[Federal Register Volume 73, Number 60 (Thursday, March 27, 2008)]
[Proposed Rules]
[Pages 16228-16243]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6261]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 358
[Docket No. RM07-1-000]
Standards of Conduct for Transmission Providers
March 21, 2008.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
proposing to revise its Standards of Conduct for transmission providers
to make them clearer and to refocus the rules on the areas where there
is the greatest potential for affiliate abuse. By doing so, we will
make compliance less elusive and facilitate Commission enforcement. We
also propose to conform the Standards to the decision of the U.S. Court
of Appeals for the D.C. Circuit in National Fuel Gas Supply Corporation
v. FERC, 468 F.3d 831 (D.C. Cir. 2006). On January 18, 2007, the
Commission issued a Notice of Proposed Rulemaking (initial NOPR), and
received both initial and reply comments from interested persons. After
giving consideration to these comments and to our own experience in
enforcing the Standards, the Commission believes it to be necessary and
appropriate to modify the approach proposed in the initial NOPR. The
Commission is therefore issuing a new NOPR, and invites all interested
persons to submit comments in response to the regulations proposed
herein.
DATES: Comments are due May 12, 2008.
ADDRESSES: You may submit comments, identified by docket number by any
of the following methods:
Agency Web Site: http://ferc.gov. Documents created
electronically using word processing software should be filed in native
applications or print-to-PDF format and not in a scanned format.
Mail/Hand Delivery: Commenters unable to file comments
electronically must mail or hand deliver an original and 14 copies of
their comments to: Federal Energy Regulatory Commission, Secretary of
the Commission, 888 First Street, NE., Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT: Kathryn Kuhlen, Office of Enforcement,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, Kathryn.Kuhlen@FERC.gov, (202) 502-6855.
Table of Contents
Paragraph
No.
I. Introduction............................................. 1
II. Background.............................................. 6
III. Discussion............................................. 11
A. The Need for Reform..................................... 11
B. The Independent Functioning Rule........................ 22
C. The No Conduit Rule..................................... 46
D. The Transparency Rule................................... 50
E. Miscellaneous........................................... 56
IV. Applicability of the Proposed Rule and Compliance 65
Procedures.................................................
V. Information Collection Statement......................... 67
VI. Environmental Analysis.................................. 73
VII. Regulatory Flexibility Act............................. 74
VIII. Comment Procedures.................................... 75
IX. Document Availability................................... 79
Appendix A: Table of Commenters and Abbreviations for
Commenters.................................................
Appendix B: Comparison of Current and Proposed Regulatory
Text.......................................................
I. Introduction
1. The Federal Energy Regulatory Commission is proposing to reform
its Standards of Conduct for Transmission Providers. The primary
purpose of our proposed reforms is to strengthen the Standards by
making them clearer and by refocusing the rules on the areas where
there is the greatest potential for affiliate abuse. By doing so, we
also will make compliance less elusive and subjective for regulated
entities, and facilitate enforcement of the Standards by the
Commission. We also propose to reform our regulations to comply with
the U.S. Court of Appeals for the D.C. Circuit decision in National
Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 (D.C. Cir. 2006).
2. On January 18, 2007, the Commission issued a Notice of Proposed
Rulemaking (initial NOPR) to modify the Standards. The primary purpose
of the initial NOPR was to remedy the defects identified by the D.C.
Circuit in National Fuel, particularly the court's rejection of the
Standards' treatment of Energy Affiliates of natural gas pipelines. The
Commission also sought to remedy other specific flaws in the Standards,
such as by removing impediments to integrated resource planning. In
proposing these reforms we did not, however, undertake a broader review
of the Standards to determine whether they were continuing to prevent
affiliate abuse in the manner most likely to foster compliance and
enhance enforcement. Based on comments received on the NOPR, as well as
the comments received at our recent
[[Page 16229]]
enforcement conference,\1\ we now believe that such a broader review is
necessary. We therefore propose further reforms herein and seek comment
on them from all interested persons.
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\1\ Conference on Enforcement Policy, Docket No. AD07-13-000
(Nov. 16, 2007) (enforcement conference).
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3. Our revised NOPR proposes to combine the best elements of the
Standards adopted in Order Nos. 497 and 889 with those adopted by the
Commission in Order No. 2004.\2\ Order Nos. 497 \3\ and 889 \4\
established a functional separation between transmission and merchant
personnel for natural gas and electric transmission providers that was
relatively clear and that worked well for many years. Order No. 2004
altered this approach in three main ways: (i) First, to expand the
scope of the Standards to include Energy Affiliates, (ii) second, to
adopt a corporate separation approach to accommodate the addition of
Energy Affiliates, and (iii) third, to adopt a single set of standards
applicable to both natural gas and electric industries. The National
Fuel court rejected the first reform as applied to the natural gas
industry and, by doing so, undercut the need for the second reform. The
court did not upset the third reason for reform and we continue to
believe there is no reason why separate standards should apply to each
industry, although our proposed regulations do take into account
differences between the industries in discrete areas.
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\2\ Standards of Conduct for Transmission Providers, Order No.
2004, FERC Stats. & Regs., Regulations Preambles 2001-2005 ] 31,155
(2003), order on reh'g, Order No. 2004-A, FERC Stats. & Regs.,
Regulations Preambles 2001-2005 ] 31,161 (2004), order on reh'g,
Order No. 2004-B, FERC Stats. & Regs., Regulations Preambles 2001-
2005 ] 31,166 (2004), order on reh'g, Order No. 2004-C, FERC Stats.
& Regs., Regulations Preambles 2001-2005 ] 31,172 (2004), order on
reh'g, Order No. 2004-D, 110 FERC ] 61,320 (2005), vacated and
remanded as it applies to natural gas pipelines sub nom. Nat'l Fuel
Gas Supply Corporation v. FERC, 468 F.3d 831 (D.C. Cir. 2006);
Standards of Conduct for Transmission Providers, Order No. 690, 72
FR 2427 (Jan. 19, 2007), FERC Stats. & Regs ] 31,237, order on
reh'g, Order No. 690-A, 72 FR 14235 (Mar. 27, 2007), FERC Stats. &
Regs. ] 31,243 (2007); see also Standards of Conduct for
Transmission Providers, Notice of Proposed Rulemaking, 72 FR 3958
(Jan. 29, 2007), FERC Stats. & Regs. ] 32,611 (2007).
\3\ Inquiry Into Alleged Anticompetitive Practices Related to
Marketing Affiliates of Interstate Pipelines, Order No. 497, 53 FR
22139 (1988), FERC Stats. & Regs., Regulations Preambles 1986-1990 ]
30,820 (1988); Order No. 497-A, order on reh'g, 54 FR 52781 (1989),
FERC Stats. & Regs., Regulations Preambles 1986-1990 ] 30,868
(1989); Order No. 497-B, order extending sunset date, 55 FR 53291
(1990), FERC Stats. & Regs., Regulations Preambles 1986-1990 ]
30,908 (1990); Order No. 497-C, order extending sunset date, 57 FR 9
(1992), FERC Stats. & Regs., Regulations Preambles 1991-1996 ]
30,934 (1991), reh'g denied, 57 FR 5815 (1992), 58 FERC ] 61,139
(1992); aff'd in part and remanded in part sub nom. Tenneco Gas v.
FERC, 969 F.2d 1187 (D.C. Cir. 1992) (collectively, Order No. 497).
\4\ Open Access Same-Time Information System (Formerly Real-Time
Information Network) and Standards of Conduct, Order No. 889, 61 FR
21737 (May 10, 1996), FERC Stats. & Regs., Regulations Preambles
Jan. 1991-June 1996 ] 31,035 (Apr. 24, 1996); Order No. 889-A, order
on reh'g, 62 FR 12484 (Mar. 14, 1997), FERC Stats. & Regs.,
Regulations Preambles July 1996-December 2000 ] 31,049 (Mar. 4,
1997); Order No. 889-B, reh'g denied, 62 FR 64715 (Dec. 9, 1997), 81
FERC ] 61,253 (Nov. 25, 1997) (collectively, Order No. 889).
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4. Nevertheless, we believe this single set of standards should
more closely resemble the functional approach that was adopted in Order
Nos. 497 and 889. Our experience with implementing and enforcing the
Standards, as well as the record of this proceeding, demonstrates that
this approach is the one most likely to foster compliance and
strengthen enforcement of the Standards. The ``corporate separation''
adopted by Order No. 2004 has not proven workable and was adopted to
facilitate the regulation of Energy Affiliates,\5\ a step that is no
longer appropriate given the decision in National Fuel.
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\5\ Order No. 2004 at P 92.
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5. In addition to combining the best elements of Orders 497, 889
and 2004, we also, as explained below, propose to simplify and
streamline the Standards to facilitate compliance and enhance
enforcement. With our new civil penalty authority, we are mindful of
the fact that our regulations must be as clear as possible, as
participants in the enforcement conference repeatedly noted. We also
propose to strengthen enforcement of the Standards by proposing
additional transparency to aid in the detection of affiliate abuse.
Although we believe many of the existing elements of the Standards
should be retained, the reforms we are proposing, together with the
simplification and clarification we believe to be imperative,
necessitate reissuing the entire part 358 of the Code of Federal
Regulations as a stand-alone document.
II. Background
6. The Commission first adopted Standards of Conduct in 1988, in
Order No. 497. These initial Standards prohibited interstate natural
gas pipelines from giving their marketing affiliates or wholesale
merchant functions undue preference over non-affiliated customers.
Citing demonstrated record abuses, the U.S. Court of Appeals for the
D.C. Circuit upheld these Standards in 1992.\6\ The Commission adopted
similar Standards for the electric industry in 1996, in Order No. 889,
prohibiting public utilities from giving undue preference to their
marketing affiliates or wholesale merchant functions. Both the electric
and gas Standards sought to deter undue preference by: (i) Separating a
transmission provider's employees engaged in transmission services from
those engaged in its marketing services, and (ii) requiring that all
transmission customers, affiliated and non-affiliated, be treated on a
non-discriminatory basis.
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\6\ Tenneco Gas v. FERC, 969 F.2d 1187 (D.C. Cir. 1992)
(Tenneco).
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7. Changes in both the electric and gas industries, in particular
the unbundling of sales from transportation in the gas industry and the
increase in the number of power marketers in the electric industry, led
the Commission in 2003 to issue Order No. 2004, which broadened the
Standards to include a new category of affiliate, the Energy
Affiliate.\7\ The new Standards were made applicable to both the
electric and gas industries, and provided that the transmission
employees of a transmission provider \8\ must function independently
not only from the company's marketing affiliates but from its Energy
Affiliates as well, and that transmission providers may not treat
either their Energy Affiliates or their marketing affiliates on a
preferential basis. Order No. 2004 also imposed requirements to
publicly post information concerning a transmission provider's Energy
Affiliates.
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\7\ The new Standards defined an Energy Affiliate as an
affiliate of a Transmission Provider that (1) engages in or is
involved in transmission transactions in U.S. energy or transmission
markets; or (2) manages or controls transmission capacity of a
Transmission Provider in U.S. energy or transmission markets; or (3)
buys, sells, trades or administers natural gas or electric energy in
U.S. energy or transmission markets; or (4) engages in financial
transactions relating to the sale or transmission of natural gas or
electric energy in U.S. energy or transmission markets. 18 CFR
358.3(d). Certain categories of entities were excluded from this
definition in following subsections of the regulations.
\8\ A Transmission Provider was defined as (1) any public
utility that owns, operates or controls facilities used for
transmission of electric energy in interstate commerce; or (2) any
interstate natural gas pipeline that transports gas for others
pursuant to subpart A of part 157 or subparts B or G of part 284 of
the same chapter of the regulations. 18 CFR 358.3(a).
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8. On appeal by members of the natural gas industry, the U.S. Court
of Appeals for the D.C. Circuit overturned the Standards as applicable
to gas transmission providers, on the grounds that the evidence of
abuse by Energy Affiliates cited by the Commission was not in the
record.\9\ The court noted that the dissenting Commissioners in Order
No. 2004 had expressed the concern that the Order would diminish
industry
[[Page 16230]]
efficiencies without advancing the FERC policy of preventing unduly
discriminatory behavior.\10\
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\9\ National Fuel at 841.
\10\ Id. at 838.
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9. The Commission issued an Interim Rule on January 9, 2007,\11\
and set about developing new Standards that would cure the defects
identified by the D.C. Circuit in National Fuel. On January 18, 2007,
the Commission issued its initial NOPR,\12\ requesting comment on
whether the concept of Energy Affiliates should be retained for the
electric industry, proposing the creation of two new categories of
employees denominated as Competitive Solicitation Employees and
Planning Employees, carrying over the Interim Rule's new definition of
marketing to cover asset managers, and making numerous other proposals.
The Commission received thousands of pages of both initial and reply
comments from some 95 individuals, companies, and organizations, which
are listed in Appendix A.
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\11\ Standards of Conduct for Transmission Providers, Order No.
690, 72 FR 2427 (Jan. 19, 2007); FERC Stats. & Regs. ] 31,237 (Jan.
9, 2007) (Interim Rule); clarified by, Standards of Conduct for
Transmission Providers, Order No. 690-A, 72 FR 14235 (Mar. 27,
2007); FERC Stats. & Regs. ] 31,243 (2007) (Order on Clarification
and Rehearing).
\12\ Standards of Conduct for Transmission Providers, 72 FR 3958
(Jan. 29, 2007), FERC Stats. & Regs. ] 32,611 (2007) (initial NOPR).
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10. As noted above, consideration of these comments, coupled with
our own experience in administering the Standards, has persuaded us to
modify the approach advanced in the initial NOPR. For that reason, we
now issue a new NOPR, and invite comment both on its general approach
and on its specific provisions.
III. Discussion
A. The Need for Reform
11. The purpose of this revised NOPR is to strengthen the Standards
by making our rules clearer and refocusing them on the areas where
there is the greatest potential for affiliate abuse. In so doing, we
will facilitate compliance by regulated entities and enhance Commission
enforcement. We propose to accomplish this objective by combining the
best elements of Order Nos. 497 and 889, on the one hand, and Order No.
2004, on the other. In particular, we propose to return to the approach
of separating, by function, the transmission personnel from the
marketing personnel that was adopted in Order Nos. 497 and 889 and
worked well for many years, while also retaining a single set of
standards for both natural gas and electric industries, as envisioned
by Order No. 2004. We also propose to further clarify and streamline
the Standards to enhance compliance and enforcement of our rules, and
to increase transparency in the area of transmission/affiliate
interactions to aid in the detection of any undue discrimination.
12. We believe these broader reforms are superior to the
incremental reforms proposed in our initial NOPR for two principal
reasons. First, we propose to return to the functional separation of
transmission and merchant personnel adopted in Order Nos. 497 and 889,
because it worked well for many years. Although Order No. 2004
abandoned this approach in favor of a ``corporate separation,'' it did
so because of jurisdictional concerns created by the addition of Energy
Affiliates to our regulations, not because the functional approach had
proven inadequate in preventing affiliate abuse.\13\
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\13\ The Commission stated: ``While it may be less costly for
some companies to implement the [functional] approach * * * the
Commission is concerned that it does not have the jurisdiction to
direct unregulated Energy Affiliates on how to structure their
functions, operations and communications.'' Order No. 2004 at P 93.
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13. Now that the D.C. Circuit has rejected the addition of Energy
Affiliates for lack of evidence (and no commenter has provided
sufficient evidence to reinstate it), it is no longer appropriate to
retain the corporate separation approach adopted in Order No. 2004.
Furthermore, there is good reason to rescind it. The corporate
separation approach has proven so difficult to implement that it has
generated scores of ``waiver'' requests (most of which were granted)
and has otherwise frustrated compliance by diverting the industry's
focus from the very reason why the Standards were necessary in the
first place--the conflict of interest between the functions of
transmission and merchant activities.
14. The initial NOPR was itself evidence of the problem we now seek
to remedy. Since the adoption of Order No. 2004, the corporate
separation approach had, as we found in the initial NOPR, impeded
legitimate integrated resource planning and competitive
solicitations.\14\ To address this problem, we proposed there to create
two new exemptions for these activities. Yet, by failing to address the
underlying cause of that problem--the corporate separation approach--
we, again, created additional exemptions and complexity to a rule
already burdened with so many waivers, exemptions and complexity that
both compliance and enforcement have been frustrated. By proposing to
return to the functional approach that had proven effective prior to
Order No. 2004, we can accommodate such legitimate activities without
creating yet another set of exemptions.
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\14\ Southern Company Services, Inc., among other commenters in
the Order No. 2004 docket, described the difficulties that arise
when all the employees of a marketing affiliate, including its
planning employees, are prohibited from receiving transmission
information: ``Planning new generation and transmission capacity
requires selecting the right combination and location of both
generation and transmission. Coordinated and integrated planning is
required because the siting of new generation is integrally related
to transmission considerations and vice versa * * *. Accordingly,
the costs, characteristics and locations of generation and
transmission must be considered together in order to ensure the
provision of service to customers on a reliable and least cost
basis.'' Comments of Southern Company Services, Inc., Docket No.
RM01-10-000 at p. 16 (Dec. 20, 2001).
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15. Second, we believe this broader reform of our existing
Standards is necessary to make them clearer in an era where the
Commission possesses substantial civil penalty authority. Soon after
the adoption of the Energy Policy Act of 2005 (EPAct 2005),\15\ the
Commission heard significant concerns from the regulated community that
the existing Standards contained so many ambiguities that they impeded
compliance and left companies--including those with the best cultures
of compliance--exposed to significant civil penalties. We responded to
those concerns by holding a public technical conference in Phoenix,
Arizona, attended by all of the Commissioners serving at the time. The
consistent message from regulated entities at this conference was best
captured by an energy attorney who stated that ``there is no area
[besides the Standards] where I practice law where there is a greater
number of times I am asked the question and I don't have the answer,
and that is a real problem when you are talking about corporate
governance.'' \16\
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\15\ Pub. L. No. 109-58, 119 Stat. 594 (2005).
\16\ Standards of Conduct Conference and Workshop (April 7,
2006), transcript at p. 61.
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16. Nearly two years later, we heard the same concerns at our
enforcement conference in Washington, DC. Several panelists expressed
concern about the ambiguities in our Standards. These concerns were
also supported in comments submitted on behalf of six industry trade
groups, who placed the Standards at the top of their list of ambiguous
rules that hinder compliance.\17\ As these six groups and another trade
association emphasized, a ``[l]ack of clarity sows confusion, creates
unnecessary risk and chills legitimate
[[Page 16231]]
market behavior because market participants are reticent to engage in
certain types of transactions where the rules are unclear.'' \18\
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\17\ Comments at 20, submitted by The American Gas Association,
Edison Electric Institute, Electric Power Supply Association,
Independent Petroleum Association of America, Interstate Natural Gas
Association of America, and Natural Gas Supply Association, Docket
No. AD07-13-000 (Dec. 17, 2007).
\18\ White Paper at 6, submitted by The American Gas
Association, Edison Electric Institute, Electric Power Supply
Association, Independent Petroleum Association of America,
Interstate Natural Gas Association of America, Natural Gas Supply
Association and Process Gas Consumers Group, Docket No. AD07-13-000
(Nov. 14, 2007).
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17. We agree, and we have more than an adequate record to support
the conclusion that the existing Standards are too complex to
facilitate compliance or support our enforcement efforts. Since
issuance of the NOPR in Order No. 2004, the Commission has held no less
than four conferences devoted to explication and discussion of the
Standards.\19\ Of the ten requests for No Action Letters submitted to
the Commission since 2005, seven have involved the Standards.\20\ And
Commission staff has received so many calls regarding the
interpretation and application of the Standards, that the Commission
has posted on its public Web site a 30-page document entitled
``Frequently Asked Questions about Order No. 2004.''
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\19\ May 21, 2002 in Washington, DC; May 10, 2004 in Houston,
Texas; May 6, 2005 in Chicago, Illinois; and April 7, 2006 in
Scottsdale, Arizona.
\20\ No Action Letters can be sought for matters involving the
Standards of Conduct, Codes of Conduct (now Affiliate Restrictions),
Market Behavior Rules, and the Anti-Manipulation Rules.
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18. The complexity and unworkability of the current Standards is
also evident in the fact that since issuance of Order No. 2004, the
Commission has received 107 requests for waiver from various aspects of
the Standards, the vast majority of which have been granted.
Interpretation of the Standards has thus consumed thousands of hours of
staff time. It has also proven so elusive to the industry that it has
engendered numerous conferences by law firms and trade associations,
greatly outstripping comparable areas of Commission compliance in
resources and money.
19. The complexity and over breadth of the current Standards has
also made it more difficult for transmission providers to reasonably
manage their business, an effect which the Commission never intended.
As the court in Tenneco noted, vertical integration can produce
efficiencies of operation, and advantages given to an affiliate are not
improper if they do not amount to exercises of market power.\21\
Unnecessarily balkanizing employees one from another and erecting
barriers to the free flow of information can thwart perfectly
legitimate efficiencies, a consequence which disadvantages not only the
companies involved but ultimately consumers as well, in the form of
higher rates. Executives of transmission providers can also be impeded
in making necessary business decisions for fear they may transgress the
Standards by assembling needed data or by meeting to discuss the merits
of potential investments. This fear has been exacerbated by the
Commission's civil penalty authority, granted by Congress in EPAct
2005. As we explained above, the regulated community has consistently
argued that the Standards are too ambiguous to facilitate compliance,
particularly in an era where significant civil penalties may attach to
violations.
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\21\ Tenneco at 1201.
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20. Therefore, in this NOPR we take the approach of structuring the
Standards to establish per se rules that address the greatest prospect
for undue preference. However, this streamlined approach does not
diminish our ability to rectify and sanction, where necessary,
instances of undue discrimination and preference.\22\ The core
prohibitions against undue preference are rooted in sections 205 and
206 of the FPA and sections 4 and 5 of the NGA,\23\ and the Commission
possesses the full panoply of statutory remedies to address violations
of these statutes, whether or not they are specifically addressed in
the per se regulations of the Standards. Since enforcement of both the
Standards and the statutory prohibitions against undue discrimination
and preference will be greatly assisted by transparency, we also
include in the proposed Standards provisions to make apparent any
instances of communication and undue preference between transmission
function employees and marketing function employees. These provisions
require either the public posting of information regarding such
communications or the maintenance of contemporaneous records for review
by the Commission.
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\22\ Whereas failure to comply with a per se rule of the
Standards automatically establishes a sanctionable violation, an
alleged violation of the Federal Power Act (FPA), 16 U.S.C. 824d-
824e (2000) or the Natural Gas Act (NGA), 15 U.S.C. 717c-717d (2000)
would require an investigation into both the facts and the
surrounding circumstances to determine if, in fact, an undue
discrimination occurred.
\23\ Sections 205 and 206 of the FPA state that no public
utility shall make or grant an undue preference with respect to any
transmission or sale of electric energy subject to the Commission's
jurisdiction. Similarly, sections 4 and 5 of the NGA state that no
natural gas company shall make or grant an undue preference or
advantage with respect to any transportation or sale of natural gas
subject to the Commission's jurisdiction.
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21. We propose regulations that adopt the three core elements which
we believe to be appropriate for per se rules: The independent
functioning rule, the no conduit rule, and the transparency rule. We
address these below.
B. The Independent Functioning Rule
22. Order No. 2004 continued the policy, established in Order Nos.
497 and 889, of requiring transmission providers to function
independently from their marketing employees or marketing affiliates.
This practice has been well-established for close to twenty years, and
it is our sense that both pipelines and public utilities understand the
general concept of independent functioning. We continue to believe this
policy is the most effective manner of preventing undue preference by a
transmission provider, and we will carry forward the requirement of
independent functioning in these proposed Standards.\24\
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\24\ See proposed 18 CFR 358.5(a).
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23. Nevertheless, we believe a basic alteration in its methodology
is warranted. The Standards' existing method for separating
transmission function employees from marketing function employees
relies on the corporate functional approach,\25\ under which a
transmission provider must function independently from an affiliate
which engages in marketing.\26\ This is a departure from the method
adopted in Order Nos. 497 and 889. Order No. 497 required that
interstate natural gas pipelines, to the maximum extent practicable,
ensure that their operating employees and the operating employees of
their marketing affiliates function independently of each other.\27\
Order No. 889 required that, except in emergency circumstances, the
employees of the transmission provider engaged in transmission system
operations must function independently of its employees, or the
employees of any of its affiliates, who engage in wholesale merchant
functions (i.e., wholesale sales and purchases of electric energy).\28\
Thus, the prohibition keyed off the job function of the employee,
rather than by whom he or she was employed.
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\25\ Order No. 2004 designates this approach as the Energy
Affiliate approach. Order No. 2004 at P 92-94.
\26\ Id. P 92-94.
\27\ Order No. 497, formerly codified at 18 CFR 161.3(g).
\28\ Order No. 889, formerly codified at 18 CFR 37.4(a).
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24. This approach was altered in Order No. 2004, which required
transmission function employees to function independently of personnel
employed by the transmission provider's marketing affiliates or Energy
[[Page 16232]]
Affiliates.\29\ Because there are many individuals employed by
transmission providers' marketing affiliates who are not involved in
the core activities that give rise to the potential for undue
preference, we have over the years exempted whole categories of
employees from this restriction and allowed them to be shared between
the transmission provider and its marketing affiliate. These include
officers and members of the board of directors, support employees,
field and maintenance employees, and risk management employees.\30\ We
observed that these employees are not generally in a position to give a
marketing affiliate an undue preference, and that the sharing of these
employees has allowed the transmission provider to realize efficiencies
not otherwise available to it.\31\ Carrying forward this approach in
the initial NOPR, we suggested the creation of two new categories of
exempted employees, the Planning Employee and the Competitive
Solicitation Employee.\32\
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\29\ Order No. 2004, formerly codified at 18 CFR 358.4(a)(1). In
its comments, Edison Electric Institute describes the difficulty
with this approach: ``The corporate functional approach * * * uses
the evaluation of individual employees to determine what a whole
corporation (or division, etc.) does. If an employee performs Energy
or Marketing Affiliate Activities, the whole corporation (or
division) is deemed an Energy or Marketing Affiliate, and every
other employee within the corporation is then subject to the rules
by association, regardless of what they do and the function they
perform, unless they fit into an exempt category. Because these
exempt categories are vague and difficult to implement the
corporate-functional approach ends up with restrictions that apply
to more employees than necessary to meet the objectives of the
rules.'' Comments of the Edison Electric Institute, Docket No. RM07-
1-000 at pp. 20-21 (Mar. 30, 2007).
\30\ Much debate has also been engendered as to whether
employees such as lawyers, accountants, and rate design personnel
should be exempted. See initial NOPR at P 278-98.
\31\ See, e.g., Order No. 2004 at P 97.
\32\ Initial NOPR at P 42 and 54.
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25. This proliferation of exemptions has had the unfortunate side
effect of removing the certainty that might otherwise be enjoyed as to
which persons an employee may properly interact with and which persons
he or she may not. Furthermore, it undermines the legitimacy of the
Standards, as employees may find nonsensical the prohibition against
interacting with personnel who have nothing to do with sensitive
marketing or transmission information.
26. The crux of the problem is that currently the prohibited
category of marketing affiliate includes all employees of the
affiliate, whether engaged in sales or not. To avoid such broad
inclusion, many commenters have proposed that the Commission adopt an
``employee functional approach'' rather than a corporate functional
approach, whereby the Standards would apply to each individual employee
based on that employee's job function, not on the company or division
where the employee is employed.\33\
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\33\ See EEI at 19 for a discussion of this approach. EEI was
supported by Tucson Electric at 4, APS at 3, PSC of New Mexico at 1-
2, Entergy at 1-2, E.ON at 7, Portland General at 1, Northwestern at
1. Other commenters support a similar functional approach: Idaho
Power at 3, Southern Co. Services at 4-8, Keyspan at 3-4, SCE at 3-
5, Western Utilities Compliance Group at 2-3. TAPS is in accord,
providing the meaning of marketing is expanded. TAPS Reply at 7-8.
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27. This proposal was also advanced by commenters in Order No.
2004. It was rejected at that time because the Standards were being
expanded to cover Energy Affiliates, and it was felt that the employee
functional approach might require a shared responsibility on the part
of potentially non-jurisdictional entities.\34\ That reason no longer
exists. We believe the D.C. Circuit's reason for overturning the
prohibitions relating to natural gas Energy Affiliates applies equally
to electric Energy Affiliates, and we propose abandoning the concept of
Energy Affiliate, as discussed more fully below. Therefore, the
concerns of Order No. 2004 regarding jurisdictional access to Energy
Affiliates are rendered moot.
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\34\ Order No. 2004 at P 92.
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28. The employee functional approach accomplishes directly the goal
of identifying which employees ought not to interact with one another,
whereas the corporate functional approach attempts to accomplish that
objective indirectly, by focusing on the nature of the employing
entity. This casts too wide a net and ensnares employees who do not
perform sensitive functions. Commission staff has expended much effort
in attempting to clarify for companies which employees may interact
with one another and which may not. In one case, for example,
coordination of generation dispatch and transmission service
reservations were both conducted out of the same system operating
center, in order to realize cost and communication efficiencies. This
necessitated a series of orders by the Commission to deal with employee
classification problems under the Standards.\35\ In another instance,
marketing affiliate employees who ran a generating plant needed access
to a transmission substation but were barred from doing so under the
Standards, even though they performed no marketing functions. A waiver
was needed in this case,\36\ and questions as to precisely which
employees were covered by the waiver consumed a good deal of staff's
attention.\37\ Personnel in the nuclear power industry were so confused
about permitted communications that the Commission, in order for
companies to comply with the requirements of the U.S. Nuclear
Regulatory Commission, had to issue an order granting permission for
transmission providers to communicate with affiliated nuclear power
plants.\38\ The Commission has also expended considerable effort in
clarifying for companies whether given entities qualify as Energy
Affiliates, a status that barred their employees from interacting with
transmission function employees.\39\
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\35\ See Audit of Standards of Conduct, Code of Conduct, OASIS &
Transmission Practices, Duke Energy Corporation, Docket No. PA03-15-
000 at pp. 6-8 (Jan. 21, 2005).
\36\ Algonquin Gas Transmission, L.L.C., 111 FERC ] 61,099, at P
21-32 (2005).
\37\ See Audit of Standards of Conduct, Code of Conduct, and
Open Access Transmission Tariff Requirements at Florida Power and
Light Company, Docket No. PA05-7-000 at pp. 6-10 (May 12, 2006).
\38\ Interpretive Order Relating to the Standards of Conduct,
114 FERC ] 61,155 (2006) (Interpretive Order), clarified in 115 FERC
] 61,202 (2006).
\39\ See, e.g., Alcoa Power Generating Inc., 108 FERC ] 61,243,
at P 29-35, 42-56, 136-46 (2004), reh'g granted in part as to
unrelated issue, Nat'l Fuel Gas Supply Corp., 116 FERC ] 61,048
(2006); High Island Offshore System, L.L.C., 116 FERC ] 61,047, at P
59-68 (2006).
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29. The employee functional approach, by pinpointing precisely
which employees need to function independently one from another, has
the added benefit of making the purpose of the prohibition more readily
apparent. It should also make it easier for employees to comply with
the Standards, since they will likely know an individual's job
function, whereas they may not know by which subsidiary of an umbrella
organization a given individual is employed.
30. Therefore, we propose adopting the employee functional
approach, and define the two groups of employees who must function
independently of each other as ``transmission function employees'' \40\
and ``marketing function employees'' \41\ (whether employed within the
corporate structure of the transmission provider or by an affiliate of
the transmission provider). The definitions of these terms are
discussed in the following sections. We also propose to continue the
general prohibition against marketing function employees conducting
transmission functions, or having discriminatory access to the
transmission provider's system control center.\42\ Furthermore, we add
the converse prohibition, that a
[[Page 16233]]
transmission function employee may not conduct marketing functions.\43\
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\40\See proposed section 358.3(i).
\41\See proposed section 358.3(d).
\42\See proposed 18 CFR 358.5(c)(1).
\43\See proposed 18 CFR 358.5(c)(2).
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1. Transmission Function Employee
31. We propose defining a transmission function employee as an
employee, contractor, consultant or agent of a transmission provider
who engages in transmission functions.\44\ ``Transmission functions''
are defined as the conduct of transmission system operations and the
planning, directing, organizing or carrying out of transmission
operations, including the granting and denying of transmission service
requests.\45\
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\44\ See proposed 18 CFR 358.3(i).
\45\ See proposed 18 CFR 358.3(h).
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32. We believe this definition, when coupled with the definition of
``marketing functions'' discussed below, addresses the concerns raised
by the industry regarding the obstacles the Standards place in the way
of system planning. We stressed in Order Nos. 890 and 890-A not only
the critical importance of long-range planning, but also the
desirability of a coordinated and open planning process.\46\
Unnecessary restrictions on employee interactions militate against that
objective. However, because we are returning to the functional
separation approach adopted in Order No. 889, and because a marketing
function employee is one who is actively and personally engaged in
marketing activities, an employee who performs merely a planning
function and is not ``engaged in'' making wholesale offers, bids or
sales does not fall within the prohibited category. He or she is
therefore free to discuss system planning, including state-mandated
Integrated Resource Planning, with transmission function employees.
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\46\ Preventing Undue Discrimination and Preference in
Transmission Service, Order No. 890, FERC Stats. & Regs. ] 31,241,
at P 425 (2007), order on reh'g and clarification, Order No. 890-A,
FERC Statutes and Regulations ] 31,261, at P 171 (2007).
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33. With respect to employee interactions regarding reliability
functions, we deem it the first order of business on the part of a
transmission provider to ensure reliability of operations. Indeed,
pursuant to Congressional mandate in EPAct 2005, Reliability Standards
have been promulgated by the Commission-certified Electric Reliability
Organization \47\ and approved by the Commission, violation of which
can subject a transmission provider to substantial civil penalties of
up to $1 million a day.\48\ Several Reliability Standards require an
electric transmission provider to coordinate operations with entities
that may include marketing affiliates and, thus, marketing function
employees.\49\ We therefore provide an exception to the independent
functioning rule for the exchange of information necessary to maintain
or restore operation of the transmission system. Exchanges of
information pursuant to this exception should be made only to the same
extent that a transmission provider would exchange information with
similarly situated marketing function employees of a non-affilated
entity. We also propose requiring that a contemporaneous record be made
of exchanges pursuant to this exception, except in emergency
situations, when a record may be prepared after the fact.\50\
Furthermore, transmission function employees will still be subject to
the no conduit rule discussed below, and thus will be required to
distinguish between information concerning reliability activities and
other transmission function information.
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\47\ The North American Electric Reliability Corporation was
certified as the Electric Reliability Organization, pursuant to
section 215 of the FPA, in North American Electric Reliability
Corp., 116 FERC ] 61,062, order on reh'g and compliance, 117 FERC ]
61,126 (2006).
\48\ Mandatory Reliability Standards for the Bulk-Power System,
Order No. 693, FERC Statutes and Regulations ] 31,242 (2007), order
on reh'g, Order No. 693-A, 120 FERC ] 61,053 (2007), codified at 18
CFR part 40.
\49\ See, e.g., Reliability Standard TOP-003-0 (balancing
authorities, transmission operators and generator operators shall
plan and coordinate scheduled outages of system voltage regulating
equipment and telemetering and control equipment); Reliability
Standard TOP-002-2 (generator operator shall coordinate current-day,
next-day and seasonal operations with its host balancing authority
and transmission service provider).
\50\ See proposed section 358.7(h).
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34. If an employee spends any but a de minimis amount of time
engaged in transmission functions, he or she will be considered a
transmission function employee. However, a supervisor, officer or
director who is not actively and personally engaged in transmission
functions will not be considered a transmission function employee.\51\
Such an individual will, of course, have access to transmission
function information, and will be barred from sharing it with marketing
function employees under the no conduit rule discussed below. Inasmuch
as different organizations use different titles for the same job
function, we decline to propose a cutoff for supervisory personnel
based on job title, and instead propose a functional approach based on
actual involvement in the activities themselves. For instance, if a
transmission department supervisor is charged with the general
responsibility of overseeing system control center personnel, but does
not himself engage in system operations or grant or deny transmission
service requests, he would not be a transmission function employee. But
if he is involved in system operations or the processing of
transmission service requests, or engages in decision-making regarding
system operations or the processing of transmission service requests,
he would be a transmission function employee even if he also has
supervisory responsibilities.
---------------------------------------------------------------------------
\51\ See proposed 18 CFR 358.3(i).
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2. Marketing Function Employee
35. The current Standards do not contain a definition of marketing
function employee, although they do define ``marketing affiliate,''
``marketing, sales or brokering,'' and ``marketing or brokering.'' We
propose to simplify these concepts and, in accordance with our employee
functional approach, eliminate the definition of marketing affiliate.
We propose to define a marketing function employee as an employee,
contractor, consultant or agent of a transmission provider or of an
affiliate of a transmission provider who engages in marketing
functions.\52\ ``Marketing functions'' are defined as the sale for
resale in interstate commerce, or the submission of offers or bids to
buy or sell natural gas or electric energy or capacity, demand
response, virtual electric or gas supply or demand, or financial
transmission rights in interstate commerce, all as subject to certain
exemptions.\53\ We also propose to revise the existing definition of
``affiliate'' to conform to the current definition set forth in 18 CFR
35.43(a)(1).\54\
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\52\ See proposed 18 CFR 358.3(d).
\53\ See proposed 18 CFR 358.3(c). This definition is a variant
of a suggestion by TAPS. We note that it is unnecessary to include
in the list of products another item mentioned by TAPS, that of
ancillary services, as these are included in the definition of sales
of electric energy. TAPS Reply at 8. We decline to include the
suggested category of sites for generating capacity, as this
category is far afield from the concept of marketing energy.
\54\ See proposed 18 CFR 358.3(a). This definition was
promulgated in Cross-Subsidization Restrictions on Affiliate
Transactions, Order No. 707, 73 Fed. Reg. 11,013 (Feb. 29, 2008),
FERC Stats. & Regs. ] 31,263 (2008).
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36. In the past, the following categories have been exempted from
the definition of marketing: (i) Bundled retail sales, (ii) incidental
purchases or sales of natural gas to operate interstate natural gas
pipeline transmission facilities, (iii) sales of natural gas solely
from the transmission provider's own production, (iv) sales of natural
gas solely from the transmission provider's
[[Page 16234]]
own gathering or processing facilities, or (v) sales by an intrastate
natural gas pipeline or local distribution company making an on-system
sale. The comments did not suggest deleting these exemptions, and we
propose to carry them forward in this reissued NOPR.\55\
---------------------------------------------------------------------------
\55\ See proposed 18 CFR 358.3(c)(1)-(5).
---------------------------------------------------------------------------
37. We also note that a question has arisen whether providers of
last resort (POLR), which are transmission providers that are charged
with serving retail customers when the customers choose not to purchase
from other suppliers, should likewise be exempted. We declined to
accord POLRs a generic exemption in Order No. 2004-C, instead stating
we would consider their status on a case-by-case basis. Commenters
supporting the exemption pointed out that POLR service constitutes
bundled retail sales, and thus should fall within the exemption for
that category.\56\ Commenters opposing the exemption presented
theoretical instances of abuse, but not actual instances.\57\ In the
absence of actual evidence of abuse, we believe the general exemption
for bundled retail sales should also apply to transmission providers
acting as POLRs, and therefore propose to include POLRs in the list of
exempt marketing functions.\58\
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\56\ Northwestern at 5-6, Ameren at 25-28.
\57\ Illinois Commerce Commission Reply at 6-7, Retail Energy
Supply Association at 5-7.
\58\ See proposed 18 CFR 358.3(c)(1).
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38. Similarly as with respect to transmission function employees,
if an employee spends any but a de minimis amount of time engaged in
marketing functions, he or she will be considered a marketing function
employee. However, a supervisor, officer or director who is not
actively and personally engaged in marketing functions will not be
considered a marketing function employee.\59\ For instance, if a
manager has supervisory responsibility over employees engaged in making
offers or sales of electric energy or natural gas, but does not engage
in making offers or sales himself, he would not be a marketing function
employee. However, if he both supervises others and engages in making
offers or sales himself, or engages in decision-making regarding offers
or sales, he would be a marketing function employee.
---------------------------------------------------------------------------
\59\ See proposed 18 CFR 358.3(d).
---------------------------------------------------------------------------
39. We note that our revised approach to the independent
functioning rule resolves the question of whether asset managers should
be subject to the Standards. In the initial NOPR, the Commission
proposed expanding the definition of ``marketing, sales or brokering''
to include entities that manage or control transmission capacity, such
as asset managers or agents. A number of comments were received on this
subject, and several commenters noted that no evidence of abuse by
asset managers had been presented in the initial NOPR record. These
commenters point out that in the absence of such evidence, inclusion of
asset managers in the category of proscribed affiliates would run afoul
of the infirmity noted in National Fuel regarding Energy
Affiliates.\60\
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\60\ Nevada Companies at 13, citing P 21 of the NOPR. See also
National Fuel Companies at 5-6, Spectra at 10-13, Williston at 9-10,
Sequent at 4-5.
---------------------------------------------------------------------------
40. It is not necessary to reach this issue under our proposal, as
our definition of marketing function employee reaches only those
employees of an asset manager, whether that asset manager is a
contractor, consultant, agent or affiliate, who may be directly engaged
in wholesale marketing. Therefore, it is only those specific employees
of an asset manager who must function independently of a transmission
provider's transmission function employees. This simplification
regarding asset managers illustrates another advantage to our proposed
employee functional approach. If a company finds it more efficient to
have fewer subsidiaries and combine multiple functions in a given
affiliate, it need not avoid doing so simply to shield the affiliate's
non-marketing employees from the restrictions imposed by the Standards.
3. Shared Employees
41. Employees such as attorneys, accountants, risk management
personnel and rate design employees do not fall within the scope of the
independent functioning rule, so long as they are acting in their roles
as attorneys, accountants, risk management personnel or rate design
employees, rather than as transmission function employees or marketing
function employees. Thus, there is no longer a need for the concept of
``shared employees.'' Of course, as discussed below, such employees
remain subject to the no conduit rule and may not pass non-public
transmission function information to marketing function employees.
42. Furthermore, field employees will no longer need to be exempt
from the independent functioning rule, as such employees, while
qualifying as transmission function employees by virtue of being
engaged in transmission system operations, will not be in a position to
interact with marketing function employees. In those rare cases where
marketing function employees may also operate generation and need to
confer with transmission function employees, we propose a specific
exception to the no conduit rule, as discussed below.
4. Permitted Interactions
43. We recognize, based on lengthy experience of our Audits and
Investigations staff in the Office of Enforcement, that there may be
instances where transmission function employees must communicate with
marketing function employees.\61\ For instance, it is not infrequently
the case that the merchant function of a public utility not only
engages in marketing the company's electric power, but also operates
its generating plants. Under our proposal, the number of operational
employees who would qualify as marketing function employees will be
greatly reduced. However, it is possible, as noted above, that there
may be some overlap between sales and operations. In such cases, it is
essential that the employees who supervise the operation of the
generating plants be able to discuss the plants' operational status
with transmission function employees, as such information will affect
flows and availability on the company's transmission system. Therefore,
for these occasions as well as for the reliability situations discussed
above, we include an exception to the independent functioning
requirement for communications between transmission function employees
and marketing function employees.\62\ Exchanges of information pursuant
to this exception, as in the case of exchanges regarding reliability,
should be made only to the same extent that a transmission provider
would exchange information with similarly situated marketing function
employees of a non-affiliated entity. In order to prevent and monitor
for potential abuse, we also include a requirement that contemporaneous
records of such dispatch or reliability communications between
transmission function employees and marketing function employees be
maintained by the company and made available to Commission staff on
request, as described in our discussion below on the transparency
rule.\63\ It will be the responsibility of the Chief Compliance
[[Page 16235]]
Officer to ensure that such records are made and retained.
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\61\ As noted, we have already provided for necessary
communications between employees of a transmission provider and its
affiliated nuclear power plant in the Interpretive Order.
\62\ See proposed 18 CFR 358.5(b).
\63\ See proposed 18 CFR 358.7(h).
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5. Energy Affiliates
44. The concept of Energy Affiliates was added to the Standards in
Order No. 2004. In that Order, we required pipelines and public
utilities to function independently from their Energy Affiliates as
well as from their marketing affiliates, and restricted the sharing of
information by transmission providers with their Energy Affiliates. It
was this addition which led the court in National Fuel to vacate the
order with respect to the gas industry, on the grounds there was no
record evidence of abuse by Energy Affiliates.
45. Our proposed adoption of the employee functional approach
renders moot the question of whether the concept of Energy Affiliates
should be retained for the electric industry. We no longer propose
separating employees from transmission activities by virtue of their
being employed by either a marketing affiliate or an Energy Affiliate,
but rather by their job as a marketing function employee. Moreover, we
note that commenters who supported retention of the concept of Energy
Affiliates did not provide the Commission with evidence of actual
abuse. That being the case, the same reasoning as was employed in
National Fuel with respect to the natural gas industry would likely
prevail on appeal of any order that restricted communications between
public utilities and their Energy Affiliates. For that reason as well,
we decline to apply the concept of Energy Affiliates to the electric
industry.
C. The No Conduit Rule
46. We propose strengthening the proscriptions against the exchange
of prohibited information in several ways. In addition to the current
prohibition against transmission function employees disclosing non-
public transmission function information to marketing function
employees,\64\ we propose prohibiting marketing function employees from
receiving non-public transmission function information from any
source.\65\ And in addition to the current prohibition against a
transmission provider using anyone as a conduit for the improper
disclosure of non-public transmission function information, we propose
prohibiting both an employee of a transmission provider and also an
employee of an affiliate engaged in marketing functions from disclosing
non-public transmission function information to marketing function
employees.\66\ The expansion of the no conduit rule \67\ is designed to
reach all sources of a prohibited informational exchange. It also
encompasses many employees who do not fall within the scope of the
independent functioning rule. For instance, although under our proposal
there is no requirement that lawyers employed by a transmission
provider need to function independently of the company's marketing
function employees, such lawyers must avoid serving as a conduit for
passing transmission function information to a marketing function
employee.
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\64\ The current Standards prohibit transmission provider's
employees from disclosing non-public information about the
transmission system to marketing or Energy Affiliates. 18 CFR
358.5(b).
\65\ See proposed Sec. 358.6(a)(2).
\66\ See proposed Sec. 358.6(a)(4).
\67\ In the current Standards, the no conduit prohibition refers
only to the use of another person by the transmission provider or
its employees to pass prohibited information to a marketing
affiliate or Energy Affiliate. 18 CFR 358.5(b)(7). In the proposed
Standards, the term ``no conduit rule'' refers to the entire set of
prohibitions on informational exchanges, including transmission
provider employees, marketing affiliate employees and employees of
other entities.
---------------------------------------------------------------------------
47. As a safety valve, we also include an exemption to the no
conduit rule that parallels the exemption provided under the
independent functioning rule. Thus, the exchange of transmission
function information with marketing function employees is permitted
where the information regards generation necessary to perform
generation dispatch, or is necessary to maintain or restore operation
of the transmission system.\68\ In such cases, a contemporaneous record
is to be made of the exchange, except in emergency circumstances, when
the record can be made after the fact.\69\
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\68\ See proposed 18 CFR 358.6(b).
\69\ See proposed 18 CFR 358.7(h).
---------------------------------------------------------------------------
48. Compliance with proscriptions on the exchange of information
should be greatly facilitated by the existing requirement that
transmission providers designate a Chief Compliance Officer. Such
officers are responsible, in the first instance, for fielding any
questions from employees regarding the nature of transmission function
information or the persons to whom it may be passed, for preventing
prohibited exchanges of information, and for curing any prohibited
exchanges by public posting of the information. We proposed in the
initial NOPR that a transmission provider post the name of its Chief
Compliance Officer on its OASIS or Internet Web site, due to
difficulties Commission staff had experienced in identifying the Chief
Compliance Officers of several transmission providers. We carry forward
that proposal here.\70\
---------------------------------------------------------------------------
\70\ See proposed 18 CFR 358.8(c)(2).
---------------------------------------------------------------------------
49. We also propose retaining from the existing regulations the
requirement that transmission providers train their employees on
compliance with the Standards, and propose carrying forward from the
initial NOPR the requirement that completion of such training be
certified. We also propose that such training be conducted
annually.\71\ Most employees should received some training, as all
employees are forbidden from passing designated information to
prohibited employees, but the bulk of the training will need to be
concentrated on transmission function employees, marketing function
employees, and those employees who are privy to transmission function
information. Such employees would include lawyers, accountants, risk
management personnel, and members of the rate design department. Since
the actual restrictions in the Standards will now match the abuses
sought to be avoided, such training should be relatively
straightforward and easy for employees to comprehend.
---------------------------------------------------------------------------
\71\ See proposed 18 CFR 358.8(c)(1).
---------------------------------------------------------------------------
D. The Transparency Rule
50. The reason behind the no conduit rule's prohibitions on receipt
and disclosure of information is to prevent undue discrimination and
undue preference by a transmission provider towards its marketing
affiliate or division. But undue preferences can occur only if the
prohibited information is not generally available to the competitors of
such affiliates or divisions. Therefore, a transmission provider may
comply with the prohibitions on passing transmission function
information to marketing function employees by making such information
publicly available. As EPSA remarks in its comments, the simultaneous
disclosure of non-public transmission-related information to affiliates
and to the public provides a ``Gordian Knot'' solution to undue
discrimination in the provision of sensitive information.\72\
---------------------------------------------------------------------------
\72\ EPSA at 4-5.
---------------------------------------------------------------------------
51. As currently provided in the regulations, in the event
prohibited information is inadvertently passed to a prohibited
employee, the violation can be cured by immediately posting such
information on the transmission provider's Open Access Same-time
Information System (OASIS) in the case of the electric industry, or on
its Internet website, in the case of the natural gas
[[Page 16236]]
industry.\73\ However, if the unauthorized disclosure includes non-
public transmission customer information (a subset of transmission
function information), we propose that the posting consist only of a
notice that such information has been disclosed, in order to preserve
its confidentiality and prevent further potential harm to that
customer.\74\ We also propose to carry forward from the existing
regulations the exceptions for a marketing employee's specific requests
for transmission service and for situations where a transmission
customer voluntarily consents to the release of its information.\75\ In
those cases where, despite the independent functioning rule,
transmission function employees must interact with marketing function
employees, as where the latter are also responsible for the maintenance
and dispatch of generating units or need to be involved in maintaining
reliability, we have proposed requiring the contemporaneous recording
of such conversations, so that the Commission may ascertain that no
prohibited information was passed in the course of otherwise
permissible discussions. Depending on the circumstances, such
recordation could consist of hand-written or typed notes, electronic
recording such as e-mails and text messages, telephone recordings, or
the like. It is recommended that for all planned communications, the
Chief Compliance Officer designate one of the attendees to such
conversations as the person charged with the responsibility for
recording the conversation or taking notes. The Chief Compliance
Officer must be responsible for retaining these records in an
accessible form, and the transmission provider must make them available
to Commission staff upon request. The Commission proposes that the
records be maintained for a period of five years.\76\
---------------------------------------------------------------------------
\73\ See proposed 18 CFR 358.7(a)(1).
\74\ See proposed 18 CFR 358.7(a)(2).
\75\ See proposed 18 CFR 358.7(b)-(c).
\76\ See proposed 18 CFR 358.7(h).
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52. In accordance with the general aim of preventing undue
preference, we propose retaining the existing regulation that a log be
kept of any exercises of discretion or acts of waiver on the part of
transmission providers. These should also be made available to
Commission staff upon request.\77\ Similarly, we proposed to retain the
existing requirement that any offer of a discount must be posted on the
transmission provider's OASIS or Internet Web site.\78\
---------------------------------------------------------------------------
\77\ See proposed 18 CFR 358.4(4).
\78\ See proposed 18 CFR 358.4(b).
---------------------------------------------------------------------------
53. We also propose certain modifications to the posting
requirements for transmission providers. We propose the elimination of
an organizational chart, which is no longer necessary in the absence of
a requirement to bring Energy Affiliates within the scope of the
Standards. However, affiliates that employ marketing function employees
still need to be listed.\79\ Another proposed modification is to
provide for a temporary suspension of posting requirements in the case
of emergencies.\80\ Commission staff has received requests for waivers
in the wake of Hurricane Katrina and other natural disasters, when
transmission providers found it impossible to keep up with their normal
posting requirements. At such times, they should not be further
burdened with the necessity of seeking a waiver.
---------------------------------------------------------------------------
\79\ See proposed 18 CFR 358.7(e)(l).
\80\ See proposed 18 CFR 358.7(g)(2).
---------------------------------------------------------------------------
54. We also propose to continue the existing requirements
concerning the posting of written implementation procedures for the
Standards, certain merger information (modifying the information to
account for the deletion of the concept of Energy Affiliates), and
employee transfer information.\81\
---------------------------------------------------------------------------
\81\ See proposed 18 CFR 358.7(d)-(f).
---------------------------------------------------------------------------
55. The combination of public disclosure and contemporaneous
recording required by the transparency rule should go a long way toward
providing the Commission and market participants with the information
needed to identify violations of the per se rules of the Standards, for
which no further investigation would be needed. It also should enhance
the ability of the Commission to monitor other behavior which may not
be covered by the Standards themselves but which could be considered
undue discrimination or preference under the FPA or NGA.
E. Miscellaneous
1. General Principles
56. We propose to modify the statement of general principles
currently found in 18 CFR 358.2 to reflect statutory language regarding
the prohibition against undue discrimination and undue preference.\82\
We also propose to include statements of principle that reflect the
three core rules we propose here, those being the independent
functioning rule, the no conduit rule, and the transparency rule.\83\
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\82\ The statutory language is contained in sections 205 and 206
of the FPA and sections 4 and 5 of the NGA.
\83\ See proposed 18 CFR 358.2.
---------------------------------------------------------------------------
2. Non-Discrimination Requirements
57. We propose to carry forward the existing regulations regarding
the non-discrimination and non-preference requirements imposed on
transmission providers, with some minor wording changes and combining
of sections for simplicity and clarity.\84\ While these requirements
are in large part self-evident, as they reiterate statutory provisions,
we believe that reiteration is helpful to emphasize the relationship of
the Standards to the statutory prohibition against undue
discrimination.
---------------------------------------------------------------------------
\84\ See proposed 18 CFR 358.4.
---------------------------------------------------------------------------
3. Applicability
58. In the paragraphs concerning applicability of the standards, we
propose modifying Sec. 358.1(a) to conform to the definitions proposed
here, but otherwise to retain the restriction on applicability only to
those pipelines that conduct transportation transactions with their
marketing affiliates. We request comment as to whether this section and
the following Sec. 358.1(b), dealing with electric transmission
providers, should be made parallel by deleting this provision (or in
some other way). While a pipeline might conceivably have marketing
affiliates with which it does not conduct transportation transactions,
we note that pipelines need no longer be concerned with the inability
to share information with the officers of such marketing affiliates,
under our proposed reform of the independent functioning rule.
59. We propose to continue the existing exemption from the
Standards for regional transmission organizations (RTOs) and
independent system operators (ISOs). We also propose to continue the
present ability of transmission owners that are members of RTOs and
ISOs to apply for a waiver from the Standards if they do not operate or
control their transmission facilities and have no access to
transmission function information.\85\
---------------------------------------------------------------------------
\85\ See proposed 18 CFR 358.1(c).
---------------------------------------------------------------------------
60. The initial NOPR raised the question as to when a new natural
gas transmission provider should become subject to the Standards. Under
Order No. 497, a natural gas transmission provider became subject to
the Standards when it commenced transportation transactions with its
marketing or brokering affiliate.\86\ In Order No. 2004-B, the
Commission stated that a new interstate pipeline should observe the
Standards when the pipeline is granted and accepts a certificate of
public convenience and
[[Page 16237]]
necessity and becomes subject to the Commission's jurisdiction under
the NGA.\87\ This was one of the items appealed by the gas industry,
and although it was not addressed in the National Fuel decision, it was
vacated sub silencio. In the Interim Rule, the Commission did not
require natural gas transmission providers to observe the Standards
until such time as they commenced transportation transactions with
their marketing affiliates.\88\
---------------------------------------------------------------------------
\86\ Former 18 CFR 161.3.
\87\ Order No. 2004-B at P 137.
\88\ Interim Rule at P 26.
---------------------------------------------------------------------------
61. As we observed in the initial NOPR, we do not have any evidence
that affiliate abuse has occurred in the time period before
transportation commences. Therefore, we propose not to require new
natural gas transmission providers to observe the Standards until the
earlier of the date they have a rate on file with the Commission, or
the date on which they commence transportation transactions. We propose
to apply the same rule to electric transmission providers.\89\
---------------------------------------------------------------------------
\89\ See proposed 18 CFR 358.8(a).
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4. Updates and Ministerial Corrections
62. We carry forward proposals from the initial NOPR to delete
outdated references, such as those referring to the date for submitting
a plan and a schedule for implementing the Standards.\90\ We also
revise language from the existing regulations where necessary to
correct such ministerial matters as grammar and punctuation, and to
account for the new definitions we propose here. Finally, we propose to
reorganize sections where necessary to place related provisions in
their logical sequence. For example, provisions regarding Energy
Affiliates have been deleted, and provisions involving posting
requirements have been gathered together in Sec. 358.7, the
transparency rule.
---------------------------------------------------------------------------
\90\ See proposed 18 CFR 358.8(b).
---------------------------------------------------------------------------
63. We propose modifying the section on definitions by providing
new definitions that conform with the reforms proposed in this NOPR,
deleting existing definitions no longer needed in light of our new
proposals, and placing the definitions in alphabetical order.\91\ We
propose to carry forward the current definitions of ``transmission
provider,'' but request comment on whether the separate definitions for
electric and gas should be made parallel by referring to the applicable
sections of the Code of Federal Regulations in each definition.\92\
---------------------------------------------------------------------------
\91\ See proposed 18 CFR 358.3.
\92\ See proposed 18 CFR 358.3(k).
---------------------------------------------------------------------------
64. Except as noted above, we propose retaining the bulk of the
existing requirements for posting notices on the OASIS or Internet Web
site, with minor wording revisions for clarity.\93\ We propose
retaining the requirement regarding the maintenance of books and
records.\94\ With minor wording changes to reflect our proposed new
definitions, we also propose to retain the requirement that written
procedures be posted on the OASIS or Internet Web site and be
distributed to selected employees.\95\ However, we propose to delete
the current requirement that such written procedures also be filed with
the Commission.
---------------------------------------------------------------------------
\93\ See proposed 18 CFR 358.7(d)-(g).
\94\ See proposed 18 CFR 358.8 (d).
\95\ See proposed 18 CFR 358.7(d) and 358.8(b).
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IV. Applicability of the Proposed Rule and Compliance Procedures
65. The Commission has a responsibility under FPA sections 205 and
206 and NGA sections 4 and 5 to ensure that the rates, charges,
classifications, and service of public utilities (and any rule,
regulation, practice, or contract affecting any of these) are just and
reasonable and not unduly discriminatory or preferential, and to remedy
undue discrimination and undue preference in the provision of such
services. In fulfilling its responsibilities under FPA sections 205 and
206 and NGA sections 4 and 5, the Commission is required to address,
and has the authority to remedy, undue discrimination and undue
preference. Our action in this NOPR proposes to fulfill those
responsibilities by proposing reforms to the Standards, which are
designed to provide per se rules preventing undue discrimination and
undue preference by transmission providers in the sale for resale of
natural gas and electric energy.
66. The Commission proposes to apply the Final Rule in this
proceeding to all transmission providers, who will be required to abide
by its provisions, including the designation of a Chief Compliance
Officer and the provision of training to its employees. Records of
compliance are required to be maintained by the transmission provider
for inspection by the Commission.
V. Information Collection Statement
67. The Office of Management and Budget (OMB) regulations require
approval of certain information collection requirements imposed by
agency rules.\96\
---------------------------------------------------------------------------
\96\ 5 CFR 1320.11.
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68. Previously, the Commission submitted to OMB the information
collection requirements arising from the Standards of Compliance
adopted in Order No. 2004. OMB approved those requirements.\97\ The
revisions to the Standards proposed in this issuance are modifications
of already approved information collection procedures, and do not
impose any significant additional information collection burden on
industry participants. Many of the changes consist merely of the
rewording of definitions and the reordering of the various information
collection requirements. Some information collection requirements have
been deleted, such as the posting of organizational charts. A
requirement has been added concerning the maintenance of records
regarding certain informational exchanges between transmission function
employees and marketing function employees, as well as a requirement
regarding the posting of contact information regarding the
identification of the Chief Compliance Officer. Neither of these should
impose a significant burden on the transmission providers. In fact, by
proposing that the Standards will no longer govern the relationship
between transmission providers and their Energy Affiliates, the overall
information collection burden will likely decrease.
---------------------------------------------------------------------------
\97\ Letter from OMB to the Commission (Jan. 20, 2004) (OMB
Control Number 1902-0157); ``Notice of Action'' letter from OMB to
the Commission (Jan. 20, 2004) (OMB Control Number 1902-0173).
---------------------------------------------------------------------------
69. The Commission is submitting notification of the information
collection requirements imposed in the NOPR to OMB for its review and
approval under section 3507(d) of the Paperwork Reduction Act of
1995.\98\ Comments are solicited on the Commission's need for this
information, whether the information will have practical utility, the
accuracy of provided burden estimates, ways to enhance the quality,
utility, and clarity of the information to be collected, and any
suggested methods of minimizing respondent's burden, including the use
of automated information techniques.
---------------------------------------------------------------------------
\98\ 44 U.S.C. 3507(d) (2000 and Supp. V 2005).
---------------------------------------------------------------------------
70. OMB regulations require OMB to approve certain information
collection requirements imposed by agency rule. The Commission is
submitting notification of this proposed rule to OMB.
Title: FERC-592 and 717.
Action: Proposed Collection.
OMB Control No.: 1902-0157-1902-173.
Respondents: Business or other for profit.
[[Page 16238]]
Frequency of Responses: On occasion.
Necessity of the Information: The information is necessary to
ensure that all regulated transmission providers treat all transmission
customers on a non-discriminatory basis.
Internal Review: The Commission has reviewed the requirements
pertaining to natural gas pipelines and transmitting electric utilities
and determined the proposed revisions are necessary to clarify the
Standards, enhance compliance, increase efficiencies, and conform with
a recent court decision.
71. These requirements conform to the Commission's plan for
efficient information collection, communication, and management with
the natural gas and electric utility industries. The Commission has
assured itself, by means of internal review, that there is specific,
objective support for the burden estimates associated with the
information requirements.
72. Interested persons may obtain information on the reporting
requirements by contacting: Federal Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426 [Attention: Michael Miller,
Office of the Chief Information Officer, phone: (202) 502-8415, fax:
(202) 208-2425, e-mail: Michael.Miller@FERC.gov.] Comments on the
requirements of the proposed rule also may be sent to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503 [Attention Desk Officer for the Federal Energy
Regulatory Commission].
VI. Environmental Analysis
73. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\99\ The
Commission concludes that neither an Environmental Assessment nor an
Environmental Impact Statement is required for this NOPR under Sec.
380.4 of the Commission's regulations for certain actions. The actions
proposed here fall within the categorical exclusions because this rule
is clarifying and corrective, does not substantially change the effect
of the regulations being amended and calls for information gathering
and dissemination.\100\ Therefore, an environmental assessment is
unnecessary and has not been prepared for this rulemaking.
---------------------------------------------------------------------------
\99\ Order No. 486, Regulations Implementing the National
Environmental Policy Act of 1969, FERC Stats. & Regs. ] 30,783
(1987).
\100\ 18 CFR 380.4(a)(2)(ii) and 380.4(a)(5) (2007).
---------------------------------------------------------------------------
VII. Regulatory Flexibility Act
74. The Regulatory Flexibility Act of 1980 (RFA) \101\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
Because most transmission providers do not fall within the definition
of ``small entity,'' \102\ the Commission certifies that this rule will
not have a significant economic impact on a substantial number of small
entities. Furthermore, small entities may seek a waiver of these
requirements, and those small entities that have already received a
waiver of the Standards would be unaffected by the requirements of this
proposed rulemaking.
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\101\ 5 U.S.C. 601-612 (2000 and Supp. V 2005).
\102\ See 5 U.S.C. 601(3) and (6) (2000 and Supp. V 2005).
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VIII. Comment Procedures
75. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice to be adopted, including
any related matters or alternative proposals that commenters may wish
to discuss. Comments are due May 12, 2008. Comments must refer to
Docket No. RM07-1-000, and must include the commenter's name, the
organization he or she represents, if applicable, and his or her
address.
76. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's Web site at: http://
www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
77. Commenters who are not able to file comments electronically
must send an original and 14 copies of their comments to: Federal
Energy Regulatory Commission, Secretary of the Commission, 888 First
Street, NE., Washington, DC 20426.
78. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this reissued NOPR
are not required to serve copies of their comments on other commenters.
IX. Document Availability
79. 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 (http://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.
80. From FERC's Home Page on the Internet, this information is
available on 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.
81. User assistance is available for eLibrary and the FERC's Web
site during normal business hours from FERC Online Support at 202-502-
6652 (toll free at 1-866-208-3676) or e-mail at:
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. E-mail the Public Reference Room at:
public.referenceroom@ferc.gov.
List of Subjects in 18 CFR Part 358
Electric power plants, Electric utilities, Natural gas, Reporting
and recordkeeping requirements.
By direction of the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
In consideration of the foregoing, the Commission proposes to
revise part 358, Chapter I, Title 18, Code of Federal Regulations, to
read as follows:
PART 358--STANDARDS OF CONDUCT
Sec.
358.1 Applicability.
358.2 General principles.
358.3 Definitions.
358.4 Non-discrimination requirements.
358.5 Independent functioning rule.
358.6 No conduit rule.
358.7 Transparency rule.
358.8 Implementation requirements.
Authority: 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-825r,
2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.
Sec. 358.1 Applicability.
(a) This part applies to any interstate natural gas pipeline that
transports gas for others pursuant to subpart A of part 157 or subparts
B or G of part 284 of this chapter and conducts transmission
transactions with an affiliate that engages in marketing functions.
(b) This part applies to any public utility that owns, operates, or
controls facilities used for the transmission of electric energy in
interstate commerce.
[[Page 16239]]
(c) This part does not apply to a public utility transmission
provider that is a Commission-approved Independent System Operator
(ISO) or Regional Transmission Organization (RTO). If a public utility
transmission owner participates in a Commission-approved ISO or RTO and
does not operate or control its transmission system and has no access
to transmission function information, it may request an exemption from
this part.
(d) A transmission provider may file a request for an exemption
from all or some of the requirements of this part for good cause.
Sec. 358.2 General principles.
(a) A transmission provider must treat all transmission customers,
affiliated and non-affiliated, on a not unduly discriminatory basis,
and must not make or grant any undue preference or advantage to any
person or subject any person to any undue prejudice or disadvantage
with respect to any transportation of natural gas or transmission of
electric energy in interstate commerce, or with respect to the
wholesale sale of natural gas or of electric energy in interstate
commerce.
(b) A transmission provider's transmission function employees must
function independently from its marketing function employees, except as
permitted in this part or otherwise permitted by Commission order.
(c) Transmission function information may not be passed to or
received by a transmission provider's marketing function employees,
unless such information has been made public, except as permitted in
this part or otherwise permitted by Commission order.
(d) A transmission provider must create, and maintain for a period
of five years, records of permitted communications between transmission
function employees and marketing function employees.
Sec. 358.3 Definitions.
(a) Affiliate of a specified company means:
(1) A division that operates as a functional unit of the specified
company or, for any person other than an exempt wholesale generator:
(i) Any person that directly or indirectly owns, controls, or holds
with power to vote, 10 percent or more of the outstanding voting
securities of the specified company;
(ii) Any company 10 percent or more of whose outstanding voting
securities are owned, controlled, or held with power to vote, directly
or indirectly, by the specified company;
(iii) Any person or class of persons that the Commission
determines, after appropriate notice and opportunity for hearing, to
stand in such relation to the specified company that there is liable to
be an absence of arm's-length bargaining in transactions between them
as to make it necessary or appropriate in the public interest or for
the protection of investors or consumers that the person be treated as
an affiliate; and
(iv) Any person that is under common control with the specified
company.
(v) For purposes of paragraph (a)(1)(iv) of this section, owning,
controlling or holding with power to vote, less than 10 percent of the
outstanding voting securities of a specified company creates a
rebuttable presumption of lack of control.
(2) For any exempt wholesale generator (as defined under Sec.
366.1 of this chapter), consistent with section 214 of the Federal
Power Act (16 U.S.C. 824m), which provides that ``affiliate'' shall
have the same meaning as provided in section 2(a) of the Public Utility
Holding Company Act of 1935 (15 U.S.C. 79b(a)(11)):
(i) Any person that directly or indirectly owns, controls, or holds
with power to vote, 5 percent or more of the outstanding voting
securities of the specified company;
(ii) Any company 5 percent or more of whose outstanding voting
securities are owned, controlled, or held with power to vote, directly
or indirectly, by the specified company;
(iii) Any individual who is an officer or director of the specified
company, or of any company which is an affiliate thereof under
paragraph (a)(2)(i) of this section; and
(iv) any person or class of persons that the Commission determines,
after appropriate notice and opportunity for hearing, to stand in such
relation to the specified company that there is liable to be an absence
of arm's-length bargaining in transactions between them as to make it
necessary or appropriate in the public interest or for the protection
of investors or consumers that the person be treated as an affiliate.
(b) Internet Web site refers to the Internet location where an
interstate natural gas pipeline posts the information, by electronic
means, required by Sec. Sec. 284.12 and 284.13 of this chapter.
(c) Marketing functions means the sale for resale in interstate
commerce, or the submission of offers or bids to buy or sell natural
gas or electric energy or capacity, demand response, virtual electric
or gas supply or demand, or financial transmission rights in interstate
commerce, subject to the following exemptions:
(1) Bundled retail sales, including sales of electric energy made
by providers of last resort (POLRs),
(2) Incidental purchases or sales of natural gas to operate
interstate natural gas pipeline transmission facilities,
(3) Sales of natural gas solely from the transmission provider's
own production,
(4) Sales of natural gas solely from the transmission provider's
own gathering or processing facilities, and
(5) Sales by an intrastate natural gas pipeline or local
distribution company making an on-system sale.
(d) Marketing function employee means an employee, contractor,
consultant or agent of a transmission provider or of an affiliate of a
transmission provider who actively and personally engages in marketing
functions. An officer, director or other supervisory employee is not
considered to be a marketing function employee if he or she does not
actively and personally engage in marketing functions.
(e) Open Access Same-time Information System or OASIS refers to the
Internet location where a public utility posts the information, by
electronic means, required by part 37 of this chapter.
(f) Transmission means electric transmission, network or point-to-
point service, ancillary services or other methods of electric
transmission, or the interconnection with jurisdictional transmission
facilities, under part 35 of this chapter; and natural gas
transportation, storage, exchange, backhaul, or displacement service
provided pursuant to subpart A of part 157 or subparts B or G of part
284 of this chapter.
(g) Transmission customer means any eligible customer, shipper or
designated agent that can or does execute a transmission service
agreement or can or does receive transmission service, including all
persons who have pending requests for transmission service or for
information regarding transmission.
(h) Transmission functions means transmission system operations and
the planning, directing, organizing or carrying out of transmission
operations, including the granting and denying of transmission service
requests.
(i) Transmission function employee means an employee, contractor,
consultant or agent of a transmission provider who actively and
personally engages in transmission functions. An officer, director or
other supervisory employee is not considered to be a transmission
function employee if he or
[[Page 16240]]
she does not actively and personally engage in transmission functions.
(j) Transmission function information means information relating to
transmission functions.
(k) Transmission provider means:
(1) Any public utility that owns, operates or controls facilities
used for the transmission of electric energy in interstate commerce; or
(2) Any interstate natural gas pipeline that transports gas for
others pursuant to subpart A of part 157 or subparts B or G of part 284
of this chapter.
(3) A transmission provider does not include a natural gas storage
provider authorized to charge market-based rates that is not
interconnected with the jurisdictional facilities of any affiliated
interstate natural gas pipeline, has no exclusive franchise area, no
captive ratepayers and no market power.
(l) Transmission service means the provision of any transmission as
defined in Sec. 358.3(f).
Sec. 358.4 Non-discrimination requirements.
(a) Implementing tariffs. (1) A transmission provider must strictly
enforce all tariff provisions relating to the sale or purchase of open
access transmission service, if the tariff provisions do not permit the
use of discretion. (2) A transmission provider must apply all tariff
provisions relating to the sale or purchase of open access transmission
service in a fair and impartial manner that treats all transmission
customers in a not unduly discriminatory manner, if the tariff
provisions permit the use of discretion.
(3) A transmission provider may not, through its tariffs or
otherwise, give undue preference to any person in matters relating to
the sale or purchase of transmission service (including, but not
limited to, issues of price, curtailments, scheduling, priority,
ancillary services, or balancing).
(4) A transmission provider must process all similar requests for
transmission in the same manner and within the same period of time.
(5) A transmission provider must post on the OASIS or Internet Web
site, as applicable, notice of each waiver of a tariff provision that
it grants, and notice of each exercise of discretion that it exercises,
detailing the circumstances and manner under which the waiver or
exercise of discretion occurred. The posting must be made within one
business day of the act of a waiver or exercise of discretion. The
transmission provider must also maintain a log of the acts of waiver
and exercises of discretion, and must make it available to the
Commission upon request. The records must be kept for a period of five
years from the date of each act of waiver or exercise of discretion.
(b) Discounts. A transmission provider must post any offer of a
discount for any transmission service made on the OASIS or Internet Web
site, as applicable, contemporaneous with the time that the offer is
contractually binding. The posting must remain on the OASIS or Internet
Web site for 60 days from the date of posting. The posting must
include:
(1) The name of the customer involved in the discount and whether
it is an affiliate or whether an affiliate is involved in the
transaction;
(2) The rate offered;
(3) The maximum rate;
(4) The time period for which the discount would apply;
(5) The quantity of power or gas upon which the discount is based;
(6) The delivery points under the transaction; and
(7) Any conditions or requirements applicable to the discount.
Sec. 358.5 Independent functioning rule.
(a) General rule. Except as permitted in this part or otherwise
permitted by Commission order, a transmission provider's transmission
function employees must function independently of its marketing
function employees.
(b) Exemption for permitted information exchanges. Notwithstanding
the requirements of paragraph (a) of this section, a transmission
provider's transmission function employees and marketing function
employees may exchange certain information, in which case the
transmission provider must make a contemporaneous record of the
information exchange, subject to an exception for emergency
circumstances, as provided in Sec. 358.7(h). The permitted information
is as follows:
(1) Information regarding generation necessary to perform
generation dispatch, or
(2) Information necessary to maintain or restore operation of the
transmission system.
(c) Separation of functions. (1) A transmission provider is
prohibited from permitting its marketing function employees to:
(i) Conduct transmission functions; or
(ii) Have access to the system control center or similar facilities
used for transmission operations that differs in any way from the
access available to other transmission customers.
(2) A transmission provider is prohibited from permitting its
transmission function employees to conduct marketing functions.
Sec. 358.6 No conduit rule.
(a) Prohibited disclosure and receipt. (1) A transmission
provider's transmission function employees are prohibited from
disclosing non-public transmission function information to their
transmission provider's marketing function employees.
(2) A transmission provider's marketing function employees are
prohibited from receiving non-public transmission function information
from any source.
(3) A transmission provider is prohibited from using anyone as a
conduit for the disclosure of non-public transmission function
information to its marketing function employees.
(4) An employee of a transmission provider, and an employee of an
affiliate of a transmission provider that is engaged in marketing
functions, is prohibited from disclosing non-public transmission
function information to any of the transmission provider's marketing
function employees.
(b) Exemption for permitted information exchanges. Notwithstanding
the requirements of paragraph (a) of this section, a transmission
provider's transmission function employees and marketing function
employees may exchange certain information, in which case the
transmission provider must make a contemporaneous record of the
information exchange, subject to an exception for emergency
circumstances, as provided in Sec. 358.7(h). The permitted information
is as follows:
(1) Information regarding generation necessary to perform
generation dispatch, or
(2) Information necessary to maintain or restore operation of the
transmission system.
Sec. 358.7 Transparency rule.
(a) Contemporaneous disclosure. (1) If a transmission provider
discloses non-public transmission function information, other than non-
public transmission customer information, in a manner contrary to the
requirements of Sec. 358.6(a), the transmission provider must
immediately post the information that was disclosed on the OASIS or
Internet Web site, as applicable.
(2) If a transmission provider discloses non-public transmission
customer information in a manner contrary to the requirements of Sec.
358.6(a), the transmission provider must immediately post notice on the
OASIS or Internet website, as applicable, that non-public transmission
customer information was disclosed.
(b) Exception for specific transaction information. A transmission
provider is
[[Page 16241]]
not required to contemporaneously disclose information covered by Sec.
358.6(a) if the information relates solely to a marketing function
employee's specific request for transmission service.
(c) Voluntary consent provision. A transmission customer may
voluntarily consent, in writing, to allow the transmission provider to
disclose the transmission customer's information to the transmission
provider's marketing function employees. If the transmission customer
authorizes the transmission provider to disclose its information to
marketing function employees, the transmission provider must post
notice on the OASIS or Internet website of that consent along with a
statement that it did not provide any preferences, either operational
or rate-related, in exchange for that voluntary consent.
(d) Posting written procedures on the public Internet. A
transmission provider must post on the OASIS or Internet website, as
applicable, current written procedures implementing the standards of
conduct.
(e) Identification of affiliate information on the public Internet.
(1) A transmission provider must post on its OASIS or Internet
website, as applicable, the names and addresses of all its affiliates
that employ or retain marketing function employees.
(2) A transmission provider must post on its OASIS or Internet
website, as applicable, a complete list of the employee-staffed
facilities shared by the transmission provider and any of its
affiliates that employ or retain marketing function employees. The list
must include the types of facilities shared and the addresses of the
facilities.
(3) The transmission provider must post information concerning
potential merger partners as affiliates that may employ or retain
marketing function employees, within seven days after the potential
merger is announced.
(f) Identification of employee information on the public Internet.
(1) A transmission provider must post on its OASIS or Internet
website, as applicable, the job titles and job descriptions of its
transmission function employees, with the exception of clerical,
maintenance, and field positions.
(2) A transmission provider must post a notice on the OASIS or
Internet website, as applicable, of any transfer of a transmission
function employee to a position as a marketing function employee, or
any transfer of a marketing function employee to a position as a
transmission function employee. The information posted under this
section must remain on the OASIS or Internet Web site, as applicable,
for 90 days. No such job transfer may be used as a means to circumvent
any provision of this part. The information to be posted must include:
(i) The name of the transferring employee,
(ii) The respective titles held while performing each function
(i.e., as a transmission function employee and as a marketing function
employee), and
(iii) The effective date of the transfer.
(g) Timing and general requirements of postings on the public
Internet.
(1) A transmission provider must update on its OASIS or Internet
Web site, as applicable, the information required by Sec. 358.7 within
seven business days of any change, and post the date on which the
information was updated.
(2) In the event an emergency, such as a flood, fire or hurricane,
severely disrupts a transmission provider's normal business operations,
the posting requirements in this part may be suspended by the
transmission provider. If the disruption lasts longer than one month,
the transmission provider must so notify the Commission and may seek a
further exemption from the posting requirements.
(3) All OASIS or Internet Web site postings required by this part
must comply, as applicable, with the requirements of Sec. 37.6 or
Sec. 284.12(a) and (b)(3)(v) of this chapter, and must be sufficiently
prominent as to be readily accessible.
(h) Recordation of permitted information exchanges. Notwithstanding
the requirements of Sec. Sec. 358.5(a) and 358.6(a), a transmission
provider's transmission function employees and marketing function
employees may exchange certain information, in which case the
transmission provider must make and retain a contemporaneous record of
all such exchanges except in emergency circumstances, in which case a
record must be made of the exchange as soon as practicable after the
fact. The transmission provider shall make the record available to the
Commission upon request. The record may consist of hand-written or
typed notes, electronic records such as e-mails and text messages,
recorded telephone exchanges, and the like, and must be retained for a
period of five years. The permitted information is as follows:
(1) Information regarding generation necessary to perform
generation dispatch, or
(2) Information necessary to maintain or restore operation of the
transmission system.
Sec. 358.8 Implementation requirements.
(a) Effective date. A transmission provider must be in full
compliance with the standards of conduct by the earlier of:
(1) The date it has a rate on file with the Commission, or
(2) The date it commences transmission transactions.
(b) Compliance measures and written procedures.
(1) A transmission provider must implement measures to ensure that
the requirements of Sec. Sec. 358.5(a) and 358.6(a) are observed by
its employees and by the employees of its affiliates.
(2) A transmission provider must distribute the written procedures
referred to in Sec. 358.7(d) to all its transmission function
employees, marketing function employees, officers, directors,
supervisory employees, and any other employees likely to become privy
to transmission function information.
(c) Training and compliance personnel.
(1) A transmission provider must provide annual training on the
standards of conduct to all the employees listed in paragraph (b)(2) of
this section. The transmission provider must provide training on the
standards of conduct to new employees in the categories listed in
paragraph (b)(2) of this section, within the first 30 days of their
employment. The transmission provider must require each employee who
has taken the training to certify electronically or in writing that s/
he has completed the training.
(2) A transmission provider must designate a Chief Compliance
Officer who will be responsible for standards of conduct compliance.
The transmission provider must post the name of the Chief Compliance
Officer and provide his or her contact information on the OASIS or
Internet Web site, as applicable.
(d) Books and records. A transmission provider must maintain its
books of account and records (as prescribed under parts 101, 125, 201
and 225 of this chapter) separately from those of its affiliates that
employ or retain marketing function employees, and these must be
available for Commission inspections.
Note: The following appendix will not be published in the Code
of Federal Regulations.
Appendix A: Table of Commenters and Abbreviations for Commenters
An asterisk indicates that the commenter filed both initial and
reply comments.
[[Page 16242]]
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1. Missouri Public Service Commission......... Missouri PSC.
2. Comments of the State of Alaska on Notice Alaska.
of Proposed Rulemaking.
3. Rulemaking Comments of New Mexico Attorney New Mexico AG.
General Office.
4. Rulemaking Comment of National Association NARUC.
of Regulatory Utility Commissioners*.
5. Notice of Intervention of California Public California PUC.
Utilities Commission*.
6. Initial Comments of * * * the Public PUC of Ohio.
Utilities Commission of Ohio.
7. Joint Comments of the Washington Utilities Washington, Idaho and Oregon state commissions.
and Transportation Commission, the Idaho
Public Utilities Commission, and the PUC of
Oregon*.
8. Georgia Public Service Commissioner Stan Commissioner Wise.
Wise.
9. Rulemaking Comment of South Carolina Public Santee Cooper.
Service Authority.
10. Initial Comments of the Natural Gas Supply NGSA.
Association*.
11. Initial Comments of the American Gas AGA.
Association*.
12. Rulemaking Comment of Interstate Natural INGAA.
Gas Association of America*.
13. Comments of Texas Pipeline Association.... Texas Pipeline Ass'n.
14. Comments of the American Public Gas APGA.
Association*.
15. Initial Comments of the National Fuel National Fuel Companies.
Companies*.
16. Rulemaking Comment of Spectra Energy Spectra.
Transmission, LLC.
17. Rulemaking Comments of Enbridge Energy Enbridge.
Partners, L.P. and Enbridge, Inc.
18. Initial Comments of Williams Four Corners Williams.
LLC.
19. Rulemaking Comment of Questar Market Questar Market Resources.
Resources, INC.
20. Rulemaking Comment of Questar Gas Company. Questar Gas Co.
21. Comments of Boardwalk Pipeline Partners, Boardwalk.
LP.
22. Rulemaking Comments of Williston Basin Williston.
Interstate Pipeline Company.
23. Comments Of NiSource Inc.................. NiSource.
24. Rulemaking Comment of Alliance Pipeline Alliance.
L.P.
25. Rulemaking Comment of USG Pipeline USG.
Company, et al.
26. Initial Comments of Exxon Mobil ExxonMobil.
Corporation.
27. Rulemaking Comment of DCP Midstream, LP... DCP Midstream.
28. Initial Comments of El Paso Corporation... El Paso.
29. Rulemaking Comment of Northwest Natural Northwest Natural.
Gas Company and KB Pipeline Company.
30. Initial Comments of Southwest Gas Southwest Gas.
Corporation.
31. Rulemaking Comment of New Jersey Resources NJ Resources.
Corporation.
32. Initial Comments of Sequent Energy Sequent.
Management, LP.
33. Comments of CenterPoint Energy Gas CenterPoint.
Transmission Company.
34. Comments of KO Transmission Company....... KO Transmission.
35. Rulemaking Comment of Dominion Resources Dominion Resources.
Services, Inc.
36. Comments of Suez Energy North America, Inc Suez.
37. Comments of Edison Electric Institute*.... EEI.
38. Rulemaking Comment of the Large Public LPPC.
Power Council*.
39. Comments of the Electric Power Supply EPSA.
Association*.
40. Rulemaking Comment of Transmission TDU Systems.
Dependent Utility Systems*.
41. Comments of the American Public Power APPA.
Association*.
42. Rulemaking Comments of National Rural NRECA.
Electric Cooperative Association.
43. Rulemaking Comment of Southwest Area SWAT.
Transmission Sub-Regional Planning Group*.
44. Rulemaking Comment of Retail Energy Supply Retail Energy Supply Ass'n.
Association*.
45. Rulemaking Comment of Transmission Access TAPS.
Policy Study Group*.
46. Rulemaking Comment of the Western Western Utilities Compliance Group.
Utilities*.
47. Rulemaking Comment of Idaho Power Company. Idaho Power.
48. Rulemaking Comment of Tucson Electric Tucson Electric.
Power Company.
49. Initial Comments of Nevada Power Company Nevada Companies.
and Sierra Pacific Power Company.
50. Rulemaking Comment of Arizona Public Arizona PSC.
Service Company.
51. Comments of Public Service Co. of New PSC of New Mexico.
Mexico.
52. Joint Initial Comments of Community Power CPA.
Alliance Members (i.e., Entergy Services,
Inc.; Salt River Project Ag. Imp. and Power
Dist.; Progress Energy; and, Southern Co.)*.
53. Initial Comments of Southern Company Southern Co. Services.
Services, Inc.
54. Comments of Entergy Services, Inc......... Entergy.
55. Rulemaking Comment of The AES Corporation. AES.
56. Rulemaking Comment of E.ON U.S. LLC....... E.ON.
57. Comments of Reliant Energy, Inc........... Reliant.
58. Comments of DTE Energy Company............ DTE.
59. Rulemaking Comments of PSEG Energy PSEG.
Resources & Trade LLC, et al.
60. Rulemaking Comment of KeySpan Corporation. KeySpan.
61. Rulemaking Comment of Bonneville Power Bonneville.
Administration*.
62. Comments of the Transmission Agency of TANC.
Northern California*.
63. Rulemaking Comment of Portland General Portland General.
Electric Company.
64. Rulemaking Comment of Florida Power & Florida Power & Light.
Light Company.
65. Rulemaking Comment of FPL Group, Inc...... FPL Group.
66. Rulemaking Comment of Otter Tail Power Otter Tail.
Company.
67. Comments of Wisconsin Electric Power Wisconsin Electric.
Company.
68. Rulemaking Comment of Puget Sound Energy, Puget Sound.
Inc.
69. Rulemaking Comment of Exelon Corporation.. Exelon.
70. Rulemaking Comment of NSTAR Electric & Gas NSTAR.
Corporation.
71. Comments of NorthWestern Corporation...... NorthWestern.
72. Rulemaking Comment of the Indicated New Indicated NY TOs.
York Transmission Owners.
73. Comments of FirstEnergy Service Company... FirstEnergy.
74. Rulemaking Comments of American American Trans. Co.
Transmission Company LLC.
[[Page 16243]]
75. Joint Comments of Progress Energy, Inc., Progress.
ElectriCities of North Carolina, Inc. and
North Carolina Electric Membership
Corporation.
76. Motion To Intervene And Comments of PG&E.
Pacific Gas & Electric Company.
77. Comments of Ameren Services Company....... Ameren.
78. Initial Comments of Oklahoma Gas and Oklahoma Gas & Electric.
Electric Company.
79. Rulemaking Comment of Southern California SCE.
Edison Company.
80. Rulemaking Comment of Morgan Stanley MSCGI.
Capital Group Inc.*.
81. Comments of National Grid USA............. National Grid.
82. Rulemaking Comment of MidAmerican Energy MidAmerican.
Company, PacifiCorp, Kern River Gas
Transmission Company, and Northern Natural
Gas Company.
83. Initial Comments of SCANA Corp............ SCANA.
84. Rulemaking Comment of Xcel Energy Services Xcel.
Inc.
85. Comments of Sempra........................ Sempra.
86. Florida Public Service Commission (Reply Florida PSC.
comments only).
87. ITC--Mich. Electric Transmission (Reply ITC.
comments only).
88. Federal Trade Commission (Reply comments FTC.
only).
89. Alabama PSC (Reply comments only)......... Alabama PSC.
90. Chevron (Reply comments only)............. Chevron.
91. Aux Sable Liquids (Reply comments only)... Aux Sable.
92. Calypso/Broadwater (Reply comments only).. Calypso.
93. Anadarko*................................. Anadarko.
94. BG E&P Alaska (Reply comments only)....... BG E&P Alaska.
95. Fayetteville (Reply comments only)........ Fayetteville.
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[FR Doc. E8-6261 Filed 3-26-08; 8:45 am]
BILLING CODE 6717-01-P