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-CITE-
16 USC Sec. 839f 01/26/98-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND
CONSERVATION-HEAD-
Sec. 839f. Administrative provisions-STATUTE-
(a) Contract authority
Subject to the provisions of this chapter, the Administrator is
authorized to contract in accordance with section 2(f) of the
Bonneville Project Act of 1937 (16 U.S.C. 832a(f)). Other
provisions of law applicable to such contracts on December 5, 1980,
shall continue to be applicable.
(b) Executive and administrative functions of Administrator of
Bonneville Power Administration; sound and businesslike
implementation of chapter
The Administrator shall discharge the executive and
administrative functions of his office in accordance with the
policy established by the Bonneville Project Act of 1937 (16 U.S.C.
832 and following), section 7152(a)(2) and (3) of title 42, and
this chapter. The Secretary of Energy, the Council, and the
Administrator shall take such steps as are necessary to assure the
timely implementation of this chapter in a sound and businesslike
manner. Nothing in this chapter shall be construed by the
Secretary, the Administrator, or any other official of the
Department of Energy to modify, alter, or otherwise affect the
requirements and directives expressed by the Congress in section
7152(a)(2) and (3) of title 42 or the operations of such officials
as they existed prior to December 5, 1980.
(c) Limitations and conditions on contracts for sale or exchange of
electric power for use outside Pacific Northwest
Any contract of the Administrator for the sale or exchange of
electric power for use outside the Pacific Northwest shall be
subject to limitations and conditions corresponding to those
provided in sections 2 and 3 of the Act of August 31, 1964 (16
U.S.C. 837a and 837b) for any contract for the sale, delivery, or
exchange of hydroelectric energy or peaking capacity generated
within the Pacific Northwest for use outside the Pacific Northwest.
In applying such sections for the purposes of this subsection, the
term ''surplus energy'' shall mean electric energy for which there
is no market in the Pacific Northwest at any rate established for
the disposition of such energy, and the term ''surplus peaking
capacity'' shall mean electric peaking capacity for which there is
no demand in the Pacific Northwest at the rate established for the
disposition of such capacity. The authority granted, and duties
imposed upon, the Secretary by sections 5 and 7 of such Act (16
U.S.C. 837e and 837f) (16 U.S.C. 837d and 837f) shall also apply to
the Administrator in connection with resources acquired by the
Administrator pursuant to this chapter. The Administrator shall,
in making any determination, under any contract executed pursuant
to section 839c of this title, of the electric power requirements
of any Pacific Northwest customer, which is a non-Federal entity
having its own generation, exclude, in addition to hydroelectric
generated energy excluded from such requirements pursuant to
section 3(d) of such Act (16 U.S.C. 837b(d)), any amount of energy
included in the resources of such customer for service to firm
loads in the region if (1) such amount was disposed of by such
customer outside the region, and (2) as a result of such
disposition, the firm energy requirements of such customer or other
customers of the Administrator are increased. Such amount of
energy shall not be excluded, if the Administrator determines that
through reasonable measures such amount of energy could not be
conserved or otherwise retained for service to regional loads. The
Administrator may sell as replacement for any amount of energy so
excluded only energy that would otherwise be surplus.
(d) Disposition of power which does not increase amount of firm
power Administrator is obligated to provide to any customer
No restrictions contained in subsection (c) of this section shall
limit or interfere with the sale, exchange or other disposition of
any power by any utility or group thereof from any existing or new
non-Federal resource if such sale, exchange or disposition does not
increase the amount of firm power the Administrator would be
obligated to provide to any customer. In addition to the
directives contained in subsections (i)(1)(B) and (i)(3) of this
section and subject to:
(1) any contractual obligations of the Administrator,
(2) any other obligations under existing law, and
(3) the availability of capacity in the Federal transmission
system,
the Administrator shall provide transmission access, load
factoring, storage and other services normally attendant thereto to
such utilities and shall not discriminate against any utility or
group thereof on the basis of independent development of such
resource in providing such services.
(e) Judicial review; suits
(1) For purposes of sections 701 through 706 of title 5, the
following actions shall be final actions subject to judicial review
-
(A) adoption of the plan or amendments thereto by the Council
under section 839b of this title, adoption of the program by the
Council, and any determination by the Council under section
839b(h) of this title;
(B) sales, exchanges, and purchases of electric power under
section 839c of this title;
(C) the Administrator's acquisition of resources under section
839d of this title;
(D) implementation of conservation measures under section 839d
of this title;
(E) execution of contracts for assistance to sponsors under
section 839d(f) of this title;
(F) granting of credits under section 839d(h) of this title;
(G) final rate determinations under section 839e of this title;
and
(H) any rule prescribed by the Administrator under section
839e(m)(2) of this title.
(2) The record upon review of such final actions shall be limited
to the administrative record compiled in accordance with this
chapter. The scope of review of such actions without a hearing or
after a hearing shall be governed by section 706 of title 5, except
that final determinations regarding rates under section 839e of
this title shall be supported by substantial evidence in the
rulemaking record required by section 839e(i) of this title
considered as a whole. The scope of review of an action under
section 839d(c) of this title shall be governed by section 706 of
title 5. Nothing in this section shall be construed to require a
hearing pursuant to section 554, 556, or 557 of title 5.
(3) Nothing in this section shall be construed to preclude
judicial review of other final actions and decisions by the Council
or Administrator.
(4) For purposes of this subsection -
(A) major resources shall be deemed to be acquired upon
publication in the Federal Register pursuant to section
839d(c)(4)(B) of this title;
(B) resources, other than major resources, shall be deemed to
be acquired upon execution of the contract therefor;
(C) conservation measures shall be deemed to be implemented
upon execution of the contract or grant therefor; and
(D) rate determinations pursuant to section 839e of this title
shall be deemed final upon confirmation and approval by the
Federal Energy Regulatory Commission.
(5) Suits to challenge the constitutionality of this chapter, or
any action thereunder, final actions and decisions taken pursuant
to this chapter by the Administrator or the Council, or the
implementation of such final actions, whether brought pursuant to
this chapter, the Bonneville Project Act (16 U.S.C. 832 et seq.),
the Act of August 31, 1964 (16 U.S.C. 837-837h), or the Federal
Columbia River Transmission System Act (16 U.S.C. 838 and
following), shall be filed in the United States court of appeals
for the region. Such suits shall be filed within ninety days of
the time such action or decision is deemed final, or, if notice of
the action is required by this chapter to be published in the
Federal Register, within ninety days from such notice, or be
barred. In the case of a challenge of the plan or programs or
amendments thereto, such suit shall be filed within sixty days
after publication of a notice of such final action in the Federal
Register. Such court shall have jurisdiction to hear and determine
any suit brought as provided in this section. The plan and
program, as finally adopted or portions thereof, or amendments
thereto, shall not thereafter be reviewable as a part of any other
action under this chapter or any other law. Suits challenging any
other actions under this chapter shall be filed in the appropriate
court.
(f) Tax treatment of interest on governmental obligations
For purposes of enabling the Administrator to acquire resources
necessary to meet the firm load of public bodies, cooperatives, and
Federal agencies from a governmental unit at a cost no greater than
the cost which would be applicable in the absence of such
acquisition, the exemption from gross income of interest on certain
governmental obligations provided in section 103(a)(1) (FOOTNOTE 1)
title 26 shall not be affected by the Administrator's acquisition
of such resources if -
(FOOTNOTE 1) See References in Text note below.
(1) the Administrator, prior to contracting for such
acquisition, certifies to his reasonable belief, that the persons
for whom the Administrator is acquiring such resources for sale
pursuant to section 839c of this title are public bodies,
cooperatives, and Federal agencies, unless the Administrator also
certifies that he is unable to acquire such resources without
selling a portion thereof to persons who are not exempt persons
(as defined in section 103(b) (FOOTNOTE 1) of title 26), and
(2) based upon such certification, the Secretary of the
Treasury determines in accordance with applicable regulations
that less than a major portion of the resource is to be furnished
to persons who are not exempt persons (as defined in section
103(b) (FOOTNOTE 1) of title 26).
The certification under paragraph (1) shall be made in accordance
with this subsection and a procedure and methodology approved by
the Secretary of the Treasury. For purposes of this subsection, the
term ''major portion'' shall have the meaning provided by
regulations issued by the Secretary of the Treasury.
(g) Review of rates for sale of power to Administrator by
investor-owned utility customers
When reviewing rates for the sale of power to the Administrator
by an investor-owned utility customer under section 839c(c) or 839d
of this title, the Federal Energy Regulatory Commission shall, in
accordance with section 824h of this title -
(1) convene a joint State board, and
(2) invest such board with such duties and authority as will
assist the Commission in its review of such rates.
(h) Companies which own or operate facilities for the generation of
electricity primarily for sale to Administrator
(1) No ''company'' (as defined in section 79b(a)(2) of title 15),
which owns or operates facilities for the generation of electricity
(together with associated transmission and other facilities)
primarily for sale to the Administrator under section 839d of this
title shall be deemed an ''electric utility company'' (as defined
in section 79b(a)(3) of title 15), within the meaning of any
provision or provisions of chapter 2C of title 15, if at least 90
per centum of the electricity generated by such company is sold to
the Administrator under section 839d of this title, and if -
(A) the organization of such company is consistent with the
policies of section 79a(b) and (c) of title 15, as determined by
the Securities and Exchange Commission, with the concurrence of
the Administrator, at the time of such organization; and
(B) participation in any facilities of such ''company'' has
been offered to public bodies and cooperatives in the region
pursuant to section 839d(m) of this title.
(2) The Administrator shall include in any contract for the
acquisition of a major resource from such ''company'' provisions
limiting the amount of equity investment, if any, in such
''company'' to that which the Administrator determines will be
consistent with achieving the lowest attainable power costs
attributable to such major resource.
(3) In the case of any ''company'' which meets the requirements
of paragraph (1), the Administrator, with the concurrence of such
Commission, shall approve all significant contracts entered into
by, and between, such ''company'' and any sponsor company or any
subsidiary of such sponsor company which are determined to be
consistent with the policies of section 79a(b) and (c) of title 15
at the time such contracts are entered into. The Administrator and
the Securities and Exchange Commission shall exercise such approval
authority within sixty days after receipt of such contracts. Such
contracts shall not be effective without such approval.
(4) Paragraph (1) of this subsection shall continue to apply to
any such ''company'' unless the Administrator or the Securities and
Exchange Commission, or both, through periodic review, (A)
determine at any time that the ''company'' no longer operates in a
manner consistent with the policies of section 79a(b) and (c) of
title 15 and in accordance with this subsection, and (B) notify the
''company'' in writing of such preliminary determination. This
subsection shall cease to apply to such ''company'' thirty days
after receipt of notification of a final determination thereof. A
final determination shall be made only after public notice of the
preliminary determination and after a hearing completed not later
than sixty days from the date of publication of such notice. Such
final determination shall be made within thirty days after the date
of completion of such hearing.
(i) Electric power acquisition or disposition
(1) At the request and expense of any customer or group of
customers of the Administrator within the Pacific Northwest, the
Administrator shall, to the extent practicable -
(A) acquire any electric power required by (i) any customer or
group of customers to enable them to replace resources determined
to serve firm load under section 839c(b) of this title, or (ii)
direct service industrial customers to replace electric power
that is or may be curtailed or interrupted by the Administrator
(other than power the Administrator is obligated to replace),
with the cost of such replacement power to be distributed among
the direct service industrial customers requesting such power;
and
(B) dispose of, or assist in the disposal of, any electric
power that a customer or group of customers proposes to sell
within or without the region at rates and upon terms specified by
such customer or group of customers, if such disposition is not
in conflict with the Administrator's other marketing obligations
and the policies of this chapter and other applicable laws.
(2) In implementing the provisions of subparagraphs (A) and (B)
of paragraph (1), the Administrator may prescribe policies and
conditions for the independent acquisition or disposition of
electric power by any direct service industrial customer or group
of such customers for the purpose of assuring each direct service
industrial customer an opportunity to participate in such
acquisition or disposition.
(3) The Administrator shall furnish services including
transmission, storage, and load factoring unless he determines such
services cannot be furnished without substantial interference with
his power marketing program, applicable operating limitations or
existing contractual obligations. The Administrator shall, to the
extent practicable, give priority in making such services available
for the marketing, within and without the Pacific Northwest, of
capability from projects under construction on December 5, 1980, if
such capability has been offered for sale at cost, including a
reasonable rate of return, to the Administrator pursuant to this
chapter and such offer is not accepted within one year.
(j) Retail rate designs which encourage conservation and efficient
use of electric energy, installation of consumer-owned
renewable resources, and rate research and development
(1) The Council, as soon as practicable after December 5, 1980
shall prepare, in consultation with the Administrator, the
customers, appropriate State regulatory bodies, and the public, a
report and shall make recommendations with respect to the various
retail rate designs which will encourage conservation and efficient
use of electric energy and the installation of consumer-owned
renewable resources on a cost-effective basis, as well as areas for
research and development for possible application to retail utility
rates within the region. Studies undertaken pursuant to this
subsection shall not affect the responsibilities of any customer or
the Administrator which may exist under the Public Utility
Regulatory Policies Act of 1978.
(2) Upon request, and solely on behalf of customers so
requesting, the Administrator is authorized to (A) provide
assistance in analyzing and developing retail rate structures that
will encourage cost-effective conservation and the installation of
cost-effective consumer-owned renewable resources; (B) provide
estimates of the probable power savings and the probable amount of
billing credits under section 839d(h) of this title that might be
realized by such customers as a result of adopting and implementing
such retail rate structures; and (C) solicit additional information
and analytical assistance from appropriate State regulatory bodies
and the Administrator's other customers.
(k) Executive position for conservation and renewable resources
There is hereby established within the administration an
executive position for conservation and renewable resources. Such
executive shall be appointed by the Administrator and shall be
assigned responsibility for conservation and direct-application
renewable resource programs (including the administration of
financial assistance for such programs). Such position is hereby
established in the senior executive service in addition to the
number of such positions heretofore established in accordance with
other provisions of law applicable to such positions.-SOURCE-
(Pub. L. 96-501, Sec. 9, Dec. 5, 1980, 94 Stat. 2729; Pub. L.
99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.)-REFTEXT-
REFERENCES IN TEXT
The Bonneville Project Act of 1937, referred to in subsecs. (b)
and (e)(5), is act Aug. 20, 1937, ch. 720, 50 Stat. 731, as
amended, which is classified generally to chapter 12B (Sec. 832 et
seq.) of this title. For complete classification of this Act to
the Code, see Short Title set out under section 832 of this title
and Tables.
Act of August 31, 1964, referred to in subsec. (e)(5), is Pub. L.
88-552, Aug. 31, 1964, 78 Stat. 756, as amended, which is
classified generally to chapter 12F (Sec. 837 et seq.) of this
title. For complete classification of this Act to the Code, see
Tables.
The Federal Columbia River Transmission System Act, referred to
in subsec. (e)(5), is Pub. L. 93-454, Oct. 18, 1974, 88 Stat. 1376,
as amended, which is classified generally to chapter 12G (Sec. 838
et seq.) of this title. For complete classification of this Act to
the Code, see Short Title note set out under section 838 of this
title and Tables.
Section 103 of title 26, referred to in subsec. (f), which
related to interest on certain governmental obligations was amended
generally by Pub. L. 99-514, title XIII, Sec. 1301(a), Oct. 22,
1986, 100 Stat. 2602, and as so amended relates to interest on
State and local bonds. Section 103(b)(3), which prior to the
general amendment defined exempt persons, relates to the
applicability of the interest exclusion to bonds not in registered
form, etc.
Chapter 2C (Sec. 79 et seq.) of title 15, referred to in subsec.
(h)(1), contains the Public Utility Holding Company Act of 1935,
act Aug. 26, 1935, ch. 687, title I, 49 Stat. 803, as amended. For
complete classification of this Act to the Code, see section 79 of
Title 15, Commerce and Trade, and Tables.
The Public Utility Regulatory Policies Act of 1978, referred to
in subsec. (j)(1), is Pub. L. 95-617, Nov. 9, 1978, 92 Stat. 3117,
as amended. For complete classification of this Act to Code, see
Short Title note set out under section 2601 of this title and
Tables.-MISC2-
AMENDMENTS
1986 - Subsec. (f). Pub. L. 99-514 substituted ''Internal Revenue
Code of 1986'' for ''Internal Revenue Code of 1954'', which for
purposes of codification was translated as ''title 26'' thus
requiring no change in text.-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 832m of this title.