16 U.S.C. § 824k — Untitled legal text

Page 1420 TITLE 16—CONSERVATION § 824k utility to transfer control or operational control of its transmitting facilities to a Transmission Organization that is designated to provide non- discriminatory transmission access. (June 10, 1920, ch. 285, pt. II, § 211A, as added Pub. L. 109–58, title XII, § 1231, Aug. 8, 2005, 119 Stat. 955.) § 824k. Orders requiring interconnection or wheeling (a) Rates, charges, terms, and conditions for wholesale transmission services An order under section 824j of this title shall require the transmitting utility subject to the order to provide wholesale transmission services at rates, charges, terms, and conditions which permit the recovery by such utility of all the costs incurred in connection with the trans- mission services and necessary associated serv- ices, including, but not limited to, an appro- priate share, if any, of legitimate, verifiable and economic costs, including taking into account any benefits to the transmission system of pro- viding the transmission service, and the costs of any enlargement of transmission facilities. Such rates, charges, terms, and conditions shall pro- mote the economically efficient transmission and generation of electricity and shall be just and reasonable, and not unduly discriminatory or preferential. Rates, charges, terms, and con- ditions for transmission services provided pursu- ant to an order under section 824j of this title shall ensure that, to the extent practicable, costs incurred in providing the wholesale trans- mission services, and properly allocable to the provision of such services, are recovered from the applicant for such order and not from a transmitting utility’s existing wholesale, retail, and transmission customers. (b) Repealed. Pub. L. 102–486, title VII, § 722(1), Oct. 24, 1992, 106 Stat. 2916 (c) Issuance of proposed order; agreement by parties to terms and conditions of order; ap- proval by Commission; inclusion in final order; failure to agree (1) Before issuing an order under section 824i of this title or subsection (a) or (b) of section 824j of this title, the Commission shall issue a proposed order and set a reasonable time for parties to the proposed interconnection or transmission order to agree to terms and condi- tions under which such order is to be carried out, including the apportionment of costs be- tween them and the compensation or reimburse- ment reasonably due to any of them. Such pro- posed order shall not be reviewable or enforce- able in any court. The time set for such parties to agree to such terms and conditions may be shortened if the Commission determines that delay would jeopardize the attainment of the purposes of any proposed order. Any terms and conditions agreed to by the parties shall be sub- ject to the approval of the Commission. (2)(A) If the parties agree as provided in para- graph (1) within the time set by the Commission and the Commission approves such agreement, the terms and conditions shall be included in the final order. In the case of an order under sec- tion 824i of this title, if the parties fail to agree within the time set by the Commission or if the Commission does not approve any such agree- ment, the Commission shall prescribe such terms and conditions and include such terms and conditions in the final order. (B) In the case of any order applied for under section 824j of this title, if the parties fail to agree within the time set by the Commission, the Commission shall prescribe such terms and conditions in the final order. (d) Statement of reasons for denial If the Commission does not issue any order ap- plied for under section 824i or 824j of this title, the Commission shall, by order, deny such appli- cation and state the reasons for such denial. (e) Savings provisions (1) No provision of section 824i, 824j, 824m of this title, or this section shall be treated as re- quiring any person to utilize the authority of any such section in lieu of any other authority of law. Except as provided in section 824i, 824j, 824m of this title, or this section, such sections shall not be construed as limiting or impairing any authority of the Commission under any other provision of law. (2) Sections 824i, 824j, 824l, 824m of this title, and this section, shall not be construed to mod- ify, impair, or supersede the antitrust laws. For purposes of this section, the term ‘‘antitrust laws’’ has the meaning given in subsection (a) of the first sentence of section 12 of title 15, except that such term includes section 45 of title 15 to the extent that such section relates to unfair methods of competition. (f) Effective date of order; hearing; notice; re- view (1) No order under section 824i or 824j of this title requiring the Tennessee Valley Authority (hereinafter in this subsection referred to as the ‘‘TVA’’) to take any action shall take effect for 60 days following the date of issuance of the order. Within 60 days following the issuance by the Commission of any order under section 824i or of section 824j of this title requiring the TVA to enter into any contract for the sale or deliv- ery of power, the Commission may on its own motion initiate, or upon petition of any ag- grieved person shall initiate, an evidentiary hearing to determine whether or not such sale or delivery would result in violation of the third sentence of section 15d(a) of the Tennessee Val- ley Authority Act of 1933 (16 U.S.C. 831n–4), here- inafter in this subsection referred to as the TVA Act [16 U.S.C. 831 et seq.]. (2) Upon initiation of any evidentiary hearing under paragraph (1), the Commission shall give notice thereof to any applicant who applied for and obtained the order from the Commission, to any electric utility or other entity subject to such order, and to the public, and shall promptly make the determination referred to in para- graph (1). Upon initiation of such hearing, the Commission shall stay the effectiveness of the order under section 824i or 824j of this title until whichever of the following dates is applicable— (A) the date on which there is a final deter- mination (including any judicial review there- of under paragraph (3)) that no such violation would result from such order, or Page 1421 TITLE 16—CONSERVATION § 824k (B) the date on which a specific authoriza- tion of the Congress (within the meaning of the third sentence of section 15d(a) of the TVA Act [16 U.S.C. 831n–4(a)]) takes effect. (3) Any determination under paragraph (1) shall be reviewable only in the appropriate court of the United States upon petition filed by any aggrieved person or municipality within 60 days after such determination, and such court shall have jurisdiction to grant appropriate relief. Any applicant who applied for and obtained the order under section 824i or 824j of this title, and any electric utility or other entity subject to such order shall have the right to intervene in any such proceeding in such court. Except for review by such court (and any appeal or other review by an appellate court of the United States), no court shall have jurisdiction to con- sider any action brought by any person to enjoin the carrying out of any order of the Commission under section 824i or section 824j of this title re- quiring the TVA to take any action on the grounds that such action requires a specific au- thorization of the Congress pursuant to the third sentence of section 15d(a) of the TVA Act [16 U.S.C. 831n–4(a)]. (g) Prohibition on orders inconsistent with retail marketing areas No order may be issued under this chapter which is inconsistent with any State law which governs the retail marketing areas of electric utilities. (h) Prohibition on mandatory retail wheeling and sham wholesale transactions No order issued under this chapter shall be conditioned upon or require the transmission of electric energy: (1) directly to an ultimate consumer, or (2) to, or for the benefit of, an entity if such electric energy would be sold by such entity directly to an ultimate consumer, unless: (A) such entity is a Federal power mar- keting agency; the Tennessee Valley Au- thority; a State or any political subdivision of a State (or an agency, authority, or in- strumentality of a State or a political sub- division); a corporation or association that has ever received a loan for the purposes of providing electric service from the Adminis- trator of the Rural Electrification Adminis- tration under the Rural Electrification Act of 1936 [7 U.S.C. 901 et seq.]; a person having an obligation arising under State or local law (exclusive of an obligation arising solely from a contract entered into by such person) to provide electric service to the public; or any corporation or association which is wholly owned, directly or indirectly, by any one or more of the foregoing; and (B) such entity was providing electric serv- ice to such ultimate consumer on October 24, 1992, or would utilize transmission or dis- tribution facilities that it owns or controls to deliver all such electric energy to such electric consumer. Nothing in this subsection shall affect any au- thority of any State or local government under State law concerning the transmission of elec- tric energy directly to an ultimate consumer. (i) Laws applicable to Federal Columbia River Transmission System (1) The Commission shall have authority pur- suant to section 824i of this title, section 824j of this title, this section, and section 824l of this title to (A) order the Administrator of the Bon- neville Power Administration to provide trans- mission service and (B) establish the terms and conditions of such service. In applying such sec- tions to the Federal Columbia River Trans- mission System, the Commission shall assure that— (i) the provisions of otherwise applicable Federal laws shall continue in full force and effect and shall continue to be applicable to the system; and (ii) the rates for the transmission of electric power on the system shall be governed only by such otherwise applicable provisions of law and not by any provision of section 824i of this title, section 824j of this title, this section, or section 824l of this title, except that no rate for the transmission of power on the system shall be unjust, unreasonable, or unduly dis- criminatory or preferential, as determined by the Commission. (2) Notwithstanding any other provision of this chapter with respect to the procedures for the determination of terms and conditions for transmission service— (A) when the Administrator of the Bonne- ville Power Administration either (i) in re- sponse to a written request for specific trans- mission service terms and conditions does not offer the requested terms and conditions, or (ii) proposes to establish terms and conditions of general applicability for transmission serv- ice on the Federal Columbia River Trans- mission System, then the Administrator may provide opportunity for a hearing and, in so doing, shall— (I) give notice in the Federal Register and state in such notice the written explanation of the reasons why the specific terms and conditions for transmission services are not being offered or are being proposed; (II) adhere to the procedural requirements of paragraphs (1) through (3) of section 839e(i) of this title, except that the hearing officer shall, unless the hearing officer be- comes unavailable to the agency, make a recommended decision to the Administrator that states the hearing officer’s findings and conclusions, and the reasons or basis there- of, on all material issues of fact, law, or dis- cretion presented on the record; and (III) make a determination, setting forth the reasons for reaching any findings and conclusions which may differ from those of the hearing officer, based on the hearing record, consideration of the hearing officer’s recommended decision, section 824j of this title and this section, as amended by the En- ergy Policy Act of 1992, and the provisions of law as preserved in this section; and (B) if application is made to the Commission under section 824j of this title for transmission service under terms and conditions different than those offered by the Administrator, or following the denial of a request for trans- Page 1422 TITLE 16—CONSERVATION § 824k mission service by the Administrator, and such application is filed within 60 days of the Administrator’s final determination and in ac- cordance with Commission procedures, the Commission shall— (i) in the event the Administrator has con- ducted a hearing as herein provided for (I) accord parties to the Administrator’s hear- ing the opportunity to offer for the Commis- sion record materials excluded by the Ad- ministrator from the hearing record, (II) ac- cord such parties the opportunity to submit for the Commission record comments on ap- propriate terms and conditions, (III) afford those parties the opportunity for a hearing if and to the extent that the Commission finds the Administrator’s hearing record to be in- adequate to support a decision by the Com- mission, and (IV) establish terms and condi- tions for or deny transmission service based on the Administrator’s hearing record, the Commission record, section 824j of this title and this section, as amended by the Energy Policy Act of 1992, and the provisions of law as preserved in this section, or (ii) in the event the Administrator has not conducted a hearing as herein provided for, determine whether to issue an order for transmission service in accordance with sec- tion 824j of this title and this section, in- cluding providing the opportunity for a hearing. (3) Notwithstanding those provisions of sec- tion 825l(b) of this title which designate the court in which review may be obtained, any party to a proceeding concerning transmission service sought to be furnished by the Adminis- trator of the Bonneville Power Administration seeking review of an order issued by the Com- mission in such proceeding shall obtain a review of such order in the United States Court of Ap- peals for the Pacific Northwest, as that region is defined by section 839a(14) of this title. (4) To the extent the Administrator of the Bonneville Power Administration cannot be re- quired under section 824j of this title, as a result of the Administrator’s other statutory man- dates, either to (A) provide transmission service to an applicant which the Commission would otherwise order, or (B) provide such service under rates, terms, and conditions which the Commission would otherwise require, the appli- cant shall not be required to provide similar transmission services to the Administrator or to provide such services under similar rates, terms, and conditions. (5) The Commission shall not issue any order under section 824i of this title, section 824j of this title, this section, or section 824l of this title requiring the Administrator of the Bonne- ville Power Administration to provide trans- mission service if such an order would impair the Administrator’s ability to provide such transmission service to the Administrator’s power and transmission customers in the Pacific Northwest, as that region is defined in section 839a(14) of this title, as is needed to assure ade- quate and reliable service to loads in that re- gion. (j) Equitability within territory restricted elec- tric systems With respect to an electric utility which is prohibited by Federal law from being a source of power supply, either directly or through a dis- tributor of its electric energy, outside an area set forth in such law, no order issued under sec- tion 824j of this title may require such electric utility (or a distributor of such electric utility) to provide transmission services to another enti- ty if the electric energy to be transmitted will be consumed within the area set forth in such Federal law, unless the order is in furtherance of a sale of electric energy to that electric utility: Provided, however, That the foregoing provision shall not apply to any area served at retail by an electric transmission system which was such a distributor on October 24, 1992, and which be- fore October 1, 1991, gave its notice of termi- nation under its power supply contract with such electric utility. (k) ERCOT utilities (1) Rates Any order under section 824j of this title re- quiring provision of transmission services in whole or in part within ERCOT shall provide that any ERCOT utility which is not a public utility and the transmission facilities of which are actually used for such transmission serv- ice is entitled to receive compensation based, insofar as practicable and consistent with sub- section (a), on the transmission ratemaking methodology used by the Public Utility Com- mission of Texas. (2) Definitions For purposes of this subsection— (A) the term ‘‘ERCOT’’ means the Electric Reliability Council of Texas; and (B) the term ‘‘ERCOT utility’’ means a transmitting utility which is a member of ERCOT. (June 10, 1920, ch. 285, pt. II, § 212, as added Pub. L. 95–617, title II, § 204(a), Nov. 9, 1978, 92 Stat. 3138; amended Pub. L. 102–486, title VII, § 722, Oct. 24, 1992, 106 Stat. 2916.) Editorial Notes REFERENCES IN TEXT The TVA Act, referred to in subsec. (f)(1), means act May 18, 1933, ch. 32, 48 Stat. 58, known as the Tennessee Valley Authority Act of 1933, which is classified gen- erally to chapter 12A (§ 831 et seq.) of this title. For complete classification of this Act to the Code, see sec- tion 831 of this title and Tables. The Rural Electrification Act of 1936, referred to in subsec. (h)(2)(A), is act May 20, 1936, ch. 432, 49 Stat. 1363, which is classified generally to chapter 31 (§ 901 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 901 of Title 7 and Tables. The Energy Policy Act of 1992, referred to in subsec. (i)(2)(A)(III), (B)(i), is Pub. L. 102–486, Oct. 24, 1992, 106 Stat. 2776. For complete classification of this Act to the Code, see Short Title note set out under section 13201 of Title 42, The Public Health and Welfare and Ta- bles. AMENDMENTS 1992—Subsec. (a). Pub. L. 102–486, § 722(1), added sub- sec. (a) and struck out former subsec. (a) which related to determinations by Commission. Page 1423 TITLE 16—CONSERVATION § 824o 1 See References in Text note below. Subsec. (b). Pub. L. 102–486, § 722(1), struck out subsec. (b) which required applicants for orders to be ready, willing, and able to reimburse parties subject to such orders. Subsec. (e). Pub. L. 102–486, § 722(2), amended subsec. (e) generally. Prior to amendment, subsec. (e) related to utilization of interconnection or wheeling authority in lieu of other authority and limitation of Commission authority. Subsecs. (g) to (k). Pub. L. 102–486, § 722(3), added sub- secs. (g) to (k). Statutory Notes and Related Subsidiaries STATE AUTHORITIES; CONSTRUCTION Nothing in amendment by Pub. L. 102–486 to be con- strued as affecting or intending to affect, or in any way to interfere with, authority of any State or local gov- ernment relating to environmental protection or siting of facilities, see section 731 of Pub. L. 102–486, set out as a note under section 796 of this title. § 824l. Information requirements (a) Requests for wholesale transmission services Whenever any electric utility, Federal power marketing agency, or any other person gener- ating electric energy for sale for resale makes a good faith request to a transmitting utility to provide wholesale transmission services and re- quests specific rates and charges, and other terms and conditions, unless the transmitting utility agrees to provide such services at rates, charges, terms and conditions acceptable to such person, the transmitting utility shall, within 60 days of its receipt of the request, or other mutually agreed upon period, provide such person with a detailed written explanation, with specific reference to the facts and circumstances of the request, stating (1) the transmitting util- ity’s basis for the proposed rates, charges, terms, and conditions for such services, and (2) its analysis of any physical or other constraints affecting the provision of such services. (b) Transmission capacity and constraints Not later than 1 year after October 24, 1992, the Commission shall promulgate a rule requir- ing that information be submitted annually to the Commission by transmitting utilities which is adequate to inform potential transmission customers, State regulatory authorities, and the public of potentially available transmission ca- pacity and known constraints. (June 10, 1920, ch. 285, pt. II, § 213, as added Pub. L. 102–486, title VII, § 723, Oct. 24, 1992, 106 Stat. 2919.) Statutory Notes and Related Subsidiaries STATE AUTHORITIES; CONSTRUCTION Nothing in this section to be construed as affecting or intending to affect, or in any way to interfere with, authority of any State or local government relating to environmental protection or siting of facilities, see sec- tion 731 of Pub. L. 102–486, set out as a note under sec- tion 796 of this title. § 824m. Sales by exempt wholesale generators No rate or charge received by an exempt wholesale generator for the sale of electric en- ergy shall be lawful under section 824d of this title if, after notice and opportunity for hearing, the Commission finds that such rate or charge results from the receipt of any undue preference or advantage from an electric utility which is an associate company or an affiliate of the exempt wholesale generator. For purposes of this sec- tion, the terms ‘‘associate company’’ and ‘‘affil- iate’’ shall have the same meaning as provided in section 16451 of title 42.1 (June 10, 1920, ch. 285, pt. II, § 214, as added Pub. L. 102–486, title VII, § 724, Oct. 24, 1992, 106 Stat. 2920; amended Pub. L. 109–58, title XII, § 1277(b)(2), Aug. 8, 2005, 119 Stat. 978.) Editorial Notes REFERENCES IN TEXT Section 16451 of title 42, referred to in text, was in the original ‘‘section 2(a) of the Public Utility Holding Company Act of 2005’’ and was translated as reading ‘‘section 1262’’ of that Act, meaning section 1262 of sub- title F of title XII of Pub. L. 109–58, to reflect the prob- able intent of Congress, because subtitle F of title XII of Pub. L. 109–58 does not contain a section 2 and sec- tion 1262 of subtitle F of title XII of Pub. L. 109–58 de- fines terms. AMENDMENTS 2005—Pub. L. 109–58 substituted ‘‘section 16451 of title 42’’ for ‘‘section 79b(a) of title 15’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–58 effective 6 months after Aug. 8, 2005, with provisions relating to effect of com- pliance with certain regulations approved and made ef- fective prior to such date, see section 1274 of Pub. L. 109–58, set out as an Effective Date note under section 16451 of Title 42, The Public Health and Welfare. STATE AUTHORITIES; CONSTRUCTION Nothing in this section to be construed as affecting or intending to affect, or in any way to interfere with, authority of any State or local government relating to environmental protection or siting of facilities, see sec- tion 731 of Pub. L. 102–486, set out as a note under sec- tion 796 of this title. § 824n. Repealed. Pub. L. 109–58, title XII, § 1232(e)(3), Aug. 8, 2005, 119 Stat. 957 Section, Pub. L. 106–377, § 1(a)(2) [title III, § 311], Oct. 27, 2000, 114 Stat. 1441, 1441A–80, related to authority re- garding formation and operation of regional trans- mission organizations. § 824o. Electric reliability (a) Definitions For purposes of this section: (1) The term ‘‘bulk-power system’’ means— (A) facilities and control systems nec- essary for operating an interconnected elec- tric energy transmission network (or any portion thereof); and (B) electric energy from generation facili- ties needed to maintain transmission system reliability. The term does not include facilities used in the local distribution of electric energy. (2) The terms ‘‘Electric Reliability Organiza- tion’’ and ‘‘ERO’’ mean the organization cer-