106 STAT. 2906 PUBLIC LAW 102-486—OCT. 24, 1992 eral Energy Regulatory Commission to be engaged directly, or indirectly through one or more affiliates as defined in section 2(a)(llXB), and exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale. No person shall be deemed to be an exempt wholesale generator under this section unless such person has applied to the Federal Energy Regulatory Commission for a determination under this paragraph. A person applying in good faith for such a determination shall be deemed an exempt wholesale generator under this section, with all of the exemptions provided by this section, until the Federal Energy Reg^atory Commission makes such determination. The Federal Energy Regulatory Commission shall make such determination within 60 da^^s of its receipt of such application and shall notify the Commission whenever a determination is made under this paragraph that any person Regulations. jg an exempt wholesale generator. Not later than 12 months after the date of enactment of this section, the Federal Energy Regulatory Commission shall promulgate rules implementing the provisions of this paragraph. Applications for determination filea after the effective date of such rules shall be subject thereto. "(2) ELIGIBLE FACILITY. —The term 'eligible facility* means a facility, wherever located, which is either— "(A) used for the generation of electric energy exclusively for sale at wholesale, or "(B) used for the generation of electric energy and leased to one or more public utility companies; Provided, That any such lease shall be treated as a sale of electric energy at wholesale for purposes of sections 205 and 206 of the Federal Power Act. Such term shall not include any facility for which consent is required under subsection (c) Lf such consent has not been obtained. Such term includes interconnecting transmission facilities necessary to effect a sale of electric energy at wholesale. For purposes of this paragraph, the term 'facility may include a portion of a facility sumect to the limitations of subsection (d) and shall include a facility the construction of which has not been commenced or completed.
- (3) SALE OF ELECTRIC ENERGY AT WHOLESALE. —The term
'sale of electric energy at wholesale' shall have the same meaning as provided in section 201(d) of the Federal Power Act (16 U.S.C. 824(d)). "(4) RETAIL RATES AND CHARGES. —The term 'retail rates and charges' means rates and charges for the sale of electric energy directly to consumers. "(b) FOREIGN RETAIL SALES. —Notwithstanding paragraphs (1) and (2) of subsection (a), retail sales of electric energy produced by a facility located in a foreign country shall not prevent such facility from being an eligible facility, or prevent a person owning or operating, or ooth owning and operating, such facility from being an exempt wholesale generator if none of the electric energy generated by such facility is sold to consumers in the United States, "(c) STATE CONSENT FOR EXISTING RATE-BASED FACILITIES. — If a rate or charge for, or in connection with, the construction of a facility, or for electric energy produced by a facility (other than any portion of a rate or charge which represents recovery
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