16 U.S.C. § 824j — Wheeling authority

Page 1417 TITLE 16—CONSERVATION § 824j 1 So in original. The period probably should be a comma. cility, or the transmission facilities of any electric utility, with the facilities of such ap- plicant, (B) such action as may be necessary to make effective any physical connection described in subparagraph (A), which physical connection is ineffective for any reason, such as inad- equate size, poor maintenance, or physical unreliability, (C) such sale or exchange of electric energy or other coordination, as may be necessary to carry out the purposes of any order under sub- paragraph (A) or (B), or (D) such increase in transmission capacity as may be necessary to carry out the purposes of any order under subparagraph (A) or (B). (2) Any State regulatory authority may apply to the Commission for an order for any action referred to in subparagraph (A), (B), (C), or (D) of paragraph (1). No such order may be issued by the Commission with respect to a Federal power marketing agency upon application of a State regulatory authority. (b) Notice, hearing and determination by Com- mission Upon receipt of an application under sub- section (a), the Commission shall— (1) issue notice to each affected State regu- latory authority, each affected electric util- ity, each affected Federal power marketing agency, each affected owner or operator of a cogeneration facility or of a small power pro- duction facility, and to the public.1 (2) afford an opportunity for an evidentiary hearing, and (3) make a determination with respect to the matters referred to in subsection (c). (c) Necessary findings No order may be issued by the Commission under subsection (a) unless the Commission de- termines that such order— (1) is in the public interest, (2) would— (A) encourage overall conservation of en- ergy or capital, (B) optimize the efficiency of use of facili- ties and resources, or (C) improve the reliability of any electric utility system or Federal power marketing agency to which the order applies, and (3) meets the requirements of section 824k of this title. (d) Motion of Commission The Commission may, on its own motion, after compliance with the requirements of para- graphs (1) and (2) of subsection (b), issue an order requiring any action described in sub- section (a)(1) if the Commission determines that such order meets the requirements of subsection (c). No such order may be issued upon the Com- mission’s own motion with respect to a Federal power marketing agency. (e) Definitions (1) As used in this section, the term ‘‘facili- ties’’ means only facilities used for the genera- tion or transmission of electric energy. (2) With respect to an order issued pursuant to an application of a qualifying cogenerator or qualifying small power producer under sub- section (a)(1), the term ‘‘facilities of such appli- cant’’ means the qualifying cogeneration facili- ties or qualifying small power production facili- ties of the applicant, as specified in the applica- tion. With respect to an order issued pursuant to an application under subsection (a)(2), the term ‘‘facilities of such applicant’’ means the quali- fying cogeneration facilities, qualifying small power production facilities, or the transmission facilities of an electric utility, as specified in the application. With respect to an order issued by the Commission on its own motion under sub- section (d), such term means the qualifying co- generation facilities, qualifying small power production facilities, or the transmission facili- ties of an electric utility, as specified in the pro- posed order. (June 10, 1920, ch. 285, pt. II, § 210, as added Pub. L. 95–617, title II, § 202, Nov. 9, 1978, 92 Stat. 3135; amended Pub. L. 96–294, title VI, § 643(a)(2), June 30, 1980, 94 Stat. 770.) Editorial Notes AMENDMENTS 1980—Subsec. (a)(1). Pub. L. 96–294 added applicability to geothermal power producers. Statutory Notes and Related Subsidiaries STUDY AND REPORT TO CONGRESSIONAL COMMITTEES ON APPLICATION OF PROVISIONS RELATING TO COGENERA- TION, SMALL POWER PRODUCTION, AND INTERCONNEC- TION AUTHORITY TO HYDROELECTRIC POWER FACILI- TIES For provisions requiring the Federal Energy Regu- latory Commission to conduct a study and report to Congress on whether the benefits of this section and section 824a–3 of this title should be applied to hydro- electric power facilities utilizing new dams or diver- sions, within the meaning of section 824a–3(k) of this title, see section 8(d) of Pub. L. 99–495, set out as a note under section 824a–3 of this title. § 824j. Wheeling authority (a) Transmission service by any electric utility; notice, hearing and findings by Commission Any electric utility, Federal power marketing agency, or any other person generating electric energy for sale for resale, may apply to the Commission for an order under this subsection requiring a transmitting utility to provide transmission services (including any enlarge- ment of transmission capacity necessary to pro- vide such services) to the applicant. Upon re- ceipt of such application, after public notice and notice to each affected State regulatory author- ity, each affected electric utility, and each af- fected Federal power marketing agency, and after affording an opportunity for an evi- dentiary hearing, the Commission may issue such order if it finds that such order meets the requirements of section 824k of this title, and would otherwise be in the public interest. No order may be issued under this subsection unless the applicant has made a request for trans- mission services to the transmitting utility that would be the subject of such order at least 60 Page 1418 TITLE 16—CONSERVATION § 824j 1 So in original. The word ‘‘or’’ probably should not appear. days prior to its filing of an application for such order. (b) Reliability of electric service No order may be issued under this section or section 824i of this title if, after giving consider- ation to consistently applied regional or na- tional reliability standards, guidelines, or cri- teria, the Commission finds that such order would unreasonably impair the continued reli- ability of electric systems affected by the order. (c) Replacement of electric energy No order may be issued under subsection (a) or (b) which requires the transmitting utility sub- ject to the order to transmit, during any period, an amount of electric energy which replaces any amount of electric energy— (1) required to be provided to such applicant pursuant to a contract during such period, or (2) currently provided to the applicant by the utility subject to the order pursuant to a rate schedule on file during such period with the Commission: Provided, That nothing in this subparagraph shall prevent an application for an order hereunder to be filed prior to ter- mination or modification of an existing rate schedule: Provided, That such order shall not become effective until termination of such rate schedule or the modification becomes ef- fective. (d) Termination or modification of order; notice, hearing and findings of Commission; con- tents of order; inclusion in order of terms and conditions agreed upon by parties (1) Any transmitting utility ordered under subsection (a) or (b) to provide transmission services may apply to the Commission for an order permitting such transmitting utility to cease providing all, or any portion of, such serv- ices. After public notice, notice to each affected State regulatory authority, each affected Fed- eral power marketing agency, each affected transmitting utility, and each affected electric utility, and after an opportunity for an evi- dentiary hearing, the Commission shall issue an order terminating or modifying the order issued under subsection (a) or (b), if the transmitting utility providing such transmission services has demonstrated, and the Commission has found, that— (A) due to changed circumstances, the re- quirements applicable, under this section and section 824k of this title, to the issuance of an order under subsection (a) or (b) are no longer met, or 1 (B) any transmission capacity of the utility providing transmission services under such order which was, at the time such order was issued, in excess of the capacity necessary to serve its own customers is no longer in excess of the capacity necessary for such purposes, or (C) the ordered transmission services require enlargement of transmission capacity and the transmitting utility subject to the order has failed, after making a good faith effort, to ob- tain the necessary approvals or property rights under applicable Federal, State, and local laws. No order shall be issued under this subsection pursuant to a finding under subparagraph (A) unless the Commission finds that such order is in the public interest. (2) Any order issued under this subsection ter- minating or modifying an order issued under subsection (a) or (b) shall— (A) provide for any appropriate compensa- tion, and (B) provide the affected electric utilities adequate opportunity and time to— (i) make suitable alternative arrange- ments for any transmission services termi- nated or modified, and (ii) insure that the interests of ratepayers of such utilities are adequately protected. (3) No order may be issued under this sub- section terminating or modifying any order issued under subsection (a) or (b) if the order under subsection (a) or (b) includes terms and conditions agreed upon by the parties which— (A) fix a period during which transmission services are to be provided under the order under subsection (a) or (b), or (B) otherwise provide procedures or methods for terminating or modifying such order (in- cluding, if appropriate, the return of the trans- mission capacity when necessary to take into account an increase, after the issuance of such order, in the needs of the transmitting utility subject to such order for transmission capac- ity). (e) ‘‘Facilities’’ defined As used in this section, the term ‘‘facilities’’ means only facilities used for the generation or transmission of electric energy. (June 10, 1920, ch. 285, pt. II, § 211, as added Pub. L. 95–617, title II, § 203, Nov. 9, 1978, 92 Stat. 3136; amended Pub. L. 96–294, title VI, § 643(a)(3), June 30, 1980, 94 Stat. 770; Pub. L. 99–495, § 15, Oct. 16, 1986, 100 Stat. 1257; Pub. L. 102–486, title VII, § 721, Oct. 24, 1992, 106 Stat. 2915; Pub. L. 109–58, title XII, § 1295(c), Aug. 8, 2005, 119 Stat. 985.) Editorial Notes AMENDMENTS 2005—Subsec. (c). Pub. L. 109–58, § 1295(c)(1), struck out par. (2) designation before introductory provisions, redesignated former subpars. (A) and (B) as pars. (1) and (2), respectively, and in par. (2) substituted ‘‘termi- nation or modification’’ for ‘‘termination of modifica- tion’’. Subsec. (d)(1). Pub. L. 109–58, § 1295(c)(2), substituted ‘‘if the transmitting utility providing’’ for ‘‘if the elec- tric utility providing’’ in introductory provisions. 1992—Subsec. (a). Pub. L. 102–486, § 721(1), amended first sentence generally. Prior to amendment, first sen- tence read as follows: ‘‘Any electric utility, geothermal power producer (including a producer which is not an electric utility), or Federal power marketing agency may apply to the Commission for an order under this subsection requiring any other electric utility to pro- vide transmission services to the applicant (including any enlargement of transmission capacity necessary to provide such services).’’ Pub. L. 102–486, § 721(2), in second sentence, sub- stituted ‘‘the Commission may issue such order if it finds that such order meets the requirements of section 824k of this title, and would otherwise be in the public interest. No order may be issued under this subsection unless the applicant has made a request for trans- Page 1419 TITLE 16—CONSERVATION § 824j–1 mission services to the transmitting utility that would be the subject of such order at least 60 days prior to its filing of an application for such order.’’ for ‘‘the Com- mission may issue such order if it finds that such order— ‘‘(1) is in the public interest, ‘‘(2) would— ‘‘(A) conserve a significant amount of energy, ‘‘(B) significantly promote the efficient use of fa- cilities and resources, or ‘‘(C) improve the reliability of any electric utility system to which the order applies, and ‘‘(3) meets the requirements of section 824k of this title.’’ Subsec. (b). Pub. L. 102–486, § 721(3), amended subsec. (b) generally, substituting provisions relating to reli- ability of electric service for provisions which related to transmission service by sellers of electric energy for resale and notice, hearing, and determinations by Com- mission. Subsec. (c). Pub. L. 102–486, § 721(4), struck out pars. (1), (3), and (4), and substituted ‘‘which requires the transmitting’’ for ‘‘which requires the electric’’ in in- troductory provisions of par. (2). Prior to amendment, pars. (1), (3), and (4) read as follows: ‘‘(1) No order may be issued under subsection (a) of this section unless the Commission determines that such order would reasonably preserve existing competi- tive relationships. ‘‘(3) No order may be issued under the authority of subsection (a) or (b) of this section which is incon- sistent with any State law which governs the retail marketing areas of electric utilities. ‘‘(4) No order may be issued under subsection (a) or (b) of this section which provides for the transmission of electric energy directly to an ultimate consumer.’’ Subsec. (d). Pub. L. 102–486, § 721(5), in first sentence substituted ‘‘transmitting’’ for ‘‘electric’’ before ‘‘util- ity’’ in two places, in second sentence inserted ‘‘each affected transmitting utility,’’ before ‘‘and each af- fected electric utility’’, in par. (1) substituted ‘‘, or’’ for period at end of subpar. (B) and added subpar. (C), and in par. (3)(B) substituted ‘‘transmitting’’ for ‘‘elec- tric’’ before ‘‘utility’’. 1986—Subsec. (c)(2)(B). Pub. L. 99–495 inserted provi- sions that nothing in this subparagraph shall prevent an application for an order hereunder to be filed prior to termination or modification of an existing rate schedule, provided that such order shall not become ef- fective until termination of such rate schedule or the modification becomes effective. 1980—Subsec. (a). Pub. L. 96–294 added applicability to geothermal power producers. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–495 effective with respect to each license, permit, or exemption issued under this chapter after Oct. 16, 1986, see section 18 of Pub. L. 99–495, set out as a note under section 797 of this title. 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. § 824j–1. Open access by unregulated transmit- ting utilities (a) Definition of unregulated transmitting utility In this section, the term ‘‘unregulated trans- mitting utility’’ means an entity that— (1) owns or operates facilities used for the transmission of electric energy in interstate commerce; and (2) is an entity described in section 824(f) of this title. (b) Transmission operation services Subject to section 824k(h) of this title, the Commission may, by rule or order, require an unregulated transmitting utility to provide transmission services— (1) at rates that are comparable to those that the unregulated transmitting utility charges itself; and (2) on terms and conditions (not relating to rates) that are comparable to those under which the unregulated transmitting utility provides transmission services to itself and that are not unduly discriminatory or pref- erential. (c) Exemption The Commission shall exempt from any rule or order under this section any unregulated transmitting utility that— (1) sells not more than 4,000,000 megawatt hours of electricity per year; (2) does not own or operate any transmission facilities that are necessary for operating an interconnected transmission system (or any portion of the system); or (3) meets other criteria the Commission de- termines to be in the public interest. (d) Local distribution facilities The requirements of subsection (b) shall not apply to facilities used in local distribution. (e) Exemption termination If the Commission, after an evidentiary hear- ing held on a complaint and after giving consid- eration to reliability standards established under section 824o of this title, finds on the basis of a preponderance of the evidence that any ex- emption granted pursuant to subsection (c) un- reasonably impairs the continued reliability of an interconnected transmission system, the Commission shall revoke the exemption granted to the transmitting utility. (f) Application to unregulated transmitting utili- ties The rate changing procedures applicable to public utilities under subsections (c) and (d) of section 824d of this title are applicable to un- regulated transmitting utilities for purposes of this section. (g) Remand In exercising authority under subsection (b)(1), the Commission may remand trans- mission rates to an unregulated transmitting utility for review and revision if necessary to meet the requirements of subsection (b). (h) Other requests The provision of transmission services under subsection (b) does not preclude a request for transmission services under section 824j of this title. (i) Limitation The Commission may not require a State or municipality to take action under this section that would violate a private activity bond rule for purposes of section 141 of title 26. (j) Transfer of control of transmitting facilities Nothing in this section authorizes the Com- mission to require an unregulated transmitting