I

106TH CONGRESS

2D SESSION S. 348

IN THE HOUSE OF REPRESENTATIVES

JANUARY 27, 2000

Referred to the Committee on Commerce

AN ACT

To authorize and facilitate a program to enhance training,

research and development, energy conservation and efficiency, and consumer education in the oilheat industry

for the benefit of oilheat consumers and the public, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

S 348 RFH

1 TITLE I—NATIONAL OIL HEAT

2 RESEARCH ALLIANCE ACT OF

3 1999

4 SEC. 101. SHORT TITLE.

5 This title may be cited as the ‘‘National Oilheat Re6 search Alliance Act of 1999’’.

7 SEC. 102. FINDINGS.

8 Congress finds that—

9 (1) oilheat is an important commodity relied on

10 by approximately 30,000,000 Americans as an effi11 cient and economical energy source for commercial

12 and residential space and hot water heating;

13 (2) oilheat equipment operates at efficiencies

14 among the highest of any space heating energy

15 source, reducing fuel costs and making oilheat an ec16 onomical means of space heating;

17 (3) the production, distribution, and marketing

18 of oilheat and oilheat equipment plays a significant

19 role in the economy of the United States, accounting

20 for approximately $12,900,000,000 in expenditures

21 annually and employing millions of Americans in all

22 aspects of the oilheat industry;

23 (4) only very limited Federal resources have

24 been made available for oilheat research, develop25 ment, safety, training, and education efforts, to the
3

S 348 RFH

1 detriment of both the oilheat industry and its

2 30,000,000 consumers; and

3 (5) the cooperative development, self-financing,

4 and implementation of a coordinated national oilheat

5 industry program of research and development,

6 training, and consumer education is necessary and

7 important for the welfare of the oilheat industry, the

8 general economy of the United States, and the mil9 lions of Americans that rely on oilheat for commer10 cial and residential space and hot water heating.

11 SEC. 103. DEFINITIONS.

12 In this title:

13 (1) ALLIANCE.—The term ‘‘Alliance’’ means a

14 national oilheat research alliance established under

15 section 104.

16 (2) CONSUMER EDUCATION.—The term ‘‘con17 sumer education’’ means the provision of informa18 tion to assist consumers and other persons in mak19 ing evaluations and decisions regarding oilheat and

20 other nonindustrial commercial or residential space

21 or hot water heating fuels.

22 (3) EXCHANGE.—The term ‘‘exchange’’ means

23 an agreement that—

24 (A) entitles each party or its customers to

25 receive oilheat from the other party; and
4

S 348 RFH

1 (B) requires only an insubstantial portion

2 of the volumes involved in the exchange to be

3 settled in cash or property other than the

4 oilheat.

5 (4) INDUSTRY TRADE ASSOCIATION.—The term

6 ‘‘industry trade association’’ means an organization

7 described in paragraph (3) or (6) of section 501(c)

8 of the Internal Revenue Code of 1986 that is exempt

9 from taxation under section 501(a) of that Code and

10 is organized for the purpose of representing the

11 oilheat industry.

12 (5) NO. 1 DISTILLATE.—The term ‘‘No. 1 dis13 tillate’’ means fuel oil classified as No. 1 distillate

14 by the American Society for Testing and Materials.

15 (6) NO. 2 DYED DISTILLATE.—The term ‘‘No.

16 2 dyed distillate’’ means fuel oil classified as No. 2

17 distillate by the American Society for Testing and

18 Materials that is indelibly dyed in accordance with

19 regulations prescribed by the Secretary of the Treas20 ury under section 4082(a)(2) of the Internal Rev21 enue Code of 1986.

22 (7) OILHEAT.—The term ‘‘oilheat’’ means—

23 (A) No. 1 distillate; and

24 (B) No. 2 dyed distillate;
5

S 348 RFH

1 that is used as a fuel for nonindustrial commercial

2 or residential space or hot water heating.

3 (8) OILHEAT INDUSTRY.—

4 (A) IN GENERAL.—The term ‘‘oilheat in5 dustry’’ means—

6 (i) persons in the production, trans7 portation, or sale of oilheat; and

8 (ii) persons engaged in the manufac9 ture or distribution of oilheat utilization

10 equipment.

11 (B) EXCLUSION.—The term ‘‘oilheat in12 dustry’’ does not include ultimate consumers of

13 oilheat.

14 (9) PUBLIC MEMBER.—The term ‘‘public mem15 ber’’ means a member of the Alliance described in

16 section 105(c)(1)(F).

17 (10) QUALIFIED INDUSTRY ORGANIZATION.—

18 The term ‘‘qualified industry organization’’ means

19 the National Association for Oilheat Research and

20 Education or a successor organization.

21 (11) QUALIFIED STATE ASSOCIATION.—The

22 term ‘‘qualified State association’’ means the indus23 try trade association or other organization that the

24 qualified industry organization or the Alliance deter25 mines best represents retail marketers in a State.
6

S 348 RFH

1 (12) RETAIL MARKETER.—The term ‘‘retail

2 marketer’’ means a person engaged primarily in the

3 sale of oilheat to ultimate consumers.

4 (13) SECRETARY.—The term ‘‘Secretary’’

5 means the Secretary of Energy.

6 (14) WHOLESALE DISTRIBUTOR.—The term

7 ‘‘wholesale distributor’’ means a person that—

8 (A)(i) produces No. 1 distillate or No. 2

9 dyed distillate;

10 (ii) imports No. 1 distillate or No. 2 dyed

11 distillate; or

12 (iii) transports No. 1 distillate or No. 2

13 dyed distillate across State boundaries or

14 among local marketing areas; and

15 (B) sells the distillate to another person

16 that does not produce, import, or transport No.

17 1 distillate or No. 2 dyed distillate across State

18 boundaries or among local marketing areas.

19 (15) STATE.—The term ‘‘State’’ means the sev20 eral States, except the State of Alaska.

21 SEC. 104. REFERENDA.

22 (a) CREATION OF PROGRAM.—

23 (1) IN GENERAL.—The oilheat industry,

24 through the qualified industry organization, may

25 conduct, at its own expense, a referendum among re-
7

S 348 RFH

1 tail marketers and wholesale distributors for the es2 tablishment of a national oilheat research alliance.

3 (2) REIMBURSEMENT OF COST.—The Alliance,

4 if established, shall reimburse the qualified industry

5 organization for the cost of accounting and docu6 mentation for the referendum.

7 (3) CONDUCT.—A referendum under paragraph

8 (1) shall be conducted by an independent auditing

9 firm.

10 (4) VOTING RIGHTS.—

11 (A) RETAIL MARKETERS.—Voting rights of

12 retail marketers in a referendum under para13 graph (1) shall be based on the volume of

14 oilheat sold in a State by each retail marketer

15 in the calendar year previous to the year in

16 which the referendum is conducted or in an17 other representative period.

18 (B) WHOLESALE DISTRIBUTORS.—Voting

19 rights of wholesale distributors in a referendum

20 under paragraph (1) shall be based on the vol21 ume of No. 1 distillate and No. 2 dyed distillate

22 sold in a State by each wholesale distributor in

23 the calendar year previous to the year in which

24 the referendum is conducted or in another rep25 resentative period, weighted by the ratio of the
8

S 348 RFH

1 total volume of No. 1 distillate and No. 2 dyed

2 distillate sold for nonindustrial commercial and

3 residential space and hot water heating in the

4 State to the total volume of No. 1 distillate and

5 No. 2 dyed distillate sold in that State.

6 (5) ESTABLISHMENT BY APPROVAL OF TWO7 THIRDS.—

8 (A) IN GENERAL.—Subject to subpara9 graph (B), on approval of persons representing

10 two-thirds of the total volume of oilheat voted

11 in the retail marketer class and two-thirds of

12 the total weighted volume of No. 1 distillate

13 and No. 2 dyed distillate voted in the wholesale

14 distributor class, the Alliance shall be estab15 lished and shall be authorized to levy assess16 ments under section 107.

17 (B) REQUIREMENT OF MAJORITY OF RE18 TAIL MARKETERS.—Except as provided in sub19 section (b), the oilheat industry in a State shall

20 not participate in the Alliance if less than 50

21 percent of the retail marketer vote in the State

22 approves establishment of the Alliance.

23 (6) CERTIFICATION OF VOLUMES.—Each per24 son voting in the referendum shall certify to the

25 independent auditing firm the volume of oilheat, No.
9

S 348 RFH

1 1 distillate, or No. 2 dyed distillate represented by

2 the vote of the person.

3 (7) NOTIFICATION.—Not later than 90 days

4 after the date of enactment of this title, a qualified

5 State association may notify the qualified industry

6 organization in writing that a referendum under

7 paragraph (1) will not be conducted in the State.

8 (b) SUBSEQUENT STATE PARTICIPATION.—The

9 oilheat industry in a State that has not participated ini10 tially in the Alliance may subsequently elect to participate

11 by conducting a referendum under subsection (a).

12 (c) TERMINATION OR SUSPENSION.—

13 (1) IN GENERAL.—On the initiative of the Alli14 ance or on petition to the Alliance by retail market15 ers and wholesale distributors representing 35 per16 cent of the volume of oilheat or weighted No. 1 dis17 tillate and No. 2 dyed distillate in each class, the Al18 liance shall, at its own expense, hold a referendum,

19 to be conducted by an independent auditing firm se20 lected by the Alliance, to determine whether the

21 oilheat industry favors termination or suspension of

22 the Alliance.

23 (2) VOLUME PERCENTAGES REQUIRED TO TER24 MINATE OR SUSPEND.—Termination or suspension
10

S 348 RFH

1 shall not take effect unless termination or suspen2 sion is approved by—

3 (A) persons representing more than one4 half of the total volume of oilheat voted in the

5 retail marketer class and more than one-half of

6 the total volume of weighted No. 1 distillate

7 and No. 2 dyed distillate voted in the wholesale

8 distributor class; or

9 (B) persons representing more than two10 thirds of the total volume of fuel voted in either

11 such class.

12 (d) CALCULATION OF OILHEAT SALES.—For the

13 purposes of this section and section 105, the volume of

14 oilheat sold annually in a State shall be determined on

15 the basis of information provided by the Energy Informa16 tion Administration with respect to a calendar year or

17 other representative period.

18 SEC. 105. MEMBERSHIP.

19 (a) SELECTION.—

20 (1) IN GENERAL.—Except as provided in sub21 section (c)(1)(C), the qualified industry organization

22 shall select members of the Alliance representing the

23 oilheat industry in a State from a list of nominees

24 submitted by the qualified State association in the

25 State.
11

S 348 RFH

1 (2) VACANCIES.—A vacancy in the Alliance

2 shall be filled in the same manner as the original se3 lection.

4 (b) REPRESENTATION.—In selecting members of the

5 Alliance, the qualified industry organization shall make

6 best efforts to select members that are representative of

7 the oilheat industry, including representation of—

8 (1) interstate and intrastate operators among

9 retail marketers;

10 (2) wholesale distributors of No. 1 distillate and

11 No. 2 dyed distillate;

12 (3) large and small companies among wholesale

13 distributors and retail marketers; and

14 (4) diverse geographic regions of the country.

15 (c) NUMBER OF MEMBERS.—

16 (1) IN GENERAL.—The membership of the Alli17 ance shall be as follows:

18 (A) One member representing each State

19 with oilheat sales in excess of 32,000,000 gal20 lons per year.

21 (B) If fewer than 24 States are rep22 resented under subparagraph (A), 1 member

23 representing each of the States with the highest

24 volume of annual oilheat sales, as necessary to

25 cause the total number of States represented
12

S 348 RFH

1 under subparagraph (A) and this subparagraph

2 to equal 24.

3 (C) 5 representatives of retail marketers, 1

4 each to be selected by the qualified State asso5 ciations of the 5 States with the highest volume

6 of annual oilheat sales.

7 (D) 5 additional representatives of retail

8 marketers.

9 (E) 21 representatives of wholesale dis10 tributors.

11 (F) 6 public members, who shall be rep12 resentatives of significant users of oilheat, the

13 oilheat research community, State energy offi14 cials, or other groups knowledgeable about

15 oilheat.

16 (2) FULL-TIME OWNERS OR EMPLOYEES.—

17 Other than the public members, Alliance members

18 shall be full-time owners or employees of members of

19 the oilheat industry, except that members described

20 in subparagraphs (C), (D), and (E) of paragraph (1)

21 may be employees of the qualified industry organiza22 tion or an industry trade association.

23 (d) COMPENSATION.—Alliance members shall receive

24 no compensation for their service, nor shall Alliance mem25 bers be reimbursed for expenses relating to their service,
13

S 348 RFH

1 except that public members, on request, may be reim2 bursed for reasonable expenses directly related to partici3 pation in meetings of the Alliance.

4 (e) TERMS.—

5 (1) IN GENERAL.—Subject to paragraph (4), a

6 member of the Alliance shall serve a term of 3 years,

7 except that a member filling an unexpired term may

8 serve a total of 7 consecutive years.

9 (2) TERM LIMIT.—A member may serve not

10 more than 2 full consecutive terms.

11 (3) FORMER MEMBERS.—A former member of

12 the Alliance may be returned to the Alliance if the

13 member has not been a member for a period of 2

14 years.

15 (4) INITIAL APPOINTMENTS.—Initial appoint16 ments to the Alliance shall be for terms of 1, 2, and

17 3 years, as determined by the qualified industry or18 ganization, staggered to provide for the subsequent

19 selection of one-third of the members each year.

20 SEC. 106. FUNCTIONS.

21 (a) IN GENERAL.—

22 (1) PROGRAMS, PROJECTS; CONTRACTS AND

23 OTHER AGREEMENTS.—The Alliance—

24 (A) shall develop programs and projects

25 and enter into contracts or other agreements
14

S 348 RFH

1 with other persons and entities for imple2 menting this title, including programs—

3 (i) to enhance consumer and employee

4 safety and training;

5 (ii) to provide for research, develop6 ment, and demonstration of clean and effi7 cient oilheat utilization equipment; and

8 (iii) for consumer education; and

9 (B) may provide for the payment of the

10 costs of carrying out subparagraph (A) with as11 sessments collected under section 107.

12 (2) COORDINATION.—The Alliance shall coordi13 nate its activities with industry trade associations

14 and other persons as appropriate to provide efficient

15 delivery of services and to avoid unnecessary dupli16 cation of activities.

17 (3) ACTIVITIES.—

18 (A) EXCLUSIONS.—Activities under clause

19 (i) or (ii) of paragraph (1)(A) shall not include

20 advertising, promotions, or consumer surveys in

21 support of advertising or promotions.

22 (B) RESEARCH, DEVELOPMENT, AND DEM23 ONSTRATION ACTIVITIES.—
15

S 348 RFH

1 (i) IN GENERAL.—Research, develop2 ment, and demonstration activities under

3 paragraph (1)(A)(ii) shall include—

4 (I) all activities incidental to re5 search, development, and demonstra6 tion of clean and efficient oilheat utili7 zation equipment; and

8 (II) the obtaining of patents, in9 cluding payment of attorney’s fees for

10 making and perfecting a patent appli11 cation.

12 (ii) EXCLUDED ACTIVITIES.—Re13 search, development, and demonstration

14 activities under paragraph (1)(A)(ii) shall

15 not include research, development, and

16 demonstration of oilheat utilization equip17 ment with respect to which technically fea18 sible and commercially feasible operations

19 have been verified, except that funds may

20 be provided for improvements to existing

21 equipment until the technical feasibility

22 and commercial feasibility of the operation

23 of those improvements have been verified.
16

S 348 RFH

1 (b) PRIORITIES.—In the development of programs

2 and projects, the Alliance shall give priority to issues relat3 ing to—

4 (1) research, development, and demonstration;

5 (2) safety;

6 (3) consumer education; and

7 (4) training.

8 (c) ADMINISTRATION.—

9 (1) OFFICERS; COMMITTEES; BYLAWS.—The

10 Alliance—

11 (A) shall select from among its members a

12 chairperson and other officers as necessary;

13 (B) may establish and authorize commit14 tees and subcommittees of the Alliance to take

15 specific actions that the Alliance is authorized

16 to take; and

17 (C) shall adopt bylaws for the conduct of

18 business and the implementation of this title.

19 (2) SOLICITATION OF OILHEAT INDUSTRY COM20 MENT AND RECOMMENDATIONS.—The Alliance shall

21 establish procedures for the solicitation of oilheat in22 dustry comment and recommendations on any sig23 nificant contracts and other agreements, programs,

24 and projects to be funded by the Alliance.
17

S 348 RFH

1 (3) ADVISORY COMMITTEES.—The Alliance may

2 establish advisory committees consisting of persons

3 other than Alliance members.

4 (4) VOTING.—Each member of the Alliance

5 shall have 1 vote in matters before the Alliance.

6 (d) ADMINISTRATIVE EXPENSES.—

7 (1) IN GENERAL.—The administrative expenses

8 of operating the Alliance (not including costs in9 curred in the collection of assessments under section

10 107) plus amounts paid under paragraph (2) shall

11 not exceed 7 percent of the amount of assessments

12 collected in any calendar year, except that during

13 the first year of operation of the Alliance such ex14 penses and amounts shall not exceed 10 percent of

15 the amount of assessments.

16 (2) REIMBURSEMENT OF THE SECRETARY.—

17 (A) IN GENERAL.—The Alliance shall an18 nually reimburse the Secretary for costs in19 curred by the Federal Government relating to

20 the Alliance.

21 (B) LIMITATION.—Reimbursement under

22 subparagraph (A) for any calendar year shall

23 not exceed the amount that the Secretary deter24 mines is twice the average annual salary of 1

25 employee of the Department of Energy.
18

S 348 RFH

1 (e) BUDGET.—

2 (1) PUBLICATION OF PROPOSED BUDGET.—Be3 fore August 1 of each year, the Alliance shall pub4 lish for public review and comment a proposed budg5 et for the next calendar year, including the probable

6 costs of all programs, projects, and contracts and

7 other agreements.

8 (2) SUBMISSION TO THE SECRETARY AND CON9 GRESS.—After review and comment under para10 graph (1), the Alliance shall submit the proposed

11 budget to the Secretary and Congress.

12 (3) RECOMMENDATIONS BY THE SECRETARY.—

13 The Secretary may recommend for inclusion in the

14 budget programs and activities that the Secretary

15 considers appropriate.

16 (4) IMPLEMENTATION.—The Alliance shall not

17 implement a proposed budget until the expiration of

18 60 days after submitting the proposed budget to the

19 Secretary.

20 (f) RECORDS; AUDITS.—

21 (1) RECORDS.—The Alliance shall—

22 (A) keep records that clearly reflect all of

23 the acts and transactions of the Alliance; and

24 (B) make the records available to the pub25 lic.
19

S 348 RFH

1 (2) AUDITS.—

2 (A) IN GENERAL.—The records of the Alli3 ance (including fee assessment reports and ap4 plications for refunds under section 107(b)(4))

5 shall be audited by a certified public accountant

6 at least once each year and at such other times

7 as the Alliance may designate.

8 (B) AVAILABILITY OF AUDIT REPORTS.—

9 Copies of each audit report shall be provided to

10 the Secretary, the members of the Alliance, and

11 the qualified industry organization, and, on re12 quest, to other members of the oilheat industry.

13 (C) POLICIES AND PROCEDURES.—

14 (i) IN GENERAL.—The Alliance shall

15 establish policies and procedures for audit16 ing compliance with this title.

17 (ii) CONFORMITY WITH GAAP.—The

18 policies and procedures established under

19 clause (i) shall conform with generally

20 accepted accounting principles.

21 (g) PUBLIC ACCESS TO ALLIANCE PROCEEDINGS.—

22 (1) PUBLIC NOTICE.—The Alliance shall give at

23 least 30 days’ public notice of each meeting of the

24 Alliance.
20

S 348 RFH

1 (2) MEETINGS OPEN TO THE PUBLIC.—Each

2 meeting of the Alliance shall be open to the public.

3 (3) MINUTES.—The minutes of each meeting of

4 the Alliance shall be made available to and readily

5 accessible by the public.

6 (h) ANNUAL REPORT.—Each year the Alliance shall

7 prepare and make publicly available a report that—

8 (1) includes a description of all programs,

9 projects, and contracts and other agreements under10 taken by the Alliance during the previous year and

11 those planned for the current year; and

12 (2) details the allocation of Alliance resources

13 for each such program and project.

14 SEC. 107. ASSESSMENTS.

15 (a) RATE.—The assessment rate shall be equal to

16 two-tenths-cent per gallon of No. 1 distillate and No. 2

17 dyed distillate.

18 (b) COLLECTION RULES.—

19 (1) COLLECTION AT POINT OF SALE.—The as20 sessment shall be collected at the point of sale of

21 No. 1 distillate and No. 2 dyed distillate by a whole22 sale distributor to a person other than a wholesale

23 distributor, including a sale made pursuant to an

24 exchange.
21

S 348 RFH

1 (2) RESPONSIBILITY FOR PAYMENT.—A whole2 sale distributor—

3 (A) shall be responsible for payment of an

4 assessment to the Alliance on a quarterly basis;

5 and

6 (B) shall provide to the Alliance certifi7 cation of the volume of fuel sold.

8 (3) NO OWNERSHIP INTEREST.—A person that

9 has no ownership interest in No. 1 distillate or No.

10 2 dyed distillate shall not be responsible for payment

11 of an assessment under this section.

12 (4) FAILURE TO RECEIVE PAYMENT.—

13 (A) REFUND.—A wholesale distributor

14 that does not receive payments from a pur15 chaser for No. 1 distillate or No. 2 dyed dis16 tillate within 1 year of the date of sale may

17 apply for a refund from the Alliance of the as18 sessment paid.

19 (B) AMOUNT.—The amount of a refund

20 shall not exceed the amount of the assessment

21 levied on the No. 1 distillate or No. 2 dyed dis22 tillate for which payment was not received.

23 (5) IMPORTATION AFTER POINT OF SALE.—The

24 owner of No. 1 distillate or No. 2 dyed distillate im25 ported after the point of sale—
22

S 348 RFH

1 (A) shall be responsible for payment of the

2 assessment to the Alliance at the point at which

3 the product enters the United States; and

4 (B) shall provide to the Alliance certifi5 cation of the volume of fuel imported.

6 (6) LATE PAYMENT CHARGE.—The Alliance

7 may establish a late payment charge and rate of in8 terest to be imposed on any person who fails to

9 remit or pay to the Alliance any amount due under

10 this title.

11 (7) ALTERNATIVE COLLECTION RULES.—The

12 Alliance may establish, or approve a request of the

13 oilheat industry in a State for, an alternative means

14 of collecting the assessment if another means is de15 termined to be more efficient or more effective.

16 (c) SALE FOR USE OTHER THAN AS OILHEAT.—No.

17 1 distillate and No. 2 dyed distillate sold for uses other

18 than as oilheat are excluded from the assessment.

19 (d) INVESTMENT OF FUNDS.—Pending disbursement

20 under a program, project, or contract or other agreement

21 the Alliance may invest funds collected through assess22 ments, and any other funds received by the Alliance,

23 only—

24 (1) in obligations of the United States or any

25 agency of the United States;
23

S 348 RFH

1 (2) in general obligations of any State or any

2 political subdivision of a State;

3 (3) in any interest-bearing account or certifi4 cate of deposit of a bank that is a member of the

5 Federal Reserve System; or

6 (4) in obligations fully guaranteed as to prin7 cipal and interest by the United States.

8 (e) STATE, LOCAL, AND REGIONAL PROGRAMS.—

9 (1) COORDINATION.—The Alliance shall estab10 lish a program coordinating the operation of the Al11 liance with the operator of any similar State, local,

12 or regional program created under State law (includ13 ing a regulation), or similar entity.

14 (2) FUNDS MADE AVAILABLE TO QUALIFIED

15 STATE ASSOCIATIONS.—

16 (A) IN GENERAL.—

17 (i) BASE AMOUNT.—The Alliance

18 shall make available to the qualified State

19 association of each State an amount equal

20 to 15 percent of the amount of assess21 ments collected in the State.

22 (ii) ADDITIONAL AMOUNT.—

23 (I) IN GENERAL.—A qualified

24 State association may request that the

25 Alliance provide to the association any
24

S 348 RFH

1 portion of the remaining 85 percent of

2 the amount of assessments collected

3 in the State.

4 (II) REQUEST REQUIREMENTS.—

5 A request under this clause shall—

6 (aa) specify the amount of

7 funds requested;

8 (bb) describe in detail the

9 specific uses for which the re10 quested funds are sought;

11 (cc) include a commitment

12 to comply with this title in using

13 the requested funds; and

14 (dd) be made publicly avail15 able.

16 (III) DIRECT BENEFIT.—The Al17 liance shall not provide any funds in

18 response to a request under this

19 clause unless the Alliance determines

20 that the funds will be used to directly

21 benefit the oilheat industry.

22 (IV) MONITORING; TERMS, CON23 DITIONS, AND REPORTING REQUIRE24 MENTS.—The Alliance shall—
25

S 348 RFH

1 (aa) monitor the use of

2 funds provided under this clause;

3 and

4 (bb) impose whatever terms,

5 conditions, and reporting require6 ments that the Alliance considers

7 necessary to ensure compliance

8 with this title.

9 SEC. 108. MARKET SURVEY AND CONSUMER PROTECTION.

10 (a) PRICE ANALYSIS.—Beginning 2 years after es11 tablishment of the Alliance and annually thereafter, the

12 Secretary of Commerce, using only data provided by the

13 Energy Information Administration and other public

14 sources, shall prepare and make available to the Congress,

15 the Alliance, the Secretary of Energy, and the public, an

16 analysis of changes in the price of oilheat relative to other

17 energy sources. The oilheat price analysis shall compare

18 indexed changes in the price of consumer grade oilheat

19 to a composite of indexed changes in the price of residen20 tial electricity, residential natural gas, and propane on an

21 annual national average basis. For purposes of indexing

22 changes in oilheat, residential electricity, residential nat23 ural gas, and propane prices, the Secretary of Commerce

24 shall use a 5-year rolling average price beginning with the

25 year 4 years prior to the establishment of the Alliance.
26

S 348 RFH

1 (b) AUTHORITY TO RESTRICT ACTIVITIES.—If in any

2 year the 5-year average price composite index of consumer

3 grade oilheat exceeds the 5-year rolling average price com4 posite index of residential electricity, residential natural

5 gas, and propane in an amount greater than 10.1 percent,

6 the activities of the Alliance shall be restricted to research

7 and development, training, and safety matters. The Alli8 ance shall inform the Secretary of Energy and the Con9 gress of any restriction of activities under this subsection.

10 Upon expiration of 180 days after the beginning of any

11 such restriction of activities, the Secretary of Commerce

12 shall again conduct the oilheat price analysis described in

13 subsection (a). Activities of the Alliance shall continue to

14 be restricted under this subsection until the price index

15 excess is 10.1 percent or less.

16 SEC. 109. COMPLIANCE.

17 (a) IN GENERAL.—The Alliance may bring a civil ac18 tion in United States district court to compel payment of

19 an assessment under section 107.

20 (b) COSTS.—A successful action for compliance under

21 this section may also require payment by the defendant

22 of the costs incurred by the Alliance in bringing the action.

23 SEC. 110. LOBBYING RESTRICTIONS.

24 No funds derived from assessments under section 107

25 collected by the Alliance shall be used to influence legisla-
27

S 348 RFH

1 tion or elections, except that the Alliance may use such

2 funds to formulate and submit to the Secretary rec3 ommendations for amendments to this title or other laws

4 that would further the purposes of this title.

5 SEC. 111. DISCLOSURE.

6 Any consumer education activity undertaken with

7 funds provided by the Alliance shall include a statement

8 that the activities were supported, in whole or in part, by

9 the Alliance.

10 SEC. 112. VIOLATIONS.

11 (a) PROHIBITION.—It shall be unlawful for any per12 son to conduct a consumer education activity, undertaken

13 with funds derived from assessments collected by the Alli14 ance under section 107, that includes—

15 (1) a reference to a private brand name;

16 (2) a false or unwarranted claim on behalf of

17 oilheat or related products; or

18 (3) a reference with respect to the attributes or

19 use of any competing product.

20 (b) COMPLAINTS.—

21 (1) IN GENERAL.—A public utility that is ag22 grieved by a violation described in subsection (a)

23 may file a complaint with the Alliance.

24 (2) TRANSMITTAL TO QUALIFIED STATE ASSO25 CIATION.—A complaint shall be transmitted concur-
28

S 348 RFH

1 rently to any qualified State association undertaking

2 the consumer education activity with respect to

3 which the complaint is made.

4 (3) CESSATION OF ACTIVITIES.—On receipt of

5 a complaint under this subsection, the Alliance, and

6 any qualified State association undertaking the con7 sumer education activity with respect to which the

8 complaint is made, shall cease that consumer edu9 cation activity until—

10 (A) the complaint is withdrawn; or

11 (B) a court determines that the conduct of

12 the activity complained of does not constitute a

13 violation of subsection (a).

14 (c) RESOLUTION BY PARTIES.—

15 (1) IN GENERAL.—Not later than 10 days after

16 a complaint is filed and transmitted under sub17 section (b), the complaining party, the Alliance, and

18 any qualified State association undertaking the con19 sumer education activity with respect to which the

20 complaint is made shall meet to attempt to resolve

21 the complaint.

22 (2) WITHDRAWAL OF COMPLAINT.—If the

23 issues in dispute are resolved in those discussions,

24 the complaining party shall withdraw its complaint.

25 (d) JUDICIAL REVIEW.—
29

S 348 RFH

1 (1) IN GENERAL.—A public utility filing a com2 plaint under this section, the Alliance, a qualified

3 State association undertaking the consumer edu4 cation activity with respect to which a complaint

5 under this section is made, or any person aggrieved

6 by a violation of subsection (a) may seek appropriate

7 relief in United States district court.

8 (2) RELIEF.—A public utility filing a complaint

9 under this section shall be entitled to temporary and

10 injunctive relief enjoining the consumer education

11 activity with respect to which a complaint under this

12 section is made until—

13 (A) the complaint is withdrawn; or

14 (B) the court has determined that the con15 sumer education activity complained of does not

16 constitute a violation of subsection (a).

17 (e) ATTORNEY’S FEES.—

18 (1) MERITORIOUS CASE.—In a case in Federal

19 court in which the court grants a public utility in20 junctive relief under subsection (d), the public utility

21 shall be entitled to recover an attorney’s fee from

22 the Alliance and any qualified State association un23 dertaking the consumer education activity with re24 spect to which a complaint under this section is

25 made.
30

S 348 RFH

1 (2) NONMERITORIOUS CASE.—In any case

2 under subsection (d) in which the court determines

3 a complaint under subsection (b) to be frivolous and

4 without merit, the prevailing party shall be entitled

5 to recover an attorney’s fee.

6 (f) SAVINGS CLAUSE.—Nothing in this section shall

7 limit causes of action brought under any other law.

8 SEC. 113. SUNSET.

9 This title shall cease to be effective as of the date

10 that is 4 years after the date on which the Alliance is es11 tablished.

12 TITLE II—SMALL HYDRO13 ELECTRIC PROJECTS IN

14 ALASKA

15 SEC. 201. ALASKA STATE JURISDICTION OVER SMALL HY16 DROELECTRIC PROJECTS.

17 Park I of the Federal Power Act (16 U.S.C. 792 et

18 seq.) is amended by adding at the end the following:

19 ‘‘SEC. 32. ALASKA STATE JURISDICTION OVER SMALL HY20 DROELECTRIC PROJECTS.

21 ‘‘(a) DISCONTINUANCE OF REGULATION BY THE

22 COMMISSION.—Notwithstanding sections 4(e) and 23(b),

23 the Commission shall discontinue exercising licensing and

24 regulatory authority under this Park over qualifying

25 project works in the State of Alaska, effective on the date
31

S 348 RFH

1 on which the Commission certifies that the State of Alaska

2 has in place a regulatory program for water-power devel3 opment that—

4 ‘‘(1) protects the public interest, the purposes

5 listed in paragraph (2), and the environment to the

6 same extent provided by licensing and regulation by

7 the Commission under this part and other applicable

8 Federal laws, including the Endangered Species Act

9 (16 U.S.C. 1531 et seq.) and the Fish and Wildlife

10 Coordination Act (16 U.S.C. 661 et seq.);

11 ‘‘(2) gives equal consideration to the purposes

12 of—

13 ‘‘(A) energy conservation;

14 ‘‘(B) the protection, mitigation of damage

15 to, and enhancement of, fish and wildlife (in16 cluding related spawning grounds and habitat);

17 ‘‘(C) the protection of recreational oppor18 tunities;

19 ‘‘(D) the preservation of other aspects of

20 environmental quality;

21 ‘‘(E) the interests of Alaska Natives; and

22 ‘‘(F) other beneficial public uses, including

23 irrigation, flood control, water supply, and navi24 gation; and
32

S 348 RFH

1 ‘‘(3) requires, as a condition of a license for any

2 project works—

3 ‘‘(A) the construction, maintenance, and

4 operation by a licensee at its own expense of

5 such lights and signals as may be directed by

6 the Secretary of the Department in which the

7 Coast Guard is operating, and such fishways as

8 may be prescribed by the Secretary of the Inte9 rior or the Secretary of Commerce, as appro10 priate;

11 ‘‘(B) the operation of any navigation facili12 ties which may be constructed as part of any

13 project to be controlled at all times by such rea14 sonable rules and regulations as may be made

15 by the Secretary of the Army; and

16 ‘‘(C) conditions for the protection, mitiga17 tion, and enhancement of fish and wildlife

18 based on recommendations received pursuant to

19 the Fish and Wildlife Coordination Act (16

20 U.S.C. 661 et seq.) from the National Marine

21 Fisheries Service, the United States Fish and

22 Wildlife Service, and State fish and wildlife

23 agencies.
33

S 348 RFH

1 ‘‘(b) DEFINITION OF ‘QUALIFYING PROJECT

2 WORKS’.—For purposes of this section, the term ‘quali3 fying project works’ means project works—

4 ‘‘(1) that are not part of a project licensed

5 under this Part or exempted from licensing under

6 this part or section 405 of the Public Utility Regu7 latory Policies Act of 1978 prior to the date of en8 actment of this section;

9 ‘‘(2) for which a preliminary permit, a license

10 application, or an application for an exemption from

11 licensing has not been accepted for filing by the

12 Commission prior to the date of enactment of sub13 section (c) (unless such application is withdrawn at

14 the election of the applicant);

15 ‘‘(3) that are part of a project that has a power

16 production capacity of 5,000 kilowatts or less;

17 ‘‘(4) that are located entirely within the bound18 aries of the State of Alaska; and

19 ‘‘(5) that are not located in whole or in part on

20 any Indian reservation, a conservation system unit

21 (as defined in section 102(4) of the Alaska National

22 Interest Lands Conservation Act (16 U.S.C.

23 3102(4))), or segment of a river designated for

24 study for addition to the Wild and Scenic Rivers

25 System.
34

S 348 RFH

1 ‘‘(c) ELECTION OF STATE LICENSING.—In the case

2 of nonqualifying project works that would be a qualifying

3 project works but for the fact that the project has been

4 licensed (or exempted from licensing) by the Commission

5 prior to the enactment of this section, the licensee of such

6 project may in its discretion elect to make the project sub7 ject to licensing and regulation by the State of Alaska

8 under this section.

9 ‘‘(d) PROJECT WORKS ON FEDERAL LANDS.—With

10 respect to projects located in whole or in part on a reserva11 tion, a conservation system unit, or the public lands, a

12 State license or exemption from licensing shall be subject

13 to—

14 ‘‘(1) the approval of the Secretary having juris15 diction over such lands; and

16 ‘‘(2) such conditions as the Secretary may pre17 scribe.

18 ‘‘(e) CONSULTATION WITH AFFECTED AGENCIES.—

19 The Commission shall consult with the Secretary of the

20 Interior, the Secretary of Agriculture, and the Secretary

21 of Commerce before certifying the State of Alaska’s regu22 latory program.

23 ‘‘(f) APPLICATION OF FEDERAL LAWS.—Nothing in

24 this section shall preempt the application of Federal envi-
35

S 348 RFH

1 ronmental, natural resources, or cultural resources protec2 tion laws according to their terms.

3 ‘‘(g) OVERSIGHT BY THE COMMISSION.—The State

4 of Alaska shall notify the Commission not later than 30

5 days after making any significant modification to its regu6 latory program. The Commission shall periodically review

7 the State’s program to ensure compliance with the provi8 sions of this section.

9 ‘‘(h) RESUMPTION OF COMMISSION AUTHORITY.—

10 Notwithstanding subsection (a), the Commission shall re11 assert its licensing and regulatory authority under this

12 part if the Commission finds that the State of Alaska has

13 not complied with one or more of the requirements of this

14 section.

15 ‘‘(i) DETERMINATION BY THE COMMISSION.—

16 ‘‘(1) Upon application by the Governor of the

17 State of Alaska, the Commission shall within 30

18 days commence a review of the State of Alaska’s

19 regulatory program for water-power development to

20 determine whether it complies with the requirements

21 of subsection (a).

22 ‘‘(2) The Commission’s review required by

23 paragraph (1) shall be completed within one year of

24 initiation, and the Commission shall within 30 days

25 thereafter issue a final order determining whether or
36

S 348 RFH

1 not the State of Alaska’s regulatory program for

2 water-power development complies with the require3 ments of subsection (a).

4 ‘‘(3) If the Commission fails to issue a final

5 order in accordance with paragraph (2), the State of

6 Alaska’s regulatory program for water-power devel7 opment shall be deemed to be in compliance with

8 subsection (a).

9 TITLE III—HYDROELECTRIC

10 PROJECTS IN HAWAII

11 SEC. 301. PROJECTS ON FRESH WATERS IN THE STATE OF

12 HAWAII.

13 Section 4(e) of the Federal Power Act (16 U.S.C.

14 797(e)) is amended in the first sentence by striking ‘‘sev15 eral States, or upon’’ and inserting ‘‘several States (except

16 fresh waters in the State of Hawaii, unless a license would

17 be required under section 23), or upon’’.

18 TITLE IV—ARROWROCK DAM

19 HYDROELECTRIC PROJECT

20 SEC. 401. EXTENSION OF TIME FOR FEDERAL ENERGY REG21 ULATORY COMMISSION PROJECT.

22 Notwithstanding the time period specified in section

23 13 of the Federal Power Act (16 U.S.C. 806) that would

24 otherwise apply to the Federal Energy Regulatory Com25 mission project numbered 4656, the Commission may, at
37

S 348 RFH

1 the request of the licensee for the project and after reason2 able notice, in accordance with the good faith, due dili3 gence, and public interest requirements of that section and

4 the Commission’s procedures under that section, extend

5 until March 26, 2005, the time period during which the

6 licensee is required to commence construction of the

7 project.

Passed the Senate November 19, 1999.

Attest: GARY SISCO,

Secretary.