North American Electric Reliability Corporation; Order Addressing Applicability of Section 215 of the Federal Power Act to Federal Entities, 54033-54038 [E9-25224]
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Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Notices
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Comment Date: 5 p.m. Eastern Time
on November 9, 2009.
Kimberly D. Bose,
Secretary.
[FR Doc. E9–25257 Filed 10–20–09; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
[Docket No. EL10–3–000]
Citizens Energy Corporation; Notice of
Filing
This filing is accessible on-line at
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Comment Date: 5 p.m. Eastern Time
on November 9, 2009.
Kimberly D. Bose,
Secretary.
[FR Doc. E9–25255 Filed 10–20–09; 8:45 am]
BILLING CODE 6717–01–P
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October 14, 2009.
Take notice that on October 9, 2009,
pursuant to Rule 207 of the Federal
Energy Regulatory Commission’s Rules
of Practice and Procedure, 18 CFR
385.207 (2006), Section 219 of the
Federal Power Act, 16 U.S.C. 791a–
828c, 824s, and Order No. 679,
Promoting Transmission Investment
Through Pricing Reform, Order No. 679,
116 FERC 61,057, order on reh’g, 117
FERC 61,345 (2006) (Order No. 679A)
(Incentive Pricing Rule), Citizens Energy
Corporation filed a Petition for
Declaratory Order requesting
Commission approval of two rate
treatments for the Sunrise Powerlink
Transmission Project, located in
Imperial Valley, California.
Any person desiring to intervene or to
protest this filing must file in
accordance with Rules 211 and 214 of
the Commission’s Rules of Practice and
Procedure (18 CFR 385.211, 385.214).
Protests will be considered by the
Commission in determining the
appropriate action to be taken, but will
not serve to make protestants parties to
the proceeding. Any person wishing to
become a party must file a notice of
intervention or motion to intervene, as
appropriate. Such notices, motions, or
protests must be filed on or before the
comment date. On or before the
comment date, it is not necessary to
serve motions to intervene or protests
on persons other than the Applicant.
The Commission encourages
electronic submission of protests and
interventions in lieu of paper using the
‘‘eFiling’’ link at https://www.ferc.gov.
Persons unable to file electronically
should submit an original and 14 copies
of the protest or intervention to the
Federal Energy Regulatory Commission,
888 First Street, NE., Washington, DC
20426.
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DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
[Docket No. NP09–26–000]
North American Electric Reliability
Corporation; Order Addressing
Applicability of Section 215 of the
Federal Power Act to Federal Entities
October 15, 2009.
1. On June 24, 2009, the North
American Electric Reliability
Corporation (NERC) filed a Notice of
Penalty for a self-certified violation of a
Commission-approved Reliability
Standard by the U.S. Army Corps of
Engineers (Corps)-Tulsa District. In that
filing, NERC requested that the
Commission issue a decision addressing
the jurisdictional issue of whether,
pursuant to section 215 of the Federal
Power Act (FPA), federal entities that
use, own, or operate the Bulk-Power
System, such as the Corps-Tulsa
District, must comply with mandatory
Reliability Standards.
2. The Corps-Tulsa District did not
seek Commission review of the Notice
of Penalty, which took effect on the 31st
day after filing pursuant to section
215(e)(2) of the FPA.1 In this order, we
affirm that, pursuant to section 215 of
the FPA, the Corps-Tulsa District and
other federal entities that use, own, or
operate the Bulk-Power System must
comply with mandatory Reliability
Standards.
Background
A. Statutory Framework
3. Section 215 of the FPA authorizes
the Commission to certify and oversee
1 16
PO 00000
U.S.C. 824o(e)(2) (2006).
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an electric reliability organization
(ERO), which is responsible for
developing and enforcing mandatory
Reliability Standards that are applicable
to owners, users, and operators of the
Bulk-Power System.2 Section 215(e)
authorizes the ERO, as well as the
Commission on its own motion or on
complaint, to assess penalties for
violation of Reliability Standards.3
Exercising this statutory authority, the
Commission certified NERC as the
ERO 4 and initially approved 83
Reliability Standards.5 Further,
consistent with the statute, NERC as the
ERO delegated to eight Regional
Entities, including Texas Regional
Entity, authority to, inter alia, enforce
mandatory Reliability Standards.6
4. Users, owners, and operators of the
Bulk-Power System are required to
register with NERC.7 NERC’s
Compliance Registry identifies all
entities subject to compliance with the
approved Reliability Standards. Further,
NERC has developed a statement of
Registry Criteria that is employed by
NERC and the Regional Entities to
determine which organizations should
be registered because they are material
to the reliability of the Bulk-Power
System.8 In cases where an entity is
registered involuntarily by NERC, that
entity has an opportunity to timely
appeal its registration status in
accordance with Rule 504 and
Appendix 5 to NERC’s Rules of
Procedure.
5. NERC must file a Notice of Penalty
with the Commission before a Regional
Entity or NERC penalty assessment for
the violation of a Reliability Standard
takes effect.9 Each penalty
determination is subject to Commission
review, on its own motion or by an
application for review by the recipient
2 16
U.S.C. 824o(c) (2006).
§ 824o(e).
4 North American Electric Reliability Corp., 116
FERC ¶ 61,062, order on reh’g and compliance, 117
FERC ¶ 61,126 (2006), order on compliance, 118
FERC ¶ 61,030, order on compliance, 118 FERC
¶ 61,190, order on reh’g, 119 FERC ¶ 61,046 (2007),
aff’d sub nom. Alcoa Inc. v. FERC, 554 F.3d 1342
(D.C. Cir., 2009).
5 Mandatory Reliability Standards for the BulkPower System, Order No. 693, FERC Stats & Regs.
¶ 31,242, order on reh’g, Order No. 693–A, 120
FERC ¶ 61,053 (2007).
6 North American Electric Reliability Corp., 119
FERC ¶ 61,060, order on reh’g, ¶ 61,260 (2007).
7 18 CFR 39.2(c) (2009).
8 The Commission accepted the NERC Registry
Criteria in Order No. 693, FERC Stats. & Regs.
¶ 31,242 at P 93–95.
9 Rules Concerning Certification of the Electric
Reliability Organization; and Procedures for the
Establishment, Approval, and Enforcement of
Electric Reliability Standards, Order No. 672, FERC
Stats. & Regs. ¶ 31,204 at P 506, order on reh’g,
Order No. 672–A, FERC Stats. & Regs. ¶ 31,212
(2006).
3 Id.
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of a penalty, within thirty days from the
date NERC files the applicable Notice of
Penalty.10 In the absence of the filing of
an application for review of a penalty or
motion or other action by the
Commission, each penalty filed by
NERC is affirmed by operation of law
upon the expiration of the applicable
thirty-day period.
B. Notice of Penalty
1. Corps-Tulsa District Violation
6. The Corps-Tulsa District owns a
hydropower project called the Denison
Project Generator, located on the Red
River in Bryan County, Oklahoma and
Grayson County, Texas. The Denison
project has two main generators with a
maximum plant capacity of 80
megawatts. Texas Regional Entity
registered the Corps-Tulsa District in
June 2007 as a generator owner.
According to NERC, the Corps-Tulsa
District was provided notice of the
registration and did not appeal its
registration status.
7. On June 24, 2009, NERC submitted
a Notice of Penalty incorporating the
findings and justifications set forth in a
Notice of Confirmed Violation and
Proposed Penalty or Sanction issued on
February 20, 2008, by the Texas
Regional Entity.11 According to NERC,
the Corps-Tulsa District self-certified on
October 3, 2007, non-compliance with
Reliability Standard PRC–005–1
Requirements R1.1 and R2 for its
Denison Project Generator.12 NERC
states that, in the self-certification, the
Corps-Tulsa District argued that, as a
governmental entity, it was not required
to comply with section 215 of the FPA.
According to NERC, the Corps stated
that, because of this uncertainty, it was
not in a position to register with the
Regional Entity, but that it would strive
to meet the electric Reliability
Standards established pursuant to
section 215 of the FPA, subject to the
availability of funds appropriated by
Congress and project operation
requirements.
8. On October 31, 2007, Texas
Regional Entity issued an Initial Notice
10 16
U.S.C. 824o(e)(2) (2006).
Regional Entity is an independent
division of the Electric Reliability Council of Texas,
Inc. (ERCOT).
12 PRC–005–1 requires that all generation
protection systems affecting the reliability of the
bulk electric system be maintained and tested.
Requirement R1 requires each generator owner that
owns a generation protection system to have a
protection system maintenance and testing program
for protection systems that affect the reliability of
the Bulk-Power System. Requirement R1.1 requires
that this program include maintenance and testing
intervals and their basis. Texas Regional Entity
subsequently determined that the Corp-Tulsa
District did not violate PRC–005–1, Requirement R2
and it dismissed that violation.
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11 Texas
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of Alleged Violation and, subsequently,
a Notice of Alleged Violation and
Proposed Penalty or Sanction
(NAVAPS). NERC states that the CorpsTulsa District responded to the
NAVAPS on November 20, 2007, but
did not make the required election of
agreeing with/not contesting or
contesting the alleged violations and/or
penalty. Instead, according to NERC, the
Corps-Tulsa District asserted that the
self-reporting data it provided on
October 3, 2007 to Texas Regional Entity
was provided on a voluntary basis, that
the submission did not constitute entity
registration or a recognition of
jurisdiction by the Corps, and that the
Corps is not in a position to register
with the Corps-Tulsa District’s
respective reliability organization.
NERC states that the Corps-Tulsa
District further stated that, in order ‘‘[t]o
avoid substantial changes to preliminary
mitigation plans as a result of the
[Corps’] forthcoming national policy, a
mitigation plan for this non-compliance
will not be submitted until this national
policy has been completed,’’ and that it
will ‘‘voluntarily conform to the
reliability standards * * * [t]o the
extent [its] current appropriations allow
[it] to comply with the Act.’’ 13
9. NERC states that on January 17,
2008, Texas Regional Entity issued a
letter to the Corps-Tulsa District
directing it to submit an acceptable
mitigation plan within ten days. The
Corps-Tulsa District responded asserting
that it was unclear whether it is subject
to the requirements of section 215 of the
FPA, but that it intended to make all
reasonable efforts to voluntarily comply
with the Reliability Standards while
remaining within the funding level
provided by Congress. The Corps-Tulsa
District stated that it was awaiting
receipt of national policy guidance
regarding submission of mitigation
plans, and projected that it would be
able to provide a final regional
mitigation plan by October 2008.
10. NERC states that on January 30,
2008, the Corps-Tulsa District submitted
a mitigation plan to Texas Regional
Entity but again reiterated its belief that
section 215 of the FPA does not apply
to the Corps-Tulsa District because it
does not contain a clear, unequivocally
expressed waiver of sovereign
immunity, which, the Corps-Tulsa
District argues, is necessary for any
entity to exercise jurisdiction over a
federal agency. The Corps-Tulsa District
also reiterated that it intended to make
all reasonable efforts to voluntarily
comply with NERC Reliability
Standards so long as it can do so within
the funding levels authorized to it by
Congress.
11. Texas Regional Entity proposed a
zero dollar penalty. After NERC review,
NERC submitted the Notice of Penalty to
the Commission on June 24, 2009. The
penalty became effective by operation of
law on July 27, 2009, and the
Commission issued notice to that
effect.14 The Commission noted that the
Corps-Tulsa District has challenged the
applicability of mandatory Reliability
Standards under section 215 of the FPA,
that the Commission has sought
comments on the applicability of
mandatory Reliability Standards to the
U.S. Army Corps of Engineers and other
federal agencies, and that it would
address this issue separately.15
13 NERC June 24, 2009 Filing, attachment b (COE–
Tulsa District response to the Notice of Alleged
Violation and Proposed Penalty and Sanction,
November 20, 2007).
14 North American Electric Reliability Corp., 128
FERC ¶ 61,088 (2009).
15 Id. at n.1.
16 Notice of Penalty at 7.
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2. NERC Request for Decision on
Jurisdictional Matter
12. In the Notice of Penalty, NERC
states that the Corps-Tulsa District ‘‘has
challenged NERC’s jurisdiction (and
therefore that of the Commission) under
section 215 of the FPA.’’ 16 NERC,
however, believes that the Corps-Tulsa
District is subject to mandatory
Reliability Standards under section 215
and requests that the Commission,
regardless of whether the Corps-Tulsa
District seeks Commission review of the
Notice of Penalty, issue a decision on
the scope of NERC’s and the
Commission’s jurisdiction under section
215 of the FPA.
13. In support of its position, NERC
states that section 215 (b)(1) of the FPA
provides that ‘‘[t]he Commission shall
have jurisdiction * * * over * * * all
users, owners, and operators of the bulkpower system, including but not limited
to the entities described in section
201(f), for purposes of approving
reliability standards established under
this section and enforcing compliance
with this section.’’ NERC argues that
section 201(f) of the FPA describes
agencies or instrumentalities of the
United States and thus these entities are
expressly included within the term
‘‘users, owners, and operators of the
bulk-power system’’ in section 215 and
made subject to the Commission’s
jurisdiction to both approve and enforce
Reliability Standards.
14. In further support, NERC states
that Congress, in the Energy Policy Act
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of 2005,17 made technical and
conforming amendments to the FPA that
were necessitated by the substantive
changes to the FPA, including the
addition of section 215. As part of these
changes, FPA section 201(b), which
establishes the applicability of Part II of
the FPA, was amended to expressly add
‘‘section 215’’ to the list of sections of
the FPA enumerated in section 201(b)(2)
and to add ‘‘[n]otwithstanding section
201(f)’’ to the beginning of section
201(b)(2). NERC argues that the specific
provisions of section 201(b)(2) override
the general language of section 201(f),
which excludes the United States from
the application of Part II of the FPA.
Thus, NERC argues that section
201(b)(2) provides further confirmation
that the United States is subject to
section 215 and to Commission
jurisdiction both for carrying out the
provisions of sections 215 and for
enforcing those provisions.
15. Finally, NERC looks to the
legislative history of the Energy Policy
Act of 2005 and in particular, to the
debate surrounding the Thomas
amendment, which was adopted by the
United States Senate in 2002 and which
was a precursor to FPA section 215.
NERC points to an explanation offered
by Senator Thomas, the author of that
amendment, stating ‘‘[t]he new
reliability organization will have
enforcement powers with real teeth to
ensure reliability. The amendment
provides that mandatory reliability rules
will apply to all users of the
transmission grid. There are no
loopholes. No one will be exempt.’’ 18
NERC notes that Senator Bingaman also
stated that ‘‘[t]he reliability system
needs to apply to all users.’’ In addition,
NERC quotes a later analysis of
substantively similar reliability
legislation by the General Accounting
Office acknowledging the applicability
of reliability rules to federal entities:
‘‘All users, owners and operators of the
bulk-power system would have to
comply with the reliability standards.
* * * We understand this would
include both private entities and
Federal entities (such as the Tennessee
Valley Authority, the Bonneville Power
Administration, and other federal
marketing agencies), among others.’’ 19
Notice of Filing and Comments
16. Notice of NERC’s June 24, 2009
filing was published in the Federal
17 Energy Policy Act of 2005 (EPAct 2005), Pub.
L. No 109–58, Title XII, Subtitle A, 119 Stat. 594,
941 (2005).
18 Citing Cong. Rec. 1874 (March 14, 2002).
19 Citing General Accounting Office, Draft
Legislation Concerning an Electric Reliability
Organization, at 3, n.5 (March 18, 2003).
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Register, 74 FR 32,153 (2009), with
comments due on or before July 24,
2009. By notice published July 24, 2009,
the comment period was extended to
August 24, 2009.
17. The Corps filed a motion to
intervene and comments regarding the
applicability of Reliability Standards
under section 215 of the FPA.
18. In addition, Western Electricity
Coordinating Council (WECC), Tex-La
Electric Cooperative of Texas, Inc.,
SERC Reliability Corporation, and the
Midwest Reliability Organization filed
motions to intervene. Mid-West Electric
Consumers Association and the
Southwestern Power Resources
Association (collectively, Federal Power
Customers), Texas Regional Entity, the
National Rural Electric Cooperative
Association (NRECA), the United States
Department of Energy (DOE),
ReliabilityFirst Corporation
(ReliabilityFirst), the Southeastern
Federal Power Customers, Inc.
(Southeastern Customers) and the
United States Department of the Interior
(Interior) filed motions to intervene and
comments. The Department of the
Army, Office of the Assistant Secretary
for Civil Works (Department of the
Army), filed comments. The Southwest
Transmission Dependent Utility Group
(Southwest Utility Districts), Tri-State
Generation and Transmission
Association, Inc. (Tri-State) filed
motions to intervene and protests.
19. On September 8, 2009, NERC filed
reply comments. On September 23,
2009, the Corps filed an objection to
NERC’s motion for leave to file reply
comments. On October 7, 2009, DOE
filed a response to NERC’s reply
comments. On October 7, 2009, DOE
also filed a motion for a stay to suspend
enforcement activity only in those cases
where a civil fine against a DOE entity
is at issue.20
being utilized for transmission of power
from the Denison powerhouse. The
other line is energized up to an open
breaker and associated disconnecting
switch in the switchyard. According to
the Corps, while it is possible to
transmit power both into Oklahoma and
Texas simultaneously using individual
units, the two systems can never be
connected together without resulting in
equipment damage. A ‘‘bus tie’’ breaker
is used to separate the two units for this
type of operation. Therefore, the Corps
asserts that this switchyard is treated as
a radial transmission line with no
critical connection to the ERCOT
system. The Corps further asserts that
since no power is ‘‘wheeled’’ through
the switchyard to serve another load,
NERC has not alleged that if the
switchyard equipment fails, there will
be an adverse effect on the reliability of
the Bulk Power System.
21. The Corps contends that section
215 does not grant the Commission or
NERC jurisdiction over Corps-owned
hydroelectric generating facilities at its
Civil Works projects.21 The Corps adds
that NERC’s analysis is flawed in that
the Corps has numerous hydropower
projects and in order to respond to
NERC’s filing, which is essentially a
request for declaratory judgment, the
Corps must address the unique
configurations of each of its facilities,
although only one was involved in the
Notice of Penalty. The Corps asserts that
this violates its due process rights
because only the Denison Generator
Project has been cited. The Corps also
asserts that Congress has not waived the
Corps’ sovereign immunity, and thus,
NERC cannot issue monetary penalties
against the Corps. Further, the Corps
asserts that the legal dispute should be
submitted to the Attorney General, not
through the Commission’s notice and
comment process.
A. The Corps’ Comments
20. The Corps states that it currently
operates 75 hydropower plants
nationwide and they account for three
percent of the nation’s total electrical
capacity. The Corps states that the
Denison powerhouse, the subject of
NERC’s Notice of Penalty, is operated as
a peaking plant with approximately 37
percent plant annual capacity factor.
The Corps also states that although there
are two transmission lines going into the
Denison switchyard, only the
transmission line going into Texas is
B. Other Comments and Protests
22. The Department of the Army,
NRECA, Southwest Utility Districts, and
Interior raise procedural issues. The
Department of the Army states that the
Department of Justice’s Office of Legal
Counsel, and not the Commission’s
adjudicatory process, is the proper
forum for resolving the disagreement on
implementation of section 215 of the
FPA. NRECA states that it supports
NERC’s need for clarity regarding the
scope of its jurisdiction under section
215 but does not believe a specific
20 The Commission recognizes that the DOE has
a concern that the possibility of civil penalties for
federal entities may cause litigation in a number of
proceedings; however, given that the issue of civil
fines is beyond the scope of this proceeding, we do
not discuss DOE’s motion here. See infra P 32.
21 According to the Corps’ January 31, 2007 Civil
Works Information Paper, all 75 of its hydropower
plants are Civil Works projects. U.S. Army Corps of
Engineers, Civil Works Program Statistics (January
31, 2007) available at https://140.194.76.129/cw/
cecwb/GWiz07.pdf.
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penalty proceeding is appropriate for
resolving this broad issue involving
multiple federal agencies and one or
more cabinet-level departments. NRECA
states that it would be more appropriate
for the Commission to temporarily
suspend the procedural schedule in this
docket and confer with the Corps and
other federal agencies. Interior states
that the proceeding should be stayed to
allow for prompt interagency resolution
of the relevant jurisdictional issues.
Southwest Utility Districts state that the
Commission should create a list of
specific issues and seek supplemental
briefing of the parties who do intervene
in this proceeding and of federal
agencies that do not intervene but could
file subsequent comments.
23. Texas Regional Entity, WECC, and
ReliabilityFirst agree with NERC’s
conclusion that federal entities such as
the Corps-Tulsa District are subject to
mandatory Reliability Standards under
section 215 of the FPA, including its
penalty and sanction provisions. Texas
Regional Entity reiterates the
information described in NERC’s Notice
of Penalty and requests that the
Commission affirm jurisdiction by the
Commission and NERC over the CorpsTulsa District under section 215 of the
FPA. ReliabilityFirst asserts that a
determination that exempts federal
entities from the Commission’s section
215 jurisdiction would have farreaching implications for the reliability
of the Bulk-Power System. According to
ReliabilityFirst, federal entities are an
important part of the users, owners, and
operators of the Bulk-Power System in
ReliabilityFirst’s region and they have
an even more substantial presence in
other regions. Thus, according to
ReliabilityFirst, exempting federal
entities from compliance with
mandatory Reliability Standards would
impair the reliability and the resilience
of the electric grid.
24. ReliabilityFirst identifies a
number of potential consequences if
federal entities are not required to
comply with mandatory Reliability
Standards. It states that such an
exclusion ‘‘would provide a
disincentive to the interaction between
users, owners, and operators that is
necessary to preserve reliability.’’ 22 It
adds that not only do some Reliability
Standards depend on the timely
exchange of information and directives
between registered entities, but the
effectiveness of some Reliability
Standards, in particular the Critical
Infrastructure Protection standards,
depends in large part on system-wide
compliance. ReliabilityFirst further
22 ReliabilityFirst
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17:33 Oct 20, 2009
states that several Reliability Standards
require reliability coordinators to issue
directives to other registered entities so
that necessary steps are taken to
preserve reliability. It adds that if a
federal entity fulfilling a transmission
operator or generator operator function
is exempt from the Commission’s
jurisdiction and refuses to acknowledge
this reliability coordinator authority in
an emergency situation, cascading
outages or other manifestations of severe
grid instability could result. Similarly,
according to ReliabilityFirst, failure to
heed a reliability coordinator’s directive
to return the system to within an
Interconnection Reliability Operating
Limit could have disastrous results for
system reliability. Likewise, the failure
of generators to notify their
corresponding transmission operators
and balancing authorities if they
experience a protective relay or
equipment failure may prevent the
transmission operator from learning of
this failure in time to take appropriate
corrective action, thereby endangering
system reliability.
25. Finally, ReliabilityFirst asserts
that the application of Reliability
Standards to federal entities is
meaningless without the power to
enforce those Reliability Standards.
ReliabilityFirst states that without
enforcement power, compliance would
be voluntary, the situation that existed
before the passage of section 215 of the
FPA. ReliabilityFirst urges the
Commission to conclude that federal
entities are subject to section 215,
including the penalty and sanction
provisions and states that this is the
plain meaning of the statute and to
decide otherwise would contravene the
intent of Congress and undermine all of
the Commission’s efforts to ensure the
reliability of the Bulk-Power System and
prevent a cascading blackout.
26. DOE, Interior, Tri-State and
Southeastern Customers argue that
federal agencies must comply with
NERC’s Reliability Standards but should
not be subject to monetary penalties.
DOE argues that the plain language of
section 215(b)(1) makes it clear that the
Commission has jurisdiction over ‘‘all
users, owners, and operators of the bulkpower system, including but not limited
to the entities described in section
201(f) for purposes of approving
Reliability Standards established under
this section and enforcing compliance
with this section.’’ 23 DOE adds that the
clear inclusion of federal entities
described in section 201(f) is consistent
with Congress’s intent to ensure
reliability nationwide. DOE further
23 16
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contends that section 201(b)(2) limits
the Commission’s section 215
jurisdiction over federal entities to the
purposes described in section 215,
providing:
Notwithstanding section 201(f), the
provisions of section * * * 215 * * * shall
apply to the entities described in such
provisions and such entities shall be subject
to the jurisdiction of the Commission for
purposes of carrying out the enforcement
authorities of this Act with respect to such
provisions. Compliance with any order or
rule of the Commission under the provisions
of section * * * 215 * * * shall not make
an electric utility or other entity subject to
the jurisdiction of the Commission for any
purposes other than the purposes specified in
the preceding sentence.
DOE argues that section 201(b)(2)
supports Commission jurisdiction over
DOE entities under section 215 and
section 215 alone; it does not authorize
the Commission to punish violations of
section 215 by assessing criminal
penalties or levying monetary civil fines
under any other section of the FPA.
DOE also asserts that the term ‘‘penalty’’
is not defined with sufficient clarity in
section 215(e) to support the imposition
of punitive monetary penalties on DOE
entities under that section.
27. Tri-State argues that it is vital that
all users, owners and operators,
including federal agencies, obey the
same mandatory Reliability Standards to
ensure the reliability of the Bulk-Power
System. Southeastern Customers state
that the Commission has already
determined that in the Southeast the
Corps was appropriately registered as
the transmission operator and the Corps
did not challenge this application of the
Reliability Standards.24 Both Tri-State
and Southeastern Customers, argue,
however, that federal agencies should
not be subject to monetary penalties for
violation of Reliability Standards. TriState argues that federal agencies rely on
appropriated funds from the U.S.
Treasury to finance their statutory
obligations and generally do not have
the authority to pay civil penalties
because they have limited discretion in
allocating these funds. Tri-State adds
that even where a court has found a
claim to be valid under the law, the
claim may not be paid unless Congress
has enacted an appropriation available
for that purpose.25 In addition, both TriState and Southeastern Customers argue
that the Anti-Deficiency Act prohibits a
federal agency from paying monetary
penalties because it may not spend or
24 Citing Southeastern Power Administration, 125
FERC ¶ 61,294, at P 24 (2008).
25 Citing Office of Pers. Management v.
Richmond, 496 U.S. 414, 424–25 (1990); Cincinnati
Soap Co. v. United States, 301 U.S. 308, 321 (1937).
E:\FR\FM\21OCN1.SGM
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Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Notices
obligate more capital than was
appropriated through the congressional
funding process for that particular
purpose.26 Likewise, Southwest Utility
Districts argue that assessing a fine
against a federal agency is much more
complicated than assessing it against a
private utility, in particular because the
funds received by a federal agency are
received with specific statutory
instructions and limitations.
28. Federal Power Customers state
that their members are purchasers of
energy generated and/or marketed by
federal agencies, specifically, the Corps,
the U.S. Bureau of Reclamation, the
Western Area Power Administration,
and the Southwestern Power
Administration. Federal Power
Customers comment that it is unclear
whether potential penalties assessed by
NERC and the Commission against the
aforementioned federal agencies may
become subsumed in the costs passed
on to Federal Power Customers or their
members. Federal Power Customers
request that, in reaching a jurisdictional
determination, such determination not
contain any inference regarding the
federal agencies’ ability to pass through
penalties to customers.
Discussion
jlentini on DSKJ8SOYB1PROD with NOTICES
A. Procedural Matters
29. Pursuant to Rule 214 of the
Commissions Rules of Practice and
Procedure, 18 CFR 385.214 (2009), the
timely unopposed motions to intervene
serve to make the entities that filed
them parties to this proceeding. Rule
213(a)(2) of the Commission’s Rules of
Practice and Procedure, 18 CFR
385.213(a)(2) (2009), prohibits an
answer to an answer unless otherwise
ordered by the decisional authority. We
are not persuaded to accept NERC’s or
DOE’s answers and will, therefore, reject
them.
B. Commission Determination
30. As discussed below, we conclude
that, pursuant to section 215 of the FPA,
federal entities such as the Corps-Tulsa
District that are users, owners, or
operators of the Bulk-Power System
must comply with mandatory Reliability
Standards. The issue of whether a
specific entity is a user, owner, or
operator of the Bulk-Power System is a
factual matter that is, in the first
instance, determined by the ERO and
the relevant Regional Entity in NERC’s
compliance registration process.27 Thus,
26 Citing the Anti-Deficiency Act, 31 U.S.C.
1341(a)(1)(A) (2006).
27 See, e.g., Order No. 693, FERC Stats. & Regs.
¶ 31,242 at P 93–96. Pursuant to NERC’s Rules of
Procedure, an entity that disagrees with the ERO’s
VerDate Nov<24>2008
17:33 Oct 20, 2009
Jkt 220001
to the extent that the Corps raises
concerns whether specific Corps
facilities are Bulk-Power System
facilities or a specific Corp District is a
user, owner, or operator of the BulkPower System, these matters are
appropriately raised in the first instance
with the relevant Regional Entity
pursuant to NERC’s compliance registry
procedures. In this order, we are not
making factual determinations regarding
specific entities or facilities. Rather, we
address the legal applicability of section
215 of the FPA to federal entities such
as the Corps-Tulsa District.
1. Procedural Arguments
31. At the outset, we disagree with
comments suggesting that the
Commission’s process is the incorrect
forum for determining the
implementation of section 215, or that
the proceedings should be stayed to
allow for interagency resolution.
Pursuant to section 215(b) of the FPA,
all users, owners, and operators of the
Bulk-Power System must comply with
mandatory Reliability Standards that are
developed by the ERO and approved by
the Commission. We have in the first
instance the authority to determine the
scope of our jurisdiction.28 Our
authority to make this determination is
not dependent on the ultimate outcome
of the determination. Accordingly, we
address here the issue of the
Commission’s authority pursuant to
section 215 of the FPA to require that
federal entities such as the Corps-Tulsa
District comply with mandatory,
Commission-approved Reliability
Standards.
32. The Corps and several
commenters address the additional
question of whether federal entities are
subject to monetary penalties for noncompliance with mandatory Reliability
Standards. We view this as a separate
and distinct issue. We need not and do
not address it here.
registration determination can seek Commission
review of that decision.
28 See, e.g., Nine Mile Point Nuclear Station LLC
v. Niagara Mohawk Power Corp., 110 FERC
¶ 61,033, at P 30 & n.31 (2005), aff’d, 452 F.3d 822
(D.C. Cir. 2006); accord New York v. FERC, 535 U.S.
1, 22–23 (2002) (holding the Commission was
within its authority to establish a seven-factor test
to determine which facilities are local distribution
facilities that fall outside of the Commission’s
jurisdiction pursuant to FPA section 201). Cf.
Western Massachusetts Electric Co., 61 FERC
¶ 61,182, at 61,661 (1992), aff’d, 165 F.3d 922, 926
(D.C. Cir. 1999) (concluding the Commission may
examine contracts relating to transactions which
may be subject to its jurisdiction prior to making
its determination as to jurisdiction).
PO 00000
Frm 00020
Fmt 4703
Sfmt 4703
54037
2. Section 215 Jurisdiction Over Users,
Owners, and Operators
33. With regard to the Commission’s
section 215 jurisdiction, FPA section
215(b)(1) states, in relevant part,
Jurisdiction and applicability: (1) The
Commission shall have jurisdiction * * *
over * * * all users, owners and operators of
the bulk-power system, including but not
limited to the entities described in section
201(f), for purposes of approving reliability
standards established under this section and
enforcing compliance with [section 215]. All
users, owners and operators of the bulkpower system shall comply with reliability
standards that take effect under this
section.29
FPA section 201(f) states, in relevant
part,
No provision in [Part II of the FPA] shall
apply to, or be deemed to include, the United
States, a State or any political subdivision of
a state, * * * or any agency, authority, or
instrumentality of any one or more of the
foregoing * * * unless such provision makes
specific reference thereto.
34. The language of section 215(b)
refers to entities within the
Commission’s section 215 jurisdiction
as ‘‘including but not limited to the
entities described in section 201(f).’’ In
turn, section 201(f) specifically refers to
‘‘the United States, a State or any
political subdivision of a state, * * * or
any agency, authority, or
instrumentality of any one or more of
the foregoing.’’ FPA section 215(b) is
clear that the Commission shall have
jurisdiction over those described
entities ‘‘for purposes of approving
reliability standards established under
this section and enforcing compliance
with this section.’’ Had Congress
intended, by its reference to section
201(f), to extend the section 201(f)
exemption to section 215, there would
have been no need to include the
reference at all. Section 201(f) is in
place, absent a specific reference to the
contrary. Congress instead specifically
included within the Commission’s
section 215 jurisdiction each entity
described in section 201(f) that is a user,
owner, or operator of the Bulk-Power
System. Based on the expanded
jurisdictional reach of the statute, the
Commission concludes that Congress
intended section 215 to be
comprehensive; excluding federal
agencies would create a significant gap
29 16 U.S.C. 824o(b)(1) (2006). Section 215 defines
the Bulk-Power System as ‘‘(A) facilities and control
systems necessary for operating an interconnected
electric energy transmission network (or any
portion thereof); and (B) the electric energy from
generation facilities needed to maintain
transmission system reliability.’’ 16 U.S.C.
824o(a)(1) (2006).
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Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Notices
in the ERO’s and the Commission’s
reliability oversight.
35. Further, section 201(b)(2) adds
additional weight to the argument,
which we find persuasive, that Congress
intended to include federal entities
under the Commission’s jurisdiction.
Such section, as amended by the Energy
Policy Act of 2005, states under the
heading ‘‘Declaration of Policy;
Application of Part’’:
jlentini on DSKJ8SOYB1PROD with NOTICES
Notwithstanding section 201(f), the
provisions of sections * * * 215 * * * shall
apply to the entities described in such
provisions, and such entities shall be subject
to the jurisdiction of the Commission for
purposes of carrying out such provisions and
for purposes of applying the enforcement
authorities of this Act with respect to such
provisions.
Prior to the Energy Policy Act of 2005,
few provisions of Part II of the FPA
applied to governmental and other nonpublic utility entities. Previously,
section 201(b)(2) referred only to
entities subject to FPA sections 210,
211, and 212. The Energy Policy Act of
2005 added new provisions that use
broad terms such as ‘‘all users, owners
and operators,’’ and these provisions
apply to governmental as well as private
entities. In turn, EPAct 2005 amended
section 201(b)(2) to make clear that the
Commission’s jurisdiction over
otherwise exempt public utilities under
certain substantive provisions of the
FPA, including the reliability provision,
is only for the narrow purposes of
implementing and enforcing those
provisions. When Congress amended
201(b)(2), it also specifically added the
phrase ‘‘[n]otwithstanding section
201(f),’’ at the beginning of the
provision to make clear that entities
(including governmental entities)
otherwise exempted from Commission
regulation by virtue of section 201(f) are
indeed subject to limited Commission
regulation for purposes of certain FPA
provisions. Had Congress not intended
section 215 to apply to governmental
and other exempt public utility entities,
there would have been no reason to add
the reference to section 215 in section
201(b)(2).
36. Finally, as NERC points out,30 the
legislative history of FPA section 215
supports the conclusion that Congress
intended FPA section 215 to require that
all users, owners, and operators of the
Bulk-Power System, including federal
entities, comply with Commissionapproved Reliability Standards. FPA
section 215 can be traced to the Thomas
amendment and Senator Thomas, the
author of that amendment stated that
mandatory reliability rules will apply to
30 See
supra P 15.
VerDate Nov<24>2008
17:33 Oct 20, 2009
Jkt 220001
all users of the transmission grid. There
are no loopholes. No one is exempt.’’31
37. Further, the legislative history
makes clear that, among other things,
the reliability provision was added to
the FPA to prevent cascading blackouts.
The debate during consideration of the
Conference Report on the proposed bill
states that mandatory, enforceable
reliability rules began in response to the
1996 blackouts in the Pacific Northwest
and gained more urgency with the
Northeast blackout of 2003.32 Exclusion
of federal entities from the reliability
provision would run counter to this
legislative purpose as it would create
significant gaps in an otherwise
comprehensive program to apply
mandatory Reliability Standards to
better assure the reliability of the BulkPower System. As ReliabilityFirst
attests, excluding federal entities from
the requirements of the Reliability
Standards raises serious potential
consequences for the reliability of the
Bulk-Power System. Thus, it stands to
reason that Congress intended that all
users, owners, and operators of the
Bulk-Power System, including federal
entities, be required to comply with the
Reliability Standards. It would be
contrary to Congressional intent and
likely ineffective to return to a voluntary
system based on individual discretion
as the Corps proposes with respect to
federal entities.33
38. Accordingly, we find that,
pursuant to section 215 of the FPA,
federal entities such as the Corps-Tulsa
District that are registered by the ERO as
users, owners, and operators of the
Bulk-Power System must comply with
mandatory Reliability Standards as to
facilities that fall within the Bulk-Power
System.
The Commission Orders
(A) The Commission grants NERC’s
request for a decision that, pursuant to
section 215 of the FPA, federal entities
that use, own, or operate the Bulk31 In addition, the General Accounting Office
stated that ‘‘[a]ll users, owners and operators of the
bulk-power system would have to comply with the
reliability standards.’’ and ‘‘We understand this
would include both private entities and federal
entities (such as the Tennessee Valley Authority,
the Bonneville Power Administration, and other
federal power marketing agencies), among others.’’
General Accounting Office, Draft Legislation
Concerning an Electric Reliability Organization, at
3, n.5 (March 18, 2003), available at https://
www.gao.gov/decisions/other/360241.pdf.
32 See, e.g., 151 Cong. Rec. House 6943–44 (July
28, 2005) (statement of Rep. Hastings); 151 Cong.
Rec. Senate 9344 (July 29, 2005) (statement of Sen.
Maria Cantwell).
33 NERC June 24, 2009 Notice of Penalty at 2–3
(citing October 3, 2007 Letter from Department of
the Army, Southwestern Division, Corps of
Engineers, to ERCOT).
PO 00000
Frm 00021
Fmt 4703
Sfmt 4703
Power System, must comply with
mandatory Reliability Standards, as
discussed in the body of this order.
(B) The Secretary is directed to
publish a copy of this order in the
Federal Register.
By the Commission. Commissioner Kelly is
not participating.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. E9–25224 Filed 10–20–09; 8:45 am]
BILLING CODE 6717–01–P
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Agency Information Collection
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
SUMMARY: This document announces the
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(OMB) responses to Agency Clearance
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The OMB control numbers for EPA
regulations are listed in 40 CFR part 9
and 48 CFR chapter 15.
FOR FURTHER INFORMATION CONTACT: Rick
Westlund (202) 566–1682, or e-mail at
westlund.rick@epa.gov and please refer
to the appropriate EPA Information
Collection Request (ICR) Number.
SUPPLEMENTARY INFORMATION:
OMB Responses to Agency Clearance
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Approved without change.
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Approved without change.
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E:\FR\FM\21OCN1.SGM
21OCN1
]]>Agencies
[Federal Register Volume 74, Number 202 (Wednesday, October 21, 2009)]
[Notices]
[Pages 54033-54038]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-25224]
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
[Docket No. NP09-26-000]
North American Electric Reliability Corporation; Order Addressing
Applicability of Section 215 of the Federal Power Act to Federal
Entities
October 15, 2009.
1. On June 24, 2009, the North American Electric Reliability
Corporation (NERC) filed a Notice of Penalty for a self-certified
violation of a Commission-approved Reliability Standard by the U.S.
Army Corps of Engineers (Corps)-Tulsa District. In that filing, NERC
requested that the Commission issue a decision addressing the
jurisdictional issue of whether, pursuant to section 215 of the Federal
Power Act (FPA), federal entities that use, own, or operate the Bulk-
Power System, such as the Corps-Tulsa District, must comply with
mandatory Reliability Standards.
2. The Corps-Tulsa District did not seek Commission review of the
Notice of Penalty, which took effect on the 31st day after filing
pursuant to section 215(e)(2) of the FPA.\1\ In this order, we affirm
that, pursuant to section 215 of the FPA, the Corps-Tulsa District and
other federal entities that use, own, or operate the Bulk-Power System
must comply with mandatory Reliability Standards.
---------------------------------------------------------------------------
\1\ 16 U.S.C. 824o(e)(2) (2006).
---------------------------------------------------------------------------
Background
A. Statutory Framework
3. Section 215 of the FPA authorizes the Commission to certify and
oversee an electric reliability organization (ERO), which is
responsible for developing and enforcing mandatory Reliability
Standards that are applicable to owners, users, and operators of the
Bulk-Power System.\2\ Section 215(e) authorizes the ERO, as well as the
Commission on its own motion or on complaint, to assess penalties for
violation of Reliability Standards.\3\ Exercising this statutory
authority, the Commission certified NERC as the ERO \4\ and initially
approved 83 Reliability Standards.\5\ Further, consistent with the
statute, NERC as the ERO delegated to eight Regional Entities,
including Texas Regional Entity, authority to, inter alia, enforce
mandatory Reliability Standards.\6\
---------------------------------------------------------------------------
\2\ 16 U.S.C. 824o(c) (2006).
\3\ Id. Sec. 824o(e).
\4\ North American Electric Reliability Corp., 116 FERC ]
61,062, order on reh'g and compliance, 117 FERC ] 61,126 (2006),
order on compliance, 118 FERC ] 61,030, order on compliance, 118
FERC ] 61,190, order on reh'g, 119 FERC ] 61,046 (2007), aff'd sub
nom. Alcoa Inc. v. FERC, 554 F.3d 1342 (D.C. Cir., 2009).
\5\ Mandatory Reliability Standards for the Bulk-Power System,
Order No. 693, FERC Stats & Regs. ] 31,242, order on reh'g, Order
No. 693-A, 120 FERC ] 61,053 (2007).
\6\ North American Electric Reliability Corp., 119 FERC ]
61,060, order on reh'g, ] 61,260 (2007).
---------------------------------------------------------------------------
4. Users, owners, and operators of the Bulk-Power System are
required to register with NERC.\7\ NERC's Compliance Registry
identifies all entities subject to compliance with the approved
Reliability Standards. Further, NERC has developed a statement of
Registry Criteria that is employed by NERC and the Regional Entities to
determine which organizations should be registered because they are
material to the reliability of the Bulk-Power System.\8\ In cases where
an entity is registered involuntarily by NERC, that entity has an
opportunity to timely appeal its registration status in accordance with
Rule 504 and Appendix 5 to NERC's Rules of Procedure.
---------------------------------------------------------------------------
\7\ 18 CFR 39.2(c) (2009).
\8\ The Commission accepted the NERC Registry Criteria in Order
No. 693, FERC Stats. & Regs. ] 31,242 at P 93-95.
---------------------------------------------------------------------------
5. NERC must file a Notice of Penalty with the Commission before a
Regional Entity or NERC penalty assessment for the violation of a
Reliability Standard takes effect.\9\ Each penalty determination is
subject to Commission review, on its own motion or by an application
for review by the recipient
[[Page 54034]]
of a penalty, within thirty days from the date NERC files the
applicable Notice of Penalty.\10\ In the absence of the filing of an
application for review of a penalty or motion or other action by the
Commission, each penalty filed by NERC is affirmed by operation of law
upon the expiration of the applicable thirty-day period.
---------------------------------------------------------------------------
\9\ Rules Concerning Certification of the Electric Reliability
Organization; and Procedures for the Establishment, Approval, and
Enforcement of Electric Reliability Standards, Order No. 672, FERC
Stats. & Regs. ] 31,204 at P 506, order on reh'g, Order No. 672-A,
FERC Stats. & Regs. ] 31,212 (2006).
\10\ 16 U.S.C. 824o(e)(2) (2006).
---------------------------------------------------------------------------
B. Notice of Penalty
1. Corps-Tulsa District Violation
6. The Corps-Tulsa District owns a hydropower project called the
Denison Project Generator, located on the Red River in Bryan County,
Oklahoma and Grayson County, Texas. The Denison project has two main
generators with a maximum plant capacity of 80 megawatts. Texas
Regional Entity registered the Corps-Tulsa District in June 2007 as a
generator owner. According to NERC, the Corps-Tulsa District was
provided notice of the registration and did not appeal its registration
status.
7. On June 24, 2009, NERC submitted a Notice of Penalty
incorporating the findings and justifications set forth in a Notice of
Confirmed Violation and Proposed Penalty or Sanction issued on February
20, 2008, by the Texas Regional Entity.\11\ According to NERC, the
Corps-Tulsa District self-certified on October 3, 2007, non-compliance
with Reliability Standard PRC-005-1 Requirements R1.1 and R2 for its
Denison Project Generator.\12\ NERC states that, in the self-
certification, the Corps-Tulsa District argued that, as a governmental
entity, it was not required to comply with section 215 of the FPA.
According to NERC, the Corps stated that, because of this uncertainty,
it was not in a position to register with the Regional Entity, but that
it would strive to meet the electric Reliability Standards established
pursuant to section 215 of the FPA, subject to the availability of
funds appropriated by Congress and project operation requirements.
---------------------------------------------------------------------------
\11\ Texas Regional Entity is an independent division of the
Electric Reliability Council of Texas, Inc. (ERCOT).
\12\ PRC-005-1 requires that all generation protection systems
affecting the reliability of the bulk electric system be maintained
and tested. Requirement R1 requires each generator owner that owns a
generation protection system to have a protection system maintenance
and testing program for protection systems that affect the
reliability of the Bulk-Power System. Requirement R1.1 requires that
this program include maintenance and testing intervals and their
basis. Texas Regional Entity subsequently determined that the Corp-
Tulsa District did not violate PRC-005-1, Requirement R2 and it
dismissed that violation.
---------------------------------------------------------------------------
8. On October 31, 2007, Texas Regional Entity issued an Initial
Notice of Alleged Violation and, subsequently, a Notice of Alleged
Violation and Proposed Penalty or Sanction (NAVAPS). NERC states that
the Corps-Tulsa District responded to the NAVAPS on November 20, 2007,
but did not make the required election of agreeing with/not contesting
or contesting the alleged violations and/or penalty. Instead, according
to NERC, the Corps-Tulsa District asserted that the self-reporting data
it provided on October 3, 2007 to Texas Regional Entity was provided on
a voluntary basis, that the submission did not constitute entity
registration or a recognition of jurisdiction by the Corps, and that
the Corps is not in a position to register with the Corps-Tulsa
District's respective reliability organization. NERC states that the
Corps-Tulsa District further stated that, in order ``[t]o avoid
substantial changes to preliminary mitigation plans as a result of the
[Corps'] forthcoming national policy, a mitigation plan for this non-
compliance will not be submitted until this national policy has been
completed,'' and that it will ``voluntarily conform to the reliability
standards * * * [t]o the extent [its] current appropriations allow [it]
to comply with the Act.'' \13\
---------------------------------------------------------------------------
\13\ NERC June 24, 2009 Filing, attachment b (COE-Tulsa District
response to the Notice of Alleged Violation and Proposed Penalty and
Sanction, November 20, 2007).
---------------------------------------------------------------------------
9. NERC states that on January 17, 2008, Texas Regional Entity
issued a letter to the Corps-Tulsa District directing it to submit an
acceptable mitigation plan within ten days. The Corps-Tulsa District
responded asserting that it was unclear whether it is subject to the
requirements of section 215 of the FPA, but that it intended to make
all reasonable efforts to voluntarily comply with the Reliability
Standards while remaining within the funding level provided by
Congress. The Corps-Tulsa District stated that it was awaiting receipt
of national policy guidance regarding submission of mitigation plans,
and projected that it would be able to provide a final regional
mitigation plan by October 2008.
10. NERC states that on January 30, 2008, the Corps-Tulsa District
submitted a mitigation plan to Texas Regional Entity but again
reiterated its belief that section 215 of the FPA does not apply to the
Corps-Tulsa District because it does not contain a clear, unequivocally
expressed waiver of sovereign immunity, which, the Corps-Tulsa District
argues, is necessary for any entity to exercise jurisdiction over a
federal agency. The Corps-Tulsa District also reiterated that it
intended to make all reasonable efforts to voluntarily comply with NERC
Reliability Standards so long as it can do so within the funding levels
authorized to it by Congress.
11. Texas Regional Entity proposed a zero dollar penalty. After
NERC review, NERC submitted the Notice of Penalty to the Commission on
June 24, 2009. The penalty became effective by operation of law on July
27, 2009, and the Commission issued notice to that effect.\14\ The
Commission noted that the Corps-Tulsa District has challenged the
applicability of mandatory Reliability Standards under section 215 of
the FPA, that the Commission has sought comments on the applicability
of mandatory Reliability Standards to the U.S. Army Corps of Engineers
and other federal agencies, and that it would address this issue
separately.\15\
---------------------------------------------------------------------------
\14\ North American Electric Reliability Corp., 128 FERC ]
61,088 (2009).
\15\ Id. at n.1.
---------------------------------------------------------------------------
2. NERC Request for Decision on Jurisdictional Matter
12. In the Notice of Penalty, NERC states that the Corps-Tulsa
District ``has challenged NERC's jurisdiction (and therefore that of
the Commission) under section 215 of the FPA.'' \16\ NERC, however,
believes that the Corps-Tulsa District is subject to mandatory
Reliability Standards under section 215 and requests that the
Commission, regardless of whether the Corps-Tulsa District seeks
Commission review of the Notice of Penalty, issue a decision on the
scope of NERC's and the Commission's jurisdiction under section 215 of
the FPA.
---------------------------------------------------------------------------
\16\ Notice of Penalty at 7.
---------------------------------------------------------------------------
13. In support of its position, NERC states that section 215 (b)(1)
of the FPA provides that ``[t]he Commission shall have jurisdiction * *
* over * * * all users, owners, and operators of the bulk-power system,
including but not limited to the entities described in section 201(f),
for purposes of approving reliability standards established under this
section and enforcing compliance with this section.'' NERC argues that
section 201(f) of the FPA describes agencies or instrumentalities of
the United States and thus these entities are expressly included within
the term ``users, owners, and operators of the bulk-power system'' in
section 215 and made subject to the Commission's jurisdiction to both
approve and enforce Reliability Standards.
14. In further support, NERC states that Congress, in the Energy
Policy Act
[[Page 54035]]
of 2005,\17\ made technical and conforming amendments to the FPA that
were necessitated by the substantive changes to the FPA, including the
addition of section 215. As part of these changes, FPA section 201(b),
which establishes the applicability of Part II of the FPA, was amended
to expressly add ``section 215'' to the list of sections of the FPA
enumerated in section 201(b)(2) and to add ``[n]otwithstanding section
201(f)'' to the beginning of section 201(b)(2). NERC argues that the
specific provisions of section 201(b)(2) override the general language
of section 201(f), which excludes the United States from the
application of Part II of the FPA. Thus, NERC argues that section
201(b)(2) provides further confirmation that the United States is
subject to section 215 and to Commission jurisdiction both for carrying
out the provisions of sections 215 and for enforcing those provisions.
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\17\ Energy Policy Act of 2005 (EPAct 2005), Pub. L. No 109-58,
Title XII, Subtitle A, 119 Stat. 594, 941 (2005).
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15. Finally, NERC looks to the legislative history of the Energy
Policy Act of 2005 and in particular, to the debate surrounding the
Thomas amendment, which was adopted by the United States Senate in 2002
and which was a precursor to FPA section 215. NERC points to an
explanation offered by Senator Thomas, the author of that amendment,
stating ``[t]he new reliability organization will have enforcement
powers with real teeth to ensure reliability. The amendment provides
that mandatory reliability rules will apply to all users of the
transmission grid. There are no loopholes. No one will be exempt.''
\18\ NERC notes that Senator Bingaman also stated that ``[t]he
reliability system needs to apply to all users.'' In addition, NERC
quotes a later analysis of substantively similar reliability
legislation by the General Accounting Office acknowledging the
applicability of reliability rules to federal entities: ``All users,
owners and operators of the bulk-power system would have to comply with
the reliability standards. * * * We understand this would include both
private entities and Federal entities (such as the Tennessee Valley
Authority, the Bonneville Power Administration, and other federal
marketing agencies), among others.'' \19\
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\18\ Citing Cong. Rec. 1874 (March 14, 2002).
\19\ Citing General Accounting Office, Draft Legislation
Concerning an Electric Reliability Organization, at 3, n.5 (March
18, 2003).
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Notice of Filing and Comments
16. Notice of NERC's June 24, 2009 filing was published in the
Federal Register, 74 FR 32,153 (2009), with comments due on or before
July 24, 2009. By notice published July 24, 2009, the comment period
was extended to August 24, 2009.
17. The Corps filed a motion to intervene and comments regarding
the applicability of Reliability Standards under section 215 of the
FPA.
18. In addition, Western Electricity Coordinating Council (WECC),
Tex-La Electric Cooperative of Texas, Inc., SERC Reliability
Corporation, and the Midwest Reliability Organization filed motions to
intervene. Mid-West Electric Consumers Association and the Southwestern
Power Resources Association (collectively, Federal Power Customers),
Texas Regional Entity, the National Rural Electric Cooperative
Association (NRECA), the United States Department of Energy (DOE),
ReliabilityFirst Corporation (ReliabilityFirst), the Southeastern
Federal Power Customers, Inc. (Southeastern Customers) and the United
States Department of the Interior (Interior) filed motions to intervene
and comments. The Department of the Army, Office of the Assistant
Secretary for Civil Works (Department of the Army), filed comments. The
Southwest Transmission Dependent Utility Group (Southwest Utility
Districts), Tri-State Generation and Transmission Association, Inc.
(Tri-State) filed motions to intervene and protests.
19. On September 8, 2009, NERC filed reply comments. On September
23, 2009, the Corps filed an objection to NERC's motion for leave to
file reply comments. On October 7, 2009, DOE filed a response to NERC's
reply comments. On October 7, 2009, DOE also filed a motion for a stay
to suspend enforcement activity only in those cases where a civil fine
against a DOE entity is at issue.\20\
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\20\ The Commission recognizes that the DOE has a concern that
the possibility of civil penalties for federal entities may cause
litigation in a number of proceedings; however, given that the issue
of civil fines is beyond the scope of this proceeding, we do not
discuss DOE's motion here. See infra P 32.
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A. The Corps' Comments
20. The Corps states that it currently operates 75 hydropower
plants nationwide and they account for three percent of the nation's
total electrical capacity. The Corps states that the Denison
powerhouse, the subject of NERC's Notice of Penalty, is operated as a
peaking plant with approximately 37 percent plant annual capacity
factor. The Corps also states that although there are two transmission
lines going into the Denison switchyard, only the transmission line
going into Texas is being utilized for transmission of power from the
Denison powerhouse. The other line is energized up to an open breaker
and associated disconnecting switch in the switchyard. According to the
Corps, while it is possible to transmit power both into Oklahoma and
Texas simultaneously using individual units, the two systems can never
be connected together without resulting in equipment damage. A ``bus
tie'' breaker is used to separate the two units for this type of
operation. Therefore, the Corps asserts that this switchyard is treated
as a radial transmission line with no critical connection to the ERCOT
system. The Corps further asserts that since no power is ``wheeled''
through the switchyard to serve another load, NERC has not alleged that
if the switchyard equipment fails, there will be an adverse effect on
the reliability of the Bulk Power System.
21. The Corps contends that section 215 does not grant the
Commission or NERC jurisdiction over Corps-owned hydroelectric
generating facilities at its Civil Works projects.\21\ The Corps adds
that NERC's analysis is flawed in that the Corps has numerous
hydropower projects and in order to respond to NERC's filing, which is
essentially a request for declaratory judgment, the Corps must address
the unique configurations of each of its facilities, although only one
was involved in the Notice of Penalty. The Corps asserts that this
violates its due process rights because only the Denison Generator
Project has been cited. The Corps also asserts that Congress has not
waived the Corps' sovereign immunity, and thus, NERC cannot issue
monetary penalties against the Corps. Further, the Corps asserts that
the legal dispute should be submitted to the Attorney General, not
through the Commission's notice and comment process.
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\21\ According to the Corps' January 31, 2007 Civil Works
Information Paper, all 75 of its hydropower plants are Civil Works
projects. U.S. Army Corps of Engineers, Civil Works Program
Statistics (January 31, 2007) available at https://140.194.76.129/cw/cecwb/GWiz07.pdf.
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B. Other Comments and Protests
22. The Department of the Army, NRECA, Southwest Utility Districts,
and Interior raise procedural issues. The Department of the Army states
that the Department of Justice's Office of Legal Counsel, and not the
Commission's adjudicatory process, is the proper forum for resolving
the disagreement on implementation of section 215 of the FPA. NRECA
states that it supports NERC's need for clarity regarding the scope of
its jurisdiction under section 215 but does not believe a specific
[[Page 54036]]
penalty proceeding is appropriate for resolving this broad issue
involving multiple federal agencies and one or more cabinet-level
departments. NRECA states that it would be more appropriate for the
Commission to temporarily suspend the procedural schedule in this
docket and confer with the Corps and other federal agencies. Interior
states that the proceeding should be stayed to allow for prompt
interagency resolution of the relevant jurisdictional issues. Southwest
Utility Districts state that the Commission should create a list of
specific issues and seek supplemental briefing of the parties who do
intervene in this proceeding and of federal agencies that do not
intervene but could file subsequent comments.
23. Texas Regional Entity, WECC, and ReliabilityFirst agree with
NERC's conclusion that federal entities such as the Corps-Tulsa
District are subject to mandatory Reliability Standards under section
215 of the FPA, including its penalty and sanction provisions. Texas
Regional Entity reiterates the information described in NERC's Notice
of Penalty and requests that the Commission affirm jurisdiction by the
Commission and NERC over the Corps-Tulsa District under section 215 of
the FPA. ReliabilityFirst asserts that a determination that exempts
federal entities from the Commission's section 215 jurisdiction would
have far-reaching implications for the reliability of the Bulk-Power
System. According to ReliabilityFirst, federal entities are an
important part of the users, owners, and operators of the Bulk-Power
System in ReliabilityFirst's region and they have an even more
substantial presence in other regions. Thus, according to
ReliabilityFirst, exempting federal entities from compliance with
mandatory Reliability Standards would impair the reliability and the
resilience of the electric grid.
24. ReliabilityFirst identifies a number of potential consequences
if federal entities are not required to comply with mandatory
Reliability Standards. It states that such an exclusion ``would provide
a disincentive to the interaction between users, owners, and operators
that is necessary to preserve reliability.'' \22\ It adds that not only
do some Reliability Standards depend on the timely exchange of
information and directives between registered entities, but the
effectiveness of some Reliability Standards, in particular the Critical
Infrastructure Protection standards, depends in large part on system-
wide compliance. ReliabilityFirst further states that several
Reliability Standards require reliability coordinators to issue
directives to other registered entities so that necessary steps are
taken to preserve reliability. It adds that if a federal entity
fulfilling a transmission operator or generator operator function is
exempt from the Commission's jurisdiction and refuses to acknowledge
this reliability coordinator authority in an emergency situation,
cascading outages or other manifestations of severe grid instability
could result. Similarly, according to ReliabilityFirst, failure to heed
a reliability coordinator's directive to return the system to within an
Interconnection Reliability Operating Limit could have disastrous
results for system reliability. Likewise, the failure of generators to
notify their corresponding transmission operators and balancing
authorities if they experience a protective relay or equipment failure
may prevent the transmission operator from learning of this failure in
time to take appropriate corrective action, thereby endangering system
reliability.
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\22\ ReliabilityFirst Comments at 5.
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25. Finally, ReliabilityFirst asserts that the application of
Reliability Standards to federal entities is meaningless without the
power to enforce those Reliability Standards. ReliabilityFirst states
that without enforcement power, compliance would be voluntary, the
situation that existed before the passage of section 215 of the FPA.
ReliabilityFirst urges the Commission to conclude that federal entities
are subject to section 215, including the penalty and sanction
provisions and states that this is the plain meaning of the statute and
to decide otherwise would contravene the intent of Congress and
undermine all of the Commission's efforts to ensure the reliability of
the Bulk-Power System and prevent a cascading blackout.
26. DOE, Interior, Tri-State and Southeastern Customers argue that
federal agencies must comply with NERC's Reliability Standards but
should not be subject to monetary penalties. DOE argues that the plain
language of section 215(b)(1) makes it clear that the Commission has
jurisdiction over ``all users, owners, and operators of the bulk-power
system, including but not limited to the entities described in section
201(f) for purposes of approving Reliability Standards established
under this section and enforcing compliance with this section.'' \23\
DOE adds that the clear inclusion of federal entities described in
section 201(f) is consistent with Congress's intent to ensure
reliability nationwide. DOE further contends that section 201(b)(2)
limits the Commission's section 215 jurisdiction over federal entities
to the purposes described in section 215, providing:
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\23\ 16 U.S.C. 824o(b)(1) (2006).
Notwithstanding section 201(f), the provisions of section * * *
215 * * * shall apply to the entities described in such provisions
and such entities shall be subject to the jurisdiction of the
Commission for purposes of carrying out the enforcement authorities
of this Act with respect to such provisions. Compliance with any
order or rule of the Commission under the provisions of section * *
* 215 * * * shall not make an electric utility or other entity
subject to the jurisdiction of the Commission for any purposes other
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than the purposes specified in the preceding sentence.
DOE argues that section 201(b)(2) supports Commission jurisdiction
over DOE entities under section 215 and section 215 alone; it does not
authorize the Commission to punish violations of section 215 by
assessing criminal penalties or levying monetary civil fines under any
other section of the FPA. DOE also asserts that the term ``penalty'' is
not defined with sufficient clarity in section 215(e) to support the
imposition of punitive monetary penalties on DOE entities under that
section.
27. Tri-State argues that it is vital that all users, owners and
operators, including federal agencies, obey the same mandatory
Reliability Standards to ensure the reliability of the Bulk-Power
System. Southeastern Customers state that the Commission has already
determined that in the Southeast the Corps was appropriately registered
as the transmission operator and the Corps did not challenge this
application of the Reliability Standards.\24\ Both Tri-State and
Southeastern Customers, argue, however, that federal agencies should
not be subject to monetary penalties for violation of Reliability
Standards. Tri-State argues that federal agencies rely on appropriated
funds from the U.S. Treasury to finance their statutory obligations and
generally do not have the authority to pay civil penalties because they
have limited discretion in allocating these funds. Tri-State adds that
even where a court has found a claim to be valid under the law, the
claim may not be paid unless Congress has enacted an appropriation
available for that purpose.\25\ In addition, both Tri-State and
Southeastern Customers argue that the Anti-Deficiency Act prohibits a
federal agency from paying monetary penalties because it may not spend
or
[[Page 54037]]
obligate more capital than was appropriated through the congressional
funding process for that particular purpose.\26\ Likewise, Southwest
Utility Districts argue that assessing a fine against a federal agency
is much more complicated than assessing it against a private utility,
in particular because the funds received by a federal agency are
received with specific statutory instructions and limitations.
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\24\ Citing Southeastern Power Administration, 125 FERC ]
61,294, at P 24 (2008).
\25\ Citing Office of Pers. Management v. Richmond, 496 U.S.
414, 424-25 (1990); Cincinnati Soap Co. v. United States, 301 U.S.
308, 321 (1937).
\26\ Citing the Anti-Deficiency Act, 31 U.S.C. 1341(a)(1)(A)
(2006).
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28. Federal Power Customers state that their members are purchasers
of energy generated and/or marketed by federal agencies, specifically,
the Corps, the U.S. Bureau of Reclamation, the Western Area Power
Administration, and the Southwestern Power Administration. Federal
Power Customers comment that it is unclear whether potential penalties
assessed by NERC and the Commission against the aforementioned federal
agencies may become subsumed in the costs passed on to Federal Power
Customers or their members. Federal Power Customers request that, in
reaching a jurisdictional determination, such determination not contain
any inference regarding the federal agencies' ability to pass through
penalties to customers.
Discussion
A. Procedural Matters
29. Pursuant to Rule 214 of the Commissions Rules of Practice and
Procedure, 18 CFR 385.214 (2009), the timely unopposed motions to
intervene serve to make the entities that filed them parties to this
proceeding. Rule 213(a)(2) of the Commission's Rules of Practice and
Procedure, 18 CFR 385.213(a)(2) (2009), prohibits an answer to an
answer unless otherwise ordered by the decisional authority. We are not
persuaded to accept NERC's or DOE's answers and will, therefore, reject
them.
B. Commission Determination
30. As discussed below, we conclude that, pursuant to section 215
of the FPA, federal entities such as the Corps-Tulsa District that are
users, owners, or operators of the Bulk-Power System must comply with
mandatory Reliability Standards. The issue of whether a specific entity
is a user, owner, or operator of the Bulk-Power System is a factual
matter that is, in the first instance, determined by the ERO and the
relevant Regional Entity in NERC's compliance registration process.\27\
Thus, to the extent that the Corps raises concerns whether specific
Corps facilities are Bulk-Power System facilities or a specific Corp
District is a user, owner, or operator of the Bulk-Power System, these
matters are appropriately raised in the first instance with the
relevant Regional Entity pursuant to NERC's compliance registry
procedures. In this order, we are not making factual determinations
regarding specific entities or facilities. Rather, we address the legal
applicability of section 215 of the FPA to federal entities such as the
Corps-Tulsa District.
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\27\ See, e.g., Order No. 693, FERC Stats. & Regs. ] 31,242 at P
93-96. Pursuant to NERC's Rules of Procedure, an entity that
disagrees with the ERO's registration determination can seek
Commission review of that decision.
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1. Procedural Arguments
31. At the outset, we disagree with comments suggesting that the
Commission's process is the incorrect forum for determining the
implementation of section 215, or that the proceedings should be stayed
to allow for interagency resolution. Pursuant to section 215(b) of the
FPA, all users, owners, and operators of the Bulk-Power System must
comply with mandatory Reliability Standards that are developed by the
ERO and approved by the Commission. We have in the first instance the
authority to determine the scope of our jurisdiction.\28\ Our authority
to make this determination is not dependent on the ultimate outcome of
the determination. Accordingly, we address here the issue of the
Commission's authority pursuant to section 215 of the FPA to require
that federal entities such as the Corps-Tulsa District comply with
mandatory, Commission-approved Reliability Standards.
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\28\ See, e.g., Nine Mile Point Nuclear Station LLC v. Niagara
Mohawk Power Corp., 110 FERC ] 61,033, at P 30 & n.31 (2005), aff'd,
452 F.3d 822 (D.C. Cir. 2006); accord New York v. FERC, 535 U.S. 1,
22-23 (2002) (holding the Commission was within its authority to
establish a seven-factor test to determine which facilities are
local distribution facilities that fall outside of the Commission's
jurisdiction pursuant to FPA section 201). Cf. Western Massachusetts
Electric Co., 61 FERC ] 61,182, at 61,661 (1992), aff'd, 165 F.3d
922, 926 (D.C. Cir. 1999) (concluding the Commission may examine
contracts relating to transactions which may be subject to its
jurisdiction prior to making its determination as to jurisdiction).
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32. The Corps and several commenters address the additional
question of whether federal entities are subject to monetary penalties
for non-compliance with mandatory Reliability Standards. We view this
as a separate and distinct issue. We need not and do not address it
here.
2. Section 215 Jurisdiction Over Users, Owners, and Operators
33. With regard to the Commission's section 215 jurisdiction, FPA
section 215(b)(1) states, in relevant part,
Jurisdiction and applicability: (1) The Commission shall have
jurisdiction * * * over * * * all users, owners and operators of the
bulk-power system, including but not limited to the entities
described in section 201(f), for purposes of approving reliability
standards established under this section and enforcing compliance
with [section 215]. All users, owners and operators of the bulk-
power system shall comply with reliability standards that take
effect under this section.\29\
\29\ 16 U.S.C. 824o(b)(1) (2006). Section 215 defines the Bulk-
Power System as ``(A) facilities and control systems necessary for
operating an interconnected electric energy transmission network (or
any portion thereof); and (B) the electric energy from generation
facilities needed to maintain transmission system reliability.'' 16
U.S.C. 824o(a)(1) (2006).
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FPA section 201(f) states, in relevant part,
No provision in [Part II of the FPA] shall apply to, or be
deemed to include, the United States, a State or any political
subdivision of a state, * * * or any agency, authority, or
instrumentality of any one or more of the foregoing * * * unless
such provision makes specific reference thereto.
34. The language of section 215(b) refers to entities within the
Commission's section 215 jurisdiction as ``including but not limited to
the entities described in section 201(f).'' In turn, section 201(f)
specifically refers to ``the United States, a State or any political
subdivision of a state, * * * or any agency, authority, or
instrumentality of any one or more of the foregoing.'' FPA section
215(b) is clear that the Commission shall have jurisdiction over those
described entities ``for purposes of approving reliability standards
established under this section and enforcing compliance with this
section.'' Had Congress intended, by its reference to section 201(f),
to extend the section 201(f) exemption to section 215, there would have
been no need to include the reference at all. Section 201(f) is in
place, absent a specific reference to the contrary. Congress instead
specifically included within the Commission's section 215 jurisdiction
each entity described in section 201(f) that is a user, owner, or
operator of the Bulk-Power System. Based on the expanded jurisdictional
reach of the statute, the Commission concludes that Congress intended
section 215 to be comprehensive; excluding federal agencies would
create a significant gap
[[Page 54038]]
in the ERO's and the Commission's reliability oversight.
35. Further, section 201(b)(2) adds additional weight to the
argument, which we find persuasive, that Congress intended to include
federal entities under the Commission's jurisdiction. Such section, as
amended by the Energy Policy Act of 2005, states under the heading
``Declaration of Policy; Application of Part'':
Notwithstanding section 201(f), the provisions of sections * * *
215 * * * shall apply to the entities described in such provisions,
and such entities shall be subject to the jurisdiction of the
Commission for purposes of carrying out such provisions and for
purposes of applying the enforcement authorities of this Act with
respect to such provisions.
Prior to the Energy Policy Act of 2005, few provisions of Part II
of the FPA applied to governmental and other non-public utility
entities. Previously, section 201(b)(2) referred only to entities
subject to FPA sections 210, 211, and 212. The Energy Policy Act of
2005 added new provisions that use broad terms such as ``all users,
owners and operators,'' and these provisions apply to governmental as
well as private entities. In turn, EPAct 2005 amended section 201(b)(2)
to make clear that the Commission's jurisdiction over otherwise exempt
public utilities under certain substantive provisions of the FPA,
including the reliability provision, is only for the narrow purposes of
implementing and enforcing those provisions. When Congress amended
201(b)(2), it also specifically added the phrase ``[n]otwithstanding
section 201(f),'' at the beginning of the provision to make clear that
entities (including governmental entities) otherwise exempted from
Commission regulation by virtue of section 201(f) are indeed subject to
limited Commission regulation for purposes of certain FPA provisions.
Had Congress not intended section 215 to apply to governmental and
other exempt public utility entities, there would have been no reason
to add the reference to section 215 in section 201(b)(2).
36. Finally, as NERC points out,\30\ the legislative history of FPA
section 215 supports the conclusion that Congress intended FPA section
215 to require that all users, owners, and operators of the Bulk-Power
System, including federal entities, comply with Commission-approved
Reliability Standards. FPA section 215 can be traced to the Thomas
amendment and Senator Thomas, the author of that amendment stated that
mandatory reliability rules will apply to all users of the transmission
grid. There are no loopholes. No one is exempt.''\31\
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\30\ See supra P 15.
\31\ In addition, the General Accounting Office stated that
``[a]ll users, owners and operators of the bulk-power system would
have to comply with the reliability standards.'' and ``We understand
this would include both private entities and federal entities (such
as the Tennessee Valley Authority, the Bonneville Power
Administration, and other federal power marketing agencies), among
others.'' General Accounting Office, Draft Legislation Concerning an
Electric Reliability Organization, at 3, n.5 (March 18, 2003),
available at https://www.gao.gov/decisions/other/360241.pdf.
---------------------------------------------------------------------------
37. Further, the legislative history makes clear that, among other
things, the reliability provision was added to the FPA to prevent
cascading blackouts. The debate during consideration of the Conference
Report on the proposed bill states that mandatory, enforceable
reliability rules began in response to the 1996 blackouts in the
Pacific Northwest and gained more urgency with the Northeast blackout
of 2003.\32\ Exclusion of federal entities from the reliability
provision would run counter to this legislative purpose as it would
create significant gaps in an otherwise comprehensive program to apply
mandatory Reliability Standards to better assure the reliability of the
Bulk-Power System. As ReliabilityFirst attests, excluding federal
entities from the requirements of the Reliability Standards raises
serious potential consequences for the reliability of the Bulk-Power
System. Thus, it stands to reason that Congress intended that all
users, owners, and operators of the Bulk-Power System, including
federal entities, be required to comply with the Reliability Standards.
It would be contrary to Congressional intent and likely ineffective to
return to a voluntary system based on individual discretion as the
Corps proposes with respect to federal entities.\33\
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\32\ See, e.g., 151 Cong. Rec. House 6943-44 (July 28, 2005)
(statement of Rep. Hastings); 151 Cong. Rec. Senate 9344 (July 29,
2005) (statement of Sen. Maria Cantwell).
\33\ NERC June 24, 2009 Notice of Penalty at 2-3 (citing October
3, 2007 Letter from Department of the Army, Southwestern Division,
Corps of Engineers, to ERCOT).
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38. Accordingly, we find that, pursuant to section 215 of the FPA,
federal entities such as the Corps-Tulsa District that are registered
by the ERO as users, owners, and operators of the Bulk-Power System
must comply with mandatory Reliability Standards as to facilities that
fall within the Bulk-Power System.
The Commission Orders
(A) The Commission grants NERC's request for a decision that,
pursuant to section 215 of the FPA, federal entities that use, own, or
operate the Bulk-Power System, must comply with mandatory Reliability
Standards, as discussed in the body of this order.
(B) The Secretary is directed to publish a copy of this order in
the Federal Register.
By the Commission. Commissioner Kelly is not participating.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. E9-25224 Filed 10-20-09; 8:45 am]
BILLING CODE 6717-01-P
