[Federal Register: September 26, 2007 (Volume 72, Number 186)]
[Notices]
[Page 54646-54648]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se07-53]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
[Docket No. EF07-2021-000]
United States Department of Energy-Bonneville Power
Administration; Order Approving Rates on an Interim Basis and Providing
Opportunity for Additional Comments
Issued September 20, 2007.
Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G.
Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff
1. In this order, we approve the Bonneville Power Administration's
(Bonneville) proposed 2008 Transmission and Ancillary Services (2008
Transmission) rates on an interim basis, pending our full review. We
also provide an additional period of time for the parties to file
comments.
Background
2. On May 22, 2007, Bonneville, in accordance with the Pacific
Northwest Electric Power Planning and Conservation Act (Northwest Power
Act),\1\ and Subpart B of Part 300 of the
[[Page 54647]]
Commission's regulations,\2\ filed with the Commission its proposed
2008 Transmission rates.\3\ Bonneville also seeks a finding by the
Commission that the proposed 2008 Transmission rates associated with
service provided under its open access transmission tariff (OATT) \4\
satisfy the Commission's comparability standards applicable to non-
public utilities pursuant to the reciprocity conditions of Order No.
888.\5\ Bonneville states that the governing statute and case law do
not provide the Commission latitude to review these rates in the same
manner as the Federal Power Act (FPA) \6\ provides for public
utilities. Rather, according to Bonneville, if it has satisfied the
standards of the Northwest Power Act,\7\ the Commission is required to
confirm and approve these rates.\8\
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\1\ 16 U.S.C. 839e(a)(2), 839e(i)(6) (2000).
\2\ 18 CFR part 300 (2007).
\3\ The proposed transmission rate schedules for which
Bonneville seeks approval for the two year period ending September
30, 2009 include: FPT-08.1 (Formula Power Transmission); FPT-08.3
(Formula Power Transmission); IR-08 (Integration of Resources); NT-
08 (Network Integration); PTP-08 (Point-to-Point Firm Transmission);
IS-08 (Southern Intertie Transmission); IM-08 (Montana Intertie
Transmission); UFT-08 (Use-of-Facilities Transmission); AF-08
(Advance Funding); TGT-08 (Townsend-Garrison Transmission); IE-08
(Eastern Intertie); ACS-08 (Ancillary Services and Control Areas
Services); and GRSPs (General Rate Schedule Provisions for
Transmission and Ancillary Services).
\4\ The proposed rate schedules associated with Bonneville's
OATT are: Network Integration (NT-08), Point-to-Point (PTP-08),
Southern Intertie (IS-08), Montana Intertie (IM-08), Use-Of-
Facilities (UFT-08), Advance Funding (AF-08), Ancillary Services
(ACS-08), and GRSPs.
\5\ See Promoting Wholesale Competition Through Open Access Non-
discriminatory Transmission Services by Public Utilities and
Recovery of Stranded Costs by Public Utilities and Transmitting
Utilities, Order No. 888, FERC Stats. & Regs. ] 31,036 (1996), order
on reh'g, Order No. 888-A, FERC Stats. & Regs. ] 31,048 (1997),
order on reh'g, Order No. 888-B, 81 FERC ] 61,248 (1997), order on
reh'g, Order No. 888-C, 82 FERC ] 61,046 (1998), aff'd in relevant
part sub nom. Transmission Access Policy Study Group v. FERC, 225
F.3d 667 (D.C. Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S.
1 (2002).
\6\ 16 U.S.C. 824 et seq. (2000). Bonneville also must comply
with the financial, accounting, and ratemaking requirements in
Department of Energy Order No. RA 6120.2.
\7\ 16 U.S.C. 839e(a)(2), 839e(i)(6) (2000).
\8\ Central Lincoln Peoples' Utility District v. Johnson, 735
F.2d 1101, 1110 (9th Cir. 1984) (holding that the Northwest Power
Act ``remove[s] FERC from actual ratemaking * * * and limit[s]
FERC's role to financial oversight of the regional rates'').
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3. Notice of Bonneville's filing was published in the Federal
Register, with protests and interventions due on or before June 21,
2007.\9\ Timely motions to intervene were filed by Avista Corporation,
PacifiCorp, Portland General Electric Company, Idaho Power Company,
Industrial Customers of Northwest Utilities, Powerex Corp., Public
Power Council, and Puget Sound Energy, Inc., raising no substantive
issues.
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\9\ 72 FR 32,633 (2007).
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4. In addition, the Electric Power Supply Association (EPSA) and
the Northwest and Intermountain Power Producers Coalition (NIPPC) filed
a joint motion to intervene and protest. LS Power Associates, L.P. (LS
Power) filed a timely motion to intervene and protest. EPSA, NIPPC and
LS Power challenge Bonneville's plan to no longer compensate
unaffiliated generators within its control area for generation-supplied
reactive power service, as unduly discriminatory and in violation of
Commission policy. Bonneville filed an answer in response to the
protests.
Discussion
Procedural Matters
5. Pursuant to Rule 214 of the Commission's Rules of Practice and
Procedure, 18 CFR 385.214 (2007), the timely, unopposed motions to
intervene serve to make the entities that filed them parties to this
proceeding. Rule 213(a)(2) of the Commission's Rules of Practice and
Procedure, 18 CFR 385.213(a)(2) (2007), prohibits an answer to a
protest unless otherwise ordered by the decisional authority. We will
accept Bonneville's answer because it has provided information that
assisted us in our decision-making process.
Standard of Review
6. Under the Northwest Power Act, the Commission's review of
Bonneville's transmission rates is limited to determining whether
Bonneville's proposed rates meet the three specific requirements of
section 7(a)(2):
(A) They must be sufficient to assure repayment of the Federal
investment in the Federal Columbia River Power System over a reasonable
number of years after first meeting the Administrator's other costs;
(B) They must be based upon the Administrator's total system costs;
and
(C) Insofar as transmission rates are concerned, they must
equitably allocate the costs of the Federal transmission system between
Federal and non-Federal power.\10\
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\10\ See 16 U.S.C. 839e(a)(2) (2000).
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7. Unlike the Commission's statutory authority under the FPA, the
Commission's authority under section 7(a)(2) of the Northwest Power Act
does not include the power to modify the rates. The responsibility for
developing rates in the first instance is vested with Bonneville's
Administrator. The rates are then submitted to the Commission for
approval or disapproval. In this regard, the Commission's role can be
viewed as an appellate one: To affirm or remand the rates submitted to
it for review.\11\
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\11\ See United States Department of Energy--Bonneville Power
Administration, 67 FERC ] 61,351 at 62,216-17 (1994); see also,
e.g., Aluminum Company of America v. Bonneville Power
Administration, 903 F.2d 585, 592-93 (9th Cir. 1989).
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8. Moreover, review at this interim stage is further limited. In
view of the volume and complexity of a Bonneville rate application,
such as the one now before the Commission in this filing, and the
limited period in advance of the requested effective date in which to
review the application,\12\ the Commission generally defers resolution
of issues on the merits until an order on final confirmation and
approval. Thus, proposed rates, if not patently deficient, generally
are approved on an interim basis and the parties are afforded an
additional opportunity in which to raise issues with regard to
Bonneville's filing.\13\
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\12\ See 18 CFR 300.10(a)(3)(ii) (2007).
\13\ See, e.g., United States Department of Energy--Bonneville
Power Administration, 64 FERC ] 61,375 at 63,606 (1993); United
States Department of Energy--Bonneville Power Administration, 40
FERC ] 61,351 at 62,059-60 (1987).
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Interim Approval
9. The Commission declines at this time to grant final confirmation
and approval of Bonneville's proposed 2008 Transmission rates. The
Commission's preliminary review nevertheless indicates that
Bonneville's 2008 Transmission rates appear to meet the statutory
standards and the minimum threshold filing requirements of Part 300 of
the Commission's regulations.\14\ Moreover, the Commission's
preliminary review of Bonneville's submittal indicates that it does not
contain any patent deficiencies. The proposed rates, therefore, will be
approved on an interim basis pending our full review for final
approval. We note, as well, that no one will be harmed by this decision
because interim approval allows Bonneville's rates to go into effect
subject to refund with interest; the Commission may order refunds with
interest if the Commission later determines in its final decision not
to approve the rates.\15\ The Commission will address concerns raised
by protesters in the final decision.
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\14\ See, e.g., United States Department of Energy--Bonneville
Power Administration, 105 FERC ] 61,006 at P 13-14 (2003); United
States Department of Energy--Bonneville Power Administration, 96
FERC ] 61,360 at 62,358 (2001).
\15\ 18 CFR 300.20(c) (2007).
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[[Page 54648]]
10. In addition, we will provide an additional period of time for
parties to file comments and reply comments on issues related to final
confirmation and approval of Bonneville's 2008 Transmission rates. This
will ensure that the record in this proceeding is complete and fully
developed.
The Commission Orders:
(A) Interim approval of Bonneville's proposed 2008 Transmission
rates is hereby granted, to become effective on October 1, 2007,
subject to refund with interest as set forth in section 300.20(c) of
the Commission's regulations, 18 CFR 300.20(c) (2007), pending final
action and either approval or disapproval.
(B) Within thirty (30) days of the date of this order, parties who
wish to do so may file additional comments regarding final confirmation
and approval of Bonneville's proposed rates. Parties who wish to do so
may file reply comments within twenty (20) days thereafter.
(C) The Secretary shall promptly publish this order in the Federal
Register.
By the Commission.
Nathaniel J. Davis, Sr.,
Acting Deputy Secretary.
[FR Doc. E7-18929 Filed 9-25-07; 8:45 am]
BILLING CODE 6717-01-P