[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 722 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 722

  To benefit consumers by promoting competition in the electric power 
                   industry, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 8, 1997

  Mr. Thomas introduced the following bill; which was read twice and 
       referred to the Committee on Energy and Natural Resources

_______________________________________________________________________

                                 A BILL


 
  To benefit consumers by promoting competition in the electric power 
                   industry, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, 

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Electric Utility Restructuring 
Empowerment and Competitiveness Act of 1997''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) the Nation's electricity generation, transmission, and 
        local distribution systems critically affect the economy and 
        productivity of the United States and the health, safety, 
        welfare, and security of all Americans;
            (2) competition will provide greater choices, lower prices, 
        and innovative services and products to all consumers of 
        electricity;
            (3)(A) States have traditionally regulated the rates, 
        terms, and conditions of selling electricity for end-use;
            (B) regulation of the rates, terms, and conditions of 
        selling electricity for end-use is properly the exclusive 
        jurisdiction of States;
            (C) virtually every State is considering reforms to 
        traditional methods of regulating the provision of retail 
        electric service to promote competition;
            (D) many States, through legislation or by administrative 
        decision, have already approved plans to begin retail 
        competition; and
            (E) States should--
                    (i) continue to take the lead in managing the 
                transition to a competitive electricity marketplace; 
                and
                    (ii) determine the retail electric policies that 
                provide the greatest benefits to consumers in a manner 
                that recognizes the unique characteristics of each 
                State;
            (4) all classes of consumers of electric energy should 
        benefit from competition in electricity sales;
            (5) consumers should have access to adequate, reliable, and 
        efficient supplies of electricity;
            (6) the transition to competition among electricity 
        providers should not impair the ability of the States to 
        determine recovery of the substantial investments made by 
        electric utilities to serve their customers;
            (7) reciprocity among competing retail electricity 
        providers will ensure that the States do not obtain undue 
        advantages or disadvantages from the timing of their decisions;
            (8) the Federal Government must address the matters within 
        Federal jurisdiction as necessary to promote competition, but 
        such actions must not be made at the expense of State 
        authority; and
            (9)(A) Congress should consider restricting governmental 
        utilities with respect to facilities financed with tax-exempt 
        debt;
            (B) sales in a service territory in existence before the 
        restriction may continue to be financed using tax-exempt debt; 
        and
            (C) a governmental utility should have to finance sales 
        outside its service territory on the same basis as other 
        competitors.
    (b) Purpose.--The purpose of this Act is to promote competition in 
the electric power industry through empowering the States, 
deregulation, and streamlining.

SEC. 3. EMPOWERING STATES TO PROMOTE RETAIL COMPETITION.

    (a) Retained State Jurisdiction.--Part II of the Federal Power Act 
(16 U.S.C. 824 et seq.) is amended by adding at the end the following:

``SEC. 215. EMPOWERING STATES TO PROMOTE RETAIL COMPETITION.

    ``(a) Definitions.--
            ``(1) Nonregulated electric utility.--The term 
        `nonregulated electric utility' has the meaning given the term 
        in section 3 of the Public Utility Regulatory Policies Act of 
        1978 (16 U.S.C. 2602).
            ``(2) Retail electric supply.--
                    ``(A) In general.--The term `retail electric 
                supply' means the production, generation, manufacture, 
                aggregation, retail marketing, retail brokering, retail 
                selling, or other retail supplying of electricity.
                    ``(B) Exclusion.--The term `retail electric supply' 
                does not include the transmission of electricity in 
                interstate commerce.
            ``(3) Retail sale.--The term `retail sale' means any sale 
        of electric energy for ultimate consumption.
            ``(4) State regulated electric utility.--The term `State 
        regulated electric utility' has the meaning given the term in 
        section 3 of the Public Utility Regulatory Policies Act of 1978 
        (16 U.S.C. 2602).
    ``(b) Jurisdiction.--A State may regulate the provision of any 
retail electric supply (including self-generation) or any local 
distribution service provided to an ultimate consumer of electricity in 
the State.
    ``(c) Performance Standards.--A State may establish and enforce 
performance standards for the retail sale, marketing, or delivery of 
electric energy to ensure system reliability, protect human health and 
public safety, and protect retail consumers from unfair business 
practices.
    ``(d) State Authority Over Retail Transactions.--Notwithstanding 
any other provision of this Act, a State or a nonregulated electric 
utility may require, as a condition of the purchase by any person or 
municipality located in the State or service area of the nonregulated 
electric utility, as appropriate, of a retail electric supply or local 
distribution service, the payment of a charge determined by the State 
or nonregulated electric utility to further public policy goals, 
including--
            ``(1) recover electric industry transition costs;
            ``(2) ensure that adequate electric service is available to 
        all customers served by a retail electricity distribution 
        system;
            ``(3) ensure and enhance the reliability of retail electric 
        service;
            ``(4) fund assistance to low-income consumers of 
        electricity;
            ``(5) encourage environmental programs, renewable-energy 
        programs, energy-efficiency programs, or conservation programs;
            ``(6) provide for transition costs of electric utility 
        workers adversely affected by restructuring; and
            ``(7) encourage research and development on electric 
        technologies.
    ``(e) Wholesale Reciprocity.--A person may not provide any 
wholesale electric supply in commerce using open and nondiscriminatory 
transmission access unless the person, and every affiliate of the 
person, provides comparable open and nondiscriminatory transmission 
access over any facility owned, controlled, or operated by the person 
or affiliate.
    ``(f) Retail Reciprocity.--A State may provide that a nonregulated 
electric utility, a State regulated electric utility, or a cooperative 
utility in the State may deny local distribution access to any other 
nonregulated electric utility, State regulated electric utility, or 
cooperative utility (or affiliate thereof) that is offering electric 
energy for sale (referred to in this subsection as the `seller') to a 
customer of the in-State utility if the seller or an affiliate of the 
seller is not providing comparable access to any local distribution 
facility owned, controlled, or operated by the seller or affiliate.''.
    (b) State Authority Over Sales of Electricity to Federal 
Facilities.--Section 201 of the Federal Power Act (16 U.S.C. 824) is 
amended by adding at the end the following:
    ``(h) State Authority Over Sales of Electricity to Federal 
Facilities.--The sale of electric energy to a facility of a department 
or agency of the United States or a federally chartered corporation 
shall be subject exclusively to the utility laws of the State in which 
the facility is located.''.
    (c) Universal Service.--Section 201(b) of the Federal Power Act (16 
U.S.C. 824(b)) is amended by adding at the end the following:
            ``(3) Universal service.--Nothing in this Act deprives a 
        State of the authority to require, in accordance with State 
        law, all electricity providers that sell electricity to retail 
        customers in the State to assist in providing universal 
        service.''.

SEC. 4. DEREGULATION OF WHOLESALE SALES OF ELECTRIC ENERGY.

    (a) Deregulation of Wholesale Sales of Electric Energy.--Section 
205 of the Federal Power Act (16 U.S.C. 824d) is amended by adding at 
the end the following:
    ``(g) Deregulation of Wholesale Sales of Electric Energy.--
            ``(1) In general.--A contract or an agreement for the sale 
        of electric energy for resale made after the date of enactment 
        of this subsection shall be exempt from regulation of rates and 
        charges under parts II and III of this Act.
            ``(2) State authority over retail sales unaffected.--
        Nothing in this subsection affects the authority of a State or 
        State commission to regulate sales to an ultimate customer.''.
    (b) Open Access Transmission From All Transmitting Utilities.--Part 
II of the Federal Power Act (16 U.S.C. 824 et seq.) (as amended by 
section 3(a)) is amended by adding at the end the following:

``SEC. 216. OPEN ACCESS TRANSMISSION FROM ALL TRANSMITTING UTILITIES.

    ``A transmitting utility and any other entity that owns, operates, 
or controls transmission of electricity in interstate commerce--
            ``(1) shall be subject to the jurisdiction of the 
        Commission under this Act regarding any wholesale transmission 
        service; and
            ``(2) shall comply with all requirements applicable to a 
        public utility regarding the provision of any wholesale 
        transmission service.''.

SEC. 5. TAX BENEFITS TO UTILITIES.

    Not later than 1 year after the date of enactment of this Act, the 
Inspector General of the Treasury shall submit to Congress a report 
detailing whether and how Internal Revenue Code provisions relating to 
the following benefits should be addressed in order to foster a 
competitive retail electricity market:
            (1) Benefits received as a result of the Internal Revenue 
        Code by an investor-owned electric utility that is not received 
        by other nonutility private corporations under the Internal 
        Revenue Code.
            (2) Benefits received as a result of the Internal Revenue 
        Code by a utility providing electric service to the public that 
        is--
                    (A) an instrumentality of a State;
                    (B) a political subdivision of a State;
                    (C) a corporation that has at any time received a 
                loan from the Rural Utilities Service or the Rural 
                Electrification Administration under the Rural 
                Electrification Act of 1936 (17 U.S.C. 901 et seq.) for 
                the purposes of providing electric service; or
                    (D) an entity that is owned, directly or 
                indirectly, by an entity described in subparagraph (A), 
                (B), or (C).

SEC. 6. PURPA REFORM.

    Section 210 of the Public Utility Regulatory Policies Act of 1978 
(16 U.S.C. 824a-3) is amended by adding at the end the following:
    ``(m) Limitation on Rules.--
            ``(1) Definition of facility.--In this subsection, the term 
        `facility' means a facility for the generation of electric 
        energy or an addition to or expansion of the generating 
        capacity of a facility for the generation of electric energy.
            ``(2) Limitation.--This section shall not apply to a 
        facility that begins commercial operation after the date of 
        enactment of this subsection, except for a facility for which a 
        power purchase contract was entered into under this section 
        before the date of enactment of this subsection.
            ``(3) Contracts.--After the date of enactment of this 
        subsection, an electric utility shall not be required to enter 
        into a new contract or obligation to purchase or sell electric 
        energy under this section.''.

SEC. 7. REPEAL OF PUHCA.

    (a) Findings and Purposes.--
            (1) Findings.--Congress finds that--
                    (A) the Public Utility Holding Company Act of 1935 
                was intended to facilitate the work of Federal and 
                State regulators by placing certain constraints on the 
                activities of holding company systems;
                    (B) developments since 1935, including changes in 
                other regulation and in the electric and gas 
                industries, have called into question the continued 
                relevance of the model of regulation established by 
                that Act;
                    (C) there is a continuing need for limited Federal 
                and State regulation in order to provide rate 
                protection for electric and gas utility customers; and
                    (D) limited Federal regulation is necessary to 
                supplement the work of State commissions in providing 
                rate protection for electric and gas utility customers.
            (2) Purposes.--The purposes of this section are--
                    (A) to eliminate unnecessary regulation, yet 
                continue to provide for consumer rate protection by 
                facilitating existing rate regulatory authority through 
                improved Federal and State commission access to books 
                and records of all companies in a holding company 
                system, to the extent that such information is relevant 
                to rates paid by utility customers, while affording 
                companies the flexibility required to compete in the 
                energy markets; and
                    (B) to address protection of electric and gas 
                utility customers by providing for Federal and State 
                access to books and records of all companies in a 
                holding company system that are relevant to utility 
                rates.
    (b) Definitions.--In this section--
            (1) Affiliate.--The term ``affiliate'', with respect to a 
        company, means a company 5 percent or more of the outstanding 
        voting securities of which are owned, controlled, or held with 
        power to vote, directly or indirectly, by the other company.
            (2) Associate company.--The term ``associate company'', 
        with respect to a company, means a company in the same holding 
        company system with the other company.
            (3) Commission.--The term ``Commission'' means the Federal 
        Energy Regulatory Commission.
            (4) Company.--The term ``company'' means a corporation, 
        partnership, association, joint stock company, business trust, 
        or any organized group of persons, or a receiver, trustee, or 
        other liquidating agent of any of the foregoing.
            (5) Electric utility company.--The term ``electric utility 
        company'' means a company that owns or operates facilities used 
        for the generation, transmission, or distribution of electric 
        energy for sale.
            (6) Exempt wholesale generator.--The term ``exempt 
        wholesale generator'' means any person determined by the 
        Federal Energy Regulatory Commission to be engaged directly, or 
        indirectly through 1 or more affiliates, and exclusively in the 
        business of owning or operating, or both owning and operating, 
        all or part of 1 or more eligible facilities and selling 
        electric energy at wholesale. No person shall be considered an 
        exempt wholesale generator under this section unless the person 
        has applied to the Federal Energy Regulatory Commission for a 
        determination under this paragraph. A person applying in good 
        faith for a determination shall be considered an exempt 
        wholesale generator under this section, with all of the 
        exemptions provided by this section, until the Federal Energy 
        Regulatory Commission makes a determination. The Federal Energy 
        Regulatory Commission shall make the determination not later 
        than 60 days after the date of receiving the application and 
        shall notify the Commission whenever a determination is made 
        under this paragraph that a person is an exempt wholesale 
        generator.
            (7) Foreign utility company.--The term ``foreign utility 
        company'' means a company that--
                    (A) owns or operates facilities that are not 
                located in any State and that are used for the 
                generation, transmission, or distribution of electric 
                energy for sale or the distribution at retail of 
                natural or manufactured gas for heat, light, or power, 
                if the company--
                            (i) derives no part of its income, directly 
                        or indirectly, from the generation, 
                        transmission, or distribution of electric 
                        energy for sale or the distribution at retail 
                        of natural or manufactured gas for heat, light, 
                        or power, within the United States; and
                            (ii) neither the company nor any of its 
                        subsidiary companies is a public utility 
                        company operating in the United States; and
                    (B) provides notice to the Commission, in such form 
                as the Commission may prescribe, that the company is a 
                foreign utility company.
            (8) Gas utility company.--The term ``gas utility company'' 
        means a company that owns or operates a facility used for 
        distribution at retail (other than the distribution only in 
        enclosed portable containers or distribution to tenants or 
        employees of the company operating the facility for their own 
        use and not for resale) of natural or manufactured gas for 
        heat, light, or power.
            (9) Holding company.--The term ``holding company'' means--
                    (A) a company that directly or indirectly owns, 
                controls, or holds, with power to vote, 10 percent or 
                more of the outstanding voting securities of a public 
                utility company or of a holding company of any public 
                utility company; and
                    (B) any person that is determined by the 
                Commission, after notice and opportunity for hearing, 
                to exercise directly or indirectly (either alone or 
                pursuant to an arrangement or understanding with 1 or 
                more persons) such a controlling influence over the 
                management or policies of any public utility company or 
                holding company as to make it necessary or appropriate 
                for the protection of utility customers with respect to 
                rates that the person be subject to the obligations, 
                duties, and liabilities imposed by this section on 
                holding companies.
            (10) Holding company system.--The term ``holding company 
        system'' means a holding company and its subsidiary companies.
            (11) Jurisdictional rates.--The term ``jurisdictional 
        rates'' means rates established by the Commission for the 
        transmission of electric energy in interstate commerce, the 
sale of electric energy at wholesale in interstate commerce, the 
transportation of natural gas in interstate commerce, and the sale in 
interstate commerce of natural gas for resale for ultimate public 
consumption for residential, commercial, industrial, or any other use.
            (12) Natural gas company.--The term ``natural gas company'' 
        means a person engaged in the transportation of natural gas in 
        interstate commerce or the sale of natural gas in interstate 
        commerce for resale.
            (13) Person.--The term ``person'' means an individual or 
        company.
            (14) Public utility.--The term ``public utility'' means a 
        person who owns or operates a facility used for the 
        transmission of electric energy in interstate commerce or the 
        sale of electric energy at wholesale in interstate commerce.
            (15) Public utility company.--The term ``public utility 
        company'' means an electric utility company or a gas utility 
        company.
            (16) State commission.--The term ``State commission'' means 
        a commission, board, agency, or officer, by whatever name 
        designated, of a State, municipality, or other political 
        subdivision of a State that, under the laws of the State, has 
        jurisdiction to regulate public utility companies.
            (17) Subsidiary company.--The term ``subsidiary company'' 
        of a holding company means--
                    (A) a company, 10 percent or more of the 
                outstanding voting securities of which are directly or 
                indirectly owned, controlled, or held with power to 
                vote, by the holding company; and
                    (B) a person, the management or policies of which 
                the Commission, after notice and opportunity for 
                hearing, determines to be subject to a controlling 
                influence, directly or indirectly, by the holding 
                company (either alone or pursuant to an arrangement or 
                understanding with 1 or more other persons) so as to 
                make it necessary for the rate protection of utility 
                customers with respect to rates of the person be 
                subject to the obligations, duties, and liabilities 
                imposed by this section on subsidiary companies of 
                holding companies.
            (18) Voting security.--The term ``voting security'' means a 
        security that entitles the owner or holder of the security to 
        vote in the direction or management of the affairs of a 
        company.
    (c) Repeal of the Public Utility Holding Company Act of 1935.--The 
Public Utility Holding Company Act of 1935 (15 U.S.C. 79a et seq.) is 
repealed.
    (d) Federal Access to Books and Records.--
            (1) In general.--Each holding company and each associate 
        company of a holding company shall maintain, and shall make 
        available to the Commission, such books, accounts, memoranda, 
        and other records as the Commission considers to be relevant to 
        costs incurred by a public utility or natural gas company that 
        is an associate company of the holding company and necessary or 
        appropriate for the protection of utility customers with 
        respect to jurisdictional rates for the transmission of 
        electric energy in interstate commerce, the sale of electric 
        energy at wholesale in interstate commerce, the transportation 
        of natural gas in interstate commerce, and the sale in 
        interstate commerce of natural gas for resale for ultimate 
        public consumption for domestic, commercial, industrial, or 
        other use.
            (2) Affiliate companies.--Each affiliate of a holding 
        company or of any subsidiary company of a holding company shall 
        maintain, and make available to the Commission, such books, 
        accounts, memoranda, and other records with respect to any 
        transaction with another affiliate, as the Commission considers 
        relevant to costs incurred by a public utility or natural gas 
        company that is an associate company of the holding company and 
        necessary or appropriate for the protection of utility 
        customers with respect to jurisdictional rates.
            (3) Holding company systems.--The Commission may examine 
        the books, accounts, memoranda, and other records of any 
        company in a holding company system, or any affiliate of a 
        company in a holding company system, as the Commission 
        considers relevant to costs incurred by a public utility or 
        natural gas company in the holding company system and necessary 
        or appropriate for the protection of utility customers with 
        respect to jurisdictional rates.
            (4) Confidentiality.--No member, officer, or employee of 
        the Commission shall divulge any fact or information that may 
        come to the knowledge of the member, officer, or employee 
        during the course of examination of a book, account, 
        memorandum, or other record under this section, except as may 
        be directed by the Commission or by a court of competent 
        jurisdiction.
    (e) State Access to Books and Records.--
            (1) In general.--On the written request of a State 
        commission having jurisdiction to regulate a public utility 
        company in a holding company system, and subject to such terms 
        and conditions as may be necessary and appropriate to safeguard 
        against unwarranted disclosure to the public of any trade 
        secrets or sensitive commercial information, a holding company 
        or an associate or affiliate of a holding company, whether 
        inside or outside the State, shall produce for inspection any 
        book, account, memorandum, or other record that--
                    (A) has been identified in reasonable detail in a 
                proceeding before the State commission;
                    (B) the State commission considers relevant to 
                costs incurred by the company; and
                    (C) is necessary for the effective discharge of the 
                responsibilities of the State commission with respect 
                to the proceeding.
            (2) Effect on state law.--Nothing in this section preempts 
        applicable State law concerning the provision of books, 
        records, or any other information, or in any way limit the 
        rights of any State to obtain books, records, or any other 
        information under Federal law, contract, or otherwise.
            (3) Court jurisdiction.--Any United States district court 
        located in the State in which the State commission referred to 
        in paragraph (1) is located shall have jurisdiction to enforce 
        compliance with this section.
    (f) Exemption Authority.--
            (1) Rulemaking.--Not later than 90 days after the date of 
        enactment of this Act, the Commission shall promulgate a final 
        rule to exempt from the requirements of subsection (d) any 
        person that is a holding company, solely with respect to 1 or 
        more--
                    (A) qualifying cogeneration facilities or 
                qualifying small power production facilities under 
                section 210 of the Public Utility Regulatory Policies 
                Act of 1978 (16 U.S.C. 824a-3 et seq.);
                    (B) exempt wholesale generators; or
                    (C) foreign utility companies.
            (2) Other authority.--If, on application or on its own 
        motion, the Commission finds that the books, records, accounts, 
        memoranda, and other records of any person are not relevant to 
        the jurisdictional rates of a public utility company, or if the 
        Commission finds that any class of transactions is not relevant 
        to the jurisdictional rates of a public utility company, the 
        Commission shall exempt the person or transaction from the 
        requirements of subsection (d).
    (g) Affiliate Transactions.--Nothing in this section shall preclude 
the Commission or a State commission from exercising its jurisdiction 
under otherwise applicable law to determine whether a public utility 
company may recover in rates any costs of an activity performed by an 
associate company, or any costs of goods or services acquired by the 
public utility company from an associate company.
    (h) Applicability.--This section does not shall apply to--
            (1) the United States;
            (2) a State or a political subdivision of a State;
            (3) a foreign governmental authority not operating in the 
        United States;
            (4) an agency, authority, or instrumentality of an entity 
        referred to in paragraph (1), (2), or (3); or
            (5) an officer, agent, or employee of an entity referred to 
        in paragraph (1), (2), or (3) acting as such in the course of 
        the official duties of the officer, agent, or employee.
    (i) Effect on Other Regulations.--Nothing in this section precludes 
the Commission or a State commission from exercising jurisdiction under 
other law to protect utility customers.
    (j) Enforcement.--The Commission shall have the powers set forth in 
sections 306 through 317 of the Federal Power Act (16 U.S.C. 825d et 
seq.) to enforce this section.
    (k) Savings Provisions.--
            (1) In general.--Nothing in this section prohibits a person 
        from engaging in or continuing to engage in an activity or 
        transaction in which the person is legally engaged or 
        authorized to engage (whether by rule, order, or otherwise) on 
        the day before the date of enactment of this Act, if the person 
        continues to comply with the terms of any authorization.
            (2) Effect on other commission authority.--Nothing in this 
        section shall limit the authority of the Commission under the 
        Federal Power Act (16 U.S.C. 791a et seq.) or the Natural Gas 
        Act (15 U.S.C. 717 et seq.).
    (l) Implementation.--Not later than 18 months after the date of 
enactment of this Act, the Commission shall--
            (1) promulgate such regulations as are necessary or 
        appropriate to implement this section; and
            (2) submit to Congress detailed recommendations on 
        technical and conforming amendments to Federal law necessary to 
        carry out this section and the amendments made by this section.
    (m) Transfer of Resources.--Any books and records in the possession 
of the Securities and Exchange Commission that relate primarily to 
responsibilities of the Commission under this section shall be 
transferred from the Securities and Exchange Commission to the 
Commission.
    (n) Conforming Amendment to the Federal Power Act.--Section 318 of 
the Federal Power Act (16 U.S.C. 825q) is repealed.
    (o) Effective Date.--This section shall take effect on the date 
that is 18 months after the date of enactment of this Act.
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