US (United States) Code. Title 16. Chapter 12H: Pacific Northwest electric power planning and conservation

Codificación normativa de EEUU (Estados Unidos) Legislación Federal estadounidense # Conservation

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-CITE-

16 USC CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER

PLANNING AND CONSERVATION 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

.

-HEAD-

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-MISC1-

Sec.

839. Congressional declaration of purpose.

839a. Definitions.

839b. Regional planning and participation.

(a) Pacific Northwest Electric Power and Conservation

Planning Council; establishment and operation

as regional agency.

(b) Alternative establishment of Council as Federal

agency.

(c) Organization and operation of Council.

(d) Regional conservation and electric power plan.

(e) Plan priorities and requisite features; studies.

(f) Model conservation standards; surcharges.

(g) Public information; consultation; contracts and

technical assistance.

(h) Fish and wildlife.

(i) Review.

(j) Requests by Council for action.

(k) Review and analysis of 5-year period of Council

activities.

839c. Sale of power.

(a) Preferences and priorities.

(b) Sales to public bodies, cooperatives, and Federal

agency customers.

(c) Purchase and exchange sales.

(d) Sales to existing direct service industrial

customers.

(e) Contractual entitlements to firm power.

(f) Surplus power.

(g) Long-term contracts.

839d. Conservation and resource acquisition.

(a) Conservation measures; resources.

(b) Acquisition of resources.

(c) Procedure for acquiring major resources,

implementing conservation measures, paying or

reimbursing investigation and preconstruction

expenses, or granting billing credits.

(d) Acquisition of resources other than major

resources.

(e) Effectuation of priorities; use of customers and

local entities.

(f) Agreements; investigation and initial development

of renewable resources other than major

resources; reimbursement of investigation and

preconstruction expenses.

(g) Environmental impact statements.

(h) Billing credits.

(i) Contracts.

(j) Obligations not to be considered general

obligations of United States or secured by full

faith and credit of United States.

(k) Equitable distribution of benefits.

(l) Investigations.

(m) Offering of reasonable shares to each Pacific

Northwest electric utility.

839d-1. Federal projects in Pacific Northwest.

839e. Rates.

(a) Establishment; periodic review and revision;

confirmation and approval by Federal Energy

Regulatory Commission.

(b) General application of rates to meet general

requirements.

(c) Rates applicable to direct service industrial

customers.

(d) Discount rates; special rates.

(e) Uniform rates; rates for sale of peaking

capacity; time-of-day, seasonal, and other

rates.

(f) Basis for rates.

(g) Allocation of costs and benefits.

(h) Surcharges.

(i) Procedures.

(j) Cost figures to be indicated on rate schedules

and power billings.

(k) Statutory basis for procedures used in

establishing rates or rate schedules.

(l) Rates for sales outside United States;

negotiations.

(m) Impact aid payments; formula.

(n) Limiting the inclusion of costs of protection of,

mitigation of damage to, and enhancement of

fish and wildlife, within rates charged by the

Bonneville Power Administration, to the rate

period in which costs are incurred.

839f. Administrative provisions.

(a) Contract authority.

(b) Executive and administrative functions of

Administrator of Bonneville Power

Administration; sound and businesslike

implementation of chapter.

(c) Limitations and conditions on contracts for sale

or exchange of electric power for use outside

Pacific Northwest.

(d) Disposition of power which does not increase

amount of firm power Administrator is obligated

to provide to any customer.

(e) Judicial review; suits.

(f) Tax treatment of interest on governmental

obligations.

(g) Review of rates for sale of power to

Administrator by investor-owned utility

customers.

(h) Companies which own or operate facilities for the

generation of electricity primarily for sale to

Administrator.

(i) Electric power acquisition or disposition.

(j) Retail rate designs which encourage conservation

and efficient use of electric energy,

installation of consumer-owned renewable

resources, and rate research and development.

(k) Executive position for conservation and renewable

resources.

839g. Savings provisions.

(a) Rights of States and political subdivisions of

States.

(b) Rights and obligations under existing contracts.

(c) Statutory preferences and priorities of public

bodies and cooperatives in sale of federally

generated power.

(d) Contractual rights under provisions later found

to be unconstitutional.

(e) Treaty and other rights of Indian tribes.

(f) Reservation of electric power for Montana; Hungry

Horse and Libby Dams and Reservoirs.

(g) Rights of States to prohibit recovery of resource

construction costs through retail rates.

(h) Water appropriations.

(i) Existing Federal licenses, permits, and

certificates.

839h. Separability.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 838i, 838k, 839d-1 of

this title; title 26 section 149; title 33 section 2286.

-CITE-

16 USC Sec. 839 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839. Congressional declaration of purpose

-STATUTE-

The purposes of this chapter, together with the provisions of

other laws applicable to the Federal Columbia River Power System,

are all intended to be construed in a consistent manner. Such

purposes are also intended to be construed in a manner consistent

with applicable environmental laws. Such purposes are:

(1) to encourage, through the unique opportunity provided by

the Federal Columbia River Power System -

(A) conservation and efficiency in the use of electric power,

and

(B) the development of renewable resources within the Pacific

Northwest;

(2) to assure the Pacific Northwest of an adequate, efficient,

economical, and reliable power supply;

(3) to provide for the participation and consultation of the

Pacific Northwest States, local governments, consumers,

customers, users of the Columbia River System (including Federal

and State fish and wildlife agencies and appropriate Indian

tribes), and the public at large within the region in -

(A) the development of regional plans and programs related to

energy conservation, renewable resources, other resources, and

protecting, mitigating and enhancing fish and wildlife

resources,

(B) facilitating the orderly planning of the region's power

system, and

(C) providing environmental quality;

(4) to provide that the customers of the Bonneville Power

Administration and their consumers continue to pay all costs

necessary to produce, transmit, and conserve resources to meet

the region's electric power requirements, including the

amortization on a current basis of the Federal investment in the

Federal Columbia River Power System;

(5) to insure, subject to the provisions of this chapter -

(A) that the authorities and responsibilities of State and

local governments, electric utility systems, water management

agencies, and other non-Federal entities for the regulation,

planning, conservation, supply, distribution, and use of

electric power shall be construed to be maintained, and

(B) that Congress intends that this chapter not be construed

to limit or restrict the ability of customers to take actions

in accordance with other applicable provisions of Federal or

State law, including, but not limited to, actions to plan,

develop, and operate resources and to achieve conservation,

without regard to this chapter; and

(6) to protect, mitigate and enhance the fish and wildlife,

including related spawning grounds and habitat, of the Columbia

River and its tributaries, particularly anadromous fish which are

of significant importance to the social and economic well-being

of the Pacific Northwest and the Nation and which are dependent

on suitable environmental conditions substantially obtainable

from the management and operation of the Federal Columbia River

Power System and other power generating facilities on the

Columbia River and its tributaries.

-SOURCE-

(Pub. L. 96-501, Sec. 2, Dec. 5, 1980, 94 Stat. 2697.)

-REFTEXT-

REFERENCES IN TEXT

This chapter, referred to in provision preceding par. (1) and in

par. (5), was in the original ''this Act'', meaning Pub. L. 96-501,

Dec. 5, 1980, 94 Stat. 2697, known as the Pacific Northwest

Electric Power Planning and Conservation Act, which enacted this

chapter, amended sections 837, 838i, and 838k of this title, and

enacted provisions set out as notes under this section. For

complete classification of this Act to the Code, see Short Title

note set out below and Tables.

-MISC2-

EFFECTIVE DATE

Section 11 of Pub. L. 96-501 provided that: ''This Act (enacting

this chapter, amending sections 837, 838i, and 838k of this title,

and enacting provisions set out as notes under this section) shall

be effective on the date of enactment (Dec. 5, 1980), or October 1,

1980, whichever is later. For purposes of this Act, the term 'date

of the enactment of this Act' means such date of enactment (Dec. 5,

1980) or October 1, 1980, whichever is later.''

SHORT TITLE

Section 1 of Pub. L. 96-501 provided in part that: ''This Act

(enacting this chapter, amending sections 837, 838i, and 838k of

this title, and enacting provisions set out as notes under this

section) may be cited as the 'Pacific Northwest Electric Power

Planning and Conservation Act'.''

-CITE-

16 USC Sec. 839a 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839a. Definitions

-STATUTE-

As used in this chapter, the term -

(1) ''Acquire'' and ''acquisition'' shall not be construed as

authorizing the Administrator to construct, or have ownership of,

under this chapter or any other law, any electric generating

facility.

(2) ''Administrator'' means the Administrator of the Bonneville

Power Administration.

(3) ''Conservation'' means any reduction in electric power

consumption as a result of increases in the efficiency of energy

use, production, or distribution.

(4)(A) ''Cost-effective'', when applied to any measure or

resource referred to in this chapter, means that such measure or

resource must be forecast -

(i) to be reliable and available within the time it is

needed, and

(ii) to meet or reduce the electric power demand, as

determined by the Council or the Administrator, as appropriate,

of the Consumers of the customers at an estimated incremental

system cost no greater than that of the least-cost similarly

reliable and available alternative measure or resource, or any

combination thereof.

(B) For purposes of this paragraph, the term ''system cost''

means an estimate of all direct costs of a measure or resource

over its effective life, including, if applicable, the cost of

distribution and transmission to the consumer and, among other

factors, waste disposal costs, end-of-cycle costs, and fuel costs

(including projected increases), and such quantifiable

environmental costs and benefits as the Administrator determines,

on the basis of a methodology developed by the Council as part of

the plan, or in the absence of the plan by the Administrator, are

directly attributable to such measure or resource.

(C) In determining the amount of power that a conservation

measure or other resource may be expected to save or to produce,

the Council or the Administrator, as the case may be, shall take

into account projected realization factors and plant factors,

including appropriate historical experience with similar measures

or resources.

(D) For purposes of this paragraph, the ''estimated incremental

system cost'' of any conservation measure or resource shall not

be treated as greater than that of any nonconservation measure or

resource unless the incremental system cost of such conservation

measure or resource is in excess of 110 per centum of the

incremental system cost of the nonconservation measure or

resource.

(5) ''Consumer'' means any end user of electric power.

(6) ''Council'' means, unless otherwise specifically provided,

the members appointed to the Pacific Northwest Electric Power and

Conservation Planning Council established pursuant to section

839b of this title.

(7) ''Customer'' means anyone who contracts for the purchase of

power from the Administrator pursuant to this chapter.

(8) ''Direct service industrial customer'' means an industrial

customer that contracts for the purchase of power from the

Administrator for direct consumption.

(9) ''Electric power'' means electric peaking capacity, or

electric energy, or both.

(10) ''Federal base system resources'' means -

(A) the Federal Columbia River Power System hydroelectric

projects;

(B) resources acquired by the Administrator under long-term

contracts in force on December 5, 1980; and

(C) resources acquired by the Administrator in an amount

necessary to replace reductions in capability of the resources

referred to in subparagraphs (A) and (B) of this paragraph.

(11) ''Indian tribe'' means any Indian tribe or band which is

located in whole or in part in the region and which has a

governing body which is recognized by the Secretary of the

Interior.

(12) ''Major resource'' means any resource that -

(A) has a planned capability greater than fifty average

megawatts, and

(B) if acquired by the Administrator, is acquired for a

period of more than five years.

Such term does not include any resource acquired pursuant to

section 838i(b)(6) of this title.

(13) ''New large single load'' means any load associated with a

new facility, an existing facility, or an expansion of an

existing facility -

(A) which is not contracted for, or committed to, as

determined by the Administrator, by a public body, cooperative,

investor-owned utility, or Federal agency customer prior to

September 1, 1979, and

(B) which will result in an increase in power requirements of

such customer of ten average megawatts or more in any

consecutive twelve-month period.

(14) ''Pacific Northwest'', ''region'', or ''regional'' means -

(A) the area consisting of the States of Oregon, Washington,

and Idaho, the portion of the State of Montana west of the

Continental Divide, and such portions of the States of Nevada,

Utah, and Wyoming as are within the Columbia River drainage

basin; and

(B) any contiguous areas, not in excess of seventy-five air

miles from the area referred to in subparagraph (A), which are

a part of the service area of a rural electric cooperative

customer served by the Administrator on December 5, 1980, which

has a distribution system from which it serves both within and

without such region.

(15) ''Plan'' means the Regional Electric Power and

conservation plan (including any amendments thereto) adopted

pursuant to this chapter and such plan shall apply to actions of

the Administrator as specified in this chapter.

(16) ''Renewable resource'' means a resource which utilizes

solar, wind, hydro, geothermal, biomass, or similar sources of

energy and which either is used for electric power generation or

will reduce the electric power requirements of a consumer,

including by direct application.

(17) ''Reserves'' means the electric power needed to avert

particular planning or operating shortages for the benefit of

firm power customers of the Administrator and available to the

Administrator (A) from resources or (B) from rights to interrupt,

curtail, or otherwise withdraw, as provided by specific contract

provisions, portions of the electric power supplied to customers.

(18) ''Residential use'' or ''residential load'' means all

usual residential, apartment, seasonal dwelling and farm

electrical loads or uses, but only the first four hundred

horsepower during any monthly billing period of farm irrigation

and pumping for any farm.

(19) ''Resource'' means -

(A) electric power, including the actual or planned electric

power capability of generating facilities, or

(B) actual or planned load reduction resulting from direct

application of a renewable energy resource by a consumer, or

from a conservation measure.

(20) ''Secretary'' means the Secretary of Energy.

-SOURCE-

(Pub. L. 96-501, Sec. 3, Dec. 5, 1980, 94 Stat. 2698.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 824k, 839b, 839d-1 of

this title.

-CITE-

16 USC Sec. 839b 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839b. Regional planning and participation

-STATUTE-

(a) Pacific Northwest Electric Power and Conservation Planning

Council; establishment and operation as regional agency

(1) The purposes of this section are to provide for the prompt

establishment and effective operation of the Pacific Northwest

Electric Power and Conservation Planning Council, to further the

purposes of this chapter by the Council promptly preparing and

adopting (A) a regional conservation and electric power plan and

(B) a program to protect, mitigate, and enhance fish and wildlife,

and to otherwise expeditiously and effectively carry out the

Council's responsibilities and functions under this chapter.

(2) To achieve such purposes and facilitate cooperation among the

States of Idaho, Montana, Oregon, and Washington, and with the

Bonneville Power Administration, the consent of Congress is given

for an agreement described in this paragraph and not in conflict

with this chapter, pursuant to which -

(A) there shall be established a regional agency known as the

''Pacific Northwest Electric Power and Conservation Planning

Council'' which (i) shall have its offices in the Pacific

Northwest, (ii) shall carry out its functions and

responsibilities in accordance with the provisions of this

chapter, (iii) shall continue in force and effect in accordance

with the provisions of this chapter, and (iv) except as otherwise

provided in this chapter, shall not be considered an agency or

instrumentality of the United States for the purpose of any

Federal law; and

(B) two persons from each State may be appointed, subject to

the applicable laws of each such State, to undertake the

functions and duties of members of the Council.

The State may fill any vacancy occurring prior to the expiration of

the term of any member. The appointment of six initial members,

subject to applicable State law, by June 30, 1981, by at least

three of such States shall constitute an agreement by the States

establishing the Council and such agreement is hereby consented to

by the Congress. Upon request of the Governors of two of the

States, the Secretary shall extend the June 30, 1981, date for six

additional months to provide more time for the States to make such

appointments.

(3) Except as otherwise provided by State law, each member

appointed to the Council shall serve for a term of three years,

except that, with respect to members initially appointed, each

Governor shall designate one member to serve a term of two years

and one member to serve a term of three years. The members of the

Council shall select from among themselves a chairman. The members

and officers and employees of the Council shall not be deemed to be

officers or employees of the United States for any purpose. The

Council shall appoint, fix compensation, assign and delegate duties

to such executive and additional personnel as the Council deems

necessary to fulfill its functions under this chapter, taking into

account such information and analyses as are, or are likely to be,

available from other sources pursuant to provisions of this

chapter. The compensation of the members shall be fixed by State

law. The compensation of the members and the officers shall not

exceed the rate prescribed for Federal officers and positions at

step 1 of level GS-18 of the General Schedule.

(4) For the purpose of providing a uniform system of laws, in

addition to this chapter, applicable to the Council relating to the

making of contracts, conflicts-of-interest, financial disclosure,

open meetings of the Council, advisory committees, disclosure of

information, judicial review of Council functions and actions under

this chapter, and related matters, the Federal laws applicable to

such matters in the case of the Bonneville Power Administration

shall apply to the Council to the extent appropriate, except that

with respect to open meetings, the Federal laws applicable to open

meetings in the case of the Federal Energy Regulatory Commission

shall apply to the Council to the extent appropriate. In applying

the Federal laws applicable to financial disclosure under the

preceding sentence, such laws shall be applied to members of the

Council without regard to the duration of their service on the

Council or the amount of compensation received for such service.

No contract, obligation, or other action of the Council shall be

construed as an obligation of the United States or an obligation

secured by the full faith and credit of the United States. For the

purpose of judicial review of any action of the Council or

challenging any provision of this chapter relating to functions and

responsibilities of the Council, notwithstanding any other

provision of law, the courts of the United States shall have

exclusive jurisdiction of any such review.

(b) Alternative establishment of Council as Federal agency

(1) If the Council is not established and its members are not

timely appointed in accordance with subsection (a) of this section,

or if, at any time after such Council is established and its

members are appointed in accordance with subsection (a) of this

section -

(A) any provision of this chapter relating to the establishment

of the Council or to any substantial function or responsibility

of the Council (including any function or responsibility under

subsection (d) or (h) of this section or under section 839d(c) of

this title) is held to be unlawful by a final determination of

any Federal court, or

(B) the plan or any program adopted by such Council under this

section is held by a final determination of such a court to be

ineffective by reason of subsection (a)(2)(B) of this section,

the Secretary shall establish the Council pursuant to this

subsection as a Federal agency. The Secretary shall promptly

publish a notice thereof in the Federal Register and notify the

Governors of each of the States referred to in subsection (a) of

this section.

(2) As soon as practicable, but not more than thirty days after

the publication of the notice referred to in paragraph (1) of this

subsection, and thereafter within forty-five days after a vacancy

occurs, the governors of the States of Washington, Oregon, Idaho,

and Montana may each (under applicable State laws, if any) provide

to the Secretary a list of nominations from such State for each of

the State's positions to be selected for such Council. The

Secretary may extend this time an additional thirty days. The list

shall include at least two persons for each such position. The

list shall include such information about such nominees as the

Secretary may request. The Secretary shall appoint the Council

members from each Governor's list of nominations for each State's

positions, except that the Secretary may decline to appoint for any

reason any of a Governor's nominees for a position and shall so

notify the Governor. The Governor may thereafter make successive

nominations within forty-five days of receipt of such notice until

nominees acceptable to the Secretary are appointed for each

position. In the event the Governor of any such State fails to

make the required nominations for any State position on such

Council within the time specified for such nominations, the

Secretary shall select from such State and appoint the Council

member or members for such position. The members of the Council

shall select from among themselves one member of the Council as

Chairman.

(3) The members of the Council established by this subsection who

are not employed by the United States or a State shall receive

compensation at a rate equal to the rate prescribed for offices and

positions at level GS-18 of the General Schedule for each day such

members are engaged in the actual performance of duties as members

of such Council, except that no such member may be paid more in any

calendar year than an officer or employee at step 1 of level GS-18

is paid during such year. Members of such Council shall be

considered officers or employees of the United States for purposes

of title II of the Ethics in Government Act of 1978 (5 U.S.C. app.)

(FOOTNOTE 1) and shall also be allowed travel expenses, including

per diem in lieu of subsistence, in the same manner as persons

employed intermittently in Government service are allowed expenses

under section 5703 of title 5. Such Council may appoint, and assign

duties to, an executive director who shall serve at the pleasure of

such Council and who shall be compensated at the rate established

for GS-18 of the General Schedule. The executive director shall

exercise the powers and duties delegated to such director by such

Council, including the power to appoint and fix compensation of

additional personnel in accordance with applicable Federal law to

carry out the functions and responsibilities of such Council.

(FOOTNOTE 1) See References in Text note below.

(4) When a Council is established under this subsection after a

Council was established pursuant to subsection (a) of this section,

the Secretary shall provide, to the greatest extent feasible, for

the transfer to the Council established by this subsection of all

funds, books, papers, documents, equipment, and other matters in

order to facilitate the Council's capability to achieve the

requirements of subsections (d) and (h) of this section. In order

to carry out its functions and responsibilities under this chapter

expeditiously, the Council shall take into consideration any

actions of the Council under subsection (a) of this section and may

review, modify, or confirm such actions without further

proceedings.

(5)(A) At any time beginning one year after the plan referred to

in such subsection (d) of this section and the program referred to

in such subsection (h) of this section are both finally adopted in

accordance with this chapter, the Council established pursuant to

this subsection shall be terminated by the Secretary 90 days after

the Governors of three of the States referred to in this subsection

jointly provide for any reason to the Secretary a written request

for such termination. Except as provided in Subparagraph (B), upon

such termination all functions and responsibilities of the Council

under this chapter shall also terminate.

(B) Upon such termination of the Council, the functions and

responsibilities of the Council set forth in subsection (h) of this

section shall be transferred to, and continue to be funded and

carried out, jointly, by the Administrator, the Secretary of the

Interior, and the Administrator of the National Marine Fisheries

Service, in the same manner and to the same extent as required by

such subsection and in cooperation with the Federal and the

region's State fish and wildlife agencies and Indian tribes

referred to in subsection (h) of this section and the Secretary

shall provide for the transfer to them of all records, books,

documents, funds, and personnel of such Council that relate to

subsection (h) matters. In order to carry out such functions and

responsibilities expeditiously, the Administrator, the Secretary of

the Interior, and the Administrator of the National Marine

Fisheries Service shall take into consideration any actions of the

Council under this subsection, and may review, modify, or confirm

such actions without further proceedings. In the event the Council

is terminated pursuant to this paragraph, whenever any action of

the Administrator requires any approval or other action by the

Council, the Administrator may take such action without such

approval or action, except that the Administrator may not implement

any proposal to acquire a major generating resource or to grant

billing credits involving a major generating resource until the

expenditure of funds for that purpose is specifically authorized by

Act of Congress enacted after such termination.

(c) Organization and operation of Council

(1) The provisions of this subsection shall, except as

specifically provided in this subsection, apply to the Council

established pursuant to either subsection (a) or (b) of this

section.

(2) A majority of the members of the Council shall constitute a

quorum. Except as otherwise provided specifically in this chapter,

all actions and decisions of the Council shall be by majority vote

of the members present and voting. The plan or any part thereof

and any amendment thereto shall not be approved unless such plan or

amendment receives the votes of -

(A) a majority of the members appointed to the Council,

including the vote of at least one member from each State with

members on the Council; or

(B) at least six members of the Council.

(3) The Council shall meet at the call of the Chairman or upon

the request of any three members of the Council. If any member of

the Council disagrees with respect to any matter transmitted to any

Federal or State official or any other person or wishes to express

additional views concerning such matter, such member may submit a

statement to accompany such matter setting forth the reasons for

such disagreement or views.

(4) The Council shall determine its organization and prescribe

its practices and procedures for carrying out its functions and

responsibilities under this chapter. The Council shall make

available to the public a statement of its organization, practices,

and procedures, and make available to the public its annual work

program budget at the time the President submits his annual budget

to Congress.

(5) Upon request of the Council established pursuant to

subsection (b) of this section, the head of any Federal agency is

authorized to detail or assign to the Council, on a reimbursable

basis, any of the personnel of such agency to assist the Council in

the performance of its functions under this chapter.

(6) At the Council's request the Administrator of the General

Services Administration shall furnish the Council established

pursuant to subsection (b) of this section with such offices,

equipment, supplies, and services in the same manner and to the

same extent as such Administrator is authorized to furnish to any

other Federal agency or instrumentality such offices, supplies,

equipment, and services.

(7) Upon the request of the Congress or any committee thereof,

the Council shall promptly provide to the Congress, or to such

committee, any record, report, document, material, and other

information which is in the possession of the Council.

(8) To obtain such information and advice as the Council

determines to be necessary or appropriate to carry out its

functions and responsibilities pursuant to this chapter, the

Council shall, to the greatest extent practicable, solicit

engineering, economic, social, environmental, and other technical

studies from customers of the Administrator and from other bodies

or organizations in the region with particular expertise.

(9) The Administrator and other Federal agencies, to the extent

authorized by other provisions of law, shall furnish the Council

all information requested by the Council as necessary for

performance of its functions, subject to such requirements of law

concerning trade secrets and proprietary data as may be applicable.

(10)(A) At the request of the Council, the Administrator shall

pay from funds available to the Administrator the compensation and

other expenses of the Council as are authorized by this chapter,

including the reimbursement of those States with members on the

Council for services and personnel to assist in preparing a plan

pursuant to subsection (d) of this section and a program pursuant

to subsection (h) of this section, as the Council determines are

necessary or appropriate for the performance of its functions and

responsibilities. Such payments shall be included by the

Administrator in his annual budgets submitted to Congress pursuant

to the Federal Columbia River Transmission System Act (16 U.S.C.

838 et seq.) and shall be subject to the requirements of that Act,

including the audit requirements of section 11(d) of such Act (16

U.S.C. 838i(d)). The records, reports, and other documents of the

Council shall be available to the Comptroller General for review in

connection with such audit or other review and examination by the

Comptroller General pursuant to other provisions of law applicable

to the Comptroller General. Funds provided by the Administrator for

such payments shall not exceed annually an amount equal to 0.02

mill multiplied by the kilowatt hours of firm power forecast to be

sold by the Administrator during the year to be funded. In order

to assist the Council's initial organization, the Administrator

after December 5, 1980, shall promptly prepare and propose an

amended annual budget to expedite payment for Council activities.

(B) Notwithstanding the limitation contained in the fourth

sentence of subparagraph (A) of this paragraph, upon an annual

showing by the Council that such limitation will not permit the

Council to carry out its functions and responsibilities under this

chapter the Administrator may raise such limit up to any amount not

in excess of 0.10 mill multiplied by the kilowatt hours of firm

power forecast to be sold by the Administrator during the year to

be funded.

(11) The Council shall establish a voluntary scientific and

statistical advisory committee to assist in the development,

collection, and evaluation of such statistical, biological,

economic, social, environmental, and other scientific information

as is relevant to the Council's development and amendment of a

regional conservation and electric power plan.

(12) The Council may establish such other voluntary advisory

committees as it determines are necessary or appropriate to assist

it in carrying out its functions and responsibilities under this

chapter.

(13) The Council shall ensure that the membership for any

advisory committee established or formed pursuant to this section

shall, to the extent feasible, include representatives of, and seek

the advice of, the Federal, and the various regional, State, local,

and Indian Tribal Governments, consumer groups, and customers.

(d) Regional conservation and electric power plan

(1) Within two years after the Council is established and the

members are appointed pursuant to subsection (a) or (b) of this

section, the Council shall prepare, adopt, and promptly transmit to

the Administrator a regional conservation and electric power plan.

The adopted plan, or any portion thereof, may be amended from time

to time, and shall be reviewed by the Council not less frequently

than once every five years. Prior to such adoption, public

hearings shall be held in each Council member's State on the plan

or substantial, nontechnical amendments to the plan proposed by the

Council for adoption. A public hearing shall also be held in any

other State of the region on the plan or amendments thereto, if the

Council determines that the plan or amendments would likely have a

substantial impact on that State in terms of major resources which

may be developed in that State and which the Administrator may seek

to acquire. Action of the Council under this subsection concerning

such hearings shall be subject to section 553 of title 5 and such

procedure as the Council shall adopt.

(2) Following adoption of the plan and any amendment thereto, all

actions of the Administrator pursuant to section 839d of this title

shall be consistent with the plan and any amendment thereto, except

as otherwise specifically provided in this chapter.

(e) Plan priorities and requisite features; studies

(1) The plan shall, as provided in this paragraph, give priority

to resources which the Council determines to be cost-effective.

Priority shall be given: first, to conservation; second, to

renewable resources; third, to generating resources utilizing waste

heat or generating resources of high fuel conversion efficiency;

and fourth, to all other resources.

(2) The plan shall set forth a general scheme for implementing

conservation measures and developing resources pursuant to section

839d of this title to reduce or meet the Administrator's

obligations with due consideration by the Council for (A)

environmental quality, (B) compatibility with the existing regional

power system, (C) protection, mitigation, and enhancement of fish

and wildlife and related spawning grounds and habitat, including

sufficient quantities and qualities of flows for successful

migration, survival, and propagation of anadromous fish, and (D)

other criteria which may be set forth in the plan.

(3) To accomplish the priorities established by this subsection,

the plan shall include the following elements which shall be set

forth in such detail as the Council determines to be appropriate:

(A) an energy conservation program to be implemented under this

chapter, including, but not limited to, model conservation

standards;

(B) recommendation for research and development;

(C) a methodology for determining quantifiable environmental

costs and benefits under section 839a(4) of this title;

(D) a demand forecast of at least twenty years (developed in

consultation with the Administrator, the customers, the States,

including State agencies with ratemaking authority over electric

utilities, and the public, in such manner as the Council deems

appropriate) and a forecast of power resources estimated by the

Council to be required to meet the Administrator's obligations

and the portion of such obligations the Council determines can be

met by resources in each of the priority categories referred to

in paragraph (1) of this subsection which forecast (i) shall

include regional reliability and reserve requirements, (ii) shall

take into account the effect, if any, of the requirements of

subsection (h) of this section on the availability of resources

to the Administrator, and (iii) shall include the approximate

amounts of power the Council recommends should be acquired by the

Administrator on a long-term basis and may include, to the extent

practicable, an estimate of the types of resources from which

such power should be acquired;

(E) an analysis of reserve and reliability requirements and

cost-effective methods of providing reserves designed to insure

adequate electric power at the lowest probable cost;

(F) the program adopted pursuant to subsection (h) of this

section; and

(G) if the Council recommends surcharges pursuant to subsection

(f) of this section, a methodology for calculating such

surcharges.

(4) The Council, taking into consideration the requirement that

it devote its principal efforts to carrying out its

responsibilities under subsections (d) and (h) of this section,

shall undertake studies of conservation measures reasonably

available to direct service industrial customers and other major

consumers of electric power within the region and make an analysis

of the estimated reduction in energy use which would result from

the implementation of such measures as rapidly as possible,

consistent with sound business practices. The Council shall

consult with such customers and consumers in the conduct of such

studies.

(f) Model conservation standards; surcharges

(1) Model conservation standards to be included in the plan shall

include, but not be limited to, standards applicable to (A) new and

existing structures, (b) utility, customer, and governmental

conservation programs, and (C) other consumer actions for achieving

conservation. Model conservation standards shall reflect

geographic and climatic differences within the region and other

appropriate considerations, and shall be designed to produce all

power savings that are cost-effective for the region and

economically feasible for consumers, taking into account financial

assistance made available to consumers under section 839d(a) of

this title. These model conservation standards shall be adopted by

the Council and included in the plan after consultation, in such

manner as the Council deems appropriate, with the Administrator,

States, and political subdivisions, customers of the Administrator,

and the public.

(2) The Council by a majority vote of the members of the Council

is authorized to recommend to the Administrator a surcharge and the

Administrator may thereafter impose such a surcharge, in accordance

with the methodology provided in the plan, on customers for those

portions of their loads within the region that are within States or

political subdivisions which have not, or on the Administrator's

customers which have not, implemented conservation measures that

achieve energy savings which the Administrator determines are

comparable to those which would be obtained under such standards.

Such surcharges shall be established to recover such additional

costs as the Administrator determines will be incurred because such

projected energy savings attributable to such conservation measures

have not been achieved, but in no case may such surcharges be less

than 10 per centum or more than 50 per centum of the

Administrator's applicable rates for such load or portion thereof.

(g) Public information; consultation; contracts and technical

assistance

(1) To insure widespread public involvement in the formulation of

regional power policies, the Council and Administrator shall

maintain comprehensive programs to -

(A) inform the Pacific Northwest public of major regional power

issues,

(B) obtain public views concerning major regional power issues,

and

(C) secure advice and consultation from the Administrator's

customers and others.

(2) In carrying out the provisions of this section, the Council

and the Administrator shall -

(A) consult with the Administrator's customers;

(B) include the comments of such customers in the record of the

Council's proceedings; and

(C) recognize and not abridge the authorities of State and

local governments, electric utility systems, and other

non-Federal entities responsible to the people of the Pacific

Northwest for the planning, conservation, supply, distribution,

and use of electric power and the operation of electric

generating facilities.

(3) In the preparation, adoption, and implementation of the plan,

the Council and the Administrator shall encourage the cooperation,

participation, and assistance of appropriate Federal agencies,

State entities, State political subdivisions, and Indian tribes.

The Council and the Administrator are authorized to contract, in

accordance with applicable law, with such agencies entities,

tribes, and subdivisions individually, in groups, or through

associations thereof to (A) investigate possible measures to be

included in the plan, (B) provide public involvement and

information regarding a proposed plan or amendment thereto, and (C)

provide services which will assist in the implementation of the

plan. In order to assist in the implementation of the plan,

particularly conservation, renewable resource, and fish and

wildlife activities, the Administrator, when requested and subject

to available funds, may provide technical assistance in

establishing conservation, renewable resource, and fish and

wildlife objectives by individual States or subdivisions thereof or

Indian tribes. Such objectives, if adopted by a State or

subdivision thereof or Indian tribes, may be submitted to the

Council and the Administrator for review, and upon approval by the

Council, may be incorporated as part of the plan.

(h) Fish and wildlife

(1)(A) The Council shall promptly develop and adopt, pursuant to

this subsection, a program to protect, mitigate, and enhance fish

and wildlife, including related spawning grounds and habitat, on

the Columbia River and its tributaries. Because of the unique

history, problems, and opportunities presented by the development

and operation of hydroelectric facilities on the Columbia River and

its tributaries, the program, to the greatest extent possible,

shall be designed to deal with that river and its tributaries as a

system.

(B) This subsection shall be applicable solely to fish and

wildlife, including related spawning grounds and habitat, located

on the Columbia River and its tributaries. Nothing in this

subsection shall alter, modify, or affect in any way the laws

applicable to rivers or river systems, including electric power

facilities related thereto, other than the Columbia River and its

tributaries, or affect the rights and obligations of any agency,

entity, or person under such laws.

(2) The Council shall request, in writing, promptly after the

Council is established under either subsection (a) or (b) of this

section and prior to the development or review of the plan, or any

major revision thereto, from the Federal, and the region's State,

fish and wildlife agencies and from the region's appropriate Indian

tribes, recommendations for -

(A) measures which can be expected to be implemented by the

Administrator, using authorities under this chapter and other

laws, and other Federal agencies to protect, mitigate, and

enhance fish and wildlife, including related spawning grounds and

habitat, affected by the development and operation of any

hydroelectric project on the Columbia River and its tributaries;

(B) establishing objectives for the development and operation

of such projects on the Columbia River and its tributaries in a

manner designed to protect, mitigate, and enhance fish and

wildlife; and

(C) fish and wildlife management coordination and research and

development (including funding) which, among other things, will

assist protection, mitigation, and enhancement of anadromous fish

at, and between, the region's hydroelectric dams.

(3) Such agencies and tribes shall have 90 days to respond to

such request, unless the Council extends the time for making such

recommendations. The Federal, and the region's water management

agencies, and the region's electric power producing agencies,

customers, and public may submit recommendations of the type

referred to in paragraph (2) of this subsection. All

recommendations shall be accompanied by detailed information and

data in support of the recommendations.

(4)(A) The Council shall give notice of all recommendations and

shall make the recommendations and supporting documents available

to the Administrator, to the Federal, and the region's, State fish

and wildlife agencies, to the appropriate Indian tribes, to Federal

agencies responsible for managing, operating, or regulating

hydroelectric facilities located on the Columbia River or its

tributaries, and to any customer or other electric utility which

owns or operates any such facility. Notice shall also be given to

the public. Copies of such recommendations and supporting

documents shall be made available for review at the offices of the

Council and shall be available for reproduction at reasonable cost.

(B) The Council shall provide for public participation and

comment regarding the recommendations and supporting documents,

including an opportunity for written and oral comments, within such

reasonable time as the Council deems appropriate.

(5) The Council shall develop a program on the basis of such

recommendations supporting documents, and views and information

obtained through public comment and participation, and consultation

with the agencies, tribes, and customers referred to in

subparagraph (A) of paragraph (4). The program shall consist of

measures to protect, mitigate, and enhance fish and wildlife

affected by the development, operation, and management of such

facilities while assuring the Pacific Northwest and adequate,

efficient economical, and reliable power supply. Enhancement

measures shall be included in the program to the extent such

measures are designed to achieve improved protection and

mitigation.

(6) The Council shall include in the program measures which it

determines, on the basis set forth in paragraph (5), will -

(A) complement the existing and future activities of the

Federal and the region's State fish and wildlife agencies and

appropriate Indian tribes;

(B) be based on, and supported by, the best available

scientific knowledge;

(C) utilize, where equally effective alternative means of

achieving the same sound biological objective exist, the

alternative with the minimum economic cost;

(D) be consistent with the legal rights of appropriate Indian

tribes in the region; and

(E) in the case of anadromous fish -

(i) provide for improved survival of such fish at

hydroelectric facilities located on the Columbia River system;

and

(ii) provide flows of sufficient quality and quantity between

such facilities to improve production, migration, and survival

of such fish as necessary to meet sound biological objectives.

(7) The Council shall determine whether each recommendation

received is consistent with the purposes of this chapter. In the

event such recommendations are inconsistent with each other, the

Council, in consultation with appropriate entities, shall resolve

such inconsistency in the program giving due weight to the

recommendations, expertise, and legal rights and responsibilities

of the Federal and the region's State fish and wildlife agencies

and appropriate Indian tribes. If the Council does not adopt any

recommendation of the fish and wildlife agencies and Indian tribes

as part of the program or any other recommendation, it shall

explain in writing, as part of the program, the basis for its

finding that the adoption of such recommendation would be -

(A) inconsistent with paragraph (5) of this subsection;

(B) inconsistent with paragraph (6) of this subsection; or

(C) less effective than the adopted recommendations for the

protection, mitigation, and enhancement of fish and wildlife.

(8) The Council shall consider, in developing and adopting a

program pursuant to this subsection, the following principles:

(A) Enhancement measures may be used, in appropriate

circumstances, as a means of achieving offsite protection and

mitigation with respect to compensation for losses arising from

the development and operation of the hydroelectric facilities of

the Columbia River and its tributaries as a system.

(B) Consumers of electric power shall bear the cost of measures

designed to deal with adverse impacts caused by the development

and operation of electric power facilities and programs only.

(C) To the extent the program provides for coordination of its

measures with additional measures (including additional

enhancement measures to deal with impacts caused by factors other

than the development and operation of electric power facilities

and programs), such additional measures are to be implemented in

accordance with agreements among the appropriate parties

providing for the administration and funding of such additional

measures.

(D) Monetary costs and electric power losses resulting from the

implementation of the program shall be allocated by the

Administrator consistent with individual project impacts and

system wide objectives of this subsection.

(9) The Council shall adopt such program or amendments thereto

within one year after the time provided for receipt of the

recommendations. Such program shall also be included in the plan

adopted by the Council under subsection (d) of this section.

(10)(A) The Administrator shall use the Bonneville Power

Administration fund and the authorities available to the

Administrator under this chapter and other laws administered by the

Administrator to protect, mitigate, and enhance fish and wildlife

to the extent affected by the development and operation of any

hydroelectric project of the Columbia River and its tributaries in

a manner consistent with the plan, if in existence, the program

adopted by the Council under this subsection, and the purposes of

this chapter. Expenditures of the Administrator pursuant to this

paragraph shall be in addition to, not in lieu of, other

expenditures authorized or required from other entities under other

agreements or provisions of law.

(B) The Administrator may make expenditures from such fund which

shall be included in the annual or supplementary budgets submitted

to the Congress pursuant to the Federal Columbia River Transmission

System Act (16 U.S.C. 838 et seq.). Any amounts included in such

budget for the construction of capital facilities with an estimated

life of greater than 15 years and an estimated cost of at least

$1,000,000 shall be funded in the same manner and in accordance

with the same procedures as major transmission facilities under the

Federal Columbia River Transmission System Act.

(C) The amounts expended by the Administrator for each activity

pursuant to this subsection shall be allocated as appropriate by

the Administrator, in consultation with the Corps of Engineers and

the Water and Power Resources Service, among the various

hydroelectric projects of the Federal Columbia River Power System.

Amounts so allocated shall be allocated to the various project

purposes in accordance with existing accounting procedures for the

Federal Columbia River Power System.

(D) Independent Scientific Review Panel. - (i) The Northwest

Power Planning Council (Council) shall appoint an Independent

Scientific Review Panel (Panel), which shall be comprised of eleven

members, to review projects proposed to be funded through that

portion of the Bonneville Power Administration's (BPA) annual fish

and wildlife budget that implements the Council's fish and wildlife

program. Members shall be appointed from a list of no fewer than

20 scientists submitted by the National Academy of Sciences

(Academy), provided that Pacific Northwest scientists with

expertise in Columbia River anadromous and non-anadromous fish and

wildlife and ocean experts shall be among those represented on the

Panel. The Academy shall provide such nominations within 90 days of

September 30, 1996, and in any case not later than December 31,

1996. If appointments are required in subsequent years, the Council

shall request nominations from the Academy and the Academy shall

provide nominations not later than 90 days after the date of this

request. If the Academy does not provide nominations within these

time requirements, the Council may appoint such members as the

Council deems appropriate.

(ii) Scientific Peer Review Groups. - The Council shall establish

Scientific Peer Review Groups (Peer Review Groups), which shall be

comprised of the appropriate number of scientists, from a list

submitted by the Academy to assist the Panel in making its

recommendations to the Council for projects to be funded through

BPA's annual fish and wildlife budget, provided that Pacific

Northwest scientists with expertise in Columbia River anadromous

and non-anadromous fish and wildlife and ocean experts shall be

among those represented on the Peer Review Groups. The Academy

shall provide such nominations within 90 days of September 30,

1996, and in any case not later than December 31, 1996. If

appointments are required in subsequent years, the Council shall

request nominations from the Academy and the Academy shall provide

nominations not later than 90 days after the date of this request.

If the Academy does not provide nominations within these time

requirements, the Council may appoint such members as the Council

deems appropriate.

(iii) Conflict of Interest and Compensation. - Panel and Peer

Review Group members may be compensated and shall be considered

subject to the conflict of interest standards that apply to

scientists performing comparable work for the National Academy of

Sciences; provided that a Panel or Peer Review Group members with a

direct or indirect financial interest in a project, or projects,

shall recuse himself or herself from review of, or recommendations

associated with, such project or projects. All expenses of the

Panel and the Peer Review Groups shall be paid by BPA as provided

for under paragraph (vii). Neither the Panel nor the Peer Review

Groups shall be deemed advisory committees within the meaning of

the Federal Advisory Committee Act.

(iv) Project Criteria and Review. - The Peer Groups, in

conjunction with the Panel, shall review projects proposed to be

funded through BPA's annual fish and wildlife budget and make

recommendations on matters related to such projects to the Council

no later than June 15 of each year. If the recommendations are not

received by the Council by this date, the Council may proceed to

make final recommendations on project funding to BPA, relying on

the best information available. The Panel and Peer Review Groups

shall review a sufficient number of projects to adequately ensure

that the list of prioritized projects recommended is consistent

with the Council's program. Project recommendations shall be based

on a determination that projects: are based on sound science

principles; benefit fish and wildlife; and have a clearly defined

objective and outcome with provisions for monitoring and evaluation

of results. The Panel, with assistance from the Peer Review

Groups, shall review, on an annual basis, the results of prior year

expenditures based upon these criteria and submit its findings to

the Council for its review.

(v) Public Review. - Upon completion of the review of projects to

be funded through BPA's annual fish and wildlife budget, the Peer

Review Groups shall submit its findings to the Panel. The Panel

shall analyze the information submitted by the Peer Review Groups

and submit recommendations on project priorities to the Council.

The Council shall make the Panel's findings available to the public

and subject to public comment.

(vi) Responsibilities of the Council. - The Council shall fully

consider the recommendations of the Panel when making its final

recommendations of projects to be funded through BPA's annual fish

and wildlife budget, and if the Council does not incorporate a

recommendation of the Panel, the Council shall explain in writing

its reasons for not accepting Panel recommendations. In making its

recommendations to BPA, the Council shall consider the impact of

ocean conditions on fish and wildlife populations and shall

determine whether the projects employ cost-effective measures to

achieve program objectives. The Council, after consideration of

the recommendations of the Panel and other appropriate entities,

shall be responsible for making the final recommendations of

projects to be funded through BPA's annual fish and wildlife

budget.

(vii) Cost limitation. - The annual cost of this provision shall

not exceed $500,000 in 1997 dollars.

(11)(A) The Administrator and other Federal agencies responsible

for managing, operating, or regulating Federal or non-Federal

hydroelectric facilities located on the Columbia River or its

tributaries shall -

(i) exercise such responsibilities consistent with the purposes

of this chapter and other applicable laws, to adequately protect,

mitigate, and enhance fish and wildlife, including related

spawning grounds and habitat, affected by such projects or

facilities in a manner that provides equitable treatment for such

fish and wildlife with the other purposes for which such system

and facilities are managed and operated;

(ii) exercise such responsibilities, taking into account at

each relevant stage of decisionmaking processes to the fullest

extent practicable, the program adopted by the Council under this

subsection. If, and to the extent that, such other Federal

agencies as a result of such consideration impose upon any

non-Federal electric power project measures to protect, mitigate,

and enhance fish and wildlife which are not attributable to the

development and operation of such project, then the resulting

monetary costs and power losses (if any) shall be borne by the

Administrator in accordance with this subsection.

(B) The Administrator and such Federal agencies shall consult

with the Secretary of the Interior, the Administrator of the

National Marine Fisheries Service, and the State fish and wildlife

agencies of the region, appropriate Indian tribes, and affected

project operators in carrying out the provisions of this paragraph

and shall, to the greatest extent practicable, coordinate their

actions.

(12)(A) Beginning on October 1 of the first fiscal year after all

members to the Council are appointed initially, the Council shall

submit annually a detailed report to the Committee on Energy and

Natural Resources of the Senate and to the Committees on Energy and

Commerce and on Natural Resources of the House of Representatives.

The report shall describe the actions taken and to be taken by the

Council under this chapter, including this subsection, the

effectiveness of the fish and wildlife program, and potential

revisions or modifications to the program to be included in the

plan when adopted. At least ninety days prior to its submission of

such report, the Council shall make available to such fish and

wildlife agencies, and tribes, the Administrator and the customers

a draft of such report. The Council shall establish procedures for

timely comments thereon. The Council shall include as an appendix

to such report such comments or a summary thereof.

(B) The Administrator shall keep such committees fully and

currently informed of the actions taken and to be taken by the

Administrator under this chapter, including this subsection.

(i) Review

The Council may from time to time review the actions of the

Administrator pursuant to this section and section 839d of this

title to determine whether such actions are consistent with the

plan and programs, the extent to which the plan and programs is

being implemented, and to assist the Council in preparing

amendments to the plan and programs.

(j) Requests by Council for action

(1) The Council may request the Administrator to take an action

under section 839d of this title to carry out the Administrator's

responsibilities under the plan.

(2) To the greatest extent practicable within ninety days after

the Council's request, the Administrator shall respond to the

Council in writing specifying -

(A) the means by which the Administrator will undertake the

action or any modification thereof requested by the Council, or

(B) the reasons why such action would not be consistent with

the plan, or with the Administrator's legal obligations under

this chapter, or other provisions of law, which the Administrator

shall specifically identify.

(3) If the Administrator determines not to undertake the

requested action, the Council, within sixty days after notice of

the Administrator's determination, may request the Administrator to

hold an informal hearing and make a final decision.

(k) Review and analysis of 5-year period of Council activities

(1) Not later than October 1, 1987, or six years after the

Council is established under this chapter, whichever is later, the

Council shall complete a thorough analysis of conservation measures

and conservation resources implemented pursuant to this chapter

during the five-year period beginning on the date the Council is

established under this chapter to determine if such measures or

resources:

(A) have resulted or are likely to result is costs to consumers

in the region greater than the costs of additional generating

resources or additional fuel which the Council determines would

be necessary in the absence of such measures or resources;

(B) have not been or are likely not to be generally equitable

to all consumers in the region; or

(C) have impaired or are likely to impair the ability of the

Administrator to carry out his obligations under this chapter and

other laws, consistent with sound business practices.

(2) The Administrator may determine that section 839a(4)(D) of

this title shall not apply to any proposed conservation measure or

resource if the Administrator finds after receipt of such analysis

from the Council that such measure of resource would have any

result or effect described in subparagraph (A), (B) or (C) of

paragraph (1).

-SOURCE-

(Pub. L. 96-501, Sec. 4, Dec. 5, 1980, 94 Stat. 2700; Pub. L.

103-437, Sec. 6(u), Nov. 2, 1994, 108 Stat. 4587; Pub. L. 104-206,

title V, Sec. 512, Sept. 30, 1996, 110 Stat. 3005; Pub. L. 106-60,

title VI, Sec. 610, Sept. 29, 1999, 113 Stat. 502.)

-REFTEXT-

REFERENCES IN TEXT

The Ethics in Government Act of 1978, referred to in subsec.

(b)(3), is Pub. L. 95-521, Oct. 26, 1978, 92 Stat. 1824, as

amended. Title II of the Ethics in Government Act of 1978 was set

out in the Appendix to Title 5, Government Organization and

Employees, prior to repeal by Pub. L. 101-194, title II, Sec. 201,

Nov. 30, 1989, 103 Stat. 1724. For complete classification of this

Act to the Code, see Short Title note set out under section 101 of

Pub. L. 95-521 in the Appendix to Title 5 and Tables.

The Federal Columbia River Transmission System Act, referred to

in subsecs. (c)(10)(A) and (h)(10)(B), is Pub. L. 93-454, Oct. 18,

1974, 88 Stat. 1376, as amended, which is classified generally to

chapter 12G (Sec. 838 et seq.) of this title. For complete

classification of this Act to the Code, see Short Title note set

out under section 838 of this title and Tables.

The Federal Advisory Committee Act, referred to in subsec.

(h)(10)(D)(iii), is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as

amended, which is set out in the Appendix to Title 5, Government

Organization and Employees.

-COD-

CODIFICATION

September 30, 1996, referred to in subsec. (h)(10)(D)(i), (ii),

was in the original ''the date of this enactment'', which was

translated as meaning the date of enactment of Pub. L. 104-206,

which enacted subsec. (h)(10)(D), to reflect the probable intent of

Congress.

-MISC3-

AMENDMENTS

1999 - Subsec. (h)(10)(D)(vii), (viii). Pub. L. 106-60 added cl.

(vii) and struck out former cls. (vii) and (viii) which read as

follows:

''(vii) Cost Limitation. - The cost of this provision shall not

exceed $2,000,000 in 1997 dollars.

''(viii) Expiration. - This paragraph shall expire on September

30, 2000.''

1996 - Subsec. (h)(10)(D). Pub. L. 104-206, which directed that

subpar. (D) be inserted after subsec. (h)(10)(C) of the Northwest

Power Planning and Conservation Act, was executed by adding subsec.

(h)(10)(D) to this section, which is from the Pacific Northwest

Electric Power Planning and Conservation Act, to reflect the

probable intent of Congress.

1994 - Subsec. (h)(12)(A). Pub. L. 103-437 substituted

''Committees on Energy and Commerce and on Natural Resources'' for

''Committees on Interstate and Foreign Commerce and on Interior and

Insular Affairs''.

-CHANGE-

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.

Committee on Natural Resources of House of Representatives

treated as referring to Committee on Resources of House of

Representatives by section 1(a) of Pub. L. 104-14, set out as a

note preceding section 21 of Title 2.

-MISC4-

TERMINATION OF REPORTING REQUIREMENTS

For termination, effective May 15, 2000, of provisions in subsec.

(h)(12)(A) of this section relating to submitting annually a

detailed report to the Committee on Energy and Natural Resources of

the Senate and to the Committees on Energy and Commerce and on

Natural Resources of the House of Representatives, 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 188 of House Document No.

103-7.

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

References in laws to the rates of pay for GS-16, 17, or 18, or

to maximum rates of pay under the General Schedule, to be

considered references to rates payable under specified sections of

Title 5, Government Organization and Employees, see section 529

(title I, Sec. 101(c)(1)) of Pub. L. 101-509, set out in a note

under section 5376 of Title 5.

OPERATION AND MAINTENANCE OF FISH PASSAGE FACILITIES WITHIN THE

YAKIMA RIVER BASIN; FUNDING

Pub. L. 98-381, title I, Sec. 109, Aug. 17, 1984, 98 Stat. 1340,

provided that: ''The Secretary of the Interior, acting pursuant to

Federal reclamation law (Act of June 17, 1902, 32 Stat. 388, and

Acts amendatory thereof and supplementary thereto) (43 U.S.C. 371

et seq.) and in accordance with the Pacific Northwest Electric

Power Planning and Conservation Act (94 Stat. 2697) (16 U.S.C. 839

et seq.) is authorized to design, construct, operate, and maintain

fish passage facilities within the Yakima River Basin, and to

accept funds from any entity, public or private, to design,

construct, operate, and maintain such facilities.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 838i, 839a, 839c, 839d,

839e, 839f, 839h of this title.

-CITE-

16 USC Sec. 839c 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839c. Sale of power

-STATUTE-

(a) Preferences and priorities

All power sales under this chapter shall be subject at all times

to the preference and priority provisions of the Bonneville Project

Act of 1937 (16 U.S.C. 832 and following) and, in particular,

sections 4 and 5 thereof (16 U.S.C. 832c and 832d). Such sales

shall be at rates established pursuant to section 839e of this

title.

(b) Sales to public bodies, cooperatives, and Federal agency

customers

(1) Whenever requested, the Administrator shall offer to sell to

each requesting public body and cooperative entitled to preference

and priority under the Bonneville Project Act of 1937 (16 U.S.C.

832 et seq.) and to each requesting investor-owned utility electric

power to meet the firm power load of such public body, cooperative

or investor-owned utility in the Region to the extent that such

firm power load exceeds -

(A) the capability of such entity's firm peaking and energy

resources used in the year prior to December 5, 1980, to serve

its firm load in the region, and

(B) such other resources as such entity determines, pursuant to

contracts under this chapter, will be used to serve its firm load

in the region.

In determining the resources which are used to serve a firm load,

for purposes of subparagraphs (A) and (B), any resources used to

serve a firm load under such subparagraphs shall be treated as

continuing to be so used, unless such use is discontinued with the

consent of the Administrator, or unless such use is discontinued

because of obsolescence, retirement, loss of resource, or loss of

contract rights.

(2) Contracts with investor-owned utilities shall provide that

the Administrator may reduce his obligations under such contracts

in accordance with section 5(a) of the Bonneville Project Act of

1937 (16 U.S.C. 832d(a)).

(3) In addition to his authorities to sell electric power under

paragraph (1), the Administrator is also authorized to sell

electric power to Federal agencies in the region.

(4) Sales under this subsection shall be made only if the public

body, cooperative, Federal agency or investor-owned utility

complies with the Administrator's standards for service in effect

on December 5, 1980, or as subsequently revised.

(5) The Administrator shall include in contracts executed in

accordance with this subsection provisions that enable the

Administrator to restrict his contractual obligations to meet the

loads referred to in this subsection in the future if the

Administrator determines, after a reasonable period of experience

under this chapter, that the Administrator cannot be assured on a

planning basis of acquiring sufficient resources to meet such loads

during a specified period of insufficiency. Any such contract with

a public body, cooperative, or Federal agency shall specify a

reasonable minimum period between a notice of restriction and the

earliest date such restriction may be imposed.

(6) Contracts executed in accordance with this subsection with

public body, cooperative, and Federal agency customers shall -

(A) provide that the restriction referred to in paragraph (5)

shall not be applicable to any such customers until the operating

year in which the total of such customers' firm loads to be

served by the Administrator equals or exceeds the firm capability

of the Federal base system resources;

(B) not permit restrictions which would reduce the total

contractual entitlement of such customers to an amount less than

the firm capability of the Federal base system resources; and

(C) contain a formula for determining annually, on a uniform

basis, each such customer's contractual entitlement to firm power

during such a period of restriction, which formula shall not

consider customer resources other than those the customer has

determined, as of December 5, 1980, to be used to serve its own

firm loads.

The formula referred to in subparagraph (C) shall obligate the

Administrator to provide on an annual basis only firm power needed

to serve the portion of such customer's firm load in excess of the

capability of such customer's own firm resources determined by such

customer under paragraph (1) of this subsection to be used to serve

its firm load.

(7) Required sale. -

(A) Definition of a joint operating entity. - In this section,

the term ''joint operating entity'' means an entity that is

lawfully organized under State law as a public body or

cooperative prior to September 22, 2000, and is formed by and

whose members or participants are two or more public bodies or

cooperatives, each of which was a customer of the Bonneville

Power Administration on or before January 1, 1999.

(B) Sale. - Pursuant to paragraph (1), the Administrator shall

sell, at wholesale to a joint operating entity, electric power

solely for the purpose of meeting the regional firm power

consumer loads of regional public bodies and cooperatives that

are members of or participants in the joint operating entity.

(C) No resale. - A public body or cooperative to which a joint

operating entity sells electric power under subparagraph (B)

shall not resell that power except to retail customers of the

public body or cooperative or to another regional member or

participant of the same joint operating entity, or except as

otherwise permitted by law.

(c) Purchase and exchange sales

(1) Whenever a Pacific Northwest electric utility offers to sell

electric power to the Administrator at the average system cost of

that utility's resources in each year, the Administrator shall

acquire by purchase such power and shall offer, in exchange, to

sell an equivalent amount of electric power to such utility for

resale to that utility's residential users within the region.

(2) The purchase and exchange sale referred to in paragraph (1)

of this subsection with any electric utility shall be limited to an

amount not in excess of 50 per centum of such utility's Regional

residential load in the year beginning July 1, 1980, such 50 per

centum limit increasing in equal annual increments to 100 per

centum of such load in the year beginning July 1, 1985, and each

year thereafter.

(3) The cost benefits, as specified in contracts with the

Administrator, of any purchase and exchange sale referred to in

paragraph (1) of this subsection which are attributable to any

electric utility's residential load within a State shall be passed

through directly to such utility's residential loads within such

State, except that a State which lies partially within and

partially without the region may require that such cost benefits be

distributed among all of the utility's residential loads in that

State.

(4) An electric utility may terminate, upon reasonable terms and

conditions agreed to by the Administrator and such utility prior to

such termination, its purchase and sale under this subsection if

the supplemental rate charge provided for in section 839e(b)(3) of

this title is applied and the cost of electric power sold to such

utility under this subsection exceeds, after application of such

rate charge, the average system cost of power sold by such utility

to the Administrator under this subsection.

(5) Subject to the provisions of sections 839b and 839d of this

title, in lieu of purchasing any amount of electric power offered

by a utility under paragraph (1) of this subsection, the

Administrator may acquire an equivalent amount of electric power

from other sources to replace power sold to such utility as part of

an exchange sale if the cost of such acquisition is less than the

cost of purchasing the electric power offered by such utility.

(6) Exchange sales to a utility pursuant to this subsection shall

not be restricted below the amounts of electric power acquired by

the Administrator from, or on behalf of, such utility pursuant to

this subsection.

(7) The ''average system cost'' for electric power sold to the

Administrator under this subsection shall be determined by the

Administrator on the basis of a methodology developed for this

purpose in consultation with the Council, the Administrator's

customers, and appropriate State regulatory bodies in the region.

Such methodology shall be subject to review and approval by the

Federal Energy Regulatory Commission. Such average system cost

shall not include -

(A) the cost of additional resources in an amount sufficient to

serve any new large single load of the utility;

(B) the cost of additional resources in an amount sufficient to

meet any additional load outside the region occurring after

December 5, 1980; and

(C) any costs of any generating facility which is terminated

prior to initial commercial operation.

(d) Sales to existing direct service industrial customers

(1)(A) The Administrator is authorized to sell in accordance with

this subsection electric power to existing direct service

industrial customers. Such sales shall provide a portion of the

Administrator's reserves for firm power loads within the region.

(B) After December 5, 1980, the Administrator shall offer in

accordance with subsection (g) of this section to each existing

direct service industrial customer an initial long term contract

that provides such customer an amount of power equivalent to that

to which such customer is entitled under its contract dated January

or April 1975 providing for the sale of ''industrial firm power.''

(2) The Administrator shall not sell electric power, including

reserves, directly to new direct service industrial customers.

(3) The Administrator shall not sell amounts of electric power,

including reserves, to existing direct service industrial customers

in excess of the amount permitted under paragraph (1) unless the

Administrator determines, after a plan has been adopted pursuant to

section 839b of this title, that such proposed sale is consistent

with the plan and that -

(A) additional power system reserves are required for the

region's firm loads,

(B) the proposed sale would provide a cost-effective method of

supplying such reserves,

(C) such loads or loads of similar character cannot provide

equivalent operating or planning benefits to the region if served

by an electric utility under contractual arrangements providing

reserves, and

(D) the Administrator has or can acquire sufficient electric

power to serve such loads, and

unless the Council has determined such sale is consistent with the

plan. After such determination by the Administrator and by the

Council, the Administrator is authorized to offer to existing

direct service industrial customers power in such amounts in excess

of the amount permitted under paragraph (1) of this subsection as

the Administrator determines to be necessary to provide additional

power system reserves to meet the region's firm loads.

(4)(A) As used in this section, the term ''existing direct

service industrial customer'' means any direct service industrial

customer of the Administrator which has a contract for the purchase

of electric power from the Administrator on December 5, 1980.

(B) The term ''new direct service industrial customer'' means any

industrial entity other than an existing direct service industrial

customer.

(C)(i) Where a new contract is offered in accordance with

subsection (g) of this section to any existing direct service

industrial customer which has not received electric power prior to

December 5, 1980, from the Administrator pursuant to a contract

with the Administrator existing on December 5, 1980, electric power

delivered under such new contract shall be conditioned on the

Administrator reasonably acquiring, in accordance with this chapter

and within such estimated period of time (as specified in the

contract) as he deems reasonable, sufficient resources to meet, on

a planning basis, the load requirement of such customer. Such

contract shall also provide that the obligation of the

Administrator to acquire such resources to meet such load

requirement shall, except as provided in clause (ii) of this

subparagraph, apply only to such customer and shall not be sold or

exchanged by such customer to any other person.

(ii) Rights under a contract described in clause (i) of this

subparagraph may be transferred by an existing direct service

industrial customer referred to in clause (i) to a successor in

interest in connection with a reorganization or other transfer of

all major assets of such customer. Following such a transfer, such

successor in interest (or any other subsequent successor in

interest) may also transfer rights under such a contract only in

connection with a reorganization or other transfer of all assets of

such successor in interest.

(iii) The limitations of clause (i) of this subparagraph shall

not apply to any customer referred to in clause (i) whenever the

Administrator determines that such customer is receiving electric

power pursuant to a contract referred to in such clause (ii).

(e) Contractual entitlements to firm power

(1) The contractual entitlement to firm power of any customer

from whom, or on whose behalf, the Administrator has acquired

electric power pursuant to section 839d of this title may not be

restricted below the amount of electric power so acquired from, or

on behalf of, such customer. If in any year such customer's

requirements are less than such entitlement, any excess of such

entitlement shall be first made available to increase the

entitlement of other customers of the same class before being

available for the entitlement of other customers. For purposes of

this paragraph, the following entities shall each constitute a

class:

(A) public bodies and cooperatives;

(B) Federal agencies;

(C) direct service industrial; and

(D) investor owned utilities.

(2) Any contractual entitlement to firm power which is based on

electric power acquired from, or on behalf of, a customer pursuant

to section 839d of this title shall be in addition to any other

contractual entitlement to firm power not subject to restriction

that such customer may have under this section. For the purposes

of this subsection, references to amounts of power acquired by the

Administrator pursuant to section 839d of this title shall be

deemed to mean the amounts specified in the resource acquisition

contracts exclusive of any amounts recognized in such contracts as

replacement for Federal base system resources.

(3) The Administrator shall, consistent with the provisions of

this chapter, insure that any restrictions upon any particular

customer class made pursuant to this subsection and subsection (b)

of this section are distributed equitably throughout the region.

(f) Surplus power

The Administrator is authorized to sell, or otherwise dispose of,

electric power, including power acquired pursuant to this and other

Acts, that is surplus to his obligations incurred pursuant to

subsections (b), (c), and (d) of this section in accordance with

this and other Acts applicable to the Administrator, including the

Bonneville Projects Act of 1937 (16 U.S.C. 832 and following), the

Federal Columbia River Transmission System Act (16 U.S.C. 838 and

following), and the Act of August 31, 1964 (16 U.S.C. 837-837h).

(g) Long-term contracts

(1) As soon as practicable within nine months after December 5,

1980, the Administrator shall commence necessary negotiations for,

and offer, initial long-term contracts (within the limitations of

the third sentence of section 5(a) of the Bonneville Project Act

(16 U.S.C. 832d(a))) simultaneously to -

(A) existing public body and cooperative customers and

investor-owned utility customers under subsection (b) of this

section;

(B) Federal agency customers under subsection (b) of this

section;

(C) electric utility customers under subsection (c) of this

section; and

(D) direct service industrial customers under subsection (d)(1)

of this section.

(2) Each customer offered a contract pursuant to this subsection

shall have one year from the date of such offer to accept such

contract. Such contract shall be effective as provided in this

subsection.

(3) An initial contract with a public body, cooperative or

investor-owned electric utility customer or a Federal agency

customer pursuant to subsection (b) of this section shall be

effective on the date executed by such customer, unless another

effective date is otherwise agreed to by the Administrator and the

customer.

(4) An initial contract with an electric utility customer

pursuant to subsection (c) of this section shall be effective on

the date executed by such customer, but no earlier than the first

day of the tenth month after December 5, 1980.

(5) An initial contract with a direct service industrial customer

pursuant to subsection (d)(1) of this section, shall be effective

on the date agreed upon by the Administrator and such customer, but

no later than the first day of the tenth month after December 5,

1980. When such contract is executed, it may for rate purposes be

given retroactive effect to such first day.

(6) Initial contracts offered public body, cooperative and

Federal agency customers in accordance with this subsection shall

provide that during a period of insufficiency declared in

accordance with subsection (b) of this section each customer's

contractual entitlement shall, to the extent of its requirements on

the Administrator, be no less than the amount of firm power

received from the Administrator in the year immediately preceding

the period of insufficiency.

(7) The Administrator shall be deemed to have sufficient

resources for the purpose of entering into the initial contracts

specified in paragraph (1)(A) through (D).

-SOURCE-

(Pub. L. 96-501, Sec. 5, Dec. 5, 1980, 94 Stat. 2712; Pub. L.

106-273, Sec. 1, Sept. 22, 2000, 114 Stat. 802.)

-REFTEXT-

REFERENCES IN TEXT

The Bonneville Project Act of 1937, referred to in subsecs. (a),

(b)(1), and (f), is act Aug. 20, 1937, ch. 720, 50 Stat. 731, as

amended, which is classified generally to chapter 12B (Sec. 832 et

seq.) of this title. For complete classification of this Act to

the Code, see Short Title note set out under section 832 of this

title and Tables.

The Federal Columbia River Transmission System Act, referred to

in subsec. (f), is Pub. L. 93-454, Oct. 18, 1974, 88 Stat. 1376, as

amended, which is classified generally to chapter 12G (Sec. 838 et

seq.) of this title. For complete classification of this Act to

the Code, see Short Title note set out under section 838 of this

title and Tables.

Act of August 31, 1964, referred to in subsec. (f), is Pub. L.

88-552, Aug. 31, 1964, 78 Stat. 756, as amended, which is

classified generally to chapter 12F (Sec. 837 et seq.) of this

title. For complete classification of this Act to the Code, see

Tables.

-MISC2-

AMENDMENTS

2000 - Subsec. (b)(7). Pub. L. 106-273 added par. (7).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 832m, 839d, 839e, 839f,

839g of this title.

-CITE-

16 USC Sec. 839d 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839d. Conservation and resource acquisition

-STATUTE-

(a) Conservation measures; resources

(1) The Administrator shall acquire such resources through

conservation, implement all such conservation measures, and acquire

such renewable resources which are installed by a residential or

small commercial consumer to reduce load, as the Administrator

determines are consistent with the plan, or if no plan is in effect

with the criteria of section 839b(e)(1) of this title and the

considerations of section 839b(e)(2) of this title and, in the case

of major resources, in accordance with subsection (c) of this

section. Such conservation measures and such resources may

include, but are not limited to -

(A) loans and grants to consumers for insulation or

weatherization, increased system efficiency, and waste energy

recovery by direct application,

(B) technical and financial assistance to, and other

cooperation with, the Administrator's customers and governmental

authorities to encourage maximum cost-effective voluntary

conservation and the attainment of any cost-effective

conservation objectives adopted by individual States or

subdivisions thereof,

(C) aiding the Administrator's customers and governmental

authorities in implementing model conservation standards adopted

pursuant to section 839b(f) of this title, and

(D) conducting demonstration projects to determine the cost

effectiveness of conservation measures and direct application of

renewable energy resources.

(2) In addition to acquiring electric power pursuant to section

839c(c) of this title, or on a short-term basis pursuant to section

11(b)(6)(i) of the Federal Columbia River Transmission System Act

(16 U.S.C. 838i(b)(6)(i)), the Administrator shall acquire, in

accordance with this section, sufficient resources -

(A) to meet his contractual obligations that remain after

taking into account planned savings from measures provided for in

paragraph (1) of this subsection, and

(B) to assist in meeting the requirements of section 839b(h) of

this title.

The Administrator shall acquire such resources without considering

restrictions which may apply pursuant to section 839c(b) of this

title.

(b) Acquisition of resources

(1) Except as specifically provided in this section, acquisition

of resources under this chapter shall be consistent with the plan,

as determined by the Administrator.

(2) The Administrator may acquire resources (other than major

resources) under this chapter which are not consistent with the

plan, but which are determined by the Administrator to be

consistent with the criteria of section 839b(e)(1) of this title

and the considerations of section 839b(e)(2) of this title.

(3) If no plan is in effect, the Administrator may acquire

resources under this chapter which are determined by the

Administrator to be consistent with the criteria of section

839b(e)(1) of this title and the considerations of section

839b(e)(2) of this title.

(4) The Administrator shall acquire any non-Federal resources to

replace Federal base system resources only in accordance with the

provisions of this section. The Administrator shall include in the

contracts for the acquisition of any such non-Federal replacement

resources provisions which will enable him to ensure that such

non-Federal replacement resources are developed and operated in a

manner consistent with the considerations specified in section

839b(e)(2) of this title.

(5) Notwithstanding any acquisition of resources pursuant to this

section, the Administrator shall not reduce his efforts to achieve

conservation and to acquire renewable resources installed by a

residential or small commercial consumer to reduce load, pursuant

to subsection (a)(1) of this section.

(c) Procedure for acquiring major resources, implementing

conservation measures, paying or reimbursing investigation and

preconstruction expenses, or granting billing credits

(1) For each proposal under subsection (a), (b), (f), (h), or (l)

of this section to acquire a major resource, to implement a

conservation measure which will conserve an amount of electric

power equivalent to that of a major resource, to pay or reimburse

investigation and preconstruction expenses of the sponsors of a

major resource, or to grant billing credits or services involving a

major resource, the Administrator shall -

(A) publish notice of the proposed action in the Federal

Register and provide a copy of such notice to the Council, the

Governor of each State in which facilities would be constructed

or a conservation measure implemented, and the Administrator's

customers;

(B) not less than sixty days following publication of such

notice, conduct one or more public hearings, presided over by a

hearing officer, at which testimony and evidence shall be

received, with opportunity for such rebuttal and

cross-examination as the hearing officer deems appropriate in the

development of an adequate hearing record;

(C) develop a record to assist in evaluating the proposal which

shall include the transcript of the public hearings, together

with exhibits, and such other materials and information as may

have been submitted to, or developed by, the Administrator; and

(D) following completion of such hearings, promptly provide to

the Council and make public a written decision that includes, in

addition to a determination respecting the requirements of

subsection (a), (b), (f), (h), (l), or (m) of this section, as

appropriate -

(i) if a plan is in effect, a finding that the proposal is

either consistent or inconsistent with the plan or,

notwithstanding its inconsistency with the plan, a finding that

it is needed to meet the Administrator's obligations under this

chapter, or

(ii) if no plan is in effect, a finding that the proposal is

either consistent or inconsistent with the criteria of section

839b(e)(1) of this title and the considerations of section

839b(e)(2) of this title or notwithstanding its inconsistency,

a finding that it is needed to meet the Administrator's

obligations under this chapter.

In the case of subsection (f) of this section, such decision

shall be treated as satisfying the applicable requirements of

this subsection and of subsection (f) of this section, if it

includes a finding of probable consistency, based upon the

Administrator's evaluation of information available at the time

of completion of the hearing under this paragraph. Such decision

shall include the reasons for such finding.

(2) Within sixty days of the receipt of the Administrator's

decision pursuant to paragraph (1)(D) of this subsection, the

Council may determine by a majority vote of all members of the

Council, and notify the Administrator -

(A) that the proposal is either consistent or inconsistent with

the plan, or

(B) if no plan is in effect, that the proposal is either

consistent or inconsistent with the criteria of section

839b(e)(1) of this title and the considerations of section

839b(e)(2) of this title.

(3) The Administrator may not implement any proposal referred to

in paragraph (1) that is determined pursuant to paragraph (1) or

(2) by either the Administrator or the Council to be inconsistent

with the plan or, if no plan is in effect, with the criteria of

section 839b(e)(1) of this title and the considerations of section

839b(e)(2) of this title -

(A) unless the Administrator finds that, notwithstanding such

inconsistency, such resource is needed to meet the

Administrator's obligations under this chapter, and

(B) until the expenditure of funds for that purpose has been

specifically authorized by Act of Congress enacted after December

5, 1980.

(4) Before the Administrator implements any proposal referred to

in paragraph (1) of this subsection, the Administrator shall -

(A) submit to the appropriate committees of the Congress the

administrative record of the decision (including any

determination by the Council under paragraph (2)) and a statement

of the procedures followed or to be followed for compliance with

the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et

seq.),

(B) publish notice of the decision in the Federal Register, and

(C) note the proposal in the Administrator's annual or

supplementary budget submittal made pursuant to the Federal

Columbia River Transmission System Act (16 U.S.C. 838 and

following).

The Administrator may not implement any such proposal until ninety

days after the date on which such proposal has been noted in such

budget or after the date on which such decision has been published

in the Federal Register, whichever is later.

(5) The authority of the Council to make a determination under

paragraph (2)(B) if no plan is in effect shall expire on the date

two years after the establishment of the Council.

(d) Acquisition of resources other than major resources

The Administrator is authorized to acquire a resource, other than

a major resource, whether or not such resource meets the criteria

of section 839b(e)(1) of this title and the considerations of

section 839b(e)(2) of this title but which he determines is an

experimental, developmental, demonstration, or pilot project of a

type with a potential for providing cost-effective service to the

region. The Administrator shall make no obligation for the

acquisition of such resource until it is included in the annual

budgets submitted to the Congress pursuant to the Federal Columbia

River Transmission System Act (16 U.S.C. 838 et seq.).

(e) Effectuation of priorities; use of customers and local entities

(1) In order to effectuate the priority given to conservation

measures and renewable resources under this chapter, the

Administrator shall, to the maximum extent practicable, make use of

his authorities under this chapter to acquire conservation measures

and renewable resources, to implement conservation measures, and to

provide credits and technical and financial assistance for the

development and implementation of such resources and measures

(including the funding of, and the securing of debt for, expenses

incurred during the investigation and preconstruction of resources,

as authorized in subsection (f) of this section).

(2) To the extent conservation measures or acquisition of

resources require direct arrangements with consumers, the

Administrator shall make maximum practicable use of customers and

local entities capable of administering and carrying out such

arrangements.

(f) Agreements; investigation and initial development of renewable

resources other than major resources; reimbursement of

investigation and preconstruction expenses

(1) For resources which the Administrator determines may be

eligible for acquisition under this section and satisfy the

criteria of section 839b(e)(1) of this title and the considerations

of section 839b(e)(2) of this title or, if a plan is in effect, to

be consistent with the plan, the Administrator is authorized to

enter into agreements with sponsors of -

(A) a renewable resource, other than a major resource, to fund

or secure debt incurred in the investigation and initial

development of such resource, or

(B) any other resource to provide for the reimbursement of the

sponsor's investigation and preconstruction expenses concerning

such resource (which expenses shall not include procurement of

capital equipment or construction material for such resource).

In the case of any resource referred to in subparagraph (B) of this

paragraph, such reimbursement is authorized only if -

(i) such resource is subsequently denied State siting approval

or other necessary Federal or State permits, or approvals,

(ii) such investigation subsequently demonstrates, as

determined by the Administrator, that such resource does not meet

the criteria of section 839b(e)(1) of this title and the

considerations of section 839b(e)(2) of this title or is not

acceptable because of environmental impacts, or

(iii) after such investigation the Administrator determines not

to acquire the resource and the sponsor determines not to

construct the resource.

(2) The Administrator may exercise the authority of this

subsection only after he determines that the failure to do so would

result in inequitable hardship to the consumers of such sponsors.

The Administrator may provide reimbursement under this subsection

only for expenses incurred after December 5, 1980.

(3) Any agreement under paragraph (1) of this subsection shall

provide the Administrator an option to acquire any such resource,

including a renewable resource, and shall include such other

provisions, as the Administrator deems appropriate, for the

Administrator's recovery from such sponsors or any assignee of the

sponsors, if such sponsor or assignee continues development of the

resource, of any advances made by the Administrator pursuant to

such agreement.

(4) The Administrator shall not reimburse any expense incurred by

the sponsors (except necessary expenses involved in the liquidation

of the resource) after the date of a final denial of application

for State siting approval or after the date the Administrator

determines that the resource to be inconsistent with the plan or

the criteria of section 839b(e)(1) of this title and the

considerations of section 839b(e)(2) of this title.

(g) Environmental impact statements

At the request of the appropriate State, any environmental impact

statement which may be required with respect to a resource, to the

extent determined possible by the Administrator in accordance with

applicable law and regulations, may be prepared jointly and in

coordination with any required environmental impact statement of

the State or any other statement which serves the purpose of an

environmental impact statement which is required by State law.

(h) Billing credits

(1) If a customer so requests, the Administrator shall grant

billing credits to such customer, and provide services to such

customer at rates established for such services, for -

(A) conservation activities independently undertaken or

continued after December 5, 1980, by such customer or political

subdivision served by such customer which reduce the obligation

of the Administrator that would otherwise have existed to acquire

other resources under this chapter, or

(B) resources constructed, completed, or acquired after

December 5, 1980, by a customer, an entity acting on behalf of

such customer, or political subdivision served by the customer

which reduce the obligation of the Administrator to acquire

resources under this chapter. Such resources shall be renewable

resources or multipurpose projects or other resources which are

not inconsistent with the plan or, in the absence of a plan, not

inconsistent with the criteria of section 839b(e)(1) of this

title and the considerations of section 839b(e)(2) of this title.

(2) The energy and capacity on which a credit under this

subsection to a customer is based shall be the amount by which a

conservation activity or resource actually changes the customer's

net requirement for supply of electric power or reserves from the

Administrator.

(3) The amount of credits for conservation under this subsection

shall be set to credit the customer implementing or continuing the

conservation activity for which the credit is granted for the

savings resulting from such activity. The rate impact on the

Administrator's other customers of granting the credit shall be

equal to the rate impact such customers would have experienced had

the Administrator been obligated to acquire resources in an amount

equal to that actually saved by the activity for which the credit

is granted.

(4) For resources other than conservation, the customer shall be

credited for net costs actually incurred by such customer, an

entity acting on behalf of such customer, or political subdivision

served by such customer, in acquiring, constructing, or operating

the resource for which the credit is granted. The rate impact to

the Administrator's other customers of granting the credit shall be

no greater than the rate impact such customers would have

experienced had the Administrator been obligated to acquire

resources in an amount equal to that actually produced by the

resource for which the credit is granted.

(5) Retail rate structures which are voluntarily implemented by

the Administrator's customers and which induce conservation or

installation of consumer-owned renewable resources shall be

considered, for purposes of this subsection, to be (A) conservation

activities independently undertaken or carried on by such

customers, or (B) customer-owned renewable resources, and shall

qualify for billing credits upon the same showing as that required

for other conservation or renewable resource activities.

(6) Prior to granting any credit or providing services pursuant

to this subsection, the Administrator shall -

(A) comply with the notice provisions of subsection (c) of this

section, and include in such notice the methodology the

Administrator proposes to use in determining the amount of any

such credit;

(B) include the cost of such credit in the Administrator's

annual or amended budget submittal to the Congress made pursuant

to the Federal Columbia River Transmission System Act (16 U.S.C.

838(j)) (16 U.S.C. 838 et seq.);

(C) require that resources in excess of customer's reasonable

load growth shall have been offered to others for ownership

participation or other sponsorship pursuant to subsection (m) of

this section, except in the case of conservation, multi-purpose

projects uniquely suitable for development by the customer, or

renewable resources; and

(D) require that the operators of any generating resource for

which a billing credit is to be granted agree to operate such

resource in a manner compatible with the planning and operation

of the region's process power system.

(i) Contracts

Contracts for the acquisition of resources and for billing

credits for major resources, including conservation activities,

entered into pursuant to this section shall contain such terms and

conditions, applicable after the contract is entered into, as will

-

(1) insure timely construction, scheduling, completion, and

operation of resources,

(2) insure that the costs of any acquisition are as low as

reasonably possible, consistent (A) with sound engineering,

operating, and safety practices, and (B) the protection,

mitigation, and enhancement of fish and wildlife, including

related spawning grounds and habitat affected by the development

of such resources, and

(3) insure that the Administrator exercises effective

oversight, inspection, audit, and review of all aspects of such

construction and operation.

Such contracts shall contain provisions assuring that the

Administrator has the authority to approve all costs of, and

proposals for, major modifications in construction, scheduling or

operations and to assure that the Administrator is provided with

such current information as he deems necessary to evaluate such

construction and operation.

(j) Obligations not to be considered general obligations of United

States or secured by full faith and credit of United States

(1) All contractual and other obligations required to be carried

out by the Administrator pursuant to this chapter shall be secured

solely by the Administrator's revenues received from the sale of

electric power and other services. Such obligations are not, nor

shall they be construed to be, general obligations of the United

States, nor are such obligations intended to be or are they secured

by the full faith and credit of the United States.

(2) All contracts entered into by the Administrator for the

acquisition of resources pursuant to this chapter shall require

that, in the sale of any obligations, all offerings and promotional

material for the sale of such obligations shall include the

language contained in the second sentence of paragraph (1) of this

subsection. The Administrator shall monitor and enforce such

requirement.

(k) Equitable distribution of benefits

In the exercise of his authorities pursuant to this section, the

Administrator shall, consistent with the provisions of this chapter

and the Administrator's obligations to particular customer classes,

insure that benefits under this section, including financial and

technical assistance, conduct of conservation demonstrations, and

experimental projects, services, and billing credits, are

distributed equitably throughout the region.

(l) Investigations

(1) The Administrator is authorized and directed to investigate

opportunities for adding to the region's resources or reducing the

region's power costs through the accelerated or cooperative

development of resources located outside the States of Idaho,

Montana, Oregon, and Washington if such resources are renewable

resources, and are now or in the future planned or considered for

eventual development by nonregional agencies or authorities that

will or would own, sponsor, or otherwise develop them. The

Administrator shall keep the Council fully and currently informed

of such investigations, and seek the Council's advice as to the

desirability of pursuing such investigations.

(2) The Administrator is authorized and directed to investigate

periodically opportunities for mutually beneficial interregional

exchanges of electric power that reduce the need for additional

generation or generating capacity in the Pacific Northwest and the

regions with which such exchanges may occur. The Council shall

take into consideration in formulating a plan such investigations.

(3) After the Administrator submits a report to Congress pursuant

to paragraph (5) of this subsection, the Administrator is

authorized to acquire resources consistent with such investigations

and consistent with the plan or, if no plan is in effect, with the

priorities of section 839b(e)(1) of this title and the

considerations of section 839b(e)(2) of this title. Such

acquisitions shall be in accordance with the provisions of this

subsection.

(4) The Administrator shall conduct the investigations and the

acquisitions, if any, authorized under this subsection with the

assistance of other Federal agencies as may be appropriate.

(5) No later than July 1, 1981, the Administrator shall submit to

the Congress a report of the results of the investigations

undertaken pursuant to this subsection, together with the prospects

for obtaining additional resources under the authority granted by

this subsection and for reductions in generation or generating

capacity through exchanges.

(m) Offering of reasonable shares to each Pacific Northwest

electric utility

Except as to resources under construction on December 5, 1980,

the Administrator shall determine in each case of a major resource

acquisition that a reasonable share of the particular resource, or

a reasonable equivalent, has been offered to each Pacific Northwest

electric utility for ownership, participation, or other

sponsorship, but not in excess of the amounts needed to meet such

utility's Regional load.

-SOURCE-

(Pub. L. 96-501, Sec. 6, Dec. 5, 1980, 94 Stat. 2717.)

-REFTEXT-

REFERENCES IN TEXT

The National Environmental Policy Act of 1969, referred to in

subsec. (c)(4)(A), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852,

as amended, which is classified generally to chapter 55 (Sec. 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 Columbia River Transmission System Act, referred to

in subsecs. (c)(4)(C), (d), and (h)(6)(B), is Pub. L. 93-454, Oct.

18, 1974, 88 Stat. 1376, as amended, which is classified generally

to chapter 12G (Sec. 838 et seq.) of this title. For complete

classification of this Act to the Code, see Short Title note set

out under section 838 of this title and Tables.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 838k, 839b, 839c, 839e,

839f, 839g of this title; title 26 section 149.

-CITE-

16 USC Sec. 839d-1 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839d-1. Federal projects in Pacific Northwest

-STATUTE-

Without further appropriation and without fiscal year limitation,

the Secretaries of the Interior and Army are authorized to plan,

design, construct, operate and maintain generation additions,

improvements and replacements, at their respective Federal projects

in the Pacific Northwest Region as defined in the Pacific Northwest

Electric Power Planning and Conservation Act (Northwest Power Act),

Public Law 96-501 (16 U.S.C. 839a(14)), and to operate and maintain

the respective Secretary's power facilities in the Region, that the

respective Secretary determines necessary or appropriate and that

the Bonneville Power Administrator subsequently determines

necessary or appropriate, with any funds that the Administrator

determines to make available to the respective Secretary for such

purposes. Each Secretary is authorized, without further

appropriation, to accept and use such funds for such purposes:

Provided, That, such funds shall continue to be exempt from

sequestration pursuant to section 905(g)(1) of title 2: Provided

further, That this section shall not modify or affect the

applicability of any provision of the Northwest Power Act (16

U.S.C. 839 et seq.). This provision shall be effective on October

1, 1993.

-SOURCE-

(Pub. L. 102-486, title XXIV, Sec. 2406, Oct. 24, 1992, 106 Stat.

3099.)

-REFTEXT-

REFERENCES IN TEXT

The Pacific Northwest Electric Power Planning and Conservation

Act, referred to in text, is Pub. L. 96-501, Dec. 5, 1980, 94 Stat.

2697, which is classified principally to this chapter (Sec. 839 et

seq.). For complete classification of this Act to the Code, see

Short Title note set out under section 839 of this title and

Tables.

-COD-

CODIFICATION

Section was enacted as part of the Energy Policy Act of 1992, and

not as part of the Pacific Northwest Electric Power Planning and

Conservation Act which comprises this chapter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 33 section 2321a.

-CITE-

16 USC Sec. 839e 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839e. Rates

-STATUTE-

(a) Establishment; periodic review and revision; confirmation and

approval by Federal Energy Regulatory Commission

(1) The Administrator shall establish, and periodically review

and revise, rates for the sale and disposition of electric energy

and capacity and for the transmission of non-Federal power. Such

rates shall be established and, as appropriate, revised to recover,

in accordance with sound business principles, the costs associated

with the acquisition, conservation, and transmission of electric

power, including the amortization of the Federal investment in the

Federal Columbia River Power System (including irrigation costs

required to be repaid out of power revenues) over a reasonable

period of years and the other costs and expenses incurred by the

Administrator pursuant to this chapter and other provisions of

law. Such rates shall be established in accordance with sections 9

and 10 of the Federal Columbia River Transmission System Act (16

U.S.C. 838) (16 U.S.C. 838g and 838h), section 5 of the Flood

Control Act of 1944 (16 U.S.C. 825s), and the provisions of this

chapter.

(2) Rates established under this section shall become effective

only, except in the case of interim rules as provided in subsection

(i)(6) of this section, upon confirmation and approval by the

Federal Energy Regulatory Commission upon a finding by the

Commission, that such rates -

(A) are sufficient to assure repayment of the Federal

investment in the Federal Columbia River Power System over a

reasonable number of years after first meeting the

Administrator's other costs,

(B) are based upon the Administrator's total system costs, and

(C) insofar as transmission rates are concerned, equitably

allocate the costs of the Federal transmission system between

Federal and non-Federal power utilizing such system.

(b) General application of rates to meet general requirements

(1) The Administrator shall establish a rate or rates of general

application for electric power sold to meet the general

requirements of public body, cooperative, and Federal agency

customers within the Pacific Northwest, and loads of electric

utilities under section 839c(c) of this title. Such rate or rates

shall recover the costs of that portion of the Federal base system

resources needed to supply such loads until such sales exceed the

Federal base system resources. Thereafter, such rate or rates

shall recover the cost of additional electric power as needed to

supply such loads, first from the electric power acquired by the

Administrator under section 839c(c) of this title and then from

other resources.

(2) After July 1, 1985, the projected amounts to be charged for

firm power for the combined general requirements of public body,

cooperative and Federal agency customers, exclusive of amounts

charged such customers under subsection (g) of this section for the

costs of conservation, resource and conservation credits,

experimental resources and uncontrollable events, may not exceed in

total, as determined by the Administrator, during any year after

July 1, 1985, plus the ensuing four years, an amount equal to the

power costs for general requirements of such customer if, the

Administrator assumes that -

(A) the public body and cooperative customers' general

requirements had included during such five-year period the direct

service industrial customer loads which are -

(i) served by the Administrator, and

(ii) located within or adjacent to the geographic service

boundaries of such public bodies and cooperatives;

(B) public body, cooperative, and Federal agency customers were

served, during such five-year period, with Federal base system

resources not obligated to other entities under contracts

existing as of December 5, 1980, (during the remaining term of

such contracts) excluding obligations to direct service

industrial customer loads included in subparagraph (A) of this

paragraph;

(C) no purchases or sales by the Administrator as provided in

section 839c(c) of this title were made during such five-year

period;

(D) all resources that would have been required, during such

five-year period, to meet remaining general requirements of the

public body, cooperative and Federal agency customers (other than

requirements met by the available Federal base system resources

determined under subparagraph (B) of this paragraph) were -

(i) purchased from such customers by the Administrator

pursuant to section 839d of this title, or

(ii) not committed to load pursuant to section 839c(b) of

this title,

and were the least expensive resources owned or purchased by

public bodies or cooperatives; and any additional needed

resources were obtained at the average cost of all other new

resources acquired by the Administrator; and

(E) the quantifiable monetary savings, during such five-year

period, to public body, cooperative and Federal agency customers

resulting from -

(i) reduced public body and cooperative financing costs as

applied to the total amount of resources, other than Federal

base system resources, identified under subparagraph (D) of

this paragraph, and

(ii) reserve benefits as a result of the Administrator's

actions under this chapter (FOOTNOTE 1)

(FOOTNOTE 1) So in original. Probably should be followed by a

comma.

were not achieved.

(3) Any amounts not charged to public body, cooperative, and

Federal agency customers by reason of paragraph (2) of this

subsection shall be recovered through supplemental rate charges for

all other power sold by the Administrator to all customers. Rates

charged public body, cooperative, or Federal agency customers

pursuant to this subsection shall not include any costs or benefits

of a net revenue surplus or deficiency occurring for the period

ending June 30, 1985, to the extent such surplus or deficiency is

caused by -

(A) a difference between actual power deliveries and power

deliveries projected for the purpose of establishing rates to

direct service industrial customers under subsection (c)(1) of

this subsection, and

(B) an overrecovery or underrecovery of the net costs incurred

by the Administrator under section 839c(c) of this title as a

result of such difference.

Any such revenue surplus or deficiency incurred shall be recovered

from, or repaid to, customers over a reasonable period of time

after July 1, 1985, through a supplemental rate charge or credit

applied proportionately for all other power sold by the

Administrator at rates established under other subsections of this

section prior to July 1, 1985.

(4) The term ''general requirements'' as used in this section

means the public body, cooperative or Federal agency customer's

electric power purchased from the Administrator under section

839c(b) of this title, exclusive of any new large single load.

(c) Rates applicable to direct service industrial customers

(1) The rate or rates applicable to direct service industrial

customers shall be established -

(A) for the period prior to July 1, 1985, at a level which the

Administrator estimates will be sufficient to recover the cost of

resources the Administrator determines are required to serve such

customers' load and the net costs incurred by the Administrator

pursuant to section 839c(c) of this title, based upon the

Administrator's projected ability to make power available to such

customers pursuant to their contracts, to the extent that such

costs are not recovered through rates applicable to other

customers; and

(B) for the period beginning July 1, 1985, at a level which the

Administrator determines to be equitable in relation to the

retail rates charged by the public body and cooperative customers

to their industrial consumers in the region.

(2) The determination under paragraph (1)(B) of this subsection

shall be based upon the Administrator's applicable wholesale rates

to such public body and cooperative customers and the typical

margins included by such public body and cooperative customers in

their retail industrial rates but shall take into account -

(A) the comparative size and character of the loads served,

(B) the relative costs of electric capacity, energy,

transmission, and related delivery facilities provided and other

service provisions, and

(C) direct and indirect overhead costs.

all as related to the delivery of power to industrial customers,

except that the Administrator's rates during such period shall in

no event be less than the rates in effect for the contract year

ending on June 30, 1985.

(3) The Administrator shall adjust such rates to take into

account the value of power system reserves made available to the

Administrator through his rights to interrupt or curtail service to

such direct service industrial customers.

(d) Discount rates; special rates

(1) In order to avoid adverse impacts on retail rates of the

Administrator's customers with low system densities, the

Administrator shall, to the extent appropriate, apply discounts to

the rate or rates for such customers.

(2) In order to avoid adverse impacts of increased rates pursuant

to this chapter on any direct service industrial customer using raw

minerals indigenous to the region as its primary resource, the

Administrator, upon request of such customer showing such impacts

and after considering the effect of such request on his other

obligations under this chapter, is authorized, if the Administrator

determines that such impacts will be significant, to establish a

special rate applicable to such customer if all power sold to such

customer may be interrupted, curtailed, or withdrawn to meet firm

loads in the region. Such rate shall be established in accordance

with this section and shall include such terms and conditions as

the Administrator deems appropriate.

(e) Uniform rates; rates for sale of peaking capacity; time-of-day,

seasonal, and other rates

Nothing in this chapter prohibits the Administrator from

establishing, in rate schedules of general application, a uniform

rate or rates for sale of peaking capacity or from establishing

time-of-day, seasonal rates, or other rate forms.

(f) Basis for rates

Rates for all other firm power sold by the Administrator for use

in the Pacific Northwest shall be based upon the cost of the

portions of Federal base system resources, purchases of power under

section 839c(c) of this title and additional resources which, in

the determination of the Administrator, are applicable to such

sales.

(g) Allocation of costs and benefits

Except to the extent that the allocation of costs and benefits is

governed by provisions of law in effect on December 5, 1980, or by

other provisions of this section, the Administrator shall equitably

allocate to power rates, in accordance with generally accepted

ratemaking principles and the provisions of this chapter, all costs

and benefits not otherwise allocated under this section, including,

but not limited to, conservation, fish and wildlife measures,

uncontrollable events, reserves, the excess costs of experimental

resources acquired under section 839d of this title, the cost of

credits granted pursuant to section 839d of this title, operating

services, and the sale of or inability to sell excess electric

power.

(h) Surcharges

Notwithstanding any other provision of this section (except the

provisions of subsection (a) of this section), the Administrator

shall adjust power rates to include any surcharges arising under

section 839b(f) of this title, and shall allocate any revenues from

such charges in such manner as the Administrator determines will

help achieve the purposes of section 839b(f) of this title.

(i) Procedures

In establishing rates under this section, the Administrator shall

use the following procedures:

(1) Notice of the proposed rates shall be published in the

Federal Register with a statement of the justification and

reasons supporting such rates. Such notice shall include a date

for a hearing in accordance with paragraph (2) of this

subsection.

(2) One or more hearings shall be conducted as expeditiously as

practicable by a hearing officer to develop a full and complete

record and to receive public comment in the form of written and

oral presentation of views, data questions, and argument related

to such proposed rates. In any such hearing -

(A) any person shall be provided an adequate opportunity by

the hearing officer to offer refutation or rebuttal of any

material submitted by any other person or the Administrator,

and

(B) the hearing officer, in his discretion, shall allow a

reasonable opportunity for cross examination, which, as

determined by the hearing officer, is not dilatory, in order to

development information and material relevant to any such

proposed rate.

(3) In addition to the opportunity to submit oral and written

material at the hearings, any written views, data, questions, and

arguments submitted by persons prior to, or before the close of,

hearings shall be made a part of the administrative record.

(4) After such a hearing, the Administrator may propose revised

rates, publish such proposed rates in the Federal Register, and

conduct additional hearings in accordance with this subsection.

(5) The Administrator shall make a final decision establishing

a rate or rates based on the record which shall include the

hearing transcript, together with exhibits, and such other

materials and information as may have been submitted to, or

developed by, the Administrator. The decision shall include a

full and complete justification of the final rates pursuant to

this section.

(6) The final decision of the Administrator shall become

effective on confirmation and approval of such rates by the

Federal Energy Regulatory Commission pursuant to subsection

(a)(2) of this section. The Commission shall have the authority,

in accordance with such procedures, if any, as the Commission

shall promptly establish and make effective within one year after

December 5, 1980, to approve the final rate submitted by the

Administrator on an interim basis, pending the Commission's final

decision in accordance with such subsection. Pending the

establishment of such procedures by the Commission, if such

procedures are required, the Secretary is authorized to approve

such interim rates during such one-year period in accordance with

the applicable procedures followed by the Secretary prior to

December 5, 1980. Such interim rates, at the discretion of the

Secretary, shall continue in effect until July 1, 1982.

(j) Cost figures to be indicated on rate schedules and power

billings

All rate schedules adopted, and all power billings rendered, by

the Administrator pursuant to this section shall indicate -

(1) the approximate cost contribution of different resource

categories to the Administrator's rates for the sale of energy

and capacity, and

(2) the cost of resources acquired to meet load growth within

the region and the relation of such cost to the average cost of

resources available to the Administrator.

(k) Statutory basis for procedures used in establishing rates or

rate schedules

Notwithstanding any other provision of this chapter, all rates or

rate schedules for the sale of nonfirm electric power within the

United States, but outside the region, shall be established after

December 5, 1980, by the Administrator in accordance with the

procedures of subsection (i) of this section (other than the first

sentence of paragraph (6) thereof) and in accordance with the

Bonneville Project Act (16 U.S.C. 832 et seq.), the Flood Control

Act of 1944, and the Federal Columbia River Transmission System Act

(16 U.S.C. 838 et seq.). Notwithstanding section 201(f) of the

Federal Power Act (16 U.S.C. 824(f)), such rates or rate schedules

shall become effective after review by the Federal Energy

Regulatory Commission for conformance with the requirements of such

Acts and after approval thereof by the Commission. Such review

shall be based on the record of proceedings established under

subsection (i) of this section. The parties to such proceedings

under subsection (i) of this section shall be afforded an

opportunity by the Commission for an additional hearing in

accordance with the procedures established for ratemaking by the

Commission pursuant to the Federal Power Act (16 U.S.C. 791a et

seq.).

(l) Rates for sales outside United States; negotiations

In order to further the purposes of this chapter and to protect

the consumers of the region, the Administrator may negotiate, or

establish, rates for electric power sold by the Administrator to

any entity not located in the United States which shall be

equitable in relation to rates for all electric power which is, or

may be, purchased by the Administrator or the Administrator's

customers from entities outside the United States. In establishing

rates other than by negotiation, the provisions of subsection (i)

of this section shall apply. In the case of any negotiation with

an entity not located in the United States, the Administrator shall

provide public notice of any proposal to negotiate such rates.

Such negotiated rates shall be not less than the rates established

under this chapter for nonfirm power sold within the United States

but outside the region. The Administrator shall also afford notice

of any rates negotiated pursuant to this subsection.

(m) Impact aid payments; formula

(1) Beginning the first fiscal year after the plan and program

required by section 839b(d) and (h) of this title are finally

adopted, the Administrator may, subject to the provisions of this

section, make annual impact aid payments to the appropriate local

governments within the region with respect to major transmission

facilities of the Administrator, as defined in section 3(c) of the

Federal Columbia River Transmission Act (16 U.S.C. 838a(c)) -

(A) which are located within the jurisdictional boundaries of

such governments,

(B) which are determined by the Administrator to have a

substantial impact on such governments, and

(C) where the construction of such facilities, or any

modification thereof, is completed after December 5, 1980, and,

in the case of a modification of an existing facility, such

modification substantially increases the capacity of such

existing transmission facility.

(2) Payments made under this subsection for any fiscal year shall

be determined by the Administrator pursuant to a regionwide,

uniform formula to be established by rule in accordance with the

procedures set forth in subsection (i) of this section. Such rule

shall become effective on its approval, after considering its

effect on rates established pursuant to this section, by the

Federal Energy Regulatory Commission. In developing such formula,

the Administrator shall identify, and take into account, the local

governmental services provided to the Administrator concerning such

facilities and the associated costs to such governments as the

result of such facilities.

(3) Payments made pursuant to this subsection shall be made

solely from the fund established by section 11 of the Federal

Columbia River Transmission System Act (16 U.S.C. 838i). The

provisions of section 13 of such Act (16 U.S.C. 838k), and any

appropriations provided to the Administrator under any law, shall

not be available for such payments. The authorization of payments

under this subsection shall not be construed as an obligation of

the United States.

(4) No payment may be made under this subsection with respect to

any land or interests in land owned by the United States within the

region and administered by any Federal agency (other than the

Administrator), without regard to how the United States obtained

ownership thereof, including lands or interests therein acquired or

withdrawn by a Federal agency for purposes of such agency and

subsequently made available to the Administrator for such

facilities.

(n) Limiting the inclusion of costs of protection of, mitigation of

damage to, and enhancement of fish and wildlife, within rates

charged by the Bonneville Power Administration, to the rate

period in which the costs are incurred

Notwithstanding any other provision of this section, rates

established by the Administrator, under this section shall recover

costs for protection, mitigation and enhancement of fish and

wildlife, whether under this chapter or any other Act, not to

exceed such amounts the Administrator forecasts will be expended

during the fiscal year 2002-2006 rate period, while preserving the

Administrator's ability to establish appropriate reserves and

maintain a high Treasury payment probability for the subsequent

rate period.

-SOURCE-

(Pub. L. 96-501, Sec. 7, Dec. 5, 1980, 94 Stat. 2723; Pub. L.

106-60, title III, Sec. 316, Sept. 29, 1999, 113 Stat. 497.)

-REFTEXT-

REFERENCES IN TEXT

The Bonneville Project Act, referred to in subsec. (k), is act

Aug. 20, 1937, ch. 720, 50 Stat. 731, as amended, popularly known

as the Bonneville Project Act of 1937, which is classified

generally to chapter 12B (Sec. 832 et seq.) of this title. For

complete classification of this Act to the Code, see Short Title

note set out under section 832 of this title and Tables.

The Flood Control Act of 1944, referred to in subsec. (k), is act

Dec. 22, 1944, ch. 665, 58 Stat. 887, as amended, which enacted

sections 460d and 825s of this title, sections 701-1, 701a-1, 708,

and 709 of Title 33, Navigation and Navigable Waters, and section

390 of Title 43, Public Lands, and enacted provisions set out as

notes under sections 701c, 701f, and 701j of Title 33. For complete

classification of this Act to the Code, see Tables. For provisions

of the Act relating to sale of electric power, see section 825s of

this title.

The Federal Columbia River Transmission System Act, referred to

in subsec. (k), is Pub. L. 93-454, Oct. 18, 1974, 88 Stat. 1376, as

amended, which is classified generally to chapter 12G (Sec. 838 et

seq.) of this title. For complete classification of this Act to

the Code, see Short Title note set out under section 838 of this

title and Tables.

The Federal Power Act, referred to in subsec. (k), is act June

10, 1920, ch. 285, 41 Stat. 1063, as amended, which is classified

generally to chapter 12 (Sec. 791a et seq.) of this title. For

complete classification of this Act to the Code, see section 791a

of this title and Tables.

-MISC2-

AMENDMENTS

1999 - Subsec. (n). Pub. L. 106-60 added subsec. (n).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 824k, 832m, 838l, 839c,

839f, 839g of this title.

-CITE-

16 USC Sec. 839f 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839f. Administrative provisions

-STATUTE-

(a) Contract authority

Subject to the provisions of this chapter, the Administrator is

authorized to contract in accordance with section 2(f) of the

Bonneville Project Act of 1937 (16 U.S.C. 832a(f)). Other

provisions of law applicable to such contracts on December 5, 1980,

shall continue to be applicable.

(b) Executive and administrative functions of Administrator of

Bonneville Power Administration; sound and businesslike

implementation of chapter

The Administrator shall discharge the executive and

administrative functions of his office in accordance with the

policy established by the Bonneville Project Act of 1937 (16 U.S.C.

832 and following), section 7152(a)(2) and (3) of title 42, and

this chapter. The Secretary of Energy, the Council, and the

Administrator shall take such steps as are necessary to assure the

timely implementation of this chapter in a sound and businesslike

manner. Nothing in this chapter shall be construed by the

Secretary, the Administrator, or any other official of the

Department of Energy to modify, alter, or otherwise affect the

requirements and directives expressed by the Congress in section

7152(a)(2) and (3) of title 42 or the operations of such officials

as they existed prior to December 5, 1980.

(c) Limitations and conditions on contracts for sale or exchange of

electric power for use outside Pacific Northwest

Any contract of the Administrator for the sale or exchange of

electric power for use outside the Pacific Northwest shall be

subject to limitations and conditions corresponding to those

provided in sections 2 and 3 of the Act of August 31, 1964 (16

U.S.C. 837a and 837b) for any contract for the sale, delivery, or

exchange of hydroelectric energy or peaking capacity generated

within the Pacific Northwest for use outside the Pacific Northwest.

In applying such sections for the purposes of this subsection, the

term ''surplus energy'' shall mean electric energy for which there

is no market in the Pacific Northwest at any rate established for

the disposition of such energy, and the term ''surplus peaking

capacity'' shall mean electric peaking capacity for which there is

no demand in the Pacific Northwest at the rate established for the

disposition of such capacity. The authority granted, and duties

imposed upon, the Secretary by sections 5 and 7 of such Act (16

U.S.C. 837e and 837f) (16 U.S.C. 837d and 837f) shall also apply to

the Administrator in connection with resources acquired by the

Administrator pursuant to this chapter. The Administrator shall,

in making any determination, under any contract executed pursuant

to section 839c of this title, of the electric power requirements

of any Pacific Northwest customer, which is a non-Federal entity

having its own generation, exclude, in addition to hydroelectric

generated energy excluded from such requirements pursuant to

section 3(d) of such Act (16 U.S.C. 837b(d)), any amount of energy

included in the resources of such customer for service to firm

loads in the region if (1) such amount was disposed of by such

customer outside the region, and (2) as a result of such

disposition, the firm energy requirements of such customer or other

customers of the Administrator are increased. Such amount of

energy shall not be excluded, if the Administrator determines that

through reasonable measures such amount of energy could not be

conserved or otherwise retained for service to regional loads. The

Administrator may sell as replacement for any amount of energy so

excluded only energy that would otherwise be surplus.

(d) Disposition of power which does not increase amount of firm

power Administrator is obligated to provide to any customer

No restrictions contained in subsection (c) of this section shall

limit or interfere with the sale, exchange or other disposition of

any power by any utility or group thereof from any existing or new

non-Federal resource if such sale, exchange or disposition does not

increase the amount of firm power the Administrator would be

obligated to provide to any customer. In addition to the

directives contained in subsections (i)(1)(B) and (i)(3) of this

section and subject to:

(1) any contractual obligations of the Administrator,

(2) any other obligations under existing law, and

(3) the availability of capacity in the Federal transmission

system,

the Administrator shall provide transmission access, load

factoring, storage and other services normally attendant thereto to

such utilities and shall not discriminate against any utility or

group thereof on the basis of independent development of such

resource in providing such services.

(e) Judicial review; suits

(1) For purposes of sections 701 through 706 of title 5, the

following actions shall be final actions subject to judicial review

-

(A) adoption of the plan or amendments thereto by the Council

under section 839b of this title, adoption of the program by the

Council, and any determination by the Council under section

839b(h) of this title;

(B) sales, exchanges, and purchases of electric power under

section 839c of this title;

(C) the Administrator's acquisition of resources under section

839d of this title;

(D) implementation of conservation measures under section 839d

of this title;

(E) execution of contracts for assistance to sponsors under

section 839d(f) of this title;

(F) granting of credits under section 839d(h) of this title;

(G) final rate determinations under section 839e of this title;

and

(H) any rule prescribed by the Administrator under section

839e(m)(2) of this title.

(2) The record upon review of such final actions shall be limited

to the administrative record compiled in accordance with this

chapter. The scope of review of such actions without a hearing or

after a hearing shall be governed by section 706 of title 5, except

that final determinations regarding rates under section 839e of

this title shall be supported by substantial evidence in the

rulemaking record required by section 839e(i) of this title

considered as a whole. The scope of review of an action under

section 839d(c) of this title shall be governed by section 706 of

title 5. Nothing in this section shall be construed to require a

hearing pursuant to section 554, 556, or 557 of title 5.

(3) Nothing in this section shall be construed to preclude

judicial review of other final actions and decisions by the Council

or Administrator.

(4) For purposes of this subsection -

(A) major resources shall be deemed to be acquired upon

publication in the Federal Register pursuant to section

839d(c)(4)(B) of this title;

(B) resources, other than major resources, shall be deemed to

be acquired upon execution of the contract therefor;

(C) conservation measures shall be deemed to be implemented

upon execution of the contract or grant therefor; and

(D) rate determinations pursuant to section 839e of this title

shall be deemed final upon confirmation and approval by the

Federal Energy Regulatory Commission.

(5) Suits to challenge the constitutionality of this chapter, or

any action thereunder, final actions and decisions taken pursuant

to this chapter by the Administrator or the Council, or the

implementation of such final actions, whether brought pursuant to

this chapter, the Bonneville Project Act (16 U.S.C. 832 et seq.),

the Act of August 31, 1964 (16 U.S.C. 837-837h), or the Federal

Columbia River Transmission System Act (16 U.S.C. 838 and

following), shall be filed in the United States court of appeals

for the region. Such suits shall be filed within ninety days of

the time such action or decision is deemed final, or, if notice of

the action is required by this chapter to be published in the

Federal Register, within ninety days from such notice, or be

barred. In the case of a challenge of the plan or programs or

amendments thereto, such suit shall be filed within sixty days

after publication of a notice of such final action in the Federal

Register. Such court shall have jurisdiction to hear and determine

any suit brought as provided in this section. The plan and

program, as finally adopted or portions thereof, or amendments

thereto, shall not thereafter be reviewable as a part of any other

action under this chapter or any other law. Suits challenging any

other actions under this chapter shall be filed in the appropriate

court.

(f) Tax treatment of interest on governmental obligations

For purposes of enabling the Administrator to acquire resources

necessary to meet the firm load of public bodies, cooperatives, and

Federal agencies from a governmental unit at a cost no greater than

the cost which would be applicable in the absence of such

acquisition, the exemption from gross income of interest on certain

governmental obligations provided in section 103(a)(1) (FOOTNOTE 1)

title 26 shall not be affected by the Administrator's acquisition

of such resources if -

(FOOTNOTE 1) See References in Text note below.

(1) the Administrator, prior to contracting for such

acquisition, certifies to his reasonable belief, that the persons

for whom the Administrator is acquiring such resources for sale

pursuant to section 839c of this title are public bodies,

cooperatives, and Federal agencies, unless the Administrator also

certifies that he is unable to acquire such resources without

selling a portion thereof to persons who are not exempt persons

(as defined in section 103(b) (FOOTNOTE 1) of title 26), and

(2) based upon such certification, the Secretary of the

Treasury determines in accordance with applicable regulations

that less than a major portion of the resource is to be furnished

to persons who are not exempt persons (as defined in section

103(b) (FOOTNOTE 1) of title 26).

The certification under paragraph (1) shall be made in accordance

with this subsection and a procedure and methodology approved by

the Secretary of the Treasury. For purposes of this subsection, the

term ''major portion'' shall have the meaning provided by

regulations issued by the Secretary of the Treasury.

(g) Review of rates for sale of power to Administrator by

investor-owned utility customers

When reviewing rates for the sale of power to the Administrator

by an investor-owned utility customer under section 839c(c) or 839d

of this title, the Federal Energy Regulatory Commission shall, in

accordance with section 824h of this title -

(1) convene a joint State board, and

(2) invest such board with such duties and authority as will

assist the Commission in its review of such rates.

(h) Companies which own or operate facilities for the generation of

electricity primarily for sale to Administrator

(1) No ''company'' (as defined in section 79b(a)(2) of title 15),

which owns or operates facilities for the generation of electricity

(together with associated transmission and other facilities)

primarily for sale to the Administrator under section 839d of this

title shall be deemed an ''electric utility company'' (as defined

in section 79b(a)(3) of title 15), within the meaning of any

provision or provisions of chapter 2C of title 15, if at least 90

per centum of the electricity generated by such company is sold to

the Administrator under section 839d of this title, and if -

(A) the organization of such company is consistent with the

policies of section 79a(b) and (c) of title 15, as determined by

the Securities and Exchange Commission, with the concurrence of

the Administrator, at the time of such organization; and

(B) participation in any facilities of such ''company'' has

been offered to public bodies and cooperatives in the region

pursuant to section 839d(m) of this title.

(2) The Administrator shall include in any contract for the

acquisition of a major resource from such ''company'' provisions

limiting the amount of equity investment, if any, in such

''company'' to that which the Administrator determines will be

consistent with achieving the lowest attainable power costs

attributable to such major resource.

(3) In the case of any ''company'' which meets the requirements

of paragraph (1), the Administrator, with the concurrence of such

Commission, shall approve all significant contracts entered into

by, and between, such ''company'' and any sponsor company or any

subsidiary of such sponsor company which are determined to be

consistent with the policies of section 79a(b) and (c) of title 15

at the time such contracts are entered into. The Administrator and

the Securities and Exchange Commission shall exercise such approval

authority within sixty days after receipt of such contracts. Such

contracts shall not be effective without such approval.

(4) Paragraph (1) of this subsection shall continue to apply to

any such ''company'' unless the Administrator or the Securities and

Exchange Commission, or both, through periodic review, (A)

determine at any time that the ''company'' no longer operates in a

manner consistent with the policies of section 79a(b) and (c) of

title 15 and in accordance with this subsection, and (B) notify the

''company'' in writing of such preliminary determination. This

subsection shall cease to apply to such ''company'' thirty days

after receipt of notification of a final determination thereof. A

final determination shall be made only after public notice of the

preliminary determination and after a hearing completed not later

than sixty days from the date of publication of such notice. Such

final determination shall be made within thirty days after the date

of completion of such hearing.

(i) Electric power acquisition or disposition

(1) At the request and expense of any customer or group of

customers of the Administrator within the Pacific Northwest, the

Administrator shall, to the extent practicable -

(A) acquire any electric power required by (i) any customer or

group of customers to enable them to replace resources determined

to serve firm load under section 839c(b) of this title, or (ii)

direct service industrial customers to replace electric power

that is or may be curtailed or interrupted by the Administrator

(other than power the Administrator is obligated to replace),

with the cost of such replacement power to be distributed among

the direct service industrial customers requesting such power;

and

(B) dispose of, or assist in the disposal of, any electric

power that a customer or group of customers proposes to sell

within or without the region at rates and upon terms specified by

such customer or group of customers, if such disposition is not

in conflict with the Administrator's other marketing obligations

and the policies of this chapter and other applicable laws.

(2) In implementing the provisions of subparagraphs (A) and (B)

of paragraph (1), the Administrator may prescribe policies and

conditions for the independent acquisition or disposition of

electric power by any direct service industrial customer or group

of such customers for the purpose of assuring each direct service

industrial customer an opportunity to participate in such

acquisition or disposition.

(3) The Administrator shall furnish services including

transmission, storage, and load factoring unless he determines such

services cannot be furnished without substantial interference with

his power marketing program, applicable operating limitations or

existing contractual obligations. The Administrator shall, to the

extent practicable, give priority in making such services available

for the marketing, within and without the Pacific Northwest, of

capability from projects under construction on December 5, 1980, if

such capability has been offered for sale at cost, including a

reasonable rate of return, to the Administrator pursuant to this

chapter and such offer is not accepted within one year.

(j) Retail rate designs which encourage conservation and efficient

use of electric energy, installation of consumer-owned

renewable resources, and rate research and development

(1) The Council, as soon as practicable after December 5, 1980

shall prepare, in consultation with the Administrator, the

customers, appropriate State regulatory bodies, and the public, a

report and shall make recommendations with respect to the various

retail rate designs which will encourage conservation and efficient

use of electric energy and the installation of consumer-owned

renewable resources on a cost-effective basis, as well as areas for

research and development for possible application to retail utility

rates within the region. Studies undertaken pursuant to this

subsection shall not affect the responsibilities of any customer or

the Administrator which may exist under the Public Utility

Regulatory Policies Act of 1978.

(2) Upon request, and solely on behalf of customers so

requesting, the Administrator is authorized to (A) provide

assistance in analyzing and developing retail rate structures that

will encourage cost-effective conservation and the installation of

cost-effective consumer-owned renewable resources; (B) provide

estimates of the probable power savings and the probable amount of

billing credits under section 839d(h) of this title that might be

realized by such customers as a result of adopting and implementing

such retail rate structures; and (C) solicit additional information

and analytical assistance from appropriate State regulatory bodies

and the Administrator's other customers.

(k) Executive position for conservation and renewable resources

There is hereby established within the administration an

executive position for conservation and renewable resources. Such

executive shall be appointed by the Administrator and shall be

assigned responsibility for conservation and direct-application

renewable resource programs (including the administration of

financial assistance for such programs). Such position is hereby

established in the senior executive service in addition to the

number of such positions heretofore established in accordance with

other provisions of law applicable to such positions.

-SOURCE-

(Pub. L. 96-501, Sec. 9, Dec. 5, 1980, 94 Stat. 2729; Pub. L.

99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.)

-REFTEXT-

REFERENCES IN TEXT

The Bonneville Project Act of 1937, referred to in subsecs. (b)

and (e)(5), is act Aug. 20, 1937, ch. 720, 50 Stat. 731, as

amended, which is classified generally to chapter 12B (Sec. 832 et

seq.) of this title. For complete classification of this Act to

the Code, see Short Title set out under section 832 of this title

and Tables.

Act of August 31, 1964, referred to in subsec. (e)(5), is Pub. L.

88-552, Aug. 31, 1964, 78 Stat. 756, as amended, which is

classified generally to chapter 12F (Sec. 837 et seq.) of this

title. For complete classification of this Act to the Code, see

Tables.

The Federal Columbia River Transmission System Act, referred to

in subsec. (e)(5), is Pub. L. 93-454, Oct. 18, 1974, 88 Stat. 1376,

as amended, which is classified generally to chapter 12G (Sec. 838

et seq.) of this title. For complete classification of this Act to

the Code, see Short Title note set out under section 838 of this

title and Tables.

Section 103 of title 26, referred to in subsec. (f), which

related to interest on certain governmental obligations was amended

generally by Pub. L. 99-514, title XIII, Sec. 1301(a), Oct. 22,

1986, 100 Stat. 2602, and as so amended relates to interest on

State and local bonds. Section 103(b)(3), which prior to the

general amendment defined exempt persons, relates to the

applicability of the interest exclusion to bonds not in registered

form, etc.

Chapter 2C (Sec. 79 et seq.) of title 15, referred to in subsec.

(h)(1), contains the Public Utility Holding Company Act of 1935,

act Aug. 26, 1935, ch. 687, title I, 49 Stat. 803, as amended. For

complete classification of this Act to the Code, see section 79 of

Title 15, Commerce and Trade, and Tables.

The Public Utility Regulatory Policies Act of 1978, referred to

in subsec. (j)(1), is Pub. L. 95-617, Nov. 9, 1978, 92 Stat. 3117,

as amended. For complete classification of this Act to Code, see

Short Title note set out under section 2601 of this title and

Tables.

-MISC2-

AMENDMENTS

1986 - Subsec. (f). Pub. L. 99-514 substituted ''Internal Revenue

Code of 1986'' for ''Internal Revenue Code of 1954'', which for

purposes of codification was translated as ''title 26'' thus

requiring no change in text.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 832m of this title.

-CITE-

16 USC Sec. 839g 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839g. Savings provisions

-STATUTE-

(a) Rights of States and political subdivisions of States

Nothing in this chapter shall be construed to affect or modify

any right of any State or political subdivision thereof or electric

utility to -

(1) determine retail electric rates, except as provided by

section 839c(c)(3) of this title;

(2) develop and implement plans and programs for the

conservation, development, and use of resources; or

(3) make energy facility siting decisions, including, but not

limited to, determining the need for a particular facility,

evaluating alternative sites, and considering alternative methods

of meeting the determined need.

(b) Rights and obligations under existing contracts

Nothing in this chapter shall alter, diminish, or abridge the

rights and obligations of the Administrator or any customer under

any contract existing as of December 5, 1980.

(c) Statutory preferences and priorities of public bodies and

cooperatives in sale of federally generated power

Nothing in this chapter shall alter, diminish, abridge, or

otherwise affect the provisions of other Federal laws by which

public bodies and cooperatives are entitled to preference and

priority in the sale of federally generated electric power.

(d) Contractual rights under provisions later found to be

unconstitutional

If any provision of this chapter is found to be unconstitutional,

then any contract entered into by the Administrator, prior to such

finding and in accordance with such provisions, to sell power,

acquire or credit resources, or to reimburse investigation and

preconstruction expenses pursuant to section 839c of this title,

and section 839d(a), (f) or (h) of this title shall not be affected

by such finding.

(e) Treaty and other rights of Indian tribes

Nothing in this chapter shall be construed to affect or modify

any treaty or other right of an Indian tribe.

(f) Reservation of electric power for Montana; Hungry Horse and

Libby Dams and Reservoirs

The reservation under law of electric power primarily for use in

the State of Montana by reason of the construction of Hungry Horse

and Libby Dams and Reservoirs within that State is hereby

affirmed. Such reservation shall also apply to 50 per centum of

any electric power produced at Libby Reregulating Dam if built.

Electric power so reserved shall be sold at the rate or rates set

pursuant to section 839e of this title.

(g) Rights of States to prohibit recovery of resource construction

costs through retail rates

Nothing in this chapter shall be construed to affect or modify

the right of any State to prohibit utilities regulated by the

appropriate State regulatory body from recovering, through their

retail rates, costs during any period of resource construction.

(h) Water appropriations

Nothing in this chapter 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 chapter of any plan or program adopted pursuant

to the chapter (1) affect the rights or jurisdictions of the United

States, the States, Indian tribes, or other entities over waters of

any river or stream or over any groundwater resource, (2) alter,

amend, repeal, interpret, modify, or be in conflict with any

interstate compact made by the States, or (3) otherwise be

construed to 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.

(i) Existing Federal licenses, permits, and certificates

Nothing in this chapter shall be construed to affect the validity

of any existing license, permit, or certificate issued by any

Federal agency pursuant to any other Federal law.

-SOURCE-

(Pub. L. 96-501, Sec. 10, Dec. 5, 1980, 94 Stat. 2734.)

-CITE-

16 USC Sec. 839h 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND

CONSERVATION

-HEAD-

Sec. 839h. Separability

-STATUTE-

If any provision of section 839b(a) through (c) of this title or

any other provision of this chapter or the application thereof to

any person, State, Indian tribe, entity, or circumstance is held

invalid, neither the remainder of section 839b of this title or any

other provisions of this chapter, nor the application of such

provisions to other persons, States, Indian tribes, entities, or

circumstances, shall be affected thereby.

-SOURCE-

(Pub. L. 96-501, Sec. 12, Dec. 5, 1980, 94 Stat. 2736.)

-CITE-