Public Process

DEPARTMENT OF ENERGY
AGENCY: Department of Energy.
10 CFR Part 903
Procedures for Public Participation in Power and
Transmission Rate Adjustments and Extensions
50 FR 37835
September 18, 1985

ACTION: Amendment to final regulations.

SUMMARY: Notice is given that the Deputy Secretary has adopted regulations establishing common public participation procedures for power and transmission rate adjustments and extensions for four Power Marketing Administrations (PMAs) of the Department of Energy: Alaska Power Administration, Southeastern Power Administration, Southwestern Power Administration, and Western Area Power Administration. The Bonneville Power Administration is not included because the Pacific-Northwest Electric Power Planning and Conservation Act, Pub. L. 96-501 (December 5, 1980) (16 U.S.C. 839), establishes unique procedural requirements for Bonneville rate adjustments. The regulations govern the development of rate proposals by the administrators of the four PMAs and the confirmation and approval of rates on an interim basis, subject to refund, by the Deputy Secretary pursuant to the authority delegated by the Secretary of Energy in Delegation Order No. 0204-108 (48 FR 55664, December 14, 1983).

Proposed procedures were published in the Federal Register on January 2, 1985 appearing at 50 FR 206. Opportunity for written comments was provided and comments were received from 7 individuals and entities.

EFFECTIVE DATE: The regulations are effective September 18, 1985.

FOR FURTHER INFORMATION CONTACT:

Leon Jourolmon, Jr., Director of Fiscal Operations, Southeastern Power Administration, Samuel Elbert Building, Elberton, Georgia 30635 (404) 283-3261

Richard K. Pelz, Office of the General Counsel, Forrestal Building, U.S. Department of Energy, Washington, DC 20585 (202) 252-2918

TEXT: SUPPLEMENTARY INFORMATION:

I. Introduction

The existing regulations in 10 CFR Part 903, Subpart A, set forth the procedures for public participation in the development of power and transmission rates for the Alaska, Southeastern, Southwestern, and Western Area Power Administrations. The Bonneville Power Administration is not included because section 7 of the Pacific Northwest Electric Power Planning and Conservation Act, Pub. L. 96-501 (December 5, 1980) (16 U.S.C. 839), establishes unique procedural requirements for Bonneville rate adjustments.

The existing regulations were published in the Federal Register on December 31, 1980 (44 FR 86983). They supplement Delegation Order No. 0204-33, which became effective January 1, 1979. That delegation order, among other things, authorized Assistant Secretary for Conservation and Renewable Energy (originally the Assistant Secretary for Resource Applications) to develop power and transmission rates, acting by and through the Administrators of the PMAs, and to confirm, approve and place such rates into

effect on an interim basis. The Federal Energy Regulatory Commission (FERC) was given the authority to confirm and approve such rates on a final basis or to disapprove them.

Delegation Order No. 0204-108, which became effective on December 14, 1983 (48 FR 55664), replaced Delegation Order No. 0204-33. Among other changes the new delegation order gave the authority to confirm and approve rates on an interim basis to the Deputy Secretary rather than the Assistant Secretary; provided that rates would be developed by the Administrators; authorized the Administrators to submit rates to the FERC for confirmation and approval on a final basis without prior confirmation and approval on an interim basis; gave the Administrators the authority to put rates for short-term sales into effect on a final basis; and required a certification by the Administrator that the rate is consistent with applicable law and is the lowest possible rate to customers consistent with sound business principles. The revisions to Part 903 incorporate these changes.

The regulations also make several changes, based on four years of experience with the existing procedures, primarily for the purpose of simplifying the regulations and providing more flexibility in their application. The following are the principal changes: Paragraph (c) has been added to both '' 903.15 and 903.16 authorizing the Administrator to dispense with public information forums and public comment forums if he or she determines that there is no interest in holding them. A provision for informal public meetings for minor rate adjustments has been added. Rates for short term sales are exempted from the regulations at the discretion of the Administrator. The defined terms "Minor new service," "New service," "Revised Proposed Rates" and "Proposed Substitute Rates" have been deleted. The definition of "Rate" has been revised to delete the reference to surcharges and discounts. A sentence has been added explaining that FERC confirmation of a higher Substitute Rate on a final basis constitutes final confirmation of the lower Provisional Rate during the interim period that it was in effect. The provisions relating to refunds have been simplified. The authority of the Deputy Secretary to extend rates on a temporary basis pending further proceedings has been recognized.

A draft of the proposed regulations was published in the Federal Register of January 2, 1985 (50 FR 206). Written comments were invited to be submitted by March 4, 1985. In response to this opportunity, written comments were received from 7 individuals or groups, a list of which is included in the notice.

These procedures shall become effective September 18, 1985.

II. Major Issues

1. Reduction in comment period from 90 days to 45 days on major rate adjustments (' 903.14(a))

Four commenters objected to the reduction in the comment period on major rate adjustments from 90 days to 45 days. They stated that due process requires that sufficient time be allowed to make meaningful comment.

After further consideration the 90-day provision of the previous procedures has been retained.

2. Elimination of requirement to have a comment period on minor rate adjustments (' 903.14(a))

Three commenters objected to the elimination of the 30-day comment period for a minor rate adjustment. It is thought that even though a minor rate adjustment may have little economic impact for the PMA, it might have significant impact in the view of a customer.

After further consideration the 30-day provision of the previous procedures has been retained.

3. Elimination of public information and comment forums at the discretion of the Administrator (' 903.15(c) and 903.16(c))

Two commenters objected to the elimination of the requirement to have a public information and public comment forum if the Administrator determines that there is no significant interest in holding one. One commenter states that the potential loss of these forums could significantly hurt the interests of the customers. One other commenter did not object to the elimination of the forums, but suggested that the public forum needed to be scheduled and noticed, and may be cancelled if no person indicates in writing by a prescribed date an intention to appear at such public forum.

After due consideration, the suggestion to schedule public forums subject to cancellation if no person indicates in writing by a prescribed date, an intent to appear, has been adopted.

4. Elimination of "discounts and surcharges" in the definition of a rate ('903.2(1))

One commenter objects to the elimination of "discounts and surcharges" in the definition of a rate. The commenter states that it creates a wide-open loophole in PMA determination of power and transmission rates.

Although "discounts and surcharges" have been deleted from the definition of rates, the definition of rates does not specifically exclude "discounts and surcharges" as it does leasing fees, service facility charges, or other types of facility use charges. The reason is that it sometimes is appropriate to consider "discounts and surcharges" as rates or elements of rates which should be subject to public review and comment, and other times it is not necessary, or appropriate, that they be subjected to public review and comment. There are other terms which are commonly used in rates, or rate schedules, which are similarly neither automatically

included or excluded from public review and comment. The elimination of "discounts and surcharges" in the definition of a rate does not create a wide open loophole as suggested because where discounts, surcharges, credits, add-ons, etc., are appropriately a part of the rate they will be included in the rate review process. Therefore, "discounts and surcharges" have been eliminated from the definition of a rate.

5. Allowing Administrator to make "other procedural changes" (' 903.14)

One commenter objected to allowing the Administrator to make other procedural changes. The commenter stated that the Administrator could change the proposed rulemaking itself. The commenter recommended that the statement be appended by saying that the Administrator could make a procedural change "not inconsistent with these rules."

After reviewing the proposed change and evaluating the comment received, the language of the existing procedures, which had been shortened for simplification and not for the purpose of eliminating a showing of good cause, was reinstated.

6. Deputy Secretary setting the effective date of a provisional rate (' 903.21(b))

One commenter objected to allowing the Deputy Secretary to set an effective date that was retroactive. The commenter recommended that the effective date be prospective only.

After evaluating the comment received, the language of the existing procedures was reinstated, amended as follows: replace "Assistant Secretary" with "Deputy Secretary." The intention was simplification, not confusion, of the process.

7. Applicability of procedures to rates for short-term sales (' 903.1(c))

One commenter noted that the statement that these procedures are not applicable to short term sales of capacity, energy, or transmission is misleading because there are procedural requirements of the DOE Organization Act and the Administrative Procedure Act which do apply.

It is agreed that the provision of the Acts are applicable and the Administrator will comply with them. The misleading statement in ' 903.1(c) has been amended for clarification.

8. Applicability of procedures to substitute rates (' 903.22(c))

One commenter stated that not providing an opportunity to make comments regarding substitute rates, which could be major rate adjustments, if not fair to the consumer.

Substitute rates are prepared in response to the Federal Energy Regulatory Commission (FERC) action. If a customer or interested party is not in agreement with FERC, then any comments or any action should be directed to FERC, which customarily provides the opportunity for comment. This is the same recourse available to the PMA. The provision of an opportunity to comment by the Administrator remains discretionary, as in the language of the existing procedures.

Entities who commented -- Listed below are the parties that submitted comments in response to the proposed procedures published in the Federal Register on January 2, 1985 (50 FR 206).

1. American Public Power Association (APPA).

2. Northeast Texas Electric Cooperative, Inc. and Tex-La Electric Cooperative of Texas, Inc.

3. Western Area Power Administration.

4. Arizona Public Service Company.

5. Southeastern Power Resources Committee.

6. Sacramento Municipal Utility District.

7. DOE, Albuquerque Operations Office.

Executive Order 12291

Under the provisions of section 3 of Executive Order 12291, dated February 17, 1981, a Regulatory Impact Analysis must be made prior to the publication of a major rule. The proposed revision of the regulations are of technical nature and simplify procedural requirements applicable to the development of rates. They are considered to be non-major rules within the meaning of the Executive Order. Regulations relating to the sale of electrical power by the various power marketing administrations have been exempted by the

Office of Management and Budget (OMB) from prepromulgation review by that agency. Accordingly, no clearance of these proposed regulations by OMB is required.

Regulatory Flexibility Act

Pursuant to sections 601 and 603 of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601, et seq.) each agency when required to publish a general notice of proposed rulemaking for any proposed rule shall prepare for public comment an initial Regulatory Flexibility Analysis to describe the impact of the proposed rule on small entities. Under section 601(2) of this Act, "rates," "prices" or "practices," "relating to rates and prices," as used in this Act, are not considered rules for purposes of the Act. The proposed regulations established revised procedures and practices for the development of rates at which power is sold by the power marketing administrations. It follows that the regulations are exempt from the Act. Accordingly, no regulatory flexibility analysis is required.

Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. 3501-3520 (1982)) requires that certain information collection requirements be approved by the Office of Management and Budget before information is demanded of the public. OMB has issued a final rule controlling Paperwork Burdens on the Public (48 FR 13666, March 31, 1983). Ample opportunity is provided in the proposed rules for the interested public to participate with the power marketing administrations in the development of rates. Nevertheless, this is at their sole election. There is no requirement that members of the public participating in the development of rates supply information about themselves to the Government. It follows that the proposed regulations are exempt from the Paperwork Reduction Act.

List of Subjects in 10 CFR Part 903

Electric power rates.

In view of the foregoing, the Department of Energy hereby revises Part 903 to Title 10, Code of Federal Regulations entitled "Procedures for Public Participation in Power and Transmission Rate Adjustments and Extensions" as set forth below:

Issued in Washington, DC, September 4, 1984.

Danny J. Boggs,

Deputy Secretary.

10 CFR Part 903 is revised to read as follows:

PART 903 -- POWER AND TRANSMISSION RATES

Subpart A -- Procedures for Public Participation in Power and Transmission Rate Adjustments and Extensions for the Alaska, Southeastern, Southwestern, and Western Area Power Administrations

Sec.

903.1 Purpose and scope; application.

903.2 Definitions.

903.11 Advance announcement of rate adjustment.

903.13 Notice of proposed rates.

903.14 Consultation and comment period.

903.15 Public information forums.

903.16 Public comment forums.

903.17 Informal public meetings for minor rate adjustments.

903.18 Revision of proposed rates.

903.21 Completion of rate development; provisional rates.

903.22 Final rate approval.

903.23 Rate extensions.

Authority: Secs. 301(b), 302(a), and 644 of Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7101 et seq.); sec. 5 of the Flood Control Act of 1944 (16 U.S.C. 825s); the Reclamation Act of 1902 (43 U.S.C. 372 et seq.), as amended and supplemented by subsequent enactments, particularly sec. 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(c)); and the Acts specifically applicable to individual projects or power systems.

Subpart A -- Procedures for Public Participation in Power and Transmission Rate Adjustments and Extensions for the Alaska, Southeastern, Southwestern, and Western Area Power Administrations

' 903.1 Propose and scope; application.

(a) Except as otherwise provided herein, these regulations establish procedures for the development of power and transmission rates by the Administrators of the Alaska, Southeastern, Southwestern, and Western Area Power Administrations; for the providing of opportunities for interested members of the public to participate in the development of such rates; for the confirmation, approval, and placement in effect on an interim basis by the Deputy Secretary of the Department of Energy of such rates; and for the

submission of such rates to the Federal Energy Regulatory Commission with or without prior interim approval. These regulations supplement Delegation Order No. 0204-108 of the Secretary of Energy, which was published in the Federal Register and became effective on December 14, 1983 (48 FR 55664), with respect to the activities of the Deputy Secretary and the Administrators.

(b) These procedures shall apply to all power and transmission rate adjustment proceedings for the Power Marketing Administrations (PMAs) which are commenced after these regulations become effective or were in process on the effective date of these regulations, but for which the FERC had not issued any substantive orders on or before December 14, 1983. These procedures supersede "Procedures for Public Participation in Power and Transmission Rate Adjustments and Extensions for the Alaska, Southeastern, Southwestern, and Western Area Power Administrations" published in 45 FR 86983 (December 31, 1980) and amended

at 46 FR 6864 (January 22, 1981) and 46 FR 25427 (May 7, 1981).

(c) Except to the extent deemed appropriate by the Administrator in accordance with applicable law, these procedures do not apply to rates for short term sales of capacity, energy, or transmission service.

' 903.2 Definitions.

As used herein --

(a) "Administrator" means the Administrator of the PMA whose rate is involved in the rate adjustment, or anyone acting in such capacity.

(b) "Department" means the Department of Energy, including the PMAs but excluding the Federal Energy Regulatory Commission.

(c) "Deputy Secretary" means the Deputy Secretary of the Department of Energy, or anyone acting in such capacity.

(d) "FERC" means the Federal Energy Regulatory Commission.

(e) "Major rate adjustment" means a rate adjustment other than a minor rate adjustment.

(f) "Minor rate adjustment" means a rate adjustment which (1) will produce less than 1 percent change in the annual revenues of the power system or (2) is for a power system which has either annual sales normally less than 100 million kilowatt hours or an installed capacity of less than 20,000 kilowatts.

(g) "Notice" means the statement which informs customers and the general public of Proposed Rates or proposed rate extensions, opportunities for consultation and comment, and public forums. The Notice shall be by and effective on the date of publication in the Federal Register. Whenever a time period is provided, the date of publication in the Federal Register shall determine the commencement of the time period, unless otherwise provided in the Notice. The Notice shall include the name, address, and telephone number of the person to contact if participation or further information is sought.

(h) "Power Marketing Administration" or "PMA" means the Alaska Power Administration, Southeastern Power Administration, Southwestern Power Administration, or Western Area Power Administration.

(i) "Power system" means a powerplant or a group of powerplants and related facilities, including transmission facilities, or a transmission system, that the PMA treats as one unit for the purposes of establishing rates and demonstrating repayment.

(j) "Proposed Rate" means a rate revision or a rate for a new service which is under consideration by the Department on which public comment is invited.

(k) "Provisional Rate" means a rate which has been confirmed, approved, and placed in effect on an interim basis by the Deputy Secretary.

(l) "Rate" means the monetary charge or the formula for computing such a charge for any electric service provided by the PMA, including but not limited to charges for capacity (or demand), energy, or transmission service; however, it does not include leasing fees, service facility charges, or other types of facility use charges. A rate may be set forth in a rate schedule or in a contract.

(m) "Rate adjustment" means a change in an existing rate or rates, or the establishment of a rate or rates for a new service. It does not include a change in rate schedule provisions or in contract terms, other than charges in the price per unit of service, nor does it include changes in the monetary change pursuant to a formula stated in a rate schedule or a contract.

(n) "Rate schedule" means a document identified as a "rate schedule," "schedule of rates," or "schedule rate" which designates the rate or rates applicable to a class of service specified therein and may contain other terms and conditions relating to the service.

(o) "Short term sales" means sales that last for no longer than one year.

(p) "Substitute Rate" means a rate which has been developed in place of the rate that was disapproved by the FERC.

' 903.11 Advance announcement of rate adjustment.

The Administrator may announce that the development of rates for a new service or revised rates for an existing service is under consideration. The announcement shall contain pertinent information relevant to the rate adjustment. The announcement may be through direct contact with customers, at public meetings, by press release, by newspaper advertisement, and/or by Federal Register publication. Written comments relevant to rate policy and design and to the rate adjustment process may be submitted by interested parties in response to the announcement. Any comments received shall be considered in the development of Proposed Rates.

' 903.13 Notice of proposed rates.

(a) The Administrator shall give Notice the Proposed Rates have been prepared and are under consideration. The Notice shall include:

(1) The Proposed Rates;

(2) An explanation of the need for and derivation of the Proposed Rates;

(3) The locations at which data, studies, reports, or other documents used in developing the Proposed Rates are available for inspection and/or copying;

(4) The dates, times, and locations of any initially scheduled public forums; and

(5) Address to which written comments relative to the Proposed Rates and requests to be informed of FERC actions concerning the rates may be submitted.

(b) Upon request, customers of the power system and other interested persons will be provided with copies of the principal documents used in developing the Proposed Rates.

' 903.14 Consultation and comment period.

All interested persons will have the opportunity to consult with and obtain information from the PMA, to examine backup data, and to make suggestions for modification of the Proposed Rates for a period ending (a) 90 days in the case of major rate adjustments, or 30 days in the case of minor rate adjustments, after the Notice of Proposed Rates is published in the Federal Register, except that such periods may be shortened for good cause shown; (b) 15 days after any answer which may be provided pursuant to ' 903.15(b) hereof; (c) 15 days after the close of the last public forum; or (d) such other time as the Administrator may designate; whichever is later. At anytime during this period, interested persons may submit written comments to the PMA regarding the Proposed Rates. The Administrator may also provide additional time for the submission of written rebuttal comments. All written comments shall be available at a designated location for inspection, and copies also will be furnished on request for which the Administrator may assess a fee. Prior to the action described in ' 903.21, the Administrator may, by appropriate announcement postpone any procedural date or make other procedural changes for good cause shown at the request of any party or on the Administrator's own motion. The Administrator shall maintain, and distribute on request, a list of interested persons.

' 903.15 Public information forums.

(a) One or more public information forums shall be held for major rate adjustments, except as otherwise provided in paragraph (c) of this section, and may be held for minor adjustments, to explain, and to answer questions concerning, the Proposed Rates and the basis of and justification for proposing such rates. The number, dates, and locations of such forums will be determined by the Administrator in accordance with the anticipated or demonstrated interest in the Proposed Rates. Notice shall be given in advance of

such forums. A public information forum may be combined with a public comment forum held in accordance with ' 903.16.

(b) The Administrator shall appoint a forum chairperson. Questions raised at the forum concerning the Proposed Rates and the studies shall be answered by PMA representatives at the forum, at a subsequent forum, or in writing at least 15 days before the end of the consultation and comment period. However, questions that involve voluminous data contained in the PMA records may be answered by providing an opportunity for consultation and for a review of the records at the PMA offices. As a minimum, the proceedings of the forum held at the principal location shall be transcribed. Copies of all documents introduced, and of questions and written answers shall be available at a designated location for inspection and copies will be furnished by the Administrator on request, for which a fee may be assessed. Copies of the transcript may be obtained from the transcribing service.

(c) No public information forum need be held for major rate adjustments if, after the Administrator has given Notice of a scheduled forum, no person indicates in writing by a prescribed date an intent to appear at such public forum.

' 903.16 Public comment forums.

(a) One or more public comment forums shall be held for major rate adjustments, except as otherwise provided in paragraph (c) of this section, and may be held for minor rate adjustments, to provide interested persons an opportunity for oral presentation of views, data, and arguments regarding the Proposed Rates. The number, dates, and locations of such forums will be determined by the Administrator in accordance with the anticipated or demonstrated interest in the Proposed Rates. Notice shall be given at least 30 days in advance of the first public comment forum at each location and shall include the purpose, date, time, place, and other information relative to the forum, as well as the locations where pertinent documents are available for examination and/or copying.

(b) The Administrator shall designate a forum chairperson. At the forum, PMA representatives may question those persons making oral statements and comments. The chairperson shall have discretion to establish the sequence of, and the time limits for, oral presentations and to determine if the comments are relevant and noncumulative. Forum proceedings shall be transcribed. Copies of all documents introduced shall be available at a designated location for inspection, and copies shall be furnished on request for which the Administrator may assess a fee. Copies of the transcript may be obtained from the transcribing service.

(c) No public comment forum need be held for major rate adjustments if, after the Administrator has given notice of a scheduled forum, no person indicates in writing by a prescribed date an intent to appear at such public forum.

' 903.17 Informal public meetings for minor rate adjustments.

In lieu of public information or comment forums in conjunction with a minor rate adjustment, informal public meetings may be held if deemed appropriate by the Administrator. Such informal meetings will not require a Notice or a transcription.

' 903.18 Revision of proposed rates.

During or after the consultation and comment period and review of the oral and written comments on the Proposed Rates, the Administrator may revise the Proposed Rates. If the Administrator determines that further public comment should be invited, the Administrator shall afford interested persons an appropriate period to submit further written comments to the PMA regarding the revised Proposed Rates. The Administrator may convene one or more additional public information and/or public comment forums.

The Administrator shall give Notice of any such additional forums.

' 903.21 Completion of rate development; provisional rates.

(a) Following completion of the consultation and comment period and review of any oral and written comments on the Proposed Rates, the Administrator may: (1) Withdraw the proposal; (2) develop rates which in the Administrator's and the Deputy Secretary's judgment should be confirmed, approved, and placed into effect on an interim basis (Provisional Rates); or (3) develop rates which in the Administrator's judgment should be confirmed, approved, and placed into effect by the FERC on a final basis without being placed into effect on an interim basis. A statement shall be prepared and made available to the public setting forth the principal factors on which the Deputy Secretary's or the Administrator's decision was based. The statement shall include an explanation responding to the major comments, criticisms, and alternatives offered during the comment period. The Administrator shall certify that the rates are consistent with applicable law and that they are the lowest possible rates to customers consistent with sound business principles. The rates shall be submitted promptly to the FERC for confirmation and approval on a final basis.

(b) The Deputy Secretary shall set the effective date for Provisional Rates. The effective date shall be at least 30 days after the Deputy Secretary's decision except that the effective date may be sooner when appropriate to meet a contract deadline, to avoid financial difficulties, to provide a rate for a new service, or to make a minor rate adjustment.

(c) The effective date may be adjusted by the Administrator to coincide with the beginning of the next billing period following the effective date set by the Deputy Secretary for the Provisional Rates.

(d) Provisional Rates shall remain in effect on an interim basis until: (1) They are confirmed and approved on a final basis by the FERC, (2) they are disapproved and the rates last previously confirmed and approved on a final basis become effective, (3) they are disapproved and higher Substitute Rates are confirmed and approved on a final basis and placed in effect by the FERC, (4) they are disapproved and lower Substitute Rates are confirmed and approved on a final basis by the FERC, or (5) they are superseded by other Provisional Rates placed in effect by the Deputy Secretary, whichever occurs first.

' 903.22 Final rate approval.

(a) Any rate submitted to the FERC for confirmation and approval on a final basis shall be accompanied with such supporting data, studies, and documents as the FERC may require, and also with the transcripts of forums, written answers to questions, written comments, the Administrator's certification, and the statement of principal factors leading to the decision. The FERC shall also be furnished a listing of those customers and other participants in the rate proceeding who have requested they be informed of FERC action concerning the rates.

(b) If the FERC confirms and approves Provisional Rates on a final basis, such confirmation and approval shall be effective as of the date such rates were placed in effect by the Deputy Secretary, as such date may have been adjusted by the Administrator. If the FERC confirms and approves on a final basis rates submitted by the Administrator without interim approval, such confirmation and approval shall be effective on a date set by the FERC.

(c) If the FERC disapproves Provisional Rates or other submitted rates, the Administrator shall develop Substitute Rates which take into consideration the reasons given by the FERC for its disapproval. If, in the Administrator's judgment, public comment should be invited upon proposed Substitute Rates, the Administrator may provide for a public consultation and comment period before submitting the Substitute Rates. Whether or not such public consultation and comment periods are provided, the Administrator will, upon request, provide customers of the power system and other interested persons with copies of the principal documents used in the development of the Substitute Rates. Within 120 days of the date of FERC disapproval of submitted rates, including Substitute Rates, or such additional time periods as the FERC may provide, the Administrator will submit the Substitute Rates to the FERC. A statement explaining the Administrator's decision shall accompany the submission.

(d) A Provisional Rate that is disapproved by the FERC shall remain in effect until higher or lower rates are confirmed and approved by the FERC on a final basis or are superseded by other rates placed into effect by the Deputy Secretary on an interim basis: Provided, That if the Administrator does not file a Substitute Rate within 120 days of the disapproval or such greater time as the FERC may provide, and if the rate has been disapproved because the FERC determined that it would result in total revenues in excess of those required by law, the rate last previously confirmed and approved on a final basis will become effective on a date and for a period determined by the FERC and revenues collected in excess of such rate during such period will be refunded in accordance with paragraph (g) of this section.

(e) If a Substitute Rate confirmed and approved on a final basis by the FERC is higher than the provisional rate which was disapproved, the Substitute Rate shall become effective on a subsequent date set by the FERC, unless a subsequent Provisional Rate even higher than the Substitute Rate has been put into effect. FERC confirmation and approval of the higher Substitute Rate shall constitute final confirmation and approval of the lower disapproved Provisional Rate during the interim period that it was in effect.

(f) If a Substitute Rate confirmed and approved by the FERC on a final basis is lower than the disapproved provisional rate, such lower rate shall be effective as of the date the higher disapproved rate was placed in effect.

(g) Any overpayment shall be refunded with interest unless the FERC determines that the administrative cost of a refund would exceed the amount to be refunded, in which case no refund will be required. The interest rate applicable to any refund will be determined by the FERC.

(h) A rate confirmed and approved by the FERC on a final basis shall remain in effect for such period or periods as the FERC may provide or until a different rate is confirmed, approved and placed in effect on an interim or final basis: Provided, That the Deputy Secretary may extend a rate on an interim basis beyond the period specified by the FERC.

' 903.23 Rate extensions.

(a) The following regulations shall apply to the extension of rates which were previously confirmed and approved by the FERC or the Federal Power Commission, or established by the Secretary of the Interior, and for which no adjustment is contemplated:

(1) The Administrator shall give Notice of the proposed extension at least 30 days before the expiration of the prior confirmation and approval, except that such period may be shortened for good cause shown.

(2) The Administrator may allow for consultation and comment, as provided in these procedures, for such period as the Administrator may provide. One or more public information and comment forums may be held, as provided in these procedures, at such times and locations and with such advance Notice as the Administrator may provide.

(3) Following notice of the proposed extension and the conclusion of any consultation and comment period, the Deputy Secretary may extend the rates on an interim basis.

(b) Provisional Rates and other existing rates may be extended on a temporary basis by the Deputy Secretary without advance notice or comment pending further action pursuant to these regulations or by the FERC. The Deputy Secretary shall publish notice in the Federal Register of such extension and shall promptly advise the FERC of the extension.

[FR Doc. 85-22365 Filed 9-17-85; 8:45 am]

BILLING CODE 6450-01-M

(back to top)