(Also see this in United States Code section numbering [§839...])
9. Administrative provisions
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. [Northwest Power Act, §9(a), 94 Stat. 2729-30.]
9(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 business-like manner. Nothing in this chapter shall be construed by the Secretary, the Administrator, or any other official of the Department of Energy to modify, after, 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. [Northwest Power Act, §9(b), 94 Stat. 2730.]
9(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. [Northwest Power Act, §9(c), 94 Stat. 2730.]
9(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) and subject to:
9(d)(1). any contractual obligations of the Administrator, [Northwest Power Act, §9(d)(1), 94 Stat. 2730.]
9(d)(2). any other obligations under existing law, and [Northwest Power Act, §9(d)(2), 94 Stat. 2730.]
9(d)(3). the availability of capacity in the Federal transmission system, [Northwest Power Act, §9(d)(3), 94 Stat. 2731.]
9(d) [cont.]. 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. [Northwest Power Act, §9(d), 94 Stat. 2730-1.]
9(e)(1). For purposes of sections 701 through 706 of title 5, the following actions shall be final actions subject to judicial review–
9(e)(1)(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 838b(h) of this title; [Northwest Power Act, §9(e)(1)(A), 94 Stat. 2731.]
9(e)(1)(B). sales, exchanges, and purchases of electric power under section 839c of this title; [Northwest Power Act, §9(e)(1)(B), 94 Stat. 2731.]
9(e)(1)(C). the Administrator's acquisition of resources under section 839d of this title; [Northwest Power Act, §9(e)(1)(C), 94 Stat. 2731.]
9(e)(1)(D). implementation of conservation measures under section 839d of this title; [Northwest Power Act, §9(e)(1)(D), 94 Stat. 2731.]
9(e)(1)(E). execution of contracts for assistance to sponsors under section 839d(f) of this title; [Northwest Power Act, §9(e)(1)(E), 94 Stat. 2731.]
9(e)(1)(F). granting of credits under section 839d(h) of this title; [Northwest Power Act, §9(e)(1)(F), 94 Stat. 2731.]
9(e)(1)(G). final rate determinations under section 839e of this title; and [Northwest Power Act, §9(e)(1)(G), 94 Stat. 2731.]
9(e)(1)(H). any rule prescribed by the Administrator under section 839e(m)(2) of this title. [Northwest Power Act, §9(e)(1)(H), 94 Stat. 2731.]
9(e)(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. [Northwest Power Act, §9(e)(2), 94 Stat. 2731.]
9(e)(3). Nothing in this section shall be construed to preclude judicial review of other final actions and decisions by the Council or Administrator. [Northwest Power Act, §9(e)(3), 94 Stat. 2731.]
9(e)(4). For purposes of this subsection–
9(e)(4)(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; [Northwest Power Act, §9(e)(4)(A), 94 Stat. 2731.]
9(e)(4)(B). resources, other than major resources, shall be deemed to be acquired upon execution of the contract therefor; [Northwest Power Act, §9(e)(4)(B), 94 Stat. 2731.]
9(e)(4)(C). conservation measures shall be deemed to be implemented upon execution of the contract or grant therefor; and [Northwest Power Act, §9(e)(4)(C), 94 Stat. 2731.]
9(e)(4)(D). rate determinations pursuant to section 839e of this title shall be deemed final upon confirmation and approval by the Federal Energy Regulatory Commission. [Northwest Power Act, §9(e)(4)(D), 94 Stat. 2731.]
9(e)(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. [Northwest Power Act, §9(e)(5), 94 Stat. 2731-2.]
9(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) of title 26 shall not be affected by the Administrator's acquisition of such resources if–
9(f)(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) of title 26), and [Northwest Power Act, §9(f)(1), 94 Stat. 2732.]
9(f)(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) of title 26). [Northwest Power Act, §9(f)(2), 94 Stat. 2732.]
9(f) [cont.]. 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. [Northwest Power Act, §9(f), 94 Stat. 2732.]
9(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–
9(g)(1). convene a joint State board, and [Northwest Power Act, §9(g)(1), 94 Stat. 2732.]
9(g)(2). invest such board with such duties and authority as will assist the Commission in its review of such rates. [Northwest Power Act, §9(g)(1), 94 Stat. 2732.]
9(h). Companies which own or operate facilities for the generation of electricity primarily for sale to Administrator
9(h)(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 the 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–
9(h)(1)(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 [Northwest Power Act, §9(h)(1)(A), 94 Stat. 2732.]
9(h)(1)(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. [Northwest Power Act, §9(h)(1)(B), 94 Stat. 2733.]
9(h)(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. [Northwest Power Act, §9(h)(2), 94 Stat. 2733.]
9(h)(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. [Northwest Power Act, §9(h)(3), 94 Stat. 2733.]
9(h)(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. [Northwest Power Act, §9(h)(4), 94 Stat. 2733.]
9(i). Electric power acquisition or disposition
9(i)(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–
9(i)(1)(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 [Northwest Power Act, §9(i)(1)(A), 94 Stat. 2733.]
9(i)(1)(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. [Northwest Power Act, §9(i)(1)(B), 94 Stat. 2733.]
9(i)(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. [Northwest Power Act, §9(i)(2), 94 Stat. 2733.]
9(i)(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. [Northwest Power Act, §9(i)(3), 94 Stat. 2734.]
9(j). Retail rate designs which encourage conservation and efficient use of electric energy, installation of consumer-owned renewable resources, and rate research and development
9(j)(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. [Northwest Power Act, §9(j)(1), 94 Stat. 2734.]
9(j)(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. [Northwest Power Act, §9(j)(2), 94 Stat. 2734.]
9(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. [Northwest Power Act, §9(k), 94 Stat. 2734.]
10(a). Rights of States and political subdivisions of States
Nothing in this chapter shall be construed to affect or modify any right of any State or political subdivision thereof or electric utility to–
10(a)(1). determine retail electric rates, except as provided by section 839c(c)(3) of this title; [Northwest Power Act, §10(a)(1), 94 Stat. 2734.]
10(a)(2). develop and implement plans and programs for the conservation, development, and use of resources; or [Northwest Power Act, §10(a)(2), 94 Stat. 2734.]
10(a)(3). make energy facility citing decisions, including, but not limited to, determining the need for a particular facility, evaluating alternative sites, and considering alternative methods of meeting the determined need. [Northwest Power Act, §10(a)(3), 94 Stat. 2734.]
10(b). Rights and obligations under existing contracts
Nothing in this chapter shall alter, diminish, or abridge the rights and obligations of the Administrator or any customer under any contract existing as of December 5, 1980. [Northwest Power Act, §10(b), 94 Stat. 2735.]
10(c). Statutory preferences and priorities of public bodies and cooperatives in sale of federally generated power
Nothing in this chapter shall alter, diminish, abridge, or otherwise affect the provisions of other Federal laws by which public bodies and cooperatives are entitled to preference and priority in the sale of federally generated electric power. [Northwest Power Act, §10(c), 94 Stat. 2735.]
10(d). Contractual rights under provisions later found to be unconstitutional
If any provision of this chapter is found to be unconstitutional, then any contract entered into by the Administrator, prior to such finding and in accordance with such provisions, to sell power, acquire or credit resources, or to reimburse investigation and preconstruction expenses pursuant to section 839c of this title, and section 839d(a), (f) or (h) of this title shall not be affected by such finding. [Northwest Power Act, §10(d), 94 Stat. 2735.]
10(e). Treaty and other rights of Indian tribes
Nothing in this chapter shall be construed to affect or modify any treaty or other right of an Indian tribe. [Northwest Power Act, §10(e), 94 Stat. 2735.]
10(f). Reservation of electric power for Montana; Hungry Horse and Libby Dams and Reservoirs
The reservation under law of electric power primarily for use in the State of Montana by reason of the construction of Hungry Horse and Libby Dams and Reservoirs within that State is hereby affirmed. Such reservation shall also apply to 50 per centum of any electric power produced at Libby Reregulating Dam if built. Electric power so reserved shall be sold at the rate or rates set pursuant to section 839e of this title. [Northwest Power Act, §10(f), 94 Stat. 2735.]
10(g). Rights of States to prohibit recovery of resource construction costs through retail rates
Nothing in this chapter shall be construed to affect or modify the right of any State to prohibit utilities regulated by the appropriate State regulatory body from recovering, through their retail rates, costs during any period of resource construction. [Northwest Power Act, §10(g), 94 Stat. 2735.]
Nothing in this chapter shall be construed as authorizing the appropriation of water by any Federal, State, or local agency, Indian tribe, or any other entity or individual. Nor shall any provision of this chapter of any plan or program adopted pursuant to the chapter (1) affect the rights or jurisdictions of the United States, the States, Indian tribes, or other entities over waters of any river or stream or over any groundwater resource, (2) alter, amend, repeal, interpret, modify, or be in conflict with any interstate compact made by the States, or (3) otherwise be construed to alter or establish the respective rights of States, the United States, Indian tribes, or any person with respect to any water or water-related right. [Northwest Power Act, §10(h), 94 Stat. 2735.]
10(i). Existing Federal licenses, permits, and certificates
Nothing in this chapter shall construed to affect the validity of any existing license, permit, or certificate issued by any Federal agency pursuant to any other Federal law. [Northwest Power Act, §10(i), 94 Stat. 2735.]
12. Separability of provisions
If any provision of section 839b(a) through (c) of this title or any other provision of this chapter or the application thereof to any person, State, Indian tribe, entity, or circumstance is held invalid, neither the remainder of section 839b of this title or any other provisions of this chapter, nor the application of such provisions to other persons, States, Indian tribes, entities, or circumstances, shall be affected thereby. [Northwest Power Act, §12, 94 Stat. 2735.]
LEGISLATIVE HISTORY FOR PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND CONSERVATION ACT
Dates of Consideration and Passage
- Senate August 3, 1979; November 19, 1980
- House November 17, 1980
- Senate Report (Energy and Natural Resources Committee) No. 96-272, July 30, 1979 [To accompany S. 885]
- House report (Interstate and Foreign Commerce Committee) No. 96-976(I), May 15, 1980 [To accompany S. 885]
- House Report (Interior and Insular Affairs Committee) No. 976(II), Sept. 16, 1980 [To accompany S. 885]
- Cong. Record Vol. 125 (1979)
- Cong. Record Vol. 126 (1980)
LEGISLATIVE HISTORY FOR THE ENERGY AND WATER APPROPRIATIONS ACT OF 1997
Dates of Consideration and Passage
- House July 24, 25, September 12, 1996
- Senate July 26, 29, 30, September 17, 1996
- House Report (Committee on Appropriations) 104-679 and (Committee of Conference) 104-782
- Senate Report (Committee on Appropriations) 104-320 [To accompany S.1959]
- Cong. Record Vol. 142 (1996)