Sec. 722. TRANSMISSION SERVICES
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## SEC. 722 TRANSMISSION SERVICES Section 212 of the Federal Power Act is amended as follows: ####
(1)Strike subsections
(a)and
(b)and insert the following: > > ### “(a) Rates, Charges, Terms, and Conditions for Wholesale Transmission Services > > An order under section 211 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 211 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.” > . ####
(2)Subsection
(e)is amended to read as follows: > > ### “(e) Savings Provisions > > > ####
(1)> > No provision of section 210, 211, 214, 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 210, 211, 214, 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 210, 211, 213, 214, 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 the Clayton Act, except that such term includes section 5 of the Federal Trade Commission Act to the extent that such section relates to unfair methods of competition.” > . ####
(3)Add the following new subsections at the end thereof: > > ### “(g) Prohibition on Orders Inconsistent with Retail Marketing Areas > > No order may be issued under this Act 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 Act shall be conditioned upon or require the transmission of electric energy: > > > #### “(1) > > directly to an ultimate consumer, or > > > #### “(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; 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 the date of enactment of this subsection or would utilize transmission or distribution facilities that it owns or controls to deliver all such electric energy to such electric consumer. > > 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 210, section 211, this section, and section 213 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 210, section 211, this section, or section 213, 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. > > > #### “(2) > > Notwithstanding any other provision of this Act 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 Transmission 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 7(i) of the Pacific Northwest Electric Power Planning and Conservation Act (16 U.S.C. 839(i)
(1)through (3)), 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 211 and this section, as amended by the Energy Policy Act of 1992, and the provisions of law as preserved in this section; and > > > ##### “(B) > > if application is made to the Commission under section 211 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 211 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 211 and this section, including providing the opportunity for a hearing. > > > #### “(3) > > Notwithstanding those provisions of section 313(b) of this Act (16 U.S.C. 825l) 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 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 3(14) of the Pacific Northwest Electric Power Planning and Conservation Act (16 U.S.C. 839a(14)). > > > #### “(4) > > To the extent the Administrator of the Bonneville Power Administration cannot be required under section 211, 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 210, section 211, this section, or section 213 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 3(14) of the Pacific Northwest Electric Power Planning and Conservation Act (16 U.S.C. 839a(14)), 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 211 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 the date of enactment of this subsection 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 211 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), 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.” > .
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