16 U.S.C. § 824k : US Code - Section 824K: Orders requiring interconnection or wheeling

Search 16 U.S.C. § 824k : US Code - Section 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 transmission services and necessary
associated services, including, but not limited to, an appropriate
share, if any, of legitimate, verifiable and economic costs,
including taking into account any benefits to the transmission
system of providing the transmission service, and the costs of any
enlargement of transmission facilities. Such rates, charges, terms,
and conditions shall promote the economically efficient
transmission and generation of electricity and shall be just and
reasonable, and not unduly discriminatory or preferential. Rates,
charges, terms, and conditions for transmission services provided
pursuant to an order under section 824j of this title shall ensure
that, to the extent practicable, costs incurred in providing the
wholesale transmission services, and properly allocable to the
provision of such services, are recovered from the applicant for
such order and not from a transmitting utility's existing
wholesale, retail, and transmission customers.
(b) Repealed. Pub. L. 102-486, title VII, Sec. 722(1), Oct. 24,
1992, 106 Stat. 2916
(c) Issuance of proposed order; agreement by parties to terms and
conditions of order; approval by Commission; inclusion in final
order; failure to agree
(1) Before issuing an order under section 824i of this title or
subsection (a) or (b) of section 824j of this title, the Commission
shall issue a proposed order and set a reasonable time for parties
to the proposed interconnection or transmission order to agree to
terms and conditions under which such order is to be carried out,
including the apportionment of costs between them and the
compensation or reimbursement reasonably due to any of them. Such
proposed order shall not be reviewable or enforceable in any court.
The time set for such parties to agree to such terms and conditions
may be shortened if the Commission determines that delay would
jeopardize the attainment of the purposes of any proposed order.
Any terms and conditions agreed to by the parties shall be subject
to the approval of the Commission.
(2)(A) If the parties agree as provided in paragraph (1) within
the time set by the Commission and the Commission approves such
agreement, the terms and conditions shall be included in the final
order. In the case of an order under section 824i of this title, if
the parties fail to agree within the time set by the Commission or
if the Commission does not approve any such agreement, the
Commission shall prescribe such terms and conditions and include
such terms and conditions in the final order.
(B) In the case of any order applied for under section 824j of
this title, if the parties fail to agree within the time set by the
Commission, the Commission shall prescribe such terms and
conditions in the final order.
(d) Statement of reasons for denial
If the Commission does not issue any order applied for under
section 824i or 824j of this title, the Commission shall, by order,
deny such application and state the reasons for such denial.
(e) Savings provisions
(1) No provision of section 824i, 824j, 824m of this title, or
this section shall be treated as requiring any person to utilize
the authority of any such section in lieu of any other authority of
law. Except as provided in section 824i, 824j, 824m of this title,
or this section, such sections shall not be construed as limiting
or impairing any authority of the Commission under any other
provision of law.
(2) Sections 824i, 824j, 824l, 824m of this title, and this
section, shall not be construed to modify, impair, or supersede the
antitrust laws. For purposes of this section, the term "antitrust
laws" has the meaning given in subsection (a) of the first sentence
of section 12 of title 15, except that such term includes section
45 of title 15 to the extent that such section relates to unfair
methods of competition.
(f) Effective date of order; hearing; notice; review
(1) No order under section 824i or 824j of this title requiring
the Tennessee Valley Authority (hereinafter in this subsection
referred to as the "TVA") to take any action shall take effect for
60 days following the date of issuance of the order. Within 60 days
following the issuance by the Commission of any order under section
824i or of section 824j of this title requiring the TVA to enter
into any contract for the sale or delivery of power, the Commission
may on its own motion initiate, or upon petition of any aggrieved
person shall initiate, an evidentiary hearing to determine whether
or not such sale or delivery would result in violation of the third
sentence of section 15d(a) of the Tennessee Valley Authority Act of
1933 (16 U.S.C. 831n-4), hereinafter in this subsection referred to
as the TVA Act [16 U.S.C. 831 et seq.].
(2) Upon initiation of any evidentiary hearing under paragraph
(1), the Commission shall give notice thereof to any applicant who
applied for and obtained the order from the Commission, to any
electric utility or other entity subject to such order, and to the
public, and shall promptly make the determination referred to in
paragraph (1). Upon initiation of such hearing, the Commission
shall stay the effectiveness of the order under section 824i or
824j of this title until whichever of the following dates is
applicable -
(A) the date on which there is a final determination (including
any judicial review thereof under paragraph (3)) that no such
violation would result from such order, or
(B) the date on which a specific authorization of the Congress
(within the meaning of the third sentence of section 15d(a) of
the TVA Act [16 U.S.C. 831n-4(a)]) takes effect.
(3) Any determination under paragraph (1) shall be reviewable
only in the appropriate court of the United States upon petition
filed by any aggrieved person or municipality within 60 days after
such determination, and such court shall have jurisdiction to grant
appropriate relief. Any applicant who applied for and obtained the
order under section 824i or 824j of this title, and any electric
utility or other entity subject to such order shall have the right
to intervene in any such proceeding in such court. Except for
review by such court (and any appeal or other review by an
appellate court of the United States), no court shall have
jurisdiction to consider any action brought by any person to enjoin
the carrying out of any order of the Commission under section 824i
or section 824j of this title requiring the TVA to take any action
on the grounds that such action requires a specific authorization
of the Congress pursuant to the third sentence of section 15d(a) of
the TVA Act [16 U.S.C. 831n-4(a)].
(g) Prohibition on orders inconsistent with retail marketing areas
No order may be issued under this chapter which is inconsistent
with any State law which governs the retail marketing areas of
electric utilities.
(h) Prohibition on mandatory retail wheeling and sham wholesale
transactions
No order issued under this chapter shall be conditioned upon or
require the transmission of electric energy:
(1) directly to an ultimate consumer, or
(2) to, or for the benefit of, an entity if such electric
energy would be sold by such entity directly to an ultimate
consumer, unless:
(A) such entity is a Federal power marketing agency; the
Tennessee Valley Authority; a State or any political
subdivision of a State (or an agency, authority, or
instrumentality of a State or a political subdivision); a
corporation or association that has ever received a loan for
the purposes of providing electric service from the
Administrator of the Rural Electrification Administration under
the Rural Electrification Act of 1936 [7 U.S.C. 901 et seq.]; a
person having an obligation arising under State or local law
(exclusive of an obligation arising solely from a contract
entered into by such person) to provide electric service to the
public; or any corporation or association which is wholly
owned, directly or indirectly, by any one or more of the
foregoing; and
(B) such entity was providing electric service to such
ultimate consumer on October 24, 1992, or would utilize
transmission or distribution facilities that it owns or
controls to deliver all such electric energy to such electric
consumer.
Nothing in this subsection shall affect any authority of any State
or local government under State law concerning the transmission of
electric energy directly to an ultimate consumer.
(i) Laws applicable to Federal Columbia River Transmission System
(1) The Commission shall have authority pursuant to section 824i
of this title, section 824j of this title, this section, and
section 824l of this title to (A) order the Administrator of the
Bonneville Power Administration to provide transmission service and
(B) establish the terms and conditions of such service. In applying
such sections to the Federal Columbia River Transmission System,
the Commission shall assure that -
(i) the provisions of otherwise applicable Federal laws shall
continue in full force and effect and shall continue to be
applicable to the system; and
(ii) the rates for the transmission of electric power on the
system shall be governed only by such otherwise applicable
provisions of law and not by any provision of section 824i of
this title, section 824j of this title, this section, or section
824l of this title, except that no rate for the transmission of
power on the system shall be unjust, unreasonable, or unduly
discriminatory or preferential, as determined by the Commission.
(2) Notwithstanding any other provision of this chapter with
respect to the procedures for the determination of terms and
conditions for transmission service -
(A) when the Administrator of the Bonneville Power
Administration either (i) in response to a written request for
specific transmission service terms and conditions does not offer
the requested terms and conditions, or (ii) proposes to establish
terms and conditions of general applicability for transmission
service on the Federal Columbia River Transmission System, then
the Administrator may provide opportunity for a hearing and, in
so doing, shall -
(I) give notice in the Federal Register and state in such
notice the written explanation of the reasons why the specific
terms and conditions for transmission services are not being
offered or are being proposed;
(II) adhere to the procedural requirements of paragraphs (1)
through (3) of section 839e(i) of this title, except that the
hearing officer shall, unless the hearing officer becomes
unavailable to the agency, make a recommended decision to the
Administrator that states the hearing officer's findings and
conclusions, and the reasons or basis thereof, on all material
issues of fact, law, or discretion presented on the record; and
(III) make a determination, setting forth the reasons for
reaching any findings and conclusions which may differ from
those of the hearing officer, based on the hearing record,
consideration of the hearing officer's recommended decision,
section 824j of this title and this section, as amended by the
Energy Policy Act of 1992, and the provisions of law as
preserved in this section; and
(B) if application is made to the Commission under section 824j
of this title for transmission service under terms and conditions
different than those offered by the Administrator, or following
the denial of a request for transmission service by the
Administrator, and such application is filed within 60 days of
the Administrator's final determination and in accordance with
Commission procedures, the Commission shall -
(i) in the event the Administrator has conducted a hearing as
herein provided for (I) accord parties to the Administrator's
hearing the opportunity to offer for the Commission record
materials excluded by the Administrator from the hearing
record, (II) accord such parties the opportunity to submit for
the Commission record comments on appropriate terms and
conditions, (III) afford those parties the opportunity for a
hearing if and to the extent that the Commission finds the
Administrator's hearing record to be inadequate to support a
decision by the Commission, and (IV) establish terms and
conditions for or deny transmission service based on the
Administrator's hearing record, the Commission record, section
824j of this title and this section, as amended by the Energy
Policy Act of 1992, and the provisions of law as preserved in
this section, or
(ii) in the event the Administrator has not conducted a
hearing as herein provided for, determine whether to issue an
order for transmission service in accordance with section 824j
of this title and this section, including providing the
opportunity for a hearing.
(3) Notwithstanding those provisions of section 825l(b) of this
title which designate the court in which review may be obtained,
any party to a proceeding concerning transmission service sought to
be furnished by the Administrator of the Bonneville Power
Administration seeking review of an order issued by the Commission
in such proceeding shall obtain a review of such order in the
United States Court of Appeals for the Pacific Northwest, as that
region is defined by section 839a(14) of this title.
(4) To the extent the Administrator of the Bonneville Power
Administration cannot be required under section 824j of this title,
as a result of the Administrator's other statutory mandates, either
to (A) provide transmission service to an applicant which the
Commission would otherwise order, or (B) provide such service under
rates, terms, and conditions which the Commission would otherwise
require, the applicant shall not be required to provide similar
transmission services to the Administrator or to provide such
services under similar rates, terms, and conditions.
(5) The Commission shall not issue any order under section 824i
of this title, section 824j of this title, this section, or section
824l of this title requiring the Administrator of the Bonneville
Power Administration to provide transmission service if such an
order would impair the Administrator's ability to provide such
transmission service to the Administrator's power and transmission
customers in the Pacific Northwest, as that region is defined in
section 839a(14) of this title, as is needed to assure adequate and
reliable service to loads in that region.
(j) Equitability within territory restricted electric systems
With respect to an electric utility which is prohibited by
Federal law from being a source of power supply, either directly or
through a distributor of its electric energy, outside an area set
forth in such law, no order issued under section 824j of this title
may require such electric utility (or a distributor of such
electric utility) to provide transmission services to another
entity if the electric energy to be transmitted will be consumed
within the area set forth in such Federal law, unless the order is
in furtherance of a sale of electric energy to that electric
utility: Provided, however, That the foregoing provision shall not
apply to any area served at retail by an electric transmission
system which was such a distributor on October 24, 1992, and which
before October 1, 1991, gave its notice of termination under its
power supply contract with such electric utility.
(k) ERCOT utilities
(1) Rates
Any order under section 824j of this title requiring provision
of transmission services in whole or in part within ERCOT shall
provide that any ERCOT utility which is not a public utility and
the transmission facilities of which are actually used for such
transmission service is entitled to receive compensation based,
insofar as practicable and consistent with subsection (a) of this
section, on the transmission ratemaking methodology used by the
Public Utility Commission of Texas.
(2) Definitions
For purposes of this subsection -
(A) the term "ERCOT" means the Electric Reliability Council
of Texas; and
(B) the term "ERCOT utility" means a transmitting utility
which is a member of ERCOT.