16 USC 824k

§ 824j–1

TITLE 16—CONSERVATION
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. 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

Page 1344

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
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.

Page 1345

TITLE 16—CONSERVATION

(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
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

§ 824k

(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

§ 824k

TITLE 16—CONSERVATION

Page 1346

(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.

mission 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

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.

(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.

(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 Trans-

(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

Page 1347

§ 824l

TITLE 16—CONSERVATION

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.
(June 10, 1920, ch. 285, pt. II, § 212, as added Pub.
L. 95–617, title II, § 204(a), Nov. 9, 1978, 92 Stat.
3138; amended Pub. L. 102–486, title VII, § 722,
Oct. 24, 1992, 106 Stat. 2916.)
REFERENCES IN TEXT
The TVA Act, referred to in subsec. (f)(1), means act
May 18, 1933, ch. 32, 48 Stat. 58, as amended, known as
the Tennessee Valley Authority Act of 1933, which is
classified generally to chapter 12A (§ 831 et seq.) of this
title. For complete classification of this Act to the
Code, see section 831 of this title and Tables.
The Rural Electrification Act of 1936, referred to in
subsec. (h)(2)(A), is act May 20, 1936, ch. 432, 49 Stat.
1363, as amended, which is classified generally to chapter 31 (§ 901 et seq.) of Title 7, Agriculture. For complete
classification of this Act to the Code, see section 901 of
Title 7 and Tables.
The Energy Policy Act of 1992, referred to in subsec.
(i)(2)(A)(III), (B)(i), is Pub. L. 102–486, Oct. 24, 1992, 106
Stat. 2776. For complete classification of this Act to
the Code, see Short Title note set out under section
13201 of Title 42, The Public Health and Welfare and
Tables.
AMENDMENTS
1992—Subsec. (a). Pub. L. 102–486, § 722(1), added subsec. (a) and struck out former subsec. (a) which related
to determinations by Commission.
Subsec. (b). Pub. L. 102–486, § 722(1), struck out subsec.
(b) which required applicants for orders to be ready,
willing, and able to reimburse parties subject to such
orders.
Subsec. (e). Pub. L. 102–486, § 722(2), amended subsec.
(e) generally. Prior to amendment, subsec. (e) related
to utilization of interconnection or wheeling authority
in lieu of other authority and limitation of Commission
authority.
Subsecs. (g) to (k). Pub. L. 102–486, § 722(3), added subsecs. (g) to (k).
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.

§ 824l. Information requirements
(a) Requests for wholesale transmission services
Whenever any electric utility, Federal power
marketing agency, or any other person generating electric energy for sale for resale makes a
good faith request to a transmitting utility to
provide wholesale transmission services and requests specific rates and charges, and other
terms and conditions, unless the transmitting
utility agrees to provide such services at rates,
charges, terms and conditions acceptable to
such person, the transmitting utility shall,
within 60 days of its receipt of the request, or
other mutually agreed upon period, provide such
person with a detailed written explanation, with
specific reference to the facts and circumstances
of the request, stating (1) the transmitting utility’s basis for the proposed rates, charges,
terms, and conditions for such services, and (2)
its analysis of any physical or other constraints
affecting the provision of such services.
(b) Transmission capacity and constraints
Not later than 1 year after October 24, 1992,
the Commission shall promulgate a rule requir-