16 Usc 791-825

Page 1239

TITLE 16—CONSERVATION

Bureau of Fisheries and Bureau of Biological Survey
with their respective functions into one agency in Department of the Interior to be known as Fish and Wildlife Service, and provided that functions of the consolidated agency shall be administered under direction and
supervision of Secretary of the Interior.
Reorg. Plan No. II of 1930, set out in the Appendix to
Title 5, transferred Bureau of Fisheries in Department
of Commerce and its functions to Department of the Interior, to be administered under direction and supervision of Secretary of the Interior.

CHAPTER 12—FEDERAL REGULATION AND
DEVELOPMENT OF POWER
SUBCHAPTER I—REGULATION OF THE DEVELOPMENT OF WATER POWER AND RESOURCES
Sec.

791.
791a.
792.

Repealed.
Short title.
Federal Power Commission; creation; number; appointment; term; qualifications; vacancies; quorum; chairman; salary; place of
holding sessions.
793.
Appointment of officers and employees of
Commission; duties, and salaries; detail of
officers and employees from other departments; expenditures authorized.
793a to 795. Repealed or Omitted.
796.
Definitions.
797.
General powers of Commission.
797a.
Congressional authorization for permits, licenses, leases, or authorizations for dams,
conduits, reservoirs, etc., within national
parks or monuments.
797b.
Duty to keep Congress fully and currently informed.
797c.
Dams in National Park System units.
797d.
Third party contracting by FERC.
798.
Purpose and scope of preliminary permits;
transfer and cancellation.
799.
License; duration, conditions, revocation, alteration, or surrender.
800.
Issuance of preliminary permits or licenses.
801.
Transfer of license; obligations of transferee.
802.
Information to accompany application for license; landowner notification.
803.
Conditions of license generally.
804.
Project works affecting navigable waters; requirements insertable in license.
805.
Participation by Government in costs of
locks, etc.
806.
Time limit for construction of project works;
extension of time; termination or revocation of licenses for delay.
807.
Right of Government to take over project
works.
808.
New licenses and renewals.
809.
Temporary use by Government of project
works for national safety; compensation for
use.
810.
Disposition of charges arising from licenses.
811.
Operation of navigation facilities; rules and
regulations; penalties.
812.
Public-service licensee; regulations by State
or by commission as to service, rates,
charges, etc.
813.
Power entering into interstate commerce;
regulation of rates, charges, etc.
814.
Exercise by licensee of power of eminent domain.
815.
Contract to furnish power extending beyond
period of license; obligations of new licensee.
816.
Preservation of rights vested prior to June 10,
1920.
817.
Projects not affecting navigable waters; necessity for Federal license, permit or rightof-way; unauthorized activities.

§ 785

Sec.

818.

Public lands included in project; reservation
of lands from entry.
819.
Repealed.
820.
Proceedings for revocation of license or to
prevent violations of license.
821.
State laws and water rights unaffected.
822.
Reservation of right to alter or repeal chapter.
823.
Repeal of inconsistent laws.
823a.
Conduit hydroelectric facilities.
823b.
Enforcement.
823c.
Alaska State jurisdiction over small hydroelectric projects.
823d.
Alternative conditions and prescriptions.
SUBCHAPTER
II—REGULATION
OF
ELECTRIC
UTILITY COMPANIES ENGAGED IN INTERSTATE
COMMERCE
824.

Declaration of policy; application of subchapter.
824a.
Interconnection and coordination of facilities; emergencies; transmission to foreign
countries.
824a–1.
Pooling.
824a–2.
Reliability.
824a–3.
Cogeneration and small power production.
824a–4.
Seasonal diversity electricity exchange.
824b.
Disposition of property; consolidations; purchase of securities.
824c.
Issuance of securities; assumption of liabilities.
824d.
Rates and charges; schedules; suspension of
new rates; automatic adjustment clauses.
824e.
Power of Commission to fix rates and
charges; determination of cost of production or transmission.
824f.
Ordering furnishing of adequate service.
824g.
Ascertainment of cost of property and depreciation.
824h.
References to State boards by Commission.
824i.
Interconnection authority.
824j.
Wheeling authority.
824j–1.
Open access by unregulated transmitting
utilities.
824k.
Orders requiring interconnection or wheeling.
824l.
Information requirements.
824m.
Sales by exempt wholesale generators.
824n.
Repealed.
824o.
Electric reliability.
824o–1.
Critical electric infrastructure security.
824p.
Siting of interstate electric transmission facilities.
824q.
Native load service obligation.
824r.
Protection of transmission contracts in the
Pacific Northwest.
824s.
Transmission infrastructure investment.
824t.
Electricity market transparency rules.
824u.
Prohibition on filing false information.
824v.
Prohibition of energy market manipulation.
824w.
Joint boards on economic dispatch.
SUBCHAPTER III—LICENSEES AND PUBLIC UTILITIES;
PROCEDURAL
AND
ADMINISTRATIVE
PROVISIONS
825.
825a.
825b.
825c.
825d.
825e.
825f.
825g.
825h.
825i.

Accounts and records.
Rates of depreciation; notice to State authorities before fixing.
Requirements applicable to agencies of
United States.
Periodic and special reports; obstructing filing reports or keeping accounts, etc.
Officials dealing in securities.
Complaints.
Investigations by Commission.
Hearings; rules of procedure.
Administrative powers of Commission; rules,
regulations, and orders.
Appointment of officers and employees; compensation.

§ 791

TITLE 16—CONSERVATION

Sec.

825j.
825k.
825l.
825m.
825n.
825o.
825o–1.
825p.
825q.
825q–1.
825r.
825s.

825s–1.

825s–2.

825s–3.

825s–4.
825s–5.
825s–6.

825s–7.

825t.
825u.

Investigations relating to electric energy; reports to Congress.
Publication and sale of reports.
Review of orders.
Enforcement provisions.
Forfeiture for violations; recovery; applicability.
Penalties for violations; applicability of section.
Enforcement of certain provisions.
Jurisdiction of offenses; enforcement of liabilities and duties.
Repealed.
Office of Public Participation.
Separability.
Sale of electric power from reservoir projects;
rate schedules; preference in sale; construction of transmission lines; disposition of
moneys.
Southwestern area sale and transmission of
electric power; disposition of receipts; creation of continuing fund; use of fund.
Southeastern area sale and transmission of
electric power; disposition of receipts; creation of continuing fund; use of fund.
Southwestern area sale at uniform systemwide rates of electric power over transmission lines constructed with appropriated
funds or used under contractual arrangements.
Southwestern Power Administration; deposit
and availability of advance payments.
Southeastern Power Administration; deposit
and availability of advance payments.
Southeastern Power Administration; deposit
and availability of discretionary offsetting
collections.
Southwestern Power Administration; deposit
and availability of discretionary offsetting
collections.
Utilization of power revenues.
Interest rate on power bonds held by Administrator of General Services.

SUBCHAPTER IV—STATE AND MUNICIPAL WATER
CONSERVATION FACILITIES
828.

828a.
828b.

828c.

Facilitation of development and construction
of water conservation facilities; exemption
from certain Federal requirements.
Definitions.
Exemption from formula, books and records,
and project cost statement requirements;
annual charges.
Applicability of this subchapter.

Page 1240

SUBCHAPTER I—REGULATION OF THE DEVELOPMENT OF WATER POWER AND RESOURCES
CODIFICATION
Section 212 of act of Aug. 26, 1935, ch. 687, 49 Stat. 847,
provided that sections 1 to 29 of the Federal Water
Power Act, as amended (sections 792, 793, 794 to 797, 798
to 818, 819, and 820 to 823 of this title) shall constitute
part I of the act. Said section 212 also repealed sections
25 and 30 of the act (sections 819, 791 of this title). It
also contained a proviso as follows: ‘‘That nothing in
that Act, as amended, shall be construed to repeal or
amend the provisions of the amendment to the Federal
Water Power Act approved March 3, 1921 (41 Stat. 1353
[section 797a of this title]), or the provisions of any
other Act relating to national parks and national
monuments.’’

§ 791. Repealed. Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847
Section, act June 10, 1920, ch. 285, § 30, 41 Stat. 1077,
designated the act as The Federal Water Power Act.

§ 791a. Short title
This chapter may be cited as the ‘‘Federal
Power Act’’.
(June 10, 1920, ch. 285, pt. III, § 321, formerly § 320,
as added Aug. 26, 1935, ch. 687, title II, § 213, 49
Stat. 863; renumbered Pub. L. 95–617, title II,
§ 212, Nov. 9, 1978, 92 Stat. 3148.)
CODIFICATION
Section was enacted as part of part III of the Federal
Power Act, and not as part of part I of that Act which
comprises this subchapter.
SHORT TITLE OF 2013 AMENDMENT
Pub. L. 113–23, § 1(a), Aug. 9, 2013, 127 Stat. 493, provided that: ‘‘This Act [amending sections 798, 823a, and
2705 of this title and enacting provisions set out as
notes preceding section 791 and under section 797 of this
title] may be cited as the ‘Hydropower Regulatory Efficiency Act of 2013’.’’
SHORT TITLE OF 1990 AMENDMENT
Pub. L. 101–575, § 1, Nov. 15, 1990, 104 Stat. 2834, provided that: ‘‘This Act [enacting section 2243 of Title 42,
The Public Health and Welfare, amending sections 796
and 824a–3 of this title and sections 2014, 2061, 2201, and
2284 of Title 42, and enacting provisions set out as a
note under section 796 of this title] may be cited as the
‘Solar, Wind, Waste, and Geothermal Power Production
Incentives Act of 1990’.’’

FINDINGS

SHORT TITLE OF 1988 AMENDMENT

Pub. L. 113–23, § 2, Aug. 9, 2013, 127 Stat. 493, provided
that: ‘‘Congress finds that—
‘‘(1) the hydropower industry currently employs approximately 300,000 workers across the United States;
‘‘(2) hydropower is the largest source of clean, renewable electricity in the United States;
‘‘(3) as of the date of enactment of this Act [Aug. 9,
2013], hydropower resources, including pumped storage facilities, provide—
‘‘(A) nearly 7 percent of the electricity generated
in the United States; and
‘‘(B) approximately 100,000 megawatts of electric
capacity in the United States;
‘‘(4) only 3 percent of the 80,000 dams in the United
States generate electricity, so there is substantial
potential for adding hydropower generation to nonpowered dams; and
‘‘(5) according to one study, by utilizing currently
untapped resources, the United States could add approximately 60,000 megawatts of new hydropower capacity by 2025, which could create 700,000 new jobs
over the next 13 years.’’

Pub. L. 100–473, § 1, Oct. 6, 1988, 102 Stat. 2299, provided
that: ‘‘This Act [amending section 824e of this title and
enacting provisions set out as notes under section 824e
of this title] may be cited as the ‘Regulatory Fairness
Act’.’’
SHORT TITLE OF 1986 AMENDMENT
Pub. L. 99–495, § 1(a), Oct. 16, 1986, 100 Stat. 1243, provided that: ‘‘This Act [enacting sections 797b and 823b
of this title, amending sections 797, 800, 802, 803, 807, 808,
817, 823a, 824a–3, and 824j of this title, and enacting provisions set out as notes under sections 797, 803, 823a,
824a–3, and 825h of this title] may be cited as the ‘Electric Consumers Protection Act of 1986’.’’

§ 792. Federal Power Commission; creation; number; appointment; term; qualifications; vacancies; quorum; chairman; salary; place of
holding sessions
A commission is created and established to be
known as the Federal Power Commission (here-

Page 1241

§ 792

TITLE 16—CONSERVATION

inafter referred to as the ‘‘commission’’) which
shall be composed of five commissioners who
shall be appointed by the President, by and with
the advice and consent of the Senate, one of
whom shall be designated by the President as
chairman and shall be the principal executive
officer of the commission. Each chairman, when
so designated, shall act as such until the expiration of his term of office.
The commissioners first appointed under this
section, as amended, shall continue in office for
terms of one, two, three, four, and five years, respectively, from June 23, 1930, the term of each
to be designated by the President at the time of
nomination. Their successors shall be appointed
each for a term of five years from the date of the
expiration of the term for which his predecessor
was appointed and until his successor is appointed and has qualified, except that he shall
not so continue to serve beyond the expiration
of the next session of Congress subsequent to the
expiration of said fixed term of office, and except that any person appointed to fill a vacancy
occurring prior to the expiration of the term for
which his predecessor was appointed shall be appointed only for the unexpired term. Not more
than three of the commissioners shall be appointed from the same political party. No person
in the employ of or holding any official relation
to any licensee or to any person, firm, association, or corporation engaged in the generation,
transmission, distribution, or sale of power, or
owning stock or bonds thereof, or who is in any
manner pecuniarily interested therein, shall
enter upon the duties of or hold the office of
commissioners. Said commissioners shall not
engage in any other business, vocation, or employment. No vacancy in the commission shall
impair the right of the remaining commissioners to exercise all the powers of the commission. Three members of the commission shall
constitute a quorum for the transaction of business, and the commission shall have an official
seal of which judicial notice shall be taken. The
commission shall annually elect a vice chairman to act in case of the absence or disability
of the chairman or in case of a vacancy in the
office of chairman.
Each commissioner shall receive necessary
traveling and subsistence expenses, or per diem
allowance in lieu thereof, within the limitation
prescribed by law, while away from the seat of
government upon official business.
The principal office of the commission shall be
in the District of Columbia, where its general
sessions shall be held; but whenever the convenience of the public or of the parties may be promoted or delay or expense prevented thereby,
the commission may hold special sessions in any
part of the United States.
(June 10, 1920, ch. 285, pt. I, § 1, 41 Stat. 1063;
June 23, 1930, ch. 572, § 1, 46 Stat. 797; renumbered
pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat.
847; 1950 Reorg. Plan No. 9, § 3, eff. May 24, 1950,
15 F.R. 3175, 64 Stat. 1265; Pub. L. 86–619, § 1, July
12, 1960, 74 Stat. 407.)
CODIFICATION
Provisions which prescribed the compensation of
commissioners were omitted as obsolete. Compensation
of the Chairman and members of the Commission was

prescribed by sections 5314 and 5315 of Title 5, Government Organization and Employees, prior to termination of the Commission. See Termination of Federal
Power Commission; Transfer of Functions note below.
AMENDMENTS
1960—Pub. L. 86–619 provided for continuation in office of a commissioner upon termination of his term
until a successor is appointed and has qualified, not beyond expiration of next session of Congress subsequent
to the expiration of said fixed term of office.
1930—Act June 23, 1938, amended section generally.
Prior to amendment section read as follows: ‘‘A commission is hereby created and established, to be known
as the Federal Power Commission (hereinafter referred
to as the commission), which shall be composed of the
Secretary of War, the Secretary of the Interior, and the
Secretary of Agriculture. Two members of the commission shall constitute a quorum for the transaction of
business, and the commission shall have an official
seal, which shall be judicially noticed. The President
shall designate the chairman of the commission.’’
REPEALS
Act Oct. 15, 1949, ch. 695, § 5(a), 63 Stat. 880, formerly
cited as a credit to this section, was repealed by Pub.
L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 655.
TERMINATION OF FEDERAL POWER COMMISSION;
TRANSFER OF FUNCTIONS
Federal Power Commission terminated and its functions, personnel, property, funds, etc., transferred to
Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by
sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title
42, The Public Health and Welfare.
Executive and administrative functions of Federal
Power Commission, with certain reservations, transferred to Chairman of such Commission, with authority
vested in him to authorize their performance by any officer, employee, or administrative unit under his jurisdiction, by Reorg. Plan No. 9 of 1950, set out below.
REORGANIZATION PLAN NO. 9 OF 1950
Eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265
Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, March 13, 1950, pursuant to the provisions of
the Reorganization Act of 1949, approved June 20, 1949
[see 5 U.S.C. 901 et seq.].
FEDERAL POWER COMMISSION
SECTION 1. TRANSFER OF FUNCTIONS TO THE CHAIRMAN
(a) Subject to the provisions of subsection (b) of this
section, there are hereby transferred from the Federal
Power Commission, hereinafter referred to as the Commission, to the Chairman of the Commission, hereinafter referred to as the Chairman, the executive and administrative functions of the Commission, including
functions of the Commission with respect to (1) the appointment and supervision of personnel employed
under the Commission, (2) the distribution of business
among such personnel and among administrative units
of the Commission, and (3) the use and expenditure of
funds.
(b)(1) In carrying out any of his functions under the
provisions of this section the Chairman shall be governed by general policies of the Commission and by
such regulatory decisions, findings, and determinations
as the Commission may by law be authorized to make.
(2) The appointment by the Chairman of the heads of
major administrative units under the Commission shall
be subject to the approval of the Commission.
(3) Personnel employed regularly and full time in the
immediate offices of Commissioners other than the
Chairman shall not be affected by the provisions of this
reorganization plan.

§ 793

TITLE 16—CONSERVATION

(4) There are hereby reserved to the Commission its
functions with respect to revising budget estimates and
with respect to determining upon the distribution of
appropriated funds according to major programs and
purposes.
SEC. 2. PERFORMANCE OF TRANSFERRED FUNCTIONS
The Chairman may from time to time make such provisions as he shall deem appropriate authorizing the
performance by any officer, employee, or administrative unit under his jurisdiction of any functions transferred to the Chairman by the provisions of this reorganization plan.
SEC. 3. DESIGNATION OF CHAIRMAN
The functions of the Commission with respect to
choosing a chairman from among the commissioners
composing the Commission are hereby transferred to
the President.

§ 793. Appointment of officers and employees of
Commission; duties, and salaries; detail of officers and employees from other departments; expenditures authorized
The commission shall have authority to appoint, prescribe the duties, and fix the salaries
of, a secretary, a chief engineer, a general counsel, a solicitor, and a chief accountant; and may,
subject to the civil service laws, appoint such
other officers and employees as are necessary in
the execution of its functions and fix their salaries in accordance with chapter 51 and subchapter III of chapter 53 of title 5. The commission may request the President to detail an officer or officers from the Corps of Engineers, or
other branches of the United States Army, to
serve the commission as engineer officer or officers, or in any other capacity, in field work outside the seat of government, their duties to be
prescribed by the commission; and such detail is
authorized. The President may also, at the request of the commission, detail, assign, or transfer to the commission, engineers in or under the
Departments of the Interior or Agriculture for
field work outside the seat of government under
the direction of the commission.
The commission may make such expenditures
(including expenditures for rent and personal
services at the seat of government and elsewhere, for law books, periodicals, and books of
reference, and for printing and binding) as are
necessary to execute its functions. Expenditures
by the commission shall be allowed and paid
upon the presentation of itemized vouchers
therefor, approved by the chairman of the commission or by such other member or officer as
may be authorized by the commission for that
purpose subject to applicable regulations under
chapters 1 to 11 of title 40 and division C (except
sections 3302, 3306(f), 3307(e), 3501(b), 3509, 3906,
4104, 4710, and 4711) of subtitle I of title 41.
(June 10, 1920, ch. 285, pt. I, § 2, 41 Stat. 1063;
June 23, 1930, ch. 572, § 1, 46 Stat. 798; renumbered
pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat.
847; Oct. 28, 1949, ch. 782, title XI, § 1106(a), 63
Stat. 972; Oct. 31, 1951, ch. 654, § 2(14), 65 Stat.
707.)
CODIFICATION
All appointments referred to in the first sentence are
subject to the civil service laws unless specifically excepted by those laws or by laws enacted subsequent to

Page 1242

Executive Order 8743, Apr. 23, 1941, issued by the President pursuant to the Act of Nov. 26, 1940, ch. 919, title
I, § 1, 54 Stat. 1211, which covered most excepted positions into the classified (competitive) civil service. The
Order is set out as a note under section 3301 of Title 5,
Government Organization and Employees.
As to the compensation of such personnel, sections
1202 and 1204 of the Classification Act of 1949, 63 Stat.
972, 973, repealed the Classification Act of 1923 and all
other laws or parts of laws inconsistent with the 1949
Act. The Classification Act of 1949 was repealed Pub. L.
89–554, Sept. 6, 1966, § 8(a), 80 Stat. 632, and reenacted as
chapter 51 and subchapter III of chapter 53 of Title 5.
Section 5102 of Title 5 contains the applicability provisions of the 1949 Act, and section 5103 of Title 5 authorizes the Office of Personnel Management to determine
the applicability to specific positions and employees.
In text, ‘‘chapter 51 and subchapter III of chapter 53
of title 5’’ substituted for ‘‘the Classification Act of
1949, as amended’’ on authority of Pub. L. 89–554, § 7(b),
Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5, Government Organization and Employees.
In text, ‘‘chapters 1 to 11 of title 40 and division C (except sections 3302, 3306(f), 3307(e), 3501(b), 3509, 3906, 4104,
4710, and 4711) of subtitle I of title 41’’ substituted for
‘‘the Federal Property and Administrative Services Act
of 1949, as amended’’ on authority of Pub. L. 107–217,
§ 5(c), Aug. 21, 2002, 116 Stat. 1303, which Act enacted
Title 40, Public Buildings, Property, and Works, and
Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which
Act enacted Title 41, Public Contracts.
AMENDMENTS
1951—Act Oct. 31, 1951, inserted reference to applicable regulations of the Federal Property and Administrative Services Act of 1949, as amended, at end of section.
1949—Act Oct. 28, 1949, substituted ‘‘Classification Act
of 1949’’ for ‘‘Classification Act of 1923’’.
1930—Act June 23, 1930, substituted provisions permitting the commission to appoint, prescribe the duties,
and fix the salaries of, a secretary, a chief engineer, a
general counsel, a solicitor, and a chief accountant, and
to appoint such other officers and employees as are
necessary in the execution of its functions and fix their
salaries, and authorizing the detail of officers from the
Corps of Engineers, or other branches of the United
States Army, to serve the commission as engineer officers, or in any other capacity, in field work outside the
seat of government, and the detail, assignment or
transfer to the commission of engineers in or under the
Departments of the Interior or Agriculture for work
outside the seat of government for provisions which required the commission to appoint an executive secretary at a salary of $5,000 per year and prescribe his
duties, and which permitted the detail of an officer
from the United States Engineer Corps to serve the
commission as engineer officer; and inserted provisions
permitting the commission to make certain expenditures necessary in the execution of its functions, and
allowing the payment of expenditures upon the presentation of itemized vouchers approved by authorized
persons.
REPEALS
Act Oct. 28, 1949, ch. 782, cited as a credit to this section, was repealed (subject to a savings clause) by Pub.
L. 89–554, Sept. 6, 1966, § 8, 80 Stat. 632, 655.

§ 793a. Repealed. Pub. L. 87–367, title I, § 103(5),
Oct. 4, 1961, 75 Stat. 787
Section, Pub. L. 86–626, title I, § 101, July 12, 1960, 74
Stat. 430, authorized the Federal Power Commission to
place four additional positions in grade 18, one in grade
17 and one in grade 16 of the General Schedule of the
Classification Act of 1949.

Page 1243

TITLE 16—CONSERVATION

§§ 794, 795. Omitted
CODIFICATION
Section 794, which required the work of the commission to be performed by and through the Departments
of War, Interior, and Agriculture and their personnel,
consisted of the second paragraph of section 2 of act
June 10, 1920, ch. 285, 41 Stat. 1063, which was omitted
in the revision of said section 2 by act June 23, 1930, ch.
572, § 1, 46 Stat. 798. The first and third paragraphs of
said section 2 were formerly classified to sections 793
and 795 of this title.
Section 795, which related to expenses of the commission generally, consisted of the third paragraph of section 2 of act June 10, 1920, ch. 285, 41 Stat. 1063. Such
section 2 was amended generally by act June 23, 1930,
ch. 572, § 1, 46 Stat. 798, and is classified to section 793
of this title. The first and second paragraphs of said
section 2 were formerly classified to sections 793 and
794 of this title.

§ 796. Definitions
The words defined in this section shall have
the following meanings for purposes of this
chapter, to wit:
(1) ‘‘public lands’’ means such lands and interest in lands owned by the United States as
are subject to private appropriation and disposal under public land laws. It shall not include ‘‘reservations’’, as hereinafter defined;
(2) ‘‘reservations’’ means national forests,
tribal lands embraced within Indian reservations, military reservations, and other lands
and interests in lands owned by the United
States, and withdrawn, reserved, or withheld
from private appropriation and disposal under
the public land laws; also lands and interests
in lands acquired and held for any public purposes; but shall not include national monuments or national parks;
(3) ‘‘corporation’’ means any corporation,
joint-stock company, partnership, association,
business trust, organized group of persons,
whether incorporated or not, or a receiver or
receivers, trustee or trustees of any of the
foregoing. It shall not include ‘‘municipalities’’ as hereinafter defined;
(4) ‘‘person’’ means an individual or a corporation;
(5) ‘‘licensee’’ means any person, State, or
municipality licensed under the provisions of
section 797 of this title, and any assignee or
successor in interest thereof;
(6) ‘‘State’’ means a State admitted to the
Union, the District of Columbia, and any organized Territory of the United States;
(7) ‘‘municipality’’ means a city, county, irrigation district, drainage district, or other
political subdivision or agency of a State competent under the laws thereof to carry on the
business of developing, transmitting, utilizing,
or distributing power;
(8) ‘‘navigable waters’’ means those parts of
streams or other bodies of water over which
Congress has jurisdiction under its authority
to regulate commerce with foreign nations
and among the several States, and which either in their natural or improved condition
notwithstanding interruptions between the
navigable parts of such streams or waters by
falls, shallows, or rapids compelling land carriage, are used or suitable for use for the
transportation of persons or property in inter-

§ 796

state or foreign commerce, including therein
all such interrupting falls, shallows, or rapids,
together with such other parts of streams as
shall have been authorized by Congress for improvement by the United States or shall have
been recommended to Congress for such improvement after investigation under its authority;
(9) ‘‘municipal purposes’’ means and includes
all purposes within municipal powers as defined by the constitution or laws of the State
or by the charter of the municipality;
(10) ‘‘Government dam’’ means a dam or
other work constructed or owned by the
United States for Government purposes with
or without contribution from others;
(11) ‘‘project’’ means complete unit of improvement or development, consisting of a
power house, all water conduits, all dams and
appurtenant works and structures (including
navigation structures) which are a part of said
unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected
primary transmission system, all miscellaneous structures used and useful in connection
with said unit or any part thereof, and all
water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and
occupancy of which are necessary or appropriate in the maintenance and operation of
such unit;
(12) ‘‘project works’’ means the physical
structures of a project;
(13) ‘‘net investment’’ in a project means the
actual legitimate original cost thereof as defined and interpreted in the ‘‘classification of
investment in road and equipment of steam
roads, issue of 1914, Interstate Commerce Commission’’, plus similar costs of additions thereto and betterments thereof, minus the sum of
the following items properly allocated thereto,
if and to the extent that such items have been
accumulated during the period of the license
from earnings in excess of a fair return on
such investment: (a) Unappropriated surplus,
(b) aggregate credit balances of current depreciation accounts, and (c) aggregate appropriations of surplus or income held in amortization, sinking fund, or similar reserves, or expended for additions or betterments or used
for the purposes for which such reserves were
created. The term ‘‘cost’’ shall include, insofar
as applicable, the elements thereof prescribed
in said classification, but shall not include expenditures from funds obtained through donations by States, municipalities, individuals, or
others, and said classification of investment of
the Interstate Commerce Commission shall insofar as applicable be published and promulgated as a part of the rules and regulations of
the Commission;
(14) ‘‘Commission’’ and ‘‘Commissioner’’
means the Federal Power Commission, and a
member thereof, respectively;
(15) ‘‘State commission’’ means the regulatory body of the State or municipality having jurisdiction to regulate rates and charges
for the sale of electric energy to consumers
within the State or municipality;

§ 796

TITLE 16—CONSERVATION

(16) ‘‘security’’ means any note, stock, treasury stock, bond, debenture, or other evidence
of interest in or indebtedness of a corporation
subject to the provisions of this chapter;
(17)(A) ‘‘small power production facility’’
means a facility which is an eligible solar,
wind, waste, or geothermal facility, or a facility which—
(i) produces electric energy solely by the
use, as a primary energy source, of biomass,
waste, renewable resources, geothermal resources, or any combination thereof; and
(ii) has a power production capacity which,
together with any other facilities located at
the same site (as determined by the Commission), is not greater than 80 megawatts;
(B) ‘‘primary energy source’’ means the fuel
or fuels used for the generation of electric energy, except that such term does not include,
as determined under rules prescribed by the
Commission, in consultation with the Secretary of Energy—
(i) the minimum amounts of fuel required
for ignition, startup, testing, flame stabilization, and control uses, and
(ii) the minimum amounts of fuel required
to alleviate or prevent—
(I) unanticipated equipment outages, and
(II) emergencies, directly affecting the
public health, safety, or welfare, which
would result from electric power outages;
(C) ‘‘qualifying small power production facility’’ means a small power production facility
that the Commission determines, by rule,
meets such requirements (including requirements respecting fuel use, fuel efficiency, and
reliability) as the Commission may, by rule,
prescribe;
(D) ‘‘qualifying small power producer’’
means the owner or operator of a qualifying
small power production facility;
(E) ‘‘eligible solar, wind, waste or geothermal facility’’ means a facility which produces electric energy solely by the use, as a
primary energy source, of solar energy, wind
energy, waste resources or geothermal resources; but only if—
(i) either of the following is submitted to
the Commission not later than December 31,
1994:
(I) an application for certification of the
facility as a qualifying small power production facility; or
(II) notice that the facility meets the requirements for qualification; and
(ii) construction of such facility commences not later than December 31, 1999, or,
if not, reasonable diligence is exercised toward the completion of such facility taking
into account all factors relevant to construction of the facility.1
(18)(A) ‘‘cogeneration facility’’ means a facility which produces—
(i) electric energy, and
(ii) steam or forms of useful energy (such
as heat) which are used for industrial, commercial, heating, or cooling purposes;
1 So

in original. The period probably should be a semicolon.

Page 1244

(B) ‘‘qualifying cogeneration facility’’ means
a cogeneration facility that the Commission
determines, by rule, meets such requirements
(including requirements respecting minimum
size, fuel use, and fuel efficiency) as the Commission may, by rule, prescribe;
(C) ‘‘qualifying cogenerator’’ means the
owner or operator of a qualifying cogeneration
facility;
(19) ‘‘Federal power marketing agency’’
means any agency or instrumentality of the
United States (other than the Tennessee Valley Authority) which sells electric energy;
(20) ‘‘evidentiary hearings’’ and ‘‘evidentiary
proceeding’’ mean a proceeding conducted as
provided in sections 554, 556, and 557 of title 5;
(21) ‘‘State regulatory authority’’ has the
same meaning as the term ‘‘State commission’’, except that in the case of an electric
utility with respect to which the Tennessee
Valley Authority has ratemaking authority
(as defined in section 2602 of this title), such
term means the Tennessee Valley Authority;
(22) ELECTRIC UTILITY.—(A) The term ‘‘electric utility’’ means a person or Federal or
State agency (including an entity described in
section 824(f) of this title) that sells electric
energy.1
(B) The term ‘‘electric utility’’ includes the
Tennessee Valley Authority and each Federal
power marketing administration.1
(23)
TRANSMITTING
UTILITY.—The
term
‘‘transmitting utility’’ means an entity (including an entity described in section 824(f) of
this title) that owns, operates, or controls facilities used for the transmission of electric
energy—
(A) in interstate commerce;
(B) for the sale of electric energy at wholesale.1
(24) WHOLESALE TRANSMISSION SERVICES.—
The term ‘‘wholesale transmission services’’
means the transmission of electric energy
sold, or to be sold, at wholesale in interstate
commerce.1
(25) EXEMPT WHOLESALE GENERATOR.—The
term ‘‘exempt wholesale generator’’ shall have
the meaning provided by section 79z–5a 2 of
title 15.1
(26) ELECTRIC COOPERATIVE.—The term ‘‘electric cooperative’’ means a cooperatively
owned electric utility.1
(27) RTO.—The term ‘‘Regional Transmission Organization’’ or ‘‘RTO’’ means an entity of sufficient regional scope approved by
the Commission—
(A) to exercise operational or functional
control of facilities used for the transmission of electric energy in interstate commerce; and
(B) to ensure nondiscriminatory access to
the facilities.1
(28) ISO.—The term ‘‘Independent System
Operator’’ or ‘‘ISO’’ means an entity approved
by the Commission—
(A) to exercise operational or functional
control of facilities used for the transmission of electric energy in interstate commerce; and
2 See

References in Text note below.

Page 1245

(B) to ensure nondiscriminatory access to
the facilities.3
(29) TRANSMISSION ORGANIZATION.—The term
‘‘Transmission Organization’’ means a Regional Transmission Organization, Independent System Operator, independent transmission provider, or other transmission organization finally approved by the Commission
for the operation of transmission facilities.
(June 10, 1920, ch. 285, pt. I, § 3, 41 Stat. 1063; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 201, 212, 49 Stat. 838, 847; Pub. L.
95–617, title II, § 201, Nov. 9, 1978, 92 Stat. 3134;
Pub. L. 96–294, title VI, § 643(a)(1), June 30, 1980,
94 Stat. 770; Pub. L. 101–575, § 3, Nov. 15, 1990, 104
Stat. 2834; Pub. L. 102–46, May 17, 1991, 105 Stat.
249; Pub. L. 102–486, title VII, § 726, Oct. 24, 1992,
106 Stat. 2921; Pub. L. 109–58, title XII, §§ 1253(b),
1291(b), Aug. 8, 2005, 119 Stat. 970, 984.)
REFERENCES IN TEXT
Section 79z–5a of title 15, referred to in par. (25), was
repealed by Pub. L. 109–58, title XII, § 1263, Aug. 8, 2005,
119 Stat. 974.
AMENDMENTS
2005—Par. (17)(C). Pub. L. 109–58, § 1253(b)(1), amended
subpar. (C) generally. Prior to amendment, subpar. (C)
read as follows: ‘‘ ‘qualifying small power production
facility’ means a small power production facility—
‘‘(i) which the Commission determines, by rule,
meets such requirements (including requirements respecting fuel use, fuel efficiency, and reliability) as
the Commission may, by rule, prescribe; and
‘‘(ii) which is owned by a person not primarily engaged in the generation or sale of electric power
(other than electric power solely from cogeneration
facilities or small power production facilities);’’.
Par. (18)(B). Pub. L. 109–58, § 1253(b)(2), amended subpar. (B) generally. Prior to amendment, subpar. (B)
read as follows: ‘‘ ‘qualifying cogeneration facility’
means a cogeneration facility which—
‘‘(i) the Commission determines, by rule, meets
such requirements (including requirements respecting minimum size, fuel use, and fuel efficiency) as the
Commission may, by rule, prescribe; and
‘‘(ii) is owned by a person not primarily engaged in
the generation or sale of electric power (other than
electric power solely from cogeneration facilities or
small power production facilities);’’.
Pars. (22), (23). Pub. L. 109–58, § 1291(b)(1), added pars.
(22) and (23) and struck out former pars. (22) and (23)
which read as follows:
‘‘(22) ‘electric utility’ means any person or State
agency (including any municipality) which sells electric energy; such term includes the Tennessee Valley
Authority, but does not include any Federal power
marketing agency.
‘‘(23) TRANSMITTING UTILITY.—The term ‘transmitting
utility’ means any electric utility, qualifying cogeneration facility, qualifying small power production facility, or Federal power marketing agency which owns or
operates electric power transmission facilities which
are used for the sale of electric energy at wholesale.’’
Pars. (26) to (29). Pub. L. 109–58, § 1291(b)(2), added
pars. (26) to (29).
1992—Par. (22). Pub. L. 102–486, § 726(b), inserted ‘‘(including any municipality)’’ after ‘‘State agency’’.
Pars. (23) to (25). Pub. L. 102–486, § 726(a), added pars.
(23) to (25).
1991—Par. (17)(E). Pub. L. 102–46 struck out ‘‘, and
which would otherwise not qualify as a small power
production facility because of the power production capacity limitation contained in subparagraph (A)(ii)’’
3 So

§ 797

TITLE 16—CONSERVATION

in original. The period probably should be ‘‘; and’’.

after ‘‘geothermal resources’’ in introductory provisions.
1990—Par. (17)(A). Pub. L. 101–575, § 3(a), inserted ‘‘a
facility which is an eligible solar, wind, waste, or geothermal facility, or’’.
Par. (17)(E). Pub. L. 101–575, § 3(b), added subpar. (E).
1980—Par. (17)(A)(i). Pub. L. 96–294 added applicability
to geothermal resources.
1978—Pars. (17) to (22). Pub. L. 95–617 added pars. (17)
to (22).
1935—Act Aug. 26, 1935, § 201, amended definitions of
‘‘reservations’’ and ‘‘corporations’’, and inserted definitions of ‘‘person’’, ‘‘licensee’’, ‘‘commission’’, ‘‘commissioner’’, ‘‘State commission’’ and ‘‘security’’.
FERC REGULATIONS
Pub. L. 101–575, § 4, Nov. 15, 1990, 104 Stat. 2834, provided that: ‘‘Unless the Federal Energy Regulatory
Commission otherwise specifies, by rule after enactment of this Act [Nov. 15, 1990], any eligible solar, wind,
waste, or geothermal facility (as defined in section
3(17)(E) of the Federal Power Act as amended by this
Act [16 U.S.C. 796(17)(E)]), which is a qualifying small
power production facility (as defined in subparagraph
(C) of section 3(17) of the Federal Power Act as amended by this Act)—
‘‘(1) shall be considered a qualifying small power
production facility for purposes of part 292 of title 18,
Code of Federal Regulations, notwithstanding any
size limitations contained in such part, and
‘‘(2) shall not be subject to the size limitation contained in section 292.601(b) of such part.’’
STATE AUTHORITIES; CONSTRUCTION
Pub. L. 102–486, title VII, § 731, Oct. 24, 1992, 106 Stat.
2921, provided that: ‘‘Nothing in this title [enacting sections 824l, 824m, and 825o–1 of this title and former sections 79z–5a and 79z–5b of Title 15, Commerce and
Trade, and amending this section, sections 824, 824j,
824k, 825n, 825o, and 2621 of this title, and provisions
formerly set out as a note under former section 79k of
Title 15] or in any amendment made by this title shall
be construed as affecting or intending to affect, or in
any way to interfere with, the authority of any State
or local government relating to environmental protection or the siting of facilities.’’
TERMINATION OF FEDERAL POWER COMMISSION;
TRANSFER OF FUNCTIONS
Federal Power Commission terminated and functions,
personnel, property, funds, etc., transferred to Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by
sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title
42, The Public Health and Welfare.
ABOLITION OF INTERSTATE COMMERCE COMMISSION AND
TRANSFER OF FUNCTIONS
Interstate Commerce Commission abolished and functions of Commission transferred, except as otherwise
provided in Pub. L. 104–88, to Surface Transportation
Board effective Jan. 1, 1996, by section 1302 of Title 49,
Transportation, and section 101 of Pub. L. 104–88, set
out as a note under section 1301 of Title 49. References
to Interstate Commerce Commission deemed to refer to
Surface Transportation Board, a member or employee
of the Board, or Secretary of Transportation, as appropriate, see section 205 of Pub. L. 104–88, set out as a
note under section 1301 of Title 49.

§ 797. General powers of Commission
The Commission is authorized and empowered—
(a) Investigations and data
To make investigations and to collect and
record data concerning the utilization of the
water resources of any region to be developed,

§ 797

TITLE 16—CONSERVATION

the water-power industry and its relation to
other industries and to interstate or foreign
commerce, and concerning the location, capacity, development costs, and relation to markets
of power sites, and whether the power from Government dams can be advantageously used by
the United States for its public purposes, and
what is a fair value of such power, to the extent
the Commission may deem necessary or useful
for the purposes of this chapter.
(b) Statements as to investment of licensees in
projects; access to projects, maps, etc.
To determine the actual legitimate original
cost of and the net investment in a licensed
project, and to aid the Commission in such determinations, each licensee shall, upon oath,
within a reasonable period of time to be fixed by
the Commission, after the construction of the
original project or any addition thereto or betterment thereof, file with the Commission in
such detail as the Commission may require, a
statement in duplicate showing the actual legitimate original cost of construction of such
project addition, or betterment, and of the price
paid for water rights, rights-of-way, lands, or interest in lands. The licensee shall grant to the
Commission or to its duly authorized agent or
agents, at all reasonable times, free access to
such project, addition, or betterment, and to all
maps, profiles, contracts, reports of engineers,
accounts, books, records, and all other papers
and documents relating thereto. The statement
of actual legitimate original cost of said project,
and revisions thereof as determined by the Commission, shall be filed with the Secretary of the
Treasury.
(c) Cooperation with executive departments; information and aid furnished Commission
To cooperate with the executive departments
and other agencies of State or National Governments in such investigations; and for such purpose the several departments and agencies of the
National Government are authorized and directed upon the request of the Commission, to
furnish such records, papers, and information in
their possession as may be requested by the
Commission, and temporarily to detail to the
Commission such officers or experts as may be
necessary in such investigations.
(d) Publication of information, etc.; reports to
Congress
To make public from time to time the information secured hereunder, and to provide for
the publication of its reports and investigations
in such form and manner as may be best adapted
for public information and use. The Commission,
on or before the 3d day of January of each year,
shall submit to Congress for the fiscal year preceding a classified report showing the permits
and licenses issued under this subchapter, and in
each case the parties thereto, the terms prescribed, and the moneys received if any, or account thereof.
(e) Issue of licenses for construction, etc., of
dams, conduits, reservoirs, etc.
To issue licenses to citizens of the United
States, or to any association of such citizens, or
to any corporation organized under the laws of

Page 1246

the United States or any State thereof, or to
any State or municipality for the purpose of
constructing, operating, and maintaining dams,
water conduits, reservoirs, power houses, transmission lines, or other project works necessary
or convenient for the development and improvement of navigation and for the development,
transmission, and utilization of power across,
along, from, or in any of the streams or other
bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands
and reservations of the United States (including
the Territories), or for the purpose of utilizing
the surplus water or water power from any Government dam, except as herein provided: Provided, That licenses shall be issued within any
reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be
subject to and contain such conditions as the
Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservation: 1 The license applicant
and any party to the proceeding shall be entitled to a determination on the record, after opportunity for an agency trial-type hearing of no
more than 90 days, on any disputed issues of material fact with respect to such conditions. All
disputed issues of material fact raised by any
party shall be determined in a single trial-type
hearing to be conducted by the relevant resource agency in accordance with the regulations promulgated under this subsection and
within the time frame established by the Commission for each license proceeding. Within 90
days of August 8, 2005, the Secretaries of the Interior, Commerce, and Agriculture shall establish jointly, by rule, the procedures for such expedited trial-type hearing, including the opportunity to undertake discovery and cross-examine witnesses, in consultation with the Federal
Energy Regulatory Commission.2 Provided further, That no license affecting the navigable capacity of any navigable waters of the United
States shall be issued until the plans of the dam
or other structures affecting the navigation
have been approved by the Chief of Engineers
and the Secretary of the Army. Whenever the
contemplated improvement is, in the judgment
of the Commission, desirable and justified in the
public interest for the purpose of improving or
developing a waterway or waterways for the use
or benefit of interstate or foreign commerce, a
finding to that effect shall be made by the Commission and shall become a part of the records
of the Commission: Provided further, That in
case the Commission shall find that any Government dam may be advantageously used by the
United States for public purposes in addition to
navigation, no license therefor shall be issued
until two years after it shall have reported to
Congress the facts and conditions relating thereto, except that this provision shall not apply to
any Government dam constructed prior to June
1 So
2 So

in original. The colon probably should be a period.
in original. The period probably should be a colon.

Page 1247

§ 797

TITLE 16—CONSERVATION

10, 1920: And provided further, That upon the filing of any application for a license which has
not been preceded by a preliminary permit
under subsection (f) of this section, notice shall
be given and published as required by the proviso of said subsection. In deciding whether to
issue any license under this subchapter for any
project, the Commission, in addition to the
power and development purposes for which licenses are issued, shall give equal consideration
to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related
spawning grounds and habitat), the protection of
recreational opportunities, and the preservation
of other aspects of environmental quality.
(f) Preliminary permits; notice of application
To issue preliminary permits for the purpose
of enabling applicants for a license hereunder to
secure the data and to perform the acts required
by section 802 of this title: Provided, however,
That upon the filing of any application for a preliminary permit by any person, association, or
corporation the Commission, before granting
such application, shall at once give notice of
such application in writing to any State or municipality likely to be interested in or affected
by such application; and shall also publish notice of such application once each week for four
weeks in a daily or weekly newspaper published
in the county or counties in which the project or
any part hereof or the lands affected thereby are
situated.
(g) Investigation of occupancy for developing
power; orders
Upon its own motion to order an investigation
of any occupancy of, or evidenced intention to
occupy, for the purpose of developing electric
power, public lands, reservations, or streams or
other bodies of water over which Congress has
jurisdiction under its authority to regulate commerce with foreign nations and among the several States by any person, corporation, State, or
municipality and to issue such order as it may
find appropriate, expedient, and in the public interest to conserve and utilize the navigation and
water-power resources of the region.
(June 10, 1920, ch. 285, pt. I, § 4, 41 Stat. 1065;
June 23, 1930, ch. 572, § 2, 46 Stat. 798; renumbered
pt. I and amended, Aug. 26, 1935, ch. 687, title II,
§§ 202, 212, 49 Stat. 839, 847; July 26, 1947, ch. 343,
title II, § 205(a), 61 Stat. 501; Pub. L. 97–375, title
II, § 212, Dec. 21, 1982, 96 Stat. 1826; Pub. L. 99–495,
§ 3(a), Oct. 16, 1986, 100 Stat. 1243; Pub. L. 109–58,
title II, § 241(a), Aug. 8, 2005, 119 Stat. 674.)
AMENDMENTS
2005—Subsec. (e). Pub. L. 109–58, which directed
amendment of subsec. (e) by inserting after ‘‘adequate
protection and utilization of such reservation.’’ at end
of first proviso ‘‘The license applicant and any party to
the proceeding shall be entitled to a determination on
the record, after opportunity for an agency trial-type
hearing of no more than 90 days, on any disputed issues
of material fact with respect to such conditions. All
disputed issues of material fact raised by any party
shall be determined in a single trial-type hearing to be
conducted by the relevant resource agency in accordance with the regulations promulgated under this subsection and within the time frame established by the
Commission for each license proceeding. Within 90 days

of August 8, 2005, the Secretaries of the Interior, Commerce, and Agriculture shall establish jointly, by rule,
the procedures for such expedited trial-type hearing,
including the opportunity to undertake discovery and
cross-examine witnesses, in consultation with the Federal Energy Regulatory Commission.’’, was executed by
making the insertion after ‘‘adequate protection and
utilization of such reservation:’’ at end of first proviso,
to reflect the probable intent of Congress.
1986—Subsec. (e). Pub. L. 99–495 inserted provisions
that in deciding whether to issue any license under this
subchapter, the Commission, in addition to power and
development purposes, is required to give equal consideration to purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish
and wildlife, the protection of recreational opportunities, and the preservation of environmental quality.
1982—Subsec. (d). Pub. L. 97–375 struck out provision
that the report contain the names and show the compensation of the persons employed by the Commission.
1935—Subsec. (a). Act Aug. 26, 1935, § 202, struck out
last paragraph of subsec. (a) which related to statements of cost of construction, etc., and free access to
projects, maps, etc., and is now covered by subsec. (b).
Subsecs. (b), (c). Act Aug. 26, 1935, § 202, added subsec.
(b) and redesignated former subsecs. (b) and (c) as (c)
and (d), respectively.
Subsec. (d). Act Aug. 26, 1935, § 202, redesignated subsec. (c) as (d) and substituted ‘‘3d day of January’’ for
‘‘first Monday in December’’ in second sentence.
Former subsec. (d) redesignated (e).
Subsec. (e). Act Aug. 26, 1935, § 202, redesignated subsec. (d) as (e) and substituted ‘‘streams or other bodies
of water over which Congress has jurisdiction under its
authority to regulate commerce with foreign nations
and among the several States’’ for ‘‘navigable waters of
the United States’’ and ‘‘subsection (f)’’ for ‘‘subsection
(e)’’. Former subsec. (e) redesignated (f).
Subsec. (f). Act Aug. 26, 1935, § 202, redesignated subsec. (e) as (f) and substituted ‘‘once each week for four
weeks’’ for ‘‘for eight weeks’’. Former section (f), which
related to the power of the Commission to prescribe
regulations for the establishment of a system of accounts and the maintenance thereof, was struck out by
act Aug. 26, 1935.
Subsec. (g). Act Aug. 26, 1935, § 202, added subsec. (g).
Former subsec. (g), which related to the power of the
Commission to hold hearings and take testimony by
deposition, was struck out.
Subsec. (h). Act Aug. 26, 1935, § 202, struck out subsec.
(h) which related to the power of the Commission to
perform any and all acts necessary and proper for the
purpose of carrying out the provisions of this chapter.
1930—Subsec. (d). Act June 23, 1930, inserted sentence
respecting contents of report.
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.
EFFECTIVE DATE OF 1986 AMENDMENT
Pub. L. 99–495, § 18, Oct. 16, 1986, 100 Stat. 1259, provided that: ‘‘Except as otherwise provided in this Act,
the amendments made by this Act [enacting section
823b of this title and amending this section and sections 800, 802, 803, 807, 808, 817, 823a, 824a–3, and 824j of
this title] shall take effect with respect to each license,
permit, or exemption issued under the Federal Power
Act after the enactment of this Act [Oct. 16, 1986]. The
amendments made by sections 6 and 12 of this Act [enacting section 823b of this title and amending section

§ 797

TITLE 16—CONSERVATION

817 of this title] shall apply to licenses, permits, and exemptions without regard to when issued.’’
SAVINGS PROVISION
Pub. L. 99–495, § 17(a), Oct. 16, 1986, 100 Stat. 1259, provided that: ‘‘Nothing in this Act [see Short Title of 1986
Amendment note set out under section 791a of this
title] shall be construed as authorizing the appropriation of water by any Federal, State, or local agency, Indian tribe, or any other entity or individual. Nor shall
any provision of this Act—
‘‘(1) affect the rights or jurisdiction of the United
States, the States, Indian tribes, or other entities
over waters of any river or stream or over any ground
water resource;
‘‘(2) alter, amend, repeal, interpret, modify, or be in
conflict with any interstate compact made by the
States;
‘‘(3) alter or establish the respective rights of
States, the United States, Indian tribes, or any person with respect to any water or water-related right;
‘‘(4) affect, expand, or create rights to use transmission facilities owned by the Federal Government;
‘‘(5) alter, amend, repeal, interpret, modify, or be in
conflict with, the Treaty rights or other rights of any
Indian tribe;
‘‘(6) permit the filing of any competing application
in any relicensing proceeding where the time for filing a competing application expired before the enactment of this Act [Oct. 16, 1986]; or
‘‘(7) modify, supersede, or affect the Pacific Northwest Electric Power Planning and Conservation Act
[16 U.S.C. 839 et seq.].’’
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (d) of this section relating to submitting a
classified annual report to Congress showing permits
and licenses issued under this subchapter, see section
3003 of Pub. L. 104–66, as amended, set out as a note
under section 1113 of Title 31, Money and Finance, and
page 91 of House Document No. 103–7.
PROMOTING HYDROPOWER DEVELOPMENT AT NONPOWERED DAMS AND CLOSED LOOP PUMPED STORAGE
PROJECTS
Pub. L. 113–23, § 6, Aug. 9, 2013, 127 Stat. 495, provided
that:
‘‘(a) IN GENERAL.—To improve the regulatory process
and reduce delays and costs for hydropower development at nonpowered dams and closed loop pumped storage projects, the Federal Energy Regulatory Commission (referred to in this section as the ‘Commission’)
shall investigate the feasibility of the issuance of a license for hydropower development at nonpowered dams
and closed loop pumped storage projects in a 2-year period (referred to in this section as a ‘2-year process’).
Such a 2-year process shall include any prefiling licensing process of the Commission.
‘‘(b) WORKSHOPS AND PILOTS.—The Commission
shall—
‘‘(1) not later than 60 days after the date of enactment of this Act [Aug. 9, 2013], hold an initial workshop to solicit public comment and recommendations
on how to implement a 2-year process;
‘‘(2) develop criteria for identifying projects featuring hydropower development at nonpowered dams and
closed loop pumped storage projects that may be appropriate for licensing within a 2-year process;
‘‘(3) not later than 180 days after the date of enactment of this Act, develop and implement pilot
projects to test a 2-year process, if practicable; and
‘‘(4) not later than 3 years after the date of implementation of the final pilot project testing a 2-year
process, hold a final workshop to solicit public comment on the effectiveness of each tested 2-year process.
‘‘(c) MEMORANDUM OF UNDERSTANDING.—The Commission shall, to the extent practicable, enter into a

Page 1248

memorandum of understanding with any applicable
Federal or State agency to implement a pilot project
described in subsection (b).
‘‘(d) REPORTS.—
‘‘(1) PILOT PROJECTS NOT IMPLEMENTED.—If the Commission determines that no pilot project described in
subsection (b) is practicable because no 2-year process is practicable, not later than 240 days after the
date of enactment of this Act [Aug. 9, 2013], the Commission shall submit to the Committee on Energy
and Commerce of the House of Representatives and
the Committee on Energy and Natural Resources of
the Senate a report that—
‘‘(A) describes the public comments received as
part of the initial workshop held under subsection
(b)(1); and
‘‘(B) identifies the process, legal, environmental,
economic, and other issues that justify the determination of the Commission that no 2-year process
is practicable, with recommendations on how Congress may address or remedy the identified issues.
‘‘(2) PILOT PROJECTS IMPLEMENTED.—If the Commission develops and implements pilot projects involving
a 2-year process, not later than 60 days after the date
of completion of the final workshop held under subsection (b)(4), the Commission shall submit to the
Committee on Energy and Commerce of the House of
Representatives and the Committee on Energy and
Natural Resources of the Senate a report that—
‘‘(A) describes the outcomes of the pilot projects;
‘‘(B) describes the public comments from the final
workshop on the effectiveness of each tested 2-year
process; and
‘‘(C)(i) outlines how the Commission will adopt
policies under existing law (including regulations)
that result in a 2-year process for appropriate
projects;
‘‘(ii) outlines how the Commission will issue new
regulations to adopt a 2-year process for appropriate projects; or
‘‘(iii) identifies the process, legal, environmental,
economic, and other issues that justify a determination of the Commission that no 2-year process
is practicable, with recommendations on how Congress may address or remedy the identified issues.’’
IMPROVEMENT AT EXISTING FEDERAL FACILITIES
Pub. L. 102–486, title XXIV, § 2404, Oct. 24, 1992, 106
Stat. 3097, as amended by Pub. L. 103–437, § 6(d)(37), Nov.
2, 1994, 108 Stat. 4585; Pub. L. 104–66, title I, § 1052(h),
Dec. 21, 1995, 109 Stat. 718, directed Secretary of the Interior and Secretary of the Army, in consultation with
Secretary of Energy, to perform reconnaissance level
studies, for each of the Nation’s principal river basins,
of cost effective opportunities to increase hydropower
production at existing federally-owned or operated
water regulation, storage, and conveyance facilities,
with such studies to be completed within 2 years after
Oct. 24, 1992, and transmitted to Congress, further provided that in cases where such studies had been prepared by any agency of the United States and published
within ten years prior to Oct. 24, 1992, Secretary of the
Interior, or Secretary of the Army, could choose to rely
on information developed by prior studies rather than
conduct new studies, and further provided for appropriations for fiscal years 1993 to 1995.
WATER CONSERVATION AND ENERGY PRODUCTION
Pub. L. 102–486, title XXIV, § 2405, Oct. 24, 1992, 106
Stat. 3098, provided that:
‘‘(a) STUDIES.—The Secretary of the Interior, acting
pursuant to the Federal reclamation laws (Act of June
17, 1902, 32 Stat. 388) [see Short Title note under section
371 of Title 43, Public Lands], and Acts supplementary
thereto and amendatory thereof, is authorized and directed to conduct feasibility investigations of opportunities to increase the amount of hydroelectric energy
available for marketing by the Secretary from Federal
hydroelectric power generation facilities resulting

Page 1249

§ 797c

TITLE 16—CONSERVATION

from a reduction in the consumptive use of such power
for Federal reclamation project purposes or as a result
of an increase in the amount of water available for such
generation because of water conservation efforts on
Federal reclamation projects or a combination thereof.
The Secretary of the Interior is further authorized and
directed to conduct feasibility investigations of opportunities to mitigate damages to or enhance fish and
wildlife as a result of increasing the amount of water
available for such purposes because of water conservation efforts on Federal reclamation projects. Such feasibility investigations shall include, but not be limited
to—
‘‘(1) an analysis of the technical, environmental,
and economic feasibility of reducing the amount of
water diverted upstream of such Federal hydroelectric power generation facilities by Federal reclamation projects;
‘‘(2) an estimate of the reduction, if any, of project
power consumed as a result of the decreased amount
of diversion;
‘‘(3) an estimate of the increase in the amount of
electrical energy and related revenues which would
result from the marketing of such power by the Secretary;
‘‘(4) an estimate of the fish and wildlife benefits
which would result from the decreased or modified diversions;
‘‘(5) a finding by the Secretary of the Interior that
the activities proposed in the feasibility study can be
carried out in accordance with applicable Federal and
State law, interstate compacts and the contractual
obligations of the Secretary; and
‘‘(6) a finding by the affected Federal Power Marketing Administrator that the hydroelectric component of the proposed water conservation feature is
cost-effective and that the affected Administrator is
able to market the hydro-electric power expected to
be generated.
‘‘(b) CONSULTATION.—In preparing feasibility studies
pursuant to this section, the Secretary of the Interior
shall consult with, and seek the recommendations of,
affected State, local and Indian tribal interests, and
shall provide for appropriate public comment.
‘‘(c) AUTHORIZATION.—There is hereby authorized to
be appropriated to the Secretary of the Interior such
sums as may be necessary to carry out this section.’’
PROJECTS ON FRESH WATERS IN STATE OF HAWAII
Pub. L. 102–486, title XXIV, § 2408, Oct. 24, 1992, 106
Stat. 3100, directed Federal Energy Regulatory Commission, in consultation with State of Hawaii, to carry
out study of hydroelectric licensing in State of Hawaii
for purposes of considering whether such licensing
should be transferred to State, and directed Commission to complete study and submit report containing
results of study to Congress within 18 months after Oct.
24, 1992.

§ 797a. Congressional authorization for permits,
licenses, leases, or authorizations for dams,
conduits, reservoirs, etc., within national
parks or monuments
On and after March 3, 1921, no permit, license,
lease, or authorization for dams, conduits, reservoirs, power houses, transmission lines, or
other works for storage or carriage of water, or
for the development, transmission, or utilization of power within the limits as constituted,
March 3, 1921, of any national park or national
monument shall be granted or made without
specific authority of Congress.
(Mar. 3, 1921, ch. 129, 41 Stat. 1353.)
CODIFICATION
Provisions repealing so much of this chapter ‘‘as authorizes licensing such uses of existing national parks

and national monuments by the Federal Power Commission’’ have been omitted.
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.
Section 212 of act Aug. 26, 1935, ch. 687, title II, 49
Stat. 847, provided that nothing in this chapter, as
amended should be construed to repeal or amend the
provisions of the act approved Mar. 3, 1921 (41 Stat.
1353) [16 U.S.C. 797a] or the provisions of any other Act
relating to national parks and national monuments.

§ 797b. Duty to keep Congress fully and currently
informed
The Federal Energy Regulatory Commission
shall keep the Committee on Energy and Commerce of the United States House of Representatives and the Committee on Energy and Natural
Resources of the United States Senate fully and
currently informed regarding actions of the
Commission with respect to the provisions of
Part I of the Federal Power Act [16 U.S.C. 791a
et seq.].
(Pub. L. 99–495, § 16, Oct. 16, 1986, 100 Stat. 1259.)
REFERENCES IN TEXT
The Federal Power Act, referred to in text, is act
June 10, 1920, ch. 285, 41 Stat. 1063, as amended. Part I
of the Federal Power Act is classified generally to this
subchapter (§ 791a et seq.). For complete classification
of this Act to the Code, see section 791a of this title and
Tables.
CODIFICATION
Section was enacted as part of the Electric Consumers Protection Act of 1986, and not as part of the Federal Power Act which generally comprises this chapter.
CHANGE OF NAME
Committee on Energy and Commerce of House of
Representatives treated as referring to Committee on
Commerce of House of Representatives by section 1(a)
of Pub. L. 104–14, set out as a note preceding section 21
of Title 2, The Congress. Committee on Commerce of
House of Representatives changed to Committee on Energy and Commerce of House of Representatives, and
jurisdiction over matters relating to securities and exchanges and insurance generally transferred to Committee on Financial Services of House of Representatives by House Resolution No. 5, One Hundred Seventh
Congress, Jan. 3, 2001.

§ 797c. Dams in National Park System units
After October 24, 1992, the Federal Energy Regulatory Commission may not issue an original
license under Part I of the Federal Power Act [16
U.S.C. 791a et seq.] (nor an exemption from such
Part) for any new hydroelectric power project
located within the boundaries of any unit of the
National Park System that would have a direct
adverse effect on Federal lands within any such
unit. Nothing in this section shall be construed
as repealing any existing provision of law (or affecting any treaty) explicitly authorizing a
hydroelectric power project.
(Pub. L. 102–486, title XXIV, § 2402, Oct. 24, 1992,
106 Stat. 3097.)
REFERENCES IN TEXT
The Federal Power Act, referred to in text, is act
June 10, 1920, ch. 285, 41 Stat. 1063, as amended. Part I
of the Act is classified generally to this subchapter
(§ 791a et seq.). For complete classification of this Act
to the Code, see section 791a of this title and Tables.

§ 797d

TITLE 16—CONSERVATION

Page 1250

CODIFICATION

CODIFICATION

Section was enacted as part of the Energy Policy Act
of 1992, and not as part of the Federal Power Act which
generally comprises this chapter.

Section was enacted as part of the Energy Policy Act
of 1992, and not as part of the Federal Power Act which
generally comprises this chapter.

§ 797d. Third party contracting by FERC

§ 798. Purpose and scope of preliminary permits;
transfer and cancellation

(a) Environmental impact statements
Where the Federal Energy Regulatory Commission is required to prepare a draft or final
environmental impact statement under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 and following) in connection with an
application for a license under part I of the Federal Power Act [16 U.S.C. 791a et seq.], the Commission may permit, at the election of the applicant, a contractor, consultant or other person
funded by the applicant and chosen by the Commission from among a list of such individuals or
companies determined by the Commission to be
qualified to do such work, to prepare such statement for the Commission. The contractor shall
execute a disclosure statement prepared by the
Commission specifying that it has no financial
or other interest in the outcome of the project.
The Commission shall establish the scope of
work and procedures to assure that the contractor, consultant or other person has no financial
or other potential conflict of interest in the outcome of the proceeding. Nothing herein shall affect the Commission’s responsibility to comply
with the National Environmental Policy Act of
1969.
(b) Environmental assessments
Where an environmental assessment is required under the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 and following) in connection with an application for a license under
part I of the Federal Power Act [16 U.S.C. 791a
et seq.], the Commission may permit an applicant, or a contractor, consultant or other person
selected by the applicant, to prepare such environmental assessment. The Commission shall
institute procedures, including pre-application
consultations, to advise potential applicants of
studies or other information foreseeably required by the Commission. The Commission may
allow the filing of such applicant-prepared environmental assessments as part of the application. Nothing herein shall affect the Commission’s responsibility to comply with the National Environmental Policy Act of 1969.
(c) Effective date
This section shall take effect with respect to
license applications filed after October 24, 1992.
(Pub. L. 102–486, title XXIV, § 2403, Oct. 24, 1992,
106 Stat. 3097.)
REFERENCES IN TEXT
The National Environmental Policy Act of 1969, referred to in subsecs. (a) and (b), is Pub. L. 91–190, Jan.
1, 1970, 83 Stat. 852, as amended, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of
this Act to the Code, see Short Title note set out under
section 4321 of Title 42 and Tables.
The Federal Power Act, referred to in subsecs. (a) and
(b), is act June 10, 1920, ch. 285, 41 Stat. 1063, as amended. Part I of the Act is classified generally to this subchapter (§ 791a et seq.). For complete classification of
this Act to the Code, see section 791a of this title and
Tables.

(a) Purpose
Each preliminary permit issued under this
subchapter shall be for the sole purpose of maintaining priority of application for a license
under the terms of this chapter for such period
or periods, not exceeding a total of three years,
as in the discretion of the Commission may be
necessary for making examinations and surveys,
for preparing maps, plans, specifications, and estimates, and for making financial arrangements.
(b) Extension of period
The Commission may extend the period of a
preliminary permit once for not more than 2 additional years beyond the 3 years permitted by
subsection (a) if the Commission finds that the
permittee has carried out activities under such
permit in good faith and with reasonable diligence.
(c) Permit conditions
Each such permit shall set forth the conditions under which priority shall be maintained.
(d) Non-transferability and cancellation of permits
Such permits shall not be transferable, and
may be canceled by order of the Commission
upon failure of permittees to comply with the
conditions thereof or for other good cause shown
after notice and opportunity for hearing.
(June 10, 1920, ch. 285, pt. I, § 5, 41 Stat. 1067; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 203, 212, 49 Stat. 841, 847; Pub. L.
113–23, § 5, Aug. 9, 2013, 127 Stat. 495.)
AMENDMENTS
2013—Pub. L. 113–23 designated existing first, second,
and third sentences as subsecs. (a), (c), and (d), respectively, and added subsec. (b).
1935—Act Aug. 26, 1935, § 203, amended section generally, striking out ‘‘and a license issued’’ at end of second sentence and inserting ‘‘or for other good cause
shown after notice and opportunity for hearing’’ in last
sentence.

§ 799. License; duration, conditions, revocation,
alteration, or surrender
Licenses under this subchapter shall be issued
for a period not exceeding fifty years. Each such
license shall be conditioned upon acceptance by
the licensee of all of the terms and conditions of
this chapter and such further conditions, if any,
as the Commission shall prescribe in conformity
with this chapter, which said terms and conditions and the acceptance thereof shall be expressed in said license. Licenses may be revoked
only for the reasons and in the manner prescribed under the provisions of this chapter, and
may be altered or surrendered only upon mutual
agreement between the licensee and the Commission after thirty days’ public notice.
(June 10, 1920, ch. 285, pt. I, § 6, 41 Stat. 1067; renumbered pt. I and amended, Aug. 26, 1935, ch.

Page 1251

§ 802

TITLE 16—CONSERVATION

687, title II, §§ 204, 212, 49 Stat. 841, 847; Pub. L.
104–106, div. D, title XLIII, § 4321(i)(6), Feb. 10,
1996, 110 Stat. 676; Pub. L. 104–316, title I, § 108(a),
Oct. 19, 1996, 110 Stat. 3832; Pub. L. 105–192, § 2,
July 14, 1998, 112 Stat. 625.)
AMENDMENTS
1998—Pub. L. 105–192 inserted at end ‘‘Licenses may be
revoked only for the reasons and in the manner prescribed under the provisions of this chapter, and may
be altered or surrendered only upon mutual agreement
between the licensee and the Commission after thirty
days’ public notice.’’
1996—Pub. L. 104–316 struck out at end ‘‘Licenses may
be revoked only for the reasons and in the manner prescribed under the provisions of this chapter, and may
be altered or surrendered only upon mutual agreement
between the licensee and the Commission after thirty
days’ public notice.’’
Pub. L. 104–106 struck out at end ‘‘Copies of all licenses issued under the provisions of this subchapter
and calling for the payment of annual charges shall be
deposited with the General Accounting Office, in compliance with section 20 of title 41.’’
1935—Act Aug. 26, 1935, § 204, amended section generally, substituting ‘‘thirty days’’ for ‘‘ninety days’’ in
third sentence and inserting last sentence.
EFFECTIVE DATE OF 1996 AMENDMENT
For effective date and applicability of amendment by
Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set
out as a note under section 2302 of Title 10, Armed
Forces.

§ 800. Issuance of preliminary permits or licenses
(a) Preference
In issuing preliminary permits hereunder or
original licenses where no preliminary permit
has been issued, the Commission shall give preference to applications therefor by States and
municipalities, provided the plans for the same
are deemed by the Commission equally well
adapted, or shall within a reasonable time to be
fixed by the Commission be made equally well
adapted, to conserve and utilize in the public interest the water resources of the region; and as
between other applicants, the Commission may
give preference to the applicant the plans of
which it finds and determines are best adapted
to develop, conserve, and utilize in the public interest the water resources of the region, if it be
satisfied as to the ability of the applicant to
carry out such plans.
(b) Development of water resources by United
States; reports
Whenever, in the judgment of the Commission,
the development of any water resources for public purposes should be undertaken by the United
States itself, the Commission shall not approve
any application for any project affecting such
development, but shall cause to be made such
examinations, surveys, reports, plans, and estimates of the cost of the proposed development
as it may find necessary, and shall submit its
findings to Congress with such recommendations as it may find appropriate concerning such
development.
(c) Assumption of project by United States after
expiration of license
Whenever, after notice and opportunity for
hearing, the Commission determines that the
United States should exercise its right upon or

after the expiration of any license to take over
any project or projects for public purposes, the
Commission shall not issue a new license to the
original licensee or to a new licensee but shall
submit its recommendation to Congress together with such information as it may consider
appropriate.
(June 10, 1920, ch. 285, pt. I, § 7, 41 Stat. 1067; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 205, 212, 49 Stat. 842, 847; Pub. L.
90–451, § 1, Aug. 3, 1968, 82 Stat. 616; Pub. L.
99–495, § 2, Oct. 16, 1986, 100 Stat. 1243.)
CODIFICATION
Additional provisions in the section as enacted by act
June 10, 1920, directing the commission to investigate
the cost and economic value of the power plant outlined in project numbered 3, House Document numbered 1400, Sixty-second Congress, third session, and
also in connection with such project to submit plans
and estimates of cost necessary to secure an increased
water supply for the District of Columbia, have been
omitted as temporary and executed.
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–495 inserted ‘‘original’’
after ‘‘hereunder or’’ and substituted ‘‘issued,’’ for ‘‘issued and in issuing licenses to new licensees under section 808 of this title’’.
1968—Subsec. (c). Pub. L. 90–451 added subsec. (c).
1935—Act Aug. 26, 1935, § 205, amended section generally, striking out ‘‘navigation and’’ before ‘‘water resources’’ wherever appearing, and designating paragraphs as subsecs. (a) and (b).
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.

§ 801. Transfer of license; obligations of transferee
No voluntary transfer of any license, or of the
rights thereunder granted, shall be made without the written approval of the commission; and
any successor or assign of the rights of such licensee, whether by voluntary transfer, judicial
sale, foreclosure sale, or otherwise, shall be subject to all the conditions of the license under
which such rights are held by such licensee and
also subject to all the provisions and conditions
of this chapter to the same extent as though
such successor or assign were the original licensee under this chapter: Provided, That a
mortgage or trust deed or judicial sales made
thereunder or under tax sales shall not be
deemed voluntary transfers within the meaning
of this section.
(June 10, 1920, ch. 285, pt. I, § 8, 41 Stat. 1068; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 802. Information to accompany application for
license; landowner notification
(a) Each applicant for a license under this
chapter shall submit to the commission—
(1) Such maps, plans, specifications, and estimates of cost as may be required for a full understanding of the proposed project. Such maps,
plans, and specifications when approved by the
commission shall be made a part of the license;

§ 803

TITLE 16—CONSERVATION

and thereafter no change shall be made in said
maps, plans, or specifications until such changes
shall have been approved and made a part of
such license by the commission.
(2) Satisfactory evidence that the applicant
has complied with the requirements of the laws
of the State or States within which the proposed
project is to be located with respect to bed and
banks and to the appropriation, diversion, and
use of water for power purposes and with respect
to the right to engage in the business of developing, transmitting and distributing power, and in
any other business necessary to effect the purposes of a license under this chapter.
(3) 1 Such additional information as the commission may require.
(b) Upon the filing of any application for a license (other than a license under section 808 of
this title) the applicant shall make a good faith
effort to notify each of the following by certified
mail:
(1) Any person who is an owner of record of
any interest in the property within the bounds
of the project.
(2) Any Federal, State, municipal or other
local governmental agency likely to be interested in or affected by such application.
(June 10, 1920, ch. 285, pt. I, § 9, 41 Stat. 1068; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; Pub. L. 99–495, § 14, Oct. 16,
1986, 100 Stat. 1257.)
CODIFICATION
Former subsec. (c), included in the provisions designated as subsec. (a) by Pub. L. 99–495, has been editorially redesignated as par. (3) of subsec. (a) as the
probable intent of Congress.
AMENDMENTS
1986—Pub. L. 99–495 designated existing provisions as
subsec. (a), redesignated former subsecs. (a) and (b) as
pars. (1) and (2) of subsec. (a), and added subsec. (b).
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.

§ 803. Conditions of license generally
All licenses issued under this subchapter shall
be on the following conditions:
(a) Modification of plans; factors considered to
secure adaptability of project; recommendations for proposed terms and conditions
(1) That the project adopted, including the
maps, plans, and specifications, shall be such as
in the judgment of the Commission will be best
adapted to a comprehensive plan for improving
or developing a waterway or waterways for the
use or benefit of interstate or foreign commerce,
for the improvement and utilization of waterpower development, for the adequate protection,
mitigation, and enhancement of fish and wildlife
(including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and
recreational and other purposes referred to in
section 797(e) of this title 1 if necessary in order
1 See
1 So

Codification note below.
in original. Probably should be followed by ‘‘; and’’.

Page 1252

to secure such plan the Commission shall have
authority to require the modification of any
project and of the plans and specifications of the
project works before approval.
(2) In order to ensure that the project adopted
will be best adapted to the comprehensive plan
described in paragraph (1), the Commission shall
consider each of the following:
(A) The extent to which the project is consistent with a comprehensive plan (where one
exists) for improving, developing, or conserving a waterway or waterways affected by the
project that is prepared by—
(i) an agency established pursuant to Federal law that has the authority to prepare
such a plan; or
(ii) the State in which the facility is or
will be located.
(B) The recommendations of Federal and
State agencies exercising administration over
flood control, navigation, irrigation, recreation, cultural and other relevant resources of
the State in which the project is located, and
the recommendations (including fish and wildlife recommendations) of Indian tribes affected by the project.
(C) In the case of a State or municipal applicant, or an applicant which is primarily engaged in the generation or sale of electric
power (other than electric power solely from
cogeneration facilities or small power production facilities), the electricity consumption efficiency improvement program of the applicant, including its plans, performance and capabilities for encouraging or assisting its customers to conserve electricity cost-effectively,
taking into account the published policies, restrictions, and requirements of relevant State
regulatory authorities applicable to such applicant.
(3) Upon receipt of an application for a license,
the Commission shall solicit recommendations
from the agencies and Indian tribes identified in
subparagraphs (A) and (B) of paragraph (2) for
proposed terms and conditions for the Commission’s consideration for inclusion in the license.
(b) Alterations in project works
That except when emergency shall require for
the protection of navigation, life, health, or
property, no substantial alteration or addition
not in conformity with the approved plans shall
be made to any dam or other project works constructed hereunder of an installed capacity in
excess of two thousand horsepower without the
prior approval of the Commission; and any
emergency alteration or addition so made shall
thereafter be subject to such modification and
change as the Commission may direct.
(c) Maintenance and repair of project works; liability of licensee for damages
That the licensee shall maintain the project
works in a condition of repair adequate for the
purposes of navigation and for the efficient operation of said works in the development and
transmission of power, shall make all necessary
renewals and replacements, shall establish and
maintain adequate depreciation reserves for
such purposes, shall so maintain, and operate
said works as not to impair navigation, and

Page 1253

TITLE 16—CONSERVATION

shall conform to such rules and regulations as
the Commission may from time to time prescribe for the protection of life, health, and
property. Each licensee hereunder shall be liable
for all damages occasioned to the property of
others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed
under the license and in no event shall the
United States be liable therefor.
(d) Amortization reserves
That after the first twenty years of operation,
out of surplus earned thereafter, if any, accumulated in excess of a specified reasonable rate of
return upon the net investment of a licensee in
any project or projects under license, the licensee shall establish and maintain amortization reserves, which reserves shall, in the discretion of the Commission, be held until the termination of the license or be applied from time to
time in reduction of the net investment. Such
specified rate of return and the proportion of
such surplus earnings to be paid into and held in
such reserves shall be set forth in the license.
For any new license issued under section 808 of
this title, the amortization reserves under this
subsection shall be maintained on and after the
effective date of such new license.
(e) Annual charges payable by licensees; maximum rates; application; review and report to
Congress
(1) That the licensee shall pay to the United
States reasonable annual charges in an amount
to be fixed by the Commission for the purpose of
reimbursing the United States for the costs of
the administration of this subchapter, including
any reasonable and necessary costs incurred by
Federal and State fish and wildlife agencies and
other natural and cultural resource agencies in
connection with studies or other reviews carried
out by such agencies for purposes of administering their responsibilities under this subchapter;
for recompensing it for the use, occupancy, and
enjoyment of its lands or other property; and for
the expropriation to the Government of excessive profits until the respective States shall
make provision for preventing excessive profits
or for the expropriation thereof to themselves,
or until the period of amortization as herein
provided is reached, and in fixing such charges
the Commission shall seek to avoid increasing
the price to the consumers of power by such
charges, and any such charges may be adjusted
from time to time by the Commission as conditions may require: Provided, That, subject to annual appropriations Acts, the portion of such annual charges imposed by the Commission under
this subsection to cover the reasonable and necessary costs of such agencies shall be available
to such agencies (in addition to other funds appropriated for such purposes) solely for carrying
out such studies and reviews and shall remain
available until expended: Provided, That when licenses are issued involving the use of Government dams or other structures owned by the
United States or tribal lands embraced within
Indian reservations the Commission shall, subject to the approval of the Secretary of the Interior in the case of such dams or structures in
reclamation projects and, in the case of such

§ 803

tribal lands, subject to the approval of the Indian tribe having jurisdiction of such lands as
provided in section 5123 of title 25, fix a reasonable annual charge for the use thereof, and such
charges may with like approval be readjusted by
the Commission at the end of twenty years after
the project is available for service and at periods
of not less than ten years thereafter upon notice
and opportunity for hearing: Provided further,
That licenses for the development, transmission,
or distribution of power by States or municipalities shall be issued and enjoyed without charge
to the extent such power is sold to the public
without profit or is used by such State or municipality for State or municipal purposes, except that as to projects constructed or to be constructed by States or municipalities primarily
designed to provide or improve navigation, licenses therefor shall be issued without charge;
and that licenses for the development, transmission, or distribution of power for domestic,
mining, or other beneficial use in projects of not
more than two thousand horsepower installed
capacity may be issued without charge, except
on tribal lands within Indian reservations; but
in no case shall a license be issued free of charge
for the development and utilization of power
created by any Government dam and that the
amount charged therefor in any license shall be
such as determined by the Commission: Provided
however, That no charge shall be assessed for the
use of any Government dam or structure by any
licensee if, before January 1, 1985, the Secretary
of the Interior has entered into a contract with
such licensee that meets each of the following
requirements:
(A) The contract covers one or more projects
for which a license was issued by the Commission before January 1, 1985.
(B) The contract contains provisions specifically providing each of the following:
(i) A powerplant may be built by the licensee utilizing irrigation facilities constructed by the United States.
(ii) The powerplant shall remain in the exclusive control, possession, and ownership of
the licensee concerned.
(iii) All revenue from the powerplant and
from the use, sale, or disposal of electric energy from the powerplant shall be, and remain, the property of such licensee.
(C) The contract is an amendatory, supplemental and replacement contract between the
United States and: (i) the Quincy-Columbia
Basin Irrigation District (Contract No.
14–06–100–6418); (ii) the East Columbia Basin Irrigation District (Contract No. 14–06–100–6419);
or, (iii) the South Columbia Basin Irrigation
District (Contract No. 14–06–100–6420).
This paragraph shall apply to any project covered by a contract referred to in this paragraph
only during the term of such contract unless
otherwise provided by subsequent Act of Congress. In the event an overpayment of any
charge due under this section shall be made by
a licensee, the Commission is authorized to
allow a credit for such overpayment when
charges are due for any subsequent period.
(2) In the case of licenses involving the use of
Government dams or other structures owned by

§ 803

TITLE 16—CONSERVATION

the United States, the charges fixed (or readjusted) by the Commission under paragraph (1)
for the use of such dams or structures shall not
exceed 1 mill per kilowatt-hour for the first 40
gigawatt-hours of energy a project produces in
any year, 11⁄2 mills per kilowatt-hour for over 40
up to and including 80 gigawatt-hours in any
year, and 2 mills per kilowatt-hour for any energy the project produces over 80 gigawatt-hours
in any year. Except as provided in subsection (f),
such charge shall be the only charge assessed by
any agency of the United States for the use of
such dams or structures.
(3) The provisions of paragraph (2) shall apply
with respect to—
(A) all licenses issued after October 16, 1986;
and
(B) all licenses issued before October 16, 1986,
which—
(i) did not fix a specific charge for the use
of the Government dam or structure involved; and
(ii) did not specify that no charge would be
fixed for the use of such dam or structure.
(4) Every 5 years, the Commission shall review
the appropriateness of the annual charge limitations provided for in this subsection and report
to Congress concerning its recommendations
thereon.
(f) Reimbursement by licensee of other licensees,
etc.
That whenever any licensee hereunder is directly benefited by the construction work of another licensee, a permittee, or of the United
States of a storage reservoir or other headwater
improvement, the Commission shall require as a
condition of the license that the licensee so benefited shall reimburse the owner of such reservoir or other improvements for such part of
the annual charges for interest, maintenance,
and depreciation thereon as the Commission
may deem equitable. The proportion of such
charges to be paid by any licensee shall be determined by the Commission. The licensees or permittees affected shall pay to the United States
the cost of making such determination as fixed
by the Commission.
Whenever such reservoir or other improvement is constructed by the United States the
Commission shall assess similar charges against
any licensee directly benefited thereby, and any
amount so assessed shall be paid into the Treasury of the United States, to be reserved and appropriated as a part of the special fund for headwater improvements as provided in section 810
of this title.
Whenever any power project not under license
is benefited by the construction work of a licensee or permittee, the United States or any
agency thereof, the Commission, after notice to
the owner or owners of such unlicensed project,
shall determine and fix a reasonable and equitable annual charge to be paid to the licensee or
permittee on account of such benefits, or to the
United States if it be the owner of such headwater improvement.
(g) Conditions in discretion of commission
Such other conditions not inconsistent with
the provisions of this chapter as the commission
may require.

Page 1254

(h) Monopolistic combinations; prevention or
minimization of anticompetitive conduct; action by Commission regarding license and
operation and maintenance of project
(1) Combinations, agreements, arrangements,
or understandings, express or implied, to limit
the output of electrical energy, to restrain
trade, or to fix, maintain, or increase prices for
electrical energy or service are hereby prohibited.
(2) That conduct under the license that: (A) results in the contravention of the policies expressed in the antitrust laws; and (B) is not
otherwise justified by the public interest considering regulatory policies expressed in other applicable law (including but not limited to those
contained in subchapter II of this chapter) shall
be prevented or adequately minimized by means
of conditions included in the license prior to its
issuance. In the event it is impossible to prevent
or adequately minimize the contravention, the
Commission shall refuse to issue any license to
the applicant for the project and, in the case of
an existing project, shall take appropriate action to provide thereafter for the operation and
maintenance of the affected project and for the
issuing of a new license in accordance with section 808 of this title.
(i) Waiver of conditions
In issuing licenses for a minor part only of a
complete project, or for a complete project of
not more than two thousand horsepower installed capacity, the Commission may in its discretion waive such conditions, provisions, and
requirements of this subchapter, except the license period of fifty years, as it may deem to be
to the public interest to waive under the circumstances: Provided, That the provisions hereof
shall not apply to annual charges for use of
lands within Indian reservations.
(j) Fish and wildlife protection, mitigation and
enhancement; consideration of recommendations; findings
(1) That in order to adequately and equitably
protect, mitigate damages to, and enhance, fish
and wildlife (including related spawning grounds
and habitat) affected by the development, operation, and management of the project, each license issued under this subchapter shall include
conditions for such protection, mitigation, and
enhancement. Subject to paragraph (2), such
conditions shall be 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.
(2) Whenever the Commission believes that
any recommendation referred to in paragraph (1)
may be inconsistent with the purposes and requirements of this subchapter or other applicable law, the Commission and the agencies referred to in paragraph (1) shall attempt to resolve any such inconsistency, giving due weight
to the recommendations, expertise, and statutory responsibilities of such agencies. If, after
such attempt, the Commission does not adopt in
whole or in part a recommendation of any such
agency, the Commission shall publish each of

Page 1255

§ 804

TITLE 16—CONSERVATION

the following findings (together with a statement of the basis for each of the findings):
(A) A finding that adoption of such recommendation is inconsistent with the purposes
and requirements of this subchapter or with
other applicable provisions of law.
(B) A finding that the conditions selected by
the Commission comply with the requirements
of paragraph (1).
Subsection (i) shall not apply to the conditions
required under this subsection.
(June 10, 1920, ch. 285, pt. I, § 10, 41 Stat. 1068; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 206, 212, 49 Stat. 842, 847; Pub. L.
87–647, Sept. 7, 1962, 76 Stat. 447; Pub. L. 90–451,
§ 4, Aug. 3, 1968, 82 Stat. 617; Pub. L. 99–495,
§§ 3(b), (c), 9(a), 13, Oct. 16, 1986, 100 Stat. 1243,
1244, 1252, 1257; Pub. L. 99–546, title IV, § 401, Oct.
27, 1986, 100 Stat. 3056; Pub. L. 102–486, title XVII,
§ 1701(a), Oct. 24, 1992, 106 Stat. 3008.)
REFERENCES IN TEXT
The Fish and Wildlife Coordination Act, referred to
in subsec. (j)(1), is act Mar. 10, 1934, ch. 55, 48 Stat. 401,
as amended, which is classified generally to sections
661 to 666c of this title. For complete classification of
this Act to the Code, see Short Title note set out under
section 661 of this title and Tables.
AMENDMENTS
1992—Subsec. (e)(1). Pub. L. 102–486, in introductory
provisions, substituted ‘‘administration of this subchapter, including any reasonable and necessary costs
incurred by Federal and State fish and wildlife agencies
and other natural and cultural resource agencies in
connection with studies or other reviews carried out by
such agencies for purposes of administering their responsibilities under this subchapter;’’ for ‘‘administration of this subchapter;’’ and inserted ‘‘Provided, That,
subject to annual appropriations Acts, the portion of
such annual charges imposed by the Commission under
this subsection to cover the reasonable and necessary
costs of such agencies shall be available to such agencies (in addition to other funds appropriated for such
purposes) solely for carrying out such studies and reviews and shall remain available until expended:’’ after
‘‘as conditions may require:’’.
1986—Subsec. (a). Pub. L. 99–495, § 3(b), designated existing provisions as par. (1), inserted ‘‘for the adequate
protection, mitigation, and enhancement of fish and
wildlife (including related spawning grounds and habitat),’’ after ‘‘water-power development’’, inserted ‘‘irrigation, flood control, water supply, and’’ after ‘‘including’’, which words were inserted after ‘‘public uses, including’’ as the probable intent of Congress, substituted ‘‘and other purposes referred to in section
797(e) of this title’’ for ‘‘purposes; and’’, and added pars.
(2) and (3).
Subsec. (e). Pub. L. 99–546 inserted proviso that no
charge be assessed for use of Government dam or structure by licensee if, before Jan. 1, 1985, licensee and Secretary entered into contract which met requirements of
date of license, powerplant construction, ownership,
and revenue, etc.
Pub. L. 99–495, § 9(a), designated existing provisions as
par. (1) and added pars. (2) to (4).
Subsec. (h). Pub. L. 99–495, § 13, designated existing
provisions as par. (1) and added par. (2).
Subsec. (j). Pub. L. 99–495, § 3(c), added subsec. (j).
1968—Subsec. (d). Pub. L. 90–451 provided for maintenance of amortization reserves on and after effective
date of new licenses.
1962—Subsecs. (b), (e), (i). Pub. L. 87–647 substituted
‘‘two thousand horsepower’’ for ‘‘one hundred horsepower’’.
1935—Subsec. (a). Act Aug. 26, 1935, § 206, substituted
‘‘plan for improving or developing a waterway or water-

ways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of waterpower development, and for other beneficial uses, including recreational purposes’’ for ‘‘scheme of improvement and utilization for the purposes of navigation, of
water-power development, and of other beneficial public uses,’’ and ‘‘such plan’’ for ‘‘such scheme’’.
Subsec. (b). Act Aug. 26, 1935, § 206, inserted ‘‘installed’’ before ‘‘capacity’’.
Subsec. (d). Act Aug. 26, 1935, § 206, substituted ‘‘net
investment’’ for ‘‘actual, legitimate investment’’.
Subsec. (e). Act Aug. 26, 1935, § 206, amended subsec.
(e) generally.
Subsec. (f). Act Aug. 26, 1935, § 206, inserted last sentence to first par., and inserted last par.
Subsec. (i). Act Aug. 26, 1935, § 206, inserted ‘‘installed’’ before ‘‘capacity’’, and ‘‘annual charges for use
of’’ before ‘‘lands’’ in proviso.
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.
SAVINGS PROVISION
Pub. L. 99–495, § 9(b), Oct. 16, 1986, 100 Stat. 1252, provided that: ‘‘Nothing in this Act [see Short Title of 1986
Amendment note set out under section 791a of this
title] shall affect any annual charge to be paid pursuant to section 10(e) of the Federal Power Act [16 U.S.C.
803(e)] to Indian tribes for the use of their lands within
Indian reservations.’’
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (e)(4) of this section relating to reporting
recommendations to Congress every 5 years, see section
3003 of Pub. L. 104–66, as amended, set out as a note
under section 1113 of Title 31, Money and Finance, and
page 91 of House Document No. 103–7.

§ 804. Project works affecting navigable waters;
requirements insertable in license
If the dam or other project works are to be
constructed across, along, or in any of the navigable waters of the United States, the commission may, insofar as it deems the same reasonably necessary to promote the present and future needs of navigation and consistent with a
reasonable investment cost to the licensee, include in the license any one or more of the following provisions or requirements:
(a) That such licensee shall, to the extent necessary to preserve and improve navigation facilities, construct, in whole or in part, without
expense to the United States, in connection with
such dam, a lock or locks, booms, sluices, or
other structures for navigation purposes, in accordance with plans and specifications approved
by the Chief of Engineers and the Secretary of
the Army and made part of such license.
(b) That in case such structures for navigation
purposes are not made a part of the original construction at the expense of the licensee, then
whenever the United States shall desire to complete such navigation facilities the licensee
shall convey to the United States, free of cost,
such of its land and its rights-of-way and such
right of passage through its dams or other structures, and permit such control of pools as may
be required to complete such navigation facilities.
(c) That such licensee shall furnish free of cost
to the United States power for the operation of

§ 805

TITLE 16—CONSERVATION

such navigation facilities, whether constructed
by the licensee or by the United States.
(June 10, 1920, ch. 285, pt. I, § 11, 41 Stat. 1070; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; July 26, 1947, ch. 343, title II,
§ 205(a), 61 Stat. 501.)
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.

§ 805. Participation by Government in costs of
locks, etc.
Whenever application is filed for a project
hereunder involving navigable waters of the
United States, and the commission shall find
upon investigation that the needs of navigation
require the construction of a lock or locks or
other navigation structures, and that such
structures cannot, consistent with a reasonable
investment cost to the applicant, be provided in
the manner specified in subsection (a) of section
804 of this title, the commission may grant the
application with the provision to be expressed in
the license that the licensee will install the necessary navigation structures if the Government
fails to make provision therefor within a time to
be fixed in the license and cause a report upon
such project to be prepared, with estimates of
cost of the power development and of the navigation structures, and shall submit such report
to Congress with such recommendations as it
deems appropriate concerning the participation
of the United States in the cost of construction
of such navigation structures.
(June 10, 1920, ch. 285, pt. I, § 12, 41 Stat. 1070; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 806. Time limit for construction of project
works; extension of time; termination or revocation of licenses for delay
The licensee shall commence the construction
of the project works within the time fixed in the
license, which shall not be more than two years
from the date thereof, shall thereafter in good
faith and with due diligence prosecute such construction, and shall within the time fixed in the
license complete and put into operation such
part of the ultimate development as the commission shall deem necessary to supply the reasonable needs of the then available market, and
shall from time to time thereafter construct
such portion of the balance of such development
as the commission may direct, so as to supply
adequately the reasonable market demands
until such development shall have been completed. The periods for the commencement of
construction may be extended once but not
longer than two additional years and the period
for the completion of construction carried on in
good faith and with reasonable diligence may be
extended by the commission when not incompat-

Page 1256

ible with the public interests. In case the licensee shall not commence actual construction
of the project works, or of any specified part
thereof, within the time prescribed in the license or as extended by the commission, then,
after due notice given, the license shall, as to
such project works or part thereof, be terminated upon written order of the commission. In
case the construction of the project works, or of
any specified part thereof, has been begun but
not completed within the time prescribed in the
license, or as extended by the commission, then
the Attorney General, upon the request of the
commission, shall institute proceedings in equity in the district court of the United States
for the district in which any part of the project
is situated for the revocation of said license, the
sale of the works constructed, and such other
equitable relief as the case may demand, as provided for in section 820 of this title.
(June 10, 1920, ch. 285, pt. I, § 13, 41 Stat. 1071; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
REFERENCES IN TEXT
Proceedings in equity, referred to in text, were abolished by the adoption of rule 2 of the Federal Rules of
Civil Procedure, set out in the Appendix to Title 28, Judiciary and Judicial Procedure, which provided that
‘‘there shall be one form of action to be known as ‘civil
action’ ’’.

§ 807. Right of Government to take over project
works
(a) Compensation; condemnation by Federal or
State Government
Upon not less than two years’ notice in writing from the commission the United States shall
have the right upon or after the expiration of
any license to take over and thereafter to maintain and operate any project or projects as defined in section 796 of this title, and covered in
whole or in part by the license, or the right to
take over upon mutual agreement with the licensee all property owned and held by the licensee then valuable and serviceable in the development, transmission, or distribution of
power and which is then dependent for its usefulness upon the continuance of the license, together with any lock or locks or other aids to
navigation constructed at the expense of the licensee, upon the condition that before taking
possession it shall pay the net investment of the
licensee in the project or projects taken, not to
exceed the fair value of the property taken, plus
such reasonable damages, if any, to property of
the licensee valuable, serviceable, and dependent as above set forth but not taken, as may be
caused by the severance therefrom of property
taken, and shall assume all contracts entered
into by the licensee with the approval of the
Commission. The net investment of the licensee
in the project or projects so taken and the
amount of such severance damages, if any, shall
be determined by the Commission after notice
and opportunity for hearing. Such net investment shall not include or be affected by the
value of any lands, rights-of-way, or other property of the United States licensed by the Commission under this chapter, by the license or by
good will, going value, or prospective revenues;

Page 1257

TITLE 16—CONSERVATION

nor shall the values allowed for water rights,
rights-of-way, lands, or interest in lands be in
excess of the actual reasonable cost thereof at
the time of acquisition by the licensee: Provided,
That the right of the United States or any State
or municipality to take over, maintain, and operate any project licensed under this chapter at
any time by condemnation proceedings upon
payment of just compensation is expressly reserved.
(b) Relicensing proceedings; Federal agency recommendations of take over by Government;
stay of orders for new licenses; termination
of stay; notice to Congress
In any relicensing proceeding before the Commission any Federal department or agency may
timely recommend, pursuant to such rules as
the Commission shall prescribe, that the United
States exercise its right to take over any
project or projects. Thereafter, the Commission,
if its 1 does not itself recommend such action
pursuant to the provisions of section 800(c) of
this title, shall upon motion of such department
or agency stay the effective date of any order issuing a license, except an order issuing an annual license in accordance with the proviso of
section 808(a) of this title, for two years after
the date of issuance of such order, after which
period the stay shall terminate, unless terminated earlier upon motion of the department or
agency requesting the stay or by action of Congress. The Commission shall notify the Congress
of any stay granted pursuant to this subsection.
(June 10, 1920, ch. 285, pt. I, § 14, 41 Stat. 1071; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 207, 212, 49 Stat. 844, 847; Pub. L.
90–451, § 2, Aug. 3, 1968, 82 Stat. 617; Pub. L.
99–495, § 4(b)(2), Oct. 16, 1986, 100 Stat. 1248.)
AMENDMENTS
1986—Subsec. (b). Pub. L. 99–495 struck out first sentence which read as follows: ‘‘No earlier than five years
before the expiration of any license, the Commission
shall entertain applications for a new license and decide them in a relicensing proceeding pursuant to the
provisions of section 808 of this title.’’
1968—Pub. L. 90–451 designated existing provisions as
subsec. (a) and added subsec. (b).
1935—Act Aug. 26, 1935, § 207, amended section generally.
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.

§ 808. New licenses and renewals
(a) Relicensing procedures; terms and conditions; issuance to applicant with proposal
best adapted to serve public interest; factors
considered
(1) If the United States does not, at the expiration of the existing license, exercise its right to
take over, maintain, and operate any project or
projects of the licensee, as provided in section
807 of this title, the commission is authorized to
issue a new license to the existing licensee upon
such terms and conditions as may be authorized
1 So

in original. Probably should be ‘‘it’’.

§ 808

or required under the then existing laws and regulations, or to issue a new license under said
terms and conditions to a new licensee, which license may cover any project or projects covered
by the existing license, and shall be issued on
the condition that the new licensee shall, before
taking possession of such project or projects,
pay such amount, and assume such contracts as
the United States is required to do in the manner specified in section 807 of this title: Provided,
That in the event the United States does not exercise the right to take over or does not issue a
license to a new licensee, or issue a new license
to the existing licensee, upon reasonable terms,
then the commission shall issue from year to
year an annual license to the then licensee
under the terms and conditions of the existing
license until the property is taken over or a new
license is issued as aforesaid.
(2) Any new license issued under this section
shall be issued to the applicant having the final
proposal which the Commission determines is
best adapted to serve the public interest, except
that in making this determination the Commission shall ensure that insignificant differences
with regard to subparagraphs (A) through (G) of
this paragraph between competing applications
are not determinative and shall not result in the
transfer of a project. In making a determination
under this section (whether or not more than
one application is submitted for the project), the
Commission shall, in addition to the requirements of section 803 of this title, consider (and
explain such consideration in writing) each of
the following:
(A) The plans and abilities of the applicant
to comply with (i) the articles, terms, and conditions of any license issued to it and (ii) other
applicable provisions of this subchapter.
(B) The plans of the applicant to manage,
operate, and maintain the project safely.
(C) The plans and abilities of the applicant
to operate and maintain the project in a manner most likely to provide efficient and reliable electric service.
(D) The need of the applicant over the short
and long term for the electricity generated by
the project or projects to serve its customers,
including, among other relevant considerations, the reasonable costs and reasonable
availability of alternative sources of power,
taking into consideration conservation and
other relevant factors and taking into consideration the effect on the provider (including
its customers) of the alternative source of
power, the effect on the applicant’s operating
and load characteristics, the effect on communities served or to be served by the project,
and in the case of an applicant using power for
the applicant’s own industrial facility and related operations, the effect on the operation
and efficiency of such facility or related operations, its workers, and the related community. In the case of an applicant that is an Indian tribe applying for a license for a project
located on the tribal reservation, a statement
of the need of such tribe for electricity generated by the project to foster the purposes of
the reservation may be included.
(E) The existing and planned transmission
services of the applicant, taking into consider-

§ 808

TITLE 16—CONSERVATION

ation system reliability, costs, and other applicable economic and technical factors.
(F) Whether the plans of the applicant will
be achieved, to the greatest extent possible, in
a cost effective manner.
(G) Such other factors as the Commission
may deem relevant, except that the terms and
conditions in the license for the protection,
mitigation, or enhancement of fish and wildlife resources affected by the development, operation, and management of the project shall
be determined in accordance with section 803
of this title, and the plans of an applicant concerning fish and wildlife shall not be subject
to a comparative evaluation under this subsection.
(3) In the case of an application by the existing licensee, the Commission shall also take
into consideration each of the following:
(A) The existing licensee’s record of compliance with the terms and conditions of the existing license.
(B) The actions taken by the existing licensee related to the project which affect the
public.
(b) Notification of intention regarding renewal;
public availability of documents; notice to
public and Federal agencies; identification of
Federal or Indian lands included; additional
information required
(1) Each existing licensee shall notify the
Commission whether the licensee intends to file
an application for a new license or not. Such notice shall be submitted at least 5 years before
the expiration of the existing license.
(2) At the time notice is provided under paragraph (1), the existing licensee shall make each
of the following reasonably available to the public for inspection at the offices of such licensee:
current maps, drawings, data, and such other information as the Commission shall, by rule, require regarding the construction and operation
of the licensed project. Such information shall
include, to the greatest extent practicable pertinent energy conservation, recreation, fish and
wildlife, and other environmental information.
Copies of the information shall be made available at reasonable costs of reproduction. Within
180 days after October 16, 1986, the Commission
shall promulgate regulations regarding the information to be provided under this paragraph.
(3) Promptly following receipt of notice under
paragraph (1), the Commission shall provide
public notice of whether an existing licensee intends to file or not to file an application for a
new license. The Commission shall also promptly notify the National Marine Fisheries Service
and the United States Fish and Wildlife Service,
and the appropriate State fish and wildlife agencies.
(4) The Commission shall require the applicant
to identify any Federal or Indian lands included
in the project boundary, together with a statement of the annual fees paid as required by this
subchapter for such lands, and to provide such
additional information as the Commission
deems appropriate to carry out the Commission’s responsibilities under this section.

Page 1258

(c) Time of filing application; consultation and
participation in studies with fish and wildlife agencies; notice to applicants; adjustment of time periods
(1) Each application for a new license pursuant
to this section shall be filed with the Commission at least 24 months before the expiration of
the term of the existing license. Each applicant
shall consult with the fish and wildlife agencies
referred to in subsection (b) and, as appropriate,
conduct studies with such agencies. Within 60
days after the statutory deadline for the submission of applications, the Commission shall issue
a notice establishing expeditious procedures for
relicensing and a deadline for submission of
final amendments, if any, to the application.
(2) The time periods specified in this subsection and in subsection (b) shall be adjusted,
in a manner that achieves the objectives of this
section, by the Commission by rule or order
with respect to existing licensees who, by reason
of the expiration dates of their licenses, are unable to comply with a specified time period.
(d) Adequacy of transmission facilities; provision
of services to successor by existing licensee;
tariff; final order; modification, extension or
termination of order
(1) In evaluating applications for new licenses
pursuant to this section, the Commission shall
not consider whether an applicant has adequate
transmission facilities with regard to the
project.
(2) When the Commission issues a new license
(pursuant to this section) to an applicant which
is not the existing licensee of the project and
finds that it is not feasible for the new licensee
to utilize the energy from such project without
provision by the existing licensee of reasonable
services, including transmission services, the
Commission shall give notice to the existing licensee and the new licensee to immediately
enter into negotiations for such services and the
costs demonstrated by the existing licensee as
being related to the provision of such services.
It is the intent of the Congress that such negotiations be carried out in good faith and that a
timely agreement be reached between the parties in order to facilitate the transfer of the license by the date established when the Commission issued the new license. If such parties do
not notify the Commission that within the time
established by the Commission in such notice
(and if appropriate, in the judgment of the Commission, one 45-day extension thereof), a mutually satisfactory arrangement for such services
that is consistent with the provisions of this
chapter has been executed, the Commission
shall order the existing licensee to file (pursuant
to section 824d of this title) with the Commission a tariff, subject to refund, ensuring such
services beginning on the date of transfer of the
project and including just and reasonable rates
and reasonable terms and conditions. After notice and opportunity for a hearing, the Commission shall issue a final order adopting or modifying such tariff for such services at just and reasonable rates in accordance with section 824d of
this title and in accordance with reasonable
terms and conditions. The Commission, in issuing such order, shall ensure the services nec-

Page 1259

§ 809

TITLE 16—CONSERVATION

essary for the full and efficient utilization and
benefits for the license term of the electric energy from the project by the new licensee in accordance with the license and this subchapter,
except that in issuing such order the Commission—
(A) shall not compel the existing licensee to
enlarge generating facilities, transmit electric
energy other than to the distribution system
(providing service to customers) of the new licensee identified as of the date one day preceding the date of license award, or require the
acquisition of new facilities, including the upgrading of existing facilities other than any
reasonable enhancement or improvement of
existing facilities controlled by the existing licensee (including any acquisition related to
such enhancement or improvement) necessary
to carry out the purposes of this paragraph;
(B) shall not adversely affect the continuity
and reliability of service to the customers of
the existing licensee;
(C) shall not adversely affect the operational
integrity of the transmission and electric systems of the existing licensee;
(D) shall not cause any reasonably quantifiable increase in the jurisdictional rates of the
existing licensee; and
(E) shall not order any entity other than the
existing licensee to provide transmission or
other services.
Such order shall be for such period as the Commission deems appropriate, not to exceed the
term of the license. At any time, the Commission, upon its own motion or upon a petition by
the existing or new licensee and after notice and
opportunity for a hearing, may modify, extend,
or terminate such order.
(e) License term on relicensing
Except for an annual license, any license issued by the Commission under this section shall
be for a term which the Commission determines
to be in the public interest but not less than 30
years, nor more than 50 years, from the date on
which the license is issued.
(f) Nonpower use licenses; recordkeeping
In issuing any licenses under this section except an annual license, the Commission, on its
own motion or upon application of any licensee,
person, State, municipality, or State commission, after notice to each State commission and
licensee affected, and after opportunity for hearing, whenever it finds that in conformity with a
comprehensive plan for improving or developing
a waterway or waterways for beneficial public
uses all or part of any licensed project should no
longer be used or adapted for use for power purposes, may license all or part of the project
works for nonpower use. A license for nonpower
use shall be issued to a new licensee only on the
condition that the new licensee shall, before
taking possession of the facilities encompassed
thereunder, pay such amount and assume such
contracts as the United States is required to do,
in the manner specified in section 807 of this
title. Any license for nonpower use shall be a
temporary license. Whenever, in the judgment of
the Commission, a State, municipality, interstate agency, or another Federal agency is au-

thorized and willing to assume regulatory supervision of the lands and facilities included under
the nonpower license and does so, the Commission shall thereupon terminate the license. Consistent with the provisions of subchapter IV of
this chapter, every licensee for nonpower use
shall keep such accounts and file such annual
and other periodic or special reports concerning
the removal, alteration, nonpower use, or other
disposition of any project works or parts thereof
covered by the nonpower use license as the Commission may by rules and regulations or order
prescribe as necessary or appropriate.
(June 10, 1920, ch. 285, pt. I, § 15, 41 Stat. 1072; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; Pub. L. 90–451, § 3, Aug. 3, 1968,
82 Stat. 617; Pub. L. 99–495, §§ 4(a), (b)(1), 5, Oct.
16, 1986, 100 Stat. 1245, 1248.)
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–495, § 4(a), (b)(1), designated existing provisions as par. (1), substituted ‘‘existing’’ for ‘‘original’’ wherever appearing, and added
pars. (2) and (3).
Subsecs. (b) to (f). Pub. L. 99–495, §§ 4(a), 5, added subsecs. (b) to (e) and redesignated former subsec. (b) as
(f).
1968—Pub. L. 90–451 designated existing provisions as
subsec. (a) and added subsec. (b).
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.

§ 809. Temporary use by Government of project
works for national safety; compensation for
use
When in the opinion of the President of the
United States, evidenced by a written order addressed to the holder of any license under this
chapter, the safety of the United States demands it, the United States shall have the right
to enter upon and take possession of any project
or part thereof, constructed, maintained, or operated under said license, for the purpose of
manufacturing nitrates, explosives, or munitions of war, or for any other purpose involving
the safety of the United States, to retain possession, management, and control thereof for such
length of time as may appear to the President to
be necessary to accomplish said purposes, and
then to restore possession and control to the
party or parties entitled thereto; and in the
event that the United States shall exercise such
right it shall pay to the party or parties entitled
thereto just and fair compensation for the use of
said property as may be fixed by the commission
upon the basis of a reasonable profit in time of
peace, and the cost of restoring said property to
as good condition as existed at the time of the
taking over thereof, less the reasonable value of
any improvements that may be made thereto by
the United States and which are valuable and
serviceable to the licensee.
(June 10, 1920, ch. 285, pt. I, § 16, 41 Stat. 1072; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
TERMINATION OF WAR AND EMERGENCIES
Joint Res. July 25, 1947, ch. 327, § 3, 61 Stat. 451, provided that in the interpretation of this section, the

§ 810

TITLE 16—CONSERVATION

date July 25, 1947, shall be deemed to be the date of termination of any state of war theretofore declared by
Congress and of the national emergencies proclaimed
by the President on September 8, 1939, and May 27, 1941.

§ 810. Disposition of charges arising from licenses
(a) Receipts from charges
All proceeds from any Indian reservation shall
be placed to the credit of the Indians of such reservation. All other charges arising from licenses
hereunder, except charges fixed by the Commission for the purpose of reimbursing the United
States for the costs of administration of this
subchapter, shall be paid into the Treasury of
the United States, subject to the following distribution: 121⁄2 per centum thereof is hereby appropriated to be paid into the Treasury of the
United States and credited to ‘‘Miscellaneous receipts’’; 50 per centum of the charges arising
from licenses hereunder for the occupancy and
use of public lands and national forests shall be
paid into, reserved, and appropriated as a part of
the reclamation fund created by the Act of Congress known as the Reclamation Act, approved
June 17, 1902; and 371⁄2 per centum of the charges
arising from licenses hereunder for the occupancy and use of national forests and public
lands from development within the boundaries
of any State shall be paid by the Secretary of
the Treasury to such State; and 50 per centum of
the charges arising from all other licenses hereunder is reserved and appropriated as a special
fund in the Treasury to be expended under the
direction of the Secretary of the Army in the
maintenance and operation of dams and other
navigation structures owned by the United
States or in the construction, maintenance, or
operation of headwater or other improvements
of navigable waters of the United States. The
proceeds of charges made by the Commission for
the purpose of reimbursing the United States for
the costs of the administration of this subchapter shall be paid into the Treasury of the
United States and credited to miscellaneous receipts.
(b) Delinquent payments
In case of delinquency on the part of any licensee in the payment of annual charges a penalty of 5 per centum of the total amount so delinquent may be added to the total charges
which shall apply for the first month or part of
month so delinquent with an additional penalty
of 3 per centum for each subsequent month until
the total of the charges and penalties are paid or
until the license is canceled and the charges and
penalties satisfied in accordance with law.
(June 10, 1920, ch. 285, pt. I, § 17, 41 Stat. 1072; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 208, 212, 49 Stat. 845, 847; July 26,
1947, ch. 343, title II, § 205(a), 61 Stat. 501.)
REFERENCES IN TEXT
The Act of Congress known as the Reclamation Act,
approved June 17, 1902, referred to in subsec. (a), probably means act June 17, 1902, ch. 1093, 32 Stat. 388,
which is classified generally to chapter 12 (§ 371 et seq.)
of Title 43, Public Lands. For complete classification of
this Act to the Code, see Short Title note set out under
section 371 of Title 43 and Tables. The reclamation fund

Page 1260

created by that Act was established by section 391 of
Title 43.
AMENDMENTS
1935—Act Aug. 26, 1935, § 208, amended section generally, designating existing provisions as subsec. (a), inserting ‘‘except charges fixed by the Commission for
the purpose of reimbursing the United States for the
costs of administration of this Part,’’, substituting
‘‘national forests’’ for ‘‘national monuments, national
forests, and national parks’’ wherever appearing, inserting last sentence relating to payment of proceeds of
charges into Treasury, and adding subsec. (b).
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.

§ 811. Operation of navigation facilities; rules
and regulations; penalties
The Commission shall require the construction, maintenance, and operation 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 Secretary of the Interior or the Secretary of Commerce, as appropriate. The license applicant and
any party to the proceeding shall be entitled to
a determination on the record, after opportunity
for an agency trial-type hearing of no more than
90 days, on any disputed issues of material fact
with respect to such fishways. All disputed issues of material fact raised by any party shall
be determined in a single trial-type hearing to
be conducted by the relevant resource agency in
accordance with the regulations promulgated
under this subsection 1 and within the time
frame established by the Commission for each license proceeding. Within 90 days of August 8,
2005, the Secretaries of the Interior, Commerce,
and Agriculture shall establish jointly, by rule,
the procedures for such expedited trial-type
hearing, including the opportunity to undertake
discovery and cross-examine witnesses, in consultation with the Federal Energy Regulatory
Commission. The operation of any navigation
facilities which may be constructed as a part of
or in connection with any dam or diversion
structure built under the provisions of this
chapter, whether at the expense of a licensee
hereunder or of the United States, shall at all
times be controlled by such reasonable rules and
regulations in the interest of navigation, including the control of the level of the pool caused by
such dam or diversion structure as may be made
from time to time by the Secretary of the Army;
and for willful failure to comply with any such
rule or regulation such licensee shall be deemed
guilty of a misdemeanor, and upon conviction
thereof shall be punished as provided in section
825o of this title.
(June 10, 1920, ch. 285, pt. I, § 18, 41 Stat. 1073; renumbered pt. I and amended, Aug. 26, 1935, ch.
1 So

in original. Probably should be ‘‘section’’.

Page 1261

TITLE 16—CONSERVATION

687, title II, §§ 209, 212, 49 Stat. 845, 847; 1939
Reorg. Plan No. II, § 4(e), eff. July 1, 1939, 4 F.R.
2731, 53 Stat. 1433; July 26, 1947, ch. 343, title II,
§ 205(a), 61 Stat. 501; June 4, 1956, ch. 351, § 2, 70
Stat. 226; 1970 Reorg. Plan No. 4, eff. Oct. 3, 1970,
35 F.R. 15627, 84 Stat. 2090; Pub. L. 109–58, title II,
§ 241(b), Aug. 8, 2005, 119 Stat. 674.)
AMENDMENTS
2005—Pub. L. 109–58 inserted after first sentence ‘‘The
license applicant and any party to the proceeding shall
be entitled to a determination on the record, after opportunity for an agency trial-type hearing of no more
than 90 days, on any disputed issues of material fact
with respect to such fishways. All disputed issues of
material fact raised by any party shall be determined
in a single trial-type hearing to be conducted by the
relevant resource agency in accordance with the regulations promulgated under this subsection and within
the time frame established by the Commission for each
license proceeding. Within 90 days of August 8, 2005, the
Secretaries of the Interior, Commerce, and Agriculture
shall establish jointly, by rule, the procedures for such
expedited trial-type hearing, including the opportunity
to undertake discovery and cross-examine witnesses, in
consultation with the Federal Energy Regulatory Commission.’’
1956—Act June 4, 1956, substituted ‘‘Secretary of the
Department in which the Coast Guard is operating’’ for
‘‘Secretary of War’’ in first sentence.
1935—Act Aug. 26, 1935, § 209, amended section generally, inserting first sentence, striking out ‘‘Such rules
and regulations may include the maintenance and operation of such licensee at its own expense of such lights
and signals as may be directed by the Secretary of War,
and such fishways as may be prescribed by the Secretary of Commerce.’’, and substituting section ‘‘825o’’
for section ‘‘819’’.
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.
Reference to Secretary of Commerce inserted in view
of: creation of National Oceanic and Atmospheric Administration in Department of Commerce and Office of
Administrator of such Administration; abolition of Bureau of Commercial Fisheries in Department of the Interior and Office of Director of such Bureau; transfers
of functions, including functions formerly vested by
law in Secretary of the Interior or Department of the
Interior which were administered through Bureau of
Commercial Fisheries or were primarily related to such
Bureau, exclusive of certain enumerated functions with
respect to Great Lakes fishery research, Missouri River
Reservoir research, Gulf Breeze Biological Laboratory,
and Trans-Alaska pipeline investigations; and transfer
of marine sport fish program of Bureau of Sport Fisheries and Wildlife by Reorg. Plan No. 4 of 1970, eff. Oct.
3, 1970, 35 F.R. 15627, 84 Stat. 2090, set out in the Appen-

§ 812

dix to Title 5, Government Organization and Employees.
Coast Guard transferred to Department of Transportation and all functions, powers, and duties, relating to
Coast Guard, of Secretary of the Treasury and of other
offices and officers of Department of the Treasury
transferred to Secretary of Transportation by section
6(b)(1) of Pub. L. 89–670, Oct. 15, 1966, 80 Stat. 938. See
Section 108 of Title 49, Transportation.
Reorg. Plan No. II of 1939, set out in the Appendix to
Title 5, Government Organization and Employees,
transferred Bureau of Fisheries in Department of Commerce and its functions to Department of the Interior,
to be administered under direction and supervision of
Secretary of the Interior.
CLARIFICATION OF AUTHORITY REGARDING FISHWAYS
Pub. L. 102–486, title XVII, § 1701(b), Oct. 24, 1992, 106
Stat. 3008, provided that: ‘‘The definition of the term
‘fishway’ contained in 18 C.F.R. 4.30(b)(9)(iii), as in effect on the date of enactment of this Act [Oct. 24, 1992],
is vacated without prejudice to any definition or interpretation by rule of the term ‘fishway’ by the Federal
Energy Regulatory Commission for purposes of implementing section 18 of the Federal Power Act [16 U.S.C.
811]: Provided, That any future definition promulgated
by regulatory rulemaking shall have no force or effect
unless concurred in by the Secretary of the Interior
and the Secretary of Commerce: Provided further, That
the items which may constitute a ‘fishway’ under section 18 for the safe and timely upstream and downstream passage of fish shall be limited to physical
structures, facilities, or devices necessary to maintain
all life stages of such fish, and project operations and
measures related to such structures, facilities, or devices which are necessary to ensure the effectiveness of
such structures, facilities, or devices for such fish.’’

§ 812. Public-service licensee; regulations by
State or by commission as to service, rates,
charges, etc.
As a condition of the license, every licensee
under this chapter which is a public-service corporation, or a person, association, or corporation owning or operating any project and developing, transmitting, or distributing power for
sale or use in public service, shall abide by such
reasonable regulation of the services to be rendered to customers or consumers of power, and
of rates and charges of payment therefor, as
may from time to time be prescribed by any
duly constituted agency of the State in which
the service is rendered or the rate charged. That
in case of the development, transmission, or distribution, or use in public service of power by
any licensee under this chapter or by its customer engaged in public service within a State
which has not authorized and empowered a commission or other agency or agencies within said
State to regulate and control the services to be
rendered by such licensee or by its customer engaged in public service, or the rates and charges
of payment therefor, or the amount or character
of securities to be issued by any of said parties,
it is agreed as a condition of such license that
jurisdiction is conferred upon the commission,
upon complaint of any person aggrieved or upon
its own initiative, to exercise such regulation
and control until such time as the State shall
have provided a commission or other authority
for such regulation and control: Provided, That
the jurisdiction of the commission shall cease
and determine as to each specific matter of regulation and control prescribed in this section as
soon as the State shall have provided a commis-

§ 813

TITLE 16—CONSERVATION

sion or other authority for the regulation and
control of that specific matter.
(June 10, 1920, ch. 285, pt. I, § 19, 41 Stat. 1073; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 813. Power entering into interstate commerce;
regulation of rates, charges, etc.
When said power or any part thereof shall
enter into interstate or foreign commerce the
rates charged and the service rendered by any
such licensee, or by any subsidiary corporation,
the stock of which is owned or controlled directly or indirectly by such licensee, or by any
person, corporation, or association purchasing
power from such licensee for sale and distribution or use in public service shall be reasonable,
nondiscriminatory, and just to the customer and
all unreasonable discriminatory and unjust
rates or services are prohibited and declared to
be unlawful; and whenever any of the States directly concerned has not provided a commission
or other authority to enforce the requirements
of this section within such State or to regulate
and control the amount and character of securities to be issued by any of such parties, or such
States are unable to agree through their properly constituted authorities on the services to
be rendered, or on the rates or charges of payment therefor, or on the amount or character of
securities to be issued by any of said parties, jurisdiction is conferred upon the commission,
upon complaint of any person, aggrieved, upon
the request of any State concerned, or upon its
own initiative to enforce the provisions of this
section, to regulate and control so much of the
services rendered, and of the rates and charges
of payment therefor as constitute interstate or
foreign commerce and to regulate the issuance
of securities by the parties included within this
section, and securities issued by the licensee
subject to such regulations shall be allowed only
for the bona fide purpose of financing and conducting the business of such licensee.
The administration of the provisions of this
section, so far as applicable, shall be according
to the procedure and practice in fixing and regulating the rates, charges, and practices of railroad companies as provided in subtitle IV of
title 49, and the parties subject to such regulation shall have the same rights of hearing, defense, and review as said companies in such
cases.
In any valuation of the property of any licensee hereunder for purposes of rate making,
no value shall be claimed by the licensee or allowed by the commission for any project or
projects under license in excess of the value or
values prescribed in section 807 of this title for
the purposes of purchase by the United States,
but there shall be included the cost to such licensee of the construction of the lock or locks
or other aids of navigation and all other capital
expenditures required by the United States, and
no value shall be claimed or allowed for the
rights granted by the commission or by this
chapter.
(June 10, 1920, ch. 285, pt. I, § 20, 41 Stat. 1073; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)

Page 1262
CODIFICATION

‘‘Subtitle IV of title 49’’ substituted in text for ‘‘the
Act to regulate commerce, approved February 4, 1887,
as amended’’ on authority of Pub. L. 95–473, § 3(b), Oct.
17, 1978, 92 Stat. 1466, the first section of which enacted
subtitle IV of Title 49, Transportation.

§ 814. Exercise by licensee of power of eminent
domain
When any licensee cannot acquire by contract
or pledges an unimproved dam site or the right
to use or damage the lands or property of others
necessary to the construction, maintenance, or
operation of any dam, reservoir, diversion structure, or the works appurtenant or accessory
thereto, in conjunction with any improvement
which in the judgment of the commission is desirable and justified in the public interest for
the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, it may acquire the
same by the exercise of the right of eminent domain in the district court of the United States
for the district in which such land or other property may be located, or in the State courts. The
practice and procedure in any action or proceeding for that purpose in the district court of the
United States shall conform as nearly as may be
with the practice and procedure in similar action or proceeding in the courts of the State
where the property is situated: Provided, That
United States district courts shall only have jurisdiction of cases when the amount claimed by
the owner of the property to be condemned exceeds $3,000 1 Provided further, That no licensee
may use the right of eminent domain under this
section to acquire any lands or other property
that, prior to October 24, 1992, were owned by a
State or political subdivision thereof and were
part of or included within any public park,
recreation area or wildlife refuge established
under State or local law. In the case of lands or
other property that are owned by a State or political subdivision and are part of or included
within a public park, recreation area or wildlife
refuge established under State or local law on or
after October 24, 1992, no licensee may use the
right of eminent domain under this section to
acquire such lands or property unless there has
been a public hearing held in the affected community and a finding by the Commission, after
due consideration of expressed public views and
the recommendations of the State or political
subdivision that owns the lands or property,
that the license will not interfere or be inconsistent with the purposes for which such lands
or property are owned.
(June 10, 1920, ch. 285, pt. I, § 21, 41 Stat. 1074; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; Pub. L. 102–486, title XVII,
§ 1701(d), Oct. 24, 1992, 106 Stat. 3009.)
AMENDMENTS
1992—Pub. L. 102–486 substituted final proviso and
sentence for period at end.
1 So

in original. Probably should be followed by a colon.

Page 1263

§ 817

TITLE 16—CONSERVATION

§ 815. Contract to furnish power extending beyond period of license; obligations of new licensee
Whenever the public interest requires or justifies the execution by the licensee of contracts
for the sale and delivery of power for periods extending beyond the date of termination of the license, such contracts may be entered into upon
the joint approval of the commission and of the
public-service commission or other similar authority in the State in which the sale or delivery of power is made, or if sold or delivered in
a State which has no such public-service commission, then upon the approval of the commission, and thereafter, in the event of failure to
issue a new license to the original licensee at
the termination of the license, the United
States or the new licensee, as the case may be,
shall assume and fulfill all such contracts.
(June 10, 1920, ch. 285, pt. I, § 22, 41 Stat. 1074; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 816. Preservation of rights vested prior to June
10, 1920
The provisions of this subchapter shall not be
construed as affecting any permit or valid existing right-of-way granted prior to June 10, 1920,
or as confirming or otherwise affecting any
claim, or as affecting any authority heretofore
given pursuant to law, but any person, association, corporation, State, or municipality holding or possessing such permit, right-of-way or
authority may apply for a license under this
chapter, and upon such application the Commission may issue to any such applicant a license in
accordance with the provisions of this subchapter and in such case the provisions of this
chapter shall apply to such applicant as a licensee under this chapter: Provided, That when
application is made for a license under this section for a project or projects already constructed the fair value of said project or projects
determined as provided in this section, shall for
the purposes of this subchapter and of said license be deemed to be the amount to be allowed
as the net investment of the applicant in such
project or projects as of the date of such license,
or as of the date of such determination, if license has not been issued. Such fair value shall
be determined by the Commission after notice
and opportunity for hearing.
(June 10, 1920, ch. 285, pt. I, § 23(a), 41 Stat. 1075;
renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 210, 212, 49 Stat. 846, 847.)
CODIFICATION
Section consists of subsec. (a) of section 23 of act
June 10, 1920, as so designated by act Aug. 26, 1935. Subsec. (b) of section 23 of act June 10, 1920, is set out as
section 817 of this title.
AMENDMENTS
1935—Act Aug. 26, 1935, § 210, amended section generally, substituting ‘‘part’’ for ‘‘chapter’’ wherever appearing, substituting ‘‘heretofore’’ for ‘‘then’’, and substituting the last sentence for ‘‘Such fair value may, in
the discretion of the commission, be determined by mutual agreement between the commission and the applicant or, in case they cannot agree, jurisdiction is here-

by conferred upon the district court of the United
States in the district within which such project or
projects may be located, upon the application of either
party, to hear and determine the amount of such fair
value.’’

§ 817. Projects not affecting navigable waters; necessity for Federal license, permit or right-ofway; unauthorized activities
(1) It shall be unlawful for any person, State,
or municipality, for the purpose of developing
electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power
house, or other works incidental thereto across,
along, or in any of the navigable waters of the
United States, or upon any part of the public
lands or reservations of the United States (including the Territories), or utilize the surplus
water or water power from any Government
dam, except under and in accordance with the
terms of a permit or valid existing right-of-way
granted prior to June 10, 1920, or a license granted pursuant to this chapter. Any person, association, corporation, State, or municipality intending to construct a dam or other project
works, across, along, over, or in any stream or
part thereof, other than those defined in this
chapter as navigable waters, and over which
Congress has jurisdiction under its authority to
regulate commerce with foreign nations and
among the several States shall before such construction file declaration of such intention with
the Commission, whereupon the Commission
shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of
interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, State, or municipality shall not construct, maintain, or operate
such dam or other project works until it shall
have applied for and shall have received a license under the provisions of this chapter. If the
Commission shall not so find, and if no public
lands or reservations are affected, permission is
granted to construct such dam or other project
works in such stream upon compliance with
State laws.
(2) No person may commence any significant
modification of any project licensed under, or
exempted from, this chapter unless such modification is authorized in accordance with terms
and conditions of such license or exemption and
the applicable requirements of this subchapter.
As used in this paragraph, the term ‘‘commence’’ refers to the beginning of physical onsite activity other than surveys or testing.
(June 10, 1920, ch. 285, pt. I, § 23(b), 41 Stat. 1075;
renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 210, 212, 49 Stat. 846, 847; Pub. L.
99–495, § 6, Oct. 16, 1986, 100 Stat. 1248.)
CODIFICATION
Section consists of subsec. (b) of section 23 of act
June 10, 1920, as so designated by act Aug. 26, 1935. Subsec. (a) of section 23 of act June 10, 1920, is set out as
section 816 of this title.
AMENDMENTS
1986—Pub. L. 99–495 designated existing provisions as
par. (1) and added par. (2).

§ 818

TITLE 16—CONSERVATION

1935—Act Aug. 26, 1935, § 210, amended section generally, inserting first sentence, and substituting ‘‘with
foreign nations’’ for ‘‘between foreign nations’’, ‘‘shall
before such construction’’ for ‘‘may in their discretion’’
and ‘‘shall not construct, maintain, or operate such
dam or other project works’’ for ‘‘shall not proceed
with such construction’’.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99–495 applicable to licenses,
permits, and exemptions without regard to when issued, see section 18 of Pub. L. 99–495, set out as a note
under section 797 of this title.

§ 818. Public lands included in project; reservation of lands from entry
Any lands of the United States included in any
proposed project under the provisions of this
subchapter shall from the date of filing of application therefor be reserved from entry, location,
or other disposal under the laws of the United
States until otherwise directed by the Commission or by Congress. Notice that such application has been made, together with the date of
filing thereof and a description of the lands of
the United States affected thereby, shall be filed
in the local land office for the district in which
such lands are located. Whenever the Commission shall determine that the value of any lands
of the United States so applied for, or heretofore
or hereafter reserved or classified as power sites,
will not be injured or destroyed for the purposes
of power development by location, entry, or selection under the public-land laws, the Secretary of the Interior, upon notice of such determination, shall declare such lands open to location, entry, or selection, for such purpose or purposes and under such restrictions as the Commission may determine, subject to and with a
reservation of the right of the United States or
its permittees or licensees to enter upon, occupy, and use any part or all of said lands necessary, in the judgment of the Commission, for
the purposes of this subchapter, which right
shall be expressly reserved in every patent issued for such lands; and no claim or right to
compensation shall accrue from the occupation
or use of any of said lands for said purposes. The
United States or any licensee for any such lands
hereunder may enter thereupon for the purposes
of this subchapter, upon payment of any damages to crops, buildings, or other improvements
caused thereby to the owner thereof, or upon
giving a good and sufficient bond to the United
States for the use and benefit of the owner to secure the payment of such damages as may be determined and fixed in an action brought upon
the bond in a court of competent jurisdiction,
said bond to be in the form prescribed by the
Commission: Provided, That locations, entries,
selections, or filings heretofore made for lands
reserved as water-power sites, or in connection
with water-power development, or electrical
transmission may proceed to approval or patent
under and subject to the limitations and conditions in this section contained: Provided further,
That before any lands applied for, or heretofore
or hereafter reserved, or classified as power
sites, are declared open to location, entry, or selection by the Secretary of the Interior, notice
of intention to make such declaration shall be
given to the Governor of the State within which

Page 1264

such lands are located, and such State shall
have ninety days from the date of such notice
within which to file, under any statute or regulation applicable thereto, an application for the
reservation to the State, or any political subdivision thereof, of any lands required as a
right-of-way for a public highway or as a source
of materials for the construction and maintenance of such highways, and a copy of such application shall be filed with the Federal Power
Commission; and any location, entry, or selection of such lands, or subsequent patent thereof,
shall be subject to any rights granted the State
pursuant to such application.
(June 10, 1920, ch. 285, pt. I, § 24, 41 Stat. 1075; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 211, 212, 49 Stat. 846, 847; May 28,
1948, ch. 351, 62 Stat. 275.)
AMENDMENTS
1948—Act May 28, 1948, inserted second proviso in last
sentence so that States may apply for reservations of
portions of power sites released for entry, location, or
selection to the States for highway purposes.
1935—Act Aug. 26, 1935, § 211, amended section generally, inserting ‘‘for such purpose or purposes and under
such restrictions as the commission may determine’’,
substituted ‘‘part’’ for ‘‘chapter’’ wherever appearing,
and striking out from proviso ‘‘prior to June 10, 1920’’
after ‘‘made’’.

§ 819. Repealed. Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847
Section, act June 10, 1920, ch. 285, pt. I, § 25, 41 Stat.
1076, related to offenses and punishment. See section
825m et seq. of this title.

§ 820. Proceedings for revocation of license or to
prevent violations of license
The Attorney General may, on request of the
commission or of the Secretary of the Army, institute proceedings in equity in the district
court of the United States in the district in
which any project or part thereof is situated for
the purpose of revoking for violation of its
terms any permit or license issued hereunder, or
for the purpose of remedying or correcting by
injunction, mandamus, or other process any act
of commission or omission in violation of the
provisions of this chapter or of any lawful regulation or order promulgated hereunder. The district courts shall have jurisdiction over all of
the above-mentioned proceedings and shall have
power to issue and execute all necessary process
and to make and enforce all writs, orders and
decrees to compel compliance with the lawful
orders and regulations of the commission and of
the Secretary of the Army, and to compel the
performance of any condition imposed under the
provisions of this chapter. In the event a decree
revoking a license is entered, the court is empowered to sell the whole or any part of the
project or projects under license, to wind up the
business of such licensee conducted in connection with such project or projects, to distribute
the proceeds to the parties entitled to the same,
and to make and enforce such further orders and
decrees as equity and justice may require. At
such sale or sales the vendee shall take the
rights and privileges belonging to the licensee
and shall perform the duties of such licensee and

Page 1265

§ 823a

TITLE 16—CONSERVATION

assume all outstanding obligations and liabilities of the licensee which the court may deem
equitable in the premises; and at such sale or
sales the United States may become a purchaser, but it shall not be required to pay a
greater amount than it would be required to pay
under the provisions of section 807 of this title
at the termination of the license.
(June 10, 1920, ch. 285, pt. I, § 26, 41 Stat. 1076; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; July 26, 1947, ch. 343, title II,
§ 205(a), 61 Stat. 501.)
REFERENCES IN TEXT
Proceedings in equity, referred to in text, were abolished by the adoption of Rule 2 of the Federal Rules of
Civil Procedure, set out in the Appendix to Title 28, Judiciary and Judicial Procedure, which provided that
‘‘there shall be one form of action to be known as ‘civil
action’ ’’.
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.

§ 821. State laws and water rights unaffected
Nothing contained in this chapter shall be
construed as affecting or intending to affect or
in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any
vested right acquired therein.
(June 10, 1920, ch. 285, pt. I, § 27, 41 Stat. 1077; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 822. Reservation of right to alter or repeal
chapter
The right to alter, amend, or repeal this chapter is expressly reserved; but no such alteration,
amendment, or repeal shall affect any license
theretofore issued under the provisions of this
chapter or the rights of any licensee thereunder.
(June 10, 1920, ch. 285, pt. I, § 28, 41 Stat. 1077; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 823. Repeal of inconsistent laws
All Acts or parts of Acts inconsistent with
this chapter are repealed: Provided, That nothing contained herein shall be held or construed
to modify or repeal any of the provisions of the
Act of Congress approved December 19, 1913,
granting certain rights-of-way to the city and
county of San Francisco, in the State of California.
(June 10, 1920, ch. 285, pt. I, § 29, 41 Stat. 1077; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
REFERENCES IN TEXT
Herein, referred to in text, means act June 10, 1920,
which is classified generally to this chapter.

The Act of Congress approved December 19, 1913, referred to in text, was not classified to the Code.
CODIFICATION
As originally enacted, this section contained the further proviso: ‘‘That section 18 of an Act making appropriations for the construction, repair and preservation,
of certain public works on rivers and harbors, and for
other purposes, approved August 8, 1917, is hereby repealed.’’

§ 823a. Conduit hydroelectric facilities
(a) Qualifying conduit hydropower facilities
(1) A qualifying conduit hydropower facility
shall not be required to be licensed under this
subchapter.
(2)(A) Any person, State, or municipality proposing to construct a qualifying conduit hydropower facility shall file with the Commission a
notice of intent to construct such facility. The
notice shall include sufficient information to
demonstrate that the facility meets the qualifying criteria.
(B) Not later than 15 days after receipt of a notice of intent filed under subparagraph (A), the
Commission shall—
(i) make an initial determination as to
whether the facility meets the qualifying criteria; and
(ii) if the Commission makes an initial determination, pursuant to clause (i), that the
facility meets the qualifying criteria, publish
public notice of the notice of intent filed
under subparagraph (A).
(C) If, not later than 45 days after the date of
publication of the public notice described in subparagraph (B)(ii)—
(i) an entity contests whether the facility
meets the qualifying criteria, the Commission
shall promptly issue a written determination
as to whether the facility meets such criteria;
or
(ii) no entity contests whether the facility
meets the qualifying criteria, the facility shall
be deemed to meet such criteria.
(3) For purposes of this section:
(A) The term ‘‘conduit’’ means any tunnel,
canal, pipeline, aqueduct, flume, ditch, or
similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption
and not primarily for the generation of electricity.
(B) The term ‘‘qualifying conduit hydropower facility’’ means a facility (not including
any dam or other impoundment) that is determined or deemed under paragraph (2)(C) to
meet the qualifying criteria.
(C) The term ‘‘qualifying criteria’’ means,
with respect to a facility—
(i) the facility is constructed, operated, or
maintained for the generation of electric
power and uses for such generation only the
hydroelectric potential of a non-federally
owned conduit;
(ii) the facility has an installed capacity
that does not exceed 5 megawatts; and
(iii) on or before August 9, 2013, the facility
is not licensed under, or exempted from the
license requirements contained in, this subchapter.

§ 823b

TITLE 16—CONSERVATION

(b) Exemption qualifications
Subject to subsection (c), the Commission may
grant an exemption in whole or in part from the
requirements of this subchapter, including any
license requirements contained in this subchapter, to any facility (not including any dam
or other impoundment) constructed, operated,
or maintained for the generation of electric
power which the Commission determines, by
rule or order—
(1) utilizes for such generation only the
hydroelectric potential of a conduit; and
(2) has an installed capacity that does not
exceed 40 megawatts.
(c) Consultation with Federal and State agencies
In making the determination under subsection
(b) the Commission shall consult with the
United States Fish and Wildlife Service 1 National Marine Fisheries Service 1 and the State
agency exercising administration over the fish
and wildlife resources of the State in which the
facility is or will be located, in the manner provided 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 Fisheries Service 1 and the State agency each determine 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 Commission deems appropriate to insure that such
facility continues to comply with the provisions 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 exemption 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 requirements of section 803(e) of this title, shall establish fees which shall be paid by an applicant for
a license or exemption for a project that is required 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.)
REFERENCES IN TEXT
The Fish and Wildlife Coordination Act, referred to
in subsec. (c), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, as
1 So

in original. Probably should be followed by a comma.

Page 1266

amended, which is classified generally to sections 661
to 666c of this title. For complete classification of this
Act to the Code, see 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
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 exemptions from the requirements of this subchapter for
certain hydroelectric facilities and prohibited the
granting of exemptions to facilities with certain capacities.
Subsec. (c). Pub. L. 113–23, § 4(a)(2), substituted ‘‘subsection (b)’’ for ‘‘subsection (a)’’ in introductory provisions.
Subsec. (d). Pub. L. 113–23, § 4(a)(3), substituted ‘‘subsection (b)’’ for ‘‘subsection (a)’’.
1986—Subsec. (b). Pub. L. 99–495, § 7(a), inserted provision setting the maximum installation capacity for exemptions 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 government solely for water supply for municipal purposes.
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 Marine Fisheries Service’’ after ‘‘the United States Fish
and Wildlife Service’’ and ‘‘the Fish and Wildlife Service’’, as the probable intent of Congress.
Subsec. (e). Pub. L. 99–495, § 7(c), added subsec. (e).
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, provided 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 subchapter. The Commission shall conduct such investigations 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 licenses and permits issued under this subchapter
and with the terms and conditions of exemptions granted from any requirement of this subchapter.
(b) Revocation orders
After notice and opportunity for an evidentiary 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

Page 1267

TITLE 16—CONSERVATION

licensee or exemptee is found by the Commission:
(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 commencing any revocation proceeding.
In any such proceeding, the order issued under
subsection (a) shall be subject to de novo review
by the Commission. No order shall be issued
under this subsection until after the Commission 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 violates 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 continues. 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 notice 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 penalty, 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 appointed under section 3105 of such title 5. Such
assessment order shall include the administrative law judge’s findings and the basis for such
assessment.
(B) Any person against whom a penalty is assessed under this paragraph may, within 60 calendar 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 review of such order in accordance with chapter 7
of title 5. The court shall have jurisdiction to
enter a judgment affirming, modifying, or set-

§ 823b

ting aside in whole or in Part,1 the order of the
Commission, or the court may remand the proceeding to the Commission for such further action as the court may direct.
(3)(A) In the case of any civil penalty with respect 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 within 60 calendar days after the assessment order
has been made under subparagraph (A), the
Commission shall institute an action in the appropriate district court of the United States for
an order affirming the assessment of the civil
penalty. The court shall have authority to review de novo the law and the facts involved, and
shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified,
or setting aside in whole or in Part,1 such assessment.
(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 subsection, 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 decision 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 appropriateness 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 Commission (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 collection 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 Attorney 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.)
1 So

in original. Probably should not be capitalized.

§ 823c

TITLE 16—CONSERVATION
EFFECTIVE DATE

Section applicable to licenses, permits, and exemptions 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.

§ 823c. Alaska State jurisdiction
hydroelectric projects

over

small

(a) Discontinuance of regulation by the Commission
Notwithstanding sections 797(e) and 817 of this
title, the Commission shall discontinue exercising 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 regulation by the Commission under this subchapter and other applicable Federal laws, including the Endangered Species Act (16 U.S.C.
1531 et seq.) and the Fish and Wildlife Coordination 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 (including related spawning grounds and habitat);
(C) the protection of recreational opportunities;
(D) the preservation of other aspects of environmental 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 operation 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 Secretary
of the Interior or the Secretary of Commerce, as appropriate;
(B) the operation of any navigation facilities 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 ‘‘qualifying project works’’ means project works—
(1) that are not part of a project licensed
under this part or exempted from licensing

Page 1268

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 exemption 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 system 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 Rivers 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 exemption from licensing shall be subject to—
(1) the approval of the Secretary having jurisdiction over such lands; and
(2) such conditions as the Secretary may
prescribe.
(e) Consultation with affected agencies
The Commission shall consult with the Secretary of the Interior, the Secretary of Agriculture, and the Secretary of Commerce before
certifying the State of Alaska’s regulatory program.
(f) Application of Federal laws
Nothing in this section shall preempt the application of Federal environmental, natural resources, or cultural resources protection laws
according to their terms.
(g) Oversight by the Commission
The State of Alaska shall notify the Commission not later than 30 days after making any significant 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 Commission shall reassert its licensing and regulatory
authority under this subchapter if the Commission finds that the State of Alaska has not complied 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

Page 1269

TITLE 16—CONSERVATION

regulatory program for water-power development to determine whether it complies with the
requirements of subsection (a).
(2) The Commission’s review required by paragraph (1) shall be completed within 1 year of initiation, and the Commission shall within 30 days
thereafter issue a final order determining
whether or not the State of Alaska’s regulatory
program for water-power development complies
with the requirements of subsection (a).
(3) If the Commission fails to issue a final
order in accordance with paragraph (2) the State
of Alaska’s regulatory program for water-power
development shall be deemed to be in compliance with subsection (a).
(j) Fish and wildlife
If the State of Alaska determines that a recommendation under subsection (a)(3)(C) is inconsistent with paragraphs (1) and (2) of subsection (a), the State of Alaska may decline to
adopt all or part of the recommendations in accordance with the procedures established under
section 803(j)(2) of this title.
(June 10, 1920, ch. 285, pt. I, § 32, as added Pub. L.
106–469, title V, § 501, Nov. 9, 2000, 114 Stat. 2037;
amended Pub. L. 109–58, title II, § 244, Aug. 8,
2005, 119 Stat. 678.)
REFERENCES IN TEXT
The Endangered Species Act, referred to in subsec.
(a)(1), probably means the Endangered Species Act of
1973, Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, as amended, which is classified generally to chapter 35 (§ 1531 et
seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 1531 of this title and Tables.
The Fish and Wildlife Coordination Act, referred to
in subsec. (a)(1), (3)(C), is act Mar. 10, 1934, ch. 55, 48
Stat. 401, as amended, which is classified generally to
sections 661 to 666c of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 661 of this title and Tables.
AMENDMENTS
2005—Subsec. (a)(3)(C). Pub. L. 109–58, § 244(1), inserted
‘‘except as provided in subsection (j),’’ before ‘‘conditions’’.
Subsec. (j). Pub. L. 109–58, § 244(2), added subsec. (j).
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.

§ 823d. Alternative conditions and prescriptions
(a) Alternative conditions
(1) Whenever any person applies for a license
for any project works within any reservation of
the United States, and the Secretary of the department under whose supervision such reservation falls (referred to in this subsection as the
‘‘Secretary’’) deems a condition to such license
to be necessary under the first proviso of section
797(e) of this title, the license applicant or any
other party to the license proceeding may propose an alternative condition.

§ 823d

(2) Notwithstanding the first proviso of section
797(e) of this title, the Secretary shall accept
the proposed alternative condition referred to in
paragraph (1), and the Commission shall include
in the license such alternative condition, if the
Secretary determines, based on substantial evidence provided by the license applicant, any
other party to the proceeding, or otherwise
available to the Secretary, that such alternative
condition—
(A) provides for the adequate protection and
utilization of the reservation; and
(B) will either, as compared to the condition
initially by the Secretary—
(i) cost significantly less to implement; or
(ii) result in improved operation of the
project works for electricity production.
(3) In making a determination under paragraph (2), the Secretary shall consider evidence
provided for the record by any party to a licensing proceeding, or otherwise available to the
Secretary, including any evidence provided by
the Commission, on the implementation costs or
operational impacts for electricity production of
a proposed alternative.
(4) The Secretary concerned shall submit into
the public record of the Commission proceeding
with any condition under section 797(e) of this
title or alternative condition it accepts under
this section, a written statement explaining the
basis for such condition, and reason for not accepting any alternative condition under this
section. The written statement must demonstrate that the Secretary gave equal consideration to the effects of the condition adopted and
alternatives not accepted on energy supply, distribution, cost, and use; flood control; navigation; water supply; and air quality (in addition
to the preservation of other aspects of environmental quality); based on such information as
may be available to the Secretary, including information voluntarily provided in a timely manner by the applicant and others. The Secretary
shall also submit, together with the aforementioned written statement, all studies, data, and
other factual information available to the Secretary and relevant to the Secretary’s decision.
(5) If the Commission finds that the Secretary’s final condition would be inconsistent
with the purposes of this subchapter, or other
applicable law, the Commission may refer the
dispute to the Commission’s Dispute Resolution
Service. The Dispute Resolution Service shall
consult with the Secretary and the Commission
and issue a non-binding advisory within 90 days.
The Secretary may accept the Dispute Resolution Service advisory unless the Secretary finds
that the recommendation will not adequately
protect the reservation. The Secretary shall
submit the advisory and the Secretary’s final
written determination into the record of the
Commission’s proceeding.
(b) Alternative prescriptions
(1) Whenever the Secretary of the Interior or
the Secretary of Commerce prescribes a fishway
under section 811 of this title, the license applicant or any other party to the license proceeding may propose an alternative to such prescription to construct, maintain, or operate a fishway.

§ 824

TITLE 16—CONSERVATION

(2) Notwithstanding section 811 of this title,
the Secretary of the Interior or the Secretary of
Commerce, as appropriate, shall accept and prescribe, and the Commission shall require, the
proposed alternative referred to in paragraph
(1), if the Secretary of the appropriate department determines, based on substantial evidence
provided by the license applicant, any other
party to the proceeding, or otherwise available
to the Secretary, that such alternative—
(A) will be no less protective than the fishway initially prescribed by the Secretary; and
(B) will either, as compared to the fishway
initially prescribed by the Secretary—
(i) cost significantly less to implement; or
(ii) result in improved operation of the
project works for electricity production.
(3) In making a determination under paragraph (2), the Secretary shall consider evidence
provided for the record by any party to a licensing proceeding, or otherwise available to the
Secretary, including any evidence provided by
the Commission, on the implementation costs or
operational impacts for electricity production of
a proposed alternative.
(4) The Secretary concerned shall submit into
the public record of the Commission proceeding
with any prescription under section 811 of this
title or alternative prescription it accepts under
this section, a written statement explaining the
basis for such prescription, and reason for not
accepting any alternative prescription under
this section. The written statement must demonstrate that the Secretary gave equal consideration to the effects of the prescription adopted
and alternatives not accepted on energy supply,
distribution, cost, and use; flood control; navigation; water supply; and air quality (in addition to the preservation of other aspects of environmental quality); based on such information
as may be available to the Secretary, including
information voluntarily provided in a timely
manner by the applicant and others. The Secretary shall also submit, together with the
aforementioned written statement, all studies,
data, and other factual information available to
the Secretary and relevant to the Secretary’s
decision.
(5) If the Commission finds that the Secretary’s final prescription would be inconsistent
with the purposes of this subchapter, or other
applicable law, the Commission may refer the
dispute to the Commission’s Dispute Resolution
Service. The Dispute Resolution Service shall
consult with the Secretary and the Commission
and issue a non-binding advisory within 90 days.
The Secretary may accept the Dispute Resolution Service advisory unless the Secretary finds
that the recommendation will not adequately
protect the fish resources. The Secretary shall
submit the advisory and the Secretary’s final
written determination into the record of the
Commission’s proceeding.
(June 10, 1920, ch. 285, pt. I, § 33, as added Pub. L.
109–58, title II, § 241(c), Aug. 8, 2005, 119 Stat. 675.)

Page 1270

SUBCHAPTER II—REGULATION OF ELECTRIC UTILITY COMPANIES ENGAGED IN
INTERSTATE COMMERCE
§ 824. Declaration of policy; application of subchapter
(a) Federal regulation of transmission and sale
of electric energy
It is declared that the business of transmitting
and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation to the extent provided in
this subchapter and subchapter III of this chapter and of that part of such business which consists of the transmission of electric energy in
interstate commerce and the sale of such energy
at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters
which are not subject to regulation by the
States.
(b) Use or sale of electric energy in interstate
commerce
(1) The provisions of this subchapter shall
apply to the transmission of electric energy in
interstate commerce and to the sale of electric
energy at wholesale in interstate commerce, but
except as provided in paragraph (2) shall not
apply to any other sale of electric energy or deprive a State or State commission of its lawful
authority now exercised over the exportation of
hydroelectric energy which is transmitted
across a State line. The Commission shall have
jurisdiction over all facilities for such transmission or sale of electric energy, but shall not
have jurisdiction, except as specifically provided
in this subchapter and subchapter III of this
chapter, over facilities used for the generation
of electric energy or over facilities used in local
distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy
consumed wholly by the transmitter.
(2) Notwithstanding subsection (f), the provisions of sections 824b(a)(2), 824e(e), 824i, 824j,
824j–1, 824k, 824o, 824o–1, 824p, 824q, 824r, 824s,
824t, 824u, and 824v of this title shall apply to
the entities described in such provisions, and
such entities shall be subject to the jurisdiction
of the Commission for purposes of carrying out
such provisions and for purposes of applying the
enforcement authorities of this chapter with respect to such provisions. Compliance with any
order or rule of the Commission under the provisions of section 824b(a)(2), 824e(e), 824i, 824j,
824j–1, 824k, 824o, 824o–1, 824p, 824q, 824r, 824s,
824t, 824u, or 824v of this title, shall not make an
electric utility or other entity subject to the jurisdiction of the Commission for any purposes
other than the purposes specified in the preceding sentence.
(c) Electric energy in interstate commerce
For the purpose of this subchapter, electric
energy shall be held to be transmitted in interstate commerce if transmitted from a State and
consumed at any point outside thereof; but only
insofar as such transmission takes place within
the United States.

Page 1271

§ 824

TITLE 16—CONSERVATION

(d) ‘‘Sale of electric energy at wholesale’’ defined
The term ‘‘sale of electric energy at wholesale’’ when used in this subchapter, means a sale
of electric energy to any person for resale.
(e) ‘‘Public utility’’ defined
The term ‘‘public utility’’ when used in this
subchapter and subchapter III of this chapter
means any person who owns or operates facilities subject to the jurisdiction of the Commission under this subchapter (other than facilities
subject to such jurisdiction solely by reason of
section 824e(e), 824e(f),1 824i, 824j, 824j–1, 824k,
824o, 824o–1, 824p, 824q, 824r, 824s, 824t, 824u, or
824v of this title).
(f) United States, State, political subdivision of a
State, or agency or instrumentality thereof
exempt
No provision in this subchapter shall apply to,
or be deemed to include, the United States, a
State or any political subdivision of a State, an
electric cooperative that receives financing
under the Rural Electrification Act of 1936 (7
U.S.C. 901 et seq.) or that sells less than 4,000,000
megawatt hours of electricity per year, or any
agency, authority, or instrumentality of any
one or more of the foregoing, or any corporation
which is wholly owned, directly or indirectly, by
any one or more of the foregoing, or any officer,
agent, or employee of any of the foregoing acting as such in the course of his official duty, unless such provision makes specific reference
thereto.
(g) Books and records
(1) Upon written order of a State commission,
a State commission may examine the books, accounts, memoranda, contracts, and records of—
(A) an electric utility company subject to its
regulatory authority under State law,
(B) any exempt wholesale generator selling
energy at wholesale to such electric utility,
and
(C) any electric utility company, or holding
company thereof, which is an associate company or affiliate of an exempt wholesale generator which sells electric energy to an electric
utility company referred to in subparagraph
(A),
wherever located, if such examination is required for the effective discharge of the State
commission’s regulatory responsibilities affecting the provision of electric service.
(2) Where a State commission issues an order
pursuant to paragraph (1), the State commission
shall not publicly disclose trade secrets or sensitive commercial information.
(3) Any United States district court located in
the State in which the State commission referred to in paragraph (1) is located shall have
jurisdiction to enforce compliance with this subsection.
(4) Nothing in this section shall—
(A) preempt applicable State law concerning
the provision of records and other information; or
(B) in any way limit rights to obtain records
and other information under Federal law, contracts, or otherwise.
1 So in original. Section 824e of this title does not contain a
subsec. (f).

(5) As used in this subsection the terms ‘‘affiliate’’, ‘‘associate company’’, ‘‘electric utility
company’’, ‘‘holding company’’, ‘‘subsidiary
company’’, and ‘‘exempt wholesale generator’’
shall have the same meaning as when used in
the Public Utility Holding Company Act of 2005
[42 U.S.C. 16451 et seq.].
(June 10, 1920, ch. 285, pt. II, § 201, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 847; amended Pub. L. 95–617, title II, § 204(b), Nov. 9, 1978, 92
Stat. 3140; Pub. L. 102–486, title VII, § 714, Oct. 24,
1992, 106 Stat. 2911; Pub. L. 109–58, title XII,
§§ 1277(b)(1), 1291(c), 1295(a), Aug. 8, 2005, 119 Stat.
978, 985; Pub. L. 114–94, div. F, § 61003(b), Dec. 4,
2015, 129 Stat. 1778.)
REFERENCES IN TEXT
The Rural Electrification Act of 1936, referred to in
subsec. (f), is act May 20, 1936, ch. 432, 49 Stat. 1363, as
amended, which is classified generally to chapter 31
(§ 901 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 901 of
Title 7 and Tables.
The Public Utility Holding Company Act of 2005, referred to in subsec. (g)(5), is subtitle F of title XII of
Pub. L. 109–58, Aug. 8, 2005, 119 Stat. 972, which is classified principally to part D (§ 16451 et seq.) of subchapter
XII of chapter 149 of Title 42, The Public Health and
Welfare. For complete classification of this Act to the
Code, see Short Title note set out under section 15801
of Title 42 and Tables.
AMENDMENTS
2015—Subsec. (b)(2). Pub. L. 114–94, § 61003(b)(1), inserted ‘‘824o–1,’’ after ‘‘824o,’’ in two places.
Subsec. (e). Pub. L. 114–94, § 61003(b)(2), inserted
‘‘824o–1,’’ after ‘‘824o,’’.
2005—Subsec. (b)(2). Pub. L. 109–58, § 1295(a)(1), substituted ‘‘Notwithstanding subsection (f), the provisions of sections 824b(a)(2), 824e(e), 824i, 824j, 824j–1,
824k, 824o, 824p, 824q, 824r, 824s, 824t, 824u, and 824v of
this title’’ for ‘‘The provisions of sections 824i, 824j, and
824k of this title’’ and ‘‘Compliance with any order or
rule of the Commission under the provisions of section
824b(a)(2), 824e(e), 824i, 824j, 824j–1, 824k, 824o, 824p, 824q,
824r, 824s, 824t, 824u, or 824v of this title’’ for ‘‘Compliance with any order of the Commission under the provisions of section 824i or 824j of this title’’.
Subsec. (e). Pub. L. 109–58, § 1295(a)(2), substituted
‘‘section 824e(e), 824e(f), 824i, 824j, 824j–1, 824k, 824o, 824p,
824q, 824r, 824s, 824t, 824u, or 824v of this title’’ for ‘‘section 824i, 824j, or 824k of this title’’.
Subsec. (f). Pub. L. 109–58, § 1291(c), which directed
amendment of subsec. (f) by substituting ‘‘political
subdivision of a State, an electric cooperative that receives financing under the Rural Electrification Act of
1936 (7 U.S.C. 901 et seq.) or that sells less than 4,000,000
megawatt hours of electricity per year,’’ for ‘‘political
subdivision of a state,’’, was executed by making the
substitution for ‘‘political subdivision of a State,’’ to
reflect the probable intent of Congress.
Subsec. (g)(5). Pub. L. 109–58, § 1277(b)(1), substituted
‘‘2005’’ for ‘‘1935’’.
1992—Subsec. (g). Pub. L. 102–486 added subsec. (g).
1978—Subsec. (b). Pub. L. 95–617, § 204(b)(1), designated
existing provisions as par. (1), inserted ‘‘except as provided in paragraph (2)’’ after ‘‘in interstate commerce,
but’’, and added par. (2).
Subsec. (e). Pub. L. 95–617, § 204(b)(2), inserted ‘‘(other
than facilities subject to such jurisdiction solely by
reason of section 824i, 824j, or 824k of this title)’’ after
‘‘under this subchapter’’.
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by section 1277(b)(1) of Pub. L. 109–58 effective 6 months after Aug. 8, 2005, with provisions relating to effect of compliance with certain regulations

§ 824a

TITLE 16—CONSERVATION

approved and made effective prior to such date, see section 1274 of Pub. L. 109–58, set out as an Effective Date
note under section 16451 of Title 42, The Public Health
and Welfare.
STATE AUTHORITIES; CONSTRUCTION
Nothing in amendment by Pub. L. 102–486 to be construed as affecting or intending to affect, or in any way
to interfere with, authority of any State or local government relating to environmental protection or siting
of facilities, see section 731 of Pub. L. 102–486, set out
as a note under section 796 of this title.
PRIOR ACTIONS; EFFECT ON OTHER AUTHORITIES
Pub. L. 95–617, title II, § 214, Nov. 9, 1978, 92 Stat. 3149,
provided that:
‘‘(a) PRIOR ACTIONS.—No provision of this title [enacting sections 823a, 824i to 824k, 824a–1 to 824a–3 and
825q–1 of this title, amending sections 796, 824, 824a,
824d, and 825d of this title and enacting provisions set
out as notes under sections 824a, 824d, and 825d of this
title] or of any amendment made by this title shall
apply to, or affect, any action taken by the Commission [Federal Energy Regulatory Commission] before
the date of the enactment of this Act [Nov. 9, 1978].
‘‘(b) OTHER AUTHORITIES.—No provision of this title
[enacting sections 823a, 824i to 824k, 824a–1 to 824a–3 and
825q–1 of this title, amending sections 796, 824, 824a,
824d, and 825d of this title and enacting provisions set
out as notes under sections 824a, 824d, and 825d of this
title] or of any amendment made by this title shall
limit, impair or otherwise affect any authority of the
Commission or any other agency or instrumentality of
the United States under any other provision of law except as specifically provided in this title.’’

§ 824a. Interconnection and coordination of facilities; emergencies; transmission to foreign
countries
(a) Regional districts; establishment; notice to
State commissions
For the purpose of assuring an abundant supply of electric energy throughout the United
States with the greatest possible economy and
with regard to the proper utilization and conservation of natural resources, the Commission
is empowered and directed to divide the country
into regional districts for the voluntary interconnection and coordination of facilities for the
generation, transmission, and sale of electric energy, and it may at any time thereafter, upon
its own motion or upon application, make such
modifications thereof as in its judgment will
promote the public interest. Each such district
shall embrace an area which, in the judgment of
the Commission, can economically be served by
such interconnection and coordinated electric
facilities. It shall be the duty of the Commission
to promote and encourage such interconnection
and coordination within each such district and
between such districts. Before establishing any
such district and fixing or modifying the boundaries thereof the Commission shall give notice
to the State commission of each State situated
wholly or in part within such district, and shall
afford each such State commission reasonable
opportunity to present its views and recommendations, and shall receive and consider such
views and recommendations.
(b) Sale or exchange of energy; establishing
physical connections
Whenever the Commission, upon application of
any State commission or of any person engaged

Page 1272

in the transmission or sale of electric energy,
and after notice to each State commission and
public utility affected and after opportunity for
hearing, finds such action necessary or appropriate in the public interest it may by order direct a public utility (if the Commission finds
that no undue burden will be placed upon such
public utility thereby) to establish physical connection of its transmission facilities with the facilities of one or more other persons engaged in
the transmission or sale of electric energy, to
sell energy to or exchange energy with such persons: Provided, That the Commission shall have
no authority to compel the enlargement of generating facilities for such purposes, nor to compel such public utility to sell or exchange energy when to do so would impair its ability to
render adequate service to its customers. The
Commission may prescribe the terms and conditions of the arrangement to be made between
the persons affected by any such order, including the apportionment of cost between them and
the compensation or reimbursement reasonably
due to any of them.
(c) Temporary connection and exchange of facilities during emergency
(1) During the continuance of any war in
which the United States is engaged, or whenever
the Commission determines that an emergency
exists by reason of a sudden increase in the demand for electric energy, or a shortage of electric energy or of facilities for the generation or
transmission of electric energy, or of fuel or
water for generating facilities, or other causes,
the Commission shall have authority, either
upon its own motion or upon complaint, with or
without notice, hearing, or report, to require by
order such temporary connections of facilities
and such generation, delivery, interchange, or
transmission of electric energy as in its judgment will best meet the emergency and serve
the public interest. If the parties affected by
such order fail to agree upon the terms of any
arrangement between them in carrying out such
order, the Commission, after hearing held either
before or after such order takes effect, may prescribe by supplemental order such terms as it
finds to be just and reasonable, including the
compensation or reimbursement which should
be paid to or by any such party.
(2) With respect to an order issued under this
subsection that may result in a conflict with a
requirement of any Federal, State, or local environmental law or regulation, the Commission
shall ensure that such order requires generation,
delivery, interchange, or transmission of electric energy only during hours necessary to meet
the emergency and serve the public interest,
and, to the maximum extent practicable, is consistent with any applicable Federal, State, or
local environmental law or regulation and minimizes any adverse environmental impacts.
(3) To the extent any omission or action taken
by a party, that is necessary to comply with an
order issued under this subsection, including
any omission or action taken to voluntarily
comply with such order, results in noncompliance with, or causes such party to not comply
with, any Federal, State, or local environmental
law or regulation, such omission or action shall

Page 1273

§ 824a

TITLE 16—CONSERVATION

not be considered a violation of such environmental law or regulation, or subject such party
to any requirement, civil or criminal liability,
or a citizen suit under such environmental law
or regulation.
(4)(A) An order issued under this subsection
that may result in a conflict with a requirement
of any Federal, State, or local environmental
law or regulation shall expire not later than 90
days after it is issued. The Commission may
renew or reissue such order pursuant to paragraphs (1) and (2) for subsequent periods, not to
exceed 90 days for each period, as the Commission determines necessary to meet the emergency and serve the public interest.
(B) In renewing or reissuing an order under
subparagraph (A), the Commission shall consult
with the primary Federal agency with expertise
in the environmental interest protected by such
law or regulation, and shall include in any such
renewed or reissued order such conditions as
such Federal agency determines necessary to
minimize any adverse environmental impacts to
the extent practicable. The conditions, if any,
submitted by such Federal agency shall be made
available to the public. The Commission may exclude such a condition from the renewed or reissued order if it determines that such condition
would prevent the order from adequately addressing the emergency necessitating such order
and provides in the order, or otherwise makes
publicly available, an explanation of such determination.
(5) If an order issued under this subsection is
subsequently stayed, modified, or set aside by a
court pursuant to section 825l of this title or any
other provision of law, any omission or action
previously taken by a party that was necessary
to comply with the order while the order was in
effect, including any omission or action taken
to voluntarily comply with the order, shall remain subject to paragraph (3).
(d) Temporary connection during emergency by
persons without jurisdiction of Commission
During the continuance of any emergency requiring immediate action, any person or municipality engaged in the transmission or sale of
electric energy and not otherwise subject to the
jurisdiction of the Commission may make such
temporary connections with any public utility
subject to the jurisdiction of the Commission or
may construct such temporary facilities for the
transmission of electric energy in interstate
commerce as may be necessary or appropriate to
meet such emergency, and shall not become subject to the jurisdiction of the Commission by
reason of such temporary connection or temporary construction: Provided, That such temporary connection shall be discontinued or such
temporary construction removed or otherwise
disposed of upon the termination of such emergency: Provided further, That upon approval of
the Commission permanent connections for
emergency use only may be made hereunder.
(e) Transmission of electric energy to foreign
country
After six months from August 26, 1935, no person shall transmit any electric energy from the
United States to a foreign country without first
having secured an order of the Commission au-

thorizing it to do so. The Commission shall issue
such order upon application unless, after opportunity for hearing, it finds that the proposed
transmission would impair the sufficiency of
electric supply within the United States or
would impede or tend to impede the coordination in the public interest of facilities subject to
the jurisdiction of the Commission. The Commission may by its order grant such application
in whole or in part, with such modifications and
upon such terms and conditions as the Commission may find necessary or appropriate, and may
from time to time, after opportunity for hearing
and for good cause shown, make such supplemental orders in the premises as it may find
necessary or appropriate.
(f) Transmission or sale at wholesale of electric
energy; regulation
The ownership or operation of facilities for the
transmission or sale at wholesale of electric energy which is (a) generated within a State and
transmitted from the State across an international boundary and not thereafter transmitted into any other State, or (b) generated in a
foreign country and transmitted across an international boundary into a State and not thereafter transmitted into any other State, shall not
make a person a public utility subject to regulation as such under other provisions of this subchapter. The State within which any such facilities are located may regulate any such transaction insofar as such State regulation does not
conflict with the exercise of the Commission’s
powers under or relating to subsection (e).
(g) Continuance of service
In order to insure continuity of service to customers of public utilities, the Commission shall
require, by rule, each public utility to—
(1) report promptly to the Commission and
any appropriate State regulatory authorities
any anticipated shortage of electric energy or
capacity which would affect such utility’s capability of serving its wholesale customers,
(2) submit to the Commission, and to any appropriate State regulatory authority, and periodically revise, contingency plans respecting—
(A) shortages of electric energy or capacity, and
(B) circumstances which may result in
such shortages, and
(3) accommodate any such shortages or circumstances in a manner which shall—
(A) give due consideration to the public
health, safety, and welfare, and
(B) provide that all persons served directly
or indirectly by such public utility will be
treated, without undue prejudice or disadvantage.
(June 10, 1920, ch. 285, pt. II, § 202, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 848; amended Aug. 7, 1953, ch. 343, 67 Stat. 461; Pub. L.
95–617, title II, § 206(a), Nov. 9, 1978, 92 Stat. 3141;
Pub. L. 114–94, div. F, § 61002, Dec. 4, 2015, 129
Stat. 1772.)
AMENDMENTS
2015—Subsec. (c). Pub. L. 114–94, § 61002(a), designated
existing provisions as par. (1) and added pars. (2) to (5).

§ 824a–1

TITLE 16—CONSERVATION

Subsec. (d). Pub. L. 114–94, § 61002(b), inserted ‘‘or municipality’’ before ‘‘engaged in the transmission or sale
of electric energy’’.
1978—Subsec. (g). Pub. L. 95–617 added subsec. (g).
1953—Subsec. (f). Act Aug. 7, 1953, added subsec. (f).
EFFECTIVE DATE OF 1978 AMENDMENT
Pub. L. 95–617, title II, § 206(b), Nov. 9, 1978, 92 Stat.
3142, provided that: ‘‘The amendment made by subsection (a) [adding subsec. (g) of this section] shall not
affect any proceeding of the Commission [Federal Energy Regulatory Commission] pending on the date of
the enactment of this Act [Nov. 9, 1978] or any case
pending on such date respecting a proceeding of the
Commission.’’
DELEGATION OF FUNCTIONS
Functions of President respecting certain facilities
constructed and maintained on United States borders
delegated to Secretary of State, see Ex. Ord. No. 11423,
Aug. 16, 1968. 33 F.R. 11741, set out as a note under section 301 of Title 3, The President.
PERFORMANCE OF FUNCTIONS RESPECTING ELECTRIC
POWER AND NATURAL GAS FACILITIES LOCATED ON
UNITED STATES BORDERS
For provisions relating to performance of functions
by Secretary of Energy respecting electric power and
natural gas facilities located on United States borders,
see Ex. Ord. No. 10485, Sept. 8, 1953, 18 F.R. 5397, as
amended by Ex. Ord. No. 12038, Feb. 3, 1978, 43 F.R. 4957,
set out as a note under section 717b of Title 15, Commerce and Trade.

§ 824a–1. Pooling
(a) State laws
The Commission may, on its own motion, and
shall, on application of any person or governmental entity, after public notice and notice to
the Governor of the affected State and after affording an opportunity for public hearing, exempt electric utilities, in whole or in part, from
any provision of State law, or from any State
rule or regulation, which prohibits or prevents
the voluntary coordination of electric utilities,
including any agreement for central dispatch, if
the Commission determines that such voluntary
coordination is designed to obtain economical
utilization of facilities and resources in any
area. No such exemption may be granted if the
Commission finds that such provision of State
law, or rule or regulation—
(1) is required by any authority of Federal
law, or
(2) is designed to protect public health, safety, or welfare, or the environment or conserve
energy or is designed to mitigate the effects of
emergencies resulting from fuel shortages.
(b) Pooling study
(1) The Commission, in consultation with the
reliability councils established under section
202(a) of the Federal Power Act [16 U.S.C. 824a],
the Secretary, and the electric utility industry
shall study the opportunities for—
(A) conservation of energy,
(B) optimization in the efficiency of use of
facilities and resources, and
(C) increased reliability,
through pooling arrangements. Not later than 18
months after November 9, 1978, the Commission
shall submit a report containing the results of
such study to the President and the Congress.

Page 1274

(2) The Commission may recommend to electric utilities that such utilities should voluntarily enter into negotiations where the opportunities referred to in paragraph (1) exist. The
Commission shall report annually to the President and the Congress regarding any such recommendations and subsequent actions taken by
electric utilities, by the Commission, and by the
Secretary under this Act, the Federal Power Act
[16 U.S.C. 791a et seq.], and any other provision
of law. Such annual reports shall be included in
the Commission’s annual report required under
the Department of Energy Organization Act [42
U.S.C. 7101 et seq.].
(Pub. L. 95–617, title II, § 205, Nov. 9, 1978, 92 Stat.
3140.)
REFERENCES IN TEXT
This Act, referred to in subsec. (b)(2), means Pub. L.
95–617, Nov. 9, 1978, 92 Stat. 3117, known as the ‘‘Public
Utility Regulatory Policies Act of 1978’’. For complete
classification of this Act to the Code, see Short Title
note set out under section 2601 of this title and Tables.
The Federal Power Act, referred to in subsec. (b)(2),
is act June 10, 1920, ch. 285, 41 Stat. 1063, as amended,
which is classified generally to this chapter. For complete classification of this Act to the Code, see section
791a of this title and Tables.
The Department of Energy Organization Act, referred
to in subsec. (b)(2), is Pub. L. 95–91, Aug. 4, 1977, 91 Stat.
565, as amended, which is classified principally to chapter 84 (§ 7101 et seq.) of Title 42, The Public Health and
Welfare. For complete classification of this Act to the
Code, see Short Title note set out under section 7101 of
Title 42 and Tables.
CODIFICATION
Section was enacted as part of the Public Utility
Regulatory Policies Act of 1978, and not as part of the
Federal Power Act which generally comprises this
chapter.
DEFINITIONS
For definitions of terms used in this section, see section 2602 of this title.

§ 824a–2. Reliability
(a) Study
(1) The Secretary, in consultation with the
Commission, shall conduct a study with respect
to—
(A) the level of reliability appropriate to
adequately serve the needs of electric consumers, taking into account cost effectiveness and
the need for energy conservation,
(B) the various methods which could be used
in order to achieve such level of reliability and
the cost effectiveness of such methods, and
(C) the various procedures that might be
used in case of an emergency outage to minimize the public disruption and economic loss
that might be caused by such an outage and
the cost effectiveness of such procedures.
Such study shall be completed and submitted to
the President and the Congress not later than 18
months after November 9, 1978. Before such submittal the Secretary shall provide an opportunity for public comment on the results of such
study.
(2) The study under paragraph (1) shall include
consideration of the following:
(A) the cost effectiveness of investments in
each of the components involved in providing

Page 1275

§ 824a–3

TITLE 16—CONSERVATION

adequate and reliable electric service, including generation, transmission, and distribution
facilities, and devices available to the electric
consumer;
(B) the environmental and other effects of
the investments considered under subparagraph (A);
(C) various types of electric utility systems
in terms of generation, transmission, distribution and customer mix, the extent to which
differences in reliability levels may be desirable, and the cost-effectiveness of the various
methods which could be used to decrease the
number and severity of any outages among the
various types of systems;
(D) alternatives to adding new generation facilities to achieve such desired levels of reliability (including conservation);
(E) the cost-effectiveness of adding a number
of small, decentralized conventional and nonconventional generating units rather than a
small number of large generating units with a
similar total megawatt capacity for achieving
the desired level of reliability; and
(F) any standards for electric utility reliability used by, or suggested for use by, the
electric utility industry in terms of cost-effectiveness in achieving the desired level of reliability, including equipment standards, standards for operating procedures and training of
personnel, and standards relating the number
and severity of outages to periods of time.
(b) Examination of reliability issues by reliability councils
The Secretary, in consultation with the Commission, may, from time to time, request the reliability councils established under section
202(a) of the Federal Power Act [16 U.S.C. 824a(a)
of this title] or other appropriate persons (including Federal agencies) to examine and report
to him concerning any electric utility reliability issue. The Secretary shall report to the Congress (in its annual report or in the report required under subsection (a) if appropriate) the
results of any examination under the preceding
sentence.
(c) Department of Energy recommendations
The Secretary, in consultation with the Commission, and after opportunity for public comment, may recommend industry standards for
reliability to the electric utility industry, including standards with respect to equipment,
operating procedures and training of personnel,
and standards relating to the level or levels of
reliability appropriate to adequately and reliably serve the needs of electric consumers. The
Secretary shall include in his annual report—
(1) any recommendations made under this
subsection or any recommendations respecting
electric utility reliability problems under any
other provision of law, and
(2) a description of actions taken by electric
utilities with respect to such recommendations.
(Pub. L. 95–617, title II, § 209, Nov. 9, 1978, 92 Stat.
3143.)
CODIFICATION
Section was enacted as part of the Public Utility
Regulatory Policies Act of 1978, and not as part of the

Federal Power Act which generally comprises this
chapter.
DEFINITIONS
For definitions of terms used in this section, see section 2602 of this title.

§ 824a–3. Cogeneration and small power production
(a) Cogeneration and small power production
rules
Not later than 1 year after November 9, 1978,
the Commission shall prescribe, and from time
to time thereafter revise, such rules as it determines necessary to encourage cogeneration and
small power production, and to encourage geothermal small power production facilities of not
more than 80 megawatts capacity, which rules
require electric utilities to offer to—
(1) sell electric energy to qualifying cogeneration facilities and qualifying small power
production facilities 1 and
(2) purchase electric energy from such facilities.
Such rules shall be prescribed, after consultation with representatives of Federal and State
regulatory agencies having ratemaking authority for electric utilities, and after public notice
and a reasonable opportunity for interested persons (including State and Federal agencies) to
submit oral as well as written data, views, and
arguments. Such rules shall include provisions
respecting minimum reliability of qualifying cogeneration facilities and qualifying small power
production facilities (including reliability of
such facilities during emergencies) and rules respecting reliability of electric energy service to
be available to such facilities from electric utilities during emergencies. Such rules may not authorize a qualifying cogeneration facility or
qualifying small power production facility to
make any sale for purposes other than resale.
(b) Rates for purchases by electric utilities
The rules prescribed under subsection (a) shall
insure that, in requiring any electric utility to
offer to purchase electric energy from any qualifying cogeneration facility or qualifying small
power production facility, the rates for such
purchase—
(1) shall be just and reasonable to the electric consumers of the electric utility and in
the public interest, and
(2) shall not discriminate against qualifying
cogenerators or qualifying small power producers.
No such rule prescribed under subsection (a)
shall provide for a rate which exceeds the incremental cost to the electric utility of alternative
electric energy.
(c) Rates for sales by utilities
The rules prescribed under subsection (a) shall
insure that, in requiring any electric utility to
offer to sell electric energy to any qualifying cogeneration facility or qualifying small power
production facility, the rates for such sale—
(1) shall be just and reasonable and in the
public interest, and
1 So

in original. Probably should be followed by a comma.

§ 824a–3

TITLE 16—CONSERVATION

(2) shall not discriminate against the qualifying cogenerators or qualifying small power
producers.
(d) ‘‘Incremental cost of alternative electric energy’’ defined
For purposes of this section, the term ‘‘incremental cost of alternative electric energy’’
means, with respect to electric energy purchased from a qualifying cogenerator or qualifying small power producer, the cost to the electric utility of the electric energy which, but for
the purchase from such cogenerator or small
power producer, such utility would generate or
purchase from another source.
(e) Exemptions
(1) Not later than 1 year after November 9,
1978, and from time to time thereafter, the Commission shall, after consultation with representatives of State regulatory authorities, electric
utilities, owners of cogeneration facilities and
owners of small power production facilities, and
after public notice and a reasonable opportunity
for interested persons (including State and Federal agencies) to submit oral as well as written
data, views, and arguments, prescribe rules
under which geothermal small power production
facilities of not more than 80 megawatts capacity, qualifying cogeneration facilities, and
qualifying small power production facilities are
exempted in whole or part from the Federal
Power Act [16 U.S.C. 791a et seq.], from the Public Utility Holding Company Act,2 from State
laws and regulations respecting the rates, or respecting the financial or organizational regulation, of electric utilities, or from any combination of the foregoing, if the Commission determines such exemption is necessary to encourage
cogeneration and small power production.
(2) No qualifying small power production facility (other than a qualifying small power production facility which is an eligible solar, wind,
waste, or geothermal facility as defined in section 3(17)(E) of the Federal Power Act [16 U.S.C.
796(17)(E)]) which has a power production capacity which, together with any other facilities located at the same site (as determined by the
Commission), exceeds 30 megawatts, or 80 megawatts for a qualifying small power production
facility using geothermal energy as the primary
energy source, may be exempted under rules
under paragraph (1) from any provision of law or
regulation referred to in paragraph (1), except
that any qualifying small power production facility which produces electric energy solely by
the use of biomass as a primary energy source,
may be exempted by the Commission under such
rules from the Public Utility Holding Company
Act 2 and from State laws and regulations referred to in such paragraph (1).
(3) No qualifying small power production facility or qualifying cogeneration facility may be
exempted under this subsection from—
(A) any State law or regulation in effect in
a State pursuant to subsection (f),
(B) the provisions of section 210, 211, or 212 of
the Federal Power Act [16 U.S.C. 824i, 824j, or
824k] or the necessary authorities for enforcement of any such provision under the Federal
Power Act [16 U.S.C. 791a et seq.], or
2 See

References in Text note below.

Page 1276

(C) any license or permit requirement under
part I of the Federal Power Act [16 U.S.C. 791a
et seq.] any provision under such Act related
to such a license or permit requirement, or the
necessary authorities for enforcement of any
such requirement.
(f) Implementation of rules for qualifying cogeneration and qualifying small power production facilities
(1) Beginning on or before the date one year
after any rule is prescribed by the Commission
under subsection (a) or revised under such subsection, each State regulatory authority shall,
after notice and opportunity for public hearing,
implement such rule (or revised rule) for each
electric utility for which it has ratemaking authority.
(2) Beginning on or before the date one year
after any rule is prescribed by the Commission
under subsection (a) or revised under such subsection, each nonregulated electric utility shall,
after notice and opportunity for public hearing,
implement such rule (or revised rule).
(g) Judicial review and enforcement
(1) Judicial review may be obtained respecting
any proceeding conducted by a State regulatory
authority or nonregulated electric utility for
purposes of implementing any requirement of a
rule under subsection (a) in the same manner,
and under the same requirements, as judicial review may be obtained under section 2633 of this
title in the case of a proceeding to which section
2633 of this title applies.
(2) Any person (including the Secretary) may
bring an action against any electric utility,
qualifying small power producer, or qualifying
cogenerator to enforce any requirement established by a State regulatory authority or nonregulated electric utility pursuant to subsection
(f). Any such action shall be brought only in the
manner, and under the requirements, as provided under section 2633 of this title with respect to an action to which section 2633 of this
title applies.
(h) Commission enforcement
(1) For purposes of enforcement of any rule
prescribed by the Commission under subsection
(a) with respect to any operations of an electric
utility, a qualifying cogeneration facility or a
qualifying small power production facility
which are subject to the jurisdiction of the Commission under part II of the Federal Power Act
[16 U.S.C. 824 et seq.], such rule shall be treated
as a rule under the Federal Power Act [16 U.S.C.
791a et seq.]. Nothing in subsection (g) shall
apply to so much of the operations of an electric
utility, a qualifying cogeneration facility or a
qualifying small power production facility as
are subject to the jurisdiction of the Commission under part II of the Federal Power Act.
(2)(A) The Commission may enforce the requirements of subsection (f) against any State
regulatory authority or nonregulated electric
utility. For purposes of any such enforcement,
the requirements of subsection (f)(1) shall be
treated as a rule enforceable under the Federal
Power Act [16 U.S.C. 791a et seq.]. For purposes
of any such action, a State regulatory authority
or nonregulated electric utility shall be treated

Page 1277

TITLE 16—CONSERVATION

as a person within the meaning of the Federal
Power Act. No enforcement action may be
brought by the Commission under this section
other than—
(i) an action against the State regulatory
authority or nonregulated electric utility for
failure to comply with the requirements of
subsection (f) 3 or
(ii) an action under paragraph (1).
(B) Any electric utility, qualifying cogenerator, or qualifying small power producer may petition the Commission to enforce the requirements of subsection (f) as provided in subparagraph (A) of this paragraph. If the Commission
does not initiate an enforcement action under
subparagraph (A) against a State regulatory authority or nonregulated electric utility within
60 days following the date on which a petition is
filed under this subparagraph with respect to
such authority, the petitioner may bring an action in the appropriate United States district
court to require such State regulatory authority
or nonregulated electric utility to comply with
such requirements, and such court may issue
such injunctive or other relief as may be appropriate. The Commission may intervene as a matter of right in any such action.
(i) Federal contracts
No contract between a Federal agency and any
electric utility for the sale of electric energy by
such Federal agency for resale which is entered
into after November 9, 1978, may contain any
provision which will have the effect of preventing the implementation of any rule under this
section with respect to such utility. Any provision in any such contract which has such effect
shall be null and void.
(j) New dams and diversions
Except for a hydroelectric project located at a
Government dam (as defined in section 3(10) of
the Federal Power Act [16 U.S.C. 796(10)]) at
which non-Federal hydroelectric development is
permissible, this section shall not apply to any
hydroelectric project which impounds or diverts
the water of a natural watercourse by means of
a new dam or diversion unless the project meets
each of the following requirements:
(1) No substantial adverse effects
At the time of issuance of the license or exemption for the project, the Commission finds
that the project will not have substantial adverse effects on the environment, including
recreation and water quality. Such finding
shall be made by the Commission after taking
into consideration terms and conditions imposed under either paragraph (3) of this subsection or section 10 of the Federal Power Act
[16 U.S.C. 803] (whichever is appropriate as required by that Act [16 U.S.C. 791a et seq.] or
the Electric Consumers Protection Act of 1986)
and compliance with other environmental requirements applicable to the project.
(2) Protected rivers
At the time the application for a license or
exemption for the project is accepted by the
Commission (in accordance with the Commis3 So

in original. Probably should be followed by a comma.

§ 824a–3

sion’s regulations and procedures in effect on
January 1, 1986, including those relating to environmental consultation), such project is not
located on either of the following:
(A) Any segment of a natural watercourse
which is included in (or designated for potential inclusion in) a State or national wild
and scenic river system.
(B) Any segment of a natural watercourse
which the State has determined, in accordance with applicable State law, to possess
unique natural, recreational, cultural, or
scenic attributes which would be adversely
affected by hydroelectric development.
(3) Fish and wildlife terms and conditions
The project meets the terms and conditions
set by fish and wildlife agencies under the
same procedures as provided for under section
30(c) of the Federal Power Act [16 U.S.C.
823a(c)].
(k) ‘‘New dam or diversion’’ defined
For purposes of this section, the term ‘‘new
dam or diversion’’ means a dam or diversion
which requires, for purposes of installing any
hydroelectric power project, any construction,
or enlargement of any impoundment or diversion structure (other than repairs or reconstruction or the addition of flashboards or similar adjustable devices) 4
(l) Definitions
For purposes of this section, the terms ‘‘small
power production facility’’, ‘‘qualifying small
power production facility’’, ‘‘qualifying small
power producer’’, ‘‘primary energy source’’, ‘‘cogeneration facility’’, ‘‘qualifying cogeneration
facility’’, and ‘‘qualifying cogenerator’’ have the
respective meanings provided for such terms
under section 3(17) and (18) of the Federal Power
Act [16 U.S.C. 796(17), (18)].
(m) Termination of mandatory purchase and sale
requirements
(1) Obligation to purchase
After August 8, 2005, no electric utility shall
be required to enter into a new contract or obligation to purchase electric energy from a
qualifying cogeneration facility or a qualifying small power production facility under this
section if the Commission finds that the qualifying cogeneration facility or qualifying small
power production facility has nondiscriminatory access to—
(A)(i) independently administered, auction-based day ahead and real time wholesale markets for the sale of electric energy;
and (ii) wholesale markets for long-term
sales of capacity and electric energy; or
(B)(i) transmission and interconnection
services that are provided by a Commissionapproved regional transmission entity and
administered pursuant to an open access
transmission tariff that affords nondiscriminatory treatment to all customers; and (ii)
competitive wholesale markets that provide
a meaningful opportunity to sell capacity,
including long-term and short-term sales,
and electric energy, including long-term,
4 So

in original. Probably should be followed by a period.

§ 824a–3

TITLE 16—CONSERVATION

short-term and real-time sales, to buyers
other than the utility to which the qualifying facility is interconnected. In determining whether a meaningful opportunity to
sell exists, the Commission shall consider,
among other factors, evidence of transactions within the relevant market; or
(C) wholesale markets for the sale of capacity and electric energy that are, at a
minimum, of comparable competitive quality as markets described in subparagraphs
(A) and (B).
(2) Revised purchase and sale obligation for
new facilities
(A) After August 8, 2005, no electric utility
shall be required pursuant to this section to
enter into a new contract or obligation to purchase from or sell electric energy to a facility
that is not an existing qualifying cogeneration
facility unless the facility meets the criteria
for qualifying cogeneration facilities established by the Commission pursuant to the
rulemaking required by subsection (n).
(B) For the purposes of this paragraph, the
term ‘‘existing qualifying cogeneration facility’’ means a facility that—
(i) was a qualifying cogeneration facility
on August 8, 2005; or
(ii) had filed with the Commission a notice
of self-certification, self recertification or
an application for Commission certification
under 18 CFR 292.207 prior to the date on
which the Commission issues the final rule
required by subsection (n).
(3) Commission review
Any electric utility may file an application
with the Commission for relief from the mandatory purchase obligation pursuant to this
subsection on a service territory-wide basis.
Such application shall set forth the factual
basis upon which relief is requested and describe why the conditions set forth in subparagraph (A), (B), or (C) of paragraph (1) of this
subsection have been met. After notice, including sufficient notice to potentially affected qualifying cogeneration facilities and
qualifying small power production facilities,
and an opportunity for comment, the Commission shall make a final determination within
90 days of such application regarding whether
the conditions set forth in subparagraph (A),
(B), or (C) of paragraph (1) have been met.
(4) Reinstatement of obligation to purchase
At any time after the Commission makes a
finding under paragraph (3) relieving an electric utility of its obligation to purchase electric energy, a qualifying cogeneration facility,
a qualifying small power production facility, a
State agency, or any other affected person
may apply to the Commission for an order reinstating the electric utility’s obligation to
purchase electric energy under this section.
Such application shall set forth the factual
basis upon which the application is based and
describe why the conditions set forth in subparagraph (A), (B), or (C) of paragraph (1) of
this subsection are no longer met. After notice, including sufficient notice to potentially
affected utilities, and opportunity for com-

Page 1278

ment, the Commission shall issue an order
within 90 days of such application reinstating
the electric utility’s obligation to purchase
electric energy under this section if the Commission finds that the conditions set forth in
subparagraphs (A), (B) or (C) of paragraph (1)
which relieved the obligation to purchase, are
no longer met.
(5) Obligation to sell
After August 8, 2005, no electric utility shall
be required to enter into a new contract or obligation to sell electric energy to a qualifying
cogeneration facility or a qualifying small
power production facility under this section if
the Commission finds that—
(A) competing retail electric suppliers are
willing and able to sell and deliver electric
energy to the qualifying cogeneration facility or qualifying small power production facility; and
(B) the electric utility is not required by
State law to sell electric energy in its service territory.
(6) No effect on existing rights and remedies
Nothing in this subsection affects the rights
or remedies of any party under any contract
or obligation, in effect or pending approval before the appropriate State regulatory authority or non-regulated electric utility on August
8, 2005, to purchase electric energy or capacity
from or to sell electric energy or capacity to
a qualifying cogeneration facility or qualifying small power production facility under this
Act (including the right to recover costs of
purchasing electric energy or capacity).
(7) Recovery of costs
(A) The Commission shall issue and enforce
such regulations as are necessary to ensure
that an electric utility that purchases electric
energy or capacity from a qualifying cogeneration facility or qualifying small power production facility in accordance with any legally
enforceable obligation entered into or imposed
under this section recovers all prudently incurred costs associated with the purchase.
(B) A regulation under subparagraph (A)
shall be enforceable in accordance with the
provisions of law applicable to enforcement of
regulations under the Federal Power Act (16
U.S.C. 791a et seq.).
(n) Rulemaking for new qualifying facilities
(1)(A) Not later than 180 days after August 8,
2005, the Commission shall issue a rule revising
the criteria in 18 CFR 292.205 for new qualifying
cogeneration facilities seeking to sell electric
energy pursuant to this section to ensure—
(i) that the thermal energy output of a new
qualifying cogeneration facility is used in a
productive and beneficial manner;
(ii) the electrical, thermal, and chemical
output of the cogeneration facility is used fundamentally for industrial, commercial, or institutional purposes and is not intended fundamentally for sale to an electric utility, taking into account technological, efficiency, economic, and variable thermal energy requirements, as well as State laws applicable to
sales of electric energy from a qualifying facility to its host facility; and

Page 1279

TITLE 16—CONSERVATION

(iii) continuing progress in the development
of efficient electric energy generating technology.
(B) The rule issued pursuant to paragraph
(1)(A) of this subsection shall be applicable only
to facilities that seek to sell electric energy pursuant to this section. For all other purposes, except as specifically provided in subsection
(m)(2)(A), qualifying facility status shall be determined in accordance with the rules and regulations of this Act.
(2) Notwithstanding rule revisions under paragraph (1), the Commission’s criteria for qualifying cogeneration facilities in effect prior to the
date on which the Commission issues the final
rule required by paragraph (1) shall continue to
apply to any cogeneration facility that—
(A) was a qualifying cogeneration facility on
August 8, 2005, or
(B) had filed with the Commission a notice
of self-certification, self-recertification or an
application for Commission certification
under 18 CFR 292.207 prior to the date on which
the Commission issues the final rule required
by paragraph (1).
(Pub. L. 95–617, title II, § 210, Nov. 9, 1978, 92 Stat.
3144; Pub. L. 96–294, title VI, § 643(b), June 30,
1980, 94 Stat. 770; Pub. L. 99–495, § 8(a), Oct. 16,
1986, 100 Stat. 1249; Pub. L. 101–575, § 2, Nov. 15,
1990, 104 Stat. 2834; Pub. L. 109–58, title XII,
§ 1253(a), Aug. 8, 2005, 119 Stat. 967.)
REFERENCES IN TEXT
The Federal Power Act, referred to in subsecs. (e),
(h), (j)(1), and (m)(7)(B), is act June 10, 1920, ch. 285, 41
Stat. 1063, as amended, which is classified generally to
this chapter (§ 791a et seq.). Part I of the Federal Power
Act is classified generally to subchapter I (§ 791a et
seq.) of this chapter. Part II of the Federal Power Act
is classified generally to this subchapter (§ 824 et seq.).
For complete classification of this Act to the Code, see
section 791a of this title and Tables.
The Public Utility Holding Company Act, referred to
in subsec. (e), probably means the Public Utility Holding Company Act of 1935, title I of act Aug. 26, 1935, ch.
687, 49 Stat. 803, as amended, which was classified generally to chapter 2C (§ 79 et seq.) of Title 15, Commerce
and Trade, prior to repeal by Pub. L. 109–58, title XII,
§ 1263, Aug. 8, 2005, 119 Stat. 974. For complete classification of this Act to the Code, see Tables.
The Electric Consumers Protection Act of 1986, referred to in subsec. (j)(1), is Pub. L. 99–495, Oct. 16, 1986,
100 Stat. 1243. For complete classification of this Act to
the Code, see Short Title of 1986 Amendment note set
out under section 791a of this title and Tables.
This Act, referred to in subsecs. (m)(6) and (n)(1)(B),
is Pub. L. 95–617, Nov. 9, 1978, 92 Stat. 3117, as amended,
known as the Public Utility Regulatory Policies Act of
1978. For complete classification of this Act to the
Code, see Short Title note set out under section 2601 of
this title and Tables.
CODIFICATION
Section was enacted as part of the Public Utility
Regulatory Policies Act of 1978, and not as part of the
Federal Power Act which generally comprises this
chapter.
August 8, 2005, referred to in subsec. (n)(1)(A), was in
the original ‘‘the date of enactment of this section’’,
which was translated as meaning the date of enactment
of Pub. L. 109–58, which enacted subsecs. (m) and (n) of
this section, to reflect the probable intent of Congress.
AMENDMENTS
2005—Subsecs. (m), (n). Pub. L. 109–58 added subsecs.
(m) and (n).

§ 824a–3

1990—Subsec. (e)(2). Pub. L. 101–575 inserted ‘‘(other
than a qualifying small power production facility
which is an eligible solar, wind, waste, or geothermal
facility as defined in section 3(17)(E) of the Federal
Power Act)’’ after first reference to ‘‘facility’’.
1986—Subsecs. (j) to (l). Pub. L. 99–495 added subsecs.
(j) and (k) and redesignated former subsec. (j) as (l).
1980—Subsec. (a). Pub. L. 96–294, § 643(b)(1), inserted
provisions relating to encouragement of geothermal
small power production facilities.
Subsec. (e)(1). Pub. L. 96–294, § 643(b)(2), inserted provisions relating to applicability to geothermal small
power production facilities.
Subsec. (e)(2). Pub. L. 96–294, § 643(b)(3), inserted provisions respecting a qualifying small power production
facility using geothermal energy as the primary energy
source.
EFFECTIVE DATE OF 1986 AMENDMENT
Pub. L. 99–495, § 8(b), Oct. 16, 1986, 100 Stat. 1250, provided that:
‘‘(1) Subsection (j) of section 210 of the Public Utility
Regulatory Policies Act of 1978 (as amended by subsection (a) of this section) [16 U.S.C. 824a–3(j)] shall
apply to any project for which benefits under section
210 of the Public Utility Regulatory Policies Act of 1978
are sought and for which a license or exemption is issued by the Federal Energy Regulatory Commission
after the enactment of this Act [Oct. 16, 1986], except as
otherwise provided in paragraph (2), (3) or (4) of this
subsection.
‘‘(2) Subsection (j) shall not apply to the project if
the application for license or exemption for the project
was filed, and accepted for filing by the Commission,
before the enactment of this Act [Oct. 16, 1986].
‘‘(3) Paragraphs (1) and (3) of such subsection (j) shall
not apply if the application for the license or exemption for the project was filed before the enactment of
this Act [Oct. 16, 1986] and accepted for filing by the
Commission (in accordance with the Commission’s regulations and procedures in effect on January 1, 1986, including those relating to the requirement for environmental consultation) within 3 years after such enactment.
‘‘(4)(A) Paragraph (3) of subsection (j) shall not apply
for projects where the license or exemption application
was filed after enactment of this Act [Oct. 16, 1986] if,
based on a petition filed by the applicant for such
project within 18 months after such enactment, the
Commission determines (after public notice and opportunity for public comment of at least 45 days) that the
applicant has demonstrated that he had committed
(prior to the enactment of this Act) substantial monetary resources directly related to the development of
the project and to the diligent and timely completion
of all requirements of the Commission for filing an acceptable application for license or exemption. Such petition shall be publicly available and shall be filed in
such form as the Commission shall require by rule issued within 120 days after the enactment of this Act.
The public notice required under this subparagraph
shall include written notice by the petitioner to affected Federal and State agencies.
‘‘(B) In the case of any petition referred to in subparagraph (A), if the applicant had a preliminary permit and had completed environmental consultations
(required by Commission regulations and procedures in
effect on January 1, 1986) prior to enactment, there
shall be a rebuttable presumption that such applicant
had committed substantial monetary resources prior to
enactment.
‘‘(C) The applicant for a license or exemption for a
project described in subparagraph (A) may petition the
Commission for an initial determination under paragraph (1) of section 210(j) of the Public Utility Regulatory Policies Act of 1978 [16 U.S.C. 824a–3(j)(1)] prior
to the time the license or exemption is issued. If the
Commission initially finds that the project will have
substantial adverse effects on the environment within
the meaning of such paragraph (1), prior to making a

§ 824a–3

TITLE 16—CONSERVATION

final finding under that paragraph the Commission
shall afford the applicant a reasonable opportunity to
provide for mitigation of such adverse effects. The
Commission shall make a final finding under such paragraph (1) at the time the license or exemption is issued.
If the Federal Energy Regulatory Commission has notified the State of its initial finding and the State has
not taken any action described in paragraph (2) of section 210(j) before such final finding, the failure to take
such action shall be the basis for a rebuttable presumption that there is not a substantial adverse effect on
the environment related to natural, recreational, cultural, or scenic attributes for purposes of such finding.
‘‘(D) If a petition under subparagraph (A) is denied,
all provisions of section 210(j) of the Public Utility Regulatory Policies Act of 1978 [16 U.S.C. 824a–3(j)] shall
apply to the project regardless of when the license or
exemption is issued.’’
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.
CALCULATION OF AVOIDED COST
Pub. L. 102–486, title XIII, § 1335, Oct. 24, 1992, 106 Stat.
2984, provided that: ‘‘Nothing in section 210 of the Public Utility Regulatory Policies Act of 1978 (Public Law
95–617) [16 U.S.C. 824a–3] requires a State regulatory authority or nonregulated electric utility to treat a cost
reasonably identified to be incurred or to have been incurred in the construction or operation of a facility or
a project which has been selected by the Department of
Energy and provided Federal funding pursuant to the
Clean Coal Program authorized by Public Law 98–473
[see Tables for classification] as an incremental cost of
alternative electric energy.’’
APPLICABILITY OF 1980 AMENDMENT TO FACILITIES
USING SOLAR ENERGY AS PRIMARY ENERGY SOURCE
Pub. L. 100–202, § 101(d) [title III, § 310], Dec. 22, 1987,
101 Stat. 1329–104, 1329–126, provided that:
‘‘(a) The amendments made by section 643(b) of the
Energy Security Act (Public Law 96–294) [amending
this section] and any regulations issued to implement
such amendment shall apply to qualifying small power
production facilities (as such term is defined in the
Federal Power Act [16 U.S.C. 791a et seq.]) using solar
energy as the primary energy source to the same extent such amendments and regulations apply to qualifying small power production facilities using geothermal energy as the primary energy source, except
that nothing in this Act [see Tables for classification]
shall preclude the Federal Energy Regulatory Commission from revising its regulations to limit the availability of exemptions authorized under this Act as it
determines to be required in the public interest and
consistent with its obligations and duties under section
210 of the Public Utility Regulatory Policies Act of 1978
[this section].
‘‘(b) The provisions of subsection (a) shall apply to a
facility using solar energy as the primary energy
source only if either of the following is submitted to
the Federal Energy Regulatory Commission during the
two-year period beginning on the date of enactment of
this Act [Dec. 22, 1987]:
‘‘(1) An application for certification of the facility
as a qualifying small power production facility.
‘‘(2) Notice that the facility meets the requirements
for qualification.’’
STUDY AND REPORT TO CONGRESSIONAL COMMITTEES ON
APPLICATION OF PROVISIONS RELATING TO COGENERATION, SMALL POWER PRODUCTION, AND INTERCONNECTION AUTHORITY TO HYDROELECTRIC POWER FACILITIES

Pub. L. 99–495, § 8(d), Oct. 16, 1986, 100 Stat. 1251, provided that:
‘‘(1) The Commission shall conduct a study (in accordance with section 102(2)(C) of the National Environ-

Page 1280

mental Policy Act of 1969 [42 U.S.C. 4332(2)(C)]) of
whether the benefits of section 210 of the Public Utility
Regulatory Policies Act of 1978 [16 U.S.C. 824a–3] and
section 210 of the Federal Power Act [16 U.S.C. 824i]
should be applied to hydroelectric power facilities utilizing new dams or diversions (within the meaning of
section 210(k) of the Public Utility Regulatory Policies
Act of 1978).
‘‘(2) The study under this subsection shall take into
consideration the need for such new dams or diversions
for power purposes, the environmental impacts of such
new dams and diversions (both with and without the
application of the amendments made by this Act to sections 4, 10, and 30 of the Federal Power Act [16 U.S.C.
797, 803, 823a] and section 210 of the Public Utility Regulatory Policies Act of 1978 [16 U.S.C. 824a–3]), the environmental effects of such facilities alone and in combination with other existing or proposed dams or diversions on the same waterway, the intent of Congress to
encourage and give priority to the application of section 210 of Public Utility Regulatory Policies Act of
1978 to existing dams and diversions rather than such
new dams or diversions, and the impact of such section
210 on the rates paid by electric power consumers.
‘‘(3) The study under this subsection shall be initiated within 3 months after enactment of this Act [Oct.
16, 1986] and completed as promptly as practicable.
‘‘(4) A report containing the results of the study conducted under this subsection shall be submitted to the
Committee on Energy and Commerce of the United
States House of Representatives and the Committee on
Energy and Natural Resources of the United States
Senate while both Houses are in session.
‘‘(5) The report submitted under paragraph (4) shall
include a determination (and the basis thereof) by the
Commission, based on the study and a public hearing
and subject to review under section 313(b) of the Federal Power Act [16 U.S.C. 825l(b)], whether any of the
benefits referred to in paragraph (1) should be available
for such facilities and whether applications for preliminary permits (or licenses where no preliminary permit
has been issued) for such small power production facilities utilizing new dams or diversions should be accepted by the Commission after the moratorium period
specified in subsection (e). The report shall include
such other administrative and legislative recommendations as the Commission deems appropriate.
‘‘(6) If the study under this subsection has not been
completed within 18 months after its initiation, the
Commission shall notify the Committees referred to in
paragraph (4) of the reasons for the delay and specify a
date when it will be completed and a report submitted.’’
MORATORIUM ON APPLICATION OF THIS SECTION TO NEW
DAMS
Pub. L. 99–495, § 8(e), Oct. 16, 1986, 100 Stat. 1251, provided that: ‘‘Notwithstanding the amendments made by
subsection (a) of this section [amending section 824a–3
of this title], in the case of a project for which a license
or exemption is issued after the enactment of this Act
[Oct. 16, 1986], section 210 of the Public Utility Regulatory Policies Act of 1978 [16 U.S.C. 824a–3] shall not
apply during the moratorium period if the project utilizes a new dam or diversion (as defined in section
210(k) of such Act) unless the project is either—
‘‘(1) a project located at a Government dam (as defined in section 3(10) of the Federal Power Act [16
U.S.C. 796(10)]) at which non-Federal hydroelectric
development is permissible, or
‘‘(2) a project described in paragraphs (2), (3), or (4)
of subsection (b) [set out as a note above].
For purposes of this subsection, the term ‘moratorium
period’ means the period beginning on the date of the
enactment of this Act and ending at the expiration of
the first full session of Congress after the session during which the report under subsection (d) [set out as a
note above] has been submitted to the Congress.’’

Page 1281
DEFINITIONS

For definitions of terms used in this section, see section 2602 of this title.

§ 824a–4. Seasonal diversity electricity exchange
(a) Authority
The Secretary may acquire rights-of-way by
purchase, including eminent domain, through
North Dakota, South Dakota, and Nebraska for
transmission facilities for the seasonal diversity
exchange of electric power to and from Canada
if he determines—
(1) after opportunity for public hearing—
(A) that the exchange is in the public interest and would further the purposes referred to in section 2611(1) and (2) of this
title and that the acquisition of such rightsof-way and the construction and operation of
such transmission facilities for such purposes is otherwise in the public interest,
(B) that a permit has been issued in accordance with subsection (b) for such construction, operation, maintenance, and connection of the facilities at the border for the
transmission of electric energy between the
United States and Canada as is necessary for
such exchange of electric power, and
(C) that each affected State has approved
the portion of the transmission route located in each State in accordance with applicable State law, or if there is no such applicable State law in such State, the Governor has approved such portion; and
(2) after consultation with the Secretary of
the Interior and the heads of other affected
Federal agencies, that the Secretary of the Interior and the heads of such,1 other agencies
concur in writing in the location of such portion of the transmission facilities as crosses
Federal land under the jurisdiction of such
Secretary or such other Federal agency, as the
case may be.
The Secretary shall provide to any State such
cooperation and technical assistance as the
State may request and as he determines appropriate in the selection of a transmission route.
If the transmission route approved by any State
does not appear to be feasible and in the public
interest, the Secretary shall encourage such
State to review such route and to develop a
route that is feasible and in the public interest.
Any exercise by the Secretary of the power of
eminent domain under this section shall be in
accordance with other applicable provisions of
Federal law. The Secretary shall provide public
notice of his intention to acquire any right-ofway before exercising such power of eminent domain with respect to such right-of-way.
(b) Permit
Notwithstanding any transfer of functions
under the first sentence of section 301(b) of the
Department of Energy Organization Act [42
U.S.C. 7151(b)], no permit referred to in subsection (a)(1)(B) may be issued unless the Commission has conducted hearings and made the
findings required under section 202(e) of the Federal Power Act [16 U.S.C. 824a(e)] and under the
1 So

§ 824a–4

TITLE 16—CONSERVATION

in original. The comma probably should not appear.

applicable execution order respecting the construction, operation, maintenance, or connection at the borders of the United States of facilities for the transmission of electric energy between the United States and a foreign country.
Any finding of the Commission under an applicable executive order referred to in this subsection shall be treated for purposes of judicial
review as an order issued under section 202(e) of
the Federal Power Act.
(c) Timely acquisition by other means
The Secretary may not acquire any rights-ofday 2 under this section unless he determines
that the holder or holders of a permit referred to
in subsection (a)(1)(B) are unable to acquire such
rights-of-way under State condemnation authority, or after reasonable opportunity for negotiation, without unreasonably delaying construction, taking into consideration the impact of
such delay on completion of the facilities in a
timely fashion.
(d) Payments by permittees
(1) The property interest acquired by the Secretary under this section (whether by eminent
domain or other purchase) shall be transferred
by the Secretary to the holder of a permit referred to in subsection (b) if such holder has
made payment to the Secretary of the entire
costs of the acquisition of such property interest, including administrative costs. The Secretary may accept, and expend, for purposes of
such acquisition, amounts from any such person
before acquiring a property interest to be transferred to such person under this section.
(2) If no payment is made by a permit holder
under paragraph (1), within a reasonable time,
the Secretary shall offer such rights-of-way to
the original owner for reacquisition at the original price paid by the Secretary. If such original
owner refuses to reacquire such property after a
reasonable period, the Secretary shall dispose of
such property in accordance with applicable provisions of law governing disposal of property of
the United States.
(e) Federal law governing Federal lands
This section shall not affect any Federal law
governing Federal lands.
(Pub. L. 95–617, title VI, § 602, Nov. 9, 1978, 92
Stat. 3164.)
CODIFICATION
Subsection (f), which required the Secretary to report
annually to Congress on actions taken pursuant to this
section, terminated, effective May 15, 2000, pursuant to
section 3003 of Pub. L. 104–66, as amended, set out as a
note under section 1113 of Title 31, Money and Finance.
See, also, page 90 of House Document No. 103–7.
Section was enacted as part of the Public Utility
Regulatory Policies Act of 1978, and not as part of the
Federal Power Act which generally comprises this
chapter.
DEFINITIONS
For definitions of terms used in this section, see section 2602 of this title.
2 So

in original. Probably should be ‘‘rights-of-way’’.

§ 824b

TITLE 16—CONSERVATION

§ 824b. Disposition of property; consolidations;
purchase of securities
(a) Authorization
(1) No public utility shall, without first having
secured an order of the Commission authorizing
it to do so—
(A) sell, lease, or otherwise dispose of the
whole of its facilities subject to the jurisdiction of the Commission, or any part thereof of
a value in excess of $10,000,000;
(B) merge or consolidate, directly or indirectly, such facilities or any part thereof with
those of any other person, by any means whatsoever;
(C) purchase, acquire, or take any security
with a value in excess of $10,000,000 of any
other public utility; or
(D) purchase, lease, or otherwise acquire an
existing generation facility—
(i) that has a value in excess of $10,000,000;
and
(ii) that is used for interstate wholesale
sales and over which the Commission has jurisdiction for ratemaking purposes.
(2) No holding company in a holding company
system that includes a transmitting utility or
an electric utility shall purchase, acquire, or
take any security with a value in excess of
$10,000,000 of, or, by any means whatsoever, directly or indirectly, merge or consolidate with,
a transmitting utility, an electric utility company, or a holding company in a holding company system that includes a transmitting utility, or an electric utility company, with a value
in excess of $10,000,000 without first having secured an order of the Commission authorizing it
to do so.
(3) Upon receipt of an application for such approval the Commission shall give reasonable notice in writing to the Governor and State commission of each of the States in which the physical property affected, or any part thereof, is situated, and to such other persons as it may deem
advisable.
(4) After notice and opportunity for hearing,
the Commission shall approve the proposed disposition, consolidation, acquisition, or change
in control, if it finds that the proposed transaction will be consistent with the public interest, and will not result in cross-subsidization of
a non-utility associate company or the pledge or
encumbrance of utility assets for the benefit of
an associate company, unless the Commission
determines that the cross-subsidization, pledge,
or encumbrance will be consistent with the public interest.
(5) The Commission shall, by rule, adopt procedures for the expeditious consideration of applications for the approval of dispositions, consolidations, or acquisitions, under this section.
Such rules shall identify classes of transactions,
or specify criteria for transactions, that normally meet the standards established in paragraph (4). The Commission shall provide expedited review for such transactions. The Commission shall grant or deny any other application
for approval of a transaction not later than 180
days after the application is filed. If the Commission does not act within 180 days, such application shall be deemed granted unless the Com-

Page 1282

mission finds, based on good cause, that further
consideration is required to determine whether
the proposed transaction meets the standards of
paragraph (4) and issues an order tolling the
time for acting on the application for not more
than 180 days, at the end of which additional period the Commission shall grant or deny the application.
(6) For purposes of this subsection, the terms
‘‘associate company’’, ‘‘holding company’’, and
‘‘holding company system’’ have the meaning
given those terms in the Public Utility Holding
Company Act of 2005 [42 U.S.C. 16451 et seq.].
(b) Orders of Commission
The Commission may grant any application
for an order under this section in whole or in
part and upon such terms and conditions as it
finds necessary or appropriate to secure the
maintenance of adequate service and the coordination in the public interest of facilities subject
to the jurisdiction of the Commission. The Commission may from time to time for good cause
shown make such orders supplemental to any
order made under this section as it may find
necessary or appropriate.
(June 10, 1920, ch. 285, pt. II, § 203, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 849; amended Pub. L. 109–58, title XII, § 1289(a), Aug. 8, 2005,
119 Stat. 982.)
REFERENCES IN TEXT
The Public Utility Holding Company Act of 2005, referred to in subsec. (a)(6), is subtitle F of title XII of
Pub. L. 109–58, Aug. 8, 2005, 119 Stat. 972, which is classified principally to part D (§ 16451 et seq.) of subchapter
XII of chapter 149 of Title 42, The Public Health and
Welfare. For complete classification of this Act to the
Code, see Short Title note set out under section 15801
of Title 42 and Tables.
AMENDMENTS
2005—Subsec. (a). Pub. L. 109–58 amended subsec. (a)
generally. Prior to amendment, subsec. (a) read as follows: ‘‘No public utility shall sell, lease, or otherwise
dispose of the whole of its facilities subject to the jurisdiction of the Commission, or any part thereof of a
value in excess of $50,000, or by any means whatsoever,
directly or indirectly, merge or consolidate such facilities or any part thereof with those of any other person,
or purchase, acquire, or take any security of any other
public utility, without first having secured an order of
the Commission authorizing it to do so. Upon application for such approval the Commission shall give reasonable notice in writing to the Governor and State
commission of each of the States in which the physical
property affected, or any part thereof, is situated, and
to such other persons as it may deem advisable. After
notice and opportunity for hearing, if the Commission
finds that the proposed disposition, consolidation, acquisition, or control will be consistent with the public
interest, it shall approve the same.’’
EFFECTIVE DATE OF 2005 AMENDMENT
Pub. L. 109–58, title XII, § 1289(b), (c), Aug. 8, 2005, 119
Stat. 983, provided that:
‘‘(b) EFFECTIVE DATE.—The amendments made by this
section [amending this section] shall take effect 6
months after the date of enactment of this Act [Aug. 8,
2005].
‘‘(c) TRANSITION PROVISION.—The amendments made
by subsection (a) [amending this section] shall not
apply to any application under section 203 of the Federal Power Act (16 U.S.C. 824b) that was filed on or before the date of enactment of this Act [Aug. 8, 2005].’’

Page 1283

§ 824d

TITLE 16—CONSERVATION

§ 824c. Issuance of securities; assumption of liabilities
(a) Authorization by Commission
No public utility shall issue any security, or
assume any obligation or liability as guarantor,
indorser, surety, or otherwise in respect of any
security of another person, unless and until, and
then only to the extent that, upon application
by the public utility, the Commission by order
authorizes such issue or assumption of liability.
The Commission shall make such order only if it
finds that such issue or assumption (a) is for
some lawful object, within the corporate purposes of the applicant and compatible with the
public interest, which is necessary or appropriate for or consistent with the proper performance by the applicant of service as a public utility and which will not impair its ability to perform that service, and (b) is reasonably necessary or appropriate for such purposes. The provisions of this section shall be effective six
months after August 26, 1935.
(b) Application approval or modification; supplemental orders
The Commission, after opportunity for hearing, may grant any application under this section in whole or in part, and with such modifications and upon such terms and conditions as it
may find necessary or appropriate, and may
from time to time, after opportunity for hearing
and for good cause shown, make such supplemental orders in the premises as it may find
necessary or appropriate, and may by any such
supplemental order modify the provisions of any
previous order as to the particular purposes,
uses, and extent to which, or the conditions
under which, any security so theretofore authorized or the proceeds thereof may be applied, subject always to the requirements of subsection (a)
of this section.
(c) Compliance with order of Commission
No public utility shall, without the consent of
the Commission, apply any security or any proceeds thereof to any purpose not specified in the
Commission’s order, or supplemental order, or
to any purpose in excess of the amount allowed
for such purpose in such order, or otherwise in
contravention of such order.
(d) Authorization of capitalization not to exceed
amount paid
The Commission shall not authorize the capitalization of the right to be a corporation or of
any franchise, permit, or contract for consolidation, merger, or lease in excess of the amount
(exclusive of any tax or annual charge) actually
paid as the consideration for such right, franchise, permit, or contract.
(e) Notes or drafts maturing less than one year
after issuance
Subsection (a) shall not apply to the issue or
renewal of, or assumption of liability on, a note
or draft maturing not more than one year after
the date of such issue, renewal, or assumption of
liability, and aggregating (together with all
other then outstanding notes and drafts of a maturity of one year or less on which such public
utility is primarily or secondarily liable) not

more than 5 per centum of the par value of the
other securities of the public utility then outstanding. In the case of securities having no par
value, the par value for the purpose of this subsection shall be the fair market value as of the
date of issue. Within ten days after any such
issue, renewal, or assumption of liability, the
public utility shall file with the Commission a
certificate of notification, in such form as may
be prescribed by the Commission, setting forth
such matters as the Commission shall by regulation require.
(f) Public utility securities regulated by State not
affected
The provisions of this section shall not extend
to a public utility organized and operating in a
State under the laws of which its security issues
are regulated by a State commission.
(g) Guarantee or obligation on part of United
States
Nothing in this section shall be construed to
imply any guarantee or obligation on the part of
the United States in respect of any securities to
which the provisions of this section relate.
(h) Filing duplicate reports with the Securities
and Exchange Commission
Any public utility whose security issues are
approved by the Commission under this section
may file with the Securities and Exchange Commission duplicate copies of reports filed with the
Federal Power Commission in lieu of the reports, information, and documents required
under sections 77g, 78l, and 78m of title 15.
(June 10, 1920, ch. 285, pt. II, § 204, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 850.)
TRANSFER OF FUNCTIONS
Executive and administrative functions of Securities
and Exchange Commission, with certain exceptions,
transferred to Chairman of such Commission, with authority vested in him to authorize their performance
by any officer, employee, or administrative unit under
his jurisdiction, by Reorg. Plan No. 10 of 1950, §§ 1, 2, eff.
May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out in the
Appendix to Title 5, Government Organization and Employees.

§ 824d. Rates and charges; schedules; suspension
of new rates; automatic adjustment clauses
(a) Just and reasonable rates
All rates and charges made, demanded, or received by any public utility for or in connection
with the transmission or sale of electric energy
subject to the jurisdiction of the Commission,
and all rules and regulations affecting or pertaining to such rates or charges shall be just and
reasonable, and any such rate or charge that is
not just and reasonable is hereby declared to be
unlawful.
(b) Preference or advantage unlawful
No public utility shall, with respect to any
transmission or sale subject to the jurisdiction
of the Commission, (1) make or grant any undue
preference or advantage to any person or subject
any person to any undue prejudice or disadvantage, or (2) maintain any unreasonable difference in rates, charges, service, facilities, or in
any other respect, either as between localities
or as between classes of service.

§ 824d

TITLE 16—CONSERVATION

(c) Schedules
Under such rules and regulations as the Commission may prescribe, every public utility shall
file with the Commission, within such time and
in such form as the Commission may designate,
and shall keep open in convenient form and
place for public inspection schedules showing all
rates and charges for any transmission or sale
subject to the jurisdiction of the Commission,
and the classifications, practices, and regulations affecting such rates and charges, together
with all contracts which in any manner affect or
relate to such rates, charges, classifications, and
services.
(d) Notice required for rate changes
Unless the Commission otherwise orders, no
change shall be made by any public utility in
any such rate, charge, classification, or service,
or in any rule, regulation, or contract relating
thereto, except after sixty days’ notice to the
Commission and to the public. Such notice shall
be given by filing with the Commission and
keeping open for public inspection new schedules stating plainly the change or changes to be
made in the schedule or schedules then in force
and the time when the change or changes will go
into effect. The Commission, for good cause
shown, may allow changes to take effect without requiring the sixty days’ notice herein provided for by an order specifying the changes so
to be made and the time when they shall take
effect and the manner in which they shall be
filed and published.
(e) Suspension of new rates; hearings; five-month
period
Whenever any such new schedule is filed the
Commission shall have authority, either upon
complaint or upon its own initiative without
complaint, at once, and, if it so orders, without
answer or formal pleading by the public utility,
but upon reasonable notice, to enter upon a
hearing concerning the lawfulness of such rate,
charge, classification, or service; and, pending
such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the public utility affected thereby a
statement in writing of its reasons for such suspension, may suspend the operation of such
schedule and defer the use of such rate, charge,
classification, or service, but not for a longer period than five months beyond the time when it
would otherwise go into effect; and after full
hearings, either completed before or after the
rate, charge, classification, or service goes into
effect, the Commission may make such orders
with reference thereto as would be proper in a
proceeding initiated after it had become effective. If the proceeding has not been concluded
and an order made at the expiration of such five
months, the proposed change of rate, charge,
classification, or service shall go into effect at
the end of such period, but in case of a proposed
increased rate or charge, the Commission may
by order require the interested public utility or
public utilities to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf
such amounts are paid, and upon completion of
the hearing and decision may by further order

Page 1284

require such public utility or public utilities to
refund, with interest, to the persons in whose
behalf such amounts were paid, such portion of
such increased rates or charges as by its decision shall be found not justified. At any hearing
involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable
shall be upon the public utility, and the Commission shall give to the hearing and decision of
such questions preference over other questions
pending before it and decide the same as speedily as possible.
(f) Review of automatic adjustment clauses and
public utility practices; action by Commission; ‘‘automatic adjustment clause’’ defined
(1) Not later than 2 years after November 9,
1978, and not less often than every 4 years thereafter, the Commission shall make a thorough review of automatic adjustment clauses in public
utility rate schedules to examine—
(A) whether or not each such clause effectively provides incentives for efficient use of
resources (including economical purchase and
use of fuel and electric energy), and
(B) whether any such clause reflects any
costs other than costs which are—
(i) subject to periodic fluctuations and
(ii) not susceptible to precise determinations in rate cases prior to the time such
costs are incurred.
Such review may take place in individual rate
proceedings or in generic or other separate proceedings applicable to one or more utilities.
(2) Not less frequently than every 2 years, in
rate proceedings or in generic or other separate
proceedings, the Commission shall review, with
respect to each public utility, practices under
any automatic adjustment clauses of such utility to insure efficient use of resources (including
economical purchase and use of fuel and electric
energy) under such clauses.
(3) The Commission may, on its own motion or
upon complaint, after an opportunity for an evidentiary hearing, order a public utility to—
(A) modify the terms and provisions of any
automatic adjustment clause, or
(B) cease any practice in connection with
the clause,
if such clause or practice does not result in the
economical purchase and use of fuel, electric energy, or other items, the cost of which is included in any rate schedule under an automatic
adjustment clause.
(4) As used in this subsection, the term ‘‘automatic adjustment clause’’ means a provision of
a rate schedule which provides for increases or
decreases (or both), without prior hearing, in
rates reflecting increases or decreases (or both)
in costs incurred by an electric utility. Such
term does not include any rate which takes effect subject to refund and subject to a later determination of the appropriate amount of such
rate.
(June 10, 1920, ch. 285, pt. II, § 205, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 851; amended Pub. L. 95–617, title II, §§ 207(a), 208, Nov. 9,
1978, 92 Stat. 3142.)

Page 1285

TITLE 16—CONSERVATION
AMENDMENTS

1978—Subsec. (d). Pub. L. 95–617, § 207(a), substituted
‘‘sixty’’ for ‘‘thirty’’ in two places.
Subsec. (f). Pub. L. 95–617, § 208, added subsec. (f).
STUDY OF ELECTRIC RATE INCREASES UNDER FEDERAL
POWER ACT
Section 207(b) of Pub. L. 95–617 directed chairman of
Federal Energy Regulatory Commission, in consultation with Secretary, to conduct a study of legal requirements and administrative procedures involved in
consideration and resolution of proposed wholesale
electric rate increases under Federal Power Act, section 791a et seq. of this title, for purposes of providing
for expeditious handling of hearings consistent with
due process, preventing imposition of successive rate
increases before they have been determined by Commission to be just and reasonable and otherwise lawful,
and improving procedures designed to prohibit anticompetitive or unreasonable differences in wholesale
and retail rates, or both, and that chairman report to
Congress within nine months from Nov. 9, 1978, on results of study, on administrative actions taken as a result of this study, and on any recommendations for
changes in existing law that will aid purposes of this
section.

§ 824e. Power of Commission to fix rates and
charges; determination of cost of production
or transmission
(a) Unjust or preferential rates, etc.; statement of
reasons for changes; hearing; specification of
issues
Whenever the Commission, after a hearing
held upon its own motion or upon complaint,
shall find that any rate, charge, or classification, demanded, observed, charged, or collected
by any public utility for any transmission or
sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or
contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission
shall determine the just and reasonable rate,
charge, classification, rule, regulation, practice,
or contract to be thereafter observed and in
force, and shall fix the same by order. Any complaint or motion of the Commission to initiate
a proceeding under this section shall state the
change or changes to be made in the rate,
charge, classification, rule, regulation, practice,
or contract then in force, and the reasons for
any proposed change or changes therein. If, after
review of any motion or complaint and answer,
the Commission shall decide to hold a hearing,
it shall fix by order the time and place of such
hearing and shall specify the issues to be adjudicated.
(b) Refund effective date; preferential proceedings; statement of reasons for delay; burden
of proof; scope of refund order; refund orders in cases of dilatory behavior; interest
Whenever the Commission institutes a proceeding under this section, the Commission
shall establish a refund effective date. In the
case of a proceeding instituted on complaint,
the refund effective date shall not be earlier
than the date of the filing of such complaint nor
later than 5 months after the filing of such complaint. In the case of a proceeding instituted by
the Commission on its own motion, the refund
effective date shall not be earlier than the date

§ 824e

of the publication by the Commission of notice
of its intention to initiate such proceeding nor
later than 5 months after the publication date.
Upon institution of a proceeding under this section, the Commission shall give to the decision
of such proceeding the same preference as provided under section 824d of this title and otherwise act as speedily as possible. If no final decision is rendered by the conclusion of the 180-day
period commencing upon initiation of a proceeding pursuant to this section, the Commission
shall state the reasons why it has failed to do so
and shall state its best estimate as to when it
reasonably expects to make such decision. In
any proceeding under this section, the burden of
proof to show that any rate, charge, classification, rule, regulation, practice, or contract is
unjust, unreasonable, unduly discriminatory, or
preferential shall be upon the Commission or
the complainant. At the conclusion of any proceeding under this section, the Commission may
order refunds of any amounts paid, for the period subsequent to the refund effective date
through a date fifteen months after such refund
effective date, in excess of those which would
have been paid under the just and reasonable
rate, charge, classification, rule, regulation,
practice, or contract which the Commission orders to be thereafter observed and in force: Provided, That if the proceeding is not concluded
within fifteen months after the refund effective
date and if the Commission determines at the
conclusion of the proceeding that the proceeding
was not resolved within the fifteen-month period primarily because of dilatory behavior by
the public utility, the Commission may order refunds of any or all amounts paid for the period
subsequent to the refund effective date and prior
to the conclusion of the proceeding. The refunds
shall be made, with interest, to those persons
who have paid those rates or charges which are
the subject of the proceeding.
(c) Refund considerations; shifting costs; reduction in revenues; ‘‘electric utility companies’’
and ‘‘registered holding company’’ defined
Notwithstanding subsection (b), in a proceeding commenced under this section involving two
or more electric utility companies of a registered holding company, refunds which might
otherwise be payable under subsection (b) shall
not be ordered to the extent that such refunds
would result from any portion of a Commission
order that (1) requires a decrease in system production or transmission costs to be paid by one
or more of such electric companies; and (2) is
based upon a determination that the amount of
such decrease should be paid through an increase in the costs to be paid by other electric
utility companies of such registered holding
company: Provided, That refunds, in whole or in
part, may be ordered by the Commission if it determines that the registered holding company
would not experience any reduction in revenues
which results from an inability of an electric
utility company of the holding company to recover such increase in costs for the period between the refund effective date and the effective
date of the Commission’s order. For purposes of
this subsection, the terms ‘‘electric utility companies’’ and ‘‘registered holding company’’ shall

§ 824e

TITLE 16—CONSERVATION

have the same meanings as provided in the Public Utility Holding Company Act of 1935, as
amended.1
(d) Investigation of costs
The Commission upon its own motion, or upon
the request of any State commission whenever
it can do so without prejudice to the efficient
and proper conduct of its affairs, may investigate and determine the cost of the production
or transmission of electric energy by means of
facilities under the jurisdiction of the Commission in cases where the Commission has no authority to establish a rate governing the sale of
such energy.
(e) Short-term sales
(1) In this subsection:
(A) The term ‘‘short-term sale’’ means an
agreement for the sale of electric energy at
wholesale in interstate commerce that is for a
period of 31 days or less (excluding monthly
contracts subject to automatic renewal).
(B) The term ‘‘applicable Commission rule’’
means a Commission rule applicable to sales
at wholesale by public utilities that the Commission determines after notice and comment
should also be applicable to entities subject to
this subsection.
(2) If an entity described in section 824(f) of
this title voluntarily makes a short-term sale of
electric energy through an organized market in
which the rates for the sale are established by
Commission-approved tariff (rather than by contract) and the sale violates the terms of the tariff or applicable Commission rules in effect at
the time of the sale, the entity shall be subject
to the refund authority of the Commission under
this section with respect to the violation.
(3) This section shall not apply to—
(A) any entity that sells in total (including
affiliates of the entity) less than 8,000,000
megawatt hours of electricity per year; or
(B) an electric cooperative.
(4)(A) The Commission shall have refund authority under paragraph (2) with respect to a
voluntary short term sale of electric energy by
the Bonneville Power Administration only if the
sale is at an unjust and unreasonable rate.
(B) The Commission may order a refund under
subparagraph (A) only for short-term sales made
by the Bonneville Power Administration at
rates that are higher than the highest just and
reasonable rate charged by any other entity for
a short-term sale of electric energy in the same
geographic market for the same, or most nearly
comparable, period as the sale by the Bonneville
Power Administration.
(C) In the case of any Federal power marketing agency or the Tennessee Valley Authority,
the Commission shall not assert or exercise any
regulatory authority or power under paragraph
(2) other than the ordering of refunds to achieve
a just and reasonable rate.
(June 10, 1920, ch. 285, pt. II, § 206, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 852; amended Pub. L. 100–473, § 2, Oct. 6, 1988, 102 Stat. 2299;
Pub. L. 109–58, title XII, §§ 1285, 1286, 1295(b), Aug.
8, 2005, 119 Stat. 980, 981, 985.)
1 See

References in Text note below.

Page 1286
REFERENCES IN TEXT

The Public Utility Holding Company Act of 1935, referred to in subsec. (c), is title I of act Aug. 26, 1935, ch.
687, 49 Stat. 803, as amended, which was classified generally to chapter 2C (§ 79 et seq.) of Title 15, Commerce
and Trade, prior to repeal by Pub. L. 109–58, title XII,
§ 1263, Aug. 8, 2005, 119 Stat. 974. For complete classification of this Act to the Code, see Tables.
AMENDMENTS
2005—Subsec. (a). Pub. L. 109–58, § 1295(b)(1), substituted ‘‘hearing held’’ for ‘‘hearing had’’ in first sentence.
Subsec. (b). Pub. L. 109–58, § 1295(b)(2), struck out ‘‘the
public utility to make’’ before ‘‘refunds of any amounts
paid’’ in seventh sentence.
Pub. L. 109–58, § 1285, in second sentence, substituted
‘‘the date of the filing of such complaint nor later than
5 months after the filing of such complaint’’ for ‘‘the
date 60 days after the filing of such complaint nor later
than 5 months after the expiration of such 60-day period’’, in third sentence, substituted ‘‘the date of the
publication’’ for ‘‘the date 60 days after the publication’’ and ‘‘5 months after the publication date’’ for ‘‘5
months after the expiration of such 60-day period’’, and
in fifth sentence, substituted ‘‘If no final decision is
rendered by the conclusion of the 180-day period commencing upon initiation of a proceeding pursuant to
this section, the Commission shall state the reasons
why it has failed to do so and shall state its best estimate as to when it reasonably expects to make such decision’’ for ‘‘If no final decision is rendered by the refund effective date or by the conclusion of the 180-day
period commencing upon initiation of a proceeding pursuant to this section, whichever is earlier, the Commission shall state the reasons why it has failed to do so
and shall state its best estimate as to when it reasonably expects to make such decision’’.
Subsec. (e). Pub. L. 109–58, § 1286, added subsec. (e).
1988—Subsec. (a). Pub. L. 100–473, § 2(1), inserted provisions for a statement of reasons for listed changes,
hearings, and specification of issues.
Subsecs. (b) to (d). Pub. L. 100–473, § 2(2), added subsecs. (b) and (c) and redesignated former subsec. (b) as
(d).
EFFECTIVE DATE OF 1988 AMENDMENT
Pub. L. 100–473, § 4, Oct. 6, 1988, 102 Stat. 2300, provided
that: ‘‘The amendments made by this Act [amending
this section] are not applicable to complaints filed or
motions initiated before the date of enactment of this
Act [Oct. 6, 1988] pursuant to section 206 of the Federal
Power Act [this section]: Provided, however, That such
complaints may be withdrawn and refiled without prejudice.’’
LIMITATION ON AUTHORITY PROVIDED
Pub. L. 100–473, § 3, Oct. 6, 1988, 102 Stat. 2300, provided
that: ‘‘Nothing in subsection (c) of section 206 of the
Federal Power Act, as amended (16 U.S.C. 824e(c)) shall
be interpreted to confer upon the Federal Energy Regulatory Commission any authority not granted to it
elsewhere in such Act [16 U.S.C. 791a et seq.] to issue an
order that (1) requires a decrease in system production
or transmission costs to be paid by one or more electric
utility companies of a registered holding company; and
(2) is based upon a determination that the amount of
such decrease should be paid through an increase in the
costs to be paid by other electric utility companies of
such registered holding company. For purposes of this
section, the terms ‘electric utility companies’ and ‘registered holding company’ shall have the same meanings
as provided in the Public Utility Holding Company Act
of 1935, as amended [15 U.S.C. 79 et seq.].’’
STUDY
Pub. L. 100–473, § 5, Oct. 6, 1988, 102 Stat. 2301, directed
that, no earlier than three years and no later than four

Page 1287

TITLE 16—CONSERVATION

years after Oct. 6, 1988, Federal Energy Regulatory
Commission perform a study of effect of amendments
to this section, analyzing (1) impact, if any, of such
amendments on cost of capital paid by public utilities,
(2) any change in average time taken to resolve proceedings under this section, and (3) such other matters
as Commission may deem appropriate in public interest, with study to be sent to Committee on Energy and
Natural Resources of Senate and Committee on Energy
and Commerce of House of Representatives.

§ 824i

(a) Investigation of property costs
The Commission may investigate and ascertain the actual legitimate cost of the property
of every public utility, the depreciation therein,
and, when found necessary for rate-making purposes, other facts which bear on the determination of such cost or depreciation, and the fair
value of such property.
(b) Request for inventory and cost statements
Every public utility upon request shall file
with the Commission an inventory of all or any
part of its property and a statement of the original cost thereof, and shall keep the Commission
informed regarding the cost of all additions, betterments, extensions, and new construction.

State commission of each State affected or by
the Governor of such State if there is no State
commission. Each State affected shall be entitled to the same number of representatives on
the board unless the nominating power of such
State waives such right. The Commission shall
have discretion to reject the nominee from any
State, but shall thereupon invite a new nomination from that State. The members of a board
shall receive such allowances for expenses as the
Commission shall provide. The Commission
may, when in its discretion sufficient reason exists therefor, revoke any reference to such a
board.
(b) Cooperation with State commissions
The Commission may confer with any State
commission regarding the relationship between
rate structures, costs, accounts, charges, practices, classifications, and regulations of public
utilities subject to the jurisdiction of such State
commission and of the Commission; and the
Commission is authorized, under such rules and
regulations as it shall prescribe, to hold joint
hearings with any State commission in connection with any matter with respect to which the
Commission is authorized to act. The Commission is authorized in the administration of this
chapter to avail itself of such cooperation, services, records, and facilities as may be afforded
by any State commission.
(c) Availability of information and reports to
State commissions; Commission experts
The Commission shall make available to the
several State commissions such information and
reports as may be of assistance in State regulation of public utilities. Whenever the Commission can do so without prejudice to the efficient
and proper conduct of its affairs, it may upon request from a State make available to such State
as witnesses any of its trained rate, valuation,
or other experts, subject to reimbursement to
the Commission by such State of the compensation and traveling expenses of such witnesses.
All sums collected hereunder shall be credited to
the appropriation from which the amounts were
expended in carrying out the provisions of this
subsection.

(June 10, 1920, ch. 285, pt. II, § 208, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 853.)

(June 10, 1920, ch. 285, pt. II, § 209, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 853.)

§ 824f. Ordering furnishing of adequate service
Whenever the Commission, upon complaint of
a State commission, after notice to each State
commission and public utility affected and after
opportunity for hearing, shall find that any
interstate service of any public utility is inadequate or insufficient, the Commission shall determine the proper, adequate, or sufficient service to be furnished, and shall fix the same by its
order, rule, or regulation: Provided, That the
Commission shall have no authority to compel
the enlargement of generating facilities for such
purposes, nor to compel the public utility to sell
or exchange energy when to do so would impair
its ability to render adequate service to its customers.
(June 10, 1920, ch. 285, pt. II, § 207, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 853.)
§ 824g. Ascertainment of cost of property and depreciation

§ 824h. References to State boards by Commission
(a) Composition of boards; force and effect of
proceedings
The Commission may refer any matter arising
in the administration of this subchapter to a
board to be composed of a member or members,
as determined by the Commission, from the
State or each of the States affected or to be affected by such matter. Any such board shall be
vested with the same power and be subject to
the same duties and liabilities as in the case of
a member of the Commission when designated
by the Commission to hold any hearings. The
action of such board shall have such force and
effect and its proceedings shall be conducted in
such manner as the Commission shall by regulations prescribe. The board shall be appointed by
the Commission from persons nominated by the

§ 824i. Interconnection authority
(a) Powers of Commission; application by State
regulatory authority
(1) Upon application of any electric utility,
Federal power marketing agency, geothermal
power producer (including a producer which is
not an electric utility), qualifying cogenerator,
or qualifying small power producer, the Commission may issue an order requiring—
(A) the physical connection of any cogeneration facility, any small power production facility, or the transmission facilities of any
electric utility, with the facilities of such applicant,
(B) such action as may be necessary to make
effective any physical connection described in
subparagraph (A), which physical connection
is ineffective for any reason, such as inadequate size, poor maintenance, or physical unreliability,

§ 824j

TITLE 16—CONSERVATION

(C) such sale or exchange of electric energy
or other coordination, as may be necessary to
carry out the purposes of any order under subparagraph (A) or (B), or
(D) such increase in transmission capacity
as may be necessary to carry out the purposes
of any order under subparagraph (A) or (B).
(2) Any State regulatory authority may apply
to the Commission for an order for any action
referred to in subparagraph (A), (B), (C), or (D)
of paragraph (1). No such order may be issued by
the Commission with respect to a Federal power
marketing agency upon application of a State
regulatory authority.
(b) Notice, hearing and determination by Commission
Upon receipt of an application under subsection (a), the Commission shall—
(1) issue notice to each affected State regulatory authority, each affected electric utility, each affected Federal power marketing
agency, each affected owner or operator of a
cogeneration facility or of a small power production facility, and to the public.1
(2) afford an opportunity for an evidentiary
hearing, and
(3) make a determination with respect to the
matters referred to in subsection (c).
(c) Necessary findings
No order may be issued by the Commission
under subsection (a) unless the Commission determines that such order—
(1) is in the public interest,
(2) would—
(A) encourage overall conservation of energy or capital,
(B) optimize the efficiency of use of facilities and resources, or
(C) improve the reliability of any electric
utility system or Federal power marketing
agency to which the order applies, and
(3) meets the requirements of section 824k of
this title.
(d) Motion of Commission
The Commission may, on its own motion,
after compliance with the requirements of paragraphs (1) and (2) of subsection (b), issue an
order requiring any action described in subsection (a)(1) if the Commission determines that
such order meets the requirements of subsection
(c). No such order may be issued upon the Commission’s own motion with respect to a Federal
power marketing agency.
(e) Definitions
(1) As used in this section, the term ‘‘facilities’’ means only facilities used for the generation or transmission of electric energy.
(2) With respect to an order issued pursuant to
an application of a qualifying cogenerator or
qualifying small power producer under subsection (a)(1), the term ‘‘facilities of such applicant’’ means the qualifying cogeneration facilities or qualifying small power production facilities of the applicant, as specified in the application. With respect to an order issued pursuant to
1 So

in original. The period probably should be a comma.

Page 1288

an application under subsection (a)(2), the term
‘‘facilities of such applicant’’ means the qualifying cogeneration facilities, qualifying small
power production facilities, or the transmission
facilities of an electric utility, as specified in
the application. With respect to an order issued
by the Commission on its own motion under subsection (d), such term means the qualifying cogeneration facilities, qualifying small power
production facilities, or the transmission facilities of an electric utility, as specified in the proposed order.
(June 10, 1920, ch. 285, pt. II, § 210, as added Pub.
L. 95–617, title II, § 202, Nov. 9, 1978, 92 Stat. 3135;
amended Pub. L. 96–294, title VI, § 643(a)(2), June
30, 1980, 94 Stat. 770.)
AMENDMENTS
1980—Subsec. (a)(1). Pub. L. 96–294 added applicability
to geothermal power producers.
STUDY AND REPORT TO CONGRESSIONAL COMMITTEES ON
APPLICATION OF PROVISIONS RELATING TO COGENERATION, SMALL POWER PRODUCTION, AND INTERCONNECTION AUTHORITY TO HYDROELECTRIC POWER FACILITIES

For provisions requiring the Federal Energy Regulatory Commission to conduct a study and report to
Congress on whether the benefits of this section and
section 824a–3 of this title should be applied to hydroelectric power facilities utilizing new dams or diversions, within the meaning of section 824a–3(k) of this
title, see section 8(d) of Pub. L. 99–495, set out as a note
under section 824a–3 of this title.

§ 824j. Wheeling authority
(a) Transmission service by any electric utility;
notice, hearing and findings by Commission
Any electric utility, Federal power marketing
agency, or any other person generating electric
energy for sale for resale, may apply to the
Commission for an order under this subsection
requiring a transmitting utility to provide
transmission services (including any enlargement of transmission capacity necessary to provide such services) to the applicant. Upon receipt of such application, after public notice and
notice to each affected State regulatory authority, each affected electric utility, and each affected Federal power marketing agency, and
after affording an opportunity for an evidentiary hearing, the Commission may issue
such order if it finds that such order meets the
requirements of section 824k of this title, and
would otherwise be in the public interest. No
order may be issued under this subsection unless
the applicant has made a request for transmission services to the transmitting utility that
would be the subject of such order at least 60
days prior to its filing of an application for such
order.
(b) Reliability of electric service
No order may be issued under this section or
section 824i of this title if, after giving consideration to consistently applied regional or national reliability standards, guidelines, or criteria, the Commission finds that such order
would unreasonably impair the continued reliability of electric systems affected by the order.
(c) Replacement of electric energy
No order may be issued under subsection (a) or
(b) which requires the transmitting utility sub-

Page 1289

ject to the order to transmit, during any period,
an amount of electric energy which replaces any
amount of electric energy—
(1) required to be provided to such applicant
pursuant to a contract during such period, or
(2) currently provided to the applicant by
the utility subject to the order pursuant to a
rate schedule on file during such period with
the Commission: Provided, That nothing in
this subparagraph shall prevent an application
for an order hereunder to be filed prior to termination or modification of an existing rate
schedule: Provided, That such order shall not
become effective until termination of such
rate schedule or the modification becomes effective.
(d) Termination or modification of order; notice,
hearing and findings of Commission; contents of order; inclusion in order of terms
and conditions agreed upon by parties
(1) Any transmitting utility ordered under
subsection (a) or (b) to provide transmission
services may apply to the Commission for an
order permitting such transmitting utility to
cease providing all, or any portion of, such services. After public notice, notice to each affected
State regulatory authority, each affected Federal power marketing agency, each affected
transmitting utility, and each affected electric
utility, and after an opportunity for an evidentiary hearing, the Commission shall issue an
order terminating or modifying the order issued
under subsection (a) or (b), if the transmitting
utility providing such transmission services has
demonstrated, and the Commission has found,
that—
(A) due to changed circumstances, the requirements applicable, under this section and
section 824k of this title, to the issuance of an
order under subsection (a) or (b) are no longer
met, or 1
(B) any transmission capacity of the utility
providing transmission services under such
order which was, at the time such order was
issued, in excess of the capacity necessary to
serve its own customers is no longer in excess
of the capacity necessary for such purposes, or
(C) the ordered transmission services require
enlargement of transmission capacity and the
transmitting utility subject to the order has
failed, after making a good faith effort, to obtain the necessary approvals or property
rights under applicable Federal, State, and
local laws.
No order shall be issued under this subsection
pursuant to a finding under subparagraph (A)
unless the Commission finds that such order is
in the public interest.
(2) Any order issued under this subsection terminating or modifying an order issued under
subsection (a) or (b) shall—
(A) provide for any appropriate compensation, and
(B) provide the affected electric utilities
adequate opportunity and time to—
(i) make suitable alternative arrangements for any transmission services terminated or modified, and
1 So

§ 824j

TITLE 16—CONSERVATION

in original. The word ‘‘or’’ probably should not appear.

(ii) insure that the interests of ratepayers
of such utilities are adequately protected.
(3) No order may be issued under this subsection terminating or modifying any order issued under subsection (a) or (b) if the order
under subsection (a) or (b) includes terms and
conditions agreed upon by the parties which—
(A) fix a period during which transmission
services are to be provided under the order
under subsection (a) or (b), or
(B) otherwise provide procedures or methods
for terminating or modifying such order (including, if appropriate, the return of the transmission capacity when necessary to take into
account an increase, after the issuance of such
order, in the needs of the transmitting utility
subject to such order for transmission capacity).
(e) ‘‘Facilities’’ defined
As used in this section, the term ‘‘facilities’’
means only facilities used for the generation or
transmission of electric energy.
(June 10, 1920, ch. 285, pt. II, § 211, as added Pub.
L. 95–617, title II, § 203, Nov. 9, 1978, 92 Stat. 3136;
amended Pub. L. 96–294, title VI, § 643(a)(3), June
30, 1980, 94 Stat. 770; Pub. L. 99–495, § 15, Oct. 16,
1986, 100 Stat. 1257; Pub. L. 102–486, title VII,
§ 721, Oct. 24, 1992, 106 Stat. 2915; Pub. L. 109–58,
title XII, § 1295(c), Aug. 8, 2005, 119 Stat. 985.)
AMENDMENTS
2005—Subsec. (c). Pub. L. 109–58, § 1295(c)(1), struck
out par. (2) designation before introductory provisions,
redesignated former subpars. (A) and (B) as pars. (1) and
(2), respectively, and in par. (2) substituted ‘‘termination or modification’’ for ‘‘termination of modification’’.
Subsec. (d)(1). Pub. L. 109–58, § 1295(c)(2), substituted
‘‘if the transmitting utility providing’’ for ‘‘if the electric utility providing’’ in introductory provisions.
1992—Subsec. (a). Pub. L. 102–486, § 721(1), amended
first sentence generally. Prior to amendment, first sentence read as follows: ‘‘Any electric utility, geothermal
power producer (including a producer which is not an
electric utility), or Federal power marketing agency
may apply to the Commission for an order under this
subsection requiring any other electric utility to provide transmission services to the applicant (including
any enlargement of transmission capacity necessary to
provide such services).’’
Pub. L. 102–486, § 721(2), in second sentence, substituted ‘‘the Commission may issue such order if it
finds that such order meets the requirements of section
824k of this title, and would otherwise be in the public
interest. No order may be issued under this subsection
unless the applicant has made a request for transmission services to the transmitting utility that would
be the subject of such order at least 60 days prior to its
filing of an application for such order.’’ for ‘‘the Commission may issue such order if it finds that such
order—
‘‘(1) is in the public interest,
‘‘(2) would—
‘‘(A) conserve a significant amount of energy,
‘‘(B) significantly promote the efficient use of facilities and resources, or
‘‘(C) improve the reliability of any electric utility
system to which the order applies, and
‘‘(3) meets the requirements of section 824k of this
title.’’
Subsec. (b). Pub. L. 102–486, § 721(3), amended subsec.
(b) generally, substituting provisions relating to reliability of electric service for provisions which related
to transmission service by sellers of electric energy for

§ 824j–1

TITLE 16—CONSERVATION

resale and notice, hearing, and determinations by Commission.
Subsec. (c). Pub. L. 102–486, § 721(4), struck out pars.
(1), (3), and (4), and substituted ‘‘which requires the
transmitting’’ for ‘‘which requires the electric’’ in introductory provisions of par. (2). Prior to amendment,
pars. (1), (3), and (4) read as follows:
‘‘(1) No order may be issued under subsection (a) of
this section unless the Commission determines that
such order would reasonably preserve existing competitive relationships.
‘‘(3) No order may be issued under the authority of
subsection (a) or (b) of this section which is inconsistent with any State law which governs the retail marketing areas of electric utilities.
‘‘(4) No order may be issued under subsection (a) or
(b) of this section which provides for the transmission
of electric energy directly to an ultimate consumer.’’
Subsec. (d). Pub. L. 102–486, § 721(5), in first sentence
substituted ‘‘transmitting’’ for ‘‘electric’’ before ‘‘utility’’ in two places, in second sentence inserted ‘‘each
affected transmitting utility,’’ before ‘‘and each affected electric utility’’, in par. (1) substituted ‘‘, or’’
for period at end of subpar. (B) and added subpar. (C),
and in par. (3)(B) substituted ‘‘transmitting’’ for ‘‘electric’’ before ‘‘utility’’.
1986—Subsec. (c)(2)(B). Pub. L. 99–495 inserted provisions that nothing in this subparagraph shall prevent
an application for an order hereunder to be filed prior
to termination or modification of an existing rate
schedule, provided that such order shall not become effective until termination of such rate schedule or the
modification becomes effective.
1980—Subsec. (a). Pub. L. 96–294 added applicability to
geothermal power producers.
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.
STATE AUTHORITIES; CONSTRUCTION
Nothing in amendment by Pub. L. 102–486 to be construed as affecting or intending to affect, or in any way
to interfere with, authority of any State or local government relating to environmental protection or siting
of facilities, see section 731 of Pub. L. 102–486, set out
as a note under section 796 of this title.

§ 824j–1. Open access by unregulated transmitting utilities
(a) Definition of unregulated transmitting utility
In this section, the term ‘‘unregulated transmitting utility’’ means an entity that—
(1) owns or operates facilities used for the
transmission of electric energy in interstate
commerce; and
(2) is an entity described in section 824(f) of
this title.
(b) Transmission operation services
Subject to section 824k(h) of this title, the
Commission may, by rule or order, require an
unregulated transmitting utility to provide
transmission services—
(1) at rates that are comparable to those
that the unregulated transmitting utility
charges itself; and
(2) on terms and conditions (not relating to
rates) that are comparable to those under
which the unregulated transmitting utility
provides transmission services to itself and
that are not unduly discriminatory or preferential.

Page 1290

(c) Exemption
The Commission shall exempt from any rule
or order under this section any unregulated
transmitting utility that—
(1) sells not more than 4,000,000 megawatt
hours of electricity per year;
(2) does not own or operate any transmission
facilities that are necessary for operating an
interconnected transmission system (or any
portion of the system); or
(3) meets other criteria the Commission determines to be in the public interest.
(d) Local distribution facilities
The requirements of subsection (b) shall not
apply to facilities used in local distribution.
(e) Exemption termination
If the Commission, after an evidentiary hearing held on a complaint and after giving consideration to reliability standards established
under section 824o of this title, finds on the basis
of a preponderance of the evidence that any exemption granted pursuant to subsection (c) unreasonably impairs the continued reliability of
an interconnected transmission system, the
Commission shall revoke the exemption granted
to the transmitting utility.
(f) Application to unregulated transmitting utilities
The rate changing procedures applicable to
public utilities under subsections (c) and (d) of
section 824d of this title are applicable to unregulated transmitting utilities for purposes of
this section.
(g) Remand
In exercising authority under subsection
(b)(1), the Commission may remand transmission rates to an unregulated transmitting
utility for review and revision if necessary to
meet the requirements of subsection (b).
(h) Other requests
The provision of transmission services under
subsection (b) does not preclude a request for
transmission services under section 824j of this
title.
(i) Limitation
The Commission may not require a State or
municipality to take action under this section
that would violate a private activity bond rule
for purposes of section 141 of title 26.
(j) Transfer of control of transmitting facilities
Nothing in this section authorizes the Commission to require an unregulated transmitting
utility to transfer control or operational control
of its transmitting facilities to a Transmission
Organization that is designated to provide nondiscriminatory transmission access.
(June 10, 1920, ch. 285, pt. II, § 211A, as added Pub.
L. 109–58, title XII, § 1231, Aug. 8, 2005, 119 Stat.
955.)
§ 824k. Orders
wheeling

requiring

interconnection

or

(a) Rates, charges, terms, and conditions for
wholesale transmission services
An order under section 824j of this title shall
require the transmitting utility subject to the

Page 1291

TITLE 16—CONSERVATION

order to provide wholesale transmission services
at rates, charges, terms, and conditions which
permit the recovery by such utility of all the
costs incurred in connection with the transmission services and necessary associated services, including, but not limited to, an appropriate share, if any, of legitimate, verifiable and
economic costs, including taking into account
any benefits to the transmission system of providing the transmission service, and the costs of
any enlargement of transmission facilities. Such
rates, charges, terms, and conditions shall promote the economically efficient transmission
and generation of electricity and shall be just
and reasonable, and not unduly discriminatory
or preferential. Rates, charges, terms, and conditions for transmission services provided pursuant to an order under section 824j of this title
shall ensure that, to the extent practicable,
costs incurred in providing the wholesale transmission services, and properly allocable to the
provision of such services, are recovered from
the applicant for such order and not from a
transmitting utility’s existing wholesale, retail,
and transmission customers.
(b) Repealed. Pub. L. 102–486, title VII, § 722(1),
Oct. 24, 1992, 106 Stat. 2916
(c) Issuance of proposed order; agreement by
parties to terms and conditions of order; approval by Commission; inclusion in final
order; failure to agree
(1) Before issuing an order under section 824i
of this title or subsection (a) or (b) of section
824j of this title, the Commission shall issue a
proposed order and set a reasonable time for
parties to the proposed interconnection or
transmission order to agree to terms and conditions under which such order is to be carried
out, including the apportionment of costs between them and the compensation or reimbursement reasonably due to any of them. Such proposed order shall not be reviewable or enforceable in any court. The time set for such parties
to agree to such terms and conditions may be
shortened if the Commission determines that
delay would jeopardize the attainment of the
purposes of any proposed order. Any terms and
conditions agreed to by the parties shall be subject to the approval of the Commission.
(2)(A) If the parties agree as provided in paragraph (1) within the time set by the Commission
and the Commission approves such agreement,
the terms and conditions shall be included in
the final order. In the case of an order under section 824i of this title, if the parties fail to agree
within the time set by the Commission or if the
Commission does not approve any such agreement, the Commission shall prescribe such
terms and conditions and include such terms
and conditions in the final order.
(B) In the case of any order applied for under
section 824j of this title, if the parties fail to
agree within the time set by the Commission,
the Commission shall prescribe such terms and
conditions in the final order.
(d) Statement of reasons for denial
If the Commission does not issue any order applied for under section 824i or 824j of this title,
the Commission shall, by order, deny such application and state the reasons for such denial.

§ 824k

(e) Savings provisions
(1) No provision of section 824i, 824j, 824m of
this title, or this section shall be treated as requiring any person to utilize the authority of
any such section in lieu of any other authority
of law. Except as provided in section 824i, 824j,
824m of this title, or this section, such sections
shall not be construed as limiting or impairing
any authority of the Commission under any
other provision of law.
(2) Sections 824i, 824j, 824l, 824m of this title,
and this section, shall not be construed to modify, impair, or supersede the antitrust laws. For
purposes of this section, the term ‘‘antitrust
laws’’ has the meaning given in subsection (a) of
the first sentence of section 12 of title 15, except
that such term includes section 45 of title 15 to
the extent that such section relates to unfair
methods of competition.
(f) Effective date of order; hearing; notice; review
(1) No order under section 824i or 824j of this
title requiring the Tennessee Valley Authority
(hereinafter in this subsection referred to as the
‘‘TVA’’) to take any action shall take effect for
60 days following the date of issuance of the
order. Within 60 days following the issuance by
the Commission of any order under section 824i
or of section 824j of this title requiring the TVA
to enter into any contract for the sale or delivery of power, the Commission may on its own
motion initiate, or upon petition of any aggrieved person shall initiate, an evidentiary
hearing to determine whether or not such sale
or delivery would result in violation of the third
sentence of section 15d(a) of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831n–4), hereinafter in this subsection referred to as the TVA
Act [16 U.S.C. 831 et seq.].
(2) Upon initiation of any evidentiary hearing
under paragraph (1), the Commission shall give
notice thereof to any applicant who applied for
and obtained the order from the Commission, to
any electric utility or other entity subject to
such order, and to the public, and shall promptly
make the determination referred to in paragraph (1). Upon initiation of such hearing, the
Commission shall stay the effectiveness of the
order under section 824i or 824j of this title until
whichever of the following dates is applicable—
(A) the date on which there is a final determination (including any judicial review thereof under paragraph (3)) that no such violation
would result from such order, or
(B) the date on which a specific authorization of the Congress (within the meaning of
the third sentence of section 15d(a) of the TVA
Act [16 U.S.C. 831n–4(a)]) takes effect.
(3) Any determination under paragraph (1)
shall be reviewable only in the appropriate court
of the United States upon petition filed by any
aggrieved person or municipality within 60 days
after such determination, and such court shall
have jurisdiction to grant appropriate relief.
Any applicant who applied for and obtained the
order under section 824i or 824j of this title, and
any electric utility or other entity subject to
such order shall have the right to intervene in
any such proceeding in such court. Except for
review by such court (and any appeal or other

§ 824k

TITLE 16—CONSERVATION

review by an appellate court of the United
States), no court shall have jurisdiction to consider any action brought by any person to enjoin
the carrying out of any order of the Commission
under section 824i or section 824j of this title requiring the TVA to take any action on the
grounds that such action requires a specific authorization of the Congress pursuant to the
third sentence of section 15d(a) of the TVA Act
[16 U.S.C. 831n–4(a)].
(g) Prohibition on orders inconsistent with retail
marketing areas
No order may be issued under this chapter
which is inconsistent with any State law which
governs the retail marketing areas of electric
utilities.
(h) Prohibition on mandatory retail wheeling
and sham wholesale transactions
No order issued under this chapter shall be
conditioned upon or require the transmission of
electric energy:
(1) directly to an ultimate consumer, or
(2) to, or for the benefit of, an entity if such
electric energy would be sold by such entity
directly to an ultimate consumer, unless:
(A) such entity is a Federal power marketing agency; the Tennessee Valley Authority;
a State or any political subdivision of a
State (or an agency, authority, or instrumentality of a State or a political subdivision); a corporation or association that has
ever received a loan for the purposes of providing electric service from the Administrator of the Rural Electrification Administration under the Rural Electrification Act
of 1936 [7 U.S.C. 901 et seq.]; a person having
an obligation arising under State or local
law (exclusive of an obligation arising solely
from a contract entered into by such person)
to provide electric service to the public; or
any corporation or association which is
wholly owned, directly or indirectly, by any
one or more of the foregoing; and
(B) such entity was providing electric service to such ultimate consumer on October 24,
1992, or would utilize transmission or distribution facilities that it owns or controls
to deliver all such electric energy to such
electric consumer.
Nothing in this subsection shall affect any authority of any State or local government under
State law concerning the transmission of electric energy directly to an ultimate consumer.
(i) Laws applicable to Federal Columbia River
Transmission System
(1) The Commission shall have authority pursuant to section 824i of this title, section 824j of
this title, this section, and section 824l of this
title to (A) order the Administrator of the Bonneville Power Administration to provide transmission service and (B) establish the terms and
conditions of such service. In applying such sections to the Federal Columbia River Transmission System, the Commission shall assure
that—
(i) the provisions of otherwise applicable
Federal laws shall continue in full force and
effect and shall continue to be applicable to
the system; and

Page 1292

(ii) the rates for the transmission of electric
power on the system shall be governed only by
such otherwise applicable provisions of law
and not by any provision of section 824i of this
title, section 824j of this title, this section, or
section 824l of this title, except that no rate
for the transmission of power on the system
shall be unjust, unreasonable, or unduly discriminatory or preferential, as determined by
the Commission.
(2) Notwithstanding any other provision of
this chapter with respect to the procedures for
the determination of terms and conditions for
transmission service—
(A) when the Administrator of the Bonneville Power Administration either (i) in response to a written request for specific transmission service terms and conditions does not
offer the requested terms and conditions, or
(ii) proposes to establish terms and conditions
of general applicability for transmission service on the Federal Columbia River Transmission System, then the Administrator may
provide opportunity for a hearing and, in so
doing, shall—
(I) give notice in the Federal Register and
state in such notice the written explanation
of the reasons why the specific terms and
conditions for transmission services are not
being offered or are being proposed;
(II) adhere to the procedural requirements
of paragraphs (1) through (3) of section
839e(i) of this title, except that the hearing
officer shall, unless the hearing officer becomes unavailable to the agency, make a
recommended decision to the Administrator
that states the hearing officer’s findings and
conclusions, and the reasons or basis thereof, on all material issues of fact, law, or discretion presented on the record; and
(III) make a determination, setting forth
the reasons for reaching any findings and
conclusions which may differ from those of
the hearing officer, based on the hearing
record, consideration of the hearing officer’s
recommended decision, section 824j of this
title and this section, as amended by the Energy Policy Act of 1992, and the provisions of
law as preserved in this section; and
(B) if application is made to the Commission
under section 824j of this title for transmission
service under terms and conditions different
than those offered by the Administrator, or
following the denial of a request for transmission service by the Administrator, and
such application is filed within 60 days of the
Administrator’s final determination and in accordance with Commission procedures, the
Commission shall—
(i) in the event the Administrator has conducted a hearing as herein provided for (I)
accord parties to the Administrator’s hearing the opportunity to offer for the Commission record materials excluded by the Administrator from the hearing record, (II) accord such parties the opportunity to submit
for the Commission record comments on appropriate terms and conditions, (III) afford
those parties the opportunity for a hearing if
and to the extent that the Commission finds

Page 1293

§ 824k

TITLE 16—CONSERVATION

the Administrator’s hearing record to be inadequate to support a decision by the Commission, and (IV) establish terms and conditions for or deny transmission service based
on the Administrator’s hearing record, the
Commission record, section 824j of this title
and this section, as amended by the Energy
Policy Act of 1992, and the provisions of law
as preserved in this section, or
(ii) in the event the Administrator has not
conducted a hearing as herein provided for,
determine whether to issue an order for
transmission service in accordance with section 824j of this title and this section, including providing the opportunity for a
hearing.
(3) Notwithstanding those provisions of section 825l(b) of this title which designate the
court in which review may be obtained, any
party to a proceeding concerning transmission
service sought to be furnished by the Administrator of the Bonneville Power Administration
seeking review of an order issued by the Commission in such proceeding shall obtain a review
of such order in the United States Court of Appeals for the Pacific Northwest, as that region is
defined by section 839a(14) of this title.
(4) To the extent the Administrator of the
Bonneville Power Administration cannot be required under section 824j of this title, as a result
of the Administrator’s other statutory mandates, either to (A) provide transmission service
to an applicant which the Commission would
otherwise order, or (B) provide such service
under rates, terms, and conditions which the
Commission would otherwise require, the applicant shall not be required to provide similar
transmission services to the Administrator or to
provide such services under similar rates, terms,
and conditions.
(5) The Commission shall not issue any order
under section 824i of this title, section 824j of
this title, this section, or section 824l of this
title requiring the Administrator of the Bonneville Power Administration to provide transmission service if such an order would impair
the Administrator’s ability to provide such
transmission service to the Administrator’s
power and transmission customers in the Pacific
Northwest, as that region is defined in section
839a(14) of this title, as is needed to assure adequate and reliable service to loads in that region.
(j) Equitability within territory restricted electric systems
With respect to an electric utility which is
prohibited by Federal law from being a source of
power supply, either directly or through a distributor of its electric energy, outside an area
set forth in such law, no order issued under section 824j of this title may require such electric
utility (or a distributor of such electric utility)
to provide transmission services to another entity if the electric energy to be transmitted will
be consumed within the area set forth in such
Federal law, unless the order is in furtherance of
a sale of electric energy to that electric utility:
Provided, however, That the foregoing provision
shall not apply to any area served at retail by
an electric transmission system which was such

a distributor on October 24, 1992, and which before October 1, 1991, gave its notice of termination under its power supply contract with
such electric utility.
(k) ERCOT utilities
(1) Rates
Any order under section 824j of this title requiring provision of transmission services in
whole or in part within ERCOT shall provide
that any ERCOT utility which is not a public
utility and the transmission facilities of which
are actually used for such transmission service is entitled to receive compensation based,
insofar as practicable and consistent with subsection (a), on the transmission ratemaking
methodology used by the Public Utility Commission of Texas.
(2) Definitions
For purposes of this subsection—
(A) the term ‘‘ERCOT’’ means the Electric
Reliability Council of Texas; and
(B) the term ‘‘ERCOT utility’’ means a
transmitting utility which is a member of
ERCOT.
(June 10, 1920, ch. 285, pt. II, § 212, as added Pub.
L. 95–617, title II, § 204(a), Nov. 9, 1978, 92 Stat.
3138; amended Pub. L. 102–486, title VII, § 722,
Oct. 24, 1992, 106 Stat. 2916.)
REFERENCES IN TEXT
The TVA Act, referred to in subsec. (f)(1), means act
May 18, 1933, ch. 32, 48 Stat. 58, as amended, known as
the Tennessee Valley Authority Act of 1933, which is
classified generally to chapter 12A (§ 831 et seq.) of this
title. For complete classification of this Act to the
Code, see section 831 of this title and Tables.
The Rural Electrification Act of 1936, referred to in
subsec. (h)(2)(A), is act May 20, 1936, ch. 432, 49 Stat.
1363, as amended, which is classified generally to chapter 31 (§ 901 et seq.) of Title 7, Agriculture. For complete
classification of this Act to the Code, see section 901 of
Title 7 and Tables.
The Energy Policy Act of 1992, referred to in subsec.
(i)(2)(A)(III), (B)(i), is Pub. L. 102–486, Oct. 24, 1992, 106
Stat. 2776. For complete classification of this Act to
the Code, see Short Title note set out under section
13201 of Title 42, The Public Health and Welfare and
Tables.
AMENDMENTS
1992—Subsec. (a). Pub. L. 102–486, § 722(1), added subsec. (a) and struck out former subsec. (a) which related
to determinations by Commission.
Subsec. (b). Pub. L. 102–486, § 722(1), struck out subsec.
(b) which required applicants for orders to be ready,
willing, and able to reimburse parties subject to such
orders.
Subsec. (e). Pub. L. 102–486, § 722(2), amended subsec.
(e) generally. Prior to amendment, subsec. (e) related
to utilization of interconnection or wheeling authority
in lieu of other authority and limitation of Commission
authority.
Subsecs. (g) to (k). Pub. L. 102–486, § 722(3), added subsecs. (g) to (k).
STATE AUTHORITIES; CONSTRUCTION
Nothing in amendment by Pub. L. 102–486 to be construed as affecting or intending to affect, or in any way
to interfere with, authority of any State or local government relating to environmental protection or siting
of facilities, see section 731 of Pub. L. 102–486, set out
as a note under section 796 of this title.

§ 824l

TITLE 16—CONSERVATION

§ 824l. Information requirements
(a) Requests for wholesale transmission services
Whenever any electric utility, Federal power
marketing agency, or any other person generating electric energy for sale for resale makes a
good faith request to a transmitting utility to
provide wholesale transmission services and requests specific rates and charges, and other
terms and conditions, unless the transmitting
utility agrees to provide such services at rates,
charges, terms and conditions acceptable to
such person, the transmitting utility shall,
within 60 days of its receipt of the request, or
other mutually agreed upon period, provide such
person with a detailed written explanation, with
specific reference to the facts and circumstances
of the request, stating (1) the transmitting utility’s basis for the proposed rates, charges,
terms, and conditions for such services, and (2)
its analysis of any physical or other constraints
affecting the provision of such services.
(b) Transmission capacity and constraints
Not later than 1 year after October 24, 1992,
the Commission shall promulgate a rule requiring that information be submitted annually to
the Commission by transmitting utilities which
is adequate to inform potential transmission
customers, State regulatory authorities, and the
public of potentially available transmission capacity and known constraints.
(June 10, 1920, ch. 285, pt. II, § 213, as added Pub.
L. 102–486, title VII, § 723, Oct. 24, 1992, 106 Stat.
2919.)
STATE AUTHORITIES; CONSTRUCTION
Nothing in this section to be construed as affecting
or intending to affect, or in any way to interfere with,
authority of any State or local government relating to
environmental protection or siting of facilities, see section 731 of Pub. L. 102–486, set out as a note under section 796 of this title.

§ 824m. Sales by exempt wholesale generators
No rate or charge received by an exempt
wholesale generator for the sale of electric energy shall be lawful under section 824d of this
title if, after notice and opportunity for hearing,
the Commission finds that such rate or charge
results from the receipt of any undue preference
or advantage from an electric utility which is an
associate company or an affiliate of the exempt
wholesale generator. For purposes of this section, the terms ‘‘associate company’’ and ‘‘affiliate’’ shall have the same meaning as provided in
section 16451 of title 42.1
(June 10, 1920, ch. 285, pt. II, § 214, as added Pub.
L. 102–486, title VII, § 724, Oct. 24, 1992, 106 Stat.
2920; amended Pub. L. 109–58, title XII,
§ 1277(b)(2), Aug. 8, 2005, 119 Stat. 978.)
REFERENCES IN TEXT
Section 16451 of title 42, referred to in text, was in the
original ‘‘section 2(a) of the Public Utility Holding
Company Act of 2005’’ and was translated as reading
‘‘section 1262’’ of that Act, meaning section 1262 of subtitle F of title XII of Pub. L. 109–58, to reflect the probable intent of Congress, because subtitle F of title XII
1 See

References in Text note below.

Page 1294

of Pub. L. 109–58 does not contain a section 2 and section 1262 of subtitle F of title XII of Pub. L. 109–58 defines terms.
AMENDMENTS
2005—Pub. L. 109–58 substituted ‘‘section 16451 of title
42’’ for ‘‘section 79b(a) of title 15’’.
EFFECTIVE DATE OF 2005 AMENDMENT
Amendment by Pub. L. 109–58 effective 6 months after
Aug. 8, 2005, with provisions relating to effect of compliance with certain regulations approved and made effective prior to such date, see section 1274 of Pub. L.
109–58, set out as an Effective Date note under section
16451 of Title 42, The Public Health and Welfare.
STATE AUTHORITIES; CONSTRUCTION
Nothing in this section to be construed as affecting
or intending to affect, or in any way to interfere with,
authority of any State or local government relating to
environmental protection or siting of facilities, see section 731 of Pub. L. 102–486, set out as a note under section 796 of this title.

§ 824n. Repealed. Pub. L. 109–58, title
§ 1232(e)(3), Aug. 8, 2005, 119 Stat. 957

XII,

Section, Pub. L. 106–377, § 1(a)(2) [title III, § 311], Oct.
27, 2000, 114 Stat. 1441, 1441A–80, related to authority regarding formation and operation of regional transmission organizations.

§ 824o. Electric reliability
(a) Definitions
For purposes of this section:
(1) The term ‘‘bulk-power system’’ means—
(A) facilities and control systems necessary for operating an interconnected electric energy transmission network (or any
portion thereof); and
(B) electric energy from generation facilities needed to maintain transmission system
reliability.
The term does not include facilities used in
the local distribution of electric energy.
(2) The terms ‘‘Electric Reliability Organization’’ and ‘‘ERO’’ mean the organization certified by the Commission under subsection (c)
the purpose of which is to establish and enforce reliability standards for the bulk-power
system, subject to Commission review.
(3) The term ‘‘reliability standard’’ means a
requirement, approved by the Commission
under this section, to provide for reliable operation of the bulk-power system. The term includes requirements for the operation of existing bulk-power system facilities, including
cybersecurity protection, and the design of
planned additions or modifications to such facilities to the extent necessary to provide for
reliable operation of the bulk-power system,
but the term does not include any requirement
to enlarge such facilities or to construct new
transmission capacity or generation capacity.
(4) The term ‘‘reliable operation’’ means operating the elements of the bulk-power system
within equipment and electric system thermal, voltage, and stability limits so that instability, uncontrolled separation, or cascading failures of such system will not occur as a
result of a sudden disturbance, including a
cybersecurity incident, or unanticipated failure of system elements.

Page 1295

TITLE 16—CONSERVATION

(5) The term ‘‘Interconnection’’ means a geographic area in which the operation of bulkpower system components is synchronized
such that the failure of one or more of such
components may adversely affect the ability
of the operators of other components within
the system to maintain reliable operation of
the facilities within their control.
(6) The term ‘‘transmission organization’’
means a Regional Transmission Organization,
Independent System Operator, independent
transmission provider, or other transmission
organization finally approved by the Commission for the operation of transmission facilities.
(7) The term ‘‘regional entity’’ means an entity having enforcement authority pursuant to
subsection (e)(4).
(8) The term ‘‘cybersecurity incident’’ means
a malicious act or suspicious event that disrupts, or was an attempt to disrupt, the operation of those programmable electronic devices and communication networks including
hardware, software and data that are essential
to the reliable operation of the bulk power
system.
(b) Jurisdiction and applicability
(1) The Commission shall have jurisdiction,
within the United States, over the ERO certified
by the Commission under subsection (c), any regional entities, and all users, owners and operators of the bulk-power system, including but not
limited to the entities described in section 824(f)
of this title, for purposes of approving reliability
standards established under this section and enforcing compliance with this section. All users,
owners and operators of the bulk-power system
shall comply with reliability standards that
take effect under this section.
(2) The Commission shall issue a final rule to
implement the requirements of this section not
later than 180 days after August 8, 2005.
(c) Certification
Following the issuance of a Commission rule
under subsection (b)(2), any person may submit
an application to the Commission for certification as the Electric Reliability Organization.
The Commission may certify one such ERO if
the Commission determines that such ERO—
(1) has the ability to develop and enforce,
subject to subsection (e)(2), reliability standards that provide for an adequate level of reliability of the bulk-power system; and
(2) has established rules that—
(A) assure its independence of the users
and owners and operators of the bulk-power
system, while assuring fair stakeholder representation in the selection of its directors
and balanced decisionmaking in any ERO
committee or subordinate organizational
structure;
(B) allocate equitably reasonable dues,
fees, and other charges among end users for
all activities under this section;
(C) provide fair and impartial procedures
for enforcement of reliability standards
through the imposition of penalties in accordance with subsection (e) (including limitations on activities, functions, or operations, or other appropriate sanctions);

§ 824o

(D) provide for reasonable notice and opportunity for public comment, due process,
openness, and balance of interests in developing reliability standards and otherwise exercising its duties; and
(E) provide for taking, after certification,
appropriate steps to gain recognition in Canada and Mexico.
(d) Reliability standards
(1) The Electric Reliability Organization shall
file each reliability standard or modification to
a reliability standard that it proposes to be
made effective under this section with the Commission.
(2) The Commission may approve, by rule or
order, a proposed reliability standard or modification to a reliability standard if it determines
that the standard is just, reasonable, not unduly
discriminatory or preferential, and in the public
interest. The Commission shall give due weight
to the technical expertise of the Electric Reliability Organization with respect to the content
of a proposed standard or modification to a reliability standard and to the technical expertise
of a regional entity organized on an Interconnection-wide basis with respect to a reliability standard to be applicable within that Interconnection, but shall not defer with respect to
the effect of a standard on competition. A proposed standard or modification shall take effect
upon approval by the Commission.
(3) The Electric Reliability Organization shall
rebuttably presume that a proposal from a regional entity organized on an Interconnectionwide basis for a reliability standard or modification to a reliability standard to be applicable on
an Interconnection-wide basis is just, reasonable, and not unduly discriminatory or preferential, and in the public interest.
(4) The Commission shall remand to the Electric Reliability Organization for further consideration a proposed reliability standard or a
modification to a reliability standard that the
Commission disapproves in whole or in part.
(5) The Commission, upon its own motion or
upon complaint, may order the Electric Reliability Organization to submit to the Commission a proposed reliability standard or a modification to a reliability standard that addresses
a specific matter if the Commission considers
such a new or modified reliability standard appropriate to carry out this section.
(6) The final rule adopted under subsection
(b)(2) shall include fair processes for the identification and timely resolution of any conflict
between a reliability standard and any function,
rule, order, tariff, rate schedule, or agreement
accepted, approved, or ordered by the Commission applicable to a transmission organization.
Such transmission organization shall continue
to comply with such function, rule, order, tariff,
rate schedule or agreement accepted, approved,
or ordered by the Commission until—
(A) the Commission finds a conflict exists
between a reliability standard and any such
provision;
(B) the Commission orders a change to such
provision pursuant to section 824e of this title;
and
(C) the ordered change becomes effective
under this subchapter.

§ 824o

TITLE 16—CONSERVATION

If the Commission determines that a reliability
standard needs to be changed as a result of such
a conflict, it shall order the ERO to develop and
file with the Commission a modified reliability
standard under paragraph (4) or (5) of this subsection.
(e) Enforcement
(1) The ERO may impose, subject to paragraph
(2), a penalty on a user or owner or operator of
the bulk-power system for a violation of a reliability standard approved by the Commission
under subsection (d) if the ERO, after notice and
an opportunity for a hearing—
(A) finds that the user or owner or operator
has violated a reliability standard approved by
the Commission under subsection (d); and
(B) files notice and the record of the proceeding with the Commission.
(2) A penalty imposed under paragraph (1) may
take effect not earlier than the 31st day after
the ERO files with the Commission notice of the
penalty and the record of proceedings. Such penalty shall be subject to review by the Commission, on its own motion or upon application by
the user, owner or operator that is the subject of
the penalty filed within 30 days after the date
such notice is filed with the Commission. Application to the Commission for review, or the initiation of review by the Commission on its own
motion, shall not operate as a stay of such penalty unless the Commission otherwise orders
upon its own motion or upon application by the
user, owner or operator that is the subject of
such penalty. In any proceeding to review a penalty imposed under paragraph (1), the Commission, after notice and opportunity for hearing
(which hearing may consist solely of the record
before the ERO and opportunity for the presentation of supporting reasons to affirm, modify,
or set aside the penalty), shall by order affirm,
set aside, reinstate, or modify the penalty, and,
if appropriate, remand to the ERO for further
proceedings. The Commission shall implement
expedited procedures for such hearings.
(3) On its own motion or upon complaint, the
Commission may order compliance with a reliability standard and may impose a penalty
against a user or owner or operator of the bulkpower system if the Commission finds, after notice and opportunity for a hearing, that the user
or owner or operator of the bulk-power system
has engaged or is about to engage in any acts or
practices that constitute or will constitute a
violation of a reliability standard.
(4) The Commission shall issue regulations authorizing the ERO to enter into an agreement to
delegate authority to a regional entity for the
purpose of proposing reliability standards to the
ERO and enforcing reliability standards under
paragraph (1) if—
(A) the regional entity is governed by—
(i) an independent board;
(ii) a balanced stakeholder board; or
(iii) a combination independent and balanced stakeholder board.
(B) the regional entity otherwise satisfies
the provisions of subsection (c)(1) and (2); and
(C) the agreement promotes effective and efficient administration of bulk-power system
reliability.

Page 1296

The Commission may modify such delegation.
The ERO and the Commission shall rebuttably
presume that a proposal for delegation to a regional entity organized on an Interconnectionwide basis promotes effective and efficient administration of bulk-power system reliability
and should be approved. Such regulation may
provide that the Commission may assign the
ERO’s authority to enforce reliability standards
under paragraph (1) directly to a regional entity
consistent with the requirements of this paragraph.
(5) The Commission may take such action as is
necessary or appropriate against the ERO or a
regional entity to ensure compliance with a reliability standard or any Commission order affecting the ERO or a regional entity.
(6) Any penalty imposed under this section
shall bear a reasonable relation to the seriousness of the violation and shall take into consideration the efforts of such user, owner, or operator to remedy the violation in a timely manner.
(f) Changes in Electric Reliability Organization
rules
The Electric Reliability Organization shall
file with the Commission for approval any proposed rule or proposed rule change, accompanied
by an explanation of its basis and purpose. The
Commission, upon its own motion or complaint,
may propose a change to the rules of the ERO.
A proposed rule or proposed rule change shall
take effect upon a finding by the Commission,
after notice and opportunity for comment, that
the change is just, reasonable, not unduly discriminatory or preferential, is in the public interest, and satisfies the requirements of subsection (c).
(g) Reliability reports
The ERO shall conduct periodic assessments of
the reliability and adequacy of the bulk-power
system in North America.
(h) Coordination with Canada and Mexico
The President is urged to negotiate international agreements with the governments of
Canada and Mexico to provide for effective compliance with reliability standards and the effectiveness of the ERO in the United States and
Canada or Mexico.
(i) Savings provisions
(1) The ERO shall have authority to develop
and enforce compliance with reliability standards for only the bulk-power system.
(2) This section does not authorize the ERO or
the Commission to order the construction of additional generation or transmission capacity or
to set and enforce compliance with standards for
adequacy or safety of electric facilities or services.
(3) Nothing in this section shall be construed
to preempt any authority of any State to take
action to ensure the safety, adequacy, and reliability of electric service within that State, as
long as such action is not inconsistent with any
reliability standard, except that the State of
New York may establish rules that result in
greater reliability within that State, as long as
such action does not result in lesser reliability
outside the State than that provided by the reliability standards.

Page 1297

TITLE 16—CONSERVATION

(4) Within 90 days of the application of the
Electric Reliability Organization or other affected party, and after notice and opportunity
for comment, the Commission shall issue a final
order determining whether a State action is inconsistent with a reliability standard, taking
into consideration any recommendation of the
ERO.
(5) The Commission, after consultation with
the ERO and the State taking action, may stay
the effectiveness of any State action, pending
the Commission’s issuance of a final order.
(j) Regional advisory bodies
The Commission shall establish a regional advisory body on the petition of at least twothirds of the States within a region that have
more than one-half of their electric load served
within the region. A regional advisory body
shall be composed of one member from each participating State in the region, appointed by the
Governor of each State, and may include representatives of agencies, States, and provinces
outside the United States. A regional advisory
body may provide advice to the Electric Reliability Organization, a regional entity, or the
Commission regarding the governance of an existing or proposed regional entity within the
same region, whether a standard proposed to
apply within the region is just, reasonable, not
unduly discriminatory or preferential, and in
the public interest, whether fees proposed to be
assessed within the region are just, reasonable,
not unduly discriminatory or preferential, and
in the public interest and any other responsibilities requested by the Commission. The Commission may give deference to the advice of any
such regional advisory body if that body is organized on an Interconnection-wide basis.
(k) Alaska and Hawaii
The provisions of this section do not apply to
Alaska or Hawaii.
(June 10, 1920, ch. 285, pt. II, § 215, as added Pub.
L. 109–58, title XII, § 1211(a), Aug. 8, 2005, 119
Stat. 941.)
STATUS OF ERO
Pub. L. 109–58, title XII, § 1211(b), Aug. 8, 2005, 119
Stat. 946, provided that: ‘‘The Electric Reliability Organization certified by the Federal Energy Regulatory
Commission under section 215(c) of the Federal Power
Act [16 U.S.C. 824o(c)] and any regional entity delegated
enforcement authority pursuant to section 215(e)(4) of
that Act [16 U.S.C. 824o(e)(4)] are not departments,
agencies, or instrumentalities of the United States
Government.’’
ACCESS APPROVALS BY FEDERAL AGENCIES
Pub. L. 109–58, title XII, § 1211(c), Aug. 8, 2005, 119
Stat. 946, provided that: ‘‘Federal agencies responsible
for approving access to electric transmission or distribution facilities located on lands within the United
States shall, in accordance with applicable law, expedite any Federal agency approvals that are necessary
to allow the owners or operators of such facilities to
comply with any reliability standard, approved by the
[Federal Energy Regulatory] Commission under section
215 of the Federal Power Act [16 U.S.C. 824o], that pertains to vegetation management, electric service restoration, or resolution of situations that imminently
endanger the reliability or safety of the facilities.’’

§ 824o–1

§ 824o–1. Critical electric infrastructure security
(a) Definitions
For purposes of this section:
(1) Bulk-power system; Electric Reliability Organization; regional entity
The terms ‘‘bulk-power system’’, ‘‘Electric
Reliability Organization’’, and ‘‘regional entity’’ have the meanings given such terms in
paragraphs (1), (2), and (7) of section 824o(a) of
this title, respectively.
(2) Critical electric infrastructure
The term ‘‘critical electric infrastructure’’
means a system or asset of the bulk-power system, whether physical or virtual, the incapacity or destruction of which would negatively
affect national security, economic security,
public health or safety, or any combination of
such matters.
(3) Critical electric infrastructure information
The term ‘‘critical electric infrastructure information’’ means information related to critical electric infrastructure, or proposed critical electrical infrastructure, generated by or
provided to the Commission or other Federal
agency, other than classified national security
information, that is designated as critical
electric infrastructure information by the
Commission or the Secretary pursuant to subsection (d). Such term includes information
that qualifies as critical energy infrastructure
information under the Commission’s regulations.
(4) Defense critical electric infrastructure
The term ‘‘defense critical electric infrastructure’’ means any electric infrastructure
located in any of the 48 contiguous States or
the District of Columbia that serves a facility
designated by the Secretary pursuant to subsection (c), but is not owned or operated by
the owner or operator of such facility.
(5) Electromagnetic pulse
The term ‘‘electromagnetic pulse’’ means 1
or more pulses of electromagnetic energy
emitted by a device capable of disabling or disrupting operation of, or destroying, electronic
devices or communications networks, including hardware, software, and data, by means of
such a pulse.
(6) Geomagnetic storm
The term ‘‘geomagnetic storm’’ means a
temporary disturbance of the Earth’s magnetic field resulting from solar activity.
(7) Grid security emergency
The term ‘‘grid security emergency’’ means
the occurrence or imminent danger of—
(A)(i) a malicious act using electronic
communication or an electromagnetic pulse,
or a geomagnetic storm event, that could
disrupt the operation of those electronic devices or communications networks, including hardware, software, and data, that are
essential to the reliability of critical electric infrastructure or of defense critical electric infrastructure; and
(ii) disruption of the operation of such devices or networks, with significant adverse

§ 824o–1

TITLE 16—CONSERVATION

effects on the reliability of critical electric
infrastructure or of defense critical electric
infrastructure, as a result of such act or
event; or
(B)(i) a direct physical attack on critical
electric infrastructure or on defense critical
electric infrastructure; and
(ii) significant adverse effects on the reliability of critical electric infrastructure or
of defense critical electric infrastructure as
a result of such physical attack.
(8) Secretary
The term ‘‘Secretary’’ means the Secretary
of Energy.
(b) Authority to address grid security emergency
(1) Authority
Whenever the President issues and provides
to the Secretary a written directive or determination identifying a grid security emergency, the Secretary may, with or without notice, hearing, or report, issue such orders for
emergency measures as are necessary in the
judgment of the Secretary to protect or restore the reliability of critical electric infrastructure or of defense critical electric infrastructure during such emergency. As soon as
practicable but not later than 180 days after
December 4, 2015, the Secretary shall, after notice and opportunity for comment, establish
rules of procedure that ensure that such authority can be exercised expeditiously.
(2) Notification of Congress
Whenever the President issues and provides
to the Secretary a written directive or determination under paragraph (1), the President
shall promptly notify congressional committees of relevant jurisdiction, including the
Committee on Energy and Commerce of the
House of Representatives and the Committee
on Energy and Natural Resources of the Senate, of the contents of, and justification for,
such directive or determination.
(3) Consultation
Before issuing an order for emergency measures under paragraph (1), the Secretary shall,
to the extent practicable in light of the nature
of the grid security emergency and the urgency of the need for action, consult with appropriate governmental authorities in Canada
and Mexico, entities described in paragraph
(4), the Electricity Sub-sector Coordinating
Council, the Commission, and other appropriate Federal agencies regarding implementation of such emergency measures.
(4) Application
An order for emergency measures under this
subsection may apply to—
(A) the Electric Reliability Organization;
(B) a regional entity; or
(C) any owner, user, or operator of critical
electric infrastructure or of defense critical
electric infrastructure within the United
States.
(5) Expiration and reissuance
(A) In general
Except as provided in subparagraph (B), an
order for emergency measures issued under

Page 1298

paragraph (1) shall expire no later than 15
days after its issuance.
(B) Extensions
The Secretary may reissue an order for
emergency measures issued under paragraph
(1) for subsequent periods, not to exceed 15
days for each such period, provided that the
President, for each such period, issues and
provides to the Secretary a written directive
or determination that the grid security
emergency identified under paragraph (1)
continues to exist or that the emergency
measure continues to be required.
(6) Cost recovery
(A) Critical electric infrastructure
If the Commission determines that owners,
operators, or users of critical electric infrastructure have incurred substantial costs to
comply with an order for emergency measures issued under this subsection and that
such costs were prudently incurred and cannot reasonably be recovered through regulated rates or market prices for the electric
energy or services sold by such owners, operators, or users, the Commission shall, consistent with the requirements of section 824d
of this title, after notice and an opportunity
for comment, establish a mechanism that
permits such owners, operators, or users to
recover such costs.
(B) Defense critical electric infrastructure
To the extent the owner or operator of defense critical electric infrastructure is required to take emergency measures pursuant to an order issued under this subsection,
the owners or operators of a critical defense
facility or facilities designated by the Secretary pursuant to subsection (c) that rely
upon such infrastructure shall bear the full
incremental costs of the measures.
(7) Temporary access to classified information
The Secretary, and other appropriate Federal agencies, shall, to the extent practicable
and consistent with their obligations to protect classified information, provide temporary
access to classified information related to a
grid security emergency for which emergency
measures are issued under paragraph (1) to key
personnel of any entity subject to such emergency measures to enable optimum communication between the entity and the Secretary
and other appropriate Federal agencies regarding the grid security emergency.
(c) Designation of critical defense facilities
Not later than 180 days after December 4, 2015,
the Secretary, in consultation with other appropriate Federal agencies and appropriate owners,
users, or operators of infrastructure that may be
defense critical electric infrastructure, shall
identify and designate facilities located in the 48
contiguous States and the District of Columbia
that are—
(1) critical to the defense of the United
States; and
(2) vulnerable to a disruption of the supply
of electric energy provided to such facility by
an external provider.

Page 1299

TITLE 16—CONSERVATION

The Secretary may, in consultation with appropriate Federal agencies and appropriate owners,
users, or operators of defense critical electric infrastructure, periodically revise the list of designated facilities as necessary.
(d) Protection and sharing of critical electric infrastructure information
(1) Protection of critical electric infrastructure
information
Critical electric infrastructure information—
(A) shall be exempt from disclosure under
section 552(b)(3) of title 5; and
(B) shall not be made available by any
Federal, State, political subdivision or tribal
authority pursuant to any Federal, State,
political subdivision or tribal law requiring
public disclosure of information or records.
(2) Designation and sharing of critical electric
infrastructure information
Not later than one year after December 4,
2015, the Commission, after consultation with
the Secretary, shall promulgate such regulations as necessary to—
(A) establish criteria and procedures to
designate information as critical electric infrastructure information;
(B) prohibit the unauthorized disclosure of
critical electric infrastructure information;
(C) ensure there are appropriate sanctions
in place for Commissioners, officers, employees, or agents of the Commission or the Department of Energy who knowingly and willfully disclose critical electric infrastructure
information in a manner that is not authorized under this section; and
(D) taking into account standards of the
Electric Reliability Organization, facilitate
voluntary sharing of critical electric infrastructure information with, between, and
by—
(i) Federal, State, political subdivision,
and tribal authorities;
(ii) the Electric Reliability Organization;
(iii) regional entities;
(iv) information sharing and analysis
centers established pursuant to Presidential Decision Directive 63;
(v) owners, operators, and users of critical electric infrastructure in the United
States; and
(vi) other entities determined appropriate by the Commission.
(3) Authority to designate
Information may be designated by the Commission or the Secretary as critical electric
infrastructure information pursuant to the
criteria and procedures established by the
Commission under paragraph (2)(A).
(4) Considerations
In exercising their respective authorities
under this subsection, the Commission and the
Secretary shall take into consideration the
role of State commissions in reviewing the
prudence and cost of investments, determining
the rates and terms of conditions for electric
services, and ensuring the safety and reliability of the bulk-power system and distribution
facilities within their respective jurisdictions.

§ 824o–1

(5) Protocols
The Commission and the Secretary shall, in
consultation with Canadian and Mexican authorities, develop protocols for the voluntary
sharing of critical electric infrastructure information with Canadian and Mexican authorities and owners, operators, and users of
the bulk-power system outside the United
States.
(6) No required sharing of information
Nothing in this section shall require a person or entity in possession of critical electric
infrastructure information to share such information with Federal, State, political subdivision, or tribal authorities, or any other
person or entity.
(7) Submission of information to Congress
Nothing in this section shall permit or authorize the withholding of information from
Congress, any committee or subcommittee
thereof, or the Comptroller General.
(8) Disclosure of nonprotected information
In implementing this section, the Commission and the Secretary shall segregate critical
electric infrastructure information or information that reasonably could be expected to
lead to the disclosure of the critical electric
infrastructure information within documents
and electronic communications, wherever feasible, to facilitate disclosure of information
that is not designated as critical electric infrastructure information.
(9) Duration of designation
Information may not be designated as critical electric infrastructure information for
longer than 5 years, unless specifically re-designated by the Commission or the Secretary,
as appropriate.
(10) Removal of designation
The Commission or the Secretary, as appropriate, shall remove the designation of critical
electric infrastructure information, in whole
or in part, from a document or electronic communication if the Commission or the Secretary, as appropriate, determines that the unauthorized disclosure of such information
could no longer be used to impair the security
or reliability of the bulk-power system or distribution facilities.
(11) Judicial review of designations
Notwithstanding section 825l(b) of this title,
with respect to a petition filed by a person to
which an order under this section applies, any
determination by the Commission or the Secretary concerning the designation of critical
electric infrastructure information under this
subsection shall be subject to review under
chapter 7 of title 5, except that such review
shall be brought in the district court of the
United States in the district in which the
complainant resides, or has his principal place
of business, or in the District of Columbia. In
such a case the court shall examine in camera
the contents of documents or electronic communications that are the subject of the determination under review to determine whether
such documents or any part thereof were im-

§ 824p

TITLE 16—CONSERVATION

properly designated or not designated as critical electric infrastructure information.
(e) Security clearances
The Secretary shall facilitate and, to the extent practicable, expedite the acquisition of adequate security clearances by key personnel of
any entity subject to the requirements of this
section, to enable optimum communication with
Federal agencies regarding threats to the security of the critical electric infrastructure. The
Secretary, the Commission, and other appropriate Federal agencies shall, to the extent practicable and consistent with their obligations to
protect classified and critical electric infrastructure information, share timely actionable
information regarding grid security with appropriate key personnel of owners, operators, and
users of the critical electric infrastructure.
(f) Clarifications of liability
(1) Compliance with or violation of this chapter
Except as provided in paragraph (4), to the
extent any action or omission taken by an entity that is necessary to comply with an order
for emergency measures issued under subsection (b)(1), including any action or omission taken to voluntarily comply with such
order, results in noncompliance with, or
causes such entity not to comply with any
rule, order, regulation, or provision of this
chapter, including any reliability standard approved by the Commission pursuant to section
824o of this title, such action or omission shall
not be considered a violation of such rule,
order, regulation, or provision.
(2) Relation to section 824a(c) of this title
Except as provided in paragraph (4), an action or omission taken by an owner, operator,
or user of critical electric infrastructure or of
defense critical electric infrastructure to comply with an order for emergency measures issued under subsection (b)(1) shall be treated as
an action or omission taken to comply with an
order issued under section 824a(c) of this title
for purposes of such section.
(3) Sharing or receipt of information
No cause of action shall lie or be maintained
in any Federal or State court for the sharing
or receipt of information under, and that is
conducted in accordance with, subsection (d).
(4) Rule of construction
Nothing in this subsection shall be construed to require dismissal of a cause of action
against an entity that, in the course of complying with an order for emergency measures
issued under subsection (b)(1) by taking an action or omission for which they would be liable but for paragraph (1) or (2), takes such action or omission in a grossly negligent manner.
(June 10, 1920, ch. 285, pt. II, § 215A, as added Pub.
L. 114–94, div. F, § 61003(a), Dec. 4, 2015, 129 Stat.
1773.)

Page 1300

§ 824p. Siting of interstate electric transmission
facilities
(a) Designation of national interest electric
transmission corridors
(1) Not later than 1 year after August 8, 2005,
and every 3 years thereafter, the Secretary of
Energy (referred to in this section as the ‘‘Secretary’’), in consultation with affected States,
shall conduct a study of electric transmission
congestion.
(2) After considering alternatives and recommendations from interested parties (including
an opportunity for comment from affected
States), the Secretary shall issue a report, based
on the study, which may designate any geographic area experiencing electric energy transmission capacity constraints or congestion that
adversely affects consumers as a national interest electric transmission corridor.
(3) The Secretary shall conduct the study and
issue the report in consultation with any appropriate regional entity referred to in section 824o
of this title.
(4) In determining whether to designate a national interest electric transmission corridor
under paragraph (2), the Secretary may consider
whether—
(A) the economic vitality and development
of the corridor, or the end markets served by
the corridor, may be constrained by lack of
adequate or reasonably priced electricity;
(B)(i) economic growth in the corridor, or
the end markets served by the corridor, may
be jeopardized by reliance on limited sources
of energy; and
(ii) a diversification of supply is warranted;
(C) the energy independence of the United
States would be served by the designation;
(D) the designation would be in the interest
of national energy policy; and
(E) the designation would enhance national
defense and homeland security.
(b) Construction permit
Except as provided in subsection (i), the Commission may, after notice and an opportunity
for hearing, issue one or more permits for the
construction or modification of electric transmission facilities in a national interest electric
transmission corridor designated by the Secretary under subsection (a) if the Commission
finds that—
(1)(A) a State in which the transmission facilities are to be constructed or modified does
not have authority to—
(i) approve the siting of the facilities; or
(ii) consider the interstate benefits expected to be achieved by the proposed construction or modification of transmission facilities in the State;
(B) the applicant for a permit is a transmitting utility under this chapter but does not
qualify to apply for a permit or siting approval for the proposed project in a State because the applicant does not serve end-use customers in the State; or
(C) a State commission or other entity that
has authority to approve the siting of the facilities has—
(i) withheld approval for more than 1 year
after the filing of an application seeking ap-

Page 1301

TITLE 16—CONSERVATION

proval pursuant to applicable law or 1 year
after the designation of the relevant national interest electric transmission corridor, whichever is later; or
(ii) conditioned its approval in such a manner that the proposed construction or modification will not significantly reduce transmission congestion in interstate commerce
or is not economically feasible;
(2) the facilities to be authorized by the permit will be used for the transmission of electric energy in interstate commerce;
(3) the proposed construction or modification is consistent with the public interest;
(4) the proposed construction or modification will significantly reduce transmission
congestion in interstate commerce and protects or benefits consumers;
(5) the proposed construction or modification is consistent with sound national energy
policy and will enhance energy independence;
and
(6) the proposed modification will maximize,
to the extent reasonable and economical, the
transmission capabilities of existing towers or
structures.
(c) Permit applications
(1) Permit applications under subsection (b)
shall be made in writing to the Commission.
(2) The Commission shall issue rules specifying—
(A) the form of the application;
(B) the information to be contained in the
application; and
(C) the manner of service of notice of the
permit application on interested persons.
(d) Comments
In any proceeding before the Commission
under subsection (b), the Commission shall afford each State in which a transmission facility
covered by the permit is or will be located, each
affected Federal agency and Indian tribe, private property owners, and other interested persons, a reasonable opportunity to present their
views and recommendations with respect to the
need for and impact of a facility covered by the
permit.
(e) Rights-of-way
(1) In the case of a permit under subsection (b)
for electric transmission facilities to be located
on property other than property owned by the
United States or a State, if the permit holder
cannot acquire by contract, or is unable to agree
with the owner of the property to the compensation to be paid for, the necessary right-of-way to
construct or modify the transmission facilities,
the permit holder may acquire the right-of-way
by the exercise of the right of eminent domain
in the district court of the United States for the
district in which the property concerned is located, or in the appropriate court of the State in
which the property is located.
(2) Any right-of-way acquired under paragraph
(1) shall be used exclusively for the construction
or modification of electric transmission facilities within a reasonable period of time after the
acquisition.
(3) The practice and procedure in any action or
proceeding under this subsection in the district

§ 824p

court of the United States shall conform as
nearly as practicable to the practice and procedure in a similar action or proceeding in the
courts of the State in which the property is located.
(4) Nothing in this subsection shall be construed to authorize the use of eminent domain
to acquire a right-of-way for any purpose other
than the construction, modification, operation,
or maintenance of electric transmission facilities and related facilities. The right-of-way cannot be used for any other purpose, and the rightof-way shall terminate upon the termination of
the use for which the right-of-way was acquired.
(f) Compensation
(1) Any right-of-way acquired pursuant to subsection (e) shall be considered a taking of private property for which just compensation is
due.
(2) Just compensation shall be an amount
equal to the fair market value (including applicable severance damages) of the property taken
on the date of the exercise of eminent domain
authority.
(g) State law
Nothing in this section precludes any person
from constructing or modifying any transmission facility in accordance with State law.
(h) Coordination of Federal authorizations for
transmission facilities
(1) In this subsection:
(A) The term ‘‘Federal authorization’’ means
any authorization required under Federal law
in order to site a transmission facility.
(B) The term ‘‘Federal authorization’’ includes such permits, special use authorizations, certifications, opinions, or other approvals as may be required under Federal law
in order to site a transmission facility.
(2) The Department of Energy shall act as the
lead agency for purposes of coordinating all applicable Federal authorizations and related environmental reviews of the facility.
(3) To the maximum extent practicable under
applicable Federal law, the Secretary shall coordinate the Federal authorization and review
process under this subsection with any Indian
tribes, multistate entities, and State agencies
that are responsible for conducting any separate
permitting and environmental reviews of the facility, to ensure timely and efficient review and
permit decisions.
(4)(A) As head of the lead agency, the Secretary, in consultation with agencies responsible for Federal authorizations and, as appropriate, with Indian tribes, multistate entities,
and State agencies that are willing to coordinate their own separate permitting and environmental reviews with the Federal authorization
and environmental reviews, shall establish
prompt and binding intermediate milestones and
ultimate deadlines for the review of, and Federal
authorization decisions relating to, the proposed
facility.
(B) The Secretary shall ensure that, once an
application has been submitted with such data
as the Secretary considers necessary, all permit
decisions and related environmental reviews
under all applicable Federal laws shall be completed—

§ 824p

TITLE 16—CONSERVATION

(i) within 1 year; or
(ii) if a requirement of another provision of
Federal law does not permit compliance with
clause (i), as soon thereafter as is practicable.
(C) The Secretary shall provide an expeditious
pre-application mechanism for prospective applicants to confer with the agencies involved to
have each such agency determine and communicate to the prospective applicant not later
than 60 days after the prospective applicant submits a request for such information concerning—
(i) the likelihood of approval for a potential
facility; and
(ii) key issues of concern to the agencies and
public.
(5)(A) As lead agency head, the Secretary, in
consultation with the affected agencies, shall
prepare a single environmental review document, which shall be used as the basis for all decisions on the proposed project under Federal
law.
(B) The Secretary and the heads of other agencies shall streamline the review and permitting
of transmission within corridors designated
under section 503 of the Federal Land Policy and
Management Act 1 (43 U.S.C. 1763) by fully taking into account prior analyses and decisions relating to the corridors.
(C) The document shall include consideration
by the relevant agencies of any applicable criteria or other matters as required under applicable law.
(6)(A) If any agency has denied a Federal authorization required for a transmission facility,
or has failed to act by the deadline established
by the Secretary pursuant to this section for deciding whether to issue the authorization, the
applicant or any State in which the facility
would be located may file an appeal with the
President, who shall, in consultation with the
affected agency, review the denial or failure to
take action on the pending application.
(B) Based on the overall record and in consultation with the affected agency, the President may—
(i) issue the necessary authorization with
any appropriate conditions; or
(ii) deny the application.
(C) The President shall issue a decision not
later than 90 days after the date of the filing of
the appeal.
(D) In making a decision under this paragraph,
the President shall comply with applicable requirements of Federal law, including any requirements of—
(i) the National Forest Management Act of
1976 (16 U.S.C. 472a et seq.);
(ii) the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.);
(iii) the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.);
(iv) the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.); and
(v) the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.).
(7)(A) Not later than 18 months after August 8,
2005, the Secretary shall issue any regulations
necessary to implement this subsection.
1 So

in original. Probably should be followed by ‘‘of 1976’’.

Page 1302

(B)(i) Not later than 1 year after August 8,
2005, the Secretary and the heads of all Federal
agencies with authority to issue Federal authorizations shall enter into a memorandum of understanding to ensure the timely and coordinated review and permitting of electricity transmission facilities.
(ii) Interested Indian tribes, multistate entities, and State agencies may enter the memorandum of understanding.
(C) The head of each Federal agency with authority to issue a Federal authorization shall
designate a senior official responsible for, and
dedicate sufficient other staff and resources to
ensure, full implementation of the regulations
and memorandum required under this paragraph.
(8)(A) Each Federal land use authorization for
an electricity transmission facility shall be issued—
(i) for a duration, as determined by the Secretary, commensurate with the anticipated
use of the facility; and
(ii) with appropriate authority to manage
the right-of-way for reliability and environmental protection.
(B) On the expiration of the authorization (including an authorization issued before August 8,
2005), the authorization shall be reviewed for renewal taking fully into account reliance on such
electricity infrastructure, recognizing the importance of the authorization for public health,
safety, and economic welfare and as a legitimate
use of Federal land.
(9) In exercising the responsibilities under this
section, the Secretary shall consult regularly
with—
(A) the Federal Energy Regulatory Commission;
(B) electric reliability organizations (including related regional entities) approved by the
Commission; and
(C) Transmission Organizations approved by
the Commission.
(i) Interstate compacts
(1) The consent of Congress is given for three
or more contiguous States to enter into an
interstate compact, subject to approval by Congress, establishing regional transmission siting
agencies to—
(A) facilitate siting of future electric energy
transmission facilities within those States;
and
(B) carry out the electric energy transmission siting responsibilities of those States.
(2) The Secretary may provide technical assistance to regional transmission siting agencies
established under this subsection.
(3) The regional transmission siting agencies
shall have the authority to review, certify, and
permit siting of transmission facilities, including facilities in national interest electric transmission corridors (other than facilities on property owned by the United States).
(4) The Commission shall have no authority to
issue a permit for the construction or modification of an electric transmission facility within a
State that is a party to a compact, unless the
members of the compact are in disagreement

Page 1303

TITLE 16—CONSERVATION

and the Secretary makes, after notice and an
opportunity for a hearing, the finding described
in subsection (b)(1)(C).
(j) Relationship to other laws
(1) Except as specifically provided, nothing in
this section affects any requirement of an environmental law of the United States, including
the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.).
(2) Subsection (h)(6) shall not apply to any
unit of the National Park System, the National
Wildlife Refuge System, the National Wild and
Scenic Rivers System, the National Trails System, the National Wilderness Preservation System, or a National Monument.
(k) ERCOT
This section shall not apply within the area
referred to in section 824k(k)(2)(A) of this title.
(June 10, 1920, ch. 285, pt. II, § 216, as added Pub.
L. 109–58, title XII, § 1221(a), Aug. 8, 2005, 119
Stat. 946.)
REFERENCES IN TEXT
The National Forest Management Act of 1976, referred to in subsec. (h)(6)(D)(i), is Pub. L. 94–588, Oct. 22,
1976, 90 Stat. 2949, as amended, which enacted sections
472a, 521b, 1600, and 1611 to 1614 of this title, amended
sections 500, 515, 516, 518, 576b, and 1601 to 1610 of this
title, repealed sections 476, 513, and 514 of this title, and
enacted provisions set out as notes under sections 476,
513, 528, 594–2, and 1600 of this title. For complete classification of this Act to the Code, see Short Title of 1976
Amendment note set out under section 1600 of this title
and Tables.
The Endangered Species Act of 1973, referred to in
subsec. (h)(6)(D)(ii), is Pub. L. 93–205, Dec. 28, 1973, 87
Stat. 884, as amended, which is classified principally to
chapter 35 (§ 1531 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 1531 of this title and Tables.
The Federal Water Pollution Control Act, referred to
in subsec. (h)(6)(D)(iii), is act June 30, 1948, ch. 758, as
amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86
Stat. 816, which is classified generally to chapter 26
(§ 1251 et seq.) of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the
Code, see Short Title note set out under section 1251 of
Title 33 and Tables.
The National Environmental Policy Act of 1969, referred to in subsecs. (h)(6)(D)(iv) and (j), is Pub. L.
91–190, Jan. 1, 1970, 83 Stat. 852, as amended, which is
classified generally to chapter 55 (§ 4321 et seq.) of Title
42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note
set out under section 4321 of Title 42 and Tables.
The Federal Land Policy and Management Act of
1976, referred to in subsec. (h)(6)(D)(v), is Pub. L. 94–579,
Oct. 21, 1976, 90 Stat. 2743, as amended, which is classified principally to chapter 35 (§ 1701 et seq.) of Title 43,
Public Lands. For complete classification of this Act to
the Code, see Short Title note set out under section
1701 of Title 43 and Tables.

§ 824q. Native load service obligation
(a) Definitions
In this section:
(1) The term ‘‘distribution utility’’ means an
electric utility that has a service obligation to
end-users or to a State utility or electric cooperative that, directly or indirectly, through
one or more additional State utilities or electric cooperatives, provides electric service to
end-users.

§ 824q

(2) The term ‘‘load-serving entity’’ means a
distribution utility or an electric utility that
has a service obligation.
(3) The term ‘‘service obligation’’ means a
requirement applicable to, or the exercise of
authority granted to, an electric utility under
Federal, State, or local law or under long-term
contracts to provide electric service to endusers or to a distribution utility.
(4) The term ‘‘State utility’’ means a State
or any political subdivision of a State, or any
agency, authority, or instrumentality of any
one or more of the foregoing, or a corporation
that is wholly owned, directly or indirectly, by
any one or more of the foregoing, competent
to carry on the business of developing, transmitting, utilizing, or distributing power.
(b) Meeting service obligations
(1) Paragraph (2) applies to any load-serving
entity that, as of August 8, 2005—
(A) owns generation facilities, markets the
output of Federal generation facilities, or
holds rights under one or more wholesale contracts to purchase electric energy, for the purpose of meeting a service obligation; and
(B) by reason of ownership of transmission
facilities, or one or more contracts or service
agreements for firm transmission service,
holds firm transmission rights for delivery of
the output of the generation facilities or the
purchased energy to meet the service obligation.
(2) Any load-serving entity described in paragraph (1) is entitled to use the firm transmission
rights, or, equivalent tradable or financial
transmission rights, in order to deliver the output or purchased energy, or the output of other
generating facilities or purchased energy to the
extent deliverable using the rights, to the extent required to meet the service obligation of
the load-serving entity.
(3)(A) To the extent that all or a portion of the
service obligation covered by the firm transmission rights or equivalent tradable or financial transmission rights is transferred to another load-serving entity, the successor loadserving entity shall be entitled to use the firm
transmission rights or equivalent tradable or financial transmission rights associated with the
transferred service obligation.
(B) Subsequent transfers to another load-serving entity, or back to the original load-serving
entity, shall be entitled to the same rights.
(4) The Commission shall exercise the authority of the Commission under this chapter in a
manner that facilitates the planning and expansion of transmission facilities to meet the reasonable needs of load-serving entities to satisfy
the service obligations of the load-serving entities, and enables load-serving entities to secure
firm transmission rights (or equivalent tradable
or financial rights) on a long-term basis for
long-term power supply arrangements made, or
planned, to meet such needs.
(c) Allocation of transmission rights
Nothing in subsections (b)(1), (b)(2), and (b)(3)
of this section shall affect any existing or future
methodology employed by a Transmission Organization for allocating or auctioning trans-

§ 824r

TITLE 16—CONSERVATION

mission rights if such Transmission Organization was authorized by the Commission to allocate or auction financial transmission rights on
its system as of January 1, 2005, and the Commission determines that any future allocation
or auction is just, reasonable and not unduly
discriminatory or preferential, provided, however, that if such a Transmission Organization
never allocated financial transmission rights on
its system that pertained to a period before January 1, 2005, with respect to any application by
such Transmission Organization that would
change its methodology the Commission shall
exercise its authority in a manner consistent
with the 1 chapter and that takes into account
the policies expressed in subsections (b)(1),
(b)(2), and (b)(3) as applied to firm transmission
rights held by a load-serving entity as of January 1, 2005, to the extent the associated generation ownership or power purchase arrangements
remain in effect.
(d) Certain transmission rights
The Commission may exercise authority under
this chapter to make transmission rights not
used to meet an obligation covered by subsection (b) available to other entities in a manner determined by the Commission to be just,
reasonable, and not unduly discriminatory or
preferential.
(e) Obligation to build
Nothing in this chapter relieves a load-serving
entity from any obligation under State or local
law to build transmission or distribution facilities adequate to meet the service obligations of
the load-serving entity.
(f) Contracts
Nothing in this section shall provide a basis
for abrogating any contract or service agreement for firm transmission service or rights in
effect as of August 8, 2005. If an ISO in the Western Interconnection had allocated financial
transmission rights prior to August 8, 2005, but
had not done so with respect to one or more
load-serving entities’ firm transmission rights
held under contracts to which the preceding sentence applies (or held by reason of ownership or
future ownership of transmission facilities),
such load-serving entities may not be required,
without their consent, to convert such firm
transmission rights to tradable or financial
rights, except where the load-serving entity has
voluntarily joined the ISO as a participating
transmission owner (or its successor) in accordance with the ISO tariff.
(g) Water pumping facilities
The Commission shall ensure that any entity
described in section 824(f) of this title that owns
transmission facilities used predominately to
support its own water pumping facilities shall
have, with respect to the facilities, protections
for transmission service comparable to those
provided to load-serving entities pursuant to
this section.
(h) ERCOT
This section shall not apply within the area
referred to in section 824k(k)(2)(A) of this title.
1 So

in original. Probably should be ‘‘this’’.

Page 1304

(i) Jurisdiction
This section does not authorize the Commission to take any action not otherwise within the
jurisdiction of the Commission.
(j) TVA area
(1) Subject to paragraphs (2) and (3), for purposes of subsection (b)(1)(B), a load-serving entity that is located within the service area of
the Tennessee Valley Authority and that has a
firm wholesale power supply contract with the
Tennessee Valley Authority shall be considered
to hold firm transmission rights for the transmission of the power provided.
(2) Nothing in this subsection affects the requirements of section 824k(j) of this title.
(3) The Commission shall not issue an order on
the basis of this subsection that is contrary to
the purposes of section 824k(j) of this title.
(k) Effect of exercising rights
An entity that to the extent required to meet
its service obligations exercises rights described
in subsection (b) shall not be considered by such
action as engaging in undue discrimination or
preference under this chapter.
(June 10, 1920, ch. 285, pt. II, § 217, as added Pub.
L. 109–58, title XII, § 1233(a), Aug. 8, 2005, 119
Stat. 957.)
FERC RULEMAKING ON LONG-TERM TRANSMISSION
RIGHTS IN ORGANIZED MARKETS
Pub. L. 109–58, title XII, § 1233(b), Aug. 8, 2005, 119
Stat. 960, provided that: ‘‘Within 1 year after the date
of enactment of this section [Aug. 8, 2005] and after notice and an opportunity for comment, the [Federal Energy Regulatory] Commission shall by rule or order,
implement section 217(b)(4) of the Federal Power Act
[16 U.S.C. 824q(b)(4)] in Transmission Organizations, as
defined by that Act [16 U.S.C. 791a et seq.] with organized electricity markets.’’

§ 824r. Protection of transmission contracts in
the Pacific Northwest
(a) Definition of electric utility or person
In this section, the term ‘‘electric utility or
person’’ means an electric utility or person
that—
(1) as of August 8, 2005, holds firm transmission rights pursuant to contract or by reason of ownership of transmission facilities;
and
(2) is located—
(A) in the Pacific Northwest, as that region is defined in section 839a of this title; or
(B) in that portion of a State included in
the geographic area proposed for a regional
transmission organization in Commission
Docket Number RT01–35 on the date on
which that docket was opened.
(b) Protection of transmission contracts
Nothing in this chapter confers on the Commission the authority to require an electric utility or person to convert to tradable or financial
rights—
(1) firm transmission rights described in subsection (a); or
(2) firm transmission rights obtained by exercising contract or tariff rights associated
with the firm transmission rights described in
subsection (a).

Page 1305

TITLE 16—CONSERVATION

(June 10, 1920, ch. 285, pt. II, § 218, as added Pub.
L. 109–58, title XII, § 1235, Aug. 8, 2005, 119 Stat.
960.)
§ 824s. Transmission infrastructure investment
(a) Rulemaking requirement
Not later than 1 year after August 8, 2005, the
Commission shall establish, by rule, incentivebased (including performance-based) rate treatments for the transmission of electric energy in
interstate commerce by public utilities for the
purpose of benefitting consumers by ensuring reliability and reducing the cost of delivered
power by reducing transmission congestion.
(b) Contents
The rule shall—
(1) promote reliable and economically efficient transmission and generation of electricity by promoting capital investment in the
enlargement, improvement, maintenance, and
operation of all facilities for the transmission
of electric energy in interstate commerce, regardless of the ownership of the facilities;
(2) provide a return on equity that attracts
new investment in transmission facilities (including related transmission technologies);
(3) encourage deployment of transmission
technologies and other measures to increase
the capacity and efficiency of existing transmission facilities and improve the operation of
the facilities; and
(4) allow recovery of—
(A) all prudently incurred costs necessary
to comply with mandatory reliability standards issued pursuant to section 824o of this
title; and
(B) all prudently incurred costs related to
transmission infrastructure development
pursuant to section 824p of this title.
(c) Incentives
In the rule issued under this section, the Commission shall, to the extent within its jurisdiction, provide for incentives to each transmitting
utility or electric utility that joins a Transmission Organization. The Commission shall ensure that any costs recoverable pursuant to this
subsection may be recovered by such utility
through the transmission rates charged by such
utility or through the transmission rates
charged by the Transmission Organization that
provides transmission service to such utility.
(d) Just and reasonable rates
All rates approved under the rules adopted
pursuant to this section, including any revisions
to the rules, are subject to the requirements of
sections 824d and 824e of this title that all rates,
charges, terms, and conditions be just and reasonable and not unduly discriminatory or preferential.
(June 10, 1920, ch. 285, pt. II, § 219, as added Pub.
L. 109–58, title XII, § 1241, Aug. 8, 2005, 119 Stat.
961.)
§ 824t. Electricity market transparency rules
(a) In general
(1) The Commission is directed to facilitate
price transparency in markets for the sale and

§ 824t

transmission of electric energy in interstate
commerce, having due regard for the public interest, the integrity of those markets, fair competition, and the protection of consumers.
(2) The Commission may prescribe such rules
as the Commission determines necessary and appropriate to carry out the purposes of this section. The rules shall provide for the dissemination, on a timely basis, of information about the
availability and prices of wholesale electric energy and transmission service to the Commission, State commissions, buyers and sellers of
wholesale electric energy, users of transmission
services, and the public.
(3) The Commission may—
(A) obtain the information described in paragraph (2) from any market participant; and
(B) rely on entities other than the Commission to receive and make public the information, subject to the disclosure rules in subsection (b).
(4) In carrying out this section, the Commission shall consider the degree of price transparency provided by existing price publishers
and providers of trade processing services, and
shall rely on such publishers and services to the
maximum extent possible. The Commission may
establish an electronic information system if it
determines that existing price publications are
not adequately providing price discovery or
market transparency. Nothing in this section,
however, shall affect any electronic information
filing requirements in effect under this chapter
as of August 8, 2005.
(b) Exemption of information from disclosure
(1) Rules described in subsection (a)(2), if
adopted, shall exempt from disclosure information the Commission determines would, if disclosed, be detrimental to the operation of an effective market or jeopardize system security.
(2) In determining the information to be made
available under this section and time to make
the information available, the Commission shall
seek to ensure that consumers and competitive
markets are protected from the adverse effects
of potential collusion or other anticompetitive
behaviors that can be facilitated by untimely
public disclosure of transaction-specific information.
(c) Information sharing
(1) Within 180 days of August 8, 2005, the Commission shall conclude a memorandum of understanding with the Commodity Futures Trading
Commission relating to information sharing,
which shall include, among other things, provisions ensuring that information requests to
markets within the respective jurisdiction of
each agency are properly coordinated to minimize duplicative information requests, and provisions regarding the treatment of proprietary
trading information.
(2) Nothing in this section may be construed
to limit or affect the exclusive jurisdiction of
the Commodity Futures Trading Commission
under the Commodity Exchange Act (7 U.S.C. 1
et seq.).
(d) Exemption from reporting requirements
The Commission shall not require entities who
have a de minimis market presence to comply
with the reporting requirements of this section.

§ 824u

TITLE 16—CONSERVATION

(e) Penalties for violations occurring before notice
(1) Except as provided in paragraph (2), no person shall be subject to any civil penalty under
this section with respect to any violation occurring more than 3 years before the date on which
the person is provided notice of the proposed
penalty under section 825o–1 of this title.
(2) Paragraph (1) shall not apply in any case in
which the Commission finds that a seller that
has entered into a contract for the sale of electric energy at wholesale or transmission service
subject to the jurisdiction of the Commission
has engaged in fraudulent market manipulation
activities materially affecting the contract in
violation of section 824v of this title.
(f) ERCOT utilities
This section shall not apply to a transaction
for the purchase or sale of wholesale electric energy or transmission services within the area
described in section 824k(k)(2)(A) of this title.
(June 10, 1920, ch. 285, pt. II, § 220, as added Pub.
L. 109–58, title XII, § 1281, Aug. 8, 2005, 119 Stat.
978.)
REFERENCES IN TEXT
The Commodity Exchange Act, referred to in subsec.
(c)(2), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, as
amended, which is classified generally to chapter 1 (§ 1
et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 1 of Title 7 and
Tables.

§ 824u. Prohibition on filing false information
No entity (including an entity described in
section 824(f) of this title) shall willfully and
knowingly report any information relating to
the price of electricity sold at wholesale or the
availability of transmission capacity, which information the person or any other entity knew
to be false at the time of the reporting, to a Federal agency with intent to fraudulently affect
the data being compiled by the Federal agency.
(June 10, 1920, ch. 285, pt. II, § 221, as added Pub.
L. 109–58, title XII, § 1282, Aug. 8, 2005, 119 Stat.
979.)
§ 824v. Prohibition of energy market manipulation
(a) In general
It shall be unlawful for any entity (including
an entity described in section 824(f) of this title),
directly or indirectly, to use or employ, in connection with the purchase or sale of electric energy or the purchase or sale of transmission
services subject to the jurisdiction of the Commission, any manipulative or deceptive device
or contrivance (as those terms are used in section 78j(b) of title 15), in contravention of such
rules and regulations as the Commission may
prescribe as necessary or appropriate in the public interest or for the protection of electric ratepayers.
(b) No private right of action
Nothing in this section shall be construed to
create a private right of action.
(June 10, 1920, ch. 285, pt. II, § 222, as added Pub.
L. 109–58, title XII, § 1283, Aug. 8, 2005, 119 Stat.
979.)

Page 1306

§ 824w. Joint boards on economic dispatch
(a) In general
The Commission shall convene joint boards on
a regional basis pursuant to section 824h of this
title to study the issue of security constrained
economic dispatch for the various market regions. The Commission shall designate the appropriate regions to be covered by each such
joint board for purposes of this section.
(b) Membership
The Commission shall request each State to
nominate a representative for the appropriate
regional joint board, and shall designate a member of the Commission to chair and participate
as a member of each such board.
(c) Powers
The sole authority of each joint board convened under this section shall be to consider issues relevant to what constitutes ‘‘security constrained economic dispatch’’ and how such a
mode of operating an electric energy system affects or enhances the reliability and affordability of service to customers in the region concerned and to make recommendations to the
Commission regarding such issues.
(d) Report to the Congress
Within 1 year after August 8, 2005, the Commission shall issue a report and submit such report to the Congress regarding the recommendations of the joint boards under this section and
the Commission may consolidate the recommendations of more than one such regional joint
board, including any consensus recommendations for statutory or regulatory reform.
(June 10, 1920, ch. 285, pt. II, § 223, as added Pub.
L. 109–58, title XII, § 1298, Aug. 8, 2005, 119 Stat.
986.)
SUBCHAPTER III—LICENSEES AND PUBLIC
UTILITIES; PROCEDURAL AND ADMINISTRATIVE PROVISIONS
§ 825. Accounts and records
(a) Duty to keep
Every licensee and public utility shall make,
keep, and preserve for such periods, such accounts, records of cost-accounting procedures,
correspondence, memoranda, papers, books, and
other records as the Commission may by rules
and regulations prescribe as necessary or appropriate for purposes of the administration of this
chapter, including accounts, records, and memoranda of the generation, transmission, distribution, delivery, or sale of electric energy, the furnishing of services or facilities in connection
therewith, and receipts and expenditures with
respect to any of the foregoing: Provided, however, That nothing in this chapter shall relieve
any public utility from keeping any accounts,
memoranda, or records which such public utility
may be required to keep by or under authority
of the laws of any State. The Commission may
prescribe a system of accounts to be kept by licensees and public utilities and may classify
such licensees and public utilities and prescribe
a system of accounts for each class. The Commission, after notice and opportunity for hear-

Page 1307

TITLE 16—CONSERVATION

ing, may determine by order the accounts in
which particular outlays and receipts shall be
entered, charged, or credited. The burden of
proof to justify every accounting entry questioned by the Commission shall be on the person
making, authorizing, or requiring such entry,
and the Commission may suspend a charge or
credit pending submission of satisfactory proof
in support thereof.
(b) Access to and examination by the Commission
The Commission shall at all times have access
to and the right to inspect and examine all accounts, records, and memoranda of licensees and
public utilities, and it shall be the duty of such
licensees and public utilities to furnish to the
Commission, within such reasonable time as the
Commission may order, any information with
respect thereto which the Commission may by
order require, including copies of maps, contracts, reports of engineers, and other data,
records, and papers, and to grant to all agents of
the Commission free access to its property and
its accounts, records, and memoranda when requested so to do. No member, officer, or employee of the Commission shall divulge any fact
or information which may come to his knowledge during the course of examination of books
or other accounts, as hereinbefore provided, except insofar as he may be directed by the Commission or by a court.
(c) Controlling individual
The books, accounts, memoranda, and records
of any person who controls, directly or indirectly, a licensee or public utility subject to the
jurisdiction of the Commission, and of any other
company controlled by such person, insofar as
they relate to transactions with or the business
of such licensee or public utility, shall be subject to examination on the order of the Commission.
(June 10, 1920, ch. 285, pt. III, § 301, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 854.)
§ 825a. Rates of depreciation; notice to State authorities before fixing
(a) The Commission may, after hearing, require licensees and public utilities to carry a
proper and adequate depreciation account in accordance with such rules, regulations, and forms
of account as the Commission may prescribe.
The Commission may, from time to time, ascertain and determine, and by order fix, the proper
and adequate rates of depreciation of the several
classes of property of each licensee and public
utility. Each licensee and public utility shall
conform its depreciation accounts to the rates
so ascertained, determined, and fixed. The licensees and public utilities subject to the jurisdiction of the Commission shall not charge to
operating expenses any depreciation charges on
classes of property other than those prescribed
by the Commission, or charge with respect to
any class of property a percentage of depreciation other than that prescribed therefor by the
Commission. No such licensee or public utility
shall in any case include in any form under its
operating or other expenses any depreciation or
other charge or expenditure included elsewhere

§ 825c

as a depreciation charge or otherwise under its
operating or other expenses. Nothing in this section shall limit the power of a State commission
to determine in the exercise of its jurisdiction,
with respect to any public utility, the percentage rate of depreciation to be allowed, as to any
class of property of such public utility, or the
composite depreciation rate, for the purpose of
determining rates or charges.
(b) The Commission, before prescribing any
rules or requirements as to accounts, records, or
memoranda, or as to depreciation rates, shall
notify each State commission having jurisdiction with respect to any public utility involved,
and shall give reasonable opportunity to each
such commission to present its views, and shall
receive and consider such views and recommendations.
(June 10, 1920, ch. 285, pt. III, § 302, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 855.)
§ 825b. Requirements applicable to agencies of
United States
All agencies of the United States engaged in
the generation and sale of electric energy for ultimate distribution to the public shall be subject, as to all facilities used for such generation
and sale, and as to the electric energy sold by
such agency, to the provisions of sections 825
and 825a of this title, so far as may be practicable, and shall comply with the provisions of
such sections and with the rules and regulations
of the Commission thereunder to the same extent as may be required in the case of a public
utility.
(June 10, 1920, ch. 285, pt. III, § 303, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 855.)
§ 825c. Periodic and special reports; obstructing
filing reports or keeping accounts, etc.
(a) Every licensee and every public utility
shall file with the Commission such annual and
other periodic or special reports as the Commission may by rules and regulations or order prescribe as necessary or appropriate to assist the
Commission in the proper administration of this
chapter. The Commission may prescribe the
manner and form in which such reports shall be
made, and require from such persons specific answers to all questions upon which the Commission may need information. The Commission
may require that such reports shall include,
among other things, full information as to assets and liabilities, capitalization, net investment, and reduction thereof, gross receipts, interest due and paid, depreciation, and other reserves, cost of project and other facilities, cost
of maintenance and operation of the project and
other facilities, cost of renewals and replacement of the project works and other facilities,
depreciation, generation, transmission, distribution, delivery, use, and sale of electric energy.
The Commission may require any such person to
make adequate provision for currently determining such costs and other facts. Such reports
shall be made under oath unless the Commission
otherwise specifies.
(b) It shall be unlawful for any person willfully
to hinder, delay, or obstruct the making, filing,

§ 825d

TITLE 16—CONSERVATION

or keeping of any information, document, report, memorandum, record, or account required
to be made, filed, or kept under this chapter or
any rule, regulation, or order thereunder.
(June 10, 1920, ch. 285, pt. III, § 304, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 855.)
§ 825d. Officials dealing in securities
(a) Benefits; making or declaring dividends out
of capital account
It shall be unlawful for any officer or director
of any public utility to receive for his own benefit, directly or indirectly, any money or thing of
value in respect of the negotiation, hypothecation, or sale by such public utility of any
security issued or to be issued by such public
utility, or to share in any of the proceeds thereof, or to participate in the making or paying of
any dividends of such public utility from any
funds properly included in capital account.
(b) Interlocking directorates
(1) In general
After 6 months from August 26, 1935, it shall
be unlawful for any person to hold the position
of officer or director of more than one public
utility or to hold the position of officer or director of a public utility and the position of
officer or director of any bank, trust company,
banking association, or firm that is authorized
by law to underwrite or participate in the
marketing of securities of a public utility, or
officer or director of any company supplying
electrical equipment to such public utility,
unless the holding of such positions shall have
been authorized by order of the Commission,
upon due showing in form and manner prescribed by the Commission, that neither public nor private interests will be adversely affected thereby. The Commission shall not
grant any such authorization in respect of
such positions held on August 26, 1935, unless
application for such authorization is filed with
the Commission within sixty days after that
date.
(2) Applicability
(A) In general
In the circumstances described in subparagraph (B), paragraph (1) shall not apply to a
person that holds or proposes to hold the positions of—
(i) officer or director of a public utility;
and
(ii) officer or director of a bank, trust
company, banking association, or firm authorized by law to underwrite or participate in the marketing of securities of a
public utility.
(B) Circumstances
The circumstances described in this subparagraph are that—
(i) a person described in subparagraph
(A) does not participate in any deliberations or decisions of the public utility regarding the selection of a bank, trust company, banking association, or firm to underwrite or participate in the marketing of
securities of the public utility, if the per-

Page 1308

son serves as an officer or director of a
bank, trust company, banking association,
or firm that is under consideration in the
deliberation process;
(ii) the bank, trust company, banking association, or firm of which the person is an
officer or director does not engage in the
underwriting of, or participate in the marketing of, securities of the public utility of
which the person holds the position of officer or director;
(iii) the public utility for which the person serves or proposes to serve as an officer or director selects underwriters by
competitive procedures; or
(iv) the issuance of securities of the public utility for which the person serves or
proposes to serve as an officer or director
has been approved by all Federal and State
regulatory agencies having jurisdiction
over the issuance.
(c) Statement of prior positions; definitions
(1) On or before April 30 of each year, any person, who, during the calendar year preceding the
filing date under this subsection, was an officer
or director of a public utility and who held, during such calendar year, the position of officer,
director, partner, appointee, or representative of
any other entity listed in paragraph (2) shall file
with the Commission, in such form and manner
as the Commission shall by rule prescribe, a
written statement concerning such positions
held by such person. Such statement shall be
available to the public.
(2) The entities listed for purposes of paragraph (1) are as follows—
(A) any investment bank, bank holding company, foreign bank or subsidiary thereof doing
business in the United States, insurance company, or any other organization primarily engaged in the business of providing financial
services or credit, a mutual savings bank, or a
savings and loan association;
(B) any company, firm, or organization
which is authorized by law to underwrite or
participate in the marketing of securities of a
public utility;
(C) any company, firm, or organization
which produces or supplies electrical equipment or coal, natural gas, oil, nuclear fuel, or
other fuel, for the use of any public utility;
(D) any company, firm, or organization
which during any one of the 3 calendar years
immediately preceding the filing date was one
of the 20 purchasers of electric energy which
purchased (for purposes other than for resale)
one of the 20 largest annual amounts of electric energy sold by such public utility (or by
any public utility which is part of the same
holding company system) during any one of
such three calendar years;
(E) any entity referred to in subsection (b);
and
(F) any company, firm, or organization
which is controlled by any company, firm, or
organization referred to in this paragraph.
On or before January 31 of each calendar year,
each public utility shall publish a list, pursuant
to rules prescribed by the Commission, of the
purchasers to which subparagraph (D) applies,

Page 1309

for purposes of any filing under paragraph (1) of
such calendar year.
(3) For purposes of this subsection—
(A) The term ‘‘public utility’’ includes any
company which is a part of a holding company
system which includes a registered holding
company, unless no company in such system is
an electric utility.
(B) The terms ‘‘holding company’’, ‘‘registered holding company’’, and ‘‘holding company system’’ have the same meaning as when
used in the Public Utility Holding Company
Act of 1935.1
(June 10, 1920, ch. 285, pt. III, § 305, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 856; amended Pub. L. 95–617, title II, § 211(a), Nov. 9, 1978, 92
Stat. 3147; Pub. L. 106–102, title VII, § 737, Nov.
12, 1999, 113 Stat. 1479.)
REFERENCES IN TEXT
The Public Utility Holding Company Act of 1935, referred to in subsec. (c)(3)(B), is title I of act Aug. 26,
1935, ch. 687, 49 Stat. 803, as amended, which was classified generally to chapter 2C (§ 79 et seq.) of Title 15,
Commerce and Trade, prior to repeal by Pub. L. 109–58,
title XII, § 1263, Aug. 8, 2005, 119 Stat. 974. For complete
classification of this Act to the Code, see Tables.
AMENDMENTS
1999—Subsec. (b). Pub. L. 106–102 inserted subsec.
heading, designated existing provisions as par. (1), inserted heading, and substituted ‘‘After 6’’ for ‘‘After
six’’, and added par. (2).
1978—Subsec. (c). Pub. L. 95–617 added subsec. (c).
EFFECTIVE DATE OF 1978 AMENDMENT
Pub. L. 95–617, title II, § 211(b), Nov. 9, 1978, 92 Stat.
3147, provided that: ‘‘No person shall be required to file
a statement under section 305(c)(1) of the Federal
Power Act [subsec. (c)(1) of this section] before April 30
of the second calendar year which begins after the date
of the enactment of this Act [Nov. 9, 1978] and no public
utility shall be required to publish a list under section
305(c)(2) of such Act [subsec. (c)(2) of this section] before January 31 of such second calendar year.’’

§ 825e. Complaints
Any person, electric utility, State, municipality, or State commission complaining of anything done or omitted to be done by any licensee, transmitting utility, or public utility in
contravention of the provisions of this chapter
may apply to the Commission by petition which
shall briefly state the facts, whereupon a statement of the complaint thus made shall be forwarded by the Commission to such licensee,
transmitting utility, or public utility, who shall
be called upon to satisfy the complaint or to answer the same in writing within a reasonable
time to be specified by the Commission. If such
licensee, transmitting utility, or public utility
shall not satisfy the complaint within the time
specified or there shall appear to be any reasonable ground for investigating such complaint, it
shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall find proper.
(June 10, 1920, ch. 285, pt. III, § 306, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 856; amended Pub. L. 109–58, title XII, § 1284(a), Aug. 8, 2005,
119 Stat. 980.)
1 See

§ 825f

TITLE 16—CONSERVATION

References in Text note below.

AMENDMENTS
2005—Pub. L. 109–58 inserted ‘‘electric utility,’’ after
‘‘Any person,’’ and ‘‘, transmitting utility,’’ after ‘‘licensee’’ wherever appearing.

§ 825f. Investigations by Commission
(a) Scope
The Commission may investigate any facts,
conditions, practices, or matters which it may
find necessary or proper in order to determine
whether any person, electric utility, transmitting utility, or other entity has violated or is
about to violate any provision of this chapter or
any rule, regulation, or order thereunder, or to
aid in the enforcement of the provisions of this
chapter or in prescribing rules or regulations
thereunder, or in obtaining information to serve
as a basis for recommending further legislation
concerning the matters to which this chapter relates, or in obtaining information about the sale
of electric energy at wholesale in interstate
commerce and the transmission of electric energy in interstate commerce. The Commission
may permit any person, electric utility, transmitting utility, or other entity to file with it a
statement in writing under oath or otherwise, as
it shall determine, as to any or all facts and circumstances concerning a matter which may be
the subject of investigation. The Commission, in
its discretion, may publish or make available to
State commissions information concerning any
such subject.
(b) Attendance of witnesses and production of
documents
For the purpose of any investigation or any
other proceeding under this chapter, any member of the Commission, or any officer designated
by it, is empowered to administer oaths and affirmations, subpena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence,
memoranda, contracts, agreements, or other
records which the Commission finds relevant or
material to the inquiry. Such attendance of witnesses and the production of any such records
may be required from any place in the United
States at any designated place of hearing. Witnesses summoned by the Commission to appear
before it shall be paid the same fees and mileage
that are paid witnesses in the courts of the
United States.
(c) Resort to courts of United States for failure
to obey subpena; punishment
In case of contumacy by, or refusal to obey a
subpena issued to, any person, the Commission
may invoke the aid of any court of the United
States within the jurisdiction of which such investigation or proceeding is carried on, or where
such person resides or carries on business, in requiring the attendance and testimony of witnesses and the production of books, papers, correspondence, memoranda, contracts, agreements, and other records. Such court may issue
an order requiring such person to appear before
the Commission or member or officer designated
by the Commission, there to produce records, if
so ordered, or to give testimony touching the
matter under investigation or in question; and
any failure to obey such order of the court may

§ 825g

TITLE 16—CONSERVATION

be punished by such court as a contempt thereof. All process in any such case may be served in
the judicial district whereof such person is an
inhabitant or wherever he may be found or may
be doing business. Any person who willfully
shall fail or refuse to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, contracts,
agreements, or other records, if in his or its
power so to do, in obedience to the subpena of
the Commission, shall be guilty of a misdemeanor and, upon conviction, shall be subject
to a fine of not more than $1,000 or to imprisonment for a term of not more than one year, or
both.
(d) Testimony by deposition
The testimony of any witness may be taken,
at the instance of a party, in any proceeding or
investigation pending before the Commission, by
deposition, at any time after the proceeding is
at issue. The Commission may also order testimony to be taken by deposition in any proceeding or investigation pending before it, at any
stage of such proceeding or investigation. Such
depositions may be taken before any person authorized to administer oaths not being of counsel or attorney to either of the parties, nor interested in the proceeding or investigation. Reasonable notice must first be given in writing by
the party or his attorney proposing to take such
deposition to the opposite party or his attorney
of record, as either may be nearest, which notice
shall state the name of the witness and the time
and place of the taking of his deposition. Any
person may be compelled to appear and depose,
and to produce documentary evidence, in the
same manner as witnesses may be compelled to
appear and testify and produce documentary
evidence before the Commission, as hereinbefore
provided. Such testimony shall be reduced to
writing by the person taking the deposition, or
under his direction, and shall, after it has been
reduced to writing, be subscribed by the deponent.
(e) Deposition of witness in a foreign country
If a witness whose testimony may be desired
to be taken by deposition be in a foreign country, the deposition may be taken before an officer or person designated by the Commission, or
agreed upon by the parties by stipulation in
writing to be filed with the Commission. All
depositions must be promptly filed with the
Commission.
(f) Deposition fees
Witnesses whose depositions are taken as authorized in this chapter, and the person or officer taking the same, shall be entitled to the
same fees as are paid for like services in the
courts of the United States.
(June 10, 1920, ch. 285, pt. III, § 307, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 856; amended Pub. L. 91–452, title II, § 221, Oct. 15, 1970, 84
Stat. 929; Pub. L. 109–58, title XII, § 1284(b), Aug.
8, 2005, 119 Stat. 980.)
AMENDMENTS
2005—Subsec. (a). Pub. L. 109–58 inserted ‘‘, electric
utility, transmitting utility, or other entity’’ after
‘‘person’’ in two places and inserted ‘‘, or in obtaining

Page 1310

information about the sale of electric energy at wholesale in interstate commerce and the transmission of
electric energy in interstate commerce’’ before period
at end of first sentence.
1970—Subsec. (g). Pub. L. 91–452 struck out subsec. (g)
which related to the immunity from prosecution of any
individual compelled to testify or produce evidence,
documentary or otherwise, after claiming his privilege
against self-incrimination.
EFFECTIVE DATE OF 1970 AMENDMENT
Amendment by Pub. L. 91–452 effective on 60th day
following Oct. 15, 1970, and not to affect any immunity
to which any individual is entitled under this section
by reason of any testimony given before 60th day following Oct. 15, 1970, see section 260 of Pub. L. 91–452, set
out as an Effective Date; Savings Provision note under
section 6001 of Title 18, Crimes and Criminal Procedure.

§ 825g. Hearings; rules of procedure
(a) Hearings under this chapter may be held
before the Commission, any member or members
thereof or any representative of the Commission
designated by it, and appropriate records thereof
shall be kept. In any proceeding before it, the
Commission, in accordance with such rules and
regulations as it may prescribe, may admit as a
party any interested State, State commission,
municipality, or any representative of interested consumers or security holders, or any
competitor of a party to such proceeding, or any
other person whose participation in the proceeding may be in the public interest.
(b) All hearings, investigations, and proceedings under this chapter shall be governed by
rules of practice and procedure to be adopted by
the Commission, and in the conduct thereof the
technical rules of evidence need not be applied.
No informality in any hearing, investigation, or
proceeding or in the manner of taking testimony shall invalidate any order, decision, rule,
or regulation issued under the authority of this
chapter.
(June 10, 1920, ch. 285, pt. III, § 308, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 858.)
§ 825h. Administrative powers of Commission;
rules, regulations, and orders
The Commission shall have power to perform
any and all acts, and to prescribe, issue, make,
amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate
to carry out the provisions of this chapter.
Among other things, such rules and regulations
may define accounting, technical, and trade
terms used in this chapter; and may prescribe
the form or forms of all statements, declarations, applications, and reports to be filed with
the Commission, the information which they
shall contain, and the time within which they
shall be filed. Unless a different date is specified
therein, rules and regulations of the Commission shall be effective thirty days after publication in the manner which the Commission shall
prescribe. Orders of the Commission shall be effective on the date and in the manner which the
Commission shall prescribe. For the purposes of
its rules and regulations, the Commission may
classify persons and matters within its jurisdiction and prescribe different requirements for different classes of persons or matters. All rules
and regulations of the Commission shall be filed

Page 1311

§ 825k

TITLE 16—CONSERVATION

with its secretary and shall be kept open in convenient form for public inspection and examination during reasonable business hours.
(June 10, 1920, ch. 285, pt. III, § 309, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 858.)
COMMISSION REVIEW
Pub. L. 99–495, § 4(c), Oct. 16, 1986, 100 Stat. 1248, provided that: ‘‘In order to ensure that the provisions of
Part I of the Federal Power Act [16 U.S.C. 791a et seq.],
as amended by this Act, are fully, fairly, and efficiently
implemented, that other governmental agencies identified in such Part I are able to carry out their responsibilities, and that the increased workload of the Federal Energy Regulatory Commission and other agencies
is facilitated, the Commission shall, consistent with
the provisions of section 309 of the Federal Power Act
[16 U.S.C. 825h], review all provisions of that Act [16
U.S.C. 791a et seq.] requiring an action within a 30-day
period and, as the Commission deems appropriate,
amend its regulations to interpret such period as meaning ‘working days’, rather than ‘calendar days’ unless
calendar days is specified in such Act for such action.’’

§ 825i. Appointment of officers and employees;
compensation
The Commission is authorized to appoint and
fix the compensation of such officers, attorneys,
examiners, and experts as may be necessary for
carrying out its functions under this chapter;
and the Commission may, subject to civil-service laws, appoint such other officers and employees as are necessary for carrying out such functions and fix their salaries in accordance with
chapter 51 and subchapter III of chapter 53 of
title 5.
(June 10, 1920, ch. 285, pt. III, § 310, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 859; amended Oct. 28, 1949, ch. 782, title XI, § 1106(a), 63 Stat.
972.)
CODIFICATION
Provisions that authorized the Commission to appoint and fix the compensation of such officers, attorneys, examiners, and experts as may be necessary for
carrying out its functions under this chapter ‘‘without
regard to the provisions of other laws applicable to the
employment and compensation of officers and employees of the United States’’ have been omitted as obsolete
and superseded.
Such appointments are subject to the civil service
laws unless specifically excepted by those laws or by
laws enacted subsequent to Executive Order No. 8743,
Apr. 23, 1941, issued by the President pursuant to the
Act of Nov. 26, 1940, ch. 919, title I, § 1, 54 Stat. 1211,
which covered most excepted positions into the classified (competitive) civil service. The Order is set out as
a note under section 3301 of Title 5, Government Organization and Employees.
As to the compensation of such personnel, sections
1202 and 1204 of the Classification Act of 1949, 63 Stat.
972, 973, repealed the Classification Act of 1923 and all
other laws or parts of laws inconsistent with the 1949
Act. The Classification Act of 1949 was repealed Pub. L.
89–554, Sept. 6, 1966, § 8(a), 80 Stat. 632, and reenacted as
chapter 51 and subchapter III of chapter 53 of Title 5.
Section 5102 of Title 5 contains the applicability provisions of the 1949 Act, and section 5103 of Title 5 authorizes the Office of Personnel Management to determine
the applicability to specific positions and employees.
‘‘Chapter 51 and subchapter III of chapter 53 of title
5’’ substituted in text for ‘‘the Classification Act of
1949, as amended’’ on authority of Pub. L. 89–554, § 7(b),
Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5.

AMENDMENTS
1949—Act Oct. 28, 1949, substituted ‘‘Classification Act
of 1949’’ for ‘‘Classification Act of 1923’’.
REPEALS
Act Oct. 28, 1949, ch. 782, cited as a credit to this section, was repealed (subject to a savings clause) by Pub.
L. 89–554, Sept. 6, 1966, § 8, 80 Stat. 632, 655.

§ 825j. Investigations relating to electric energy;
reports to Congress
In order to secure information necessary or
appropriate as a basis for recommending legislation, the Commission is authorized and directed
to conduct investigations regarding the generation, transmission, distribution, and sale of electric energy, however produced, throughout the
United States and its possessions, whether or
not otherwise subject to the jurisdiction of the
Commission, including the generation, transmission, distribution, and sale of electric energy
by any agency, authority, or instrumentality of
the United States, or of any State or municipality or other political subdivision of a State. It
shall, so far as practicable, secure and keep current information regarding the ownership, operation, management, and control of all facilities
for such generation, transmission, distribution,
and sale; the capacity and output thereof and
the relationship between the two; the cost of
generation, transmission, and distribution; the
rates, charges, and contracts in respect of the
sale of electric energy and its service to residential, rural, commercial, and industrial consumers and other purchasers by private and public
agencies; and the relation of any or all such
facts to the development of navigation, industry, commerce, and the national defense. The
Commission shall report to Congress the results
of investigations made under authority of this
section.
(June 10, 1920, ch. 285, pt. III, § 311, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 859.)
§ 825k. Publication and sale of reports
The Commission may provide for the publication of its reports and decisions in such form
and manner as may be best adapted for public
information and use, and is authorized to sell at
reasonable prices copies of all maps, atlases, and
reports as it may from time to time publish.
Such reasonable prices may include the cost of
compilation, composition, and reproduction.
The Commission is also authorized to make such
charges as it deems reasonable for special statistical services and other special or periodic services. The amounts collected under this section
shall be deposited in the Treasury to the credit
of miscellaneous receipts. All printing for the
Federal Power Commission making use of engraving, lithography, and photolithography, together with the plates for the same, shall be
contracted for and performed under the direction of the Commission, under such limitations
and conditions as the Joint Committee on Printing may from time to time prescribe, and all
other printing for the Commission shall be done
by the Director of the Government Publishing
Office under such limitations and conditions as
the Joint Committee on Printing may from time

§ 825l

TITLE 16—CONSERVATION

to time prescribe. The entire work may be done
at, or ordered through, the Government Publishing Office whenever, in the judgment of the
Joint Committee on Printing, the same would
be to the interest of the Government: Provided,
That when the exigencies of the public service
so require, the Joint Committee on Printing
may authorize the Commission to make immediate contracts for engraving, lithographing,
and photolithographing, without advertisement
for proposals: Provided further, That nothing
contained in this chapter or any other Act shall
prevent the Federal Power Commission from
placing orders with other departments or establishments for engraving, lithographing, and
photolithographing, in accordance with the provisions of sections 1535 and 1536 of title 31, providing for interdepartmental work.
(June 10, 1920, ch. 285, pt. III, § 312, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 859; amended Pub. L. 113–235, div. H, title I, § 1301(b), (d),
Dec. 16, 2014, 128 Stat. 2537.)
CODIFICATION
‘‘Sections 1535 and 1536 of title 31’’ substituted in text
for ‘‘sections 601 and 602 of the Act of June 30, 1932 (47
Stat. 417 [31 U.S.C. 686, 686b])’’ on authority of Pub. L.
97–258, § 4(b), Sept. 13, 1982, 96 Stat. 1067, the first section of which enacted Title 31, Money and Finance.
CHANGE OF NAME
‘‘Director of the Government Publishing Office’’ substituted for ‘‘Public Printer’’ in text on authority of
section 1301(d) of Pub. L. 113–235, set out as a note
under section 301 of Title 44, Public Printing and Documents.
‘‘Government Publishing Office’’ substituted for
‘‘Government Printing Office’’ in text on authority of
section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

§ 825l. Review of orders
(a) Application for rehearing; time periods; modification of order
Any person, electric utility, State, municipality, or State commission aggrieved by an order
issued by the Commission in a proceeding under
this chapter to which such person, electric utility, State, municipality, or State commission is
a party may apply for a rehearing within thirty
days after the issuance of such order. The application for rehearing shall set forth specifically
the ground or grounds upon which such application is based. Upon such application the Commission shall have power to grant or deny rehearing or to abrogate or modify its order without further hearing. Unless the Commission acts
upon the application for rehearing within thirty
days after it is filed, such application may be
deemed to have been denied. No proceeding to
review any order of the Commission shall be
brought by any entity unless such entity shall
have made application to the Commission for a
rehearing thereon. Until the record in a proceeding shall have been filed in a court of appeals, as
provided in subsection (b), the Commission may
at any time, upon reasonable notice and in such
manner as it shall deem proper, modify or set
aside, in whole or in part, any finding or order
made or issued by it under the provisions of this
chapter.

Page 1312

(b) Judicial review
Any party to a proceeding under this chapter
aggrieved by an order issued by the Commission
in such proceeding may obtain a review of such
order in the United States court of appeals for
any circuit wherein the licensee or public utility
to which the order relates is located or has its
principal place of business, or in the United
States Court of Appeals for the District of Columbia, by filing in such court, within sixty
days after the order of the Commission upon the
application for rehearing, a written petition
praying that the order of the Commission be
modified or set aside in whole or in part. A copy
of such petition shall forthwith be transmitted
by the clerk of the court to any member of the
Commission and thereupon the Commission
shall file with the court the record upon which
the order complained of was entered, as provided
in section 2112 of title 28. Upon the filing of such
petition such court shall have jurisdiction,
which upon the filing of the record with it shall
be exclusive, to affirm, modify, or set aside such
order in whole or in part. No objection to the
order of the Commission shall be considered by
the court unless such objection shall have been
urged before the Commission in the application
for rehearing unless there is reasonable ground
for failure so to do. The finding of the Commission as to the facts, if supported by substantial
evidence, shall be conclusive. If any party shall
apply to the court for leave to adduce additional
evidence, and shall show to the satisfaction of
the court that such additional evidence is material and that there were reasonable grounds for
failure to adduce such evidence in the proceedings before the Commission, the court may
order such additional evidence to be taken before the Commission and to be adduced upon the
hearing in such manner and upon such terms
and conditions as to the court may seem proper.
The Commission may modify its findings as to
the facts by reason of the additional evidence so
taken, and it shall file with the court such
modified or new findings which, if supported by
substantial evidence, shall be conclusive, and its
recommendation, if any, for the modification or
setting aside of the original order. The judgment
and decree of the court, affirming, modifying, or
setting aside, in whole or in part, any such order
of the Commission, shall be final, subject to review by the Supreme Court of the United States
upon certiorari or certification as provided in
section 1254 of title 28.
(c) Stay of Commission’s order
The filing of an application for rehearing
under subsection (a) shall not, unless specifically ordered by the Commission, operate as a
stay of the Commission’s order. The commencement of proceedings under subsection (b) of this
section shall not, unless specifically ordered by
the court, operate as a stay of the Commission’s
order.
(June 10, 1920, ch. 285, pt. III, § 313, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 860; amended June 25, 1948, ch. 646, § 32(a), 62 Stat. 991; May
24, 1949, ch. 139, § 127, 63 Stat. 107; Pub. L. 85–791,
§ 16, Aug. 28, 1958, 72 Stat. 947; Pub. L. 109–58,
title XII, § 1284(c), Aug. 8, 2005, 119 Stat. 980.)

Page 1313

§ 825n

TITLE 16—CONSERVATION
CODIFICATION

In subsec. (b), ‘‘section 1254 of title 28’’ substituted
for ‘‘sections 239 and 240 of the Judicial Code, as amended (U.S.C., title 28, secs. 346 and 347)’’ on authority of
act June 25, 1948, ch. 646, 62 Stat. 869, the first section
of which enacted Title 28, Judiciary and Judicial Procedure.
AMENDMENTS
2005—Subsec. (a). Pub. L. 109–58 inserted ‘‘electric
utility,’’ after ‘‘Any person,’’ and ‘‘to which such person,’’ and substituted ‘‘brought by any entity unless
such entity’’ for ‘‘brought by any person unless such
person’’.
1958—Subsec. (a). Pub. L. 85–791, § 16(a), inserted sentence to provide that Commission may modify or set
aside findings or orders until record has been filed in
court of appeals.
Subsec. (b). Pub. L. 85–791, § 16(b), in second sentence,
substituted ‘‘transmitted by the clerk of the court to’’
for ‘‘served upon’’, substituted ‘‘file with the court’’ for
‘‘certify and file with the court a transcript of’’, and inserted ‘‘as provided in section 2112 of title 28’’, and in
third sentence, substituted ‘‘jurisdiction, which upon
the filing of the record with it shall be exclusive’’ for
‘‘exclusive jurisdiction’’.
CHANGE OF NAME
Act June 25, 1948, eff. Sept. 1, 1948, as amended by act
May 24, 1949, substituted ‘‘court of appeals’’ for ‘‘circuit
court of appeals’’.

§ 825m. Enforcement provisions
(a) Enjoining and restraining violations
Whenever it shall appear to the Commission
that any person is engaged or about to engage in
any acts or practices which constitute or will
constitute a violation of the provisions of this
chapter, or of any rule, regulation, or order
thereunder, it may in its discretion bring an action in the proper District Court of the United
States or the United States courts of any Territory or other place subject to the jurisdiction of
the United States, to enjoin such acts or practices and to enforce compliance with this chapter or any rule, regulation, or order thereunder,
and upon a proper showing a permanent or temporary injunction or decree or restraining order
shall be granted without bond. The Commission
may transmit such evidence as may be available
concerning such acts or practices to the Attorney General, who, in his discretion, may institute the necessary criminal proceedings under
this chapter.
(b) Writs of mandamus
Upon application of the Commission the district courts of the United States and the United
States courts of any Territory or other place
subject to the jurisdiction of the United States
shall have jurisdiction to issue writs of mandamus commanding any person to comply with the
provisions of this chapter or any rule, regulation, or order of the Commission thereunder.
(c) Employment of attorneys
The Commission may employ such attorneys
as it finds necessary for proper legal aid and
service of the Commission or its members in the
conduct of their work, or for proper representation of the public interests in investigations
made by it or cases or proceedings pending before it, whether at the Commission’s own instance or upon complaint, or to appear for or

represent the Commission in any case in court;
and the expenses of such employment shall be
paid out of the appropriation for the Commission.
(d) Prohibitions on violators
In any proceedings under subsection (a), the
court may prohibit, conditionally or unconditionally, and permanently or for such period of
time as the court determines, any individual
who is engaged or has engaged in practices constituting a violation of section 824u of this title
(and related rules and regulations) from—
(1) acting as an officer or director of an electric utility; or
(2) engaging in the business of purchasing or
selling—
(A) electric energy; or
(B) transmission services subject to the jurisdiction of the Commission.
(June 10, 1920, ch. 285, pt. III, § 314, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 861; amended June 25, 1936, ch. 804, 49 Stat. 1921; June 25,
1948, ch. 646, § 32(b), 62 Stat. 991; May 24, 1949, ch.
139, § 127, 63 Stat. 107; Pub. L. 109–58, title XII,
§ 1288, Aug. 8, 2005, 119 Stat. 982.)
CODIFICATION
As originally enacted subsecs. (a) and (b) contained
references to the Supreme Court of the District of Columbia. Act June 25, 1936, substituted ‘‘the district
court of the United States for the District of Columbia’’ for ‘‘the Supreme Court of the District of Columbia’’, and act June 25, 1948, as amended by act May 24,
1949, substituted ‘‘United States District Court for the
District of Columbia’’ for ‘‘district court of the United
States for the District of Columbia’’. However, the
words ‘‘United States District Court for the District of
Columbia’’ have been deleted entirely as superfluous in
view of section 132(a) of Title 28, Judiciary and Judicial
Procedure, which states that ‘‘There shall be in each
judicial district a district court which shall be a court
of record known as the United States District Court for
the district’’, and section 88 of Title 28 which states
that ‘‘the District of Columbia constitutes one judicial
district’’.
AMENDMENTS
2005—Subsec. (d). Pub. L. 109–58 added subsec. (d).

§ 825n. Forfeiture for violations; recovery; applicability
(a) Forfeiture
Any licensee or public utility which willfully
fails, within the time prescribed by the Commission, to comply with any order of the Commission, to file any report required under this chapter or any rule or regulation of the Commission
thereunder, to submit any information or document required by the Commission in the course
of an investigation conducted under this chapter, or to appear by an officer or agent at any
hearing or investigation in response to a subpena issued under this chapter, shall forfeit to
the United States an amount not exceeding
$1,000 to be fixed by the Commission after notice
and opportunity for hearing. The imposition or
payment of any such forfeiture shall not bar or
affect any penalty prescribed in this chapter but
such forfeiture shall be in addition to any such
penalty.
(b) Recovery
The forfeitures provided for in this chapter
shall be payable into the Treasury of the United

§ 825o

TITLE 16—CONSERVATION

States and shall be recoverable in a civil suit in
the name of the United States, brought in the
district where the person is an inhabitant or has
his principal place of business, or if a licensee or
public utility, in any district in which such licensee or public utility transacts business. It
shall be the duty of the various United States
attorneys, under the direction of the Attorney
General of the United States, to prosecute for
the recovery of forfeitures under this chapter.
The costs and expenses of such prosecution shall
be paid from the appropriations for the expenses
of the courts of the United States.
(c) Applicability
This section shall not apply in the case of any
provision of section 824j, 824k, 824l, or 824m of
this title or any rule or order issued under any
such provision.
(June 10, 1920, ch. 285, pt. III, § 315, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 861; amended June 25, 1948, ch. 646, § 1, 62 Stat. 909; Pub. L.
102–486, title VII, § 725(a), Oct. 24, 1992, 106 Stat.
2920; Pub. L. 109–58, title XII, § 1295(d), Aug. 8,
2005, 119 Stat. 985.)
AMENDMENTS
2005—Subsec. (c). Pub. L. 109–58 substituted ‘‘This section’’ for ‘‘This subsection’’.
1992—Subsec. (c). Pub. L. 102–486 added subsec. (c).
CHANGE OF NAME
Act June 25, 1948, eff. Sept. 1, 1948, substituted
‘‘United States attorney’’ for ‘‘district attorney’’. See
section 541 of Title 28, Judiciary and Judicial Procedure.
STATE AUTHORITIES; CONSTRUCTION
Nothing in amendment by Pub. L. 102–486 to be construed as affecting or intending to affect, or in any way
to interfere with, authority of any State or local government relating to environmental protection or siting
of facilities, see section 731 of Pub. L. 102–486, set out
as a note under section 796 of this title.

§ 825o. Penalties for violations; applicability of
section
(a) Statutory violations
Any person who willfully and knowingly does
or causes or suffers to be done any act, matter,
or thing in this chapter prohibited or declared
to be unlawful, or who willfully and knowingly
omits or fails to do any act, matter, or thing in
this chapter required to be done, or willfully and
knowingly causes or suffers such omission or
failure, shall, upon conviction thereof, be punished by a fine of not more than $1,000,000 or by
imprisonment for not more than 5 years, or
both.
(b) Rules violations
Any person who willfully and knowingly violates any rule, regulation, restriction, condition, or order made or imposed by the Commission under authority of this chapter, or any rule
or regulation imposed by the Secretary of the
Army under authority of subchapter I of this
chapter shall, in addition to any other penalties
provided by law, be punished upon conviction
thereof by a fine of not exceeding $25,000 for
each and every day during which such offense
occurs.

Page 1314

(June 10, 1920, ch. 285, pt. III, § 316, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 862; amended July 26, 1947, ch. 343, title II, § 205(a), 61 Stat.
501; Pub. L. 102–486, title VII, § 725(a), Oct. 24,
1992, 106 Stat. 2920; Pub. L. 109–58, title XII,
§ 1284(d), Aug. 8, 2005, 119 Stat. 980.)
AMENDMENTS
2005—Subsec. (a). Pub. L. 109–58, § 1284(d)(1), substituted ‘‘$1,000,000’’ for ‘‘$5,000’’ and ‘‘5 years’’ for ‘‘two
years’’.
Subsec. (b). Pub. L. 109–58, § 1284(d)(2), substituted
‘‘$25,000’’ for ‘‘$500’’.
Subsec. (c). Pub. L. 109–58, § 1284(d)(3), struck out subsec. (c) which read as follows: ‘‘This subsection shall
not apply in the case of any provision of section 824j,
824k, 824l, or 824m of this title or any rule or order issued under any such provision.’’
1992—Subsec. (c). Pub. L. 102–486 added subsec. (c).
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.
STATE AUTHORITIES; CONSTRUCTION
Nothing in amendment by Pub. L. 102–486 to be construed as affecting or intending to affect, or in any way
to interfere with, authority of any State or local government relating to environmental protection or siting
of facilities, see section 731 of Pub. L. 102–486, set out
as a note under section 796 of this title.

§ 825o–1. Enforcement of certain provisions
(a) Violations
It shall be unlawful for any person to violate
any provision of subchapter II or any rule or
order issued under any such provision.
(b) Civil penalties
Any person who violates any provision of subchapter II or any provision of any rule or order
thereunder shall be subject to a civil penalty of
not more than $1,000,000 for each day that such
violation continues. Such penalty shall be assessed by the Commission, after notice and opportunity for public hearing, in accordance with
the same provisions as are applicable under section 823b(d) of this title in the case of civil penalties assessed under section 823b of this title. In
determining the amount of a proposed penalty,
the Commission shall take into consideration
the seriousness of the violation and the efforts
of such person to remedy the violation in a
timely manner.
(June 10, 1920, ch. 285, pt. III, § 316A, as added
Pub. L. 102–486, title VII, § 725(b), Oct. 24, 1992,
106 Stat. 2920; amended Pub. L. 109–58, title XII,
§ 1284(e), Aug. 8, 2005, 119 Stat. 980.)
AMENDMENTS
2005—Pub. L. 109–58 substituted ‘‘subchapter II’’ for
‘‘section 824j, 824k, 824l, or 824m of this title’’ in subsecs. (a) and (b) and ‘‘$1,000,000’’ for ‘‘$10,000’’ in subsec.
(b).
STATE AUTHORITIES; CONSTRUCTION
Nothing in this section to be construed as affecting
or intending to affect, or in any way to interfere with,

Page 1315

TITLE 16—CONSERVATION

§ 825q–1

authority of any State or local government relating to
environmental protection or siting of facilities, see section 731 of Pub. L. 102–486, set out as a note under section 796 of this title.

regulations approved and made effective prior to such
date, see section 1274 of Pub. L. 109–58, set out as an Effective Date note under section 16451 of Title 42, The
Public Health and Welfare.

§ 825p. Jurisdiction of offenses; enforcement of liabilities and duties

§ 825q–1. Office of Public Participation

The District Courts of the United States, and
the United States courts of any Territory or
other place subject to the jurisdiction of the
United States shall have exclusive jurisdiction
of violations of this chapter or the rules, regulations, and orders thereunder, and of all suits in
equity and actions at law brought to enforce any
liability or duty created by, or to enjoin any
violation of this chapter or any rule, regulation,
or order thereunder. Any criminal proceeding
shall be brought in the district wherein any act
or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or
order thereunder may be brought in any such
district or in the district wherein the defendant
is an inhabitant, and process in such cases may
be served wherever the defendant may be found.
Judgments and decrees so rendered shall be subject to review as provided in sections 1254, 1291,
and 1292 of title 28. No costs shall be assessed
against the Commission in any judicial proceeding by or against the Commission under this
chapter.
(June 10, 1920, ch. 285, pt. III, § 317, as added Aug.
26, 1935, ch. 687, title II, § 213, 49 Stat. 862; amended June 25, 1936, ch. 804, 49 Stat. 1921; June 25,
1948, ch. 646, § 32(b), 62 Stat. 991; May 24, 1949, ch.
139, § 127, 63 Stat. 107.)
CODIFICATION
As originally enacted, this section contained reference to the Supreme Court of the District of Columbia. Act June 25, 1936, substituted ‘‘the district court of
the United States for the District of Columbia’’ for
‘‘the Supreme Court of the District of Columbia’’, and
act June 25, 1948, as amended by act May 24, 1949, substituted ‘‘United States District Court for the District
of Columbia’’ for ‘‘district court of the United States
for the District of Columbia’’. However, the words
‘‘United States District Court for the District of Columbia’’ have been deleted entirely as superfluous in
view of section 132(a) of Title 28, Judiciary and Judicial
Procedure, which states that ‘‘There shall be in each
judicial district a district court which shall be a court
of record known as the United States District Court for
the district’’, and section 88 of Title 28 which states
that ‘‘the District of Columbia constitutes one judicial
district’’.
‘‘Sections 1254, 1291, and 1292 of title 28’’, referred to
in text, were substituted for ‘‘sections 128 and 240 of the
Judicial Code, as amended (U.S.C. title 28, secs. 225 and
347)’’ on authority of act June 25, 1948, ch. 646, 62 Stat.
869, the first section of which enacted Title 28, Judiciary and Judicial Procedure.

§ 825q. Repealed. Pub. L. 109–58, title
§ 1277(a), Aug. 8, 2005, 119 Stat. 978

XII,

(a)(1) There shall be an office in the Commission to be known as the Office of Public Participation (hereinafter in this section referred to as
the ‘‘Office’’).
(2)(A) The Office shall be administered by a Director. The Director shall be appointed by the
Chairman with the approval of the Commission.
The Director may be removed during his term of
office by the Chairman, with the approval of the
Commission, only for inefficiency, neglect of
duty, or malfeasance in office.
(B) The term of office of the Director shall be
4 years. The Director shall be responsible for the
discharge of the functions and duties of the Office. He shall be appointed and compensated at
a rate not in excess of the maximum rate prescribed for GS–18 of the General Schedule under
section 5332 of title 5.
(3) The Director may appoint, and assign the
duties of, employees of such Office, and with the
concurrence of the Commission he may fix the
compensation of such employees and procure
temporary and intermittent services to the
same extent as is authorized under section 3109
of title 5.
(b)(1) The Director shall coordinate assistance
to the public with respect to authorities exercised by the Commission. The Director shall
also coordinate assistance available to persons
intervening or participating or proposing to intervene or participate in proceedings before the
Commission.
(2) The Commission may, under rules promulgated by it, provide compensation for reasonable
attorney’s fees, expert witness fees, and other
costs of intervening or participating in any proceeding before the Commission to any person
whose intervention or participation substantially contributed to the approval, in whole or
in part, of a position advocated by such person.
Such compensation may be paid only if the
Commission has determined that—
(A) the proceeding is significant, and
(B) such person’s intervention or participation in such proceeding without receipt of
compensation constitutes a significant financial hardship to him.
(3) Nothing in this subsection affects or restricts any rights of any intervenor or participant under any other applicable law or rule of
law.
(4) There are authorized to be appropriated to
the Secretary of Energy to be used by the Office
for purposes of compensation of persons under
the provisions of this subsection not to exceed
$500,000 for the fiscal year 1978, not to exceed
$2,000,000 for the fiscal year 1979, not to exceed
$2,200,000 for the fiscal year 1980, and not to exceed $2,400,000 for the fiscal year 1981.

Section, act June 10, 1920, ch. 285, pt. III, § 318, as
added Aug. 26, 1935, ch. 687, title II, § 213, 49 Stat. 863, related to conflict of jurisdiction.

(June 10, 1920, ch. 285, pt. III, § 319, as added Pub.
L. 95–617, title II, § 212, Nov. 9, 1978, 92 Stat. 3148.)

EFFECTIVE DATE OF REPEAL

REFERENCES IN OTHER LAWS TO GS–16, 17, OR 18 PAY
RATES

Repeal effective 6 months after Aug. 8, 2005, with provisions relating to effect of compliance with certain

References in laws to the rates of pay for GS–16, 17,
or 18, or to maximum rates of pay under the General

§ 825r

TITLE 16—CONSERVATION

Schedule, to be considered references to rates payable
under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, § 101(c)(1)]
of Pub. L. 101–509, set out in a note under section 5376
of Title 5.

§ 825r. Separability
If any provision of this chapter, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of
the chapter, and the application of such provision to persons or circumstances other than
those as to which it is held invalid, shall not be
affected thereby.
(June 10, 1920, ch. 285, pt. III, § 320, formerly § 319,
as added Aug. 26, 1935, ch. 687, title II, § 213, 49
Stat. 863, and renumbered § 320, Pub. L. 95–617,
title II, § 212, Nov. 9, 1978, 92 Stat. 3148.)
§ 825s. Sale of electric power from reservoir
projects; rate schedules; preference in sale;
construction of transmission lines; disposition of moneys
Electric power and energy generated at reservoir projects under the control of the Department of the Army and in the opinion of the Secretary of the Army not required in the operation
of such projects shall be delivered to the Secretary of Energy who shall transmit and dispose
of such power and energy in such manner as to
encourage the most widespread use thereof at
the lowest possible rates to consumers consistent with sound business principles, the rate
schedules to become effective upon confirmation
and approval by the Secretary of Energy. Rate
schedules shall be drawn having regard to the
recovery (upon the basis of the application of
such rate schedules to the capacity of the electric facilities of the projects) of the cost of producing and transmitting such electric energy,
including the amortization of the capital investment allocated to power over a reasonable period of years. Preference in the sale of such
power and energy shall be given to public bodies
and cooperatives. The Secretary of Energy is authorized, from funds to be appropriated by the
Congress, to construct or acquire, by purchase
or other agreement, only such transmission
lines and related facilities as may be necessary
in order to make the power and energy generated at said projects available in wholesale
quantities for sale on fair and reasonable terms
and conditions to facilities owned by the Federal Government, public bodies, cooperatives,
and privately owned companies. All moneys received from such sales shall be deposited in the
Treasury of the United States as miscellaneous
receipts.

Page 1316

retary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.
TRANSFER OF FUNCTIONS
‘‘Secretary of Energy’’ substituted in text for ‘‘Secretary of the Interior’’ in two places and for ‘‘Federal
Power Commission’’ pursuant to Pub. L. 95–91, §§ 301(b),
302(a)(1), which are classified to sections 7151(b) and
7152(a)(1) of Title 42, The Public Health and Welfare.
Functions of Secretary of the Interior under this section transferred to Secretary of Energy by section
7152(a)(1) of Title 42.
Federal Power Commission terminated and its functions, personnel, property, funds, etc., transferred to
Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by
sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title
42.
Executive and administrative functions of Federal
Power Commission, with certain reservations, transferred to Chairman of such Commission, with authority
vested in him to authorize their performance by any officer, employee, or administrative unit under his jurisdiction, by Reorg. Plan No. 9 of 1950, §§ 1, 2, eff. May 24,
1950, 15 F.R. 3175, 64 Stat. 1265, set out as a note under
section 792 of this title.
SECTION AS UNAFFECTED BY SUBMERGED LANDS ACT
Provisions of this section as not amended, modified
or repealed by the Submerged Lands Act [43 U.S.C. 1301
et seq.], see section 1303 of Title 43, Public Lands.

§ 825s–1. Southwestern area sale and transmission of electric power; disposition of receipts; creation of continuing fund; use of
fund

CHANGE OF NAME

All receipts from the transmission and sale of
electric power and energy under the provisions
of section 825s of this title, generated or purchased in the southwestern power area, shall be
covered into the Treasury of the United States
as miscellaneous receipts, except that the Treasury shall set up and maintain from such receipts
a continuing fund of $300,000, including the sum
of $100,000 in the continuing fund established
under the Administrator of the Southwestern
Power Administration in the First Supplemental National Defense Appropriation Act, 1944
(57 Stat. 621), which shall be transferred to the
fund established; and said fund of $300,000 shall
be placed to the credit of the Secretary and
shall be subject to check by him to defray emergency expenses necessary to insure continuity of
electric service and continuous operation of the
facilities, and to cover all costs in connection
with the purchase of electric power and energy
and rentals for the use of facilities for the transmission and distribution of electric power and
energy to public bodies, cooperatives, and privately owned companies: Provided, That expenditures from this fund to cover such costs in connection with the purchase of electric power and
energy and rentals for the use of facilities are to
be made only in such amounts as may be approved annually in appropriation Acts.

Department of War designated Department of the
Army and title of Secretary of War changed to Sec-

(Oct. 12, 1949, ch. 680, title I, § 101, 63 Stat. 767;
Aug. 31, 1951, ch. 375, title I, § 101, 65 Stat. 249.)

(Dec. 22, 1944, ch. 665, § 5, 58 Stat. 890; July 26,
1947, ch. 343, title II, § 205(a), 61 Stat. 501; Pub. L.
95–91, title III, §§ 301(b), 302(a)(1), Aug. 4, 1977, 91
Stat. 578.)
CODIFICATION
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.

Page 1317

§ 825s–5

TITLE 16—CONSERVATION
REFERENCES IN TEXT

The First Supplemental National Defense Appropriation Act, 1944, referred to in text, was act Dec. 23, 1943,
ch. 380, title I, § 101, 57 Stat. 621, which was not classified to the Code.
CODIFICATION
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.
Section as originally enacted contained a provision
relating to maximum expenditures for the fiscal year
1952.
AMENDMENTS
1951—Act Aug. 31, 1951, inserted proviso.
USE OF FUND TO PAY FOR PURCHASE POWER AND
WHEELING EXPENSES TO MEET CONTRACTUAL OBLIGATIONS DURING PERIODS OF BELOW-AVERAGE HYDROPOWER GENERATION
Pub. L. 101–101, title III, Sept. 29, 1989, 103 Stat. 660,
provided: ‘‘That the continuing fund established by the
Act of October 12, 1949, c. 680, title I, section 101, as
amended [16 U.S.C. 825s–1], shall also be available on an
ongoing basis for paying for purchase power and wheeling expenses when the Administrator determines that
such expenditures are necessary to meet contractual
obligations for the sale and delivery of power during periods of below-average hydropower generation. Payments from the continuing fund shall be limited to the
amount required to replace the generation deficiency,
and only for the project where the deficiency occurred.
Replenishment of the fund shall occur within twelve
months of the month in which the funds were first expended.’’

§ 825s–2. Southeastern area sale and transmission of electric power; disposition of receipts; creation of continuing funds; use of
fund
All receipts from the transmission and sale of
electric power and energy under the provisions
of section 825s of this title, generated or purchased in the southeastern power area, shall be
covered into the Treasury of the United States
as miscellaneous receipts, except that the Treasury shall set up and maintain from such receipts
a continuing fund of $50,000, and said fund shall
be placed to the credit of the Secretary, and
shall be subject to check by him to defray emergency expenses necessary to insure continuity of
electric service and continuous operation of
Government facilities in said area.
(Aug. 31, 1951, ch. 375, title I, § 101, 65 Stat. 249.)
CODIFICATION
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.

§ 825s–3. Southwestern area sale at uniform systemwide rates of electric power over transmission lines constructed with appropriated
funds or used under contractual arrangements
Power and energy marketed by the Southwestern Power Administration pursuant to section
825s of this title, shall be sold at uniform systemwide rates, without discrimination between
customers to whom the Southwestern Power Administration delivers such power and energy by
means of transmission lines or facilities constructed with appropriated funds, and customers
to whom the Southwestern Power Administra-

tion delivers such power and energy by means of
transmission lines or facilities, the use of which
is acquired by lease, wheeling, or other contractual arrangements.
(Pub. L. 95–456, § 1, Oct. 13, 1978, 92 Stat. 1230.)
CODIFICATION
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.
EFFECTIVE DATE
Pub. L. 95–456, § 2, Oct. 13, 1978, 92 Stat. 1230, provided
that: ‘‘This Act [enacting this section] shall not become effective until Contract No. 14–02–00001–1002, effective August 1, 1962, between the United States of
America and Associated Electric Cooperative, Inc.,
Springfield, Missouri, has been amended in a manner
mutually agreeable to the parties thereto.’’

§ 825s–4. Southwestern Power Administration;
deposit and availability of advance payments
Notwithstanding section 3302 of title 31, beginning in fiscal year 2005 and thereafter, such
funds as are received by the Southwestern
Power Administration from any State, municipality, corporation, association, firm, district,
or individual as advance payment for work that
is associated with Southwestern’s transmission
facilities, consistent with that authorized in
section 825s of this title, shall be credited to this
account and be available until expended.
(Pub. L. 108–447, div. C, title III, Dec. 8, 2004, 118
Stat. 2956.)
CODIFICATION
Section was enacted as part of the Energy and Water
Development Appropriations Act, 2005, and also as part
of the Consolidated Appropriations Act, 2005, and not as
part of the Federal Power Act which generally comprises this chapter. Section is based on the proviso in
the paragraph under the headings ‘‘POWER MARKETING ADMINISTRATIONS’’ and ‘‘OPERATION AND MAINTENANCE, SOUTHWESTERN POWER ADMINISTRATION’’ in
title III of div. C of Pub. L. 108–447.
PRIOR PROVISIONS
Provisions similar to those in this section were contained in the following prior appropriation act:
Pub. L. 108–137, title III, Dec. 1, 2003, 117 Stat. 1858.

§ 825s–5. Southeastern Power Administration; deposit and availability of advance payments
Notwithstanding the provisions of section 3302
of title 31, beginning in fiscal year 2008 and
thereafter, such funds as are received by the
Southeastern Power Administration from any
State, municipality, corporation, association,
firm, district, or individual as advance payment
for work that is associated with Southeastern’s
Operations and Maintenance, consistent with
that authorized in section 825s of this title, shall
be credited to this account and be available
until expended.
(Pub. L. 110–161, div. C, title III, Dec. 26, 2007, 121
Stat. 1965.)
CODIFICATION
Section was enacted as part of the Energy and Water
Development and Related Agencies Appropriations Act,
2008, and also as part of the Consolidated Appropriations Act, 2008, and not as part of the Federal Power
Act which generally comprises this chapter.

§ 825s–6

TITLE 16—CONSERVATION

§ 825s–6. Southeastern Power Administration; deposit and availability of discretionary offsetting collections
Notwithstanding the provisions of section 3302
of title 31 and section 825s of this title, all funds
collected by the Southeastern Power Administration that are applicable to the repayment of
the annual expenses of this account in this and
subsequent fiscal years shall be credited to this
account as discretionary offsetting collections
for the sole purpose of funding such expenses,
with such funds remaining available until expended: Provided further, That for purposes of
this appropriation, annual expenses means expenditures that are generally recovered in the
same year that they are incurred (excluding purchase power and wheeling expenses).
(Pub. L. 111–85, title III, Oct. 28, 2009, 123 Stat.
2869.)
REFERENCES IN TEXT
This fiscal year, referred to in text, is the fiscal year
ending Sept. 30, 2010.
CODIFICATION
Section was enacted as part of the Energy and Water
Development and Related Agencies Appropriations Act,
2010, and not as part of the Federal Power Act which
generally comprises this chapter.

§ 825s–7. Southwestern Power Administration;
deposit and availability of discretionary offsetting collections
Notwithstanding section 3302 of title 31 and
section 825s of this title, all funds collected by
the Southwestern Power Administration that
are applicable to the repayment of the annual
expenses of this account in this and subsequent
fiscal years shall be credited to this account as
discretionary offsetting collections for the sole
purpose of funding such expenses, with such
funds remaining available until expended: Provided further, That for purposes of this appropriation, annual expenses means expenditures
that are generally recovered in the same year
that they are incurred (excluding purchase
power and wheeling expenses).
(Pub. L. 111–85, title III, Oct. 28, 2009, 123 Stat.
2869.)
REFERENCES IN TEXT
This fiscal year, referred to in text, is the fiscal year
ending Sept. 30, 2010.
CODIFICATION
Section was enacted as part of the Energy and Water
Development and Related Agencies Appropriations Act,
2010, and not as part of the Federal Power Act which
generally comprises this chapter.

§ 825t. Utilization of power revenues
No power revenues on any project shall be distributed as profits, before or after retirement of
the project debt, and nothing contained in any
previous appropriation Act shall be deemed to
have authorized such distribution: Provided,
That the application of such revenues to the
cost of operation, maintenance, and debt service
of the irrigation system of the project, or to
other purposes in aid of such irrigation system,
shall not be construed to be such a distribution.

Page 1318

(July 1, 1946, ch. 529, § 1, 60 Stat. 366.)
CODIFICATION
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.

§ 825u. Interest rate on power bonds held by Administrator of General Services
The Administrator of General Services or his
successor in interest is authorized to reduce the
rate of interest to 21⁄2 per centum on all power
bonds held by such Agency issued by States,
public authorities, counties, municipalities, and
other subdivisions of State governments for
power projects financed by the Public Works Administration.
(July 31, 1946, ch. 710, § 6, 60 Stat. 744; June 30,
1949, ch. 288, title I, § 103(a), 63 Stat. 380.)
CODIFICATION
This section was not enacted as part of the Federal
Power Act which generally comprises this chapter.
TRANSFER OF FUNCTIONS
Functions of Federal Works Agency and of all agencies thereof, together with functions of Federal Works
Administrator, transferred to Administrator of General
Services by section 103(a) of act June 30, 1949. Both Federal Works Agency and office of Federal Works Administrator abolished by section 103(b) of said act. See Historical and Revision Notes under section 303(b) of Title
40, Public Buildings, Property, and Works. Transfer of
functions of Federal Works Agency effective July 1,
1949, see section 605, formerly § 505, of act June 30, 1949,
ch. 288, 63 Stat. 403; renumbered by act Sept. 5, 1950, ch.
849, § 6(a), (b), 64 Stat. 583. Section 303(b) of Title 40 was
amended generally by Pub. L. 109–313, § 2(a)(1), Oct. 6,
2006, 120 Stat. 1734, and, as so amended, no longer relates to the Federal Works Agency and Commissioner
of Public Buildings. See 2006 Amendment note under
section 303 of Title 40.
Functions of Public Works Administration transferred to Federal Works Administrator by Ex. Ord. No.
9357, June 30, 1943, 8 F.R. 9041.

SUBCHAPTER IV—STATE AND MUNICIPAL
WATER CONSERVATION FACILITIES
§ 828. Facilitation of development and construction of water conservation facilities; exemption from certain Federal requirements
In order to facilitate the development and construction by States and municipalities of water
conservation facilities, certain requirements in
this chapter are made inapplicable to States and
municipalities as provided in this subchapter.
(Aug. 15, 1953, ch. 503, § 1, 67 Stat. 587.)
CODIFICATION
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.

§ 828a. Definitions
The words used in this subchapter shall have
the same meanings ascribed to them in this
chapter.
(Aug. 15, 1953, ch. 503, § 2, 67 Stat. 587.)
CODIFICATION
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.

Page 1319

TITLE 16—CONSERVATION

§ 828b. Exemption from formula, books and
records, and project cost statement requirements; annual charges

Sec.

Section 807 of this title pertaining to the taking over by the United States of any project
upon or after the expiration of a license, and
sections 825 and 825a of this title requiring certain records and accounting procedures and section 797(b) of this title requiring the preparation
and filing of the statement of actual legitimate
original cost of a project, shall not be applicable
to any project owned by a State or municipality, and such rights and requirements shall not
exist under any license heretofore or hereafter
granted to any State or municipality. The Secretary of Energy in determining the amount of
annual charges applicable to any such project
may determine the annual charges with reference to the actual cost of services incurred by
the Secretary with respect to the project.

831c–2.

(Aug. 15, 1953, ch. 503, § 3, 67 Stat. 587; Pub. L.
86–124, July 31, 1959, 73 Stat. 271; Pub. L. 95–91,
title III, § 301(b), Aug. 4, 1977, 91 Stat. 578.)

831c–1.

831c–3.
831d.
831e.
831f.
831g.
831h.
831h–1.
831h–2.
831h–3.
831i.
831j.

CODIFICATION
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.
AMENDMENTS
1959—Pub. L. 86–124 struck out ‘‘except that the provisions of sections 797(b) and 807 of this title shall continue to be applicable to any license issued for a hydroelectric development in the International Rapids section of the Saint Lawrence River’’ in first sentence.
TRANSFER OF FUNCTIONS
‘‘Secretary of Energy’’ and ‘‘Secretary’’ substituted
in text for ‘‘Federal Power Commission’’ and ‘‘Commission’’, respectively, pursuant to Pub. L. 95–91, § 301(b),
which is classified to section 7151(b) of Title 42, The
Public Health and Welfare.
Federal Power Commission terminated and its functions, personnel, property, funds, etc., transferred to
Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by
sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title
42.

§ 828c. Applicability of this subchapter
Except as herein provided, the provisions of
this subchapter shall not be construed as repealing or affecting any of the provisions of this
chapter.

831k.
831k–1.
831l.

831m.

831m–1.
831n.
831n–1.
831n–2.
831n–3.
831n–4.
831o.
831p.
831q.
831r.

(Aug. 15, 1953, ch. 503, § 4, 67 Stat. 587.)
CODIFICATION

831s.

Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.

831t.
831u.

CHAPTER 12A—TENNESSEE VALLEY
AUTHORITY

831v.
831w.

Sec.

831.
831a.
831b.

831b–1.
831c.

Creation; short title.
Membership, operation, and duties of the
Board of Directors.
Officers and employees; wages of laborers and
mechanics; application of employees’ compensation provisions.
Acceptance of services of volunteers.
Corporate powers generally; eminent domain;
construction of dams, transmission lines,
etc.

831x.
831y.
831y–1.

831z.

§ 828c

Bridges endangered or damaged by dams, etc.;
compensation of and contracts with owner
for protection, replacements, etc.
Civil actions for injury or loss of property or
personal injury or death.
Law enforcement.
Directors; maintenance and operation of
plant for production, sale, and distribution
of fertilizer and power.
Officers and employees; nonpolitical appointment; removal for violation.
Control of plants and property vested in Corporation; transfer of other property to Corporation.
Principal office of Corporation; books; directors’ oath.
Annual financial statement; purchases and
contracts; audit by Comptroller General.
Operation of dams primarily for promotion of
navigation and controlling floods; generation and sale of electricity.
Repealed.
Recreational access.
Sale of surplus power; preferences; experimental work; acquisition of existing electric facilities.
Equitable distribution of surplus power
among States and municipalities; improvement in production of fertilizer.
Transmission lines; construction or lease;
sale of power over other than Government
lines; rates when sold for resale at profit.
Extension of credit to States, municipalities
and nonprofit organizations to assist in operation of existing facilities.
Financial assistance to States and local governments in lieu of taxation; apportionment; limitation on contracts for sale of
power to municipalities; report to Congress.
Allocation and charge of value and cost of
plants to particular objects; cost accounting; reports of costs of operation; sale of
surplus power at profit.
Tennessee Valley Authority least-cost planning program.
Bonds for future construction; amount,
terms, and conditions.
Bonds to carry out provisions of section
831k–1; amount, terms, and conditions.
Bonds; limitation of issuance under sections
831n and 831n–1.
Use of funds; limitation of issuance.
Bonds for financing power program.
Completion of unfinished plants authorized.
Repealed.
Eminent domain; contracts for relocation of
railroads, highways, industrial plants, etc.
Patents; access to Patent and Trademark Office and right to copy patents; compensation to patentees.
Possession by Government in time of war;
damages to contract holders.
Offenses; fines and punishment.
Surveys; cooperation with States or other
agencies.
Legislation to carry out purposes of chapter;
recommendation by President.
Acquisition of real or personal property; payment by delivery of power; sale or lease of
vacant land for industrial purposes.
Condemnation proceedings; institution by
Corporation; venue.
Net proceeds over expense payable into Treasury.
Approval of plans by Board as condition
precedent to construction and operation; restraining action without approval; other
laws unaffected.
Authorization of appropriations.