department of energy organization act

August 4, 1977

3048

DEPARTMENT OF ENERGY ORGANIZATION ACT

[E** from] An act to estab~ih a Department of Energy in the executive branch by thereorganimtion of energy functions within the Federal Government in order to secure ef-fective management to assure a coordinated nationalenergy policy,and for other purposes.(Act of August 4, 1977, Public Law 95-91,91 Stat. 565)

[S=. 1 Short titie.]-This act maybe cited as the “Department of EnergyOrganization Act”. (91 Stat. 565; 42 U.S.C. $7101 note)

TABLEOF CONTENTS

Sec. 2. Definitions.

TITLE I—DECLARATION OF FINDINGS AND PURPOSES

Sec. 101. Findings.Sec. 102. Purposes.Sec. 103. Rehtionshlp with States.

TITLE II—ESTABLISHMENT OF THE DEPARTMENT

Sec. 201. Establishment.Sec. 202. Principal officers.Sec. 203. AssistantSecretaries.Sec. 204. Federal Energy Regulatory Commission.Sec. 205. Energy Information Administration.Sec. 206. Economic Reguhtory Administration.Sec. 207. Comptroller General functions.Sec. 208. Office of Inspector General.Sec. 209. Office of Energy Research.Sec. 210. Leasing Liaison Committee.

TITLE III—TRANSFERS OF FUNCTIONS

Sec. 301.Sec. 302.Sec. 303.Sec. 304.sec. 305.Sec. 306.Sec. 307.Sec. 308.Sec. 309.Sec. 310.

General transfers.Transfers from the Department of the Interior.Administrationof leasing transfers.Transfers from the Department of Housing and Urban Development.Coordination with the Department of Transportation.Tmnsfer from the Interstate Commerce Commission.Transfers from the Department of the Navy.Transfers from the Department of Commerce.Naval reactor and military applicationprograms.Transfer to the Department of Transportation.

TITLE IV—FEDERAL ENERGY REGULATORY COMMISSION

Sec. 401. Appointment and administration.Sec. 402. Jurisdiction of the Commission.Sec. 403. Initiation of mlemating proceedin~ before Commission.Sec. 404. Referral of other nlemakmg proceedings to Commission.Sec. 405. Right of Secretary to intervene in Commissionprocedures.Sec. 406. Reor&nimtion.Sec. 407. Access to information.

August 4, 1977

DEPARTMENT OF ENERGY ORGANIZATION ACT 3049

TITLE V—ADMINISTRATIVEPROCEDURESANDJUDICIALREVIEW

sec. 501.*C. 502.sec. 503.Sec. 504.Sec. 505.

%C. 601Sec. 602.Sec. 603.Sec. 604.Sec. 605.Sec. 606.Sec. 607.Sec. 608.

Sec. 621.Sec. 622.Sec. 623.Sec. 624.Sec. 625.

Sec. 641.See, 642.Sec. 643.Sec. 644.Sec. 645.Sec. 646.Sec. 647.Sec. 648.Sec. 649.Sec. 650.Sec. 651.*C. 652.&C. 653.&C. 654.Sec. 655.Sec. 656.Sec. 657.Sec. 658.Sec. 659.Sec. 660.

Procedures.Judicial review.Remedial orders.Requests for adjustments.Review and effect.

TITLE VI—ADMINISTRATIVE PROVISIONS

PARTA—CONFLICTOFINTERESTPROVISIONS

Definitions.Divestitureof energy holdings by supervisoryofficials.Disclosureof energy assets.Report on prior employment.Postemploymentprohibhions and reporting requirements.Participation prohibitions.Procedures applicableto reports.Sanctions.

PARTB—PERSONNELPROVISIONS

Officers and employees.Senior ~sitions.Experts and consulmnts.Advisory committees.Armed servicespersonnel.

PARTC—GENSRALADMINISTRATIVEPROVISIONS

General authority.Delegation.Reorganimtions.Rules.Subpena.Contracts.Acquisitionand maintenance of property.Facilitiesconstruction.Use of facilities.Field offices.Copyrights.Gifts md bequests.Capital fund.Seal of Department.Re~onal energy advisory boards.Designationof conservation officers.Annual report.Leasing report.Transfer of funds.Authorization of appropriations.

TITLE VII—TRANSITIONAL, SAVINGS, AND CONFORMING PROVISIONS

Sec. 701. Transfer and allocationsof appropriationsand personnel.Sec. 702. Effect cm personnel.Sec. 703. Agency termimtions.Sec. 704. Incidenmltransfers.Sec. 705. Savingsprovisions.

August 4, 1977

3050 DEPARTMENT OF ENERGY ORGANIZATION ACT

Sec. 706.Sec. 707.Sec. 708.Sec. 709.Sec. 710.Sec. 711.Sec. 712.Sec. 713.

Separability.References.Presidentialauthority.Amendments.Administrativeamendments.Transition.Civil Service Commissionreport.Environmental impact s~tements.

TITLE VIII—ENERGY PLANNING

Sec. 801. National enerfl policy plan.Sec. 802. Con~essional review.

TITLE IX—EFFECTIVE DATE AND INTERIM APPOINTMENTS

Sec. 901. Effective date.Sec. 902. Interim appointments.

TITLE X—SUNSET PROVISIONS

Sec. 1001. Submissionof comprehensivereview.Sec. 1002. Contents of review.

DEFINITIONS

=. 2. (a) As used in this Act, unless otherwise provided or indicated bythe context, the term the “Department” means the Department of Energyor any component thereof, including the Federal Energy Regulatory Com-mission.

(b) As used in this Act (1) reference to “function” includes reference toany duty, obligation, power, authority, responsibility, right, privilege, andactivity, or the plural thereof, as the case may be; and (2) reference to“perform”, when used in relation to functions, includes the undertaking,fulfillment, or execution of any duty or obligation; and the exercise ofpower, authority, rights, and privileges.

(c) As used in this Act, “Federal lease” means an agreement which, forany consideration, including but not limited to, bonuses, rents, or royaltiesconferred and covenants to be observed, authorizes a person to explorefor, or develop, or produce (or to do any or all of these) oil and gas, coal,oil shale, tar sands, and geothermal resources on lands or interests in landsunder Federal jurisdiction. (91 Stat. 567; 42 U.S.C. $ 7101)

TITLE I—DECLARATION OF FINDINGS AND PURPOSES

FINDINGS

See. 101. The Congress of the United States finds that—(1) the United States faces an increasing shortage of nonrenewable

energy resources;(2) this energy shortage and our increasing dependence on foreign

energy supplies present a serious threat to the national security of theUnited States and to the health, safety and welfare of its citizens;

(3) a strong national energy program is needed to meet the presentand future energy needs of the Nation consistent with overall nationaleconomic, environmental and social goals;

August 4, 1977


(4) responsibility for energy policy, regulation, and research, devel-opment and demonstration is fragmented in many departments and agen-cies and thus does not allow for the comprehensive, centralized focusnecessary for effective coordination of energy supply and conservationprograms; and

(5) formulation and implementation of a national energy program re-quire tie integration of major Federal energy functions into a singledepartment in the executive branch. (91 Stat. 567; 42 U.S.C. $71 11)

PURPOSES

Sec. 102. The Congress therefore declares that the establishment of aDepartment of Energy is in the public interest and will promote the generalwelfare by assuring coordinated and effective administration of Federalenergy policy and programs. It is the purpose of this Act—

(1) to establish a Department of Energy in the executive branch;(2) to achieve, through the Department, effective management of en-

er~ functions of the Federal Government, including consultation withthe heads of other Federal departments and agencies in order to en-courage them to esmblish and observe policies consistent with a coordi-nated energy policy, and to promote maximum possible energyconservation measures in connection with the activities within their re-spective jurisdictions;

(3) to provide for a mechanism through which a coordinated nationalenergy policy can be formulated and implemented to deal with theshort-, mid- and long-term energy problems of the Nation; and to developplans and programs for dealing with domestic energy production andimport shortages;

(4) to create and implement a comprehensive ener~ conservation strat-egy that will receive the highest priority in the national energy program;

(5) to carry out the planning, coordination, support, and managementof a balanced and comprehensive energy research and development program, including—

(A) assessing the requirements for energy research and develop-ment:

(B) developing priorities necessary to meet those requirements;(C) undertaking programs for the optimal development of the var-

ious forms of energy production, and conservation; and(D) disseminating information resulting from such programs, in-

cluding disseminating information on the commercial feasibility anduse of energy from fossil, nuclear, solar, geothermal, and other energytechnologies;(6) to place major emphasis on the development and commercial use

of solar, geothermal, recycling and other technologies utilizing renewableenergy resources;

(7) to continue and improve the effectiveness and objectivity ofa centralener~ data collection and analysis program within the Department;

August 4, 1977


(8) to facilitate establishment of an effective strate~ for distributingand allocating fuels in periods of short supply and to provide for theadministration of a national energy supply reserve;

(9) to promote the interests of consumers through the provision of anadequate and reliable supply of energy at the lowest reasonable cost;

(10) to establish and implement through the Department, in coordi-nation with the Secretaries of State, Treasury, and Defense, policies re-garding international energy issues that have a direct impact on research,development, utilization, supply, and conservation of energy in theUnited States and to undertake activities involving the integration ofdomestic and foreign policy relating to energy, including provision ofindependent technical advice to the President on international negotia-tions involving energy resources, energy technologies, or nuclear weaponsissues, except that the Secretary of State shall continue to exercise primaryauthority for the conduct of foreign policy relating to energy and nuclearnonproliferation, pursuant to policy guidelines established by the Presi-dent;

(11) to provide for the cooperation of Federal, State, and local gov-ernments in the development and implementation of national energypolicies and programs;

(12) to foster and assure competition among parties engaged in thesupply of energy and fuels;

(13) to assure incorporation of national environmental protection goalsin the formulation and implementation of energy programs, and to ad-vance the goals of restoring, protecting, and enhancing environmentalquality, and assuring public health and safety;

(14) to assure, to the maximum extent practicable, that the productivecapacity of private enterprise shall be utilized in the development andachievement of the policies and purposes of this Act;

(15) to provide for, encourage, and assist public participation in thedevelopment and enforcement of national energy programs;

(16) to create an awareness of, and responsibility for, the fuel andener~ needs of rural and urban residents as such needs pertain to homeheating and cooling, transportation, agricultural production, electricalgeneration, conservation, and research and development;

(17) to foster insofar as possible the continued good health of the Na-tion’s small business firms, public utility districts, municipal utilities, andprivate cooperatives involved in energy production, transportation, re-search, development, demonstration, marketing, and merchandising; and

(18) to provide for the administration of the functions of the EnergyResearch and Development Administration related to nuclear weaponsand national security which are transferred to the Department by thisAct. (91 Stat. 567; 42 U.S.C. $ 7112)

NOTES OF OPINION

1. Purpose retary of Energy’s Dele~tion Order No.The trifurcated arrangement of the Sec- 0204-33 of December 1978 dele~ting rate

August 4, 1977


development to the local Power MarketingAdministration,rate approml and interimim:plementationto the AssistantSecretary of En-ergy, and final approval to the independentFederal Energy Regulatory Commissiondoesas much as possibleto resolve the commandof section 5 of the Flood Control Act of 1944that there be an independentcheck on rate-makingand the command of the Departmentof Energy Organization Act that ratemakingbe made more efficient through the centml-izationof control in one officer, the Secretaryof Energy. United States u. Tex-La Electtic Co-operative, Znc., 693 F.2d 392, 411-2 (5th Clr.

1982), reversing United States v. Tex-La ElectricCooperative, Znc., 524 F. Supp. 409 (E.D. La.198 1), and United States v. Northeast Texas Elec-ttic Cooperative,Znc., Civil Action No. H-81-604 (S.D. Tex. 1981).

The purpose of the Department of EnergyOrgani=tion Act is to improve the efficiencyof American ener~ production and unite thescattered governmentaldivisionswithrespon-siblhtyin the area under the leadership of asinglenew cabinet-levelofficer, the Secretiryof ~ergy. United States v. Tex-La Electric Co-operative, Znc., 693 F. 2d 392, 402 (5th Clr.1982).

RELATIONSHIP WITH STATES

Sec. 103. Whenever any proposed action by the Department conflictswith the energy plan of any State, the Department shall give due consid-eration to the needs of such State, and where practicable, shall attempt toresolve such conflict through consultations with appropriate State officials.Nothing in this Act shall affect the authority of any State over mattersexclusively within its jurisdiction. (91 Stat. 569; 42 U.S.C. $ 7113)

NOTE OF OPINION

1. Gmpliance witi State law Department of Energy Or@nimtion Act toIn constructing tie Miles City/New Un- obtain a permit from the State of South Da-

derwood transmissionline, the Western Area kota. Citizens and La&mers Against the MilesPower Administration is not required by sec- City/Neco Undemood Pwerliw. 683 F. 2ndtion 505 of the Federal Land Policyand Man- 1171 (8th Cir. 1982), affirming 513 F. Supp.agement Act or by section 103 of the 257 (D.S. Dak. 1981).

TITLE II—ESTABLISHMENT OF THE DEPARTMENT

ESTABLISHMENT

Sec. 201. There is hereby established at the seat of government an ex-ecutive department to be known as the Department of Energy. There shallbeat the head of the Department a Secretary of Energy (hereinafter in thisAct referred to as the “Secretary”), who shall be appointed by the Presidentby and with the advice and consent of the Senate. The Department shallbe administered, in accordance with the provisions of this Act, under thesupervision and direction of the Secretary. (91 Stat. 569; 42 U.S.C. $ 7131)

PRINCIPAL OFFICERS

See. 202. (a) l-here shall be in the Department a Deputy Secretary, whoshall be appointed by the President, by and with the advice and consent ofthe Senate, and who shall be compensated at the rate provided for level IIof the Executive Schedule under section 5313 of title 5, United States Code.The Deputy Secretary shall act for and exercise the functions of the Sec-

August 4, 1977


retary during the absence or disability of the Secretary or in the event theoffice of Secretary becomes vacant. The Secretary shall designate the orderin which the Under Secretary and other officials shall act for and performthe functions of the Secretary during the absence or disability of both theSecretary and Deputy Secretary or in the event of vacancies in both of thoseoffices.

(b) There shall be in the Department an Under Secretary and a GeneralCounsel, who shall be appointed by the President, by and with the adviceand consent of the Senate, and who shall perform such functions and dutiesas the Secretary shall prescribe. The Under Secretary shall bear primaryresponsibility for energy conservation. The Under Secretary shall be com-pensated at the rate provided for level 111of the Executive Schedule undersection 5314 of title 5, United States Code, and the General Counsel shallbe compensated at the rate provided for level IV of the Executive Scheduleunder section 5315 of title 5, United States Code. (91 Stat. 569; 42 U.S.C.$ 7132)

ASSISTANT SECRETARIES

Sec. 203. (a) There shall be in the Department eight Assistant Secretaries,each of whom shall be appointed by the President, by and with the adviceand consent of the Senate; who shall be compensated at the rate providedfor at level IV of the Executive Schedule under section 5315 of title 5,United States Code; and who shall perform, in accordance with applicablelaw, such of the functions transferred or delegated to, or vested in, theSecretary as he shall prescribe in accordance with the provisions of this Act.The functions which the Secretary shall assign to the Assistant Secretariesinclude, but are not limited to, the following:

(1) Energy resource applications, including functions dealing with man-agement of all forms of energy production and utilization, including fuelsupply, electric power supply, enriched uranium production, energy tech-nology programs, and the management of energy resource leasing pro-cedures on Federal lands.

* * * * *

(10) Power marketing functions, including responsibility for marketingand transmission of Federal power.

* * * * *

(b) At the time the name of any individual is submitted for confirmationto the position of Assistant Secretary, the President shall identify with par-ticularity the function or functions described in subsection (a) (or any por-tion thereo~ for which such individual will be responsible. (91 Smt. 570;42 U.S.C. $ 7133)

August 4, 1977


NOTE OF OPINION

1. m=The legislativehistoryof section 203(a) (10)

of the Department of Energy Or&ni=tionAct indicatesthat the purpose of listingfunc-tionswasto assurethat they receive high-levelattention in the Department, but there wasno intent to restrict other Department of En-ergy (DOE) officials,other than the assigned

Assistant Secretary, from dealing with some~pects Ofthe listed function. Memomndumof General Counsel Coleman, October 14,1978, in re proposed delegation to the Fed-eral Energy Regulatory Commission of rateconfirmationauthority for DOES power mar-keting agencies.

FEDERAL ENERGY REGULATORY COMMISSION

Sec. 204. There shall be within the Department, a Federal Energy Reg-ulatory Commission established by title IV of this Act (hereinafter referredto in this Act as the “Commission”). The Chairman shall be compensatedat the rate provided for level III of the Executive Schedule under section5314 of title 5, United States Code. The other members of the Commissionshall be compensated at the rate provided for level IV of the ExecutiveSchedule under section 5315 of title 5, United States Code. The Chairmanand members of the Commission shall be individuals who, by demonstratedability, background, training, or experience, are specially qualified to assessfairly the needs and concerns of all interests affected by Federal energypolicy. (91 Stat. 571; 42 U.S.C. $ 7134)

* * * * *

TITLE III—TRANSFERS OF FUNCTIONS

GENERAL TRANSFERS

see. 301.

* * * * *

@) [Transfer of miscellaneous functions from Federal Power Com-mission. ]-Except as provided in title IV, there are hereby transferred to,and vested in, the Secretary the function of the Federal Power Commission,or of the members, officers, or components thereof. The Secretary mayexercise any power described in section 402(a) (2) to the extent the Secretarydetermines such power to be necessary to the exercise of any function withinhis jurisdiction pursuant to the preceding sentence. (91 Stat. 577; 42 U.S.C.g 7151)

NOTM OF OPINIONS

Interim rates 1 the Department of Energy Organintion ActRate approval autiority 2 to place power rates into effect on an interimRate-rig, generally 3 basis without confirmation and approval by

1. Inteti rates the Federal Energy Regulatory Commtilon,

The Secretary of Energy is without au- as successor to the Federal Power Commis-

thority under sections 301(b) and 501(a)(1) of sion, as required by section 5 of the Flood

August 4, 1977


Control Act of 1944. C@ of Fultm v. UnitedStates, 680 F. 2d 115 (Ct. Cl. 1982). [Edhor’snote This decisionwas tilrmed by the Fed-eral Circuit, 751 F.2d 1255 (1985), but reversed by the Supreme Court sub nom UnitedStates v. C@ of Fdton, 475 U.S.—, 89 L.Ed. 2d 661, 106 S. Ct. 1422 (1986).]

The Federal Power Commission had thepower to confirm Bonneville Power Admin-istration rates on an interim basis. The Sec-retary of Energy inherited these powersthrough the Department of Energy Organi-zation Act. Montina Power Company v. Ed-wards,531 F. Supp. 9 (D. Ore. 1981).

The powerto determine wheninterimmtesare “necessary” lies within the discretion ofthe Secretary of Energy. Pacii Power @ LightCo. v. ~ncan, 499 F. Supp. 672, 678-79 (D.Ore. 1980).

Section 301@) of the Department of En-ergy organization Act, through section402(a)(2) of the Act, authorizesthe Secretaryof Energy, in the exercise of the rate approvalauthority for the Bonneville Power Admin-istration(BPA) formerly in the Federal PowerCommtilon (FPC), to utifim the authority ofthe FPC under, among others, section 16 ofthe Natural Gas Act, 15 U.S.C. 7170, whichauthorizes the FPC to perform all acts nec-essaryto carry out ifi functions.The SupremeCourt hasheld that thisincludesthe authorityto set rates on an interim basis. Therefore,the Secre@ry of Energy has authority to promulgate interim rates for BPA. Pacifi Pmoer@ L&ht Co. v. Duncan,499 F. Supp. 672,678-79 (D. Ore. 1980).

2. RateapprovalautiofitySection 301 ~) of the Department of En-

ergy Organization Act transfers to the Sec-

retary of Energy the rate confirmation and

aP.P~o~l function of the Federd Power Com-mlsslon under section 5 of the Flood ControlAct of 1944. United States v. Tin-La Elect&C*operative, Znc., 693 F. 2d 392, 395-96 (5th Clr.1982).

In plain and unambiguouslanguage, Con-gress, in section 301@) of the Department ofEnergy Organization Act, granted the rateaqpyonl authority of the Federal Power Cmn-mlsslon for the Bonneville Power Adminis-tration to the Secretary of Energy, not to theFederal tiergy Reguktory Commission.Pa-ci$ Power@ Light Co. v. Duwn, 499 F. Supp.672, 677-78 (D. Ore. 1980).

Pursuant to section 301 ~) of the Depart-ment of Energy Organization Act, the con-firmation and approval authority of theFederal PowerCommissionfor Federal powermarketing rates is vested in the Secretary ofEnergy. Memorandum of General Counsel~leman, October 14, 1978, in re proposeddele~tion to the Federal Energy ReguhtoryCommission of rate cofirrnation authorityfor the Department of Energy’s power mar-keting agencies.

3. Rate*g, genersdlyDespite the imphcation in sections 301@)(2)

and 501 (a)(l) to the contrary, the unificationin the hands of the Secretiry of Energy of the

=pa~te functions Of tie secre~~ Of the In-terior to prepare rates and of the FederalPower Commission to confirm and approverates, amends section 5 of the Flood ControlAct of 1944 to alter the strict procedural r~quiremen~ of a b~urcated rate implementa-tion scheme. United States v. Tex-La ElectticCooperative, Znc., 693 F. 2d 392, 404 (5th Clr.1982).

TRANSFERS FROM THE DEPARTMENT OF THE INTERIOR

Sm. 302. [Transfer of power marketing finctions from Interior.]—(a)(1) There are hereby transferred to, and vested in, the Secretary all func-tions of the Secretary of the Interior under section 5 of the Flood ControlAct of 1944, and all other functions of the Secretary of the Interior, andofficers and components of the Department of the Interior, with respectto—

(A) the Southeastern Power Administration;(B) the Southwestern Power Administration;(C) the Alaska Power Administration;(D) the Bonneville Power Administration including but not limited to

the authority contained in the Bonneville Project Act of 1937 and theFederal Columbia River Transmission System ACC

August 4, 1977


(E) the power marketing functions of the Bureau of Reclamation, in-cluding the construction, operation, and maintenance of transmissionlines and attendant facilities; and

(F) the transmission and disposition of the electric power and energygenerated at Falcon Dam and Amistad Dam, international storage res-ervoir projects on the Rio Grande, pursuant to the Act ofJune 18, 1954,as amended by the Act of December 23, 1963.(2) The Southeastern Power Administration, the Southwestern Power

Administration, the Bonneville Power Administration, and the AlaskaPower Administration shall be preserved as separate and distinct organi-zational entities within the Department. Each such entity shall be headedby an Administrator appointed by the Secretary. The functions transferredto the Secretary in paragraphs (I)(A), (l)(B), (l)(C), and (l)(D) shall beexercised by the Secretary, acting by and through such Administrators.fich such Administrator shall main=in his principal office at a place locatedin the region served by his respective Federal power marketing entity.

(3) The functions transfemed in paragraphs (l)(E) and (l)(F) of this subsection shall be exercised by the Secretary, acting by and through a separateand distinct Administration within the Department which shall be headedby an Administrator appointed by the Secretary. The Administrator shallestablish and shall maintiin such regional offices as necessary to facilitatethe performance of such functions. Neither the transfer of functions ef-fected by paragraph (1)(E) of this subsection nor any changes in cost allo-cation or project evaluation standards shall be deemed to authorize thereallocation of joint costs of multipurpose facilities theretofore allocatedunless and to the extent that such change is hereafter approved by Congress.

* * * * *

(91 Stat. 578; 42 U.S.C. $ 7152)

tiPnNATORY NOT=

References in the Trot. Section 5 of the page 1139.Flood Contract Act of 1944 (58 Sbt. 887, Western Area Power Administration. The890), referred to in subsection (a)(l) of the Western Ares Power Administrationwascr~text, appears in Volume II at page 800. The ated withinthe Department of Energy in ac-BonnevilleProject Act of 1937 (Act of August cordance with section 302(a)(3).20, 1937, 50 Stat. 731), referred to in sub Pop~ar Name. The bst sentenceof sectionsection (a)(1)(D) of the text, appears on Vol- 302(a)(3), relating to cost all~tions, issome-ume I at page 568. The Act ofJnne 18, 1954 times referred to as the McGovern Amend-(68 Stat. 255), referred to in subsection ment, after Senator George McGovern, who(a)(l)(F) of the text, appeam in Volume II at authored it.

NOT= OF OPINIONS

Changes in cost ~ocations 1Power marketing administrations 2 the Pick-Sloan Missouri Basin Program (P-

~tes and chargea 3 SMBP) in the Flood Control Act of 1944 that

Transmission fadities 10 the “ultimate development” concept be usedto establishcost allocationsand repaymentob

1. Changes in cost allocations ligationsand Congressre&lrmed that intentIt wasthe intent of Congress in authorizing in 1965 by enactingthe Department’s interest

August 4, 1977


rate recommendation in the form of section4@) of the Garrison Diversion Unit reau-thorization Act. The “current development”concept cannot be used for P-SMBP cost al-location and repayment purposeswithout approval of Congress because such a changewouldviolateboth the intentof Congresswithregard to P-SMBP and section 302 of the En-ergy Organi=tion Act of 1977 requiringCongressionalapproval of changes in cost al-locations or project evaluation standardswhichresult in a reallocation of thejoint costsof completed, operational multipurposefacil-ities. Congressionalapproval of such changescan validlybe secured through the appropri-ations process if sufficient care is taken toKlghhght the specific action requested dis-tinctly and discretely, so that Congress as awhole knowsexacdy what is before it and canact in positive and concrete fashion. Memorandum of Solicitor Coldlron to Secretary,December 15, 1982, inre Pick-SloanMissouriBasin Program; open audit findings.

Section 302 requires the approval of Con-gress before changes can be made in cost al-locations or project evaluation standardswhichresult in a reallocation of thejoint costsof completed, opemtional multipurposefacil-ities. Memorandum of Solicitor Coldiron toSecretary, December 15, 1982, in re Plck-Sloan Missouri Basin Program, open auditfindings.

The legislativehistoryof the Flood ControlAct of 1944, authorizing the Pick-SloanMi*souri Basin Program (P-SMBP), reflects aCongressioml intent that an ultimateuse typeconcept be used in the financialreporting ofP-SMBP. In addition, section 302 of the DOEOrganization Act specifically precludeschanges in cost allocation for Reclamationprojects without Congressioml approval. Ac-cordingly, Congressionalapproval would benecesmry before the Secretary could changethe basisfor suballocationsof power costs be-tween commercial power and project usefrom ultimate use to current use, as recom-mendedby aJuly 1978 audit report preparedby the Department’s OffIce of Audit and In-vestigation. Memorandum of AssistantSohc-itor Mauro to Commissioner, October 14,1980.

2. Power markting admisdstrationsIt is clear from the legislativehistory of the

“separate and distinct” and “acting by andthrougti’ provisionsof sections302(a) (2) and(3) of the Departmentof Energy Organization

Act that Congress intended to preserve thestatus quo of having sepamte power market-ing agencies(PMAs)under the supervisionofthe Secretary of Energy, and did not intendto divest the Secretiry of pohcy level super-visionover the PMAs or diminishthe previ-ously existing Secretarial authority toesmblishpower marketing rates. Memoran-dum of General Counsel Coleman, October14, 1978, in re proposed delegation to theFederal Energy Reguhtory Commission ofrate confirmation authority for Departmentof Energy’s power marketing agencies.

3. Rates and &argesThe grant to the Secretary of Energy, by

section 9(c) of the ReclamationProject Act of1939 and section 302(a) of the Departmentof Energy Organization Act, of completepowerover ratemaklngprovidessufficientau-thority to establishrates on an interim basis.Expficit statutory authority to set rates on aninterim basisis not required. The broad au-thority of 9(c) to set the terms on the mle ofpower also permits the Secretary to require,as one of the terms of the sale of ColoradoRiver Storage Project power, that interimrates be collected, subject to refund with in-terest. Colorado River Eurg fittibutirs Asso-titi V. Lti, 516 F. Supp. 926, 930-31(D.D.C. 1981), case dismissedsub. nom. Col-oradoRiverEwr~ Disttibutirs Asso&tti v. Ed-wrds, 516 F. Supp. 933 (D.D.C. 1981).

The establishment of a confirm and ap-prove power regarding rates of the WesternArea Power Administration,and rates of theAbska Power Administmtionfor the Snettis-hamproject, constitutesan appropriateactionby the Secretary of Energy to subdividehlsbasic raternaking function in a manner des-ignated to encourage uniformity and objec-tive decision-snakingregarding rate-makingfor all the power marketing administrations.Memorandum of General Counsel Coleman,October 14, 1978, in re proposed delegationto the Federal Energy Reguhtory Commis-sionof rate confirmationauthority for the De-partment of Energy’s power marketingagencies.

It is well within the Secretary of Energy’sbroad discretion under the Department ofEnergy Organization Act to delegate to theMlsmnt Secretary the authority to confirmand approve rates on an interim basisand todelegate or assignto the Federd Energy Reg-ubtory Commission(FERC) the authority toconfirm and approve rates on a final basis.

August 4, 1977


Memorandum of General Counsel Coleman,October 14, 1978, in re proposed delegationto FERC of rate confirmation authority forthe Department of EnerW’s power marketingagencies.

The authority to establish rates on an in-terim basisis a necessarycorollary of, and in-herent in, the basic authority to set rates.Memorandum of General Counsel Coleman,October 14, 1978, in re proposed delegationto the Federal Energy Regulatory Commis-sionof rate confirmationauthority for the De-partment of Energy’s power marketingagencies.

10. Transmission fatiltiesTo the extent that electrical transmission

facilitiesare required to accomplish CentralArizona Project purposesand not power mar-keting purposes, the Secremry continues tohave the authority to construct, operate, andmaintainthose facilitiesand such authority isunaffected by section 302 of the Departmentof Wergy Organimtion Act. Memorandumof Sohcitor Krulitz to Assis@nt Secretary,hnd and Water Resources and Commis-sioner, September 24, 1979.

* * * * *

TITLE IV—FEDERAL ENERGY REGULATORYCOMMISSION

APPOINTMENT AND ADMINISTRATION

Sec. 401. (a) There is hereby established within the Department an in-dependent regulatory commission to be known as the Federal Energy Reg-ulatory Commission.

@) The Commission shall be composed of five members appointed bythe President, by and with the advice and consent of the Senate. One ofthe members shall be designated by the President as Chairman. Membersshall hold office for a term of four years and may be removed by thePresident only for inefficiency, neglect of duty, or malfeasance in office.The terms of the members first taking office shall expire (as designated bythe President at the time of appointment), two at the end of two years, twoat the end of three years, and one at the end of four years. Not more thanthree members of the Commission shall be members of the same politicalparty. Any Commissioner appointed to fill a vacancy occurring prior to theexpiration of the term for which his predecessor was appointed shall beappointed only for the remainder of such term. A Commissioner may con-tinue to serve after the expiration of his term until his successor has takenoffice, except that he may not so continue to serve for more than one yearafter the date on which his term would otherwise expire under this sub-section. Members of the Commission shall not engage in any other business,vocation, or employment while serving on the Commission.

(c) The Chairman shall be responsible on behalf of the Commission forthe executive and administrative operation of the Commission, includingfunctions of the commission with respect to (1) the appointment and em-ployment of hearing examiners in accordance with the provisions of title5, United States Code, (2) the selection, appointment and fixing of thecompensation of such personnel as he deems necessary, including an ex-ecutive director, (3) the supervision of personnel employed by or assignedto the Commission, except tit each member of the Commission may select

August 4, 1977


and supervise personnel for his personal staff, (4) the distribution of businessamong personnel and among administrative units of the Commission, and(5) the procurement of services of experts and consultants in accordancewith section 3109 of title 5, United States Code. The Secretary shall provideto the Commission such support and facilities as the Commission determinesit needs to carry out its functions.

(d) In the performance of their functions, the members, employees, orother personnel of the Commission shall not be responsible to or subjectto the supervision or direction of any officer, employee, or agent of anyother part of the Department.

(e) The Chairman of the Commission may designate any other memberof the Commission as Acting Chairman to act in the place and stead of theChairman during his absence. The Chairman (or the Acting Ctilrman inthe absence of the Chairman) shall preside at all sessions of the Commissionand a quorum for the transaction of business shall consist of at least threemembers present. Each member of the Commission, including the Cfilr-man, shall have one vote. Actions of the Commission shall be determinedby a majority vote of the members present. The Commission shall have anofficial seal which shall be judicially noticed.

(f) The Commission is authorized to establish such procedural and ad-ministrative rules as are necessary to the exercise of its functions. Untilchanged by the Commission, any procedural and administrative rules ap-plicable to particular functions over which the Commission has jurisdictionshall continue in effect with respect to such particular functions.

(g) In carrying out any of its functions, the Commission shall have thepowers authorized by the law under which such function is exercised tohold hearings, sign and issue subpenas, administer oaths, examine witnesses,and receive evidence at any place in the United S@tes it may designate.The Commission may, by one or more of its members or by such agents asit may designate, conduct any hearing or other inquiry necessary or ap-propriate to its functions, except that nothing in this subsection shall bedeemed to supersede the provisions of section 556 of title 5, United StatesCode relating to hearing examiners.

(h) The principal office of the Commission shall be in or near the Districtof Columbla, where its general sessions shall be held, but the Commissionmay sit anywhere in the United States.

(i) For the purpose of section 552b of title 5, United States Code, theCommission shall be deemed to be an agency. Except as provided in section518 of title 28, United States Code, relating to litigation before the SupremeCourt, attorneys designated by the Ctilrman of the Commission may appearfor, and represent the Commission in, any civil action brought in connectionwith any function carried out by the Commission pursuant to this Act oras otherwise authorized by law.

O) In each annual authorization and appropriation request under thisAct, the Secretary shall identify the portion thereof intended for the supportof the Commission and include a statement by the commission (1) showingthe amount requested by the Commission in its budgetary presentation to

August 4, 1977


the Secretary and the Office of Management and Budget and (2) an as-sessment of the budgetary needs of the Commission. Whenever the Com-mission submits to the Secretary, the President, or the Office ofManagement and Budget, any legislative recommendation or testimony, orcomments on legislation, prepared for submission to Congress, the Com-mission shall concurrently transmit a copy thereof to the appropriate com-mittees of Congress. (91 Stat. 582; 42 U.S.C. $ 7171)

JURISDICTION OF THE COMMISSION

*. 42. (a)(1) There are hereby transferred to, and vested in, the Com-mission the following functions of the Federal Power Commission or of anymember of the Commission or any officer or component of the Commission:

(A) the investi~tion, issuance, transfer, renewal, revocation, and en-forcement of licenses and permits for the construction, operation, andmaintenance of dams, water conduits, reservoirs, powerhouses, trans-mission lines, or other works for the development and improvement ofnavigation and for the development and utilization of power across, along,from, or in navigable waters under part I of the Federal Power Act;

(B) the esbblishment, review, and enforcement of rates and chargesfor the transmission or sale of electric energy, including determinationson construction work in progress, under part II of the Feded PowerAct, and the interconnection, under section 202@), of such Act, of fa-cilities for the generation, transmission, and sale of electric energy (otherthan emergency interconnection);

* * * * *

(2) The Commission may exercise any power under the following sectionsto the extent the Commission determines such power to be necessary tothe exercise of any function within the jurisdiction of the Commission:

(A) sections 4,301,302,306 through 309, and 312 through 316 of theFederal Power Act; and

(B) sections 8, 9, 13 through 17, 20, and 21 of the Natural Gas Act.

* * * * *

(d) The Commission shall have jurisdiction to hear and determine anyother matter arising under any other function of the Secretary—

(1) involving any agency determination required by hw to be made onthe record after an opportunity for an agency hearing, or

(2) involving any other agency determination which the Secretary de-termines shall be made on the record after an opportunity for an agencyhearing,

except that nothing in this subsection shall require that functions undersections 105 and 106 of the Energy Policy and Conservation Act shall bewithin the jurisdiction of the Commission unless the Secre@ry assigns sucha function to tie Commission.

August 4, 1977


(e) In addition to the other provisions of this section, the Commissionshall have jurisdiction over any other matter which the Secretary may assignto the Commission after public notice, or which are required to be referredto the Commission pursuant to section 404 of this Act.

(f) No function described in this section which regulates the exports or

imports of natural gas or electricity shall be within the jurisdiction of theCommission unless the Secretary assigns such a function to the Commission.

(g) The decision of the Commission involving any function within itsjurisdiction, other than action by it on a matter referred to it pursuant tosection 404, shall be final agency action within the meaning of section 704of title 5, United States Code, and shall not be subject to further reviewby the Secretary or any officer or employee of the Department.

@) The Commission is authorized to prescribe rules, regulations, andstatement of policy of general applicability with respect to any functionunder the jurisdiction of the Commission pursuant to section 402. (91 Sbt.583; 42 U.S.C. $ 7172)

NOTW OF OPINIONS

1. Interim rates

Section 301 (b) of the Department of En-ergy Organization Act, through section402(a)(2) of the Act, authorizes the Secretaryof Energy, in the exercise of the rate approvalauthority for the Bonneville Power Admin-istration (BPA) formerly in the Federal PowerCommission (FPC), to utilize the authority ofthe FPC under, among others, section 16 ofthe Natural Gas Act, 15 U.S.C. 7170, whichauthorizes the FPC to perform all acts nec-essary to carry out its functions. The SupremeCourt has held that this includes the authorityto set rates on an interim basis. Therefore,the Secretary of Energy has authority to pro-mulgate interim rates for BPA. Paafw Power

@ L~ht Co. u. Duncan, 499 F. Supp. 672,678-79 (D. Ore. 1980).

2. Rate approval authorityIt is well within the Secretary of Energy’s

broad discretion under the Department ofEnergy Organization Act to delegate to theAssistant Secretary the authority to confirmand approve rates on an interim basis and todelegate or assign to the Federal Energy Reg-ulatory Commission (FERC) the authority toconfirm and approve rates on a final basis.Memorandum of General Counsel Coleman,October 14, 1978, in re proposed delegationto FERC of rate confirmation authority forthe Department of Energy’s power marketingagencies.

INITIATION OF RULEMAKING PROCEEDINGS BEFORE COMMISSION

SW. 403. (a) The Secretary and the Commission are authorized to proposerules, regulations, and statements of policy of general applicability withrespect to any function within the jurisdiction of the Commission undersection 402 of this Act.

(b) The Commission shall have exclusive jurisdiction with respect to anyproposal made under subsection (a), and shall consider and take final actionon any proposal made by the Secretary under such subsection in an ex-peditious manner in accordance with such reasonable time limits as may beset by the Secretary for the completion of action by the Commission onany such proposal.

(c) Any function described in section 402 of this Act which relates to theestablishment of rates and charges under the Federal Power Act or the

August 4, 197’7


Natural Gas A{:t, may be conducted by rulemaking procedures. Except asprovided in subsection (d), the procedures in such a rulemaking proceedingshall assure full consideration of the issues and an opportunity for interestedpersons to present their views.

* * * * *

(91 Stat. 585,; 42 U.S.C. $ 7173)

REFERRAL OF OTHER RULEMAKING PROCEEDINGS TO COMMISSION

Sec. 404. (a) Except as provided. in section 403, whenever the Secretaryproposes to prescribe rules, regulations, and statements of policy of generalapplicability in the exercise of any function which is transferred to theSecretary under section 301 or 31D6 of this Act, he shall notify the Com-mission of the proposed action. If the Commission, in its discretion, deter-mines within such period as the Secretary may prescribe, that the proposedaction may significantly affect any function within the jurisdiction of theCommission pursuant to section 4C12(a)( 1), (b), and (c)(1), the Secretary shallimmediately refer the matter to the Commission, which shall provide anopportunity fo]r public comment.

(b) Following such opportunity fi;r public comment the Commission, afterconsultation with the Secretary, shall either—

(1) concur in adoption of the rule or statement as proposed by theSecretary;

(2) concur in adoption of the lrule or statement only with such changesas it may recommend; or

(3) recommend that the rule or statement not be adopted.The Commission shall promptly publish its recommendation, adopted un-der this subsection, along with an explanation of the reason for its actionsand an analysis of the major comments, criticisms, and alternatives offeredduring the comment period.

(c) Following publication of the Commission’s recommendations the Sec-retary shall have the option of—

(1) issuing a final rule or statement in the form initially proposed bythe Secretary if the Commission~ has concurred in such rule pursuant tosubsection (b)(l);

(2) issuing a final rule or statement in amended form so that the ruleconforms in all respects with the ctiges proposed by the Commissionif the Commission has concurred in such rule or statement pursuant tosubsection (b)(2); or

(3) ordering that the rule shall not be issued.The action taktan by the Secretary pursuant to this subsection shall consti-tute a final agency action for purposes of section 704 of title 5, UnitedStates Code. (91 Stat. 586; 42 U.S.C. ~ 7174)

RIGHT OF SECRETARY TO INTERVENE IN COMMISSION PROCEEDINGS

Sec. 405. The Secretary may as a matter or right intervene or otherwiseparticipate in any proceeding before the Commission. The Secretary shall

August 4, 1977

3064 DEPARTMENT OF ENERGY ORGAN1ZATION ACT

comply with rules of procedure of general applicability governing the timingof intervention or participation in such proceeding or activity and, uponintervening or participating therein, shall comply with rules of procedureof general applicability governing the conduct thereof. The interventionor participation of the Secretary in any proceeding or activity shall notaffect the obligation of the Commission to assure procedure fairness to allparticipants. (91 Stat. 586; 42 U.S.C. $ 7175)

REORGANIZATION

%. 406. For the purposes of chapter 9 of title 5, United States Code,the Commission shall be deemed to be an independent regulatory agency.(91 Stat. 586; 42 U.S.C. ~ 7176)

ACCESS TO INFORMATION

Sec. 407. (a) The Secretary, each officer of the Department, and eachFederal agency shall provide to the Commission, upon request, such existinginformation in the possession of the Department or other Federal agencyas the commission determines is necessary to carry out its responsibilitiesunder this Act.

(b) The Secretary, in formulating the information to be requested in thereports and investigations under section 304 and section 311 of the FederalPower Act and section 10 and section 11 of the Natural Gas Act, shallinclude in such reports and investigations such specific information as re-quested by the Federal Energy Regubtory Commission and copies of allreports, information, results of investigations and data under said sectionsshall be furnished by the Secretary to the Federal Energy Regulatory Com-mission. (91 Stat. 587; 42 U.S.C. $ 7177)

TITLE V—ADMINISTRATIVE PROCEDURES ANDJUDICIAL REVIEW

PROCEDURES

Sec. 501. (a)(l) Subject to the other requirements of this title, the pro-visions of subchapter II of chapter 5 of title 5, United States Code, shallapply in accordance whh its terms to any rule or regulation, or any orderhaving the applicability and effect of a rule (as defined in section 551(4) oftitle 5, United States Code), issued pursuant to authority vested by law in,or transferred or delegated to, the Secretary, or required by this Act orany other Act to be carried out by any other officer, employee, or com-ponent of the Department, other than the Commission, includlng any suchrule, regulation, or order of a State, or local government agency or oficerthereof, issued pursuant to authority delegated by the Secretary in accord-ance with this title. If any provision of any Act, the functions of which aretransferred, vested, or delegated pursuant to this Act, provides adminis-trative procedure requirements in addition to the requirements providedin this title, such additional requirements shall also apply to actions underthat provision.

August 4, 197{1


(2) Notwiths@ding paragraph (1), this title shall apply to the Commissionto the same extent this title applies to the Secretary in the exercise of anyof the Commission’s functions under section 402(c) (1) or which the Sec-retary has assigned under section 402(e).

(b)(1) In addition to the requirt;ments of subsection (a) of this section,notice of any proposed title, regulation, or order described in subsection(a) shall be giveln by publication of such proposed rule, regulation, or orderin the Federal Register. Such publication shall be accompanied by a state-ment of the research, analysis, and other available information in supportof, the need folr, and the probable effect of, any such proposed rule, reg-ulation, or order. Other effective means of publicity shall be utilized as maybe reasonably i:alculated to notify concerned or affected persons of thenature and probable effect of any such proposed rule, regulation, or order.In each case, a minimum of thirty days following such publication shall beprovided for an opportunity to comment prior to promulgation of any suchrule, regulation, or order.

(2) Public notice of all rules, regulations, or orders described in subsection(a) which are promul~ted by officers of a State or local government agencypursuant to a delegation under this Act shall be provided by publicationof such proposed rules, regulation, or orders in at least two newspapersof statewide circulation. If such publication is not practicable, notice of anysuch rule, re~’lation, or order shall be given by such other means as theoficer promul~ting such rule, regulation, or order determines will rea-sonably assure wide public notice.

(3) For the purposes of this title, the exception from the requirementsof section 553 of title 5, United States Code, provided by subsection (a)(2)of such section with respect to public property, loans, grants, or contractsshall not be available.

(c)(1) If the Secretary determines, on his own initiative or in response toany showing mde pursuant to paragraph (2) (with respect to a proposedrule, regulation., or order described in subsection (a)) that no subs~ntialissue of factor law exists and that such rule, regulation, or order is unlikelyto have a substantial impact on the Nation’s economy or large numbers ofindividuals or businesses, such proposed rule, regulation, or order may bepromulgated in accordance with section 553 of title 5, United States Code.If the Secretary determines that a substantial issue of fact or ~w exists orthat such rule, :regulation, or order is likely to have substantial impact onthe Nation’s economy or brge numbers of individuals or businesses, anopportunity for oral presentation of views, data, and arguments shall beprovided.

(2) Any person, who would be adversely affected by the implementationof any proposecl rule, regulation, c~rorder who desires an opportunity fororal presen~tion of views, dati, and arguments, may submit material Sup-porting the existence of such substantial issues or such impact.

(3) A transcript shall be kept of any oral presentation with respect to arule, regulation, or order described in subsection (a).

(d) Following the notice and comment period, including any oral pres-entation required by this subsection, the Secretary may promulgate a rule

August 4, 1977


if the rule is accompanied by an explanation responding to the mjor com-ments, criticisms, and alternatives offered during the comment period.

(e) The requirements of subsections (b), (c), and (d) of this section maybe waived where strict compliance is found by the Secretary to be likely tocause serious harm or injury to the public health, safety, or welfare, andsuch finding is set out in detail in such rule, regulation, or order. In theevent the requirements of this section are waived, the requirements shallbe satisfied within a reasonable period of time subsequent to the promul-gation of such rule, regulation, or order.

(f)(1) With respect to any rule, regulation, or order described in subsec-tion (a), the effects of which except for indirect effects of an inconsequentialnature, are confined to—

(A) a single unit of local government or the residents thereofi(B) a single geographic area within a State or the residents thereofi or(C) a single State or the residents thereo~

the Secretary shall, in any case where appropriate, afford an opportunityfor a hearing or the oral presentation of views, and provide procedures forthe holdlng of such hearing or oral presentation within the boundaries ofthe unit of local government, geographic area, or State described in par-agraphs (A) through (C) of this paragraph as the case may be.

(2) For the purposes of this subsection—(A) the term “unit of local government” means a county, municipality,

town, township, village, or other unit of general government below theState level; and

(B) the term “geographic area within a State” means a special purposedistrict or other region recognized for governmental purposes within suchState which is not a unit of local government.(3) Nothing in this subsection shall be construed as requiring a hearing

or an oral presentation of views where none is required by this section orother provision of law.

(g) Whe!e authorized by any law vested, transferred, or delegated pur-suant to this Act, the Secretary may, by rule, prescribe procedures for Stateor local government agencies authorized by the Secretary to carry out suchfunctions as may be permitted under applicable law. Such procedures shallapply to such agencies in lieu of this section, and shall require that priorto taking any action, such agencies shall take steps reasonably calculated toprovide notice to persons who may be affected by the action, and shallafford an opportunity for presentation of views (including oral presentationof views where practicable) within a reasonable time before taking the ac-tion. (91 Stat. 587; 42 U.S.C. $ 7191)

NOTMOFOPINIONS

Intefim rates 1 the Department of Wergy Or~nimtion ActRatemrddng, generally 2 to place power rates into effect on an interimRtietig 3 basis without confirmation and approml by

1. Interim rates the Federal Energy Re&latory Commission,

The Secremry of EnerW is without au- assuccessorto the Federal Powercommission,

thonty under sections301 (b) and501 (a)(l ) of as required by section 5 of the Flood Control

August 4, 1977


Act of 1944. City~fFulti v. United States, 680F. 2d 115 (Ct. Cl. 1982). [Edhor’s note: Thisdecision was affirmed by the Federal Circuit,751 F.2d 1255 (1985) but reversed by the Su-preme Court sub. nom. United States u. Ci~ ofFulton, 475 U.S. . 89 L. Ed 2d 661,106 S.Ct. 1422 (1’- ‘

2. Rat~g, gmse~lyDespitethe implicationin sections301(b)(2)

and 501 (a)(1) to tile contrary, the unificationin the handsof the Secretary of Energy of the~Pamte fun~ions of the Secreti~ of the In-terior to prepare rates and of the FederalPower Commission to confirm and approverates, amends section 5 of the Flood ControlAct of 1944 to alter the strict procedural re-quirements of a bifurcated rate implemen@-tion $cheme. United States v. Tex-La ElectticCooperative, Iw., 693 F. 2d. 392,404 (5th Cir.1982).

3. RdetingPower from Federal hydroelectric projects

is “public property” and thus was exemptfrom the rulemaking requirement of section553 of the Administrative Procedure Act(APA) before the exemption was eliminatedby section 501@)(3) of the Department of En-ergy Organization Act. However, if the cri-teria used by the Southeastern PowerAdministration for allocating power had be-come so “crystallized’ as to be considered a“rule” or’ ‘regubtion” withinthe meaningofsection 552 of the APA, they would have tobe published.&emood Utilities Commti& v.Schlesinger, 515 F. Supp. 653, 659-61 (M.D.~. 1981). [Editor’s note: The court’s deci-sion was firmed, 764 F.2d 1459 (1 lth Cir.1985); however, the annotated holding wasnot discussed.]

JUDICIAL REVIEW

*. 502. (a) Judicial review of agency action taken under any law thefunctions of which are vested by law in, or transferred or delegated to theSecretary, the Commission of any officer, employee, or component of theDepartment shall notwithstanding such vesting transfer, or delegation, bemade in the manner specified in or for such law.

(b) Notwithstanding the amount in controversy, the district courts of theUnited States shall have exclusive original jurisdiction of all other cases orcontroversies a~-isingexclusively ur~der this Act, or under rules, regulations,or orders issued exclusively thereunder, other than any actions taken toimplement or enforce any rule, regulation, or order by any officer of aState or local government agency under this Act, except that nothing inthis section affects the power of any court of competent jurisdiction toconsider, hear, and determine in any proceeding before it any issue raisedby way of defelnse (other than a defense based on the unconstitutionalityof this Act or the validity of actionl taken by any agency under this Act). Ifin any such proceeding an issue by way of defense is raised based on theunconstitutionality of this Act or the validity of agency action under thisAct, the case shall be subject to removal by either party to a district courtof the United States in accordance with the applicable provisions of chapter89 of title 28, LJnited States Code. Cases or controversies arising under anyrule, regulation, or order of any officer of a State or local governmentagency may be heard in either (A) any appropriate State court, or (B)without re~rd to the amount in controversy, the district courts of theUnited States.

(c) Subject to, the provisions of section 401(i) of this Act, and notwith-standing any other law, the litigation of the Department shall be subject tothe supervision of the Attorney General pursuant to chapter 31 of title 28,

August 4, 1977


United States Code. The Attorney General may authorize anv attorney of,the Department to conduct any ~ivil litigation. of the Department in ‘anyFederal court except the Supre “-” - ‘--

* *

TITLE VI—ADM

* *

meCourt. (91 S@t. 58Y; 42 U.S.C. $ 7192)

* * *

NISTRATIVE PROVISIONS

* * *

PART C—GENERAL ADMINISTRATIVE PROVISIONS

GENERAL AUTHORITY

~. 641. To the extent necessary or appropriate to perform any functiontransferred by this Act, the Secretary or any officer or employee of theDepartment may exercise, in carrying out the function so transferred, anyauthority or part thereof available by law, including appropriation Acts, tothe official or agency from which such function was transferred. (91 Stat.598; 42 U.S.C. ~ 7252)

NOTEOFOPINION

1. m~ md h- ulatory Commission (FERC) the authority toIt is well within the Secremry of Energy’s confirm and approve rates on a final basis.

broad discretion under the Department of Memorandum of General Counsel tileman,

Energy Organimtion Act to delegate to the October 14, 1978, in re proposed delegationAssis~nt Secretary the authority to confirm to FERC of rate confirmation authority forand approve rates on an interim basis and to the Department of Energy’s power marketingdelegate or assign to the Federal Energy Reg- agencies.

DELEGATION

-.642. Except as otherwise expressly prohibited by law, and except asotherwise provided in this Act, the Secretary may delegate any of his func-tions to such officers and employees of the Department as he may designate,and may authorize such successive redelegations of such functions withinthe Department as he may deem to be necessary or appropriate. (91 Stat.599; 42 U.S.C. ~ 7252)

NOTEOFOPINION

1. Ram -d &mgea uhtory Commission (FERC) the authority toIt is well within the Secre=ry of Energy’s confirm and approve rates on a final basis.

broad discretion under the Department of Memorandum of General Counsel Coleman,Energy Organimtion Act to delegate to the October 14, 1978, in re proposed delegationAssismnt Secretiry the authority to confirm to FERC of rate confirmation authority forand approve rates on an interim basis and to the Department of Energy’s power marketingdelegate or assign to the Federal Energy Reg- agencies.

REORGANIZATION

%. 643. The Secretary is authorized to establish, alter, consolidate ordiscontinue such organizational units or components within the Department

August 4, 1977


as he may deem to be necessary or appropriate. Such authority shall notextend to the abofition of organizational units or components establishedby this Act, or to the transfer of functions vested by this Act in any or~-izational unit or component. (91 Stat. 599; 42 U.S.C. $ 7253)

RULES

%. 644. The Secretary is authorized to prescribe such procedural andadministrative rules and regulations as he may deem necessary or appro-priate to administer and manage the functions now or hereafter vested inhim. (91 Stat. 599; 42 U.S.C. $ 7254)

SUBPENA

See. 645. For the purpose of carrying out the provisions of this chapter,the Secretary, or his duly authorized agent or agents, shall have the samepowers and authorities as the Federal Trade Commission under section 9of the Federal Trade Commission Act with respect to all functions vestedin, or transferred or delegated to, the Secretary or such agents by thischapter. For purposes of carrying out its responsibilities under the NaturalGas Policy Act. of 1978, the Commission shall have the same powers andauthority as the Secretary has ulnder this section. (91 Stit. 599; Act ofNovember 9, 1.978, 92 S@t. 3408; 42 U.S.C. $ 7255)

EXPLANATORYNom

1978 Amefiat. Section508(a) of the adding the last sentence. The 1978 Act doesAct of November 9, 1978 (Public bw 95- not appear herein.621, 92 Stat. 3408) amended section 645 by

CONTRACTS

See. 646. (a) The Secretary is authorized to enter into and perform suchcontracts, leases, cooperative agreements, or other simibr transactions withpublic agencies and private organizations and persons, and to make suchpayments (in lump sum or installments, and by way of advance or reim-bursement) as he may deem to be necessary or appropriate to carry outfunctions now or hereafter vested in the Secretary.

(b) Notwithstanding any other provision of this title, no authority to enterinto contracts or to make payments under this title shall be effective exceptto such extent or in such amounts as are provided in advance in appropri-ation Acts. (91 Stat. 599; 42 U.S.C. $ 7256)

At2QUISITION AND MAINTENANCE OF PROPERTY

%. 647. The Secretary is authorized to acquire (by purchase, lease,condemnation, or otherwise), construct, improve, repair, operate, and main-tain laboratoric!s, research and testing sites and facilities, quarters and re-lated accomm~tions for employees and dependents of employees of theDepartment, pcrsonaI property (including patents), or any interest therein,as the Secreta~ deems necessary; and to provide by contract or otherwise

August 4, 1977


for eating facilities and other necessary facilities for the health and welfareof employees of the Department at its installations and purchase and main-tain equipment therefor. (91 Stat. 599; 42 U.S.C. ~ 7257)

FACILITIES CONSTRUCTION

SW. 648. (a) As necessary and when not otherwise available, the Secretaryis authorized to provide for, construct, or maintain the following for em-ployees and their dependents stationed at remote locations:

(1) Emergency medical services and supplies;(2) Food and other subsistence supplies;(3) Messing facilities;(4) Audiovisual equipment, accessories, and supplies for recreation and

training;(5) Reimbursement for food, clothing, medicine, and other supplies

furnished by such employees in emergencies for the temporary relief ofdistressed persons;

(6) Living and working quarters and facilities; and(7) Transportation of schoolage dependents of employees to the nearest

appropriate educational facilities.(b) The furnishing of medical treatment under paragraph (1) of subsec-

tion (a) and the furnishing of services and supplies under paragraphs (2)and (3) of subsection (a) shall be at prices reflecting reasonable value asdetermined by the Secretary.

(c) Proceeds from reimbursements under this section shall be depositedin the Treasury and may be withdrawn by the Secretary to pay directly thecost of such work or services, to repay or make advances to appropriationsof funds which will initially bear all or a part of such cost, or to refundexcess sums when necessary. Such payments may be credited to a workingcapital fund otherwise established by law, including the fund establishedpursuant to section 653 of this Act, and used under the law governing suchfund, if the fund is available for use by the Department for performing thework or services for which payment is received. (91 Stat. 600; 42 U.S.C.~ 7258)

USE OF FACILITIES

Sec. 649. (a) With their consent, the Secretary and the Federal EnergyRegulatory Commission may, with or without reimbursement, use the re-search, equipment, and facilities of any agency or instrumentality of theUnited States or of any State, the District of Columbia, the Commonwealthof Puerto Rico, or any territory or possession of the United States, or ofany political subdivision thereof, or of any foreign government, in carryingout any function now or hereafter vested in the Secretary or theCommission.

(b) In carrying out his functions, the Secretary, under such terms, at suchrates, and for such periods not exceeding five years, as he may deem to bein the public interest, is authorized to permit the use by public and private

August 4, 1977


agencies, corporations, associations, or other organizations or by individualsof any real property, or any facility, structure, or other improvementthereon, under the custody of the Secretary for Department purposes. TheSecretary may require permitters under this section to recondition andmaintain, at their own expense, the real property, facilities, structures, andimprovements involved to a satisfactory standard. This section shall notapply to excess property as defined in 3(e) of the Federal Property andAdministrative Services Act of 1949.

(c) Proceeds from reimbursements under this section shall be depositedin the Treasury and may be withdrawn by the Secretary or the head of theagency or instrumentality of the United States involved, as the case maybe, to pay directly the costs of the equipment, or facilities provided, to repayor make advances to appropriations or funds which do or will initially bearall or a part of such costs, or to rej~und excess sums when necessary, exceptthat such proceeds may be credited to a working capital fund otherwiseeswblished by law, including the fund established pursuant to section 653of this Act, and used under the law governing such fund, if the fund isavailable for US(:for providing the equipment or facilities involved. (9 1 Stat.600; 42 U.S.C. $ 7259)

EXPLAIWATORYNOTE

Referen@ in *C Tat. Section3(e)of tie 377) referred to in subsection (b), appears inFederal Property and Administrative Services Volume II at page 956.Act of 1949 (Act c)f June 30, 1949, 63 Stit.

FIELD OFFIC~

See. 650. The Secretary is authorized to estiblish, alter, consolidate ordiscontinue and to maintain such State, regional, district, local or otherfield offices as lhe may deem to be necessary to carry out functions vestedin him. (91 Stat. 601; 42 U.S.C. $ 7260)

COPYRIGHTS

See. 651. The Secretary is authorized to acquire any of the followingdescribed rights if the property acquired thereby is for use by or for, oruseful to, the Department:

(1) copyrigl~ts, patents, and applications for patents, designs, processes,and manufacturing data;

(2) licenses under copyrights, patents, and applications for patents; and(3) releases, before suit is brought, for past infringement of patents or

copyrights. (91 Stat. 601; 42 U.3.C. $ 7261)

GIFTS AND BEQUESTS

Sec. 652. The Secretary is authorized to accept, hold, administer, andutilize gifts, bequests, and devises of property, both real and personal, forthe purpose of ‘aiding or facilitating the work of the Department. Gifts,bequests, and devises of money and proceeds from sales of other property

August 4, 1977


received as gifts, bequests, or devises shall be deposited in the Treasury andshall be disbursed upon the order of the Secretary. Property accepted pur-suant to this section, and the proceeds thereof, shall be used as nearly aspossible in accordance with the terms of the gift, bequest, or devise. Forthe purposes of Federal income, estate, and gift tixes, property acceptedunder this section shall be considered as a gift, bequest, or devise to theUnited States. (91 Stat. 601; 42 U.S.C. $ 7262)

* * * * *

TITLE VII—TRANSITIONAL, SAVINGS, ANDCONFORMING PROVISIONS

TRANSFER AND ALLOCATIONS OF APPROPRIATIONS AND PERSONNEL

See. 701. (a) Except as otherwise provided in this Act, the personnelemployed in connection with, and the assets, liabilities, contracts, property,records, and unexpended balance of appropriations authorizations, allo-cations, and other funds employed, held, used, arising from, available to orto be made available in connection with the functions transferred by thisAct, subject to section 202 of the Budget and Accounting Procedure Actof 1950, are hereby transferred to the Secretary for appropriate allocation.Unexpended funds transferred pursuant to this subsection shall only beused for the purposes for which the funds were originally authorized andappropriated.

~) Positions expressly specified by smtute or reorganization plan to carryout function transferred by this Act, personnel occupying those positionson the effective date of this Act, and personnel authorized to receive com-pensation in such positions at the rate prescribed for offices and positionsat level 1, II, III, IV, or V of the executive schedule (5 U.S.C. 53 12–53 16)on the effective date of this Act, shall be subject to the provisions of section703 of Wls Act. (91 Stat. 605; 42 U.S.C. $ 7291)

* * * * *

AGENCY TERMINATIONS

%. 703. Except as otherwise provided in this Act, whenever all of thefunctions vested by law in any agency, commission, or other body, or anycomponent thereof, have been terminated or transferred from that agency,commission, or other body, or component by this Act, the agency, com-mission, or other body, or component, shall terminate. If an agency, com-mission, or other body, or any component thereof, terminates pursuant tothe preceding sentence, each position and office therein which was expresslyauthorized by law, or the incumbent of which was authorized to receivecompensation at the rates prescribed for an office or position at level II,III, IV, or V of the Executive Schedule (5 U.S.C. 5313-5316), shallterminate. (91 Stat. 606; 42 U.S.C. $ 7293)

August 4, 197;7


INCIDENTAL TRANSFERS

See. 704.The Director of the Office of Management and Budget, in con-sultation with the Secretary and the Commission, is authorized and directedto make such determinations as may be necessary with regard to the transferof functions which relate to or are utilized by an agency, commission orother body, or component thereojr affected by this Act, to make such ad-ditional inciderltal dispositions of personnel, assets, liabilities, contracts,property, records, and unexpended balances of appropriations, authoriza-tions, allocations, and other funds held, used, arising from, available to orto be made available in connection with the functions transferred by thisAct, as he may deem necessary to ;accomplish the purposes of this Act. (91Stat. 606; 42 U.S.C. $ 7294)

SAVINGS PROVISIONS

%. 705. (a) All orders, determinations, rules, regulations, permits, con-tracts, certificates, licenses, and privileges—

(1) which have been issued, made, granted, or allowed to become ef-fective by the President, any Federal department or agency or officialthereof, or by a court of competent jurisdiction, in the performance offunctions which are transferred under this Act to the Department or theCommission after the date of enactment of this Act, and

(2) which are in effect at the time this Act takes effect,shall continue irl effect according to their terms until modfied, terminated,superseded, set aside, or revoked ilnaccordance with law by the President,the Secretary, the Federal Ener~ Regulatory Commission, or other au-thorized officials, a court of competent jurisdiction, or by operation of law.

(b)(l) The provisions of this Act shall not affect any proceedings or anyapplication for any license, permit, certificate, or financial assistance pend-ing at the time this Act @kes effect before any department, agency, com-mission, or component thereof, functions of which are transferred by thisAct; but such proceedings and applications, to the extent that they relateto functions so transferred, shall be continued. Orders shall be issued insuch proceedings, appeals shall be taken therefrom, and payments shall bemade pursuant to such orders, as if this Act had not been enacted; andorders issued in any such proceedings shall continue in effect until modified,terminated, superseded, or revoked by a duly authorized official, by a courtof competent jurisdiction, or by operation of law. Nothing in this subsectionshall be deemed to prohibit the discontinuance or modification of any suchproceeding under the same terms and conditions and to the same extentthat such procet:ding could have bt:en discontinued or modified if this Acthad not been erected.

(2) The Secretary and the Commission are authorized to promulgateregulations providing for the. orderly transfer of such proceedings to theDepartment or the Commission.

(c) Except as provided in subsection (e)—(1) the provisions of this Act shall not affect suits commenced prior to

the date this Act takes effect, and,

August 4, 1977


(2) in all such suits, proceedings shall be had, appeals taken, and judg-ments rendered in the same manner and effect as if this Act had not beenenacted.(d) No suit, action, or other proceeding commenced by or against any

officer in his official capacity as an officer of any department or agency,functions of which are transferred by this Act, shall abate by reason of theenactment of this Act. No cause of action by or against any department oragency, functions of which are transferred by this Act, or by or against anyofficer thereof in his official capacity sbll abate by reason of the enactmentof this Act.

(e) If, before the date on which this Act takes effect, any department oragency, or officer thereof in his official capacity, is a party to a suit, andunder this Act any function of such department, agency, or officer is trans-ferred to the Secretary or any other official, then such suit shall be continuedwith the Secretary or other official, as the case may be, substituted. (91Stat. 606; 42 U.S.C. $ 7295)

SEPARABILITY

See. 706. If any provision of this Act or the application thereof to anyperson or circumstance is held invalid, neither the remainder of this Actnor the application of such provision to other persons or circumstances shallbe affected thereby. (91 Stat. 607; 42 U.S.C. $ 7296)

REFERENCE

Sec. 707. With respect to any functions transferred by this Act and ex-ercised after the effective date of this Act, reference in any other Federallaw to any department, commission, or agency or any officer or office thefunctions of which are so transferred shall be deemed to refer to the Sec-retary, the Federal Energy Regulatory Commission, or other offlcml orcomponent of the Department in which this Act vests such functions. (91Stat. 607; 42 U.S.C. $ 7297)

PRESIDENTIAL AUTHORITY

S=. 708. Except as provided in title IV, nothing contained in this Actshall be construed to limit, curtail, abolish, or terminate any function of,or authority available to, the President which he had immediately beforethe effective date of this Act; or to limit, curtail, abolish, or terminate hisauthority to delegate, redelegate, or terminate any delegation of functions.(91 Stat. 607; 42 U.S.C. $ 7298)

TITLE IX—EFFECTIVE DATE AND INTERIMAPPOINTMENTS

EFFECTIVE DATE

Sec. 901. The provisions of this Act shall take effect one hundred andtwenty days after the Secretary first takes office, or on such earlier date as

August 4, 197’7


the President may prewribe and publish in the Fedeml Register, exceptthat at any time after the date of enactment of this Act, (1) any of theofficers provided for in title II anld title IV of this Act may be nomimtedand appointed, as provided in those titles, and (2) the Secretary and theCommission may promulgate regulations pursuant to section 705(b) (2) ofthis Act at any time after the date of enactment of this Act. Funds availableto any department or agency (or any oficial or component thereo~, func-tions of which are transferred to the Secretary or the Commission by thisAct, may with the approval of the Director of the Office of Managementand Budget, be used to pay the compensation and expenses of any officerappointed pursuant to this subsection until such time as funds for thatpurpose are otherwise available. (91 Stat. 612; 42 U.S.C. $ 7341)

* * * * *

EXPLANATORYNOTES

Eff~ve Date.ExecutiveOrder 12009,is- deemedrelevantto theprogramsandactivi-suedSeptember13, 1977,establishedOct(]- desof Bureauof Reclamationor theAbsh,ber 1, 1977 as the effective date of the Bonneville, Southeastern, Southwestern, andDepartment of Ener~ Organi=tion Act. Western Area Power Administrations under

Mtor’s Note, AMohtio~. Annotations this statute.of opinions are included only to the exterlt

EXPLANATORYNOTE

~slative Hlstary. S. 826, Pubfic Law (H.R. Rept. No. 95-346, Part II). House con-95-91 in the 95th C(mgress. Reported in Sen- ference report H.R. Rept. No. 95-539, Julyate from tivemmentsl Affairs May 14, 1977; 26, 1977. Senate conference report S. Rept.S. Rept. No. 95-164. H.R. 6804 reported in No. 95-367, July 27, 1977. S. 826 passed inHouse horn Gvemment Operations May 16, lieu of H.R. 6804 by House and Semte Au-1977 (H.R. Rept. No. 95-346, Part 1) and gust 2, 1977.Post OMce and Civil Service May 24, 1977

department of energy organization act

Documents