
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 16USC839f]

 
                         TITLE 16--CONSERVATION
 
 CHAPTER 12H--PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND CONSERVATION
 
Sec. 839f. Administrative provisions


(a) Contract authority

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

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

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

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

    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 August 31, 1964 (16 U.S.C. 837a 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 (16 U.S.C. 837e and 
837f) [16 U.S.C. 837d 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 section 839c of this title, 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 (16 U.S.C. 837b(d)), 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) of this section 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) of this section 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) adoption of the plan or amendments thereto by the Council 
    under section 839b of this title, adoption of the program by the 
    Council, and any determination by the Council under section 839b(h) 
    of this title;
        (B) sales, exchanges, and purchases of electric power under 
    section 839c of this title;
        (C) the Administrator's acquisition of resources under section 
    839d of this title;
        (D) implementation of conservation measures under section 839d 
    of this title;
        (E) execution of contracts for assistance to sponsors under 
    section 839d(f) of this title;
        (F) granting of credits under section 839d(h) of this title;
        (G) final rate determinations under section 839e of this title; 
    and
        (H) any rule prescribed by the Administrator under section 
    839e(m)(2) of this title.

    (2) 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 section 706 of title 5, except that final 
determinations regarding rates under section 839e of this title shall be 
supported by substantial evidence in the rulemaking record required by 
section 839e(i) of this title considered as a whole. The scope of review 
of an action under section 839d(c) of this title shall be governed by 
section 706 of title 5. 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) major resources shall be deemed to be acquired upon 
    publication in the Federal Register pursuant to section 
    839d(c)(4)(B) of this title;
        (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) rate determinations pursuant to section 839e of this title 
    shall be deemed final upon confirmation and approval by the Federal 
    Energy Regulatory Commission.

    (5) 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 [16 U.S.C. 832 et seq.], the Act of August 31, 
1964 (16 U.S.C. 837-837h), or the Federal Columbia River Transmission 
System Act (16 U.S.C. 838 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

    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) \1\ title 26 shall not be 
affected by the Administrator's acquisition of such resources if--
---------------------------------------------------------------------------
    \1\ See References in Text note below.
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        (1) 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 section 839c of this title 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) \1\ of title 26), and
        (2) 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) \1\ 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

    When 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 section 824h of this title--
        (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) 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 section 839d of this title 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 section 
839d of this title, and if--
        (A) 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) participation in any facilities of such ``company'' has been 
    offered to public bodies and cooperatives in the region pursuant to 
    section 839d(m) of this title.

    (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) 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) 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) 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 section 839c(b) of this title, 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) 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 December 5, 1980, 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) The Council, as soon as practicable after December 5, 1980 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) 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 section 839d(h) of this 
title 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, Sec. 9, Dec. 5, 1980, 94 Stat. 2729; Pub. L. 99-514, 
Sec. 2, Oct. 22, 1986, 100 Stat. 2095.)

                       References in Text

    The Bonneville Project Act of 1937, referred to in subsecs. (b) and 
(e)(5), is act Aug. 20, 1937, ch. 720, 50 Stat. 731, as amended, which 
is classified generally to chapter 12B (Sec. 832 et seq.) of this title. 
For complete classification of this Act to the Code, see Short Title set 
out under section 832 of this title and Tables.
    Act of August 31, 1964, referred to in subsec. (e)(5), is Pub. L. 
88-552, Aug. 31, 1964, 78 Stat. 756, as amended, which is classified 
generally to chapter 12F (Sec. 837 et seq.) of this title. For complete 
classification of this Act to the Code, see Tables.
    The Federal Columbia River Transmission System Act, referred to in 
subsec. (e)(5), is Pub. L. 93-454, Oct. 18, 1974, 88 Stat. 1376, as 
amended, which is classified generally to chapter 12G (Sec. 838 et seq.) 
of this title. For complete classification of this Act to the Code, see 
Short Title note set out under section 838 of this title and Tables.
    Section 103 of title 26, referred to in subsec. (f), which related 
to interest on certain governmental obligations was amended generally by 
Pub. L. 99-514, title XIII, Sec. 1301(a), Oct. 22, 1986, 100 Stat. 2602, 
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.
    Chapter 2C [Sec. 79 et seq.] of title 15, referred to in subsec. 
(h)(1), contains the Public Utility Holding Company Act of 1935, act 
Aug. 26, 1935, ch. 687, title I, 49 Stat. 803, as amended. For complete 
classification of this Act to the Code, see section 79 of Title 15, 
Commerce and Trade, and Tables.
    The Public Utility Regulatory Policies Act of 1978, referred to in 
subsec. (j)(1), is Pub. L. 95-617, Nov. 9, 1978, 92 Stat. 3117, as 
amended. For complete classification of this Act to Code, see Short 
Title note set out under section 2601 of this title and Tables.


                               Amendments

    1986--Subsec. (f). Pub. L. 99-514 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.

                  Section Referred to in Other Sections

    This section is referred to in section 832m of this title.
