16 USC 824j-1

Page 1335

TITLE 16—CONSERVATION

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, substituted ‘‘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 transmission 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 Commission 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 facilities 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 reliability of electric service for provisions which related
to transmission service by sellers of electric energy for
resale and notice, hearing, and determinations by Commission.
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 introductory 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 competitive relationships.
‘‘(3) No order may be issued under the authority of
subsection (a) or (b) of this section which is inconsistent 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 ‘‘utility’’ in two places, in second sentence inserted ‘‘each
affected transmitting utility,’’ before ‘‘and each affected 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 ‘‘electric’’ before ‘‘utility’’.
1986—Subsec. (c)(2)(B). Pub. L. 99–495 inserted provisions 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 effective until termination of such rate schedule or the
modification becomes effective.
1980—Subsec. (a). Pub. L. 96–294 added applicability to
geothermal power producers.
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 construed as affecting or intending to affect, or in any way
to interfere with, authority of any State or local government 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

§ 824j–1. Open access by unregulated transmitting utilities
(a) Definition of unregulated transmitting utility
In this section, the term ‘‘unregulated transmitting 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 preferential.
(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 determines to be in the public interest.
(d) Local distribution facilities
The requirements of subsection (b) of this section shall not apply to facilities used in local
distribution.
(e) Exemption termination
If the Commission, after an evidentiary hearing held on a complaint and after giving consideration to reliability standards established
under section 824o of this title, finds on the basis
of a preponderance of the evidence that any exemption granted pursuant to subsection (c) of
this section unreasonably 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 utilities
The rate changing procedures applicable to
public utilities under subsections (c) and (d) of
section 824d of this title are applicable to unregulated transmitting utilities for purposes of
this section.
(g) Remand
In exercising authority under subsection (b)(1)
of this section, the Commission may remand
transmission rates to an unregulated transmitting utility for review and revision if necessary
to meet the requirements of subsection (b) of
this section.
(h) Other requests
The provision of transmission services under
subsection (b) of this section does not preclude

§ 824k

TITLE 16—CONSERVATION

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 Commission to require an unregulated transmitting
utility to transfer control or operational control
of its transmitting facilities to a Transmission
Organization that is designated to provide nondiscriminatory transmission access.
(June 10, 1920, ch. 285, pt. II, § 211A, as added Pub.
L. 109–58, title XII, § 1231, Aug. 8, 2005, 119 Stat.
955.)
§ 824k. Orders
wheeling

requiring

interconnection

or

(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, § 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

Page 1336

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