FPA Section 211

§ 824j

TITLE 16—CONSERVATION

(2) would—
(A) encourage overall conservation of energy or capital,
(B) optimize the efficiency of use of facilities 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 paragraphs (1) and (2) of subsection (b) of this section, issue an order requiring any action described in subsection (a)(1) of this section if the
Commission determines that such order meets
the requirements of subsection (c) of this section. No such order may be issued upon the Commission’s own motion with respect to a Federal
power marketing agency.
(e) Definitions
(1) As used in this section, the term ‘‘facilities’’ means only facilities used for the generation 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 subsection (a)(1) of this section, the term ‘‘facilities
of such applicant’’ means the qualifying cogeneration facilities or qualifying small power production facilities of the applicant, as specified
in the application. With respect to an order issued pursuant to an application under subsection (a)(2) of this section, the term ‘‘facilities
of such applicant’’ means the qualifying 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 subsection
(d) of this section, such term means the qualifying cogeneration facilities, qualifying small
power production facilities, or the transmission
facilities of an electric utility, as specified in
the proposed 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.)
AMENDMENTS
1980—Subsec. (a)(1). Pub. L. 96–294 added applicability
to geothermal power producers.
STUDY AND REPORT TO CONGRESSIONAL COMMITTEES ON
APPLICATION OF PROVISIONS RELATING TO COGENERATION, SMALL POWER PRODUCTION, AND INTERCONNECTION AUTHORITY TO HYDROELECTRIC POWER FACILITIES

For provisions requiring the Federal Energy Regulatory 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 hydroelectric power facilities utilizing new dams or diversions, 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.

Page 1338

§ 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 enlargement of transmission capacity necessary to provide such services) to the applicant. Upon receipt of such application, after public notice and
notice to each affected State regulatory authority, each affected electric utility, and each affected Federal power marketing agency, and
after affording an opportunity for an evidentiary 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 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.
(b) Reliability of electric service
No order may be issued under this section or
section 824i of this title if, after giving consideration to consistently applied regional or national reliability standards, guidelines, or criteria, the Commission finds that such order
would unreasonably impair the continued reliability of electric systems affected by the order.
(c) Replacement of electric energy
No order may be issued under subsection (a) or
(b) of this section which requires the transmitting utility subject 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 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.
(d) Termination or modification of order; notice,
hearing and findings of Commission; contents of order; inclusion in order of terms
and conditions agreed upon by parties
(1) Any transmitting utility ordered under
subsection (a) or (b) of this section 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 services. After public notice, notice to each
affected State regulatory authority, each affected Federal power marketing agency, each affected transmitting utility, and each affected
electric utility, and after an opportunity for an
evidentiary hearing, the Commission shall issue

Page 1339

an order terminating or modifying the order issued under subsection (a) or (b) of this section,
if the transmitting utility providing such transmission services has demonstrated, and the
Commission has found, that—
(A) due to changed circumstances, the requirements applicable, under this section and
section 824k of this title, to the issuance of an
order under subsection (a) or (b) of this section
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 obtain 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 terminating or modifying an order issued under
subsection (a) or (b) of this section shall—
(A) provide for any appropriate compensation, and
(B) provide the affected electric utilities
adequate opportunity and time to—
(i) make suitable alternative arrangements for any transmission services terminated or modified, and
(ii) insure that the interests of ratepayers
of such utilities are adequately protected.
(3) No order may be issued under this subsection terminating or modifying any order issued under subsection (a) or (b) of this section if
the order under subsection (a) or (b) of this section 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) of this section, or
(B) otherwise provide procedures or methods
for terminating or modifying such order (including, if appropriate, the return of the transmission 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 capacity).
(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.)
1 So

§ 824j

TITLE 16—CONSERVATION

in original. The word ‘‘or’’ probably should not appear.

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 ‘‘termination or modification’’ for ‘‘termination of modification’’.
Subsec. (d)(1). Pub. L. 109–58, § 1295(c)(2), substituted
‘‘if the transmitting utility providing’’ for ‘‘if the electric utility providing’’ in introductory provisions.
1992—Subsec. (a). Pub. L. 102–486, § 721(1), amended
first sentence generally. Prior to amendment, first sentence 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 provide 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.

§ 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 1340

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.