law judge ap- pointed under section 3105 of such title 5. Such assessment order shall include the administra- tive law judge’s findings and the basis for such assessment. (B) Any person against whom a penalty is as- sessed under this paragraph may, within 60 cal- endar days after the date of the order of the Commission assessing such penalty, institute an action in the United States court of appeals for the appropriate judicial circuit for judicial re- view of such order in accordance with chapter 7 of title 5. The court shall have jurisdiction to enter a judgment affirming, modifying, or set- ting aside in whole or in Part,1 the order of the Commission, or the court may remand the pro- ceeding to the Commission for such further ac- tion as the court may direct. (3)(A) In the case of any civil penalty with re- spect to which the procedures of this paragraph have been elected, the Commission shall promptly assess such penalty, by order, after the date of the receipt of the notice under paragraph (1) of the proposed penalty. (B) If the civil penalty has not been paid with- in 60 calendar days after the assessment order has been made under subparagraph (A), the Commission shall institute an action in the ap- propriate district court of the United States for an order affirming the assessment of the civil penalty. The court shall have authority to re- view de novo the law and the facts involved, and shall have jurisdiction to enter a judgment en- forcing, modifying, and enforcing as so modified, or setting aside in whole or in Part,1 such as- sessment. (C) Any election to have this paragraph apply may not be revoked except with the consent of the Commission. (4) The Commission may compromise, modify, or remit, with or without conditions, any civil penalty which may be imposed under this sub- section, taking into consideration the nature and seriousness of the violation and the efforts of the licensee to remedy the violation in a timely manner at any time prior to a final deci- sion by the court of appeals under paragraph (2) or by the district court under paragraph (3). (5) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under paragraph (2), or after the appropriate district court has entered final judgment in favor of the Commission under paragraph (3), the Commission shall institute an action to recover the amount of such penalty in any appropriate district court of the United States. In such action, the validity and appro- priateness of such final assessment order or judgment shall not be subject to review. (6)(A) Notwithstanding the provisions of title 28 or of this chapter, the Commission may be represented by the general counsel of the Com- mission (or any attorney or attorneys within the Commission designated by the Chairman) who shall supervise, conduct, and argue any civil litigation to which paragraph (3) of this subsection applies (including any related collec- tion action under paragraph (5)) in a court of the United States or in any other court, except the Supreme Court. However, the Commission or the general counsel shall consult with the Attorney General concerning such litigation, and the At- torney General shall provide, on request, such assistance in the conduct of such litigation as may be appropriate. (B) The Commission shall be represented by the Attorney General, or the Solicitor General, as appropriate, in actions under this subsection, except to the extent provided in subparagraph (A) of this paragraph. (June 10, 1920, ch. 285, pt. I, § 31, as added Pub. L. 99–495, § 12, Oct. 16, 1986, 100 Stat. 1255.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to licenses, permits, and exemp- tions without regard to when issued, see section 18 of Pub. L. 99–495, set out as an Effective Date of 1986 Amendment note under section 797 of this title. Page 1393 TITLE 16—CONSERVATION § 823c § 823c. Alaska State jurisdiction over small hy- droelectric projects (a) Discontinuance of regulation by the Commis- sion Notwithstanding sections 797(e) and 817 of this title, the Commission shall discontinue exer- cising licensing and regulatory authority under this subchapter over qualifying project works in the State of Alaska, effective on the date on which the Commission certifies that the State of Alaska has in place a regulatory program for water-power development that— (1) protects the public interest, the purposes listed in paragraph (2), and the environment to the same extent provided by licensing and reg- ulation by the Commission under this sub- chapter and other applicable Federal laws, in- cluding the Endangered Species Act (16 U.S.C. 1531 et seq.) and the Fish and Wildlife Coordi- nation Act (16 U.S.C. 661 et seq.); (2) gives equal consideration to the purposes of— (A) energy conservation; (B) the protection, mitigation of damage to, and enhancement of, fish and wildlife (in- cluding related spawning grounds and habi- tat); (C) the protection of recreational opportu- nities; (D) the preservation of other aspects of en- vironmental quality; (E) the interests of Alaska Natives; and (F) other beneficial public uses, including irrigation, flood control, water supply, and navigation; and (3) requires, as a condition of a license for any project works— (A) the construction, maintenance, and op- eration by a licensee at its own expense of such lights and signals as may be directed by the Secretary of the Department in which the Coast Guard is operating, and such fishways as may be prescribed by the Sec- retary of the Interior or the Secretary of Commerce, as appropriate; (B) the operation of any navigation facili- ties which may be constructed as part of any project to be controlled at all times by such reasonable rules and regulations as may be made by the Secretary of the Army; and (C) except as provided in subsection (j), conditions for the protection, mitigation, and enhancement of fish and wildlife based on recommendations received pursuant to the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) from the National Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish and wildlife agencies. (b) Definition of ‘‘qualifying project works’’ For purposes of this section, the term ‘‘quali- fying project works’’ means project works— (1) that are not part of a project licensed under this part or exempted from licensing under this subchapter or section 2705 of this title prior to November 9, 2000; (2) for which a preliminary permit, a license application, or an application for an exemp- tion from licensing has not been accepted for filing by the Commission prior to November 9, 2000 (unless such application is withdrawn at the election of the applicant); (3) that are part of a project that has a power production capacity of 5,000 kilowatts or less; (4) that are located entirely within the boundaries of the State of Alaska; and (5) that are not located in whole or in part on any Indian reservation, a conservation sys- tem unit (as defined in section 3102(4) of this title), or segment of a river designated for study for addition to the Wild and Scenic Riv- ers System. (c) Election of State licensing In the case of nonqualifying project works that would be a qualifying project works but for the fact that the project has been licensed (or exempted from licensing) by the Commission prior to November 9, 2000, the licensee of such project may in its discretion elect to make the project subject to licensing and regulation by the State of Alaska under this section. (d) Project works on Federal lands With respect to projects located in whole or in part on a reservation, a conservation system unit, or the public lands, a State license or ex- emption from licensing shall be subject to— (1) the approval of the Secretary having ju- risdiction over such lands; and (2) such conditions as the Secretary may prescribe. (e) Consultation with affected agencies The Commission shall consult with the Sec- retary of the Interior, the Secretary of Agri- culture, and the Secretary of Commerce before certifying the State of Alaska’s regulatory pro- gram. (f) Application of Federal laws Nothing in this section shall preempt the ap- plication of Federal environmental, natural re- sources, or cultural resources protection laws according to their terms. (g) Oversight by the Commission The State of Alaska shall notify the Commis- sion not later than 30 days after making any sig- nificant modification to its regulatory program. The Commission shall periodically review the State’s program to ensure compliance with the provisions of this section. (h) Resumption of Commission authority Notwithstanding subsection (a), the Commis- sion shall reassert its licensing and regulatory authority under this subchapter if the Commis- sion finds that the State of Alaska has not com- plied with one or more of the requirements of this section. (i) Determination by the Commission (1) Upon application by the Governor of the State of Alaska, the Commission shall within 30 days commence a review of the State of Alaska’s regulatory program for water-power develop- ment to determine whether it complies with the requirements of subsection (a). (2) The Commission’s review required by para- graph (1) shall be completed within 1 year of ini-