[Federal Register Volume 88, Number 189 (Monday, October 2, 2023)]
[Notices]
[Pages 67745-67747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21694]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EF23-7-000]


Bonneville Power Administration; Order Approving Rates on an 
Interim Basis and Providing Opportunity for Additional Comments

    Before Commissioners: Willie L. Phillips, Acting Chairman; James P. 
Danly, Allison Clements, and Mark C. Christie.
    1. In this order, we approve Bonneville Power Administration's 
(Bonneville) proposed fiscal years 2024-2025 wholesale power and 
transmission rates on an interim basis, pending our further review. We 
also provide an additional period of time for the parties to file 
comments.

I. Background

    2. On July 28, 2023, Bonneville filed a request for interim and 
final approval of its proposed wholesale power \1\ and transmission 
rates \2\ in accordance with the Pacific Northwest Electric Power 
Planning and Conservation Act (Northwest Power Act) \3\ and Subpart B 
of part 300 of the Commission's regulations.\4\ Bonneville projects 
that the filed rates will produce average annual power revenues of 
$3.144 billion and average annual transmission revenues of $1.264 
billion. Bonneville asserts that this level of annual revenues is 
sufficient to recover its costs for the fiscal years 2024-2025 rate 
approval period, while providing cash flow to assure at least a 95% 
probability of making all payments to the United States Treasury in 
full and on time for each year of the fiscal years 2024-2025 rate 
approval period.
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    \1\ The proposed wholesale power rates for which Bonneville 
seeks approval for fiscal years 2024-2025 are: Priority Firm Power 
Rate (PF-24); New Resource Firm Power Rate (NR-24); Industrial Firm 
Power Rate (IP-24); Firm Power and Surplus Products and Services 
Rate (FPS-24). Bonneville also seeks approval of related General 
Rates Schedule Provisions for the same period. Fiscal years 2024-
2025 is the period October 1, 2023, through September 30, 2025.
    \2\ The proposed transmission and ancillary services rates 
(referred to collectively as transmission rates) for which 
Bonneville seeks approval for fiscal years 2024-2025 are: Formula 
Power Transmission Rate (FPT-24.1); Network Integration Rate (NT-
24); Point-to-Point Rate (PTP-24); Southern Intertie Rate (IS-24); 
Montana Intertie Rate (IM-24); Use-of-Facilities Transmission Rate 
(UFT-24); Advance Funding Rate (AF-24); Townsend-Garrison 
Transmission Rate (TGT-24); Regional Compliance Enforcement and 
Regional Coordinator Rates (RC-24); Oversupply Rate (OS-24); Eastern 
Intertie Rate (IE-24); and Ancillary and Control Area Services Rates 
(ACS-24). Bonneville also seeks approval of related General Rates 
Schedule Provisions for the same period.
    \3\ 16 U.S.C. 839e(i).
    \4\ 18 CFR 300.10-300.14 (2022).
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II. Notice of Filing

    3. Notice of Bonneville's application was published in the Federal 
Register, 88 FR 53,480 (Aug. 8, 2023), with interventions and protests 
due on or before August 28, 2023. Timely motions to intervene were 
filed by Public Power Council, M-S-R Public Power Agency, and Powerex 
Corp. The Confederated Tribes and Bands of the Yakama Nation and the 
Confederated Tribes of the Umatilla Indian Reservation (together, 
Treaty Tribes), along with the Columbia River Inter-Tribal Fish 
Commission (collectively, Tribal Parties) filed a motion to intervene. 
On September 5, 2023, Bonneville filed a request for leave to answer 
and an answer to the Tribal Parties' motion to intervene.
    4. The Tribal Parties assert that Bonneville's rates during the 
2024-2025 rate period are insufficient to assure repayment of the 
federal investment in the Federal Columbia River Power System, and are 
not based on Bonneville's total system costs.\5\ The Tribal Parties 
contend that the Bonneville Administrator failed to take into account 
Bonneville's obligations under the Treaty Tribes' respective treaties 
as directly applicable to Bonneville and as incorporated through the 
Northwest Power Act.\6\ The Tribal Parties further assert that, under 
the Northwest Power Act, the proposed fiscal years 2024-2025 rates fail 
to afford equal treatment between fish and wildlife and power 
interests, and are not consistent with the Northwest Power and 
Conservation Council (NPCC) Fish and Wildlife Program.\7\
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    \5\ Tribal Parties Motion to Intervene at 2 (citing 16 U.S.C. 
839e(a)(2)(a)-(b)).
    \6\ Id. (citing 16 U.S.C. 839e(k)).
    \7\ Id.
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    5. In Bonneville's answer, Bonneville states that the Commission 
should approve Bonneville's proposed rates as requested.\8\ Bonneville 
asserts that the Tribal Parties' arguments fall outside the 
Commission's limited jurisdiction over Bonneville's power and 
transmission rates established by section 7(a)(2) of the Northwest 
Power Act.\9\ Bonneville argues that the Commission has previously 
concluded that the Commission does not second guess Bonneville's 
decisions on fish and wildlife issues, and that the Commission's review 
is not the proper forum to challenge Bonneville's cost projections.\10\
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    \8\ Bonneville Answer at 3.
    \9\ Id. (citing 16 U.S.C. 839e(a)(2)).
    \10\ Id. at 5 (citing U.S. Dep't of Energy--Bonneville Power 
Admin., 105 FERC ] 61,068, at P 10 (2003)).
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    6. Bonneville contends that the Commission previously considered 
the issue of whether Bonneville's rates failed to afford ``equitable 
treatment'' to fish and wildlife under section 4(h)(11)(A) of the 
Northwest Power Act. Bonneville argues that the Commission correctly 
concluded that ``Bonneville's compliance with its environmental review 
and fish and wildlife protection obligation . . . is outside the scope 
of the Commission's review under section 7(a)(2).'' \11\
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    \11\ Id. (citing Bonneville Power Admin, 178 FERC ] 61,211, at P 
13 (2022)).
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    7. In response to the Tribal Parties' claim that Bonneville's rates 
are not

[[Page 67746]]

consistent with the NPCC Fish and Wildlife Program, Bonneville argues 
that this issue also concerns Bonneville's fish and wildlife cost 
projections and whether those projections are (or must be) consistent 
with the NPCC's Fish and Wildlife Program. Bonneville states that the 
Commission has previously addressed this issue, noting correctly that 
``issues related to the amount of money [Bonneville] plans to spend on 
fish and wildlife under the [NPCC's] fish and wildlife [program]'' are 
outside of the Commission's scope of review.\12\
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    \12\ Id. at 6 (citing U.S. Dep't of Energy--Bonneville Power 
Admin., 32 FERC ] 61,014, at n.15 (1985)).
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    8. Bonneville further argues that the Tribal Parties misstate the 
procedures applicable to this proceeding when the Tribal Parties note 
that ``parties in the [Bonneville] rate proceedings `shall be afforded 
an opportunity by the Commission for an additional hearing.''' \13\ 
Bonneville argues that the Tribal Parties do not request such a hearing 
and explains that the referenced hearing opportunity in section 7(k) of 
the Northwest Power Act is inapplicable to the Commission's review of 
Bonneville's fiscal years 2024-2025 rates. Bonneville states that 
section 7(k) applies to the sale of ``nonfirm electric power within the 
United States, but outside the region,'' which is not at issue in this 
proceeding.\14\
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    \13\ Id. (citing Tribal Parties Motion to Intervene at 1 (citing 
16 U.S.C. 839e(k))).
    \14\ Id. (quoting 16 U.S.C. 839e(k)).
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III. Discussion

A. Procedural Matters

    9. Pursuant to Rule 214 of the Commission's Rules of Practice and 
Procedure, 18 CFR 385.214 (2022), the timely, unopposed motion to 
intervene serve to make the entities that filed them parties to this 
proceeding.
    10. Rule 213(a)(2) of the Commission's Rules of Practice and 
Procedure, 18 CFR 385.213(a)(2), 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.

B. Standard of Review

    11. Under the Northwest Power Act, the Commission's review of 
Bonneville's proposed regional power and transmission rates is limited 
to determining whether Bonneville's proposed rates meet the three 
specific requirements of section 7(a)(2) of the Northwest Power 
Act:\15\
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    \15\ 16 U.S.C. 839e(a)(2). Bonneville also must comply with the 
financial, accounting, and ratemaking requirements in Department of 
Energy Order No. RA 6120.2.
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    (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 Bonneville's other costs;
    (B) they must be based upon Bonneville'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.
    12. Commission review of Bonneville's non-regional, non-firm rates 
also is limited. Review is restricted to determining whether such rates 
meet the requirements of section 7(k) of the Northwest Power Act,\16\ 
which requires that they comply with the Bonneville Project Act, the 
Flood Control Act of 1944, and the Federal Columbia River Transmission 
System Act. Taken together, those statutes require that Bonneville's 
non-regional, non-firm rates:
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    \16\ Id. Sec.  839e(k).
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    (A) recover the cost of generation and transmission of such 
electric energy, including the amortization of investments in the power 
projects within a reasonable period;
    (B) encourage the most widespread use of Bonneville power; and
    (C) provide the lowest possible rates to consumers consistent with 
sound business principles.
    13. Unlike the Commission's statutory authority under the Federal 
Power Act, the Commission's authority under sections 7(a) and 7(k) 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.\17\
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    \17\ See, e.g., U.S. Dep't of Energy--Bonneville Power Admin., 
67 FERC ] 61,351, at 62,216-17 (1994); Aluminum Co. of Am. v. 
Bonneville Power Admin., 903 F.2d 585, 592-93 (9th Cir. 1989).
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    14. 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,\18\ the Commission generally defers resolution 
of issues on the merits of Bonneville's application until the order on 
final confirmation. Thus, the 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 application.\19\
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    \18\ See 18 CFR 300.10(a)(3)(ii).
    \19\ See, e.g., U.S. Dep't of Energy--Bonneville Power Admin., 
160 FERC ] 61,113, at P 6 (2017).
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    15. The Commission declines at this time to grant final 
confirmation and approval of Bonneville's proposed wholesale power and 
transmission rates. The Commission's preliminary review nevertheless 
indicates that Bonneville's wholesale power and transmission rates 
application appears to meet the statutory standards and the minimum 
threshold filing requirements of part 300 of the Commission's 
regulations.\20\ Moreover, the Commission's preliminary review of 
Bonneville's application indicates that it does not contain any patent 
deficiencies. The proposed rates therefore will be approved on an 
interim basis pending 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.\21\
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    \20\ See, e.g., id. P 13.
    \21\ 18 CFR 300.20(c) (2022).
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    16. 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 proposed 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 wholesale power and 
transmission rates for fiscal years 2024-2025 is hereby granted, to be 
effective October 1, 2023, through September 30, 2025, subject to 
refund with interest as set forth in section 300.20(c) of the 
Commission's regulations,\22\ pending final action and either their 
approval or disapproval.
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    \22\ Id.
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    (B) Within 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 20 days thereafter.

[[Page 67747]]

    (C) The Secretary shall promptly publish this order in the Federal 
Register.

    By the Commission.

    Issued: September 26, 2023.
Debbie-Anne A. Reese,
Deputy Secretary.
[FR Doc. 2023-21694 Filed 9-29-23; 8:45 am]
BILLING CODE 6717-01-P