§ 839f. — Administrative provisions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC839f]
TITLE 16--CONSERVATION
CHAPTER 12H--PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND CONSERVATION
Sec. 839f. Administrative provisions
(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) \1\ title 26 shall not be
affected by the Administrator's acquisition of such resources if--
---------------------------------------------------------------------------
\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) \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) \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.
(Pub. L. 96-501, Sec. 9, Dec. 5, 1980, 94 Stat. 2729; Pub. L. 99-514,
Sec. 2, Oct. 22, 1986, 100 Stat. 2095.)
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.
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.
Section Referred to in Other Sections
This section is referred to in section 832m of this title.
