16 U.S.C. § 839f | Administrative provisions

(a)

Contract authority

16 U.S.C. 832a(f)December 5, 1980Subject 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 (). Other provisions of law applicable to such contracts on , shall continue to be applicable.

(b)

Executive and administrative functions of Administrator of Bonneville Power Administration; sound and businesslike implementation of chapter

16 U.S.C. 832December 5, 1980The Administrator shall discharge the executive and administrative functions of his office in accordance with the policy established by the Bonneville Project Act of 1937 ( 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 .

(c)

Limitations and conditions on contracts for sale or exchange of electric power for use outside Pacific Northwest

August 31, 196416 U.S.C. 837a 16 U.S.C. 837e 16 U.S.C. 837d section 839c of this title 16 U.S.C. 837b(d)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 ( 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 ( and 837f) [ 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 , 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 (), 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) 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) 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)

section 839b of this title section 839b(h) of this title adoption of the plan or amendments thereto by the Council under , adoption of the program by the Council, and any determination by the Council under ;

(B)

section 839c of this title sales, exchanges, and purchases of electric power under ;

(C)

section 839d of this title the Administrator’s acquisition of resources under ;

(D)

section 839d of this title implementation of conservation measures under ;

(E)

section 839d(f) of this title execution of contracts for assistance to sponsors under ;

(F)

section 839d(h) of this title granting of credits under ;

(G)

section 839e of this title final rate determinations under ; and

(H)

section 839e(m)(2) of this title any rule prescribed by the Administrator under .

(2)

section 706 of title 5 section 839e of this title section 839e(i) of this title section 839d(c) of this title section 706 of title 5 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 , except that final determinations regarding rates under shall be supported by substantial evidence in the rulemaking record required by considered as a whole. The scope of review of an action under shall be governed by . 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)

section 839d(c)(4)(B) of this title major resources shall be deemed to be acquired upon publication in the Federal Register pursuant to ;

(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)

section 839e of this title rate determinations pursuant to shall be deemed final upon confirmation and approval by the Federal Energy Regulatory Commission.

(5)

16 U.S.C. 832August 31, 196416 U.S.C. 837–837h 16 U.S.C. 838 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 [ et seq.], the Act of (), or the Federal Columbia River Transmission System Act ( 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

1 See References in Text note below.

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)  of title 26 shall not be affected by the Administrator’s acquisition of such resources if—

(1)

section 839c of this title¹ 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 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)  of title 26), and

(2)

¹ 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)  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

section 824h of this titleWhen 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 —

(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)

¹section 839d of this title¹¹section 839d of this title 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 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 , and if—

(A)

¹ 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)

section 839d(m) of this title participation in any facilities of such “company” has been offered to public bodies and cooperatives in the region pursuant to .

(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)

¹ 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)

¹ 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)

section 839c(b) of this title 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 , 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)

December 5, 1980 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 , 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)

December 5, 1980 The Council, as soon as practicable after 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)

section 839d(h) of this title 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 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, § 9Dec. 5, 198094 Stat. 2729 Pub. L. 99–514, § 2Oct. 22, 1986100 Stat. 2095(, , ; , , .)

Editorial Notes

References in Text

act Aug. 20, 1937, ch. 720 50 Stat. 731 section 832 of this titleThe Bonneville Project Act of 1937, referred to in subsecs. (b) and (e)(5), is , , which is classified generally to chapter 12B (§ 832 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

August 31, 1964Pub. L. 88–552Aug. 31, 196478 Stat. 756Act of , referred to in subsec. (e)(5), is , , , which is classified generally to chapter 12F (§ 837 et seq.) of this title. For complete classification of this Act to the Code, see Tables.

Pub. L. 93–454Oct. 18, 197488 Stat. 1376 section 838 of this titleThe Federal Columbia River Transmission System Act, referred to in subsec. (e)(5), is , , , which is classified generally to chapter 12G (§ 838 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

Section 103 of title 26 Pub. L. 99–514, title XIII, § 1301(a)Oct. 22, 1986100 Stat. 2602, referred to in subsec. (f), which related to interest on certain governmental obligations was amended generally by , , , 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.

act Aug. 26, 1935, ch. 687, title I 49 Stat. 803 Pub. L. 109–58, title XII, § 1263Aug. 8, 2005119 Stat. 974Chapter 2C of title 15, referred to in subsec. (h), contained the Public Utility Holding Company Act of 1935, , , and consisted of section 79 et seq. of Title 15, Commerce and Trade, prior to repeal by , , . For complete classification of this Act to the Code, see Tables.

Pub. L. 95–617Nov. 9, 197892 Stat. 3117 section 2601 of this titleThe Public Utility Regulatory Policies Act of 1978, referred to in subsec. (j)(1), is , , . For complete classification of this Act to Code, see Short Title note set out under and Tables.

Amendments

Pub. L. 99–5141986—Subsec. (f). 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.