Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, 19814-19823 [06-3631]
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19814
Federal Register / Vol. 71, No. 74 / Tuesday, April 18, 2006 / Rules and Regulations
regulation (1) is not a ‘‘significant
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under Department of
Transportation (DOT) Regulatory
Policies and Procedures (44 FR 11034,
February 26, 1979); and (3) if
promulgated, will not have a significant
economic impact, positive or negative,
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
This rulemaking is promulgated
under the authority described in
Subtitle VII, Part A, Subpart I, Section
40103. Under that section, the FAA is
charged with prescribing regulations to
assign the use of the airspace necessary
to ensure the safety of aircraft and the
efficient use of airspace. This regulation
is within the scope of that authority
since it contains aircraft executing
instrumental approach procedures to
Mason City Municipal Airport, IA.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
Accordingly, the Federal Aviation
Administration amends 14 CFR part 71
as follows:
I
PART 71—DESIGNATION OF CLASS A,
CLASS B, CLASS C, CLASS D, AND
CLASS E AIRSPACE AREAS;
AIRWAYS; ROUTES; AND REPORTING
POINTS
1. The authority citation for part 71
continues to read as follows:
I
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of Federal Aviation
Administration Order 7400.9N, dated
September 1, 2005, and effective
September 16, 2005, is amended as
follows:
I
Paragraph 6002 Class E Airspace
Designated as Surface Areas.
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*
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*
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ACE IA E2 Mason City, IA
Mason City Municipal Airport, IA
(Lat. 43°09′28″ N., long. 93°19′53″ W.)
Within a 4.5-mile radius of Mason City
Municipal Airport.
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*
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Paragraph 6005 Class E airspace areas
extending upward from 700 feet or more
above the surface of the earth.
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ACE IA E5 Mason City, IA
Mason City Municipal Airport, IA
(Lat. 43°09′28″ N., long. 93°19′53″ W.)
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Mason City VORTAC
(Lat. 43°05′41″ N., long. 93°19′47″ W.)
That airspace extending upward from 700
feet above the surface within a 7-mile radius
of Mason City Municipal Airport; and within
3 miles each side of the 002° radial of the
Mason City VORTAC extending from the 7mile radius to 21 miles north of the
VORTAC; and within 3 miles each side of the
182° radial of the Mason City VORTAC
extending from the 7-mile radius to 18.5
miles south of the VORTAC.
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BILLING CODE 4910–13–M
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA–2006–23896; Airspace
Docket No. 06–ACE–2]
Modification of Class E Airspace; Scott
City, KS.
Federal Aviation
Administration (FAA), DOT.
ACTION: Direct final rule; confirmation of
effective date.
AGENCY:
SUMMARY: This document confirms the
effective date of the direct final rule
which revises Class E airspace at Scott
City, KS.
DATES: Effective Date: 0901 UTC, June 8,
2006.
FOR FURTHER INFORMATION CONTACT:
Brenda Mumper, Air Traffic Division,
Airspace Branch, ACE–520A, DOT
Regional Headquarters Building, Federal
Aviation Administration, 901 Locust,
Kansas City, MO 64106; telephone:
(816) 329–2524.
SUPPLEMENTARY INFORMATION: The FAA
published this direct final rule with a
request for comments in the Federal
Register on March 1, 2006 (71 FR
10417). The FAA uses the direct final
rulemaking procedure for a noncontroversial rule where the FAA
believes that there will be no adverse
public comment. This direct final rule
advised the public that no adverse
comments were anticipated, and that
unless a written adverse comment, or a
written notice of intent to submit such
an adverse comment, were received
within the comment period, the
regulation would become effective on
June 8, 2006. No adverse comments
were received, and thus this notice
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Issued in Kansas City, MO on April 7,
2006.
Donna R. McCord,
Acting Area Director, Western Flight Services
Operations.
[FR Doc. 06–3661 Filed 4–17–06; 8:45 am]
BILLING CODE 4910–13–M
DEPARTMENT OF ENERGY
Issued in Kansas City, MO, on April 7,
2006.
Donna R. McCord,
Acting Area Director, Western Flight Services
Operations.
[FR Doc. 06–3660 Filed 4–17–06; 8:45 am]
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confirms that this direct final rule will
become effective on that date.
Federal Energy Regulatory
Commission
18 CFR Part 39
[Docket No. RM05–30–001; Order No. 672–
A]
Rules Concerning Certification of the
Electric Reliability Organization; and
Procedures for the Establishment,
Approval, and Enforcement of Electric
Reliability Standards
Issued March 30, 2006.
Federal Energy Regulatory
Commission, DOE.
ACTION: Final rule; order on rehearing.
AGENCY:
SUMMARY: The Commission grants
rehearing on one matter, clarifies certain
provisions and otherwise reaffirms its
determinations in Order No. 672. 71 FR
8662 (February 17, 2006). Order No. 672
implements Subtitle A (Reliability
Standards) of the Electricity
Modernization Act of 2005, which is
Title XII of the Energy Policy Act of
2005, by establishing criteria that an
entity must satisfy to qualify to be the
Electric Reliability Organization (ERO).
The Commission will certify one ERO as
the organization that will develop and
enforce Reliability Standards for the
Bulk-Power System in the United States.
The Final Rule also establishes
procedures under which the ERO may
propose new or modified Reliability
Standards for Commission review and
procedures governing an enforcement
action for the violation of a Reliability
Standard.
DATES: This final rule and order on
rehearing will become effective May 18,
2006.
FOR FURTHER INFORMATION CONTACT:
Kumar Agarwal (Technical
Information), Office of Energy Markets
and Reliability, Division of Policy
Analysis and Rulemaking, Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC
20426, (202) 502–8570.
Michelle Veloso (Technical
Information), Office of Energy Markets
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and Reliability, Division of Policy
Analysis and Rulemaking, Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC
20426, (202) 502–6473.
Jonathan First (Legal Information),
Office of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC
20426, (202) 502–8529.
Paul Silverman (Legal Information),
Office of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC
20426, (202) 502–8683.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Joseph T.
Kelliher, Chairman; Nora Mead
Brownell, and Suedeen G. Kelly.
Order on Rehearing
I. Introduction and Summary
1. On February 3, 2006, the
Commission issued a Final Rule (Order
No. 672),1 implementing Subtitle A
(Reliability Standards) of the Electricity
Modernization Act of 2005, which is
Title XII of the Energy Policy Act of
2005.2 Order No. 672 establishes criteria
that an entity must satisfy to qualify to
be the Electric Reliability Organization
(ERO). The Commission will certify one
organization that will develop and
enforce Reliability Standards for the
Bulk-Power System in the United
States.3 The Final Rule also establishes
procedures under which the ERO may
propose new or modified Reliability
Standards for Commission review and
procedures governing an enforcement
action for the violation of a Reliability
Standard.
A. Summary of Order No. 672 4
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2. Order No. 672 provides that the
Commission will, after notice and
opportunity for comment, certify one
applicant as the ERO. The Final Rule
sets forth the criteria that an ERO
applicant must satisfy to qualify as the
ERO, including the ability to develop
and enforce Reliability Standards. To
ensure that the ERO complies with the
certification criteria on an ongoing
basis, the Final Rule requires the ERO
to undergo a performance assessment
1 Rules Concerning Certification of the Electric
Reliability Organization; and Procedures for the
Establishment, Approval, and Enforcement of
Electric Reliability Standards, Order No. 672, 71 FR
8662 (Feb. 17, 2006), FERC Stats. & Regs.
Regulations Preambles ¶ 31,204 (2006).
2 Pub. L. 109–58, Title XII, Subtitle A, 119 Stat.
594, 941 to be codified at 16 U.S.C. 824o (2000).
3 Terms defined in Order No. 672 are capitalized
in this order.
4 A comprehensive summary of the Final Rule is
provided in Order No. 672 at P 20–58.
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three years after certification and every
five years thereafter.
3. Order No. 672 provides that the
ERO is responsible for developing
proposed Reliability Standards and
must submit each proposed Reliability
Standard to the Commission for
approval. Only a Reliability Standard
approved by the Commission is
enforceable under section 215 of the
Federal Power Act (FPA). The
Commission may approve a proposed
Reliability Standard (or modification to
a Reliability Standard) if it determines
that it is just, reasonable, not unduly
discriminatory or preferential, and in
the public interest and satisfies other
requirements set out in Order No. 672.
In its review of a proposed Reliability
Standard, the Commission will give due
weight to the technical expertise of the
ERO or a Regional Entity organized on
an Interconnection-wide basis with
respect to a proposed Reliability
Standard to be applicable within that
Interconnection. However, the
Commission will not defer to the ERO
or a Regional Entity with respect to a
Reliability Standard’s effect on
competition.
4. The ERO may delegate its
enforcement responsibilities to a
Regional Entity. Delegation is effective
only after the Commission approves the
delegation agreement. A Regional Entity
may also propose a Reliability Standard
to the ERO for submission to the
Commission for approval. This
Reliability Standard may be either for
application to the entire interconnected
Bulk-Power System or for application
only within its own region.
5. The ERO or a Regional Entity must
monitor compliance with the Reliability
Standards. They will conduct
investigations of alleged violations of
Reliability Standards. The ERO or
Regional Entity may impose a nonmonetary or monetary penalty on a user,
owner or operator for violating a
Reliability Standard, subject to review
by the Commission.
B. Procedural Discussion
6. The following parties have filed
timely requests for rehearing or for
clarification of Order No. 672: Edison
Electric Institute (EEI), ISO/RTO
Council, National Rural Electric
Cooperative Association (NRECA), New
York Independent System Operator, Inc.
(New York ISO), New York State
Reliability Council (NYSRC), Southern
California Edison Company (SoCal Ed),
and Western Governors’ Association
(Western Governors) filing jointly with
the Committee on Regional Electric
Power Cooperation (CREPC). In
addition, the California Public Utilities
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Commission (CPUC) submitted a letter
stating its full support for, and request
to be associated with, the filing of
Western Governors and CREPC.
II. Discussion
A. Definitions, Jurisdiction, and
Applicability
7. Order No. 672 adopted verbatim the
definitions set forth in new section
215(a) of the FPA, including the
definitions of ‘‘Bulk-Power System,’’
‘‘Reliable Operation’’ and ‘‘Reliability
Standard.’’ 5 The Commission, however,
declined proposals to define the term
‘‘User of the Bulk-Power System,’’
concluding that:
The precise scope of the term ‘‘User of the
Bulk-Power System,’’ and thus the extent of
persons subject to the Reliability Standards,
would be best considered in the context of
our review of those Standards, taking into
account the views of the ERO and others.
Therefore, until we have proposed Reliability
Standards before us, we will reserve further
judgment on whether a definition of ‘‘User of
the Bulk-Power System’’ is appropriate or
whether the decision of who is a ‘‘User of the
Bulk-Power System’’ should be made on a
case-by-case basis.6
8. Order No. 672 also does not
formally define the term ‘‘end user.’’ 7
The Commission explained that there
was no need to adopt a formal definition
because the term end user is commonly
used in the electric power industry and
is generally understood to mean a retail
consumer of electricity. However, Order
No. 672 does not preclude an ERO
applicant from proposing a definition,
subject to Commission approval, if the
applicant believes additional definition
is needed as part of its application for
explaining its funding mechanism or for
another reason.
9. Section 39.2 of the regulations
codifies the jurisdictional provisions
found in section 215(b)(1) of the FPA.
Those provisions state, among other
things, that ‘‘[a]ll users, owners and
operators of the Bulk-Power System
shall comply with Reliability Standards
that take effect under this section.’’
Further, consistent with the statute,
Order No. 672 explicitly makes the
Reliability Standards applicable to all
users, owners, and operators of the
Bulk-Power System.8
Request for Rehearing
10. SoCal Ed maintains that the
Commission erred in failing to define or
further define the terms ‘‘Bulk-Power
System,’’ ‘‘End User,’’ ‘‘Reliable
5 Order
No. 672 at P 70 and 18 CFR 39.1.
at P 99.
7 Id. at P 101.
8 Id. at P 112.
6 Id.
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Operation,’’ ‘‘Reliability Standard,’’ and
‘‘User of the Bulk Power System.’’ SoCal
Ed argues that failure to establish or
refine these definitions would be
inconsistent with due process because
the Commission would have failed to
establish with reasonable clarity and
certainty what is meant by the rules it
has promulgated and what is required of
regulated entities.9 SoCal Ed further
argues that the Commission has
improperly delegated the task of
defining some of these terms to others.
11. EEI states that, in response to
rulemaking comments that small
entities such as distribution-only
utilities should not be ‘‘targeted,’’ Order
No. 672 explains that ‘‘[s]ection 215 of
the FPA provides the Commission with
jurisdiction over all users, owners and
operators of the Bulk-Power System for
purposes of ensuring compliance with
the Reliability Standards. Until the
Commission has approved a specific
Reliability Standard that impacts a
particular type/class of users, it is
premature to consider’’ commenters’
concerns.10 Based on this language, EEI
asks the Commission to clarify that
small entities are not exempt from the
statutory obligation to comply with
applicable Reliability Standards.
Commission Conclusion
12. Order No. 672 adopted the
statutory definitions of the terms ‘‘Bulk
Power System,’’ ‘‘Reliable Operation’’
and ‘‘Reliability Standard.’’ 11 These
definitions need no further clarification
at this time. As we explained in Order
No. 672, the Commission believes it is
appropriate to consider the issue of
scope about which SoCal Ed expresses
concern, in the context of specific
proposed Reliability Standards.12 Since
proposed Reliability Standards are not
enforceable until approved by the
Commission, no harm will result from
deferring judgment here and allowing
SoCal Ed to renew any specific concerns
regarding applicability in response to
the filing of proposed Reliability
Standards. Accordingly, SoCal Ed’s
request for rehearing is denied on this
issue.
13. Order No. 672 does not formally
define ‘‘End User or ‘‘User of the BulkPower System.’’ SoCal Ed acknowledges
that the Commission has deferred the
question of the proper definition of the
terms ‘‘End User’’ and ‘‘User of the Bulk
Power System’’ until a later date.
Therefore, SoCal Ed’s claims are
premature. The Commission recognizes
9 SoCal
Ed at 4–10.
No. 672 at P 866.
11 Id. at P 70.
12 Id. at P 71–73.
10 Order
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in Order No. 672 the common industry
use of the term ‘‘end user’’ as referring
generally to a retail consumer of
electricity and invites an ERO applicant
to provide additional definition if
needed for explaining its funding
mechanism.13 Likewise, in Order No.
672, the Commission states that it will
consider the precise scope of the term
‘‘User of the Bulk Power System’’ on a
case-by-case basis in the context of its
review of a Reliability Standard, as this
would permit it to take ‘‘into account
the views of the ERO and others.’’ 14
Any formal definition proposed in an
ERO application would be subject to
Commission approval. Thus, we reject
SoCal Ed’s argument that we are
improperly delegating the definition of
certain terms to others.15
14. Order No. 672 addresses EEI’s
request for clarification regarding
categorical exemptions from applicable
Reliability Standards. As noted by EEI,
the Final Rule requires that all entities
subject to the Commission’s reliability
jurisdiction, i.e., all users, owners and
operators of the Bulk Power System,
shall comply with applicable Reliability
Standards.16 While the Commission has
deferred the question of who is a ‘‘User
of the Bulk Power System,’’ it did note
in Order No. 672 that if the owner or
operator of a local distribution facility
falls within that definition, it must
comply with all relevant Reliability
Standards as a user.17 EEI acknowledges
that some Reliability Standards, by their
terms, may not be applicable to small
entities or to distribution-only entities.
It is in reviewing such terms in the
course of its review of a proposed
Reliability Standard that the
Commission will consider the scope of
a particular Reliability Standard.18
B. Electric Reliability Organization
Certification
15. Order No. 672 provides that the
Commission will, after notice and
opportunity for comment, certify one
applicant as the ERO and sets forth the
criteria that an ERO applicant must
satisfy to qualify as the ERO. The Final
Rule gives guidance to ERO applicants
regarding the content of an application
and certain functions it must undertake.
13 Id.
at P 101.
at P 99.
15 In fact, the precedent cited by SoCal Ed
supports our approach. See U.S. Telecom Ass’n v.
F.C.C., 359 F.3d 554, 568 (D.C. Cir. 2004) (stating
that ‘‘a federal agency may turn to an outside entity
for advice and policy recommendations, provided
the agency makes the final decisions itself’’).
16 Id. at P 112.
17 Id. at P 100.
18 See also, Id. at P 99 and 866.
14 Id.
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16. With regard to ERO governance,
an ERO applicant must demonstrate that
it has Rules that adequately assure its
independence from the users, owners
and operators of the Bulk-Power
System, while assuring fair stakeholder
representation in the selection of its
directors and balanced decisionmaking
in any ERO committee or subcommittee.
The Commission, however, recognized
that ‘‘there are many ways that an ERO
could provide balanced governance and
decisionmaking.’’ 19 The Commission,
therefore, did not mandate a specific
approach to ERO governance but, rather,
allowed an ERO candidate to develop a
proposal to be provided in its
application for certification consistent
with the requirements of independence
and stakeholder representation.
Request for Rehearing
17. ISO/RTO Council asserts that ISOs
and RTOs will not be fairly represented
in ERO and Regional Entity voting
procedures based on one-person, onevote. This is because a handful of ISOs
and RTOs are responsible for a large
fraction of the nation’s load but
constitute only a small percentage of the
nation’s utilities. Consequently, their
importance and unique reliability
concerns will not be fairly represented.
ISO/RTO Council states that it
previously expressed concerns that
failure of the Commission to mandate a
specific approach to ERO voting
structure could lead to the inadequate
representation of ISOs and RTOs. ISO/
RTO Council asserts that the failure to
mandate a specific approach to ERO
voting structure has already adversely
affected ISO and RTO interests, in that
the North American Electric Reliability
Council’s (NERC) draft ERO application
attempts to address this issue by placing
ISOs and RTOs into the same voting
category as Regional Entities.
Commission Conclusion
18. Order No. 672 requires that an
ERO applicant assure fair stakeholder
representation in ERO processes.20 We
agree that ISOs and RTOs, as system
operators, are stakeholders and should
be represented fairly in ERO processes.
However, we will neither require nor
forbid in our regulations any specific
representation formula. To do so would
limit the flexibility of the ERO and the
Commission to change ERO Rules over
time as needed to reflect changes in
industry organization and other
changes. We urge the ISO/RTO Council
to raise its concerns regarding ISO and
RTO representation with ERO
19 Id.
at P 152.
20 Id.
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Accordingly, we leave it to the ERO to
develop proposed Reliability Standards that
appropriately balance reliability principles
and implementation features.23
C. Reliability Standards
19. Consistent with section 215(d) of
the FPA, Order No. 672 directs the ERO
to file a proposed Reliability Standard
or modification to a Reliability Standard
with the Commission for review.21 The
Commission may approve a proposed
Reliability Standard or modification to a
Reliability Standard if it determines that
the Reliability Standard is just,
reasonable, not unduly discriminatory
or preferential, and in the public
interest. In its review, the Commission
will give due weight to the technical
expertise of the ERO or a Regional
Entity organized on an Interconnectionwide basis with respect to a Reliability
Standard to be applicable within that
Interconnection, except that the
Commission may not defer to the ERO
or a Regional Entity with respect to the
effect of a Reliability Standard on
competition.
20. Order No. 672 provides that the
Commission shall remand a Reliability
Standard that it disapproves in whole or
in part and, when remanding, may set
a deadline by which the ERO must
submit a proposed revision to the
Reliability Standard.22 The Final Rule
states that the Commission may direct
the ERO to submit a proposed
Reliability Standard that addresses a
specific matter.
Requests for Rehearing
1. Reliability Standards Development
21. In its comments on the notice of
proposed rulemaking, ISO/RTO Council
stated that a Reliability Standard
developed by the ERO should reflect the
‘‘what’’ and not the ‘‘how’’ of reliability,
i.e., that the ERO should develop a
Reliability Standard specifying ‘‘what’’
is necessary to preserve reliability and
implementation should be left to others.
In response, the Final Rule explains:
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applicants and, if necessary, with the
Commission in our notice and comment
proceeding to review ERO certification
applications.
Commission Conclusion
* * * in certain limited situations there may
be a good reason to leave implementation
practices out of a Reliability Standard. In
other situations, however, the ‘‘how’’ may be
inextricably linked to the Reliability
Standard and may need to be specified by the
ERO to ensure the enforcement of the
Reliability Standard. For some Reliability
Standards, leaving out implementation
features could: (1) Sacrifice necessary
uniformity in implementation of the
Reliability Standard; (2) create uncertainty
for the entity that has to follow the Reliability
Standard; (3) make enforcement difficult; and
(4) increase the complexity of the
Commission’s oversight and review process.
21 Id.
22 Id.
at P 38, 258.
at P 390, 408.
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22. ISO/RTO Council asks the
Commission to clarify the ERO’s role in
Reliability Standard setting and
enforcement as opposed to
implementation of Reliability
Standards. It believes the Commission
erred in allowing the ERO to develop
proposed Reliability Standards that
balance questions of reliability and
implementation on a case-by-case basis
because this gives the ERO too much
authority and blurs the lines between
standard setting—an ERO function—and
standard implementation—a system
operator function. ISO/RTO Council
argues that the ERO should focus on the
‘‘what’’ of reliability, but not the ‘‘how’’
to ensure that the same Reliability
Standards can be adopted for regions
with and without organized electricity
markets. ISO/RTO Council asserts that
more conflicts are likely to arise
between existing Reliability Standards
and ISO or RTO tariffs if the ERO adopts
detailed requirements for implementing
the Reliability Standards. It also argues
that NERC’s draft certification
application would have the ERO
perform some functions best performed
by system operators, a role for which the
ERO is unlikely to have the knowledge
or resources to carry out operational
functions effectively.
23. The Commission addressed this
adequately in Order No. 672, explaining
that, in some situations, some aspects of
the implementation of a Reliability
Standard may need to be part of the
Reliability Standard itself.24 As is public
knowledge, NERC has over 100
candidate Reliability Standards it
intends to file for approval. We continue
to believe it is more appropriate to
decide the issues raised by the ISO/RTO
Council on a case-by-case basis for each
proposed Reliability Standard than to
make a generic ruling based on general
theory. When we say we are leaving it
to the ERO to develop a proposal we
mean it do so subject to its Rules for
obtaining broad stakeholder input. If an
ISO, RTO or other entity has specific
concerns, they should be raised in the
ERO’s Reliability Standard development
process as we expect Reliability
Standards to be developed that work
effectively and can be implemented in
23 Id.
at P 260.
24 Id.
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19817
all regions.25 Accordingly, the
Commission denies the RTO/ISO
Council’s request for rehearing to
provide additional guidance to the ERO
regarding this issue.
2. Notice and Comment
24. Order No. 672 states that, when
the ERO files a proposed Reliability
Standard, the Commission will provide
notice and opportunity for comment
except in ‘‘extraordinary
circumstances.’’ 26
Request for Rehearing
25. EEI asks the Commission to clarify
that the notice and comment procedures
that will apply to its review of a
proposed Reliability Standard will
comply with the notice and comment
requirements of section 553 of the
Administrative Procedure Act (APA).27
It explains that, although section 215 of
the FPA does not state that the
Commission must provide notice and
comment when reviewing a proposed
Reliability Standard, notice and
comment is required by section 553 of
the APA. Further, EEI notes that, while
the APA does not allow an exception to
the notice and comment requirement for
‘‘extraordinary circumstances,’’ the APA
does provide an exception when an
agency for good cause finds that notice
and comment procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ 28 EEI requests
that the Commission clarify that
‘‘extraordinary circumstances’’ will be
construed to have the same meaning as
the exception provided in section
553(b)(B) of the APA.
Commission Conclusion
26. Like all federal agencies, the
Commission is obligated to comply with
the APA. Accordingly, the Commission
clarifies that any decision by the
Commission not to provide notice and
comment when reviewing a proposed
Reliability Standard will be made in
accordance with the criteria established
in section 553 of the APA.
3. No Deference on Competition
27. Consistent with section 215(d)(2)
of the FPA, Order No. 672 states that the
Commission will not defer to the ERO
or a Regional Entity with respect to the
25 See Id. at P 331 (‘‘[a] proposed Reliability
Standard should be designed to apply throughout
the interconnected North American Bulk-Power
System, to the maximum extent this is achievable
with a single Reliability Standard. The proposed
Reliability Standard * * * should take into account
* * * regional variations in market design if these
affect the proposed Reliability Standard’’).
26 Id. at P 308.
27 5 U.S.C. 553 (2000).
28 5 U.S.C. 553(b)(B) (2000).
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effect of a proposed Reliability Standard
on competition.29 The Final Rule,
however, does not adopt a generic test
to balance reliability and competition
concerns in the absence of specific facts
and, instead, states that the Commission
will evaluate the effects of a proposed
Reliability Standard on competition on
a case-by-case basis.30 Further, the Final
Rule explains that, when reviewing a
proposed Reliability Standard, the
Commission will ensure that the
proposal does not have the implicit
effect of either favoring or thwarting
bilateral or organized markets.
hsrobinson on PROD1PC68 with RULES
Request for Rehearing
28. ISO/RTO Council seeks rehearing
or clarification regarding the
Commission’s decision not to adopt a
generic test to balance reliability and
competition concerns in the absence of
specific facts. It maintains that failure to
adopt such a test ‘‘would be a legal error
because it would effectively leave the
Commission discretion to defer to the
ERO on competition questions, which is
prohibited under the FPA * * *.’’ 31
ISO/RTO Council asks the Commission
to provide clearer substantive guidance
on how it will review the impact of a
Reliability Standard on competition. It
requests the Commission to revise its
regulations to incorporate Order No. 672
Preamble language stating that a
Reliability Standard will not be allowed
to have the implicit effect of either
favoring or thwarting bilateral or
organized markets or unduly favor
individual market participants. It
further asks the Commission to specify
that any Reliability Standard that has
any effect on ISO or RTO market rules
will be subject to de novo Commission
review. In addition, the ERO should
have the burden of demonstrating that a
proposed Reliability Standard does not
affect competition.
Commission Conclusion
29. ISO/RTO Council correctly notes
that the Commission has a statutory
obligation not to defer to the ERO with
respect to the effect of a proposed
Reliability Standard or a proposed
modification to a Reliability Standard
on competition. We will not do so.
However, ISO/RTO Council has failed to
explain why dealing with this issue on
a case-by-case basis is inappropriate or
declining to revise Commission
regulations as requested is a legal error.
Case-by-case consideration is
particularly appropriate where an issue
can arise in many different forms and
factual situations. The Commission
concluded that a case-by-case approach
is appropriate here and noted that ‘‘[n]o
single definition [of competition]
appears sufficient to cover all the
relevant bases for evaluating a proposed
Reliability Standard’s effect on
competition.’’ 32 ISO/RTO Council
insists that the Commission must add to
its regulations, but does not explain
how the failure to adopt its suggestions
is unlawful or amounts to Commission
deference to the ERO on competition
issues. Section 215(d)(2) prohibits such
deference. Accordingly, the ISO/RTO
Council has failed to establish the error
of law it asserts, and its request for
rehearing or clarification is denied on
this issue.
4. Commission Remand of a Proposed
Reliability Standard
30. Consistent with section 215(d)(4)
of the FPA, Order No. 672 provides that
the Commission may remand to the ERO
for further consideration a proposed
Reliability Standard or proposed
modification to a Reliability Standard
that the Commission disapproves in
whole or in part. In the Final Rule, the
Commission explains that ‘‘[w]e will
either accept or remand a proposed
Reliability Standard. If we remand a
proposed Reliability Standard or a
proposed modification to a Reliability
Standard, we intend to specify our
concerns so that the ERO can address
them.’’ 33
31. Further, the Final Rule provides
that the Commission, when remanding
a proposed Reliability Standard, may set
a deadline by which the ERO must
resubmit the proposed Reliability
Standard with revisions that address the
reason for the remand.34 The Final Rule
explains that any necessary deadline
will be established in a reasonable
manner taking into consideration the
complexity of the issue and will
consider the time needed for a proposed
revision to go through the ERO’s process
as well as any need to have an
enforceable Reliability Standard in a
timely manner.35
Requests for Rehearing
32. NRECA notes that the Commission
stated that it ‘‘would take appropriate
action, for example, if the ERO or
Regional Entity fails to comply with a
Commission order requiring that a
Reliability Standard be developed or
modified as necessary to maintain
reliability’’ and also ‘‘that failure to
32 Order
29 Order
No. 672 at P 40, 18 CFR 39.5(c)(3).
30 Id. at P 376.
31 ISO/RTO Council at 7.
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No. 672 at P 377.
at P 390.
34 Id. at P 408–410.
35 Id.
33 Id.
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meet a Commission deadline [on
remand of a Reliability Standard] would
be considered a violation of the FPA.’’ 36
NRECA expresses concern that ‘‘such
statements could unintentionally imply
that the Commission could seek to treat
a failure by the ERO or potentially a
Regional Entity to adopt the exact text
or substance of a Reliability Standard
specified by the Commission as a
violation of the FPA.’’ 37 NRECA
requests the Commission to clarify that
it did not intend in the Final Rule to
prescribe the text or substance of a
Reliability Standard.
33. EEI requests that the Commission
clarify that any deadlines it imposes on
the ERO’s consideration of proposed
Reliability Standards on remand will
respect the requirements that the ERO
have an open process and that the
Commission give due weight to the
technical expertise of the ERO.
Commission Conclusion
34. We clarify that it is not our intent
to prescribe the text or substance of a
Reliability Standard. Our authority in
this context is to ‘‘remand to the [ERO]
for further consideration a proposed
reliability standard or a modification to
a reliability standard that the
Commission disapproves in whole or in
part.’’ 38 In the Final Rule, we stated that
‘‘the Commission cannot change the
Reliability Standard and must send the
Reliability Standard to the ERO for
modification.’’ 39 Moreover, the
Commission specifically stated that as
part of the remand process, ‘‘we intend
to specify our concerns so that the ERO
can address them.’’ 40
35. With regard to EEI’s request for
clarification, Order No. 672 already
provides the assurance that EEI seeks.41
Any necessary deadline will be
established in a reasonable manner
taking into account the complexity of
the issue and will consider the time
needed for a proposed revision to go
through the ERO’s process as well as
any need to have an enforceable
Reliability Standard in a timely manner.
The Commission will respect the ERO’s
approved Reliability Standard
development process, but in Order No.
672 the Commission also set out its
expectation that the ERO will have
sufficient flexibility in its process to
consider matters expeditiously when
necessary. As we explained in Order
No. 672, an ERO applicant should
36 NRECA Comments at 2 (citing Order No. 672
at P 441 and 765).
37 Id. at 2–3.
38 Section 215(d)(4) of the FPA.
39 Order No. 672 at P 424.
40 Id. at P 390.
41 Id. at P 410.
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propose an accelerated process for
addressing a Reliability Standard that
has been remanded with a specific
deadline.42
D. Conflict of a Reliability Standard
With a Commission Order
36. Section 215(d)(6) of the FPA
requires that the Commission develop
‘‘fair processes for the identification and
timely resolution of any conflict
between a reliability standard and any
function, rule, order, tariff, rate
schedule, or agreement accepted,
approved, or ordered by the
Commission applicable to a
transmission organization.’’ Consistent
with this requirement, the Final Rule
provides a process for a user, owner or
operator of the transmission facilities of
a Transmission Organization to notify
the Commission of a possible conflict
for timely resolution by the
Commission.43 The Transmission
Organization is responsible for
expeditiously notifying the Commission
of the possible conflict.
37. Section 39.6(b) of the
Commission’s regulations provides that
the Commission will determine within
60 days of a filing whether a conflict
exists and, if so, resolve the conflict by
directing the Transmission Organization
to file a modification of the conflicting
tariff ‘‘pursuant to section 205 or section
206 of the Federal Power Act, as
appropriate’’ or direct the ERO to
propose a modification to the
conflicting Reliability Standard. Section
39.6(c) requires that the Transmission
Organization continue to comply with
the tariff until the Commission finds
that a conflict exists, the Commission
orders a change to such provision
pursuant to section 205 or 206 of the
FPA, and the order becomes effective.
hsrobinson on PROD1PC68 with RULES
Request for Rehearing
38. NYSRC seeks clarification or, in
the alternative, rehearing on whether
both sections 205 and 206 of the FPA
should apply when the Commission
undertakes to determine whether a
Commission-approved function, rule,
order, tariff, rate schedule, or agreement
should change because it conflicts with
an ERO Reliability Standard, or whether
only section 206 should apply. NYSRC
notes that section 215(d)(6) of the FPA
refers only to section 206 and argues
that the reference to section 205 in
sections 39.6(b) and (c) of the
Commission’s regulations creates a
discrepancy that, unless clarified, will
result in confusion as to the legal
42 Id.
43 Id.
at P 444, 18 CFR 39.6(a).
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standard applicable to such a
determination by the Commission.
39. ISO/RTO Council requests that the
Commission clarify that a user, owner or
operator should consult with the ISO or
RTO regarding a potential conflict
between a Reliability Standard and a
Commission-approved ISO or RTO
tariff. It proposes that, in the event of a
disagreement over a potential conflict,
the ISO/RTO should submit the concern
raised by the transmission user or owner
along with its own comments on the
issue. ISO/RTO Council also maintains
that the ERO should be expected to
identify any potential conflict with an
existing ISO or RTO tariff when it
submits a proposed Reliability Standard
to the Commission, and that the
Commission should revise its
regulations to provide that any party
proposing a revision to a tariff to
eliminate a conflict with a Reliability
Standard will bear the burden of
persuasion.
Commission Conclusion
40. We grant rehearing in part and
amend our regulations to provide that,
if the Commission determines that a
Commission-approved function, rule,
order, tariff, rate schedule, or agreement
should be revised because it conflicts
with a Reliability Standard, the
Commission may offer the Transmission
Organization an opportunity to submit a
revised term or condition of the tariff or
other relevant document or may itself
modify the tariff pursuant to section 206
of the FPA. The Commission will not,
however, direct a Transmission
Organization to make a filing pursuant
to section 205 of the FPA, and we delete
this provision from sections 39.6(b)(1)
and (c) of our regulations. A public
utility may voluntarily submit a revised
tariff provision pursuant to section 205
to resolve the conflict. Thus, although
section 215(d)(6) of the statute refers
specifically to the Commission finding a
conflict and ordering a change to a
provision pursuant to section 206 of the
FPA, a voluntary section 205 filing is
always an option available to the
Transmission Organization.
41. With regard to ISO/RTO Council’s
request for clarification or rehearing, we
encourage any user, owner or operator
that identifies a potential conflict
between a Transmission Organization
tariff and a Reliability Standard to
consult with the Transmission
Organization regarding the potential
conflict. If the matter is not resolved
informally, the Transmission
Organization must expeditiously notify
the Commission of the potential
conflict. Further, we encourage the
Transmission Organization to submit its
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19819
own comments on the issue when it
notifies the Commission, provided that
the preparation of Transmission
Organization comments causes no delay
in notifying the Commission. The
Transmission Organization may provide
additional comments on the potential
conflict during the notice and comment
period on the matter. However, there is
no need to revise our regulations to
incorporate this level of detail.
42. Order No. 672 provides that the
ERO should attempt to resolve such
potential conflicts in the Reliability
Standard development process.44 We
encourage the ERO, when submitting a
proposed Reliability Standard to the
Commission for review, to identify any
potential conflict with a Transmission
Organization tariff that could not be
resolved and provide any information
on the topic that may inform the
Commission. However, it is not
necessary to include this level of detail
in the regulation text.
E. Enforcement of Reliability Standards
43. Section 215(e) of the FPA provides
that the ERO or a Regional Entity that
is delegated enforcement authority may
impose a penalty on a user, owner or
operator of the Bulk-Power System for a
violation of a Reliability Standard. The
Final Rule sets forth procedures
pursuant to which the ERO or a
Regional Entity may impose a nonmonetary or monetary penalty, and
procedures for Commission review of a
penalty.45 Also, the Commission itself
may initiate an investigation, require
compliance with or impose a penalty for
non-compliance with a Reliability
Standard.
1. ERO and Regional Entity Appeals
Process
44. Order No. 672 finds that allowing
an appeals process at the ERO or
Regional Entity level is appropriate to
ensure internal consistency in the
imposition of penalties by the ERO or
the Regional Entity.46 Expressing
concern that such a process should not
result in a drawn-out series of
sequential appeals, the Final Rule
concludes that there should be a single
appeal at either the ERO or the Regional
Entity. An ERO applicant must propose
in its certification application whether
the appeal of a penalty imposed by a
Regional Entity should be at the ERO or
Regional Entity.
44 Id.
at P 444.
CFR 39.7.
46 Order No. 672 at P 610–611.
45 18
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Request for Rehearing
45. EEI requests that the Commission
specify that all appeals of penalties,
whether imposed by a Regional Entity
or the ERO, should be at the ERO level.
It states that having a single formal
appeal at the ERO will ensure timely
enforcement as well as consistency in
interpretation of Reliability Standards
and in the sanctions applied across
Regional Entities. EEI also requests that
the Commission clarify that each
Regional Entity must have a process to
resolve issues that arise in the course of
implementation of its compliance
enforcement program before final
decision in a particular matter is
reached by the Regional Entity. EEI
maintains that this clarification is
necessary to ensure that the
enforcement process includes due
process protections and procedures.
hsrobinson on PROD1PC68 with RULES
Commission Conclusion
46. Order No. 672 concludes that a
single appeal at either the ERO or
Regional Entity is appropriate to avoid
duplication and delay, but allows an
ERO applicant to propose in its
application for certification whether the
appeal of a penalty imposed by a
Regional Entity should be at the ERO or
Regional Entity.47 EEI may raise its
concerns in the ERO certification
proceeding regarding the appropriate
forum for such an appeal. Further, we
note that Order No. 672 directs the ERO
and Regional Entities to develop
uniform due process procedures.48 EEI’s
request for a process to resolve issues
that arise in the course of a Regional
Entity’s compliance program is satisfied
by this requirement. Accordingly, EEI’s
request for an additional requirement is
not necessary and is denied.
2. Monetary Penalties
47. Both the statute and our
regulations require that a penalty must
bear a reasonable relationship to the
seriousness of the violation. Order No.
672 requires the ERO to develop penalty
guidelines that would provide a
predictable, uniform and rational
approach to the imposition of penalties.
48. Further, Order No. 672 concludes
that it is appropriate for the entity
investigating an alleged violation and
imposing a penalty to receive any
penalty monies that result from that
investigation.49 However, rather than
allowing penalty monies to offset a
specific program, such as a compliance
or enforcement program, the Final Rule
determines that, for an ERO or Regional
at P 611.
at P 494–495.
49 Id. at P 626.
Entity investigation, the entity
conducting the investigation should
receive the penalty monies as an offset
against its next year’s budget. Order No.
672 states that, ‘‘[w]ith this approach,
the monies represent a savings to those
consumers responsible ultimately for
paying the costs of the ERO or Regional
Entity.’’ 50
49. In response to comments
regarding the application of a penalty to
an RTO or ISO, Order No. 672
concludes that:
[w]hile we recognize that RTOs and ISOs
have some unique characteristics, we do not
believe a generic exemption from any type of
penalty is appropriate for any entity,
including an RTO or ISO. The ERO or
Regional Entity determining whether to
impose a penalty on an RTO or ISO may
consider the entity’s unique characteristics,
as well as the nature of the violation, in
determining an appropriate and effective
sanction.
Further, we do not decide generically
whether an RTO or ISO may pass a monetary
penalty through to its members or customers.
We will consider such an issue on a case-bycase basis.[51]
Requests for Rehearing
50. ISO/RTO Council maintains that
the Commission has not adequately
addressed the concern that penalty
monies could create an improper
incentive for the ERO to over-collect
penalties. It asserts that the Commission
has not explained why it is willing to
allow penalty monies to offset the
enforcing entity’s entire budget for
implementing section 215 of the FPA
rather than just the costs of a specific
program, such as enforcement. ISO/RTO
Council views the incentives as being
the same in each case. It urges the
Commission to adopt a clear rule
requiring the ERO and Regional Entities
to direct penalty monies received from
U.S. entities to the U.S. Treasury.
51. New York ISO asserts that the
Commission erred when it failed to
establish that ISOs and RTOs should be
subject to financial penalties imposed
by the ERO or a Regional Entity only in
‘‘extraordinary circumstances.’’ It argues
that, because ISOs, RTOs and reliability
organizations are similarly situated in
all material respects, it is arbitrary and
capricious for the Commission to
determine that reliability organizations
will be subject to financial penalties
only in extraordinary circumstances and
not to do likewise in the case of ISOs
and RTOs. New York ISO states that the
Commission has failed to justify treating
reliability organizations more favorably
than ISOs and RTOs by refusing in
47 Id.
48 Id.
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51 Id.
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Order No. 672 to provide that the latter
as well as the former would be subject
to financial penalties only in
extraordinary circumstances.
52. New York ISO also contends that
imposing a financial penalty that could
render a not-for-profit ISO or RTO
insolvent is inconsistent with the
section 215(e) of the FPA and the
Commission’s own directive that a
penalty must be proportionate to the
offense. An ISO or RTO will, absent a
pass-through, face insolvency if it is
subject to a financial penalty.
53. Further, New York ISO asserts that
the Commission’s failure to establish
that ISOs and RTOs should not be
subject to financial penalties in
connection with reliability violations
committed by third parties within the
ISO/RTO’s control area is arbitrary and
capricious, as well as inconsistent with
due process, section 215(e) of the FPA,
and the Commission’s policy that
penalties should be proportionate to the
offender’s misconduct. New York ISO
notes that, while Order No. 672 agrees
generally that an entity should not be
punished for a violation outside of its
control, the Order does not make a
generic ruling on the issue and, rather,
directs New York ISO to raise such
concerns in the ERO stakeholder
process. It asserts that failure to
establish a ‘‘bright line’’ that insulates a
party from penalty for a violation
outside its control is arbitrary and
capricious and violates due process.
54. SoCal Ed states that the
Commission erred when it would not
decide generically whether an RTO or
ISO may pass a monetary penalty
through to its members or customers.
Like New York ISO, SoCal Ed points to
the limited resources of ISOs and RTOs.
It seeks rehearing on this issue and also
argues that, in passing on costs, the ISO
or RTO should determine whether
particular members or customers are
responsible for the penalty and obtain
repayment from them.
Commission Conclusion
55. ISO/RTO Council does not explain
why permitting penalty monies to offset
the enforcing entity’s entire section 215
budget creates an improper incentive for
the ERO or a Regional Entity to
overcollect penalties. Penalty monies
would be received as an offset against
the budget of the ERO and Regional
Entities for discharging their statutory
duties in the coming year. Unless the
aggregate amount of penalties exceeds
the entire ERO budget, the only
beneficiaries of this policy are the
entities that have reduced payments for
next year’s support of the ERO. Order
No. 672 concludes that penalty monies
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represent a savings to end users of
electricity. ISO/RTO Council has not
persuaded us that this approach creates
an improper incentive for the ERO to
impose excessive penalties. Further, we
remind ISO/RTO Council that every
penalty must be filed with the
Commission, and the Commission is
therefore in the position to detect and
correct any possible incentive for
overcollection. ISO/RTO Council’s
request for rehearing on this issue is,
therefore, denied.
56. In response to New York ISO,
while ISOs, RTOs and reliability
organizations may be similarly situated
in some respects, they differ in
important respects regarding penalty
liability. The most significant
difference, highly relevant to this
proceeding, is that the statute makes the
ERO and Regional Entities responsible
for establishing and enforcing
Reliability Standards, while making
users, owners and operators of the BulkPower System, including ISOs and
RTOs, subject to penalties for failure to
comply with those Reliability
Standards. It is not arbitrary and
capricious to treat all operators alike,
including RTOs and ISOs, in terms of
their liability for violation of a
Reliability Standard. Nor is it arbitrary
and capricious to treat the ERO or a
Regional Entity that violates a
Commission order differently, for
penalty purposes, from an operator that
violates a Reliability Standard. The
statute specifically authorizes the
imposition of a penalty on a user, owner
or operator for the violation of a
Reliability Standard. The Commission
acknowledges in Order No. 672 the
unique characteristics of ISOs and RTOs
and agrees that, in determining a
penalty, circumstances such as
organizational structure or not-for-profit
status will be considered.52
57. New York ISO and SoCal Ed argue
that the Commission erred in denying a
generic penalty exemption for RTOs and
ISOs because in their view—absent the
ability to pass the penalty through to
members or customers—a monetary
penalty would lead to the insolvency of
such entities. The Commission is
mindful of the special characteristics of
RTOs and ISOs, including the resources
they have at their disposal. However, we
do not believe that Congress enacted a
law that provided for Reliability
Standards to be enforceable through
penalties and neglected to mention that
it intended to exempt system operators
52 Consideration
of such factors in determining an
appropriate penalty is consistent with our
Enforcement Policy. See Enforcement of Statutes,
Orders, Rules, and Regulations, 113 FERC ¶ 61,068.
See also, Order No. 672 at P 561, n. 158.
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that operate the Bulk-Power System
serving half or more of the electric load
in the United States. We understand
that penalties may be monetary or nonmonetary and the difficulty that a large
monetary penalty would pose for a notfor-profit organization. However, we
will not by rule exempt these large and
important system operators from
monetary penalties for violation of
Reliability Standards. The Commission
directed New York ISO to raise its
concern about the punishment of
entities for violations outside their
control in the ERO or Regional Entity
stakeholder process because it is first
necessary to determine whether a
proposed Reliability Standard would
have this effect.53 Both New York ISO
and SoCal Ed have failed to demonstrate
the need for a generic exemption or a
blanket pass-through provision, and
their requests for rehearing on these
points are therefore denied.
58. For the reasons discussed above,
the Commission affirms its earlier
decision and will not allow a generic
pass through of monetary penalties for
RTOs and ISOs. However, an individual
RTO or ISO may propose a mechanism
through a section 205 tariff filing to
recover penalty monies imposed by the
ERO or a Regional Entity.
59. Further, any concerns regarding a
particular ERO applicant’s proposed
penalty imposition policies should be
addressed in its ERO certification
proceeding.
F. Funding of the Electric Reliability
Organization
60. Order No. 672 directs an ERO
candidate to propose a formula or
method of funding addressing cost
allocation and cost responsibility, along
with a proposed mechanism for revenue
collection for Commission
consideration. Further, pursuant to the
Final Rule, the ERO will fund the
Regional Entities as well as approve
their budgets, under the Commission’s
oversight. The ERO must file with the
Commission its entire proposed annual
budget for statutory and non-statutory
activities, including the entire budgets
of each Regional Entity. All entities
within the Commission’s jurisdiction
pursuant to section 215(b) of the FPA
are required to pay any ERO
assessments, as set out in the ERO Rules
approved by the Commission, in a
timely manner reasonably designated by
the ERO.
1. Activities to be Funded by End-Users
61. Order No. 672 concludes that
section 215 of the FPA ‘‘provides for
53 Order
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19821
federal authorization of funding limited
to the development of Reliability
Standards and their enforcement, and
monitoring the reliability of the BulkPower System. However, the ERO or a
Regional Entity is not precluded from
pursuing other activities, funded from
other sources.’’ 54 Likewise, any funding
that is approved and provided by the
ERO to a Regional Entity would be
limited to a Regional Entity’s costs
related to the delegated functions.55 The
Final Rule explains that, while neither
the ERO nor a Regional Entity is
precluded from pursuing other
activities, activities not explicitly
authorized under FPA section 215 may
not be funded through the ERO.
62. Order No. 672 also determines
that it is not necessary to provide in the
Commission’s regulations funding of a
Regional Advisory Body. The Final Rule
states that ‘‘[s]uch bodies are voluntary
organizations with members to be
appointed by the Governor of each
participating state or province. Each
Regional Advisory Body is responsible
for developing its own funding
means.’’ 56
Requests for Rehearing
63. SoCal Ed states that restricting
ERO and Regional Entity activities
funded by end users to the development
of Reliability Standards and their
enforcement, and monitoring the
reliability of the Bulk-Power System is
too restrictive and that the ERO and the
Regional Entities will have many more
reliability-related functions. SoCal Ed
states that it is not clear that, for
example, the ERO and Regional Entities
may be funded for costs associated with
‘‘reliability centers’’ and reliability
assessments of the Bulk-Power System.
SoCal Ed asks that the Commission
allow end-user funding of all ERO and
Regional Entity reliability activities.
64. Western Governors/CREPC,
supported by the CPUC, asks the
Commission to clarify whether Order
No. 672, in the discussion of Regional
Advisory Body funding, simply declines
to guarantee that the budget of a
Regional Advisory Body will be funded
through section 215 mandatory
reliability fees collected from end users
or whether the Final Rule precludes the
inclusion of a Regional Advisory Body
budget in such mandatory fees. Further,
Western Governors/CREPC seeks
rehearing to the extent that the
Commission intended to preclude
funding of a Regional Advisory Body
54 Id. at P 202. Order No. 672 also discusses
possible limitations on such other activities. Id.
55 Id. at P 229.
56 Id. at P 248.
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19822
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hsrobinson on PROD1PC68 with RULES
through mandatory fees collected from
end users. Western Governors/CREPC
argues that precluding such funding
would be inconsistent with section
215(c)(2)(B), which requires the ERO to
have rules that allocate equitably
reasonable dues, fees, and other charges
among end users for all activities under
that section. Western Governors/CREPC
maintains that Regional Advisory Body
activities under section 215(j) are
covered by this requirement and that
end users will benefit from those
activities. Western Governors/CREPC
also argues that making Regional
Advisory Bodies responsible for their
own funding would discourage the
formation of such entities and reduce
their effectiveness.
Commission Conclusion
65. With regard to SoCal Ed’s request,
we clarify that the ERO can collect a
Commission-approved assessment of
dues, fees or charges for all activities
performed pursuant to section 215 of
the FPA, which would include all
activities pursuant to our regulations.
The isolated preamble language cited by
SoCal Ed was not intended to limit the
scope of ERO activities that may be
funded. Elsewhere in the preamble to
Order No. 672, as well as the regulation
text, the Commission distinguishes
between statutory and non-statutory
activities of the ERO, and indicates that
statutory activities of the ERO should be
funded through a Commission-approved
assessment of dues, fees or charges,
while non-statutory activities must be
funded through other means.57 We will
consider what a permissible statutory
activity is when we see a specific
proposal.
66. In response to Western Governors/
CREPC, we agree that neither the statute
nor Order No. 672 provides explicitly
for Commission-approved ERO funding
of a Regional Advisory Body, nor does
either explicitly preclude such funding.
As Western Governors commented in
response to our proposed rule, under
the statute the Commission must
establish a Regional Advisory Body if it
meets the explicit statutory criteria. In
response to this comment by Western
Governors and others, Order No. 672
reflects this requirement. However,
Western Governors/CREPC does not
indicate what would be the nature or
scope of the funding for the Regional
Advisory Body that it would like to see
codified in our regulations. Order No.
672 appropriately does not
automatically provide for ratepayer
funding for any Regional Advisory Body
through section 215 of the FPA without
57 Id.
at P 197, 198, 228 and 18 CFR 39.4(b).
VerDate Aug<31>2005
15:00 Apr 17, 2006
Jkt 208001
an opportunity to consider the nature,
size, and cost of Regional Advisory
Body activities. We recognize that, in
some regions, the governors may prefer
to provide state funding for such a Body
to ensure its independence from the
entities it must advise, namely, the ERO,
the Regional Entity, and the
Commission.
67. Our approach in Order No. 672 is
to codify the requirement to establish
such a Body, upon petition, if it meets
the statutory criteria, and to consider
subsequently any funding request. In
response to any such request, the
Commission would consider what
activities are covered by the requested
funds. Any such request would have to
specify, for example, whether the
funding is just for the travel expenses of
Regional Advisory Body members, or
goes beyond that to include funding for
other things (such as funding for state
employees who support the members of
the Regional Advisory Body, nongovernmental employee staffing for the
Regional Advisory Body itself, outside
consultants or reliability experts, costs
of any studies, or any other intended
activities). Since this request would be
part of the ERO’s overall budget, we
would be able to consider also the
recommendation of the ERO and any
relevant Regional Entity. These
considerations are beyond the scope of
this rulemaking and best considered
with a specific application before us.
For these reasons, we deny the request
for rehearing of Order No. 672 but
clarify that this denial is without
prejudice to any possible future ERO
request for Regional Advisory Body
funding in its budget (including that
portion of its budget that provides
funding for the activities of the Regional
Entities).
68. For example, one mechanism that
the ERO may choose to consider is the
funding of a Regional Advisory Body
through the sharing of costs. The ERO
could seek Commission approval of a
‘‘matching’’ program in which
Commission-approved funding would
be permitted in an amount up to that
contributed by the relevant states to the
Regional Advisory Body’s budget for
section 215 activities. The Commission
will consider this or other proposed
approaches to Regional Advisory Body
funding on a case-by-case basis.
2. Allocation of ERO Costs
69. SoCal Ed contends that the Final
Rule does not address its comment that
RTOs and ISOs, if allocated section 215
reliability costs, should be required to
amend their Commission-approved
tariffs to provide a method for the
allocation of such costs to end users in
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
their footprint. It argues that failure to
do this could deny RTO and ISO
members due process and subject them
to regulatory uncertainty.
Commission Conclusion
70. We agree with SoCal Ed that an
RTO or ISO may need to amend its
Commission-approved tariff to provide a
method for the recovery of costs if it is
allocated ERO costs. SoCal Ed is
assuming that an RTO or ISO rather
than a load-serving entity will be
allocated such costs. Order No. 672
states that ‘‘cost allocation and cost
responsibility questions should be
addressed first by the ERO and
submitted together with a proposal for
revenue collection for Commission
approval.’’ 58 Because we do not have a
cost allocation proposal before us yet, it
is premature for the Commission to
consider whether to amend its
regulations to require ISOs and RTOs to
amend their tariff.
III. Information Collection Statement
71. Order No. 672 contains
information collection requirements for
which the Commission obtained
approval from the Office of Management
and Budget (OMB). Given that this
Order on Rehearing makes only one
minor revision to the regulation text of
Order No. 672 and other minor
clarifications to Order No. 672, OMB
approval for this order is not necessary.
However, the Commission will send a
copy of this order to OMB for
informational purposes.
IV. Document Availability
72. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the Internet through
FERC’s Home Page (https://www.ferc.gov)
and in FERC’s Public Reference Room
during normal business hours (8:30 a.m.
to 5 p.m. Eastern time) at 888 First
Street, NE., Room 2A, Washington, DC
20426.
73. From the Commission’s Home
Page on the Internet, this information is
available in the Commission’s document
management system, eLibrary. The full
text of this document is available on
eLibrary in PDF and Microsoft Word
format for viewing, printing, and/or
downloading. To access this document
in eLibrary, type the docket number
excluding the last three digits of this
document in the docket number field.
74. User assistance is available for
eLibrary and the FERC’s Web site during
58 Id.
E:\FR\FM\18APR1.SGM
at P 242.
18APR1
Federal Register / Vol. 71, No. 74 / Tuesday, April 18, 2006 / Rules and Regulations
normal business hours. For assistance,
please contact FERC Online Support at
1–866–208–3676 (toll free) or 202–502–
6652 (e-mail at
FERCOnlineSupport@FERC.gov), or the
Public Reference Room at 202–502–
8371, TTY 202–502–8659 (e-mail at
public.referenceroom@ferc.gov).
75. Changes to Order No. 672 made in
this order on rehearing will become
effective on May 18, 2006.
List of Subjects in 18 CFR Part 39
Administrative practice and
procedure, Electric power, Penalties,
Reporting and recordkeeping
requirements.
[Docket No. NHTSA–05–22265]
In consideration of the foregoing, the
Commission amends Chapter I, Title 18,
Code of Federal Regulations to read as
follows:
PART 39—RULES CONCERNING
CERTIFICATION OF THE ELECTRIC
RELIABILITY ORGANIZATION AND
PROCEDURES FOR THE
ESTABLISHMENT, APPROVAL, AND
ENFORCEMENT OF ELECTRIC
RELIABILITY STANDARDS
1. The authority citation for part 39
continues to read as follows:
I
Authority: 16 U.S.C. 8240.
2. In § 39.6, paragraphs (b)(1) and (c)
are revised to read as follows:
I
§ 39.6 Conflict of a Reliability Standard
with a Commission Order.
*
*
*
*
*
(b) * * *
(1) The Transmission Organization to
file a modification of the conflicting
function, rule, order, tariff, rate
schedule, or agreement pursuant to
section 206 of the Federal Power Act, as
appropriate, or
*
*
*
*
*
(c) The Transmission Organization
shall continue to comply with the
function, rule, order, tariff, rate
schedule, or agreement accepted,
approved, or ordered by the
Commission until the Commission finds
that a conflict exists, the Commission
orders a change to such provision
pursuant to section 206 of the Federal
Power Act, and the ordered change
becomes effective.
[FR Doc. 06–3631 Filed 4–17–06; 8:45 am]
BILLING CODE 6717–01–P
Jkt 208001
Procedures for Participating in and
Receiving Data From the National
Driver Register Problem Driver Pointer
System Pursuant to a Personnel
Security Investigation and
Determination
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
I
hsrobinson on PROD1PC68 with RULES
23 CFR Part 1327
AGENCY:
By the Commission.
Magalie R. Salas,
Secretary.
15:00 Apr 17, 2006
National Highway Traffic Safety
Administration
RIN 2127–AJ66
V. Effective Date
VerDate Aug<31>2005
DEPARTMENT OF TRANSPORTATION
SUMMARY: This final rule announces that
the amendments to the agency’s
National Driver Register (NDR)
regulations that were published in an
interim final rule to reflect changes
made to the National Driver Register Act
of 1982 by Section 1061 of the Ronald
W. Reagan National Defense
Authorization Act for Fiscal Year 2005
(Pub. L. 108–375) will remain in effect
with one minor change. The
amendments authorize a Federal
department or agency that investigates
an individual for the purpose of
determining the individual’s eligibility
to access national security information
to request and receive information from
the National Driver Register, upon
request and consent of the individual.
This final rule establishes the
procedures for individuals to request
and for the Federal department or
agency to receive NDR information.
DATES: This final rule becomes effective
on June 19, 2006.
FOR FURTHER INFORMATION CONTACT: For
program issues: Mr. Sean McLaurin,
Chief, National Driver Register, NPO–
122, National Highway Traffic Safety
Administration, 400 Seventh Street,
SW., Washington, DC, 20590.
Telephone: (202) 366–4800. For legal
issues: Mr. Roland (R.T.) Baumann III,
Attorney-Advisor, Office of the Chief
Counsel, NCC–113, National Highway
Traffic Safety Administration, 400
Seventh Street, SW., Washington, DC,
20590. Telephone: (202) 366–1834.
SUPPLEMENTARY INFORMATION:
I. Background
A. National Driver Register
The National Driver Register (NDR) is
a central file of information on
individuals whose license to operate a
motor vehicle in a State has been
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
19823
denied, revoked, suspended, or
canceled, for cause, or who have been
convicted of certain serious trafficrelated violations in a State, such as
racing on the highway or driving while
impaired by alcohol or other drugs. The
NDR was designed to prevent such
individuals from obtaining a driver’s
license in another State, using a device
known as the Problem Driver Pointer
System (PDPS).
The PDPS consists of a list of problem
drivers (with certain identifying
information) contained in ‘‘pointer’’
records. These records ‘‘point’’ to the
State where the substantive adverse
records about the driver can be
obtained. The PDPS system is fully
automated and enables State driver
licensing officials to determine
instantaneously whether another State
has taken adverse action against a
license applicant.
B. National Driver Register Act of 1982
The NDR Act of 1982, as amended, 49
U.S.C. 30301, et seq., authorizes State
chief driver licensing officials to request
and receive information from the NDR
for driver licensing and driver
improvement purposes. When an
individual applies for a driver’s license,
for example, these State officials are
authorized to request and receive NDR
information to determine whether the
applicant’s driver’s license has been
withdrawn for cause or the applicant
has been convicted of specific offenses
in another State. Because the NDR is a
nationwide index, State chief driver
licensing officials need only submit a
single inquiry to obtain this
information.
State chief driver licensing officials
also are authorized under the NDR Act
to request NDR information on behalf of
other NDR users for specific
transportation safety purposes. The NDR
Act authorizes the following entities to
receive NDR information for limited
transportation purposes: The National
Transportation Safety Board and the
Federal Highway Administration for
accident investigation purposes;
employers and prospective employers of
motor vehicle operators; the Federal
Aviation Administration (FAA)
regarding any individual who holds or
has applied for an airman’s certificate;
air carriers regarding individuals who
are seeking employment with the air
carrier; the Federal Railroad
Administration (FRA) and employers or
prospective employers of locomotive
operators; and the U.S. Coast Guard
regarding any individual who holds or
who has applied for a license, certificate
of registry, or a merchant mariner’s
document. The Act also allows
E:\FR\FM\18APR1.SGM
18APR1
]]>Agencies
[Federal Register Volume 71, Number 74 (Tuesday, April 18, 2006)]
[Rules and Regulations]
[Pages 19814-19823]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3631]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 39
[Docket No. RM05-30-001; Order No. 672-A]
Rules Concerning Certification of the Electric Reliability
Organization; and Procedures for the Establishment, Approval, and
Enforcement of Electric Reliability Standards
Issued March 30, 2006.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule; order on rehearing.
-----------------------------------------------------------------------
SUMMARY: The Commission grants rehearing on one matter, clarifies
certain provisions and otherwise reaffirms its determinations in Order
No. 672. 71 FR 8662 (February 17, 2006). Order No. 672 implements
Subtitle A (Reliability Standards) of the Electricity Modernization Act
of 2005, which is Title XII of the Energy Policy Act of 2005, by
establishing criteria that an entity must satisfy to qualify to be the
Electric Reliability Organization (ERO). The Commission will certify
one ERO as the organization that will develop and enforce Reliability
Standards for the Bulk-Power System in the United States. The Final
Rule also establishes procedures under which the ERO may propose new or
modified Reliability Standards for Commission review and procedures
governing an enforcement action for the violation of a Reliability
Standard.
DATES: This final rule and order on rehearing will become effective May
18, 2006.
FOR FURTHER INFORMATION CONTACT:
Kumar Agarwal (Technical Information), Office of Energy Markets and
Reliability, Division of Policy Analysis and Rulemaking, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202) 502-8570.
Michelle Veloso (Technical Information), Office of Energy Markets
[[Page 19815]]
and Reliability, Division of Policy Analysis and Rulemaking, Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426, (202) 502-6473.
Jonathan First (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502-8529.
Paul Silverman (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502-8683.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Joseph T. Kelliher, Chairman; Nora Mead Brownell,
and Suedeen G. Kelly.
Order on Rehearing
I. Introduction and Summary
1. On February 3, 2006, the Commission issued a Final Rule (Order
No. 672),\1\ implementing Subtitle A (Reliability Standards) of the
Electricity Modernization Act of 2005, which is Title XII of the Energy
Policy Act of 2005.\2\ Order No. 672 establishes criteria that an
entity must satisfy to qualify to be the Electric Reliability
Organization (ERO). The Commission will certify one organization that
will develop and enforce Reliability Standards for the Bulk-Power
System in the United States.\3\ The Final Rule also establishes
procedures under which the ERO may propose new or modified Reliability
Standards for Commission review and procedures governing an enforcement
action for the violation of a Reliability Standard.
---------------------------------------------------------------------------
\1\ Rules Concerning Certification of the Electric Reliability
Organization; and Procedures for the Establishment, Approval, and
Enforcement of Electric Reliability Standards, Order No. 672, 71 FR
8662 (Feb. 17, 2006), FERC Stats. & Regs. Regulations Preambles ]
31,204 (2006).
\2\ Pub. L. 109-58, Title XII, Subtitle A, 119 Stat. 594, 941 to
be codified at 16 U.S.C. 824o (2000).
\3\ Terms defined in Order No. 672 are capitalized in this
order.
---------------------------------------------------------------------------
A. Summary of Order No. 672 \4\
2. Order No. 672 provides that the Commission will, after notice
and opportunity for comment, certify one applicant as the ERO. The
Final Rule sets forth the criteria that an ERO applicant must satisfy
to qualify as the ERO, including the ability to develop and enforce
Reliability Standards. To ensure that the ERO complies with the
certification criteria on an ongoing basis, the Final Rule requires the
ERO to undergo a performance assessment three years after certification
and every five years thereafter.
---------------------------------------------------------------------------
\4\ A comprehensive summary of the Final Rule is provided in
Order No. 672 at P 20-58.
---------------------------------------------------------------------------
3. Order No. 672 provides that the ERO is responsible for
developing proposed Reliability Standards and must submit each proposed
Reliability Standard to the Commission for approval. Only a Reliability
Standard approved by the Commission is enforceable under section 215 of
the Federal Power Act (FPA). The Commission may approve a proposed
Reliability Standard (or modification to a Reliability Standard) if it
determines that it is just, reasonable, not unduly discriminatory or
preferential, and in the public interest and satisfies other
requirements set out in Order No. 672. In its review of a proposed
Reliability Standard, the Commission will give due weight to the
technical expertise of the ERO or a Regional Entity organized on an
Interconnection-wide basis with respect to a proposed Reliability
Standard to be applicable within that Interconnection. However, the
Commission will not defer to the ERO or a Regional Entity with respect
to a Reliability Standard's effect on competition.
4. The ERO may delegate its enforcement responsibilities to a
Regional Entity. Delegation is effective only after the Commission
approves the delegation agreement. A Regional Entity may also propose a
Reliability Standard to the ERO for submission to the Commission for
approval. This Reliability Standard may be either for application to
the entire interconnected Bulk-Power System or for application only
within its own region.
5. The ERO or a Regional Entity must monitor compliance with the
Reliability Standards. They will conduct investigations of alleged
violations of Reliability Standards. The ERO or Regional Entity may
impose a non-monetary or monetary penalty on a user, owner or operator
for violating a Reliability Standard, subject to review by the
Commission.
B. Procedural Discussion
6. The following parties have filed timely requests for rehearing
or for clarification of Order No. 672: Edison Electric Institute (EEI),
ISO/RTO Council, National Rural Electric Cooperative Association
(NRECA), New York Independent System Operator, Inc. (New York ISO), New
York State Reliability Council (NYSRC), Southern California Edison
Company (SoCal Ed), and Western Governors' Association (Western
Governors) filing jointly with the Committee on Regional Electric Power
Cooperation (CREPC). In addition, the California Public Utilities
Commission (CPUC) submitted a letter stating its full support for, and
request to be associated with, the filing of Western Governors and
CREPC.
II. Discussion
A. Definitions, Jurisdiction, and Applicability
7. Order No. 672 adopted verbatim the definitions set forth in new
section 215(a) of the FPA, including the definitions of ``Bulk-Power
System,'' ``Reliable Operation'' and ``Reliability Standard.'' \5\ The
Commission, however, declined proposals to define the term ``User of
the Bulk-Power System,'' concluding that:
The precise scope of the term ``User of the Bulk-Power System,'' and
thus the extent of persons subject to the Reliability Standards,
would be best considered in the context of our review of those
Standards, taking into account the views of the ERO and others.
Therefore, until we have proposed Reliability Standards before us,
we will reserve further judgment on whether a definition of ``User
of the Bulk-Power System'' is appropriate or whether the decision of
who is a ``User of the Bulk-Power System'' should be made on a case-
by-case basis.\6\
---------------------------------------------------------------------------
\5\ Order No. 672 at P 70 and 18 CFR 39.1.
\6\ Id. at P 99.
8. Order No. 672 also does not formally define the term ``end
user.'' \7\ The Commission explained that there was no need to adopt a
formal definition because the term end user is commonly used in the
electric power industry and is generally understood to mean a retail
consumer of electricity. However, Order No. 672 does not preclude an
ERO applicant from proposing a definition, subject to Commission
approval, if the applicant believes additional definition is needed as
part of its application for explaining its funding mechanism or for
another reason.
---------------------------------------------------------------------------
\7\ Id. at P 101.
---------------------------------------------------------------------------
9. Section 39.2 of the regulations codifies the jurisdictional
provisions found in section 215(b)(1) of the FPA. Those provisions
state, among other things, that ``[a]ll users, owners and operators of
the Bulk-Power System shall comply with Reliability Standards that take
effect under this section.'' Further, consistent with the statute,
Order No. 672 explicitly makes the Reliability Standards applicable to
all users, owners, and operators of the Bulk-Power System.\8\
---------------------------------------------------------------------------
\8\ Id. at P 112.
---------------------------------------------------------------------------
Request for Rehearing
10. SoCal Ed maintains that the Commission erred in failing to
define or further define the terms ``Bulk-Power System,'' ``End User,''
``Reliable
[[Page 19816]]
Operation,'' ``Reliability Standard,'' and ``User of the Bulk Power
System.'' SoCal Ed argues that failure to establish or refine these
definitions would be inconsistent with due process because the
Commission would have failed to establish with reasonable clarity and
certainty what is meant by the rules it has promulgated and what is
required of regulated entities.\9\ SoCal Ed further argues that the
Commission has improperly delegated the task of defining some of these
terms to others.
---------------------------------------------------------------------------
\9\ SoCal Ed at 4-10.
---------------------------------------------------------------------------
11. EEI states that, in response to rulemaking comments that small
entities such as distribution-only utilities should not be
``targeted,'' Order No. 672 explains that ``[s]ection 215 of the FPA
provides the Commission with jurisdiction over all users, owners and
operators of the Bulk-Power System for purposes of ensuring compliance
with the Reliability Standards. Until the Commission has approved a
specific Reliability Standard that impacts a particular type/class of
users, it is premature to consider'' commenters' concerns.\10\ Based on
this language, EEI asks the Commission to clarify that small entities
are not exempt from the statutory obligation to comply with applicable
Reliability Standards.
---------------------------------------------------------------------------
\10\ Order No. 672 at P 866.
---------------------------------------------------------------------------
Commission Conclusion
12. Order No. 672 adopted the statutory definitions of the terms
``Bulk Power System,'' ``Reliable Operation'' and ``Reliability
Standard.'' \11\ These definitions need no further clarification at
this time. As we explained in Order No. 672, the Commission believes it
is appropriate to consider the issue of scope about which SoCal Ed
expresses concern, in the context of specific proposed Reliability
Standards.\12\ Since proposed Reliability Standards are not enforceable
until approved by the Commission, no harm will result from deferring
judgment here and allowing SoCal Ed to renew any specific concerns
regarding applicability in response to the filing of proposed
Reliability Standards. Accordingly, SoCal Ed's request for rehearing is
denied on this issue.
---------------------------------------------------------------------------
\11\ Id. at P 70.
\12\ Id. at P 71-73.
---------------------------------------------------------------------------
13. Order No. 672 does not formally define ``End User or ``User of
the Bulk-Power System.'' SoCal Ed acknowledges that the Commission has
deferred the question of the proper definition of the terms ``End
User'' and ``User of the Bulk Power System'' until a later date.
Therefore, SoCal Ed's claims are premature. The Commission recognizes
in Order No. 672 the common industry use of the term ``end user'' as
referring generally to a retail consumer of electricity and invites an
ERO applicant to provide additional definition if needed for explaining
its funding mechanism.\13\ Likewise, in Order No. 672, the Commission
states that it will consider the precise scope of the term ``User of
the Bulk Power System'' on a case-by-case basis in the context of its
review of a Reliability Standard, as this would permit it to take
``into account the views of the ERO and others.'' \14\ Any formal
definition proposed in an ERO application would be subject to
Commission approval. Thus, we reject SoCal Ed's argument that we are
improperly delegating the definition of certain terms to others.\15\
---------------------------------------------------------------------------
\13\ Id. at P 101.
\14\ Id. at P 99.
\15\ In fact, the precedent cited by SoCal Ed supports our
approach. See U.S. Telecom Ass'n v. F.C.C., 359 F.3d 554, 568 (D.C.
Cir. 2004) (stating that ``a federal agency may turn to an outside
entity for advice and policy recommendations, provided the agency
makes the final decisions itself'').
---------------------------------------------------------------------------
14. Order No. 672 addresses EEI's request for clarification
regarding categorical exemptions from applicable Reliability Standards.
As noted by EEI, the Final Rule requires that all entities subject to
the Commission's reliability jurisdiction, i.e., all users, owners and
operators of the Bulk Power System, shall comply with applicable
Reliability Standards.\16\ While the Commission has deferred the
question of who is a ``User of the Bulk Power System,'' it did note in
Order No. 672 that if the owner or operator of a local distribution
facility falls within that definition, it must comply with all relevant
Reliability Standards as a user.\17\ EEI acknowledges that some
Reliability Standards, by their terms, may not be applicable to small
entities or to distribution-only entities. It is in reviewing such
terms in the course of its review of a proposed Reliability Standard
that the Commission will consider the scope of a particular Reliability
Standard.\18\
---------------------------------------------------------------------------
\16\ Id. at P 112.
\17\ Id. at P 100.
\18\ See also, Id. at P 99 and 866.
---------------------------------------------------------------------------
B. Electric Reliability Organization Certification
15. Order No. 672 provides that the Commission will, after notice
and opportunity for comment, certify one applicant as the ERO and sets
forth the criteria that an ERO applicant must satisfy to qualify as the
ERO. The Final Rule gives guidance to ERO applicants regarding the
content of an application and certain functions it must undertake.
16. With regard to ERO governance, an ERO applicant must
demonstrate that it has Rules that adequately assure its independence
from the users, owners and operators of the Bulk-Power System, while
assuring fair stakeholder representation in the selection of its
directors and balanced decisionmaking in any ERO committee or
subcommittee. The Commission, however, recognized that ``there are many
ways that an ERO could provide balanced governance and
decisionmaking.'' \19\ The Commission, therefore, did not mandate a
specific approach to ERO governance but, rather, allowed an ERO
candidate to develop a proposal to be provided in its application for
certification consistent with the requirements of independence and
stakeholder representation.
---------------------------------------------------------------------------
\19\ Id. at P 152.
---------------------------------------------------------------------------
Request for Rehearing
17. ISO/RTO Council asserts that ISOs and RTOs will not be fairly
represented in ERO and Regional Entity voting procedures based on one-
person, one-vote. This is because a handful of ISOs and RTOs are
responsible for a large fraction of the nation's load but constitute
only a small percentage of the nation's utilities. Consequently, their
importance and unique reliability concerns will not be fairly
represented. ISO/RTO Council states that it previously expressed
concerns that failure of the Commission to mandate a specific approach
to ERO voting structure could lead to the inadequate representation of
ISOs and RTOs. ISO/RTO Council asserts that the failure to mandate a
specific approach to ERO voting structure has already adversely
affected ISO and RTO interests, in that the North American Electric
Reliability Council's (NERC) draft ERO application attempts to address
this issue by placing ISOs and RTOs into the same voting category as
Regional Entities.
Commission Conclusion
18. Order No. 672 requires that an ERO applicant assure fair
stakeholder representation in ERO processes.\20\ We agree that ISOs and
RTOs, as system operators, are stakeholders and should be represented
fairly in ERO processes. However, we will neither require nor forbid in
our regulations any specific representation formula. To do so would
limit the flexibility of the ERO and the Commission to change ERO Rules
over time as needed to reflect changes in industry organization and
other changes. We urge the ISO/RTO Council to raise its concerns
regarding ISO and RTO representation with ERO
[[Page 19817]]
applicants and, if necessary, with the Commission in our notice and
comment proceeding to review ERO certification applications.
---------------------------------------------------------------------------
\20\ Id.
---------------------------------------------------------------------------
C. Reliability Standards
19. Consistent with section 215(d) of the FPA, Order No. 672
directs the ERO to file a proposed Reliability Standard or modification
to a Reliability Standard with the Commission for review.\21\ The
Commission may approve a proposed Reliability Standard or modification
to a Reliability Standard if it determines that the Reliability
Standard is just, reasonable, not unduly discriminatory or
preferential, and in the public interest. In its review, the Commission
will give due weight to the technical expertise of the ERO or a
Regional Entity organized on an Interconnection-wide basis with respect
to a Reliability Standard to be applicable within that Interconnection,
except that the Commission may not defer to the ERO or a Regional
Entity with respect to the effect of a Reliability Standard on
competition.
---------------------------------------------------------------------------
\21\ Id. at P 38, 258.
---------------------------------------------------------------------------
20. Order No. 672 provides that the Commission shall remand a
Reliability Standard that it disapproves in whole or in part and, when
remanding, may set a deadline by which the ERO must submit a proposed
revision to the Reliability Standard.\22\ The Final Rule states that
the Commission may direct the ERO to submit a proposed Reliability
Standard that addresses a specific matter.
---------------------------------------------------------------------------
\22\ Id. at P 390, 408.
---------------------------------------------------------------------------
1. Reliability Standards Development
21. In its comments on the notice of proposed rulemaking, ISO/RTO
Council stated that a Reliability Standard developed by the ERO should
reflect the ``what'' and not the ``how'' of reliability, i.e., that the
ERO should develop a Reliability Standard specifying ``what'' is
necessary to preserve reliability and implementation should be left to
others. In response, the Final Rule explains:
* * * in certain limited situations there may be a good reason to
leave implementation practices out of a Reliability Standard. In
other situations, however, the ``how'' may be inextricably linked to
the Reliability Standard and may need to be specified by the ERO to
ensure the enforcement of the Reliability Standard. For some
Reliability Standards, leaving out implementation features could:
(1) Sacrifice necessary uniformity in implementation of the
Reliability Standard; (2) create uncertainty for the entity that has
to follow the Reliability Standard; (3) make enforcement difficult;
and (4) increase the complexity of the Commission's oversight and
review process. Accordingly, we leave it to the ERO to develop
proposed Reliability Standards that appropriately balance
reliability principles and implementation features.\23\
---------------------------------------------------------------------------
\23\ Id. at P 260.
---------------------------------------------------------------------------
Requests for Rehearing
22. ISO/RTO Council asks the Commission to clarify the ERO's role
in Reliability Standard setting and enforcement as opposed to
implementation of Reliability Standards. It believes the Commission
erred in allowing the ERO to develop proposed Reliability Standards
that balance questions of reliability and implementation on a case-by-
case basis because this gives the ERO too much authority and blurs the
lines between standard setting--an ERO function--and standard
implementation--a system operator function. ISO/RTO Council argues that
the ERO should focus on the ``what'' of reliability, but not the
``how'' to ensure that the same Reliability Standards can be adopted
for regions with and without organized electricity markets. ISO/RTO
Council asserts that more conflicts are likely to arise between
existing Reliability Standards and ISO or RTO tariffs if the ERO adopts
detailed requirements for implementing the Reliability Standards. It
also argues that NERC's draft certification application would have the
ERO perform some functions best performed by system operators, a role
for which the ERO is unlikely to have the knowledge or resources to
carry out operational functions effectively.
Commission Conclusion
23. The Commission addressed this adequately in Order No. 672,
explaining that, in some situations, some aspects of the implementation
of a Reliability Standard may need to be part of the Reliability
Standard itself.\24\ As is public knowledge, NERC has over 100
candidate Reliability Standards it intends to file for approval. We
continue to believe it is more appropriate to decide the issues raised
by the ISO/RTO Council on a case-by-case basis for each proposed
Reliability Standard than to make a generic ruling based on general
theory. When we say we are leaving it to the ERO to develop a proposal
we mean it do so subject to its Rules for obtaining broad stakeholder
input. If an ISO, RTO or other entity has specific concerns, they
should be raised in the ERO's Reliability Standard development process
as we expect Reliability Standards to be developed that work
effectively and can be implemented in all regions.\25\ Accordingly, the
Commission denies the RTO/ISO Council's request for rehearing to
provide additional guidance to the ERO regarding this issue.
---------------------------------------------------------------------------
\24\ Id.
\25\ See Id. at P 331 (``[a] proposed Reliability Standard
should be designed to apply throughout the interconnected North
American Bulk-Power System, to the maximum extent this is achievable
with a single Reliability Standard. The proposed Reliability
Standard * * * should take into account * * * regional variations in
market design if these affect the proposed Reliability Standard'').
---------------------------------------------------------------------------
2. Notice and Comment
24. Order No. 672 states that, when the ERO files a proposed
Reliability Standard, the Commission will provide notice and
opportunity for comment except in ``extraordinary circumstances.'' \26\
---------------------------------------------------------------------------
\26\ Id. at P 308.
---------------------------------------------------------------------------
Request for Rehearing
25. EEI asks the Commission to clarify that the notice and comment
procedures that will apply to its review of a proposed Reliability
Standard will comply with the notice and comment requirements of
section 553 of the Administrative Procedure Act (APA).\27\ It explains
that, although section 215 of the FPA does not state that the
Commission must provide notice and comment when reviewing a proposed
Reliability Standard, notice and comment is required by section 553 of
the APA. Further, EEI notes that, while the APA does not allow an
exception to the notice and comment requirement for ``extraordinary
circumstances,'' the APA does provide an exception when an agency for
good cause finds that notice and comment procedures are
``impracticable, unnecessary, or contrary to the public interest.''
\28\ EEI requests that the Commission clarify that ``extraordinary
circumstances'' will be construed to have the same meaning as the
exception provided in section 553(b)(B) of the APA.
---------------------------------------------------------------------------
\27\ 5 U.S.C. 553 (2000).
\28\ 5 U.S.C. 553(b)(B) (2000).
---------------------------------------------------------------------------
Commission Conclusion
26. Like all federal agencies, the Commission is obligated to
comply with the APA. Accordingly, the Commission clarifies that any
decision by the Commission not to provide notice and comment when
reviewing a proposed Reliability Standard will be made in accordance
with the criteria established in section 553 of the APA.
3. No Deference on Competition
27. Consistent with section 215(d)(2) of the FPA, Order No. 672
states that the Commission will not defer to the ERO or a Regional
Entity with respect to the
[[Page 19818]]
effect of a proposed Reliability Standard on competition.\29\ The Final
Rule, however, does not adopt a generic test to balance reliability and
competition concerns in the absence of specific facts and, instead,
states that the Commission will evaluate the effects of a proposed
Reliability Standard on competition on a case-by-case basis.\30\
Further, the Final Rule explains that, when reviewing a proposed
Reliability Standard, the Commission will ensure that the proposal does
not have the implicit effect of either favoring or thwarting bilateral
or organized markets.
---------------------------------------------------------------------------
\29\ Order No. 672 at P 40, 18 CFR 39.5(c)(3).
\30\ Id. at P 376.
---------------------------------------------------------------------------
Request for Rehearing
28. ISO/RTO Council seeks rehearing or clarification regarding the
Commission's decision not to adopt a generic test to balance
reliability and competition concerns in the absence of specific facts.
It maintains that failure to adopt such a test ``would be a legal error
because it would effectively leave the Commission discretion to defer
to the ERO on competition questions, which is prohibited under the FPA
* * *.'' \31\ ISO/RTO Council asks the Commission to provide clearer
substantive guidance on how it will review the impact of a Reliability
Standard on competition. It requests the Commission to revise its
regulations to incorporate Order No. 672 Preamble language stating that
a Reliability Standard will not be allowed to have the implicit effect
of either favoring or thwarting bilateral or organized markets or
unduly favor individual market participants. It further asks the
Commission to specify that any Reliability Standard that has any effect
on ISO or RTO market rules will be subject to de novo Commission
review. In addition, the ERO should have the burden of demonstrating
that a proposed Reliability Standard does not affect competition.
---------------------------------------------------------------------------
\31\ ISO/RTO Council at 7.
---------------------------------------------------------------------------
Commission Conclusion
29. ISO/RTO Council correctly notes that the Commission has a
statutory obligation not to defer to the ERO with respect to the effect
of a proposed Reliability Standard or a proposed modification to a
Reliability Standard on competition. We will not do so. However, ISO/
RTO Council has failed to explain why dealing with this issue on a
case-by-case basis is inappropriate or declining to revise Commission
regulations as requested is a legal error. Case-by-case consideration
is particularly appropriate where an issue can arise in many different
forms and factual situations. The Commission concluded that a case-by-
case approach is appropriate here and noted that ``[n]o single
definition [of competition] appears sufficient to cover all the
relevant bases for evaluating a proposed Reliability Standard's effect
on competition.'' \32\ ISO/RTO Council insists that the Commission must
add to its regulations, but does not explain how the failure to adopt
its suggestions is unlawful or amounts to Commission deference to the
ERO on competition issues. Section 215(d)(2) prohibits such deference.
Accordingly, the ISO/RTO Council has failed to establish the error of
law it asserts, and its request for rehearing or clarification is
denied on this issue.
---------------------------------------------------------------------------
\32\ Order No. 672 at P 377.
---------------------------------------------------------------------------
4. Commission Remand of a Proposed Reliability Standard
30. Consistent with section 215(d)(4) of the FPA, Order No. 672
provides that the Commission may remand to the ERO for further
consideration a proposed Reliability Standard or proposed modification
to a Reliability Standard that the Commission disapproves in whole or
in part. In the Final Rule, the Commission explains that ``[w]e will
either accept or remand a proposed Reliability Standard. If we remand a
proposed Reliability Standard or a proposed modification to a
Reliability Standard, we intend to specify our concerns so that the ERO
can address them.'' \33\
---------------------------------------------------------------------------
\33\ Id. at P 390.
---------------------------------------------------------------------------
31. Further, the Final Rule provides that the Commission, when
remanding a proposed Reliability Standard, may set a deadline by which
the ERO must resubmit the proposed Reliability Standard with revisions
that address the reason for the remand.\34\ The Final Rule explains
that any necessary deadline will be established in a reasonable manner
taking into consideration the complexity of the issue and will consider
the time needed for a proposed revision to go through the ERO's process
as well as any need to have an enforceable Reliability Standard in a
timely manner.\35\
Requests for Rehearing
---------------------------------------------------------------------------
\34\ Id. at P 408-410.
\35\ Id.
---------------------------------------------------------------------------
32. NRECA notes that the Commission stated that it ``would take
appropriate action, for example, if the ERO or Regional Entity fails to
comply with a Commission order requiring that a Reliability Standard be
developed or modified as necessary to maintain reliability'' and also
``that failure to meet a Commission deadline [on remand of a
Reliability Standard] would be considered a violation of the FPA.''
\36\ NRECA expresses concern that ``such statements could
unintentionally imply that the Commission could seek to treat a failure
by the ERO or potentially a Regional Entity to adopt the exact text or
substance of a Reliability Standard specified by the Commission as a
violation of the FPA.'' \37\ NRECA requests the Commission to clarify
that it did not intend in the Final Rule to prescribe the text or
substance of a Reliability Standard.
---------------------------------------------------------------------------
\36\ NRECA Comments at 2 (citing Order No. 672 at P 441 and
765).
\37\ Id. at 2-3.
---------------------------------------------------------------------------
33. EEI requests that the Commission clarify that any deadlines it
imposes on the ERO's consideration of proposed Reliability Standards on
remand will respect the requirements that the ERO have an open process
and that the Commission give due weight to the technical expertise of
the ERO.
Commission Conclusion
34. We clarify that it is not our intent to prescribe the text or
substance of a Reliability Standard. Our authority in this context is
to ``remand to the [ERO] for further consideration a proposed
reliability standard or a modification to a reliability standard that
the Commission disapproves in whole or in part.'' \38\ In the Final
Rule, we stated that ``the Commission cannot change the Reliability
Standard and must send the Reliability Standard to the ERO for
modification.'' \39\ Moreover, the Commission specifically stated that
as part of the remand process, ``we intend to specify our concerns so
that the ERO can address them.'' \40\
---------------------------------------------------------------------------
\38\ Section 215(d)(4) of the FPA.
\39\ Order No. 672 at P 424.
\40\ Id. at P 390.
---------------------------------------------------------------------------
35. With regard to EEI's request for clarification, Order No. 672
already provides the assurance that EEI seeks.\41\ Any necessary
deadline will be established in a reasonable manner taking into account
the complexity of the issue and will consider the time needed for a
proposed revision to go through the ERO's process as well as any need
to have an enforceable Reliability Standard in a timely manner. The
Commission will respect the ERO's approved Reliability Standard
development process, but in Order No. 672 the Commission also set out
its expectation that the ERO will have sufficient flexibility in its
process to consider matters expeditiously when necessary. As we
explained in Order No. 672, an ERO applicant should
[[Page 19819]]
propose an accelerated process for addressing a Reliability Standard
that has been remanded with a specific deadline.\42\
---------------------------------------------------------------------------
\41\ Id. at P 410.
\42\ Id.
---------------------------------------------------------------------------
D. Conflict of a Reliability Standard With a Commission Order
36. Section 215(d)(6) of the FPA requires that the Commission
develop ``fair processes for the identification and timely resolution
of any conflict between a reliability standard and any function, rule,
order, tariff, rate schedule, or agreement accepted, approved, or
ordered by the Commission applicable to a transmission organization.''
Consistent with this requirement, the Final Rule provides a process for
a user, owner or operator of the transmission facilities of a
Transmission Organization to notify the Commission of a possible
conflict for timely resolution by the Commission.\43\ The Transmission
Organization is responsible for expeditiously notifying the Commission
of the possible conflict.
---------------------------------------------------------------------------
\43\ Id. at P 444, 18 CFR 39.6(a).
---------------------------------------------------------------------------
37. Section 39.6(b) of the Commission's regulations provides that
the Commission will determine within 60 days of a filing whether a
conflict exists and, if so, resolve the conflict by directing the
Transmission Organization to file a modification of the conflicting
tariff ``pursuant to section 205 or section 206 of the Federal Power
Act, as appropriate'' or direct the ERO to propose a modification to
the conflicting Reliability Standard. Section 39.6(c) requires that the
Transmission Organization continue to comply with the tariff until the
Commission finds that a conflict exists, the Commission orders a change
to such provision pursuant to section 205 or 206 of the FPA, and the
order becomes effective.
Request for Rehearing
38. NYSRC seeks clarification or, in the alternative, rehearing on
whether both sections 205 and 206 of the FPA should apply when the
Commission undertakes to determine whether a Commission-approved
function, rule, order, tariff, rate schedule, or agreement should
change because it conflicts with an ERO Reliability Standard, or
whether only section 206 should apply. NYSRC notes that section
215(d)(6) of the FPA refers only to section 206 and argues that the
reference to section 205 in sections 39.6(b) and (c) of the
Commission's regulations creates a discrepancy that, unless clarified,
will result in confusion as to the legal standard applicable to such a
determination by the Commission.
39. ISO/RTO Council requests that the Commission clarify that a
user, owner or operator should consult with the ISO or RTO regarding a
potential conflict between a Reliability Standard and a Commission-
approved ISO or RTO tariff. It proposes that, in the event of a
disagreement over a potential conflict, the ISO/RTO should submit the
concern raised by the transmission user or owner along with its own
comments on the issue. ISO/RTO Council also maintains that the ERO
should be expected to identify any potential conflict with an existing
ISO or RTO tariff when it submits a proposed Reliability Standard to
the Commission, and that the Commission should revise its regulations
to provide that any party proposing a revision to a tariff to eliminate
a conflict with a Reliability Standard will bear the burden of
persuasion.
Commission Conclusion
40. We grant rehearing in part and amend our regulations to provide
that, if the Commission determines that a Commission-approved function,
rule, order, tariff, rate schedule, or agreement should be revised
because it conflicts with a Reliability Standard, the Commission may
offer the Transmission Organization an opportunity to submit a revised
term or condition of the tariff or other relevant document or may
itself modify the tariff pursuant to section 206 of the FPA. The
Commission will not, however, direct a Transmission Organization to
make a filing pursuant to section 205 of the FPA, and we delete this
provision from sections 39.6(b)(1) and (c) of our regulations. A public
utility may voluntarily submit a revised tariff provision pursuant to
section 205 to resolve the conflict. Thus, although section 215(d)(6)
of the statute refers specifically to the Commission finding a conflict
and ordering a change to a provision pursuant to section 206 of the
FPA, a voluntary section 205 filing is always an option available to
the Transmission Organization.
41. With regard to ISO/RTO Council's request for clarification or
rehearing, we encourage any user, owner or operator that identifies a
potential conflict between a Transmission Organization tariff and a
Reliability Standard to consult with the Transmission Organization
regarding the potential conflict. If the matter is not resolved
informally, the Transmission Organization must expeditiously notify the
Commission of the potential conflict. Further, we encourage the
Transmission Organization to submit its own comments on the issue when
it notifies the Commission, provided that the preparation of
Transmission Organization comments causes no delay in notifying the
Commission. The Transmission Organization may provide additional
comments on the potential conflict during the notice and comment period
on the matter. However, there is no need to revise our regulations to
incorporate this level of detail.
42. Order No. 672 provides that the ERO should attempt to resolve
such potential conflicts in the Reliability Standard development
process.\44\ We encourage the ERO, when submitting a proposed
Reliability Standard to the Commission for review, to identify any
potential conflict with a Transmission Organization tariff that could
not be resolved and provide any information on the topic that may
inform the Commission. However, it is not necessary to include this
level of detail in the regulation text.
---------------------------------------------------------------------------
\44\ Id. at P 444.
---------------------------------------------------------------------------
E. Enforcement of Reliability Standards
43. Section 215(e) of the FPA provides that the ERO or a Regional
Entity that is delegated enforcement authority may impose a penalty on
a user, owner or operator of the Bulk-Power System for a violation of a
Reliability Standard. The Final Rule sets forth procedures pursuant to
which the ERO or a Regional Entity may impose a non-monetary or
monetary penalty, and procedures for Commission review of a
penalty.\45\ Also, the Commission itself may initiate an investigation,
require compliance with or impose a penalty for non-compliance with a
Reliability Standard.
---------------------------------------------------------------------------
\45\ 18 CFR 39.7.
---------------------------------------------------------------------------
1. ERO and Regional Entity Appeals Process
44. Order No. 672 finds that allowing an appeals process at the ERO
or Regional Entity level is appropriate to ensure internal consistency
in the imposition of penalties by the ERO or the Regional Entity.\46\
Expressing concern that such a process should not result in a drawn-out
series of sequential appeals, the Final Rule concludes that there
should be a single appeal at either the ERO or the Regional Entity. An
ERO applicant must propose in its certification application whether the
appeal of a penalty imposed by a Regional Entity should be at the ERO
or Regional Entity.
---------------------------------------------------------------------------
\46\ Order No. 672 at P 610-611.
---------------------------------------------------------------------------
[[Page 19820]]
Request for Rehearing
45. EEI requests that the Commission specify that all appeals of
penalties, whether imposed by a Regional Entity or the ERO, should be
at the ERO level. It states that having a single formal appeal at the
ERO will ensure timely enforcement as well as consistency in
interpretation of Reliability Standards and in the sanctions applied
across Regional Entities. EEI also requests that the Commission clarify
that each Regional Entity must have a process to resolve issues that
arise in the course of implementation of its compliance enforcement
program before final decision in a particular matter is reached by the
Regional Entity. EEI maintains that this clarification is necessary to
ensure that the enforcement process includes due process protections
and procedures.
Commission Conclusion
46. Order No. 672 concludes that a single appeal at either the ERO
or Regional Entity is appropriate to avoid duplication and delay, but
allows an ERO applicant to propose in its application for certification
whether the appeal of a penalty imposed by a Regional Entity should be
at the ERO or Regional Entity.\47\ EEI may raise its concerns in the
ERO certification proceeding regarding the appropriate forum for such
an appeal. Further, we note that Order No. 672 directs the ERO and
Regional Entities to develop uniform due process procedures.\48\ EEI's
request for a process to resolve issues that arise in the course of a
Regional Entity's compliance program is satisfied by this requirement.
Accordingly, EEI's request for an additional requirement is not
necessary and is denied.
---------------------------------------------------------------------------
\47\ Id. at P 611.
\48\ Id. at P 494-495.
---------------------------------------------------------------------------
2. Monetary Penalties
47. Both the statute and our regulations require that a penalty
must bear a reasonable relationship to the seriousness of the
violation. Order No. 672 requires the ERO to develop penalty guidelines
that would provide a predictable, uniform and rational approach to the
imposition of penalties.
48. Further, Order No. 672 concludes that it is appropriate for the
entity investigating an alleged violation and imposing a penalty to
receive any penalty monies that result from that investigation.\49\
However, rather than allowing penalty monies to offset a specific
program, such as a compliance or enforcement program, the Final Rule
determines that, for an ERO or Regional Entity investigation, the
entity conducting the investigation should receive the penalty monies
as an offset against its next year's budget. Order No. 672 states that,
``[w]ith this approach, the monies represent a savings to those
consumers responsible ultimately for paying the costs of the ERO or
Regional Entity.'' \50\
---------------------------------------------------------------------------
\49\ Id. at P 626.
\50\ Id. at P 627.
---------------------------------------------------------------------------
49. In response to comments regarding the application of a penalty
to an RTO or ISO, Order No. 672 concludes that:
[w]hile we recognize that RTOs and ISOs have some unique
characteristics, we do not believe a generic exemption from any type
of penalty is appropriate for any entity, including an RTO or ISO.
The ERO or Regional Entity determining whether to impose a penalty
on an RTO or ISO may consider the entity's unique characteristics,
as well as the nature of the violation, in determining an
appropriate and effective sanction.
Further, we do not decide generically whether an RTO or ISO may
pass a monetary penalty through to its members or customers. We will
consider such an issue on a case-by-case basis.[\51\]
---------------------------------------------------------------------------
\51\ Id. at P 634-635 (footnote omitted).
Requests for Rehearing
50. ISO/RTO Council maintains that the Commission has not
adequately addressed the concern that penalty monies could create an
improper incentive for the ERO to over-collect penalties. It asserts
that the Commission has not explained why it is willing to allow
penalty monies to offset the enforcing entity's entire budget for
implementing section 215 of the FPA rather than just the costs of a
specific program, such as enforcement. ISO/RTO Council views the
incentives as being the same in each case. It urges the Commission to
adopt a clear rule requiring the ERO and Regional Entities to direct
penalty monies received from U.S. entities to the U.S. Treasury.
51. New York ISO asserts that the Commission erred when it failed
to establish that ISOs and RTOs should be subject to financial
penalties imposed by the ERO or a Regional Entity only in
``extraordinary circumstances.'' It argues that, because ISOs, RTOs and
reliability organizations are similarly situated in all material
respects, it is arbitrary and capricious for the Commission to
determine that reliability organizations will be subject to financial
penalties only in extraordinary circumstances and not to do likewise in
the case of ISOs and RTOs. New York ISO states that the Commission has
failed to justify treating reliability organizations more favorably
than ISOs and RTOs by refusing in Order No. 672 to provide that the
latter as well as the former would be subject to financial penalties
only in extraordinary circumstances.
52. New York ISO also contends that imposing a financial penalty
that could render a not-for-profit ISO or RTO insolvent is inconsistent
with the section 215(e) of the FPA and the Commission's own directive
that a penalty must be proportionate to the offense. An ISO or RTO
will, absent a pass-through, face insolvency if it is subject to a
financial penalty.
53. Further, New York ISO asserts that the Commission's failure to
establish that ISOs and RTOs should not be subject to financial
penalties in connection with reliability violations committed by third
parties within the ISO/RTO's control area is arbitrary and capricious,
as well as inconsistent with due process, section 215(e) of the FPA,
and the Commission's policy that penalties should be proportionate to
the offender's misconduct. New York ISO notes that, while Order No. 672
agrees generally that an entity should not be punished for a violation
outside of its control, the Order does not make a generic ruling on the
issue and, rather, directs New York ISO to raise such concerns in the
ERO stakeholder process. It asserts that failure to establish a
``bright line'' that insulates a party from penalty for a violation
outside its control is arbitrary and capricious and violates due
process.
54. SoCal Ed states that the Commission erred when it would not
decide generically whether an RTO or ISO may pass a monetary penalty
through to its members or customers. Like New York ISO, SoCal Ed points
to the limited resources of ISOs and RTOs. It seeks rehearing on this
issue and also argues that, in passing on costs, the ISO or RTO should
determine whether particular members or customers are responsible for
the penalty and obtain repayment from them.
Commission Conclusion
55. ISO/RTO Council does not explain why permitting penalty monies
to offset the enforcing entity's entire section 215 budget creates an
improper incentive for the ERO or a Regional Entity to overcollect
penalties. Penalty monies would be received as an offset against the
budget of the ERO and Regional Entities for discharging their statutory
duties in the coming year. Unless the aggregate amount of penalties
exceeds the entire ERO budget, the only beneficiaries of this policy
are the entities that have reduced payments for next year's support of
the ERO. Order No. 672 concludes that penalty monies
[[Page 19821]]
represent a savings to end users of electricity. ISO/RTO Council has
not persuaded us that this approach creates an improper incentive for
the ERO to impose excessive penalties. Further, we remind ISO/RTO
Council that every penalty must be filed with the Commission, and the
Commission is therefore in the position to detect and correct any
possible incentive for overcollection. ISO/RTO Council's request for
rehearing on this issue is, therefore, denied.
56. In response to New York ISO, while ISOs, RTOs and reliability
organizations may be similarly situated in some respects, they differ
in important respects regarding penalty liability. The most significant
difference, highly relevant to this proceeding, is that the statute
makes the ERO and Regional Entities responsible for establishing and
enforcing Reliability Standards, while making users, owners and
operators of the Bulk-Power System, including ISOs and RTOs, subject to
penalties for failure to comply with those Reliability Standards. It is
not arbitrary and capricious to treat all operators alike, including
RTOs and ISOs, in terms of their liability for violation of a
Reliability Standard. Nor is it arbitrary and capricious to treat the
ERO or a Regional Entity that violates a Commission order differently,
for penalty purposes, from an operator that violates a Reliability
Standard. The statute specifically authorizes the imposition of a
penalty on a user, owner or operator for the violation of a Reliability
Standard. The Commission acknowledges in Order No. 672 the unique
characteristics of ISOs and RTOs and agrees that, in determining a
penalty, circumstances such as organizational structure or not-for-
profit status will be considered.\52\
---------------------------------------------------------------------------
\52\ Consideration of such factors in determining an appropriate
penalty is consistent with our Enforcement Policy. See Enforcement
of Statutes, Orders, Rules, and Regulations, 113 FERC ] 61,068. See
also, Order No. 672 at P 561, n. 158.
---------------------------------------------------------------------------
57. New York ISO and SoCal Ed argue that the Commission erred in
denying a generic penalty exemption for RTOs and ISOs because in their
view--absent the ability to pass the penalty through to members or
customers--a monetary penalty would lead to the insolvency of such
entities. The Commission is mindful of the special characteristics of
RTOs and ISOs, including the resources they have at their disposal.
However, we do not believe that Congress enacted a law that provided
for Reliability Standards to be enforceable through penalties and
neglected to mention that it intended to exempt system operators that
operate the Bulk-Power System serving half or more of the electric load
in the United States. We understand that penalties may be monetary or
non-monetary and the difficulty that a large monetary penalty would
pose for a not-for-profit organization. However, we will not by rule
exempt these large and important system operators from monetary
penalties for violation of Reliability Standards. The Commission
directed New York ISO to raise its concern about the punishment of
entities for violations outside their control in the ERO or Regional
Entity stakeholder process because it is first necessary to determine
whether a proposed Reliability Standard would have this effect.\53\
Both New York ISO and SoCal Ed have failed to demonstrate the need for
a generic exemption or a blanket pass-through provision, and their
requests for rehearing on these points are therefore denied.
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\53\ Order No. 672 at P 636.
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58. For the reasons discussed above, the Commission affirms its
earlier decision and will not allow a generic pass through of monetary
penalties for RTOs and ISOs. However, an individual RTO or ISO may
propose a mechanism through a section 205 tariff filing to recover
penalty monies imposed by the ERO or a Regional Entity.
59. Further, any concerns regarding a particular ERO applicant's
proposed penalty imposition policies should be addressed in its ERO
certification proceeding.
F. Funding of the Electric Reliability Organization
60. Order No. 672 directs an ERO candidate to propose a formula or
method of funding addressing cost allocation and cost responsibility,
along with a proposed mechanism for revenue collection for Commission
consideration. Further, pursuant to the Final Rule, the ERO will fund
the Regional Entities as well as approve their budgets, under the
Commission's oversight. The ERO must file with the Commission its
entire proposed annual budget for statutory and non-statutory
activities, including the entire budgets of each Regional Entity. All
entities within the Commission's jurisdiction pursuant to section
215(b) of the FPA are required to pay any ERO assessments, as set out
in the ERO Rules approved by the Commission, in a timely manner
reasonably designated by the ERO.
1. Activities to be Funded by End-Users
61. Order No. 672 concludes that section 215 of the FPA ``provides
for federal authorization of funding limited to the development of
Reliability Standards and their enforcement, and monitoring the
reliability of the Bulk-Power System. However, the ERO or a Regional
Entity is not precluded from pursuing other activities, funded from
other sources.'' \54\ Likewise, any funding that is approved and
provided by the ERO to a Regional Entity would be limited to a Regional
Entity's costs related to the delegated functions.\55\ The Final Rule
explains that, while neither the ERO nor a Regional Entity is precluded
from pursuing other activities, activities not explicitly authorized
under FPA section 215 may not be funded through the ERO.
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\54\ Id. at P 202. Order No. 672 also discusses possible
limitations on such other activities. Id.
\55\ Id. at P 229.
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62. Order No. 672 also determines that it is not necessary to
provide in the Commission's regulations funding of a Regional Advisory
Body. The Final Rule states that ``[s]uch bodies are voluntary
organizations with members to be appointed by the Governor of each
participating state or province. Each Regional Advisory Body is
responsible for developing its own funding means.'' \56\
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\56\ Id. at P 248.
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Requests for Rehearing
63. SoCal Ed states that restricting ERO and Regional Entity
activities funded by end users to the development of Reliability
Standards and their enforcement, and monitoring the reliability of the
Bulk-Power System is too restrictive and that the ERO and the Regional
Entities will have many more reliability-related functions. SoCal Ed
states that it is not clear that, for example, the ERO and Regional
Entities may be funded for costs associated with ``reliability
centers'' and reliability assessments of the Bulk-Power System. SoCal
Ed asks that the Commission allow end-user funding of all ERO and
Regional Entity reliability activities.
64. Western Governors/CREPC, supported by the CPUC, asks the
Commission to clarify whether Order No. 672, in the discussion of
Regional Advisory Body funding, simply declines to guarantee that the
budget of a Regional Advisory Body will be funded through section 215
mandatory reliability fees collected from end users or whether the
Final Rule precludes the inclusion of a Regional Advisory Body budget
in such mandatory fees. Further, Western Governors/CREPC seeks
rehearing to the extent that the Commission intended to preclude
funding of a Regional Advisory Body
[[Page 19822]]
through mandatory fees collected from end users. Western Governors/
CREPC argues that precluding such funding would be inconsistent with
section 215(c)(2)(B), which requires the ERO to have rules that
allocate equitably reasonable dues, fees, and other charges among end
users for all activities under that section. Western Governors/CREPC
maintains that Regional Advisory Body activities under section 215(j)
are covered by this requirement and that end users will benefit from
those activities. Western Governors/CREPC also argues that making
Regional Advisory Bodies responsible for their own funding would
discourage the formation of such entities and reduce their
effectiveness.
Commission Conclusion
65. With regard to SoCal Ed's request, we clarify that the ERO can
collect a Commission-approved assessment of dues, fees or charges for
all activities performed pursuant to section 215 of the FPA, which
would include all activities pursuant to our regulations. The isolated
preamble language cited by SoCal Ed was not intended to limit the scope
of ERO activities that may be funded. Elsewhere in the preamble to
Order No. 672, as well as the regulation text, the Commission
distinguishes between statutory and non-statutory activities of the
ERO, and indicates that statutory activities of the ERO should be
funded through a Commission-approved assessment of dues, fees or
charges, while non-statutory activities must be funded through other
means.\57\ We will consider what a permissible statutory activity is
when we see a specific proposal.
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\57\ Id. at P 197, 198, 228 and 18 CFR 39.4(b).
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66. In response to Western Governors/CREPC, we agree that neither
the statute nor Order No. 672 provides explicitly for Commission-
approved ERO funding of a Regional Advisory Body, nor does either
explicitly preclude such funding. As Western Governors commented in
response to our proposed rule, under the statute the Commission must
establish a Regional Advisory Body if it meets the explicit statutory
criteria. In response to this comment by Western Governors and others,
Order No. 672 reflects this requirement. However, Western Governors/
CREPC does not indicate what would be the nature or scope of the
funding for the Regional Advisory Body that it would like to see
codified in our regulations. Order No. 672 appropriately does not
automatically provide for ratepayer funding for any Regional Advisory
Body through section 215 of the FPA without an opportunity to consider
the nature, size, and cost of Regional Advisory Body activities. We
recognize that, in some regions, the governors may prefer to provide
state funding for such a Body to ensure its independence from the
entities it must advise, namely, the ERO, the Regional Entity, and the
Commission.
67. Our approach in Order No. 672 is to codify the requirement to
establish such a Body, upon petition, if it meets the statutory
criteria, and to consider subsequently any funding request. In response
to any such request, the Commission would consider what activities are
covered by the requested funds. Any such request would have to specify,
for example, whether the funding is just for the travel expenses of
Regional Advisory Body members, or goes beyond that to include funding
for other things (such as funding for state employees who support the
members of the Regional Advisory Body, non-governmental employee
staffing for the Regional Advisory Body itself, outside consultants or
reliability experts, costs of any studies, or any other intended
activities). Since this request would be part of the ERO's overall
budget, we would be able to consider also the recommendation of the ERO
and any relevant Regional Entity. These considerations are beyond the
scope of this rulemaking and best considered with a specific
application before us. For these reasons, we deny the request for
rehearing of Order No. 672 but clarify that this denial is without
prejudice to any possible future ERO request for Regional Advisory Body
funding in its budget (including that portion of its budget that
provides funding for the activities of the Regional Entities).
68. For example, one mechanism that the ERO may choose to consider
is the funding of a Regional Advisory Body through the sharing of
costs. The ERO could seek Commission approval of a ``matching'' program
in which Commission-approved funding would be permitted in an amount up
to that contributed by the relevant states to the Regional Advisory
Body's budget for section 215 activities. The Commission will consider
this or other proposed approaches to Regional Advisory Body funding on
a case-by-case basis.
2. Allocation of ERO Costs
69. SoCal Ed contends that the Final Rule does not address its
comment that RTOs and ISOs, if allocated section 215 reliability costs,
should be required to amend their Commission-approved tariffs to
provide a method for the allocation of such costs to end users in their
footprint. It argues that failure to do this could deny RTO and ISO
members due process and subject them to regulatory uncertainty.
Commission Conclusion
70. We agree with SoCal Ed that an RTO or ISO may need to amend its
Commission-approved tariff to provide a method for the recovery of
costs if it is allocated ERO costs. SoCal Ed is assuming that an RTO or
ISO rather than a load-serving entity will be allocated such costs.
Order No. 672 states that ``cost allocation and cost responsibility
questions should be addressed first by the ERO and submitted together
with a proposal for revenue collection for Commission approval.'' \58\
Because we do not have a
